Fitzwarryne v Comcare

The Factual Setting and the Tribunal's Conclusions 3 These can be outlined shortly. (1) Having briefly outlined the circumstances of Mr Fitzwarryne's public sector employment and the travails he endured, the Tribunal accepted that he had a basis in fact for believing he was being harassed and discriminated against in his employment. I need not here recount the circumstances that produced that belief. (2) On 15 May 1995, Mr Fitzwarryne made a compensation claim on Comcare, the present respondent, for an injury which he described as "work induced stress causing depression and suicidal conditions" that he claims he suffered on and from February 1995. (3) A considerable body of medical evidence was provided as to Mr Fitzwarryne's condition. It was essentially of a psychiatric character. The Tribunal's treatment of it, which betrays its character and burden, can be set out in full. "18. We turn now to the medical evidence. Dr Richards is the applicant's general practitioner. He completed a medical certificate on 27 March 1995 (T8) certifying the applicant's attendance for consultation on 27 March 1995 and that he remained unfit for work until 1 May 1995 due to work related stress. Dr Richard's [sic] locum had previously issued a medical certificate for 'work related stress/depression' covering the period 20 February 1995 to 31 March 1995 (T7). 19. The applicant, however, had been absent from his place of work from 1 September 1994 to 24 October 1994 due to an injury to his leg and from 25 October 1994 to 17 February 1995 on recreation leave. The applicant continued on sick leave after 1 May 1995. 20. Dr Richards prepared a report for the applicant dated 27 March 1995 (A60). After reviewing the applicant's attendances from 1986 Dr Richards noted the attendance on the locum on 20 February 1995 and the clinical note indicating 'acute depression' which was diagnosed as significant depression with elevated blood pressure. 21. Dr Richards expressed the opinion that the applicant had developed a severe reactive depression in response to stress at work related to management issues and characterised by headaches, insomnia, loss of self esteem and hypertension. 22. Document T26 is a copy of a report by a Commonwealth Medical Officer ('CMO'), Dr Rohan, dated 22 September 1995. That report includes the following paragraph recording Dr Rohan's discussion with Dr Richards: 'Dr Richards said Mr Fitzwarryne had suffered from stress for several years. Following specialist psychiatric assessment it seems that Mr Fitzwarryne does not suffer from a psychiatric illness as such. However he has suffered from psychological stress related to his work/legal problems and apparent unfair treatment. His self-esteem had been much diminished. He seemed to have hit a career wall. He wished to have meaningful work to do although being quite apprehensive about any return to work. He seemed unlikely now to be able to return to effective work in the same department, although he should eventually be competent to work in another position in the Public Service.' Dr Rohan recommended that the applicant be re-deployed to another department with rehabilitation support. It is not clear to us as to why the CMO's recommendation has not been put into effect. 23. Exhibit 2 includes a copy of a report by Dr Knox, consultant psychiatrist, dated 24 May 1995 and addressed to Dr Richards. Dr Knox expressed the opinion that he did not believe there was established depression but some element of mood disturbance secondary to his stresses was present. Dr Knox attributed the stresses to the uncertainty of the applicant's situation referring in particular to pending court proceedings. 24. Exhibit 1 is a medical report by Dr Skinner, consultant psychiatrist, dated 26 April 1996 addressed to the Australian Government Solicitor. Dr Skinner examined the applicant for two hours on 19 April 1996. She sets out a history not inconsistent with the evidence before this Tribunal. Dr Skinner found that the applicant had suffered an episode of major depression in 1994-95 and proposed a graduated return to work because of the length of his absence from work. She found the applicant fit to return to work. 25. Dr Skinner makes it clear in her report that the cause of the applicant's depression condition was his own perceptions in relation to his place of work. She agreed with Dr Rohan to the effect that the applicant does not suffer from a psychiatric illness as such and there was no incapacity for work. However, Dr Skinner was of the view that a return to work at ATSIC was not feasible because of the circumstances existing there. There would need to be a significant change in those circumstances otherwise the symptoms would recur. 26. Dr Skinner's oral evidence confirmed the views expressed in her report. She also agreed with Dr Knox's report which describes the applicant's condition in the first half of 1995. 27. There is no doubt in our minds, and we so find, that the applicant suffered stress attributable to the situation which had developed at ATSIC. We must be satisfied that the applicant suffered an injury, as defined, and that injury resulted in an incapacity for work. 28. The medical evidence of Dr Knox and Dr Skinner, in particular, establishes to our satisfaction that the applicant does not suffer from a psychiatric illness. It follows that there is no injury as defined (Comcare v Mooi (1996) 137 ALR 690)." (4) There are several additional matters relating to Mr Fitzwarryne's condition and the medical evidence to which reference should be made. First, Mr Fitzwarryne in his evidence to the Tribunal (it took the form of a statement) described his condition in the following way: "I have major depressive symptoms which significantly interfere with social and recreational functions. The continuing symptoms include problems such as insomnia, severe headaches and fatigue, with psychological problems such as anxiety, loss of concentration and self-confidence." Secondly, Dr Skinner, though preparing a report that agreed with what she thought was Dr Richards' own conclusion that Mr Fitzwarryne was suffering from a psychiatric illness (being major depression) in February 1995, departed from that view in oral evidence on ascertaining from clinical notes that it was a locum and not Dr Richards who had examined Mr Fitzwarryne in February. To this extent there was a non-material error in the Tribunal's reasons in para 26 of the above quotation. Thirdly, in oral evidence Dr Skinner differentiated between depression that constituted a psychiatric illness and depression that did not. This was done by reference to symptoms, to the causes of depression, and to whether the depression would or would not "probably be considered with the range of normal". She emphasised the difficulty with the term "normal" in psychiatry. Nonetheless she answered the following question in the manner quoted: "Was any of his behaviour unusual for a man who was perceiving what he was perceiving, or was it within the bounds of what you could expect for somebody in those circumstances? --- That is a difficult question. I don't think he was suffering from a psychiatric illness. That, in my opinion, is supported by the notices of Dr Richards and also by the letter of Dr Knox, who saw him in that year. But I don't think there is anything to indicate that he was suffering anything - that he was behaving in a way or reacting in a way that was abnormal." (5) On the issue of incapacity, the Tribunal's conclusion was expressed in the following brief way: "29. Further, we are not satisfied that the applicant is suffering an incapacity for work. Incapacity for work is not to be confused with dissatisfaction with the particular work place as seems to be the case here." It is appropriate, though, to note that the Tribunal earlier referred both to Dr Rohan's recommendation that Mr Fitzwarryne be redeployed in another department, and Dr Skinner's agreement in this with Dr Rohan. Dr Skinner's report (not set out in the Tribunal's decision) stated: "Mr Fitzwarryne is not presently incapacitated to returning to work" (the word "incapacitated" was italicised in that report).

The Challenges to the Tribunal's Decision 4 The two issues pursued in the appeal were: "1. Whether the AAT applied the correct test, or applied the test correctly, in determining whether the Applicant was suffering from an injury in the context of a claim for work related stress. 2. Whether the AAT applied the correct test, or applied the test correctly, in concluding that the Applicant was not incapacitated for work." 5 As to the first of these, it was submitted that where the alleged injury was a mental condition it was not necessary to identify a condition recognised as a mental illness by the psychiatric profession in order to fall within the definition of "injury". Reliance for this was placed upon the judgment of Drummond J in Comcare v Mooi (1996) 137 ALR 690 at 696. The error in the Tribunal's decision, it is claimed, was that the Tribunal in analysing the psychiatric evidence focussed entirely on whether there was a diagnosis of an established or recognised condition. It did not go on to consider whether, if Mr Fitzwarryne did not suffer from such a condition, his condition was nonetheless outside the boundaries of normal mental functioning and behaviour. 6 In Mooi's case, Drummond J made the following observations at 693-694 on what an employee was required to establish to show he or she was suffering from a mental condition that was compensable under s 14(1) of the SRC Act: "A reading of the Act, including the relevant definitions, in my opinion, shows that before an employee can have any entitlement to compensation under s 14, one of the things he must show is that he has suffered something that can be regarded as an injury or something that can be regarded as a disease. … [T]he expressions used in the Safety Rehabilitation and Compensation Act 1988 to define the various forms of mental condition that can amount to 'injuries' compensable under s 14(1) [ie 'ailment', 'disease' and 'injury'], do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker's body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. In short, I consider that Dr Tym, in drawing a distinction between clinically significant behaviour, ie, abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensable under s 14(1)." 7 It is the case that both Drs Rohan and Skinner indicate in their reports that at the times relevant to Mr Fitzwarryne's claim, he did not suffer from a "psychological illness" - a term, I would note, that is generic in character and not one descriptive of a particular species of illness. Both Dr Richards and Dr Knox in fact refer to a particular species of illness - "established" or "severe reactive depression" - with the former concluding Mr Fitzwarryne suffered such an illness, the latter that he did not. 8 It is appropriate to reiterate that Mr Fitzwarryne himself identified his injury as "stress causing depression and suicidal conditions". It was in that setting and with a history and symptoms said to be attributable to depression that he was examined. The preoccupation of the medical reports with depression and with associated symptoms is, in this regard, understandable. Importantly though, Dr Knox, a consultant psychiatrist, counterpointed Mr Fitzwarryne's actual condition with an illness condition - "I don't believe there is an established depression at all although certainly there is some element of mood disturbance secondary to his stresses" - and he did not arrange for Mr Fitzwarryne to see him for regular treatment. Dr Skinner's evidence I have mentioned earlier. It is in my view fair to say that she used the term "psychiatric illness" in her evidence to differentiate a condition and symptoms that were abnormal in the circumstances from a condition and symptoms that were not. In other words, by giving her own dictionary meaning to "psychiatric illness" that turned on what is normal she has for practical purposes applied the Mooi test herself. She did in any event say in response to a question based directly on the Mooi test, that she didn't think that Mr Fitzwarryne "was behaving in a way or reacting in a way that was abnormal". 9 Given that the Tribunal relied explicitly on the evidence of Drs Knox and Skinner, and given that it adverted though without elaboration to Mooi, I am not satisfied that its conclusion that Mr Fitzwarryne did not suffer from a "psychiatric illness" encapsulates an error on its part. Against the background of the medical evidence, that finding can properly be said to be synonymous with a finding that he did not suffer a mental ailment or injury in that it reflects a contrast between what is and is not abnormal behaviour in the circumstances. 10 Turning to the second of the challenges - whether the Tribunal applied the correct test correctly or at all in concluding that Mr Fitzwarryne was not incapacitated for work - there is, in my view, little substance in this appeal. The evidence of Drs Rohan and Skinner, while recognising that a return to work in his old working environment at ATSIC would be inappropriate (albeit for differing reasons), was that Mr Fitzwarryne was not incapacitated for work. 11 Dr Rohan recommended redeployment with rehabilitation. This recommendation was not acted upon, and the failure to put it into effect is relied upon by the applicant to suggest incapacity existed. There seems little doubt that the relationship between Mr Fitzwarryne and superior officers in the public service was far from happy. I note again the Tribunal's finding that Mr Fitzwarryne had a basis in fact for believing he was being harassed and discriminated against. But I am unprepared to infer that the failure to act on Dr Rohan's recommendation was suggestive of incapacity. There are other equally probable if less justifiable explanations for the failure. It may well be - though I express no view in the matter - that Mr Fitzwarryne in fact has grounds for complaint about his treatment on this score. 12 The finding was one open on the evidence. I do not consider, as the applicant contends, that it is a finding of "theoretical capacity for work". On the contrary. 13 Accordingly I conclude that the challenges made to the Tribunal's decision must fail.

The Procedural Unfairness Claim 14 The contention here is that the Tribunal erred in allowing Mr Fitzwarryne to continue presenting his case in the afternoon of the hearing on 4 October 1996, the Tribunal knowing or having reason to know that he was then indisposed. The essence of the claim is that there was in the circumstances a failure on the Tribunal's part to allow Mr Fitzwarryne the opportunity to properly present his case even though, despite his indisposition, he did not expressly seek an adjournment: see Sullivan v Department of Transport (1978) 20 ALR 323 at 343. 15 It is well accepted that ordinarily additional evidence will not be received on the hearing of appeals under the Administrative Appeals Tribunal Act 1975 (Cth), s44: see Servos v Repatriation Commission (1995) 56 FCR 377 at 385. There are, though, limited cases in which such evidence can or must be received: Percerep v Minister for Immigration and Multicultural Affairs [1998] FCA 1088; Chowdhary v Bayne [1999] FCA 41. In the present case, where the complaint relates to events occurring at the hearing which are not unambiguously revealed in the transcript of that hearing, I have admitted evidence from Mr Fitzwarryne, Dr Skinner (who was present at the hearing) and Dr Richards who purported to give evidence of a pharmacological nature based on Mr Fitzwarryne's evidence as to the cause of his particular indisposition at the time. 16 The transcript of the hearing indicates that, just before the luncheon adjournment, the Tribunal "warned" Mr Fitzwarryne that if he did not call evidence (most probably from his wife) to corroborate his evidence, the Tribunal might draw adverse inferences in relation to his evidence. On immediate resumption after the luncheon adjournment the transcript reads as follows: "LUNCHEON ADJOURNMENT [2.05pm] DR MILLER: We appear to be minus the --- MR BEDDOE:We seem to be without the applicant at the moment. DR MILLER: It seems to be a bit of a problem. MR BEDDOE:Are you feeling all right, Mr Fitzwarryne? Are you content for the matter to go on, or would you rather have an adjournment? MR FITZWARRYNE: A five minute break, please. MR BEDDOE:Yes, the Tribunal stands adjourned for a few minutes. SHORT ADJOURNMENT [2.12pm] MR BEDDOE:Yes, Miss Ford? MISS FORD: Could I just ask that the applicant indicate whether he intends to call his wife or whether that is the case for the applicant? MR BEDDOE:Yes, Mr Fitzwarryne? MR FITZWARRYNE: I have made all the attempts to contact my wife. I have been back to my house. All I can say is the message I have to quote is to my son. She will be back at 11.30 to 11.40 to take him shopping at Woden for the afternoon to get jeans. 'Love mum. Wish your dad best of luck.' I cannot contact her. I would like to say one thing, that my wife's contribution was substantial. As Dr Skinner has got in her report, I am left-handed and I have lost the use for writing and typing with my left hand. Therefore, everything I do with my right hand, and I write slowly. It was my wife why typed this and all my other applications and contributed all the time to actually doing it. If the Tribunal seeks that it is essential to contact my wife to talk to my wife, I request that that happens on another occasion when I can contact her. The inference is basically that I am capable, because I produced a good written statement. As I said, I had considerable input to it, but it was done jointly with my wife. MR BEDDOE:As I said earlier, it is a matter for your decision now. It is up to you as to whether you want your wife --- MR FITZWARRYNE: She would not be available for a week. MR BEDDOE:Yes. I must say, I have some difficulty with that concept. If you say she is not available for a week I take that to mean that you do not want her to give evidence. MR FITZWARRYNE: No. I am sorry. It is the school holidays. We are going away together, the family. We have won a raffle for a week down the coast, which we are taking. We are going down this weekend. I have not spend time with my family since 1979, and this is the first holiday. My wife would have been available if I had known. My wife certainly would have given evidence. My wife comes from a very strict background. Her father is a chaplain, and her mother was an editor. She is completely straight. She helps me. In fact, there would not be one thing in here that is untruthful, because she would not have allowed it." 17 Mr Fitzwarryne's evidence on the matter is contained in a statement he later made that has been put in evidence: " STATE OF MY HEALTH AT THE AAT HEARING Prior to the Hearing I was finding it difficult to concentrate or think logically. My normal medication was Aeropax daily with a varying amount of painkillers according to my state of health. As the day of the Hearing approached I became even more stressed and increased my dosage to two Aeropax plus 4-10 strong painkillers [usually Panadeine]. I would not sleep the night before the Hearing and took additional medication, including I think Prothiaden, to try to get some rest but was awake all night. On the morning of the hearing I took 3 Aeropax and some more painkillers including Flagyl. My wife became concerned at my mental state and offered to represent me but I refused thinking I could look after myself. Due to my concern with loss of concentration I read a prepared statement rather than give verbal evidence. I took a further 5-8 tablets with water as I read. I became even more stressed when the AAT members strongly indicated I should call my Wife as a witness and I was not sure where she was that day. At lunchtime I raced home to look for my Wife but could not find here. Feeling extremely upset I had two glasses of port to calm down. I later went back to the AAT building and became extremely ill, vomiting and becoming twitchy. I passed out in the AAT toilet and was late back into the Hearing. Due to my state the Hearing was adjourned for a short period by the Chairman. On resumption I still felt noticeably unwell and very drowsy finding it almost impossible to concentrate or follow a logical argument. I could not understand why I was being asked question on my finances rather than on my health such as what school my children went to, what sort of car I drove, how much was my pension. My hands started to twitch violently and became very sweaty. I desperately wanted an adjournment for the day to recover but thought I could not ask for one as I needed an urgent decision and the Chairman had indicated it would be a long time before there was another Hearing when saying my Wife should attend that day. I found it almost impossible to respond to or conduct a cross examination because of my worsening medical condition. I forgot to ask vital questions and at one stage completely lost track of what I was asking Dr Skinner on the critical difference between a psychological and psychiatric illness when the Chairman asked her if she knew what I was referring to. By the time my Wife gave evidence I was in a state of collapse and just wanted to urgently leave the Hearing before I passed out again. The evidence my Wife gave on my adverse behaviour upset me. My mind just seemed to roll back and forward as if the witness box was swaying. During the afternoon I took several more tablets in an attempt to think straight but nothing worked. I just felt more of an outside spectator as if in a bad dream. After the Hearing I had to wait an hour before I could drive because I felt dizzy and disoriented. Even then I had difficult driving home and could not face seeing my Family. I now recognize that I was not in a fit state of health to adequately conduct my case and bring the essential facts to the notice of the Tribunal." 18 Dr Richards' evidence was that he had not prescribed Prothiaden (an anti-depressant) for Mr Fitzwarryne since 1991. But if he had taken that drug as well, there was a strong possibility of a drug reaction producing agitation, confusion and nausea. Further the feeling of illness, vomiting and being "twitchy" could have resulted from an "interaction between Prothiaden (if he had taken it) and the alcohol" he had at lunchtime. 19 For her part, Dr Skinner, who was present at the hearing at all periods relevant to this claim, has given affidavit evidence that: "8. I recall that before the luncheon adjournment, the Tribunal spoke to Mr Fitzwarryne about his wife attending to give evidence. I recall that when Mr Fitzwarryne returned after the luncheon adjournment and had the exchange with the Tribunal members which is at page 44 of the transcript, he looked a bit flustered, rather than unwell. I understood that he had not planned to call his wife and had been trying to contact her. The transcript is consistent with my recollection that when Mr Fitzwarryne returned to the Tribunal after the 5 minute adjournment referred to at page 44 of the transcript, everything he said was quite lucid. I recall in particular that he did not at that time look unwell, did not appear drowsy or affected by alcohol, and did not exhibit impaired concentration or cognition. 9. I have had long experience with people affected by alcohol or drugs, and I recall that I thought Mr Fitzwarryne was very well when he cross-examined me. His cognition was very good, he was able to concentrate and ask questions and he showed very good memory." 20 The applicant's submission is that on resumption after the luncheon adjournment it was "patent" to the Tribunal that Mr Fitzwarryne was ill and it was of sufficient significance for the Tribunal of its own motion to offer an adjournment. The errors that it is claimed the Tribunal committed were - (a) in not making further inquiry of Mr Fitzwarryne after 2.12pm concerning his health and capacity to continue; (b) in not offering, or considering of its own motion the grant of an adjournment; and (c) in not considering whether his "sometimes incoherent and disjointed responses" in the transcript passages set out above indicated that he might not be well enough to continue. If those inquiries had been made, Mr Fitzwarryne would have told the Tribunal about his condition and would have shown it he was in a state such that he should not have been required to have continued at the hearing. 21 It is difficult not to have sympathy for Mr Fitzwarryne's plight at the hearing, if it was as he claimed. However, it is not open on the evidence to conclude that the circumstances as they appeared to the Tribunal after the luncheon adjournment would have put a reasonable person on of inquiry such as to require the making of the inquiries the applicant now suggests. 22 The Tribunal, in my view, acted appropriately and courteously on the resumption after the luncheon adjournment. The question as to Mr Fitzwarryne's well-being cannot of itself be said to indicate any appreciation on its part that he was "patently" ill. On resuming after the luncheon adjournment, the Tribunal made its inquiry (that was not answered) and offered an adjournment (that was taken for 5 minutes). There is nothing in the transcript that immediately follows to suggest an incapacity to continue or any question thereof. I do not regard the answers given by Mr Fitzwarryne as at all out of the ordinary, the more so when considered in the light of the "warning" earlier given him and the difficulty it created for him given his inability to locate his wife. 23 The only "observer" evidence before me - that of Dr Skinner - confirms the view that I take from the transcript itself. Whatever Mr Fitzwarryne's actual state, his appearance was not such as would put the Tribunal on notice that further inquiry of him was called for to ascertain whether he ought be required to continue. I would note in particular about Dr Skinner's evidence that she was cross-examined by Mr Fitzwarryne after the event in question had occurred. 24 It is most unfortunate that Mr Fitzwarryne did not take appropriate steps to appraise the Tribunal of his condition. But the circumstances were not such as to require further inquiry by the Tribunal. The responsibility in the matter, regrettably, lay with Mr Fitzwarryne. 25 Having rejected all three grounds raised, I dismiss the application. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate: Dated: 13 April 1999 Counsel for the Applicant: Mr C Erskine

Solicitor for the Applicant: Snedden Hall & Gallop

Solicitor for the Respondent: Australian Government Solicitor