Blackwood v Mana

[2014] ICQ 27

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Blackwood v Mana [2014] ICQ 027

PARTIES:

SIMON BLACKWOOD (WORKERS COMPENSATION REGULATOR)
(appellant)
v
VICKI ANNE MANA
(respondent)

CASE NO:

C/2014/3

PROCEEDING:

Appeal

DELIVERED ON:

31 October 2014

HEARING DATE:

1 July 2014

MEMBER:

Martin J, President

ORDER:

1. Appeal allowed;

2. Set aside the decision of the Industrial Magistrate given on 16 December 2013;

3. In place of that decision, order that the appeal filed by Mrs Mana on 19 October 2010 be dismissed and the review decision of 14 October 2010 be confirmed.

CATCHWORDS:

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – GENERALLY – where the Industrial Magistrate preferred the claimant’s evidence over other evidence – where reasons were not given for why particular evidence was preferred – where experts relied on circumstances not in evidence before the Industrial Magistrate – whether the Industrial Magistrate failed to provide adequate reasons - whether it was open to the Industrial Magistrate to prefer certain evidence – whether expert reports could be relied on in circumstances where the factual basis for their opinions had not been fully demonstrated in evidence – whether the Industrial Magistrate erred by applying an incorrect construction of s 32 of the Workers’ Compensation and Rehabilitation Act 2003.

Workers’ Compensation and Rehabilitation Act 2003

CASES:

Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219
Fox v Percy (2003) 214 CLR 118
Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844
Parker v Q-Comp (2007) 185 QGIG 269
Ramsay v Watson (1961) 108 CLR 642.
Q-Comp v Education Queensland (2005) 179 QGIG 491

APPEARANCES:

SP Gray for the appellant, directly instructed by the Workers’ Compensation Regulator
L Willson for the respondent, instructed by Parkinsons Lawyers

1. In March 2004 Mrs Mana commenced working at the Broadbeach Bowls Club through a placement by an agency.  In the following year she was offered and accepted a permanent position as the book-keeper/office administrator at the club. 

1. On 20 May 2010 Mrs Mana lodged an application for compensation for an anxiety/stress disorder said to have been sustained during the course of her employment with the club.  That application was rejected and Mrs Mana’s application for a review was unsuccessful.

1. Mrs Mana appealed that decision and, on 29 November 2011, Wilkie M set the decision of the review officer aside and made findings that the employment was a significant contributing factor to the personal injury suffered by the applicant and that the injury did not arise out of reasonable management action taken in a reasonable way.  That decision was then the subject of appeal to the Industrial Court. Hall P set the decision aside on the basis that the learned Magistrate had failed to give adequate reasons for the decision and ordered that the matter be returned to the Industrial Magistrates Court to be heard and determined according to law.  That occurred, Mrs Mana was again successful in that court, and the matter has returned to this Court on an appeal from the decision of the Industrial Magistrate given on 16 December 2013.

1. Ordinarily, the history of the litigation is not something which needs to be recited, but in cases where there are issues concerning the value of expert evidence it is relevant to bear in mind the number of times that a party has given evidence about relevant factors.

Grounds of appeal

1. Although there are nine grounds of appeal, they fall into three broad categories:

(a)        A failure to provide adequate reasons for certain findings,

(b)        Preferring certain evidence over other evidence when that was not reasonably open, and

(c)        Relying upon the reports of experts in circumstances where the factual basis for their opinions had not been fully demonstrated in evidence.

Failure to provide adequate reasons

1. A failure to give adequate reasons is an error of law.  See Drew v Makita (Australia) Pty Ltd.[1]

   [1][2009] 2 Qd R 219.

1. The extent to which reasons are necessary and the level of adequacy required will depend upon the circumstances of each case.  What will be sufficient in one case may not be sufficient in another.  The extent to which reasons are required was considered by Muir JA in Drew v Makita (Australia) Pty Ltd where he said:

“[58] The rationale for the requirement that courts give reasons for their decisions provides some guidance as to the extent of the reasons required. The requirement has been explained, variously, as necessary: to avoid leaving the losing party with ‘a justifiable sense of grievance’ through not knowing or understanding why that party lost; to facilitate or not frustrate a right of appeal; as an attribute or incident of the judicial process; to afford natural justice or procedural fairness; to provide ‘the foundation for the acceptability of the decision by the parties and the public’ and to further ‘judicial accountability’.

[59] The extent to which a trial judge must expose his or her reasoning for the conclusions reached will depend on the nature of the issues for determination and ‘the function to be served by the giving of reasons.’ For that reason, what is required has been expressed in a variety of ways. For example, in Soulemezis v Dudley (Holdings) Pty Ltd, Mahoney JA said:

‘… And, in my opinion, it will ordinarily be sufficient if – to adapt the formula used in a different part of the law … by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.’” (citations omitted)

1. In this case, central to the determination which the Industrial Magistrate had to make, was whether he accepted the evidence of Mrs Mana or that of Mr Gilbert, the chairman of the Board of Directors of the club, and his wife, Mrs Gilbert, the secretary to the Board.  After setting out some of the evidence given by the witnesses which were called before him the Industrial Magistrate said:

“The facts surrounding the matter before the court need to be closely examined.  And with the fluctuation of time, this Court accepts that memories of events dating back some five or six years can fade.  Despite the amount of time that has lapsed, I am satisfied, however, that all witnesses have endeavoured to provide a recollection of events throughout the relevant timeframe to the court to the best of their ability.  Their demeanour in the witness box has, however, assisted the court in determining the behaviour of Mr and Mrs Gilbert and their interaction with their staff, particularly towards the appellant, Ms Mana.

There have been many allegations, of what may be termed instances, where Ms Mana was treated in an unreasonable manner by management throughout her employment at the Broadbeach Bowls Club.  And having had the opportunity of observing Ms Mana, as well as Mr and Mrs Gilbert, I formed the view that Ms Mana did provide an accurate account of her interaction with management.  Unfortunately, I found that Mr and Mrs Gilbert’s recollection of the various interaction they believe they had with Ms Mana were not, in fact, correct.  I find, as a matter of fact, that Ms Mana would have been left in no doubt by the Gilberts that she was not trusted in her employment at the club.”

1. Later in his reasons the Industrial Magistrate said:

“Their apparent prior ability to bring failing ventures back to profitability is a factor which Mr and Mrs Gilbert are obviously proud of when one peruses their resume that has been tendered into evidence, but with the management style adopted by the Gilberts, I have formed the view that Ms Mana, through no fault of her own, became the victim of management action which was most unreasonable and caused her an injury as defined in the legislation.  Where there is any conflict with the evidence provided by Mrs Mana to that evidence provided by the respondents, I find in favour of the appellant, Mrs Mana.”

1. An important part of the evidence given by Ms Mana concerning the working relationship between Mr and Mrs Gilbert, was that they often had disagreements at work which degenerated into “screaming matches”. That was contrary to evidence given by other witnesses – Sean Baker, Keith Weisel and Gordon Hedger.  The Industrial Magistrate must have rejected this evidence, given his acceptance of Ms Mana’s evidence, but he did not provide reasons for that rejection.

1. In Fox v Percy[2] Gleeson CJ, Gummow and Kirby JJ held that a finding of fact by a trial judge, based on the credibility of a witness, may only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge’s conclusions are erroneous or where it is concluded that the decision at the trial was glaringly improbable or contrary to compelling inferences in the case.

   [2](2003) 214 CLR 118.

1. In this case the finding of credibility is one which is not properly explained.  While it is open for a trial judge to determine an issue of fact on demeanour (especially where there are no other objective matters which can assist the fact-finding process), that finding must still be explained.  A failure to provide reasons for rejecting the evidence of witnesses whose evidence has been referred to is an error of law.  The reference to demeanour by the Industrial Magistrate was a reference only to the demeanour of Ms Mana and the Gilberts.  He does not explain why he rejected the evidence given by other witnesses which was consistent, at least in part, with the evidence of the Gilberts.

Expert evidence

1. It is an uncontestable requirement that, for an expert opinion to be of any value, the facts upon which it is based must be proved by admissible evidence.[3]  It is not a requirement, though, that the facts which are proved must correspond with complete precision to the proposition on which the opinion is based.[4] 

   [3]Ramsay v Watson (1961) 108 CLR 642.

   [4]Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844.

1. In this case, there is a substantial gap between the evidence of the circumstances at the workplace and the circumstances which were relied upon by the expert witnesses.  Two expert reports were received.  The first was from Dr Norman Barling, a psychologist, who said that his opinion was based on the history given to him by Mrs Mana of conduct which occurred in the workplace during the last two years of her employment and, in particular, between May and December 2009.  He was of the view that, on the basis of what Mrs Mana told him, the circumstances at the workplace contributed to increasing her stress level, anxiety and depression.  Further, Dr Barling said that being accused of robbery had a particular impact on Mrs Mana as an event that broke the camel’s back “so to speak”.  That accusation related to a file being missing from a safe.  But, that particular incident occurred after Mrs Mana had lodged her application for compensation. 

1. The second expert was Dr Martin Nothling, a psychiatrist.  He also recited the history provided to him by Mrs Mana.  He was of the opinion that she initially developed an adjustment disorder with mixed anxiety and depressed mood.  He excluded the possibility of a major depressive episode.

1. The detailed history Mrs Mana provided to both Dr Barling and Dr Nothling was not replicated in the evidence she gave at the hearing.  This was recognised by the Industrial Magistrate who, on two occasions, engaged counsel for Mrs Mana in an exchange concerning the absence of that evidence.  Mrs Mana reported the following matters to both her treating physician and the expert witnesses but she did not give evidence of them at the hearing:

(a)that she witnessed many unfair work practices against her colleague;

(b)that Mrs Gilbert micromanaged the business and interfered with all aspects of the running of the club;

(c)that Mrs Gilbert spoke harshly to all employees and singled her out in particular;

(d)that Mrs Gilbert was abusive, manipulative, intrusive, intimidating, accusatory and controlling to the extent that there were frequent arguments and constant tension throughout the workplace;

(e)that there were constant staff shortages and that she was often required to do work which was not in her field of expertise;

(f)that customers and staff members avoided dealing with Mrs Gilbert because of her short temper and they would come to her instead;

(g)that Mrs Gilbert gave instructions that under no circumstances was Mrs Mana to have any discussions with board members about the running of the club;

(h)that she was aware of irregular practices and false reporting to the board by Mrs Gilbert;

(i)that her office space was cramped, that the safe was always left open and that people came and went all day;

(j)that there was constant interference and extra workload; and

(k)that staff problems and other bullying led Mrs Mana to liken her work environment to a ‘warzone’.

1. Notwithstanding that she was recalled, at least in part, for the purpose of giving further evidence of the conditions at her place of employment, none of those matters was distinctly established in Mrs Mana’s evidence. 

1. Neither of the experts were asked to state what their opinion would have been had they only received the history which was related in the evidence before the Industrial Magistrate. 

1. This is not a case in which there has been an inconsistency in a trifling respect between the evidence given and the history related to the experts.  The case which was put before the experts is substantially different to that which was put before the Industrial Magistrate.  The failure to prove the parts of the history which was related to the experts leads to the conclusion that the experts’ evidence must be rejected on that basis.  In those circumstances, the appeal before the Industrial Magistrate should have failed.

Construction of s 32(5)

1. So far as it is relevant, s 32 of the Workers’ Compensation and Rehabilitation Act 2003 provides:

“(1)       An injury is personal injury arising out of, or in the course of, employment if—

(a)for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or

(b)for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.

…

(5)Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—

(a)reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;

(b)the worker’s expectation or perception of reasonable management action being taken against the worker;

(c)action by the Regulator or an insurer in connection with the worker’s application for compensation.”

1. The proper construction of those parts of s 32 which are set out above has been considered a number of times. In Parker v Q-Comp,[5] Hall P said:

“Because of the use of the word ‘despite’ at s 32(5), where s 32(1) ‘ropes in’ a psychiatric or psychological condition and s 32(5) excludes the same psychiatric or psychological condition, the inconsistency is resolved by allowing s 32(5) to prevail …”[6]

[5](2007) 185 QGIG 269.

[6]Ibid 273.

1. In considering the cognate section is an earlier statute, Hall P said that subsection (5) should not be read so as to maximise the remedial impact of subsection (1) and the correct approach is that where a psychiatric or psychological condition comes within both subsections, then subsection (5) prevails and the injury is excluded.[7]

   [7]Q-Comp v Education Queensland (2005) 179 QGIG 491.

1. A worker who claims an entitlement under the Act carries the onus of satisfying the relevant authority that s 32(1) applies and s 32(5) does not apply. These tests are to be considered separately. Clearly, if an alleged workplace injury is not covered by s 32(1), then no further inquiry is made. If the injury comes within s 32(1)(b), then s 32(5) must be considered.

1. The analysis undertaken by the learned Magistrate is expressed in the following conclusion:

“I find that the appellant, Vicky Mana, had sustained a personal injury, namely, an adjustment disorder with mixed anxiety and depressed mood. Further, that she was the worker at the relevant time. Further, her injury was arising out of the course of her employment. Further, work was a significant contributing factor to that injury which is not precluded by section 32, subsection (5) on the basis that, on a global evaluation, the management action involved in this case was not reasonable management action taken in a reasonable way.”

1. The reference to “a global evaluation” points to the conclusion that the learned Magistrate misunderstood the onus of proof and, in effect, required the regulator to prove that the management action was reasonable and taken in a reasonable way.  This was an error.

Conclusion

1. The circumstances of this decision under appeal are, unfortunately, remarkably like the circumstances of the previous decision in the Industrial Magistrates Court.  For the reasons given above, it is not clear why the Industrial Magistrate preferred the evidence relied upon by Mrs Mana - especially with respect to the relationship with the Gilberts - over the evidence relied upon by the Regulator.  Further, there was no admissible expert evidence to establish the case sought to be demonstrated by Mrs Mana.  The failure to establish the basis of the evidence upon which the experts had relied was a fatal blow to the case of Mrs Mana at first instance. 

1. One option available in the light of the above discussion is to return the matter for consideration in the Industrial Magistrates Court as occurred on the previous occasion.  However, given the lapse of time and the history of this litigation, together with the inability of Mrs Mana to recall those matters which were essential to the foundation of the expert evidence, it would not be appropriate to take that course.

Orders

1. The orders are as follows:

(a)        appeal allowed,

(b)        set aside the decision of the Industrial Magistrate given on 16 December 2013,

(c)        in place of that decision order that the appeal filed by Mrs Mana on 19 October 2010 be dismissed and the review decision of 14 October 2010 be confirmed.

1. I will hear the parties on the costs of the hearing in the Industrial Magistrates Court.

(ERRATUM

An error in [25] was corrected by deleting a reference to a later version of the Workers’ Compensation and Rehabilitation Act 2003.)