BGV v Waverley Council
[2024] NSWPICPD 2
•11 January 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | BGV v Waverley Council [2024] NSWPICPD 2 |
APPELLANT: | BGV |
RESPONDENT: | Waverley Council |
INSURER: | StateCover Mutual Ltd |
FILE NUMBER: | A1-W3344/22 |
PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
DATE OF APPEAL DECISION: | 11 January 2024 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 10 January 2023 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – The test of ‘main contributing factor’ to establish ‘injury’ pursuant to section 4(b)(ii) of the Workers Compensation Act 1987 – application of AV v AW [2020] NSWWCCPD 9; meaning of ‘acceleration’ in s 4(b)(ii) – application of Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626, 634; whether Watts v Rake [1960] HCA 58; 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; 114 CLR 164 can be applied to the construction of s 4(b)(ii); onus of proof of ‘injury’ pursuant to s 4(b)(ii) where multifactorial causation – Commonwealth v Muratore [1978] HCA 47; 141 CLR 296; extent to which expert medical evidence is required in assessing causation of psychological injury – discussion of Hamad v Q Catering Ltd [2017] NSWWCCPD 6; allegation of appealable error where issue not raised at first instance – application of Brambles Industries Ltd v Bell [2010] NSWCA 162; weight of medical evidence – application of Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844 |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr L Robison, counsel | |
| Coutts Lawyers & Representatives | |
| Respondent: | |
| Mr A Coombes, counsel | |
| Bartier Perry Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Mr C Burge |
DATE OF MEMBER’S DECISION: | 10 January 2023 |
INTRODUCTION AND BACKGROUND
BGV (the appellant) worked with Waverley Council (the respondent) from November 1997. She had undertaken certificate courses at TAFE, in greenkeeping, turf management and horticulture, whilst on day release from Silverwater Women's Correctional Centre where she was an inmate for a number of years. She obtained full-time work as an “Open Spaces Team Member” and worked in this role for about 22 years. At different times she performed gardening work in the nursery, outdoor duties at Waverley Cemetery and the cleaning of amenities, public spaces and work depots. She worked at Bondi Beach from 1998 and at Syd Einfeld depot from June 2019.[1]
[1] Appellant’s statement 4/5/22, [8]–[13], Application to Resolve a Dispute (ARD), pp 1–2.
In her statement the appellant describes various occasions where she was “bullied and harassed” by work colleagues. She refers to abuse based on her gender and sexual orientation. She refers to an issue regarding the availability of toilet facilities for female employees leading to a complaint to the Anti-Discrimination Board. The appellant states that “around 2000” she found a deceased woman on the grassed area of North Bondi Beach, which she found “extremely confronting”. She states she did not receive counselling or emotional support and felt “completely lost and abandoned”. The appellant states that she was not given the same opportunities for overtime as male employees. The appellant states that she performed unpaid voluntary work for “NSW Police and Corrective Services in relation to domestic violence for about two to three hours per week”. The appellant states the respondent wrote to her on 2 April 2020, saying (incorrectly) that she had not sought approval for this work. She stated that she had to constantly defend herself, she felt “bullied and harassed”. She states she was treated unfairly when the respondent investigated the allegations.[2]
[2] Appellant’s statement, [14]–[15], ARD pp 2–13.
The appellant states that she was “the subject of numerous derogatory and degrading comments about [her] appearance, gender and sexuality”. She gives various examples of such comments. She says she felt “disrespected, discriminated against and victimised as a woman throughout [her] employment”. The appellant states that, when she was scheduled to undergo surgery for cervical cancer in December 2019 she was not sufficiently comfortable to report the upcoming procedure to her superior, she feared how her “male supervisors would react”. She rescheduled the procedure to January 2020. The appellant states she was “significantly underpaid by approximately $1,000” in December 2019. She regarded this as a “deliberate act to provoke or gaslight me”. The appellant states she was suspended by way of a letter from the respondent dated 1 April 2020.[3] The appellant states that in the early hours of the following day she took an overdose of pills. She describes regaining consciousness on 3 April 2020. The appellant states she was then placed on special paid leave until 19 June 2020.[4] She states there was a second suicide attempt on 26 January 2021. The appellant has remained off work.[5]
[3] Appellant’s statement, [16]–[27], ARD pp 14–15.
[4] ARD, p 49.
[5] Appellant’s statement, [28]–[44], ARD, pp 15–17.
The appellant lodged an undated claim form.[6] The respondent’s insurer, StateCover Mutual Ltd (StateCover) issued a notice dated 11 June 2020 stating there was a reasonable excuse for a failure to commence weekly payments. StateCover, on the same date, issued a s 78 notice disputing liability.[7] StateCover issued a further notice disputing liability dated 6 July 2020.[8] It issued a notice of review decision dated 23 December 2021.[9] The effect of these documents was to deny the occurrence of ‘injury’, to assert a defence pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act), and to deny any entitlement to benefits pursuant to the workers compensation legislation.
[6] ARD, pp 50–52.
[7] ARD, pp 55–93.
[8] ARD, pp 94–109.
[9] ARD, pp 110–115.
The appellant lodged an Application to Resolve a Dispute on 26 May 2022. The matter was listed for hearing on 26 September 2022. Mr Robison appeared for the appellant and Mr Coombes appeared for the respondent. Mr Coombes sought leave to cross-examine the appellant. One proposed topic was matters relating to the death of the appellant’s late husband in 1989 (which led to the appellant’s earlier incarceration). Mr Coombes also sought to deal with factual discrepancies between the appellant’s evidence and that of other employees, regarding workplace events between late 2018 and April 2020. It was sought to challenge the appellant’s credit.[10] Mr Robison opposed the application.[11] The Member declined the application.[12] Mr Coombes tendered, over objection, bank statements produced by the appellant.[13] He tendered three letters of instruction from the appellant’s solicitors to Associate Professor Robertson.[14] He tendered the appellant’s consolidated wage records.[15]
[10] Transcript of the hearing 26/9/22 (T1), T1 2.33–3.23, 6.7–7.7.
[11] T1 3.28–6.2.
[12] T1 7.9–8.11.
[13] T1 9.25–11.2.
[14] T1 11.4–17.
[15] T1 11.27–12.9.
Mr Coombes sought to tender reasons of the Court of Criminal Appeal and of the Supreme Court in matters involving the appellant. Mr Robison opposed the tender, essentially on the basis of relevance. After hearing from counsel the Member described it as “a step too far to let judgments in as evidence”. He said submissions could be made on the appellant’s credibility.[16] Mr Coombes then addressed. The matter was stood over for further hearing on 24 November 2022. Mr Robison addressed on this second day. During the course of his submissions Mr Robison objected to the respondent’s reliance on two medicolegal reports from psychiatrists (Drs Miller and Bertucen) relying on cll 44 and 45 of the Workers Compensation Regulation 2016. After hearing from both counsel the Member declined to exclude the reports from either of these doctors.[17] The Member also directed the attention of counsel to a passage in Dr Bertucen’s report where the doctor commented on the reasonableness of “management discipline, et cetera, by the employer”. Counsel agreed that “reasonableness is a matter for the Tribunal to determine”.[18]
[16] T1 17.9–16.
[17] Transcript of hearing 24/11/22 (T2) T2 25.26–29.8.
[18] T2 33.11–34.8.
Mr Coombes made submissions in rely. The Member reserved his decision.
The Commission issued a Certificate of Determination dated 10 January 2023 accompanied by 23 pages of reasons.[19] The Member said the causes of the deterioration in the appellant’s condition were “complex and multifactorial”. The Member was not satisfied employment was the main contributing factor to the aggravation of the appellant’s underlying condition. There was an award for the respondent. The Member said that, if the appellant had succeeded on the ‘injury’ issue, the respondent’s defence under s 11A would not have succeeded. The Member “would not have found the [appellant’s] injury to have been wholly or predominantly caused by the allegedly reasonable actions of the respondent with regard to performance appraisal and/or discipline”.[20]
[19] [2023] NSWPIC 7 (the reasons).
[20] Reasons, [111], [114].
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; 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 Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), have been met. The decision is not interlocutory.
GROUNDS OF APPEAL
The appellant raises the following grounds of appeal:
(a) The Member misdirected himself regarding the test for causation of injury pursuant to s 4 of the 1987 Act. (Ground No. 1)
(b) The Member erred in finding that the evidence did not demonstrate that work was the main contributing factor to injury. (Ground No. 2)
(c) The Member failed to give adequate reasons. (Ground No. 3)
THE MEMBER’S REASONS
The Member noted the basis on which the case was brought; injury was pleaded as an aggravation of pre-existing major depressive disorder comorbid with post-traumatic stress disorder, with a deemed date of injury of 2 April 2020. Liability was disputed on the basis that employment was not the main contributing factor, to either the development of such a condition, or to the aggravation of a pre-existing condition. The respondent additionally argued any work-related injury was caused by the respondent’s reasonable actions in respect of performance appraisal and/or discipline. The Member noted the pleadings were amended without objection to include a claim for permanent impairment compensation. The Member gave short reasons for his refusal of the respondent’s application for leave to cross-examine.[21]
[21] Reasons, [1]–[3], [7]–[10].
The Member referred to the appellant’s background, referring to her late husband’s death, her conviction for manslaughter and the eight years she spent incarcerated as a consequence. The Member said both sides accepted the appellant had underlying psychological issues. He said the evidence “overwhelmingly supports a finding that there was an aggravation of a pre-existing condition … The primary initial question for determination is whether the main contributing factor to that aggravation was work-related”.[22]
[22] Reasons, [14]–[16].
The Member quoted from the reasons of Kitto J in Federal Broom Co Pty Ltd v Semlitch that dealt with the ‘exacerbation of a disease’.[23] He quoted from a passage in AV v AW[24] dealing with the test of ‘main contributing factor’ in s 4(b) of the 1987 Act. He quoted from the decision of Roche DP in Attorney-General’s Department v K[25].[26]
[23] [1964] HCA 34; 110 CLR 626, 634 (Semlitch).
[24] [2020] NSWWCCPD 9 (AV v AW), [66], [71]–[72], [76].
[25] [2010] NSWWCCPD 76 (K).
[26] Reasons, [19]–[23].
The Member said the dispute before him largely concerned the issue of ‘main contributing factor’. There were “a number of non-work-related factors” which the respondent alleged affected whether the employment, on the totality of the evidence, was “the main contributing factor to any injury”. The Member said the appellant’s statement centred on the issues at work as the cause of the deterioration of her condition. Other material revealed “a multitude of stressors at the time”.[27] The Member noted that a diary, of the alleged incidents of bullying and harassment which the appellant stated she had kept, was not put into evidence. He said the respondent’s lay evidence in reply “largely traversed” the appellant’s allegations. He said there were, however, “obviously very real issues and tensions within the workplace”.[28]
[27] Reasons, [24]–[25].
[28] Reasons, [26]–[28].
The Member summarised a number of the issues identified by the appellant, in the reasons at [29]. Briefly, these were:
(a) the respondent failed to respond to reported incidents of bullying and harassment;
(b) the appellant felt “judged and targeted” due to her appearance and past history; she believed she was treated differently because of her gender;
(c) her treatment affected her self-esteem and confidence;
(d) on 17 November 2019 she submitted her annual Skills and Performance Assessment, which honestly reflected her “frustration, anxiety and sadness” at her treatment by the respondent;
(e) when scheduled to undergo surgery for cervical cancer in December 2019 she was told she was required to inform Michael Jones, supervisor at the Syd Einfeld depot. She was uncomfortable regarding whether her privacy would be respected and how male supervisors would react, leading to her rescheduling the surgery;
(f) she was underpaid by approximately $1,000 in December 2019, which she believed was deliberate, to provoke or gaslight her, and
(g) she received a letter of suspension from the respondent on 1 April 2020.
The Member accepted the appellant’s mental health deteriorated markedly after her suspension, such that she attempted suicide. She was admitted to Wollongong Hospital, Shellharbour Hospital and then a clinic at Nowra Hospital. There was “further attempted self-harm on 26 January 2021” followed by an admission to Wollongong Hospital. The Member described the “first question” as “whether the [appellant’s] employment was the main contributing factor to the aggravation of her condition”. The respondent submitted the causes of the deterioration were “multifactorial”. The appellant had been diagnosed with cervical cancer and was going through a relationship breakdown. The appellant’s partner moved to Singapore in about September 2019. The Member said this “was clearly affecting the [appellant] from at least that time”.[29]
[29] Reasons, [30]–[34].
The Member referred to a meeting held on 10 October 2019 and quoted from the notes of the meeting which summarised the issues that were discussed. The Member quoted a number of text messages between the appellant and Ms Vicki Parry, HR partner for the respondent. These raised a mixture of work-related and private subject matter. These included the appellant saying “it does not matter, you have turned on me”. The reasons referred to the appellant completing a ‘Skills and Performance Assessment’ (SAPA) on 17 November 2019.[30] On 4 December 2019, the appellant sent a text message to Ms Parry advising she had “[j]ust been diagnosed with cervical cancer and breast cancer, so a really good woman [referring to Ms Lazzarini, a co-worker] will have my job after all”.[31]
[30] Reasons, [35]–[62].
[31] Reasons, [67].
The Member referred to an exchange of text messages between the appellant and Ms Parry, from 20 December 2019, following the appellant’s discovery that she had been underpaid $1,000. The appellant’s message used offensive language.[32]
[32] Reasons, [71].
The Member referred to the respondent’s submission, that the appellant was “understandably affected” by non-work-related traumatic events, mentioned in the notes of the general practitioner on 7 August 2019. On 22 August 2019 her personal issues were resolved and she was able to return to work. Then her partner moved away, there was relationship breakdown and a diagnosis of breast and cervical cancer in December 2019.[33]
[33] Reasons, [74].
The Member referred to the appellant’s submission that, given her background, the appellant would be a target for bullying. She had worked with the respondent for many years until the workplace incidents between 2018 and 2020. The aggravation had already been set in train before the cancer diagnosis in December 2019. Complaints had been made about the appellant by a work colleague, Mr Christiansen, in 2018 and then withdrawn.[34]
[34] Reasons, [75]–[76].
The appellant referred to her troubled relationship with Ms Lazzarini. Even if the appellant’s perception of these interactions was wrong, there were contentious real events which placed the appellant’s reaction within the realms of Chemler.[35] The Member said he accepted this submission.[36]
[35] State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 (Chemler).
[36] Reasons, [77].
The Member referred to the appellant’s submission that the diagnosis of Ms Skinner, psychologist, supported a diagnosis of work-related injury. He quoted from Ms Skinner’s report:
“[The appellant] presented with symptoms of depression and anxiety. [The appellant] reported a recent serious overdose and ongoing suicidal ideation, precipitated and perpetuated by psychosocial pressure, reporting workplace bullying and harassment and stress of a toxic workplace environment.”
The Member described the above passage as setting out the history recorded from the appellant, it did not purport to be an opinion on causation.[37] The Member referred to the report of Dr Stephens, general practitioner. The Member noted the appellant only came under Dr Stephens’ care from 2019 when her previous GP retired. The practice could not locate the handwritten records from before that time. There were previously “some challenges in the workplace”. There was an anti-discrimination “submission” [sic] in 2015, a complaint of workplace bullying since November 2018, a one month suspension for leaving work early, and a suspension for an alleged assault in June 2019, which allegation was not substantiated. There was also reference to the underpayment incident in December 2019, the suspension in April 2020 and the self-harm incident.[38] The Member quoted from Dr Stephens’ report:
“As a GP, I consider that her employment was contributing to her anxiety, depression and distress receiving the third letter of suspension was a significant contributing factor resulting in her taking the overdose in April 2020.”[39]
[37] Reasons, [78]–[80].
[38] Reasons, [81]–[85].
[39] Reasons, [86].
The Member referred to the report of Dr Lavalle, clinical psychologist, dated 5 January 2021. Dr Lavalle recorded a history of bullying in the workplace since 2018. People had implied the appellant was not a good person due to her past. Dr Lavalle considered there was a depressive disorder, the likely cause of which was the workplace situation.[40]
[40] Reasons, [87]–[88].
The Member referred to Associate Professor Robertson’s report. His history did not refer to relationship or non-work-related stressors between 2018 and 2020. He described employment as the “primary exacerbating factor” for the appellant’s “chronic depressive illness turning into more severe and protracted depression”. The doctor described the cervical cancer diagnosis as a “partial contributor” to the aggravation, not one that “overshadowed the work-related factors”. The doctor said employment was the main contributing factor to the aggravation of the appellant’s pre-existing condition.[41]
[41] Reasons, [89]–[91].
The Member referred to the report dated 12 September 2020 from Dr Miller, qualified in the respondent’s case. Dr Miller recorded a history of abuse in the appellant’s childhood and marriage. She did not record a history of recent life problems in 2019 or 2020 which could have contributed to the appellant’s current psychiatric state. The doctor was not given a history of the relationship breakdown, the cancer diagnosis, or the underlying issues that led to trauma counselling in 2019. The Member said this was significant in considering the weight to be given to Dr Miller’s report. Dr Miller considered the appellant suffered from borderline personality disorder. She considered the main contributing factor to the aggravation of this condition was the performance improvement plan. Dr Miller considered aggravation and exacerbation of the borderline personality disorder resulted from the respondent’s actions with respect to the investigation report dated 29 November 2018, the subsequent warning letter dated 10 December 2018 and all the events that followed.[42]
[42] Reasons, [92]–[94].
The Member said that Dr Bertucen, who reported for the respondent on 31 May 2022, was the only retained expert with a history of the relationship breakdown. The doctor described the breakup as a “significant competing psychosocial stressor which has contributed to her depressed mood and suicidality over the last few years.” Dr Bertucen also diagnosed borderline personality disorder/chronic complex post-traumatic stress disorder.”[43]
[43] Reasons, [95].
The Member referred to a statement from Ms Lazzarini that “described interpersonal issues” with the appellant. The Member said he did not make a finding of which version he preferred. He referred to the decision in Chemler and found there were “plainly real issues and events” between the appellant and Ms Lazzarini, the appellant’s perception of which contributed to the aggravation of her underlying condition. The Member said the lay evidence showed issues in the workplace to which the appellant had “adverse reactions”. These included interactions with her manager Mr Smith, her supervisor Mr Davis, her colleague Mr Christopher and her manager Mr Gilchrist. The Member said he had no difficulty finding that events at work were “at least a substantial contributing factor to the aggravation of the [appellant’s] condition”. The question for determination was “whether her employment was the main contributing factor to the aggravation”.[44]
[44] Reasons, [96]–[98].
The Member said the absence of the diary, in which the appellant recorded “incidents about which she complained” rendered the diary’s “existence and contents of little weight”. The Member referred to the respondent’s submission that there was no medical evidence which suggested incidents between 1998 and 2000 caused or contributed to the appellant’s condition. Drs Lavalle and Robertson primarily referred to matters in and from 2018. The Member described this submission as “well-made”.[45]
[45] Reasons, [99]–[102].
The Member said that the views of Associate Professor Robertson “must be discounted” as that doctor “did not have an accurate history of the personal matters affecting the [appellant] in 2018 and 2019”. This was important given the presence of “competing work and non-work-related matters which are said to have contributed to the aggravation”. The appellant failed to give this doctor an accurate history of her relationship breakup, involvement with the police, attendance at trauma clinics and her cancer diagnosis. Dr Miller’s opinion suffered from “the same relative disadvantage”. The Member said that Dr Bertucen had a history of these matters and their effect on the appellant.[46]
[46] Reasons, [103].
The Member rejected an argument from the appellant that her condition “might constitute a s 4(b)(i) injury”, as opposed to an aggravation pursuant to s 4(b)(ii). The prevailing expert opinion dealt with the alleged injury as “one of aggravation to a very serious and long-standing underlying condition”.[47]
[47] Reasons, [104].
The Member said that the appellant’s version of events in relation to causation was placed squarely in issue. The Member was not satisfied the appellant had discharged her onus of proving employment was the main contributing factor to the aggravation of her pre-existing condition. He said there were “very real issues at play in the workplace to which the [appellant’s] perception was a substantial contributing factor in aggravating her condition”. The Member was “not satisfied in light of the contemporaneous evidence that those work-related issues were the main contributing factor”. He said the experts, on whose opinions the appellant relied to establish causation, were not appraised of the impact of non-work-related factors within the relevant timeframe. From 2018 and 2019 the appellant’s relationship breakdown caused a deterioration in her mental health.
The Member noted the appellant relied on a Presidential decision of Mieth v Sydney Trains[48] for the proposition that the appellant’s perception of events is sufficient to ground a finding of injury. He accepted that proposition but said Mieth was distinguishable. In the current matter there was “a raft of evidence which demonstrates personal matters substantially contributed to the decline in the [appellant’s] well-being”.[49]
[48] [2022] NSWPICPD 27 (Mieth).
[49] Reasons, [105]–[108].
The Member said that, although he accepted that an erroneous perception of events can establish an injury, it was still necessary that the perception of events be the main contributing factor to the injury. The medical experts expressed their views without being appraised of external factors which affected the appellant at the relevant time. Where there were “clearly competing factors at play which contributed to the aggravation of the [appellant’s] condition”, it was important that the experts be aware of, and comment on, all of the potentially relevant factors. In the absence of such opinion evidence, the views of the doctors who supported the appellant were unpersuasive.[50]
[50] Reasons, [109].
The Member referred to the “contemporary documents”. There were text messages from the appellant, her SAPA form in 2019, her involvement in trauma counselling courses, her involvement with police and corrective services against a background of inappropriate police conduct, and alleged sexual offences in late 2019, her acknowledgment of previous mental health issues in a non-work-related context, and her diagnosis with cancer. These militated against employment being the main contributing factor. The Member described the causes as “complex and multifactorial”. The appellant carried the onus. The Member said: “[t]he fact her own experts were not appraised of extraneous but relevant matters is, in my opinion, fatal to the [appellant’s] case.” The Member was “not satisfied the [appellant’s] employment was the main contributing factor to the aggravation of her underlying condition”. There was an award in favour of the respondent.[51]
[51] Reasons, [110]–[111].
The Member briefly addressed the respondent’s defence under s 11A of the 1987 Act. He said the work-related component of the aggravation of the appellant’s condition was not wholly or predominantly caused by the respondent’s reasonable actions with regard to performance appraisal or discipline. There were a number of work-related factors that contributed to the appellant’s decline. There was a “toxic relationship” with Ms Lazzarini, and difficult interpersonal relationships with Ms Parry, Mr Jones, Mr Christopher and Mr Gilchrist, “among others”. Many of the issues did not relate to performance appraisal or discipline. The fact that the appellant last worked at the end of March 2020 did not mean the “events of that immediate time … are the whole or predominant cause of the work-related aggravation … the evidence discloses a range of issues …”. The Member said he “would not have found the [appellant’s] injury [to] have been wholly or predominantly caused by the allegedly reasonable actions of the respondent with regard to performance appraisal and/or discipline”.[52]
GROUND NO. 1 – SUBMISSIONS
The Member misdirected himself regarding the test for causation of injury pursuant to s 4 of the 1987 Act.
[52] Reasons, [113]–[114].
Appellant’s submissions
The appellant submits that, even if there is a disease condition “of considerable profundity” when a worker enters an employment, if the disease becomes even “very slightly worse”, mainly due to work, this amounts to a compensable injury. It is sufficient that the “additional pathology (in the sense of the worsening of the pathology)” (emphasis in original) is mainly contributed to by work.[53]
[53] Appellant’s submissions, [13].
The appellant refers to English decisions in Dulieu v White & Sons[54] and Owens v Liverpool Corp[55] as examples of the ‘eggshell skull’ principle. The appellant quotes the following passage from the reasons of Spigelman CJ in Chemler:
“In this area of law, as in negligence, the talem qualem principle is applicable i.e. employers take their employees as they find them. With respect to psychological injury there is an ‘eggshell psyche’ principle which, like the equivalent ‘eggshell skull’ principle, is a rule of compensation not of liability. The element of foreseeability required by the law of negligence is not the basis of the ‘eggshell skull’ principle and it can be applied by way of analogy to claims for compensation under the 1987 Act.”[56] (excluding references)
[54] [1901] 2 KB 669.
[55] [1939] 1 KB 394.
[56] Chemler, [40].
The appellant notes that the Member quoted from the decision of Roche DP in K, which referred to authorities including Chemler. The appellant submits that the main issue in K was “perception of real events at work”, not the “fundamental question of taking the worker as you find her”. The appellant submits that reading the Member’s reasons as a whole “suggests he regarded the totality of her life, and the difficulties in same as overwhelming the question of work-causation”. The appellant submits this focussed “on the totality of the present clinical picture, which is the wrong enquiry”. The appellant submits the correct enquiry was “whether the clinical picture includes, in part, even if a small part, work-causation in the form of an aggravation etc provided such aggravation was mainly caused by work”. The appellant’s submissions state that “most of the worker’s problems were historical by the time she started working for the respondent”.[57]
[57] Appellant’s submissions, [14].
The appellant quotes from the reasons at [13] to [14], where it is said that the “background circumstances were identified”. The appellant quotes from the reasons at [16], which refer to a suggestion by the appellant, at first instance, that the condition may have developed in her employment with the respondent, rather than constituting an aggravation (see [33] above). The appellant’s submissions on this appeal state that, while this was “identified as a possibility” at first instance, the appellant’s primary case fell within s 4(b)(ii) and “injury simpliciter is not in any way pressed in this appeal”.[58]
[58] Footnote [1] to para [15] of the appellant’s submissions.
The appellant refers to AV v AW[59] and submits that, if there is “multifactorial causation, a member must evaluate the causative role of each such factor”. A member cannot speculate on whether a factual circumstance is causative, factual findings should be “anchored to expert opinion”. Reference is made to Hamad v Q Catering Ltd.[60] The appellant says the Member referred to “a number of non-work-related factors” as “stressors”. The appellant submits that whether a negative or unpleasant human experience is a “stressor” in a causation sense is a medical matter, to be proved by medical evidence.[61]
[59] [2020] NSWWCCPD 9 (AV).
[60] [2017] NSWWCCPD 6 (Hamad).
[61] Appellant’s submissions, [16].
The appellant submits it was necessary that the Member consider the differences between ‘aggravation’, ‘acceleration’ and ‘deterioration’. The appellant submits ‘acceleration’ of the disease process was not considered by the Member. The appellant submits the Member did not consider differences, if subtle, between these concepts. The appellant refers to Hankinson v Darling Island Stevedoring & Lighterage Co Ltd in which Jacobs JA said:
“It is true that acceleration can in some ways be distinguished from aggravation, exacerbation or deterioration but I have difficulty in seeing how aggravation, exacerbation and deterioration can be distinguished one from another.”[62]
[62] (1966) 67 SR (NSW) 130; 2 NSWR 698 (Hankinson).
The appellant submits ‘acceleration’ cannot be grouped with the other terms. The Member failed to consider the totality of the statutory test.
Respondent’s submissions
The respondent describes the appellant’s argument in this ground as “difficult to discern” and says that “at its highest” it appears to be:
(a) the Member engaged in impermissible speculation as to whether “non-work-related factors” were psychological “stressors” (appellant’s submissions, [16]), and
(b) the Member failed to consider whether events in the workplace had caused an acceleration (as distinct from aggravation, exacerbation or deterioration) of the appellant’s pre-existing disease (appellant’s submissions, [18]).[63]
[63] Respondent’s submissions, [3].
The respondent submits the Member’s reasons at [25] to [29] did no more than summarise the evidence, including that of the appellant. The comment referring to a “multitude of stressors” did not involve the weighing of competing evidence, as would be expected of a ‘finding’. The appellant also submits the term ‘stressor’ is not solely a medical term. In a non-medical context it is simply “a matter that causes a person to feel stressed or pressured”. The respondent also notes the evidence includes instances of the appellant commenting to treating medical practitioners and other employees about non-work-related matters affecting her mental health. The respondent submits the majority of these are summarised at [33] to [74] of the reasons; the description of those matters as “stressors” is submitted to have been “apposite”. The respondent also refers to the report of Associate Professor Robertson which described the appellant’s cervical cancer as a “concurrent stressor”. The respondent refers to Dr Bertucen’s report which describes the breakup of the appellant’s relationship as a “significant competing psychosocial stressor”. The respondent submits that, if the use of the term ‘stressor’ was intended to carry some medical meaning (which is highly doubtful), it is clear that an evidentiary basis existed for the use of that term.[64]
[64] Respondent’s submissions, [4].
The respondent submits the appellant did not put her case at first instance as one based on the acceleration of her pre-existing condition. She put her ‘injury’ argument on the basis of s 4(b)(i), an argument now abandoned on appeal. Alternatively, she put her case before the Member on the basis that there was an aggravation, to which employment was the main contributing factor, of her pre-existing psychological illness. The appellant on appeal argues ‘acceleration’ is a distinct causal factor that should be considered separately. The respondent submits that a case based on ‘acceleration’ was not put by the appellant at first instance. The respondent submits the only reference to ‘acceleration’ was in the pleadings, which referred to “aggravation, acceleration or exacerbation or deterioration of a disease”. The respondent submits[65] “cases are to be decided on the evidence, not the pleadings”, referring to AP v NSW Police Force.[66] The respondent’s submissions refer to multiple examples, of the appellant’s submissions at first instance, which deal with whether there was an ‘aggravation’ or ‘exacerbation’ of the pre-existing psychological illness. These submissions do not allege that there was an ‘acceleration’ of the illness.[67]
[65] Respondent’s submissions, [7(a)].
[66] [2013] NSWWCCPD 11, [202].
[67] Respondent’s submissions, [7(b)].
The respondent submits, similarly, that the appellant’s medical case pursuant to s 4(b)(ii) did not address whether there was an ‘acceleration’ of the disease process. The respondent quotes from the opinions of Dr Stephens (the general practitioner), Dr Lavalle (the treating psychologist) and Associate Professor Robertson (the psychiatrist qualified in the appellant’s case). None of these medical witnesses approach the matter on the basis of ‘aggravation’.[68]
[68] Respondent’s submissions, [7(c)].
The respondent submits “[t]he Member was not obliged to, of his own motion, consider an ‘acceleration’ case that was not put to him and which had no evidentiary support ... that contention lacks all merit.”[69]
[69] Respondent’s submissions, [8].
Appellant’s submissions in reply
The appellant refers to the respondent’s submission that the reasons at [25] to [29] involved language consistent with summarising the evidence, as opposed to the making of a ‘finding’ (see [47] above). The appellant submits the proof of ‘main contributing factor’ required consideration of other contributing factors (in a psychiatric case, ‘stressors’) so that there could be “a meaningful apportionment exercise” of each causative factor. The appellant submits that, to the extent there were other causative factors (such as cancer), the Member erred in requiring the main contributing factor be satisfied in respect of “the condition as opposed to the aggravation or exacerbation”. (emphasis in original)[70]
[70] Appellant’s submissions in reply, [2].
GROUND NO. 1 – CONSIDERATION
The definition of ‘injury’ in s 4 of the 1987 Act relevantly includes the following:
“4 Definition of ‘injury’
(cf former s 6 (1))
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”.
Ground No. 1 raises various arguments in a somewhat haphazard fashion. I have sought to deal with them.
The alleged failure to deal with ‘acceleration’ in s 4(b)(ii)
The appellant argues that the Member erred in not specifically dealing with whether there had been an ‘acceleration’ of the appellant’s disease process (as opposed to the three other processes identified in s 4(b)(ii)). The respondent submits the appellant did not, at first instance, raise the issue of whether there had been an acceleration of the disease process which would constitute ‘injury’ within the meaning of s 4(b)(ii). The appellant does not, in its submissions in reply on appeal, suggest that it did so.
In Brambles Industries Ltd v Bell[71] McColl JA (Hodgson JA agreeing) said:
“A tribunal such as the Workers Compensation Commission, sitting as the Deputy President was, which depends heavily on the parties’ written material for expeditious disposition of proceedings, must be entitled to rely upon the matters placed before it identified in the written submissions as the issues to be determined on a review pursuant to the Workplace Injury Management Act 1998. More importantly, a failure to address a matter which was not raised before the Deputy President as an identifiable issue is not a matter in respect of which an error in point of law can be identified in this Court. As was said in Watson v Qantas Airways Limited [2009] NSWCA 322 at [13], if a matter was not raised before the Deputy President, he could not commit an error of law in failing to deal with it. A similar observation was made recently by Heydon J in Republic of Croatia v Sneddon [2010] HCA 14 at [88].”
[71] [2010] NSWCA 162 (Bell), [30].
The issue of ‘acceleration’ not having been raised at first instance, the Member did not err in failing to deal with it. This is sufficient to dispose of this argument. I will deal briefly with the substance of the argument.
The appellant refers to the discussion in Hankinson in the New South Wales Court of Appeal. In that case Jacobs JA (Holmes JA agreeing) said:
“I do not think that the word ‘acceleration’ can be separated from the other words in the definition in the manner submitted. Where the onset of the disease is accelerated there is generally a deterioration and there certainly was in the present case. Likewise there was an aggravation and an exacerbation. I see no indication from the language used in the definition that in some way the acceleration of the onset of a disease was to be regarded separately from the other words used … I have already expressed my conclusion that there does not appear to me to be any indication in the legislation that in some way the word ‘acceleration’ was to be treated differently from the other words in the definition.”[72]
[72] Hankinson, 67 SR (NSW), 138–139.
In Federal Broom Co Pty Ltd v Semlitch[73] Kitto J said of the words in the definition:
“The four substantives are not synonymous with each other, and a court should assume that it is for the differing shades of meaning of which they are susceptible that the draftsman has chosen to employ them all. They are not all given their true force by asking simply whether the disease has been made worse.”[74]
[73] [1964] HCA 34; 110 CLR 626 (Semlitch).
[74] Semlitch, 634.
In the same case Kitto J described the following as “what the definition is manifestly intending to say”:
“Where it is possible to identify as a contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc. It is in that sense that I should understand the language of the definition.”[75]
[75] Semlitch, 632.
While there may be differing shades of meaning, in the vast majority of cases satisfaction of the provision will not turn on those differing shades. The appellant submits the Member failed to consider the differences, if subtle, between “the aggravation, acceleration, exacerbation or deterioration of a disease” in the definition. The appellant’s submissions give no indication of why a consideration of these “differing shades of meaning” was necessary or appropriate in the circumstances of the case. Even if the Member’s failure to deal with this issue in the circumstances constituted error, which I do not accept, the appellant offers no basis to regard it as “a material or operative error”. In Akora Holdings Pty Ltd v Ljubicic[76] Basten JA said:
“To the extent that the Deputy President purported to identify legal error on the part of the arbitrator, that conclusion may itself be said to reveal legal error on the part of the Deputy President. However, read in context, it was not a material or operative error. If that conclusion were removed from the Deputy President’s reasons, it is sufficiently clear that he would still have set aside the decision of the arbitrator for the reasons articulated at [34]–[35].”[77]
[76] [2008] NSWCA 339 (Ljubicic).
[77] Ljubicic, [17], applied in Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45, 10 DDCR 290, [92]. See also Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22, 209 CLR 478, [6]–[7].
It follows that the arguments dealing with ‘acceleration’ would fail in any event.
Application of the test of ‘injury’ pursuant to s 4(b)(ii) of the 1987 Act
The appellant is critical of how the Member dealt with the ‘injury’ issue pursuant to s 4(b)(ii). The appellant submits the Member “regarded the totality of [the appellant’s] life and the difficulties in same as overwhelming the question of work-causation”. The appellant submits the Member erred in focussing on “the totality of the present clinical picture”.
The Member’s reasons referred to the appellant’s submission that the “injury may be a condition developed in the course of her employment, rather than aggravated by it”[78] (an argument the appellant no longer pursues). The Member gave this argument short shrift, saying “[t]he medical evidence overwhelmingly supports a finding that there was an aggravation of a pre-existing condition, rather than the onset of a new one”.[79] (emphasis added) The Member clearly recognised the nature of the test he was required to apply, and this in the context of an ‘aggravation, etc.’ He referred to relevant principles in his reasons at [16] to [22]. He referred to s 4(b)(ii) and described it as “uncontroversial” that a worker making such a claim “must demonstrate their employment was the main contributing factor to the aggravation”. (emphasis added) The Member quoted the following well-known passage from the judgment of Kitto J in Semlitch:
“There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism.”[80]
[78] See T2 18.19–19.2.
[79] Reasons, [16].
[80] Semlitch, 634.
The Member referred to subsequent cases in which Semlitch was applied, saying:
“What is apparent from those cases is that a dispute concerning the cause of such an injury must determine the main contributing factor to the aggravation itself, not to the underlying condition or disease.”
The appellant, in its submissions in reply, submits:
“To the extent there were other factors (such as cancer) – the [M]ember’s erroneous approach was to require main contribution by work to the condition as opposed to the aggravation or exacerbation.”[81] (emphasis in original)
[81] Appellant’s submissions in reply, [2].
The Member was clearly well aware of the statutory test which he was required to apply. He referred to the statutory provision and to settled authority on the topic. The submission that the Member erroneously saw the necessary approach as requiring “main contribution by work to the condition as opposed to the aggravation or exacerbation” is not tenable on a fair reading of the reasons.
The appellant refers to the principle that “employers take their employees as they find them”, described by Spigelman CJ, in the passage from Chemler quoted above, as “an eggshell psyche principle”. The correctness of this is undoubted. The appellant makes no meaningful argument that the Member failed to apply the principle and thereby erred.
Application of the test where there is multifactorial causation
The appellant argues it is sufficient if there was, even in small part, an aggravation mainly caused by work. It submits the totality of the pathology does not need to be mainly caused by work. “[I]t is sufficient if the additional pathology (in the sense of the worsening of the pathology) is mainly contributed to by work.”[82]
[82] Appellant’s submissions, [13]–[14].
The appellant’s submissions refer to AV. The appellant submits that:
“… if there is multifactorial causation, a member must evaluate the causative role of each such factor … this does not permit speculation by a member that a factual circumstance in a worker’s life might be causative of psychiatric injury, much less that it is causative to any particular extent. Causation of injury, and apportionment thereof in a psychiatric case is a matter where factual findings must (almost) always be anchored to expert opinion.”[83]
[83] Appellant’s submissions, [16], citing Hamad.
Hamad involved proof by an employer (which carried the onus) of its defence pursuant to s 11A of the 1987 Act – whether a psychiatric injury resulted ‘wholly or predominantly’ from actions of the employer which fell within the scope of s 11A(1) of the 1987 Act. Satisfaction of that test has been described as “a different, and more difficult, test to satisfy” than the test on causation applied in dealing with ss 4 and 9A of the 1987 Act.[84] There were competing factual circumstances that were arguably causative of the relevant psychological injury, only some of which potentially attracted the application of s 11A(1) of the 1987 Act. There was discussion in the decision of findings on causation which are available on the basis of “common knowledge and experience”, contrasted with findings that require expert medical evidence.[85] I formed the view in that case that “[causation] of the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence” (emphasis added). It was specifically said that “[t]he need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case”.[86]
[84] Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1, 14 DDCR 157, [42].
[85] See Murray v Shillingsworth [2006] NSWCA 367; 68 NSWLR 451; 4 DDCR 313, [37]–[38], Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352, [66], Ramasamy v Rail Corporation of New South Wales [2009] NSWWCCPD 41; 8 DDCR 1, [72], Harrison and Siepen v Craig [2014] NSWWCCPD 48, [79].
[86] Hamad, [88]–[89].
I note that in AV I said:
“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.”[87]
[87] AV, [78].
Hamad is not authority for the generalisation quoted at [69] above. AV is not authority for the proposition that evaluation of the role of potentially causative factors must be conducted by reference to expert opinion dealing with each factual circumstance that is raised.
The appellant refers to the Member’s reasons at [24] to [25], which read:
“24. The dispute in this matter largely concerns the question of main contributing factor. In particular, the respondent drew the Commission’s attention to a number of non-work-related factors which it alleges affected the [appellant] to the point where her employment could not be said, on an examination of the totality of the evidence, to be the main contributing factor to any injury.
25. The [appellant’s] statement evidence centres on the issues she had at work which she describes as the cause of the deterioration in her condition, however, other material before the Commission reveals she was going through a multitude of stressors at the time.”
The appellant submits paragraph [24] (which is inappropriately described as “the comments of the member”) shows:
“… the erroneous course which was taken in this respect where [the Member] refers to ‘a number of non-work-related factors’ which he describes at [25] as ‘stressors’. Whether a negative or unpleasant human experience is a ‘stressor’ in a causation sense is a matter purely medical in nature. Judicial notice can be taken that all members of society suffer from the vicissitudes of life but not all members of society are adversely psychiatrically impacted by this, and to the extent they are, that is
only provable scientifically (that is, medically) and not speculatively by a lay person.”[88]
[88] Appellant’s submissions, [16].
The Member’s reasons at [24] consisted of the Member’s brief summary of the respondent’s submissions on a matter in issue. There is no basis on which that brief summary can be validly described as the Member taking an “erroneous course”. There is a body of authority dealing with when proof of matters requires expert medical evidence, some of which is referred to above. I do not accept the arguments made in the appellant’s submissions at [16].
The various arguments raised by the appellant under the umbrella of Ground No. 1 are rejected. Ground No. 1 fails.
GROUND NO. 2 – SUBMISSIONS
The Member erred in finding that the evidence did not demonstrate that work was the main contributing factor to injury.
Appellant’s submissions
The appellant submits that the first two grounds “cannot be completely separated”. The appellant submits that, if the first ground fails, she continues to press Ground No. 2 on the basis it involves appealable error of fact or law. The appellant accepts that she carries the onus generally on causation.[89]
[89] Appellant’s submissions, [19]–[20].
The appellant submits that “if a respondent-employer wishes to disentangle causation in a multifactorial case then it carries the onus in that respect”. It refers to various authorities “in the common law context” which are submitted to support this proposition. It returns to this topic in its submissions in reply, quoting from Watts v Rake.[90]
[90] [1960] HCA 58; 108 CLR 158 (Watts), 160.
The appellant refers to the reasons at [26] which read:
“In relation to her injury, the [appellant] listed a number of instances which she believes constituted bullying and/or harassment. Those instances ranged from her first day on the job through to the time she ceased work. I do not propose to individually set out each of those matters in turn, however, in many cases, it is apparent the matters complained of were at worst for the [appellant] a result of her perception of real events in the workplace. As was noted in Chemler, perception of real events, even if erroneous, can be sufficient to ground a finding of psychological injury.”
The appellant submits the Member was obliged to describe the events “at the level of detail the case demands” and to “[attribute] causation to each of them either seriatim or in globo (that is, by grouping together all work causation on the one hand, and non-work causation on the other)”. The appellant refers to the reasons at [33] which refer to the respondent’s submissions regarding the appellant’s “cancer diagnosis and a relationship breakdown”. The appellant submits such matters are “not unusual” and it was not demonstrated these matters were psychiatrically significant so as to “detract from the contention of ‘main’ causation from work”.[91] This submission tends to invert the onus of proof on the test of ‘injury’, which includes proof of ‘main contributing factor’.
[91] Appellant’s submissions, [22]–[23].
The appellant refers to the reasons at [74], which read:
“The respondent’s case is the [appellant] was understandably affected by a number of non-work-related traumatic events which contributed to the aggravation of her condition, including needing ‘time to reflect’ as recorded in her general practitioner records on 7 August 2019, acknowledgement on 22 August 2019 that she was able to return to work because her ‘personal issues were resolved’, her partner moving away, the subsequent relationship breakdown and the diagnosis of breast and cervical cancer in December 2019.”
The appellant submits there is “nothing in the evidence medically to compellingly suggest that anything in this regard amounts to causation [sic] a psychiatric injury beyond the de minimus.” The appellant submits this is “merely a record of something she said to a doctor”. Any non-work stressor “appears, even on the [M]ember’s findings to be fleeting and minor”. The appellant submits the cancer diagnosis in 2020 post-dated “long term and serious work stressors”.[92]
[92] Appellant’s submissions, [24].
The appellant refers to the reasons at [79] to [80], which quoted from the report of a treating psychologist:
“79. Ms Skinner’s letter relevantly said:
‘[The appellant] presented with symptoms of depression and anxiety. [The appellant] reported a recent serious overdose and ongoing suicidal ideation, precipitated and perpetuated by psychosocial pressure, reporting workplace bullying and harassment and stress of a toxic workplace environment.’
80. While Ms Skinner’s letter is entitled to be taken at face value, in my view, it is of no more utility for determining the question of main contributing factor than any other contemporaneous treating record. It is not a report which provides an opinion on causation. Rather, the document makes it clear the history recorded has (quite appropriately) been taken from the [appellant] herself. There is not a criticism of Ms Skinner’s letter, which does not purport to be an opinion as to causation or to do anything more than set out the history provided to her.”
The appellant submits the above “clearly is an expression of opinion as to causation when given a fair reading” and it is unclear why the Member found otherwise.[93]
[93] Appellant’s submissions, [25]–[26].
The appellant submits “unfortunate non-work factors” were identified in the clinical material. The appellant refers to Dr Stephens, a general practitioner who treated the appellant “since 2019” (the year before the cancer diagnosis was made). The appellant submits that Dr Stephens was “asked to comment on causation based on employment and described it as ‘significant’.” The doctor said, “a letter of suspension from work was a significant contributing factor to the overdose”.[94]
[94] Appellant’s submissions, [27].
The appellant submits the preponderance of the evidence supports a “work derived injury”. She submits the Member referred to reports from Associate Professor Robertson in the reasons at [90] to [91]. The doctor attributed “minimal causation” to the cancer diagnosis.[95]
[95] Appellant’s submissions, [28].
The appellant describes Dr Miller (referred to in the reasons at [92]) as the “strongest evidence detracting from this proposition”. Dr Miller said that “other issues ‘could have caused or contributed to [the appellant’s] mental state”. The appellant comments this is “something less than more likely than not”. The appellant refers to Dr Miller’s view that the appellant suffered from “borderline personality disorder”, making her “vulnerable” with “disproportionate” responses. The appellant refers to the possible application of Chemler “in that whatever happened at work – this particular worker was likely to have an adverse and negative psychiatric reaction”.[96]
[96] Appellant’s submissions, [29].
The appellant refers to Dr Bertucen’s opinion (referred to in the reasons at [95]) that the relationship breakdown was “a significant competing stressor”. The appellant submits this does not assist in the analysis as “the comment is not comparative vis other stressors”. It does not assist in apportionment of causation. She submits that even if the other factors are “significant”, which she does not concede, work was “the main causative aspect of any aggravation”. The appellant submits the relationship breakdown was “of minimal importance in the clinical material and … given no relevance by the treating practitioners”.
Respondent’s submissions
The respondent says the appellant accepts it bears the onus, but the appellant then submits the onus to disentangle causation in a multifactorial case lies on the respondent. This submission is submitted to be wrong and to lack judicial support. There can be only one main contributing factor and the appellant bears the onus of establishing it, to the exclusion of the non-work-related factors.[97]
[97] Respondent’s submissions, [9].
The respondent submits the appellant’s submissions on this ground are largely repetitive of the submissions at first instance, “effectively an attempt to obtain a merits review”. It submits the medical opinion largely focusses on histories of workplace events when it is clear these were not the only factors impacting the appellant’s mental health from about 2018 onwards. Neither the treaters nor the independent medical experts (with the possible exception of Dr Bertucen) were fully or satisfactorily apprised of the contemporaneous records. It refers to the “SAPA document completed by the appellant”.[98] The respondent submits the Member made a number of factual findings favourable to the appellant. He then considered whether the causative events in the workplace (or the appellant’s perception of them) were the main contributing factor to the injury. The respondent submits the appellant challenges that process, saying greater weight should have been given to the “workplace matters in preference to that of non-work-related matters”, without identifying appealable error.[99]
[98] Reply, p 670.
[99] Respondent’s submissions, [10]–[11].
The respondent submits there was “clear contemporaneous evidence” of non-work-related factors impacting the appellant’s mental health. It refers to the SAPA completed by the appellant, due 17 November 2019.[100] The appellant’s responses in the SAPA refer to “personal issues” that are described as “no concern” of the respondent, and an “emotional breakdown through the year”. The respondent refers to an exchange of text messages between the appellant and Ms Parry. This is set out in part in the reasons at [36] to [72]. The respondent refers to notes of a meeting between Ms Parry and Mr Smith, the executive manager of the respondent. These are noted at [35] of the reasons and the subject includes “personal issues”. The respondent submits the appellant did not traverse this material or deny its accuracy.[101]
[100] Reply, pp 670–685. See the reasons, [41].
[101] Respondent’s submissions, [12].
The respondent submits Associate Professor Robertson was not given the SAPA document, the text messages or the notes of a meeting on 10 October 2019. The doctor was not told anything about non-work factors other than the cancer diagnosis. For example he was not told of the breakdown of a long term relationship. The respondent submits Dr Lavalle’s clinical notes (which covered the period from 12 May 2020) contained no reference to non-work factors. Dr Lavalle’s opinion did not deal with the “full spectrum of causative factors”. It is submitted there was also “somewhat limited” disclosure of non-work factors to Dr Stephens. The respondent submits that when the appellant saw Dr Miller on 14 August 2020 she denied “any recent life problems including difficulty in her family, relationship, grief, financial, alcohol, substance abuse, gambling or other health issues which could have caused or contributed to, her mental state, in either 2019 or 2020 [that] could have contributed to her current psychiatric state”[102].[103]
[102] Reply, p 67.
[103] Respondent’s submissions, [13]–[14].
The respondent submits that, whatever reasons the appellant proffers for the lack of mention of the appellant’s relationship breakdown, the doctors, other than Dr Bertucen, were not put in a position “where they could form a fully informed and considered view as to the relevant causal contribution of work and non-work-related matters”. The respondent submits that, “in the language of Paric”,[104] the doctors did not report from ‘a fair climate’. It submits the Member correctly placed less weight on the reports of the treating doctors, together with Associate Professor Robertson and Dr Miller, in circumstances where they had received “materially incomplete information as to the competing causal factors”.[105]
[104] Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844.
[105] Respondent’s submissions, [15]–[16].
The respondent quotes r 73 of the Personal Injury Commission Rules 2021 (the Rules). It submits the appellant carried the onus of proving the workplace issues were the main contributing factor to the injury. It submits this needed to be discharged by probative medical evidence. The respondent submits the appellant failed to discharge her onus and Ground No. 2 must fail.[106]
[106] Respondent’s submissions, [17]–[19].
Appellant’s submissions in reply
The appellant quotes the following passage from Watts:[107]
“If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred.”
[107] Watts, 160.
The appellant submits it is orthodox to submit in a common law case that “once a plaintiff has made out a case on injury to which liability attaches”, the defendant has the onus to “[disentangle] multifaceted causation”. It submits this should apply by analogy.[108]
[108] Appellant’s submissions in reply, [3].
The appellant submits this is not judicial review but an appeal, it extends to factual errors. The appellant repeats her submission that the failure of treating doctors to comment on non-work stressors would tend to confirm these stressors were not medically relevant.[109]
GROUND NO. 2 – CONSIDERATION
[109] Appellant’s submissions in reply, [4]–[5].
The argument about disentangling causation
An initial argument is that the respondent carries the onus of “disentangling” the work injury as a cause (see the passage from Watts quoted above). Reference should also be made to Purkess v Crittenden,[110] particularly to the reasons of the plurality at [4], where Watts is discussed:
“The expression ‘burden’ or ‘onus’ of proof, ‘As applied to judicial proceedings ... has two distinct and frequently confused meanings: (1) the burden of proof as a matter of law and pleading - the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of introducing evidence’. This is a proposition which has been frequently acknowledged. The position is, we think, correctly stated by the learned author of [Phipson on Evidence] to which we have referred when he says: ‘the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates’ and it was with the meaning of this expression in its secondary sense that the case mentioned was concerned. We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant’s negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant.” (excluding citations) (emphasis added)
[110] [1965] HCA 34; 114 CLR 164 (Purkess), [4].
Watts and Purkess are authorities dealing with the assessment of damages. That part of the above quote, in italics, makes it clear that the reasoning in those authorities is not analogous to the argument which the appellant seeks to bring it in aid of. The test of ‘main contributing factor’ in s 4(b)(ii) does not relate to pre-existing conditions. The causation issue in the current proceedings is different, it involves satisfaction of the statutory test of ‘injury’ in s 4(b)(ii) of the 1987 Act where causation of an ‘aggravation, etc’ is multifactorial. Authorities such as Watts and Purkess cannot, in my view, be appropriately applied in determining whether the appellant has discharged her onus of proving ‘injury’ within the meaning of s 4(b)(ii). In AV I sought to interpret the subsection by reference to conventional principles of statutory interpretation. The appellant offers no reasoned submission why the statutory test should be construed in the fashion for which it now argues. The appellant has not referred to authority that supports such an approach. It is relatively common, in cases involving psychological injury, to find a mixture of causative factors, both work-related and not. If the appellant were correct on this point, then the burden of proving ‘main contributing factor’ in such circumstances would effectively be borne by the employer. The employer would carry the onus of “disentangling” the work-related component of the injury as a cause. I do not accept that s 4(b)(ii) should be read in this way. I accept the respondent’s submission that the appellant carried the onus of proving ‘injury’ within the meaning of the subsection: “he who asserts must prove”.[111]
[111] Commonwealth v Muratore [1978] HCA 47; 141 CLR 296, [2].
The appellant’s failure to discharge its onus
The fundamental reason why the appellant failed to establish ‘injury’ was because of her failure to prove that work-related matters were the ‘main contributing factor’ to the relevant ‘aggravation, etc’. The Member concluded that “pre-2018 matters” were not causally relevant, none of the doctors retained to report in the proceedings made “any mention of them”.[112] Associate Professor Robertson’s report “did not have an accurate history of the personal matters affecting the [appellant] in 2018 and 2019 … particularly important where there are competing work and non-work related matters which are said to have contributed to the aggravation”. The Member said the history recorded by Associate Professor Robertson “did not include reference to the extent to which the [appellant] was plainly affected by her relationship breakup, involvement with police, attendance at trauma clinics and her cancer diagnosis”. The Member observed that Dr Miller’s views “suffer from the same relative disadvantage”. The Member, distinguishing the Presidential decision of Mieth on which the appellant sought to rely, said “there is a raft of evidence which demonstrates personal matters substantially contributed to the decline in the [appellant’s] well-being”.[113] The Member said that Dr Bertucen, qualified in the respondent’s case, “takes into account the history of relationship breakdown and cancer diagnosis and their effect on the [appellant]”.[114] The Member said “[c]ontemporary records reveal that in and from 2018 and 2019, the [appellant’s] relationship breakdown caused a deterioration in her mental health”.[115]
[112] Reasons, [101]–[102].
[113] Reasons, [108].
[114] Reasons, [103].
[115] Reasons, [107].
The Member accepted there were “very real issues at play in the workplace to which the [appellant’s] perception was a substantial contributing factor in aggravating her condition”. He was “not satisfied the [appellant] had discharged her onus of proof in establishing her employment was the main contributing factor to the aggravation”.[116]
[116] Reasons, [106].
The Member dealt with this saying:
“The difficulty for the [appellant] is that the medical experts on which she relies to establish a work-related injury do not have the benefit of being appraised of external factors which were affecting her at the relevant time. In a matter such as this where there are clearly competing factors at play which contributed to the aggravation of the [appellant’s] condition, it is important that the experts who provide opinions on matters of causation are aware of and comment on, all of the potentially relevant factors. The absence of supportive expert opinion which has also taken into account the extraneous issues at play in the [appellant’s] life in the lead up to the deemed date of injury render the views of the doctors who support her unpersuasive.”[117]
[117] Reasons, [109].
The respondent’s submissions (see [93] above) refer to the well-known authority of Paric v John Holland Constructions Pty Ltd, in which the High Court said:
“It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels JA in the Court of Appeal (Wigmore on Evidence, (1940) 3rd ed., vol.II, 680, p.800; 2 Wigmore, Evidence 680 (Chadbourn rev. 1979), p.942) to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.”[118]
[118] Paric, [9].
The Member’s reasoning above is consistent with the quoted passage from Paric. It is also consistent with the decision of the New South Wales Court of Appeal in Paric when that matter was dealt with in the Court of Appeal,[119] (from which the respondent’s reference to a “fair climate” is taken). The effect of Paric in the circumstances was that the appellant’s medical case on causation was deprived of probative force, with the consequence that the Member was not satisfied the appellant’s employment was the main contributing factor to the aggravation.[120]
[119] [1984] 2 NSWLR 505.
[120] Reasons, [110]–[111].
I note the appellant’s submission about Ms Skinner’s report, referred to at [83] to [84] above. In my view the Member’s reading, that the reasons at [79] set out Ms Skinner’s recorded history rather than her opinion on causation, was open to him. It did not involve error.
The appellant argues that the Member erred in failing, at [26] of the reasons, to describe each of the “instances which [the appellant] believes constituted bullying and/or harassment”. The appellant submits that, additionally, the Member erred in failing to “[attribute] causation to each of them”. To the extent that this argument raises the adequacy of the Member’s reasons, my reasons dealing with this argument should be read together with those dealing with Ground No. 3.
The reasons at [26] read:
“In relation to her injury, the [appellant] listed a number of instances which she believes constituted bullying and/or harassment. Those instances ranged from her first day on the job through to the time she ceased work. I do not propose to individually set out each of those matters in turn, however, in many cases, it is apparent the matters complained of were at worst for the [appellant] a result of her perception of real events in the workplace. As was noted in Chemler, perception of real events, even if erroneous, can be sufficient to ground a finding of psychological injury.”
The appellant refers to no authority in support of the submission that the Member was required to describe each of the instances and “[attribute] causation to each of them”. The reasons at [26] made it clear that the Member had read and considered the instances referred to. It is not necessary to refer to every piece of evidence. The necessary extent and content of reasons will depend on the particular case and the matters in issue.[121] It is necessary that the reasons be read as a whole.[122] In the current circumstances, the difficulty was that the evidence overall, but particularly the medical evidence, was not adequate to support a finding of ‘main contributing factor’. The reason was the found inadequacies in the appellant’s medical case, due to the failure to comply with the principles in Paric.
[121] See Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (Pollard), [58]–[59].
[122] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 (Beale).
The appellant makes various submissions in support of Ground No. 2, in which she seeks to argue about the probative force of the evidence relied on by the parties. The appellant disputes the causal significance of the evidence dealing with her cancer diagnosis and her separation from her partner (see [82] above). The appellant challenges the Member’s view that Ms Skinner’s report did not express a view on causation (see [83] to [84] above). The appellant argues about the probative force of the medical evidence from Associate Professor Robertson and Dr Bertucen (see [86] and [88] above). The respondent submits the appellant seeks to re-argue the issues at first instance, as opposed to identifying error (see [90] to [92] above).
The appeal is governed by s 352(5) of the 1998 Act. It is limited by the matters identified by Roche DP in Raulston v Toll Pty Ltd[123] where the Deputy President said:
“(a) [A Member], 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 [Member] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’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 [Member] was wrong.
(c) It may be shown that [a Member] 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 [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”
[123] [2011] NSWWCCPD 25; 10 DDCR 156, [19].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[124]Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr.[125] Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[126]
[124] [2020] NSWCA 54 (Hill).
[125] (1966) 39 ALJR 505.
[126] Hill, [20].
I accept that the appellant’s submissions, referred to at [108] above, go to the appellant’s preference for a different result more than the identification of error. To this extent, they do not assist. The appellant’s complaints about the fact finding are essentially futile. The Member’s reasons made it clear that the case failed due to the lack of probative force of the appellant’s medical evidence, due to the application of Paric. The appellant’s other points, if accepted, would not affect the final result.[127]
[127] Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478, [6]–[7].
Ground No. 2 fails.
GROUND NO. 3 – SUBMISSIONS
The Member failed to give adequate reasons.
The respondent’s application for leave
The respondent lodged its submissions on the appeal on 16 March 2023. On 20 March 2023 it sought to lodge amended submissions on appeal, the amendment being to paragraph [24] of its original submissions (which related to Ground No. 3). The appellant neither consents to, nor opposes, this application.[128] The amendment is of a relatively minor nature. It is not submitted that there is prejudice. Leave is granted to the respondent to rely on the amendment. The discussion below is based on the amended document.
[128] Letter from Bartier Perry to the Commission dated 24 March 2023. Email from Coutts Lawyers & Representatives dated 23 March 2023.
Appellant’s submissions
The appellant submits the reasons “extract large slabs of evidence”. The appellant submits the Member “disengages” with the facts of the case in the reasons at [26]. The reasons at [27] refer to the respondent largely traversing the appellant’s allegations. The appellant submits there was no resolution of the factual contest. The appellant submits it was “necessary” that the Member make factual findings on:
(a) which witness was preferred on each allegation of bullying and other conduct;
(b) if the Member preferred the evidence of a “respondent witness on the objective facts, what the [M]ember made of the worker’s subjective misunderstanding of those facts” (there is reference to Chemler), and
(c) a reasoned view as to the “causative potency of these perceptions”.
The appellant submits that, in the absence of the above reasoning, the award must be set aside. Reference is made to the reasons at [30]. It is submitted a reasonable reader would question “why” the deterioration occurred. It is submitted the Member’s reasoning was not adequately exposed.[129]
[129] Appellant’s submissions, [31].
Respondent’s submissions
The respondent submits the appellant’s argument on this ground is “particularly curious”, given the appellant’s oral submissions suggested there was no need to resolve the factual disputes:
“So because all the worker has to demonstrate is that there were workplace stressors of some kind which in fact occurred and that she had a particular reaction to, we won’t therefore need to delve into at great length any aspect of factual dispute without ignoring the fact that there is an investigation by Procare.”[130]
[130] T2 32.32–33.3.
The respondent submits there were a series of findings “favourable to the appellant and dispositive of any need on the part of the Member to resolve the factual disputes”:
(a) the Member found that “in many cases, it is apparent the matters complained of were at worst for the [appellant] a result of her perception of real events in the workplace”;
(b) the Member found there were “real issues and events between the [appellant] and Ms Lazzarini to which the [appellant] had a relevant perception which contributed to the aggravation of her underlying condition” (reasons [96]);
(c) the Member found that the lay evidence disclosed a number of issues in the workplace to which the appellant had adverse reactions, including interactions with Ms Lazzarini, the manager Mr Smith, supervisor Mr Davis, colleague Mr Christopher and manager Mr Gilchrist, (reasons [97]) and
(d) the Member found that “events at work were at least a substantial contributing factor to the aggravation of the [appellant’s] condition. I also have no doubt that some of the [appellant’s] interactions at work were a manifestation of her deteriorating condition” (reasons [98]).[131]
[131] Respondent’s submissions, [22].
The respondent refers to r 78 of the Rules. It was necessary that the reasons be sufficient for the reasoning process to be discerned, read as a whole and applying a “beneficial construction”. Reference is made to Zahed v IAG Ltd[132] and Minister for Immigration and Ethnic Affairs v Liang.[133] The respondent submits the above findings were “more than sufficient to enable discernment of the Member’s reasoning as to why it was unnecessary to resolve the factual disputes between the lay witnesses.”[134]
[132] [2016] NSWCA 55 (Zahed), [6].
[133] [1996] HCA 6; 185 CLR 259 (Liang).
[134] Respondent’s submissions, [23].
The respondent submits the appellant did not present probative medical evidence to discharge her onus of establishing that the workplace factors were the main contributing factor to her injury. That absence, coupled with contemporaneous evidence related to non-work-related factors impacting the appellant’s mental health, was fatal to the appellant’s attempt to discharge her onus. The respondent submits the Member undertook a proper and adequate analysis of the entirety of the evidence, in compliance with AV at [78].[135]
[135] Respondent’s submissions, [24].
GROUND NO. 3 – CONSIDERATION
Section 294 of the 1998 Act provides: “A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
Rule 78(2)–(3) of the Rules relevantly provides:
“(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a)the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b)the appropriate decision-maker’s understanding of the applicable law,
(c)the reasoning processes that led the appropriate decision-maker to the conclusions made.
(3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.”
In Beale Meagher JA said that “reasons need not necessarily be lengthy or elaborate”. His Honour said:
“Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance.”[136] (excluding references)
[136] Beale, 443.
In Mifsud v Campbell Samuels JA said:
“… it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.”[137]
[137] (1991) 21 NSWLR 725 (Mifsud), 728.
In Pollard McColl JA, in the course of summarising a number of the authorities dealing with the duty to give reasons, said:
“The reasons must do justice to the issues posed by the parties’ cases: see Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing). Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted: Soulemezis (at 279) per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge ‘enter into’ the issues canvassed and explain why one case is preferred over another …”.[138]
[138] Pollard, [59].
In Liang (to which the respondent referred) the High Court said that “[t]he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”[139]
[139] Liang, [30].
The parties in the current proceedings do not challenge the correctness of the reasoning in AV, dealing with the requirement in s 4(b)(ii) of the 1987 Act, that employment be ‘the main contributing factor’ to the ‘aggravation, etc.’. The Commission is plainly bound by the decision of the High Court in Paric, which is discussed above. The appellant’s case did not fail due to a preference on the Member’s part for the respondent’s lay case on ‘injury’. There is no serious challenge to how the Member, dealing with the requirement that employment be the ‘main contributing factor’, described the test:
“As the Deputy President noted at [76] in AV v AW, where a relevant aggravation involves, as is the case in this matter, both employment and non-employment factors, the evaluative process involves a consideration of the causative role of both. It is necessary to consider firstly, whether there were competing causal factors (employment and non-employment related) of the aggravation, and in considering those relevant contributing factors, whether employment represented the main one. The onus of proving employment was the main contributing factor rests with the [appellant].”[140]
[140] Reasons, [22].
The Member made a number of findings consistent with acceptance (at least in part) of the appellant’s lay case:
(a) “… in many cases, it is apparent the matters complained of were at worst for the [appellant] a result of her perception of real events in the workplace. As was noted in Chemler, perception of real events, even if erroneous, can be sufficient to ground a finding of psychological injury.” (reasons, [26])
(b) “The respondent’s lay evidence in reply largely traversed the [appellant’s] allegations, however, in doing so, it became apparent there were obviously very real issues and tensions within the workplace.” (reasons, [27])
(c) “There is no question the [appellant’s] mental health apparently deteriorated markedly to the point where, after being placed on suspension in April 2020, she attempted suicide.” (reasons, [30])
(d) “It is relevant to note the [appellant’s] concerns about [Ms Lazzarini] arose in the context of a complaint made by Ms Lazzarini about the [appellant] which led to the [appellant] being moved to a different depot pending investigation. The [appellant] disputed the allegations made by Ms Lazzarini against her, however, it is apparent there were very real issues between the two colleagues in the workplace.” (reasons, [63])
(e) “The [appellant] referred in her statement to her troubled relationship with her colleague, Ms Lazzarini. Mr Robison noted that even if the [appellant’s] perception of her interactions with Ms Lazzarini were incorrect, there were plainly contentious real events which put the [appellant’s] reaction to them within the realms of the decision in Chemler. I accept this is the case.” (reasons, [77])
(f) “Ms Lazzarini provided a statement. She described interpersonal issues with the [appellant]. I do not consider it necessary, given the decision in Chemler, to make a finding at this point as to which of her and the [appellant’s] version of the events surrounding the conflict I prefer. It is sufficient to find, as I do, that there were plainly real issues and events between the [appellant] and Ms Lazzarini to which the [appellant] had a relevant perception which contributed to the aggravation of her underlying condition.
The lay evidence in this matter also discloses a number of issues in the workplace to which the [appellant] had adverse reactions. They included her interactions with Ms Lazzarini, interactions with the manager Mr Smith, supervisor Mr Davis, colleague Nathan Christopher and manager Steve Gilchrist.
I have no difficulty finding that events at work were at least a substantial contributing factor to the aggravation of the [appellant’s] condition. I also have no doubt that some of the [appellant’s] interactions at work were a manifestation of her deteriorating condition. The question for determination, however, is whether her employment was the main contributing factor to the aggravation.” (reasons, [96] to [98])
Notwithstanding the above findings, the Member was not satisfied employment was the main contributing factor to the aggravation, with the consequence that the case failed on ‘injury’. The Member gave a clear explanation for this in the reasons at [105] to [111]. In the reasons at [110] it is succinctly stated:
“It is for the [appellant] to prove on balance that her employment was the main contributing factor. The fact her own experts were not appraised of extraneous but relevant matters is, in my opinion, fatal to the [appellant’s] case.”
The various topics described at [115] above, on which the appellant submits the Member should have made findings and given reasons, go to matters that were largely irrelevant to the basis on which the Member decided the case. This is because the failure of the appellant’s case essentially resulted from the failure of her medical case to deal with the multiple competing factors which were potentially responsible for the claimed aggravation injury. This had the consequence that the appellant’s medical case on causation was deprived of probative force.
The reasons which are required will depend on the circumstances of the particular case. They are to be read as a whole. Some helpful observations are set out at [123] to [125] above. It is not necessary to refer to every piece of evidence. The Member’s reasons referred to the evidence that was considered. The reasons stated the basis on which the Member arrived at the decision and why. The reasons stated why the respondent’s case was accepted over that of the appellant. The reasons were adequate for the conduct of the appeal. The reasons informed the losing party why she lost. Meagher JA, in the passage quoted at [123] above, observed that “it may not be necessary to make findings on every argument or destroy every submission”. The factual contest, underlying the matters summarised at [115] above, was not ultimately central to resolution of the issues. This was in part due to the various factual findings made by the Member, quoted at [128] above. More significantly, resolution of the ‘injury’ issue turned on the probative force of the appellant’s medical case, which was undercut by deficiencies in the histories relied on. The Member’s reasons for dealing with this aspect of the case are summarised at [100] above.
In my view the Member’s reasons were adequate. Ground No. 3 fails.
CONCLUSION
All of the Grounds of Appeal have failed. The appeal fails.
DECISION
The Certificate of Determination dated 10 January 2023 is confirmed.
Michael Snell
DEPUTY PRESIDENT
11 January 2024
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