Dorrington, Re [1994] QSC 106

) State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DERRINGTON J No 14 of 1991 ~ i~Vi0E0 C()P:ES i~~~UED State R~portinlJ Bureau !.Data d-o 1 if- 1 c:l u:~ IN THE MATTER OF THE STATE SUPERANNUATION ACT 1972-1979 IN THE MATTER OF AN APPLICATION BY ROSALIND MAUDE DORRINGTON BRISBANE .. DATE 25/03/94 JUDGMENT 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 13 -- 240394 HIS HONOUR: The appellant appeals against the decision of the Superannuation Board that the extent of her incapacity for work was not such as to render her incapable of being employed by the Department of Health. This decision is, in substance, contrary itself in duties of to the prior finding of the Department of Health January 1991 that she was unfit to discharge her office by reason of her health and that she be retired on those grounds. The Board was, of course, not bound by the Department's decision which is made clear in Townsend 10 v. State Service Superannuation Board [1990] 2 QdR 589. 20 The appellant's medical and psychological condition is complex and to some degree this has led to the difficulty in this matter because each individual item has been approached somewhat independently of the other rather than globally. 30 She suffered an injury to her neck in about March 1980, a further injury to her lower back in May of the same year, and a further injury to her lower back in another part in May 1987. The first injury caused her to lose only about one week's work at the time but she is left with some permanent residual arthritic neck pain. The second injury put her on workers' compensation until July 1983 when she received a lump sum settlement. She claims that her employer then attempted to · retire her on the grounds of ill health but she insisted on returning to work and was eventually redeployed in clerical work in 1984, some four years after the injury. She performed 2 JUDGMENT 40 50 60 -- 2 of 13 -- ~-----~~~------------------ 240394 this work for about two and a half years until her third accident. She was then off work for a further two and a half years until in 1 989 she was required by the Department to work in a job 10 specially created for her. She did not wish to take this up but was threatened with dismissal if she failed to do so. However, after six days she left work with a migraine headache and did not ever return. During those six days she claims to have suffered a variety of pains in the performance of her 20 work but that was not the immediate cause of her final departure. Because she did not return, she was granted retirement on the grounds of ill health, as referred to above, and has not worked since. She is a very difficult person with obvious problems. It is common ground that she has no illness but has psychological problems from a personality psychiatric variety of causes. She also has an obsessional personality. Together 30 these features could reasonably be expected to exacerbate her 40 perception of the moderate back and neck pain which is generated by usage and, in addition, to cause independent at ti tudinal responses which, added to her problem of pain, could contribute to her unemployability. In addition to this, she is obviously very aware of what is beneficial or other~ise to her case and has little difficulty in framing her evidence in a way that she perceives to produce a favourable result. In fairness it should be said that this 3 JUDGMENT 50 60 -- 3 of 13 -- 240394 appeared to be substantially associated with an abnormal state of mind, probably produced by her psychological problems. She was very assertive and manifested her obsessive nature- in giving her evidence. When matters in her account which should have been embarrassing were brought to her attention, though she obviously recognised the point, it caused her little deflection from her line. In other words, though there was even some dishonesty and cunning in her answers, it was associated with an impression of psychological abnormality which was manifest under scrutiny. Apart from her anger and frustration at the effect of her disability upon her obsessional nature, she also bears 10 20 excessive anger and resentment towards her employer, the government in general, and other instrumentalities. It is not 30 suggested for one moment that this attitude is justified. It is impossible to know whether there is any justification at all for, bearing in mind her difficult personality, it could well be that there was none. Her anger towards these various bodies is said by her to be derived from her treatment by them 40 when she was formerly disabled and attempting to return to work, but it is possible that the reason why the authorities controlling her employment at the time were unwilling to accept her back was partly because of her general antecedent disposition. Their requirement in 1989 that she return to work was doomed to failure. By that time she had again been out of the workforce for a lengthy period and she had moved to the Gold 4 JUDGMENT 50 60 -- 4 of 13 -- 240394 Coast, so that the proffered employment in Brisbane required her to travel between those two places every day. In performing this work she had a series of complaints that it caused her difficulty with pain and, despite the obvious efforts of the Department to remedy these problems as the complaints arose, including one arrangement to provide her with a special chair to support her back, she was not satisfied with anything. It was in this context that she left that work claiming to have a migraine headache, and did not return. This has been referred to above. While she might genuinely have suffered such a headache, that is not suggested to have been the cause of any permanent unemployability, but this must be read in the background of her complaints of exacerbated pain in the performance of her work in the. days 10 20 prior to that departure. 30 In summary, there was probably a mixture of reasons for her voluntary termination of her work. No doubt, the distance which she had to travel was very unsatisfactory to her, though this would not entitle her to payment from the fund for ill 40 health. However, there was also probably some real pain and discomfort from the organic disruption to her back, a pain which was heightened in her perception by reason of her personality and the psychological factors operating upon it. Those factors probably also operated further to defeat her so will to work because of her anger, resentment and related inclinations towards the Department. It is probably correct, as the respondent contends, that she 60 5 JUDGMENT -- 5 of 13 -- 240394 did not give resumption of the job a fair trial. No work after a long absence, doubt, upon her she would have experienced some muscular and other stress before her muscles were toned up and her body adjusted to the new regime. Her complaint as to the height of the computer keyboard could easily have been met by some adjustments if a little time had been allowed, and her complaint concerning her chair was in the course of being met. 10 However, the respondent's contention in this respect is not 20 the complete answer. In the circumstances in which she was then placed relating to her accommodation, the location of the work amounted to a serious difficulty. In addition, and more importantly, the difficulties which she encountered because advance arrangements were not made to avoid her physical 30 problems caused her psychological response to flare up unnecessarily. The nature of the work with which she was supplied was not entirely satisfactory to meet the unusual and peculiar requirements of this particular .woman. While the matters complained of were trivial and perhaps she would never 40 have been satisfied, that is not to.the point if her combined problems produce a genuine and involuntary inability to work, in the result. The mixed causes referred to were probably all operative in their own way and their respective effects not severable in the total picture. are Apart from her wish to remain away from work for ulterior reasons, her ingrained attitude responsive to her psychological stresses is just as relevant as her back pains 6 JUDGMENT 50 60 -- 6 of 13 -- ~~-----·-------· --~- -·--- ·-~------- -~------·---~------------ --- ----- 240394 are to the question of her employability. She was probably not consciously responsible for them. They were, in part, features of her innate personality and were genuine, if inappropriate, responses to the stresses, both external and internal, which she encountered. They produced a response 10 which was largely outside her control and, it might be added, led to a result which may well have been outside her general wish. Section 41 of the Act, which is the provision central to the 20 question before this Court, reads as follows: "Entitlement to receive incapacity pension. (1) Before a person- (a) who is retired or permitted to retire as an officer 30 by reason of incapacity; or (b) who has been absent from duty with leave of without salary by reason of incapacity continuous period of 14 days (whether or not days) , absence for a working is entitled to payment of an incapacity pension or to payment from the Fund of a sum on account of incapacity. He shall satisfy the Board that the incapacity is such as 40 to render him unfit to discharge or incapable of discharging the duties of his office efficiently and, in the case referred to in paragraph (a), that the incapacity is likely to be permanent." In s 4 of the Act, "incapacity" is defined to mean "any mental or body infirmity by reason whereof an officer is unfit to so discharge or incapable of discharging the duties of his office efficiently". A reaction of a psychological nature, even a perverse one, if 60 7 JUDGMENT -- 7 of 13 -- ~--------------------~·----- ------------------- 240394 genuine must come within this description as a mental infirmity if it produces an unfitness or incapacity in the person to discharge the duties of the office. The description ''mental infirmity" is very broad by its 10 nature and in the context of this Act and taking into account the obvious purpose of the Act, it would be wrong to exclude genuine psychological responses of a serious nature which, in fact, caused incapacity of the kind described. A personality disorder though not a psychiatric illness is still a product 20 of the mind, and in this context, if it is so severe as to disable the person permanently from working, it is surely an infirmity. See the discussion of this subject by Thomas J in Re Boothroyd [1986] 1 QdR 167 at 174, where he said: 30 "The operative word 'infirmity' is wider than the familiar words 'disease' and 'injury' . I have referred to the Shorter Oxford English Dictionary and to several medical dictionaries but I do not think it necessary to quote them in order to support that proposition. It is a word of common usage and wide connotation. Neither the word itself nor the context of the Act require it to be a permanent infirmity. Indeed, s 41 creates its own problems by providing the same test to determine 40 entitlement for a pension on retirement as for a potentially short term incapacity pension. In re Buck (1895) 65 LJ Ch 881, Kekewich J construed the word 'infirmity' in the context of the rules of a friendly society referring to 'other infirmity which may in the opinion of the commit tee render him an object deserving the assistance of the society ' His Lordship commented 'as regards infirmity, it means there must be some permanent disease accident or something of that kind, to render him an object deserving the assistance of so the society.' This does not constrain me to introduce a concept of permanence, although it must obviously refer to something durable and not transient. The requirement that the infirmity be such as to make the applicant unfit to discharge or incapable of discharging the duties of his office efficiently clearly suggests something more than a transient condition." 8 JUDGMENT 60 -- 8 of 13 -- ----·-·····----····· -·--····---------·· 240394 For example, it would be absurd if a claimant who had developed a purely psychological response which clearly severely disabled him from discharging his duties were to be excluded from the benefit of this part of the Act. There is no reason why the expression should be read in any technical or restrictive way, when the obvious purpose of the provision is to provide for particular benefits in the event 10 of an incapacity caused by a genuine disabling condition of this nature. This is not the case where an employee has 20 merely an unreasonably angry response of a temporary nature which is controllable and does not involve an ingrained and involuntary psychological response of a serious nature. In the case of this woman, this degree of hostility and antipathy towards the Department is clearly of a genuine origin and of a 30 serious and durable nature. It is of such a degree as to be capable of being described as permanent and disabling, as distinct from transient and controllable, so far as it relates to employment in her former office, that is, in the employ of her former employer towards whom her ill-will is so 40 intractable. Both at the relevant time and at present her condition was and is such that she requires and has required some consideration in the work available to her in order to accommodate her 50 physical disabilities, such as they are. But even if this were provided, her attitudinal problem, which is the most serious feature, has prevented and is preventing her from being employed in any practical sense in her former office. 60 9 JUDGMENT -- 9 of 13 -- 240394 This is conceded by the respondent's experts. It concludes the matter in her favour, for the section speaks only of employability in her office, and not of general unemployability. However, with this combination of features, it is unlikely that she is even employable in the private sector at the present time, unless she could find a sympathetic employer, which is unlikely having regard to her personality disorder. It is probable that even in such employment, she would be influenced by fairly significant psychological stresses that moderates against her motivation for work, and this would help to destroy her chances in this direction. 10 20 The position of course is worse in her employment with the Department because of the depth and degree of her hostility 30 towards it. All of this would magnify her perception of the pain upon which she focuses as justification for her incapacity and her complaints, even though she may be half aware at times that in some respects she is deliberately exaggerating. It should be repeated that even this deliberate 40 conduct is probably, in part, due to her psychological response to the situation. All of this indicates that she does have an incapacity within the meaning of the Act. This does not mean that it is necessarily permanent if it were possible to provide her with counselling and rehabilitation suitable to this antagonistic and perverse attitude and if that could reduce the psychological factor to the state where, with the moderate 1 0 JUDGMENT 50 60 -- 10 of 13 -- 240394 degree of her chronic pain, would not be sufficient to incapacitate her. However, that is not the answer here. The question is whether upon her retirement she was permanently disabled from performing her work with the Department. Taking into account the entrenched nature and the degree of her hostility towards it, and its place in the constellation of factors with which it was inextricably combined with some mutual stimulation, it 10 is probable that she is permanently disabled in that respect. 20 It is perhaps desirable to review the evidence of some of the witnesses briefly. Doctors Mulholland, Klug and Olsen were fair and objective in their evidence, though this does not necessarily mean that they were always correct in that respect 30 for there was some difference of opinion. So too was Dr Wilson, though he frankly conceded that he felt obliged to accept that the appellant•s complaints of pain were genuine because of the existence of the physical features 40 which could account for their authenticity. On this issue, he did not have the material upon which to make effective judgment for he was unaware of the intrusion of her psychological stimuli and ulterior motives in that direction; and while his evidence was obviously genuine it was flawed in so its result. Dr Watson died before the hearing. His evidence is contained in his reports but it is apparent that his difficulty was much 60 11 JUDGMENT -- 11 of 13 -- 240394 the same as that of Dr Wilson. Dr Toft' s evidence also was valuable so far as it went. It dealt with the orthopaedic matters and was, in substance, very little different from those of the other orthopaedic specialists in relevant matters. If anything, perhaps his caution in respect of the complaints of the appellant were the most justified of all those specialists in that field. 10 The same might be said of Mrs Coles, who also tended to take 20 the appellant's side without a reasonably objective or critical consideration of factors which were not beneficial to her case. However, that lady was not provided fully with the adverse matters in the first instance and, having committed herself to a point of view, she found difficulty in abandoning 30 it. The result of the above findings if that it is declared that pursuant to s 41, the lady is entitled to a finding that, having been made to retire as an officer by reason of 40 incapacity and because the incapacity is such as to render her unfit or to discharge or incapable of discharging the duties of her office efficiently and because the incapacity that was the basis of her retirement is likely to be permanent, she is entitled to payment of an incapacity pension from the fund or so to payment from the fund of a sum on account of that incapacity. There is liberty to apply. 60 1 2 JUDGMENT -- 12 of 13 -- --~· ··-------- ·-----~-- ·------~-- ·---· -~···----·--- --·-·--····---·-·---~ 240394 The respondent is to pay the appellant's costs including reserved costs, if any, to be taxed. 1 3 JUDGMENT 10 20 30 40 50 60 -- 13 of 13 --