Tzikas, Vicki v Australian Telecommunication Commission [1981] FCA 20

CATCHWORDS

Workers' Compensation - Appeal from Tribunal on question of law - failure by Tribunal to consider applicant's case constituting an error of law - Subjectively assessed stress at work place aggravating and accelerating the pre-existing condition of psycho-

neurosis.

Compensation (Commonwealth Employees) Act 1971 s.95. Federal Court of Australia Act 1976 s.27.

VG No. 76 of 1980

VICKI TZIKAS v. AUSTRALIAN TELECOMMUNICATIONS COMMISSION

13 March 1981.

Melbourne,

RECEIVED

16 MAR 1981

court OF

AUSTRALIA PRINCIPAL

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BLIWEL: VLCS*

AND: AUSTRALIAN TILLECOMMUNTCATIONS

COMM] SS LON

Respondent

Judge Making Order: Smithers J. Date of Order: 13 March 1981 Where Made: Melbourne.

ORDER THE COURT ORDERS 'THAT:- l. The appeal be allowed. 2. The decision of the Commonwealth Employeces'

Compensation Tribunal deted 13 July 1980 be sct

aside.

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Yhe ceaplrecant's case be revisited ce the D

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Lleqort oF the Conmmivsionet for dete ,uinntacn or che peyretce

to be made to teo Appliceit on the wastes oF ner p

being totally incapacitaced for work.

The applicant have the costs of this appeal and

those of the proccedinags before the Tribunal.

IN THE PEDLRAL COUR! OF AUSTRALIA

ViCTORTA DVS PPICT PuatsrRs VO Wo. 7@ of 168

eee LY

GENERAL DIVISION

BETWEEN: VICKI T21KAS

Applicant

AND: AUSTRALIAN TRELECOMMUNICATIONS

COMMISSION

Respondent

Coram: Smithers J.

13 March 1981

REASONS FOR JUDGMENT

The applicant Vicki Yzikas (tne applicant)appeals to

this Court pursuant to s.65 of the Compensation (Commonwealth

Employees) Act 1971 (the Act) on a question of law only, against a decision of the Commonwealth Lmployees' Compensation Tribunal dated 18 July 1980 confirming a determination of a Deputy Chief Delegate of the Commissioner for Employees' Compensation dated 3 November 1978 whereby a claim by the applicant against the Australian Telecommunications Commission

(Telecom) for compensation under the Act was rejected.

The claim was estrcesed to be in respect ot totel incapacity for work, duc te the agaiavation of acceleration of a nervous condition to which it was suid the applicant's

employment with Telecom hed contributed.

The applicant was born in Greece 37 years ago. She Married in Greece and came to Australia with her husband in 1966 She and her husband lived together in South Molbourne in the State of Victoria. They have two daughters, one now fifteen and the other seventeen, who live with them. It seems that in Australia the applicant was employed, first for a month in a factory at Port Melbourne, then for two years as a sewing Machinist at a baby clothing factory, then fer thre years with a sewing machine repair company. She was quite happy and successful in her employment and left it in 1971 only to gain

higher wages with the Post Master General's Department whose operations were subsequently taken over by Telecom. In this employment she worked in a factory or workshop concerned with the manufacture of telephones where she was required to work varlous machines such as presses. She remained in this employment until 26 March 1976 when she suffered what may be described as a collapse, and was sent to hospital. She was sent home from hospital the same diy. Her collapse had its origin in a nervous condition from which she suffered for some

years, certainly from 1972.

3. There is general ayreement that by @5 March 1376 she had become unfit for employment because of her nervous condition. Accotding to Dr. Sinclair, whose evidence was

accepted, che had for a long time suffered from psycho neurosis

with hysteria.

The question before the 'Tribunal was whether he was satisfied on a balance of probabilities that some characteristic of the applicant's work, or the conditions in which it was performed waS a contributing factor to the aggravation or accelleration of the disease of psycho neurosis and hysteria from which she had suffered from at least 1972, and 3if so, whether partial or total incapacity for work resulted from such aggravation or acceleration of the disease.

The Tribunal was not so satisfied.

In my view the case for the appellant depends upon the submission that for the purposes of the Tribunal deciding the matter the case made for the applicant through her medical witnesses called for full consideration but was not considered. This submission conforms with the fifth ground of appeal

namely:-

"5. The Tribunal failed to consider the evidence given by medical experts called on behalf on the

Applicant and/or to give any or any sufficient weight thereto."

The structure of the applicant's contentions made before this

4,

Court may be summarised as follows.

The applicant's case at the hearing was tnat there were factors in her work situatison which aggravated her disease and led to her pnecoming totally incapacitated for work. Medical evidence called by the applicant supported this case. The medical evidence called for the respondent was to the effect that the applicant's diseuse could not be said to have been aggravated or accelerated by conditions in the workplace because there were no stressful factors therein. The Tribunal found as a fact that the noise factor in the workshop was stressful and did worry the applicant. Yet the Tribunal so "preferred" the medical evidence of the respondent

that he gave no weight whatsoever to the medical evidence

called by the applicant.

It was said that in these circumstances 1t is apparent that the case for the applicant, so far as 1t depended upon medical evidence, was not considered or taken into account by the Tribunal and that the failure so to consider the case foi the applicant was an error of law. It was contended in particular that Dr. Sinclair, who was the medical witness called by the respondent, only looked at the problem of the possible effect of the work situation on the applicant's

disease, objectively, and did not take into consideration that subjectively, in the applicant's neurotic state various

factors in the work situation might have been interpreted by

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De he. as stressful and experienced more intensely, and more to the prejudice of her health tnan would be the case with a person wichcut her neurotic weakness. Jt 1s said that Dr. Sinclair did this, not because he did not regard subjective experience and interpretation by a neurotic as an irrelevant medical consideration in a proper case, but because, in this case, there was on hts information no stressful factor associated with the applicant's work situation. Accordingly 1t was contended that having regard to the fact that there was found to be at least one material stressful factor in the work situation, namely noise, and one which worried the applicant, her possible subjective interpretation of her work situation became a matter of considerable importance. It was pointed out that that aspect of the applicant's case was dealt with expressly, only by the applicant's medical witnesses, and the submission was that in this respect in particular, the

applicant's case was not considered or taken into account by

the Tribunal.

It was also said that the evidence given by Dr. Sinclair became of little value once it was established that the noise factor was a stressful factor and did worry the applicant. It was contended that as a consequence the only medical evidence which dealt expressly with the case on the basis that the work situation did have factors which regarded objectively were stressful or factors stressful to the

applicant on her subjective interpretation thereof was that of

. 6. Dr. Parkor and Dr. Cohen who both gave evidence for the applicant before the Tribunal. Accordingly, so it was said, the case could not be satisfacturily decided without full

consideration of that evidence and that the failure to cdo

so would constitute an error of law.

It waS submitted also that in so far as Dr. Sinclair came to the conclusion that the work situation had not aggravated the applicant's disease on the basis that there was nothing stressful in 1t, and Dr. Parker and Dr. Cohen came to the conclusion that there were factors in the work situation, prejudicial to the health of the applicant and that those factors had contributed to the aggravation of the applicant's disease, there was no fundamental conflict between the evidence of Dr. Sinclair and that of Dr. Parker and Dr. Cohen. They were like two housewives speaking from opposite sides of the street, from different premises. Accordingly, in dealing with the medicai evidence 1t was not a question of choosing between conflicting evidence, but applying all the medical evidence available, according to 1ts credibility, by reference to the actual facts. The actual facts included the vital item that there waS a material factor in the work situation that was objectively stressful, and there was a degree of Supervisory pressure on the operatives in the workshop. To ignore the medical evidence called for the applicant was a step not consequentially logical upon accepting the evidence

of Dr. Sinclair. One could accept that evidence and also give

7.

weight to the evidence of Dr. Parker and Dr. Cohen.

Further, although Dr. Sinclair Cid not in express terms say that 1f there were stressful factors in the work situation that might or would have aggravated the applicant's disease there 1s much in his evidence which implies that that

was his view.

It was said also that the reasons for "preferring" the evidence of Dr. Sinclair to that of Dr. Parker and Dr. Cohen were inadequate and that, to act upon them, resulted in a failure to take into account the case put for the applicant.

Such a failure would constitute a vital error of law.

The applicant gave evidence of the conditions at her Place of work during her four years of service in the respondent's workshop and described the smells, noise and pressure by wh:ch she said she was affected. The work conditions were described also by various other witnesses. Also for the purposes of assisting him in assessing the situation the Tribunal made a personal inspection of the

factory.

In the course of the hearing the applicant called two

medical witnesses, namely Dr. Parker and Dr. Cohen and the respondent called Dr. Sinclair. Each of these medical men

were competent psychaitrists. Dr. Parker and Dr. Cohen

ee

8. conducted interviews with the applicant and formed opinions as to the effect upon the applicant's disease of the work situation as they gathered it to be from the applicant's description and of the applicant's subjective interpretation of the actual conditions experienced by her. It seems, according to the evidence of Mrs. Lidou, which was accepted by the Tribunal, that during most of the four years the applicant worked in the respondent's workshop she had repeatedly complained of not feeling well. Although she seemed to be in reasonable health when the started to work in the workshop she "changed" and began to complain of not feeling well and not to look well, that she was continually going to doctors who could find nothing wrong with her. There were prescribed for her many kinds of pills. In the last few months the applicant began to complain about the noise saying she had terrible headaches, could not work and the noise was hurting her. On 26 March 1976 the applicant said to Mrs. Lidou that she felt terribly sick. She was helped upstairs to the medical sister. She was sent to hospital and sent home the same day. It is generally accepted that she was unable to continue to work. In her statement to Dr. Cohen and Dr. Parker the applicant emphasised what she said was undue pressure from supervision but said little about noise. Dr. Parker and Dr. Cohen accepted the applicant's description of her work conditions was accurate, and that, in any event, she truthfully expressed her subjective assessment and interpretation of those

conditions. Their conclusions were that she had suffered from

Sane ee -- - - -

9. psyche neurosis for some years berore March 1976 and that the conditions in the workshop had agyravated that disease and accelerated the onset of symptoms so that by March 1976 she

was totally incapacitated for work.

Dr. Sinclair conducted interviews with the applicant, concluded that she had suffered from psycho-neurosis with hysteria for some years before March 1976, that her disease had progressed until March 1976 when it became such that 1t was unlikely she would work again. As to conditions in the workshop he acted upon information from various sources as to the conditions therein. This information was that those conditions did not involve any significant stress factor such as noise or otherwise. His information was that the noise level was the lowest in the respondent's mechanical shops. All the medical witnesses were satisfied that due to her disease of psycho neurosis the applicant was as from 26 March 1976 unlikely tc work again. It is important to note that it was to be inferred from the evidence of Dr. Sinclair that the applicant's condition was one of extreme vulnerability to unpleasant situations so that even a minor stress factor would "push her" from a work to a non-work state of health. His view was that as there was no stress factor in the work situation the work situation was not responsible for her

collapse in March 1976. This collapse appeared to be quite

sudden.

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10.

When the doctors gave their evidence the relevant factors in the work situation such as the actual level of noise, the degree of pressure of supervisior and smell had not been judicially determined. The level of noise was determined by the Tribunal in its reasons for judgment not in terms of decibels or the like, but in one of the terms used by the medical witnesses relevant to the problem before them, namely stress. Using that language the Tribunal found as a fact, after an inspection at the work place, that the noise at the Place of work was stressful and that it did worry the

applicant. He said:-

"The actual work the applicant did was not stressful to her at all ... On the other hand, the noise could irritate and there is eviderce that she did complain about the noise. I accept that it did worry her... He [Dr. Sinclair] thought tne job was not stressful and apart from the element of noise that accords with my finding of fact."

As to the element of pressure the Tribunal made no specific finding. He did not accept the applicant as a reliable witness, but expressly stated that he accepted the evidence of Mis. Lidou and John and Kevin Ackers. He expressly accepted the evidence of Peter Kronberger in one respect and there is no reason why his evidence otherwise was not to be relied upon. From these sources the inference to be drawn is that there were production quotas set which the foremen and supervisors were expected to achieve, that to

achieve these quotas the operatives had to be kept at work

dl. substantially without respite and would be "taken to task" by the foremen, sometimes every day. Tt appeared that the applicant was a slow worker in respect of whom there had been pressure described as "not undue pressure" to induce her to work harder. Against required production, tea making time was allowed at a set period. Kevin Ackers described the situation concerning pressure on the applicant to perform her tasks by saying, "I would not say there was any actual pressure so long as she was doing her job well, everything is O.K. you know, firm without applying the pressure.". Mrs. Lidou, an extravert lady, being asked if she ever felt under any pressure working on the job said, "I am working sixteen years, never say to me the bosses, hurry up, but all the time the bosses, if I am not working, say, 'what are you doing, talk too much complain too much.'". The applicant said that one facet of supervision was that operatives were timed on their attendance in the toilet. This evidence was rejected by the Tribunal. Nevertheless it is a fair inference from the evidence of Mrs. Lidou that the supervisors were sensitive and alert with respect to time taken at the toilet and that the applicant knew this. John Ackers the senior foreman in relation to a hundred and eighty people was asked, "If an employee for instance would complain about the hardness or the sort of work they were required to do, would they be compelled

to do 1t?", he replied:-

"JT still want to - if you get paid to do a job, you do a job as you have been told. J mean

12. no question about it, 1f an employee - let me put it this way; I spend two days here and I hate every minute of it but I nad to do it because I was told to do it. The same with a worker, I mean every worker employed for a certain amount of money, therefore she has to or he has to do a certain amount

of that. If we think that the work 1s above her or his antelligence and mental

Capacity, he would have difficulties to perform the job, yes, certainly. We will change her from the job but just because somebody does not like a job and if we think you have to do it, there 1s no doubt about it."

It is apparent that the take over of the workshop by Telecom caused general anxiety on the part of all employees as to their job security and extra effort that might be required of them. In all likelihood this tended to stiffen supervision by the foremen. As Mr. Kronberger said, "It all ends on the foremen's back.". So far as smell from the paint shop was concerned the inference to be drawn would seem to be that it played no significant part in relation to the current problem. However, heat and cold apparently did cause discomfort from time to time. Kevin Ackers being asked about the noise and the heating said, "Everybody has a bit of a whinge about

that.".

There is evidence to support the finding of the Tribunal that the noise was stressful. Kevin Ackers was asked, "It is not a constant noise, 1t 1S a thump and a lull

and a thump and a lull type of noise is it not?". He

replied:-

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13.

" Well depends what machines are on, you have got

presses, moulding machines, background noises when you are talking to somebody, that is all you are concerned about. Similar to how next to a railway line, you would not hear how many trains go past every day, it 1S just background noise."

Mrs. Lidou was asked if the noise had changed much during her working period. She said, "Noise all the time is the same ... machine working every day, sometimes too noisy, sometimes not.". According to Kevin Ackers decibel tests of the noise in the workshop had been made by people from La Trobe University at least on one occasion and the noise had been

officially regarded as "acceptable".

It may be concluded from the Tribunal's reasons for judgment therefore, that supervision of operatives reflected the specified quotas and that the quotas would not admit of anything but continuous application by operatives to the working of the machines, that the degree of supervision was strict, and that personal rebuke would follow relaxed effort. In this sense there was pressure. The finding of the Tribunal

that the noise did worry the applicant and his acceptance of her evidence that it did so is most important. Her evidence

was to this effect,

"And you of course did not complain about these other machines did you? --~ Yes, of course I had to work and only that when I worked this

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particular machine, and particularly when it was cutting pieces of steel I got these noises in my head.

So you did not make any complaint at all, is that right? --- I did not complain about this particular machine. I made complaints about the noise but I could not do anything else because you just had to work.

The noise only worried you when these new presses ---? I do not know what the exact, what part exactly the noise came from, but for about five or six months, the noise was really getting on my nerves and worrying me.

Would this be the last five or six months before you finished work? ---For about five or six months before I got sick at work I had been

going to the hospital, at Prince Henry's about my ears.

I put that question to you again. The noise only really started worrying you in the last five or six months before you finished work? --- I had always had difficulty. I had always been worried by the noises especially when they began to cut, when they have cut steel and it made a very high pitched sound and in fact the doctor at the hospital said that I should not be working in those sort of condition.

So you are saying now that you always have been worried about the noises in the factory? --- Not from the beginning.

Not from the beginning? --- No.

Was it only in the five months that you were worried about the noises? --- It could be five, it could be seven. I do not remember exactly.

You were really quite happy with your working conditions prior to that last five or six months, is that right? --- I was prior to that. The situation had changed in that they were now tougher on us. In fact it was as 1f

15. they were trying to put both of our shoes on

the one foot. We were treated like animals, not like men.

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Would it be fair to say like the situation with the noise the smell did not worry you until the last five months of your employment? --- No, the noise was particularly having an effect on me, particularly in the last period, but the paint, the smell from the paint had always been annoying. In fact I had many times mentioned that 1t made be feel as if I wanted to vomit but that had been going on all the time."

It was in respect of this background of fact that the doctors should have been asked to speak. The finding of the Tribunal that noise was a stressful element is to be interpreted as a finding that it was an element of such nature as to be stressful so far as ordinary healthy people were concerned. Its significance as such in relation to neurotic persons would presumably be greater. Accordingly an assessment of the likely effect of the work situation on the applicant's psycho-neurotic condition could not be of real value unless the element of noise as a stressful factor was taken into account. Dr. Sinclair's assessment was made of course on the basis that there was no such stressful element. This 1s not a criticism of Dr. Sinclair. He spoke by reference to the factual situation as he had been informed about it. But it does mean that his evidence required careful scrutiny. It was necessary at least, to consider whether 1t

could be gathered from his evidence what his views as to the

Situation would have been if he had known that there was a

meen re een eee ee - - - oe eee ~ -

16. stressful factor of noise which worried the applicant. It 1s argued that there are implications in his evidence which indicate he would favour the view expressed by Dr. Parker and Dr. Cohen. But at least the finding of the Tribunal being in disagreement with the views of Dr. Sinclair as to the existence and effect of noise as a stressful element seriously

undermined the conclusion of Dr. Sinclair.

Yet the Tribunal acted upon Dr. Sinclair's assessment not taking account of the circumstance that his own finding had undermined much, if not all of the force of Dr. Sinclair's conclusion. And this is the more important because there is much to be said for the view that it is implied in Dr. Sinclair's evidence that his views would have been affected if he had known that there was a stressful factor in the work

situation.

There was another aspect of the problem which could not but call into question the validity of total acceptance of Dr. Sinclair's assessment of the progress of the applicant's disease. That was that he had looked at the matter without reference to what may be called the applicant's subjective interpretation of the work situation and its various elements. There was nothing in Dr. Sinclair's evidence to suggest that in medical assessments a patient's subjective condition of mind may not be of importance in a proper case. The

implication is the other way. It would seem that Dr. Sinclair

Tegner ee eH - -- - - -- - --

17.

considered that this was not a proper case, in that sense,

because as he understood the work situation, there was no factor stressful objectively or subjectively, in it. The

following passage from Dr. Sinclair's evidence is relevant:-

"But nonetheless, a row of that sort would be an additional stress which may add to a psychoneurosis for whatever little degree? --- Yes, I believe that iS so in a vulnerable personality and by vulnerable, this lady is, in my view, vulnerable to any unpleasant situation,

If she were working in a situation which she found subjectively unpleasant, that could well be sufficient to tip her over the brink, would it not? However logical or unreasonabie her subjective view may be? --~- No, I think that the stress comes within the patient. It is more likely to be an aggravation in a vulnerable personality. That vulnerable personality is made by birth, culture, God and I would not agree that the type of job, 1f it

is a reasonable job, would be an aggravating factor."

The subjective aspect of the matter was dealt with in the evidence of Dr. Parker and Dr. Cohen. The factual basis on which they operated had in it a component of pressure in supervision which was greater than was objectively present according to the evidence accepted by the Tribunal. Dr. Parker, in particular and Dr. Cohen to a lesser degree, also spoke of the effect of noise as a relevant element. They accepted that there had been various elements in the work

situation relevant to the applicant's condition. They regarded as critical not, for example, the degree of pressure

objectively assessed but their assessment of the applicant's

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18. subjective interpretation of relevant elements in relation to herself and in particular the work pressure. As medical experts they formed the view that the applicant's subjective interpretation of these elements, accorded with her description to them, of those elements and they spoke as to

their view of the likely effect thereof on her disease.

Once the Tribunal had determined what the actual conditions at the workshop were it was essential to look at the evidence with reference to those conditions. It was not for any of the doctors to decide what were the conditions actually present. But so far as any relevant factors did exist, whether objectively or subjectively stressful, their opinions as to the significance thereof, which can be gathered from their evidence would be of real value. According to the evidence of Dr. Parker and Dr. Cohen the sagnificant matter would be the nature of the subjective perception and interpretation of the applicant of the factors which were present in her work situation. There is no reason to doubt the validity of this view as a matter of medical knowledge. There is also precedent for an approach along these lines in

Federal Broom Co. Pty. Ltd. v. Semlitch (1964) 110 C.L.R. 626.

In that case what was under consideration was the irrational

and indeed delusional belief of the claimant that she had been

injured by a simple event at work. At p. 634 it was said by

Kitto J. that "where an untoward occurence in a worker's

employment causes a pre-existing mental disorder to manifest

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19. itself 1n a new delusion, it seems to me to be proper to say

that there is an exacerbation of the mental disorder.".

The Tribunal took the view that objectively speaking the supervision and work pressure was not stressful. But Dr. Parker and Dr. Cohen considered that subjectively the supervision was stressfwi to the applicant and that that was the vital consideration. It is this part of the case of the applicant which was not taken into account by the Tribunal. It was their opinion that if there were a significant factor of noise then that noise in conjunction with her assessment of the supervision was responsible for her collapse. If there had been no element of objective pressure in the work situation the subjective applicant would have been purely delusional. Even if that had been so her condition would found her case if the delusion related to a characteristic of her work. But in this case the acceptance by the Tribunal of the evidence oi witnesses referred to above established a situation in which there was actual pressure not undue perhaps for ordinary people, but a major and sustained factor from anybody's point of view. This provided a firm foundation for the subjective interpretation of the work situation presented by the applicant and accepted by Dr. Parker and Dr. Cohen as representing a real symptom of her neurotic condition arising from such pressure as there existed. Whereas even an unreasonable delusion causing incapacity arising from some

aspect of the work situation may found a claim for

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20. compensation, in this case, the subjective interpretation by the applicant of the objective elements even if, out of Proportion objectively regarded did have a basis in reason. Properly considered therefore, in the light of the objective facts, the conclusions of Dr. Parker and Dr. Cohen as to her subjective condition and its relation to the work situation

are seen as credible and-persuasive.

The problem was to discover so far as possible what conclusions each would draw on the facts as demonstrated in accordance with the Tribunal's findings. That exercise would have revealed that Dr. Parker and Dr. Cohen had spoken with reference to conditions different from those in fact existing,

but there remained the sub stratum of opinion that where there

were work factors such as noise and pressure, then an employee suffering from psycho neurosis was likely to suffer

deterioration of his disease. As Dr. Parker put it:-

"What you are saying is that the major factor at work is the stress she describes as being under at work? --- Yes, she just was not happy there and she did not look forward to going to work and the job itself upset her. The things that she listed - if I might refer to these - were the noise, the smell, the operating of the presses and it was very hot in summer. I do not think these physical things were terribly important but the final thing she mentioned was "the pressure put on me ... I went to _ the toilet". I think it is the most important of all things she considers relevant.

Leaving aside the stress that she said was caused by being told to hurry up and so on, would it be your opinion that her difficulties

orem yen mete - - - ~

21.

would have been triggered by nerves and by the conditions in the factory? --- No, I think that once they get neurotic then noise disturbs them, so, given the condition, then the noise 1s a g@isturbing factor, it is a cumuiative effect.

If that proved to be incorrect, if she was not under any abnormal or unusual pressures at work, how would you analyse it? --- From a point of-view of stress, 1t is the subjective experience that is important rather than the objective evidence. If she perceived her environment as a stressful one, that 1s the relevant thing from a psychiatric point of view even though you

and I might not think it stressful."

Dr. Cohen said:-

"WaS any great pressure put on people to work or were they pressed to work a bit harder when Telecom was formed? --- Not really, I do not think so.

When you say not really? --~-They are sort of

supposed to in actual fact, I do not think it did happen.

It was generally put about at that stage when Telecom came in, people should work harder or have to work harder? --- We were not quite sure if it was going to be all that hard but 1t was not.

THE TRIBUNAL: It wasS not? --- I do not think it seemed to be.

MR. WHEELER: You had got a bit of time to settle down from the changeover?--- Yes.

About the time of the changeover, there was a bit of uncertainty as to whether anybody would lose their jobs or how much pressure was going to be put on people? ~-- No, it was all pretty right. I was not worried about my position because it was permanent.

Even you thought you might have to work a bit

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22. harder or they might put pressure on you? -~- JT was not scared, pressure does not. hurt anybody except this kind of pressure, but 1n the work area --

Anyone who was in the work could have been worried? --- At the time, I think we were all pretty well assured. Whoever was there provided they were okay, would have stayed.

I£ someone did not quite do the job that was expected of them, supervisors inclined to get on their backs a bit? --- Well I mean that is a pretty important question if you are asked to do a job to start off with, it would not be an unreasonable task and you would not be asked an unreasonable quantity

Or unreasonable time. Most jobs come down with estimated times to start off with."

Carrying out the same exercise with respect to the evidence of Dr. Sinclair, unless one gave weight to the implications therein that stresses in the work situation would or might cause deterioration of the applicant's condition, it was necessary at all points to ask the question, "yes but would that be so 1f there were a material stress factor in the work situation?" The situation was that there was on the one side, a body of evidence that factors of noise, pressure and the like, 1f they existed, would cause deterioration of the applicant's condition, and on the other side evidence that on the assumption that there were no stress in the work situation then the work could not be the cause of the aggravation of the applicant's condition. In this situation the balance of

probabilities favours the applicant. -

There is one statement in the recorded evidence of Dr.

23. Sinclair which literally understood is in conflict with the evidence of Dr. Parker and Dr. Cohen. Dr. Sinclair is

recorded as saying:-

"Do you say where a psycho-neurosis is involved, that work stress never plays a part in the production, aggravation, acceleration or exacerbation of that psycho neurosis? --~ Yes, I believe that, sir."

If it could be thought that that statement, understood literally, represented the expert opinion of Dr. Sinclair then of course there was a conflict between the medical evidence of Dr. Sinclair and that of Dr. Parker and Dr. Cohen. In that case, if after proper consideration the statement were treated by the Tribunal as meaning what it literally said and

acceptable as a medical opinion to that effect, 1t could no

doubt, have been acted upon.

In my opinion, however, in the light of the whole of the evidence of Dr. Sinclair it could not reasonably be thought that the statement in its literal form did represent his real expert opinion. In the first place, against the background of the terms of the Doctor's report and his evidence at the hearing and on grounds of ordinary experience of mankind, it would be a startling statement to make. One would certainly hesitate long before thinking that the doctor had really meant that stress at work no matter of what nature

or degree could not aggravate the psycho neurotic and

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24. hysterical condition of a person who, because of that condition was extremely vulnerable to any unpleasant situation. Such a notion would be in conflict with the thrust of the rest of this evidence. The outstanding feature of the applicant's disease as described by Dr. Sinclair was that her disease was at all material times psycho neurosis with hysteria in an advanced stage, and so much so, that she was vulnerable to any unpleasant situation. So vulnerable was she, that it would take "a very minor push" to precipitate a change from a state in which she could work to one jin which she could not. He said also that he believed that in her case there were several "final straws" which he could not specify. He added, "But what I am informed about the job, this job was not stressful.". At the same time he said as the Tribunal accepted that any work would be a contributing factor. This

is somewhat difficult to interpret but it does show that Dr.

Sinclair considered that the work itself, whatever Dr. Sinclair considered its characteristics to have been, was

distinctly relevant to the development of her disease.

The natural inference from his evidence is that if he had believed that there was a stressful factor in the work situation he would have regarded it as a possible "final straw". If one reads the whole of Dr. Sinclair's evidence

involving his report and takes into account that he had been

informed and accepted that the job was not stressful, and in

particular that the noise level was the lowest in any of the

25. respondent's workshops one 1s led to the conclusion, clearly implied in the passages referred to above, that it was not Dr.

Sinclair's view that work stress never plays a part in the production of aggravation. It may be mentioned that from Dr. Sinclair's evidence in this appeal it is clear that it was not his view. Some error had crept in. It seems clear that the

Tribunal did not decide this case by reference to the view

that stress at work could not possibly be a cause of aggravation of the disease of psycho neurosis. In relation to such a purely medical issue, the evidence of Dr. Parker and Dr. Cohen would have been of great importance. And the facts, discussed hereafter, that they did not use an interpreter or

had only recently seen the Prince Henry's Hospital documents,

would be quite irrelevant.

If however, 1t ought to be inferred that the Tribunal treated the statement as a medical opinion according to terms literally understood, and acceptable as evidence to that effect, and did act upon it as such, then the question would arise as to the soundness of that course. It could only be adopted if it were possible after proper consideration of the rest of the evidence of Dr. Sinclair and of all the other evidence, fairly and reasonably to decide that it did really represent the doctor's view. But so cogent, in my view, are the considerations to the contrary, that to have treated the statement as literally expressing the view of Dr. Sinclair and

to have decided the case on that ground would have been so

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26.

contrary to the evidence as to have constituted an error of

law.

fhe issue was one in respect of which a Tribunal could hardly just "prefer" the evidence of one expert to another. Reasoned consideration was essential and one would expect a discussion. The issue arose, as it seems to me, from a fair summation of Dr. Sinclair's evidence. He seemed to be saying that the psycho neurosis developed from stresses other than work stresses, yet work stresses, if there be any, might well aggravate the disease, but in this case although there were no work stresses, the mere going to work, work being inherently unpleasant, contributed to the applicant's ultimate condition in which she had lost motivation to work, and probably for an indefinite period would not work again. The Tribunal found as a fact that although the work that the applicant had to do did not contribute to the aggravation or acceleration of her psycho neurosis, the fact that she had to work at ail did aggravate or accelerate this underlying disease. I think that the reference in this finding to "the work the applicant had to do", is to the manipulation of the machines and the like. To this state of affairs the Tribunal applied the observations

of Waindeyer J. in Federal Broom Co. v. Semlitch (1964) 110

C.L.R. 626 at p.641 to the effect that to satisfy the

requirements of s.29 of the Act it is necessary to identify some characteristic of the employee's work which aggravated or

accelerated his disease. But to make this finding and to apply

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27. those observations in this case adversely to the applicant was to ignore the factor, of which of course Dr. Sinclair was unaware, that noise was a stressful characteristic of the applicant's work and worried her. It was to ignore also the applicant's subjective interpretation of another characteristic of the work, namely, the strict discipline in

the workshop. The significance of both of these characteristics was the subject of the positive implications in the evidence of Dr. Sinclair referred to above and the express evidence of Dr. Parker and Dr. Cohen. If notice be taken of the presence and effect on the applicant of these characteristics, the requirements referred to by Windeyer J. in Federal Broom Co. v. Semlitch (supra) are certainly Satisfied. I think it may be a real question whether, where a disease is aggravated merely by the fact that the employee has to go to work of such a nature that is inherently unpleasant,the conditions laid down by Windeyer J. in his judgment in that case (supra) are satisfied. But I do not

think 1t necessary in this case to pursue that question.

I turn to the submission that the reasons given for rejecting or treating as of no weight the evidence of Dr. Parker and Dr. Cohen were inadequate. Those reasons are set forth in para.15 of the reasons for the decision of the

Tribunal as follows:-

"15. I also accept the lay evidence of Mrs. Gabrielidore, Mr. John Ackers and Mr. Kevin

ae rr amare arene ee ew ee - - -

28. Ackers. It is significant that when Dr. Sinclair first saw the claimant he saw her without an interpreter and asked to see her again with one, whereas the other psychiatrists saw her without an interpreter. She gave evidence through an interpreter, It is also significant that Dr. Sinclair had the report from the Prince Henry Hospital before he made his mind up, whereas the other psychiatrists only saw the Hospital documents in the Tribunal after they had taken a position on this matter. In my view the medical evidence of Dr. Sinclair accords with the lay evidence that I have accepted. I accept the

evidence of Dr. Sinclair in preference to that of Dr. Parker and Dr. Cohen."

The statement that the evidence of Dr. Sinclair was "preferred" suggests that Dr. Sinclair and the other two psychiatrists were in conflict in some way. But 1n my view, as indicated above, that, in any material respect, is not so. The question was whether there were stressful elements in the work situation, or factors to which her subjective condition was due which were related to the work situation. Once it was eStablished that there was a stressful element, then Dr. Sinclair's opinion that the work had nothing to do with the disease had to be qualified, and the evidence of the

applicant's medical witnesses on the gereral effect of the

factors in a work situation gained added signficance.

The Tribunal "preferred" the evidence of Dr. Sinclair for two stated reasons. First, Dr. Sinclair had had the opportunity of reading and considering the Prince Henry's Hospital reports at leisure some considerable time before

giving evidence whereas the other medical witnesses had only

read them in the course of giving their evidence before the

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29. Tribunal. Secondly Dr. Sinclair had had the advantage of interviewing the applicant through an interpreter. There is no suggestion that Dr. Parker and Dr. Cohen were not competent

or credible.

It must be an unusual reason for deciding against depriving important expert evidence of weight that the witnesses had a shorter time to study documents of moderate length than some other expert giving evidence on the same matter. In the general supervision of a case the Court is normally alert to such situations, and if in doubt will

satisfy itself in the presence of the parties that no

- disqualifying situation develops. In this case the experts

concerned were satisfied that they had sufficiently mastered the documents in question and required no further time. Where a Tribunal considers such witnesses might have expressed different views had they had further time, and acts on that basis, the exe.cise is really one of mere guess work and really against the evidence. Where the parties do not know of the disposition of the Court to take such a view a difficult situation has arisen which by the provision of further time might have been avoided. In this case no considerations going to substance are mentioned in the reasons for decision concerning the evidence of the witnesses which cast doubt on its quality or credibility or why their evidence that they did not need further time was not satisfactory. It is not as

though the contents of the documents were not within the

were

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30. knowledge of the witnesses, namely, that there may well have been reasons for the applicant's onset of psycho neurosis not associated with a work situation and that she had exhibited the conduct of a hypochondriac at least as far back as 1972. As a reason for totally ignoring the evidence of Dr. Parker and Dr. Cohen, I think this reason cannot stand. There was much in their evidence quite unaffected by any possible lack

of appreciation of the contents of the documents.

As to the second matter mentioned in para.15 of the reasons for decision it is true that Dr. Sinclair had the opportunity of interviewing the applicant with the help of an interpreter and Dr. Parker and Dr. Cohen did not. At most this matter goes to the weight of the evidence in question and is not a reason for neglecting it entirely. It is true that the applicant spoke through an interpreter at the hearing but this did not mean that she did not have sufficient English to enable the doctors to understand her sufficiently. They asserted expressly, or impliedly, that she did. It does not appear that the Tribunal himself had information which would throw doubt on this. And the fact is that what the doctors understood the applicant to say to them accorded with the evidence she gave at the hearing. It is important also that much of the evidence of Dr. Parker and Dr. Cohen concerned the medical effects objectively and subjectively on persons suffering from psycho neurosis of particular conditions at

work. Neither the time for considering the documents, nor the

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31. absence of an interpreter could make the evidence of Dr. Parker and Dr. Cohen less expert or less credible on that important matter. As suggested by Dr. Cohen the presence of an interpreter is not always an unmixed blessing. And this may well have been illustrated in this case. It is clear that at the first interview between the applicant and Dr. Sinclair the applicant emphasised noise as the real cause of her collapse. He said however, that at his second interview with the applicant he asked her, through the interpreter, about the noise at work and "she paid no attention to the question and

he very much doubted whether noise had anything to do with the

case",

In giving evidence in this appeal Dr. Sinclair said her failure to pay attention to the question persuaded him that noise was not a factor in her condition but that he may have misjudged this. The chance of misunderstanding between the interpreter, interviewer and interviewee is always quite real. In view of all the evidence and her many complaints about noise it would be strange that she would not take notice of a question on the subject if she understood it. At any rate it is apparent that there was some sort of failure in communication of a relevant kind because the Tribunal found that the applicant was worried by noise of a stressful nature.

In my opinion the evidence of Dr. Parker and Dr. Cohen

should have been given due weight according to its merits on

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32. all issues. Their evidence proceeded on the basis that they were able to satisfy themselves of the applicant's subjective interpretation of the conditions in the work place. That was a Matter to be considered by reference to their credibility and competence rather than by the external fact that they operated without an interpreter. If that evidence had been adequately considered, along with the implications from the evidence of Dr. Sinclair and in the light of the evidence of the lay witnesses accepted by the Tribunal, and of his finding

concerning noise, it is my opinion that, on a balance of

probabilities the applicant's case was proved.

But it was unsatisfactory, when the time for decision came, that the medical evidence on each side had been given with reference to a situation at variance with that found actually to have existed. It was a situation in which errors

might have lurked below the surface.

Having regard to the foregoing the failure to consider the evidence of Dr. Parker and Dr. Cohen according to the merits thereof with respect to the material issues, there was in my opinion a failure to consider the applicant's case and thereby an error of law capable of correction on this appeal. Adequate consideration of all the relevant evidence on the case made for a party is a fundamental requirement of the judicial process and where it is not afforded there is a

serious error of law. Accordingly in these circumstances

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33. this Court is required to make such orders, in accordance with s.95 of the Act, as it thinks fit. Once it appears that there has been an error of law of the nature of that which I consider to have occurred in this case, the Court may draw such inferences, not inconsistent with the findings validly made by the Tribunal, which it considers proper on the evidence given in the proceedings out of which the appeal arose and the further evidence if any. See s.27 of the

Federal Court of Australia Act 1976. In this case the

inferences, if any, to be drawn relate particularly to the effect upon the applicant's neurosis of the objective factor of noise and of the subjective interpretation of the applicant of that factor and of all other factors, particularly the

disciplinaty situation obtaining in the workshop.

It would not have been an unreasonable course and certainly one appropriate for a specialist Tribunal to have referred the facts found and established to the witnesses concerned. This was the course that seemed appropriate for adoption by this Court. I discussed the matter with counsel. No objection was raised. As a result the medical witnesses re-assembled on 23 February 1981. It was explained to Dr. Sinclair that the findings had been made that the noise level was quite high and was described by the Tribunal as stressful

and that the discipline was strict, although not unduly so.

Speaking on this basis of fact Dr. Sinclair said that in his

view strict discipline could have been helpful to the

'e?

34.

applicant in her neurotic state, but that as to the effect of noise it was the patient's subjective reaction to the noise

that was important. On the more general aspect of the effect

of noise, a relevant passage was,

Q. "If ... you had a woman with a neurosis who said, noise worries me, and you wanted to make it worse, the best place you could put her would be in a noisy environment I suppose?

That would be one of the facts, yes."

A. "That would be one of the facts, yes."

The following passage seems to sum up Dr. Sinclair's

assessment in the light of the Tribunal's findings,

"But if you find that she was talking about noise a great deal in the early stages after her collapse, and if you find that the noise was so high as to be described by Mr. Ballard as stressful - and he was not talking about vulnerable personalities, he was obviously talking about ordinary personalities. It is very difficult, is it not, to exclude noise certainly as a possible cause of her trouble. Only one of the causes, I do not mean all of them of course, because the basic cause is her --- Neurosis.

Yes. But would it not be very hard to exclude noise as at least a possible cause? And if it appears that she put up with the noise for a few years, and put up with everything for a few years, nothing changes, the noise gets on her nerves at the end, over the last six months or so, you would not exclude that as a

possible true scenario? --- No, it could be so."

The doctor also said that he might have been in error

interpreting from his interview through the interpreter that

"the noise was not uppermost in her mind".

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35.

Dr. Cohen being apprised of the Tribunal's findings said that he thought the conditions would have aggravated her neurotic symptoms and that there was not much doubt about it. He confirmed that the essential question was how the patient subjectively assessed the situation in which she operated. He added that whether or-—not her description to him of that situation was accurate, he was satisfied that in so describing that situation she was, "being quite honest and frank about

what she complained of to me as she perceived the situation."

Dr. Parker being apprised of the Tribunal's findings said that like Dr. Sinclair and Dr. Cohen he did not feel that the noise was the important factor in the hierarchy of symptoms, but certainly given her state of tension provoked by her work situation it would be an important factor. He also said that when the applicant first started talking to him she mentioned noise, and that he would not have taken up that case but she broke down and cried when talking about how she was harassed in her work. He added that he regarded her assessment of the pressure at work as a genuine one. He said in conclusion:-

",..0n the basis of the findings of the Tribunal,

the fact that the noise had not changed and she had been able to tolerate it before Telecom took over shows that it needed something else in addition to the noise, but certainly the noise itself was an important factor in my opinion of her eventual collapse."

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36.

Having regard to my views about the proper inferences to be drawn from the evidence as it stood at the end of the hearing before the Tribunal, on a balance of probabilities and of the thrust of the evidence given to this Court, I am satisfied that the applicant suffered aggravation and acceleration of the disease of psycho neurosis to which the employment of the employee by the respondent was a contributing factor and that as from 26 March 1976 the applicant was totally incapacitated for work and that such incapacity resulted from such aggravation and acceleration of the disease. Whether this class of incapacity or any incapacity will be permanent is

another matter.

Accordingly the appeal is allowed, the decision of the Compensation Tribunal set aside and it is ordered that the applicant's claim for compensation on the basis of total incapacity as at 26 March 1976 be allowed and that compensation be paid to her by the respondent in the amount appropriate to such incapacity according to the Act and the regulations made thereunder. Pursuant to s.95 of the Act I give judgment accordingly and remit the case to the Delegate of the Commissioner for redetermination in the sense that he determine the payments to be made according to this judgment and I order that the applicant have her costs of this appeal

and the proceedings before the Tribunal.

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