Riggs, Naomi --- "Psychiatric injuries and the defence of 'reasonable administrative action'" [2019] PrecedentAULA 8; (2019) 150 Precedent 30

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PSYCHIATRIC INJURIES AND THE DEFENCE OF ‘REASONABLE ADMINISTRATIVE ACTION’

By Naomi Riggs

The Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) states that Comcare is liable to pay compensation in respect of an injury.^[1] The definition of a compensable psychiatric injury under the SRC Act is found in s5A(1). It covers any disease suffered by an employee or any mental injury arising out of or in the course of employment, including any aggravation of that injury which arose out of or in the course of employment.

Compensable psychiatric injury ‘does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment’.^[2]

The focus of this article is on the exclusionary limb of s5A(1) and the current interpretation of ‘as a result of’ in s5A(1).

When a claim for psychiatric injury is made, it is important first to consider whether the psychiatric condition is properly characterised as an ‘injury’ or a ‘disease’. This is because very different causal tests apply depending on whether the worker’s psychiatric condition is considered a ‘disease’ or an ‘injury’.

If the condition is a disease, employment must have ‘significantly’ contributed to its occurrence.^[3] If the condition is an injury, there is no requirement for a ‘significant’ causal nexus. Rather, the injury must be shown to have arisen out of or in the course of employment.^[4] Significant degree is defined in s5B(3) to mean ‘substantially more than material’. As will be discussed later, the causal relationship required to attract liability is the same as that required to exclude it.

Disease is defined in s5B(1) to include, among other things, any ailment. An ‘ailment’ is defined as meaning ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.^[5] Generally, the courts have classified psychiatric injuries as a disease under s5B(1).^[6] It is also Comcare’s position that all psychiatric conditions are to be classified as a disease.^[7]

However, it is not correct to classify all psychiatric injuries as a disease. In Prain v Comcare,^[8] a 2017 decision of the Full Court of the Federal Court (Kenny, Tracey and Bromberg JJ), the Court discussed the distinction between disease and injury. The Court held that ‘disease’ and ‘injury’ are not mutually exclusive.^[9] The Court considered that generally, a psychological injury will have arisen suddenly and a psychological disease will naturally have progressed. For the purposes of this article, it is presumed that the causal nexus required for Comcare to accept liability for a psychiatric condition is that it ‘significantly’ relates to employment.

The exclusionary clause in s5A will operate to avoid liability when there has been reasonable administrative action and the psychiatric condition is a result of that administrative action. Administrative action is stated to include:

‘

(a) a reasonable appraisal of the employee’s performance;

(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;

(c) a reasonable suspension action in respect of the employee’s employment;

(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;

(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

(f) anything reasonably done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.’^[10]

Whether or not the administrative action has been reasonable is essentially a finding dependent on the particular facts of each case.

What has been contentious is the relationship that is required between the administrative action and the psychiatric condition, and what is meant by the words ‘as a result of’.

COMCARE v MARTIN

Arguably, the case of Comcare v Martin [2016] HCA 43 has now resolved this contention.

Ms Martin was employed by the Australian Broadcasting Commission. She made a Comcare claim for psychiatric injury. She alleged that the cause of her injury was that over the course of her employment she was bullied and harassed by her direct supervisor. She made formal complaints of that bullying/harassment which were investigated and not substantiated. Subsequently she obtained an acting position which took her away from the supervision of the person that she said was bullying/harassing her. When that acting role came to an end she participated in a recruitment process to obtain the role permanently. She was unsuccessful. Ms Martin alleged that upon learning she was unsuccessful in obtaining the role her psychiatric condition significantly worsened because she realised she would be returning to the supervision of the person whom she alleged had bullied and harassed her.

Comcare denied the claim on the basis that they said that her psychiatric condition was a result of the decision not to promote her.

At first instance it was held that Ms Martin had sustained a psychiatric injury as a result of the events occurring over the entire period of her employment. It was also held that the administrative action relied on by Comcare, namely the interview process and the decision not to promote Ms Martin, was not administrative action taken in a reasonable manner. The crux of the unreasonableness was apparently that the ‘bully’ was a primary decision-maker in the decision not to promote Ms Martin. Further, the Administrative Appeals Tribunal (the Tribunal) said that the consequence of the decision not to promote Ms Martin, namely a deterioration of her psychiatric condition, was a direct and foreseeable consequence of the communication of the non-promotion.

There was limited discussion by the Tribunal as to the legal relationship between its findings that:

(1) the whole of the employment caused the condition; and

(2) the administrative action, which related only to the promotion, had not been undertaken in a reasonable manner.

This resulted in the matter being appealed and the case ultimately being heard by the High Court of Australia (HCA) three years later.

The HCA (French CJ, Bell, Gageler, Keane and Nettle JJ) made it clear that it was bound by the previous findings of fact of the Tribunal. The only issue for it to consider was ‘whether the Tribunal was correct in law to conclude that the deterioration of Ms Martin’s mental condition triggered by her contemplation of a perceived consequence of the decision was a disease which she suffered as a result of that decision within the meaning of s5A(1)’.^[11]

The HCA applied a purposive approach and said that the words ‘as a result of’ must be interpreted in the statutory context in which they appear. It is not a stand-alone provision to which one simply applies a ‘common sense’ approach.^[12]

The causal relationship required to be established is informed by s5B(1), which relevantly states that the disease must be significantly related to employment. In other words, what the Court said was that in order for the exclusionary provision of s5A(1) to come into effect, the administrative action must be causative of that whole injury which is found to have significantly resulted from employment.

The HCA expressed it in this way:

‘when the exclusionary phrase is so read, it becomes apparent that an employee has suffered a disease “as a result of” administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee’s employment. What is necessary is that the taking of the administrative action is an event without which the employee’s ailment or aggravation would not have been a disease; it would not have been contributed to, to a significant degree, by the employee’s employment.’

There is one sentence in the above paragraph which is repeatedly misconstrued by Comcare agents. That sentence is that ‘administrative action need not be the sole cause’. All that the HCA was saying is that there may be more than one ‘significant’ contributing cause to a person’s psychiatric injury. A common scenario is where a person has a pre-existing psychiatric injury managed with medication but then events occur at work which ‘significantly’ exacerbate that condition and cause them an incapacity for employment. In that scenario, factors outside of work may well have ‘significantly’ contributed to the psychiatric condition but that is not to deny that employment has also ‘significantly’ contributed to the condition.

All that this ‘misapplied’ sentence means is that the administrative action, if it is to operate to exclude liability, must still cover the whole of the employment action said to have significantly contributed to a person’s psychiatric condition.

Significantly, the HCA has departed from the position in Hart v Comcare^[13] which held that the contribution of any administrative action, if reasonable administrative action, was enough to exclude liability under s5A(1).

In concluding and affirming the decision of the Tribunal at first instance, the HCA restated the test of causation in a ‘but for’ manner. It said:

‘what is required to meet the causal connection connoted by the exclusionary phrase in s5A(1) in its application to a disease within s5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee’s employment.’

The ‘but for’ analogy is consistent with the HCA’s previous statement of the test required at paragraph 43 of its judgment and the two must be read and understood together. The HCA is clearly stating that the causal relationship must always have the nexus to what has factually ‘significantly’ caused the injury. The exclusionary provision will not operate merely because it can be shown that but for the administrative action, the psychiatric condition would not have resulted. This, however, was apparently not properly understood and the issue was revisited by the Full Court of the Federal Court in 2017.

LIM v COMCARE

Dr Lim was employed by the Australian Communications and Media Authority. In 2011 she made a claim for a psychiatric condition essentially suffered as a result of her dealings with her supervisor. Comcare accepted that Dr Lim had suffered a disease in the course of her employment but excluded liability on the basis that it said her psychiatric condition was a result of reasonable administrative action. The alleged administrative actions were:

(1) discussions about a voluntary redundancy;

(2) a performance appraisal; and

(3) the declaration of her employment status as excess.

The trial judge upheld Comcare’s decision, on the basis that one of the causes of Dr Lim’s psychiatric condition was the performance appraisal which he considered had been conducted in a reasonable manner. Relevantly, the trial judge held that ‘if only one cause of a condition satisfies the exclusion in s5A(1), the exclusion applies even if the condition had many separate causes’. The trial judge, having determined that the exclusion applied, did not consider the other causes of Dr Lim’s psychiatric condition.

Dr Lim, a self-represented litigant, appealed, and the matter was ultimately determined by the Full Bench of the Federal Court in 2017. The relevant question on appeal was whether, at first instance, the trial judge had misconstrued what ‘as a result of’ meant in s5A(1).

Applying Comcare v Martin, the Full Bench (Kenny, Tracey and Bromberg JJ) upheld Dr Lim’s appeal and held that the trial judge had misapplied the exclusionary provision in s5A(1). It stated:

‘whilst it may be necessary for the administrative action to be a cause, that of itself, is not sufficient for the requisite “causal connection” to be met^[14]... In Dr Lim’s case, the Tribunal found simply that the performance appraisal contributed to the development of Dr Lim’s psychological condition. It is clear from the Tribunal’s reasons that the Tribunal’s statement that the performance appraisal was “a cause” of Dr Lim’s ailment and that Dr Lim suffered the adjustment disorder “as a result of” the performance appraisal are supported by that finding and no other finding. The Tribunal did not address the question whether or not Dr Lim would have suffered the adjustment disorder if the performance appraisal on 31 January 2011 had not been made. The failure to do so was an error of law.’^[15]

CONCLUSION

The decisions in Comcare v Martin and Lim v Comcare reflect the reality that many psychiatric injuries are caused by a myriad of complex factors. The fact alone that one of those factors may have been administrative action is not enough to exclude Comcare’s liability for the psychiatric condition. Factually it is quite common for an employee’s mental health to deteriorate over a period of time and the catalyst for the incapacity to be reasonable administrative action. That administrative action becomes the catalyst only because of the significant prior history of psychiatric injury. Hopefully now, if that scenario presents, Comcare will not exclude liability for the psychiatric condition which, characterised properly, results from employment.

Naomi Riggs is an Accredited Specialist in personal injury law and a Principal lawyer at Rubicon Compensation Lawyers. Rubicon Compensation Lawyers is a Victorian firm which practises in the areas of personal injury and employment law and exclusively acts for plaintiffs. Offices are located in Melbourne, Frankston and Collingwood. PHONE [phone] EMAIL [e-mail].

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^[1] Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), s14.

^[2] This definition of injury commenced on 13 April 2007 pursuant to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (No 54/2007) (SRC Amendment Act).

^[3] SRC Act, s5B.01. This section commenced on 13 April 2007 pursuant to the SRC Amendment Act. Previously, all that was required to show a causal relationship was that the injury was ‘materially’ contributed to by employment.

^[4] SRC Act, s5A(1).

^[5] Ibid, s4(1).

^[6] See Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468.

^[7] Australian Government, Comcare, Psychological injury claims – with a date of injury on or after 13 April 2007 (last updated Nov 2015) <https://www.comcare.gov.au/claims_and_benefits/case_managers/pychological_injury_claims_-_with_a_date_of_injury_on_or_after_13_april_2007>.

^[8] [2017] FCAFC 143.

^[9] At 72.

^[10] SRC Act, s5A(2).

^[11] Comcare v Martin [2016] HCA 43, 41.

^[12] Ibid, 42.

^[13] [2005] FCAFC 16; (2005) 145 FCR 29.

^[14] Lim v Comcare [2017] FCAFC 64, 37.

^[15] Ibid, 42.