Joyce v Australian Postal Corporation

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." 7 Section 6 of the Compensation Act describes the circumstances in which an injury is to be treated as having arisen out of, or in the course of, the employment of an employee. Section 16 provides for compensation in respect of the cost of medical treatment. Section 19 provides for compensation in respect of earnings lost by reason of incapacity for work as a result of an injury. 8 The applicant was employed by the respondent at all relevant times as a postal services officer. On 27 July 1997, while on duty at the Mornington Post Office, she was subjected to harassment by an irate and alcohol-affected customer. Among other things, the customer made a death threat to the applicant. There is no dispute that, in consequence of this incident, the applicant suffered a condition described as post-traumatic stress disorder ("PTSD"). Nor is there any dispute that PTSD is an "injury" for the purposes of the Compensation Act. The issue which the Tribunal had to determine was whether the applicant's PTSD resulting from the incident of 27 July 1997 had resolved by 18 August 1999. At the heart of this issue was a question of fact as to whether any continuing problems with the applicant's mental state after that date were attributable to the incident of 27 July 1997, or to subsequent personal difficulties of the applicant, including difficulties with two children and unresolved grief over the illness and subsequent death of her father. 9 In the course of its reasons for decision, the Tribunal referred to the fact that evidence had been given by a consultant psychiatrist named Dr Walton, who had examined the applicant. The Tribunal said this: "In his report Dr Walton recorded that he had the benefit of certain reports rendered by Dr Le Bas, Dr Hain, Dr Symington and Dr Cullen. Examination of the doctor's report also reveals that he took quite an extensive history from Mrs Joyce, including not only the several incidents at work to which reference has been made, but also to a range of personal matters, including difficulties she had experienced with her 15 year old daughter, a son aged 24 years, and coping with the illness and subsequent death of her father, to whom she was particularly close. These and other family matters of a personal nature were all covered extensively during the course of Mrs Joyce's evidence at the hearing. That evidence was essentially consistent with the history taken by Dr Walton." 10 The Tribunal then described Dr Walton's report as "particularly helpful" and quoted at length his opinion. It is unnecessary for present purposes to set out the whole of the quote. It did include the following: "1. While it is not the case at present in the sense that this woman does not meet all the diagnostic criteria, I believe that Ms. Joyce would have attracted a diagnosis of a post-traumatic stress disorder in the aftermath of the 27 July 1997 incident and there does appear to be a reasonable consensus of psychiatric opinion in that regard. … 2. It is my opinion that there has been a material contribution to this woman's psychiatric condition from her employment, particularly the incident of confrontation with the drunk and irate customer, and to a minor extent from the motor vehicle accident. However, there have also been significant contributions and, in my opinion, these are the major current contributions, from the protracted illness and then death of this woman's father, she remaining in a situation of unresolved grief at present, as well as the recent behavioural problems exhibited by her daughter. … 3. The psychiatric condition from which this worker has suffered has been a post-traumatic stress disorder, now in a thoroughly residual stage but complicated by a pathological grief reaction. 4. It is not an unreasonable proposition that the worker would have been incapacitated by the post-traumatic stress disorder initially, particularly in relation to dealing with customers. I expect that that incapacity would have extended over some months. As best I can determine, the minor aggravation of symptoms which occurred in the aftermath of the motor vehicle accident would not have produced significant incapacity on psychiatric grounds. 5. According to Ms. Joyce, … she is engaged in full-time employment at present, and, simply on that basis, I doubt that she could be described as exhibiting significant current incapacity, despite her residual psychological symptoms. However, if she is determined to be suffering from some partial incapacity for work, say, that she is less than able to fulfil duties in relation to customer services as opposed to work not involving customer contact, those interpersonal difficulties are more likely attributable to the pathological grief reaction and the anxiety she experiences surrounding her daughter's problems. … 7. It is not my opinion that this applicant is not fit for her pre-injury employment. 8. The effects of this woman's psychiatric condition, in the sense that she is suffering from residual symptoms, and she probably would attract an impairment rating in that regard, have not ceased but the previous incapacity for work associated with her condition has ceased. 9. … In my opinion Ms. Joyce does not require formal psychiatric treatment at this point." 11 After discussing matters relevant to the decisions no longer challenged in this proceeding, the Tribunal said: "49. It was [the solicitor for the applicant's] submission that Mrs Joyce's PTSD had its origins in the incident which occurred at the Mornington Post Office on 27 July 1997 and her fear that she might be similarly confronted by other abusive customers, as indeed, on her evidence, occurred variously while she was employed at the Dandenong Post Office, and at the Frankston Business Centre Post Office. 50. We do not accept that proposition. While we have no doubt that Mrs Joyce at times experienced difficulties at work, the evidence leads us to the conclusion that there was no material contribution by her employment to her PTSD, beyond the date stated in the relevant reviewable decision, namely 18 August 1999. It is our view, and we find, that beyond that date any contribution to her condition has been occasioned by the circumstances of her private life, about which a great deal of evidence has been led in these proceedings." 12 On the hearing of the application to the Court, counsel for the applicant referred to an extract of the evidence of Dr Walton before the Tribunal. With reference to par 3 of his opinion expressed in his report, Dr Walton was asked: "Can I ask you firstly what you mean by the post traumatic stress disorder being in a thoroughly residual state?" Dr Walton answered: "Well, obviously I didn't have the opportunity to assess her in the immediate aftermath of the incident at the post office with the aggressive fellow. But the history she provided to me, and it was also documented in other psychiatric reports, seemed to suggest that in the aftermath of that incident she had developed a diagnosable post traumatic stress disorder. By the time she saw me she didn't give a full range of symptoms which would allow a formal diagnosis in that regard, that on a current symptomatology that I put it in the context that she probably had it before and it was of diminished severity by the time I saw her." 13 Counsel for the applicant submitted that there was before the Tribunal evidence from Dr Walton that the applicant's PTSD continued after 18 August 1999. He referred to the words "a thoroughly residual stage" in par 3 of Dr Walton's report, the words "residual psychological symptoms" in par 5 of that report, the reference in par 8 of that report to the applicant's residual symptoms that had not ceased and the words "of diminished severity" in the oral evidence of Dr Walton. The case for the applicant was that the Tribunal had failed to consider these aspects of the evidence. 14 The Tribunal plainly understood the task it had to perform. At the outset of its reasons, it summarised accurately the effect of ss 14, 6 and 16 of the Compensation Act and set out the definition of "injury" from s 4(1). For the purpose of dealing with this matter, the Tribunal was constituted by a senior member and two members, one of whom is a medical practitioner. 15 Whilst it was possible for counsel for the applicant to point to the phrases in the report and the evidence of Dr Walton on which he relied, the tenor of Dr Walton's opinion was clear. At the outset, in par 1 of his opinion, he expressed the view that "at present … this woman does not meet all the diagnostic criteria". In par 2, his view was that the "major current contributions" to her condition were from the unresolved grief over the protracted illness and death of her father and the recent behavioural problems of her daughter. It is clear from pars 5, 7 and 8 that Dr Walton was of the view that there was no incapacity from the PTSD at the time of his examination. In par 9, he expressed the view that the applicant did not require formal psychiatric treatment. In his oral evidence, in the passage I have quoted, Dr Walton made it clear that the applicant did not exhibit a full range of symptoms which would allow a formal diagnosis of PTSD. The Tribunal also had before it a significant quantity of evidence from the applicant herself, as well as from others. As it said in par 50 of its reasons for decision, there was "a great deal of evidence" about "the circumstances of her private life". 16 It was plainly open to the Tribunal to make the finding it expressed in par 50 of its reasons for decision that there was no material contribution by her employment to her PTSD beyond 18 August 1999. It could not be said that there was no evidence to support this conclusion. Nor can it be established that the Tribunal failed to take into account the whole of the evidence of Dr Walton. The Tribunal is not bound to refer to every single item of evidence that might be thought to be in conflict with a finding of fact it makes. In Commissioner of Taxation (Cth) v Cainero (1988) 15 ALD 368, Foster J referred to Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 251 per Lockhart J and to Blackwood Hodge (Australia) Pty Ltd v Collector of Customs, New South Wales (No 2) (1980) 3 ALD 38 at 49 per Fisher J. At 370, Foster J said: "It could not be suggested that the Tribunal was under any obligation to isolate in its reasons every issue of fact and record a specific finding in respect of each of them. It is obviously sufficient, in light of the cases referred to above, and as a matter of common sense, that a sufficient compliance with the requirement of considering all issues of fact and giving adequate reasons occurs when the reasons themselves provide a sufficient indication that the ultimate facts to be decided have been fully kept in mind and that no significant area of primary fact has been ignored." As McHugh J said of the Refugee Review Tribunal in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 (2000) 168 ALR 407 at [65]: "it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal." The Tribunal plainly considered all of the nine paragraphs of Dr Walton's opinion, expressed in his report, which it quoted in its reasons for decision. There is no reason to suppose it ignored his oral evidence, to which it also referred. It complied with its obligation, pursuant to s 43(2B) of the AAT Act, to include in its reasons for decision its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. 17 It might be that another decision-maker might have come to a different view upon the same evidence. This does not mean that there is a question of law raised as to any finding made by the Tribunal. The object of s 44 of the AAT Act is that the Tribunal should be entrusted with the task of fact-finding and the role of the Court should be to correct any error of law if the Tribunal should make one. The Court must be careful not to allow what are really issues of fact to be brought to it in appeals under s 44 of the AAT Act, under the guise of questions of law. In effect, that is what has happened in the present case. The real complaint of the applicant is that the Tribunal did not decide the facts in her favour. That complaint involves no question of law. 18 The grounds of the application, to the extent that I have quoted them above, are expressed in terms of assumptions about the effect of the evidence. Those assumptions are in conflict with the view taken by the Tribunal. Even if more extensive reference had been made to the evidence before the Tribunal, it would not have been open to the Court to accept the assumptions. 19 For these reasons, the appeal must be dismissed. Section 67 of the Compensation Act makes specific provision for the costs of proceedings in the Tribunal. There is no provision relating to the costs of an application to this Court by way of appeal on a question of law. Accordingly, the normal rule should apply and costs should follow the event. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.