FEDERAL COURT OF AUSTRALIA

Wiegand v Comcare Australia [2006] FCA 1620 

ADMINISTRATIVE LAW – appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – claim for compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) – proper construction of s 4 of the SRC Act – Tribunal held that two of the relevant events that materially contributed to the applicant’s disease were excluded under the Act – applicant not entitled to compensation – whether no evidence to support Tribunal’s findings in respect of excluded events

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) s 4(1)

Hart v Comcare [2005] FCAFC 16 applied

Treloar v The Australian Telecommunications Commission (1990) 26 FCR 316 applied

Schmid v Comcare [2003] FCA 1057 cited

Roads Corporation v Dacakis (1995) 2 VR 508 referred to  

JOACHIM WIEGAND v COMCARE AUSTRALIA

No SAD 215 of 2005

FINN J

27 NOVEMBER 2006

ADELAIDE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is the second occasion upon which this matter has been before the Court by way of an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) against a decision of the Administrative Appeals Tribunal dismissing a claim for compensation under the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”).  If the Tribunal in this matter had been able to deal with the applicant’s claim on the basis of what was understood to be the true construction of s 4 of the SRC Act at the time of Mr Wiegand’s first appeal to the Tribunal, he would have been awarded the compensation he claimed.  As the law is now to be understood in light of the decision of the Full Court in Hart v Comcare [2005] FCAFC 16, the Tribunal acknowledged it had no option but to dismiss the application to it given its findings. 

2                     At the hearing of this application before me I permitted Mr Wiegand, with the concurrence of Comcare, to raise a new question of law.  That new question impugned two critical findings of the Tribunal on the basis that there was no evidence to support either of them.  To anticipate what I have to say, I am not satisfied that the Tribunal erred in the way suggested.  In these circumstances, as Mr Wiegand reluctantly conceded, I would be obliged to apply Hart and dismiss the application. 

BACKGROUND

3                     Mr Wiegand was employed in the Australian Taxation Office from May 1986 until January 1998.  In May of 1998 he made his claim for compensation attaching a medical certificate from a psychiatrist which contained a diagnosis of major depression with the stated date of injury as approximately January 1998.  The Tribunal indicated in its reasons that the causes of this condition were a large number of “situations and events” which occurred during Mr Wiegand’s employment by the ATO:

“Whilst his evidence suggests that some particular events had a more significant effect on him than others, I find that the combination of a large number of employment related situations and events (including those to which I have referred in paragraphs 13 and 15 above), or Mr Wiegand’s perception of them, led to his developing major depression.  I further find that he was suffering from this condition, or an aggravation of this condition, as at 2 January 1998, when he failed to return to work at the ATO, and that this condition was materially contributed to by his employment”:  Reasons par 48.  

I would note in passing that par 13 refers to eleven “situations and events” and par 15 to 21 “other situations and events”.  Only one of these was not employment related. 

4                     Later in its reasons the Tribunal observed (at par 51) that a large number of the asserted stressors took place prior to October 1995;  that Dr Coyte’s opinion – Dr Coyte was Mr Wiegand’s treating psychiatrist – was that they had an increasing and compounding effect;  and that the pre October 1995 stressors materially contributed to the subsequent development of Mr Wiegand’s depression. 

5                     Having reached this conclusion, the Tribunal was confronted with the proviso to the definition of injury in s 4 of the SRC Act.  Section 4(1) provides:

“injury means:

(a)        a disease suffered by an employee; or

(b)        an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment;  or

(c)        an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”

6                     I would note as well that the s 4 definition of “disease” is as follows:

“diseasemeans:

(a)        any ailment suffered by an employee;  or

(b)        the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.”

7                     Two of the relevant events which were found by the Tribunal to have contributed in a material degree to Mr Wiegand’s disease were (i) a failure to be promoted in 1989 and (ii) a failure to obtain compassionate leave in 1997.  In arriving at this conclusion the Tribunal appears to have applied unexceptionably the decision of the Full Court in Treloar v The Australian Telecommunications Commission (1990) 26 FCR 316 at 323 in determining whether the above two events contributed in “a material degree” to his disease.

8                     The Tribunal dealt with such evidence as related to the former of these at [69]-[74] of its reasons.  These paragraphs (other than par [74]) refer to evidence which suggested the promotion matter “aggrieved”, or had a “significant impact” on, Mr Wiegand, or else reflected conduct of the ATO that concerned him.  More significant is the following passage in the oral evidence of Dr Coyte on which the Tribunal relied in par [74].  It is as follows:

“THE D.PRESIDENT:Doctor, I wonder if you would look at the report of the decision of the Federal Court in Mr Wiegand’s appeal to the Federal Court [in 2002].  Do you have that there?  It was part of exhibit 24 tendered this morning, I think.  I wonder if you would go to paragraph 10 of that report and you will see a series of dot points within paragraph 10?---Yes.  

I wonder if you would just take a moment to read through those particular dot points?---How far would you like me to go with this? 

I think continue to the end of paragraph 10?---Okay.

I didn’t realise there were so many pages but if I just ask you a general question – perhaps to the end of paragraph 10 and then paragraph 11 which is very brief. 

That.

Thank you.  Now, you understand from having read that, that that is a summary prepared by the Federal Court Judge of the concerns which Mr Wiegand had about events that had happened in the course of his employment?---Yes.

And which he thought contributed to his ill health.  Paragraph 10 contains what are described as the major events, but not necessarily all of the events.  The question is, in the course of his consultations with you has he mentioned those events to you?---I could say, yes, he has.  Not in as much detail as some of these.

No.  Certainly, apart from matters of detail, there is nothing new in there that you haven’t heard about before?---No, there is nothing new. 

Did all of those matters appear to be of concern to Mr Wiegand?---When he related them to me?

Yes?---Yes. 

Do you consider that all of those matters contributed to the onset of his depression, or alternatively, to the aggravation of his depression?---Yes, I do.”  (TR22.3.05 at pp 39-40)

9                     I should interpolate that the 1989 failure to be promoted and its aftermath was one of the events referred to in par 10.  The Tribunal (in par [75]) went on to conclude: 

“Whilst (as I have already found) there was a combination of many events that caused Mr Wiegand’s depressive condition, it appears from the evidence before me that this first failure to be promoted marked the beginning of Mr Wiegand’s psychological concerns.  I find from the above evidence that this event was one of the causative factors for his developing major depression and that it was not an insignificant factor.  This factor was an excluded event within the proviso to the definition of ‘injury’.”

10                  As to the compassionate leave event, the Tribunal said at par [83]:

“Mr Milazzo [Comcare’s legal representative] finally referred to the refusal by the ATO to grant Mr Wiegand compassionate leave at the time of his father’s proposed visit to Adelaide late in 1996.  When asked if that upset him, Mr Wiegand said:  ‘I was extremely upset.  Yes.  Extremely.’  (transcript 25.2.02, page 63, line 1).  This matter was the subject of a further grievance by Mr Wiegand contained in a letter dated 9 December 1996 (exhibit A11, exhibit R11).  In this letter, Mr Wiegand said that at a meeting on 2 October 1996 his then manager had refused his request for leave, even though his manager was fully aware that his 77 year old father, whom he had not seen for eight years and whom he might not see alive again, was about to visit him.  His letter continued:  ‘This has caused me great anguish and my health has been affected by this.  I have been ov (sic) for three days.’  The letter ended with a comment that he thought he was probably wasting his breath as the result of the grievance would be another ‘white wash’.”

11                  I would add this event also was one of those referred to by von Doussa J which Dr Coyte confirmed contributed to the aggravation of Mr Wiegand’s depression.  The Tribunal concluded of the event that it caused additional significant distress to Mr Wiegand further compounding the effect of the many early stressors he had experienced and it was a causative factor in his suffering major depression as at January 1998. 

12                  The Tribunal acknowledged as a result of Hart’s case, it was not open to it to evaluate the relative significance of contributing causes in order to determine which factor or factors were predominant so that if non-excluded factors were predominant, the proviso to the definition of “injury” would be held not to apply.  However, it did express the view that if it was able to discount the two excepted matters noted above, it would find that the various other employment related stressors were in combination the dominant cause of Mr Wiegand’s major depression.

13                  Accordingly in light of Hart,it confirmed Mr Wiegand’s disentitlement to compensation.

14                  In Hart, a claimant for compensation under the SRC Actcomplained of depression, anxiety and adjustment disorder caused by events associated with three applications for promotion in the Department of Defence.  The Tribunal in that matter found that the adjustment disorder was first suffered during the events at the time of, and connected with, the procedures employed in relation to three promotions for which the appellant had applied unsuccessfully.  It found that her condition was materially contributed to (a) by the failure to obtain promotions and (b) by the events at the time of, and connected with, the procedures employed in the process leading up to the decisions as to the promotions.  While it recognised that any disease suffered as a result of the failure to obtain promotion was excluded by s 4(1), disease resulting from the other concurrent cause was not.  Accordingly it determined that compensation was payable to the applicant in that case. 

15                  An appeal to this Court resulted in the appeal being allowed and the decision of the Tribunal being set aside.  The primary Judge found that the distinction drawn between the two causes was in the circumstances “spurious”.  On appeal to the Full Court, the appellant argued that the distinction was a valid one:  where there were two operative causes, one being compensable and the other not, given the beneficial purpose of the legislation, the approach taken by the Tribunal in that case ought be adopted.  For its part on the appeal Comcare raised by way of Notice of Contention that the findings made by the Tribunal were sufficient to meet the words of the proviso, such that there was no “injury” as defined. 

16                  The Full Court in a joint judgment agreed with that contention.  It said at [20] that:

“The task is one of statutory construction.  This is a beneficial statute.  Nevertheless, comformably with that, it is necessary to construe the words used by the Parliament. 

The so-called proviso in the definition does not exclude causes.  It provides that if a disease of injury which would otherwise fall within the definition (‘any such’) is one which answers a description (relevantly here:  ‘suffered as a result of … the failure to obtain a promotion’), the disease or injury is not an ‘injury’ as defined.  The words are satisfied here.  There was no debate that the factual findings made by the Tribunal amount to a conclusion that the disease or injury suffered was as a result of the failure to obtain the promotions.

In order to succeed, the appellant must assert, as she does, that operative causes are not excluded and that given the provision’s purpose some modifier should be read into the words to restrict the effect of the exclusion to circumstances where there were no other employment related causes.  We do not agree.  The operation of the provision had the evident purpose of removing from the field of compensation a disease, injury or aggravation which was a result of something.  We see no evident purpose to remove from the field of compensation a disease, injury or aggravation which was only a result of that thing.  The words do not readily admit that construction.  The cases on multiple causes in tort or general law do not assist that enquiry.

It will in any case be for the Tribunal to examine the facts, assess the reasons for the disease, injury or aggravation and come to conclusions in respect thereof.  Whether in any given case, those findings allow a conclusion that the condition was suffered as a result of one or more of the matters referred to in the proviso, may be a factual question, or perhaps a legal question.  Here, however, the findings were clear.  The failure to obtain the promotions materially contributed to the condition and there is no issue but that the condition was suffered as a result of the failure to obtain the promotion.”

17                  Subject to what I have to say about Mr Wiegand’s no evidence claim, in light of the findings made and the decision in Hart the present application must be dismissed.  While I am obviously bound to apply Hart,I consider that it produces a harsh outcome in cases such as the present where a psychiatric condition is the product of the cumulative effect of quite some number of stressors experienced over a long period of time, which stressors happen to include a very small number that fall within the s 4(1) exclusion.

THE APPEAL

18                  As I have indicated, Mr Wiegand accepts that unless he can impugn the findings made by the Tribunal in relation to the 1989 promotion and the 1997 compassionate leave, his application must be dismissed because of Hart’s case.  He challenges both of those findings on the basis that there was no evidence to support them. 

19                  I should state at the outset, as has been acknowledged by others:  see Schmid v Comcare [2003] FCA 1057 at par [53];  there is a high threshold for treating a finding of fact as giving rise to an error of law.  I would note that in Roads Corporation v Dacakis (1995) 2 VR 508 at 520 it was said:

“… a finding of fact will only be open to challenge as erroneous in law if there is no probative evidence to support it (and not also if it is not reasonably open on the evidence), whilst an inference will only be open to challenge as being erroneous in law if it was not reasonably open on the facts”:  emphasis in original.

I emphasise this matter because an appeal to this Court under s 44 can only be made on a question of law. 

20                  Mr Wiegand’s complaint in relation to the promotion incident centred in large measure on the fact that it was only towards the very end of a protracted hearing in the Tribunal that Hart’s case became an issue (it having just been decided by the Full Court).  Up until then the case had been run by him on grounds suggested by the earlier decision of von Doussa J which related to the reality of his “perceptions”.  For this reason little attention was given to the 1989 promotion in the course of the proceedings.  He contends that his psychiatrist, Dr Coyte, was reluctant to assign diagnostic significance to individual past events such as the 1989 promotion event.  Equally Mr Wiegand sought to explain away the significance of the transcript referred to above by saying that, while Dr Coyte agreed that the factors referred to by von Doussa J, including the failure to be promoted, contributed to the onset of his depression, Dr Coyte did not agree that they contributed in a material degree.  Given the decision of the Full Court in Treloar’s case on the significance of the word “material” in this context, I do not consider there is any substance in this supposed difference.  As the Full Court observed in Treloar at 323, once a causal connection is established between an employment event and the ailment suffered “it matters not that the contribution be large or small”. 

21                  Given Dr Coyte’s evidence, there was some evidentiary basis for the Tribunal making the finding that it did.  Whether that finding was in fact erroneous or not is not a matter of present relevance.  I have referred above to the threshold posed by a no-evidence case.  Mr Wiegand in the circumstances is unable to cross it.  This conclusion of itself would be sufficient to dismiss the application.

22                  I should add for the sake of completeness that I have reached a like view on the compassionate leave question.  The evidence of its contributing effect might be considered slight but there nonetheless was evidence of such a contribution before the Tribunal.

CONCLUSION

23                  I dismiss the appeal and order the applicant to pay the respondent’s costs of the application. 

Associate:

Dated:         27 November 2006