Bulga Coal Management Pty Ltd v Sager

[2004] NSWCA 443

NEW SOUTH WALES COURT OF APPEAL

CITATION:      BULGA COAL MANAGEMENT PTY LTD v SAGER [2004]  NSWCA 443

FILE NUMBER(S):
41219/03

HEARING DATE(S):               24 November 2004

JUDGMENT DATE: 24/11/2004

PARTIES:
Bulga Coal Management Pty Limited - Appellant
Gary Allan Sager - Respondent

JUDGMENT OF:       Mason P Sheller JA Tobias JA   

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S):          18545/02

LOWER COURT JUDICIAL OFFICER:     Truss J

COUNSEL:
H N Kelly SC - Appellant
L King SC/D R Benson - Respondent

SOLICITORS:
Rankin & Nathan - Appellant
Reid & Reid - Respondent

CATCHWORDS:
WORKERS COMEPNSATION ACT 1987 s11A - whether employment was a substantial cause of the psychological injury - meaning of 'substantial' - whether s11A(5) taken into account.

LEGISLATION CITED:
Workers Compensation Act 1987

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41219/03
CC 18545/02

MASON P
SHELLER JA
TOBIAS JA

Wednesday, 24 November 2004

BULGA COAL MANAGEMENT PTY LTD v SAGER

Judgment

1. SHELLER JA: Bulga Coal Management Pty Limited appeals from a decision of her Honour Judge Truss sitting in the Compensation Court,given on 15 December 2003. The respondent, Gary Allan Sager, claimed weekly payments from 20 August 2002, together with expenses under s60 of the Workers Compensation Act 1987, as a consequence of a psychological injury which he alleged resulted from events in the workplace on and prior to 19 August 2002.

2. The respondent, who was born on 3 November 1950, had worked in 1979/1980 as a casual truck driver.  In the course of that employment in 1980, he was involved in an accident while driving a 50 tonne dump truck.  As he was entering a tunnel, the brakes of the truck failed and it hit a wall.  The principal injuries to Mr Sager were in the face.  His nose was broken.  He never resumed that employment but made no claim for compensation because he did not believe he had any entitlement.  The respondent said that he suffered flashbacks and bad dreams after the accident.  He was unable to say for how long these symptoms continued but he said that thereafter he became afraid of trucks.  After a couple of months, the respondent sought other employment and worked in the building industry driving various vehicles including bobcats, excavators and loaders and he also drove a mini concrete truck on a casual basis.

3. Between March 1984 and some time in 1988 he worked for the Electricity Commission.  He generally drove a backhoe and sometimes a three tonne tip-truck on site.  This did not worry him.  His problems were with larger dump trucks.

4. In the later 1980s, he commenced employment at Mount Thorley mine as a plant operator and drove vehicles such as dozers, front-end loaders, graders, scrapers and excavators.  The respondent was asked to become skilled on trucks but said that he was unable to do so.  In December 1994 he began employment with the appellant.  On his application for employment he told a Mr Archer that he did not drive trucks.  Before 2001 in this new employment the respondent was not required to drive trucks.

5. The respondent was off work for some period and apparently returned in early June 2002.  Sometime in mid 2002, he had a conversation with Michael Carrucan, the mine manager, about being trained in trucks.  He said he would try but was very panicky about it.  He said at that time the pressure was getting to him and he used to come to work worried about being on the trucks.  He took some sick leave and some long service leave.  The appellant referred him to a Dr Sagar, a consultant psychiatrist, about his problem.  On 31 July 2002, Dr Sagar reported,

   “Mr Sager is experiencing a phobic anxiety to driving trucks which, no doubt related to the past trauma of the truck accident and may have been exacerbated by the losses of close family members that he has experienced recently.  Breaking his ankle rock fishing would not have helped his sense of impermanence and may have also contributed to his anxiety.”

6. Judge Truss said that Dr Sagar recommended that the anxiety be managed by introducing a programme of cognitive behaviour therapy in association with his general practitioner who could be engaged in a case management plan which might need to involve a psychologist.  Dr Sagar also said:

   “He should not be rushed to drive trucks but such a treatment program could gradually help him overcome the anxiety.  A six month period would seem to be a reasonable time frame for this to take place.  If there has been little improvement over the first three months it would not be unreasonable to think of a psychiatrist’s involvement.”

7. The respondent returned to work on 19 August 2002 and a conversation took place with Mr Carrucan, the contents of which was in dispute.  However, amongst other things, it involved Dr Sagar’s recommendation.

8. Judge Truss said that having considered the evidence as to this conversation she considered it more probable than not that the conversation was longer than the respondent recalled and that Mr Carrucan did say more about training on the trucks than the respondent said in evidence.  However, given the circumstances of the meeting and the fact that Mr Carrucan did not have the psychiatrist’s report with him, her Honour considered it probable that he said less to the respondent about what the appellant proposed to do than he claimed.

9. The respondent saw his general practitioner, a Dr Clark, and was subsequently assessed by Dr Lambeth, a psychiatrist, at the request of his solicitors on 12 December 2002.  Dr Lambeth’s diagnosis was moderate post traumatic stress disorder, severe major depression and a moderately severe generalised anxiety disorder.  Dr Lambeth considered it more probable than not that his symptoms were brought on by his employer trying to force him to drive trucks which had reawakened the symptoms of a post traumatic stress disorder.  Dr Lambeth opined that the respondent’s post traumatic stress disorder were quite sufficient to prevent him from returning to the workforce.  He made recommendations as to treatment.

10. The respondent also saw another psychiatrist, Dr Vickery, but her Honour preferred the opinion of Dr Lambeth.  Her Honour said this:

    “There is no issue about the fact that the applicant suffers from depression and anxiety and having regard to the totality of the evidence I prefer the opinion expressed by Dr Lambeth and I am satisfied that the condition was brought about by the respondent requiring him to drive trucks. However, that is not the end of the matter as the applicant has to satisfy a s11A(1) [of the Workers Compensation Act] in the form enacted by the Work Cover Legislation Amendment Act 1995 No 89.  The section relevantly provides: …”

    and her Honour then set out s11A(1). She continued,

    “I am satisfied that the applicant has established the requirements of subs(1)(a) namely that his employment was a substantial cause of the injury.  For the reasons expressed I am not persuaded by Dr Vickery’s opinion that his illness is constitutional in nature or results from the stressors in his personal life in 2000.  In my view the evidence establishes overwhelmingly that he developed the illness in response to the respondent requiring him to drive trucks against a background of what Dr Lambeth considered was a post traumatic stress disorder resulting from the earlier accident.”

11. Her Honour considered other matters that I need not refer to on this appeal.  Ultimately, her findings were:

    “1.On and prior to 19 August 2002 the applicant suffered psychological injury in the course of his employment with the respondent.

    2.He has been totally incapacitated thereby from 20 August 2002 to date and continuing.

    3.            His current weekly wage rate was $1,562.

    4.            His probable earnings uninjured are $1,630.”

12. Her Honour went on to make awards and orders in consequence of those findings. It should be observed that in the course of her Honour’s reasons no mention is made of s11A(5) of the Workers Compensation Act.

13. The appellant has, with the leave of the Court, filed amended grounds of appeal.  Ground A is:

    “Her Honour failed to give reasons and/or consider s11A(5) of the Workers Compensation Act 1987 as it applies to coal miners in finding that the respondent suffered psychological injury in the course of his employment with the appellant.”

14. The substance of the appellant’s case, which was ably argued by Mr Kelly SC, was that her Honour had failed in the manner suggested in ground A. and that, accordingly, there was a failure to give appropriate reasons which called for a new trial.

15. Her Honour, in her reasons for judgment concentrated, so far as appears from what she said, appropriately on s11A(1)(a) which provides that no compensation is payable under the Act in respect of an injury that is a psychological injury unless the employment concerned was a substantial cause of the injury.

16. It is apparent that when considering that question her Honour’s attention was not directed to the decision of this Court in Mercer v ANZ Banking Group Limited (2000) 48 NSWLR 740, a case which was concerned with the language of s9A of the Workers Compensation Act.  In the course of his judgment, the President, with whom the other members of the Court agreed, said:

    “26The term ‘substantial’ may have various shades of meaning.  Having regard to the context, it may mean ‘large or weighty’ or ‘real or of substance as distinct from ephemeral or nominal’:  Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 at 348, per Deane J; Wong v Silkfield Pty Ltd (1999) 73 ALJR 1427 at 1433 [27].

    27Here the word ‘substantial’ qualifies ‘contributing factor’. Obviously it is the extent of the causal link which is at issue. Judge Bishop recognised this. At 273 [29] of his judgment he held that the meaning to be adopted was that ‘substantial’ meant ‘more than minimal, large or great’. In my view this was the correct approach, remembering that word is used in a relative sense, recognising that other causative factors may be present. Section 9A does not require that the employment must be ‘the’ substantial contributing cause, nor does it attempt to exclude predisposition or susceptibility to a particular condition: cf University of Tasmania v Cane (1994) 4 Tas R 156.

    28This interpretation of ‘substantial’ accords with the Attorney-General’s Second Reading Speech set out at [12] above.”

17. Mr Kelly informed the Court that on his instructions reference had been made to s11A subs (5) which provides,

    “A worker’s employment is not to be regarded as a substantial cause of a psychological injury merely because the employment is a real or actual cause of the injury.  The term ‘substantial’ is used in this section in the sense of real and important.”

18. The transcript of the argument before her Honour does not reveal any reference to the subsection though there is a passage in which counsel submitted:

    “The substantial connection that is required is of course one which must be of a real and important nature.”

19. This particular part of the Workers Compensation Act has had a history in terms of repeal and re-enactment by various means.  However, it is agreed that, although subs (11A) was repealed in 1996, the sections as I have quoted them applied in this case to this particular worker.  It is very difficult to appreciate what qualification is intended by the second sentence of subs (5).  It is by no means plain that it is intended to impose a qualification additional to the words, “a substantial cause” which, as it were, gives a higher hurdle to be passed by a worker in order to recover compensation for psychological injury.  It seems to me there is a lot to be said for the argument that, in fact, if anything, sub (5) reduces the barrier for recovery.  However that may be and even though I am not satisfied that the text of subs (5) was brought to the attention of her Honour, had it been brought to her attention the same result would, in my opinion, have been inevitable on the findings that her Honour made.

20. In paragraph 28 of her Honour’s judgment, which I have quoted, she said that in her view the evidence established overwhelmingly that the respondent developed the illness in response to the appellant’s requiring him to drive trucks against a background, of what Dr Lambeth considered was a post traumatic stress disorder, resulting from the earlier accident.  There could be no doubt whatever in my mind that her Honour was correct in concluding that that was a substantial cause of the injury in the sense discussed by the President in Mercer to which I have referred.

21. It seems to me to be inevitable that it was also an important cause of that injury if one takes account of the language used in subs (5).

22. It is accepted by the parties that the only appeal that lies to this Court from this decision is on a question of law. Pt 51, rule 23 of the Supreme Court Rules provides that the Court of Appeal shall not order a new trial in a case such as the present unless it appears that some substantial wrong or miscarriage has been thereby occasioned.

23. In my opinion, the failure of her Honour to draw attention to and perhaps to take account of the language in the second sentence of para 5 is not one which could give rise to any substantial injustice.  It seems, as I have said, clear to me that even taking account of the use of the word, important, in that subsection the same result would be inevitable.

24. The second ground of appeal was not pressed in the sense that it was accepted that if the appellant failed on ground (a) there was no basis for putting ground (b).

25. Accordingly, in my opinion, the appeal should be dismissed with costs.

26. MASON P: I agree. Whatever the second sentence of subs(5) means, there was in my view no substantial wrong or miscarriage in the present case. The factual conclusions of her Honour show that it is inevitable that she would have affirmed the application of s11A(1) even if her intention had been specifically directed to subs(5). I agree with the orders proposed.

27. TOBIAS JA:  I agree with what has been said by both the President and Sheller JA and with the order that Sheller JA proposes.

28. MASON P:  The appeal is dismissed with costs.

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LAST UPDATED:               10/12/2004