ACCIDENT COMPENSATION – Workplace injury – Claim for compensation pursuant to Accident Compensation Act 1985 – Post-traumatic stress disorder, depression and associated injuries allegedly caused by sexual assaults, associated harassment and abuse – Whether applicant suffered injury arising out of or in the course of employment – Whether judge erred in failing to conclude that applicant suffered injury arising out of or in the course of employment – Credit and reliability of applicant’s evidence heavily contested at trial – Judge’s credit findings adverse to applicant – Proposed appeal having no real prospect of success – Leave to appeal refused.
EVIDENCE – Undesirability of witness statements – Credit – Lies – Use to be made of lies told by a party.
In August 2007, AB commenced employment with XYZ Pty Ltd (‘XYZ’) in a contract role to assist with a merger in which XYZ was involved. AB’s employment with XYZ came about as a result of an acceptance by her of an offer of employment by XYZ’s managing director, CD, with whom she had previously been involved in a casual sexual relationship for some months in 2004/2005. On 19 March 2008, XYZ’s employment was terminated in circumstances subsequently described by AB as ‘the termination incident’.
In August 2012, AB made a claim against XYZ under the Accident Compensation Act 1985 (‘the AC Act’) for compensation in respect of ‘post-traumatic stress disorder, depression and associated injuries’ which she alleged had been caused by ‘sexual assault and associated harassment and abuse’. In an attachment to her claim form, AB alleged that the conduct (described as various occasions of sexual assault and ongoing harassment and abuse) giving rise to her injury occurred during the period 28 December 2007 to 19 March 2008, and that CD was the perpetrator of this conduct.
AB’s claim was rejected by XYZ’s claims agent and, in May 2013, AB commenced a proceeding in the Magistrates’ Court seeking declarations that she was entitled to weekly payments of compensation and medical and like expenses in accordance with the AC Act. In her statement of claim, AB alleged that she sustained ‘psychological/psychiatric injury including but not limited to stress and anxiety’, and that these injuries were sustained ‘during the period from about 28 December 2007 to about 19 March 2008 … in circumstances where she was sexually assaulted and subjected to abuse, bullying and harassment in the workplace by [CD]’.
In October 2018, after a hearing…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
AB v XYZ Pty Ltd [2024] VSCA 31
Case
[2024] VSCA 31
Decision Date
CaseChat Overview and Summary
The case before the court was an appeal by AB against a decision of the Workers Compensation Noliation Board of Queensland, which had rejected AB's claim for compensation under the Accident Compensation Act 1985. AB alleged that she had suffered post-traumatic stress disorder, depression, and associated injuries due to sexual assaults, harassment, and abuse that she claimed occurred during her employment with XYZ Pty Ltd. AB sought to appeal the decision of the Board, which had rejected her claim on the basis of a lack of credible evidence. The primary legal issue before the court was whether AB's injuries arose out of or in the course of her employment with XYZ Pty Ltd, as required by section 82(1) of the Accident Compensation Act 1985. The court considered the credit and reliability of AB's evidence, which had been heavily contested at trial, and the judge's adverse credit findings against AB. The court found that the appeal had no real prospect of success, and therefore, leave to appeal was refused. The court also noted the undesirability of relying on witness statements, especially when the credit of the witness is in question, and referred to section 140(2) of the Evidence Act 2008.
The court held that AB's injuries did not arise out of or in the course of her employment with XYZ Pty Ltd, as the evidence did not establish a causal link between the alleged incidents and her injuries. The court found that the judge's credit findings were reasonable and based on the evidence presented at trial. The court also held that the appeal had no real prospect of success, as AB's evidence was not credible, and the Board's decision was supported by the evidence. The court noted that it is not appropriate to rely on witness statements that are untrustworthy, especially when the witness's credibility is in question. The court further held that the use of lies told by a party should be limited to the extent that it assists in assessing the credit of the party. Therefore, the appeal was dismissed, and AB's claim for compensation was rejected.