Wiegand v Comcare Australia [2002] FCA 1464 | Case summary

Consideration 12 The events about which Mr Wiegand made complaint were canvassed extensively by the respondent in Mr Wiegand's cross-examination. Documents relating to the several grievance complaints were placed in evidence by the respondent. However, no other evidence was led by the respondent, save from Professor Goldney on medical issues. Mr Wiegand's evidence about the happening of the events was not directly challenged, and the Tribunal in its reasons said that it was satisfied on its observations of Mr Wiegand that he was a very sincere man whose credibility was not in issue. I think it must follow from this finding that the happening of the events about which Mr Wiegand made complaint was accepted by the Tribunal. Indeed, the occurrence of the events was to an extent borne out by the exhibits tendered by the respondent. What was put in issue by the respondent was the reasonableness of the interpretations placed on these events by Mr Wiegand, and his perceptions generally about them. 13 As I understand the medical evidence, which the Tribunal accepted, there was no substantial disagreement between the psychiatrists. Mr Wiegand has a major depressive disorder and in addition he has prominent obsessive compulsive personality traits. Professor Goldney thought in addition it is probable that there are paranoid personality traits present. Professor Goldney observed that "there is no doubt that the workplace has become a primary focus for Mr Wiegand and he tends to attribute all his difficulties to that. Quite clearly from the psychiatric point of view such an attribution is not tenable, as one would need to factor in other longitudinal life issues such as the family and interpersonal stressors …". That opinion appears to be consistent with the views of the other doctors. 14 The psychiatrists appear to be in substantial agreement that all of Mr Wiegand's difficulties cannot be attributed to his employment, and that the predominant factor in his depressive disorder relates to his basic personality. However, that conclusion does not answer the question whether, within the meaning of the definition of disease in the SRC Act, Mr Wiegand was in January 1998 incapacitated by an aggravation of that ailment that was contributed to in a material degree by his employment with the ATO. 15 Dr Davis, in his report said: "I consider that his chronic depressive disorder is a consequence of an interaction of his personality style and his perception of major problems in the work place. He has repeatedly been in conflict with his employer, and this has given rise to intense frustration, anxiety and depression. Mr Wiegand indicated a number of structural problems in the work place, and made frequent reference to incompetence and inefficiency by management. I am unable to offer an objective appraisal of this, and suggest that an independent review would be necessary to assess the validity of these claims. Nonetheless, I consider that the predominant contributing factor in this depressive disorder relates to his personality style, with a lesser contribution from work place problems." This opinion treats workplace problems as making a contribution to the depressive disorder which Mr Wiegand was suffering at the time of Dr Davis' examination and report in June 1998. 16 Dr Coyte in a passage from one of his reports, cited by the Tribunal in its reasons, said: "Mr Wiegand gave a history and showed signs of having had a depressive disorder for at least two years prior to my first contact with him. His symptoms had worsened over the few months prior to the first consultation however and at that time, were severe enough to be given a diagnosis of Major Depression. Mr Wiegand also gave a history of a long tendency toward being preoccupied with injustices and imperfections and the correction of these. He thus could be described as a man who lives by highly principled rules, which are fairly rigidly held in spite of the difficulties produced by doing so. This would be diagnosed as a personality with prominent obsessive-compulsive traits. It was the impact of perceived incompetencies, errors and injustices in his workplace, upon his pre-existing personality, which caused Mr Wiegand increasing frustration and worry. When this frustration and worry repeatedly failed to be resolved in spite of his best efforts, Mr Wiegand became more and more depressed." In his oral evidence Dr Coyte said that, whilst the applicant had a personality which consists of sticking by the rules and is very justice and rights orientated, it was his work environment that triggered his depression. In expressing this opinion it is implicit that Dr Coyte has accepted the account of the work events given to him by Mr Wiegand (which did not depart significantly from that given by Mr Wiegand in evidence and before the Tribunal). 17 Professor Goldney, after saying that from a psychiatric point of view it was not tenable to attribute all Mr Wiegand's difficulties to his employment as one would need to factor in other longitudinal life issues, went on to say: "In addition one must consider whether or not Mr Wiegand's perception of the workplace is in fact reality based, or whether it is over determined by his basic personality. In regard to that basic personality, there is no doubt that he is a man with very strong views, and the term 'obsessive compulsive' is appropriate, and indeed it is probable that Mr Wiegand's intense focus borders on the paranoid. However, whether or not his perception is definitely paranoid depends on the reality or otherwise of his claims about the workplace. It is challenging to evaluate such claims as Mr Wiegand tends to present his complaints in general terms, denigrating the public service as a whole. I regret that I am unable to make any determination on the basis of the information he has provided. Indeed, the information which he refers to appears to have been the subject of quite intensive scrutiny over a number of years, and it would not be prudent to disagree with their conclusions." 18 I interpret the concluding sentence of this passage to say that Professor Goldney did not consider that it would be prudent for him to disagree with the conclusions of the investigating officers whose investigations led to the disallowance of the grievance complaints made by Mr Wiegand. Later in his report, Professor Goldney also said: "Naturally, Mr Wiegand attributes his condition to the workplace, but the reality of the situation is that there are a number of other significant issues which have occurred in his life and which need to be considered when assessing the cause of his undoubted major depressive disorder. On balance, I consider that it is most unlikely that the workplace has materially contributed to his condition and that it has been Mr Wiegand's perception of the workplace, due to his longstanding personality traits, which have led to difficulties in the workplace. If in fact there have been significant breaches of reasonable practice within the workplace, then there would be substance to Mr Wiegand's complaints. However, it is my understanding that his complaints have been investigated extensively and found wanting." 19 The Tribunal based its conclusion substantially on these passages from the evidence of the psychiatrists. The Tribunal noted that Dr Coyte "was of the view that the applicant's depression has come about because of the impact of the 'perceived' (Tribunal emphasis) injustices and imperfections of the workplace" upon his obsessive compulsive personality traits. The Tribunal then referred to Professor Goldney's opinion that there was a need to consider whether or not the applicant's "perception" of the workplace is in fact reality based, or whether it is over-determined by his basic personality. The Tribunal also noted that Professor Goldney and Dr Davis were of the opinion that Mr Wiegand was likely to have developed depression no matter what work environment he was in. Then followed the Tribunal's reasons for its conclusion, expressed in the following terms: "90. The Tribunal on the evidence before it is satisfied and finds that the applicant has a major depressive disorder and that in addition has prominent obsessive-compulsive personality traits which are related to longitudinal life issues and that whilst upset in the work environment such was not the cause of his unfortunate condition. The Tribunal is further satisfied that the applicant is vulnerable to stressors resulting in his depression being exacerbated but that such is the result of constitutional factors rather than any external factors. As a result of his condition the Tribunal is satisfied that he is unable for the present to return to his original work in the ATO." 20 In my opinion the reasoning of the Tribunal fails to address the narrow issue which fell for decision, namely whether within the meaning of the definition of disease the major depressive disorder suffered by Mr Wiegand in respect of which the compensation claim was made was "an ailment or an aggravation that was contributed to in a material degree by the employee's employment …". To ask whether the upset in the work environment was the cause of Mr Wiegand's "condition" is to ask a question that departs from the definition of disease, and in particular a wrong question which seeks to identify a single real cause of the condition. It is not a test which recognises that an injury, being a disease, will be compensable if it is an aggravation of an ailment to which the employment was merely one of a number of factors that contributed in a material degree. 21 Further, in this passage of the reasons, the Tribunal expresses the conclusion that Mr Wiegand is vulnerable to stressors which resulted in his depression being exacerbated. That is an important finding, consistent with Professor Goldney's evidence, that poses the further question, namely whether such stressors occurred in circumstances which attract a finding that the employment contributed in a material degree to his depression being exacerbated. For the purposes of considering the causation requirement of the definition of disease, I do not think there is any material distinction to be drawn between an exacerbation of an ailment and an aggravation of an ailment. In the context of this case both expressions convey the same notion, namely that the depression became worse. It is not to the point to ask whether the vulnerability is the result of constitutional factors rather than external factors. It is not the vulnerability that constitutes or may constitute an aggravation. The relevant question which arises from the definition of disease is whether a stressor or stressors to which Mr Wiegand is vulnerable happened, and whether the happening was contributed to in a material degree by his employment. 22 This may not be the same question as Professor Goldney posed but left unanswered in the paragraph of his report cited at [17] above. What does he mean by reality of the perception? 23 In terms of the definition of disease, the question which the Tribunal was required to consider was whether Mr Wiegand's ailment or an aggravation of the ailment "was contributed to in a material degree by the employee's employment". In relation to the concept of employment as a contributing factor, the respondent concedes that the following passage from the judgment of Kitto J (with whom Taylor and Owen JJ agreed) in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 632 is directly applicable: "Where it is possible to identify a contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I can see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc. It is in that sense that I should understand the language of the definition." Federal Broom Co Pty Ltd v Semlitch concerned the definition of "injury" in s 6(1) of the Workers' Compensation Act 1926-1960 (NSW). That definition extended "injury" to include "the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to such aggravation, acceleration, exacerbation or deterioration; …". In the definition of "disease" in s 4 of the SRC Act, the notions of acceleration, exacerbation or deterioration are no longer mentioned, but for practical purposes I consider this provides no basis for distinguishing the observations of Kitto J. It will also be noted that the definition of "disease" in the SRC Act requires that employee's employment contributed to a "material degree", but the introduction of the notion that the contribution must be "material" was held not to be a ground for differently construing the requirements for the definition of "disease" in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323. 24 It will be noted that Kitto J does not introduce any qualification or refinement to the meaning to be given to "employment" which would require some qualitative assessment of the incident or state of affairs to which the worker was exposed which would limit the meaning to an incident or state of affairs that could be characterised as a breach of reasonable workplace practices, discriminatory conduct, harassment, unlawful conduct, or conduct of a kind that a reasonable employer would guard against. All that is required is that the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a contributing factor to the ailment or an aggravation of the ailment suffered by the employee. A perception held by the employee will meet a "reality" test for the purpose of the definition of disease if it is a perception about an incident or state of affairs that actually happened. 25 This situation may be contrasted with that considered in Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36 where it was held that the fact that a neurotic employee wrongly believed that his leg pain arose out of his work did not mean that his employment actually was a contributing factor to his neurosis. 26 An interpretation similar to that enunciated by Kitto J was also given to the notion of employment by Windeyer J in Federal Broom Co Pty Ltd v Semlitch at 641 where his Honour said: "I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of 'the employment' as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed." (emphasis added) 27 In a case where an employee suffers a long standing mental ailment which has its origin in factors unrelated to the employment, an aggravation of that condition contributed to in a material degree by the employee's employment will not fall outside the definition of disease merely because it is likely that in the end the underlying ailment would inevitably have progressed until the employee was unable to work: see Federal Broom Co Pty Ltd v Semlitch per McTiernan J at 630. If the incident or state of affairs to which the worker was exposed caused incapacity to occur, it is not to the point that, had such exposure not happened, the disease may have caused the employee to become incapacitated at about the same time in whatever other situation or place the worker happened to be. 28 Whether an incident or state of affairs to which an employee is exposed in the performance of the employee's duties contributes in a material degree to an ailment or aggravation of an ailment suffered by the employee is ultimately a question of fact. However, it is a question of fact to be determined by a proper application of the definition of the meaning of "disease". 29 In the passage from his report cited at par [18] above, Professor Goldney seems to base his opinion that it is most unlikely that the workplace has materially contributed to Mr Wiegand's condition on an understanding that, as a matter of law, an incident or state of affairs to which the employee was exposed in employment will only constitute a contributing factor to an aggravation of an ailment if the incident or state of affairs was objectively unreasonable - in other words, that it would justify in the mind of an employee of ordinary disposition and mental health the perception held by the employee making the claim. That Professor Goldney had such an understanding is implicit in the following passage from his report: "If in fact there have been significant breaches of reasonable practice within the workplace, then there would be substance to Mr Wiegand's complaints. However, it is my understanding that his complaints have been investigated extensively and found wanting." 30 Professor Goldney was asked to express his view on whether Mr Wiegand was suffering an ailment or an aggravation of an ailment that was contributed to in a material degree by his employment. Professor Goldney is not to be criticised for having complied with that request. However, where an expert witness expresses an opinion on the ultimate issue in the case, it is important that the decision-maker recognise that this has occurred, and ensures that the expert, in reaching that opinion, has correctly applied the relevant legal test upon which the ultimate issue turns. In this case, the reasons advanced by Professor Goldney for his opinion that on balance it is most unlikely that the workplace has materially contributed to Mr Wiegand's condition, indicates that he has not applied the correct legal test flowing from the definition of "disease". Rather, he has offered his opinion on the assumption that an incident or state of affairs to which Mr Wiegand was exposed in the course of his employment could only contribute to a material degree to an aggravation of his ailment if the incident or state of affairs constituted a significant breach of reasonable practice, so as to render Mr Wiegand's perceptions objectively reasonable. 31 In my opinion it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee's perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled. 32 As the Tribunal reached its conclusion partly upon the acceptance of Professor Goldney's opinion which was based on an incorrect legal understanding, and partly upon its own application of the wrong test, I consider that the Tribunal's decision must be set aside and the matter remitted to the Administrative Appeals Tribunal for re-hearing. 33 Counsel for the respondent made a strenuous attempt to avoid this conclusion. Whilst acknowledging that at no point in the reasons for decision did the Tribunal correctly express the test which the definition of "disease" poses, counsel argued that nevertheless the Tribunal had in substance applied the correct test in reaching its conclusion that the incidents described by Mr Wiegand did not contribute to a material degree to any worsening in his condition, or to the onset of incapacity in January 1998. Counsel argued that the evidence showed no more than that the depressive disorder suffered by Mr Wiegand had followed its natural path, and that none of the incidents about which complaint was made were shown to have made the condition any worse. The submission was summarised by saying that it is not the employment that has caused Mr Wiegand's ailment and incapacity, but what he brought to the employment, namely his personality and disposition to suffer as he did. Counsel relied in particular on the following passage from the evidence-in-chief of Professor Goldney: "Well, do you conceive of some lifestyle that Mr Wiegand could have realistically led for the last 15 years whereby his paranoid condition now would in all likelihood be different, that is by not working, by working somewhere else, whatever, or has the condition in all likelihood just followed its natural path? --- I think it's most likely to have followed its natural path but it's become - the water has become muddy because issues that have occurred within the work place have been incorporated into the - into his belief system and so that's why it's very hard to respond definitely to the question. One can simply observe that really he - you know, there had been issues of litigation before his employment with the Tax Department. Within less than 3 weeks of being with the Tax Department he was registering concern about his perception of air-conditioning causing his physical symptoms. He expressed dissatisfaction with his life back in Germany. He spoke of one of the courses, one of his tertiary studies, he spoke about that in disparaging terms. I think it is really part of his personality and that he has really taken it with him, so to speak. Now, the issues that have arisen in the Tax Department, I think they are a far lesser significance, for example, than issues such as the break-up of his marriage, the inter-personal difficulties that he has had with his mother. I think those issues have been of far greater significance. Now, one can't say that the work place has had no impact at all but I think it has had minimal impact in terms of his overall functioning." 34 I do not think that this passage of evidence assists the respondent. Professor Goldney does not rule out contribution to some extent of incidents and states of affairs to which Mr Wiegand was exposed in his employment. It is not necessary that such an incident or state of affairs is a major cause of the ailment or resulting disability. It is sufficient that an incident or state of affairs contributes in a material degree. That may be the case even where there are a number of other contributing factors, and other factors that have contributed to a greater degree. 35 The Tribunal did not consider and then dismiss as a contributing factor each and every of the incidents or state of affairs about which Mr Wiegand complained. After listing many of the complaints, the Tribunal specifically addressed the incident concerning Mr Wiegand's application for leave to be with his sick father, and the incident concerning his application to change from full-time to part-time employment. In relation to the first of these incidents, the Tribunal concluded its discussion by saying: "However, given his condition at the time the Tribunal is unable to determine that such refusal (to grant leave) and his subsequent being upset by it can be such to be accepted as a factor in his depressive state." I have difficulty understanding this conclusion. Given the nature of the medical evidence, and the finding that Mr Wiegand was upset by the incident, it is difficult to see how, upon the application of the correct test, the upset could not be a factor which aggravated his depressive state. Counsel for the respondent contends that this incident could not qualify as a factor contributing to the employee's ailment by virtue of the proviso to the definition of "injury". Under that proviso, injury does not include an aggravation suffered as a result of failure by the employee to obtain a benefit in connection with the employment. Counsel argues that the refusal to grant leave relevantly constitutes failure to obtain a benefit within the meaning of the proviso. However that is not the reason given by the Tribunal. If it were, other questions would arise as to the meaning and operation of the proviso. In particular, it would be necessary to consider whether it was only the refusal to grant leave which caused Mr Wiegand his upset, or whether it was the manner and style of the officer who the Tribunal thought was out to show who was "boss". 36 In relation to the incident regarding the application to change from full-time to part‑time employment, the Tribunal found: "… that the request for him to relinquish the role of Health and Occupational Officer, no matter how upsetting, does not amount to discrimination. It further finds that it cannot be classed as having a causal connection with his condition." I think this finding reflects a misunderstanding of the correct test. It was not necessary for Mr Wiegand to establish that the incident amounted to discrimination. There is a finding that the incident was upsetting. Against that finding I consider that the Tribunal was in error to conclude that the incident could not be classed as having a causal connection with the aggravation of his condition. The Tribunal accepted that the applicant was vulnerable to stressors. The implicit finding that Mr Wiegand was upset by the incident would provide a basis upon which the Tribunal could have found that the upset constituted a stressor which aggravated his condition. 37 Having dealt specifically with these two matters, the Tribunal then said "in so far as other factors are concerned the Tribunal is satisfied that much of the cause of the applicant's condition was due to his personality". The discussion which follows does not consider the balance of the cause of the applicant's condition which was not due to his personality. If there was some other cause, on the evidence the only reasonable inference is that it lay in the incidents or state of affairs to which Mr Wiegand was exposed in his employment. 38 I am unable to accept the submission that the Tribunal, without expressing the correct test, actually applied it. In my opinion the reasons for decision indicate that the Tribunal did not apply the correct test. 39 For these reasons the decision of the Tribunal must be set aside and the matter remitted for re-hearing. 40 At the re-hearing it will be necessary for the Tribunal to give consideration to the arguments raised by the respondent about the operation of the proviso to the definition of injury. It may be that one or more of the incidents about which Mr Wiegand complains cannot be taken into account because of the proviso. Further, there was evidence before the Tribunal, not discussed in the reasons for decision, that Mr Wiegand's incapacity was precipitated by a failure to gain promotion to a higher position in December 1997, that is just before he ceased working. The respondent's argument, as I understand it, is that this event alone brought about incapacity, and that earlier events have no causal relationship with the incapacity for which compensation is claimed. 41 It is necessary to consider the question of costs. Mr Wiegand has incurred very few expenses in bringing this appeal. Nevertheless, he would ordinarily be entitled to an order for his out of pocket expenses. However, he also brought on for hearing a notice of motion which he served on the respondent seeking orders for the production of ATO records. I dismissed that notice of motion at the commencement of the hearing of the appeal. The respondents would ordinarily be entitled to costs in respect of that notice, but counsel acknowledges that it added little to the events of today. In all the circumstances I consider justice will be done by making no order as to costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa.

Wiegand v Comcare Australia

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