AV v AW
[2020] NSWWCCPD 9
•24 February 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | AV v AW [2020] NSWWCCPD 9 |
| APPELLANT: | AV |
| RESPONDENT: | AW |
| INSURER: | StateCover Mutual Ltd |
| FILE NUMBER: | A1-2097/19 A2-2097/19 |
| ARBITRATOR: | Mr J Harris |
| DATE OF ARBITRATOR’S DECISION: | 30 August 2019 |
| DATE OF APPEAL DECISION: | 24 February 2020 |
| SUBJECT MATTER OF DECISION: | Section 4(b)(ii) of the Workers Compensation Act 1987 and the test of ‘main contributing factor’ |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| HEARING: | On the papers |
| REPRESENTATION: | A1-2097/19 |
| Appellant: | |
| Ms N Tancred, solicitor Gillis Delaney Lawyers | |
| Respondent: | |
| Mr D Saul, counsel Bartier Perry | |
| A2-2097/19 | |
| Appellant: | |
| Respondent: Ms N Tancred, solicitor Gillis Delaney Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The appeals in matters nos. A1-2097/19 and A2-2097/19 are both dismissed. 2. The Arbitrator’s orders dated 30 August 2019 are confirmed. |
INTRODUCTION
This matter involves a claim by AV (the worker) for weekly compensation and medical expenses against AW (the employer) in respect of a psychological injury. Her last day at work was 26 July 2018. The matter proceeded on the basis that the worker alleged injury simpliciter (s 4(a) of the Workers Compensation Act 1987 (the 1987 Act) and the ‘disease’ provisions (s 4(b)(ii) of the 1987 Act) in the alternative. The employer disputed both injury allegations.
The employer also disputed, to the extent to which s 4(a) was relied on, that s 9A of the 1987 Act (‘substantial contributing factor’) was satisfied. Whether the worker had residual capacity to earn was also in issue.[1]
[1] AV v AW [2019] NSWWCC 286 (Reasons), [2]–[3], [9].
The matter proceeded to arbitration hearing on 26 July 2019 and 6 August 2019. Mr Morgan appeared for the worker and Mr Saul for the employer. No oral evidence was called. Counsel addressed and the Arbitrator reserved his decision. The Commission issued a Certificate of Determination dated 30 August 2019, accompanied by 40 pages of reasons. The Arbitrator found that the worker had “suffered an exacerbation and aggravation of a pre-existing psychological condition from work incidents in the period from April to 26 July 2018”. The Arbitrator was “not satisfied that the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the psychological condition”. The Arbitrator entered an award in the employer’s favour.
The worker, in matter no. A1-2097/19, appeals against the award in the employer’s favour. In matter no. A2-2097/19 the employer, in a document described as a “cross-appeal/notice of contention”, appeals against the formal finding that the worker “suffered an exacerbation and aggravation of a pre-existing psychological condition from work incidents in the period from April to 26 July 2018”.[2] The employer, in the preamble to its appeal, indicates that its appeal is to “protect its position”, and is not to be pressed if the worker’s appeal is dismissed. The employer indicates its submissions on its appeal are included in its Notice of Opposition in matter A1-2097/19.[3] References in the reasons on this appeal to documents in the Notice of Appeal, Notice of Opposition and submissions are to documents in matter no. A1-2097/19 unless the contrary is indicated.
[2] Application to Appeal, A2-2097/19 (A2 appeal), Pt B, [2.7]–[2.9], p 6.
[3] A2 appeal, Preamble, p 1.
Additionally, the employer’s solicitors advised the worker’s solicitors that, in the employer’s view, the worker’s submissions in reply numbered [6] and [8] misstated the Arbitrator’s findings and were not available to be made. The employer invited the worker to withdraw those submissions. The employer indicated that if the submissions were not withdrawn it would request its email be referred to the Presidential member determining the appeal.[4] In a letter dated 29 November 2019, the worker’s solicitors sought to clarify those submissions, which were part of the submissions in reply. The worker’s solicitors said they were content for the initial email and the response to be forwarded to the member hearing the appeal.[5] That exchange has been brought to my attention and considered.
[4] Email from Bartier Perry to Gillis Delaney, 26/11/19.
[5] Letter from Gillis Delaney to Bartier Perry, 29/11/19.
BACKGROUND
The material lodged by the parties in the proceedings before the Arbitrator exceeded 1,500 pages. This summary of the background is not intended to be comprehensive, but to provide some short background material to assist in a general understanding of the issues and the Arbitrator’s reasons dealing with the matter.
The worker’s employment background was, over many years, connected with the field of workers compensation. She worked in clerical duties, case management and occupational health and safety. She worked at different times for insurers, an insurance broker and a private company. She commenced with the employer in November 2013.[6] She there worked full-time as an insurance claims and policy officer.[7] The worker had some difficulties over the years with mental health issues that were not work-related.[8]
[6] Worker’s statement 29/3/19, [3]–[6], Application to Resolve a Dispute (ARD), p 1307.
[7] Factual report, Reply, pp 18–19.
[8] See for example worker’s statement, [8], ARD p 1307, Dr 2’s report 24/9/07, ARD pp 204–205, Dr 3’s report 4/9/07, ARD p 206, Dr 4’s report 2/7/12 with attachments, ARD pp 150–166, Dr 1’s report 30/5/18, ARD p 20, Dr 5’s report 27/12/18, ARD p 349, Dr 6’s clinical notes, ARD pp 106–108, 110.
The worker and her husband, after difficulties conceiving, had a child (with the assistance of IVF) in December 2016.[9] The worker was off work on maternity leave from late 2016 until 4 October 2017, when she resumed with the employer working three days per week. In about late 2017 the worker fell pregnant naturally. Unfortunately, there was a miscarriage and the worker underwent a curettage procedure at a Local Hospital on 8 March 2018.[10] Circumstances surrounding this procedure were distressing.[11] The worker came under the care of Dr 1, a psychiatrist, who diagnosed “symptoms of PTSD following these events”.[12]
[9] Dr 5’s report 27/12/18, ARD p 349, the Local Hospital clinical notes, AALD 24/5/19, p 81.
[10] The Local Hospital clinical notes, AALD 24/5/19, p 19.
[11] Dr 1’s report 30/5/18, ARD p 20.
[12] Dr 1’s report 30/5/18, ARD p 20.
The worker resumed duties with the employer from about 2 April 2018, working three days per week.[13] These hours were increased to four days (32 hours) per week, to commence from 17 July 2018.[14] The group in which she worked dealt with human resources, health and safety, training and insurance claims. The group sat in an open plan setting.[15] The worker “wanted to be seated away from other staff who may have had conversations about pregnancy … pregnant women might come into the office … the sight of them and references to pregnancy would set off triggers in her with the development of panic and flashbacks”.[16] Dr 1 suggested to the employer that the worker should be seated away from the HR department, as being “exposed to conversations regarding maternity leave … act to cause intense distress”.[17] The worker’s work station was not moved.
[13] Factual report, Reply, p 22.
[14] Letter from employer to worker 26/6/18, ARD pp 1207–1209.
[15] Factual report, Reply, p 15.
[16] Dr 5’s report 27/12/18, ARD p 349.
[17] Dr 1’s report 9/7/18, Reply p 109.
The worker described being “upset emotionally” on 26 July 2018 at work, she was told at work that she needed to get help. She ceased work that day and has not resumed.[18] She was admitted to a Private Hospital as an inpatient from 31 July 2018 to 17 August 2018,[19] and again from 18 September 2018 to 12 October 2018.[20]
[18] Dr 5’s report 27/12/18, ARD p 347.
[19] Dr 7’s report 16/8/18, ARD p 240.
[20] Dr 8’s report 12/10/18, ARD p 354.
The employer’s insurer voluntarily paid compensation benefits until 22 February 2019. It disputed liability in a s 78 notice dated 8 February 2019. It denied injury, on the basis of both the ‘disease’ provisions and otherwise. It disputed ‘substantial contributing factor’. It relied, in part, on a report of Dr 9, a psychiatrist qualified by the insurer.[21]
[21] Dr 9’s report 14 December 2018, ARD, pp 33–60.
THE ARBITRATOR’S REASONS
The Arbitrator summarised the worker’s statement.[22] He summarised other documents relating to the worker’s return to work, particularly from early April 2018 following the miscarriage. He referred to the request that her desk be moved, which was not done. He referred to the events on 26 July 2018, in which the worker said that another worker had screamed at her that she needed help, and the worker’s manager, W1, said he could not have her in the office “in this state”. The worker described a “panic attack” with the yelling.[23] The Arbitrator summarised the material dealing with the worker’s pre-existing psychological condition.[24]
[22] Reasons, [12]–[25].
[23] Reasons, [26]–[34].
[24] Reasons, [35]–[51].
The Arbitrator described the medical evidence following the worker’s cessation of duties on 26 July 2018. Dr 6 (the worker’s general practitioner) referred to symptoms being “frequently triggered at work by pregnant staff”. When asked to comment on Dr 9’s report, Dr 6 said she found it “difficult to comment on the role work has had in exacerbating/aggravating [the worker’s] mental health condition”.[25] The Arbitrator referred to material from Ms X, a treating psychologist. Ms X described the presenting condition as “PTSD following multiple traumas gynecologically related”. She referred to the failure by the employer to accommodate the request for “modifications” at work, and “ongoing exposure to PTSD triggers”.[26] The Arbitrator referred to Dr 1’s opinion, that the conditions of employment had exacerbated the severity of the psychological conditions.[27] The Arbitrator said the material from the Private Hospital referred to several incidents where the worker felt “triggered” by seeing children around the hospital.[28] The Arbitrator summarised the opinions of Dr 5 and Dr 9, qualified in the worker’s case and the employer’s case respectively.[29] He summarised the statements of the various witnesses interviewed as part of the insurer’s factual investigation.[30]
[25] Reasons, [52]–[55].
[26] Reasons, [57]–[60].
[27] Reasons, [61].
[28] Reasons, [67].
[29] Reasons, [69]–[81].
[30] Reasons, [82]–[141].
The Arbitrator summarised the parties’ submissions. Some of the points he noted from the worker’s submissions were:
(a) There were at least two requests that the worker’s work-station be moved, which were not complied with.
(b) After obtaining a factual report, the employer paid compensation for nine months.
(c) The critical question was whether there was an aggravation of a pre-existing condition occurring from April to 26 July 2018. The worker was coping with her work, and the failure to move her precipitated an aggravation. The employer takes the worker as it finds her.
(d) Dr 6’s opinion should be read together with her medical certificates.
(e) The worker was a vulnerable person; reference was made to Attorney General’s Department v K.[31]
(f) Dr 9’s opinion that the worker suddenly went off work on 26 July 2018, due to the effects of the March 2018 trauma, is inconsistent with the opinion of Dr 1.
(g) The history relied on by Dr 5 was consistent with the evidence in the worker’s case.
(h) There was evidence in the notes of Ms X supportive of the worker’s case on causation.
(i) The Court of Appeal has previously dealt with the validity of Dr 9’s psychometric testing. This was a reference to Brighten v Traino. Dr 9’s opinion was “infected” by his reliance on the psychometric testing.[32]
(j) W1’s evidence about the worker’s functioning was inconsistent with W2, on 28 June 2018, signing off on an increase in the worker’s hours from three days to four days. The evidence of the employer’s lay witnesses was “somewhat contradictory”. There were variations in how often they perceived the worker to have been exposed to pregnancy and discussions about pregnancy. The circumstances that led to the worker ceasing duties involved an increase in her hours, the request for repositioning within the office which was refused, and a confrontation that saw the worker leave work. This was consistent with an exacerbation. The only other explanation was a “wildly dysfunctional personality”.[33]
[31] [2010] NSWWCCPD 76; 8 DDCR 120 (A-G v K).
[32] [2019] NSWCA 168 (Brighten), (per Basten JA, Gleeson and Brereton JJA agreeing), [75]–[79].
[33] Reasons, [142], [144].
The points noted by the Arbitrator from the employer’s submissions included the following:
(a) The worker had a long history of psychological disturbance. There was no further injury or exacerbation that could be pointed to. The worker was on part-time duties when she returned and she “couldn’t cope with anything”. The lay evidence was consistent with this.
(b) The worker had no medical opinion on ‘substantial contributing factor’ or ‘main contributing factor’. ‘Main contributing factor’ is a slightly tighter test. The worker required medical evidence to establish this. Reference was made to Cathay Pacific Airways Pty Ltd v Ralph.[34] Dr 6’s opinion on causation in her certificates was not entitled to weight, as the doctor said that it was difficult to comment on whether there was a work aggravation. Dr 6 agreed with Dr 9 that there was an underlying personality dysfunction. Apart from Dr 1, no other evidence “comes close to dealing with causation”.
(c) Things that triggered the condition could “happen anywhere”, they were not confined to work. There was no exacerbation of the disease, it was already in place and the symptoms waxed and waned.[35] ‘Trigger’ was not a term used in the workers compensation legislation.
[34] [2019] NSWWCCPD 21 (Ralph).
[35] Reasons, [143].
The Arbitrator rejected, as inconsistent with the leave records, the employer’s submission that the worker had a lot of time off work following her return in April 2018.[36] He accepted the evidence of W3, that the worker was different following the miscarriage, but still busy with work.[37] The Arbitrator said the worker’s “precarious emotional state” was demonstrated by the evidence of her co-workers and the emails she sent on her return to work. Dr 1 described irritability, mistrust and regular disassociation.[38] W1’s evidence was that he did not know what to do with the worker.[39] The Arbitrator accepted that the worker was “struggling” though this period. He described some of the worker’s inability to cope as consistent with triggers at work aggravating her psychological condition.[40]
[36] Reasons, [153].
[37] Reasons, [154]–[155].
[38] Reasons, [156]–[158].
[39] Reasons, [162].
[40] Reasons, [163]–[164].
The Arbitrator referred to the evidence about “triggers” at work, exposure of the worker to pregnant women. He described the variations in the evidence about this as “marginal”. The worker was only working three days per week for much of the period and gave no specific evidence of the number of pregnant women attending the office. The Arbitrator described the actual number of such visits as “extremely limited”. He accepted there were discussions concerning maternity leave; he did not accept the worker’s history to Dr 6 that there was “constant exposure to maternity leave matters”.[41]
[41] Reasons, [171]–[177].
The Arbitrator accepted that the worker wished to be relocated and that requests were made by Dr 1. W1 did not consider the relocation to be appropriate, but was delaying communication of the decision. The Arbitrator said the worker’s perception was that her request would not be granted, and this was a matter she discussed with W4 on 26 July 2018 when in a distressed state.[42]
[42] Reasons, [179]–[185].
The Arbitrator dealt with the events of 26 July 2018. He described the worker’s version of events that day as a “distortion”, at a time when she was extremely ill and about to be admitted to hospital. The Arbitrator accepted there were discussions about maternity leave about two to three times per week. He did not accept that W5 started yelling at the worker on 26 July 2018. He preferred the evidence of W5 and W4, that the worker was severely upset and W5 sought to comfort her. The Arbitrator accepted that W1 told the worker that “she cannot be in the office, she was sick”. The worker then left, saw Dr 6 and Dr 1 shortly after, and was admitted to a Private Hospital on 31 July 2018.[43]
[43] Reasons, [191]–[196].
The Arbitrator considered the medical evidence relevant to ‘injury’. Given Dr 6’s comment that “it is difficult to comment on the role work has had”, the Arbitrator said it was difficult to give her opinion much weight. He gave “minimal weight” to a certificate from a further general practitioner dated 26 July 2019, which he described as “otherwise unexplained”.[44] The Arbitrator said that he gave “particular weight to Dr 1’s opinion that ‘the conditions of employment exacerbated the severity of [the] psychological conditions’”. Dr 1 was a treating specialist and was involved in the recommendation that the worker’s work-station be moved.[45] The Arbitrator referred to the report of Ms X, a treating psychologist. He said it did not “directly articulate an opinion on injury”, but her material was consistent with Dr 1’s opinion and supported the Arbitrator’s acceptance of Dr 1.[46] He referred to the report of Dr 5, which he said was “supportive of the [worker’s] case that incidents at work, were ‘triggers to the PTSD’”.[47]
[44] Reasons, [199]–[200].
[45] Reasons, [202].
[46] Reasons, [203]–[204].
[47] Reasons, [205].
The Arbitrator dealt with the views of Dr 9 at some length. He said that Dr 9’s opinion was based on a single examination, and the doctor did not address the specific allegations of “particular incidents that were said to have aggravated” the condition. The Arbitrator referred to Dr 9’s “questionable testing methods” in forming a view that the worker was malingering. He referred to the decision in Brighten and expressed concern that Dr 9’s tests were “placed before the Commission on the basis that they supposedly have some probative value as being scientifically valid”. The Arbitrator rejected Dr 9’s opinion, save for its conclusion that the worker exhibited “personality dysfunction with narcissistic and borderline personality traits”, that part being supported by Dr 6.[48]
[48] Reasons, [206]–[217].
The Arbitrator considered whether the alleged injury was appropriately characterised as a ‘disease’ or an injury simpliciter. He said that to be an ‘injury’ within the meaning of s 4(a) of the 1987 Act it was necessary that there have been a physiological effect on the worker, citing NSW Police Force v Gurnhill.[49] He said the evidence and the worker’s submissions did not articulate such a change, and he was not satisfied the worker had suffered an injury within the meaning of s 4(a) of the 1987 Act. He said it followed that s 9A of the 1987 Act was “irrelevant and not considered”.[50]
[49] [2014] NSWWCCPD 12.
[50] Reasons, [218]–[224].
The Arbitrator then turned to consider whether injury was established within the meaning of s 4(b)(ii) of the 1987 Act. He accepted Dr 6’s opinion (in which she accepted part of Dr 9’s view) that the worker had an “underlying narcissistic personality complex”. The Arbitrator quoted the summation of principle in A-G v K dealing with proof of psychological injury.[51] The Arbitrator said that the word ‘trigger’ was “used in the evidence to describe the event or incident that resulted in the further symptoms”. He said that such further symptoms were “the relevant exacerbation which establishes that part of the meaning of injury in s 4(b)(ii)”.[52] He concluded:
“I am satisfied on the balance of probabilities, that the [worker’s] psychological condition was exacerbated and aggravated by the incidents in the workplace, specifically when she saw a small number of pregnant workers, heard discussions about maternity leave and her request to be relocated in the office was not accepted.”[53]
[51] Reasons, [226]–[228].
[52] Reasons, [230].
[53] Reasons, [234].
The Arbitrator then dealt with whether the requirement of s 4(b)(ii), that the relevant employment be the main contributing factor to the exacerbation and aggravation, was met. He referred to the decision of the Court of Appeal in Murray v Shillingsworth,[54] in which the Court dealt with s 4(b)(ii) in its form prior to commencement of the Workers Compensation Legislation Amendment Act 2012 (the 2012 amendments), when s 9A (‘substantial contributing factor’) had application to ‘disease’ cases. The Court (Einstein J, Hodgson and Santow JJA agreeing) said:
“63. These submissions are misconceived. They fail to recognise that in the circumstance concerning an integer dealt with by s 4(b)(ii) [such as an aggravation of a disease] the only compensation is for the effect of the aggravation and not for the effect of the original non - aggravated disease.
64. His Honour approached the question of construction upon the basis that the case was put as an acceleration or aggravation or deterioration of a pre-existing atherosclerotic condition in which the substantial contributing factor had to relate to the acceleration or aggravation, and not to the underlying condition. There was no error in this approach. The fact that the work-caused dehydration was sufficient to ‘tip the balance’ and was on the evidence, found to satisfy the requirement that it be shown that the employment concerned was a substantial contributing factor to the injury.
65. The matter was one where s 9A left a broad area within which the personal judgment of the trial judge as to what was ‘substantial’ was determinative. The issue being one of fact, there were clearly facts proved which formed a reasonable basis for the definite conclusion affirmatively drawn [and of the truth of which the trial judge could reasonably be satisfied] justifying the finding that the employment concerned was a substantial contributing factor to the injury.”[55] (emphasis in original)
[54] [2006] NSWCA 367; 4 DDCR 313 (Murray).
[55] Murray, [63]–[65].
Paragraph [65] of Murray, quoted immediately above, was not quoted in the reasons. It is set out above for convenience as it is referred to later in these reasons on appeal.
The Arbitrator also quoted the following passage from Reed v Commissioner of Police:
“As suggested in Cant v Catholic Schools Office [2000] NSWCC 37; (2000) 20 NSWCCR 88 the provision requires that the relevant employment be a substantial contributing factor to the injury. The injury is the assumed minimal aggravation, acceleration, exacerbation or deterioration of the emphysema. To that injury, ex hypothesi, the only contributing factor is the employment exposure. If that be the only factor it is necessarily substantial in that context.”[56]
[56] [2001] NSWCC 182; 22 NSWCCR 385 (Reed), [129].
Burke J in Reed (in a passage not quoted in the arbitral decision) continued:
“It therefore appears to me that in the context of an injury falling within s 4(b)(ii) WCA the introduction of s 9A makes no difference - substantial or otherwise. It would therefore be fruitless to consider allowing any amendment by the respondent to rely upon that provision.”[57]
[57] Reed, [130].
The Arbitrator repeated a passage from an earlier decision, in which he had said:
“If one was looking at whether the employment had to be the main contributing factor to the overall pathology then the concluding words of s 4(b)(ii) would be to the overall pathology and or the disease and not to the aggravation, acceleration, exacerbation or deterioration of the disease.”[58]
[58] Mitic v Rail Corporation NSW (8/4/14, unreported) referred to in Reasons, [236]–[237].
The Arbitrator described the test in s 4(b)(ii) as “directed to the causes of the ‘aggravation, acceleration, exacerbation or deterioration’ rather than the cause of the disease”. He referred to three Presidential decisions dealing with the scope of the requirement to establish ‘the main contributing factor’ in cases involving s 4(b)(ii).[59] He noted these “consistently hold that, in respect of injury as defined in s 4(b)(ii), the employment must be the main contributing factor to the ‘aggravation, acceleration, exacerbation or deterioration of the disease’”.[60] The Arbitrator continued:
“241. I observe that if I was only required to examine the work causes of any aggravation etc to the disease then the [worker] would always be successful as that would not only satisfy the meaning of ‘the main’ but would satisfy the only contribution to the aggravation etc of the disease process. If that was the correct process then the words ‘the main contributing factor’ would be otiose and the sub-section operate no differently from its pre-amendment interpretation.
242. It is my view that in a disease case such as the present extending over a period of time, I am required to analyse whether the work causes of the aggravation etc to the disease establish that they were ‘the main contributing factor’ when there are concurrent non-work causes which also aggravated etc the disease process.”[61]
[59] State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71 (El-Achi), [92], [108]; Mannie v Bauer Media Pty Ltd [2016] NSWWCCPD 47, [80]–[83]; Lilyvale Hotel Pty Limited v Bradley [2016] NSWWCCPD 62 (Bradley), [33].
[60] Reasons, [240].
[61] Reasons, [241]–[242].
The Arbitrator said the deemed date of injury for the purposes of an injury pursuant to s 4(b)(ii) in the circumstances was 26 July 2018, when the worker became incapacitated. He concluded he should examine “relevant causes of the aggravation” up to that date.[62]
[62] Reasons, [243].
The Arbitrator referred to a decision of the President, Keating DCJ in E-Dry Pty Ltd v Ker,[63] in which his Honour dealt with the availability of an inference that commencing to run placed greater strain on a worker’s knee than if he had continued walking. Holding the inference to be soundly based, his Honour said that an inference may be drawn based on “common knowledge and ordinary human experience”, referring to Nicolia v Commissioner for Railways (NSW).[64]
[63] [2017] NSWWCCPD 26 (Ker).
[64] (1971) 45 ALJR 465 (Nicolia) (per Barwick CJ), 466.
The Arbitrator said it was common human experience that pregnant ladies and babies are seen. The worker had a young child and there was every reason to believe this “would expose her to similar triggers”. The Arbitrator accepted the worker’s psychological condition was triggered by exposure to pregnant ladies at work and discussions about maternity leave. He accepted the employer’s submission that “similar triggers to the [worker’s] psychological condition occurred outside the workplace”.[65] He referred to instances where the worker experienced such triggers outside the working environment.[66] He referred to an instance where the worker was emotional and teary, and discussed her domestic relationship with W4. The Arbitrator said that this supported another area exacerbating the worker’s condition, distress from her personal relationship.[67] The Arbitrator found the worker’s condition was exacerbated by exposure to pregnancy, babies and related discussions, both within the workplace and outside it. W5 said the worker had panic attacks at home.[68]
[65] Reasons, [247]–[248].
[66] Reasons, [249]–[251].
[67] Reasons, [255], [257].
[68] Reasons, [258]–[259].
The Arbitrator said that the worker’s submissions did not compare exacerbation by work and non-work triggers. There was no relevant medical opinion dealing with whether employment was the main contributing factor to the exacerbation or aggravation. He rejected a submission that there must be medical evidence dealing with the s 4(b)(ii) test, although said it would have assisted.[69] There may be factual circumstances where an inference could be appropriately drawn that work causes were the main contributing factor.[70]
[69] Reasons, [260]–[263].
[70] Reasons, [264]–[265].
The Arbitrator accepted a submission by the employer that “these triggers can happen anywhere”, they were not confined to the workplace.[71] Evidence of triggering events outside the workplace was set out in conversations with co-workers and comments by co-workers about ordinary experience. The Arbitrator found that “non-work exposure also caused exacerbation in the [worker’s] psychological condition”. He agreed with W1 that the worker “would have been exposed to issues of pregnancies and babies outside the workplace”. He said the extent of this was “unclear but consistent with ordinary human experience”.[72]
[71] Reasons, [267].
[72] Reasons, [270]–[272].
The Arbitrator concluded:
“273. For these reasons I am not satisfied on the balance of probabilities that the employment was the ‘main contributing factor’ to the aggravation and exacerbation of the psychological condition.
274. The [worker] raised, as an admission, that she had been paid compensation for nine months including after the period when the [employer] obtained a factual report. I don’t give this admission particular weight having analysed the evidence including the medical opinions before me: see Department of Education and Training v Sinclair[73]. Any slight admission that might be inferred from such payment would not alter my ultimate conclusion that the [worker] has not satisfied the onus of proof in relation to the issue of main contributing factor.”[74]
[73] [2005] NSWCA 465, [90]–[93], [99] and [100].
[74] Reasons, [273]–[274].
The Arbitrator dealt with residual capacity for employment briefly. He concluded that, if the worker had succeeded, she would have been entitled to weekly compensation on the basis that she had no current work capacity.[75]
[75] Reasons, [275]–[280].
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)
Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[76] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[77] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[78]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[79]
[76] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[77] (1966) 39 ALJR 505, 506.
[78] [1996] HCA 140; 140 ALR 227.
[79] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[80] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[81]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[82]
[80] [2017] NSWWCCPD 5, [67].
[81] [2001] FCA 1833, [28].
[82] Raulston, [20].
In Northern NSW Local Health Network v Heggie[83] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[84]
GROUNDS OF APPEAL
[83] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[84] Heggie, [72].
Matter No. A1-2097/19
The worker raises the following grounds of appeal:
(a) The Arbitrator erred in fact and law by not giving due weight to the medical evidence. (Ground No. 1)
(b) The Arbitrator erred in law in his approach to s 4(b)(ii) of the 1987 Act. (Ground No. 2)
(c) The Arbitrator erred in law and fact in his application of ‘common knowledge’. (Ground No. 3)
Matter No. A2-2097/19
The employer raises the following grounds of appeal:
(a) The Arbitrator erred in fact and law in finding that the worker suffered injury within the meaning of s 4(b)(ii). (Ground No. 1)
(b) The Arbitrator erred in fact and law in finding that the worker’s employment aggravated or exacerbated the worker’s already established psychological condition. (Ground No. 2)
LEGISLATION
Section 4 of the 1987 Act relevantly provides:
“4 Definition of ‘injury’
In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(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 was 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 …”.
Section 4 of the 1987 Act in its form prior to 19 June 2012 (relevant commencement of the 2012 amendments in respect of ‘disease injuries’)[85] relevantly provided:
“4 Definition of ‘injury’
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes:
(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration …”.
[85] Schedule 6, Pt 19H, cl 20 of the 1987 Act.
Section 9A of the 1987 Act provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
GROUND NO. 1
Worker’s submissions
The worker notes the Arbitrator summarised and analysed the medical evidence. The worker submits that the Arbitrator correctly dismissed Dr 9’s opinion. The worker submits there was then only one conclusion available on the expert evidence, that employment was the main contributing factor to the aggravation of disease. The worker submits there was no medical or lay evidence to support the findings that exposure outside the workplace concurrently aggravated the worker’s condition. She submits the findings on aggravation by day to day human interactions “should not have assuaged an acceptance of the [worker’s] expert evidence”.[86]
[86] Worker’s submissions, Ground 1, [1]–[5].
In her submissions in reply, the worker submits that, having found an aggravation of an underlying disease, the Arbitrator was “required to assess what benefits resulted from that injury”. The worker submits the Arbitrator “effectively found there was a concurrent non work related aggravation”. She submits that finding should not have been made. If it was made, the Arbitrator was entitled to deal with it by assessing whether any of the incapacity resulted from the concurrent aggravation. The Arbitrator should have assessed what entitlement to benefits flowed from the aggravation to which the employment was the main contributing factor. [87]
[87] Worker’s submissions in reply, [1]–[8].
The worker’s solicitors, in a letter dated 29 November 2019, seek to clarify the worker’s submissions in reply (see [5] above). They state the point they seek to make is that the Arbitrator’s finding was of aggravation from two sources, one work related and one not. They submit it was open to the Arbitrator to find “two concurrent aggravations”. They also submit that the first of the Arbitrator’s formal findings, made in the Certificate of Determination, “when read with the rest of the decision”, is a finding of compensable injury such that quantum should have been assessed.[88]
[88] Letter from Gillis Delaney to Bartier Perry dated 29 November 2019.
Employer’s submissions
The employer submits that, contrary to the worker’s submissions, there was medical evidence to support a finding of “exposure outside of the workplace that concurrently aggravated the [worker’s] psychological condition”. The discharge summary of Dr 8 referred to “several incidents where [the worker] felt ‘triggered’ by seeing children around the hospital”. Dr 6’s clinical notes (referred to by the Arbitrator) recorded the worker’s psychological state being triggered “away from work such as hearing a baby cry in the waiting room which triggered panic attacks or stress”.[89]
[89] Employer’s submissions, [19]–[20].
The employer submits there was “an abundance of lay evidence” from co-workers dealing with the worker’s “fragile emotional state outside of the workplace”. This was triggered by “exposure to pregnant women, babies; and/or conversations about pregnant women or babies and the like”. The worker “openly told these witnesses of these details and her distress”. Reference is made to the statements of W1, W6, W7, W5, W8, W3 and W4. The worker’s diary note recorded that W1 “doesn’t know what to do with me. I’m going to face pregnant people everywhere.”[90]
[90] Employer’s submissions, [21]–[22].
The employer submits the Arbitrator was entitled to take note that “many normal life interactions outside of work were also triggers”, referring to the reasons at [247] to [248]. The Arbitrator referred to Holland v Jones, in which the High Court said:
“The basic essential is that the fact is to be of a class that is so generally known as to give rise to the presumption that all persons are aware of it. This excludes from the operation of judicial notice what are not ‘general’ but ‘particular’ facts.”[91]
[91] [1917] HCA 26; 23 CLR 149 (Holland), 153.
The employer’s submissions also refer to the Arbitrator’s reference to a decision of Keating P in Ker where the President, dealing with inferences, said an inference may be drawn based on “common knowledge and ordinary human experience” (see [31] above).
The employer submits it is “obvious” that the worker would be exposed to triggers (involving pregnant women, babies and the like) outside the workplace, in any public or private venue, on the telephone, on television, on the radio, in newspapers and social media platforms. It submits the Arbitrator was entitled to take notice of these non-work triggers when dealing with ‘main contributing factor’.[92]
[92] Employer’s submissions, [23]–[26].
The employer submits the Arbitrator correctly identified that he was required to “analyse the effect of the work and non-work causes”. He concluded:
“The [employer] submitted that ‘these triggers can happen anywhere’, were not confined to the workplace and ‘the evidence shows that the [worker] was having these triggers outside the workplace.’ I agree with this submission.”
The employer submits the Arbitrator’s finding on this issue was open on the totality of the evidence, to which he “exhaustively referred”.[93]
[93] Employer’s submissions, [27]–[30].
The employer disputes the worker’s submission that, having rejected the opinion of Dr 9, there was some automatic finding of ‘main contributing factor’. It is not purely a medical question, it is a question of fact to be decided on the totality of the evidence, expert and lay. This the Arbitrator did. He preferred much of the employer’s lay evidence over the evidence of the worker. The employer refers to the nature of an appeal pursuant to s 352 of the 1998 Act (see [40] to [43] above). The employer submits no error of fact consistent with those principles is demonstrated.[94]
[94] Employer’s submissions, [31]–[35].
Consideration
For convenience, I will use the term “aggravation” where the phrase “aggravation, acceleration, exacerbation or deterioration” appears in s 4(b)(ii) of the 1987 Act. The Arbitrator’s rejection of the opinion of Dr 9, save for the limited extent to which it was adopted by Dr 6, is not the subject of dispute on this appeal.
The Arbitrator, dealing with the pre-existing psychological condition, said:
“Accordingly, the [worker] is required to establish injury within the meaning of s 4(b)(ii). As Mr Morgan accepted, the [worker] suffered from a pre-existing psychological condition. I accept the opinions [of] Dr 6 and Dr 1 that the [worker] suffered from pre-existing depression, anxiety and PTSD symptomatology. There was also, as Dr 6 accepted, a pre-existing personality dysfunction with narcissistic and borderline personality traits. In that respect I agree with Dr 6’s opinion and accept that portion of Dr 9’s opinion, that … there was an underlying narcissistic personality complex.”[95]
[95] Reasons, [226].
The Arbitrator made a finding of aggravation:
“I am satisfied on the balance of probabilities, that the [worker’s] psychological condition was exacerbated and aggravated by the incidents in the workplace, specifically when she saw a small number of pregnant workers, heard discussions about maternity leave and her request to be relocated in the office was not accepted.”[96]
[96] Reasons, [234].
The worker submits that, having found an aggravation, the Arbitrator was required to assess the benefits to which the worker was entitled. This submission depends on the proposition that, having found an aggravation, this amounted to a finding of ‘injury’. It did not. The requirement that ‘main contributing factor’ be established forms part of the definition of ‘injury’ in s 4(b)(ii). It was, on the clear words of the provision, necessary that ‘main contributing factor’ be established before there could be a finding of ‘injury’. The worker moderates this submission in the subsequent letter (see [51] above) stating that a finding of ‘injury’ is established by the finding of aggravation when read together with the balance of the reasons. This submission is inconsistent with the fact that the reasons specifically concluded that ‘main contributing factor’ was not established, this being a component of the definition of ‘injury’ pursuant to s 4(b)(ii).
The worker’s submissions raise various inter-related issues which could be better differentiated from each other. These appear to be:
(a) whether satisfaction of the test of ‘main contributing factor’ is purely a matter for expert medical evidence;
(b) whether the evidence in the current matter, expert and/or lay, is capable of supporting the Arbitrator’s finding on ‘main contributing factor’, and
(c) whether, two findings of aggravation are available in the circumstances, one in the course of employment and the other outside the course of employment. Could two concurrent findings have been made? If this course was adopted, should the Arbitrator have assessed quantum solely on the basis of that part of the aggravation that results from the aggravation in the course of employment?
The test of ‘main contributing factor’
The discussion that follows does not apply to workers who are ‘exempt’ from the application of the 2012 amendments pursuant to Sch 6, Pt 19H, cl 25 of the 1987 Act.
I have previously expressed the view that the test of ‘main contributing factor’, inserted into the definition of ‘injury’ in s 4(b) by the 2012 amendments, is more stringent than the test applicable pursuant to s 4(b) in its previous form, which was subject to s 9A of the 1987 Act.[97] There may be more than one ‘substantial contributing factor’. “Section 9A requires that the employment concerned be a substantial contributing factor to the injury. That use of the indefinite article admits of the possibility of other, and possibly non-employment-related, substantial contributing factors.”[98] (emphasis in original). On the other hand, the requirement in s 4(b) inserted by the 2012 amendments, that employment be “the main contributing factor” (emphasis added) permits the existence of only one such factor. The requirement of ‘the main contributing factor’ involves a more stringent connection with the employment than the requirement of a ‘a substantial contributing factor’ that applied to ‘disease’ injuries prior to the 2012 amendments.
[97] Flanagan v NSW Police Force [2017] NSWWCCPD 33, [80].
[98] Kelly v Secretary, Department of Family and Community Services [2014] NSWCA 102; 13 DDCR 111 (per Emmett JA), [46].
There has been criticism of the practice of using second reading speeches as an aid in the process of statutory construction.[99] The Court of Appeal in Police Association of New South Wales v State of New South Wales,[100] referring to the decision in The Queen v A2,[101] recently said of the principles governing statutory construction:
“Four basic principles must be observed:
1. The method to be applied in construing a provision commences with a consideration of the words of the provision itself, but it does not end there.
2. Consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.
3. Consideration of the context for the provision is undertaken at the first stage of the process of construction.
4. Context includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole and extends to the mischief which it may be seen that the statute is intended to remedy.”[102]
[99] See for example Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380, [12], Preston v Commissioner for Fair Trading [2011] NSWCA 40, [169]–[175].
[100] [2020] NSWCA 3 (Police Association).
[101] [2019] HCA 35.
[102] Police Association, [86].
For reasons given above, I concluded that the test of ‘main contributing factor’ is more stringent, and requires a greater causal connection, than the test of ‘substantial contributing factor’ which previously applied to ‘disease’ injuries. Section 34(1)(a) of the Interpretation Act 1987 provides that ‘extrinsic material’ such as a second reading speech (s 34(2)(f)) may be used to confirm the meaning of a provision. The construction I reached is confirmed by the second reading speech in respect of the Workers Compensation Legislation Amendment Bill, made on 19 June 2012 by the Honourable Mike Baird:
“For the scheme to be liable in the case of a disease, as opposed to an injury, the worker’s employment must be the main contributing factor in order to address cases where the workplace has only a limited connection with the disease.”[103]
[103] New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 June 2012 at 13017.
This is relevant to context and the mischief the statute was intended to remedy. It is inherent in the test described in s 4(b)(ii) that there can be more than one contributing factor, and that these may include non-employment factors.
In Awder Pty Limited t/as Peninsular Nursing Home v Kernick,[104] I expressed the view that whether ‘substantial contributing factor’, for the purposes of s 9A of the 1987 Act, was satisfied was “a question to be decided on the evidence overall, including a consideration of the matters described in section 9A(2). It is not purely a medical question.” That view was applied by Keating P in Hogno v Fairfax Regional Printers Pty Limited[105] and by Roche DP in Villar v Tubemakers of Australia Pty Ltd.[106] The test of ‘main contributing factor’, like that of ‘substantial contributing factor’, involves a broad evaluative consideration of potential competing causative factors. It should be decided on the evidence overall and is not purely a medical question.
[104] [2006] NSWWCCPD 222.
[105] [2009] NSWWCCPD 33, [92].
[106] [2009] NSWWCCPD 57; 7 DDCR 469, [99].
In El-Achi Roche DP, considering the application of the test in s 4(b)(ii) in its current form, said:
“That a doctor does not address the ultimate legal question to be decided is not fatal (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [194] to [199] and [203]). In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.” (emphasis added)
I agree with the above passage from El-Achi. The Deputy President in El-Achi also referred, in my view correctly, to the ‘main contributing factor’ test as “one of causation”.[107] This is consistent with the discussion of s 9A of the 1987 Act by the Court of Appeal in Badawi v Nexon Asia Pacific Pty Limited.[108] Their Honours referred to the “causative element” of the test in s 9A.[109] It is consistent with the discussion in State of New South Wales v Rattenbury in which Roche DP, dealing with s 4(b) after the 2012 amendments, discussed whether ‘main contributing factor’ was satisfied, by reference to whether there were competing causal factors to the relevant ‘disease’ injury.[110]
[107] El-Achi, [87].
[108] [2009] NSWCA 324, 7 DDCR 75 (Badawi).
[109] Badawi, [80].
[110] [2015] NSWWCCPD 46, [97].
In Bradley, a case involving s 4(b)(ii) in its current form, King SC ADP referred to the question posed by an Arbitrator, “whether or not … the [worker’s] work throughout his working life as a painter and decorator had been the main contributing factor to the aggravation of his shoulder disease”. The Acting Deputy President described this question as the correct one.[111]
[111] Bradley, [33].
The above discussion is consistent with the reasoning in Murray quoted at [24] above. In a case involving s 4(b)(ii), the requirement is that employment be the main contributing factor to the aggravation, not to the ‘disease’ process as a whole.
The analysis by Burke J in Reed, quoted at [26] to [27] above, deals with the application of the test of ‘substantial contributing factor’ pursuant to s 9A, relating to injury within the meaning of s 4(b)(ii) in its form prior to the 2012 amendments. The reasoning is that, if the s 4(b)(ii) injury consisted in the aggravation of a disease, and if the employment was a contributing factor to the aggravation (necessary to satisfy the definition at that time), then the employment was a substantial contributing factor to the aggravation injury. Section 9A has no work to do. This was not the approach later taken by the Court of Appeal in the circumstances in Murray. It is apparent from Murray at [65] (see [24] above) that their Honours regarded s 9A as having work to do. Since the 2012 amendments, s 9A does not (other than in the case of exempt workers) apply to ‘disease injuries’: s 9A(1).
Where the relevant aggravation involves both employment and non-employment factors, the evaluative process involves a consideration of the causative role of both. An evaluation that involved only employment factors would leave the provision with no work to do. This would be inconsistent with the context of the provision.[112] It would also be inconsistent with the plain meaning of the words. There is a general presumption against surplusage in statutes.[113]
[112] Police Association, [86].
[113] Taheri v Vitek [2014] NSWCA 209; 87 NSWLR 403, [121]; Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250, [106].
It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) 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.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.
The Arbitrator’s findings on the evidence
The worker submits there was no medical or lay evidence to support the finding that “there was exposure outside the workplace which concurrently aggravated the [worker’s] condition”.[114] The employer submits there was both medical and lay evidence that supported the finding. It submits the Arbitrator was entitled to take notice that “many normal life interactions” triggered the worker’s adverse emotional reaction. The employer submits it is obvious that exposure to “pregnant women, babies and the like” would be experienced outside the workplace. The employer submits the finding was to be decided “on the totality of the evidence”, and this is what the Arbitrator did. It submits there was no error having regard to the principles summarised in Raulston.[115]
[114] Worker’s submissions, Ground 1 [5].
[115] Employer’s submissions, [19]–[23], [25], [31], [34]–[35].
The employer refers to the discharge summary of Dr 8 from the Private Hospital dated 12 October 2018. This dealt with an admission from 18 September 2018 to 12 October 2018. It said that the worker “had several incidents where she felt ‘triggered’ by seeing children around the hospital”.[116] The hospital notes refer to the worker becoming emotionally upset when something reminded her of an event. Reminders that upset her were described as “Babies –TV, life, pic, FB, hearing baby, pram, preg, TV ads, [the local] hosp”.[117] The worker said she tried to avoid “Babies, being out, children”. The effect of these things was described as “Extreme/incapacitating”.[118]
[116] ARD, p 354.
[117] ARD, p 490.
[118] ARD, p 492.
The employer refers also to Dr 6’s notes. The note from 1 May 2018 included:
“History: was outside sobbing, came in extremely distressed, took 10 mins to settle there was a baby crying in the waiting room which triggered her panic attack and distress”.
The note from 6 June 2018 included:
“sleeping less soundly since then and anxiety escalating each day
has been triggered at work by boss being unkind and callous, co-worker asking about babies and also by insurance co asking re this”.
The note from 24 July 2018 included:
“History: review of past few weeks
Issues at work –being triggered by convos around her, boss resistant to moving her location despite 2 letters from DR [1]
has been quite manic, exercising A LOT, always n edge”.
The note from 27 July 2018 included:
“History: prolonged consultation
V distressed after altercn at work yesterday with colleague and with boss. They stated she shouldn’t be at work as her condn was affecting others in the workplace
saw Dr [1] yesterday who has recommended admission to hospital
[The worker] feeling ‘shattered’
doesn’t know what to do
triggered all the time at work by pregnant colleagues talking to HR near her desk.
feels tt work envt is ‘toxic’
feels tt she can do her work effectively if it wasn’t being constantly triggered
also feels tt hb doesn’t understand at all
long discn re possible advantages of admission to hospital – reducing stress, triggering, time out
ref letter faxed to [the Private Hospital]
spoke to admissions and they should have availability next week”.
The note from 17 October 2018 included:
“long disn re her current sx – anxiety, distress at sight or sound of young children, insomnia, nightmares”.
The note from 4 December 2018 included:
“anxiety a bit better at times, still triggered by babies”.
The note from 4 January 2019 included:
“History: anxiety and PTSD sx remain almost as bad as ever, triggered by seeing and hearing young children”.
Dr 6’s report dated 8 May 2018 referred to the miscarriage and the subsequent curettage at the Local Hospital, and continued “[the worker] is reliving this event over and over, having nightmares and is majorly triggered by babies crying”.[119]
[119] ARD, 25.
Dr 6’s referral form to the Private Hospital, dated 27 July 2018, included the history:
“Severe PTSD post miscarriage in March. Frequently triggered at work by pregnant staff. Severe panic attacks, insomnia and hypomania”.[120]
[120] ARD, p 233.
A report from Ms X, a treating psychologist, dated 28 August 2018 included a history:
“[The worker] reports not functioning, being unable to fully care for her 20 month old son (spending day time with his grandparents), being incapable of performing her RTW role at the council, and having no quality of life. She reports this is due to an increase in the severity of her symptoms after returning to her workplace where her desk exposed her to routine discussions of pregnancy, maternity leave and due dates by the HR staff.”
The report also recorded that the worker was “unable to tolerate the waiting room where a baby was present and waited outside, she did not have a panic attack.”[121]
[121] ARD, p 113.
The history recorded by Dr 5, a psychiatrist qualified on the worker’s behalf, included that the worker:
“… had letters from her treating psychiatrist regarding her desk being moved to another area in the office. She said that the situation where her desk was made her exposed to triggers which were setting off episodes of anxiety and panic in her. She said that no action had been taken regarding moving her despite a second letter.”[122]
[122] ARD, p 347.
The alleged deemed date of injury was 26 July 2018, the date from which incapacity commenced. Neither party argued that this date, if the worker succeeded, was inappropriate. The Arbitrator found that 26 July 2018 was the date of injury if injury were to be established. He considered relevant causes of the aggravation up to and including that date.[123] Many of the above references are to ‘triggers’ in a work context. Some of the above histories are consistent with such ‘triggers’ occurring outside the workplace, prior to the alleged deemed date of injury. This is particularly so in the reference in Dr 6’s report dated 8 May 2018. Some of the occasions referred to above, where the symptoms were ‘triggered’, occurred after the alleged deemed date. Logically, these occasions could not have involved contribution to the alleged aggravation if they post-dated the date of injury. I agree with the Arbitrator’s approach of considering contributions on and prior to 26 July 2018. Be that as it may, the instances that postdate 26 July 2018 exemplify the employer’s argument that events that triggered the symptoms could potentially occur in both an employment and non-employment situation.
[123] Reasons, [243].
The employer specifically refers to a number of the lay statements. W1 described suggesting to the worker on a number of occasions that she needed to seek medical assistance. W1 stated:
“From the time [the worker] returned to work in early April 2018 there was a dramatic change in her manner and behaviour. She had significant mood swings, she was unwilling to deal with people, particularly any pregnant woman.”[124]
[124] ARD, p 1,089.
W1 said that in “around May and June 2018” the worker told him that she “was already seeing a Psychiatrist and a doctor who specialised with post traumatic stress disorder”. W1 said that the worker informed him she was to attend a “curry festival in Canberra”, and when the likely presence of pregnant women at that event was raised, the worker said that she “had her escape plan developed”. Making his statement dated 27 September 2018, W1 said that “[w]e have only had about 9 employees pregnant in the last 12 months, including [the worker]”. [125]
[125] ARD, p 1,090.
The material includes an email from the worker to her solicitor dated 5 September 2018, dealing with a meeting she had with W1 on 17 July (I infer in 2018). It included an observation that W1 “doesn’t know what to do with me. I’m going to face pregnant people everywhere”.[126]
[126] ARD, p 1,192.
W5 said that it was after the worker’s return to work, following the birth of her son, that the worker was relocated to a desk outside W1’s office. She said the worker felt she had been singled out, and “hated sitting in front of [W1’s] office”.[127] She described the worker as “not the same when she returned to work after the miscarriage”. She “had significant mood changes”.[128] W5 said she was told by the worker that the worker “was having panic attacks at home and there were times when she wanted to drive into a tree on the way home”.[129] W5 said she was only aware of one instance where a pregnant woman came to their office to discuss maternity leave, between March 2018 and July 2018.[130] She said a pregnant woman came to their office on the day before 26 July 2018.[131]
[127] ARD, p 1,118.
[128] ARD, p 1,120.
[129] ARD, p 1,121.
[130] ARD, p 1,122.
[131] ARD, p 1,124.
W6, in her statement, referred to Mr Y, from StateCover, whose wife was pregnant. W6 said that the worker was “aware [Mr Y’s] wife was going to have a baby and understood he would send a photograph to her. She worked herself up saying she knew she would get upset.”[132] W7 referred to the worker being off work for “about one month following the miscarriage”. She said that, when the worker returned to work, she “did not openly speak about the miscarriage” and she was “more teary than usual”.[133] W3 described a conversation with the worker. The worker said she had been speaking to a family member on the telephone when that person said that she was pregnant. The worker said she then “had to go outside and gave out a blood curdling scream”.[134] W3 said that the worker had insomnia that was “pretty bad post her miscarriage and she was struggling to come to work”.
[132] ARD, p 1,102.
[133] ARD, pp 1,108–1,109.
[134] ARD, p 1,138–1,139.
The employer relied on a statement from W4, whose role was in human resources. She sat “directly opposite [the worker] in an open office area with just a walkway between our work areas”. She confirmed that the worker had informed some other staff “that she was not comfortable being around pregnant people”. She said that from March 2018 to 26 July 2018 there were “at least 3 pregnant women that would come into the office”. They could have come in on more than one occasion when the worker was there. Additionally, there were “phone calls about parental leave from time to time”.[135] In “the middle of 2018”, the worker had complained to W4 about having a problem overhearing conversations about parental leave or having a pregnant staff member come into the office.
[135] ARD, p 1,145.
W4 referred to a conversation with the worker on the morning of 26 July 2018 (the worker’s last day at work). W4 said the worker was “in a distressed state”, “emotional and teary”, and she sat down next to the worker. She said the worker said that on one night her husband did not sleep with her, there were “communication issues”, she was “not coping with her personal circumstances”. She said they did not discuss “work issues” at that stage. She said that when W5 arrived “10 to 15 minutes later” the worker “was so emotional that what she was saying was disjointed”. The worker left the shift early.[136]
[136] ARD, pp 1,146–1,148.
The lay statements are consistent with the worker suffering from significant problems when she resumed work following the miscarriage. The Arbitrator referred to the use of the term ‘triggers’, saying the term “was used in the evidence to describe the event or incident that resulted in the further symptoms”. He said “[t]he trigger is the relevant incident that exacerbated the [worker’s] psychological condition”.[137] This was the context in which the term was used. The lay statements are consistent with exposure to aggravating factors both in a work context, and outside the worker’s employment, after her resumption following the miscarriage. The medical evidence also is consistent with aggravating factors both at work and away from work. The Arbitrator, appropriately, referred to the worker’s observation that W1 did not know what to do with her, “I’m going to face pregnant people everywhere”.[138]
[137] Reasons, [230].
[138] Reasons, [251].
The Arbitrator described the causation issue raised by the test of ‘main contributing factor’:
“It is my view that in a disease case such as the present extending over a period of time, I am required to analyse whether the work causes of the aggravation etc to the disease establish that they were ‘the main contributing factor’ when there are concurrent non-work causes which also aggravated etc the disease process.”[139]
[139] Reasons, [242].
This description did not reveal error. As the Arbitrator correctly observed, there was no relevant medical opinion establishing that the test was satisfied.[140] He observed that “explained medical opinion directed to this issue would have assisted”. He accepted that ‘main contributing factor’ could be established in the absence of specific medical opinion dealing with the point.[141] The worker’s submissions on this ground, framed in terms of whether there was evidence to support a finding that exposure outside the workplace aggravated the worker’s condition, tends to invert the onus. The burden of establishing ‘main contributing factor’ rested on the worker, and the Arbitrator’s ultimate finding of fact was expressed appropriately in those terms:
“For these reasons I am not satisfied on the balance of probabilities that the employment was the ‘main contributing factor’ to the aggravation and exacerbation of the psychological condition.”[142]
[140] Reasons, [261].
[141] Reasons, [263]–[266].
[142] Reasons, [273].
There was evidence of exposure to triggers in non-employment circumstances, which the worker found distressing, both before and after the appropriate deemed date of injury. There was lay evidence of such encounters occurring in non-employment circumstances. There was the worker’s candid and accurate observation that she would be exposed to “pregnant people everywhere”. There was no medical evidence addressing the specific question of whether the test of ‘main contributing factor’ was satisfied. On the evidence overall, the Arbitrator’s decision that the worker had not discharged her onus of establishing ‘main contributing factor’ was properly open. It did not involve appealable error, applying Raulston and the authorities to which Raulston refers.
Ground No. 1 fails.
GROUND NO. 2
Worker’s submissions
The worker submits the “Arbitrator incorrectly found that the work was not ‘the main’ contributing factor”. The worker submits the Arbitrator focussed on “exposure to pregnancy” in general. It was clear the exacerbation “primarily occurred” through the manager’s refusal to move her, so as to minimise her exposure to triggers in the workplace. The refusal to move the worker’s desk on 26 July 2018 was a component of the aggravation. It is submitted the worker made it clear to different members of the workplace that her condition was triggered by seeing pregnant women. Reference is made to W1, W6 and W7. The worker submits the failure to move the worker’s chair suggested a lack of empathy and support that would outweigh similar triggers outside of work. On this basis the finding on ‘main contributing factor’ was “incorrect”.[143]
[143] Worker’s submissions, Ground 2, [1]–[9].
Employer’s submissions
The employer submits the worker has misstated the test; the onus was on the worker to establish ‘main contributing factor’. The Arbitrator applied the correct test in the finding that he made in the reasons at [273] (see [103] above). The employer submits ‘main contributing factor’ is “a stricter and more difficult barrier” than ‘substantial contributing factor’. The employer submits the Arbitrator conducted a detailed analysis of the various factors in determining whether ‘main contributing factor’ was satisfied. He determined that the worker had failed to discharge her onus. This was open on the evidence and there was no error of fact and law.[144]
[144] Employer’s submissions, [38]–[41].
Consideration
The employer’s submissions about the nature of the test of ‘main contributing factor’ are dealt with in the discussion on Ground No. 1 above. I have already concluded above that it was open to the Arbitrator to conclude, as he did, that the worker had not discharged her onus of establishing ‘main contributing factor’.
It was clear on the evidence overall that the worker was affected by exposure to situations involving pregnancy and babies. The Arbitrator accepted this.[145] It was clear that requests were made to W1 to move the worker’s workstation and that this did not occur. The worker’s submission here is that although exposure to ‘triggers’ could potentially occur in either a work or non-work situation, that in a work situation it was more psychologically damaging as it demonstrated a “lack of empathy or support” in the failure to move her work-station. The worker seeks to satisfy the requirement of ‘main contributing factor’ on the basis that exposure in a work situation had greater causative effect than exposure elsewhere. The worker has not referred to anywhere that this argument was raised at first instance, and I have been unable to locate a reference to such an argument in the transcript of the arbitration hearing. The worker should not be permitted to raise it for the first time on appeal.[146]
[145] Reasons, [248], [258].
[146] Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481, [7].
If I am wrong in that view, the argument is in any event without merit. The worker refers to no medical evidence in support of this proposition. Dr 6’s certificate dated 11 September 2018 arguably offers some support. It refers to the worker’s desk being surrounded by human resources staff, and the worker being “constantly exposed to discussions and presence of pregnant people”. It says the worker is unable to exit this area, and this “triggers her PTSD and anxiety”.[147]
[147] ARD, p 244.
The probative force of this evidence is significantly affected by the Arbitrator’s rejection of “the [worker’s] evidence provided to doctors such as Dr [6] that there was ‘constant exposure’ to maternity leave issues”. The Arbitrator described this as “inconsistent with the nature of the workplace and the evidence of the co-workers.”[148] The lack of correlation between the history on which the opinion on which the certificate was based, and the facts as ultimately proven, deprive the opinion in the certificate of weight.[149]
[148] Reasons, [177].
[149] Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 399 (Hancock), [82]–[83].
Additionally, Dr 6 in a report dated 25 January 2019, agreed that the worker “exhibits personality dysfunction with narcissistic and borderline personality traits”, and the doctor said she found “it difficult to comment on the role work had in exacerbating/aggravating her mental health condition”.[150] The Arbitrator specifically commented on this report. He said “it is difficult to give the certificates and other opinions provided by Dr 6 much weight when she subsequently expressed doubt in her latest opinion”.[151] This finding on the weight to be afforded to Dr 6’s opinion is not the subject of any specific challenge on this appeal. It is appropriate that the reports of a doctor be read as a whole.[152] It follows that Dr 6’s opinion on this argument is deprived of weight, as the Arbitrator concluded, having regard to the view in her latest report. The worker refers to no other medical evidence which is submitted to be supportive of this argument, and I have not found any support for it in the balance of the medical evidence. The worker’s statement dated 29 March 2019 does not refer to the triggers at work being more hurtful or damaging than triggers outside her employment, on the basis they demonstrated a lack of empathy and support.[153]
[150] ARD, p 111.
[151] Reasons, [199].
[152] Hancock, [92].
[153] ARD, pp 1,307–1,309.
The Arbitrator accepted that the worker’s psychological condition was exacerbated by the refusal to move her workstation, which was consistent with her level of distress on 26 July 2018.[154] The Arbitrator found there were probably “similar triggering events outside the workplace”. He referred to conversations with co-workers referring to non-work triggers.
[154] Reasons, [269].
The employer submits the Arbitrator was not satisfied the worker had discharged her onus of establishing employment was the ‘main contributing factor’ on the evidence, and that the worker has failed to demonstrate an error of fact or law in this regard. For the reasons given above in respect of both this ground and Ground No. 1, I accept that submission.
Ground No. 2 fails.
GROUND NO. 3
Worker’s submissions
This ground asserts the Arbitrator erred in his application of ‘common knowledge’. It refers to acceptance by the Arbitrator of a submission by the employer:
“The [worker] complains, and I accept, that her psychological condition was triggered by exposure to pregnant ladies at work and discussions about maternity leave. I agree with the [employer’s] submissions that there is every reason to conclude that similar triggers to the [worker’s] psychological condition occurred outside the workplace.”[155]
[155] Reasons, [248].
The worker submits “an inference cannot be drawn in the absence of evidence”, referring to Marshall v Prescott.[156] The worker submits an inference may more readily be drawn “in the absence of any plausible competing hypothesis”, citing Martin v Osborne.[157] The worker submits there was a “competing hypothesis” in the opinion evidence of Dr 1, to the effect that employment exacerbated the severity of the worker’s psychological condition.[158] These authorities were taken from the decision of Keating P in Ker to which the Arbitrator referred (see [31] above).
[156] [2015] NSWCA 110 (Marshall).
[157] [1936] HCA 23; 55 CLR 367 (Martin).
[158] Worker’s submissions, Ground 3, [1]–[5].
The worker’s submissions move to discussion of the weight given to the opinion of Dr 5, and his history that the worker’s desk was not moved. The worker submits the Arbitrator placed more weight on inferences made without medical evidence, when he should have given due consideration to the medical evidence.[159] The worker reiterates her reliance on the failure to move her workstation. The submission at “Ground 3 [10]” has no real association with Ground No. 3. It purports to draw on what is described as “common knowledge or experience” as supporting an assertion on how people suffering from Post Traumatic Stress Disorder behave.
[159] Worker’s submissions, [6]–[9].
The worker submits the Arbitrator’s reliance on “common experience” involved error.[160]
[160] Worker’s submissions, [10]–[12].
Employer’s submissions
The employer refers to Holland v Jones, from which it quotes the following passage dealing with ‘judicial notice’:
“The basic essential is that the fact is to be of a class that is so generally known as to give rise to the presumption that all persons are aware of it. This excludes from the operation of judicial notice what are not ‘general’ but ‘particular’ facts.”[161]
[161] Holland v Jones [1917] HCA 26; 23 CLR 149, 153.
The employer submits it is “obvious” that the worker would be exposed to triggers such as “pregnant women, babies and the like” outside the workplace. It submits the Arbitrator referred in “great detail” to the medical evidence (including clinical notes) and lay evidence. It notes that Dr 5 did not specifically address ‘main contributing factor’. It submits the worker’s submission that the inference was made in the absence of medical or lay evidence is incorrect. Factors outside work were “obviously contributing to and aggravating the [worker’s] psychological condition”.[162]
[162] Employer’s submissions, [42]–[49].
Consideration
The worker’s submission that the inference was drawn in the absence of evidence is not right. The Arbitrator described the task required of him in considering ‘main contributing factor’.[163] He referred to evidence from co-workers that there were aggravations and exacerbations from non-work causes[164] (see also the evidence summarised at [94] to [101] above). The Arbitrator referred to medical histories that were consistent with exposure to triggering factors outside the work environment.[165] He referred to the statement that W1 did not know what to do with the worker, she would face pregnant people everywhere.[166] The Arbitrator set out lay evidence of triggers outside the work context.[167] The Arbitrator said:
“I accept that the [worker’s] distressful psychological condition is exacerbated when she is exposed to pregnancy, babies and related discussions. I find that the [worker’s] psychological condition is also exacerbated when she is exposed to similar factors outside the workplace. There is no logical reason why, for example, the [worker’s] condition would only be exacerbated if she heard discussions about pregnancy or witnessed a pregnancy in the workplace and not exacerbated when she was outside the workplace.”[168]
[163] Reasons, [242]–[243].
[164] Reasons, [245].
[165] Reasons, [249]–[250].
[166] Reasons, [251]. The statement is misdescribed in the reasons at [251], it is described at [96] above.
[167] Reasons, [252]–[257], [259].
[168] Reasons, [258].
The Arbitrator also said:
“The [employer] submitted that ‘these triggers can happen anywhere’, were not confined to the workplace and ‘the evidence shows that the [worker] was having these triggers outside the workplace.’[169] I agree with this submission.”[170]
[169] Transcript of proceedings, 26 July 2019, p 66. See also Transcript of proceedings 6 August 2019, p 38.
[170] Reasons, [267].
The Arbitrator’s finding that the worker was exposed to causal aggravating factors (‘triggers’) outside the workplace, as well as in an employment context, was based on evidence, both lay and medical, which was described at length. It was not dependent on the drawing of the inference at [248]. The Arbitrator said it was “common human experience that pregnant ladies and babies are seen throughout interaction with society such as simply walking in the streets”.[171] This is true and one could readily conclude that, in modern Australian society, it is a fact “of a class that is so generally known as to give rise to the presumption that all persons are aware of it” (see [120] above). However, the result does not turn on this. After referring to “common human experience” at [248] of the reasons, the Arbitrator then said this was “supported by portions of the evidence” and discussed medical and lay evidence of exposure to triggering events outside the worker’s employment.[172] This evidence supported the conclusion the Arbitrator drew, that the worker was exposed to triggering factors both in employment and non-employment contexts. The Arbitrator’s acceptance of the proposition did not simply depend on the inference.
[171] Reasons, [247].
[172] Reasons, [249]–[259].
The worker refers to the passages from Dr 5’s report that are raised at [72] and [73] of the reasons. The worker submits that the Arbitrator did not give “due weight” to Dr 5’s evidence.[173] In Shellharbour City Council v Rigby Beazley JA (Ipp and Basten JJA agreeing) said:
“Questions of the weight of evidence are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of evidence that some error must have been involved.”[174]
[173] Worker’s submissions, Ground 3 [5].
[174] [2006] NSWCA 308, [144].
Dr 5’s report did not deal with the proposition that exposure to “pregnancy, babies and related discussions” would be likely to occur outside the workplace as well as within it. Dr 5’s report did not express any opinion on the issue of whether the test of ‘main contributing factor’ was satisfied. This was the issue on which the case ultimately turned and on which the Arbitrator concluded the worker had failed to discharge her onus. It could not be concluded that there was a failure to place sufficient weight on the opinion of Dr 5, such that some error must have been involved.
The worker refers to the Arbitrator’s statement that there was “every reason to believe that interaction through her young child would expose her to similar triggers”.[175] The worker describes this as the drawing of an inference. The drawing of this inference was not, in my view, properly available. It was not supported by evidence.
[175] Reasons, [247]
In Walshe v Prest it was said:
“The principle that the Court should not order a retrial, even where error has been demonstrated in the proceedings below, unless ‘some substantial wrong or miscarriage has been thereby occasioned’ is now to be found in Part 51, r 23 of the Supreme Court Rules. As noted in Conway v The Queen [2002] HCA 2; (2002) 209 CLR 203 at [27] and [28] the principle derives from the general law and is consistent with long-standing practice in civil cases at common law in New South Wales.”[176]
[176] [2005] NSWCA 333 (per Basten JA, Giles JA and Campbell AJA agreeing), [27].
The Arbitrator’s reasoning dealing with ‘main contributing factor’ did not depend on this inference. For reasons given above, there was lay and medical evidence on which the Arbitrator relied, supporting the occurrence of triggering factors outside the work environment and the conclusion he reached regarding onus. As this inference did not affect the result it does not give rise to appealable error.
Ground No. 3 fails.
None of the worker’s grounds has succeeded. The appeal in matter no A1-2097/19 is dismissed.
MATTER NO A2-2097/19
In this matter the employer appealed against the Arbitrator’s finding that the worker “suffered an exacerbation and aggravation of a pre-existing psychological condition from work incidents in the period from April to 26 July 2018”.[177] As the worker’s appeal in matter no A1-2097/18 has been dismissed, the “employer does not press this cross appeal/notice of contention”.[178]
[177] Employer’s submissions, [2.7].
[178] Employer’s appeal in A2-2097/19, Preamble, p 1.
The appeal in matter no A2-2097/19 is not pressed and is dismissed.
DECISION
The Arbitrator’s orders dated 30 August 2019 are confirmed.
Michael Snell
DEPUTY PRESIDENT
24 February 2020
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