Brown v Department for Education

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.