Kirkpatrick, J. v. The Commonwealth of Australia [1985] FCA 594

Migge v. Wormald Bros. Industries Ltd. (1972) 2 NSWLR 29; and on appeal, 47 ALJR 236.

Australian Telecommunications Commission v. Tzikas, unreported, Full Court, Smithers, Sweeney and Woodward JJ., 12 August 1985.

McMullen v. Commissioner for Superannuation (1985) 61 ALR 189.

Davies, Beaumont & Burchett JJ. Sydney 26 November 1985

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION

Applicant AND: THE COMMONWEALTH OF AUSTRALIA Respondent MINUTE OF ORDERS dudges Making Order: Davies, Beaumont and Burchett JJ. Date of Order: 26 November 1985

Liberty to the Respondent to apply for the costs of the appeal, if so advised.

Settlement and entry of order is dealt with by Order 36 of the Federal Court Rules.

THE COURT: This is an appeal from a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Commissioner for Employees' Compensation that the Commonwealth was not liable to make weekly payments of

compensation under s.45 or s.46 of the Compensation (Commonwealth

Government Employees) Act 1971 from 21 April 1981 in respect of a

personal injury sustained by the applicant on 3 November 1980.

The Tribunal dealt with the matter on a somewhat wider

basis than one confined to the claim with which the decision of

the Delegate had been concerned. No complaint is made in this

respect. The case sought to be made before the Tribunal involved

the following facts. The applicant, who was born on 2 February 1926, worked at Garden Island as an electrical fitter for almost thirty years. On 23 December 1979 a stool upon which he was seated at work slipped from under him, causing him to fall onto his buttocks. He suffered a coccydynia and was absent from work for six weeks. He received payments of compensation for the period from 21 December 1979 to 1 February 1980. Thereafter he worked until 3 November 1980, when a metal cylinder, in relation to which he was doing some work, fell onto his left fourth toe fracturing the proximal phalanx. He received compensation again until 20 April 1981, when an orthopaedic surgeon, Dr. W.G. Donaldson, certified him fit to return to work. However the applicant did not accept the doctor's view, and has not worked since. He took a period of extended sick leave, after which he

At the time Dr. Donaldson expressed the view that the applicant was fit to return to work, there 13 no suggestion that his complaints related to any psychiatric condition. His only symptoms then were "occasional persisting pain in his coccyx", "only occasional twinges in that toe" (i.e. the toe which had

been fractured) and, most importantly, "aches in his right leg".

Following the cessation of compensation payments, the applicant presented, to obtain sick leave, a series of medical certificates from his general practitioner, a Dr. Lui, certifying

that he had fibrositis of the right leg. There were also

certificates referring to arthritis. These continued up to the

However eon 8 March 1984 the applicant saw a psychiatrist, Dr. G.A. Robbie, whose reports and oral evidence were received by the Tribunal. In addition, the Tribunal heard evidence and received reports from Dr. J.W. Shand, another psychiatrist, who examined him for the Respondent. The psychiatric evidence showed that the applicant was suffering from a compensation neurosis, There was some disagreement between Dr. Robbie and Dr. Shand as to other aspects of his condition, such ag the weight to be given to hospitalisation he had undergone at Broughton Hall in 1949 for what was then diagnosed as schizophrenia. Also Dr. Robbie made it clear that establishing a diagnosis was no simple matter. In the course of his lengthy

"It did seem to me that by early 1980 he felt he had had enough of the sort of work he was doing ... His over-valued idea is that he has got something physically wrong with him that prevents him doing his former job. This is extended to the idea that doctors support him, and that it was unreasonable for Garden Island not to provide him with a different job. Separate to this idea, but bound up with it, is a compensation neurosis. There is a certain litigious aspect to this. His mind is troubled to an illness degree by

thoughts of unfairness, unreasonable treatment, illness, all mixed up with redress and compensation. With the compensation

neurosis and the over-valued idea I would suggest he probably has a depression too, though he denies it.... I would suggest he has become tired and old, and that for one reason or another a pain in his leg has come to symbolise this. The initial somatisation

disorder, or perhaps there was a physical problem at the time, then became a more extended over-valued idea, which then acquired its compensation neurosis aspects. He has a psychiatric condition alright (sic), a mixture of residual psychosis and the neurosis, that really represents a culmination of his life's work and life's problems. As well he is depressed, and it could be that a background depression is the

main cause for his whole reaction... He rationalises that all he wanted was an easier job at Garden Island. He feels the authorities there were unprepared to

reasonably accommodate him in this regard... I have little doubt that even if he were offered light duties he would not return. He has retired himself. He is tired, and he has had enough... Unravelling his compensation case is vexing. He is retired, and he has

had enough... Because of his very problem I cannot have got the full story."

(An over-valued idea, the doctor explained, is an idea which is not quite psychotic but is between a conviction and a psychotic

"Whatever may be causing his right shin pain, which I think is likely to be genuine, he has a compensation neurosis arising from intense resentment about the way he claimed he was treated at work and from his conviction that the accident had provoked his physical complaints and handicaps."

( He added that he could find "no signs to explain the complaint of pain in the right shin." On this matter he commented: "However the patient is convinced that spinal

disorder, exacerbated or brought to the surface by the accidents is responsible for

it, and I am certain that nothing will change his mind. He is not a candidate for psychiatric therapy and is completely unmotivated to return to work, at least until after completion of litigation."

The Tribunal found that "the applicant was not incapacitated for work in April 1981 by reason of any work-caused or work-contributed physical impairment." The Tribunal added:

in his right leg, which was the principal cause of his incapacity for work thereafter, was not attributable to the injuries that he had sustained at work in 1979 or 1980. We also find that by April 1981, any residual back pain from the 1979 accident had resolved and that it was not incapacitating

for work. His broken toe had, by that date, healed uneventfully."

These findings are amply supported by the evidence and are not

The Tribunal went on to consider what could only be described as a speculation of Dr. Robbie, with which Dr. Shand disagreed, that the applicant may have suffered an aggravation of a residual psychiatric condition resulting from his 1949 illness, treated at Broughton Hail, which was then diagnosed as schizophrenia. The Tribunal rejected this possibility, and again

appeal, was whether the disease of compensation neurosis, which

both psychiatrists agreed the applicant had come to suffer, was within the meaning of s.29 of the Compensation (Commonwealth

Government Employees) Act 1971, a disease to the contraction of

which the employment of the applicant by the Commonwealth was a contributing factor (see 5.29(1)(b)). Upon this issue the

"In our view, the probabilities are that during 1980, the applicant did suffer a degree of incapacitating pain in his right leg, with occasional back pain, although not enough to cause him to lose time off work. The probabilities also are that any pain in his leg abated substantially once the applicant ceased work. The applicant nevertheless genuinely believes that his leg is painful and that he could not cope with his former work as a consequence. This belief, which is of neurotic origin, stems

from his conviction that the leg pain is due to his back injury in 1979. The belief has been maintained because of his resentment at being denied light work and at having his compensation terminated. However, as we earlier said, we do not consider that the pain in his right leg from which the applicant suffered during 1980 was attributable to his accident in 1979."

The Tribunal, having made these findings, proceeded as follows:

"The evidence in our view establishes, as Dr Robbie said, that at the date when he resigned, the applicant had had enough. He

was feeling his age. He had developed pains in his right leg which made sustained walking

difficult. He was not prepared to go back to work if it meant doing the heavy work on ships which he did not like and with which he felt he could no longer cope. He felt that after his years of conscientious hard work he was entitled to some consideration from his employer. When his request for light work was refused, he decided to call it a day, and resign. In our view those findings do not

establish an entitlement to compensation under the Act. The development of a compensation neurosis over the failure of the Commonwealth to pay compensation in respect of an allegedly disabling physical condition that is not itself compensable cannot in our view be a ground for payment of compensation. Were the position otherwise, every unjustified claim for compensation that, on rejection, gave rise to a compensation neurosis would be, for that reason alone, compensable as a disease to which the applicant's employment was ai contributing factor (see s.29 of the Act). We are not aware of any decided case that has gone that far, nor was any authority cited to us. Accordingly, we propose to affirm the decision under review."

The appeal to this Court is of course limited by s.44 of

the Administrative Appeals Tribunal Act 1975 to "a question of

law". There was evidence upon which it was clearly open to the Tribunal to come to the conclusion, to which it came, that the applicant's compensation neurosis developed out of an allegedly disabling condition which was not itself compensable, that is, in

But the applicant's counsel argues that it was accepted that the applicant genuinely believed his right leg problem was related to the injury to his coccyx. He argues that the neurosis, which arose at some time following the rejection of the claim for compensation in respect of the leg disability, involved the belief that the disability was related to the coccygeal injury. Accordingly it was contended the employment, out of which that injury arose, was itself a contributing factor to the

contraction of the mental disease. But the fact is the leg

disability had nothing to do with the work injury. And thinking cannot make it so. The fact that the applicant thought his disability arose out of his work, and therefore thought it compensable, may have been potent factors in the development of his neurosis. But these were thoughts in his mind. They did not mean that his employment actually was a contributing factor in the development of his neurosis. The contrary view would lead to absurd consequences. For example, a worker might wrongly believe that a boil was suffered as a result of dust at work and become

resentful upon the proper rejection of his claim. Tf sucha

worker then developed a neurosis, it would seem to be a necessary consequence of the applicant's argument, if correct, that he would be entitled to compensation for the neurosis arising solely out of the correct refusal of the claim for compensation for the

The applicant's case is to be contrasted with cases such as Federal Broom Co. Pty. Ltd. v. Semlitch (1964) 110 CLR 626 and Migge v. Wormald Bros. Industries Ltd. (1972) 2 NSWLR 29, reversed on appeal 47 ALJR 236. In the former case a work accident aggravated a previous schizophrenic condition by producing a new delusion. Kitto J. at p.634 said:

employment causes a pre-existing mental disorder to manifest itself in a new delusion, it seems to me proper to say that

In the latter case Mason J.A. (as he then was), whose dissenting judgment was approved upon appeal to the High Court, referred to a work accident and hospitalisation to which it led as having "set in motion the delusional condition" from which the worker thereafter suffered (p.43). In both of these cases, the work incident was actually operative as a factor in producing the worker's condition. That condition happened' to be one involving delusions, but it was no delusion that the work incident produced the relevant mental effect. In the present case, on the other hand, the worker suffered a condition of leg disability, to which the work had not been a contributing factor, and it is his mere belief that the work had been a contributing factor to the disability that is relied upon as being causally related to the subsequent neurosis. But there is a passage in the judgment of Mason J.A. (as he then was) at p.44 which is pertinent. He says:

common sense, rather than scientific or logical theories of causation."

At p.47 he added: "The question of causation is essentially one of fact." Eschewing metaphysics, the decision of the Tribunal is in this case fundamentally a finding of fact upon a common sense consideration of the factors which led to the applicant's condition (cf. the approach of Denning J. in Minister of Pensions v. Chennell (1946) 2 All ER 720 at 721 cited by Davies J. in

Holthouse v. Repatriation Commission (unreported, 24/6/82)).

In Australian Telecommunications Commission v. TIzikas, (unreported, Full Court Smithers, Sweeney and Woodward JJ., 12 August 1985) the joint judgment of Sweeney and Woodward JJ. contains some observations concerning a claim for compensation for further aggravation of neurosis by (inter alia) resentment towards the employer alleged to have resulted "first, from the actual (i.e. original) aggravation and acceleration of the illness, then, from the loss of her previous income, and finally from the delays which occurred as the result of the procedures which were needed in order for her to obtain compensation." It was acase inwhich it was accepted that an aggravation had originally occurred by reason of excessive noise in the workplace, but payments of compensation had been terminated on the basis that the aggravation was spent. The Tribunal restored the payments, and upon appeal the Full Court referred the matter back for reconsideration, as Sweeney and Woodward JJ. put it, "to determine whether the continuing resentment of the respondent about the first aggravation and acceleration of her disease is in fact causally related to her former employment and, if so, whether it is playing such a part in her present state of health that it can properly and fairly be said to be contributing to a current aggravation or acceleration of her disease and not merely providing a focus for that disease." They also said:

described so that, in one sense, they play a part in the iliness, but not in such a way as

to add to existing incapacity. Since it tended to refer interchangeably to the

sequelae contributing to the illness and contributing to the incapacity, we think it is likely that the distinction that we have referred to was not always borne in mind by the Tribunal."

These passages support, as available in law, the approach of the Tribunal in the present case insofar as it treats the belief that the leg disability was attributable to a work incident as an inert focus for a neurosis determined by other

factors. Whether that approach was correct upon the facts of

this case was for the Tribunal (cf Aafjes v. Kearney (1976) 8 ALR

455), there certainly being evidence to sustain it.

A separate argument was advanced for the applicant that the Tribunal had denied him natural justice by its reliance upon a definition of "compensation neurosis" taken froma medical dictionary. It was asserted that this involved a breach of the audi alteram partem rule. The passage out of which this argument arises, in the Reasons of the Tribunal, immediately precedes the

two paragraphs which have already been quoted. It reads:

to describe the neurotic prolongation of symptoms for monetary gain. It is frequently used in a pejorative sense. Thus the expression is defined in the Gould Medical Dictionary, 4th Edn. as:-

'A neurotic reaction motivated by the uncontrollable desire to receive a monetary award for damages or injuries or some other secondary gain; a common complication in traumatic neurosis.'

it is, therefore, a condition that is regarded with some suspicion."

Although the applicant complains of this passage, his counsel was unable to point to any way in which the Tribunal had utilised anything in it in order to reach a conclusion adverse to the applicant. On the contrary, despite the attitude of "some suspicion" referred to, the Tribunal afew sentences later expressed the view that the applicant's complaints about his leg

and his inability to cope with his work were genuinely made.

In any case, it is not to be doubted that the Tribunal was entitled to consult a standard medical dictionary in order better to understand medical evidence in which technical words were employed by the witnesses. That the evidence, when so understood, may have led it to regard the condition alleged by the applicant as in itself provocative of some suspicion cannot, in circumstances such as the present, make any difference. For it was perfectly clear, from the searching consideration devoted to the applicant's complaints in the medical reports, that the case had indeed been so regarded by both the psychiatrists. It could not have been otherwise. The passage in the Reasons of the Tribunal does not suggest a new point discovered in the dictionary which the applicant had not been given a fair

In McMullen v. Commissioner for Superannuation (1985) 61

ALR 189, the joint judgment of the Court at p.207 contains the

this aspect of the matter, namely that in referring to medical publications without giving the applicant and her advisers the opportunity to reply thereto and without putting them to Dr Merrifield the Tribunal denied natural justice to her."

In that appeal, the issue in relation to which medical publications were referred to was a central issue, and the publications were not limited to medical dictionaries but included general texts. The Court at p.209 rejected the

"We have considered the submission by counsel for the applicant that in informing itself by reference to the texts, as it was entitled to do pursuant to $.33(1)(c) of the Administrative Appeals Tribunal Act 1975, and not inviting Dr Merrifield or the applicant or her advisers to comment thereon, the Tribunal denied natural justice to the applicant. We cannot accept the submission. Having regard to the limited purpose for which the Tribunal consulted the texts, namely to assist it in determining the question whether the words 'mental condition' in s.184(5), on their proper construction, were wide enough to include the applicant's personality disorder as established by the material before it, we can find no denial of natural justice by the Tribunal in that respect."

The Court in McMullen''s case also referred to what was said by

Deane J. about the rules of natural justice in Minister for

Immigration and Ethnic Affairs v. Pochi (1980) 31 ALR 666 at 686. The passage which the Court cited includes the statement: "(T)he precise content of those rules will vary according to the statutory framework of the particular proceedings and the particular circumstances of the individual case." In the particular circumstances of the present case there is no substance in the complaint that the rules of natural justice forbad the Tribunal to make use of the medical dictionary. As in McMullen's case, it was used for a limited and appropriate purpose. Also, its use did not disadvantage the Applicant. It is unnecessary, for the purposes of this case, to explore the outer limits of the extent to which it would be proper for the Tribunal to avail itself of such material. On any view of those

Respondent to apply for the costs of the appeal, if so advised.

I certify that this and the preceding thirteen (13) pages

are a true copy of the Reasons for Judgment herein of the