Case: Hart v Comcare [2005] FCAFC 16
Outcome: applied
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. 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. 13 Accordingly in light of Hart , it confirmed Mr Wiegand's disentitlement to compensation. 14 In Hart , a claimant for compensation under the SRC Act complained 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. 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.