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[2019] FCA 2153
Federal Court of Australia
2019-12-20
Mr J, Perry J
Original judgment source is linked above.
PERRY J: 1 INTRODUCTION [1] 2 BACKGROUND [6] 3 LEGISLATION [23] 4 THE DECISION OF THE TRIBUNAL [28] 5 CONSIDERATION [31] 5.1 Overview [31] 5.2 Alleged inadequacy of reasons (question of law 5): relevant statutory provisions [34] 5.3 The Tribunal's vision impairment decision [44] 5.3.1 Did the Tribunal's reasons for affirming the vision impairment reviewable decision comply with the requirements of s 43(2B) of the AAT Act? [44] 5.3.2 Did the Tribunal otherwise err in law in affirming the vision impairment reviewable decision? [60] 5.4 The Tribunal's psychological injury decision [70] 5.4.1 The substantive issue before the Tribunal [70] 5.4.2 Did the Tribunal's reasons for affirming the psychological injury reviewable decision comply with the requirements of s 43(2B) of the AAT Act? [78] 6 RELIEF [96]
5.1 Overview 31 Question 5 of the notice of appeal raises the question of whether the Tribunal gave adequate reasons for its decision in both matters. The relief sought is that the matters be remitted to the Tribunal differently constituted for determination according to law. 32 Logically, Question 5 should be addressed first because the purpose of reasons, as explained below, is to provide the basis on which it can be determined whether the Tribunal has (otherwise) fallen into reviewable error. In other words, if the reasons are not clear, it may not be possible in any event to answer the remaining questions of law and the decision will be liable to be set aside. 33 For reasons I explain below, I have reached the view that the applicant has not established that the Tribunal's reasons for affirming the vision impairment reviewable decision fail to meet the standard required by law, or that she has established ground 1 (which is the only other ground of appeal relevant to this decision). However, I consider that the applicant has established that the Tribunal's reasons for affirming the psychological injury reviewable decision fall well short of complying with the standard required by s 43(2B) of the AAT Act.
5.2 Alleged inadequacy of reasons (question of law 5): relevant statutory provisions 34 It was not in issue that the obligation upon the Tribunal to provide reasons is found in s 43(2) and (2A) of the AAT Act which provide that: (2) Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision. (2A) Where the Tribunal does not give reasons in writing for its decision, a party to the proceeding may, within 28 days after the day on which a copy of the decision of the Tribunal is given to that party, request the Tribunal to give to that party a statement in writing of the reasons of the Tribunal for its decision, and the Tribunal shall, within 28 days after receiving the request, give to that party such a statement. 35 It is not clear whether the Tribunal's written reasons were provided as a result of a request. In any event, s 43(2B) sets out the requirements with which the Tribunal's written reasons were required to comply, namely: (2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. (emphasis added) 36 The respondents accept that a failure to give adequate reasons in compliance with s 43(2B) constitutes an error of law, as the Full Court held in Dornan v Riordan (1990) 24 FCR 564 (Dornan). Specifically, the Full Court held at 573 that "[n]otwithstanding an observation to the contrary by Brennan J in his dissenting opinion in Repatriation Commission v O'Brien (1985) 155 CLR 422 [O'Brien] at 445-446, the law appears to us to be that a substantial failure to state reasons for a decision, in the circumstance that a statement of reasons is a requirement of the exercise under the statute of the decision-making power, constitutes an error of law." (See also by analogy Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 at [55] (the Court) upon which the applicant relied.) 37 Even though, as the Full Court pointed out in Dornan, Brennan J took a different view in O'Brien, holding that the failure by a Tribunal adequately to fulfil its statutory duty to state reasons did not, without more, warrant the decision being set aside, nonetheless his Honour accepted that a failure to give adequate reasons may lead the court to infer that there has been a failure to make the decision according to law. That proposition is well established both in relation to decisions by an administrative decision-maker and by a court: see e.g. Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [34] (Gummow A-CJ and Kiefel J); BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292 at [25]-[26] (the Court) accepting that the failure to give adequate reasons discloses a failure to adequately try the applicant's substantive grounds of judicial review; BVG17 v BVH17 [2019] FCAFC 17 at [46]-[47] (the Court); COZ16 v Minister for Immigration and Border Protection [2018] FCA 46; (2018) 259 FCR 1 at [47]-[56] (Griffiths J); and Triabunna Investments Pty Ltd v Minister for Environment and Energy [2019] FCAFC 60; (2019) 238 LGERA 223 at [242] (Mortimer J) (Besanko J agreeing at [1] and Flick J at [88]). 38 Recently in Stirling v Minister for Finance [2017] FCA 874; (2017) 159 ALD 29, Tracey J explained the important purposes to be served by s 13 of the ADJR Act providing for reasons to be given upon request (and by analogy s 43(2B) of the AAT Act): 16 The provision of reasons for administrative decisions serves multiple purposes. In addition to allowing the reader to follow the path of the decision-maker's reasoning and enabling a reviewing Court to determine whether or not the reasons disclose any reviewable error of law, other useful social purposes are also served. Some of these were identified by Kirby J in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at 242; [2003] HCA 56 at [105]: The rationale of the obligation to provide reasons for administrative decisions is that they amount to a "salutary discipline for those who have to decide anything that adversely affects others". They encourage "a careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decision-making". They provide guidance for future like decisions. In many cases they promote the acceptance of decisions once made. They facilitate the work of the courts in performing their supervisory functions where they have jurisdiction to do so. They encourage good administration generally by ensuring that a decision is properly considered by the repository of the power. They promote real consideration of the issues and discourage the decision-maker from merely going through the motions. … By giving reasons, the repository of the public power increases "public confidence in, and the legitimacy of, the administrative process". 39 In line with these purposes, Tracey J explained at [15] that s 13 of the ADJR Act required the decision-maker to "explain the 'actual path of reasoning' by which he or she arrived at a conclusion. The decision-maker must do so in sufficient detail to enable a reviewing court to see whether the conclusion is or is not affected by any error of law". As such, the obligation "focuses upon the thought processes of the decision maker": SZMDS at [33] (Gummow A-CJ and Kiefel J) (by analogy). 40 Similarly, in an oft-quoted passage, Woodward J in Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 (Wraith) at 507 said: … s 13(1) of the Judicial Review Act requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect: "Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging." This requires that the decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation. (emphasis added) 41 Justice Woodward referred also to the general policy of the ADJR Act "which clearly intends that persons aggrieved by administrative decisions which adversely affect them should have full opportunity to show, if they can, that such decisions have been improperly reached", adding that "[t]hey can only do this if they know how the decisions were in fact reached" (Wraith at 507-508). 42 On the other hand, Comcare rightly emphasised that the reasons of an administrative decision-maker are not to be scrutinised upon judicial review in an over-zealous manner: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ) (citing with approval Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ)). Rather, the reasons must be read fairly and as a whole (Wu Shan Liang at 291 (Kirby J)). 43 The relationship between these principles is helpfully discussed by Burchett J in ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 10 FCR 197 at 203-204 in the following passage: Section 13 [of the ADJR Act] is a crucial provision designed to ensure that the basis upon which a decision is made is able to be seen, so that its legality can be determined. It should not be viewed by any decision-maker as a threat to be evaded by a camouflage of obscurity. All it requires to be set out is a statement of the matters the administrator must have considered in making the decision in the first place - what he found the facts to be, what material he considered in arriving at those findings, and the reasons for his ultimate decision. It would be wrong for courts to construe reasons in any overly critical spirit, forgetful that they are the reasons of an administrator, not of the draftsman of an Act. But it would be as bad to betray the aims of the [ADJR Act] by ignoring what has been required by the Parliament to be disclosed in the interests of just and lawful (and not merely unassailable) administration. … That obligation demands the furnishing of reasons which make intelligible the true basis of the decision. …
5.3.1 Did the Tribunal's reasons for affirming the vision impairment reviewable decision comply with the requirements of s 43(2B) of the AAT Act? 44 In my view, while scant, the reasons given by the Tribunal for affirming the vision impairment reviewable decision comply with the requirements of s 43(2B) of the AAT Act. 45 First, the Tribunal found that it was not in dispute that the applicant did not wear glasses before the incident (AAT reasons at [10]). 46 Secondly and importantly, the Tribunal found that the expert evidence about her eye condition before the hearing was based on the applicant's history (i.e. her medical history as relayed by her) that she had experienced symptoms of disoriented and blurring vision immediately after the telephone call on 24 February 2014 (at [10]). 47 However, the Tribunal found that the contemporaneous documentation did not support the applicant's history and evidence that she suffered immediate visual blurring after the incident such that she was unable to read her computer screen and had to seek advice about increasing the font size (at [13]). Specifically, the Tribunal found that: 14. The contemporaneous documentation shows that she made no complaint of visual difficulties until an Initial Needs Assessment was carried out by a rehabilitation provider on 26 March 2014. She attended an optometrist on 27 March 2014. In the interim, Ms Karabolovska had attended her local GP practice on the day of the incident and again on 15 March 2014 to obtain a medical certificate for the two days off work due to anxiety and insomnia related to the incident. She also lodged a claim for workers' compensation on or about 19 March 2014 which did not mention visual difficulties. 48 While the Tribunal accepted Dr Champion's evidence that it was understandable that the applicant did not mention visual difficulties when she visited her general practitioner (GP) on the day of the incident, it found that that did not explain why she did not mention those difficulties on the next occasion when she visited her GP or when the claim for compensation was made (at [15]). The Tribunal also took into account that an optometrist who examined the applicant in August 2012 had recorded that the near focusing of the accommodation muscles was reduced and noted early signs of presbyopia (at [16]). 49 While the Tribunal made no express finding to this effect, the inference fairly to be drawn is that the Tribunal rejected the applicant's evidence that she had suffered immediate visual blurring after the incident because she did not make any complaint about visual difficulties until a month later, and early signs of presbyopia had been observed well before the incident by an optometrist. 50 Thirdly, the Tribunal turned to consider the medical evidence regarding the claimed eye condition. 51 The Tribunal began its consideration at [10] by quoting from the report of Dr Delaney, an ophthalmologist who provided an opinion at the request of the applicant's legal representatives, that: Ms Karabolovska suffered a significant traumatic episode, which has accelerated and exacerbated the onset of her presbyopia and underlying low-grade hypermetropia refractive error resulting in her need to obtain spectacles. It was her choice to obtain multifocal glasses for convenience even though her distance vision was still normal at 6/6 without a correction. The need for the reading addition was undoubtedly due to the precipitation of the onset of presbyopia. These physiological refractive errors will slowly progress over a period of five to ten years before totally stabilising, but these changes are entirely due to normal physiological changes and apart from the precipitation of the onset of them, all other changes and refractive errors are due to normal physiological changes that would have occurred anyway. (emphasis added) 52 In short, in his report Dr Delaney found that the incident had precipitated the onset of the applicant's presbyopia resulting in her requiring reading glasses earlier than she might otherwise have required them. 53 The Tribunal then found that it "accepts the disagreements Dr Delaney has with Ms Bilton, a behavioural optometrist, and gives little weight to her opinion where it differs from his" (at [11]). Unfortunately, however, the Tribunal does not explain what Ms Bilton's opinion was, the extent to which her opinion differed from that of Dr Delaney, why Dr Delaney apparently disagreed with her opinion, or why Dr Delaney's views were to be preferred. 54 At [12] of its reasons the Tribunal found that the written evidence of Dr Michael Steiner, ophthalmologist, was to similar effect to that of Dr Delaney, namely: [Ms Karabolovska] had a psychological episode which caused decompensation of the accommodation process of her eyes causing blurred vision. The episode precipitated her visual blurring but did not cause it and she is actually now from a visual point of view and taking her aging into consideration, no worse off than if the incident had not occurred. 55 Finally, having found that the contemporaneous documents did not support the applicant's evidence of suffering immediate visual blurring after the incident, the Tribunal then: (1) rejected Dr Delaney's opinion on the basis that he did not change his views when the contemporaneous history was put to him; and (2) accepted Dr Steiner's evidence at the hearing based upon the alternative history revealed by the contemporaneous documents. 56 Specifically, the Tribunal found that: 17. Dr Delaney maintained his opinion when the contemporaneous history was put to him. Dr Steiner did not. Dr Steiner said that the only reason he said that the symptoms had been precipitated by the episode was because Ms Karabolovska had told him that immediately afterwards she had suffered blurring. 18. The Tribunal prefers the evidence of Dr Steiner to that of Dr Delaney. It did not consider that Dr Delaney gave real consideration to the very different history put to him. The Tribunal does not accept that the incident caused an aggravation of vision impairment (bilateral). For those reasons the Tribunal affirms the reviewable decision made on 6 December 2017 which affirmed the determination dated 14 November 2017 which denied liability for aggravation of vision impairment (bilateral) under section 14 of the Act. (emphasis added) 57 At first blush, there is an apparent tension between the Tribunal's acceptance of Dr Delaney's opinion insofar as it differed in unexplained terms from that of Ms Bilton, on the one hand, and the Tribunal's rejection of Dr Delaney's opinion as set out at [10] in favour of that given by Dr Steiner at the hearing. 58 Nonetheless, fairly read, the Tribunal's reasons are sufficiently clear. As the respondent contends, the evidence establishes that the disagreement between Ms Bilton's evidence and that of Dr Delaney related to the degree of interference with the applicant's vision: see Dr Delaney's report dated 30 April 2018 reproduced in AB Part C, tab 12.4.1 at [15.1]. 59 Understood in this context, at paragraph [10] of its reasons, the Tribunal simply describes Dr Delaney's evidence on the primary issue of what precipitated the applicant's vision impairment, i.e., the causation issue. At [11], the Tribunal accepted Dr Delaney's views about the extent to which the applicant's vision is impaired as opposed to those of Ms Bilton. However, the substantive issue of causation is considered by the Tribunal at [18]. Dr Delaney and Dr Steiner reached the opinions which they expressed in their reports on the basis of the applicant's history as relayed to them by the applicant: see the Expert Report of Dr Delaney dated 30 April 2018, AB Part C, tab 12.4.1; and the Expert Report of Dr Steiner dated 14 June 2018, AB Part C, tab 12.27 and tab 39 at p. 268.44. However, the Tribunal found that when Dr Delaney and Dr Steiner were asked in cross-examination for their respective opinions on the basis of the alternative history revealed by the contemporaneous documents (which the Tribunal ultimately accepted), Dr Steiner changed his opinion but Dr Delaney did not (see AB Part C, tab 36 (Dr Delaney) and tab 39 at p. 268.44-269.2 (Dr Steiner)). Effectively, the case is a simple one where the Tribunal rejected Dr Delaney's expert opinion because it was based upon factual assumptions which had not been proved: see by analogy Ramsey v Watson (1961) 108 CLR 642 at 649 (the Court). As such, in my view, ground 5 must be rejected insofar as the Tribunal's reasons for affirming the vision impairment reviewable decision are concerned.
5.3.2 Did the Tribunal otherwise err in law in affirming the vision impairment reviewable decision? 60 The only question of law raised by the appeal which is otherwise relevant to the eye condition is Question 1, namely, did the Tribunal apply the correct test pursuant to s 5B of the SRC Act in relation to the disease/injuries? I have earlier set out s 5B and its place in the statutory scheme at [23]-[27] above. 61 The applicant contends that the Tribunal asked the wrong question on the ground that the Tribunal "did not consider acceleration of injury in relation to the visual disturbance claim, only aggravation", referring in the footnote to paragraph [18] of the Tribunal's reasons (applicant's written submissions (AS) at [12]). In support of this submission, the applicant appears to suggest that the error is apparent from the Tribunal's treatment of Dr Steiner's evidence (ibid at [11]), submitting that when one examines Dr Steiner's evidence, it actually "favours the proposition that the definition of injury was satisfied". Bearing in mind that the applicant must establish an error of law, it follows that in order to succeed by relying upon this evidence, the applicant must satisfy the Court that Dr Steiner's evidence so plainly established that the vision impairment was accelerated by the incident that it can be inferred that the Tribunal must have erred in law in finding the contrary based upon his evidence. 62 This submission must be rejected. First, it is true that the Tribunal found at [18] that it did not accept that the incident "caused an aggravation of vision impairment" for the reasons earlier given (emphasis added). However, s 5B required the Tribunal to consider whether the disease was "an aggravation". As the term is defined to include "acceleration", the fact that the Tribunal used the language of s 5B cannot logically demonstrate a failure to ask whether the incident had accelerated the vision impairment. This is particularly so in circumstances where it was not suggested by any party that the incident resulted in the recurrence of a prior vision impairment, "recurrence" being the second limb of the inclusive definition of "acceleration" in s 4(1) of the SRC Act. 63 Secondly, the evidence relied upon by the applicant in support of the submission that if the Tribunal had properly understood the statutory question it should have found that the definition of injury was satisfied based upon Dr Steiner's evidence, is set out in her written submissions at [11] as follows: i. In his report dated 14 June 2018, Dr Steiner said that employment "precipitated her visual blurring but did not cause it". Here, the doctor is referring to causation in some sense other than legal causation under the SRC Act because he clearly expressed an opinion that the injury was precipitated by work. The word "precipitate" cannot meaningfully be distinguished from the word "accelerate". ii. In evidence in chief, Dr Steiner said that the incident "sparked off" the visual condition. iii. Dr Steiner said in an oral evidence that "… her long sightedness … was decompensated by the episode". Decompensation in medical terms is a functional deterioration of a stress-coping mechanism. That is, the ability of the applicant's visual system to cope with stress was reduced. iv. Dr Steiner agreed that the [term] "precipitate" meant "to cause something to happen suddenly, unexpectedly or prematurely". This phrase is must be [sic] capable of distillation to "accelerate". v. Dr Steiner, who gave contradictory evidence, said "It suddenly - it brought it on". vi. When asked if "It made the symptoms worse, didn't it?", the response was "Well, it made the symptoms worse, yes." vii. The cause of the eye problems was said to be due to "… really more her age". This necessarily leaves non-age related causation in the mix, namely an aggravation or an acceleration by work related matters. (footnotes omitted) 64 However, with respect, the applicant's submission ultimately constitutes an impermissible invitation to the Court to engage in merits review. This is apparent when each of the propositions at (i) to (vii) are considered. First, with respect to paragraphs (i) and (iv) of the extract above, the Tribunal found that Dr Steiner departed from the views which he expressed in his report when the alternative history was put to him, as earlier explained (see above at [59]). The submission as to what "precipitate" means would also need to accommodate and explain Dr Steiner's evidence that: … I don't think precipitate does mean cause. … The cause of her blurring is the fact that she was mildly long-sighted and presbyopic. Precipitated - the way I've used it is, that it made her aware of it. It suddenly - it brought it on, as it - well, even brought it on is not appropriate. I used that word purely because historically, she said, at that moment or as soon as this was over, she suddenly had blurring and precipitated was the most appropriate word and of course, we've now heard that that might not have been the case. (AB Part C at p. 270.7-15) 65 Dr Steiner continued to explain that the incident would not have brought about the applicant's long-sightedness and presbyopia "because the long-sightedness and the presbyopia were there.… At most it unmasked it and perhaps I should've [used] that word, rather than precipitated" (AB Part C at p. 270.25-28). 66 Secondly, paragraph (ii), with respect, takes the evidence out of context. Dr Steiner's evidence at the hearing was that he had reached the view that "the decompensation of her long-sightedness could well have been sparked off by the - precipitated - by the episode" in his report based "purely on the history" given by the applicant (AB Part C at p. 268.22-25). 67 Thirdly, with respect to paragraph (iii), the submission does not appear to take into account Dr Steiner's evidence at the hearing, quoted below, about what he meant by decompensation of the accommodation process, in which he again linked decompensation to the history given to him by the applicant: We have the ciliary muscle within the eye, which changes the shape of the crystalline lens within the eye. So, even if somebody is a little long-sighted, that muscle works and because the eyeball is a little shorter, it changes the focus, so that people can still see. Children, for instance, can be quite markedly long-sighted and still see - grow up pretty well. When you get into the early 40s the effect of the muscle on the lens is less, because the lens is significantly less flexible and it continues to get less and less flexible, until into the mid to late 60s and so, what I said was, that the effect of the muscle on changing the shape of the lens, was effected in some way. I took that from the history, because she said that suddenly after that, she got significant blurring and so, the muscle sort of compensates for the long sight. But if the muscle sort of, stops acting as strongly as normal, then that's a decompensation. (AB Part C at p. 272.9-21) 68 Again, propositions (v) and (vi) have to be read in the context of Dr Steiner's further evidence, when it was suggested to him that any particular eye condition was either made worse or became worse earlier than it otherwise would have, that he considered "the term unmasked is probably the most relevant. But you know, if one takes her history at face value, well then yes, what you've said is correct" (AB Part C at p. 270.40-46). Equally, the evidence referred to at paragraph (vii) raises a factual issue which ought to be understood in context. 69 In short, the evidence referred to by the applicant does not demonstrate that the Tribunal misunderstood the statutory criteria and asked itself the wrong question on the ground that Dr Steiner's evidence "favours the proposition that the definition of injury was satisfied". It goes no higher than to suggest that a different view arguably could have been taken of Dr Steiner's evidence, based upon an incomplete recitation of his evidence.
5.4.1 The substantive issue before the Tribunal 70 The task for the Tribunal was to give the correct or preferable decision on the material before it as at the time of its decision: see Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286. 71 The hearing before the Tribunal ran for four days, with much of that time being taken up by the medical evidence. In this regard, it was not in issue that the applicant had a pre-existing condition at the time of the incident, being a psychiatric illness characterised among other things by major depression and that this condition had "waxed and waned" since its onset in 2004 (AS at [1]; Tribunal reasons at [20] and [37]). It was also not in issue that the incident had aggravated that pre-existing condition. The issue before the Tribunal was whether the aggravation of the applicant's pre-existing condition resulting from the incident had ceased before the decision was made, such that no liability existed as at 30 September 2017 as Comcare alleged, or whether her continuing symptoms were the result of her pre-existing condition as the applicant contended. 72 The applicant relied upon the reports of a number of expert medical witnesses before the Tribunal, several of whom were cross-examined, namely: Ms Heidi Jarman, psychologist, and three psychiatrists, being Dr Michael Delaney, Dr Irwin Pakula who had been the applicant's treating psychiatrist, and Dr Matthew Jones. Comcare relied among others upon the expert reports of Dr Michael Steiner, Dr John R Champion, and Dr Kipling Walker, each of whom were also cross-examined. I note that in his report dated 9 July 2018, Dr Champion among other things, reviewed the extensive medical evidence in chronological order including commenting upon Dr Pakula's treatment and assessment of the applicant's condition, and the reports of Dr Burek, Ms Jarman, Dr Zsadanyi, Dr McDonald, Dr Walker, Dr Jones, and Dr Delaney. He was particularly critical of Dr Pakula, the applicant's treating psychiatrist, on a number of grounds. These included his view that Dr Pakula's opinion that the applicant had been "in remission" before commencing work with the ATO was inconsistent with his earlier reports and that in order to avoid causing a deterioration in the "therapeutic alliance" which a psychiatrist must develop to assist a patient, treating psychiatrists should avoid any commentary in relation to attribution due to a lack of objectivity (AB Part C, tab 12.31 at p. 25 [49]). As to the latter point, Dr Champion attached an article to his report by L H Strasburger, T G Gutheil, and A Brodsky entitled "On Wearing Two Hats: Role Conflict in Serving as Both Psychotherapist and Expert Witness" published in 1997 in the American Journal of Psychiatry (the 1997 article). 73 It was the applicant's case that the natural progression of her condition was that it was improving before the incident as evidenced by her return to work, by how happy and well she was at work before the incident, and by her promotion. That changed in the applicant's submission following the incident which she alleges continued to have an aggravating effect on her pre-existing condition. As for example, Dr Jones said in his report dated 30 April 2018 with respect to the applicant's psychiatric condition in summarising his opinion: 15.1 Ms Karabolovska has an established history of anxiety, depression and a history of variable family problems and medical difficulties complicated by chronic pain. Despite these difficulties, Ms Karabolovska has shown reasonable resilience over time, got to the point where she re-entered the workforce and was enjoying her work at the ATO where, unfortunately, Ms Karabolovska experienced a traumatising incident. One can appreciate that the nature of the incident could be traumatising to anyone, but particularly to somebody with pre-existing longstanding anxiety and depression, previous suicidality, somewhat vulnerable and recently having re-entered the workforce. 15.2 In my opinion, this incident had a distinct exacerbating effect on Ms Karabolovska's long-term mental health problems and has caused a significant episode, which persists and has been a considerable setback in her trajectory back into employment. Her situation is further complicated by the visual disturbances and subsequent attritions, associations and anxiety caused by that. (AB Part C, tab 12.2.1 at p. 89) 74 Comcare relied in particular upon the evidence of the psychiatrists, Dr Champion and Dr Walker. These experts accepted that the applicant's incapacity continued, as did her need for medical treatment. However, they were of the view that this was a result of her underlying pre-existing condition rather than the aggravation caused by the incident, which had ceased to impact upon her mental health. 75 Comcare's case is encapsulated in the following passages of evidence of Dr Walker before the Tribunal. First, when asked to elaborate upon his opinion in his report at p. 7 that "[w]hat happened to Mrs Karabolovska at work temporarily aggravated a pre-existing condition and this aggravation ceased sometime after May 2014" and that "[i]t is likely that her current symptoms and conditions represent the natural progression of a pre-existing condition", Dr Walker explained that: The natural history of moderate to severe anxiety and depression that has been present for a long time is that it will wax and wane. So people will have times in life when they seem to - and can function better and times in life where their function deteriorates and their symptoms increase. That is well understood psychiatrically, it's well understood clinically. All of us who have longstanding relationships - treating relationships with patients, we see that. The second thing I will say is Ms Karabolovska continued working for several months after that phone call and in my mind that is consistent with my view that whilst the phone call certainly was unpleasant, certainly aggravated her symptoms at the time in February 2014, I didn't see it as an ongoing stressor or aggravator for her conditions or symptoms. (AB Part C, tab 41 at p. 298.38-299.2) 76 Dr Walker continued to explain that: I think at the core of this is the question, does ruminating about an event causing current symptoms - does that mean objectively that that event has caused those symptoms my view is - in this case - with such a well documented and long pre-existing history of severe impairment that she's been unable to work because of depression and anxiety or pain that no, it doesn't. That in the context of perhaps an abnormal illness behaviour, in the context of financial gain, continuing to say that that phone call is the cause of my symptoms and inability to work does not make the phone call or that incident the cause of her ongoing symptoms and apparent impairment. (AB Part C, tab 41 at p. 304.27-36) 77 He explained further that in his view the applicant's rumination about the phone call was a response to the stressful incident, among other symptoms including anxiety and depression, and was a new symptom. However, he maintained the view "that that phone call doesn't contribute to the overall conditions of anxiety, and if you - if you refer to my report, she has got symptoms of generalised anxiety, that means generalised worries about things, people with that condition, they worry about everything, they worry excessively, they're called worriers, they tend to ruminate about things. She has also had panic attacks, and as I've said, a range of symptoms of depression" (AB Part C, tab 41 at p. 316.18-24).
5.4.2 Did the Tribunal's reasons for affirming the psychological injury reviewable decision comply with the requirements of s 43(2B) of the AAT Act? 78 With respect to the accepted condition of major depressive disorder, recurrent episode, the Tribunal observed that the applicant had been assessed by five different psychiatrists since the incident at Comcare's request. The Tribunal summarised that evidence at [19]-[32] as follows: (1) Dr Richard Burek, consultant psychiatrist, assessed the applicant on 19 May 2014 and prepared a report dated 27 May 2014. The Tribunal summarised his evidence at [20] as concluding that the applicant "had a relapse of her major depressive episode which had waxed and waned since onset in 2004 and had worsened since the incident. He also described it as an aggravation of a preceding or underlying condition. Dr Burek wrote that Ms Karabolovska's major depressive disorder had not ceased and that the aggravation caused by the incident had not ceased either." Dr Burek referred to her symptoms and other conditions which in his opinion contributed to her condition, as well as the medication which she had been prescribed since the incident (Tribunal reasons at [21]). (2) Dr Zsadanyi assessed the applicant on 5 August 2014 with a view to assessing her capacity to continue a rehabilitation program and wrote a report dated 19 August 2014. The Tribunal referred to his opinion that she was probably not working because she presents as moderately depressed with high anxiety levels precipitated by the incident, and observed that premorbidly, the applicant had a history of depression and presented as a fragile, vulnerable woman with decreased resilience and poor coping skills (Tribunal reasons at [23]). Subsequently, following his reassessment of her on 18 October 2016, Dr Zsadanyi assessed the applicant as having a permanent impairment of 10% under Table 5.1 of the Guide to the assessment of the degree of permanent impairment (Tribunal reasons at [27]). (3) Dr Geoff McDonald assessed the applicant on 23 December 2014 and wrote a report dated 16 January 2015. He reassessed her on 19 June 2015 and wrote a report dated 23 June 2015. He considered the applicant's progress was guarded and she was likely to remain very anxious and depressed with significant impairment for about the next two years (Tribunal reasons at [24]-[26]). (4) Dr Walker assessed the applicant on 26 April 2017 and prepared a report dated 1 August 2017. The Tribunal summarised his evidence at [29] in the following terms: Ms Karabolovska's current symptoms were not due to the incident, the temporary aggravation ceased sometime after May 2014, Ms Karabolovska is predisposed to psychiatric conditions and it is likely that her current symptoms and conditions represent the natural progression of her pre-existing condition. (5) Dr Walker provided a supplementary report dated 27 March 2019 in which he maintained his opinion (as he did in oral evidence) that the effects of the incident should have ceased in May 2014 after which the applicant was not at work for the ATO. The Tribunal observed at [31] that Dr Walker's supplementary report was not based upon a reassessment of the applicant. Rather, the Tribunal found at [31] that: … He was provided with voluminous additional information to consider, including documents produced under summons by Ms Karabolovska's general practice [sic], Dr Pakula, Ms Jarman, Ms Trikkis, optometrist, Ms Bilton and Dr Serisier, the T documents and reports from Drs Jones, Delaney, Steiner, Champion and the statements of Mr Karabolovski and Ms Karabolovska. (6) Dr Champion assessed the applicant on 6 July 2008 and wrote a report dated 9 July 2018. The Tribunal observed that he was provided with similar material to that provided to Dr Walker in 2019. The Tribunal at [30] summarised Dr Champion's evidence as follows: … He agreed with Dr Walker's assessment that the incident was a relatively mild stressor and explained why. Dr Champion's opinion was that was [sic] some level of exacerbation in Ms Karabolovska's previous symptoms would be expected as a result of the incident, as would resolution over a period of days or weeks and pre-existing anxiety and depressive symptoms would be expected to continue after the incident as they had before. (emphasis added) 79 In summarising the evidence of each of these expert witnesses, the Tribunal focused upon their conclusions and, in some cases, summarised the materials with which they had been provided. Notably, however, the Tribunal did not explain or analyse the reasons which each of the experts gave for reaching those conclusions. 80 The Tribunal then turned to consider the applicant's medical experts. First, it observed that "[t]here was copious documentary evidence from Dr Pakula from 2005 to date. That is, Dr Pakula being her treating psychiatrist during that period. His opinion is that Ms Karabolovska's current symptoms are caused by the incident" (Tribunal reasons at [33]). Despite Dr Pakula having been the applicant's treating psychiatrist throughout, there is no analysis by the Tribunal of his evidence which, as I later explain, was dismissed by the Tribunal on the basis that it was not objective. 81 The Tribunal also referred to the evidence of Dr Matthew Jones who wrote a report dated 30 April 2018, having assessed the applicant before that date. The Tribunal summarised his evidence as follows: 34. … In his opinion, Ms Karabolovska found the incident at work highly traumatising and it triggered a deterioration in her mental state and an exacerbation and/or relapse of her longstanding depressive illness and her anxiety also increased and continues. 35. He provided a brief supplementary report dated 30 April 2018 in which he set out his opinion that on the balance of probabilities but for the incident, Ms Karabolovska would likely be in some form of gainful employment. He maintained those opinions during his oral evidence. 82 With respect to the remaining medical evidence, the Tribunal simply said without elaboration at [36] that: "[t]he evidence included various reports and records from psychologists, including evidence from Ms Jarman who treated Ms Karabolovska from June 2014 until 2016 and again recently also gave oral evidence." Ms Jarman was a clinical psychologist and psychotherapist although no mention is made of her qualifications by the Tribunal in its reasons. 83 Again it is notable that to the extent to which the Tribunal summarised the evidence of the applicant's medical experts, it referred only to their conclusions. No attempt was made to analyse the reasons given by critical witnesses for the different opinions reached by them. 84 The Tribunal then turned to consider what findings it should make with respect to the evidence of the applicant and her husband, finding that: 39. The Tribunal assesses the evidence before it. The Tribunal finds that the evidence of Mr Karabolovski and Ms Karabolovska is not reliable. That is not a criticism of either of them. They have been living with Ms Karabolovska's condition since at least 2005. Ms Karabolovska firmly attributes the symptoms she has suffered since the incident including her vision symptoms to that incident. She has consistently minimised her symptoms prior to the incident. Years have now lapsed since the incident. Ms Karabolovska does continue to suffer symptoms. The Tribunal accepts that she has self-harmed since the incident which she had not before the incident. 40. The contemporaneous evidence about the medications being prescribed and whether she is taking them or not is inconsistent with her evidence about when she was or was not taking medications. The Tribunal accepts that she does not like taking medications because of the side effects. 41. Mr Karabolovski's accounts of what Ms Karabolovska did at home were inconsistent with her contemporaneous reports to doctors. During his oral evidence he was unable to recall how she was during a particular time and a particular year. The Tribunal repeats, it is not criticising either Ms Karabolovska or Mr Karabolovski in relation to their evidence. 85 The finding that the applicant and her husband's evidence was unreliable was plainly a critical finding. Yet no clear reasons are given for that finding. As best can be understood, after stating that conclusion, the remainder of paragraph [39] of the Tribunal's reasons is concerned with explaining that that finding is not a criticism of the applicant or her husband but a result of subconscious factors, and that the Tribunal nonetheless accepts that the applicant continues to suffer from symptoms and has self-harmed only after the incident. Paragraph [40] may go some way to explaining the basis for the finding at [39] although the Tribunal has not identified the contemporaneous evidence which is said to be inconsistent with the applicant's evidence, or the extent or nature of the inconsistencies. Nor in any event does an inconsistency in the applicant's evidence about her medications rationally explain (at least without more) why the applicant's evidence more generally was regarded as unreliable. Similarly, the Tribunal's finding that "Mr Karabolovski's accounts of what Ms Karabolovska did at home were inconsistent with her contemporaneous reports to doctors" does not identify the inconsistencies or the evidence relied upon save in the most general terms. Furthermore, it does not consider whether any explanations were given for those alleged inconsistencies and, if so, why they were rejected. Moreover, it is not apparent whether the Tribunal relied upon those inconsistencies in support of its finding that their evidence was unreliable or for some other purpose. 86 The Tribunal considered the critical contest in the medical evidence at [41]-[45]. 87 First, the Tribunal referred to the submissions of the applicant's counsel that: … Drs Walker and Champion disregarded the fact that Ms Karabolovska had been able to return to work at the ATO prior to the incident, obtained a promotion, and has not been able to work since the incident. He argued that the preponderance of medical evidence supported her case. He described Dr Walker as a gun for hire, gave reasons for that, and criticised Dr Champion for not engaging with questions, providing a very strange report, and for undermining Dr Pakula by referring to him as an advocate and providing an article on the subject. (Tribunal reasons at [38]) 88 The Tribunal's reasons for accepting the evidence of Drs Walker and Champion are set out in the following passages from its reasons as follows: 42. The Tribunal found Dr Champion's report to be a comprehensive consideration of the medical evidence and very persuasive. It supports the opinion expressed by Dr Walker. The Tribunal accepts that Dr Pakula's evidence is not objective. That is again, not a criticism of Dr Pakula. He has been in a therapeutic relationship with Ms Karabolovska since 2005 which he seeks to maintain. The analysis of his evidence demonstrates that his opinion that Ms Karabolovska was in remission prior to the incident is not objective and is inconsistent with his clinical notes. 43. The Tribunal does not accept that remission is an appropriate description of Ms Karabolovska's condition prior to working for the ATO or prior to the incident. The Tribunal also takes account other aspects of Dr Pakula's evidence commented on by Dr Champion. In addition to Dr Champion's comments on the evidence of other doctors, the Tribunal finds that Drs Burek, Zsadanyi and McDonald were provided with limited information upon which to form their views apart from the information obtained from Ms Karabolovska during the assessments which was unreliable. 44. It also notes that their evidence is consistent with that of Dr Champion in expecting that the exacerbation would end and that Ms Karabolovska would continue to suffer from what might be described as her underlying condition. It was not clear whether Dr Jones had all of Dr Pakula's clinical notes up to the time of the incident. He did not refer to clinical notes for 15 November 2014 or 23 January 2014. 45. The Tribunal accepts Dr Champion's description of the incident as a relatively mild stressor. That Ms Karabolovska returned to work after one or two days off, did not see a medical professional from the day of the incident until she sought a medical certificate on 15 March 2014 for those two days off and then worked her usual hours, although in alternative duties, supports that conclusion. It is unfortunate that Comcare did not look closely at the facts of this case some years ago. 89 These reasons fall well short of the standard required by law. The Tribunal has not sought at this point in its reasons or earlier to engage in any meaningful way with the competing medical evidence and has essentially stated its conclusions and expressed its reasons at the level of vague generalities. Nor do the Tribunal's reasons engage with the applicant's criticisms of Dr Walker's and Dr Champion's opinions, to which it briefly referred at [38] of its reasons. As such, the parties and the Court are left to speculate as to the actual path of reasoning adopted by the Tribunal member in reaching those conclusions. 90 This is not to suggest that the conclusions were not open to the Tribunal based upon the material before it. To the contrary, Mr Kelly, counsel for Comcare, explained in a careful and thorough manner the evidence which could have supported critical findings by the Tribunal and the reasoning which may have led the Tribunal to reach the conclusions which it did. However, while those submissions suggested that the conclusions were capable of being sustained by the evidence, they could not be a substitute for the actual reasons of the Tribunal. Two examples serve to illustrate the deficiencies. 91 First, as Mr Kelly pointed out in submissions with some force, there was a substantial body of evidence potentially capable of supporting the Tribunal's finding that Dr Pakula's evidence suffered from a lack of objectivity and should be rejected. That evidence included the following: (1) the statements by Dr Pakula in his report to Comcare that the applicant was symptom-free (and not merely in remission) when she joined the ATO were allegedly inconsistent with Dr Pakula's own clinical notes which had been the subject of extensive cross-examination; (2) the Tribunal's acceptance of Dr Champion's evidence in which he had relevantly expressed disagreement with Dr Pakula; (3) the applicant's claims that the improvements to her pre-existing condition (such that she was able to re-enter the workforce) had "vanish[ed]" following the incident were potentially inconsistent with her evidence that she left work early on the day of the incident but worked the following day, had one day off, returned to work, and continued to work her usual hours until May 2014; (4) the evidence of Dr Pakula in cross-examination that the applicant was perhaps suffering some symptoms of anxiety after commencing at the ATO, but not depression, whereas his clinical notes were said to have described the applicant as being in the midst of a depressive episode (T89.16-19); and (5) Dr Champion's evidence that treating psychiatrists lack objectivity, and the 1997 article "On Wearing Two Hats…" attached to his report. 92 However, whether all or some of these matters in fact formed the basis of the Tribunal's rejection of the entirety of Dr Pakula's evidence is not disclosed by the reasons. Equally, if some or all of these matters underlay the Tribunal's finding, did the Tribunal reject Dr Pakula's evidence on the basis of the cumulative weight of these matters or did it consider that one or more of these matters in isolation provided a sufficient basis for rejecting his evidence? The answers are not apparent from the reasons. Nor does the Tribunal give reasons for rejecting Dr Pakula's explanations during cross-examination for the alleged inconsistencies. 93 Secondly, the Tribunal found at [42] that the report of Dr Champion was "a comprehensive consideration of the medical evidence and very persuasive". Again, counsel for the respondent submitted that this conclusion and the rejection of Dr Jones' evidence was supported by the evidence. In particular: (1) Dr Champion's report in fact provided commentary on the extensive psychiatric evidence before the Tribunal (T85.19-20); (2) in contrast to Dr Champion, the other psychiatrists, in preparing their reports, either: did not have before them the full extent of the applicant's history prior to the incident; or had before them the history recording that the applicant was well at the time of the incident which was disputed and allegedly inconsistent with Dr Pakula's clinical notes; and (3) it was unclear, as the Tribunal accepted at [44], whether Dr Jones had all of Dr Pakula's clinical notes up to the time of the incident and he did not refer to clinical notes for 15 November 2013 or 23 January 2014 (being those immediately preceding the incident on 25 February 2014). 94 However, while the Tribunal's finding that Dr Champion's evidence was comprehensive is supported by the evidence referred to at (1) above, the mere fact that Dr Champion was provided with and apparently considered all of the other medical evidence does not, without more, explain why his views were accepted: nor does the bare statement that the Tribunal found Dr Champion's evidence to be "very persuasive". For example, it must be inferred that the Tribunal accepted Dr Champion's evidence that the applicant's rumination on her supposed visual difficulties was simply a symptom, albeit a new one, of her pre-existing condition and was not, as other witnesses had said, evidence of continuing aggravation. However, that significant issue is not even mentioned in the Tribunal's reasons. Furthermore, why, for example, was the uncertainty about whether Dr Jones had Dr Pakula's clinical notes for 15 November 2013 and 23 January 2014 significant given among other things that: (a) Dr Jones, in recounting the applicant's history in his report dated 30 April 2018, in any event accepted that Dr Pakula's notes up to 1 November 2013 showed the applicant was "still depressed. She was tremulous and ruminating about her financial situation" (AB Part C, tab 12.2.1 at p. 83 [5.1(b)]); and (b) Dr Jones reached his opinion on the basis that despite her "established history" of anxiety, depression and other problems, she had shown reasonable resilience, entered the workforce and was enjoying her work (AB Part C, tab 12.2.1 at p. 89 [15.1])? Again, such questions are left to bare speculation. 95 It follows that the reasons of the Tribunal fail to disclose the actual path of reasoning by which it arrived at its conclusions and lack sufficient detail to enable the Court on judicial review to determine whether the conclusion is affected by any error of law. As such, the decision on the application in matter no 2018/0353 affirming the determination dated 11 October 2017 must be set aside on the ground of error of law in line with the authorities earlier referred to at [36] and [37] above. In those circumstances, the remaining questions of law with respect to matter no 2018/0353 do not arise and indeed it is highly questionable whether they could be sensibly addressed where the reasons for decision are so deficient.
Karabolovska
Comcare
[2019] AATA 1346
(1983) 48 ALR 500
(1986) 10 FCR 197
(2018) 263 FCR 292
(2018) 259 FCR 1
(1990) 24 FCR 564
(2015) 233 FCR 315
(2010) 240 CLR 611
(1996) 185 CLR 259
(1961) 108 CLR 642
(1985) 155 CLR 422
(1996) 70 ALJR 904
(2008) 235 CLR 286
(2019) 238 LGERA 223
(2013) 252 CLR 480
(2003) 216 CLR 212
(1993) 43 FCR 280
[2008] HCA 31