10 October 2019 - Comcare liable for psychological injuries sustained by AFP officer in PNG

Angela Sdrinis Legal has been pursuing a claim for compensation for former Australian Police Officer (AFP) Lizzie Wiggins since 2014.

The claim was denied by Comcare and fought in the Administrative Appeals Tribunal (AAT) for 3 years. Ms Wiggins was successful in the AAT (http://classic.austlii.edu.au/au/cases/cth/AATA/2017/785.html) but Comcare appealed to the Federal Court.

The Honourable Justice Kenny handed down her decision on 6 September 2019 (http://classic.austlii.edu.au/au/cases/cth/FCA/2019/1465.html). Comcare argued that the Tribunal had erred in its decision by failing to consider medical reports and related submissions by Comcare in addressing the causation issues in Ms Wiggins’ condition and that the Tribunal had failed to provide adequate reasons for its decision.

In this connection, Ms Wiggins had been experiencing stress in her deployment with the AFP to PNG and had consulted a doctor prior to a meeting with her immediate supervisor which resulted in Ms Wiggins going off work and never returning after she developed a significant psychological injury.

The Federal Court followed Comcare v Martin [2016] HCA 43 and in particular noted that, “The administrative action need not be the sole cause (of the psychological injury). There may be multiple causes, some of which may 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 that 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….”

The Federal Court also referred to the Tribunal’s reasons for finding that the conduct of Ms Wiggin’s employer was not taken in a “reasonable manner”. These reasons included that Ms Wiggins was not given any forewarning by her superior officer of his intention to discuss the particular issue which he addressed in the meeting, Ms Wiggins was not asked her version of events during the meeting, she was not invited to have a support person present and she was not provided with contemporaneous notes of the meeting and given a chance to comment on these.

Justice Kenny went on to say, “It is tolerably clear that the key reason for the Tribunal’s conclusion that the administrative action (taken in the meeting) was not taken in a reasonable manner was its finding regarding Mr Wither’s (Ms Wiggins’ superior officer) aggressive and intimidating conduct on that occasion.” This was confirmed in the Tribunal’s statement of reasons that, “… even if the meeting was intended to be a counselling session where prior notice and a the presence of a support person were not necessary, the intimidating behaviour and demeanour exhibited towards Ms Wiggins would be characterised as conduct that was not taken in a reasonable manner.”

All of Comcare’s appeal points were dismissed with an order that Comcare pay Ms Wiggins’ costs.

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