Attanayake v Simplot Australia Pty Ltd
[2019] VSC 387
•13 June 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST
S ECI 2018 01297
| SUNETHRA ATTANAYAKE | Appellant |
| v | |
| SIMPLOT AUSTRALIA PTY LTD | Respondent |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 May 2019 |
DATE OF JUDGMENT: | 13 June 2019 |
CASE MAY BE CITED AS: | Attanayake v Simplot Australia Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2019] VSC 387 |
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WORKERS’ COMPENSATION – Appeal from Magistrates’ Court against dismissal of claim for compensation under Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – Appellant claimed to have suffered anxiety and depression caused by sexual harassment, bullying and threats by two supervisors – Magistrate satisfied that supervisor sexually harassed appellant at train station but held incident not work-related – Other allegations not proved – Magistrate found appellant did not suffer a ‘work injury’ – Workplace Injury Rehabilitation and Compensation Act 2013, s 39(1) required consideration of whether injury arose out of employment – Magistrate did not apply correct test – Whether Magistrate erred in finding no injury caused by train station incident – Magistrate erred by not considering all of the medical evidence – Magistrate’s reasons adequate – Appeal allowed – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 39(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A Clements QC with Ms S Gold | Robinson Gill |
| For the Respondent | Mr S O’Meara QC with Mr R Kumar | Minter Ellison |
HER HONOUR:
Sunethra Attanayake worked for Simplot Australia Pty Ltd as a process worker between October 2013 and August 2015. Her job involved packing seafood products into plastic containers on a production line. She ceased work abruptly in late August 2015 and, two weeks later, made a claim for compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act). Her claim for compensation was for anxiety and depression that she said was caused by sexual harassment, bullying and threats during her work at Simplot. Ms Attanayake alleged mistreatment by one supervisor between January 2014 and August 2015, and by a second supervisor over a shorter period in 2015.
Simplot rejected the claim, on the basis that Ms Attanayake did not sustain injury arising out of or in the course of employment, or that her employment was not a significant contributing factor to her injury. Ms Attanayake disputed that decision, and in July 2016 she commenced a proceeding in the Magistrates’ Court claiming weekly payments of compensation and payment of medical and like expenses in accordance with the WIRC Act. Her claim was heard over four days in March 2018. On 13 August 2018, Magistrate Ginnane published reasons for his decision to dismiss the claim, with costs. Orders to that effect were made on 22 August 2018.
Ms Attanayake has appealed to this Court against the dismissal of her claim, under s 109 of the Magistrates Court Act 1989 (Vic). An appeal may be brought under that section on a question of law. Three questions of law were identified in the amended notice of appeal. The issues for my determination in the appeal are:
(a) whether the Magistrate erred in concluding that an incident of sexual harassment that took place at the Ascot Vale train station was not work-related;
(b) whether the Magistrate erred in his subsequent findings that Ms Attanayake did not suffer an injury as a result of the train station incident and other work stressors that he found had occurred; and
(c) whether the Magistrate provided adequate reasons for his decision.
For the reasons that follow, I have concluded that the Magistrate did not apply the correct test in finding that the train station incident was not work-related. I have also concluded that the Magistrate erred by not considering all of the medical evidence in determining that Ms Attanayake had not suffered any injury as a result of the train station incident and other work stressors that he accepted had occurred. The Magistrate’s reasons were adequate. The orders dismissing the claim will be set aside and the case will be remitted for rehearing by a different magistrate.
The hearing in the Magistrates’ Court
Ms Attanayake’s case at trial was that she had suffered a major depressive disorder and anxiety due to being exposed to ‘various mental stresses and strains of employment as well as harassment including sexual harassment and threatening and/or bullying behaviour’. The matters that she alleged had contributed to her injury were particularised in her statement of claim, as follows:[1]
[1]Statement of claim in Magistrates’ Court complaint dated 18 July 2016, [5].
(i)Unwelcome advances by team leader Sachin and unwelcome propositions including to the effect that Sachin wanted to marry the plaintiff;
(ii)Repetitive and/or unwelcome requests for private details of the plaintiff;
(iii)Unwelcome requests for transportation from the workplace;
(iv)Being followed when departing the workplace premises;
(v)Being sexually assaulted at a train station at Ascot Vale in about April 2014;
(vi)Unwelcome physical touching including near the labelling station;
(vii)Utilising the trays to move stock to make contact with the plaintiff’s body;
(viii)Unwelcome and/or unwarranted touching of the plaintiff’s body including her shoulder;
(ix)Failing to cease and desist despite the plaintiff’s complaints about unwelcome physical contact;
(x)Unreasonable and/or unwelcome physical contact by Chandu and/or bullying behaviour by Chandu including screaming and/or threatening behaviour;
(xi)Chandu threatening the plaintiff with kidnap and or physical harm;
(xii)Wrongly being accused by Frank of improper conduct and/or being unreasonably required to sign a warning letter;
(xiii)In 2015, Sachin creating unreasonable work demands of the plaintiff;
(xiv)Being called derogatory names by Hussain and/or Chandu in 2015;
(xv) In about September 2015, failing to undertake any or any proper circumstance investigation;
(xvi)In about September 2015, undertaking a circumstance investigation in an unreasonable manner.
The references to ‘Sachin’ are references to Sachin Patel, and the references to ‘Chandu’ are references to Sanduran Nagaratnam, who is referred to as ‘Sando’ in the Magistrate’s reasons for decision. Both men were team leaders on the production line, with Mr Patel having greater supervisory responsibility than Mr Nagaratnam.
Ms Attanayake gave evidence through a Sinhalese interpreter, and was cross-examined at some length. Her evidence extended over more than two days. She gave an account of persistent harassment by Mr Patel in the workplace, involving frequent propositions and unwelcome touching. There was one particularly significant incident that she said took place at the Ascot Vale train station. The Magistrate recounted her evidence in relation to the train station incident as follows:[2]
She related an incident at the Ascot Vale train station after work sometime in April 2014. She said that she had been performing some overtime and left for the train station. She said the train had been cancelled. She said she saw Patel at the station and behind the Myki ticket machine. She said an announcement was made about bus replacements for the cancelled train service whereupon Sachin came up behind her and grabbed and kissed her on the lips. She said “leave me alone”. He said “I like you. I want to give you a kiss”. She described Sachin as “a fat strong man”. She said that she pushed him and tried to escape from him. She said her bag fell to the ground. She said she picked up her bag and ran away to and got on a bus. She did not know the destination of the bus but said that she got on in a distressed state and in order to escape him. She said she telephoned a workmate, Dummika and gave her account of what had occurred.
[2]Reasons, [17].
Ms Attanayake also gave evidence that Mr Nagaratnam had behaved towards her in an insulting and on occasion menacing manner. The behaviour she described included two very serious incidents. The first was in February 2015, in which he came up close behind her while she was working on the line and kissed her close to her neck. He then went away and returned to tell her that he had masturbated ‘by remembering her’. She said that this caused her to feel great shame. The other serious incident involved him threatening to kidnap and kill her.
The only other witness called for Ms Attanayake was her partner, Lal Mendoza.
Simplot’s defence was that none of these events occurred, and on that basis Ms Attanayake had not suffered an injury arising out of or in the course of her employment. The hearing was fought on the question of whether any of the alleged events had taken place.
Simplot called five witnesses, all of whom contradicted the evidence given by Ms Attanayake to some extent. Simplot’s witnesses included Sachin Patel and Sanduran Nagaratnam, the two men alleged to have sexually harassed Ms Attanayake. Both men denied all allegations of sexual harassment. The other witnesses called for Simplot were Frank Vadnjal, the pack out supervisor, and two process workers who had worked alongside Ms Attanayake, Dhammika Viyannalage and Loan Le.
Medical reports relied upon by both parties were tendered by consent, and were not the subject of cross-examination or detailed discussion at the hearing. Ms Attanayake’s counsel tendered two reports by her general practitioner, Dr Sonnie Ng, two reports by her psychologist, Ms Shirleen Jayasundera, and a medico-legal report prepared by Dr Matthew Tagkalidis, consultant psychiatrist. Simplot relied on reports of Dr Rasanjali Rathnayake, consultant psychiatrist, and Associate Professor Peter Doherty. It also tendered progress notes kept by Dr Ng’s practice for the period January 2013 to March 2017.
The Magistrate’s decision
The Magistrate’s reasons for decision set out in detail the evidence of the various witnesses given during the trial. His Honour also referred to the medical evidence, observing:[3]
In the event I am satisfied on the balance of probabilities of the occurrence of the events which the plaintiff alleges occurred at work, then there is no reasonable basis to not find that the plaintiff suffered an adjustment disorder with depressed and anxious mood and that her condition became intense including presenting itself with features of a major depressive disorder by reason of that conduct.
[3]Reasons, [154].
The Magistrate was not satisfied that most of the events alleged by Ms Attanayake had been proved. He was satisfied that Mr Patel had assaulted Ms Attanayake at the Ascot Vale train station in April 2014, as she alleged, but was not satisfied that he had harassed and importuned her at work before and after the train station incident. His Honour’s findings in relation to the sexual harassment allegations against Mr Patel were:[4]
[4]Reasons, [161]–[162].
(i)I am satisfied on the balance of probabilities that Sachin made unwelcome advances to the plaintiff at the Ascot Vale train station in April. He may have approached her a second time also outside work and also at a train station in or about June 2015. I found Sachin to be an unimpressive witness and I expressed my view to this effect in the course of final address by counsel for the defendant. My view of him has not altered in the period since the reservation of my reasons for decision. Sachin denied the train station incident. Vadnjal said he was aware of it and Dummika[5] admitted some aspects of the telephone call made by the plaintiff from the bus. I am satisfied this incident occurred and that Sachin pulled the plaintiff to him against her will and kissed her against her will. I am satisfied the plaintiff was shocked and frightened by Sachin’s conduct and that she fled the station in a distressed manner in consequence of his behaviour. I expect that it remained a matter of concern and upset to her.
[5]References to ‘Dummika’ in the Magistrate’s Reasons are references to Dhammika Viyannalage.
(ii)I am satisfied that the plaintiff telephoned her workmate Dummika from the bus and related the event at the train station. I reject the evidence given by Dummika that the plaintiff did not “sound upset” as being unreliable. Dummika also said that the plaintiff and Sachin appeared to be engaging normally with one another the following work day. The plaintiff said otherwise and that she was ignored by Sachin the following day upon attending work. I think the plaintiff’s assessment of her interaction with Sachin the next day, is to be preferred.
(iii) I find that the incident at the train station was not work related.
(iv)I am not satisfied based on the sole account of the plaintiff that the incident at the train station was but one instance of Sachin’s conduct and that he harassed and importuned the plaintiff at work both before and after the train station incident. I make this finding conscious that I have rejected Sachin’s denial that he approached the plaintiff at the Ascot Vale train station. The fact that I prefer the plaintiff’s account on that allegation for the reasons noted that include other evidence from which support for it can be drawn, does not equate to the requirement that all other allegations made by the plaintiff against Sachin and lacking corroboration must also be accepted.
(v)I am not satisfied that the plaintiff has proved that Sachin engaged in the behaviour complained of at work namely, requests for marriage and for the plaintiff’s telephone number.
(vi)The plaintiff complained as well of other unwelcome conduct of a sexual nature to which she [was] subjected by Sachin. I was urged by counsel for the defendant to reject as unreliable such allegations that comprised:
•Sachin coming up very close to the plaintiff on the line making her feel uncomfortable.
•Touching the plaintiff’s back with his fingers.
•Placing goods on the line and putting his hand near her chest and smiling and saying “sorry” whenever he did so to which the plaintiff would admonish him and say to him “Don’t do it”.
•Putting his knee towards her back.
•Putting his hand on her buttocks.
The plaintiff said this conduct by Sachin occurred “about 4 times a week” over the period from April 2014 to August 2015. In other words it was persistent. The plaintiff said Dummika and Loian observed the conduct and Dummika told her to complain to the police and Loian suggested that the plaintiff ignore it and on one occasion asked the plaintiff why she didn’t “punch him in the face”. Dummika and Loiann denied the plaintiff’s account. Both women remained employed with the defendant at the date they gave evidence, and that is a matter I have considered in light of their denials. Nonetheless, the fact of their continued employment with the defendant is itself not a reason enough to dismiss their evidence. I am not satisfied that I should dismiss it, and on balance, I prefer their denials to the plaintiff’s evidence.
As to the balance of Ms Attanayake’s allegations, the Magistrate found only a couple of matters to have been proved. He found that she was confronted by Mr Nagaratnam when she questioned a direction given by him that she was to change location, and that this led to Mr Patel intervening.[6] The warning letter given to Ms Attanayake after this incident was tendered by Simplot. The Magistrate also found that the requirement to rotate workers to different places on the production line may not have been strictly adhered to from time to time, which ‘perhaps led the plaintiff to assume that she was being treated less favourably than others’.[7]
[6]Reasons, [167], [175].
[7]Reasons, [168].
Otherwise, the Magistrate was not satisfied that Mr Nagaratnam had engaged in the sexual conduct alleged against him, or that he had threatened to kidnap and kill Ms Attanayake.[8] Nor was he satisfied that Mr Patel and Mr Nagaratnam had often called her a ‘Sri Lankan bitch’, sped up the production line to disadvantage her, or allocated her hard jobs.[9]
[8]Reasons, [163]–[165], [167].
[9]Reasons, [166], [168], [169].
Although the Magistrate found that the train station incident was not work-related, he considered whether that incident was a cause of mental injury to Ms Attanayake, and concluded that it was not.[10] Nor was he satisfied that the proved work stressors were a cause of injury.[11] There was no finding as to whether Ms Attanayake had suffered a psychiatric injury.
[10]Reasons, [172].
[11]Reasons, [175].
The Magistrate was not satisfied, overall, that Ms Attanayake’s complaints were reliable.[12] His Honour found that her complaints against Mr Patel were enlarged upon in response to the train station incident, and that she ‘concocted’ the allegations against Mr Nagaratnam in response to her sense of being addressed unfairly by him.[13] The Magistrate did not accept Ms Attanayake’s ‘attribution of condition to cause’.[14] He was not satisfied that she had suffered a work injury, or that any incapacity from 26 August 2015 was due to a work injury.[15]
[12]Reasons, [181].
[13]Reasons, [175].
[14]Reasons, [182].
[15]Reasons, [178].
The Magistrate’s finding that the train station incident was not work-related
The first question of law identified in the amended notice of appeal was whether the Magistrate erred in law by concluding that the train station incident, and any resultant injury, did not arise out of or in the course of employment within the meaning of s 39(1) of the WIRC Act. Ms Attanayake contended that, although the incident did not occur on the work premises, the Magistrate was wrong in law to conclude that it did not have the requisite connection with employment.
‘Arising out of employment’
Section 39 of the WIRC Act sets out the circumstances that entitle a person to compensation under the Act. Relevantly here, s 39(1) provides:
If there is caused to a worker an injury arising out of or in the course of any employment, the worker is entitled to compensation in accordance with this Act.
Section 40 stipulates various circumstances in which there is no entitlement to compensation. None of them applied in this case. Ms Attanayake’s claim for compensation turned only on whether she had suffered an injury ‘arising out of or in the course of’ employment. Given the Magistrate’s findings, the critical question became whether she had suffered injury ‘arising out of’ her employment with Simplot.
It is well established that the ‘arising out of’ test in s 39(1) requires a ‘causal connection between the employment or its incident and the injury’.[16] The test will be satisfied ‘if the employment is shown to have been a cause of the injury’. It is not necessary to show that the employment was the sole cause, or even the dominant cause, of the injury for which compensation is claimed.[17] The question of causation is a matter of common sense.[18]
[16]Zlateska v Consolidated Cleaning Services Pty Ltd [2006] VSCA 141 (Zlateska), [7].
[17]Zlateska, [76].
[18]Zlateska, [9], [82].
An injury may arise out of employment, even though the causal incident did not occur in the course of employment.[19] In cases where a harmful incident occurs away from the workplace, or outside work hours, it may be that there is a causal connection between employment and injury. In those cases, a critical factor is whether the incident has its origin in an employment-related matter, or in a personal or private matter. Where the incident has its origin in an employment-related matter, an injury caused by the incident is likely to be regarded as having arisen out of the employment.[20]
[19]Tarry v Warringah Shire Council [1974] WCR (NSW) 1, 7–8, cited in Martin v Bailey (2009) 26 VR 270 (Martin v Bailey), [30].
[20]Martin v Bailey, [22].
The parties’ submissions
At trial, Simplot put in issue whether any injury resulting from the train station incident could arise out of Ms Attanayake’s employment, because the incident took place outside the workplace and outside work hours.[21] The Magistrate apparently accepted that submission, finding that the incident ‘was not work related’.[22]
[21]Noted at [147] of the Reasons.
[22]Reasons, [161(iii)].
Ms Attanayake submitted that the Magistrate erred in focusing on whether the incident was work-related or occurred outside work, when the question posed by s 39(1) of the WIRC Act was whether Ms Attanayake’s psychiatric injury arose out of her employment. She argued that the Magistrate fell into error by:
(a) failing to identify the correct legal test as expressed in s 39(1) of the WIRC Act;
(b) failing to consider whether any injury caused to Ms Attanayake by the train station incident was an injury ‘arising out of her employment’, and whether the incident itself arose out of the employment;
(c) applying the wrong test, as evidenced by the finding that the incident was ‘not work related’[23] and the further reference to the incident occurring ‘outside work’;[24]
(d) failing to consider whether there was a connection between the train station incident and Ms Attanayake’s employment at Simplot, or any connection between any injury she had suffered from that incident and her employment; and
(e) failing to evaluate the extent to which the train station injury, and any injury caused by it, had its origin in the employment.
[23]Reasons, [161(iii)].
[24]Reasons, [172].
Simplot submitted that the Magistrate correctly determined the issues as they were presented at trial, and was entitled to find as a fact that the train station incident was not work-related. It argued that his Honour had simply accepted Simplot’s submissions, which he referred to his reasons,[25] that the incident was unrelated to anything arising out of or in the course of Ms Attanayake’s employment, and so could not give rise to a work-related injury. It further contended that none of the submissions now made for Ms Attanayake were advanced below, and relied on the principle that a party is bound by the conduct of the case at trial and could not raise a new point on appeal.[26]
[25]Reasons, [147], [148].
[26]Metwally v University of Wollongong (1985) 60 ALR 68, 71; Whisprun v Dixon (2003) 77 ALJR 1598, [51].
Did the Magistrate apply the correct test?
I have concluded that the Magistrate did not apply the correct test in finding that the train station incident was not work-related. There is an entitlement to compensation under s 39(1) of the WIRC Act where a worker suffers injury arising out of or in the course of employment. It is common in workers’ compensation matters to use short hand expressions for the statutory test, such as ‘work-related’ or ‘work injury’. There is nothing wrong with that, so long as the short hand does not displace or obscure the correct test. Here, the Magistrate’s reasons did not set out the test as it is expressed in s 39(1), and his Honour did not apply that test in relation to the train station incident.
In order to decide Ms Attanayake’s claim to be entitled to compensation under s 39(1) of the WIRC Act, the Magistrate had to determine:
(a) whether any of the alleged sexual harassment, bullying behaviour and threats took place;
(b) if so, whether Ms Attanayake had suffered the claimed injury, namely major depressive disorder and anxiety;
(c) if so, whether the incidents that occurred were a cause of her injury; and
(d) if so, whether the injury arose out of or in the course of her employment.
His Honour made detailed findings on the main controversy between the parties, which was whether the alleged sexual harassment, bullying and threats had occurred. However, it appears from the Magistrate’s reasons that he did not make any finding as to whether Ms Attanayake had suffered any injury, what that injury was and when she first suffered it.
Having found one significant incident proved, the Magistrate should have considered whether Ms Attanayake suffered the claimed injury, whether the train station incident was a cause of that injury and, if so, whether the injury arose out of her employment. This last step required consideration of whether the train station incident had its origin in the employment, or in a personal or private matter. Instead of that analysis, there was only the bare finding that the train station incident was not work-related. The statutory test, which requires a causal connection between injury and employment, was not applied.
Had the correct test been applied, it was open to the Magistrate to find that any injury resulting from the train station incident arose out of Ms Attanayake’s employment, despite having occurred outside the workplace and after work hours. The evidence was that Ms Attanayake knew Mr Patel only as her workplace supervisor; there was no private element to their relationship. The incident took place at the Ascot Vale train station, close to the workplace, immediately after the conclusion of a shift, on Ms Attanayake’s way home from work. She telephoned a co-worker immediately after the incident, rather than calling her partner or someone from outside the workplace. Following the incident, Ms Attanayake continued to work at Simplot in Mr Patel’s presence and under his supervision. These are all indications that the train station incident had its origin in the employment.
Was this issue raised at trial?
I have paid close attention to the cases presented to the Magistrate by the parties, as senior counsel for Simplot urged me to do. Having done so, I do not consider that Ms Attanayake has raised a point on appeal that was not in issue below.
It is true that the trial was fought almost exclusively over whether the events complained of by Ms Attanayake took place. Little attention was paid to whether Ms Attanayake had suffered an injury at all, and if so the nature of her injury and when it became manifest. No time was spent exploring the medical evidence — the reports were simply tendered and left for the Magistrate to read at a later time. Neither counsel referred in their submissions to s 39(1) of the WIRC Act or the ‘arising out of employment’ test.
However, the claim made by Ms Attanayake in the Magistrates’ Court was for compensation for injury arising out of or in the course of her employment with Simplot. The statutory test was stated correctly in the statement of claim annexed to her complaint. The statement of claim alleged that Ms Attanayake suffered major depressive disorder and anxiety by reason of a number of matters, including the train station incident. Those allegations were denied by Simplot in its defence. The central issues for determination were, from the outset, whether Ms Attanayake had suffered the claimed injuries and whether they arose out of or in the course of her employment.
Those issues were not altered by the manner in which the trial was conducted.
Simplot did not admit, in its defence or during the trial, that Ms Attanayake had suffered any injury at all, or what that injury was. It put Ms Attanayake to her proof on the question of injury even though, as senior counsel for Simplot conceded, it would have been impossible to contest that question. The medical evidence, including the psychiatrists’ reports tendered by Simplot, all pointed one way. The practitioners gave various formal diagnoses, but all were of the opinion that Ms Attanayake suffered from some form of depression and anxiety. The fact that the medical evidence received no attention at trial did not mean that injury was no longer an issue.
Similarly, Simplot denied that the employment contributed to any injury Ms Attanayake may have suffered, and denied that any incapacity resulted from any injury sustained in the employment. This denial necessarily included a denial that there was any causal connection between the employment and the injury, as well as denying that the alleged stressors had occurred at all. Again, the question of causation did not fall away because the parties concentrated on the latter issue at trial.
Simplot relied on my decision in Samoiloff v Grandiflora Nurseries Pty Ltd,[27] as an example of the principle that a party is bound by the conduct of its case at trial.[28] In that case, the parties had concentrated on the question of whether employment was a ‘significant contributing factor’ to the worker’s injury, under s 40(3) of the WIRC Act, without separately addressing the test in s 39(1), whether her injury arose out of or in the course of employment. It was implicit in this approach that, if the worker succeeded in establishing that her employment was a significant contributing factor to her injury, she would also have proved that her injury arose out of or in the course of her employment. There is a very substantial overlap between the two tests and, in many cases, there is no discernible difference between them.[29] Samoiloff was such a case, and so the Magistrate did not err by adopting the parties’ approach of concentrating on the ‘significant contributing factor’ test.
[27][2018] VSC 765 (Samoiloff).
[28]Samoiloff, [21].
[29]Zlateska, [10], [78], [80].
This case is quite different. The issues for determination were not subsumed by the manner in which the parties conducted the trial. The issues were identified in the statement of claim attached to the complaint and the notice of defence, and the WIRC Act itself. It was sensible to concentrate first and foremost on whether any of the alleged mistreatment occurred, as the parties and the Magistrate did. If none of those events were proved, there would have been no need to consider the issues of injury and causation. However, having found some matters proved, including one significant instance of sexual harassment, the Magistrate had to determine the remaining issues.
The first question of law in the amended notice of appeal is made out — the Magistrate applied the wrong test in finding that the train station incident was not work-related. However, that error is only material if the Magistrate was also wrong in his alternative conclusion that Ms Attanayake suffered no injury as a result of the train station incident.
Did the Magistrate err in finding no work-related injury?
The second question of law identified in the amended notice of appeal concerned that alternative conclusion. Ms Attanayake argued that, having found that she had experienced certain stressors and adverse interactions with her superiors in her employment with Simplot, the Magistrate erred in law by failing to consider whether those matters contributed to her injury. Ms Attanayake contended that the Magistrate was wrong in his subsequent finding that she did not suffer a mental injury or incapacity as a result of the train station incident.
The Magistrate addressed the possibility that he was wrong in his conclusion that the train station incident was not work-related. He did this by considering whether the incident was a cause of mental injury to Ms Attanayake.[30] He concluded that it was not, as follows:
The plaintiff alleged that she has suffered a mental type injury arising out of or in the course of her employment with the defendant. It is plain enough from my findings that I am satisfied that the plaintiff was subjected to unwelcome work conduct from Sachin. It occurred outside work. If I am wrong about this, then did it cause a mental injury? If it did, then there was no objective manifestation of it in a temporal sense. The plaintiff made no complaints to management of sexual harassment by Sachin and her complaint to management about Sando arising from when she was given the direction with which she cavilled, resulted in a written warning. Her complaint alleging that Sando threatened to “kill her, to kidnap her”, made after her employment ended is not a matter than I am satisfied occurred. There was no absence from work by the plaintiff and the progress notes of her doctor and her attendances reveal that over the course of time when she claimed that she was subjected to the almost daily unwelcome attention by Sachin, and subsequent alleged sexual behaviour by Sando, there is no reference or account recorded by her doctor. Mr Perry submitted that there may be a delay between injury and incapacity. I agree, and the law certainly recognises this phenomenon. The problem is, I have no reliable evidence of injury. The plaintiff said she was experiencing physical manifestations caused by Sando’s conduct of threatening her with physical harm. She said she was crying, and that she saw manifested in herself, symptoms caused by his behaviour that included loss of appetite, fatigue, mild panic attacks and nightmares about him. She has related as well a fear of leaving her house other than when required to do so to attend medical appointments. The plaintiff testified that her nightmares occurred while still employed and that Lal was witness to them, however, this was not corroborated by Lal, who said that her disrupted sleep did not occur until after 25 August 2015. Lal certainly did not corroborate the other symptoms of which the plaintiff testified and the doctor’s progress notes are silent on this and other salient matters.
[30]Reasons, [172].
The Magistrate went on to find that ‘feelings of sadness and upset’ were understandable reactions to Ms Attanayake’s employment situation, but he was not satisfied that ‘work conduct was a cause of an injury’.[31] I understand this to be a finding that the work stressors that his Honour found had occurred — the confrontation with Mr Nagaratnam and the perception of unfair treatment due to non-observance of the rotation policy — were not a cause of injury.
[31]Reasons, [175].
Ms Attanayake submitted that the conclusion that she had suffered no work injury was in error because it was reached without reference to the medical reports that had been tendered by the parties, being evidence that the Magistrate was obliged to examine.[32] She went further, and submitted that the conclusion that the train station incident was not a cause of injury was not open on the evidence before the Magistrate.
[32]Relying on Pulling v Yarra Ranges Shire Council [2018] VSC 248 (Pulling), [50]–[56].
Simplot submitted that the Magistrate had discussed the medical evidence in detail in his Reasons,[33] that it was only part of the evidence to be considered, and that it was open to his Honour to find that there was ‘no reliable evidence of injury’ arising from the proved conduct. It pointed to the Magistrate’s preference for the opinion of Associate Professor Doherty, and said that this was consistent with his Honour’s acceptance of the premise that the unreliability of Ms Attanayake’s history undermined and invalidated the diagnoses based on that history.
[33]At [150]–[160] and [179]–[181] of the Reasons.
The medical evidence
The various medical reports were relevant to the issues the Magistrate had to determine in several ways:
(a) Each report gave a diagnosis of a psychiatric injury, which in most cases was accompanied by an account of the symptoms suffered by Ms Attanayake. This aspect of the reports was relevant to the question of whether she had suffered an injury, and if so the nature and duration of the injury.
(b) Each report recounted a history of the events that Ms Attanayake alleged had caused her injury. This history was relevant to the question of whether those events occurred.[34]
(c) Each report offered an opinion as to the cause of the diagnosed injury. These opinions were relevant to whether the alleged events caused the injury and also to the ultimate issue, whether Ms Attanayake had suffered an injury arising out of or in the course of her employment.
[34]Pulling, [44].
I will refer in some detail to how these matters were dealt with in the two medico-legal reports tendered for Simplot. The reports were produced by two different consultant psychiatrists, Dr Rathnayake and Associate Professor Doherty, both of whom assessed Ms Attanayake on behalf of Simplot.
Dr Rathnayake saw Ms Attanayake on 30 September 2015 and reported as follows:
(a) She diagnosed Ms Attanayake with an adjustment disorder with mixed anxiety and depressed mood, which appeared to have arisen in mid 2015. She noted the following presenting symptoms: anxiety, limited-symptom panic attacks (chest tightness and shortness of breath), sleep disturbance, irritability, loss of energy, lack of motivation, poor appetite, difficulty with concentration, depressed mood and social withdrawal. She took a history of these symptoms appearing from early 2015.
(b) Dr Rathnayake recorded a history of sexual harassment by Mr Patel, including the train station incident, and abuse and threats by Mr Nagaratnam. She summarised that history in these words:
Ms Sunethra Attanayake is a process worker who has worked for Simplot Australia in a factory for two years. She said her team leader, Sachin, behaved in a sexually inappropriate manner towards her. On one occasion he followed her and kissed her in an underpass at the train station against her will. He continued to touch her in a sexually inappropriate manner following that incident. She said another worker, Sando, was verbally abusive and threatened to kidnap and kill her.
(c) As to cause, Dr Rathnayake was of the opinion that Ms Attanayake had ‘developed an adjustment disorder with mixed anxiety and depressed mood in the context of sexual harassment, bullying and death threats’. Her report noted no stressors that were not work-related, and no prior psychiatric history.
Associate Professor Doherty examined Ms Attanayake on 3 October 2017, and provided a report dated 10 December 2017.
(a) The symptoms noted in the report included fear of Mr Nagaratnam, so that she could not go outside her home or go anywhere by herself, and was also scared to stay at home. Ms Attanayake reported difficulty falling asleep and sleep that was broken by dreams and images, related to her fear of Mr Nagaratnam. She described worrying a lot and having panic episodes with tightness in her chest. Her appetite was normal but she lacked motivation and energy. She reported difficulty memorising things. Associate Professor Doherty’s impression on ‘cross section at this examination’ was that ‘she presented as a person with anxiety, some mood symptoms and intense fear of being physically harmed by work colleagues.’ As to diagnosis, he said:
Assuming the worker’s version is correct, the worker had an adjustment disorder with depressed and anxious mood, that had condition is now presenting as a paranoid psychotic condition. There are some features of a major depressive disorder.
However, he rejected a diagnosis of paranoid psychotic condition, and ventured an explanation ‘that the unreliable and inconsistent history is largely made up.’ Asked to assume that the allegations against Mr Patel and Mr Nagaratnam were untrue, his opinion was that the unreliability of Ms Attanayake’s history ‘would cause the making of a psychiatric diagnosis to be unreliable, and thus invalid.’ He was not asked for, and did not offer, an opinion as to the reliability of a psychiatric diagnosis if some of her allegations were found to be true, and some were not.
(b) Associate Professor Doherty took from Ms Attanayake a history of events in the workplace that included persistent propositions by Mr Patel, him following her to the train station and frequently touching her while at work. He did not note any account of the train station incident. He did note Ms Attanayake’s account of the confrontation with Mr Nagaratnam in the workplace, and also of an incident when he ‘kept himself close to her neck and he said he was inhaling her smell to remember it when he masturbated.’
(c) Associate Professor Doherty was of the opinion that, if ‘the worker’s version was correct, then the issues occurring in the workplace have contributed materially to the psychiatric condition that would be diagnosed in the worker.’ He did not note any prior psychiatric history. He said that it was ‘unclear if there are other non-work related factors affecting the claim.’
As noted above, there were several reports tendered for Ms Attanayake. These reports were from:
(a) Ms Attanayake’s treating general practitioner, Dr Ng, who diagnosed anxiety and depression from sexual harassment at work;
(b) her treating psychologist, Ms Jayasundera, who initially diagnosed adjustment disorder with mixed anxiety and depressed mood, and later noted symptoms that in her opinion justified a diagnosis of post-traumatic stress disorder with concomitant anxiety and clinical depression; and
(c) consultant psychiatrist Dr Tagkalidis, who diagnosed major depressive disorder and prominent features of traumatisation short of post-traumatic stress disorder.
Each was of the opinion that her injury was caused by harassment and threats by the two men at work, which included the train station incident.
The Magistrate was obliged to consider all of the medical evidence
In Pulling v Yarra Ranges Shire Council, Bell J summarised the consideration that must be given to medical evidence by a magistrate hearing a claim for workers’ compensation:[35]
The authorities establish three relevant propositions. First, in an application for workers’ compensation, the court must examine the whole of the evidence, including the medical evidence. This obligation applies even where the weight of particular medical evidence has been undermined by other evidence, including evidence that the worker might not have been fully frank with a doctor. Secondly, in considering what weight should be given to medical evidence in this category, the court cannot speculate about what opinion the doctor may have expressed if given the missing information. The opinion may or may not change in consequence. Thirdly, care needs to be taken when examining medical reports, particularly in relation to the account given by the doctor of the history provided by the patient.
[35]Pulling, [50].
A magistrate is not bound to dismiss a medical opinion merely because the history of events that informed the opinion is not proved in full at the hearing.[36] Where, as here, medical reports have been tendered without their authors being cross-examined, those reports form part of the evidence that must be evaluated, in particular in determining questions of injury and cause. All of the medical evidence must be considered in order to determine ‘what was the burden of all the evidence in the case?’[37]
[36]Allsmanti Pty Ltd v Ernikiolis [2007] VSCA 17 (Allsmanti), [49].
[37]Allsmanti, [50].
The Magistrate failed to consider all of the medical evidence
The Magistrate referred to some of the medical reports and progress notes, in the course of recounting the evidence relevant to the alleged harassment, bullying and threats.[38] A history of events recorded by a medical practitioner in a report is logically probative of whether those events occurred.[39] However, its probative value has limitations, because it cannot be assumed that the history is an accurate or complete account of what the patient told the practitioner.[40] The Magistrate treated histories set out in the medical reports with appropriate care,[41] and no complaint is made about his reliance on the reports in his fact finding about the allegations made by Ms Attanayake.
[38]Reasons, [150]–[160].
[39]Pulling, [44].
[40]Woolworths Ltd v Warfe [2013] VSCA 22 (Woolworths), [112]; Philippiadis v Transport Accident Commission (2016) 74 MVR 289, [105].
[41]Reasons, [160].
In contrast with his careful treatment of the medical evidence in determining whether the allegations were proved, the Magistrate did not refer to the medical reports at all in explaining why he had concluded that the proved incidents did not cause any injury to Ms Attanayake. In the critical paragraph of his reasons,[42] his Honour referred to the absence of any contemporaneous complaints or absences from work, and to the lack of corroboration for the symptoms Ms Attanayake said she had suffered before ceasing work in August 2015. In response to the submission made for Ms Attanayake that ‘there may be a delay between injury and incapacity’, his Honour said:
The problem is, I have no reliable evidence of injury.
[42]Reasons, [172].
Later in his reasons, the Magistrate said that he had found the opinion of Associate Professor Doherty the most helpful of the medical reports. He referred in particular to Associate Professor Doherty’s observation that, assuming none of Ms Attanayake’s allegations were true:
The unreliability of the worker’s history would cause the making of a psychiatric diagnosis to be unreliable, and thus invalid.
It is apparent that the Magistrate dismissed the diagnoses of injury in all of the other medical reports because he had found Ms Attanayake’s evidence to be unreliable in many respects. This is the only explanation for his Honour’s failure to refer to the considerable evidence that Ms Attanayake was suffering from anxiety and depression for which she had first sought treatment in September 2015. Rejecting the opinions of Dr Ng, Ms Jayasundera, Dr Tagkalidis and Dr Rathnayake on this basis was an error, for two reasons.
First, the Magistrate did not find Ms Attanayake to be a wholly unreliable witness. Most significantly, he accepted her evidence in respect of the train station incident, in preference to Mr Patel’s denials. He also accepted other aspects of her evidence about stressors in the workplace. Some of the history on which the practitioners had based their diagnoses was established. In those circumstances, the diagnoses could not be dismissed out of hand.
Second, the Magistrate was obliged to examine the whole of the evidence, including medical opinions given on the basis of facts that differed from those proved at trial.[43] It is certainly the case that an opinion, particularly a diagnosis of a psychiatric injury, ‘is only as good as the underlying history upon which it is based’.[44] Here, however, the medical opinions were part of the evidence before the Magistrate, they had not been tested in cross-examination, and parts of the history on which they were based had been proved. In those circumstances, the opinions stood, and had to be considered in order to determine ‘what was the burden of all the evidence in the case?’[45]
[43]See [51]–[52] above.
[44]Rowe v Transport Accident Commission (2017) 83 MVR 195, [89].
[45]Allsmanti, [50].
For these reasons, the Magistrate’s finding that Ms Attanayake did not suffer a work-related injury was affected by error. His Honour should have considered all of the medical evidence in determining whether Ms Attanayake had suffered the claimed psychiatric injury, whether the incidents that occurred were a cause of her injury, and whether the injury arose out of or in the course of her employment. Had he done so, it was open on the evidence to find that Ms Attanayake had suffered an injury and that the injury arose out of her employment.
Were the Magistrate’s reasons adequate?
The final question of law identified in the amended notice of appeal is whether the Magistrate provided adequate reasons for his decision. Ms Attanayake contends that his Honour’s reasons do not adequately explain:
a. The basis for the primary legal conclusion that the train station incident did not arise out of employment within the meaning of the Act;
b. The apparent inconsistency between the Magistrate accepting that the train station incident occurred despite Sachin's denials, the related finding that Sachin was an unimpressive witness, the uncontradicted evidence that the plaintiff made complaints about Sachin's behaviour towards her at the workplace, yet failing to accept any other allegations against Sachin of a sexual nature towards the plaintiff were established;
c. Whether the learned Magistrate accepted that there was one train incident involving an unwanted advance by Sachin in April 2014, or whether the learned Magistrate also considered there was another train station incident in June 2015, and, if so, the relevance of this second incident to the onset of the plaintiff's alleged psychiatric condition;
d. The causal significance of the relationship between the occurrence of the train station incident and its psychological consequences (held to have occurred) and the other complaints of workplace conduct made by the plaintiff (held not to have occurred);
e. Why or how the learned Magistrate considered that the work stressors arising from the adverse interactions between the plaintiff, Sachin and Sando (as held to have occurred), did not give rise to mental injury within the meaning of the Act;
f. Whether, in relation to the parts of the plaintiffs evidence that were not found to be established, the learned Magistrate considered the that plaintiff was unintentionally unreliable, deliberately untruthful, and or suffered from a psychotic condition as proposed by medico legal evidence cited to be of assistance in the judgment. And, if the latter, the causal relationship if any between the onset of the psychotic condition and the relevant events established to have occurred;
g. Considering the medical evidence, whether the learned Magistrate concluded the plaintiff suffered from any and if so what psychiatric condition and if so the genesis of that condition.
h. Considering the medical evidence, whether the learned Magistrate concluded that the plaintiff suffered from a psychiatrically based incapacity for work, and if so to what degree and the genesis of that incapacity.
The Magistrate’s obligation to give reasons
As a judicial officer, a magistrate is obliged to give adequate reasons for an order. A failure to do so is an error of law. The obligation to give reasons serves at least two purposes:[46]
First, the provision of adequate reasons enables a Court of Appeal to ascertain the basis upon which the decision, the subject of the appeal, was made. Secondly, a failure by a judge to provide adequate reasons can engender a real sense of grievance on the part of a losing party, who is left in ignorance as to why the decision, adverse to its interest, has been made. Allied to that purpose is the public interest in maintaining public acceptance of judicial decisions and the integrity of the court process.
Both purposes are achieved by reasons that disclose the path of reasoning by which the magistrate reached the ultimate conclusion on which the order was based.[47]
[46]Woolworths, [124].
[47]Woolworths, [125].
An appeal to the Supreme Court from a final order of the Magistrates’ Court in a civil proceeding lies only on a question of law. In contrast with an appeal from a judge to the Court of Appeal, it is not an appeal by way of rehearing.[48] An appeal under s 109 of the Magistrates’ Court Act is concerned only with whether there was an error of law, and does not extend to whether the magistrate made an error of fact. This means that less may be required of a magistrate than is required of a judge, in order to achieve the purpose of enabling this Court to ascertain the basis upon which the order under appeal was made. It will usually be sufficient for a magistrate’s reasons to explain the basis for a critical finding of fact, without also setting out the detailed reasoning in support of that finding.[49] However, the reasons must address the issues in the case and the circumstances in which the order is made.[50] A more complex case, involving numerous issues of fact and both lay and expert evidence, will require more detailed reasons than a straightforward one.
[48]Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550, [43].
[49]Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 271–272 (Mahoney JA), 282 (McHugh JA).
[50]Hettiarachci v RACV Ltd [2016] VSC 97, [41].
At the same time, the court should not subject a magistrate’s reasons to ‘over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed’.[51] The Magistrates’ Court of Victoria is an exceptionally busy court, in which magistrates do not have the luxury of time to produce flawless written reasons for their orders. The standard required is adequate reasons, not perfect reasons.
[51]Minister for Immigration and Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
The Magistrate gave adequate reasons
Read against this standard, I consider that the Magistrate’s reasons were adequate. They revealed his Honour’s path of reasoning in sufficient detail that I could ascertain the basis on which he concluded that the claim should be dismissed.
The first ground on which Ms Attanayake argued that the reasons were inadequate was that they did not explain the basis for the primary legal conclusion that the train station incident did not arise out of employment. It is clear enough from the reasons that this conclusion was based on the fact that the incident occurred outside the workplace and after work hours. As I have found, the Magistrate did not apply the correct test in characterising the train station incident as ‘not work-related’. The Magistrate who rehears the claim will have to determine whether the train station incident caused any injury to Ms Attanayake, and whether that injury arose out of her employment.
Next, Ms Attanayake said that the Magistrate had not explained the apparent inconsistency between his acceptance of her evidence about the train station incident, the related finding that Mr Patel was an unimpressive witness, and his rejection of all of her other allegations of sexual harassment by Mr Patel. The Magistrate gave reasons for his findings of fact that were more detailed than was strictly required. It appears from those reasons that he found the evidence of both Ms Attanayake and Mr Patel to be unreliable, and that he resolved conflicts between their evidence by reference to the evidence of other witnesses. In relation to the train station incident, the partial corroboration by Ms Viyannalage was critical.[52] However, both Ms Viyannalage and Ms Le denied seeing or hearing any of the harassment that was alleged to have taken place at the workplace. The Magistrate preferred their denials to Ms Attanayake’s evidence.[53]
[52]Reasons, [161(i)].
[53]Reasons, [162]
Ms Attanayake’s counsel also made detailed submissions to the effect that it was not open to the Magistrate to take an adverse view of Ms Attanayake’s credit. In view of the other conclusions I have reached, it is not necessary to address those submissions.
The third ground of complaint was that it was not clear from the reasons whether the Magistrate found that there was a second train station incident in June 2015, and, if so, the relevance of this second incident to the onset of Ms Attanayake’s alleged psychiatric injury. The Magistrate referred once in his reasons to the possibility that Mr Patel had approached Ms Attanayake at a train station on a second occasion, in June 2015.[54] Immediately afterwards, he found that the first train station incident was not work-related. It followed from that finding that any second train station incident also was not work-related and — on the facts as found by the Magistrate — was not relevant to the claimed injury. The Magistrate did not apply the correct test in relation to the first train station incident, but his reasons sufficiently explained his conclusion.
[54]Reasons, [161(i)].
The fourth and fifth grounds of complaint were to the effect that the Magistrate did not explain his findings that the train station incident and other work stressors that he found to have occurred did not give rise to mental injury. The short answer to these grounds is that the Magistrate did explain his conclusions,[55] but erred by not considering all of the medical evidence in reaching those conclusions.
[55]Reasons, [172] (train station incident), [175] (other work stressors).
Sixth, Ms Attanayake complains that the Magistrate did not explain why he did not accept parts of her evidence, by saying whether he considered she was unintentionally unreliable, deliberately untruthful, or suffered from a psychotic condition. As I have said, it is clear enough from the reasons that the Magistrate resolved conflicts between Ms Attanayake’s evidence and the evidence of Mr Patel by reference to the evidence of other witnesses. In the case of the ‘serious and disturbing’ allegation of sexual conduct against Mr Nagaratnam, the Magistrate resolved the conflict between Ms Attanayake’s evidence and Mr Nagaratnam’s denial by reference to the absence of any complaint about this incident until December 2017. There was ample explanation in the Magistrate’s reasons of why, overall, he took the view that Ms Attanayake’s complaints were in large measure unreliable.
The final two grounds concern the lack of any explanation of whether the Magistrate concluded that Ms Attanayake suffered from any psychiatric condition and any incapacity for work. The Magistrate dismissed the claim on other grounds, without determining the issues of injury, causation and incapacity. As I have found, his Honour should have made findings on at least the first and second of those issues. However, he did not have to provide reasons for findings that he did not make.
Disposition
The appeal is allowed. It was common ground at the hearing that, if I were to allow the appeal, I should set aside the order of the Magistrates’ Court made on 22 August 2018 in case number G11968770, and remit the case to the Magistrates’ Court for rehearing by a different magistrate. I will make orders to that effect.
I will hear the parties on the question of costs.
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