Consideration regarding the first issue
99 It is worth noting that a decision that an injury, disease or aggravation is suffered as a result of administrative action has a significant consequence in terms of rights to compensation under the SRC Act. The broader the construction of the exclusion, the more is removed from the field of compensation. This is especially so in light of the principle taken to have been established in Hart v Comcare [2005] FCAFC 16; (2005) 87 ALD 34 ("Hart") (at [21]-[23]) that, however many separate causes of an injury may have arisen out of or in the course of an employee's employment, if any one of those causes falls within the exclusion the employee is wholly disentitled to compensation in respect of that injury (see also Reeve at [54]-[56] and [24]).
100 Ms Martin submitted that the Tribunal erred in its approach to whether her adjustment disorder was suffered as a result of the failure of her application for promotion and that the primary judge erred in dismissing the Notice of Contention. She contended that on the correct construction of s 5A(1) of the SRC Act, and on the factual findings made by the Tribunal, her adjustment disorder was not suffered as a result of the failure to be promoted.
101 She argued that her being required to return to her substantive position was an "indirect or unintended" consequence of the decision not to promote her, and that the exclusion should be construed so that it does not relate to indirect or unintended consequences of an administrative decision. On Ms Martin's argument, construing the exclusion in that way would be contrary to the beneficial nature of the SRC Act.
102 Comcare contended that there is no warrant for reading down the exclusion so that it does not include "indirect or unintended" consequences. It noted that the definition of "injury" in s 5A(1) was introduced by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth). The previous definition of "injury" contained an exclusion in similar, but more limited, terms to the present exclusion. Comcare contended, and I accept, that the purpose of the amendment was to broaden the operation of the exclusion in s 5A.
103 As Rares and Tracey JJ said in Reeve at [72], and I respectfully agree:
…the purpose of s 5A was to broaden the exclusion of matters from the previous definition of "injury" so that an employer would not be unduly inhibited in taking reasonable administrative action in respect of an employee's employment. The Parliament sought to ensure that an employer would be freer to deal with an employee, by taking disciplinary action or deciding to deal with that employee as an individual in respect of his or her employment, than had been the case under what it considered were narrow judicial interpretations of the old exclusion in s 4(1).
There is, however, nothing in the legislative history or extrinsic materials which provides a clear statement of intention as to the limits of the breadth of the exclusion: Reeve at [25] (Gray J).
104 Comcare argued that the consequences of an employee's failure to obtain a promotion (such as being sent back to the employee's substantive position) are "necessarily bound up" with the decision not to promote the person. It contended that Ms Martin's adjustment disorder was inextricably linked to the decision not to appoint her to the position of cross media reporter, and that her concern about returning to work under Mr Mellett was (as the Tribunal found) "a direct and foreseeable consequence of the decision" not to promote her.
105 I do not accept Ms Martin's contention that the exclusion should be read so that it does not include "indirect or unintended" consequences of administrative action. In my view that construction seeks to put an unjustified gloss on the statutory test as to whether the relevant injury, disease or aggravation is suffered as a result of the administrative action. The enquiry is one of causation and it does not include a requirement that the condition be a direct or intended result of such action. I respectfully agree with the primary judge that acceptance of this contention would require additional words to be read into s 5A(2)(f) and that there is no proper basis to do so. While the SRC Act is remedial and it should be construed beneficially, that approach must be kept within the confines of the actual language employed: Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638 (Mason, Brennan, Deane and Dawson JJ).
106 Having said this, I consider the Tribunal erred in its construction of the exclusion, and in my respectful view the learned primary judge erred in dismissing the Notice of Contention.
107 First, the task of construing s 5A must begin with a consideration of the text itself as those words are the surest guide to the intention of the legislature. The expression "suffered as a result of" requires that, for the exclusion to apply, a causal relationship must be established between the relevant administrative action and the claimed injury, disease or aggravation.
108 Second, it is important to keep in mind that in cases such as this causation is a matter of common sense: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515 (Mason CJ); Fitzgerald v Penn (1954) 91 CLR 268 at 277 (Dixon CJ, Fullagar and Kitto JJ). While those cases dealt with causation in the context of negligence claims the test for causation is the same in a workers' compensation context. In Migge v Wormald Bros Industries Limited [1972] 2 NSWLR 29 at 44 Mason JA (in dissent) explained:
…causation in tort does not differ from causation under the workers' compensation legislation. In that field and in cases concerning liability for personal injury it has been emphasised repeatedly that questions of causation are to be resolved by the application to the facts of the case of common sense, rather than scientific or logical theories of causation.
His Honour's view was endorsed by the High Court on appeal: Migge v Wormald Bros Industries Limited (1973) 47 ALJR 236.
109 As Rares and Tracey JJ said in Reeve at [65]:
The assessment of whether a disease, injury or aggravation has been suffered as a result of reasonable administrative action within the meaning of s 5A(1) involves the formation of a judgment as to causation. This requires a tribunal of fact to ascertain whether the disease, injury or aggravation is the, or a, common sense, consequence of what is identified as reasonable administrative action by the employer in respect of the employee's employment.
110 The Tribunal's task was to decide, by the application of common sense to the facts as it found them, whether Ms Martin's adjustment disorder was suffered as a result of the failure to promote her to the permanent cross media reporter position.
111 Third, it is clear from the Tribunal's reasons that it did not accept Comcare's contention that Ms Martin's psychological injury arose from disappointment, distress or resentment about not being appointed to the position she sought. It concluded that she became incapacitated by the adjustment disorder when she was informed that she would be returning to work under the supervision of Mr Mellett, where she feared a continuation of the claimed bullying. The Tribunal:
(a) found that Ms Martin was already suffering an adjustment disorder prior to the 16 March 2012 telephone conversation. It accepted that Ms Martin was probably suffering an adjustment disorder when she saw Dr Kulatunga in July 2011 (at [39]), that she continued to suffer the adjustment disorder throughout the period from August 2011 to March 2012 and was just "limping along mentally and physically during this period" (at [36] and [42]);
(b) found there was powerful evidence to corroborate Ms Martin's claim that her belief she had been mistreated by Mr Mellett predated the decision not to appoint her to that position (at [57]);
(c) accepted Ms Raabus' and Ms Martin's evidence about Ms Martin's reactions in their 16 March 2012 telephone conversation (at [53]), including:
(i) Ms Raabus' account that when Ms Martin was told that she had been unsuccessful in obtaining the position, while she was disappointed she initially appeared to take that news in her stride;
(ii) Ms Raabus' account that it was not until later in the conversation, when Ms Martin was told that she would be returning to work under the supervision of Mr Mellett, that she became very upset and emotional, said she had problems with Mr Mellett and said that she did not want to return to work under his management; and
(iii) Ms Martin's account that it was not until she realised she be returning to work with Mr Mellett that she felt devastated and overwhelmed by hopelessness;
(d) accepted (at [56] and [58]) the expert psychiatrists' evidence that:
(i) the history they had been given by Ms Martin did not suggest that she had any particular interest in the cross media reporter position or a "yen for career advancement" but rather saw the position as a way to remove herself from Mr Mellett's supervision;
(ii) the deterioration in Ms Martin's condition was caused by her realisation that she would be required to return to work under Mr Mellett's supervision and, as she saw it, her position had become hopeless; and
(iii) her "yen" for the position was so minor its contribution to her adjustment disorder was immaterial.
112 Most importantly, the Tribunal made a finding of causation (at [58]) which is, in my view, critical. It found that what caused Ms Martin to "decompensate" on 16 March 2012 was the realisation that she would be required to return to her substantive position under the direct supervision of Mr Mellett and her belief that the claimed bullying would continue.
113 This causation finding is entirely congruent with the factual findings the Tribunal made on the lay and medical evidence relevant to causation. It is at odds with the Tribunal's later (in my view erroneous) conclusion (at [62]) that one of the causes of Ms Martin's adjustment disorder was her failure to obtain the position of cross media reporter and that she suffered that condition as a result of that administrative action.
114 Fourth, I do not accept Comcare's contention that, as a matter of construction of s 5A, a consequence of an employee's failure to obtain a promotion (such as being informed about being sent back to his or her substantive position) is necessarily bound up with the decision not to promote the person. For this argument Comcare relied on obiter remarks of the Full Court in Hart at [26] (Branson, Conti and Allsop JJ) where the Court said:
As to the way the primary judge approached the matter, we are of the view that as a matter of construction of the definition the distinction drawn by the Tribunal was not necessarily inappropriate. The events which surround a promotion process may, conceivably, be such as to cause serious injury, mental or physical. Injury as a result thereof could be quite distinct from any injury suffered as a result of a failure to obtain a promotion. However, equally, distress at or with the process of assessing the candidates for promotion may, as a matter of fact, be suffered as a result of failure to obtain the promotion. It is possible to envisage circumstances where someone who would have had no, or limited, criticism of the events surrounding a promotion process had he or she achieved the promotion, becomes aggrieved by those processes to the extent of suffering psychological harm following a failure to obtain the promotion. In such circumstances, there may be factual issues, including medical issues, as to what was the role of the events in the procedure and of the failure to obtain the promotion. However, we do not think that it can be concluded, as a matter of construction of the definition, that events concerned with the process of evaluation of the promotion application are necessarily bound up with the decision as to the promotion and any failure to obtain the promotion.
(Emphasis added.)
115 I consider Comcare's reliance on these remarks is misplaced. In Hart the applicant was unsuccessful in various promotion attempts and her compensation claim centred on events connected with procedures employed in the process leading up to the decisions. The Tribunal identified two concurrent causes for Ms Hart's psychological condition. The first was incidents associated with the application, interview and promotion process which contributed materially to Ms Hart's disease but which, in the Tribunal's view, did not fall within the exclusion in the equivalent provision to s 5A(1). The second was the failure to obtain promotion which did fall within the exclusion.
116 The Tribunal found that because some causes of Ms Hart's condition were excluded she should succeed in her claim. On appeal Whitlam J held that the distinction between a failure to obtain a promotion occasioning disappointment and distress and an application, promotion and interview process causing upset and emotional disturbance was spurious: Comcare v Hart [2004] FCA 1144 at [11].
117 While the Full Court found that the Tribunal erred in excluding those causes which were not a result of the failure by the employee to obtain a promotion, the Court did not accept Whitlam J's view. As the emphasised passage in the extract above shows, the Full Court considered that, as a matter of construction, events concerned with a promotion application are not necessarily bound up with the decision as to the promotion and any failure to obtain the promotion. Whether they are or not will depend upon factual issues, including medical issues, as to the role of the events in the promotion procedure and the failure to obtain the promotion.
118 In the present case, the Tribunal's findings on the lay and medical evidence strongly indicate that it concluded that Ms Martin's adjustment disorder was not inextricably bound up with the decision not to appoint her. Amongst other findings, the Tribunal accepted the expert psychiatric evidence that separated the effects of the failure to promote Ms Martin from the effects of her realisation that she would be returned to a workplace where she feared bullying.
119 Comcare contended that the close temporal connection between the decision not to promote Ms Martin and her severe psychological reaction showed that the two matters were necessarily bound up. I do not agree. The same close temporal connection existed between her being informed that she would be returning to Mr Mellett's supervision and her psychological reaction. Whether either (or both) of those events was the, or a, cause of the adjustment disorder was to be determined on the evidence, including the expert medical evidence. The pertinent expert evidence from both sides, accepted by the Tribunal, was the same and it went against Comcare's contention.
120 Fifth, I consider the Tribunal's conclusion, seen in light of its factual findings at [42], [53], [56], [57] and [58], shows that it misconstrued the meaning of the expression "suffered as a result of" in s 5A(1) and it took an erroneous approach to causation. This can be seen in the Tribunal's statements:
(a) (at [61]) that the fact that Ms Martin's "reaction to the offending decision was primarily attributable to her dread of returning to work under Mr Mellett and not her disappointment with lack of career advancement, is irrelevant". Contrary to the Tribunal's statement, that Ms Martin's psychological reaction was primarily attributable to her dread in relation to Mr Mellett was plainly relevant, perhaps central, in a proper approach to deciding whether her psychological injury was suffered as a result of the failure to promote her;
(b) (at [60]) that one of the consequences of Ms Martin's failure to obtain the promotion was that she would be denied a small pay increase and the opportunity to further develop her skills in cross media production. Comcare was unable to point to any foundation in the evidence for the proposition that Ms Martin's adjustment disorder was caused by the denial of a small pay increase and/or the opportunity to improve her cross media production skills. There is no basis for treating that particular consequence as causative of the claimed disease. It is a statement about something that followed from the decision to refuse her promotion but which, on the evidence, did not cause her psychological condition. The Tribunal's error was to confuse consequence with causation, when they may not be coincident in this statutory context; and
(c) (at [61]) that, in Ms Martin's mind, the prospect of returning to work under Mr Mellett was "a direct and foreseeable consequence" of the decision not to appoint her to the position she sought. As Mason CJ noted in March v Stramare at 510 (citing Chapman v Hearse (1961) 106 CLR 112 at 122) "the term 'reasonably foreseeable' is not in itself a test of causation". Mason CJ rejected reasonable foresight as a test of causation (at 515) noting that the cause of a particular occurrence must be determined by applying common sense to the facts of each particular case. It may also be noted that this finding is inconsistent with the evidence, accepted by the Tribunal, that Ms Martin took the news that she would not be promoted "in her stride". There is nothing in the decision to indicate that there was evidence before the Tribunal to support a finding that Ms Martin saw it as a "direct and foreseeable consequence" of the failure to promote her that she would be returned to her former position.
121 I consider the Tribunal wrongly construed the expression "suffered as a result of" as permitting it to treat as causative an event which was no more than chronologically precedent to the event which was - on the lay and expert evidence accepted by the Tribunal - the cause of the adjustment disorder. The question of whether she suffered the adjustment disorder as a result of the failure to promote her was not a matter to be determined by using metaphysical concepts of cause and effect and instead required a common sense approach to the facts as it had found them.
122 Sixth, although this is not central to my view (and keeping in mind that it was not argued before the Tribunal) it was wrong for the Tribunal to approach the issue of causation on the assumption that Ms Martin being returned to her substantive position was an inevitable consequence of the failure to promote her. It is likely that there was an intervening administrative action (such as making the further decision that she was to revert to working under the supervision of Mr Mellett, informing her of that decision or maintaining the decision to return Ms Martin to Mr Mellett's supervision when Ms Raabus was made aware of Ms Martin's concerns regarding him). It is unlikely with a large employer such as the ABC that, upon the failure of an application for promotion, it is inevitable that an employee will be forced to return to a position where he or she claimed to be bullied.
123 Logically, any decision to return Ms Martin to her substantive position was subsequent to the decision not to promote her, and on the medical evidence and the Tribunal's findings it was the later decision which was the cause of the adjustment disorder. Before us, Comcare appeared to accept that if Ms Martin was not to be sent back to a workplace where she feared bullying and instead, for example, she was left temporarily in the acting position or appointed to another position then the adjustment disorder was unlikely to have resulted.
124 Seventh, Comcare submitted that to allow the appeal on this issue would wreak havoc on the ability of the Commonwealth to make promotion decisions. It argued that, in a practical way, it was impossible for Commonwealth employers to know what consequences might flow from administrative decisions refusing promotion. This submission was a serious overstatement. The exclusion in s 5A plainly operates to exclude compensation where the cause of an employee's psychological injury is disappointment, distress or resentment regarding a decision to refuse promotion. Nothing I have said undercuts that proposition. The question whether injury is suffered as a result of a failure to be promoted is one of causation, to be determined on the facts of each case. In the present case the Tribunal found that the ABC's failure to promote Ms Martin was "immaterial" in causing her condition.
125 The Tribunal's error of construction and its erroneous approach to causation led it to subvert its earlier factual findings as to the cause of Ms Martin's adjustment disorder. It did not apply common sense to the facts, as found by it, that the cause of Ms Martin's condition was not the failure to promote her. In my respectful view the learned primary judge erred in upholding the Tribunal's decision on this issue.
126 Finally, I note in passing that Comcare relied on parts of the Tribunal's reasons to argue the Tribunal did not find that the only cause of Ms Martin's adjustment disorder was her realisation that she would be required to return to her substantive position and her belief that the claimed bullying would continue. It contended that these passages indicated that the Tribunal decided that there was more than one operative cause of Ms Martin suffering the adjustment disorder, thereby attracting the operation of the principle stated in Hart at [21]-[23]. Comcare pointed, amongst others, to the Tribunal's statements that:
(a) the primary reason why Ms Martin applied for the cross media reporter position was to remove herself from Mr Mellett's direct supervision (at [58]). However, the Tribunal's use of "primary" (at [58]) relates to the reason why Ms Martin applied for the permanent position rather than to the reason that she suffered her psychological condition. This statement does not assist Comcare; and
(b) Ms Martin's reaction to the offending decision was primarily attributable to her dread of returning to work under Mr Mellett and not her disappointment with lack of career advancement (at [61]). However, the Tribunal expressly found (at [56]) that Ms Martin's desire for the cross media reporter position was "so minor its contribution to [her] adjustment disorder was immaterial". Seen in that light the statement at [61] provides little support for Comcare's contention.