Allport v Wollongong City Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Allport v Wollongong City Council [2022] NSWPIC 87
APPLICANT:	Suzana Allport
RESPONDENT:	Wollongong City Council
MEMBER:	John Isaksen
DATE OF DECISION:	7 February 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments psychological injury; whether worker sustained an injury in the course of her employment; whether expert opinions were provided in a fair climate; reference to Paric v John Holland (Constructions) P/L and Craddock v GH Varley P/L; in the alternative, defences pursuant to section 11A of the Workers Compensation Act 1987 for reasonable action taken in respect of performance appraisal, discipline and retrenchment; Held– expert opinion not provided in fair climate; opinion provided not sufficient to meet test of main contributing factor to the contracting or aggravation of a disease; award for the respondent.
DETERMINATIONS MADE:	An award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Suzana Allport, the applicant in these proceedings, claims that she sustained a psychological injury in the course of her employment as a Personal Assistant with the respondent, Wollongong City Council.
Ms Allport worked for the respondent during a three month probation period from 15 October 2018 until the termination of her employment by the respondent on 10 January 2019. The last day that Ms Allport actually worked for the respondent was 8 January 2019.
Ms Allport completed a claim form on 17 January 2019 wherein she claimed that there were several causes of her psychological injury including unjustified criticisms and accusations about her work and behaviour, micromanagement of her daily work activities, failure by the respondent to provide corrective action to address her concerns, and bullying behaviour by staff.
Ms Allport was paid weekly payments of compensation by the respondent until 24 May 2019. The respondent issued a dispute notice on 30 April 2019 wherein it declined workers compensation liability on the grounds that Ms Allport did not sustain an injury in the course of her employment, her employment was not a substantial contributing factor to her injury, her employment was not the main contributing factor to any disease or aggravation of a disease, and that any psychological injury was wholly or predominantly caused by reasonable action taken with respect to performance appraisal, discipline and/or dismissal.
Ms Allport has obtained intermittent employment since 25 May 2019. She claims weekly payments of compensation from 25 May 2019 on the basis of a partial incapacity for work due to her psychological injury. She also seeks an order for the payment of reasonably necessary medical expenses for treatment for her psychological injury.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether Ms Allport sustained a psychological injury in the course of her employment (section 4 of the Workers Compensation Act 1987 (the 1987 Act));
(b)    whether Ms Allport’s employment was a substantial contributing factor to her injury (section 9A of the 1987 Act) or the main contributing factor to the contracting of a disease or to the aggravation, acceleration, exacerbation or deterioration of a disease in the course of his employment with the respondent (section 4 (b)(i) and (ii) of the 1987 Act);
(c)    whether any psychological injury sustained by Ms Allport was wholly or predominantly caused by reasonable action taken with respect to performance appraisal, discipline and/or dismissal (section 11A of the 1987 Act); and
(d)    the extent of Ms Allport’s incapacity for work as a result of her injury (sections 32A, 33, and 37 of the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

The parties attended a conference and hearing on 9 December 2021 and 25 January 2022.
I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Mr Carney appeared for Ms Allport, instructed by Mr Hopper. Mr Combe appeared for the respondent, instructed by Ms Walsh.
The first day of the hearing was conducted by video and the second day of the hearing was conducted by telephone in accordance with the protocols set by the Commission as a result of the coronavirus pandemic.
The parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) were $1,524.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    surveillance DVD filed by the respondent on 20 October 2021;
(d)    wages Schedule filed by the applicant on 25 November 2021; and
(e)    Application to Admit Late Documents filed by the respondent on 3 December 2021.

Oral evidence

There was a discussion at the conciliation as to whether Mr Combe would cross examine
Ms Allport, but an agreement was reached by the parties that this would not occur on the basis that no issue would be taken with the decision made by the respondent not to cross examine Ms Allport.

FINDINGS AND REASONS

Whether Ms Allport sustained an injury in the course of her employment with the respondent

A summary of the evidence and submissions on this issue

Ms Allport has provided statements dated 28 February 2019 and 2 November 2020.
In her statement dated 28 February 2018, Ms Allport states that prior to her employment with Wollongong City Council in September 2018, she worked for approximately 15 years as a customer service advisor with Centrelink, she worked from July 2011 to February 2014 as a PA with Wollongong City Council, and she worked from February 2014 to September 2018 as a PA with University of Wollongong. Ms Allport states that she never had a previous workers compensation claim with those employers.
Ms Allport states:
“I have never made a previous claim for personal injury” and “Prior to my current psychological injury, I had never been diagnosed as suffering from any type of psychological injury.”
In her statement dated 2 November 2020, Ms Allport adds to the previous details she provided of her history of employment prior to September 2018 by stating that from 2009 to 2011 she worked with NSW Health in administrative positions. She also states that she had two previous workers compensation claims relating to “distress”:
(a) a claim which was lodged by her union in 1995 on behalf of a number of employees, including herself, who had their employment terminated following strike action. Ms Allport states this claim was never finalised and she never received any monetary payment and that she had no treatment from doctors for this claim; and
(b) a claim for workplace discrimination and harassment in 2010 while employed with NSW Health at Port Kembla Hospital. Ms Allport states that she was able to return to work and she received back payment of wages. She states that her treatment consisted of a consultation with EAP, but that she had no treating doctors.
Ms Allport also states in that second statement:
“Prior to the subject injury, I did not suffer from psychological or mental conditions with any significant or ongoing impacts on my ability to complete daily duties.”
Ms Allport states that she underwent a rigorous process in being selected to work for Wollongong City Council in October 2018 which included background checks, contacts with referees, two psychometric tests and a psychological test.
Ms Allport states that there were problems from the commencement of her employment with Wollongong City Council, including only being given minimal training and not being provided with access to all relevant computer programs for seven weeks. She states that she attended probation review meetings on 15 November 2018 and 14 December 2018. She states that the probation review meeting on 14 December 2018 was conducted by [redacted], and that she felt physically ill when she left that meeting. Ms Allport states that “there was many a time that I was left at my desk crying and upset at how the probation review was being handled by [redacted].”
Ms Allport states that on 15 December 2018 she attended her general practitioner,
Dr Rajapaksa, and told Dr Rajapaksa that her work performance was being constantly criticised and that this was making her feel nervous. She states that on 9 January 2019 she obtained a three day medical certificate because she was vomiting and suffering diarrhoea, but did not discuss workers compensation with her doctor. She states that her employment with Wollongong City Council was terminated the following day. Ms Allport states that she saw her doctor again on 11 January 2019.
Certificates of Capacity issued by Dr Rajapaksa from 11 January 2019 onwards have been poorly reproduced to the Commission. However, the diagnosis of the work related injury made by Dr Rajapaksa in those certificates is: “Anxiety related to workplace harassment”. The certificates also declare that there are no pre-existing factors relevant to Ms Allport’s condition or injury.
There is reference in a report from Dr Rajapaksa dated 17 July 2021 of Ms Allport receiving treatment from psychologist, Sue Leicester, but I could not locate any report or clinical notes from Ms Leicester in the large volume of material made available to the Commission in this dispute.
Ms Allport does not state that she has been treated by a psychiatrist following her cessation of work in January 2019 and I could not locate any reference to a treating psychiatrist in the large volume of material made available to the Commission in this dispute.
The expert opinion as to whether Ms Allport sustained a psychological injury while employed by Wollongong City Council, and the cause or causes of that injury, is therefore left to the independent medical experts qualified by each party to this dispute.
Associate Professor Robertson, consultant psychiatrist, has provided a report at the request of Ms Allport’s previous solicitors dated 16 August 2019. A/Prof Robertson records Ms Allport being placed on a performance improvement program, which Ms Allport understood was a vexatious misuse of process in order to create a constructive dismissal.
Associate Professor Robertson also records that [redacted] took an instant dislike to her and was excessively critical of her. He records that Ms Allport was also subject to gratuitous personal remarks about her appearance and ridiculed about some of her apparel.
Associate Professor Robertson concludes that if Ms Allport’s version of events are accepted, then she was subjected to behaviour that would reasonably be categorised as bullying and to which her psychopathological symptoms are a reaction. A/Prof Robertson makes a diagnosis of Ms Allport having an adjustment disorder with anxiety and depressed mood.
In regard to Ms Allport’s past psychiatric history, A/Prof Robertson writes:
“Ms Allport saw a psychiatrist in 2013 after her mother died in difficult circumstances. This appeared to be a normal grief reaction and did not require ongoing treatment nor did it affect any significant psychosocial impairment.”
Associate Professor Robertson does not refer to having provided a previous report in June 2011 to Employers Mutual Limited in regard to Ms Allport making a claim for psychological injury while employed with Port Kembla Hospital.
Dr Ng, consultant psychiatrist, has provided a report at the request of Wollongong City Council dated 21 March 2019.
Dr Ng records that Ms Allport had problems from the beginning of her employment. He records Ms Allport becoming frustrated as there were no business plans, priorities or goals in place. Dr Ng records that when [redacted] took over [redacted], their relationship deteriorated after the first day.
Dr Ng records that Ms Allport was quite adamant that processes in her workplace at the Council were not followed properly and her managers acted unreasonably towards her. He also acknowledges that Ms Allport’s managers dispute these allegations, and that Ms Allport was a poorly performing employee and the probation process was followed properly. Nonetheless he concludes that Ms Allport had suffered an adjustment disorder which was “certainly related to her employment” and: “It is quite clear that Ms Allport’s problems have emerged out of the probationary process and employment was the main contributing factor”.
Dr Ng records details of Ms Allport’s employment prior to October 2018, although there is no reference to her employment at Port Kembla Hospital in 2010. In regard to Ms Allport’s past psychiatric history, Dr Ng records:
“There was no other psychiatric history of note. Ms Allport and her husband were going to see a relationship counsellor together given recent events. She had used same herbal sleeping tablets recently but was no longer taking them.”
Mr Combe for the respondent submits that the opinions on the cause of injury provided by the relevant experts have not been provided in a ‘fair climate’ because Ms Allport has failed to disclose details of her past medical history to those experts. As a consequence, those opinions cannot be relied upon and Ms Allport has failed to discharge the onus of proof in establishing that she has sustained a psychological injury in the course of her employment with the respondent.
There is a report from a medical practice in Unanderra dated 11 August 1995 which states that Ms Allport was suffering “work induced anxiety symptoms”. The report records that “the manager seems to have it in for her”. The report refers to Ms Allport being given time off work due to her stress and being referred to a psychologist.
That report coincides with the commencement of proceedings by Ms Allport in the Compensation Court in July 1995 against Essential Personnel for stress, anxiety and depression, wherein Ms Allport claims weekly payments of compensation from 15 May 1995. Terms of Settlement were filed in those proceedings in March 1996 whereby Ms Allport discontinued her claim. There is a list of payments from that claim which records less than $1,000 in weekly benefits of compensation paid to Ms Allport.
The clinical notes from Dr Rajapaksa record on 29 October 2010: “Anxiety, poor sleep, work place harassment”. Dr Rajapaksa issues a Workcover NSW Medical Certificate on 26 November 2010 certifying Ms Allport unfit for work due to “Anxiety, agitation secondary to work place harassment”.
There are 15 entries made by Dr Rajapaksa between 29 October 2010 and 12 May 2011 for attendances by Ms Allport for anxiety due to harassment at work. There is a record on 28 July 2011 of Ms Allport having anxiety episodes at work. There is a record on 8 September 2011 of Ms Allport still getting anxiety. There is a record on 12 December 2011 of Ms Allport having reduced anxiety and “happy at Council”.
Dr Rajapaksa issues Workcover NSW Medical Certificates during the course of 2011 certifying periods of total and partial incapacity, until 9 November 2011 when she certifies
Ms Allport as being fit for pre-injury duties.
There is a report from Nicole Rowe, consultant psychologist, dated 6 December 2010 wherein Ms Rowe writes that Ms Allport “continues to suffer severe anxiety in relation to her workplace situation”. In a later report dated 30 September 2011, Ms Rowe records that
Ms Allport presents with a flat affect with increasing anxiety over the past two weeks.
There is a report from A/Prof Robertson dated 23 June 2011 which is provided at the request of Employers Mutual Limited. A/Prof Robertson diagnoses Ms Allport as having an adjustment disorder with anxious mood which emerged from interpersonal difficulties that
Ms Allport was having in her employment at Port Kembla Hospital.
There is a list of payments from Employers Mutual Limited which details weekly payments of compensation being made to Ms Allport for periods between November 2010 and March 2011, and from August 2011 to November 2011, along with the payment of medical expenses.
The clinical notes from Dr Rajapaksa record Ms Allport being given a mental health plan on 20 June 2013. There is a record on 23 August 2013 of Ms Allport having an increase in stress and “grieving for mum”. There is a record on 5 December 2014 of Ms Allport having an increase in anxiety with “no real cause”.
The clinical notes from Dr Rajapaksa record on 17 January 2017 Ms Allport being the subject of workplace harassment the previous day. There is a record on 13 February 2017 of
Ms Allport feeling very stressed, with an increase of anxiety and being unable to sleep.
I could not locate any clinical notes from Dr Rajapaksa after November 2017. However,
Dr Rajapaksa has provided a report dated 17 July 2021 wherein she states that Ms Allport presented on 12 December 2018 feeling anxious regarding issues while working as a new employee at Wollongong City Council. Dr Rajapaksa writes: “Whilst working at the Wollongong Council, Ms Allport felt her sense of self and work performance was criticized, so in turn felt vulnerable”.
Dr Rajapaksa also writes:
“Prior to working at the Wollongong Council, Mrs Allport did experience negative work place issues with the University of Wollongong (UOW), which caused her psychological distress, and leading to her subsequently leaving the organisation. It is therefore felt that the negative experience at the UOW may have also played a part in her sense of workplace vulnerability.”
Ms Allport signed a Deed of Release with the University of Wollongong on 21 September 2018 wherein it is recited that Ms Allport made a complaint of bullying on 20 April 2018, and although an independent investigation was unable to substantiate Ms Allport’s complaints, a payment of monies is made to Ms Allport on condition of her ceasing employment with the University.
Mr Combe submits that the deficiencies in the Ms Allport’s claim go beyond the lack of a fair climate, whereby the opinions of the experts on causation of injury cannot be relied upon with any confidence, to there being a fundamental lack of credit in the evidence provided by
Ms Allport and the manner in which she has sought to obtain compensation in this dispute.
Mr Combe submits that Ms Allport’s evidence that she had never made a previous claim for personal injury and had never been diagnosed as suffering from any type of psychological injury prior to the claim which is the subject of this dispute is patently false from a review of the evidence. He submits that the obvious inference to be drawn is that Ms Allport is prepared to mislead doctors and investigators when it suits her.
Mr Combe also submits that Ms Allport is not an unsophisticated lady. Ms Allport has worked for many years in administrative positions where she would be familiar with processes and documents. Mr Combe refers to the detailed submission made by Ms Allport for a review of the initial decision by Employers Mutual Limited to deny workers compensation liability for her claim for psychological injury in 2011. He submits that it is obvious from those submissions that Ms Allport knows what is relevant to support a workers compensation claim.
Mr Carney for the applicant concedes that Ms Allport was not as forthright as she could have been in providing details of past psychological problems which she had experienced. However, he submits that past psychological problems would have seemed to be quite minor to Ms Allport given that she has been able to engage in permanent fulltime employment during her working life.
Mr Carney submits that Ms Allport underwent a rigorous process in being selected to work for Wollongong City Council in October 2018. He submits that any significant psychological problems would have been revealed to the Council during this process.

Mr Carney submits that Dr Rajapaksa has been Ms Allport’s general practitioner for many years and would have been aware of her patient’s past medical history when she provided her opinion on the cause of Ms Allport’s psychological injury in her report dated 17 July 2021. Nonetheless, Dr Rajapaksa did not consider it necessary to include Ms Allport’s previous psychological problems when providing an opinion on causation.

Determination

The ARD claims that Ms Allport developed a psychological injury due to the nature and conditions of her employment.
The claim form completed by Ms Allport on 17 January 2019 sets out several causes of her psychological injury including unjustified criticisms and accusations about her work and behaviour, micromanagement of her daily work activities, failure by the respondent to provide corrective action to address her concerns, and bullying behaviour by staff.
It is perhaps arguable that Ms Allport suffered a “sudden physiological change or disturbance of the normal physiological state” (being the definition of injury pursuant to section 4 (a) of the 1987 Act as set out by Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska[2000] HCA 45; 200 CLR 286 at [39] (Petkoska)) as a result of the probation review meeting on 14 December 2018. She states that she felt physically ill following that meeting and at home that evening she felt very emotional and upset. She states that the following day she saw Dr Rajapaksa.
However, that is not the case advanced by Ms Allport. Ms Allport states and describes problems at Wollongong City Council from the commencement of her employment, and there are multiple issues and events identified by Ms Allport as causing her psychological distress.
I also note that while Ms Allport states that she sees Dr Rajapaksa on 15 December 2018,
Dr Rajapaksa writes in her report dated 17 July 2021 that Ms Allport presented on 12 December 2018 feeling anxious regarding issues while working as a new employee at Wollongong City Council. That attendance is two days before the probation review meeting.
The case that is made by the evidence of Ms Allport and the opinions on the causes of her injury by A/Prof Robertson and Dr Rajapaksa requires Ms Allport to establish that she sustained a disease injury in the course of her employment with Wollongong City Council.
In Perry v Tanine Pty Ltd t/as Ermington Hotel (1998) 16 NSWCCR 253; [1998] NSWCC 14 (Perry), Burke CCJ was dealing with a carpal tunnel injury, but what he said has been applied more generally to a disease injury:
“In general it seems to me that carpal tunnel syndrome is a failure of an area of the body to cope with repeated stress imposed upon it and reacts to that stress by developing swelling, pain and loss of function as a consequence. That seems to me to be classically a disease process. Where work is the source of the relevant stress it connotes to me that the worker has received injury either by the contraction or aggravation of a disease.”
Section 4 (b) of the 1987 provides:
“In this Act:
Injury:
……………………….
(b) includes a disease injury, which means:
(i)a disease that is contracted by a worker in the course of employment but only if the employment is the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.”
There is a difference in the opinions reached by A/Prof Robertson and Dr Ng as to the cause of the psychological injury that Ms Allport sustained during the time that she was employed with Wollongong City Council. The cause of injury found by A/Prof Robertson is as a result of multiple events which he accepts amounts to bullying of Ms Allport. Dr Ng concludes that her injury emerged out of the probationary process.
Either opinion would allow for a finding that Ms Allport’s employment of three months was the main contributing factor to the contracting of a psychological disease, thereby satisfying section 4 (b)(i) of the 1987 Act. However, both opinions are based on an assumption that
Ms Allport had no significant prior psychological problems.
I agree with the submissions made by Mr Combe that those opinions cannot be relied upon because both reports have not recorded a fair climate for those opinions to be reached, in accordance with Wigmores use of the phrase adopted in Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505. Samuels JA said (with Hutley and Preistley JJA agreeing) at [509G-510B]:
“It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis.”
I can accept that Ms Allport might not have recalled having anxiety symptoms in 1995. That was almost 25 years before the problems she claims to have encountered at Wollongong City Council, and the Terms of Settlement filed in the Compensation Court in 1996 do not reveal any payment of compensation to Ms Allport, and the list of payments from that claim amount to less than $1,000 in weekly benefits of compensation paid to Ms Allport.
However, the psychological problems that Ms Allport experienced over a period from October 2010 to September 2011 were significant. She attended Dr Rajapaksa on multiple occasions during this time for these problems. She was certified either totally or partially unfit for work at various times during this period due to anxiety secondary to workplace harassment. She underwent treatment from a psychologist, Ms Rowe.
Ms Allport made written submissions to Employers Mutual Limited to support her workers compensation claim when that claim was initially rejected. She also provided a lengthy statement to an investigator which set out her allegations of stressful working conditions at Port Kembla Hospital. Ms Allport attended A/Prof Robertson in June 2011 at the request of the insurer of Port Kembla Hospital as part of the determination of her claim.
Associate Professor Robertson or Dr Ng do not record any of this when Ms Allport sees those doctors in regard to this claim against Wollongong City Council. Nor does she provide any explanation for why this period of significant psychological problems was not recorded by either expert.
Associate Professor Robertson or Dr Ng do not record that, according to the notes from
Dr Rajapaksa, Ms Allport attended Dr Rajapaksa for stress and anxiety during 2013 and 2014, except for A/Prof Robertson recording that Ms Allport appeared to have a normal grief reaction in 2013 when her mother passed away.
Associate Professor Robertson or Dr Ng do not record that, according to the notes from
Dr Rajapaksa, Ms Allport attended Dr Rajapaksa for stress in the early part of 2017 due to workplace harassment.
The clinical notes from Dr Rajapaksa do not record any attendances by Ms Allport during 2015 and 2016 for treatment for psychological symptoms. However, the amount of attendances for such treatment from at least 2010 onwards raises the question as to whether Ms Allport suffers a psychological disease that may have had an effect upon the three months she worked at Wollongong City Council. That question cannot be answered by A/Prof Robertson or Dr Ng because they have not been appraised of this.
I have already noted that I could not locate any clinical notes from Dr Rajapaksa after November 2017. However, in her report dated 17 July 2021, Dr Rajapaksa writes that
Ms Allport experienced negative workplace issues with the University of Wollongong, which caused psychological distress and led Ms Allport to leave that employer.
The apparent difficulties that Ms Allport had with University of Wollongong are not recorded by A/Prof Robertson or Dr Ng. That is particularly significant because the observations from Dr Rajapaksa indicate that Ms Allport was continuing to experience psychological problems up until she ceased employment with University of Wollongong.
Ms Allport’s last day of employment with University of Wollongong which is recorded in the Release Agreement was 28 September 2018, but other documents produced by University of Wollongong indicate that Ms Allport may not have actually worked for that organisation from the end of July 2018. Even so, that still places the psychological distress recorded by
Dr Rajapaksa as having occurred at University of Wollongong being within three months of Ms Allport’s commencement of employment with Wollongong City Council.
The close proximity of the symptoms recorded by Dr Rajapaksa while Ms Allport was working at University of Wollongong to the period of Ms Allport’s employment with Wollongong City Council have not been considered by A/Prof Robertson or Dr Ng. Without such consideration, I cannot be confident of the findings on the cause of injury made by those experts.
The decision of AV v AW [2020] NSWWCCPD 9 (AV v AW) addresses the requirements to satisfy section 4 (b)(ii) of the 1987 Act, but DP Snell provided a very helpful application of the term ‘main contributing factor’ as it appears in both sub-clauses of section 4 (b) of the 1987 Act, when he said at [78]:
“The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.”
DP Snell acknowledges that the absence of medical evidence “is not necessarily fatal” in addressing the test of ‘main contributing factor’, and satisfaction of the test is to be considered on the whole of the evidence. There is some evidence pointing towards satisfaction of the test in this dispute.
Dr Rajapaksa writes that Ms Allport first presented to her surgery on 12 December 2018, feeling anxious while working as a new employee for Wollongong City Council. This is a contemporaneous record of the development of psychological symptoms over the two months Ms Allport had then worked at the Council.
Mr Carney refers to Ms Allport’s psychological problems as being only a minor issue for her when that is compared to her long periods of fulltime employment prior to her difficulties at Wollongong City Council.
Ms Allport states that she undertook a lengthy process to obtain her employment with Wollongong City Council, which included two psychometric tests and a psychological test. This evidence carries an inference that her psychological condition was stable prior to the commencement of her employment. That evidence has also not been challenged by any evidence relied upon by Wollongong City Council.
However, I cannot rely on other evidence from Ms Allport which goes to the test of ‘main contributing factor’ because of inconsistencies in her evidence.
Ms Allport’s statements that: “I have never made a previous claim for personal injury” and “Prior to my current psychological injury, I had never been diagnosed as suffering from any type of psychological injury” are patently false. Although she does provide details of two previous workers compensation claims for psychological injury in a later statement, she states that she had no treating doctors for the second claim she made against Port Kembla Hospital.
The evidence discloses that Ms Allport did attend Dr Rajapaksa on multiple occasions over a 12 month period and was treated by a psychologist on referral from Dr Rajapaksa in regard to the injury she claims to have sustained at Port Kembla Hospital. Ms Allport also does not provide any explanation for denying any past psychological injury.
The inconsistency in Ms Allport’s evidence means that I cannot accept her statement that: “Prior to the subject injury, I did not suffer from psychological or mental conditions with any significant or ongoing impacts on my ability to complete daily duties”. That conclusion is reinforced by there being a report from Dr Rajapaksa which records Ms Allport having psychological distress at University of Wollongong, which led to Ms Allport leaving that organisation, shortly before she begins her employment with Wollongong City Council.
In this dispute the medical evidence is not just “relevant and desirable” (AV v AW), but crucial, in addressing the ultimate question of whether Ms Allport’s employment is the main contributing factor to the contraction or aggravation of a psychological disease. I find I cannot be satisfied that Ms Allport’s employment with Wollongong City Council is the main contributing factor to either the contracting of a disease or the aggravation of a psychological disease without the two psychiatrists who have provided opinions on the cause of
Ms Allport’s injury being made aware of her long history of psychological problems and to have considered the effect that long history of psychological problems may have had upon Ms Allport when she started to experience further problems at Wollongong City Council.
Without the benefit of a medical opinion that has been provided in a fair climate, I am not satisfied that Ms Allport has met the test of ‘main contributing factor’, which is required for both section 4 (b)(i) and (ii) of the 1987 Act.
It might be that A/Prof Robertson or Dr Ng, having reviewed the relevant medical records regarding Ms Allport’s past psychological problems and then having the benefit of further interrogation of Ms Allport, would opine that Ms Allport has suffered separate and discrete periods of psychological problems in the past from which she has recovered, and that her employment with Wollongong City Council was the most recent episode of psychological injury.
That might well satisfy section 4 (b)(i) of the 1987 Act, whereby a conclusion could be made that Ms Allport’s employment with Wollongong City Council was the main contributing factor to the contraction of a psychological disease. I have already noted that this is how
A/Prof Robertson or Dr Ng have approached their opinions on causation in their respective reports in the absence of knowledge of Ms Allport’s past psychological problems.
However, such an opinion cannot be accepted when the expert cannot gauge the effect of past psychological problems with those complained of by Ms Allport during her employment with Wollongong City Council.
It might be that A/Prof Robertson or Dr Ng, having reviewed the relevant medical records regarding Ms Allport’s past psychological problems and then having the benefit of further interrogation of Ms Allport, would opine that Ms Allport has suffered from a psychological disease over the years, but that her employment with Wollongong City Council has been the main contributing factor to the aggravation of that psychological disease, which satisfies section 4 (b)(ii) of the 1987 Act.
However, neither expert has been given the opportunity to consider this.
I acknowledge that the lack of relevant material provided to an expert does not mean that no weight is attached to the opinion provided by that expert. In Craddock v GH Varley Pty Ltd [2021] NSWCCPD 10 (Craddock), DP Snell said at [88]:
“…If there was a lack of correlation between the facts as proved and the assumed facts relied on by the experts in reaching their views, this did not mean that the expert opinion was deprived of all weight. The passage of Hancock quoted at [54] above makes it clear that, even if there are deficiencies in this regard, it is necessary to assess what weight should be afforded to the expert opinion in the circumstances of the particular case. As was said in the Court of Appeal in Paric, “in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion.”
In this particular dispute there has been a broad departure between the known details of
Ms Allport’s past psychological problems and the facts which have been assumed by the two experts on causation, and that has affected the force of those experts’ opinions to the extent that I cannot rely upon them in determining whether Ms Allport’s employment with Wollongong City Council was the main contributing factor to the contraction or aggravation of a psychological disease.
The expert opinion is so fundamental to the issue of ‘main contributing factor’, given both the long history of Ms Allport’s psychological problems and the record of psychological distress made by Dr Rajapaksa so close to the time Ms Allport commences her employment with Wollongong City Council, that it cannot be overcome by other evidence which I have referred to.
I therefore cannot be satisfied that Ms Allport has sustained an injury within the meaning of section 4 (b)(i) or (ii) of the 1987 Act.
There will therefore be an award for the respondent.
The award for the respondent means that although section 11A (1) of the 1987 Act was raised as a defence by Wollongong City Council, it is not necessary for me to consider that as a separate issue in this decision.

[2022] NSWPIC 87

7 February 2022