Taggart v Comcare [1999] FCA 1349 (27 September 1999)

Last Updated: 5 October 1999

FEDERAL COURT OF AUSTRALIA

Taggart v Comcare [1999] FCA 1349

THOMAS JOHN TAGGART v COMCARE

Q 24 of 1999

DOWSETT J

27 SEPTEMBER 1999

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 24 OF 1999

BETWEEN:	THOMAS JOHN TAGGART Appellant
AND:	COMCARE Respondent
JUDGE:	DOWSETT J
DATE OF ORDER:	27 SEPTEMBER 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the proceedings

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 24 OF 1999

BETWEEN:	THOMAS JOHN TAGGART Appellant
AND:	COMCARE Respondent

JUDGE:	DOWSETT J
DATE:	27 SEPTEMBER 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 This is an appeal from a decision of the Administrative Appeals Tribunal brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the "Act"). An appeal lies only on questions of law. The proceedings in the Administrative Appeals Tribunal concerned an application by the present appellant pursuant to the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the "Compensation Act"). In order to establish entitlement to compensation pursuant to that legislation it was necessary, pursuant to the provisions of s 14(1), that the appellant show that he had suffered an injury. "Injury" is defined in s 4(1) to mean:-

(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; ... .

2 The word "disease" is defined to mean:-

(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; ... .

3 "Ailment" means:-

any physical or mental ailment, disorder, defect, or morbid condition (whether of sudden onset or gradual development); ... .

4 The appellant was previously employed by the Australian Federal Police and, in effect, claims that as a result of his working conditions he suffered a psychiatric illness of some kind which now incapacitates him for work. His health condition was complicated by the fact that prior to his ceasing work on 1 July 1995 he had, for some time, been suffering from a disease known as essential thrombocytosis. This condition was first diagnosed in November 1994. He was thereafter subjected to a regime of treatment. The medical evidence suggests that from time to time the condition may have caused dizziness, headaches, lack of concentration and similar complaints, although these were, it seems, generally under control as a result of his use of aspirin, amongst other medications. It is interesting to note that on 29 June 1995 his medical practitioner recommended that he discontinue the use of aspirin. When the appellant saw Dr Reddan, one of the psychiatrists who gave evidence in this case, he described his conditions at the time he ceased employment as including symptoms of the kind I have previously mentioned.

5 He initially consulted a psychiatrist, Dr Wilkie, who diagnosed a psychiatric disorder which would have constituted an injury for the purposes of the Act. He also saw Dr Klug, another psychiatrist, who gave a diagnosis which also would have satisfied the section. However Dr Reddan was of the view that he did not suffer from any identifiable psychiatric illness or disorder. The Tribunal, unfortunately for the appellant, accepted Dr Reddan's opinion, rejecting those of Dr Wilkie and Dr Klug. The Tribunal considered that Dr Wilkie had become partisan in the cause of the appellant. There is no suggestion that it was not entitled to reach this conclusion. As to Dr Klug, the Tribunal noted that he saw the appellant on only one occasion and that he received a version of events which, in the Tribunal's view, was "slanted", presumably meaning exaggerated by the appellant. The Tribunal did not entirely reject the appellant as a witness, but it considered that he was inclined to over-state his case and in particular, to over-state his symptoms. In those circumstances the Tribunal was entitled to doubt the evidence of Dr Klug and to prefer the evidence of Dr Reddan which, in the view of the Tribunal, was based upon a history which more closely approximated to its own view of the facts, based on the evidence. I can see no legal basis for criticising the decision of the Tribunal, preferring the evidence of Dr Reddan and her opinions to those of the other psychiatric witnesses.

6 The appellant, nonetheless, attacks the outcome upon three different bases. The first is that the Tribunal erred in its direction to itself as to the meaning of the expression "injury". It is submitted that the mere fact that Dr Reddan was unable to identify any known psychiatric disorder did not mean that the appellant was not suffering from a "mental" ailment of some kind. It would, I think, be an adventurous Tribunal which concluded that there was an ailment of a kind not recognised by the appropriate area of medical specialisation. It may be, as Drummond J suggested in Comcare v Mooi (1996) 69 FCR 439 at 445, that in this Act the notion of "disease" or "ailment" merely requires a departure from normal state of health. Such an approach is consistent with the approach taken by the High Court in The Queen v Falconer [1990] HCA 49; (1990) 171 CLR 30, distinguishing between an abnormal response to circumstances because of a "mental" ailment and the response of a healthy mind to such circumstances. That is precisely the approach adopted by Dr Reddan. She reached the view that such symptoms as the appellant complained of were simply the normal reactions of a normal mind to circumstances of pressure.

7 It may be that if the conclusion reached by Dr Reddan was simply that the appellant's symptoms were those which one would expect from a healthy mind faced with the circumstances with which he was faced, the Tribunal was not obliged to accept it, it being a matter within the knowledge and experience of ordinary human beings, but it was entitled to do so. That is what happened. I cannot see any legitimate basis for criticizing that approach.

8 It is also said that the Tribunal took into account irrelevant considerations in reaching its conclusion. Some of these related to the rejection of Dr Wilkie and Dr Klug's opinions. I have already dealt with these matters. It was submitted that the Tribunal ought to have recorded its own detailed findings as to the appellant's history and as to where those findings differed from the factual bases of the various medical opinions. Such an approach to giving reasons could become unduly burdensome and impossible to administer. Opinion evidence depends upon its factual basis. For better or worse, the hearing process usually involves both the resolution of factual issues and of differences in opinion evidence. It is not generally thought practicable to resolve the facts and then invite the experts to offer opinions on those facts. All that any tribunal can do is to form a view of the facts and then test the opinion evidence against that view. The Tribunal appears to have concluded that Dr Reddan's understanding of the facts was closest to the truth.

9 It was also suggested that Dr Reddan had misunderstood evidence as to symptoms associated with the condition of essential thrombocytosis. However, in the course of seeking to demonstrate that assertion to me, it became obvious that there was ample basis for her view. She had suggested that some of the symptoms of which the appellant complained may have been attributable to his essential thrombocytosis. That appears to have been a possible explanation, but in any event, Dr Reddan's conclusions were not based solely on that possibility. She seems rather to have identified the whole of the circumstances with which the appellant was faced at the relevant time and his responses to them, keeping in mind the possible ascription of some symptoms to essential thrombocytosis.

10 There was a suggestion that the Tribunal had failed to give adequate reasons. It is necessary that the parties understand the Tribunal's conclusions and its reasons for those conclusions. It is not necessary that there be a "line by line" analysis of the evidence. I have considered the reasons and cannot see any respect in which they could be said to be inadequate. In effect, what the appellant has sought to do in this case is firstly, to go behind the marked preference for the evidence of Dr Reddan expressed by the Tribunal; and, secondly, to point to aspects of the evidence which suggest a conclusion different from that reached by the Tribunal. Neither approach is designed to demonstrate an error of law. No error has been demonstrated.

11 I can see no substance in the appeal. It will be dismissed. I order that the appellant pay the respondent's costs of the proceedings.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated: 30 September 1999

Counsel for the Appellant:	Mr M Taylor
Solicitor for the Appellant:	Hall Payne
Counsel for the Respondent:	Miss E Ford
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	27 September 1999
Date of Judgment:	27 September 1999