Dayton v Coles Supermarkets Pty Ltd
[2001] NSWCA 153
•1 June 2001
CITATION: Dayton v Coles Supermarkets P/L [2001] NSWCA 153 FILE NUMBER(S): CA 40294/00 HEARING DATE(S): 09/05/01 JUDGMENT DATE:
1 June 2001PARTIES :
Arnold Dayton
v
Coles Supermarkets Pty LimitedJUDGMENT OF: Meagher JA at 1; Giles JA at 20; Davies AJA at 35
LOWER COURT JURISDICTION : Compensation Court LOWER COURT
FILE NUMBER(S) :30427/99 LOWER COURT
JUDICIAL OFFICER :Burke CCJ
COUNSEL: A: Mr P Blacket SC/M Thompson
R: Mr J Hislop QC/B RocheSOLICITORS: A: RTW & Associates
R: Lander & RogersCATCHWORDS: Workers Compensation - compensation sought for schizophrenia caused by stressful events in the workplace - whether employment substantial contributing factor to injury - meaning of 'substantial' in Workers Compensation Act (1987), s9A - whether worker suffered an 'injury' - whether acts arising out of or in the course of employment - appeal dismissed. LEGISLATION CITED: Workers Compensation Act 1987 (NSW) s 9A CASES CITED: Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees' Union (1979) 27 ALR 367
Zinc Corporation Ltd v Scarce (1995) 12 NSWCCR 566DECISION: Appeal dismissed with costs.
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
40294/00
MEAGHER JA
GILES JA
DAVIES AJA
Friday, 1 June 2001
FACTS
The appellant was employed at the Pagewood store of the respondent, Coles Supermarkets Pty Limited. He alleged that stressful events which occurred at work caused him to develop schizophrenia, and sought workers’ compensation. The trial judge dismissed the appellant’s claim on the basis that the stressful events complained of were not a substantial contributing factor to the appellant’s injury. His Honour found that the major causes of the appellant’s illness were a genetic or biological susceptibility to schizophrenia and his prolonged use of marijuana. The first ground of appeal was that the trial judge erred in the meaning he gave to ‘substantial’. His Honour’s finding as to role of marijuana in the aetiology of the illness formed the second ground of appeal.
HELD
per Meagher JA & Giles JA (Davies AJA not expressing an opinion):
(i) The trial judge’s finding that the work stresses were a “rather minor” factor in the aetiology of the illness is a finding of fact which is immune to challenge.
Per Meagher JA, Giles JA & Davies AJA:
(ii) The trial judge was correct in finding that the work stresses were not a substantial contributing factor to the appellant’s development of schizophrenia.
Per Meagher JA: The appellant’s submission that the fact that a factor was ‘minor’
does not prevent it from being a substantial one should be rejected.
Per Giles JA: A contributing factor which is minor in comparison with two other
substantial factors, is not a substantial contributing factor.
Per Davies AJA: The words ‘substantial contributing factor’ in s9A of the Act
require that compensation be paid only when the employment contributed to the
injury in a manner that is real and of substance.
Per Meagher JA & Giles JA (Davies AJA not expressing an opinion):
(iii) There was proper foundation for the trial judge’s finding that the appellant’s use of marijuana was an operative factor in his development of schizophrenia.
Per Meagher JA:
(iv) A finding well open on the evidence was that the appellant did not suffer any injury, but a mere emotional reaction.
(v) Many of the stressful events complained of were not acts arising out of or in the course of the worker’s employment.
ORDERS
1 Appeal dismissed with costs.
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
40294/00
MEAGHER JA
GILES JA
DAVIES AJA
Friday, 1 June 2001
1 MEAGHER JA: This is an appeal by a worker from a decision of Burke CCJ refusing to make an award in his favour. He claimed compensation because he had developed schizophrenia, which he said was caused by stressful events which occurred when he was working at the Pagewood store of the respondent, Coles Supermarkets Pty Limited.
2 On 17 January 1997, in the course of a dispute between the company’s acting manager, Miss Dana Malovic, and the worker’s brother, Mr Gerald Dayton, Miss Malovic made reference to the fact that the appellant had been guilty of sexual harassment to a fellow female worker. This intelligence was transmitted by one brother to the other. On the same day there followed another meeting between both brothers and Miss Malovic. That meeting was stormy.
3 Three days later, on 20 January 1997, Mr Lee, the employee’s manager, returned from leave, and, being apprised of the matter, set up another conference with the brothers Dayton. A few other people were present. There was a general airing of grievances; Mr Lee said “Dana should keep her big mouth shut”. Mr Lee’s intervention abated the stressful impact of prior events.
4 His Honour found that the accusation of sexual harassment was well founded.
5 A further cause of distress occurred on 22 January 1997 when the appellant apparently stole the key to Mr Lee’s desk, opened the desk and read three documents there concerning himself. These dealt not only with the complaint of sexual harassment to which I have referred, but also to some similar acts of misconduct which were said to have occurred when he was employed at Franklins.
6 The events of 22 January were another cause of stress.
7 I should add that, in setting out the above facts, I have adopted, as I am obliged to do, his Honour’s findings on those facts. The appellant’s version was rather different. His Honour was not impressed by either the appellant’s credibility or his veracity. In fact he stated his views on the appellant in trenchant terms:
“On any critical matter where there is acceptable evidence contrary to that of Arnold and Gerald I tend to accept it. I do not regard their evidence on such matters as accurate nor, on occasion, as subjectively truthful. Their account of the meeting with Dana on the Friday is a highly sanitised misrepresentation of what actually took place. That was actually as deposed by Dana. I do not accept their evidence regarding the consultation with the Surrey Hills doctor. I do not accept Arnold’s advice that the statement of Dana Malovic was lying on David Lee’s desk but rather Lee’s account that it, with the others, was carefully locked away in the drawer. I do not accept the accuracy or truth of the histories furnished by Arnold to qualified doctors particularly the alleged swift onset of paranoid or delusional symptoms. The first recorded complaint of other that (sic) anxiety, depression and such like is by Dr Ng on 23/5/97 when he clearly notes paranoid symptomatology. There are other references in the evidence to matters which could raise issues of credibility but with which the applicant was not really taxed and was given little opportunity to deal with. These include Gerald’s reference to him seeking work on 22/3/97 from the publican [42] and Arnold’s account to Dr Ng on 16/5/97 that he was working three days per week [25]. Such do not stand consonantly with the general trend of Arnold’s evidence but can be set aside on an issue of general credibility".
8 The appellant stayed away from work for almost the whole of 1997. However, he did resume work on 11 December 1997 and stayed at work until 5 March 1998, when he was admitted to hospital with acute appendicitis. He has not returned to work since then.
9 He saw a psychiatrist called Dr Ng on 2 May 1997 and was there diagnosed as suffering from paranoid schizophrenia. Without going into details, his brother was quite accurate when he described the appellant as “quite cuckoo”. However, there is no record of schizophrenia before that date; in fact, its existence is negatived by a Dr Toohey on 17 March 1997; and his Honour found as a fact that it did not come into existence until May 1997.
10 The question which was posed for his Honour was whether his schizophrenia was compensable under the Workers Compensation Act 1987 (NSW), particularly in the light of s 9A of that Act. That section is in the following terms;
- “9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of that employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she has not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
- (a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
11 His Honour held that Mr Dayton’s employment was not a substantial contributing factor to his schizophrenia (assuming it to be an “injury” within the meaning of the Act). His Honour found that the main cause of the schizophrenia was Mr Dayton’s genetic or biological susceptibility to that condition , and that another major additional cause was his prolonged use of marijuana.
12 No challenge was mounted to his Honour’s finding as to the main cause. His Honour’s finding as to marijuana was, however, challenged. I find this surprising, as Mr Dayton in cross-examination admitted to using that substance for upwards of thirteen years before the incidents under discussion.
13 His Honour regarded the work incidents as constituting a “rather minor” factor in the aetiology of the disease, although perhaps constituting a triggering factor in an otherwise latent condition. That seems to me a finding of fact which was immune to challenge.
14 The appellant’s attack on this finding is based on the language of Deane J in Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees’ Union (1979) 27 ALR 367 who expressed the view that “substantial” meant (in the context of different legislation) “real or of substance and not insubstantial or nominal”. In the present context, the appellant submitted that a thing can be “minor” without being either “insubstantial or nominal”, and since the work experiences of the appellant were neither “insubstantial” nor “nominal” the fact that they were only “minor” did not prevent them being “substantial”.
15 This argument should be rejected. Logically, it would mean that all causative happenings would have to be treated as “substantial” however insignificant they were, or (in other words) that the word “substantial” has no meaning.
16 Many judges have spent a great deal of time and difficulty analysing and pondering the meaning of the word “substantial”. But this word is a plain English word which is understood by anyone who is not a judge. Nor have the endless judicial lucubrations on the word contributed to anyone’s understanding of it. And nobody in their senses would regard a cause which could be correctly categorised as very “minor” as “substantial”.
17 There are other reasons why his Honour’s judgment should be upheld. One is that, in the vital period between 17 January 1997 (when Miss Malovic first mentioned this subject) and 22 January 1997 (when the worker unlocked his employee’s desk with a key which he stole) the worker did not suffer any injury, but mere emotional reaction. This is a finding well open on the evidence, and a finding of fact at that. That makes the appeal impossible to uphold: see Zinc Corporation Ltd v Scarce (1995) 12 NSWCCR 566.
18 A second additional reason why this appeal must fail is that neither the worker’s harrassment of his women co-workers, nor his theft of the desk key, nor his reading of the documents contained in the desk were acts arising out of or in the course of the worker’s employment. They were acts done by him for the furtherance of his own ends. This underlines the absurdity which would arise if any employer were to incur a substantial financial liability merely because he rebuked an employee for proven misconduct.
19 In my opinion, the appeal should be dismissed with costs.
20 GILES JA: The events of 17, 20 and 22 January 1997 are sufficiently described in the judgment of Meagher JA. Burke CCJ found that the appellant’s employment was not a substantial contributing factor to the schizophrenia which came about in May 1997, so that by force of s 9A(1) of the Workers’ Compensation Act 1987 (“the Act”) no compensation was payable. Appeal lies only in point of law (Compensation Court Act 1984 s 32).
21 The appellant’s principal submission was that there was error of law in the meaning given by his Honour to “substantial” in s 9A(1) of the Act. The provision is set out in the judgment of Meagher JA.
22 The only appellate decision involving the meaning to be given to “substantial” in s 9A(1) is Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740. As was noted (at 745), s 9A(1) speaks of “a substantial contributing factor”, not “the substantial contributing factor”, so there may be more than one substantial contributing factor to the injury; “substantial” qualifies “contributing factor”, indicating that it is the strength of the causal linkage that is in question; and it is ”the employment concerned” which must be a substantial contributing factor, meaning not the fact of being employed but what the worker was doing in his employment.
23 In Mercer v ANZ Banking Group Ltd it was said that the trial judge’s adoption of the meaning “more than minimal, large or great” was “the correct approach, remembering that [the] word is used in a relative sense, recognising that other causative factors may be present” (at 747). It was said that this interpretation of “substantial” accorded with the Attorney General’s second reading speech, in which the limitation to where employment is a substantial contributing factor to the worker’s injury was described as “in line with the primary objective of compensating workers who suffer injuries that have a proper link with the workplace, rather than those whose injuries have only a remote or tenuous connection with work” (also at 747). And it was also said that “a substantial contributing factor” is not a concept as stringent as or more stringent than that of “arising out of” the employment, and it appeared to be accepted that a worker’s employment would be a significant contributing factor to his injury if he was struck by a bolt of lightning at his work place (at 747-8).
24 With the utmost respect, I perceive some tension in these various observations, and have some difficulty in gaining from the decision clear guidance as to the meaning of “substantial” in s 9A(1). But I do not think it necessary in the present case to attempt to add to the long-standing debate about the shades of meaning which may be attributed to the word “substantial”.
25 Early in his discussion of s 9A Burke CCJ said that -
- “ … there will never be a definitive statement of the ambit or scope of the concept of ‘substantial contributing factor’. It will forever remain a question of impression and degree in any particular case.”
26 His Honour found that the operative factors in the appellant’s schizophrenia, in order of importance, were what he variously described as a constitutional susceptibility, a constitutional vulnerability, and a genetic or biological susceptibility; the appellant’s use of marijuana; the stress associated with reading the documents in Mr Lee’s desk; and the prior stresses of the accusations. The first two factors were obviously unrelated to the appellant’s employment, and were found by his Honour to have been substantial factors (see for example the passage set out in para [12] below). His Honour said that even if the stresses were employment factors and were added together, he would “regard the totality as rather minor compared to the other identified major elements and even collectively not a substantial contributing factor”. He regarded the stresses as “much in a last straw category”, and said that “[t]he real problem is all the other straws”.
27 It is evident that, so far as his Honour had expressed a view as to the meaning of “substantial” in the abstract, it was not determinative to his conclusion. His reasoning was that the contribution of the stresses if they were employment factors, meaning as I understand it the contribution of the appellant’s employment as a factor in the causation of the appellant’s schizophrenia by reason of the stresses, was minor in comparison with the two other factors which he regarded as substantial, and did not amount to a substantial contributing factor. It was sufficient for his Honour’s conclusion that a contributing factor which was minor relative to other and substantial contributing factors was not a substantial contributing factor.
28 It should be added that his Honour considered that the third factor was not an employment factor because it was outside the fulfilment of the appellant’s employment and the result of something done in pursuit of personal objectives. His Honour appears to have taken much the same view of the fourth factor . He found that the complaint of sexual harassment was well founded, and said that “the genesis of the accusations arose from activity outside the course of the employment”. It is not necessary to consider the correctness of his Honour’s reasoning in this respect (cf Mercer v ANZ Banking Group Ltd at 747).
29 The finding as to relative contributing factors is a finding of fact. As his Honour said, it is a question of impression and degree; see also the recognition in Mercer v ANZ Banking Group Ltd that there is “a broad area within which the personal judgment of the individual judge as to what is ‘substantial’ may be determinative” (at 748-9). Whether or not “substantial” in s 9A(1) calls for something more, in my opinion his Honour was correct in regarding the stresses, as a contributing factor which was minor in comparison with two other factors each of which is found to be substantial, as not substantial. On the findings of fact made by his Honour, his conclusion was correct. Accordingly, it does not matter whether or not his Honour’s early statement of what the word conveyed was an overstatement. If it were regarded as an error of law, it was not an error directing the outcome in the proceedings.
30 The appellant’s subsidiary submission was that there was error of law in that there was no evidence to support his Honour’s finding as to the use of marijuana as an operative factor in his schizophrenia. If so, it was said, the foundation for his Honour’s reasoning earlier described would be lost.
31 I have already referred to the finding that the appellant’s use of marijuana was an operative factor in his schizophrenia. In particular, his Honour said -
- “Marijuana, in the medical literature in evidence, is a psychototomimetic – its effects mimic psychosis. I accept the view of Dr Donsworth that marijuana was a likely factor in producing the ultimate psychosis. It appears on the totality of the evidence to have been a substantial factor in that outcome the only more substantial factor probably being the constitutional vulnerability.”
32 The appellant submitted that Dr Donsworth had not said that marijuana was a likely factor in his schizophrenia, pointing to that part of the conclusion to her report in which she said that it was “also possible that marijuana brought on a drug-related psychosis which has subsequently developed into a more typical schizophrenic illness”. This, the appellant said, was much less than a view that marijuana was a likely factor in producing his schizophrenia.
33 I do not think that this pays sufficient regard to Dr Donsworth’s report and the setting in which she gave it and his Honour relied on it. The report referred, with apparent acceptance, to a study said strongly to support the hypothesis that cannabis use exacerbated the symptoms of schizophrenia and probably also precipitated schizophrenia in vulnerable persons. Dr Donsworth considered the appellant a vulnerable person. The report also recorded that the appellant had not given a history of substance abuse to one doctor, had told another of cannabis use only a few times, and had told Dr Donsworth that he did not use illicit drugs. The possibility to which Dr Donsworth referred was the possibility of more significant marijuana use, in which event there arose the probability of precipitation of schizophrenia. In fact the appellant had used marijuana extensively. Dr Donsworth’s report therefore provided a proper foundation for his Honour’s finding.
34 The appeal should be dismissed with costs.
35 DAVIES AJA: Section 9A of the Workers Compensation Act, 1987 (“the Act”) provides that no compensation shall be payable under the Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury. Subsection (2) specifies some of the matters to which regard should be had in determining this issue.
36 The word “substantial”, where it appears in s 45D of the Trade Practices Act, 1974 (Cth), was considered in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331. At p 348, Deane J said of the word “substantial”:-
- “In the phrase ‘substantial loss or damage’, it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big.”
His Honour concluded that the term “substantial loss or damage” in s 45D(1) included “loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal” . His Honour’s words have often been cited and applied in decisions of the Federal Court of Australia.
37 Likewise, in their context and particularly having regard to the list of factors specified in s 9A(2), the words “substantial contributing factor” require that compensation be paid only when the employment can be said to have contributed to the injury in a manner that is real and of substance. The section intends to exclude those many instances where, as a result of legal theory and extension of thought, liability has been found in cases where, as a matter of practical reality, the contribution which employment has made to the injury has little substance.
38 So interpreted, the section appears to me to have a clearer and more appropriate application than if the word “substantial” were used in the sense of words such as “serious”, “weighty”, “important”, “sizeable” or “large”, terms to which the trial Judge referred. The word “substantial” may be used appropriately in a range of circumstances. A matter which is large or weighty is also substantial. However, a matter may be substantial without necessarily being large or weighty. In s 9A, it is sufficient that the contribution be substantial.
39 I do not suggest that words other than those used by the section should be applied. The section uses the word “substantial”. Before ordering that compensation be paid, a court must be satisfied that the contribution of the employment was a substantial contributing factor to the injury. A decision as to what is or what is not substantial is a judgment which will not readily be set aside by an appellate court, particularly one whose jurisdiction is limited to errors of law.
40 The trial Judge found that the employment was not a substantial contributing factor to the appellant’s injury. No error in that finding has been demonstrated. The appellant’s psychological problems arose from his own act of sexually harassing a female employee, from her lodging a complaint with respect to his actions and from his improperly obtaining a copy of the complaint and of other statements from the locked draw of the manager’s desk. It was the appellant’s reaction on reading these statements that was the commencement of his psychological problems. The facts, as found by the trial Judge, do not suggest that the appellant’s problems arose from management’s handling of the complaint.
41 I agree with the orders proposed by Meagher JA.
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