Rees v British Aerospace Australia [2001] ACTSC 43 (25 May 2001)

Last Updated: 4 May 2002

Lawrence Rees v British Aerospace Australia

[2001] ACTSC 43 (25 May 2001)

CATCHWORDS

WORKERS COMPENSATION - award for employer by Magistrate - appeal - whether conditions of stress and tinnitus constituted injury arising out of or in course of worker's employment as a satellite tracking officer - mutually aggravating conditions - Magistrate decided not satisfied that tinnitus caused by noise at tracking station - whether tinnitus aggravated by stress - it was - whether stress caused by work conditions - Magistrate decided that stress caused by factors personal to worker and not work conditions - whether decision open - advantage of seeing and hearing witnesses - causation to be decided on "common sense" approach - elements of value judgment - appeal dismissed.

Workers Compensation Act 1951

Workers Compensation Act 1987 (NSW)

Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] FCA 1381

March v E & M H Stramare [1991] HCA 12; (1991) 171 CLR 506

William Wodrow v Commonwealth of Australia (1993) Aust Torts Reports 81-260

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 33 of 2000

Judge: Miles CJ

Supreme Court of the ACT

Date: 25 May 2001

IN THE SUPREME COURT OF THE )

) No. SCA 33 of 2000

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: LAWRENCE REES

Appellant

AND: BRITISH AEROSPACE

AUSTRALIA

Respondent

ORDER

Judge: Miles CJ

Date: 25 May 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. This is an appeal by a worker against an award for the respondent made by the Magistrates Court as an arbitrator under the Workers Compensation Act 1951 (the Act).

2. The application filed in the statutory form on the applicant's behalf stated simply that the nature of injury was "tinnitus and stress". Particulars of the injury were amplified slightly as follows:

"Nature and Conditions of the applicant's employment with the Respondent from January 1984 to November 1997 whilst employed at the Tidbinbilla Tracking Station, Tidbinbilla as a Communications and Equipment Operator."

3. In its answer the respondent simply denied injury and alleged that the particulars were inaccurate and incomplete. Whilst the statutory form is adequate for the purpose of an allegation of frank physical injury, and no doubt familiar enough for the purpose of a "nature and conditions claim", as claims like that of the present appellant have come to be known, the particulars are quite inadequate for the purpose of identifying the issues which the Magistrate had to decide.

4. However, from the terms of the Magistrate's reasons accompanying the award it emerges that the appellant initially claimed in a general way that he had suffered injury by way of the cumulative effect of noise and other stressful incidents at his work place over the period alleged. More particularly, his primary claim was that by 14 November 1997 the noise had given rise to a condition of tinnitus. Alternatively, he claimed that the noise and the other incidents at his work had given rise cumulatively to a condition of incapacitating stress. Alternatively again he claimed that the stress caused the tinnitus or aggravated a pre-existing condition of tinnitus. As a third alternative he claimed that the stress and tinnitus caused or aggravated each other. At the hearing of the appeal this third alternative was essentially what the appellant relied on.

5. The respondent's case for relevant purposes was that the appellant did not suffer from tinnitus, alternatively that if he did suffer from tinnitus it was not caused by noise, alternatively again that any tinnitus from which the appellant suffered was caused by noise in previous employment or from stress that was unrelated to his employment with the respondent or both.

6. As the Magistrate found that the appellant had not discharged the onus of establishing that he had suffered an injury arising out of or in the course of his employment with the respondent, no finding was made as to incapacity. Hence no issue as to incapacity arises in the appeal.

Magistrate's Decision - 19 May 2000

7. The hearing proceeded over three days in December 1999. There was a good deal of medical evidence in oral and documentary form. The Magistrate's decision for some reason was not delivered until 19 May 2000.

8. In some introductory remarks the Magistrate treated as non-contentious the proposition that the "injuries" alleged were tinnitus and stress.

9. The first issue addressed in the Magistrate's reasons was under the heading of whether the appellant's injury or injuries arose out of or in the course of his employment. The Magistrate proceeded to review the lay evidence. The relevant findings of fact that appear to be implicit in the review of the lay evidence by the Magistrate may be summarised as follows:

* The appellant who was born in England on 17 February 1947 followed a number of occupations on drilling rigs and building sites and in shipyards until he commenced work as a satellite tracking officer at Tidbinbilla in 1985.

* In 1989 he resumed night shifts of eight hours in a new building where (he said) "air-conditioning screeched and the place was noisy also from amplified para-transmitters and tone noise."

* Following the respondent's assuming the operation of the tracking station, the respondent introduced a system of 12 hour shifts, worked in relays of two days on day shift, two days on night shift and four days off work. This system was introduced in 1994.

* With the introduction of 12 hour shifts the appellant became increasingly dissatisfied about his conditions of employment, particularly superannuation, and made complaints in various quarters.

* The appellant first noticed a ringing in his ears in about May 1995. He consulted a general practitioner, Dr Milosevic, and an ear nose and throat specialist, Dr Williams. The latter advised him to wear protective equipment but he declined to follow the advice.

* By 1996/97 the applicant's general health had deteriorated with aching of muscles and joints, poor concentration, chest pain and general fatigue. He became irritable and slept poorly. He would lie around the rest room whilst at work. In August 1997 he lost two weeks from work. Dr Milosevic diagnosed stress and tinnitus. A manager told the applicant that an attempt would be made to find him a day job but none was found. The appellant returned to 12 hour shifts but his health deteriorated further. Five weeks later he was told that his position had been made redundant as from 14 November 1997. He left on 8 November 1997 and has not worked since.

10. The appellant claimed that following his dismissal he was not able to work because of fatigue and intermittent pain.

11. The Magistrate referred in some detail to other parts of the evidence but, as I read the decision, did not arrive at any conclusion or make any findings of fact under the heading.

12. The Magistrate then proceeded to review the evidence of the medical practitioners, as well as that of two psychologists and one audiologist. For the purposes of the appeal it is necessary at this stage to refer to the whole of the expert evidence, which may be summarised as follows.

13. Three medical practitioners specialising in matters relating to the ear and to hearing supplied reports but only one, Dr Chapman, gave evidence. The advantage that the Magistrate might have enjoyed in seeing and hearing Dr Chapman did not extend to an assessment of the opinions of the other two, Dr Williams and Dr Seymour, but may have been of assistance in evaluating the opinions contained in their reports and in the other medical evidence.

14. Dr Chapman saw the appellant in January 1997 on reference from Dr Milosevic. Dr Chapman's view was that the appellant was suffering from a mild hearing loss "almost certainly related to his tinnitus" and "most likely related to his prior exposure to noise at work." He was also of the view that fatigue or stress tends to aggravate tinnitus.

15. Following a referral from Dr Milosevic, the appellant consulted Dr Williams as early as 2 August 1995, specifically for noise in the right ear noticed two months previously. Dr Williams obtained a history of exposure to noise but, as the Magistrate emphasised, nothing specific about noises associated with the conditions when the appellant was working with the respondent. Dr Williams considered that, as a result of examination and testing, there was minor deafness in each ear and, that, in the words of the Magistrate, "the [appellant's] tinnitus is related to his past exposure to industrial noise." As to the cause of the tinnitus he wrote that "[l]iterally any ear disorder may cause tinnitus and in fact, a certain proportion of tinnitus sufferers have no discernible aetiology at all." He added that the most common causes of tinnitus are noise exposure and the ageing process with its associated deafness. He also stated that stress may aggravate tinnitus.

16. Dr Seymour's tests did not reveal any abnormal loss of hearing and he therefore concluded that the applicant's tinnitus was not due to industrial noise but to the psychogenic or "other central" causes. Dr Seymour added that tinnitus has "in excess of 200 causes, only one of which is occupation noise exposure."

17. Ms Kingman, an audiologist, reported that a hearing assessment carried out in September 1999 indicated that there was no hearing loss typical of that associated with noise exposure. She thought that the applicant's tinnitus was associated with stress and fatigue, with medication as a possible contributing factor.

18. Tests conducted by the respondent on 12 September 1997 over 3 hours and 35 minutes in the Communications Room at Tidbinbilla recorded a maximum of 79.5 decibels and a minimum noise level of 66.3 decibels. Later tests conducted by the National Safety Council of Australia on 2 November 1998 over two hours gave the following results:

Signal processing centre: 67 - 72 decibels

Complex control centre: 55 - 63 decibels

Computer room: 65 - 69.5 decibels

19. These readings were taken by the respondent to indicate that the noise levels in the places tested were well under the ASA standard which permits noise exposure at 85 decibels. However I note that the standard permits that level over a period of eight hours and no attention seems to have been paid to the appropriate level over a period of a 12 hour shift.

20. The other medical evidence on the question of tinnitus came from other doctors not specialising in the field. Dr Veness did not really address the question of the cause of the tinnitus. His view, as a psychiatrist, was that the tinnitus, amongst other factors, contributed to the stress. (Dr Haik, another psychiatrist, thought that the tinnitus did not have a psychological basis, but his evidence was not discussed by the Magistrate on this aspect). Dr Milosevic, the general practitioner, did not express a view. Dr Schlesinger, a psychologist, gave evidence about stress affecting the cortical neuronal system with possible consequent structural change but did not relate this to tinnitus. Mr Petroni, also a psychologist, expressed the view that excessive "noise stress" was the precursor of the appellant's tinnitus. However apart from acknowledging a connection between noise and stress, the limits of Mr Petroni's expertise meant that his evidence did not go beyond reporting what the appellant told him.

21. Dr Jonathan Turtle, described by the Magistrate as a "general and nutritional practitioner" furnished a report and gave evidence in which he related the appellant's working condition to chronic anxiety and depression and also to chronic fatigue syndrome. He added that "the chronic tinnitus [was] due to prolonged periods of excessive noise at the Tidbinbilla Tracking Station".

Findings

22. The Magistrate's findings and reasons on the issue whether the appellant's tinnitus was caused by the noise to which he was subjected in the repondent's employment were briefly stated, namely that the three specialists in matters relating to the ear were to be preferred to Dr Turtle. In this regard, the Magistrate had the advantage of seeing and hearing Dr Turtle, as well as Dr Chapman (and Dr Schlesinger) in the witness box. The Magistrate was not reduced to deciding the issue by reference to the demeanour of witnesses nor to a comparison of qualifications and expertise. As far as Dr Turtle was concerned, the Magistrate considered it of significance that Dr Turtle had not inquired into the noise levels to which the applicant had been subjected in previous employment.

23. Whilst it may have been possible to construct a case that, whatever the contribution from other sources, the noise levels at Tidbinbilla Tracking Station proved to be the marginal factor for causing the appellant's tinnitus, it seems that any such case was abandoned before the Magistrate. As I understand it, no such case was pressed on appeal. Apart from the opinion of Dr Turtle the medical evidence went no further than establishing a connection between tinnitus and the applicant's past employment. But there was nothing which focussed on the conditions at Tidbinbilla and nothing to prove "injury" there which gave rise to the appellant's tinnitus. On the way the case was presented, the Magistrate was justified in finding that the appellant had not established that his tinnitus was caused by the noise at the tracking station.

24. The Magistrate then turned to the issue of whether the appellant's stress, such as it was, was the result of the conditions of work with the respondent. As to the appellant's evidence, the Magistrate found him to be "less than an entirely credible witness" and that there were "grave reservations" about his veracity. Some reasons were given for reaching that conclusion.

25. The Magistrate considered that the preferable professional opinion on the issue of stress was that of Dr Haik. The opinions of the general practitioner, Dr Milosevic, the psychologist, Dr Schlesinger, and the general practitioner and nutritionist, Dr Turtle, were rejected, but not only on the grounds of inferior qualifications. None of those witnesses had received a full history from the appellant nor indeed had Dr Veness. The Magistrate considered that Dr Veness' view that the appellant had been "poorly managed" by the respondent for the tinnitus problem might have been different if the appellant had told him that he had refused several offers to go on to day shift.

26. On that basis the Magistrate again expressed brief findings and reasons that on the probabilities it had been shown that any such stress did not arise out of or in the course of employment with the respondent, but arose as a direct consequence of his own actions in conjunction with the following factors (which I paraphrase slightly):

(a) His failure to accept that his employment progress was dependent upon upgrading his skills.

(a) His obsessive and unsubstantiated belief that his superannuation fund was being administered dishonestly.

(b) His uncooperative attitude and refusal to participate in the respondent's introduction of a performance management system.

(e) His refusal to accept several genuine offers of alternative positions from February 1996. Those offers were made in response to his complaints about tinnitus.

27. However, the case argued for the appellant was more sophisticated than relying on tinnitus and stress as separate conditions or as separate causes of incapacity or as the results of separate injuries. The case was that, in the circumstances and events of the workplace, of which noise was only one factor, the appellant developed a condition of anxiety and stress so that, given his tinnitus, each condition aggravated the other and so led to his incapacity for work. In this regard the Magistrate's findings were very brief, simply that the evidence did not support such an assertion. I shall return to this aspect.

Case on Appeal

28. There were eight precise grounds of appeal in the Notice of Appeal. Not all were argued by Mr Meagher, who appeared for the appellant. I deal with the grounds in the order in which they were argued. I do so after reminding myself and the parties that the Magistrate sat as an arbitrator and the reasons accompanying the award should not be construed like a judgment in a major constitutional case.

29. The first criticism of the Magistrate's decision is that it does not deal with the relationship between stress and tinnitus.

30. Some general consideration about both stress and tinnitus need to be borne in mind in the light of the definition of "injury" in s 6, that is "any physical or mental injury (including stress) [which] includes aggravation, acceleration or recurrence or (sic) a pre-existing injury". There is no need in these reasons to dwell on the peculiar and ungainly language of the statutory definition. Stress is not a precise medical diagnosis. That is a matter of common knowledge. Tinnitus may be in a different category. There was no explanation in the evidence about what precisely constitutes tinnitus. The generality of the evidence about it in the present case suggests that it means nothing more than a sensation of noise for which there is no external explanation. That much is consistent with a paragraph extracted from an American work by Dr Williams on page 2 of his report of 8 December 1999. A person with tinnitus complains of a ringing, buzzing or similar noise in one or both ears. Presumably the absence of an objective or physical explanation does not mean that the sensation is not genuine. On any view it is difficult to see how tinnitus of itself may constitute "injury" under the Act.

31. However, it would appear to be consistent with the medical evidence in the case that the various emotional states associated with stress may be relevant to a condition of tinnitus. Therefore if in a particular case tinnitus is associated in some causal way with work-related stress, then the tinnitus may be seen to be causally related to the conditions of work which produce the stress. As the audiologist Ms Kingman put it, "it is difficult to disregard noise as another possible contributing factor to the tinnitus." This mutually aggravating relationship of tinnitus and stress appears to be not unlike chronic pain syndrome, a phenomenon which is commonly encountered in the courts. Thus it would have been incorrect, as was submitted by Mr Meagher, for the Magistrate to have said that there was no evidence to support the hypothesis that the employment aggravated the tinnitus. But the difficulty with the submission is that that is not what the Magistrate said. What the Magistrate said was that the evidence did not support such a contention. In the light of the careful exposition by the Magistrate of the evidence itself, it is clear that what the Magistrate meant was that, having regard to the onus of proof, the evidence was not sufficient to establish the alleged causal connection. As indicated above, the Magistrate preferred the evidence of the doctors who specialised in matters relating to the ear and hearing. Whilst Dr Chapman was of the view, in general terms, that stress tends to aggravate tinnitus, he was not specific. Dr Seymour was even less so, referring to psychogenic or "other central" causes. Dr Williams did not express a view. This lack of precision justified the conclusion that it was not shown on the probabilities that the tinnitus condition was aggravated by a stressful environment at Tidbinbilla.

32. The next submission was that the Magistrate failed to recognise the importance of the question of the appellant's mental condition and failed to make a finding whether or not the appellant was suffering from a "mental disorder". That the Magistrate did not make such a finding was, in my view, perfectly understandable. The appellant's case was not that he suffered from a recognisable mental disorder but from a general condition of stress. It is not clear to me how mental disorder became an issue in the case, or indeed whether it really did so. That it may have done so is suggested by the use of the term "anxiety state" by Dr Veness, the psychiatrist, and the terms "post traumatic stress disorder" and "chronic anxiety" by Dr Turtle, the general practitioner. As to the latter there is no doubt that evidence of a psychiatric nature can be given by a general medical practitioner, but, as already indicated, the Magistrate preferred the evidence of the ear and hearing specialists to that of Dr Turtle. In my view, the Magistrate should and no doubt would have preferred the evidence of the psychiatrists against that of Dr Turtle on psychiatric matters had there been any real psychiatric issue. Neither Dr Haik nor Dr Veness used the term "post traumatic stress disorder". There was no traumatic event upon which such a disorder could be based. The diagnosis would have to be rejected.

33. Dr Veness and Dr Haik differed as to whether the appellant's condition amounted to a mental disorder. The Magistrate did not expressly discuss the issue, let alone decide it. This again appears to me to be understandable in view of the way in which the case was presented. Again it seems to me that, had the precise issue been addressed, it would have been decided on the evidence of Dr Haik and unfavourably for the appellant. At this stage, if it is necessary for me to decide the issue, I would decide that, having particular regard to the Magistrate's findings on other issues, which are not to be disturbed, the evidence of Dr Haik is to be preferred to that of Dr  Veness and the appellant has not established that he was suffering from any mental disorder.

34. The next submission was that the Magistrate misused the advantage of seeing and hearing the appellant with the result that the appellant was dismissed as an unreliable witness. Experience confirms that it is very difficult to give persuasive reasons why one believes or disbelieves what somebody else says. In the present case the Magistrate's somewhat personal remarks about the appellant were submitted to have led to error on the issue of credibility. The Magistrate expressed a view that there were concerns about the integrity of a person like the appellant who, on his own evidence, had turned up for a 12 hour shift and then spent up to ten hours per shift over a two or three year period lying down because, as he claimed, he was too ill to work. The Magistrate also said that the appellant had made false representations about fraud in the superannuation scheme and about the respondent refusing to move him to day work. It was submitted that these remarks were gratuitous and unjustified, and provided an inadequate foundation for dismissing the appellant as an unreliable witness.

35. It is true that issues of integrity and veracity are not exactly the same and should not be confused. That is not to say that one is not relevant to the other. I think that it was open to the Magistrate to treat as relevant the appellant's claim that when he lay down for up to ten hours per shift it was because he was ill. The appellant did not complain to any doctor about such illness and there was no recommendation for him to take that course. The matter of his incapacity was in issue and it was open to the Magistrate to make a finding as to the genuineness of the appellant's complaints. On the other hand, it was not part of the Magistrate's task to decide whether the appellant's allegations of fraud were true or false. That was not an issue in the case and did not fall to be decided. Of course if the appellant had freely and clearly admitted making false allegations of fraud, that admission would have damaged his credibility generally, but I do not understand him to have made such an admission. Similarly, I do not think that it fell to the Magistrate to decide whether the substance of the appellant's complaints to Dr Haik about the company's refusal to offer him another position was established. However, despite those minor reservations about the Magistrate's approach, I do not think that the Magistrate's findings on credit can be interfered with.

36. The remaining issue is what was considered to be the fundamental error on the part of the Magistrate, that is to say, a failure to understand the nature of the causative link between the appellant's employment and the stress from which he suffered. The error, so it was submitted, was overlooking the possibility that stress could be caused as a direct result of the appellant's own actions (as the Magistrate found) but nonetheless that employment could be a contributing factor sufficient under s 9 of the Act for the development or intensification of stress. This submission is associated with the ground in the notice of appeal, but not expressly argued, that after accepting that s 6(1A) of the Act did not apply to the circumstances of the case, the Magistrate was in error in addressing the issue whether any stress suffered by the appellant was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to the transfer, promotion, performance appraisal, discipline, retrenchment or dismissal of the appellant, and determining that issue adversely to the appellant.

37. Section 6(1A) commenced on 17 December 1997. It provides:

"In the definition of "injury" in subsection (1), a reference to mental injury or stress shall not be taken to include a mental injury or stress wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of an employer with respect to the transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of a worker or the provision of an employment benefit to a worker."

Whether s 6(1A) operated retrospectively so as to apply to any injury received before 17 December 1997 was not an issue pursued at the hearing of the appeal.

38. In written submissions called for and furnished after the hearing of the appeal, it was submitted for the appellant that s 6(1A) was not retrospective and for the respondent it was not contended to the contrary. However it appears to me that s 6(1A) does have some relevance to the issues in the case.

39. The importance of s 6(1A) for the purposes of the present case is not that it effected any real change in the law but that it is directed to and highlights some of the issues that arise where a worker is incapacitated by stress which follows steps taken (or omitted) by the employer in the employer's organisation or reorganisation of its business. The section follows substantially the provisions of s 11A(1) of the Workers Compensation Act 1987 of New South Wales, with the notable difference that the New South Wales legislation refers specifically to a "psychological injury" which is by definition confined to a "psychological or psychiatric disorder", a term which "extends to the physiological effect of such a disorder on the nervous system". In contrast the legislation in the Territory avoids such particular definition and simply includes "mental injury (including stress)" in the definition of "injury" in s 6.

40. Thus it is (and, it seems to me, always was) a question of fact whether action taken by an employer with regard to the reorganisation of staff, shutdown of plant, introduction of new work practices, changes in remuneration and the like (usually encompassed in the term "industrial relations") resulted in "injury" to a worker who found such action stressful. The question is to be determined on the type of action taken by the employer and the type of reaction in the worker.

41. Thus it seems to me that whilst s 6(1A) does not apply in the present case, it calls attention to the need for a worker claiming to suffer injury arising out of or in the course of employment to show more than a stressful condition following as a matter of temporal sequence the introduction of changes, or refusal to implement changes, to the organisation of the employer's business.

42. In this respect, it has to be remembered that questions of causation in legal proceedings are to be decided in a "common sense" way, and that a "but for" test is not always conclusive or appropriate: see March v E & M H Stramare [1991] HCA 12; (1991) 171 CLR 506. Sometimes value judgment is involved, although it may not be recognisable as such except in borderline cases. Cases involving the causation of stress are often borderline cases, as I think this one is. In a general sense it could hardly be denied that the appellant's stress had some relation to his job at the tracking station, his relationships with supervising staff, the hours during which he worked, his working conditions including noise, and his tinnitus. But the Magistrate found that the stress was the "direct result of his own conduct", that is to say essentially his failure and refusal to participate in management programs directed towards efficiency and, as a distinct matter, his unshakeable belief in the dishonest management of the superannuation scheme. The use of the term "direct result", I think, indicates that the other matters relating to his job referred to above were not irrelevant, but for the purposes of deciding whether there had been injury arising out of or in the course of his employment they were overwhelmed by the conduct of the worker himself, which was so personal to him that the other matters could not in any common sense way be regarded as "causing" his stress. To put it another way, it would not be fair to load the employer with responsibility for having caused the stress. To approach the case in this way happens to coincide with the policy enshrined in s 6(1A) which itself may be regarded as a matter of "common sense". But the approach is not dependent upon s 6(1A). The situation is not unlike that in William Wodrow v Commonwealth of Australia (1993) Aust Torts Reports 81-260. In that case the plaintiff, like the present appellant, a "whistle blower", was placed under such stress by the conditions of his employment, and by what he regarded as inefficient and inappropriate work practices, that he became incapacitated. I took the view at first instance that the work practices caused the stress and the stress caused his incapacity. A Full Court of the Federal Court disagreed, saying that the stress and the incapacity were caused by considerations personal to the employee. That appears to me to be the sort of approach taken by the Magistrate in the present case, and, whilst minds may differ on such matters, it has not been established that the Magistrate was wrong.

43. The appeal should be dismissed. Unless the parties wish to be heard I propose to order that the appellant pay the costs of the appeal and that there be no order as to costs in the Magistrates Court.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Associate:

Date: 25 May 2001

Counsel for the appellant: Mr B Meagher

Solicitor for the appellant: Capital Lawyers

Counsel for the respondent: Mr G Stretton

Solicitor for the respondent: Mallesons Stephen Jaques

Date of hearing: 29 January 2001

Date of judgment: 25 May 2001