Safety Rehabilitation and Safety Act 1988 - Ss.7(7)

Iannella v French 119 CLR 85

Pamela Coward and Associates

Counsel for the Respondent: Miss E. Ford

Solicitors for the Respondent: Ms Cheryl Weeks

Australian Government Solicitor

M.D. ALLEN By notice filed 17 December 1993 the Applicant sought review of a decision, made by an Independent Review Officer pursuant to Ss.62(2) of the Safety Rehabilitation and Compensation Act 1988 (as amended) ("the SRC Act"), on 29 November 1993 affirming a prior decision by a delegate of the Respondent that the Respondent was not liable to pay compensation subsequent to 15 May 1992 for an episode of toxic reaction which occurred on 7 May 1992.

2. The said application for review came on for hearing before me at Canberra on 31 October 1994, Mr Crowe of counsel appearing for the Applicant and Ms Ford of counsel appearing for the Respondent.

3. At that hearing the only issue in contention was whether the Applicant was precluded from the payment of compensation by Ss.7(7) of the SRC Act.

"False representation as to disease.

A disease suffered by an employee, or an aggravation of such a

disease, shall not be taken to be an injury to the employee for the

purposes of this Act if the employee has at any time, for the

purposes connected with his or her employment or proposed

employment by the Commonwealth or a licensed corporation, made a

wilful and false representation that he or she did not suffer, or

had not previously suffered, from that disease."

5. Disease is defined in Ss4(1) of the SRC Act as:

"'disease' means;

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

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;"

"'ailment' means any physical or mental ailment, disorder, defect

or morbid condition (whether of sudden onset or gradual

development);"

6. In Commonwealth Banking Corporation v Percival [1988] FCA 240; 82 ALR 54 at p57 the Full Court of the Federal Court said, referring to the definition of "disease" in the Compensation (Commonwealth Government Employees) Act 1971, which was in similar terms to the definition in the SRC Act, that the symptoms of a disease are part of that disease.

7. SS.7(7) of the SRC Act does not require an employee to make any self diagnosis of what disease may be affecting him. What the subsection does require is that answers to medical questions be given frankly and without the intention to mislead and symptoms suffered disclosed.

8. The Applicant commenced employment with the Australian Capital Territory Fire Brigade in 1976. On 27 May 1982 he, together with other members of that Brigade, attended a fire resulting from a truck accident on the Barton Highway. The truck was carrying chemicals and as a result of attending the fire the Applicant, together with other members of the ACT Fire Brigade was hospitalised following chemical inhalation.

9. A report by Dr C S May, Thoracic Physician, under whose care the Applicant came after being hospitalised, dated 14 June 1984 (Exhibit 3) reads inter alia:

".... I first saw this man when he was admitted to Calvary

Hospital following exposure to toluene di-isocyanate after a motor

vehicle accident. At that time he was suffering from the effects

of acute inhalation of this agent with chest discomfort and cough.

He was admitted overnight to Calvary Hospital and the symptoms

settled with observation and occasional inhalation of a nebulised

bronchodilator. I saw him once more about 1 month later on

22.06.82 when he complained of a continuing feeling of being unwell

with some vague chest symptoms. I was not convinced of their

organic nature and on full physical examination there were no

abnormalities to be found. ..."

10. A report by Dr Wells to the Applicant's solicitors dated 29 October 1990 records the following history after the Applicant's discharge from hospital:

"The next day he consulted Dr Anderson in Braidwood, whom he saw 2

or 3 times over the next few days. The only treatment he took was

aspirin and Codral for the headache. Dr Anderson referred him to a

specialist in Canberra who arranged an MRI brain scan.

Mr Schofield had skin rashes on his arms and chest, and

particularly under his leather wrist watch strap which he had been

wearing when he attended the truck fire.

Mr Schofield was off work sick for several weeks. He had recurrent

headaches, loss of libido, and in contrast with his previous happy

and easy going personality he was moody, short-tempered, not wishing

to communicate, lacking in energy and drive, and subject to

periods of depression in which he thought about suicide.

He still had these symptoms to some degree when he returned to

work, and found he could no longer study for his Station Officer

exams. His change in personality had its worst effects on his

marriage. He was frequently in a bad temper with his wife and

children, and the marriage terminated just over a year later

towards the end of 1983.

Over a year after May 1982, when Mr Schofield was taking part in a

routine inspection of the Wang Computer factory he felt his skin

begin to tingle all over. It was subsequently found that toluene

di-isocyanate was being used in the building.

...

In a particularly bad episode of depression he resigned from the

Fire Brigade in January 1985, ..."

11. The Applicant was absent from work for around one month following his admission to hospital. He applied for and was granted workers compensation in respect of injury from inhalation of toxic fumes.

12. Medical reports contained in the documents prepared pursuant to S37 of the Administrative Appeals Tribunal Act 1975 indicate that the Applicant continued to experience various symptoms following his chemical exposure.

13. In a report dated 16 November 1982 to the Applicant's general practitioner, Dr Williams, Specialist Physician, reports inter alia:

"As you know his symptoms have not settled down and he tells me

that recently after attending another fire, this time in a school,

wearing breathing apparatus, the same symptoms recurred. I gather

he was you soon after that and you saw his skin was yellow.

Headaches have occurred on a daily basis, on and off, lethargy also

on and off but mainly on, often a headache and lethargy are

combined and sometimes separate. He is also irritable, cranky,

hard to live with and sometimes aggressive, ...

I note that on the 1st of November you put him off work for a

couple of months, ..."

14. A further report by Dr Williams on 2 December 1982 notes:

"Robert remains the same. Still irritable, still complaining of

headaches etc.

...

As the headaches appear to have a vascular component to them, and

also as he is quite anxious about the whole lot and also depressed

with some family friction beginning to occur I have therefore

commenced Inderal 10 mgms t.d.s., however he may need more and

also Sinequan 25 mgms nocte, increasing to 50 mgms nocte. He is to

phone me for the result of his C.T. Scan and I will advise further."

15. A further report of 21 February 1983 notes that the Applicant still suffered from headaches, less severe than before and that Inderal did help.

16. Medical Certificates on 14 June 1984, 22 June 1984 show that the Applicant was absent from work on those days because of headaches.

17. In a letter addressed to the Respondent and dated 15 November 1991, Dr Bruce Appleby states:

"Robert Schofield was associated with the Toluene diisocyanate

incident on 21 May, 1982.

Since then he has had repeated rashes on left arm.

He has had periods of stress and two marriages have broken down.

He, also, believes that his short-term memory has failed.

These symptoms have been attributed to T.D.I. intoxication."

18. On 24 May 1984 the Applicant issued out of the Supreme Court of the Australian Capital Territory, a writ in which the Commonwealth of Australia was named as the third defendant. The Statement of Claim served with the writ claimed damages for negligence against all defendants alleging against the third defendant failure to provide a safe system of work.

19. By letter dated 29 May 1990 the Australian Government Solicitor, as solicitor for the third defendant, requested from the Applicant's solicitors further and better particulars of his claim. Those particulars were not supplied until 26 June 1991. The particulars sought and the replies thereto contain the following:

Q. "6. What events or sumptoms (sic) is it alleged made the

plaintiff aware that he had suffered the alleged injury?

A. "Difficulty breathing, nausea, cold shivers and generally

feeling ill, and within 24 hours the plaintiff displayed a yellowish

colour and suffered from headache and nausea. In addition, he

suffered from lethargy and dizziness and continued to have

difficulty breathing. The plaintiff then suffered from an eye

infection and over the ensuing weeks depression, irritability and

continuous headaches."

Q. "10. Did the plaintiff sustain injuries other than those set out

in the Statement of Claim? If so, please specify the injuries and

provide details thereof including the nature and extent of such

injuries.

A. "Yes.

(a) Pain and Shock.

(b) Breathing difficulties.

(c) Nausea.

(d) Constant shivering.

(e) Dizziness.

(f) Headaches.

(g) Yellowish colouring to the skin.

(h) Lethargy.

(i) Eye infection.

(j) Depression.

(k) Injury giving rise the stress, anxiety and depressive

disorder.

Further it was alleged (see Particular 17) that the Applicant, as a result of exposure to chemicals at the fire, suffered marriage difficulties resulting in divorce.

20. In 1984 the Applicant divorced from his first wife and in 1985 moved to Queensland. After initially being employed as a driver for ARC Steel, he made an application to join the Civil Aviation Authority as an airport fire fighter.

21. Document T110 is a report from Dr Glaser, Psychiatrist, who examined the Applicant at the request of the Respondent on 17 May 1993. At page 4 of his report Dr Glaser notes:

"At this stage of the interview, Mr Schofield mentioned that, with

regard to his headaches, these were present while he was working for

a steel company in Brisbane during 1985-6. However, at that stage,

he would dismiss them as being due to 'sunstroke'. They were

definitely present when he was posted to Cairns as a fire fighter

during 1988-9."

22. As part of that application for employment the Applicant was obliged to undergo a medical examination. As part of that medical examination he completed and signed a questionnaire as to his medical fitness which document is reproduced as T.26. In that document the following questions and answers appear:

Q. "Have you ever suffered from Sunstroke?"

A. "No"

Q. "Have you ever suffered from Dermatitis or any skin eruption?"

A. "No"

Q. "Have you ever had any accident or surgical treatment? If so,

give full details."

A. "Yes. T's and appendix."

Q. "Are you in good health now?"

A. "Yes"

Q. "When were you last under medical treatment?"

A. "Not recently."

23. Some 12 months later, on 21 April 1987, the Applicant was again medically examined for the purposes of a permanent position and entry into the Commonwealth Superannuation Scheme. Again he completed and signed a questionnaire as to his medical history. That document contains the following questions and answers:

"Are you now suffering from, or have you ever suffered from or

received treatment for any of the following conditions, diseases,

injuries or disabilities?"

1. Nervous fatigue or feelings of

weakness or tiredness NO

2. Anxiety stage NO

6. Persistent or frequent headaches NO

8. Dizziness, turns, attacks of

unconsciousness or weakness NO

53. Dermatitis, eczema or any other rash NO

61. Are you aware of any circumstances

regarding your health which would

interfere with the satisfactory discharge of

the duties of the position you occupy or

have applied for? NO

70. Are you receiving or have you ever received -

(a) ...

(b) workers' or employees' compensation? NO"

Page 4 of the said medical history questionnaire also contained the following question:

"During the last 5 years have you ever had any medical examination,

advice or treatment, attended or been admitted to hospital for

treatment or had an X-ray or electrocardiogram?

24. When questioned as to the apparent disparity between the answers to the questions in the medical history questionnaires and the allegations in the further and better particulars supplied in the Common Law Action plus details in the various medical reports, the Applicant was totally unconvincing stating that he answered the questions according to the way he felt at the time. Later in cross-examination he claimed a lack of memory.

25. Although the Applicant claimed a lack of memory of events in 1987, on 28 February 1994 Dr Little, Specialist Physician, reported to the Applicant's General Practitioner and he took from the Applicant a history of:

"headache, irritability, shortness of breath and fatigue which

gradually worsened over the ensuring years".

Similarly on 24 October 1990, the Applicant was able to give to Dr Wells of the Capital Medical Centre, a comprehensive history of his admission to hospital following the truck accident and subsequent symptoms. I note that Dr Wells states

"Mr Schofield gave his history in a clear and convincing manner."

26. Exhibit 7 is a report by Dr Knox, Consultant Psychiatrist, to the Applicant's General Practitioner dated 3 August 1993. In that report Dr Knox took the following history:

"He believes that he was poisoned with Toluene Diisocyanate when

exposed to this material following a truck tanker crash in 1982. He

suffered from yellow discolouration of the skin (possibly due to

toxic effects on his liver) and headaches for quite some time during

1982 and 1983. He is also very irritable at home and his marriage

broke down."

27. The clinical notes of his Treating General Practitioner, Dr Appleby, (Exhibit 1) reveal that when the Applicant saw him in November 1991 he stated that his first marriage had dissolved after the TDI incident and that he had suffered headaches and depression and that he had continued to get a rash under his watch band.

28. On 7 June 1993 the Applicant was interviewed as a result of internal proceedings within the Civil Aviation Authority Fire Service. The transcript of that interview shows that then the Applicant had a good memory not only as to the events in and after 1982 but also of conversations in 1987. The transcript demonstrates a better memory than the Applicant would have the Tribunal believe that he now has. There is no evidence that whatever the Applicant's condition, he has suffered a sudden decrease in mental faculties.

29. It strains credulity to accept the Applicant's evidence that in both 1986 and 1987 he was not overtly conscious of the events described above but was able to give a good history of them in 1990 and subsequently.

30. Subsequent to the Applicant resigning from the ACT Fire Service in 1985, the Applicant attempted to obtain re-employment and was refused. At the time he was offered employment by the Civil Aviation Authority he also had the opportunity to work as a bearer with the Queensland Ambulance Transport Brigade. He preferred to return to fire fighting.

31. I have also had the advantage of seeing and hearing the Applicant give evidence and be cross-examined. Taking into account the material which has been placed before me and having seen and heard the Applicant, I am convinced that in the medical questionnaires completed by him in 1986 and 1987, the Applicant deliberately avoided giving any information which might have prejudiced his chances of obtaining employment as an airport fire fighter.

32. Further I do not accept the Applicant's evidence that in 1987 he had no knowledge of any proposal to issue legal proceedings on his behalf. Also the further and better particulars given on 26 June 1991 show that at that time the Applicant's memory as to how the incident on 27 May 1982 affected him had improved dramatically if one accepts his evidence of no recollection in 1987.

33. Ss.7(7) of the SRC Act requires that the representations made by the Applicant be both wilful and false. The failure to disclose information is the giving of false information where the intention is to mislead. As to the wilfulness of the Applicant's actions, as was pointed out by Barwick CJ in Iannella v French 119 CLR 85 at p95, the word "wilful" means intentionally and knowingly and in this case I am satisfied that the Applicant gave the false answers knowing they were false and with the intention of facilitating his entry into the Civil Aviation Authority Fire Service.

34. I am satisfied that the provisions of Ss.7(7) of the SRC Act have been met and for that reason the Applicant is not entitled to the payment of any compensation for any condition caused or aggravated as a result of his employment with the Civil Aviation Authority.

35. No submission was made by the Respondent that the Applicant repay any sums received by him or paid on his behalf pursuant to the original decision that he was entitled to compensation for an episode of toxic reaction, therefore my decision is that the decision under review is affirmed.