Brown v Department for Education

Case [2023] SASCA 138

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

BROWN v DEPARTMENT FOR EDUCATION

[2023] SASCA 138

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice Stanley)

21 December 2023

WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - NATURE AND SCOPE OF APPEAL AND REVIEW

On 5 August 2019, the appellant was carrying out her employment duties as a school teacher when she was hit on the back of the head by a soccer ball.  She made a claim for weekly payments and medical expenses under the Return to Work Act 2014 (SA) (‘RTW Act’). Her claim was rejected by the respondent. Following unsuccessful conciliation, the proceedings were referred to the South Australian Employment Tribunal (‘the Tribunal’) in Court Session.

The appellant lodged a Statement of Facts, Issues and Contentions on 1 June 2021 contending that she had suffered physical and psychiatric injuries as a result of the soccer ball incident.  On 1 March 2022, she lodged a revised Statement of Facts, Issues and Contentions contending that she had sustained compensable, stand-alone psychiatric injuries only.

By its Responding Revised Statement of Issues and Contentions, the respondent’s primary contention was that the appellant had not suffered either a physical or a psychiatric injury as a result of the soccer ball incident.  The respondent contended, in the alternative, that any work-caused psychiatric injury was a sequel that did not arise in compensable circumstances. The respondent did not contend for any position premised on the appellant having suffered a compensable work-caused physical injury, even in the alternative. 

At trial, while all medical reports were tendered in the Trial Book, the only medical witnesses who gave oral evidence were the psychiatrists.  Counsel for the appellant confirmed unequivocally that the appellant did not pursue a brain injury claim.  The respondent relied on the medical reports as evidence of a non-falsifiable hypothesis that favoured an opinion that the appellant had suffered an organic brain injury as a result of the soccer ball incident.

During her closing address, the appellant sought to put forward an alternative case of psychiatric harm as a sequel to a head injury.  The respondent took issue with this position in reply and maintained that the appellant was not entitled to announce a secondary case that she had not taken to trial.

The trial judge rejected the appellant’s contention that it was open to find for the appellant on grounds alternative to the case of stand-alone psychiatric injury.  The judge considered that the appellant’s decision to confine her case to one of pure psychiatric injury was very likely a tactical one.  In the event, the judge accepted the medical hypothesis that the appellant’s incapacity was due to physical and psychological causes, but did not find a significant contributing cause of the appellant’s brain injury.

Subsequently, the matter was brought before the judge as the appellant wished to be heard on the orders that…

Continue reading Brown v Department for Education

Sign in free to access the full text

Details
AGLC
Brown v Department for Education [2023] SASCA 138
Case
[2023] SASCA 138
Decision Date

CaseChat Overview and Summary

The appellant, a school teacher, was injured when struck on the head by a soccer ball during her employment. She subsequently made claims for compensation under the Return to Work Act 2014 (SA), initially for a head injury and concussion, and later including psychiatric injury. The respondent rejected these claims, asserting the injury did not arise from employment or that employment was not a significant contributing cause. The matter proceeded to the South Australian Employment Tribunal, which considered the appellant's evolving contentions regarding the nature of her injuries, including a physical injury, a psychiatric injury, or both, and whether these were stand-alone or secondary to pre-existing conditions.

The central legal issue before the Tribunal was whether the appellant had sustained a compensable psychiatric injury, and if so, whether it was a stand-alone injury or secondary to a physical injury. This required determining if the appellant had suffered a psychiatric injury, if it arose out of or in the course of her employment, and its relationship to any prior or pre-existing psychiatric conditions or physical injuries. Crucially, the Tribunal also had to consider whether the appellant was permitted to advance an alternative claim for a physical injury, or a psychiatric injury secondary to a physical injury, at the closing submissions stage, after having previously abandoned such claims and focused solely on a pure psychiatric injury.

The Tribunal, in its trial judgment, rejected the appellant's attempt to advance alternative grounds for success beyond the pleaded case of a stand-alone psychiatric injury. The judge reasoned that while parties could agree to enlarge the scope of proceedings, a late change, particularly when there appeared to be a tactical reason for the initial stance, would not be readily entertained. The judge inferred that the decision to focus on a pure psychiatric injury may have been influenced by specific provisions of the Act concerning the assessment of whole person impairment for physical versus psychiatric injuries. The judge concluded that allowing the appellant to succeed on an undisclosed alternative basis at such a late stage would violate the principles of a fair trial and prevent surprise, even though the alternative claim had prospects of success.

Ultimately, the trial judge found that the appellant's incapacity was due to a combination of a brain injury and psychological issues, partly caused by the brain injury, partly by emotional stressors related to the incident and its aftermath, and partly by other stressors. However, the judge concluded that it would not be in the interests of justice to allow the appellant to pursue the alternative claims at that late stage. The Tribunal's decision was that the question of whether the appellant's claim could be advanced on grounds alternative to a stand-alone psychiatric injury should be answered in the negative.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons that follow, that question should be answered, ‘No’.Background On 5 August 2019, the appellant was carrying out her employment duties as a school teacher when she was hit on the back of the head by a soccer ball. Following that incident, she attempted to return to work but was unsuccessful. She has not been able to return to work since. The appellant made a claim for compensation under the RTW Act. The nature of the injury was described in the claim as ‘head; - concussion’. On 10 January 2020, the respondent rejected the claim. In its Reasons for Decision, the respondent expressed the conclusion that the appellant did not suffer concussion as a result of being struck by the soccer ball. The respondent also concluded, in the alternative, that if the appellant did suffer concussion or some other form of head injury, that did not arise out of or in the course of her employment and that her employment was not a significant contributing cause of the injury. This alternative conclusion was based on the appellant’s history, and in particular the reported consequences of a motor vehicle accident the appellant had been involved in on 1 September 2017, following which she had returned to work on a graduated return to work plan. On 6 February 2020, the appellant applied to the Tribunal for a review of the respondent’s determination to reject the claim. The application for review specified the injury details as ‘Concussion/Closed Head Injury with subsequent development of Post-Concussion Syndrome and exacerbation of pre-existing anxiety’. On 3 June 2020, the appellant made a further claim for compensation under the RTW Act. That claim identified her injuries as ‘closed head injury, post concussion syndrome, psychiatric injury’. On 20 July 2020, the respondent rejected this claim also. By order dated 25 August 2020, with the consent of the parties, the Tribunal enlarged the scope of the proceedings the appellant had commenced in February 2020 to include the determination of the respondent to reject the appellant’s claim for psychiatric injury.The written articulation of the issues before the Tribunal Following unsuccessful conciliation, the proceedings were referred to the South Australian Employment Court, that is, the Tribunal in Court Session.[3] On 1 June 2021, the appellant lodged a Statement of Facts, Issues and Contentions. The issues the appellant identified included the following:14. Did the Applicant sustain:14.1 A physical injury?14.2 A psychiatric injury?14.3 Both a physical and a psychiatric injury?[3] SAET Act, s 5. The contentions recorded on this form included the following:19. As a result of the incident, the Applicant suffered:19.1 Concussion;19.2 Post Concussion Syndrome;19.3 A closed head injury, resulting in a Functional Neurological Disorder;19.4 A psychiatric injury.20.The injuries referred to at paragraphs 19.1, 19.2 and 19.3 above are physical injuries. Then on 1 March 2022, the appellant lodged a revised Statement of Facts, Issues and Contentions. This form identified that the appellant was contending that she had sustained compensable, stand-alone psychiatric injuries only. Relevantly, the statement of issues included the following:12.Whether the Applicant suffered a compensable psychiatric injury pursuant to section 7 of the Return to Work Act 2014 (SA) (the Act), which will require determination of the following issues:12.1 Whether the Applicant has suffered a psychiatric injury;12.2 Whether the psychiatric injury arose out of or in the course of the Applicant’s employment;12.3 Whether the psychiatric injury was:12.3.1. A stand-alone psychiatric injury; and/or12.3.2.An aggravation, acceleration, exacerbation or deterioration of a prior or pre-existing psychiatric condition; and/or12.3.3. Secondary to any physical injury.

Evidence

Evidence Before The Court

At the end of the first day, following a discussion about the witnesses yet to be called, the following exchange occurred between the judge and counsel for the appellant: HIS HONOUR: Okay. Look, I just wanted to clarify, in terms of your primary claim, do you still maintain the acquired brain injury claim?COUNSEL:No, your Honour, we don’t.HIS HONOUR: Okay.COUNSEL:It’s a difficult matter though because there are experts who go either way. The preponderance of the evidence however we say, is that it is a functional neurological disorder. Now, experts may differ on how they say that arises. My understanding is it doesn’t necessarily involve a head injury. Your Honour heard the full bench decision of Eagle, where it was exposure to ammonia gas that led to a conversion disorder. If the expert evidence remains as it is on the papers at present, the applicant’s case is that it is a psychiatric disorder.HIS HONOUR: In terms of the medical evidence, I mean, I’ve got reports from neurologists and Mr Reid, the neuropsychologist.COUNSEL:Yes.HIS HONOUR: Are they all still going to be required to give evidence?COUNSEL:My understanding is, subject to my instructor tapping me on the shoulder, that Mark Reid isn’t required if the post-concussion case is not pursued.(Emphasis added) The exchange continued for a few more lines on the topic of other witnesses. What is to be noted here is that counsel for the appellant announced unequivocally that the appellant did not pursue a brain injury claim. However, she seemed to hint (and only hint) that this could change if the expert evidence did not remain as it was on the papers. The respondent having gone into evidence, counsel for the respondent accepted it was for him to address first. On this occasion, counsel for the appellant appeared by video link. Counsel for the respondent handed up an Outline of Closing Submissions. There was an adjournment to enable this to be emailed to counsel for the appellant. Counsel for the respondent then addressed, speaking with reference to the Outline of Closing Submissions he had handed up. That Outline commenced with the following submission:1. This dispute has taken an unusual path to trial.1.1 It commenced as a claim for a head injury: concussion, and 1.2 Progressed as a claim for both physical and psychiatric injury.2.At trial it has been prosecuted as a claim for compensation for incapacity arising from a pure psychiatric injury.(Footnotes omitted) The Outline contained the following further submission as to the issues:10.The worker has, it is now clear, abandoned any claim to compensation arising from a physical injury sustained when struck by the soccer ball including both:10.1 a physical injury; and10.2 a psychiatric injury secondary to a primary physical injury.11. In the circumstances, it is necessary to determine at least the following issues:…11.5 Did the worker sustain a physical injury when struck by the soccer ball?11.6 If the worker did sustain a physical injury, noting that the worker does not assert a compensable injury, when struck by the soccer ball:11.6.1was that injury a standalone injury, or an aggravation, acceleration, exacerbation or deterioration of a pre-existing condition;11.6.2for how long did that injury continue;11.6.3is the injury spent and, if so, when was it spent?11.7 Did the worker sustain a compensable psychiatric injury when struck by the soccer ball?11.8 If the worker did sustain a compensable psychiatric injury when struck by the soccer ball:11.8.1was that injury a primary or standalone injury, or11.8.2was that injury secondary to the physical injury?

Decision

Reasons for decision

The appellant did not apply to reopen her case in light of the respondent stating its position.The trial judgment The trial judge rejected the appellant’s contentions that it was open to find for the appellant on grounds alternative to the case of stand-alone psychiatric injury. He accepted that a case might be expanded beyond the pleaded case if the parties choose to restrict or enlarge them in the course of a trial,[4] and that it would be a triumph of form over substance if the other party was fairly on notice of the case it had to meet and was not prejudiced by the lack of correlation between that which was announced on a statement of issues and contentions and that which was contended at trial.[5][4] [2022] SAET 107 at [157].[5] [2022] SAET 107 at [158]. The judge considered, however, that different considerations applied when there was an attempted late change. Parties must ordinarily be bound by their conduct in the litigation.[6] A change will not readily be entertained, especially when there was a forensic or tactical reason for not pursuing the belated alternative case initially, and where if that point had been taken earlier, it might have been met by further evidence.[7][6] Citing The State of South Australia in right of the Department for Education and Child Development v Dolan [2021] SASCFC 30 at [73].[7] [2022] SAET 107 at [159]. In the present case, the judge considered that it was very likely that the decision to confine the case to one of pure psychiatric injury was tactical:[8]… with an eye towards any assessment of whole person impairment and the potential for that to result in Ms Brown fitting the criterion to be a seriously injured worker. I expect that the decision might have been influenced by ss 22(8)(e) and (f) of the Act which provide:(e)in assessing impairment resulting from physical injury or psychiatric injury, no regard is to be had to impairment that results from consequential mental harm;(f)in assessing the degree of permanent impairment resulting from physical injury, no regard is to be had to impairment that results from a psychiatric injury or consequential mental harm;[8] [2022] SAET 107 at [161]. The judge accepted that it was reasonable to infer that had the appellant announced the alternative case from the outset, the Court might have received oral evidence from other medical witnesses and the respondent might have conducted its case differently.[9] He concluded that to allow the appellant to succeed on a basis not disclosed until closing submissions would violate the principle of ensuring a fair trial and preventing surprise. He accepted that the alternative claim had prospects of success. While he ‘felt unease’ in saying it, he concluded that it would not be in the interests of justice to allow the appellant to make that change at such a late stage.[10][9] [2022] SAET 107 at [162].[10] [2022] SAET 107 at [163]. In the event, the judge accepted the medical hypothesis that the appellant’s incapacity was due to physical and psychological causes:[11]I find that Ms Brown’s incapacity for work and need for medical treatment is the result of a combination of things: a brain injury; and a conversion disorder and other psychological issues that are partly caused by the brain injury, partly caused by emotional stressors related to the soccer ball incident and its aftermath, and partly caused by other stressors, such as the lingering consequences of the 2017 motor vehicle accident.[11] [2022] SAET 107 at [211].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.