Plumb v. Cobden Flour Mills Company Limited [1914] A.C. 62.

Bill Williams Pty. Ltd. v. Williams [1972] HCA 23; (1972) 126 C.L.R. 146.

This is an appeal from the determination of a learned Deputy President that a psychiatric disorder suffered by James Godfrey Tate (`the worker') was sustained in circumstances that were compensable for the purposes of the Workers Rehabilitation and Compensation Act 1986 (`the Act').

The facts giving rise to the appeal are as follows. The worker was at all material times a police officer employed by the South Australian Police Department (`the Department'). It would seem that some unhappy differences arose between him and his wife and in August 1995 his wife and daughter instituted proceedings to obtain a domestic violence restraining order. In support of that application the worker's wife made certain allegations against him. In the ordinary course, such proceedings would be handled by the Department's Prosecution Unit. Different circumstances apply in cases concerning police personnel. There is a formal instruction that deals with this known as Instruction 4780, which relevantly provides as follows:-

`As a general rule, restraining orders involving employees will be managed by the DRO. Accordingly, all such applications for restraining orders must be forwarded to the Officer in Charge, Internal Investigations Branch, in accordance with subparagraph 14.4.

In cases of urgency, commanding officers should contact the DRO, by the most expedient means, so that appropriate procedures can be instituted.'

Paragraph 14.4 is primarily concerned with issues of confidentiality and security.

In accordance with this instruction, when restraining orders were made in August 1995, the matter was dealt with by that division of the Department known as the Internal Investigations Branch (`IBB') and it was members of the IBB division who supervised the worker's eviction from his house in accordance with the court order.

The learned Deputy President made certain findings regarding the involvement of IBB. He said `in these matters the Police Department does engage at a much higher level than is the case in other employments'. `This is not a "hands-off approach". The Department becomes directly involved in the conflict'. He cited the following passage from the statement of Superintendent Clarke:-

`When a domestic violence restraining order arrives at this office the documentation has usually been prepared by a member from the Victims of Crime Branch. They have carried out the initial investigation and prepared the necessary documentation and statement. As part of my role, I make an assessment on the file, based on the evidence presented to me, and must satisfy myself that there is sufficient material contained within the file to justify an interim domestic violence restraining order. It is not practice (whether police officers or civilians) to consult the person against whom an order is sought before applying for an interim order. After the interim restraining order has been granted it is my role to review the file objectively and to take into account all information that is provided to me or comes to my knowledge. I do not rely solely on information provided to me on the affidavit but consult the Victims of Crime Branch for assessment as to the credibility of the witness and personally discuss the matter with the person seeking the order. I also invite the employee concerned to submit any documentation he/she wishes and I usually engage in discussions with the solicitor representing the employee. On previous occasions there have been instances where restraining orders have not been pursued after additional information has been supplied and the file again assessed.' (Appeal Book pp.27-28)

The worker wrongly concluded that his employer was actively supporting his wife in a false prosecution against him and that it was deliberately dilatory in having the restraining order removed once his wife had left the former matrimonial home. The worker contended that his perception regarding the Department's involvement in his personal affairs was a substantial cause of the psychiatric disability that he sustained such that it, and the incapacity that resulted from it, were compensable for the purposes of the Act.

The learned Deputy President ultimately accepted that contention and therefore found in favour of the worker. The Department contends that he was wrong to have done so.

The worker's counsel submits that a reconsideration of the decision of the learned Deputy President's finding that employment was a substantial cause of the worker's disability does not involve a question of law. Whilst we are mindful that an appeal to this Full Bench is limited to a question of law: section 86(1), we think that the observations of Kirby P. (as he then was) with whom McHugh J.A. (as he then was) agreed in Harris v. McKenzie (1987) N.S.W.L.R. 139 at 148, namely:-

`In response to this argument it is sufficient to say, with Mason J., as he then was, in Hope v. Bathurst City Council [1980] HCA 16; (1980) 144 C.L.R. 1 at 7 that many authorities can be found to sustain the proposition that a question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law.'

are apposite here. Moreover, it is the appellant's contention that the facts found by the learned Deputy President cannot sustain the conclusion that he reached. Regarding this situation, Kirby P. said in Harris v. McKenzie at 148:-

`There is a long and frequently applied line of authority in this State which holds that, in relation to the application of a statutory description to facts, there may be an error of law if the decision is one which could not be reasonably entertained or supported if the body appealed from had properly understood the true construction of the relevant enactment.'

We are satisfied that the issue agitated in the appeal before us raises a question of law.

The compensability of the worker's disability falls to be determined by reference to section 30A of the Act. The issue that was argued before the learned Deputy President and the focus of the Appeal before us, is as to whether it can be said, in accordance with section 30A(a), that:-

`The employment was a substantial cause of the disability; ...'

There are many cases that discuss issues of causation in relation to workers compensation and contain explanations and pose questions as to how such issues are to be resolved. Perhaps the best advice is that which was given by Lord Dunedin in Plumb v. Cobden Flour Mills Company Limited [1914] A.C. 62 at p.65:-

`It is well I think, in considering the cases, which are numerous, to keep steadily in mind that the question to be answered is always the question arising upon the very words of the statute. It is often useful in striving to test the facts of a particular case to express the test and various phrases. But such phrases are merely aids to solving the original question, and must not be allowed to dislodge the original words. Most of the erroneous arguments which are put before the Courts in this branch of the law will be found to depend on disregarding this salutary rule. A test embodied in a certain phrase is put forward, and only put forward by a judge in considering the facts of the case before him. That phrase is seized on and treated as if it afforded a conclusive test for all circumstances, with the result that a certain conclusion is plausibly represented as resting upon authority, which would have little chance of being accepted if tried by the words of the statute itself.'

In heeding that advice we ask ourselves what was it about the worker's employment that led the learned Deputy President to conclude that the worker's employment with the Department was a substantial cause of his disability.

Although the findings and the passage of evidence of Superintendent Clarke contained in the reasons of the learned Deputy President might be thought to suggest that the involvement of IBB in the legal proceedings relating to the worker's personal affairs might have carried with it some more positive connection with the worker's employment than the fact that it was a division of the Department which employed him, the learned Deputy President's reasons do not expressly state that to be so.

In order to resolve any ambiguity in the learned Deputy President's reasons for decision we regard ourselves as entitled to refer to the evidence. That is not in order to substitute our view of the evidence for that of the learned Deputy President. We have no authority to do this: Bill Williams Pty. Ltd. v. Williams [1972] HCA 23; (1972) 126 C.L.R. 146 at 154 per Walsh J.. We are merely attempting to understand precisely what His Honour's findings were. Our analysis of the evidence does not reveal anything that would support a finding that the involvement of the IBB impacted in any way on the worker's relationship with his employer that was different to that which would have been the case had some other division of the Department or indeed some external instrumentality been involved in his prosecution and that which followed it. Moreover, the worker's mistaken belief that the Department was actively supporting his wife in a false prosecution against him and/or that it was deliberately dilatory in having the restraining order removed cannot, on a common sense evaluation of the causal chain, mean that his employment by the Department was causative of his disability.

In our respectful opinion, the findings of the learned Deputy President are incapable of sustaining the conclusion that the worker's employment was a substantial cause of his disability.

In our opinion the Department, an exempt employer for the purposes of the Act, was right to have rejected the worker's claim. We therefore set aside the determination of the learned Deputy President and determine in lieu thereof that the worker's disability is not compensable for the purposes of the Act.