Compensation, (Commonwealth Government Employees) Act 1971 (Cth)

Safety, Rehabilitation and Compensation Act 1988, ss 4, 14, 54(2)(b), 60, 62, 64

Favelle Mort Limited v Murray [1976] HCA 13; (1976) 133 CLR 580 followed

Federal Broom Co. Pty Ltd v Semlich [1964] HCA 34; (1964) 110 CLR 626 followed

Migge v Wormald Bros Industries Limited [1972] 2 NSWLR 29 applied

Sokanos v Commonwealth of Australia (unreported, von Doussa J, 16 August 1991) discussed

Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 97 ALR 321 applied

Decision The decision under review, namely the determination of the Independent Review Officer made on 4 April 1997, be set aside and in lieu thereof a determination be substituted that Comcare is liable to pay compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 in respect of an injury suffered by Dr Carson, namely depression or an aggravation of depression, on 24 January 1995 which caused incapacity for work.

Order that the respondent pay the applicant's costs of these proceedings.

S108 of 1997

1. The applicant, Dr Carson, seeks a review of the decision of an Independent Review Officer given on 4 April 1997 that rejected Dr Carson's claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). Dr Carson had alleged that he suffered stress and depression which he attributed to victimisation and harassment by his superiors in his workplace from May 1993 until he left work on 24 January 1995. The application for review comes to the Administrative Appeals Tribunal pursuant to s 64 of the Act as the decision of the Independent Review Officer is a "reviewable decision": see ss 60 and 62 of the Act.

2. In addition to the material documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal has received:

* a Statement of Agreed Facts prepared by the respondent and acknowledged as correct by Dr Carson's solicitors.

* oral evidence from Dr Carson, Mr David H Fogg, Dr Victor C Sobolewski, and two psychiatrists, Dr K E Le Page and Professor R D Goldney.

* medical and other reports and a summary tendered by the parties as exhibits - two exhibits by Dr Carson and six exhibits by Comcare.

The Independent Review Officer at the time of her determination did not have the benefit of a recent and detailed opinion from Dr Le Page.

3. The claim for compensation now under consideration was lodged by Dr Carson on 8 February 1995. He alleged that he had suffered "stress" at work due to "continuous harassment by supervisor, Mr D Fogg". Medical certificates lodged in support of the claim for compensation (as required by s 54(2)(b) of the Act) expressed the opinion of Dr Carson's general practitioner that Dr Carson was suffering "stress = depression" claimed to be caused by "incidents at work", "work situation" and "work". On 7 June 1995 Comcare determined to disallow the claim on the ground that its inquiries did not substantiate Dr Carson's allegation that he had been subject to harassment by Mr Fogg. Dr Carson sought a review of that determination. The Independent Review Officer in her reasons for affirming the determination dated 7 June 1995 canvassed a number of complaints raised by Mr Fogg about his work situation. The Review Officer concluded:

"None of these reports indicate that you were dealt with unfairly or differently from other Research Officers. I find no evidence of failure by your employer to adhere to correct procedures...I have considered your contentions regarding Mr Fogg but can find no evidence that your employer acted inappropriately or unfairly in its dealings with you, particularly since 1993, the period on which you base your claim for compensation."

The Review Officer referred to the Federal Court decision of Sokanos v Commonwealth of Australia (unreported, von Doussa J, 16 August 1991) a copy of which was sent to Dr Carson with the Review Officer's reasons, the Review Officer believed that the decision had similarities with Dr Carson's case because the evidence in the earlier decision indicated that Mr Sokanos' perception of his workplace was influenced by a paranoid personality disorder. The Review Officer concluded her reasons by saying:

"I find your situation similar in many ways to that of Mr Sokanos and am persuaded by the medical opinion provided by Professor Goldney, that your underlying paranoid personality and the injuries suffered as a result of a car accident in 1982 have caused and continued to materially contribute to your depressive illness. I find that your employment was not a materially contributing factor in any depressive illness you have suffered since 1993. Accordingly I have affirmed the determination dated 7 June 1995, that rejected your claim for compensation in respect of depression which you attribute to victimisation and harassment in the workplace since May 1993."

4. It is convenient to summarise the factual material by reference to the Statement of Agreed Facts. Those admitted facts are supplemented by additional information from the evidence, inserted parenthetically in italics. The Statement of Agreed Facts, with additions, is as follows:

(1) The applicant was born on 4 February 1947, and joined the Defence Scientific Research Centre in 1978 initially as a Clerk but transferred to the position of a Research Scientist in which field he has worked since. (He was awarded a PhD by the University of Adelaide in 1974).

(2) In July 1981 there was an advertisement for the position of Senior Research Scientist and the applicant was unsuccessful in obtaining the position and appealed against the promotion of the successful party Dr Rye.

(3) In June 1982 the applicant was assessed and found not to be eligible for classification as a Senior Research Scientist and as such his appeal was unsuccessful, on the basis that he was not qualified for the promotion he sought.

(4) In June 1982, the applicant suffered a severe motor vehicle accident with some head injury including amnesia and a blackout as well as serious physical injuries including the loss of his spleen, fracture of left forearm and 7 ribs on the left side. He spent 18 days in the Royal Adelaide Hospital. (In the latter half of 1983 the applicant consulted Dr Tottman, a psychiatrist in relation to symptoms of depression on a number of occasions).

(5) After returning to work, in mid 1984, after several months writing technical publications the Applicant refused to continue work on a particular project and was counselled and taken out of the group that he was then working. He experienced difficulties with his associates.

(6) As a result of this motor vehicle accident attempts were made for the Applicant to be retired on account of invalidity, and he was examined by Robert J Hall, Neurologist, Robert D Goldney, Psychiatrist, Mr M W Reid, Clinical Neuropsychologist and others.

(7) In the report of 10 May 1985 by Robert D Goldney, Psychiatrist, Dr Goldney noted the Applicant's "continual blaming of others for interpersonal difficulties which he may have" and indicated his belief that "at the very least he has marked paranoid personality and may, at times be out of touch with the reality of the situation". He recommended a very strong case could be made for immediate retirement on incapacity.

(Dr Goldney considered Dr Carson was appreciably disabled at that time, and attributed his disability to three contributing factors:

"Firstly, he has a rather sensitive, guarded personality, in fact some might say that he adopted a paranoid stance towards the world...

The second contributing factor is, of course, the motor vehicle accident...

A third issue which is important is a significant component of depression...")

(8) Dr Goldney indicated that if suitable work were available then it could be better for the Applicant psychologically to remain employed. He did indicate his belief that there may well be "continuing difficulties".

(In a report dated 12 June 1985, Dr M W Reid, a senior clinical neuropsychologist, reported as follows:

"Considering his initial performance and his improved performance now, I believe that this improvement has been due to an organic improvement and that there is now no indication of organic brain damage affecting intellect. On the other hand he appeared to have greater difficulty in coping psychologically with the stresses at work. This may, at least partially, be secondary to the car accident in that his injuries would have reduced his ability to cope with his work conditions he did not enjoy even before the accident. His multiple anxiety related symptoms and his pre-occupation with thoughts about work, raises the possibility that he has developed a mild paranoid reaction as part of his attempts to cope."

(In a report dated 22 August 1985 Dr Robert J Hall, a neurologist, reported that:

"My impression is that his symptoms are almost certainly due to chronic tension and depression and more than likely his feelings of dysequilibrium and dizziness have a psychogenic basis.)

(9) A claim for compensation dated 11 July 1985 for work related stress which became apparent in March 1985 but was also present before, was made by the Applicant and a Determination of 22 August 1986 determined that there was liability for aggravation of depressive illness. By a further Determination dated 20 October 1986 liability was backdated till 20 March 1985.

(10) Further medical examinations were conducted in 1986 and Dr Goldney in a report dated 5 February 1986 indicated "...I am firmly of the view that his psychological difficulties are contributing to the work problems..." and that he "still has a rather sensitive and indeed paranoid personality by which I mean he is particularly sensitive to any interpersonal reactions...".

(In a report dated 30 April 1986 Dr Goldney confirmed his earlier opinion that Dr Carson suffered three conditions. The paranoid personality disorder and the motor accident were unrelated to his employment. However, Dr Goldney said:

"I believe that on the balance of probabilities, his feelings of depression were certainly attributable to his employment, and the contributing factors as perceived by him were his difficulty in relationships with his superior officers. As noted above, these difficulties are very much also related to his lifelong paranoid personality traits and there is obviously an intermingling of the paranoid personality and depressive symptoms, but it cannot be denied that his perception of interpersonal relations would certainly have contributed to his depressive condition.")

(11) The Applicant was absent from work for a period of approximately 6 months and on 4 March 1986, returned to work because the interpersonality conflict had been reduced by a change of work area.

(12) In 1992/1993, the Performance Management Scheme at DSTO was commenced. The applicant was rated on a scale of 1 to 5 and was rated a 3.

(The Performance Management Scheme was introduced as part of the RS Structural Efficiency Principle pay case in late 1992. The scale of ratings was:

1. Unsatisfactory (leading immediately to formal inefficiency procedures).

2. Marginal (leading to a remedial period of 3 to 6 months, at the end of which the officer is rated at least Fully Effective, otherwise immediate inefficiency procedures).

The scheme provided for two levels of dispute settlement, the first a management review conducted by a senior line manager, and the second, if the officer were still aggrieved, a review by an independent panel of two senior officers plus a union representative if requested)

(13) In 1993 Mr Fogg commenced as supervisor for the Applicant and there were clashes between Mr Fogg and the Applicant and the Applicant maintains that as a result of this criticism of his approach to a particular task he began to be victimised.

(14) In March 1993 a new supervisor for the Performance Management Scheme was appointed, a Mr Hood and there was some difficulty in settling the Applicant's Performance Management Scheme agreement.

(15) In April 1993, a formal re-moderation of the Applicant's rating in the Performance Management Scheme was made reducing him to a 2. This led to the implementation of an inefficiency process. The Applicant was found to be inefficient by that process of which Mr Fogg was the sole supervisor and assessor.

(When Dr Carson was advised of the new rating of 2, he had the assessment referred to the first level of dispute resolution. The outcome of the review was adverse to him, and he sought a second level review which was also decided against him.)

(16) A report by Psychologist Enza Belperio identifies the Applicant's belief in respect of victimisation by Mr Fogg from 1993 and indicates his belief that the inefficiency process would not be a fair one.

(17) In February 1994, the Applicant submitted a research paper for vetting, part of the publication process and this was stopped by Mr Fogg in March 1994 whilst the Applicant was on leave.

(18) By a claim dated 24 March 1994, the Applicant claimed for eye irritation. Liability was not initially determined in favour of the Applicant and he took an application in the AAT to review the decision denying liability. Liability was determined by Comcare before the matter was progressed to hearing.

(19) In March 1994, Mr Fogg became the Head of the Simulation Assessment Group at DSTO.

(20) In May 1994, the Applicant took a Regulation 83 Appeal against Mr Fogg stopping the publication of the research paper and viewed the outcome as unsatisfactory and then lodged an application with the MPRA [Merits Protection Review Agency] whose findings agreed with the internal departmental decision.

(21) The Applicant indicated that he was not happy with the method or process followed or the capability of the MPRA Officer. He indicated "there was confession from Fogg that he erred in his claims of Thompson's opinion".

(22) On 4 July 1994, the report resulting from the internal investigation into the Applicant's grievances was handed down. There was no finding of victimisation by Mr Fogg. A transfer of the Applicant to another area was recommended.

(Notwithstanding the outcome of the investigation, Dr Carson continued to feel that the actions of Mr Fogg were completely unjustified and constituted an act of victimisation. Publication of a paper was important to him. He had been told that he had insufficient publications. Further publications were necessary to establish his efficiency. He considered Mr Fogg had deliberately prevented him achieving a publication to support a finding that he was inefficient. Dr Carson gave evidence before the Tribunal that he felt very angry, perplexed, worried and helpless by the rejection of his grievance.)

(23) As a consequence of the poor rating in the Performance Management Scheme, an inefficiency trial was put in place for the applicant which took place over 5 months. Mr Fogg was the supervisor as well as the assessor. At the end of the process the Applicant was found to be inefficient.

(Mr Fogg gave evidence before the Tribunal that the task assigned to Dr Carson to establish efficiency was not fully or properly performed. This led on to the implementation of formal inefficiency procedures referred to in paras (27) and (28) below.)

(24) The MPRA Report on the Applicant's grievance was handed down on 21 September 1994. It found that there was no victimisation by Mr Fogg but that there was a "difference in academic opinion".

(This report was the result of the application referred to in para (20) above and followed a review of the outcome of the internal investigation referred to in paras (20) and (22) above.)

(25) On 4 October 1994, the formal report by Mr Fogg on the inefficiency trial was handed down.

(26) On 14 October 1994, the report was handed down in respect of the investigation into the Applicant's grievance regarding his rating in the 1993/1994 Performance Management Scheme.

(27) On 12 December 1994, the rating of 1 for the Performance Management Scheme 1993/1994 Year was upheld by the Chief Scientist and this was notified to the Applicant on 20 December 1994.

(28) By letter dated 12 January 1995, the Applicant was placed under a 3-months work performance assessment and the assessing officer was given as Dr V Sobolewski.

(The assessment was to be carried out over the period 12 January 1995 to 11 April 1995. Dr Sobolewski came from a section both geographically and functionally removed from that in which Dr Carson worked, and there is no reason to doubt his evidence before the Tribunal that he approached the task assigned to him in a completely fair-minded and dispassionate way. However, Dr Carson was highly suspicious of the process and felt threatened by it as he perceived Mr Fogg to have a critical role in the implementation of the procedure. He held this view as the "Method of and Procedures for the Assessment of Work Performance" laid down by Dr Sobolewski specified Mr Fogg as the "assessee's supervisor; originator of work assignment for assessing; and assignment (technical) assessor/referee". The assignment which the procedure required Dr Carson to perform satisfactorily was set by Mr Fogg, and the written report which Dr Carson was to prepare was to be delivered to Mr Fogg on or before 11 April 1995. Moreover, the report was to be assessed in the first instance by Mr Fogg, and the procedure provided for Dr Sobolewski, as the assessing officer, to obtain documents, records and comments from Mr Fogg.)

5. The evidence establishes that if Dr Carson failed the inefficiency procedure test he would be dismissed. The Tribunal does not doubt Dr Carson's evidence that he felt threatened by this procedure. He said that he again felt helpless and trapped by the situation in which he found himself. He felt that the victimisation and harassment which he had already suffered at the hands of Mr Fogg would carry through into the assessment process. Whether that perception was justified or not, that is how he felt about it. He gave evidence that his eating pattern was affected and his sleep seriously disturbed. He suffered an acid stomach, headaches, and difficulty concentrating. He attempted the task set by Dr Sobolewski but on 24 January 1995 he suffered a visual disturbance and could not see his papers. He left work and consulted his general practitioner who referred him to Dr Le Page.

6. Dr Carson has not returned to work. He continues to suffer acid stomach, headaches, non-productive thoughts and a range of symptoms which Dr Le Page attributes to depression. Dr Le Page considers that Dr Carson is suffering a reactive anxiety depressive state brought about by his work situation. He considers the long term prognosis is not hopeful.

7. Plainly at all relevant times Dr Carson has been an "employee" for the purposes of the Act. It is not disputed that on 24 January 1995 Dr Carson became incapacitated for work. The issue between the parties concerns the cause of that incapacity. The respondent disputes that it is causally related to Dr Carson's employment. The respondent contends that the incapacity was the result of a paranoid personality disorder and/or a paranoid delusional condition suffered by Dr Carson which have not been either caused or contributed to or aggravated by the applicant's employment with DSTO.

8. The question for decision by the Tribunal concerns the liability of the respondent to pay compensation in respect of the incapacity which commenced on 24 January 1995. The Tribunal is not concerned with the duration or extent of that incapacity.

9. Section 14 of the Act provides that Comcare is liable to pay compensation in accordance with the Act "in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment".

10. Section 4 provides a definition of "injury", namely:

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

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

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

11. Section 4 also provides a definition of "disease", namely:

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

12. Section 4 also contains the following further definition:

"`ailment' means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)."

13. Dr Carson alleges that on 24 January 1995 he was suffering a reactive anxiety depressive state. That is the diagnosis attributed to Dr Carson's condition by Dr Le Page. Dr Le Page gave evidence that the anxiety depressive state was reactive to the events which had occurred at work in the three years leading up to the formal inefficiency procedures implemented in January 1995, and to the threatening atmosphere which Dr Carson then perceived to exist in his work situation, in particular the threat of dismissal which he felt blocked his potential to realise his intellectual attributes as a scientist.

14. The condition diagnosed by Dr Le Page, (and also the paranoid personality diagnosed by Professor Goldney, as he now is) constitutes an "ailment" within the meaning of the Act. The condition diagnosed by Dr Le Page could therefore be viewed either as a disease being an ailment or an aggravation thereof that was contributed to in a material degree by the employee's employment, as an injury (other than a disease) being a mental injury arising out of or in the course of the employee's employment, or as an aggravation of a mental injury (other than a disease) being an aggravation that arose out of or in the course of that employment.

15. In Favelle Mort Limited v Murray [1976] HCA 13; (1976) 133 CLR 580 at 598 Mason J said in relation to the definition of "injury" that appeared in s 6 of the Workers Compensation Act 1926 (NSW) that the requirement suggested by the words "to which the employment was a contributing factor" was not as stringent as that suggested by the concept "arising out of" the employment. His Honour said that all that needs to be shown is that the employment contributes to the injury, not that it is the real, the effective or the proximate cause of the injury. Given the definitions of "injury" and "disease" in the Act, it is at the least arguable that the requirement that the employment "contributed to in a material degree" an ailment or aggravation is a less stringent requirement than that an injury or an aggravation of an injury arose out of the employment. The significance of the addition of the words "in a material degree" to the requirement that the employment contributes to the ailment was considered by a Full Court of the Federal Court in Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 97 ALR 321. Although that decision concerned the definition of disease in the Compensation, (Commonwealth Government Employees) Act 1971 (Cth) it follows from the decision that employment will contribute in a material degree to an ailment or an aggravation of an ailment if it is established that features of the employment in fact and in truth contributed to the condition complained of. All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, or its aggravation. "They must, in truth, be part of the cause. If they are not, then they do not `contribute'" (at 328).

16. As Dr Carson is entitled to succeed if on 24 January 1995 he suffered an injury, namely a disease being an ailment or an aggravation of an ailment that was contributed to in a material degree by his employment, that is the question which the Tribunal should address.

17. The legal concept of causation when applied in the field of personal injury, including workers compensation, takes the person injured as he or she is found, with all dispositions and susceptibilities whatever they may be: see Mason JA as he then was in Migge v Wormald Bros Industries Limited [1972] 2 NSWLR 29 at 44 whose judgment was upheld by the High Court: (1973) 47 ALJR 236. An example, helpful in this case, is to be found in Federal Broom Co Pty Ltd v Semlich [1964] HCA 34; (1964) 110 CLR 626. The facts of that case are succinctly summarised in a headnote: a worker with a history of functional mental illness predisposing her to delusions sustained a muscular strain in the course of her work. She sought workers compensation in respect of a continuing incapacity resulting from a delusional condition following upon the physical injury. At 641 Windeyer J said:

"I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of `the employment' as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed. In this case it was said that the employment was a contributing factor in the worsening of the disease, because the applicant focussed her delusions of pain and discomfort upon her right side which she believed she had hurt when lifting a tea chest in the course of her work. A minor physical strain she magnified in her irrational imagination into a serious and continuing derangement of her internal organs. The incident directed, or re-directed her hypochondriacal attention to her abdominal muscles...

The question involved is difficult. Can the event to which a disordered mind irrationally attributes physical suffering, that is real to the patient but delusional, be properly called a contributing factor? Ordinary concepts of cause and consequence are perhaps not applicable. Yet it seems to me that the incident which precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a factor contributing to it. It was said that in any event she might have broken down sooner or later: that some other incident might have provided a focus for her delusions. But it was this event at work that in fact did so."

18. It is appropriate now to turn to the oral evidence of the two psychiatrists, Dr Le Page upon whom Dr Carson relied, and Professor Goldney upon whom the respondent relied.

19. Dr Le Page first saw Dr Carson on 7 February 1995. He presented as a passive, inhibited and depressed person. Dr Le Page considered he was suffering from anxiety and depression which Dr Carson attributed to work related problems of frustration, feeling that he was going around in circles and that he felt that the inefficiency procedure almost guaranteed his dismissal. Dr Le Page interviewed Dr Carson again on 21 April 1998 for the purposes of the proceedings before the Tribunal. He found only marginal change since his consultations in early 1995, the change being that he now seemed somewhat less depressed, but his stress level was much higher. Dr Le Page confirmed his ongoing diagnosis as a reactive anxiety depressive state, reactive to the stresses which Dr Carson had perceived to exist in his workplace prior to January 1995. In answer to a question in cross-examination Dr Le Page said:

"Because in this case in looking to what has happened the prime question of course is why did Dr Carson in January-February of 1995 react so adversely to the performance management schemes and that final test that he was being asked to do?---Well, the answer to that is simple from his point of view in that the reason for the greater part of his being, his intellectual attributes and his creative capacities and potential were being challenged, threatened and in his opinion actively destroyed, that is why he reacted in that way."

Dr Le Page did not agree with the diagnosis of paranoid personality disorder made by Professor Goldney. He said he found that Dr Carson had very strong feelings of persecution, but he would not go so far as to contribute a diagnosis of paranoid personality disorder. It was put to Dr Le Page in cross-examination that on numerous occasions when Dr Carson had pursued grievance procedures, or his complaints had been investigated, they had on every instance been found to be unsubstantiated. He was asked:

"Does not that suggest that it is something in the way - in the make up of Dr Carson and the way he is responding to others which is at the source of the difficulty?---Well, no it does not. I mean, I have said that he is a sensitive person so he would be on the look out for real or apparent rejection but you cannot pass judgment about any of those situations you are making reference to unless you are actually there at that time analysing the ingredients and analysing what is happening because you are trying to make a detached judgment removed in time, say from 17 years ago, trying to assert that the fault lies with him. Now, nobody can do that unless you can actually analyse the ingredients of what is happening between him and other people and be aware of other people's personalities. His personality and what is happening between the two of them. The given, in his case, is he is a sensitive person. He is somewhat shy and inhibited. He is not a bulldozer. He would not react well to anybody who was over assertive or aggressive or had a tendency to shut him out because he lacks that resilience and that is not necessarily being paranoid. It is just that he is sensitive."

20. Professor Goldney re-examined Dr Carson on 11 February 1997. His conclusions remained basically similar to those outlined in earlier reports. He considered that he still had some symptoms of depression although not as severe as they had been 18 months before.

21. Professor Goldney confirmed a number of medical reports prepared by him, parts of which have already been referred to. After Dr Carson left work, he was examined on 21 June and again on 21 July 1995 by Professor Goldney. At those examinations Dr Carson's mood was that of a depressed person. He appeared depressed and he complained of a range of symptoms indicative of depression - sleep disturbance, impaired concentration, ruminations of intrusive thoughts quite typical of depression. Professor Goldney considered there was still some residual features of the 1982 head injury. He confirmed his diagnosis of a long standing paranoid personality, and he again confirmed the third component which he earlier identified of a depressive condition superimposed on the previous two conditions. In relation to the depressive condition he noted in a report written at that time:

"...when a person becomes depressed, any cognitive disturbance and paranoid ideation can become exacerbated by the very fact that the person is depressed."

In his oral evidence Professor Goldney explained this observation. He said:

"When people are depressed their thoughts slow down, their motor activity slows down and if your thinking slows down, you are more likely to make errors of judgment in terms of how you think other people are relating to you. So if you have some paranoid ideation to start with, it is going to be even more pronounced. There is also an interesting relationship between depression and organic memory disturbance and it is not only because a person's thoughts slow down that they are sometimes more destructible and talk about a memory disturbance when depressed, there really does seem to be some biochemical association between early dementia and depression. The two are very often correlated....Now, before you make a judgment on how paranoid they are or how demented they may be, you have got to treat the depression. So you treat the depression and see what you are left with. Very often if you treat the depression, the memory disturbance seems to go because the person's thoughts quicken up, they are more cheerful, more alert, they comprehend things better and also they don't get things out of perspective so they are no longer paranoid. So there is this sort of subtle interaction between someone who is paranoid, memory disturbance and depression. We have got it all in this particular man."

22. The following passages occur in the cross-examination of Professor Goldney:

"You are aware, I think, that Dr Le Page diagnoses a reactive depression and reactive anxiety?---Yes.

And he indicates that in his view that his explanation for Dr Carson's problems in 1995 and thereafter. Is that a view that you share or do you have a different view about that?---Well, I don't think he's taken it far enough. I mean, I agree that he's been depressed but one has to look at why he's been depressed and fundamentally it's because his view of the world isn't shared by his colleagues and superiors at work he's become depressed so unless one incorporates that paranoid personality issue - diagnosis as well - one is missing the point so to speak ....

Lastly, Doctor, I think you are aware that when Dr Carson left his place of employment in January 1995 he was about two weeks - a little bit short of two weeks of commencing on an assignment which was a test to see if he was producing work which was of sufficient standard and he's told his Honour that he left, that he was stressed and he was of the view that he was not going to pass that test given the history of things. Now, from a psychiatric point of view is there an explanation for his behaving in that way at that time?---He may have feared that he was going to fail the test. He may have believed that he was being set up to fail. He may have had paranoid beliefs about the nature of the test. Perhaps the person who was - in fact I think he referred to the person who ultimately had the decision about that was someone with whom he had had a run in in the past so he viewed the test as not being fair and he perceived the test as not being fair. So all those reasons are very consistent with his paranoid personality. Now, he may also have been sufficiently depressed as well to have felt that he wasn't able to cope with the test at that time but even if that were the case that depression would have been secondary to his, you know, the paranoid ideation. So predominantly I think it's consistent with what he has presented over the years.

Now, the depression that he suffers from, I think you said, is a result of his pre-existing paranoid personality disorder, taken together with events at work when it became clear that his superiors did not agree with his own view of his worth?---Yes, yes.

Now, do you agree that he is still depressed?---I last saw him a year ago and he was depressed, but certainly not as depressed as the time before.

Am I right in thinking that you agree with Dr Le Page that the depression that he suffered from at the times you have seen him, results from his experiences at DSTO in the last while that he was there, but that you would add in the effect of the paranoid personality disorder as being the originating cause for the depression?---Yes, but for that there's no reason why he would get depressed, yeah.

Did you say that accepting that during the last two years that he was there, he had been given consistently unsatisfactory ratings on an efficiency assessment exercise that the DSTO had operating - the significance of which was that he was, in essence, on trial for a six month period to see whether he could come up to an efficiency standard - and if he failed to come up to that efficiency standard, he would be dismissed from the DSTO. Did you understand that that was the significance of the events that were happening to him in the last couple of years that he was there?---Yes, and we've got the situation where somebody who perceives that they are an excellent scientist, who has ideas which are original and good and, you know, are not shared by his others, and here he is having to do these tests to see whether he comes up to standard. So, again, to have to do those teses is very threatening for somebody who is paranoid and who has rather a grandiose view of their own worth. I mean, it's a direct challenging of that.

HIS HONOUR: They would be rather threatening events to someone who just was slightly lacking in the standard of competence that was required of the particular job, would they not?---They certainly would. They certainly would.

MR MARTIN: And the reason for them to become depressed?---Yes, and if you have a paranoid personality it's even worse."

23. The medical evidence establishes that Dr Carson was markedly depressed in and about January 1995. He had suffered depression in the period from 1983 to 1986. It may have continued, although at a reduced level, in the intervening period leading up to 1995. The medical evidence is scant in respect of this period. It is not essential to determine whether the depression abated completely during this time or continued at a low level. Either way, depression had returned by January 1995. Dr Le Page attributes the condition he diagnosed in February 1995 to the work environment and in particular to the ongoing conflict which Dr Carson perceived he had with Mr Fogg, and to his perception that the inefficiency procedure was designed to bring about his dismissal. Professor Goldney's evidence does not disagree that Dr Carson's depression was related to his perception of his work situation, but he adds the further consideration that the perceptions were due to his paranoid personality disorder rather than to the reality of the workplace. Even on that view, the events at work, and in particular the inefficiency procedures contributed in a material degree to the ailment. As Professor Goldney observed in his cross-examination, the formal inefficiency procedures, coupled with the prospect of dismissal upon failure, would be threatening to anybody, and even more threatening and likely to precipitate depression in someone who had a paranoid personality.

24. It is not suggested by the respondent that the proviso to the definition of injury applies so as to exclude the ailment suffered by Dr Carson from the definition of "injury". The inefficiency procedure did not constitute disciplinary action, nor did it relate to a failure by Dr Carson to obtain a promotion, transfer, or benefit in connection with his employment. On the contrary, it was a procedure undertaken to ascertain if he should be dismissed from his employment on the ground that he was not able to effectively discharge the requirements of his position.

25. The Tribunal finds that the evidence establishes a clear case of Dr Carson suffering injury, namely a disease constituted by an ailment or an aggravation of an ailment that was contributed to in a material degree, which led to incapacity on 24 January 1995.

26. It is not necessary to support that conclusion to investigate the objective reality of the complaints of harassment and victimisation made by Dr Carson. Indeed, even if it were possible to satisfactorily reach conclusions on those issues after a thorough investigation of the allegations and counter allegations, that would not necessarily answer the important points made by Dr Le Page, namely that it is possible to have conflicts between a sensitive person on the one hand and assertive persons on the other hand which give rise to feelings of persecution by the sensitive person which do not justify a diagnosis of a paranoid personality disorder.

27. The reliance placed by the Independent Review Officer on the decision in Sokanos v The Commonwealth was misplaced. That decision concerned an appeal on questions of law to the Federal Court. It was argued on the appellant's behalf that the Tribunal erred in law in concluding that it should rely upon the opinions of two medical witnesses who diagnosed Mr Sokanos as suffering from a schizophrenic condition which emerged and developed to the point that it caused incapacity independently of the influence of various events recounted by Mr Sokanos at his workplace. The Court held that the Tribunal had not fallen into error. On the medical opinions accepted by the Tribunal, the alleged situations of stress asserted Mr Sokanos would not have contributed to his disease or to an aggravation of his disease even if those events were as he asserted them to be. The case is therefore quite unlike the present one.

28. For these reasons the Tribunal decides that the decision under review, namely the determination of the Independent Review Officer made on 4 April 1997, be set aside and in lieu thereof a determination be substituted that Comcare is liable to pay compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 in respect of an injury suffered by Dr Carson, namely depression or an aggravation of depression, on 24 January 1995 which caused incapacity for work. Pursuant to s 67(8) of the Administrative Appeals Tribunal Act it is ordered that Dr Carson's costs of these proceedings be paid by the respondent.

I certify that this and the 19 preceding pages are a true copy of the decision and reasons for decision herein of the Honourable Justice von Doussa

Signed: .....................................................

Dates of hearing: 4, 5, 6, 7 May 1998 Date of Decision: 3 August 1998

Solicitor for the Respondent: Australian Government Solicitor