Dean v Australian Postal Corporation

First Submission 3 Mr Dean's submissions began by observing that the Tribunal had concluded that nearly all of the medical evidence supported the proposition that his perception that he was being bullied contributed to his mood disorders. This was said to be consistent with another statement made by the Tribunal that Mr Dean's perceptions of his being bullied could be said to have "played some part in the development or progress of his ailment". The burden of the first submission was, I think, to show that the Tribunal had concluded that Mr Dean's employment had contributed to his mood disorders.

Second Submission 4 Mr Dean's submission then focussed on two conclusions by the Tribunal which were said to show internal conflict. The first was a conclusion drawn by it that Mr Dean's claim could not succeed because his "perceptions were the result of a pre-existing mental ailment". The argument was, as I apprehend, that this made no sense in light of the finding to which I refer to in the preceding paragraph.

Third Submission 5 The next allegedly inconsistent conclusion was the statement that there was "insufficient cogent evidence to support that attribution"; that is, the attribution of Mr Dean's mood disorders to his perception of having been bullied. This finding too was submitted to be inconsistent with the Tribunal's earlier conclusion that his employment did contribute to his mood disorders.

Fourth Submission 6 An additional complaint was that the Tribunal had sought to assess whether Mr Dean's perception that he was being bullied was a reasonable one. That mattered because, as will be seen, the authorities suggest that ordinarily the reasonableness of an applicant's perceptions are not a legitimate topic of inquiry.

III - Some Relevant Legal Principles 7 As has already been remarked the inquiry undertaken by the Tribunal was the determination of whether Mr Dean's employment contributed in a material degree to his mood disorders. That question arises from the statutory language of the definition of "disease" in s 4 of the Act (as it then was) and, in particular, its requirement that the ailment be "contributed to in a material degree by the employee's employment". 8 A number of decisions of this Court have examined how the concept of material contribution operates when the condition suffered by an employee springs from an inaccurate or unreliable perception arising in the workplace. 9 The problem arises where, for example, an employee develops a persecution complex as a result of an argument in the workplace. As the complex takes hold the employee becomes convinced - inaccurately - that co-workers are plotting his or her downfall and some nervous disorder from the mental anguish this perception generates then ensues. The view has generally been taken that such a condition can be an ailment which has been "contributed to in a material degree by the employee's employment". Because the scheme of compensation is in essence a no-fault one it has been necessary to discount any assessment of whether the employee's perceptions are rational or reasonable. On the other hand, it has also been necessary to place some outer limits on the extent to which mental unwellness may generate a compensation claim. The particular problem the authorities exhibit a desire to avoid is the case of a person whose nervous condition predates the incident in question but whose symptomology fixes on to the workplace incident and inaccurately attributes the aggravation of the pre-existing condition to that incident. This is a difficult concept to convey. In Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36 at 41 Davies, Beaumont and Burchett JJ (at 41) upheld the approach of the Tribunal in treating the appellant's neurotic belief that his leg pain was attributed to a work incident as "an inert focus for a neurosis determined by other factors". A similar analysis was contemplated in Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 at 195 where Sweeney and Woodward JJ said: There is of course, an important difference between, on the one hand, the sequelae making a sick mind sicker and thus perhaps contributing to incapacity and, on the other, a sick mind latching on to the factors described so that, in one sense, they play a part in the illness, but not in such a way as to add to existing incapacity… we think it is likely that the distinction that we have referred to was not always borne in mind by the Tribunal. 10 However, no special principle arises from these decisions; each is merely an illustration of a particular - albeit unusual - set of facts. The critical question always remains the one posed by the statutory language, namely, whether the ailment "was contributed to in a material degree by the employee's employment". That question is one involving notions of causation which are factual in nature and informed by commonsense. 11 In Wiegand v Comcare (2002) 72 ALD 795 von Doussa J, in the course of making the point that the reasonableness of the perception was irrelevant, said (at 797 [31]): … there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee's perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled. 12 This passage is said to contemplate a three step test as follows: (a) whether the incident occurred; (b) whether it created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others); and (c) whether that perception contributed to, in a material degree, an aggravation of the employee's ailment. 13 This statement is a useful explanation of the analysis which the language of s 4 requires in a case concerned with conditions caused by perceptions generated in the workplace but, of course, it should not be permitted to supplant the language of the statute itself. 14 The questions which then arise on the present appeal are: 1. whether the Tribunal, in fact, concluded that Mr Dean's employment had contributed to his condition to a material degree; 2. whether it was permissible, if it had so concluded, for the Tribunal thereafter to conclude that Mr Dean's condition was the result of a pre-existing mental ailment; 3. whether it was permissible, if it had so concluded, for the Tribunal to conclude that there was insufficient cogent evidence to support the conclusion that his employment had contributed to his condition; and 4. whether the Tribunal erroneously examined the reasonableness of Mr Dean's perceptions.

IV - The Tribunal's Reasons 15 This case turns on what the Tribunal, in fact, determined. All of Mr Dean's arguments ultimately rest on the proposition that the Tribunal had concluded that his employment had contributed to his condition. However, I am unable to accept that this is what the Tribunal in fact held. 16 It is necessary first to outline the questions the Tribunal posed for its own resolution and then the manner in which it went about answering those questions. The Tribunal commenced its reasons by examining, in detail, the evidence given by the various witnesses and the events which had taken place at the Centre. This occupied the first 119 paragraphs of the Tribunal's reasons. 17 At paragraph [120] it commenced its consideration of the legislative provisions and it proceeded to set out the passage from Wiegand 72 ALD at 797 [31] I have quoted from above. The Tribunal underscored the parts setting out the three step analysis in Wiegand 72 ALD 795and, in particular, the third requirement that the perception contribute, in a material degree, to an aggravation of the employee's ailment. That suggests that the Tribunal identified the correct question. The sense that it might have done so is at once amplified by the fact that it then proceeded to set out subject headings corresponding to the three questions in Wiegand 72 ALD 795. It dealt with the first two questions in paragraphs [128] to [134] under the heading: Did an incident or state of affairs actually occur, and create a perception in Mr Dean's mind? 18 These questions it answered favourably to Mr Dean: it accepted that a number of the incidents alleged by him to have taken place with Mr Hodder had actually occurred; further, it accepted that Mr Dean really did think that he was being bullied by Mr Hodder. 19 It then turned at paragraphs [135] to [157] to the third question posed in Wiegand 72 ALD 795 under the heading: Did the perception contribute in a material degree to Mr Dean's ailment? 20 This was, of course, the correct question flowing from the third step in Wiegand 72 ALD 795 and was consistent with its analysis of the law commencing at paragraph [120]. On this part of the case, Mr Dean advanced a positive case that his perception of being bullied had caused him a number of difficulties. These submissions the Tribunal recorded at paragraph [135]. It noted he claimed that the perception of being bullied caused him to have nightmares, to visit his general practitioner, his psychologist and to seek psychiatric treatment. He also attributed other matters to it including his taking of extended leave and an eventual successful application by him for demotion. 21 The Tribunal then proceeded to consider the validity of those claims. It began, in the first instance, with the medical evidence which had been led. It noted, encouragingly enough, that: Nearly all of the medical evidence supported the proposition that the workplace stress - the perceived bullying, was a contributing factor to Mr Dean's condition. 22 In this Court, counsel for Mr Dean placed particular reliance on this statement as establishing that the Tribunal accepted that the medical evidence showed that Mr Dean's perception of bullying was causally connected to his mood disorders. However, it is a mistake to read that sentence out of context. In particular, the succeeding paragraphs show that the Tribunal thought that the medical evidence was compromised by the fact that the history provided by Mr Dean to each of the doctors had omitted significant parts of his medical background. 23 So, for example, the very next sentence after the sentence relied upon reads: None of the doctors, however, including the treating psychiatrist, Dr Mayur, nor the treating psychologist, Ms Keegan, nor any of the medico-legal reporters were apprised of the full history when proffering their views. 24 To give the point some context, the Tribunal noted that Mr Dean had told the doctors that he was well before the workplace incidents of which he complained. However, it transpired that this was not so for the Tribunal found that he had suffered a number of depressions or anxiety related conditions well before being at the Centre where the perception of bullying took place. These had included prior work stress fatigue, time off for stress and fatigue caused by a failed relationship, sensation of flatness and fatigue, low moods, chest pains related to a stressful phone call, sexual dysfunction, a scare related to an apprehension of HIV infection, headaches and low energy and a fear for his father who had had a stroke. 25 The doctors called by Mr Dean at the Tribunal hearing were confronted with this additional history. The Tribunal noted that when the doctors were presented with these additional aspects of Mr Dean's medical history they "were less confident in their expressed views". 26 The Tribunal, perhaps understandably, then cast around for contemporaneous material which might throw light on the question at hand. One such was Mr Dean's contention that his perception of bullying had so affected him that he was unable to do his job. The Tribunal assessed this contention at paragraph [152] and rejected it in these terms: It was submitted on Mr Dean's behalf, effectively, that from January 2006 he had been so oppressed by Mr Hodder that he was unable to do his job. However, on 29 August 2006 he received a bonus, approved by Mr Hodder, for doing his job well. To me this is a clear objective marker that, despite the unpleasantness and the difficulty in meeting Mr Hodder's expectations, the effect of his perceptions did not adversely affect Mr Dean's performance. 27 Counsel for Mr Dean submitted that this was an example of error by the Tribunal for it showed, contrary to the requirements of Wiegand 72 ALD 795, that the Tribunal was assessing the reasonableness of Mr Dean's perceptions. 28 I cannot accept that argument. In its context the Tribunal was considering and rejecting an argument put by Mr Dean that his perception of bullying caused him not to be able to work. Its conclusion was only that his perception did not cause those problems because, whilst accepting that the perception existed, the evidence suggested that the problems caused by it did not. Since the inquiry required by Wiegand 72 ALD 795 was precisely whether the perception contributed in a material degree to Mr Dean's condition it both permits, and indeed requires, an assessment of what the effects of his perceptions were. The Tribunal was well within its rights to reject the fact of those effects, that is, the suggested inability to perform his job. 29 To this point the Tribunal had: 1. noted that the medical evidence did link Mr Dean's condition to his perception of bullying; 2. had discounted the value of that evidence because Mr Dean had failed to inform those doctors of his pre-existing conditions; and 3. had concluded that his perception of bullying had not resulted in him being unable to do his job rejecting, on the facts, his evidence to the contrary. 30 All that reasoning was within Wiegand 72 ALD 795 and all of it took place under a heading which explicitly raised the third limb of the Wiegand 72 ALD 795 analysis. What then was the Tribunal's conclusion? It said this (at [157]): I accept that Mr Dean has a complex psychiatric history which is interwoven with relationship problems with his family. He may have attributed his problems to Mr Hodder and the situation at Peakhurst Delivery Centre, but there is insufficient cogent evidence to support that attribution. 31 Counsel for Mr Dean attacked this conclusion. He submitted that the passage showed that the Tribunal had embarked upon the very inquiry said in Wiegand 72 ALD 795 to be forbidden, namely, an assessment of whether Mr Dean's perception of bullying was a reasonable one. 32 However, I do not read it that way. In light of the Tribunal having asked itself the correct question and then having assessed the evidence in light of that question, I read the conclusionary statement as merely repeating what had gone before, that is, a rejection of the value of the medical evidence and a rejection of the proposition that Mr Dean's perception of being bullied was connected to his symptoms. 33 Counsel for Mr Dean also placed reliance on the following passage in the Tribunal's reasons (at [160]): I am reasonably satisfied that Mr Dean latched onto the incidents in question with his mental ailment, or his personality traits, moulding his perceptions. To that extent, it can be said that they played some part in the development or progress of his ailment. This was said to be consistent with a finding by the Tribunal that the condition was contributed to by the workplace. However, the critical words are "[t]o that extent" which directs attention to the proceeding sentence and its description of Mr Dean latching onto the incidents and his ailment moulding his perceptions. Contrary to the submission made on Mr Dean's behalf this is not to be read as a finding that the ailment was contributed to in the relevant sense by the workplace; rather, it is that it was not. The extent referred to is the limiting negative one. 34 I reject, therefore, the essential premise on which Mr Dean's appeal rests. Once it is accepted that the Tribunal did not find that Mr Dean's employment had contributed to his condition to a material degree the two contradictions upon which the appeal rests ­­­­fall away. It is useful to explain briefly why that is so and also, for completeness, the legal structure on which the argument was put.

V - Mr Dean's Contentions 35 Mr Dean's first legal argument was this. At paragraph [158] the Tribunal reasoned in this way: It appears to me [the Tribunal member] more likely than not that Mr Dean's negative perceptions were the result of a pre-existing mental ailment, or his underlying personality traits, operating in the workplace with Mr Hodder in primary focus. In the words of Davis, Beaumont and Burchett JJ in Kirkpatrick the incidents in the workplace were "an inert focus for a neurosis determined by other factors". 36 But, so the argument ran, it was not useful for the Tribunal to conclude that his perceptions arose from a pre-existing ailment when it had concluded that they arose from actual events. The argument fails at the threshold for the contradiction does not exist, no such finding having been made. Mr Dean put this argument on the basis that the Tribunal had taken into account an irrelevant consideration by applying the reasoning of the Full Court of this Court in Kirkpatrick v Commonwealth of Australia 9 FCR 36. I am not sure that referring to a decision which might be distinguishable is necessarily the taking into account of an irrelevant consideration. However, it is not necessary to decide that question for I do not think that the decision was distinguishable on the facts as they had been found by the Tribunal. On those facts, the Tribunal was quite entitled to conclude that the negative perceptions arose from an earlier condition and that the workplace incidents were "an inert focus for a neurosis determined by other factors". 37 Mr Dean's second argument was that the Tribunal had taken into account another irrelevant consideration by applying the following statement from Australian Telecommunications Commission v Tzikas 5 AAR at 195 (extracted above but set out again in order to aid the argument): There is, of course, an important difference between, on the one hand, the sequelae making a sick mind sicker and thus perhaps contributing to incapacity and, on the other, a sick mind latching on to the factors described so that, in one sense, they play a part in the illness but not in such a way as to add to existing incapacity. 38 The Tribunal, having referred to that passage, then said (at [160]): I am reasonably satisfied that Mr Dean latched onto the incidents in question with his mental ailment, or his personality traits, moulding his perceptions. To that extent, it can be said that they played some part in the development or progress of his ailment. 39 Mr Dean's argument was that this statement was inconsistent with the alleged finding that his ailment was materially contributed to by his employment. However, since I reject that interpretation of the Tribunal's reasons this argument falls away. Again, I would not wish it to be thought that I would necessarily accept, even if that were not so, that the ground of taking into account an irrelevant consideration was made out. 40 Counsel for Mr Dean then put these two arguments in a slightly different way. He contended that the two passages from Kirkpatrick and Tzikas involved, at least on the Tribunal's application, the impermissible importation of a reasonableness element into the second limb of the Wiegand 72 ALD 795test. I do not read those paragraphs that way. They are simply examples of cases where material contribution has been assessed. Neither says anything about the reasonableness or otherwise of perceptions. 41 Mr Dean then alleged that the Tribunal had not stated its findings on all material questions of fact. Section 43(2B) of the Administrative Appeals Tribunal Act 1974 (Cth) provides: Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. 42 Mr Dean submitted that the Tribunal had failed to include in its reasons dealing with material contribution reference to the evidence or other material on which it had relied. 43 This submission is to be rejected for two reasons. First, this is not how s 43(2B) has been repeatedly held to operate. The High Court's decision in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 331-332 [10] per Gleeson CJ, 349 [77] per McHugh, Gummow and Hayne JJ established that provisions like s 43(2B) do not require a decision maker to state findings it should have made but only to state the findings it has made; it is concerned, in other words, with the exposure by decision makers of their subjective reasoning processes. This proposition has been repeatedly applied in this Court: Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259 at [8] per Hill and Allsop JJ, [54]-[55] per Stone J; Repatriation Commission v Cotton (2006) 93 ALD 118 at 128 [42] per Rares J; Gilkinson v Repatriation Commission (2008) 104 ALD 406 at 410 [14] per Rares J; Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 253 ALR 263 at 270 [29] per Perram J; Alexander v Australian Community Pharmacy Authority (2010) 265 ALR 424 at 437 [66] per Bromberg J. 44 Secondly, I do not in any event perceive the alleged deficiency. The point, as I apprehend it, is that one cannot understand how the Tribunal concluded that Mr Dean's ailment was not contributed to in a material degree by his employment when all the medical evidence was to that effect. As I have endeavoured to show above, however, that is not a fair reading of the Tribunal's reasons and ignores, in particular, its conclusion that the medical evidence was to be discounted because of Mr Dean's failure to disclose to the doctors his previous medical history of complaints antedating the events at the Centre. 45 Mr Dean pursued the same argument on the basis that the Tribunal had failed to give adequate reasons. That it had an obligation to do so flowed from s 43(2) of the Administrative Appeals Tribunal Act 1975 which requires the Tribunal to give reasons for its decision and which has been interpreted as requiring the delivery of adequate reasons. It is not necessary to determine whether a failure to provide adequate reasons would be an error of law, although present Full Court authority would suggest that it is: Dornan v Riordan (1990) 24 FCR 564 at 573 per Sweeney, Davies and Burchett JJ. I have previously expressed my agreement with Finkelstein J's criticism of that conclusion in his decision in Comcare v Lees (1997) 151 ALR 647 at 658-659 in Civil Aviation Safety Authority v Central Aviation Pty Ltd 253 ALR at 271 [31], a view to which I adhere. However, there is no doubt that the question of whether a decision maker's reasons are adequate is a "question of law" and it is the presence of such a question which enlivens this Court's jurisdiction. Regardless of these matters, the reasons of the Tribunal were, as I have explained above, adequate.

VI - Disposition 46 The appeal must be dismissed with costs. The questions set out in Mr Dean's notice of appeal were: 2.1 Whether the making of the decision by the Tribunal was an improper exercise of power under s 5(1)(e) of the AD(JR) Act as the Tribunal took into account an irrelevant consideration in the exercise of its power s 5(2)(a), that is, that it took into account whether there was an "inert focus for a neurosis determined by other factors" when determining whether the Applicant's employment materially contributed to his disease. 2.2 Whether the making of the decision by the Tribunal was an improper exercise of power under s 5(1)(e) of the AD(JR) Act as the Tribunal took into account an irrelevant consideration in the exercise of its power s 5(2)(a), that is, that it took into account the authority in Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36, when determining whether the Applicant's employment materially contributed to his disease. 2.3 Whether the making of the decision by the Tribunal was an improper exercise of power under s 5(1)(e) of the AD(JR) Act as the Tribunal took into account an irrelevant consideration in the exercise of its power s 5(2)(a), that is, that it took into account whether the Applicant's employment contributed to his incapacity, when determining whether the Applicant's employment materially contributed to his disease. 2.4 Whether the making of the decision by the Tribunal was an improper exercise of power under s5(1)(e) of the AD(JR) Act as the Tribunal took into account an irrelevant consideration in the exercise of its power s 5(2)(a), that is, that it took into account the authority in Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173, when determining whether the Applicant's employment materially contributed to his disease. 47 Curiously, there is no obligation cast upon this Court by s 44 of the Administrative Appeals Tribunal Act 1975 to answer the questions which are posed on such an appeal. Nevertheless, I would answer the question as follows: 2.1 No. 2.2 No. 2.3 No. 2.4 No. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.