Baker v Southern Metropolitan Cemeteries Trust

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WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION: Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56
APPELLANT: Wayne Thomas Baker
RESPONDENT: Southern Metropolitan Cemeteries Trust
INSURER: Employers Mutual (NSW) Ltd
FILE NUMBER: A1-6554/14
ARBITRATOR: Mr B Batchelor
DATE OF ARBITRATOR’S DECISION: 16 June 2015
DATE OF APPEAL HEARING: 18 September 2015
DATE OF APPEAL DECISION: 24 September 2015
SUBJECT MATTER OF DECISION: Whether worker suffered a psychological injury; whether Arbitrator erred in assessing claim as two separate and discrete injurious events rather than as the cumulative effect of many events over time; absence of complaint to general practitioner; application of principles in Attorney General’s Department v K [2010] NSWWCCPD 76; assessment of evidence; credit findings; whether credit findings contrary to incontrovertible facts; application of principles in Fox v Percy [2003] HCA 22; 214 CLR 118; failure to consider expert evidence from treating psychiatrist; assessment of expert evidence generally; relevance of worker’s application for re-employment with respondent after ceasing work
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING: Oral
REPRESENTATION: Appellant:

Mr L Morgan, instructed by Walkom Lawyers

Respondent: Mr H Halligan, instructed by Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:

The Arbitrator’s determination of 16 June 2015 is revoked and the matter remitted to another Arbitrator for re-determination.

INTRODUCTION

  1. This matter involves a challenge to an Arbitrator’s finding that the worker did not suffer a psychological injury in the course of or arising out of his employment. For the reasons explained below, the appeal is successful. The Arbitrator’s determination is revoked and the matter remitted to another Arbitrator for re-determination.

PROCEDURAL BACKGROUND

  1. The appellant worker, Wayne Baker, worked as a general hand with the respondent employer, Southern Metropolitan Cemeteries Trust. His main duties included mowing and general cleaning and maintenance at the respondent’s Woronora Cemetery.

  2. Mr Baker alleged that he suffered major depressive disorder due to numerous events that occurred in the course of, or arose out of, his employment with the respondent from 5 March 2012 (wrongly pleaded as 5 March 2013) to 25 September 2013. He alleged that, in this period, he was subjected to numerous instances of bullying and harassment, particularly (but not only) at the hands of a Tod Brown, a co-worker at the cemetery.

  3. The problem came to a head on 26 September 2013. On that day, a Constable Taylor from Miranda Police Station contacted Mr Baker, investigating an allegation by Mr Brown that Mr Baker had falsely reported him to the police for carrying a gun in his vehicle and of having had an association with a bikie group. Mr Baker immediately stopped work and attended his general practitioner. He has not returned to work since.

  4. In support of his case, Mr Baker relied on evidence from Dr Goran Stevans, his treating psychiatrist, and Dr Bruce Westmore, forensic psychiatrist qualified by his solicitor.

  5. The respondent’s insurer disputed liability.

  6. Relying on statements from several co-workers, which disputed some of Mr Baker’s assertions but…

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Details
Case
[2015] NSWWCCPD 56
Decision Date

CaseChat Overview and Summary

The applicant, Baker, brought proceedings against the Southern Metropolitan Cemeteries Trust in the Workers Compensation Claims Division of the Supreme Court of Western Australia. Baker sought a review of a decision made by an Arbitrator who dismissed his claim for compensation for a psychological injury sustained during his employment. The Arbitrator found that Baker had suffered two separate and discrete injurious events, rather than the cumulative effect of multiple events over time. Baker contended that the Arbitrator had erred in several respects, including assessing his claim based on two distinct incidents, not considering the cumulative effect of many events, and failing to give appropriate weight to expert evidence from his treating psychiatrist.

The primary legal issues before the court were whether the Arbitrator had correctly assessed the nature and cause of Baker's psychological injury, and whether the Arbitrator had erred in their assessment of the evidence presented. The court considered whether the Arbitrator had misapplied the principles set out in Attorney General’s Department v K, and whether the Arbitrator's findings on the creditworthiness of evidence were contrary to incontrovertible facts. The court also examined whether the Arbitrator had adequately considered the expert evidence provided by Baker's treating psychiatrist, and whether the Arbitrator had correctly applied the principles in Fox v Percy when assessing the evidence.

The court found that the Arbitrator had erred in their assessment of the evidence and the principles applied. The Arbitrator had incorrectly assessed Baker's claim as two separate and discrete injurious events, rather than the cumulative effect of many events over time. The court found that the Arbitrator had failed to give appropriate weight to the expert evidence from Baker's treating psychiatrist, and that the Arbitrator's findings on the creditworthiness of evidence were contrary to incontrovertible facts. The Arbitrator also failed to consider relevant principles from Fox v Percy. As a result, the Arbitrator's determination was revoked, and the matter was remitted to another Arbitrator for re-determination.

The court did not make any further orders beyond remitting the matter to another Arbitrator for re-determination. The Arbitrator was directed to reassess the claim taking into account the cumulative effect of the injurious events, the creditworthiness of the expert evidence from Baker's treating psychiatrist, and the principles from Fox v Percy.

Orders

Orders of the court

The Arbitrator’s determination of 16 June 2015 is revoked and the matter remitted to another Arbitrator for re-determination.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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