Federal Court of Australia
De Tarle v Comcare [2022] FCA 175
ORDERS
Applicant | ||
AND: | Respondent | |
ABRAHAM J | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The applicant is to pay the respondent’s costs, to be agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ABRAHAM J:
1 The applicant, Mr De Tarle, appeals to this Court from a decision of the Administrative Appeals Tribunal (Tribunal) pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). In its decision, the Tribunal affirmed an earlier determination of the respondent (Comcare) that it was not liable to pay the applicant compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
2 Mr De Tarle was employed by the Australian Securities and Investments Commission (ASIC) from May 2010 to 29 April 2013 as an ASIC 4 Analyst.
3 In an unsigned claim form, dated 23 August 2013, Mr De Tarle claimed compensation for “severe anxiety and depression” which was first noticed in April 2012. In the claim form, Mr De Tarle alleged that the condition was due to “bullying and harassment” and noted that he had received medical treatment for a similar condition since 2006.
4 On 24 April 2014, pursuant to s 14 of the SRC Act, a delegate of Comcare denied liability for “aggravation of depressive disorder” and “aggravation of anxiety state”. The delegate was not satisfied that Mr De Tarle’s employment contributed to his condition to a significant degree. The delegate’s decision was affirmed on 24 November 2014 (the reviewable decision).
5 On 22 January 2015, Mr De Tarle applied to the Tribunal for review of the reviewable decision. On 3 February 2021, the Tribunal affirmed the reviewable decision: De Tarle and Comcare (Compensation) [2021] AATA 94.
6 On 2 March 2021, the applicant appealed to this Court from the decision of the Tribunal. On 16 June 2021, the applicant filed an amended originating application in which he relied on seven grounds of review. Grounds 1 and 2 were addressed together at the hearing. Grounds 6 and 7 appear to be interrelated and were treated by the parties in their submissions and at the hearing as a single ground of review. I have addressed these grounds as such in my consideration.
7 The grounds of review can be summarised as follows:
(1) the Tribunal applied an incorrect test for injury, including by failing to apply the “eggshell psyche” rule as to the perception of real events in the course of employment and by failing to correctly apply the principles in Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468 (May) and Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 (Semlitch) (Ground 1);
(2) the Tribunal failed to apply the “eggshell psyche” rule to the circumstances of the applicant’s case, including in relation to the particular susceptibility the applicant had to psychiatric injury and in relation to his perception of real events in the course of employment. Further, the Tribunal failed to apply the principles in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 (Chemler) (Ground 2);
(3) the Tribunal lacked procedural fairness in taking into account material not raised by counsel at the hearing (Ground 3);
(4) the Tribunal lacked procedural fairness in failing to consider arguments raised by counsel at the hearing as to the “eggshell psyche” rule (Ground 4);
(5) the Tribunal took into account irrelevant considerations, namely whether the applicant had disclosed prior mental health issues, which is an irrelevant consideration in relation to the no-fault compensation scheme under the SRC Act (Ground 5); and
(6) the Tribunal failed to give adequate reasons and/or the Tribunal gave inconsistent reasons (Grounds 6 and 7).
8 For the reasons below, the application is dismissed.
Tribunal decision
9 After setting out the statutory framework, the Tribunal found that during the applicant’s employment he had suffered a significant pre-existing psychiatric condition described as Chronic (Persistent) Major Depression associated with underlying personality Dysfunction/Disorder: at [14]. It was accepted that this condition qualified as an “ailment” for the purposes of s 4(1) of the SRC Act: at [15].
10 The Tribunal at [19] identified the key issues as follows:
i) during the period of his employment with ASIC, did Mr De Tarle suffer an aggravation of his pre-existing psychiatric condition; and, if so
ii) was the aggravation of his pre-existing psychiatric condition contributed to, to a significant degree, by Mr De Tarle’s employment; and, if so
iii) was the aggravation of his pre-existing psychiatric condition suffered as a result of reasonable administrative action taken in a reasonable manner in respect of Mr De Tarle’s employment with ASIC.
11 The Tribunal reviewed the relevant evidence in detail: at [20]-[75]. This included statements from Mr De Tarle and various managers at ASIC who had worked with him, relevant medical records (some of which were produced by summons), including reports from consultant psychiatrists, and oral evidence presented at the hearing.
12 In its reasons, the Tribunal set out a detailed chronology of events with respect to the applicant’s employment history with ASIC: at [25]. It is appropriate to briefly recount some of those key facts.
13 The applicant commenced employment with ASIC on 10 May 2010. Following completion of his probationary period in November 2010, the applicant received a number of “Improvement Required” ratings during performance reviews in 2011 and 2012. This led to the applicant being provided on 7 August 2012 with a notice of unsatisfactory performance and being placed on a Performance Improvement Plan (PIP). The PIP did not formally commence until 11 October 2012, as ASIC was advised by Comcare not to commence the PIP until it had conducted its investigation of a bullying complaint made by the applicant in late August 2012.
14 At various times during his employment, the applicant made a number of complaints, including to senior staff members at ASIC, about concerns relating to alleged bullying and harassment. The earliest of these complaints occurred in March 2012. The chronology shows that these complaints were investigated both internally and by Comcare and no evidence was found of bullying and harassment. Comcare, as a result of its investigation in late September 2012, found that ASIC had a systematic risk management approach to managing bullying complaints. The applicant made further complaints of harassment and threatening behaviour in October and November 2012 (both before and after commencement of the PIP), as well as a purported whistle-blower complaint on 10 March 2013.
15 Following implementation of the PIP, the applicant was advised in November 2012 that his performance was not meeting expectations. From December 2012 onwards, the applicant took extended absences from work, initially using his sick leave, and then unpaid personal leave after his leave balances were exhausted. He attended work for only three days in December 2012 and six days in January 2013. In late February and early March 2013, ASIC sought to arrange an independent medical examination to determine the applicant’s fitness for work. The applicant did not attend these assessments, despite having been directed to do so in relation to the March 2013 assessment. On 15 March 2013, the applicant was notified that his performance had not met expectations. On 8 April 2013, the applicant was advised that ASIC considered his absence from work since 4 March 2013 to be unauthorised. In response, on 18 April 2013, the applicant stated that, amongst other things, he felt unsafe at work. On 29 April 2013, the applicant’s employment was terminated on grounds of non-performance of duties. The applicant subsequently made an unfair dismissal application to the Fair Work Commission (FWC) which was resolved at conciliation. He later resigned from ASIC, effective 29 April 2013.
16 The Tribunal reviewed the applicant’s relevant medical history: at [26]-[47]. The evidence included clinical notes from the applicant’s treating practitioners as well as hospital admission records and expert medical evidence from consultant psychiatrists. The clinical notes and records show that the applicant experienced symptoms of anxiety, stress and depression of fluctuating intensity since prior to his employment with ASIC and that he had taken antidepressant medications at various times from 2006 onwards.
17 The evidence of Dr Champion and Dr McClure is briefly summarised below.
18 Dr Champion, consultant psychiatrist, in his report dated 21 February 2017, indicated that the applicant‘s presentation was consistent with Chronic Low Grade Major Depression DSM 5, which most likely interfered with his ability to perform work functions at the required level. Mr De Tarle’s condition had been present prior to his employment with ASIC and the cause of the condition was most likely “constitutional”. In his opinion, employment factors did not play a role in the applicant’s illness, but rather his condition caused him difficulties in functioning in the workplace. Dr Champion further noted that the applicant ceased taking antidepressant medication when he joined ASIC, which made him more vulnerable to increased depression. This, Dr Champion said, likely intensified the level of disorder which Mr De Tarle sustained whilst working at ASIC.
19 Dr McClure, consultant psychiatrist, in a report dated 27 November 2019, expressed the view that the applicant commenced at ASIC with a pre-existing mood disorder associated with anxiety and that he had longstanding personality vulnerabilities of an obsessional and narcissistic nature. Dr McClure observed that there is a question of whether the applicant may be paranoid or even psychotic. He diagnosed the applicant with Major Depressive Disorder (MDD), chronic, recurrent, and Obsessional and Narcissistic Personality traits. Dr McClure reported that at the time the applicant commenced with ASIC, he said he was “completely functional” and was taking antidepressant medication, which gradually increased to a higher dose. Dr McClure considered that it is possible workplace events exacerbated the applicant’s condition, but that it was also possible Mr De Tarle could not cope with the complexity and volume of work at ASIC because of his cognitive difficulties associated with Major Depression, leading to a “vicious cycle wherein his mood and ability to process information deteriorated in tandem”.
20 Dr Champion prepared a supplementary report dated 8 March 2020. Dr Champion considered that Dr McClure’s diagnostic conclusions and opinions were consistent with the conclusions in his initial report. Dr Champion also reviewed additional hospital admission records and in a further supplementary report, dated 28 March 2020, he considered it appropriate to extend Mr De Tarle’s diagnosis to include Paranoid Personality Disorder. He also considered that “problems in personality function are likely to be the significant factor in Mr De Tarle’s chronic mental health problems which commenced long before his employment with ASIC”.
21 On 10 November 2020, Dr McClure prepared a supplementary report. In the report, he concluded that Mr De Tarle developed an exacerbation of a pre-existing chronic MDD whilst working at ASIC and that he has an additional diagnosis of Persistent Depressive Disorder. Dr McClure considered that, having regard to Mr De Tarle’s prior work history in the finance industry, that he has a recurrent pattern of becoming unwell in the context of conflict between his standards and the requirements of his supervisors. Mr De Tarle’s experience at ASIC was consistent with this pattern. He attributed the applicant’s incapacity partially to injuries at work and partially to his “constitutional condition”. Being placed on the PIP and having his concerns dismissed, were “significant narcissistic blows” which contributed to his declining mental state. He concluded that workplace events in part contributed to Mr De Tarle’s condition.
22 Mr De Tarle presented evidence which the Tribunal observed was mostly consistent with his employment and medical history prior to 2010: at [48]-[59]. In respect to Mr De Tarle’s medication history, the applicant noted that his general practitioner (GP) had started him on Paroxetine (an antidepressant) in 2006 due to workplace stress and anxiety.
23 The applicant gave evidence that his mental state was “fully functional” before commencing at ASIC in 2010. In 2010, Mr De Tarle discussed coming off his medication with his GP, which he considered because he was already on a minimal dose, but in the end he did not stop the medication. The Tribunal made the following observations at [56]-[57] in respect to these matters:
[56] In cross examination, when asked by counsel a series of questions about his antidepressant medication prior to 2010 and during his employment with ASIC, Mr De Tarle was uncertain, could not remember and said he wanted to rely on medical records. When asked specifically if, in fact, he had ceased taking Aropax while working with ASIC, he said:
I don’t believe so. I think I was considering coming off it. However, to come off it would have been a process of several days. It’s not something you can just stop overnight… I don’t believe I ever came off Aropax. That would be in the notes, my medical records. I only believe that it was discussed, my eventually coming off the dose.
[57] When the Applicant was asked why he told Dr Champion that he had ceased taking medication while at ASIC, Mr De Tarle said “Look, certainly, I can’t remember details… of the meeting with Dr Champion, which was in 2017… I don’t remember saying I was - I had come off it, or was coming off it.” When asked to consider the fact that the last recorded prescription in a General Practice noted was dated 15 September 2011 with no further prescriptions until after he had been admitted to Royal North Shore Hospital (RNSH). Mr De Tarle said “a prescription can last for six months” and asserted that he “continued [the] medication, I didn’t stop.”
24 In the weeks before his dismissal, the applicant indicated that he was having difficulties at work and was taking more periods of leave. Around that time, his evidence was that he was taking a very high level of a new antidepressant, Sertraline. There were further changes to the applicant’s medication around mid-2012, including in the time following his admission to Royal North Shore Hospital (RNSH) after an attempted suicide in April 2012.
25 The Tribunal also noted that the cross-examination revealed that there had been concerns about Mr De Tarle’s work performance throughout the whole period of his employment.
26 The Tribunal examined the evidence of Dr Champion and Dr McClure: at [60]-[75]. Dr Champion and Dr McClure gave concurrent evidence at the Tribunal hearing. In response to questions posed by the Tribunal, both experts agreed that the events of 2012/13 were consistent with the natural history of the applicant’s illness since 2006. In relation to the question of whether the workplace was causing Mr De Tarle’s psychiatric condition in 2012/13, or whether his psychiatric condition was causing his work problems, Dr McClure took the view that both processes have interacted. The pre-existing constitutional condition, in his opinion, contributed to the applicant’s condition greater than did the events in the workplace. Dr Champion concluded that it is more probable that the illness was causing the work problems in 2012/13.
27 Both doctors agreed that the applicant could appropriately be diagnosed with paranoid personality disorder. It was also agreed that the applicant’s depression had worsened over time and that this was consistent with the natural progression of his condition. His condition may have improved had there been a greater level of engagement with ongoing treatment. Both experts agreed that because of his hypersensitive and paranoid personality factors, the applicant was likely to overreact or misinterpret things compared to the average person, and may develop feelings of persecution or misinterpret certain actions as bullying.
28 In response to a question about the applicant’s GP recommending that he cease taking antidepressant medication and whether it was consistent with him experiencing a lower level of psychiatric issues at the time, Dr Champion commented that this was poor advice. This is because a “person with a history of requiring antidepressant medication…is well advised to continue antidepressants for several years…as a prophylactic to prevent recurrence”. Dr Champion indicated that he had been advised that the applicant ceased taking his medication and that he was feeling well around the time that he joined ASIC. Dr McClure’s evidence was that the applicant did not tell him that he had stopped taking his medication. Dr McClure agreed that if Mr De Tarle did cease taking his medication during his employment with ASIC, that this may have intensified the level of depressive disorder he sustained.
29 Dr McClure agreed that Mr De Tarle had instructed him that, prior to working at ASIC, he was on a low dose of 10 milligrams of Aropax. However, the applicant’s GP records showed that he was taking a dose of 40 milligrams at that time, which Dr McClure stated was close to the maximum recommended dose. Dr McClure said that Mr De Tarle told him that he had never experienced any performance issues at previous workplaces.
30 Dr McClure was also asked to explain a comment he made in one of his reports that Mr De Tarle’s supervisors had failed to take into account the effects of the PIP on his fragile mental state, in light of the fact that Mr De Tarle had failed to disclose to ASIC the existence of any mental health issues. Dr McClure explained that it is possible that a worker may have a stress reaction to performance pressure, and that this would be something that the applicant may have expressed to his supervisors or which could have been observed by them. When asked whether there was any evidence to show that the applicant’s supervisors had observed the applicant’s increasingly fragile mental state, Dr McClure accepted that there was no such evidence, nor was there any evidence that the applicant’s behaviour changed over time.
31 In its consideration, the Tribunal at [76]-[77] accepted that the applicant had suffered from severe chronic major depression complicated by a comorbid personality disorder for more than 14 years. The Tribunal noted that the applicant had taken numerous antidepressants since 2004 and that he currently takes a maximum dose of Sertraline, but he has had limited engagement with psychotherapy treatment.
32 The Tribunal noted that the applicant’s claim to have suffered an aggravation of his pre-existing condition was based on the belief that his mental state was stable prior to commencing at ASIC and that his experiences at ASIC caused his condition to worsen: at [78]. This is said to be supported by the fact that he declared that he did not have any pre-existing medical conditions when he started at ASIC: at [79]. The Tribunal commented that the failure to declare any pre-existing conditions could be seen as a wilful and false representation per s 7(7) of the SRC Act, but did not consider this issue any further: at [80].
33 In relation to the applicant’s employment at ASIC, the Tribunal at [82] remarked that it was clear that he experienced issues relating to his performance and with his managers from the end of his probation period until his dismissal. The Tribunal observed that the applicant held a perception of his abilities that was not always shared by others and that this was reflected in his previous work history: at [82]. Mr De Tarle disputed the need for performance management despite the efforts of ASIC staff to provide him with support. His method of dealing with problems in the workplace was to complain, make allegations and find fault with the approach of ASIC senior management: at [83]-[84].
34 In the Tribunal’s view, the impact of the applicant’s condition on problems he experienced at work was unclear. However, it was clear on the evidence that ASIC was never informed that Mr De Tarle suffered from a significant mental health condition: at [85].
35 The Tribunal considered that the first indication of a possible change in Mr De Tarle’s condition was around the time of his admission to RNSH in April 2012, which was followed by his increased use of leave in late 2012 and failure to return to work in 2013: at [88]. The cause of these changes, in the Tribunal’s view, was unclear because there was no record of any face-to-face consultation, apart from the hospital admission, between September 2011 and December 2012: at [89].
36 The Tribunal noted the applicant’s contention that the change in his mental health was due to problems he was facing at work and the PIP: at [90]. The Tribunal at [92] considered, however, the “most relevant issue” was the fact that the applicant ceased taking his antidepressant medication. It noted that the last prescription for Paroxetine was supplied on 5 August 2011 and there was no record of the applicant having been prescribed any medication until 22 April 2013. Given that subsidised antidepressant medication can only be obtained via the Pharmaceutical Benefits Scheme with a prescription, the Tribunal found Mr De Tarle must have stopped taking his medication around August 2011 and did not resume his medication until around 22 April 2013: at [93].
37 The Tribunal observed that the applicant’s lack of reliability, particularly regarding his treatment with antidepressant medication, significantly diminished the weight that could be given to the expert medical evidence: at [97]. On balance, however, the Tribunal preferred the evidence of Dr Champion, noting that Dr Champion’s views were more consistent with the documentary evidence and that Dr Champion was aware that the applicant had ceased taking antidepressant medication shortly after commencing at ASIC: at [98]. Dr McClure did not realise that the applicant had ceased taking his antidepressant medication while at ASIC: at [102]. In the Tribunal’s view, Dr McClure’s opinions were influenced by unreliable information and an “unsound process of reasoning which is often referred to as the post hoc ergo propter hoc (after this, therefore because of this) or post hoc logical fallacy”: at [104].
38 In conclusion, the Tribunal found that the applicant suffered a change in his mental health in form of an increase in depressive symptoms during his employment with ASIC: at [105]. However, the Tribunal was not satisfied that this change constituted an aggravation of his pre-existing condition that was contributed to, to a significant degree, by his employment: at [106]-[113]. The Tribunal was satisfied that Mr De Tarle’s comorbid personality disorder had a significant impact on his performance at work and that this may have contributed to some degree to an increase in his depressive symptoms in 2012 and 2013: at [109]. However, the Tribunal was not persuaded that there was a psychiatric change in his pre-existing condition, referring to May, Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535 and Re Whitlock and Comcare [2020] AATA 1353. The fact that the applicant had ceased taking his antidepressant medication caused a temporary increase in his depressive symptoms, but there was no change in the pre-existing condition: at [111].
Chronology
39 The respondent provided an unchallenged chronology of events, which included the following:
(1) 2004 – 2007: the applicant had anxiety and chronic recurrent MDD whilst working for JP Morgan, which resulted in medication being prescribed.
(2) 2007 – May 2010: the applicant attended treatment providers for psychiatric conditions and was prescribed medication in respect of work-related problems in the United States and Singapore.
(3) May 2010: the applicant commented employment with ASIC.
(4) July 2010 – 21 June 2011: the applicant reports to treatment providers that he is happy with his job at ASIC.
(5) August 2011 – late April 2013: the applicant ceases medication.
(6) April 2012: the applicant is admitted to RNSH following attempted suicide.
(7) 24 December 2012: the applicant attends work with a medical certificate advising him to avoid unnecessary stress.
(8) January 2013: the applicant is absent on authorised sick leave and seeks review of his 2011/12 performance rating.
(9) February 2013 – late April 2013: ASIC takes various steps in relation to the applicant’s medical and employment status.
(10) 29 April 2013: the applicant’s employment at ASIC is terminated.
Grounds 1 and 2
40 As noted above, Grounds 1 and 2 were addressed together.
41 In summary, the applicant contends that the Tribunal applied an incorrect test for “injury” and that the Tribunal failed to apply the “eggshell psyche” rule and the issue of “perception”.
Submissions
42 The applicant’s submission referred to Chemler and Semlitch. The applicant submitted that despite Chemler being referred to the Tribunal, the submission relying upon this authority is not considered in the decision. It was submitted that although [8] to [13] of the Tribunal's decision extracts various sections of the SRC Act, there is little subsequent analysis of their operation. It was submitted that what ought to have been central, was the identification of the applicant's propensity to psychiatric injury, that is his “eggshell psyche”. Causation is not a purely objective external question. Rather, it involves an analysis of the applicant, and the applicant’s mind, by the perception of the stressors to which he was exposed in the course of his employment with ASIC. It was submitted that the Tribunal’s reliance on May is incorrect as that case is not concerned with a disease injury but a frank injury. It was submitted that a more appropriate authority would be Semlitch, which emphasised the importance of symptoms in revealing a deterioration of a mental disease. The applicant also referred in this context to Wiegand v Comcare [2002] FCA 1464 (Wiegand). It was submitted the Tribunal’s failure to apply the correct test infected the approach it took to the evidence of Dr Champion.
43 The respondent submitted that Grounds 1 and 2 conflate two separate issues: first, whether the Tribunal erred in law in finding that the increase in symptoms which the applicant experienced for some of the period he was employed by ASIC comprised an “aggravation” of pre-existing ailments, within the meaning of s 5B(1)(b) of the SRC Act (the aggravation issue); and second, whether the Tribunal erred in law in finding that any such aggravation was not, in any event, “contributed to, to a significant degree” by the applicant’s employment: see ss 5B(1)-(3) of the SRC Act (the causation issue). The High Court’s decision in May is relevant to the aggravation issue whereas the “eggshell psyche” rule referred to in Chemler is relevant to the causation issue. Aspects of Semlitch, the respondent submits, are relevant to both issues.
44 As to the aggravation issue, the respondent submitted absent an actual “injury”, as defined in the SRC Act, there can be no entitlement to compensation, whatever contribution employment may have made to an employee feeling unwell or “worse” than he or she did before employment commenced. The conception of an “injury”, without an accompanying physiological or psychiatric change, cannot be equated with the subjective experience of symptoms. It submitted that in respect of disease-based claims the question is not whether an employee is suffering per se, but whether they suffer from either an “ailment” as defined, or the “aggravation” of an ailment. These are matters which necessarily direct attention to the nature and incidents of what has occurred within the body (including the psyche) of an employee, citing May at [49]-[52], [57]-[58].
45 It was submitted that the precise evidence, on a fact by fact basis accepted by the Tribunal was that, although the applicant’s symptoms of depression and paranoia increased over some of the period he was employed at ASIC, this did not reflect or comprise any “accompanying psychiatric change” in the state of his underlying ailments. Rather, when the applicant ceased taking medication in the period from early September 2011 to late April 2013, this caused the symptoms of his underlying conditions to increase in accordance with the nature and incidents of those pre-existing conditions. The only “change” the Tribunal found in the applicant’s “mental health” was a temporary increase in symptoms which the Tribunal considered was referable to the nature and incidents of his underlying conditions consequent upon cessation of medication. The respondent submitted that there has been no misapplication of May.
46 It was submitted that those findings were open on the evidence. They were supported, inter alia, by the evidence of Dr Champion, which the Tribunal preferred to that of Dr McClure. The reasoning in Semlitch did not compel the Tribunal to take a different approach on the facts found by it.
47 As to the causation issue, Comcare accepted that the “eggshell psyche” principle may mean that it is open, in particular cases, to find in favour of the existence of a significant employment contribution notwithstanding that a hypothetical employee of so-called “normal fortitude” might not have suffered any ailment of aggravation in the circumstances under consideration. However, it submitted that it did not follow that the principle ordains the outcome in all cases in which it is invoked. Section 5B(2)(c) of the SRC Act identifies “any predisposition of the employee to the ailment or aggravation” as merely one of a number of non-mandatory, non-decisive, and non-limiting considerations which may be taken into account when determining whether employment has made a significant contribution to the onset or aggravation of a disease.
48 The Tribunal gave significant weight to various factors including; (i) Dr Champion’s opinions as to the nature and incidents of the applicant’s underlying conditions; (ii) Dr Champion’s opinions as to the likely effects on those conditions of the applicant ceasing all medication for some 18 months whilst he was employed by ASIC; (iii) Dr Champion’s opinions as to the nature and extent of any employment contribution to the worsening symptoms reported by the applicant; (iv) views expressed by Dr McClure and other medical practitioners, and the histories recorded by them (including Dr McClure’s views concerning causation and the applicant’s hypersensitivity); and (v) its own assessment of the applicant’s reliability with respect to various matters affecting his health (but expressly excluded from that assessment whether the applicant’s denial of pre-existing depression came within s 7(7)). The applicant does not press any ground of challenge with respect to the relevance of any of these identified considerations. The applicant does not challenge the Tribunal’s crucial finding that “the most relevant fact” is that the applicant ceased taking medication for his underlying conditions for approximately 18 months. That fact fell squarely within ss 5B(2)(d) and (e) and the weight to be attached to this fact was a matter for the Tribunal.
49 It was submitted that the applicant’s reliance upon the “eggshell psyche” principle is misplaced and amounts, in effect, to a thinly-veiled invitation to the Court to engage in merits review. It was submitted that same criticism applies to the applicant’s reliance upon so-called perceptions of real events. The applicant’s perceptions of events in the workplace were referred to repeatedly and were taken into account, as indicated by numerous references to those perceptions throughout the Tribunal’s reasons. The Tribunal found (on the basis of Dr Champion’s evidence) that, even assuming those perceptions contributed to an actual aggravation of the applicant’s underlying ailments, that contribution was not “a significant contribution”. It submitted that the applicant’s reliance upon the cases of Semlitch, Wiegand and Chemler in relation to this issue is misplaced.
50 In reply, the applicant submitted that it did not conflate issues of injury and causation, but rather that it intended to draw the Court’s attention to authority on the relationship between a worker’s psychological state and causation. Further, the applicant denied that his submissions constituted an attempt at merits review. Rather, the applicant contends that there is a relationship between the factual findings made and errors of law, which are within the scope of this appeal.
51 Whilst accepting that subjective experiences of feeling unwell do not qualify as an injury, the applicant also submitted in reply that an increase in psychological symptoms in accordance with May, can be described as an aggravation. The increased symptoms included “depression and paranoia” which, the applicant submitted, are well known symptoms of psychiatric illness and contrary to the Tribunal’s finding, constituted a “psychiatric change”. That the Tribunal considered the most “relevant fact” to be that the applicant ceased taking his medication is a distraction from the principles in Chemler and Semlitch in a psychiatric case of taking the victim as one finds them.
Consideration
52 The respondent’s submission must be accepted.
53 At the outset it is appropriate to recall three factual matters.
54 First, the chronology of events recited above as well as the factual findings made by the Tribunal are unchallenged. This reflects that the applicant suffered from a longstanding and significant pre-existing psychiatric disease which had been the subject of ongoing intensive medical treatment, including prescription of medication, and that was subject to worsening of symptoms in previous employment. However, at the time that the applicant was employed by ASIC in May 2010, for the first 12 months, his own evidence was that he was happy with his job, and thereafter in August 2011 he voluntarily ceased taking his medication. He presented himself to the emergency department of a hospital with a florid intensification of symptoms accompanied by suicidal ideation in April 2012, about halfway through his employment at ASIC.
55 Second, the Tribunal found that the applicant had ceased taking his medication. The applicant’s evidence-in-chief was that notwithstanding that this was an idea floated by his treatment providers before or at the time of his employment with ASIC, he did not receive advice to go off his medication and he never did. That is, there was a factual dispute as to whether the applicant ceased taking his medication, which was resolved against him. It was open to the Tribunal to so find. Although he was given prescriptions from his treatment providers he did not have them filled. At [92]-[93] the Tribunal concluded:
[92] In my view the most relevant issue is the fact that Mr De Tarle’s DHS-Individual Prescribing reveals that the last prescription for paroxetine was supplied 5 August 2011 and that there is no record of any other antidepressant, or any other medication, being supplied until sertraline was supplied on 22 April 2013 in respect of a prescription provided by Dr Unsen, dated 28 February 2013.
[93] As the only access, in Australia, to subsidised antidepressant medication is by prescription via the Pharmaceutical Benefits Scheme, the only conclusion I can make is that at some time after August 2011, Mr De Tarle stopped taking his antidepressant medication and did not start with the new medication until on, or after 22 April 2013. The reason for Mr De Tarle’s cessation of his long term antidepressant is unclear.
56 Third, the Tribunal concluded that although the applicant’s symptoms of depression and paranoia increased over some of the period he was employed at ASIC this did not reflect or comprise any “accompanying psychiatric change” in the state of his underlying ailments but rather, when the applicant ceased taking medication in the period from early September 2011 to late April 2013, this caused the symptoms of his underlying conditions to increase in accordance with the nature and incidents of those pre-existing conditions. That factual finding was open on the evidence with the Tribunal preferring the evidence of Dr Champion to that of Dr McClure, as it was plainly entitled to do. Moreover, the Tribunal concluded that even assuming aggravation of the applicant’s underlying ailment, it was not contributed to, to a significant degree, by his employment.
57 Against that background, I turn to the applicant’s submissions. As the respondent correctly observed, the submissions do conflate the relevant issues. The two issues, correctly identified by the respondent, are separate and distinct: May at [43], [49]-[50]. In May at [49]-[51] the plurality observed (footnotes omitted):
[49] It is against that background that the Act requires the tribunal of fact to give consideration to “the precise evidence, on a fact by fact basis…accepted at trial” and then to ask certain questions in order to determine whether an employee is suffering a “disease” or an “injury (other than a disease)”.
[50] First, does the evidence amount, relevantly, to something that can be described as an “ailment”, being a physical or mental ailment, disorder, defect or morbid condition? Secondly, if so, was that state contributed to in a material degree by the employee’s employment by the Commonwealth?
[51] If the answer to both those questions is “Yes”, there is a “disease” within para (a) of the definition of “injury”. Of course, in some cases, the answer to those questions may be admitted. That is, the employee may admit that the answer to the first question, or both the first and the second questions, is “No”.
58 The first issue is whether the Tribunal erred in law in finding that the increase in symptoms which the applicant experienced for some of the period he was employed by ASIC comprised an “aggravation” of pre-existing ailments.
59 The applicant contends that the Tribunal erred in its reliance on May, but rather reliance ought to be placed on Semlitch and Chemler. The applicant’s submission proceeds on the premise that a conclusion that there is an increase in symptoms necessarily means that there is an aggravation of the ailment, within the SRC Act. That is incorrect. The submission also appeared to suggest that the Tribunal’s conclusion reflects a misunderstanding of the nature of psychiatric illness. As explained below, that submission conflates the issues involved. It is rather circular. In any event, the Tribunal concluded contrary to that submission, that the applicant’s employment was not a significant contribution to any aggravation.
60 Relevantly, 5B is in the following terms:
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
61 Aggravation is defined in s 4 as “includes acceleration or recurrence”.
62 The relevant passages in the Tribunal reasons are at [105]-[112]:
[105] I am satisfied that the evidence before the Tribunal points to a conclusion that during his employment with ASIC, Mr De Tarle did suffer a change in his mental health, in that he suffered an increase in his depressive symptoms.
[106] The issue for the Tribunal is, whether this change in Mr De Tarle’s mental health was an aggravation of his pre-existing psychiatric condition and, if so, whether the aggravation was contributed to, to a significant degree, by his employment.
[107] In Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (May), the High Court noted the Full Court’s conclusion that “the inquiry demanded by the statutory definition of "injury" was "whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind". The High Court further noted in May, however, that this conclusion should be rejected to the extent that such a conclusion suggests that symptoms subjectively experienced by an individual, without “accompanying physiological or psychiatric change” will not engage section 14 of the SRC Act.
[108] In Re Whitlock and Comcare [2020] AATA 1353, the Tribunal took into consideration the High Court’s judgments in May and Canute v Comcare (2006) 226 CLR 535, and applied them to the “aggravation” provisions within sections 5A and 5B of the SRC Act. The Tribunal concluded as follows at [196]-[197]:
The evidence must demonstrate that, in addition to symptoms or pain experienced by the employee, there is a discernible or diagnosable physiological or psychiatric change to the employee’s body or psyche.
Accordingly, in the circumstances of this case, in the circumstances of this case, the Tribunal must be satisfied that there is evidence that there was a physiological or psychiatric change to the Applicant’s pre-existing condition in order for there to have been an ‘aggravation’ of an ailment for the purposes of the SRC Act.
[109] The available evidence, in my view, supports a conclusion that Mr De Tarle’s co-morbid personality disorder had a significant impact on his performance issues at work and the difficult relationships he had with his senior managers. I accept that this may have contributed to some degree to an increase in his depressive symptoms during 2012 and 2013.
[110] However, I am not persuaded that the evidence before the Tribunal supports a conclusion that there was a psychiatric change in his pre-existing conditions.
[111] In my view, the evidence points to a conclusion that, in 2012 and early 2013, the combination of Mr De Tarle’s pre-existing personality disorder and the fact that he had ceased his antidepressant medication caused a temporary increase in his depressive symptoms and that there was no change in the pre-existing condition.
[112] Therefore, I am satisfied that Mr De Tarle did not suffer an aggravation of his pre-existing psychiatric conditions that was contributed, to a significant degree by his employment at ASIC.
63 Before addressing the submissions, it is appropriate to observe that after this matter was reserved for judgment, it became apparent that at approximately the same time this matter was argued, an appeal was conducted in the Full Court in which the appeal grounds appear, inter alia, to relate to the interpretation of May: an appeal in Wuth and Comcare [2020] AATA 3625 (Wuth). Neither party brought this appeal to the Court’s attention.
64 In that event, on 24 January 2022, chambers communicated with the parties as follows:
Dear Parties
I refer to the above matter.
I note that this matter was heard before her Honour on 27 September 2021 and that judgment is reserved.
Her Honour wishes to raise with the parties whether ACD49/2020 - Wuth v Comcare (Wuth) raises any of the legal issues which arise in connection with the judgment presently reserved. If so, her Honour would like to enquire whether the parties consider that judgment delivery in this matter should be delayed until after the Full Court has delivered its judgment in Wuth. Can the parties please indicate their views to chambers on whether or not that may be an appropriate course.
I note for reference that Wuth was heard by the Full Court on 28 September 2021 and judgment in that matter is reserved.
If the parties consider that it is appropriate to delay delivery of judgment in this matter, her Honour would be minded to allow the parties an opportunity to put on further short written submissions in light of the Full Court’s decision in Wuth (should that decision be relevant to the issues in this matter). The parties are to contact chambers in due course if they wish to provide any further submissions on that issue.
Please contact chambers if there are any questions or concerns.
65 On 10 February 2022, the parties responded that:
Dear Associate.
I am sending this email following agreement with the applicant’s lawyer, Mr Whiffin, as to its contents.
Comcare accepts that in Wuth the Full Court is likely to consider the effect and implications of the decision of the High Court in May. Comcare notes that that same question arises, to an extent, in the present proceedings – although the factual context is very different noting, in particular, that in Wuth there was no factual finding to the effect that any worsening in symptoms was a consequence of the applicant ceasing medication for a pre-existing condition, thereby resulting in that condition expressing itself according to its nature and incidents. Although Comcare considers that the outcome of the appeal in Wuth is unlikely to affect the outcome in these proceedings, Comcare does not object to awaiting the outcome of that appeal.
The Applicant also does not object to awaiting the outcome of the appeal in Wuth.
In the event that Her Honour decides to delay judgment in this matter until after the Full Court has delivered its judgment in Wuth, the parties propose that directions are made to the effect that the applicant is to put on any further submissions he wishes to make within 28 days after the Wuth decision is handed down and the respondent to put on any further submissions it wishes to make in reply, 28 days thereafter.
66 Neither party suggested that the resolution of this matter ought to await the outcome in Wuth. Notably, although not opposing that approach, the applicant does not suggest that approach should be adopted.
67 In those circumstances, it is not necessary to await the outcome in Wuth. That is particularly so given the Tribunal’s conclusion as to the second issue referred to in May at [50], that of causation. As the respondent observed, this case is factually distinguishable from Wuth and, as referred to in [56] above, the Tribunal made a factual finding that any increase in symptoms were a consequence of the applicant ceasing to take his medication which caused the symptoms of his underlying conditions to increase in accordance with the nature and incidents of those pre-existing conditions. The Tribunal addressed this issue on the assumption there was an aggravation of his injury, and concluded that the applicant’s employment was not a significant contribution to any aggravation. Given that, it is difficult to see how Wuth could affect the outcome. The parties did not suggest otherwise. As I explain below, no error has been demonstrated in that conclusion.
68 In any event, that said, in so far as the applicant’s submission is directed to the Tribunal’s reliance on May being inapt because that reasoning concerned frank injury, not disease injury, it cannot be accepted: see May at [49]-[51] recited above at [57]. I note that May has been applied by the Full Court in the context of the disease limb of the definition: see for example, Prain v Comcare [2017] FCAFC 143; (2017) 256 FCR 65 (Prain) at [74]-[76].
69 Although the Tribunal in May found that the claimant had not suffered a “disease”, which was not challenged in the High Court: see May at [65], a proper reading of May at [49]-[51], recited above at [57], reflects that the questions there posed and the reasoning thereafter were directed to the existence of both diseases and frank injuries. So much is also apparent from [57] where the plurality observed:
The Full Court concluded that the inquiry demanded by the statutory definition of “injury” was “whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind” (emphasis added). To the extent that conclusion suggested that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient to provide a positive answer to the first or third questions set out above, that conclusion should be rejected.
70 The Tribunal did not misapply May, but rather applied the correct approach to the facts which it accepted in this case. May required the Tribunal to have regard to “the nature and incidents” of any alleged “psychological change” suffered by the applicant: May at [62], [67], and see Prain at [75]-[76]. It made clear that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are insufficient. Apart from submitting that May is inapt in this case, the applicant did not address or grapple with the principles as to the meaning of the relevant provision espoused therein.
71 It is apparent from May that care needs to be taken not to conflate the concept of symptoms of a disease with the existence or aggravation of an underlying disease. The existence of symptoms without more is not sufficient to establish the existence of disease in the context of the SRC Act. Contrary to the applicant’s contention, that the tribunal of fact is satisfied of the existence of symptoms in the case of onset of disease, or the existence of increased symptoms in respect of alleged aggravation, does not necessarily demonstrate the existence of disease or its aggravation for the purposes of the SRC Act.
72 I note that although Semlitch did address both relevant issues, Chemler considered only the issue of causation and not whether there was an injury. I will return to Chemler below.
73 In Semlitch, which predates May, the principal question was whether, on the basis of the facts proved, it was open to the Workers’ Compensation Commission (Commission) to find that there was “an aggravation, acceleration, exacerbation or deterioration of any disease” within the meaning of s 6(1) of the Workers’ Compensation Act 1926-60 (NSW). There was no expert evidence as to whether or not the condition in question was an aggravation. The tribunal of fact drew an inference from the evidence, but there was no direct evidence on that question or competing evidence. It was on that basis that the issue was whether the state of the evidence meant that it was open to the tribunal of fact to find in favour of aggravation. No member of the High Court found that a tribunal of fact is, as a matter of law, bound to regard every intensification of a disease-based symptom as comprising or satisfying the statutory definition of an aggravation of the disease.
74 Turning then to the second issue, whether the Tribunal erred in law in finding that any such aggravation was not, in any event, “contributed to, to a significant degree” by the applicant’s employment.
75 It is to this issue which the applicant’s submission as to the “eggshell psyche” rule properly relates. It can be accepted that an employee can have an “eggshell psyche”, in the sense that they may be more vulnerable or hypersensitive than the average person to either the onset or the aggravation of an ailment. That this relates to the issue of causation is apparent from s 5B, which is recited above. Section 5B(2) addresses matters which may be taken into account in determining the issue of causation, with subsection (c) concerning what has been described as the “eggshell psyche” rule. This reflects the potential relevance of that concept to the assessment of whether the aggravation of an employee’s ailment was contributed to, to a significant degree, by the employee’s employment.
76 Section 5B(2)(c) identifies “any predisposition of the employee to the ailment or aggravation” as merely one of a number of non-mandatory, non-decisive, and non-limiting considerations which may be taken into account when determining whether employment has made a significant contribution to the onset or aggravation of a disease. It represents an acknowledgment by the legislature that an employee, even one with a pre-existing injury, might be more susceptible to suffering an aggravation due to a particular predisposition or vulnerability. However, that does not in and of itself establish the existence of a significant contribution, as it may be that, in the vast array of facts which might come before the Tribunal, the existence of an eggshell skull or psyche might not oblige a finding in favour of significant contribution.
77 That an employee may have a predisposition to an ailment or aggravation, in the sense that they have an “eggshell psyche”, does not, when considered in its proper statutory context, ordain the outcome in all cases in which that principle is invoked.
78 The applicant does not address the “eggshell psyche” rule in the context of the statutory scheme, but rather contended:
What is omitted, but what ought to have been central, was the identification of the applicant's propensity to psychiatric injury (ie his "eggshell psyche"). Causation is not a purely objective external question - rather, it involves an analysis of the person affected, and that person's mind, by the perception of the stressors to which the applicant was exposed in the course of his employment with ASIC.
79 The submission elevates the application of this concept to a position it does not have in the statutory scheme.
80 This is also reflected in the applicant’s submission, where he contended that:
The respondent suggests at [14] that "the most relevant fact" concerning the applicant's condition was his failure for a period to take his medication. This a distraction from the legal principles set out in Chemler and Semlitch in a psychiatric case of taking the victim as one finds them and has the underlying condition worsened.
81 This submission accords with what the applicant said during the Tribunal hearing when asked as to the relevance of the fact he went off his medication, replying:
The relevance of that is you take the victim as you find them. And this is the person we have here. That may ultimately have an effect upon foreseeability or contributory negligence, but here we have a person you take – if one uses the eggshell psyche rule. And of course, the reason he went off the medication, I think it comes out of what’s stated in the – the learned member below identified in the decision, where he quoted from Dr Champion, and Dr Champion was the – was the doctor who was briefed on behalf of Comcare. And it appeared that he went off the medication because the GP told him to go – his general practitioner suggested it.
82 Three points can be made about that. First, to suggest that the applicant going off his medication is irrelevant in this case because of the “eggshell psyche” rule, is inconsistent with the statutory scheme. What, if any, effect it has was a matter of fact for the Tribunal. Second, as explained above at [55], there is no evidence and no finding that the applicant went off the medication because he was told to by his GP. Indeed, his evidence was he did not stop taking it. Third, on the applicant’s submission his conduct in ceasing to take his medication can only be used in a positive manner in support of his case, as it made him more vulnerable. That submission cannot be accepted in the context of the statutory scheme. As explained above, any predisposition of the employee to an ailment or aggravation is only one of a number of considerations referred to in s 5B(2). For example, amongst the considerations in s 5B(2) that may be taken into account in determining whether an aggravation was contributed to, to a significant degree, by the employee’s employment, are any activities of the employee not related to the employment: s 5B(2)(d) and “other matters affecting the employee’s health”: s 5B(2)(e). The applicant’s failure to take his medication would fall within those descriptions.
83 As one final example of the applicant’s submission, I note that he contends that at [19] of the Tribunal’s reasons, it has “(wrongly) defined the issues excluding the eggshell psyche considerations. As a result, the Tribunal misdirected itself to the real issues in the case”. At [19], recited above at [10], the Tribunal identified the issues that arose in an entirely uncontroversial manner.
84 No error is reflected in that approach.
85 The Tribunal applied the relevant statutory provisions to the evidence in this case, and nothing in Chemler or Semlitch reflects any error on its part. Nor, in the statutory scheme, does anything in Chemler or Semlitch ordain a different conclusion.
86 Rather, a consideration of the Tribunal’s reasons reflect that, as the respondent correctly submitted, in reaching its conclusion the Tribunal gave significant weight to various factors which are referred to above at [48], and which are not challenged by the applicant. Although as noted above, the applicant submitted that his going off his medication was not relevant, there is no ground challenging the Tribunal’s finding that “the most relevant fact” is that he ceased taking medication for his underlying conditions for approximately 18 months. As the respondent correctly submitted, that fact falls within s 5B(2)(d) and (e) of the SRC Act.
87 Considered in that light, the applicant’s submission based on the “eggshell psyche” rule does not assist him, as in reality, it is a challenge to the weight attached by the Tribunal to various matters, which are a matter for the Tribunal: see for example: Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [197] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [33].
88 The same applies to the applicant’s reliance upon perceptions of real events. As the respondent correctly submitted, the applicant’s perceptions of events in the workplace were referred to repeatedly and were taken into account. The Tribunal concluded that, even assuming those perceptions contributed to an actual aggravation of the applicant’s underlying ailments, that contribution was not “a significant contribution”. Those conclusions are based on an acceptance by the Tribunal of the evidence of Dr Champion over that of Dr McClure, which as previously mentioned, was plainly open on the evidence. That the applicant may have an unwavering belief that his employment made a significant contribution, does not make it so: Kirkpatrick v Commonwealth (1985) 9 FCR 36 (Kirkpatrick) at 39-41.
89 It is appropriate to note also in this context, that at the time Semlitch was decided, the relevant statutory scheme was such that any discernible level of employment contribution, no matter how small, was sufficient to attract compensation. This is to be contrasted with the current scheme whereby s 5B expressly requires that employment make a contribution of “significant degree” to the onset or aggravation of a disease. “Significant degree’ is defined in s 5B(3) to mean “a degree that is substantially more than material”. Although at the time Wiegand was decided, the concept of a “material contribution” had been introduced, the Court noted at [23], this was “held not to be a ground for differently construing the requirements for the definition of ‘disease’ in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323”. These distinctions necessarily affect the extent of the reliance that can be placed on Semlitch and Wiegand.
90 On the other hand, Chemler at [48], [54] and [69], which only addressed the issue of causation, makes clear that an employee’s perceptions of real events in the workplace will not necessarily satisfy the work-connection threshold. In so far as the applicant contended otherwise, those passages in Chemler do not support that statement and the submission cannot be accepted. Moreover, the issue in Chemler was whether, under the New South Wales legislation, it was there open to the Commission to conclude that the psychological injury arose by reason of an accurate perception of actual events in the workplace. The conclusion in Chemler, based on the evidence in that case, does not dictate the outcome in the Tribunal in this matter. Each case is necessarily fact-specific. In so far as the applicant contends Chemler does stand for that proposition, he is incorrect.
91 No error has been established in relation to these grounds.
Ground 3
92 As noted above, in summary, Ground 3 relates to an alleged denial of procedural fairness by the Tribunal in taking into account material not raised by counsel at the hearing.
Submissions
93 The applicant’s submission is directed at [104], where the Tribunal said:
Dr McClure's opinions appear to have been influenced by unreliable information and an unsound process of reasoning which is often referred to as the post hoc ergo propter hoc (after this, therefore because of this) or post hoc logical fallacy. In that respect, it is a fallacy to conclude that one event followed by a second necessarily demonstrates a causal relationship between the events.[58] Therefore, I have placed less weight on his evidence in respect of the contribution that Mr De Tarle's change in his mental health arose because of his employment with ASIC.
94 Footnote [58] referred to therein is a reference to the “AMA Guides to the Evaluation of Disease and Injury Causation, 2nd Ed, 2014 (AMA Guides) at 18”. It was submitted that this was not a document that was referred to in the hearing. However, it has nonetheless been “treated as learned authority on medical causation” and has been relied upon by the Tribunal in rejecting the most important evidence in the case tendered below, namely the expert opinion of Dr McClure.
95 It was submitted that the applicant, through his counsel, was deprived of an opportunity to submit that, in context, this was not a “post hoc logical fallacy” in that it was open to a psychiatrist, with considerable clinical experience, to form a view regarding the relationship between matters of chronology and matters of causation. It was not open to the Tribunal to impose its own view, based on an extraneous medical resource not tendered in evidence or cited in argument, in circumstances where the applicant had no opportunity to comment on it before the decision was made. It was submitted that there is a practical injustice in this, in that the chronology of the applicant’s psychiatric state, and the causes of it, was the only significant factual issue in the case, citing Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37].
96 The respondent submitted that the post hoc fallacy is a general proposition of logic familiar to any “first-year law student”. It is clear that Dr McClure attached considerable significance to the fact that the applicant’s worsening symptoms followed his interaction with supervisors. It is equally clear that Dr Champion did not agree with that approach: see the brief statement prepared for the Tribunal by Dr McClure and Dr Champion at [61] of the Tribunal’s reasons. It was submitted that it is also clear that whereas Dr Champion obtained a history of the applicant ceasing his medication, Dr McClure did not. The divergence in their approaches was obvious. It was submitted that whether, and to what extent, the Tribunal’s fact-finding on the “common-sense” question of causation should be influenced by the sequencing of events (and, if so, which events) were matters which loomed large on the expert evidence before the Tribunal: see May at [62]. It is not incumbent on a tribunal of fact to point out the obvious: Jagelman v Federal Commissioner of Taxation (1995) 31 ATR 467 (Jagelman) at 473; 3D Scaffolding Pty Ltd v Federal Commissioner of Taxation [2009] FCAFC 75; (2009) 75 ATR 604 (3D Scaffolding) at [30]. The applicant was not “deprived of an opportunity to submit that Dr McClure’s opinion did not amount to a post hoc fallacy”. The applicant’s counsel had every opportunity to defend Dr McClure’s evidence and to advance arguments as to why it should be preferred.
97 The respondent also submitted that there is nothing to suggest that the Tribunal treated the AMA Guides as “learned authority on medical causation”. The word “necessarily” at [104] cannot be ignored. In any event, a tribunal does not deny procedural fairness simply by consulting medical texts in order to better understand and explain medical evidence: McMullen v Commissioner for Superannuation (1985) 61 ALR 189 at 208-209; Kirkpatrick at 41-42; Winch v Repatriation Commission [1999] FCA 408. The Tribunal could equally have invoked common sense or orthodox legal reasoning, or simply expressed a preference for the evidence of Dr Champion, without a denial of procedural fairness, citing Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538 (Forst) at 570.
98 In reply, the applicant submitted, inter alia, that regardless of whether the Tribunal had to point out the obvious, it could hardly be obvious to the applicant, nor those representing him, that a particular text would be relied upon in relation to a crucial issue. It submitted that 3D Scaffolding and Jagelman are distinguishable. In 3D Scaffolding, the Full Court noted that where it was obvious that a witness’ evidence was under challenge, it was not incumbent on the tribunal to expressly point out that this was so. In the instant case, it was not obvious that the post hoc fallacy would be applied as a matter of propositional logic, nor that the text relied upon to make good the proposition would be incorporated into the judgment. Furthermore, both 3D Scaffolding and Jagelman were concerned with the rule in Browne v Dunn (1893) 6 R. 67 (H.L) (Browne v Dunn), and are not relevant to issues in Ground 3.
Consideration
99 That there was a difference of opinion between Dr Champion and Dr McClure was obvious to the parties, and was a matter which was required to be addressed by the parties before the Tribunal. The Tribunal’s analysis of the evidence is detailed and considered.
100 The difference in the opinions expressed is evident from the Tribunal’s reasons at [61]. It is also evident that Dr McClure attached considerable significance to the fact that the applicant’s worsening symptoms followed his interaction with supervisors. Dr Champion disagreed with that approach. It is plain that Dr McClure was unaware that the applicant had ceased taking his medication, and he understood that the applicant had been continuing to take his medication.. Dr McClure obtained an inaccurate history from the applicant in respect to this issue and a number of other relevant matters: see Tribunal’s reasons at [70]-[73]. The iterations of Dr McClure’s opinions, and the basis therefore, are referred to at [99]-[101]. There was extensive cross-examination of Dr McClure as to these various iterations. There was an alteration of his position between his first report, in which he had referred to the possibility that workplace events had exacerbated Mr De Tarle’s condition, and his second report in which he had concluded that such an exacerbation was partially attributed to Mr De Tarle’s time at ASIC, but that it is not as “cut and dried” as the applicant asserts. Between the making of Dr McClure’s first and second reports, he had not been provided with any further documentation, except for the reports of Dr Champion dated 22 and 24 February 2017, both of which came to the opposite conclusion, and some further history he obtained from Mr De Tarle on the occasion of his second examination of him, which Dr McClure acknowledged may not have been reliable. The challenge to his reasoning process was readily apparent.
101 It is also evident that there is more than one basis for the Tribunal giving Dr McClure’s evidence less weight. In any event, that the Tribunal considered there were issues with Dr McClure’s reasoning from the fact the applicant’s symptoms worsened that this must have been related to workplace events, is common sense. In Forst at 570, Dixon J observed:
Tempting as it always is, particularly in matters of bodily health, to argue from a sequence of external events, such reasoning is justified only when positive knowledge or common experience supplies some adequate ground for believing that the events are naturally associated. The evidence upon which the special magistrate acted is to the effect that there is no such ground.
102 That the Tribunal referred to the AMA Guides which had not been referred to in argument, did not, in the circumstances, give rise to procedural unfairness.
103 Indeed, the applicant’s submission in the Tribunal, and redolent of that in this Court, is that because the applicant’s symptoms worsened during the time of his employment at ASIC, necessarily there must have been an aggravation due to work stressors.
104 The applicant had ample opportunity and did make submissions as to why the evidence of Dr McClure ought to be accepted in preference to that of Dr Champion. The applicant’s counsel had every opportunity to defend Dr McClure’s evidence. The applicant was well aware that approach was being challenged. In that context, as the respondent correctly submitted, it is not incumbent on a tribunal of fact to point out the obvious. I note that the applicant submitted that 3D Scaffolding, which is relied on by the respondent, appears to be more concerned with the application of Browne v Dunn. Although that is so, Browne v Dunne is essentially a rule which is designed to secure procedural fairness in an adversarial proceeding. There is no allegation here directed to a witness, but rather, the claim relates to the Tribunal giving the applicant an opportunity to the make a submission on the topic. Nonetheless, whether there is a denial of procedural fairness by the trier of fact, in this context, must depend on the facts and whether the party was relevantly on notice of the issue. Given the nature of the topic, the applicant was not “deprived of an opportunity to submit that Dr McClure’s opinion did not amount to a post hoc fallacy”.
105 It was open on the evidence to prefer Dr Champion’s evidence over that of Dr McClure. I note that Dr Champion’s evidence was detailed, considered, and supported by other medical evidence, including by a contemporaneous treatment provider: see for example, Tribunal’s reasons at [27].
106 Finally, and in any event, given the evidence and Tribunal’s reasons, it could not be said that there is a realistic possibility of the Tribunal reaching a different conclusion if the AMA Guides had been raised. For the Court to exercise its discretion to grant relief, a denial of procedural fairness must work a practical injustice on the applicant: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590 at [59]-[60]. The applicant has not identified any practical injustice that would have been occasioned had he lost such an opportunity to present his case.
107 This ground is not established.
Ground 4
108 This ground involves an assertion that the Tribunal did not consider the arguments advanced before it about the “eggshell psyche” rule. I note that in the applicant’s closing submission before the Tribunal he does not use the phrase “eggshell psyche”, although, Chemler is referred to in the submission. Both the applicant and respondent relied on the submissions they gave in respect to Grounds 1 and 2. No additional submissions to those relating to Grounds 1 and 2 were advanced by either party in respect to this ground. Nevertheless, it is appropriate to make some further observations.
109 Although Chemler was not referred to in the Tribunal’s reasons, it does not follow that the argument raised was not considered. It is important to recall that the applicant’s submission proceeded on the premise that an increase in symptoms necessarily means that there is an aggravation of the ailment contributed to by his employment, even if it is a result of his perception of the events due to his psychiatric condition. It is the necessity to take into account his perceptions which was stressed. This was akin to the reasoning in Dr McClure’s reports.
110 A proper reading of the Tribunal’s reasons reflects that there is no basis to contend that these arguments were not considered. The submissions as to Chemler and the significance of the applicant’s perceptions are addressed above and do not need to be repeated. Suffice to say as explained above, the Tribunal did refer to the applicant’s perception of events, (and the underlying evidence), as relied on by him, which is said to come from Chemler: see for example, [20], [51], [52], [54], [68], [78]-[79] and [82]-[83] of the Tribunal’s reasons. For example, at [68] the Tribunal recognised that “both doctors agreed that because of Mr De Tarle’s “hypersensitive and paranoid personality factors” he was likely to “overreact to things compared to the average person”, “to misinterpret things” and “to develop perceptions of persecution” and misinterpret certain actions as bullying”.
111 In that context, on the basis of Dr Champion’s evidence, the Tribunal found that, even assuming those perceptions contributed to an actual aggravation of the applicant’s underlying ailments, that contribution was not “a significant contribution”: see for example at [61], [92] and [98] (relating to Dr Champion’s evidence in respect to the failure of the applicant to take his medication). The Tribunal provided detail as to its preference for Dr Champion’s evidence, to that of Dr McClure, which underpinned this aspect of the applicant’s case.
112 Again, in that context, the Tribunal proceeded on the basis, even assuming an actual aggravation of the applicant’s underlying ailments, it was not contributed to, to a significant degree, by his employment.
113 As explained above in relation to Grounds 1 and 2, there is no error in the approach taken by the Tribunal.
114 This ground is not established.
Ground 5
115 This ground alleges that the Tribunal took into account irrelevant issues, in particular, whether the applicant had disclosed prior mental health issues.
Submissions
116 The applicant submitted that the SRC Act is a no-fault scheme, with some exceptions such as s 7(7) which deals with misrepresentation. It was submitted that although the Tribunal did not expressly decline to award compensation on the basis of s 7, its fixation on this apparent nondisclosure features in the reasons and conclusions, including in the Tribunal’s “consideration”. At [98], the Tribunal took into account the fact that Mr De Tarle ticked “no” on a form dealing with pre-existing injuries or medical conditions. It was submitted that assuming that the applicant filled out the form in a misleading way, nothing could turn on this in a correct application of the SRC Act in circumstances where s 7 was expressly not applied. It was submitted that the misleading form completion was taken into account. It was not mentioned in passing. Section 7 itself may have been mentioned, somewhat gratuitously, in passing, but the fact of misleadingly filling out the form was expressly cited in the Tribunal’s “consideration” and so it cannot, in the mind of the Tribunal, have been a matter of no moment. As such, the Tribunal fell into error as the irrelevant consideration substantially affected the outcome arrived at, citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at [39] per Mason J.
117 The respondent submitted that at [80] the Tribunal said that “arguably” the failure to declare he suffered depression and was on antidepressant medication could be seen as a wilful and false representation within s 7(7), but immediately said as it was not addressed by the parties it would not be considered any further. It was not taken into account. It was submitted that in any event, the fact that s 7(7) was not in issue did not render the applicant’s failure to disclose his pre-existing psychiatric condition irrelevant to the fact-finding task of the Tribunal. The wilful falsity, or otherwise, of a statement is one thing; the reliability of a statement is another. Confronted by the applicant’s reliance upon the answer he gave in the ASIC commencement form, referred to at [79] of the Tribunal’s reasons, the Tribunal was not obliged to ignore either the answer he gave on the form or his reliance upon it in his written statement to the Tribunal. As it happens, the Tribunal simply found that the applicant was not a reliable historian, a finding for which there was abundant evidence as reflected in the reasons.
Consideration
118 As the respondent correctly submitted, the Tribunal said that it would not take into account the factors complained of by the applicant. At [80], it observed:
Arguably, his failure to declare that he suffered from depression and was on, and had been for some time, on antidepressant medication, could be seen as “wilful and false representation” as per section 7(7) of the SRC Act. However, as this has not been addressed by either party, for present purposes, I will not consider this any further.
119 As is readily apparent, the Tribunal expressly stated it would not take the matter into account, and there is no basis in the reasons to suggest otherwise. That this observation was in the section headed “consideration” does not alter that. It is apparent from [79] that the applicant is relying on the fact that he declared that he had no pre-existing injuries to support the argument that he was feeling well when he joined ASIC. Read in context, the Tribunal’s observations at [80] could be seen to flow from [79]. The Tribunal is addressing a relevant issue raised by the applicant.
120 This ground is not established.
Grounds 6 and 7
121 Grounds 6 and 7 relate to challenges to the adequacy of the Tribunal’s reasons, including a challenge that the Tribunal’s reasons are inconsistent.
Submissions
122 The applicant’s submission focusses on [109]-[111] of the Tribunal’s reasons. It is submitted that [109], considered in isolation, is a positive finding that there was a compensable injury. Paragraph [110] is said to be a non sequitur in light of the preceding paragraph, and [111] is said to contain an internal inconsistency. The applicant refers to s 43(2B) of the AAT Act as the source of the obligation to give reasons, and Karabolovska v Comcare [2019] FCA 2153 (Karabolovska), as to the quality of reasons required in this context. In essence, the applicant submits that the Tribunal failed to disclose the “actual path of reasoning by which it arrived at its conclusions”: Karabolovksa at [95].
123 The respondent submitted that the requirement to give reasons under s 43 of the AAT Act does not impose a standard of perfection, citing Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (NSW) [1980] FCA 117; (1980) 47 FLR 131, and that the reasons of the Tribunal should not be construed minutely and finely with an eye keenly attuned to the perception of error, citing Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 270-271. The Tribunal’s reasons must be read as a whole and at its heart, the obligation to provide reasons is directed to enabling the parties and a court to understand how the tribunal reached its decision: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 346 per McHugh, Gummow and Hayne JJ.
124 The respondent submitted that this ground is based, fatally, upon a misreading of the Tribunal’s reasons and the flawed proposition that the Tribunal’s acceptance of increasing/intensifying symptoms demanded a finding in favour of “aggravation”. The Tribunal accepted that, during the period of the applicant’s employment at ASIC, a change of a kind occurred in the applicant’s mental health. However, at [105], the Tribunal made clear that this change consisted of an increase in symptoms (as was the case in May). The Tribunal went on to consider whether this increase in symptoms reflected/comprised an actual physiological or psychiatric change to the applicant’s pre-existing conditions in line with the reasoning in May: at [106]-[108]. The Tribunal held it did not at [110], and at [111], the Tribunal explained the basis for this finding in terms which, when read in context (including [65] and [92]), resolved one of the principal issues joined between Dr Champion and Dr McClure in favour of Dr Champion’s viewpoint (an issue canvassed earlier, at some length, in the Tribunal’s reasons).
125 The respondent submitted that the issue before the Tribunal was whether the applicant had suffered an “aggravation” of his underlying ailments. A fair reading of the Tribunal’s reasons reveals how the Tribunal resolved that issue. Although the Tribunal accepted that the applicant’s symptoms increased while he was employed at ASIC, that increase reflected his underlying conditions acting according to their nature and incidents as a result of the applicant’s cessation of medication. For the reasons previously submitted, that outcome was open, factually and legally. It was also submitted that the applicant is incorrect, in submitting that [109] in isolation, is “a positive finding that there was a compensable injury”. Even accepting the existence of an aggravation and some degree of employment contribution, a finding of compensable injury required the applicant to persuade the Tribunal that his employment had made a significant contribution: s 5B(1)(b) SRC Act. The Tribunal was not so persuaded: at [98].
Consideration
126 Underpinning this ground are two assertions; first, there is an inconsistency in the Tribunal’s reasoning; and second, that the Tribunal’s acceptance of increasing symptoms inevitably demands the conclusion that there is an “aggravation” of the ailment. Neither of those propositions is correct.
127 As explained above at [71], the second proposition, that increasing or worsening of symptoms does not necessarily compel a conclusion of aggravation, is the law in respect to this statutory scheme, as explained in May. Once that is accepted, as it must be, and the Tribunal’s decision is read as a whole, the applicant’s contention of inconsistency falls away.
128 Contrary to the applicant’s submission, the assertion that the conclusion in [109] is a finding of a compensatory injury, is incorrect. Even accepting the existence of an aggravation, and some degree of employment contribution, a finding of compensable injury required the applicant to persuade the Tribunal that his employment had made a significant contribution: s 5B(1)(b) SRC Act. As previously explained, the Tribunal also concluded, assuming there was an aggravation, it was not contributed to, to a significant degree, by his employment.
129 Properly read, the Tribunal’s reasons do not reflect any inconsistency in the conclusion. Given the inconsistency is the premise of the submission that the Tribunal’s reasons were inadequate, this ground is not established.
Conclusion
130 For the reasons above, the application is dismissed.
I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham. |
Associate:
