Australian Telecommunications Commission v Vicki Tzikas [1985] FCA 385

• whether aggravation contributed ta by Commonwealth employment - whether aggravation contributing to current

Compensation (Commonwealth Government Employees) Act 1971 ss.5(1), 5(11), 27¢1), 29¢1), 29(2), 31(4).

AUSTRALIAN TELECOMMUNICATIONS COMMISSION v. VICKI TZIKAS

ALISTRALTAN TRLRCOMMUNICATIONS COMMISSION Applicant

That the decision of the Tribunal dated 27 July 1984 be set aside.

That the matter be remitted to the Tribunal for its determination ain the light of the opinion of the court.

That costs of the original hearing before the Tribunal be determined by the Tribunal

That liberty be reserved to the applicant to make such application in relation to costs as it may be advised.

Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

(Respondent) Coram: Smithers, Sweeney and Woodward JJ. Date : 12 Auguste 1985 Reasons for Judament Smithers J.: This is an appeal from a decision ("the

decision") of a Deputy President of the Administrative Appeals Tribunal ("the Tribunal") to set aside a determination of the delegate of the Commissioner for Employees' Compensation ("the

determination") and remit the matter to the Commissioner for

reconsideration, with the applicant Australian Telecommunications Commission ("Telecom") to pay the respondent's costs. The determination, dated 20 June 1983,

was in terms that Telecom was not liable to pay compensation

in accordance with the provisions of the Compensation

(Commonwealth Government Dmployees) Act 1971 ("the Act") in respect of any incapacity for wock suffered by the respondent on and fram the date of determination, or in respect of any medical treatment undergone by the respondent on and from that date. The matter was remitted to the Commissioner by the Deputy President for reconsideration in accordance with an express direction that the respondent had at all times since 20 dune 1983 (which mistakenly appears as 20 June 1981 in the typed decision) remained totally incapacitated for work and that the said total incapacity for work had continued to be the result of the personal injury specified in a determination of a delegate of the Commissioner dated 9 June 1981 ("the earlier determination"). The personal injury so specified was

decision. She was born in Greece and was married there at the age of 16. She arrived in Australia on 27 November 1966 together with her husband and two children. The respondent was not in employment in Greece but after coming to Australia she was employed in a number of situations. In 1971 she was employed by the Commonwealth in the Postmaster~-General's Department. After Telecom was established in 1975 she continued with the same work but was henceforth employed by Telecom, Her work included several types of light factory work. At 11.50 a.m. on 26 March 1976 she stopped working on the machine in order to make tea. She had started

preparations for doing so when she felt her heart pounding, a

buzzing noise in her brain and her cars, and her legs felt weak so cthat she collapsed to the floor. She was taken to hospital. She has not worked for more Than a few days since. She described the nature of her injury or disease giving rise to her incapacity as "nervous condition - caused by noise at workshops" and declared that the "noise became oppressive", resulting in her condition. She stated that the symptoms first became apparent in December 1975. By the time the case had come before the Tribunal, however, 1 was accepted by both parties that the respondent had suffered from mental illness since at least 1972. After consideration of various medical reports, the Commissioner's delegate accepted the opinion of Dr. A. Sinclair, the medical referee appointed to the case, that the employee suffered from a long standing chronic psychoneurosis to which her employment was not a contributing factor. On this basis the employee's claim for compensation

was rejected by a determination dated 3 November 1978.

The respondent appealed to the former Commonwealth Employees' Compensation Tribunal ("the Compensation Tribunal"), whose decision of 18 July 1980 was to affirm the determination of 3 November 1978. Two psychiatrists, Dr. N. Parker and Dr. P. Cohen, were called by the respondent and Dr. Sinclair was called by Telecom at the hearing of the Compensation Tribunal. The respondent had been re-examined by

The respondent appealed on a question of law to a single

judge of this court. The appeal came on for hearing before me

on 13 March 1961. Afler hearing further evidence [trum Lhe medical experts who had given evidence before the Compensation Tribunal I found the Compensation Tribunal had made an error in law in adopting Dec. Sinclair's conclusion in the light of facts of which Dr Sinclair was unaware but of which the Compensation Tribunal had been informed, namely that noise was a stressful chacacteristic of the respondent's work, as was also strict discipline in the workshop, to which there had been a subjective reaction on the part of the respondent. I

"Having regard to my views about the proper inferences to be drawn from the evidence as it stood at the end of the hearing before the Compensation Tribunal on a balance of probabilities and of the thrust of the evidence given to this Court, I am satisfied that the applicant suffered aggravation and acceleration of the disease of psychoneurosis to which the employment of the employee by (Telecom) was a contributing factor and that as rrom 26 March 1976 the (respondent) was totally incapacitated

for work and that such incapacity resulted from such aggravation and acceleration of the disease. Whether

this class of incapacity or any incapacity will be permanent is another matter." (Emphasis added).

On the above basis, I remitted the case to the delegate of the Commissioner for determination of the amount to be

Twenty months passed. On 18 November 1982 the respondent was examined afresh by a psychiatrist, Dr. G.

Conron. This examination was arranged by Telecom and as a

result of the opinion given by Dr. Conron the determination was made on 20 dune 1983 against the respondent. The respondent again appealed, this time to the Tribunal (now seized of the power formerly vested in the Compensation Tribunal). The Tribunal had the benefit of a large number of medical reports, some of which post-dated the determination, tendered by both parties. Oral evidence was adduced from the medical experts. At the hearing, the Tribunal took the view that the evidence established that the respondent's incapacity was the result of a mental illness from which' she

had been and was suffering. He concluded "the only issue"

",.. whether the aggravation and acceleration of the mental illness by (the respondent ''s) employment by Telecom has continued, and is continuing, to contribute to the causation of that incapacity".

The respondent gave evidence before the Tribunal that in recent years she had "felt very bad" and that at no time had she felt any better than in 1976 or 1978. She suffered from noises in her ears and at night they kept her awake. She also suffered from palpitations of the heart, again principally at night. She had had pains in various pacts of her body. She had tried to work on a number of occasions. In 1981 she had assisted her husband in a coffee lounge business which he ran for a short period with his cousin but her assistance had been limited to about an hour a day; she said that she had worked there more for the urpose of getting out of her home and

mixing with other people than for the value of the assistance

which she was giving. Gn one occasion while she was working

at a sandwich bar, two custumers had come there wearing Lhe Telecom uniforms that she used to wear, she had been afraid

that they would recognize her and tell her employer of her work history. She had felt ill when she saw them. On one occasion when she was on the way by tram to attend an English language course she passed the Telecom premises at which she

had worked; when she had seen them, she had felt ill. She said that many of the noises in her ears ceminded her of the

The Tribunal made the follawing finding in relation to

"The evidence before the Tribunal has established beyond doubt that the applicant is, and has been since at least 1972, suffering from a mental illness which 1s the principal cause of her incapacity. That illness was mot caused by her enployment."

"However, the effect of section 5(11) of the Act is that, for so long as any aggravation or acceleration of the illness by her employment contributes to causing the incapacity, the incapacity is to be taken to be the result of that

aggravation or acceleration. The degree of contribution need not be

high; 1t need be only of sufficient significance that it can truly he said to be contributing to the incapacity."

The Tribunal was confronted with a divergence of medical opinion. Dr. Conran's ceport suggested Chaf the respondent had remained totally uincapacitated for work because of neurosis, but that her current incapacity resulted from the natural deterioration of her mental condition and could not, at this stage, be attributed to any aggravation or

Giving evidence he amplified this conclusion. He said that it was clear that she had been suffering from anxiety neurosis and depression for some years before March 1976 and that hec condition had been steadily deteriorating. Even if it had not been aggravated or accelerated by the employment factors, it would have continued ta deteriorate and the

present stage of her illness would have been reached as a

result of that continuing deterioration, in his view, within two years after 1976, and certainly by June 1903. She was

incapacitated now by her mental illness the present state of

which was not contributed to by employment factors. They had exacerbated the illness for some time but the natural worsening of the illness had overtaken that exacerbation well

Dr. Parker, who examined the respondent three times between July 1979 and April 1984, wrote a report in March 1983 agreeing with De. Conron that the respondent ''s persisting neurotic symptoms were not attributable to any

stress experienced in the respondent's employment. However,

he modified this view in April 1984 by stating the respondent

continued to be affected by her experience at Telecom. At the Tribunal hearing he gave evidence that, although there

was no longer any employment stress, the memory of her

employment experience was contributing to her current

Dr. A. Gouras, one of the respondent's treating general

practitioners, expressed the opinion that the stresses at

work which had aggravated and accelerated the respondent's mental illness were continuing to have an ongoing effect, not dicectly but through their sequelae. Amplifying this view, Dr. Gouras indicated that the sequelae included such circumstances as that after March 1976 the respondent was not aun employment and was nok qualified to receive an invalid pension or workers' compensation and that the effect of the aggravation of her illness was that she had lost her employment and for the first time had become qualified for workers' compensation or social security benefits or both and that her inability to work had affected the family income and her status in the family. The sequelae were, in Dr Gouras' opinion, continuing to affect her present condition and, hence, her capacity for employment. Dr. P. Cohen, one of Telecom's medical witnesses, thought it likely the respondent had never really wanted to work and that there was an element of secondary gain 1n being unable to do so, which Dr. Cohen conceded might of itself be seer as a sequel of the acceleration or aggravation of the mental iliness still

The Tribunal said of the opinions expressed by Dr. Conran, Dre. Cohen and Dr. OD. Sime, who examined the

"T accept the evidence of those three psychiatrists that the applicant would by

now have been totally incapacitated hy her illness even if it had nok been

"Nevertheless, it is her present mental condition which is incapacitating her and, if that condition is partly the result of the sequelae of the aggravation and acceleration of the tliness, then by virtue of the provisions of sections 5(11) and 29 of the Act, the aggravation and acceleration are to be taken to be contributing to her present incapacity for work."

On consideration of the evidence the Tribunal found that the association of the noises in the ears of the respondent with Telecom and her reactions to her memories of Telecom were symptoms simply of the respondent's neurasis and not manifestations of that illness being caused or contributed to

"Tt remains to be considered whether the applicant's mental illness is now wholly the original illness in its natural course of development, unaffected by the aggravation or acceleration by her employment or includes as part of if a continuing hysterical reaction to that aggravation and acceleration."

The Tribunal took notice of the evidence of Dr. Cohen that the respondent had never wanted to work and there was an element of secondary gain in being unable to do so. Speaking

of the evidence of the medical witnesses on the matter of the

possible effects of the sequelae of the original aggravation

produce a reaction, although it was not clear whether all of them limited that to a hysterical reaction, and that such a reaction could contribute to a continuing incapacity long after the initial injury disease aggravation or acceleration had ceased to do so directly."

At the hearing counsel for Telecom submitted that it ought to

be accepted from the evidence of various of the medical witnesses that as from 720 June 1983 it was the underlying illness alone which was incapacitating the respondent and that the sequelae thereof were not contributing to that incapacity.

" As each of the psychiatrists received only a partial history from the applicant and did not have before him all the material which is before the Tribunal, the Tribunal is better placed than any of them were to determine whether the sequelae of the aggravation and acceleration of the applicant's illness by her work are continuing to contribute to her incapacity for work. Having considered all the evidence which was before the Tribunal, I am satisfied on a balance of probabilities that the following consequences of the aggravation and acceleration of the applicant's mental illness by her employment are continuing to play a part in that illness:-

"€L) the change in the applicant's status within her family which has resulted from her ceasing to bring money into the house;

(2) the secondary gain in the form of attention from her family which has resulted from

Consequently by virtue of the provisions of section 27(1) of the Act, as read with section 29, the respondent remains liable to pay to the applicant for her total incapacity for work

the fact that work as an employee was distasteful to her because of her background and upbringing in Greece and she found the aggravation and acceleration of her illness as a "reason" for her being able to avoid having to do such work;

the resentment towards Telecom which has resulted first from the actual aggravation and acceleration of the illness, then from the loss of her previous income and finally from the delays which occurred as the result of the procedures which were needed in order for her to obtain compensation."

The tribunal was bound to find that the respondent was not liable to pay compensation to the respondent after the time when the respondent's mental disorder itself, by its natural progress, would have rendered her totally incapacitated for work.

(a) at the date of hearing the respondent would have been totally incapacitated for work by her disease even if it had

not been aggravated and accelerated by her employment; and

(b) there were consequences of the aggravation and acceleration of the respondent's mental disorder which were contributed to by her employment with the applicant and which were continuing to contribute to that illness -

those consequences contributed 'ta the respondent's incapacity for work,

The Ecibunal was bound to find on the evidence that upon the date of the determination under review, the respondent would have been totally incapacitated for work even if her employment with the applicant had not contributed to the aggravation and acceleration of her mental disorder.

Uson the triminal finding that at the date of che hearing the respondent would have beer totally incapacitated foc work by her iliness, even if it had not been aggravated and accelerated by her employment, the tribunal misinterpreted section 5(11) and section 29 of the Compensation (Commonwealth Government Employees) Act 1971 in deciding that if the respondent's mental disorder was partly the result of the sequelae of the aggravation and acceleration of the disorder, then the aggravation and acceleration were to be taken to be contributing Eo her present incapacity for work.

The liability of the Commonwealth to pay compensation in respect of ats injured employees is provided for in section

"Tf personal injury arising out of or in the course of the employment of an employee by the Commonweaith is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act."

) arn employee contracts a disease oar surfers an aggravation, acceleration or recurrence of a disease; and

(Db) any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as. the case may be, whether or not' the disease was contracted or the aggravation, acceleration or recurrence was suffered in the

the succeeding provisions of this section have effect.

(b) aloss to the employee of a kind referred to in section 39 or 40 of this Act;

{@) a loss to the employee of the sense of taste or smell; or

(e) the total or partial incapacity for work of the employee,

cesults from the disease, or from the aggravation, acceleration or recurrence of the disease, or the employee obtained medical treatment in relation to the desease, or the aggravation, acceleratian or rvecuczsence of the disease, as the case may be, then, for the purposes of this Act, unless the contrary intention appears- -

the aggravation, acceleration or recurrence, as the case may be,

shall be deemed to be a _ personal injury to the employee arising out of the employment of the employee by the Commonwealth; and

(g) the date of the death, the date of the loss, the date of the Gis-figurement, the date of the commencement of the incapacity or

fhe date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of the

Section 5(11) of the Act, so far as it is relevant,

(a) the death, or a disfigurement, incapacity or disablement, of an employee, or a loss suffered by an employee, shall be taken to have resulted from an injury to the employee, from a disease contracted by the employee or from an aggravation, acceleration or recurrence of a disease suffered by the employee if the injury, the disease or the aggravation, acceleration or recurrence, as the case may be, contributed to the death, disfigurement, incapacity, disablement or loss";

Section 5({1), the definitional sub-section in the Act, deems the term ""disease" to include any physical or mental ailment, disorder, defect or morbid condition, whether of

Section 31(4) which, pursuant to sub-section (5), is not to be construed as limiting the generality of 5.29, reads as

"An incapacity for work or facial disfigurement of, or a loss suffered by, an employee shall be taken for the purposes of this Act to have been contributed to by a disease, or by an aggravation, acceleration or recurrence

of a discase, if, but for that disease, or that aggravation, acceleration or recurrence, as the case may be-

(b) the incapacity would have commenced, or the disfigurement or loss would have occurred, at a significantly

(c) the extent of the incapacity, disfigurement or loss would have been significantly less."

The central submission of the applicant is based upon the finding of the Tribunal that at the date of the relevant enquiry before the delegate, namely 20 June 1983 and since that date the cespondent would have been totally incapacitated for work by sceason of the progression of her disease of anxiety neurosis even if there had not been any aggravation

and acceleration thereof by her employment with Telecom in

1976. This finding was amply justified by the evidence.

It is said that in the light of this finding it cannot be said that the respandent's incapacity to work in and after June 1983 resulted from the acceleration or aggravation of the disease suffered by her by reason of her employment with Telecom, notwithstanding the further finding of the Tribunal that there were consequences of the aggravation and acceleration of the respondent's mental disorder caused by her employment with Telecom which were continuing to "play a part" in that illness. Having regard to the context in which it was

made I think this finding should be understood to read that these consequences have contributed to her incapacity for

Section 29 of the Act is designed to bring within the scope of 5.27, as injuries giving rise to entitlement' to compensation, the contraction, aggravation, acceleration or recurrence of a disease to which contraction, aggravation, acceleration or recurrence any employment with the Commonwealth was a contributing factor, if certain particular detriments, including total or partial incapacity for work, result from the contraction of the disease or its aggravation, acceleration or recucrence. It is to be observed also that so long as any employment by the Commonwealth is a contributing factor to the contraction, aggravation, acceleration or recurrence of the disease it is of no significance that the contraction, aggravation acceleration or recurrence was suffered otherwise than ain the course of that employment.

It 18 apparent that for the contraction of a disease or its aggravation to qualify as a personal injury arising out of or in the course of the employee's employment with the Commonwealth pursuant to $.29(2)(f) that employment must be a factor contributing to the contraction or aggravation of the disease: see 5.29(1). I use the term "aggravation" as including acceleration or recurrence. No doubt on the proper interpretation of s.29(1) the employment would be a factor contributing to the contraction or aggravation of a disease whether the contribution was direct or indirect. But the employment must be a factor contributing to the disease or its

aggravation. To my mind the situation contemplated is one

where the employment operates directly or indirectly upon the disease itself. Also, for a disease or an aggravation thereof fo qualify asa personal injury arising out of or in the course of employment pursuant to $.29(2)(f) it is necessary

that incapacity for work shall result therefrom: see 5.29(2).

In this case the Teibunal found that the employment directly aggravated the disease, temporarily at least, and that there were certain consequences thereof. Although those consequences were not in the nature of the contraction or symptom of any disease the Tribunal found that they played a part in the respondent's illness in the sense, I think, that they contributed from 1983 onwards to her incapacity to work. It is said that these findings establish that this incapacity to work not only resulted from the aggravation of the disease

but from aggravation to which the respondent's employment with the Commonwealth, namely Telecom, was a contributing factor.

For the present I assume that this is a sound view. In that state of affairs s.29(2)(f) of the Act deems the aggravation of the disease to be a personal injury to the employee arising out of the employment by the Commonwealth and liability is

On the issue of the significance of the finding that without any aggravation by employment with Telecom the respondent's natural disease would by dune 1983 have

incapacitated the respondent for work, the finding that "it is

her present mental condition which is incapacitating her" is critical. The applicant contends that as the incapacity is

fully explained by reference to the respondent's mental iliness operating according to its natural condition unaffected by the effects of her employment by Telecom, there is no evidence that the aggravation of the illness by the sequelae is contributing to the incapacity to work. Thus the burden of establishing that the respondent's incapacity to work resulted from aggravation of the disease by any work factor, directly or indivectly, just cannot be carried. But the Tribunal took the view that, as it was the respondent's present mental condition which was incapacitating her then, by

virtue of s.5(11) and 5.29 of the Act, the aggravation and acceleration are to be taken as contributing to her present uncapacity for work if her present mental condition was partly the result of the sequelae of the aggravation and acceleration

As to the validity of this view it is important to note that the incapacity must be the result of the illness considered as a unity. Although the illness would have resulted in the same incapacity if it had not suffered an aggravation by the specified sequelae, nevertheless, if by the operation or effect of the sequelae the illness has been aggravated, and incapacity has resulted from the 1liness so aggravated, inevitably the incapacity would be the product of the present illness operating as a whole or as a unity. It is impossible to say that it results only from the illness as it

would have been had there been no aggravation. One cannot say

that the incapacity was caused by any particular department of the illness in the mind which was in its current state only as the result of the dispositions of nature or hy a department of the illness caused or contributed to by the sequelae in the process of aggravating the illness. As at 20 June 1983, therefore, the incapacity proceeded from the state of the

illness,which resulted from all the factors affecting it.

So far as human insight can probe it, the incapacity is

the result of the disease as affected by the aggravation of it by the sequelae if there were any such aggravation. Accordingly, s.5(11) plays a part. It provides that if an aggravation of a disease contributes to incapacity to work the incapacity shall he taken to have resulted from the aggravation. Thus, if the aggravation by the sequelae contributed to the illness, (see s.29(1)) the incapacity must be taken to have resulted from the aggravation of the disease. It would follow that for the purposes of s.29(2) the

incapacity resulted from the aggravation. Then s.29(2)(f)

applies with the result that the aggravation of the disease is deemed to be an injury in respect of which by s.27 there isa

Tt was put by Mr. Ashley that it is important to remember that it is to be gathered from 5.29 and s.27 that entitlement to compensation depends upon the relevant incapacity having been contributed to by the aggravation of

the disease and not by the disease in its aggravated form. He

relied on the decision of the High Court in McLaughlin & Co.

Pty. Limited v. Brinnand £1965] WCR 112 and particularly on

"Tt is not disputed that there was evidence on which the Workers' Compensation Commission could find that the worker's malignant disease, although not caused by his work, was aggravated by his work. The only question for us is, was there any evidence that his incapacity resulted from that aggravation?

The cffect of the Workers' Compensation Act (N.S.W.) since it was amended in 1960 is in my opinion as follows. If, without any aggravation or acceleration contributed to by his employment, a worker would have become incapacitated to the extent he was and when he was by a disease from which he was suffering, then, whether or not there was in fact any aggravation, acceleration or exacerbation of the disease, his incapacity cannot be said to result from aggravation, acceleration or exacerbation. If, on the other hand, a worker's disease is sO aggravated by his employment that it causes an incapacity when without such aggravation he would have suffered no incapacity from the disease, then he is entitled to compensation. And if the effect of the aggravation is to cause a greater degree of incapacity than the disease unaggravated would have done ~- as, for example, if what would otherwise have been a partial or intermittent incapacity becomes a total or permanent incapacity

• he is entitled to compensation for the incapacity actually occurring, for it ais _ the result of the aggravation of his pre-existing condition; and it is immaterial that unaggravated he might still have been to some lesser degree incapacitated. If, however, the employment by aggravating his disease or accelerating its progress merely causes an incapacity of the same degree that the disease would in time have caused but causes it earlier, then it seems to me that the resulting compensable incapacity is only that which can be said to be attributable to the aggravation or acceleration: that is to say it is the incapacity from its actual occurrence to the time when, ex hypothesi, the disease, if not

accelerated or aggravated, would have produced ato"

This last sentence touches the present case in a most

significant way. And ain the relevant respect I see no

distinction between the Act and the NSW provision which was

under consideration in Brinnand's Case (supra). If the view

expressed applies to this case without qualification, then having regard to the finding of the Tribunal that the natural disease would in and from dune 1983 have resulted in the

incapacity then suffered by the respondent, the respondent must fail. But the essential question is that posed by s.29(2). Did the incapacity from June 1983 result from the aggravation by the sequelae in the sense that the sequelae

were then contributing to it? In Brinnand's Case (supra) the

aggravation under consideration was considered not to have contributed to the incapacity. The ratio decidendi of that case clearly 1s that there was no evidence that the aggravation contributed to the incapacity. It was in that case possible to scparate the effects of the aggravation from the effects of the injury if 1t were not aggravated. But in

the present case the incapacity from June 1983 was caused or contributed to by the operation of a neurosis affecting a single bodily or mental entity, namely the mind. It was the operation of that single entity, as an indivisible unit, which was causing the respondent to be unable to work. If there has been aggravation of the illness the impairment of the mind which produced that result was the result of the progress of the disease and of the aggravation. If one considers the case of a progressive disease which will ultimately produce incapacity but which 18 aggravated by some event, it may be that the aggravation merely hastens the

incapacity and it is reasonable to say the only incapacity

acceleration. But an aggravation of a neurosis would seem to create a further impairment of a mind already impaired so that everything the mind does thereafter is the result of the total impairment. If the event in question was the employment or a consequence of the employment then the employment was a contributing cause to incapacity whenever the mind so operated to induce that incapacity. It is this notion which the Tribunal expressed by saying that it is her mental illness in its present state which 1s causing her

If one contemplates a situation in which a disease is temporarily aggravated by employment, but later the aggravation has ceased to have any effect, so that the disease is no worse after the aggravation and does not progress any more swiftly because of it, but does progress to a stage at which it causes incapacity, then clearly, the employment is not a contributing factor in the incapacity. But if, after the cessation of the direct effects of the aggravation, the disease, being a neurosis, iS again aggravated, or made worse, by some event, and operates to incapacitate the sufferer for work, then the conclusion which I feel is inevitable is that the incapacity is contributed to by that later aggravation as well as the natural disease. This 1s because of the nature of the disease. It does not operate by mental departments. If aggravated it is the whole of that single entity, the mind, which in its ultimately

impaired condition operates to produce the incapacity. That

But there is a serious question whether, in the decision

of the Tribunal, there is a finding that any of the sequelae did constitute a factor contributing to the aggravation of the

The Tribunal found that in June 1983 the respondent was totally incapacitated for work. As indicated above, the learned Deputy President found that whether or not her natural anxiety neurosis had been aggravated by the employment with Telecom she would in June 1983 have been totally incapacitated for work. He had no doubt that that incapacity was the result of a mental illness from which she had been suffering since

"..,- The only issue which remains for decision is whether the aggravation and acceleration of the mental illness by her employment by Telecom has continued, and is continuing, to contribute to the causation of that incapacity.

6. The evidence before the Tribunal has established beyond doubt that the applicant is, and has been since at least 1972, suffering from a mental illness which is the principal cause of her incapacity. That illness was not caused by her employment. However, the effect of section 5(11) of the Act 1s that, for so long as any aggravation or acceleration of the illness by her employment

contributes to causing the incapacity, the incapacity is to be taken to be the result of the aggravation or acceleration. The degree of

contribution need not be high; it need be only of sufficient significance that it can truly be said to be contributing to the incapacity."

The Deputy President pointed out that the question was whether the respondent's illness was in and since dune 1983 wholly the original illness unaffected by the aggravation by work or included as part of it a continuing hysterical reaction to that aggravation. After considering the opinions

"... However, all of them accepted that such sequelae could produce a reaction - although it was not clear whether all of them limited that to a hysterical reaction - and that that reaction

could contribute to a continuing incapacity long after the initial injury, disease, aggravation or acceleration had ceased to do so directly."

. Mr. Casey initially submitted that the applicant's employment could not be said to be contributing to her present incapacity for work unless the actual stresses of that employment were still themselves effective in doing 50. Subsequently, however, he conceded (rightly in my view) that it would be contributing to it if the consequences of the aggravation and acceleration were now contributing to her incapacity." The expression "it" where first used in this passage refers to her 1976 employment with the Tribunal and where secondly used refers to the respondent's incapacity to work in 1983 and onwards. I would interpret this concession as intended as an acknowledgement that providing that the consequences of the original aggravation operated to aggravate the illness then the employment would be contributing to the incapacity if the

consequences of the aggravation were now contributing to her

""T accept the evidence of those three psychiatrists that the applicant would by now have been totally incapacitated by her illness even i1f 1t had not been aggravated and accelerated by her employment. Neverthelesss, it is her present mental condition which is incapacitating her and, if that condition is partly the result of the sequelae of the aggravation and acceleration of the illness, then by virtue of the provisions of sections 5(11) and 29 of the Act, the aggravation and acceleration are to be taken to be contributing to her present incapacity for work."

In the light of those observations it would have been natural to treat as the essential enquiry, whether the "present" mental condition of the respondent was the result, partially at least, of the operation upon the respondent's neurosis of the specified sequelae. In the application of the observations, an affirmative answer to that question would have solved the issue of liability. Clearly the incapacity was the result of the "present" mental condition. If therefore that present mental condition was the result of the operation on the neurosis of the sequelae the case for the respondent was complete. But 1t was not complete if there was an affirmative answer merely to the question whether the sequelae contributed to the incapacity. Such an answer would leave open the question of aggravation of the neurosis by the sequelae. Yet there is much in the Tribunal's reasoning suggesting that an answer to the latter question would determine the issue. The observations at the commencement of this portion of these reasons, and those relating to the

discussion with Mr. Casey mentioned above and what appears to

be the final summation of the critical question are in point.

The absence from the statement of the reasons of the Tribunal of a finding that the sequelae aggravated the 1lliness reinforces the point. The inference that the Tribunal acted on the view that it was sufficient for the respondent to establish that the sequelae contributed to the incapacity to work arises and gathers strength with each reading of the reasons. One finds ain the final reference by the Deputy President to what he appears to consider the critical question to be, a statement that he was better placed than the medical witnesses to determine whether the sequelae of the aggravation of the respondent's illness by her work was continuing to contribute to her incapacity for work. The immediately following and ultimate finding of the Tribunal was that he was satisfied that the specified consequences of the aggravation of the respondent's mental illness by her employment were at the relevant time continuing "to play a part" in that illness. From its context I think, as indicated above, that these words are to be understood as a finding, not that the consequences, namely, the sequelae, had contributed to aggravating the illness, but that they had contributed to the respondent's incapacity, in and after June 1983, to work. The necessity for the sequelae to contribute to an aggravation of the respondent's illness is not mentioned. But in the absence of a finding that the sequelae contributed to aggravating the illness an element necessary to establish Telecom's liability as at June 1983 was lacking. That element was that the sequelae contributed to make the illness worse than it would

otherwise have been. If, by finding that "it played a part"

in the respondent's illness he meant that the sequelae contributed to her incapacity that contribution could have taken effect in one of two ways, first, if the sequelae aggravated the disease; and secondly, if the sequelae provided a focal circumstance which did not make the illness worse but provided a point of reference to which her mentality impaired by her old illness, not aggravated in any way by the sequelae, related and operated so as to contribute to the incapacity of

In this latter case, although the old illness would have incapacitated the respondent, the focus of circumstances provided by the sequelae would, in a sense, have played a part

in that illness. It may not have made the illness worse but have contributed to the incapacity by providing a reason or

incentive factor by reference to which her impaired mental

condition, her illness, operated to incapacitate her for work.

If by his finding that the four specified sequelae played a part in the respondent's mental illness the Tribunal meant no more than that in the course of the respondent's natural illness the mind noted the situations described in the sequelae and, according to its naturally impaired mental process, developed a desire that the situation in items two and three should continue indefinitely or a desire to punish Telecom for the situations described in items one and four,

then it could not be said that any of the sequelae were

factors which contributed to cause an aggravation of the

natural illness. They constituted a reason for action by the

If the Tribunal meant that the sequelae aggravated the respondent's neurosis and that her mental condition was by reason of the sequelae made worse than it otherwise would have been, that conclusion must have been reached by the adoption of some such notion as that the specified sequelae caused the respondent's mind to develop a desire to maintain her illness so that the benefits described in items two and three of the sequelae would be perpetuated and the dissatisfactions described in items one and four of the sequelae would be vindicated and to implement these desires by some conscious or subconscious mental process whereby the existing neurosis was

The sequelae in themselves were mere circumstances of independent fact not of health. The sequelae were but inert consequences of the aggravation by Telecom of her illness, the award of compensation and the litigation to obtain the award. I have difficulty in appreciating that as a matter of inference one could conclude that the sequelae caused the neurosis to become worse rather than that the respondent's already impaired mind saw the facts described in the sequelae

Until the respondent's mind operated, consciously or

subconsciously, in some way, such as, to say to the

respondent: "Pay without work and family attention are desirable - I will lose the pay and perhaps the attention unless I have a good excuse for not working, therefore my

neurosis must make me unable to work", the sequelae were non

It is going a long way, however, to say that because the aggravation of her neurosis had enabled her temporarily at least to be paid without working, that fact contributed further to aggravate her neurosis. As Windeyer J. said in

Federal Broom Co. Pty. Ltd. v. Semlitch (1964) 110 CLR 626 at

640, when the statute speaks of any employment by the Commonwealth as a contributing factor to aggravation of a disease it refers not to the fact of employment but to what the worker in fact does in his employment. Did what the respondent did in this employment aggravate her illness? It is said that loss of status at home aggravated the illness. But that was not something that happened at work. Nevertheless if something that happens at work has a certain result which causes a subsequent event then it may be said that what happened at work caused that result. But an ultimate result which was too remote from the original

happening will be said to be not caused by it. Thus the

The manner in which the part thought by the Tribunal to

be played by the sequelae in the respondent's illness is not specified and is quite unclear. Items two and three of the

specified sequelae were items of satisfaction to the

respondent and would hardly have been irritants. There is no guide as to the significance that might have been attached to item one. It might have tended to influence the respondent to get well. The fourth item is subject to observations

The truth is that it is impossible to treat any possible

injury to the respondent's neurosis caused by loss of family esteem as having been contributed to by the employment

including what occurred in that employment. The employment caused the respondent to stop work. Her ceasing to work is said to have caused loss of family esteem even though apparently she succeeded in obtaining an award of compensation. In my opinion the connection between the employment and the aggravation of the neurosis breaks down at the intermediate step. The loss of esteem was due to events of a different order from events contributed by the employment and its incidents. It arose from the personal attitudes of the family to legal situations which had arisen from the employment. Those attitudes were not contributed to by Telecom. It 15 also impossible to treat the secondary gain referred to in sequelae Nos. 2 and 3 as having been contributed to by the employment. The Telecom employment did not cause the family to give the added attention to the respondent for her condition as it resulted from the aggravation of her neurosis, or to cause satisfaction at being a lady with leisure and an income. The former was the result of the personal attitudes and reactions of the family to the

facts. The latter was the result of a personal predilection

of the respondent in relation to the same facts. The desire on the part of the respondent to retain that attention or her comfortable leisure was not caused by Telecom. They again concerned events of a different order from events contributed

As to the fourth sequelae, resentment, I agree with the observations of Sweeney and Woodward JJ. in their reasons for judgment herein. Were it not that a decision based on the possibility that resentment resulted from the events at Telecom in 1976 and was a contributing cause of aggravation of the respondent's neurosis as at dune 1983, I would consider that this appeal should be allowed and the award terminated. It is a serious question whether resentment ever played a part in the development of the respondent's neurosis and whether as at June 1983 it continued to have any effect in respect thereof. The onus of proof that the employment had then ceased to have effect as an aggravation of the respondent''s

Commonwealth (1964) 110 CLR 347, Commonwealth of Australia _v. Muratore (1976) 12 ALR 543. The applicant has proved that the events at Telecom in 1976 had, by June 1983, ceased to have direct effect upon the respondent's neurosis. It has satisfied the Tribunal that, without aggravation of any kind, the respondent would, because of her neurosis, have been unable to work as from June 1983. The original award was made on the basis that noises and strict discipline in the workshop had at that time so aggravated the respondent's neurosis that

she was incapacitated for work. The finding of the Tribunal

is that in June 1983 the direct effects of the employment did not play any part in the respondent's illness or incapacity. There is no existing judicial finding that the sequelae ever played any such part. That they did so, as an indirect effect of the employment at Telecom is a matter depending on the evidence before the Tribunal. There are no objective criteria which indicate that resentment of the events at Telecom in 1976 aggravated the respondent's neurosis. Unless there were qualified medical evidence that such resentment existed and that it was caused by the 1976 events at Telecom and that, as distinct from being a mere manifestation of the natural neurosis or the working of any mind in the face of misfortune, it aggravated the neurosis ina relevant way and at the relevant time there would be nothing to support an inference that resentment aggravated the respondent's neurosis. In such case, in view of the findings already made as to the effect of the illness as at the relevant time, the applicant would have

Ido not find in the reasons of the Tribunal any attention given to these problems. For the Tribunal to take, largely upon himself, the task of assessing the mental processes which might have flowed from any of the sequelae was a bold step. But if that were to be done it could only be done safely 1f all the relevant factors and possibilities were considered. Neither in the reasons for decision nor in the evidence does one find a specific examination of the question

whether the impaired mind of the respondent operated by

reference to a sequelae rather than that the sequelae caused a

Having regard to the foregoing it is my opinion that

appeal should be allowed and the matter returned to

I agree with the order proposed in the joint reasons

judgment herein of my brothers Sweeney and Woodward Ju.

I certify that this and the preceding thirty two (32) pages are a true copy of the

Reasons for Judgment of his Honour Mr. Justice Smithers.

} ) VICTORIA, DISTRICT REGISTRY ) No. ¥G 236 of 1984 d )

OF THE AUMINISTRATIVE APPEALS TRIBUNAL, CONSTITUTED

BETWEEN: AUSTRALIAN, TELECONMUNICATIONS, COMMISSION Applicant and VICKI TZIKAS kespondent COURT: Smithers, Sweeney and Woodward JJ. NATE: 12 August 1985 PLACE: Melbourne

This is am appesl from a decision ("the decision") of 2 deputy president of Lhe Administrative Appeals Tribunal ("the Tribunal") to set aside a determination of the delegate of the Commissioner for Employees' Compensation ("the determamation") and renit the matter to the Commissioner for reconsideration, wath the applicant ("Telecom") to pay the respondent's costs. The delegate on 20 Junme 1983 determined that any incapacity for work which the

respondent might have thereafter was not the result of the

aggravation and acceleration of her psychoneurosis by her

employment and that consequently Telecom was mot liskle to psy her

(Commonwoalth | Government Employees) _Act 1971 ("the Act") an respect of any incapacity for work suffered ky the respondent on and from the date of determination, or in respect of any medical treatment undergone by the respondent on and from that date. The matter was remitted to the Commissioner by the Tribunal for reconsideration in accordance with an express direction that the respondent had at all times since 20 June 1983 (which maistakenly appears as 20 June 1961 in the typed decision) remained totally anecapscitated for work and that the said total ancapseity for work had continued to be the result of the personal anjury specifzred ain a determination of a delegate of the Commissioner dated 9 June 1981 (¢"*the earlier determination"). The personal injury so

specified was the aggravation and acceleration of the disease of

The respondent was 40 years old at the date of the decision. She 1s mow 41 years old. She was born in Greece and Was married there at the sge of 16. She arrived in Australia on 27 November 1966 together with her husband and two children. The respondent was not ain employment in Greece, but after coming to Australia she was employed an a mumber of jobs. In 1971 she started working for the Commonwealth an the Postmaster-Goeneral's Department. After the Australian Telecommuntcations Commission was established in 1975 she continued with the same work, but was thenceforth employed by Telecom. Her jok ancluded several types

of light factory work. In March 1976 she was working on a

paltlernm-making machine. Another duty she had was to make tea for the other employees. At 321.50 a.m. on 26 March she stopped working om the machine in order to make tea. She had started preparations for doing so when, as she described ait, she felt Palpitations, a bussaing noise anside her brain and her ears, and her legs felt weak so that she collapsed to the floor. She was

assisted upstairs where a nursing sister attended her and she

rested for sbout two hours. @fter that she was taken to hospital. She has vartuslly mot worked since. She described the nature of the injury or disease giving rise to her incapacity as a "*nervous condition - caused by morse at workshops' and declared that the "no1se became oppressive", resulting in her condition. She stated that the symptoms first became apparent im December 1975. By the time the case had come before the Tribunal, however, ait was secepted by both partrzes that Lhe respondent had suffered from mentsl allmess since ak least 15972, After consideration of various médical reports, the Commissioner's delegate accepted the Opinion of Ilr. A. Samclair, the medical refercoe appointed to the case, that the respondent suffered from a long standing chronie psychoneurosis to which her employment was not ao contributing factor. Gm this bas2rs the respondent's claim for compensation was

The respondent appesled to the former Commonwealth Employees' Compensation Tribunal ("the Compensation Tribunal"), whose decision of 18 July 1980 was to affirm the determination of 3 November 1978. Two psychiatrists, lir. N. Parker and Ur. FF. Coten, wore called by the respondont and Br. Sinclair was

called by Telecom ai the hearing before the Compensation Tribunal.

The respondent had been re-examined by Dr. Sinclair prior to that

Tne respondent appealed on 2a question of law to a single gudge of this Court. On 13 March 1981 Smithers J. upheld the appeal after hearing further evidence from the medical experts who had given evidence before the Compensation Tribunal. His Honour

found the Compensation Tribunal had made an error im law ain adoptang Ur. Sanmclair's conclusion am the light of certain facts

of which Dr. Sinclair was unaware, but of which the Compensation Tribunal had been informed, mamely that morse was a stressful characteristic of the respondent's work and that the respondent had resected subjectively to strict discipline in the workshop. He said:

"Having regard to my views about the proper inferences to be drawn from the evidence as at stood at the end of the hearing before the CCompensation Tribunal or 3 balance of prokabalities amd of the thrust of the evidence given to thas Court, I am satisfied that the Crespondent] suffered aggravation and acceleration of the disease of psychoncurosis to which the enployment of the Crespondent] by CTelecom] was a contributing factor and that as from 26 March 1976 the Crespondentd was totally ainmcapacitated for worr and that such ancapacity resulted from such aggravation and acceleration of the disease,

On the above basis, his Honour remitted the case to the delegate of the Commissioner for determination of the amount to be

respondent was examined afresh ty a psychiatrist, Ir. G. Conron., This examination was arranged by Telecom and as a2 result of the opinion given by Ur. Conron the determination was made on 26 June 1983 against the respondent. The respondent again appealed, this time to the Trabunmal (mow seicsed of the power formerly vested ain the Compensation Tribunal). The Tribtunal had the benefit ef a large number of medical reports, some of which post-dated the determanation, tendered by both parties. Oral evidence was adduced from the medical experts. At the hearing, counsel for Telocom addressed the Tribunal on the basis that the respondent had remained totally incapacitated for work. The "only issue? said to remain for decision in the circumstances was "whether the aggravation and acceleration of the mental allness by (the respondent's) employment by Telecom has continued, and 15

continuing, to contribute to the causation of that amcapacity."

The respondent gave evidence before the Tribunal that in recent years she had "felt very bad' and that at mo time had she felt any better than im 1976 or 1978. She suffered from noises in her ears, particularly the left one, and especially at might. They kept her awake. She also suffered from palpitations of the heart, again principally at night. She had had pains in various parts of her body, to the extent that ain February 1984 she had undergone 3 hysterectomy; but 1t nad not alleviated the pains. The doctors who gave evidence considered this operation mot to have been justified on any organic hasis. She had tried to work on a number of occasions. In 1981 she had assisted her husband in a coffee lounge tbusaness which he ran for 2 short period with his

ecusin but her assistance had beon limited to ahout an hour a days

she said that she had worked there more for the purpose of getting out of her home and mixing with other people than for the value of

In 1983, she said, she had obtained three jots, one am a sandwich bar, another am a coffee lounge and the third selling clolhes one day 3 week st a market. In ome she had worked four hours a day but had been sacked at the end of 3 week. In another she had been sacked after two days because she had been unable ta do the wort required of her. The third job, she said, had lasted for only about three weeks and she had been sacked fram that also. While she was working at the sandwich bar, twa customers had cone there wearing the Telecom uniform that she used to wear; she had recognised them and had been afraid that they would recognise her and tell her employer that she was working again. She had felt ili when she saw them. Gn one oceasion when she was on the way by tram to attend an English language course she passed the Telecom premises ab which she had worked; when she had seem them, she had felt 111. She ssid that many of the noises in her ears reminded

The Tribunal was confronted with a divergence of medical Opinion. Dr. Conron's report suggested that the respondent had remained totally incapacitated for work because of neurosis, but that her current 1neapacity resulted from the naturs] deterioration of her mental condition and covwld mot, at this stage, be attributed to any aggravation or acceleration of it by her employment, a concluszon which he amplified in the course of

He said that ait was clear that she had been suffering from anxiety meurosis and depression for some years before March 1976 and that her condition had been steadily detcriorating. Even 1f oat had mot been aggravated or accelerated by the employment factors, 1¢ would have continued to deteriorate and the present stage of her illness would have been reached as 3 result of that conlanuing deterioration, in his view within two years after 1976 and certainly by June 1983. She was imcapacitated now by her mental illness, the present state of which was not contributed to By employment factors. They had exacerbated the illness for some time but the matural worsening of the illness had overtaken that

Ur. Parker, who exsmined the respondent three times between July 1979 and April 1984, wrote a report in March 1983 agreeing with Dr. Conmron that the respondent's persisting meurotic symptoms were nob attributable to any stress experienced im the respondent's employment. However, he modified this view im April 1984 by stating that the respondent combinued to be affected by her experience at Telecom. At the Tribunal hearing he gave evidence that, although there was no longer any employment stress, the memory of her employment experience was contributing to her

current condition, exacerbated by the litigation process.

Ir. A. Gouras, one of the respondent's treating general practitioners, expressed the opinion that the stresses at work

which had aggravated and accelerated the respondent's mental

rliness were continuing to have an ongoing effect, mot directly

but through their sequelae. Examples af those sequelae were the respondent's qualification for the first time for workers' compensation or social security benefits and the effect of her aneapacity on koth the family income and the respondenmt's status wilhin the family. The sequelae were, in Ur Gouwras' apinion, conlinuing to affect her present condition and, hence, her Capacity for employment. Dr. P. Cohen, one of Teleeom's medical witnesses, thought ab lakely the respondent had never really wanted to work and that there was an element of secomdary gain in being unable to do so, which Ilr. Cohen conceded might of itself be seen as a sequel of the acceleration or aggravation of the mental

The Tribunal said of the opinions expressed by Or. Conran, Ur. Cohen and Ilr. UO. Sime, who examined the respondent on behalf of Telecom:

"IT accept the evidence of those three psychiatrists that the applicant would by mow have been totally

Lncapacitated by her allnmess even if ait had not been aggravated and accelerated by her employment".

Earlier the Tribunal had said of the Factors which had led the Court in 1981 to find "aggravation and acceleration of the

disease of psychoneurosis to which the employment of the employee

eouvee Lo am satisfied that the association of the noises im her ears with Telecom and her reactions

to her memories of Telecom are symptoms simply of that rllness and not manafestations of the alilness

being csused or contributed to any longer by employment factors."

The medical experts were in agreement with Ur. Gouras'

proposition that the sequelae of an injury or szliness could produce a reacbion having the effect of contributing to an existing mental allnmess. They differed as to whether in this case tne sequelae were mow having a comtrabuting effect on the respondent's illness or incapacity. Ur. Conronm thought nat.

fr. Cohen was unable to say. Ilr. Parker considered the respondent's memories of Telecom were playing a comtinuing role. Ir. Sime thought that 190 per cent of all factors contributing to her present condition were worl-related sequelae; the other 90 per cenl were outside factors such as a congenital dispositian to become neurotic, early marriage, unwrllingness to come to

The general Jlisbility of the Commonwealth to pay compensation im respect of ats injured employees 1s provided for

"If personal injury arising out of or in the course of the employment of an employes ky the

Commonwealth is caused to the employoe, the Commonwesallh 1s, subject to this Act, liable to pay compensation in respect of that injury um

The relevant portions of sub-ss.¢1)} and (3) of 5.29

Ca) oan employee = awenunwnennes suffers ar aggravation, acceleration or recurrence of 3 disease; and

(bh) any employment of the employee ky the Commonwealth was a contributing factor to

ween eee the aggravation, acceleration or recurrence, 36 the case may be, whether or not the wesw eeee aggravation, acceleration or

the succeeding provisions of this section have effect.

fe) the total or partial ancapscaty for work of the employee,

results from weauwawe the aggravation, acceleration or recurrence of the disease, aseneeeee tHEM, Lor the purposes of this Act, unless the contrary intention appears -

(f) euneeeue the aggravation, scceleration or Tecurrence, as the case may be, shall be deemed to be a porsonal injury to the employee arising aut of the employment of the employees by the Commonwealtiny and

(9) wee eens Dhe date of the commencement of the incapacity .«-..../. Shali be deemed to be the date of the injury."

Section S¢(11) of the aAet, so far a5 it ais relevant,

C3) Uh wav eeu ANCSPACLEY wees unne nuwneeae OF an @mployee, waosenee Shall be taken to have resulted From = wesnecaes ar aggravation, acceleration or recurrence of a disease suffered by the employee af wnaenense the aggravation, acceleration or recurrence, as the case may be, contributed to the w..seaue LMCBPAC ty, ween unene "ws

caused by employment, which had been an existence since at least

acceleration and aggravation of at resulting from her employment

dy, 185 not to be construed as limiting the generality

"Ar amcapacity for work of weenwees an employes shall be tauren for the purposes of this Act to have been contributed to by weeannne 8M AQQraVAtION, gecelcration or recurrence of a disease, if, but for that wsene ase 399ravation, scceleration or recurrence, as the case may be-

Cad dhe amcapaeratyy, wsennaee would mot have occurred;

(kh) the ancapacity would have commenced, women ato a significantly later time; or

(ce) the extent of the incapacity, «..useu. WOuld have been significantly less.®

There was an unchallenged fanding that there had been

Aft an early stage of its reasons Lhe Tribunal expressed

"It renains +0 be considered whether the LTrespondent's] mental illness is mow wholly the original iliness nn ats natural course of development unaffected ty the aggravation and

secélerstion by her employment or includes as part of it 3 continuing hysterical reaction to that aggravation and sceoleration."

"The assue to be decided is, therefore, whether an the present case the sequelae of the aggravation and os acceleration of the Crespondent's] anxiety neurosis by her employment have continued to

The Tribunal said further that it accepted the evidence of the three psychiatrists that the respondent would by now have been totally incapacitated by her allness even if it had mot been

"As each of the psychiatrists received only a partial history from the Crespondent] and did not have before him 311 the msterisl which is bhefore the Tribunal, the Tribunal 1s better placed than any of them were to determine whether the sequelae

of the aggravation and acceleration of the Erespondent's] allmess by her work are continuing to contribute to her ancapacity for work. Having considered all the evidence which was before Lhe Trabunal, am satisfied on 3 kalance of probabilities that the following consequences of the 399ravalion arid accelcration of the

Crespondent'sd mental iliness by ter employment are continuing to play a part in that 1liness:-

"€1) the change ain the Crespondent''s] status within mer famaly which has resulled from her ceasing to bring money ante the house;

from her family which has resulted from that aggravation and accelerationy

the fact that work as an employee was distasteful toa her because of her background and upbranging ain Greece and she found the aggravation and acceleration of her illness as a 'reason' for her being able to avoid having to do such work}

(4) the resentment towards Telecom which has resulted first from the sctual aggravation and acceleration of the illness, then from the loss of her previous income and fangally from the delays which occurred as the result of the procedures which were needed im order for her to obtain compensation."

Consequently by virtue of the provisions of section 27¢1) of the Act, as resd wath section 29, the

CTelecom] remains liahle to pay compensation to the

CLrespondent] for her total ancapsacaty for work and has done so at all times since 20 June 1983."

This passage gives rise to serious doubts about the Tribunal's reasons considered as 3 whole. Whale ait was of the Opinion thal 11 was better placed than any of the psychiatrists to determine whether the sequelae of the aggravalion and acceleration were 'continuing Lo contribute to her wnocapacity for work*® 14 went

on to conelude that the '"consequences* 1b listed of the aggravation and secelerstion of her mental illness were 'continuing to play a part in that zllmess" as the final step ta

In our view there are two flawe an the Tribunal's approach, both of which constitute errors of lay. The first relates to the question whether any employment by the Commonwealth 13 Stall oa contributing factor to any relevant aggravation or secelersation of the respondent's disease, within the meaning of

«29(1) of the Act. On this issue, we believe the Tribunal led 1tself into error by adopting the word 'sequelae', apparently used by one of the medical witnesses, without considering whether the

factors listed were truly the results or cansequences of the

tormer aggravation and acceleration, which it must be remembered had resulted from noise amd stress, rather than the msnifestations or results of her underlying dasease. The first three factors Jisted flow not from the respondent's employment with Telecom, but from her cessation of that work; they are not affected in any way by the nature of her former work, but arise simply from the fact of previous employment operating on 3 person of her temperament,

background and family circumstances. The fact that she feels her

status has decreased as a result of lower earnings, but she fands not working congenial, and enjoys the increased attention from her family, cam hardly be said to flow from, or have been contributed to by, her employment by the Commonwealth. This aiussue of causation was simply mot considered by the Tribunal, which assumed aA eaussl connexion because these things flowed, in a medical gense, from the cessation of work, which was im turn contributed

The fourth factor listed by the Tribunal 21s more difficult to resolve than the others. In our opinion, the resentment of a sack mind, directed towards former comditions of employment, 3f at aggravates or accelerates the disease, and thus contributes to ancapacity, is capable of leading to a finding under s.29¢1) of the Act that the employment 15 still contributing fo the aggravation or acceleration. However wo believe that recenkment about lower earnings and delays in liligation carmnot be said to nave been contributed to by the employment. Such considerations are as remote from the employment 35 the other

factors, such as relief al mot having to worl, deall with exrlier.

For those reasons the matter should, in our view, 90 back to the Tribunal to determine whether the contanuing resentment of the respondent sbout the first aggravation and acceleration of her disease 15 an fact causally related to her formor employment, and, 1f£ so, whether 21 is playing such 3 part umn her present state of health that it can properly and fairly he said to be contributing to 3 current aggravation or scceleration

of her disease and not merely providing a focus for that disease.

For the respondent to succeed, she must show that she is suffering from 3a mental iliness, aggravated or accelerated by her employment with Telecom, which aggravation or acceleralion has contributed to her present incapacity. Refore the Tribunal, counsel for Telecom apparently conceded that, even if the previous aggravation and scceleration had ceased, employment with Telecom could properly be said to be contributing to present ainmeapacity "af the consequences of the aggravation and acceleration were now contributing Lo causing her mental illnmess*®. We thank that was a proper concession provided that the word 'consequences' 15 limited to legal consequences, With the chain of causation intact, and

does not extend to other, loosely-conmectod, later events.

The olher relsled flaw aim the Tribunsal's reasoning was 1ts glossing over of the difference betwucen the so-called sequelae playing a part am the respondent's illness and their contributing to the incapacity. Section S511) of the Act requires Lhat the aggravation or acceleration must have contributed to the imcapacity Lor the respondent to succeed in the present case. There is, of course, an iwmportant difference between, om Lhe one hand, the sequelse makang a sick mand sicker and thus perhaps contributing to ancapacity and, om the other, a sick mand latching on to the faetors described so that, 1m one sense, they play a part an the illness, but mot ain such a way 3s to add to existing uneapacity. Since ait tended to refer anterchangeably to the sequelae contributing to the aiililness and contributing to the mcapacity, we thank a1t 15 likely that the dastanction we have

referred to was mot always borne in mand by the Tribunal. Thus

there appears to be a real danger that at misdirected itself on

this score. For this reason also, the matter requires

We do not believe that the Tribunal, an epite of its careful review of the evidence and the law, properly instructed ztself on these difficult questions of causation and of conbributiron to incapacity, amd it will be necessary for it to reconsider the matter an the Jlaght of this Court's reasons for judgment. In doing €0 wt showld carefully conmsader the relalionship between its findings and s.31(4) of the Act. In the light of ats findings, 1% cannot be said that the incapacity would not have accurred, or would have occurred at a significantly later time, without the soquelae. Could it be suggesled that the extent of the anecapacity would have been significantly less aif the resnaiuilent's resentment about the aggravation amd scceleration of her 1zllness were mot etill operating? If the answer to this question 15 "No", 16 Lhere any other way an which it could be said thal the ancapacity has been contributed to by the degree of aggravation or acceleration which any resentment cam properly te said to have caused? These are questione for ithe Tribunal ito consider, In doing so, 1% will no doubt keep an mind its fandaing thal total incapacity would by now have supervened ain the absence

July 1984 be set aside; ' 3. that the matier be remitted to the Tribunal for als determination in the laght of the Opinion of the court; 4, that costs of the Original hearing before the Tribunal be determined by the Tribunal, We would reserve liberty to the applicant to mare such

application in relation to costs as it may be advised,

(16) preceding pages are 3 true and accurate copy of the Reasons for Judgment herein of The Hon Mr Justice Sweeney and The Hon Mr Justice Woodward / Assumiate to The Hon Mr Justice Sweeney