Brown v Secretary, Department of Education
[2024] NSWPIC 435
•13 August 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Brown v Secretary, Department of Education [2024] NSWPIC 435 |
| APPLICANT: | Tanya Brown |
| RESPONDENT: | Secretary, Department of Education |
| MEMBER: | Lea Drake |
| DATE OF DECISION: | 13 August 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Applicant suffered a psychological injury as a result of the death of a child at her workplace and her consequent workplace obligations; applicant was further injured as a result of undertaking comparable duties following the death of a work colleague; Held – award for weekly payments of compensation to the applicant. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered a psychiatric injury in the employ of the respondent arising from the management duties undertaken by her as School Administration Manager at Pitt Town Public School following the death of a colleague on 8 December 2021. 2. The applicant’s employment with the respondent was the main contributing factor to that injury. 3. The applicant is totally incapacitated for work. The Commission orders: 1. There will be an award in favour of the applicant for weekly compensation payments pursuant to ss 36 and 37 of the Workers Compensation Act 1987. 2. The parties shall provide a draft order reflecting the terms of order 1 within seven days of the date of this decision. |
STATEMENT OF REASONS
BACKGROUND
Mrs Tanya Brown (the applicant) was employed by the Secretary, Department of Education (the respondent) for 25 years. She was the School Administration Manager at Pitt Town Public School (the school).
The applicant alleges two frank injuries. She does not rely on an allegation of a disease.
The first injury arose from the death of a child on 21 December 2014 who was killed by a falling tree in the grounds of the school (the first incident).
The second injury is alleged to be a compensable injury of itself, but it is also relied upon as a frank aggravation of the applicant’s previous injury. It is alleged to have arisen from the circumstances and duties which followed the death, on 8 December 2021, of a close friend of the applicant and a colleague at the school of 10 years standing (the second incident).
The applicant’s pre-injury average weekly earnings (PIAWE) was agreed as $1,431.03.
MATTERS IN DISPUTE
The core issue for resolution in this dispute is whether there is a causal link to the applicant’s injury from the performance of the applicant’s duties which followed the death of her colleague on 8 December 2021 and her employment.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
Mr Craig Tanner of counsel, instructed by Mr Damian Hill and Ms Jane Awad of McNally Jones Staff Lawyers appeared for the applicant. Mr Justin Hart of counsel, instructed by
Mr Bruce MacLean of Bartier Perry Lawyers, appeared for the respondent.I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
There was no oral evidence.
There was no application to adduce oral evidence or cross examine the applicant or any other witnesses as to any dispute before Personal Injury Commission (Commission).
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply to ARD (Reply) and attached documents.
The applicant’s evidence in relation to the first incident
The applicant’s work was incident free until February 2014.
To determine this application it is necessary to consider the circumstances of the first incident and its sequelae for the applicant. The applicant’s own evidence is best.[1]
[1] Applicant’s statement ARD page 1 para 9 to 40.
The applicant’s evidence in relation to the second incident
The applicant’s evidence in relation to the second incident is set out in her statement.[2] The colleague who died was the School Administration Officer, Ms Louise Roeder. The applicant described Ms Roeder as her right-hand person and a close friend.
[2] Applicant’s statement ARD page 5 para 41 to 55.
The applicant received the news of the death of her colleague at work. The applicant’s evidence as to the effect of that news was that it was “like the 2014 incident all over again”. She was involved in informing other staff and students of the death of Ms Roeder. Counsellors, neighbouring school staff and administration helpers arrived at the school. There were flowers everywhere.
The applicant felt she had to be there to support her colleagues and the students. She also felt that she needed to be there to have their support. The memory of what took place in these days is hazy. She found the situation to be almost identical to that which followed the death of the child in the first incident.
The respondent organised for her previous director Mrs Kerry Brickley to talk to her and convince her to go home. She had worked closely with Mrs Brickley after the first incident.
The applicant felt she could not walk away because the school and the community needed her.
On 16 March 2022 the applicant provided a statement to the insurer as follows:
“ …. What happened that day is hard to remember all staff members from other schools were turning up to offer their assistance on class and running the office as most people were too upset to function. There were counsellors on-site that day and for the next few days. This brought back so many memories for me of the accident that happened on the 22/2/2016 (sic) were a student at our passed away on-site. I was also close to this family so informed them of what had happened and ??? was diagnosed with PTSS which took me a long time to recover. as with this time I continued to attend work for approximately I with think now I think about it I don’t even know what I did but felt my duty to finish the term.”
The applicant has had a number of subsequent counselling sessions arranged through the respondent. The counsellor eventually suggested it would be difficult for her to return to the school.
The applicant’s medical history is set out in her statement. Liability was eventually refused, and the applicant used her sick leave and long service leave in lieu of payments of compensation.
Dr Nair [3]diagnosed the applicant as suffering from a post-traumatic stress disorder as a result of the first incident. He concluded that that condition was in partial remission when the second incident occurred. The death of Ms Roeder unfortunately “…involved a replay of events involving school management, and dealing with members of the public as she had encountered in 2014. This resulted in exacerbation of her underlying condition of Post-traumatic Stress Disorder. Hence, Mrs Brown’s employment was the “main contributing factor” to her condition”.
[3] ARD page 163.
The respondent’s evidence
The respondent did not provide any medical evidence in addition to the material attached to the Reply.
SUBMISSIONS
The applicant’s submissions
The applicant’s counsel addressed the duties which the applicant was obliged to perform after both incidents. The applicant’s obligation was to manage trauma at the school in the interests of the school community and the community at large in the respondent’s interest. She did this after the second incident as she had after the first incident.
Counsel referred to and relied upon a 2019 Court of Appeal decision of Secretary, New South Wales Department of Education v Johnson[4] which considered whether Ms Johnson’s injury arose from a first or second incident;
“66.The question for determination by the Appeal Panel was the degree of permanent impairment now suffered by the Worker as a result of the First Injury. That question was one of fact and the Appeal Panel’s reasoning was consistent with conventional principles of causation. There are three possible categories where an earlier injury is followed by a later injury, as follows: [8]
· Where the later injury results from a subsequent accident that would not have occurred had the victim not been in the physical condition caused by the earlier accident, the second injury should be treated as having a causal connection with the earlier accident.
· Where an earlier injury is exacerbated by a subsequent injury, there will be a causal connection between the original injury and the subsequent damage unless it can be shown that some part of the subsequent damage would have been occasioned even if the original injury had not occurred.
· Where a victim, who had previously suffered an injury, suffers a subsequent injury and the subsequent injury would have occurred whether or not the victim had suffered the original injury and the damage sustained by reason of the subsequent injury includes no element of aggravation of the earlier injury, there will be no causal connection between the original injury and the damage subsequently sustained.”
[4] 2019 NSWCA 321 at 70.
Counsel relied upon the second category of circumstance identified by the Court of Appeal and referred to the report of psychiatrist Dr Nair in support where, under the heading Reasoning, the doctor said that the second incident “…caused an exacerbation of her trauma based symptoms that followed the events in 2014”.
The applicant’s counsel submitted that whilst the second incident was capable of establishing a separate injury, the residual injury arising from the first incident made the applicant more vulnerable to an aggravation arising from second incident.
The respondent’s submissions
The respondent refused liability for the applicant’s claim on the basis set out in its s 78 Notice of 8 April 2022:
“On 7 March 2022, you reported that you had sustained a psychological injury and you reference an incident on 8 December 2021. You reported being very affected on hearing news that your colleague with whom you had worked for over 10 years had passed away unexpectedly. You indicate that you heard the news from your colleague’s daughter prior to coming to work. You also indicate that your colleague was a very close friend and the event had triggered memories of the previous incident at school.
In an email that you subsequently sent to a Allianz on 16 March 2022, you indicated that receiving the news of your colleague’s death was a terrible shock because you had been having dinner with her the previous evening.
The Certificates of Capacity issued by Dr Kian Pang indicate that you are suffering from PTSD and anxiety and that the injury happened on 8 December 2021 when a close colleague passed away. Compensation is only payable where an injury has been received. An injury is one that arises out of or in the course of employment.
In the circumstances that are described above, Allianz says that you have not sustained an injury arising out of or in the course of your employment. Allianz relies upon the reasoning of previous judicial determinations in particular in the matter of Stewart v NSW Police Service (1998) 17 NSWCCR 202.”
The respondent submitted that it must be the second incident itself that must satisfy ss 4 or 9A not the second incident in conjunction with the first incident.[5]
[5] King v Commissioner of Police 2004 2DDCC 416.
The respondent submitted that the duties performed by the applicant following the second incident were not substantial roles. They were different to the tasks she had to perform in 2014. It was a role and duties on the periphery. It was very different from the role she performed after the first incident. He submitted that her primary function was to tell the principal of the death of her colleague.
Given this situation it must necessarily be her grief which was the cause of her injury and not the circumstances of her employment. It was not work-related.
CONSIDERATION
The respondent did not dispute the applicant’s version of events or provide any contradictor to the medical opinion provided by Dr Nair, psychiatrist, in his very detailed report of
4 December 2023.[6][6] ARD page 148.
I am satisfied and find that the applicant engaged in significant management action in discharging her responsibilities after the tragic circumstances of the first incident.
I am satisfied and find that the applicant suffered an injury after the first incident. She performed her duties in managing that trauma. She suffered a psychological injury as a result of the death of the student and performing those duties.
I accept Dr Nair’s opinion that the applicant’s post-traumatic stress disorder suffered after the first incident did not resolve but was in partial remission.
I am satisfied and find that the applicant suffered a new and separate injury after the second incident. Contrary to the respondent’s submission I am satisfied that the applicant engaged in significant management action in discharging the responsibilities which arose following the death of her colleague. I accept that the duties consequent upon the second incident would necessarily have been less complex and less numerous because there had been no death on the premises. However, I reject the characterisation of these duties as peripheral. They are not merely incidental as submitted by counsel for the respondent. The front of office role in such circumstances must necessarily be significant. The performance of those duties is an inherent obligation of the applicant’s role. The interface with the school community must continue. Staff, students and parents must be dealt with. The applicant performed her duties in managing the second incident. She suffered a psychological injury as a result of performing those duties.
The grief the applicant suffered and acknowledged after the shocking loss of her friend, whilst significant, was not an injury suffered in the course of her employment.
The applicant suffered a separate injury following the second incident when performing duties in the same class of duty as she had performed following the first incident.
I am persuaded and find that repeating, after the second incident, the trauma management duties which arose after the first incident, injured the applicant and aggravated the injury which she had suffered after the first incident.
SUMMARY
For the reasons set out above the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.
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