Rodriguez v Telstra Corp Ltd

'We were putting up partitions on the 5th floor when two partitions came out of joint and started to fall. I had to catch them in midair, because the partitions were about to fall on me.' " 6 This version is to be compared with the description of the incident given by Mr Rodriguez when, on 6 July 1993, he made application for compensation for injury to his neck, shoulders and back: "While two other workers were putting up partitions to set up office area they fell on top of me I had to hang on to full weight till others came to rescue. I advised supervisor from the moment it happened I could not turn my neck and shoulder area was very painful." 7 Shortly after the incident, on 15 and 19 June 1992, Mr Rodriguez attended the Lyle Chiropractic Centre in Fairfield, and between 5 August and 19 August 1992, on four occasions, he attended an osteopath, Alan Bradley. The applicant's treatment at the Lyle Chiropractic Clinic and by the osteopath was paid for by Telstra. 8 The Tribunal accepted that there was an incident on 11 June 1992 in which Mr Rodriguez caught partitions and prevented them from falling, and in the days following the incident experienced pain and stiffness in his neck and shoulders, but rejected the version by Mr Rodriguez that he was hit on the head by the two falling partitions, or that he suffered constant neck pain in the six months following the incident. 9 The Tribunal found: "The applicant's neck problems are due to a naturally occurring degeneration and are not compensable." 10 On the hearing of this application, Mr Moon, counsel for the applicant, conceded that, on the basis of the findings by the Tribunal, he was unable to argue that there had been an error of law in relation to the affirmation by the Tribunal of the first two decisions the subject of applications for review. This appeal thus concerns the question of whether any legal error taints the decision of the Tribunal to affirm the decision to reject compensation for a major depressive disorder. 11 As indicated above, the claims before the Tribunal relating to the major depressive disorder suggested that Mr Rodriguez had suffered stress as a result of pain associated with his cervical spine problem, discrimination and victimisation at work, and being unfairly and unreasonably reprimanded. 12 In September 1992 Mr Rodriguez accepted a transfer from Sydney to Townsville, occupying there the same job classification of AO2 as he had occupied in Sydney. His duties in Townsville included assisting with the standardisation of policies and procedures throughout the Queensland country region. Within a few weeks of starting work at the Townsville Office, he took on the job of floor warden on the seventh floor of the building where he worked. 13 On 3 November 1992 Mr Rodriguez applied for an AO3 position. He was unsuccessful in gaining that promotion. In January or February 1993 he discovered that his name had not been placed on a list known as the "order of merit". Being on the list was regarded as a measure of the worker's worth for the purposes of potential promotion. He sought unsuccessfully to have his name placed on that list. The Tribunal found: "The applicant began to believe that the promotion process at which he had been unsuccessful in late 1992, had been carried out in an unfair manner. On 15 March, 1993, the applicant appealed against the decision to not promote him. He said, in his application for appeal, the process of selection 'was not done in a legal manner'.

The work that the applicant was doing was not demanding. He regarded it as menial. He considered that he was capable of doing better quality work.

On 23 April 1993, the applicant withdrew his appeal relating to promotion." 14 The sick leave records of the applicant show that, after the time of the incident on 11 June 1992, he did not have any time off work in connection with any neck injury until 17 May 1993, and in May and July of 1993 he had a total of seven days sick leave for what was said to be "Agg. cervical spondylosis". 15 The Tribunal found: "From May 1993 until the applicant ceased work [for Telstra] on 12 May 1994, he and his supervisors were in an almost constant state of conflict." The Tribunal noted: "The applicant developed a pattern of behaviour whereby he would make an appointment to see a physiotherapist, without reference to his supervisor. The applicant would make the appointment for a time between 9.00am and 10.30am, depending on availability, and get to work at 11.00am or 12.00 midday. He would then claim that he had started work at 8.30am. The applicant continually claimed that he was entitled to do so because his treatment should be accepted as an extension of the acceptance of his neck injury in June/July 1992. His supervisor did not agree and eventually forced the applicant to make a new application for compensation. … Throughout 1993, the applicant persisted with his claims of stressful job, working under pressure, sitting in front of a computer, and victimisation by his supervisors. The applicant's supervisor accused him of cheating on his time sheets. There were numerous, significant discrepancies between the times claimed for the hours worked on the applicant's official flex sheets and the times shown on the sign in and out sheets which the applicant filled in on entering and leaving the building where he worked. The applicant never gave a satisfactory explanation for the discrepancies. The applicant claimed that in his position as floor warden, he had to devote, on average, three hours per week to the job. The applicant was asked to resign from the job because it was interfering with the duties that he was paid to do. The applicant claimed that he was doing the work in his lunch break. It subsequently emerged that he was adding the time spent on floor warden duties onto his flex sheet and thereby claiming the time as having been worked during official working time. Eventually, in December 1993, the applicant's supervisor ordered him to stop doing the work of floor warden." 16 The Tribunal rejected in emphatic terms Mr Rodriguez's claim that the floor warden duties took on average three hours per week. The Tribunal said: "I would have thought that a very diligent floor warden would probably spend no more than one hour per month on such duties." 17 The Tribunal observed: "The degree of mistrust between the applicant and one of his supervisors reached the point where the supervisor used to telephone the physiotherapist to check on the times for consultation to make sure that the applicant was not away from work for a longer period than he should have been. The supervisor also checked up on the applicant at the applicant's home when the applicant had days off work on sick leave. On one such occasion the applicant was discovered doing heavy physical labour in his back yard. In November 1993, management hired a private detective to check out the applicant when he was on sick leave." The Tribunal found: "On 12 May 1994, the applicant was discovered misusing a telephone in the tea-room. He had set up a three-way connection between himself, his wife and his wife's mother who lived in Sydney. The applicant walked away from the telephone to allow his wife to continue the conversation with her mother. When the applicant was asked to explain his behaviour he gave a patently false explanation and then left work. He has not worked for Telstra since that date." 18 Of significance to the causation of the major depressive disorder is Mr Rodriguez's belief of a connection between the incident in June 1992 and his problems with his neck and spine. On this aspect of the matter, an orthopaedic surgeon, Dr Laister reported on 4 March 1994, subsequent to an examination on 1 March 1994, as follows: "* Restriction in movement in cervical spine consistent with x-ray, normal shoulders.

• I have tried to explain to the patient that these residual symptoms are due to his cervical spondylosis and that to some extent the symptoms will persist. He is unable to accept this…as far as he is concerned he was normal before the accident.

• Further physio and osteopathic treatment a waste of time." 19 The findings by the Tribunal concerning Mr Rodriguez's complaints of stressful working conditions and victimisation were as follows: "As for the allegations of overwork and stressful working conditions, I find such allegations to be ridiculous. The applicant had a very easy job. In fact he initially complained that it was too easy for a person of his capacity.

As for the allegations of victimisation, I find that the applicant's supervisors were at their wits end trying to get the applicant to do some work. He decided that he was not going to do the work for which he was paid. He claimed many hours on his flex sheets for periods when he was not at work at all. His claims in relation to floor warden duties were outrageous. He was not playing the game properly at all. If he felt any stress, he brought it all on himself. His supervisors were attempting to exert some reasonable disciplinary measures over a worker who was determined to be as obstructive as he could be." 20 The only finding by the Tribunal in relation to any connection between Mr Rodriguez's employment by Telstra and his psychiatric condition was: "The applicant's psychiatric condition may well be naturally occurring, but if it was due to the efforts of his supervisors to get him to carry out his duties in an acceptable fashion then it was due to reasonable disciplinary action on the part of his supervisors and hence is not compensable." [emphasis added] 21 Of crucial importance to the question of compensation for major depressive disorder is the evidence of Dr Green, a psychiatrist. Mr Rodriguez saw Dr Green regularly from 7 June 1994 to 12 October 1994. Dr Green diagnosed Mr Rodriguez as suffering from "a major depressive disorder with paranoia". Dr Green said that the applicant's disorder was not too severe when he first saw the applicant, but that the applicant deteriorated rapidly over the next few months. The disorder probably developed insidiously over many months. The applicant was obsessed by worries relating to Telstra. He was preoccupied by negative thoughts. 22 It is clear that the Tribunal took a very poor view of Mr Rodriguez. The Tribunal found he gave false history to specialists. His allegations about being overworked and suffering stressful working conditions were rejected, as were his claims in relation to his duties as a floor warden. 23 The Tribunal did not find that Mr Rodriguez was not suffering a major depressive disorder. In the light of the evidence of the psychiatrists, Drs Levien, Klug and Green, that would be a finding in the face of the evidence. The Tribunal's view is encapsulated in its finding: "If he felt any stress, he brought it all on himself." 24 However, if the experience in the workplace and the incidents that occurred during his employment at Telstra had as a response his major depressive disorder, and if the workplace relationship and Mr Rodriguez's perception concerning aspects of that relationship were a material contributing factor to the disease, that is sufficient to entitle him to compensation. 25 An example cited in the course of submissions of counsel highlights a central question in this case: if the worker says "the supervisors are picking on me", and the psychiatrists say that, as a consequence of that belief by the worker, he develops a neurosis or a depressive disorder, and it is the case that the supervisors are not picking on him, they are just reasonably chastising him because he is not doing the job he is supposed to do, does that entitle him to compensation? The submission by counsel for Mr Rodriguez is that he is entitled to compensation, unless the conduct constitutes reasonable disciplinary action within the terms of the exclusion found in the definition of "injury" in s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 ('the Act'). 26 "Ailment" is defined in s 4(1) of the Act as: "…any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);" 27 A "disease" is defined in s 4(1) as meaning: "(a) any ailment suffered by an employee; or (b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;" 28 An "injury" is defined in s 4(1) of the Act as: "(a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against an employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;" 29 Section 24(1) of the Act provides: "Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury." Section 27 of the Act makes provision for compensation for non-economic loss where an injury to the employee has resulted in a permanent impairment, and compensation is payable in respect of the injury under s 24. 30 Having regard to the timing of events in this case, s 107M of the Act imposes the liability to pay compensation on the respondent. The history of Telstra Corporation Limited was described by the High Court in Telstra Corporation Ltd v Worthing (1999) 161 ALR 489 at 493. Telstra Corporation Limited has been covered by the Act since the Act commenced on 1 December 1988. Initially, as the Australian Telecommunications Corporation, it was an "administering authority" under s 4(1) of the Act, by virtue of a declaration in Gazette S365 of 30 November 1988. On 1 July 1991 the Australian Telecommunications Corporation was renamed the Australian and Overseas Telecommunications Corporation. That body became a "licensed authority" under Part VIIIA, with effect from 30 June 1992, by virtue of s 28 of the Commonwealth Employment (Miscellaneous Amendments) Act 1992, and was renamed Telstra Corporation Limited on 13 April 1993. The Australian and Overseas Telecommunications Corporation, as an "administering authority" under Part VIIIA of the Act, was granted a Class 3 Licence for a period of one year commencing on 30 June 1992, which licence was subsequently extended to 30 June 1994 and then to 30 June 1997. Since 1 July 1997 Telstra Corporation Limited has held a Class B Licence under Part VIIIB. This Part was added by the Commonwealth Employees' Rehabilitation and Compensation Amendment Act 1992 (Cth), to enable certain "corporations", not being Commonwealth authorities, to seek to have the 1988 Act apply in relation to their employees. 31 As to the meaning of "reasonable disciplinary action", Cooper J, in Commission for Safety and Rehabilitation of Commonwealth Employees v Chenhall (1992) 109 ALR 361, adopted a narrow view of that phrase, holding that the phrase "disciplinary action" is to be interpreted by reference to its ordinary grammatical meaning in the context where it appears in the Act. Cooper J held that, in the context of the definition of "injury" in s 4(1) of the Commonwealth Employees' Rehabilitation and Compensation Act 1988, the phrase "disciplinary action" means "reasonable action lawfully taken against an employee in the nature of or to promote discipline". At 370 Cooper J said: "…the effect to be given to the words ["disciplinary action"] is determined in any particular case by reference to the regulatory rules applicable to the employee in question and not by reference to general notions of good order and control of Commonwealth employees." At 375-6 Cooper J said: "In my view disciplinary action is not lawfully taken against a member of the Australian Federal Police until such time as the Commissioner determines, in accordance with the Discipline Regulations or the Complaints Act, after the provisions of the general order have been complied with, to take some action against a particular member in respect of a defined disciplinary offence and takes one of the steps provided for under the Discipline Regulations or the Complaints Act to give effect to that determination. … Action taken to investigate a complaint or allegation against a member, including advising the member of the existence and nature of the complaint or allegation and interviewing the member in relation to it prior to the Commissioner determining to act in accordance with the provisions of the Discipline Regulations or the Complaints Act on the report of the investigation, does not constitute 'disciplinary action taken against the employee' within the meaning of the definition of 'injury' in the Act." 32 The submission on behalf of Mr Rodriguez is that, subject to the exclusion concerning reasonable disciplinary action, if workplace events are in fact a contributing factor to the disease, then it does not matter that the worker might have formed a quite erroneous view in respect of those matters. It does not matter that he brought it on himself in the sense that he viewed things as happening which were not happening or that he believed that he was overworked when in fact he was not. His disorder is compensable if his subjective view of the incidents in the workplace played a part in the onset or aggravation of the disease. 33 There were many aspects of the workplace relationship which, it is said on Mr Rodriguez's behalf, contributed to the onset of his disorder. There was the delay in settling his claims for compensation for medical expenses associated with his neck injury. There was the requirement by his superiors that he resign from the position of floor warden. There was the issue of his signing on in the sign-on book as if he had been at work when he had been at physiotherapy; this was something that he claimed to be entitled to do, but which was disputed by his superiors, and generated much tension. The unhappy relationship which developed between Mr Rodriguez and his superior in the latter half of 1993, included a complaint by Mr Rodriguez that she had singled him out for special attention. There is undisputed evidence that the supervisor approached two other employees of Telstra senior to Mr Rodriguez and told them to keep a special eye on him, and told them that, if the supervisor was on holidays and Mr Rodriguez had a day off, they were to ring her at home so she could drive past his house to check on him. There was the direction by his superiors that the setting up of procedures and systems to do with the handling of enquiries, which work Mr Rodriguez was initially entrusted with, be taken away from him. Mr Rodriguez considered this direction to be a slight on him. There were disputes about the claim by his superiors that he was taking excessive sick leave. 34 It was conceded by counsel for Mr Rodriguez that the formal counselling which arose subsequent to the incident involving the misuse of the telephone in the tea-room would be disciplinary action within the meaning of the Act and that, insofar as that was the only causal or material contributing factor to his major depressive disorder, he would fail. It was, however, submitted that castigation of Mr Rodriguez by a superior for poor work is not "disciplinary action" within the section, relying on the judgment of Cooper J in Chenall (supra). 35 The contention is that there were clearly matters which were not reasonable disciplinary action which arose out of the workplace, and which were material contributing factors to the onset of his major depressive disorder. 36 The first report of Dr R A Green was dated 10 June 1994. In this report, Dr Green said: "The final impression was that he is suffering from symptoms related to anxiety associated with bureaucratic problems in Telecom where he has worked for the last five years.

Although he is suspicious of the motives of the Telecom bureaucracy and has come to the conclusion that he has no future with Telecom, I do not believe that he is suffering from a paranoid state." 37 However, in a report of 12 October 1994, Dr Green said: "When I reviewed him it was clear that Mr Rodriguez was suffering from a major depressive disorder. He was preoccupied to the extent of being obsessed by worries related to Telecom which he was unable to get out of his mind for any significant length of time." Dr Green expressed the opinion: "Mr Rodriguez'symptoms of major depressive disorder developed insidiously. He says that by July '93 he was tearful, tense and suffered from pain in the neck, back and various other symptoms.

The symptoms related to the neck injury of May 1992 became aggravated by the development of his major depressive disorder. His preoccupation with work related stresses and his musculoskeletal symptoms made the diagnosis of the underlying major depressive disorder difficult. However in my opinion his major depressive disorder was very significant in his impaired ability to deal with work related stresses.

His inability to cope due to his depressive illness has resulted in the development of further work related problems which in turn have added to Mr Rodriguez' worries.

It is very probable that Mr Rodriguez was developing his depressive illness early in '93, ie from before the 4th March, 1993 but that he (and others) saw his disability in terms of musculoskeletal symptoms related to his neck injury of May 1992.

In my opinion it will take many months for Mr Rodriguez to make a full recovery from his major depressive disorder. It may take even longer for his negative attitudes towards Telecom to ameliorate. It is likely that as his depression improves he will be left with a residual phobic anxiety in relationship to Telecom which may prove very resistant to further treatment and result in him being unable to return to work. Accordingly my prognosis for return to work is guarded.

In my opinion work related stresses are very likely to be the precipitating and aggravating factors to his major depressive disorder." 38 In a report of 23 June 1995 Dr Green said:

"In my opinion on the balance of probabilities Mr Rodriguez'major depressive disorder with paranoid features developed as a consequence of difficulties which he has experienced in his relationship with Telecom as a result of the injury he sustained on the 11th June, 1992.

I do not believe that Mr Rodriguez will be able to return to work with Telecom. A resolution of his major depressive disorder with paranoid features does not necessarily mean that he will see Telecom as a benign or benevolent employer. It is most likely that his negative attitudes to Telecom will continue indefinitely.

At present his mental state is such that he is unemployable. He remains irritable, preoccupied with problems relating to Telecom and he lacks drive." 39 On 4 June 1996 Dr Green addressed questions that Telstra had proposed and said: "Mr Rodriguez is suffering from major depressive disorder with psychotic and obsessional features. However he also has an orthopaedic problem with his neck on which I make no further comment. There is no specific event which can be identified as the probable cause of Mr Rodriguez' condition. There are a number of factors which are probably relevant, ie the injury to his neck and the subsequent administrative difficulties that Mr Rodriguez experienced in relationship to Telstra. His illness probably started some time before July 1993. Mr Rodriguez had numerous complaints regarding the behaviour of Telstra towards him which he perceived as being unjust and which he believed caused his psychiatric disorder. His complaints regarding Telstra were much more extensive than the issue of his compensation being rejected, his leave attendance being questioned and being disciplined over the telephone incident. However all those specific matters would have aggravated his depressive illness but I doubt that they could be regarded as causal. Accordingly if any or all of those events were removed then in my opinion Mr Rodriguez would still be suffering from his condition." In that report Dr Green said: "…in my opinion there has been aggravation of his depressive illness by the numerous administrative difficulties that he sites (sic) in relationship to Telstra." In a passage that is important because it highlights the difference between the correctness of many of Mr Rodriguez's claims and the effect of his beliefs on his mental state, Dr Green said: "It is not for me to judge the veracity or otherwise of conflicts in the account of events being related by the various parties in this dispute. I believe, on the balance of probabilities that Mr Rodriguez did in fact experience significant administrative problems in his relationship with Telstra which seriously aggravated his mental state. I also believe that there were times when Mr Rodriguez' mental state was so disturbed that his perceptions of Telstra were unrealistic." 40 Dr Klug, a specialist psychiatrist, in a report of 11 June 1996 said: "I formed the opinion that he suffered from a major depressive disorder with paranoid features and that work factors had materially contributed to the contraction, aggravation, acceleration or recurrence of his condition." Dr Klug said: "At interview, Mr Rodriguez was depressed and very anxious and extremely suspicious of Telstra. His history and clinical presentation confirmed my diagnosis of 19.9.95, viz that he suffered from a major depressive disorder with paranoid features and that his psychiatric condition was causally related to stresses associated with his employment with Telecom/Telstra." 41 In Dr Klug's opinion, Mr Rodriguez was suffering from major depressive disorder, and delusional disorder of a persecutory type. In Dr Klug's opinion: "The probable cause of Mr Rodriguez's psychiatric condition is a chain of events commencing with his work related neck and back injury in June 1992 and continuing through a series of related events which occurred over the next two years. As a result of these events, Mr Rodriguez has developed the belief that he is being persecuted by Telecom for having claimed compensation for his neck and back injury. His persecutory beliefs involve mainly his supervisors, whom he sees as instruments of Telecom. In turn, the resulting deterioration of his relationship with his supervisors has contributed to the gradual strengthening of his persecutory beliefs. I am unable to state precisely the point in time when Mr Rodriguez's psychiatric condition began to manifest itself. However, based on his history obtained when I first saw him on 19.9.95, it would seem that he developed various emotional and coping problems during the latter part of 1993. … On the balance of probabilities his condition arose out of a series of events commencing with the original injury and including the change of his duties, the Floor Warden matter, the sign-on-book matter, the disciplinary action over the telephone incident and the stopping of his compensation after he ceased work, among other things. I consider it unlikely that Mr Rodriguez would be suffering from his psychiatric condition if these events had not occurred." Dr Klug repeated his opinion in a report of 5 September 1997. 42 Dr Levien, a specialist psychiatrist, in a report of 16 September 1996, relates many claims by Mr Rodriguez concerning the conduct of his female supervisor in the latter half of 1993, the change in his work activities, the backdated instruction to resign as floor warden, an instant where his manager reprimanded him and yelled at him in a "degrading manner", and other instances arising from his work relationship with Telstra. Dr Levien diagnosed as follows: "Mr Rodriguez at the time of my assessment and from his history and the notes of Dr Green clearly suffers from a Major Depressive Disorder with melancholia…" In answer to specific questions posed by Telstra, he said: "The probable cause of Mr Rodriguez' condition is work related stress." Dr Levien said: "On the balance of probabilities, Mr Rodriguez's condition arose out of the dispute between Telstra and himself focusing upon a recurrence of symptoms due to his original injury in 1992. A major factor here appears to have been the delays in Telstra reaching a decision as to his entitlements to financial assistance for medical treatment. In addition there appears to have been major delays in reaching decisions concerning various allegations made by Telstra Management against Mr Rodriguez which tended to encourage a climate for suspiciousness and mistrust. There also appears to have been a breakdown in the process of conciliation between Mr Rodriguez and Management." Dr Levien said: "Unfortunately his depression is entrenched and perpetuated by financial penury, unemployment, and Mr Rodriguez's perception that he has suffered an injustice which has yet to be fully resolved. Clearly these psychological stressors perpetuate his Major Depressive Disorder." And summarised: "The onset and progression of his depression and its perpetuation seem intimately related to issues in the work place. In particular there appears to have been a lack of conciliation over a number of disputed issues occurring from a recurrence of his past neck injury. Mr Rodriguez highlights a range of unfair and prejudicial practices focused upon himself, delays in decision making about charges laid against him and a climate of acrimony, suspicion and mistrust which he felt pervaded the work place." Dr Levien suggested: "I would therefore endorse a judicial process clearly testing the evidence from both parties to get to a wider sense of the truth of issues occurring between Mr Rodriguez and Telstra. However from a directly observed clinical examination, I feel Mr Rodriguez is genuine in his understanding of events and clearly exhibits signs and symptoms of a Major Depressive Disorder with Melancholia." I take this last passage to indicate that, independently of the truth of issues occurring between Mr Rodriguez and Telstra, Dr Levien's view is that the major depressive disorder flows from Mr Rodriguez' genuine perception of those events. 43 In setting out the above extracts of the psychiatrists' reports, I have corrected obvious typographical errors. 44 The principles to be applied in relation to Mr Rodriguez's case were referred to by Windeyer J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 642, where his Honour said: "The question involved is difficult. Can the event to which a disordered mind irrationally attributes physical suffering, that is real to the patient but delusional, be properly called a contributing factor? Ordinarily concepts of cause and consequence are perhaps not applicable. Yet it seems to me that the incident which precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a factor contributing to it. It was said that in any event she might have broken down sooner or later: that some other incident might have provided a focus for her delusions. But it was this event at work that in fact did so." [my emphasis] 45 In Westgate v Australian Telecommunications Commission (1987) 17 FCR 235, the Administrative Appeals Tribunal had found that the applicant's depression, whether it was reactive or endogenous, was triggered by his having to work at all, rather than by some characteristic or condition of his work for the respondent, and considered some factor in the applicant's personal life or circumstances might just as readily have triggered his depression as did working for the respondent, or working generally. As a result of this finding, the Tribunal had affirmed a determination that the applicant's condition was not the result of the contraction, aggravation, acceleration or recurrence of a disease to which his employment was a contributing factor, as required by s 29 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth). 46 Davies J allowed the appeal, holding that the Tribunal's approach was in error. Davies J referred, at 239, to the observations of Windeyer J in Federal Broom Co Pty Ltd , to which I have referred, and then said at 240: "A like problem was examined in O'Neill v Commonwealth Banking Corporation (1987) 75 ALR 154. In that case, Pincus J went on to make plain a further point which is also relevant in the present appeal, namely, that it is sufficient that the employment contributes in a material way to the contraction of a disease, its aggravation, acceleration or recurrence. It is not necessary to establish fault on the part of the employer or any unusual stress or factor or special circumstance in the employment itself." Davies J noted: "As Windeyer J pointed out in Federal Broom Co Pty Ltd v Semlitch (supra) at 643, 'all that the statute requires is "a contributing factor" '. In the passage that I have set out above, Windeyer J pointed out that it is necessary to look "to what the worker in fact does in his employment". It does not matter that the worker's response to what occurred in the course of employment was irrational. It is sufficient that there was an incident or an event or circumstances in the employment constituting a fact or factors which contributed to the contraction of the disease, its aggravation, acceleration or recurrence. Windeyer J used the words "precipitated or stimulated". " Davies J held at 242: "Although the applicant had to show more than that the employment was merely the scene in which the development of his depression took place, a purely inert factor upon which the applicant's developing depression focused its attention, it was not necessary that the applicant show that there was a special, unusual or wrongful factor of his employment which was the contributing factor. It was sufficient that the employment positively contributed to the development of the applicant's depression, that is to say that the employment provided external stimulus to aggravate or accelerate his disease." 47 In Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36, a Full Court of the Federal Court (Davies, Beaumont and Burchett JJ) was concerned with an application for compensation under the Compensation (Commonwealth Government Employees) Act 1971 ss 45 or 46, and held that the Commonwealth was not bound to pay compensation in respect of a compensation neurosis that developed out of an allegedly disabling physical condition that was not itself compensable. The fact that, in that case, the applicant genuinely believed that his right leg pain was related to the injury to his coccyx may have been a potent factor in the development of his neurosis, but did not mean that his employment was operative in producing his condition. A distinction is to be drawn between, on the one hand, the sequelae making a sick mind sicker and contributing to incapacity and, on the other, a sick mind latching on to the factors described so that, in one sense, they play a part in the illness but not in such a way as to add to existing incapacity. 48 The question was whether the disease of compensation neurosis (from which, on the evidence, Mr Kirkpatrick was suffering), was within the meaning of s 29 of the Act, where physical injuries suffered at work had, as a matter of fact, healed uneventfully, but Mr Kirkpatrick genuinely believed that his leg was painful and that he could not cope with his former work as a consequence, his belief being that his leg pain was due to a back injury suffered some years earlier. The Full Court observed at 40: "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 634 said:

'Where an untoward occurrence in a worker's employment causes a pre-existing mental disorder to manifest itself in a new delusion, it seems to me proper to say that there is an exacerbation of the mental disorder.'

In the latter case Mason JA (as he then was), whose dissenting judgment was approved upon appeal to the High Court, referred (at 43) to a work accident and hospitalisation to which it led as having 'set in motion the delusional condition' from which the worker thereafter suffered. 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."

49 Whether employment contributes to the contraction, aggravation, acceleration or recurrence of the disease is a question of fact. In Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42, Davies J said at 43: "It is sufficient that the employment contributes to the contraction, aggravation, acceleration or recurrence of the disease. The contributing factor need do no more than contribute in a material way. The factor is not required to be the real, proximate or effective cause of the disease or of its development. In a case where a number of separate factors contribute to the contraction of a disease or its acceleration, aggravation or recurrence, all that is required is that one such factor exhibits the necessary connection with the worker's employment. See Federal Broom Co Pty Ltd v Semlitch (1964)110 CLR 626 at 641-643 per Windeyer J and Favelle Mort Ltd v Murray (1976) 133 CLR 580 at 598 per Mason J. Moreover, as Barwick CJ said in Favelle's case at 585:

'…the idea that the employment must have been of a nature to carry a special risk of suffering injury of some particular kind has been exploded and is no longer valid.'

Similarly, in Thom or Simpson v Sinclair [1917] AC 127 at 145, Lord Parmoor said:

'The fact that the risk may be common to all mankind does not disentitle a workman to compensation if in the particular case it arises out of the employment.'

His Lordship was there considering a case of injury 'arising out of' employment but the principle which he expounded is equally applicable with respect to a disease in respect of which the worker's employment is a contributing factor." 50 In my opinion, the Tribunal erred in its approach to the fundamental issue on the question of compensation for major depressive disorder, as indicated by its observation "If he felt any stress, he brought it all on himself". 51 The question is whether Mr Rodriguez's employment with Telstra contributed in a material way to the contraction or aggravation of his major depressive disorder, in the sense indicated in Federal Broom Co Pty Ltd v Semlitch (supra) and Westgate v Australian Telecommunications Commission (supra). 52 Given the evidence of the psychiatrists, which I have set out above, it is most unlikely that a Tribunal could reach any other finding but that it did so arise. Any finding in that regard, however, is a matter for the Tribunal, so the matter should be remitted to the Tribunal for further consideration according to law.

(1) the appeal be allowed; (2) the order made by the Administrative Appeals Tribunal on 16 October 1998 affirming the decision of the delegate of 17 December 1996 denying compensation for major depressive disorder, be set aside, and the matter be remitted to the Administrative Appeals Tribunal for further consideration according to law; and (3) the respondent pay the applicant's costs of and incidental to the application, to be taxed if not agreed. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate: Dated: 14 October 1999 Counsel for the Applicant: Mr A J Moon

Solicitor for the Applicant: Sarinas & Associates