Department for Health and Ageing v Li - [2018] SASCFC 52

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
DEPARTMENT FOR HEALTH AND AGEING v LI
[2018] SASCFC 52
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Bampton)
12 June 2018
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - IN GENERAL
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - PARTICULAR INJURIES, DISEASES AND DISABILITIES - OTHER INJURIES, DISEASES OR DISABILITIES
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - GENERALLY
Appeal by the Department for Health and Ageing against a determination by the Full Bench of the South Australian Employment Tribunal that it is liable to pay the respondent compensation for depressive illness. In making that determination, the Full Bench reversed the order of a Deputy President who heard the respondent’s claim and dismissed it on the grounds that the predominant employment cause of Ms Li’s depressive illness was reasonable administrative action.
In the present appeal before the Full Court, the Department for Health and Ageing appeals against the decision of the Full Bench on the ground that the literal construction it gave s 30A of the Workers Rehabilitation and Compensation Act 1986 (SA) was wrong in law. It contends that because the only, or predominant, employment cause(s) of the respondent’s depressive illness was the Department’s reasonable administrative action, her claim was precluded by s 30A even if personal stressors, extraneous to her employment, were the predominant cause of her illness.
The respondent filed a Notice of Alternative Contention supporting the decision of the Full Bench on two grounds. First, that the Deputy President did not address the question whether her employment, other than administrative action, was a substantial cause. Secondly, the reasons given by the Deputy President were inadequate in finding that no employment cause was contributing to Ms Li’s depressive illness at the time of her admission to Modbury Hospital, and reasonable administrative action was the predominant employment cause of Ms Li’s injury thereafter.
Held, per Kourakis CJ:
1. Both the construction of s 30A adopted by the Deputy President at first instance and the construction given to it by the Full Bench on appeal respectively were wrong in law (at [7]).
2. It is an implied condition of s 30A(a) that to qualify for compensation, an employment cause, which is not administrative action, must be a substantial cause of the injury (at [7]).
3. On a proper construction of s 30A, the question is whether an employment cause, other than reasonable administrative action, is a substantial cause of the illness, and if so, whether reasonable administrative action is nonetheless a predominant cause of the illness (at [82]).
4. The construction given by the Deputy President was in error and the Deputy President was duty bound, but failed, to address the questions on whether any aspect of the respondent’s employment, other than reasonable administrative action, was a substantial cause of her illness, and if so, whether her illness was predominantly caused by reasonable administrative action (at [83]).
5. The appeal should be allowed because of the error of construction made by the Full Bench. On a proper construction of s 30A of the Act, the Full Bench should have remitted the matter to a Deputy President to determine the matter in accordance with these reasons (at [86]).
Held, per Stanley J (Bampton J agreeing):
6. The construction given to s 30A by the Full Bench is wrong. The adoption of a literal interpretation of s 30A leads to an absurd result, contrary to the purpose of the provision (at [90], [107]).
7. The intended purpose of s 30A is to limit the compensability of psychiatric injuries by requiring proof that the employment is a substantial cause of the injury and that to the extent that the employment caused the injury it did not arise wholly or predominantly from one of the prescribed matters in s 30A(b) (at [101]).
8. The Deputy President’s factual findings are vitiated by the failure to address the evidence of workplace causes of the respondent’s depressive condition other than administrative action. That leaves open the possibility that there were employment related causes other than those arising from disqualifying actions (at [108]).
9. The appeal must be allowed, the orders made by the Full Bench set aside and the matter remitted to a Deputy President to determine the respondent’s claim in accordance with the proper construction of s 30A (at [108]).
Workers Rehabilitation and Compensation Act 1986 (SA) s 30A; Workers Rehabilitation and Compensation (Miscellaneous) Amendment Act 1992 (SA) (No. 84 of 1992); Safety, Rehabilitation and Compensation Act 1988 (Cth); Workers Compensation Act 1987 (NSW), referred to.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; Comcare v Martin [2016] HCA 43; King v Philcox [2015] HCA 19; Taylor v The Owners - Strata Plan No 111564 & Ors [2014] HCA 9; Inco Europe Ltd v First Choice Distribution (a firm) [2002] 2 All ER 109; Jones v Wrotham Park Settled Estates (or Wentworth Securities Ltd) [1979] 1 All ER 286, applied.
Li v Department for Health and Ageing [2016] SAET 40; Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42, not followed.
Workers Rehabilitation and Compensation Corporation v Rubbert (1991) 160 LSJS 257; Department of Education and Training v Sinclair [2005] NSWCA 465, discussed.

DEPARTMENT FOR HEALTH AND AGEING v LI
[2018] SASCFC 52
Full Court: Kourakis CJ, Stanley and Bampton JJ

KOURAKIS CJ: This is an appeal by the Department for Health and Ageing (the Department) against a determination by the Full Bench of the South Australian Employment Tribunal (the Tribunal) that it is liable to pay the respondent, Ms He Li, compensation for depression and anxiety (the depressive illness). In making that determination, the Full Bench reversed the order of a Deputy President who heard Ms Li’s claim and dismissed it on the grounds that the predominant employment cause of Ms Li’s depressive illness was reasonable administrative action.
Ms Li is a qualified nurse with special training in intensive care. She was born in China in October 1976 and attained qualification as a nurse there before arriving in Australia in 2006. She completed a Bachelor of Nursing degree at Flinders University in 2009. English is Ms Li’s second language and for that, and cultural reasons, she is very direct and forthright in her communications, speaking loudly and quickly. Ms Li’s communication style was apparently evident in the course of the hearing.
Ms Li commenced employment with the Department at the Lyell McEwin Hospital (the Hospital) on 7 January 2012 but in August 2012 took maternity leave and gave birth to her daughter in October 2012. In late March 2013 Ms Li attempted suicide and was admitted to Modbury Hospital. Ms Li returned to work in July 2013 but stopped work in March 2014, suffering from the depressive illness. It was common ground that stressors, which did not arise out of her employment, including the marital separation from the father of her child, substantially contributed to the depressive illness. Ms Li submitted a Workers Compensation Claim on 15 March 2014. The Department rejected Ms Li’s claim for income maintenance on the grounds that Ms Li’s condition did not satisfy the requirements of s 30A of the Workers Rehabilitation and Compensation Act 1986 (SA) (the Act) in that the only, or at least the predominant, employment cause(s) was reasonable administrative action taken by the Hospital. The Department’s rejection was confirmed by the Deputy President of the Tribunal, who heard Ms Li’s claim. The Deputy President found that the predominant of the employment causes of Ms Li’s depressive illness were personal. The Deputy President did not make a finding one way or another as to whether there was a substantial employment cause of Ms Li’s depressive illness other than reasonable administrative action. The Deputy President construed s 30A of the Act in a way that disentitled a worker from receiving compensation if reasonable administrative action was the only, or predominant, employment cause, even if it was not the predominant of all of the personal, and employment, causes, of a depressive illness.
The Full Bench set aside the Deputy President’s decision, holding that even assuming that the only employment causes were reasonable administrative action, on a proper construction of s 30A of the Act it was sufficient that the predominant cause of Ms Li’s anxiety and depressive injury were her non‑employment stressors, and that accordingly her entitlement to compensation was not precluded by s 30A(b) of the Act.
The Department has appealed against the decision of the Full Bench on the ground that the literal construction it gave s 30A of the Act was wrong in law. It contends that because the only, or predominant, employment cause(s) of Ms Li’s depressive illness was the Department’s reasonable administrative action, her claim was precluded by s 30A of the Act even if personal stressors, extraneous to her employment, were the predominant cause of her illness.
Ms Li has filed a Notice of Alternative Contention supporting the decision of the Full Bench on two grounds. First she contends that the Deputy President did not address the question whether her employment, other than administrative action, was a substantial cause. Secondly it is contended that the reasons given by the Deputy President were inadequate in finding that:
●no employment cause was contributing to Ms Li’s depressive illness at the time of her admission to Modbury Hospital; and
●reasonable administrative action was the predominant employment cause of Ms Li’s injury thereafter.
I would hold that both the construction of s 30A of the Act adopted by the Deputy President at first instance and the construction given to it by the Full Bench on appeal respectively were wrong in law. I would hold that it is an implied condition of s 30A(a) of the Act that to qualify for compensation, an employment cause, which is not reasonable administrative action, must be a substantial cause of the injury. If there is such a cause, s 30A(b) of the Act only precludes compensation if reasonable administrative action is the predominant of all employment and non‑employment causes of the mental illness. On that construction of s 30A, it was necessary to determine whether or not there was a substantial employment cause of Ms Li’s mental condition. Even though it is implicit in the reasons that the Deputy President was not so satisfied, the reasons fail to disclose why his Honour was not. Indeed, the Deputy President did not expressly address the question at all because of the erroneous construction his Honour gave s 30A of the Act. The Full Bench’s order setting aside the Deputy President’s decision should therefore be upheld on the first of the grounds in the Notice of Alternative Contention. However, the Full Bench was wrong to uphold Ms Li’s claim in the absence of a factual finding that her employment, other than reasonable administrative action, was a substantial cause of her illness. The Full Bench should have ordered that Ms Li’s matter be remitted for rehearing so that the factual question might be determined.
The evidence
In February 2012, within a month of Ms Li starting work at the Hospital, other staff members complained about her demeanour. A meeting was held between Ms Li, her supervisor, Ms Dorothy (Dot) Pannell and Ms Lois Scaife, a work colleague, on 15 February 2012 concerning her ‘aggressive’ communication style. Ms Li testified, but Ms Pannell denied, that she complained to Ms Pannell about the rudeness and aggressive communication styles of other staff to her but that she was ignored. Notes of the meeting record that it was an agreed outcome that Ms Li was to lower her voice and slow her speech. There was no record of any plan to make Ms Li’s colleagues aware of the personal and cultural factors which affected the way she communicated.
The reform of Ms Li’s communication style was taken further by the Director of Nursing, Ms Heather Saunders, and the Nurse Manager of Surgery and Intensive Care, Ms Elaine Roberts, at the Hospital. The Nurse Manager wrote to Ms Li on 7 March 2012 noting ‘with disappointment’ matters concerning her ‘professional behaviour and communication methods’. The letter described Ms Li’s communication as ‘hostile, aggressive, rude and non‑respectful in nature’. The letter concluded that the ‘issues are serious in nature’ and ‘would represent a breach in the Australian Nursery and Midwifery Council Code of Professional Conduct…’. A meeting with Ms Li was requested. The Deputy President, with respect, correctly concluded that the administrative action of writing that letter was not reasonable. I agree. The letter was heavy handed. It adjudged Ms Li guilty of unprofessional conduct without according her the procedural fairness required by such a serious charge. The judgment failed to have regard to Ms Li’s personal and cultural circumstances.
Ms Li testified, understandably, that the letter distressed her. She emailed the Nurse Manager describing it as ‘a shock’ and a ‘bully’ and informing her that she was feeling ‘very sad’. Ms Li raised the letter with a union official who then wrote to the Nurse Manager on 15 March 2012.
The workplace dispute escalated. Ms Saunders wrote to Ms Li on 2 April 2012 in similar terms to the letter of the Nurse Manager. That action too was unreasonable. Even though the Deputy President made no specific finding to that effect, the omission of the words ‘with disappointment’ did not change the effect of Ms Saunders’ letter. Both letters prejudged Ms Li’s conduct to be a breach of the nursing profession’s code of conduct.
Yet a further meeting was called on 4 May 2012. Ms Li, a union representative, Ms Saunders and Ms Pannell attended. The recorded outcome was the same; Ms Li was to lower her voice and slow her speech but it was not proposed that they inform Ms Li’s colleagues of the cultural and language reasons behind Ms Li’s communication style. On the other hand, Ms Li testified that Ms Saunders accepted that the allegation was a mere misunderstanding.
On 16 July 2012 a written complaint was made by a nurse to Ms Pannell about Ms Li’s refusal to engage in a handover at the end of her shift. On 25 July 2012, a complaint that Ms Li had communicated in a verbally aggressive way was made by another nurse. On 1 August 2012 four nurses signed a note that complained of Ms Li’s inadequate care of an unstable patient. A letter summarising the complaints was sent to Ms Li on 3 August 2012. Ms Li responded by asking for assistance in mediating ‘workplace bullying issues’. A meeting was held on 17 August 2012. The recorded outcome of that meeting was again that Ms Li would improve her communication style and be more tolerant and understanding. Ms Li denied that she had agreed to that outcome.
In August 2012 Ms Li travelled to China with her husband and in October of that same year gave birth to her daughter. She returned to Australia with her daughter in February 2013.
In late March 2013, whilst still on maternity leave, Ms Li was admitted to the Modbury Hospital after taking an overdose of medication. She was transferred to Woodleigh House, a psychiatric unit within the Modbury Hospital. During her stay there Ms Li attempted self-harm.
In the course of Ms Li’s cross-examination it was put to her that she told the doctor who admitted her to the Modbury Hospital that she had felt that there was no point in living for seven months, but that that feeling had ‘lifted’ when her daughter had been delivered. It was then put to Ms Li that on the day of her admission to the Modbury Hospital she did not express any concern to the doctor about the 3 August 2012 letter summarising the complaints made by other nurses. It was put to Ms Li that, in contrast, she did inform the admitting doctor about an argument with her husband. Ms Li responded that she did not mention the workplace incidents when she was a patient in Woodleigh House because she believed that her workplace disputes had been resolved in a meeting held in August 2012. Ms Li also testified that:
… at that time I only got marriage problem, that’s why I only talk about marriage problem when I was in Woodleigh House of Modbury Hospital. But which date what I said to doctor of Woodleigh House of Modbury Hospital I really have no idea, I can’t remember.
Ms Li returned to work on the completion of her maternity leave on 15 July 2013.
After Ms Li’s return to work on 15 July 2013 she engaged in email communications about her work hours and made complaints that she felt distressed and bullied. She asked to be rostered only for night shifts. Ms Li testified that Ms Pannell insisted that she work day shifts so that she would receive ongoing education and training. Ms Li testified that she saw this as a hostile and unreasonable decision. Ms Pannell testified that Ms Li requested that she work permanent night shifts, but that she was not able to comply with that request because the Hospital no longer offered permanent night shifts and because of her concerns about Ms Li’s work performance. However she provided Ms Li with as many night shifts as she could to accommodate her child care needs. The Deputy President preferred the evidence of Ms Pannell on the dispute over the rostering of Ms Li.
On 8 November 2013 Ms Li had a disagreement with a team leader over a patient’s fluid balance record. Ms Li testified that Ms Pannell told her that she should do as she was told by a team leader even if she thought that was wrong. Ms Pannell was not asked about that conversation but testified that on 29 July 2013 she sent an email to Ms Li concerning a disagreement between Ms Li and another nurse about a patient’s medication in which she counselled Ms Li that the conversation should have been held in private. Ms Li responded by email accepting that stricture.
Ms Li complained to Ms Pannell that on 5 December 2013 she was sent to the Special Care Nursery Unit where she had a disagreement with a team leader whom she believed had spoken to her rudely and aggressively. According to Ms Li, Ms Pannell refused to investigate the incident. Ms Pannell testified that she had received an email from another employee on 9 December 2013 complaining about Ms Li’s behaviour in a shift on the preceding Friday which had apparently left the team leader in tears. No administrative action appears to have been taken. There were complaints from other nurses about Ms Li’s rudeness and unprofessional conduct.
Ms Li also gave evidence about an incident on a night shift on 3 January 2014. During that shift she observed that another nurse had incorrectly recorded a patient’s vital signs. Ms Li felt that the other nurse was rude and aggressive to her in that exchange. Ms Pannell received an email from that nurse complaining that Ms Li had spoken rudely and loudly to her in an irrational and unreasonable manner.

On 20 January 2014 Ms Pannell met with Ms Li to discuss the complaints about her rudeness, the provision of medication and failure to follow ward-specific requirements. Ms Li was then placed on a Professional Development Plan (PDP). Ms Li consulted her union about that action. Further meetings were held in February about the PDP. Ms Li spoke with Ms Pannell on 2 March 2014 and, according to Ms Pannell, complained and expressed concerns about her co‑workers but not about Ms Pannell. Ms Li stated that she did not think the PDP was necessary. Ms Li testified that following that meeting she felt extremely distressed and anxious and made a claim for worker’s compensation.
The Deputy President at first instance found that Ms Pannell’s actions in January and March 2014 and in proposing the PDP were the provision of counselling within the meaning of s 30A(b)(i) of the Act. The Judge found that the actions were reasonable and taken in a reasonable manner. However, the Judge made no findings about the interactions with other nurses which led to that counselling:
[141]In her evidence Ms Li identifies the incidents involving other staff that allegedly occurred in July 2013, December 2013 and January 2014 as relevant stressors. The evidence does not enable me to make findings as to whether the allegations and counter allegations were true.
On 3 July 2014 Ms Li was admitted to Modbury Hospital with a drug overdose. On admission she gave a history of bullying at work.
The proper construction of s 30A of the Act
Section 30A of the Act provides:
30A—Psychiatric injuries
An injury consisting of an illness or disorder of the mind is compensable if and only if—
(a)the employment was a substantial cause of the injury; and
(b)the injury did not arise wholly or predominantly from—
(i)    reasonable action taken in a reasonable manner by the employer to transfer, demote, discipline, counsel, retrench or dismiss the worker; or
(ii)     a decision of the employer, based on reasonable grounds, not to award or provide a promotion, transfer, or benefit in connection with the worker’s employment; or
(iii)    reasonable administrative action taken in a reasonable manner by the employer in connection with the worker’s employment; or
(iv)    reasonable action taken in a reasonable manner under this Act affecting the worker.
In broad terms, the mischief addressed by the section is the making of, often unmeritorious, claims for compensation in response to administrative action with which a worker is unhappy. Such a claim may ultimately be rejected but only after much unnecessary time and expense. Section 30A allows many claims alleging administrative action as the only employment cause, to be summarily dealt with, if they are made at all. An associated mischief addressed by the provision is to remove an unnecessary inhibition on reasonable administrative action. Finally, the section reflects a community expectation that workers have the fortitude to accept reasonable administrative action without it causing mental illness. However, these broad considerations are insufficient to dictate precisely how the section is intended to operate in a case such as this, in which there are substantial employment causes, other than the administrative action, which contribute to an illness predominantly caused by non-employment circumstances.
The Full Bench was correct to find that on a literal construction of s 30A(b) the question is whether the prescribed administrative action is the whole, or predominant, cause of the psychiatric injury. On that construction, all causes, both employment and non‑employment, must be considered and a determination made as to the whole or predominant cause.
The effect of that construction however is that in a case in which the only employment cause is reasonable administrative action, a worker who suffers a mental illness predominantly caused by personal circumstances is entitled to compensation. That results in the following paradox. If the reasonable administrative action were the only cause, the illness would not be compensable. If the personal circumstances were the only cause, again the illness would not be compensable. However, together these ineffective causes become effective causes. That result is inconsistent with the purpose of the section. In Department of Education and Training v Sinclair[1] Spigelman CJ identified a similar paradox.
[1] (2005) 4 DDCR 206 at [51].
The progenitor of s 30A was enacted by the Workers Rehabilitation and Compensation (Miscellaneous) Amendment Act 1992 (SA) (No. 84 of 1992) (the 1992 Amendment).[2] The amendment was made soon after the decision of this Court in Workers Rehabilitation and Compensation Corporation v Rubbert.[3] In that case the Full Court upheld an award of compensation for psychiatric injury, even though its only cause was the employer’s reasonable administrative action. The reasons of the Court variously describe the result as ‘strange’, ‘absurd’ and ‘curious’ but nonetheless necessary given the statutory language.
[2] As s 30(2a) of the Workers Rehabilitation and Compensation Act 1986 (SA).
[3] (1991) 160 LSJS 257.
There were two possible legislative responses to remedy the mischief revealed by the facts of Rubbert. The first was to preclude as compensable causes those stressors which arise wholly or predominantly from reasonable administrative action. The second was to preclude those illnesses, the only or predominant cause of which, is reasonable administrative action. Section 30(2a) enacted by the 1992 Amendment adopted the former approach.
Section 30(2a) provided:
A disability that consists of an illness or disorder of the mind caused by stress is compensable if and only if –
(a)stress arising out of employment was a substantial cause of the disability;
(b)the stress did not arise wholly or predominantly from –
(i)    reasonable action taken in a reasonably manner by the employer to transfer, demote, discipline, counsel, retrench or dismiss the worker;
(ii)     a decision of the employer, based on reasonable grounds, not to award or provide a promotion, transfer or benefit in connection with the worker’s employment;
or
(iii)    reasonable administrative action taken in a reasonable manner by the employer in connection with the worker’s employment.
In construing s 30(2a), the ordinary rule that the singular includes the plural must be applied. The effect is that only that work stress (stressor), which did not arise wholly or predominantly from reasonable administrative action, could be taken into account in determining whether work stress was a substantial cause of the disability. In the context of workers compensations it is not sensible to aggregate many stressors arising from different events and circumstances over a long period of time into an amorphous concept of work stress. It is to be observed that a number of different employment stressors may causally contribute to an illness. Some of those stressors may, considered alone, be a substantial cause of the resulting disability. Of those employment stressors, some may be reasonable administrative action, others may not. Accordingly, a worker was entitled under the 1992 Amendment to rely on a stressor which did not arise wholly or predominantly from reasonable administrative action. A worker was entitled to compensation if that stressor was a substantial cause of his or her illness even if other, and indeed the predominant, employment stressors were the result of reasonable administrative action.
Applying the 1992 Amendment to this case, the reasonable administrative action identified by the Deputy President would have to be put to one side, but other possible workplace stressors would require investigation to determine whether or not they were, in themselves, a substantial cause of the disability.
Section 30A in its current form is very different, both textually and structurally. It excludes an illness, the whole or predominant cause of which is reasonable administrative action.
It must be accepted that the manifest purpose in enacting both the 1992 Amendment, and of s 30A of the Act, was to preclude compensation for psychiatric injury when the only employment cause of the injury is an administrative action of the prescribed kind. As I have already observed in the case of Rubbert, the only cause of the injury was reasonable administrative action. It is not obvious to me that the absurdity identified in Rubbert extends to compensating a worker with a pre-existing vulnerability to psychiatric injury, who suffers incapacity as a result of a combination of that predisposition and a substantial employment cause, which is not reasonable administrative action, merely because reasonable administrative action is also a, but not the whole or predominant, cause of the disability.
Whether or not reasonable administrative action has been taken against an employee who is vulnerable psychologically for other reasons, and the timing of that action, is largely a matter of happenstance. So much may be illustrated by the example of a worker who is vulnerable psychologically, largely for personal reasons, whose condition is contributed to by reasonable administrative action but remains at work until finally incapacitated by an event at work which is not reasonable administrative action. If the last precipitating event is a substantial cause of the illness, why should the worker be denied compensation, even if it be the case that the earlier reasonable administrative action is the greater contributor of the employment causes?
A worker may also develop a psychiatric injury which is incapacitating even before administrative action adds further to that injury, and overwhelms the effect of the earlier employment cause. In yet another example, a worker might find himself highly vulnerable by reason of personal and employment causes, other than administrative action, such that a wide range of lesser, but nonetheless substantial, triggers might precipitate incapacity. If the trigger is a non‑employment cause, the worker is entitled to compensation. It is difficult to see why compensation should be denied if the incapacity is precipitated by reasonable administrative action which is a greater causal contributor than the earlier employment causes, but is a lesser contributor overall.
To compensate a worker whose incapacitating mental illness is predominantly caused by personal factors, but which has also been contributed to substantially by an employment cause, other than reasonable administrative action, is not inconsistent with the purpose of s 30A of the Act. Claims in such cases are less likely to be a strategic attempt to stymie the administrative action. Nor would it be inconsistent with the policy position that a worker should have the fortitude to deal with reasonable administrative action, because that action is a lesser cause of the condition as a whole. However, I acknowledge that the construction would still demand some care in the taking of administrative action against persons who are psychologically vulnerable, but that is not a bad thing. Finally, the construction I propose is not undermined by the paradox to which I earlier referred because there will always be a substantial employment cause which would have entitled the worker to compensation, irrespective of the effect of any reasonable administrative action.
There are also fundamental textual objections to the construction contended for by the Department and the Intervenor. The construction for which the Department and the Intervenor contend would have 30A(b) read:
the only, or predominant, of the employment cause or causes are not the matters set out in clauses (i) – (iv).
That construction does not merely read down any of the words of s 30A(b), it reads the word ‘injury’ out of sub paragraph (b) all together. It also involves reading words into the section so that it is the predominance of the reasonable administrative action as amongst the employment causes which is the disentitling factor. The construction changes the focus of sub paragraph (b) from the predominant cause of the injury to the predominant of the employment causes irrespective of whether any, or all, of the employment causes are the predominant cause of the mental illness or disorder. In effect, it reads s 30A of the Act as an even more restrictive form of its progenitor in the 1992 Amendment. That structure of the 1992 Amendment was abandoned by Parliament in 2015. It cannot be resurrected in a more virulent form by judicial implication. This Court should not strain the words of s 30A to force upon it a construction even less beneficial to injured workers than the 1992 Amendment.
Section 30A of the Act can be construed in a simpler manner which better accords with its purpose and adequately addresses the mischief to which it is directed by an orthodox and simple reading down of the word ‘employment’. The proper construction of s 30A is to be understood in the following terms:
·The word ‘employment’ in subparagraph (a) may be read down to exclude from its meaning those aspects of employment which are administrative actions of the kind prescribed in clauses (i)–(iii) of sub paragraph (b).
On that construction, subparagraph (a) would read:
the employment, other than an action or decision specified in (i), (ii) and (iii) of sub paragraph (b), was a substantial cause of the injury.
The reading down of subparagraph (a) of s 30A of the Act in that way does no more than give effect to the exclusion by subparagraph (b) of those cases in which the injury arises ‘wholly’ from action of a prescribed kind. By reason of that reading down, the word ‘wholly’ in subparagraph (b) will not have any work to do, however the subparagraph does operate to exclude those injuries, the predominant cause of which, is action of the prescribed kind. In short, no words are read down or omitted from the Act as a whole. The proposed construction effects only a syntactical re-arrangement as between subparagraphs (a) and (b).
I acknowledge that in Department of Education and Training v Sinclair Spigelman CJ adopted the construction for which the appellant contends in the present appeal.[4] However the proper construction of the New South Wales analogue was not the subject of a ground of appeal and it does not appear to have been the subject of opposing arguments. Certainly, alternative constructions which might also have removed the absurdity were not considered. Moreover, even though the worker in that case suffered from some pre-existing vulnerability there were no findings as to their contribution, and the only employment cause was administrative action, one aspect of which was found to be unreasonable. Ultimately the decision turned on the failure of the Judge, on an appeal from an arbitrator, to determine whether the reasonable administrative action was the ‘sole or predominant cause of the injury.’ The appeal was also allowed on the ground that the Judge failed to consider whether the delay in reaching a decision, which was otherwise reasonable, rendered the administrative action, as a whole, unreasonable. For all of those reasons I do not find the judgment of Spigelman CJ as persuasive on the question of statutory construction as I otherwise would. I respectfully maintain the construction I prefer.
[4] (2005) DDCR 206 at [58].
Applying the construction I would give to the section to this case, it can be seen that it is necessary to determine, as a matter of fact, whether or not any events arising out of Ms Li’s employment in the period before and after she took maternity leave were substantial contributing causes to her psychiatric condition. If any were, then Ms Li’s condition is properly compensable because it is accepted that the greater contribution to her illness arises from non‑employment matters. Whether or not the Deputy President adequately explained why he rejected any ongoing contribution from employment causes other than reasonable administrative action is therefore of critical importance.
The Judge’s reasons
The Judge found that there were no work related issues contributing to Ms Li’s psychological condition during her admission to Woodleigh House for the following reasons:
[138]I have no reason to doubt the accuracy of the notes of the Modbury Hospital and to Woodleigh House in respect of Ms Li’s admission there in March and April 2013. Ms Li was clearly very psychologically unwell over this time. I find that she was having significant relationship issues with her husband at around this time, that she did not have any support systems in Australia, and that she was socially isolated. I find that these factors were the cause of her illness. The absence of any attribution of work related issues as a source of her psychological problems was confirmed by Ms Li in her evidence before me. I find that there were no work related issues that were contributing to her psychological problems at that time.[5]
[emphasis added]
[5] Li v Dept for Health and Ageing [2016] SAET 40 at [138].
The emphasised sentence in that paragraph is both a finding that the notes do not record Ms Li’s employment issues as a source of her psychological problems and that Ms Li confirmed as much in her evidence, not only the day of her admission to the Modbury Hospital, but throughout her stay there, including whilst she was accommodated in Woodleigh House. It may be doubted that Ms Li’s evidence was to that effect. The questions in cross-examination were, probably for good reason, confined to what Ms Li had said at the time of her admission. Even though Ms Li, in one of her answers, spoke more generally of complaints during the whole period of her hospitalisation, she testified that she did not have a clear recollection of her stay there.
It is important to bear in mind that the immediate triggers of an acute episode of a psychiatric illness, as suffered by Ms Li, may be likely to be more prominent in the sufferer’s mind than other contributing causes to the underlying mental illness of which the acute episode is an exacerbation. Perhaps more importantly, a patient’s diagnosis of the causes of his or her own disease may not be reliable. Much will depend on the patient’s level of insight into his or her own disease. It is trite that it is generally safer to rely on the treating physician’s diagnosis.
Be that as it may, the Judge’s finding that there was no attribution of employment issues to Ms Li’s psychological condition in the notes is plainly wrong. True it is that the notes are replete with references to marital disharmony as a cause of Ms Li’s condition, and in particular that it precipitated her suicide attempt and consequential hospital admission. However, there are also notes recording Ms Li’s identification of workplace stressors.
The notes made by the medical practitioner Dr Goldsworthy of a consultation on 1 April 2013 record:
Lily has also struggled adjusting to work conditions in Australia. She states she was a senior nurse in a paediatric ICU in China however when she came to Australia her qualifications were not recognised. She had to study for two years. After graduating she found it difficult to enter the workplace at the bottom of the pecking order. There have been times that Lily has been ordered to give medication that she believes was not warranted and has refused to do so. Consequently colleagues have placed complaints about her.
I pause here to observe that it is inherently probable that Ms Li would find the transition to work in Australia stressful. The interactions with Ms Li’s fellow nurses, and the admonitions that Ms Li lower her voice and speak at a slower pace bespeak of a stressful transition of the kind identified by Dr Goldsworthy. The Deputy President failed, perhaps because this and other notes in the Modbury Hospital records slipped from his attention, to address this important part of Ms Li’s case. I also observe that Ms Li’s view on the question of the medication referred to in that note is of course not to the point. The very difference of opinion in itself is the workplace stressor.

Another note made by Dr Goldsworthy refers to Ms Li’s ‘work struggle’.
On 3 April 2013 another medical practitioner, Dr Joy Koehler, records Ms Li claiming that she had been ostracised when raising concerns about medication prescribed by doctors at both the Flinders and Lyell McEwin Hospitals. A nursing note made on 4 April 2013 records Ms Li disclosing that she had feelings of guilt about the treatment of an elderly patient who she thought was mistreated by other medical staff.
Notes made by Dr Koehler on 10 April 2013 record that Ms Li was looking forward to returning to work but that ‘if [she] feels [she] is being bullied at work again [she] will speak with nurse manager’. Implicit in Ms Li’s recorded statement is a complaint that she had been, or at least felt that she had been, bullied in the past. It is also implicit from the discussion with Dr Koehler about how she would manage bullying on her return to work and that she remained concerned about bullying at work.
Of course, at one level, the Deputy President’s erroneous statement that there was no attribution of employment causes to Ms Li’s psychological problems is simply an error of fact, but its importance for present purposes is that it shows that the Deputy President did not address a central question in the dispute his Honour was required to resolve.
The Deputy President received a report of Ms Li’s treating psychiatrist, Mr Neil Gehan, dated 28 September 2015. Dr Gehan observed that the notes of Ms Li’s hospital admission in April 2013 referred to Ms Li’s experience of workplace bullying. Dr Gehan’s report notes that he received from Ms Li a summary of work events between January 2012 and August 2012. In his evidence Dr Gehan described Ms Li as a perfectionist.
Dr Gehan also noted that separation references given to Ms Li on leaving employment in hospitals in China, Saudi Arabia and the Flinders Medical Centre spoke well of her work performance. He observed that they were not consistent with a person suffering from a personality disorder, which is ‘a deeply ingrained and maladaptive pattern of behaviour of a specified kind, typically apparent by the time of adolescence, causing long term difficulties in personal relationships or in functioning in society’. The Deputy President stated that he did not place much reliance on those work references because an individual’s personal circumstances may change. It can be accepted that for that reason, the references did not carry much weight insofar as there was dispute about how Ms Li had conducted herself. However, the point of Dr Gehan’s observation was that a diagnosis of a personality disorder is based on the individual’s behaviour being ingrained over time and not merely reactive or situational. Dr Gehan disagreed with Dr James Hundertmark’s diagnosis of borderline personality disorder because the historical evidence was against such a diagnosis, although he accepted that Ms Li demonstrated some traits associated with that disorder.
Dr Gehan’s report records that he diagnosed Ms Li’s condition to be a relapsing Major Depressive illness in July 2015. He diagnosed that condition to have been caused by work stress dating back to February 2012. Dr Gehan concluded that Ms Li’s employment was a significant and substantial trigger of her condition but did not differentiate as between the employment causes, and in particular those which were the result of administrative action, and those which were stressors arising from her interaction with other nurses or hospital staff.
Dr Gehan observed that the principal diagnosis made on Ms Li’s admission to the Modbury Hospital was that of a ‘situational crisis’ associated with the marital disharmony after the birth of a child, but that the differential diagnosis was one of depression. In a subsequent admission to Modbury Hospital, the secondary diagnosis was of Major Depressive Disorder.
Dr Gehan was asked in re-examination whether bullying at work was an issue for Ms Li in March 2013 when she was hospitalised ‘ostensibly for things to do with her relationship problems’. Dr Gehan answered:
Yes she certainly – and I know in the notes that I read she brought up about the bullying, in the – the brief assessment, Lyell McEwin, the year before, she just said some – like she was concerned about what was happening at work but when she was admitted in 2013 she did refer to it as bullying.
Dr Gehan was asked again whether the bullying was an issue when she was hospitalised. Dr Gehan replied:
That’s correct. The other thing that I’ve discussed with Ms Li is that she did have concerns about bringing up what was happening at work because she was being treated in the same health system and she was concerned about privacy and confidentiality.
The Deputy President received a report of the psychiatrist, Dr Jules Begg, dated 26 September 2014. The report records Ms Li’s ‘present symptoms’ having started in January 2014 after a meeting with her Nurse Manager and that she had been upset by a further meeting on 3 March 2014. Dr Begg recorded that Ms Li reported to him that she had had depressive feelings in 2012 due to workplace issues. He noted that the second page of the Discharge Summary from Woodleigh House refers to those issues. Ms Li told Dr Begg that she was distressed and anxious during 2012. Ms Li did not give Dr Begg a clear or precise description of her symptoms at that time. Ms Li explained to Dr Begg that work was an important part of her Chinese culture and she had always been driven to excel. Dr Begg attributed workplace events as ‘a substantial cause’ of what he diagnosed to be an Adjustment Disorder with Predominant Depression as well as Anxiety Symptoms. The workplace events he identified were the criticisms of Ms Li, the failure to investigate allegations and the perception of performance management as punishment. Dr Begg accepted that the marital failure contributed to Ms Li’s illness.
Dr Begg gave the following evidence in examination‑in‑chief:
QAnd during the course of that hospitalisation, the initial focus was on issues with regards to the family. But if his Honour was to find that towards the end of that hospitalisation, 8 April 2013, in a clinical setting she provided issues of her family relationships and also commented on an issue that she’d been bullied at work, and as a consequence, she was thinking of doing another course. Would that indicate to you that the problems that you said had commenced earlier, and we’re building up to the problems that you described in early 2014 were still there in april of 2013 before the, let’s say the eruption that you have described in early 2014?
AYes.
QSo it’s a pattern of something building up, and then having that in 2014?
AYes.
QAnd would her ability to deal with other more, not normal life events; quite serious ones such as relationship difficulties, separation of marriage – those two, relationship difficulties and separation – would they be adversely affected, and would she be able to cope with them less well if she was suffering from stress and anxiety arising from the workplace?
AYes.
QAnd similarly, doctor, if she had problems beforehand, and the tribunal has heard evidence as to her having a termination or miscarriage earlier in that relationship with her partner – it was the partner at the time, and then they split up; if she was vulnerable to being upset if she was in a position where she was being bullied at work or harassed at work as a consequence of her workplace activities?
AYes. I see stress as accumulative and it adds; so the more stress you’re under, the more difficult it is to manage the stress, and obviously if you have stress in your personal life, then you have less energy, or less emotional energy to manage cope with or ignore, however you want to phrase it, with a workplace stressor. And obviously it works the other way: if you’re under a lot of workplace stress, people will often demonstrate that with personal strain or stress. Indeed it’s important, if not differentiate, often in a standard history of someone with a workplace issue to ask about the impact on the family life, and you generally find that there are increased arguments and stress, usually not to the point of a marriage breakdown, but it just shows the person doesn’t have the usual resilience to manage other life problems.
Ms Li’s medical practitioner, Dr Bela Redzapagic, in a report dated 5 November 2014, reported that she had diagnosed Ms Li as suffering from anxiety with depression from February 2012. Dr Redzapagic’s report recorded that ‘marital problems were more of a consequence [of work related stress] rather than a cause’. It was implicit in Dr Redzapagic’s report that that anxiety and depression had continued throughout 2012, and into 2014. Dr Redzapagic adhered to that report when she gave her evidence:
QI do think the main really trigger for her psychological problems is actually work-related stress, considering like you know when the problem started I think January we’re talking about 2012 according to Ms He Li’s statements that I have read about. And I talked to her like about all this stuff so considering again the pregnancy and marital problems she had which were consequently happening along the line in my opinion I think that yes, work-related stress, bullying at work that started in January – probably January/February 2012 was original cause. …
So when you wrote your two reports which we’ve just looked at earlier in the other volume, you were aware from your treatment of Ms Li that she had had domestic problems?
QYes, yes, I was aware.
QFrom your own firsthand knowledge?
AYes.
QThen is this fair to say that the problems, and look, doctor, at page 290; so again I’m afraid we’re going backwards in the notes?
AYes.
QThose attendances upon you were increasing with regards to problems arising out of the work at the hospital. Is that a fair assessment as to how things progressed as 2014 went on?
AYes.
QMore discussions with regards to incidents of bullying, but generally her feeling bad about what had happened to her from March 2012, early 2012 onwards and up to the period of those consultations in 2014; is that a fair assessment?
AYes, yes.
QAnd what you’ve referred to in your two reports?
AYes, and I would just point to one more thing if you go back to the examination before, despite the marital problems she had anyway – like, you know, and the whole thing, you know, finished with her ex-husband; like, I think she separated. She was a single mother with a child, and she was given night‑shifts. She wasn’t given – you know, there was a problem with the shift work, where she asked them to really give her either night-shifts or weekends so far as I can remember, but it was not accommodated; so that put again additional pressure and stress, and probably added to the stress of both sides, especially
QAnd so 2014 went on that stress was becoming worse?
AWorse, yes, yes.
QAnd a WorkCover claim was lodged, I think, in March 2014?
A5 March 2014. I think that’s the first one that we opened.
In a report dated 28 April 2014, the psychologist, Denis Goodfellow, attributed Ms Li’s condition to workplace bullying. He included within that description alleged conduct in workplace interactions as well as administrative action. The bullying included Ms Li’s reaction to the letters of 7 March 2012 and 2 April 2012. It will be remembered that the Deputy President expressly found that the former was not reasonable administrative actions and, for similar reasons, neither was the latter. In his evidence, Mr Goodfellow referred to conflicts with other nursing staff as a contributing factor.
Dr Hundertmark saw Ms Li for the Department of Ageing and Health three times, and produced two reports, dated 23 October 2014 and 21 July 2015. He opined that she suffered a Borderline Personality Disorder and a fluctuating Affective Disorder. He attributed Ms Li’s blunt and angry manner to her Borderline Personality Disorder. Dr Hundertmark said that the psychological injury was not work related. He assumed that Ms Li had been treated reasonably. He agreed that her Borderline Personality Disorder made her vulnerable to overreaction and that intensive care units were very tense environments.
There was therefore a substantial body of medical evidence attributing, in part, Ms Li’s underlying depressive illness to workplace events dating back to 2012. Unfortunately neither counsel for the parties, nor the Deputy President, sought the opinion of the medical practitioners on:
●whether the predominant cause of Ms Li’s illness was her marital, or other personal, stress;
●whether workplace stressors other than any particular administrative action or actions were a substantial cause of Ms Li’s illness; and
●whether any particular administrative action or actions was or were the whole or predominant cause of Ms Li’s illness.
The Deputy President dealt with the medical evidence briefly:
[127]As for the medical evidence, it goes without saying that the validity of the opinions that the medical experts expressed is contingent upon the accuracy of the history that they were provided. For the reasons which I will now explain, in my view the history that Ms Li provided to the various medical experts was, in a number of respects, materially inaccurate.
[128]On the basis of the medical evidence I do not have difficulty in finding that Ms Li has suffered a psychiatric injury. However, in my view, the determination of the cause or causes of that injury turns on the facts, not the expert evidence.
I make the following observations.
First, causation of a medical condition and/or illness must almost always turn both on the facts as found and expert opinions of medical witnesses. If there is any exception to that general rule, it was not this case.
Secondly, it is unsatisfactory to put to one side a substantial body of evidence which is the product of considerable scientific knowledge adduced at significant expense to the parties, on the basis that it is premised on facts different to those found by the Deputy President, when no attempt had been made to obtain differential opinions from the expert witnesses based on alternative premises which more closely matched the facts which were ultimately found. Given the failure, for whatever reason, to put alternative premises to the expert witnesses, the question for the Deputy President was whether any differences between the findings he made and the premises on which the expert opinions were given was such as to displace the weight of their combined evidence.
Thirdly, as will shortly be seen, the Deputy President was fundamentally mistaken about the supposed inconsistencies.
Such was the Deputy President’s misapprehension of the evidence that his Honour failed to address a fundamental aspect of Ms Li’s case. As best can be gleaned from the subsequent paragraphs of the Deputy President’s reasons, there were three aspects of Ms Li’s history which he found to be ‘material inaccuracies’.
The first was Ms Li’s account of the meeting between her and Ms Saunders on 4 May 2012 and 17 August 2012, which the Deputy President rejected in favour of Ms Saunders’ account. His Honour therefore rejected Ms Li’s evidence about the outcomes of the meeting. He also rejected a submission that Ms Pannell and Ms Saunders had orchestrated a toxic work environment. However his Honour did think it ‘likely that part of [Ms Saunders] strategy was to gather evidence that might be used at a later time in connection with disciplinary action’.[6]
[6] Li v Dept for Health and Ageing [2016] SAET 40 at [137].
The ‘inaccuracies’ in the accounts of the 2012 meetings do not detract in any way from Ms Li’s evidence that she was involved in stressful interactions and serious interpersonal workplace disputes with her colleagues. Indeed the Deputy President implicitly accepted as much. The Deputy President’s finding as to the unreasonableness of the letter dated 7 March 2012, and its effect on Ms Li, confirm, rather than deny, the significance of those stressors. Both letters dated 7 March 2012 and 2 April 2012 were demeaning and judgmental in tone. The Deputy President’s acceptance that Ms Li’s managers had embarked upon a strategy of gathering evidence that might be used in connection with disciplinary action is significant. Such exercises necessarily involve obtaining information from work colleagues of the employee who is the target of the investigation. The very process of information gathering often has a negative effect on the workplace environment. The resulting stress on workplace relationships is not, in itself, administrative action within the meaning of that term in s 30A of the Act. The Deputy President’s reasons do not explain why the limited inaccuracies about the outcome of meetings in any way detract from the body of medical opinion which concluded the work environment remained a significant contributing stressor to Ms Li’s depressive illness at the time of, and after, her admission to Modbury Hospital and subsequent transferral to Woodleigh House in late March/early April 2013.
The second inaccuracy was that Ms Li did not complain of workplace employment issues at Woodleigh House, but as I have already observed, his Honour was mistaken to think that she had not.
The third inaccuracy was that the Deputy President accepted the evidence of Ms Pannell on the question of the work rosters. That finding did not undermine the evidence of the underlying workplace stressors to which I have referred.
The Deputy President’s failure to make a finding about the other incidents in either July or November 2013, and in December 2013 and January 2014 left open the possibility that there were conflicts between Ms Li and other co‑workers in the workplace on those dates. Indeed, the Judge’s comment that the evidence did not enable him to make findings as to whether the allegations or counter-allegations about those incidents were true implicitly accepts that there was a workplace dispute of one kind or another. The relevant question was not simply whether Ms Li’s or her work colleague’s account was right or not. Nor was the relevant question which of the nurses took the correct medical approach. The question was whether, on either account, it was likely to have been a substantial workplace stressor. The Deputy President simply failed to address that fundamentally relevant issue.
The Judge’s reasons for finding that the workplace stressors other than the reasonable administrative action taken in 2014 did not make a causal contribution to Ms Li’s depression were as follows:
[145]In my view, the timing of Ms Li’s ceasing work; the absence of any attribution of work related issues as a source of her psychological problems when Ms Li was admitted to the Modbury Hospital and Woodleigh House in March/April 2013; my preference for Ms Pannell’s evidence about the night duty roster; the evidence that indicates that the work roster issue was resolved; and the history that Ms Li gave to Dr Begg that her present symptoms started in January 2014, are significant matters. They lead me to conclude that Ms Li’s attribution of responsibility to workplace stressors that occurred prior to her commencing maternity leave is misplaced, as is her attribution to issues about the rosters upon her return. I find that the only relevance of the alleged incidents with other nurses in 2013 and 2014 is in connection with the action later taken by the Lyell McEwin in respect of them.
I note again the prominence given in that essential paragraph of the Deputy President’s reasons to his Honour’s misapprehension of the Modbury Hospital notes. I also observe the Deputy President’s emphasis on the absence of attribution of work related issues cause by Ms Li at times when she was mentally unwell.

In the cited paragraph above, the Deputy President fails to address the central issue whether any employment causes of Ms Li’s condition, other than reasonable administrative action, continued to contribute to her depressive illness in 2014. The failure of the Deputy President to address that issue was due to his Honour’s:
●focus on Ms Li’s personal attribution of responsibility instead of the focussing on the medical evidence;
●failure to appreciate that the Modbury Hospital and Woodleigh House notes did refer to workplace incidents as a cause of Ms Li’s depressive condition and that the medical practitioners in their evidence before him founded their opinions, at least in part, on those notations;
●failure to address whether the workplace disputes in 2013 and 2014, whoever was on the right or wrong side of the dispute, were contributing stressors to Ms Li’s depressive condition; and
●misplaced focus on the fact that Ms Li told Dr Begg that her present symptoms started in January 2014 when the question for the Deputy President was whether or not workplace experiences, which were stressful, in fact occurred, whatever Ms Li may have said to Dr Begg.[7]
[7] Of course, Ms Li’s account to Dr Begg is part of the evidence on which that determination might be made. However there was an abundance of evidence, indeed it was not disputed, that Ms Li was involved in angry interactions with other staff in the course of her employment.
The Deputy President then continued:
[146]I find that the meetings that Ms Li had in January and March 2014 and the proposed PDP caused her considerable distress. Dr Hundertmark’s evidence about her feeling backed up against the wall and needing to defend herself and of her personality making her more vulnerable and reacting in a more severe way than would be expected provides a cogent explanation as to how those events caused Ms Li such distress.
[147]This finding is critical in two respects.
[148]Whilst there were clearly other very significant stressors in Ms Li’s life over this time, such as the fact of being a single mother with a young child with limited support and a clear predisposition to psychological problems, as evidenced by her prior admission to hospital on account of them, I find that the distress that Ms Li experienced as a result of the meetings that she had in January and March 2014 and the proposed PDP was significant enough to establish that her employment at the Lyell McEwin was a substantial cause of the claimed psychiatric injury.
[149]It follows that the first pre-requisite has been met.
[150]This finding also establishes that whatever other stressors Ms Li might have experienced in the workplace over the course of her employment at the Lyell McEwin, the meetings in January and March 2014 and the proposed PDP were the predominant workplace causes of her psychiatric injury.
The Deputy President’s factual findings in those paragraphs are vitiated by his Honour’s failure to address the evidence of workplace causes of Ms Li’s depressive condition other than the administrative action taken in placing Ms Li on a PDP. For that reason, those findings must be set aside.
The Deputy President concluded:
[171]Although there were many factors, including a number that had nothing to do with Ms Li’s employment that caused her psychiatric injury, I find that there were work causes that were significant enough to say that her employment was a substantial cause of her psychiatric injury. However, in respect of the work related causes, I conclude that they arose predominantly from disqualifying actions. Her psychiatric injury is therefore not compensable under the Act. I therefore confirm the Lyell McEwin’s determination rejecting her claim.
[emphasis added]
The Deputy President, in the emphasised sentence of that paragraph by the use of the word ‘predominantly’, leaves open the possibility that there were employment-related causes other than those arising from disqualifying actions. That sentence discloses both of the errors which vitiate the Deputy President’s determination. First, the reference to causes arising ‘predominantly from disqualifying actions’ discloses that the Deputy President has construed s 30A of the Act as if it was in a form similar to the 1992 Amendment. For the reasons I have given, on a proper construction of s 30A of the Act, the question is whether an employment cause, other than reasonable administrative action, is a substantial cause of the illness, and if so, whether reasonable administrative action is nonetheless a predominant cause of the illness.
Secondly, by leaving it open that reasonable administrative action was the predominant, instead of the only, employment related cause, the reasons implicitly concede that the Deputy President has not addressed, and finally determined, whether or not other workplace events were a substantial cause of Ms Li’s illness. The sentence discloses that the Deputy President proceeded on the basis that, even if other workplace events were, in themselves, a substantial cause, because the predominant of the employment causes was the reasonable administrative action of the Department, s 30A of the Act precluded Ms Li’s claim. That construction was in error and the Deputy President was duty bound, but failed, to address the questions:
(a) whether any aspect of Ms Li’s employment, other than reasonable administrative action, was a substantial cause of her illness; and
(b) if so, whether her illness was predominantly caused by reasonable administrative action.
Conclusions
I would allow the appeal because of the error of construction made by the Full Bench. On a proper construction of s 30A of the Act, the Full Bench should have remitted the matter to a Deputy President to determine the matter in accordance with these reasons. I would so order.
STANLEY J: This appeal raises the proper construction of s 30A of the Workers Rehabilitation and Compensation Act 1986 (SA) (the Act). The proper construction of the Act is a matter of text, context and purpose. It is necessary to start with the text construed in the context of the language and purpose of the statute as a whole. The Court must give the text the meaning that the legislature intended it to have. Usually that meaning will correspond with the grammatical meaning of the section, although the context, consequences of any particular construction and the purpose of the statute may sometimes require a non‑literal interpretation to be adopted.[8] As the High Court said in Project Blue Sky Inc v Australian Broadcasting Authority[9], citing with approval the reasons of Dixon CJ in Commissioner for Railways (NSW) v Agalianos,[10] the context, the general purpose and policy of the provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.
[8] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384.
[9] (1998) 194 CLR 355 at 381.
[10] [1955] HCA 27, (1955) 92 CLR 390 at 397.
Since the judgment of this Court in Rubbert,[11] the Parliament has been concerned to confine the compensability of illnesses or disorders of the mind. The enactment of s 30A of the Act was one such measure.
[11] Workers Rehabilitation Compensation Corporation v Rubbert (1991) 160 LSJS 257.
Section 30A imposed a two-limb test for compensability in respect of that category of injury. The first limb is that employment must be a substantial cause of the injury. The second limb is that the injury did not arise wholly or predominantly from:[12]
...
(i)    reasonable action taken in a reasonable manner by the employer to transfer, demote, discipline, counsel, retrench or dismiss the worker; or
(ii)     a decision of the employer, based on reasonable grounds, not to award or provide a promotion, transfer, or benefit in connection with the worker's employment; or
(iii)    reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment; or
(iv)    reasonable action taken in a reasonable manner under this Act affecting the worker.
[12] Workers Rehabilitation and Compensation Act 1986 (SA) s 30A(b).
That two-limb test, however, poses a particular difficulty of construction in the circumstances of this case, as disclosed by the approach of the Full Bench to the interpretation of s 30A. As the Chief Justice has identified, the adoption of a literal interpretation of s 30A leads to an absurd result, contrary to the purpose of the provision.
The commencement point for consideration of context and purpose is a recognition that an underlying feature of the statutory schemes of workers’ compensation, from their origins in the 19^th century, is a test for compensability that depends on a nexus between injury and the worker’s employment. Since Rubbert, the legislature has required proof of a more substantial nexus for psychiatric injuries, compared to organic or physical injuries.
Causation in a legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose.[13]
[13] Comcare v Martin [2016] HCA 43 at [42], (2016) 258 CLR 467 at 479.
In King v Philcox,[14] Keane J pertinently observed that where the legislative intention to limit entitlements is unmistakable, it would be out of place to insist upon an artificial construction in order to preserve those entitlements. The purpose of the enactment of s 30A is to limit the compensability of an illness or disorder of the mind suffered by a worker to circumstances where the employment has been a substantial cause of that injury and, where that injury was substantially caused by the employment, to exclude from the right to compensation those injuries prescribed in placita (i) to (iv) of s 30A(b).
[14] [2015] HCA 19 at [42], (2015) 255 CLR 304 at 326.
That purpose is consistent with the purpose of the cognate provision in the Safety, Rehabilitation and Compensation Act 1988 (Cth), considered by the High Court in Comcare v Martin.[15]As the High Court observed, that purpose was to ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers compensation, and to prevent claims being used to obstruct legitimate management action by excluding claims where a psychiatric injury has arisen as a result of such action.[16]
[15] [2016] HCA 43, (2016) 258 CLR 467.
[16] Comcare v Martin [2016] HCA 43 at [46], (2016) 258 CLR 467 at 480.
To adopt a construction that an illness or disorder of the mind will not be compensable only where the employment circumstances prescribed in s 30A(b) predominate over non-work factors would have the consequence that psychiatric injuries in respect of which the only relevant work contribution is reasonable administrative action will be compensable if non-work causes predominate. That would be contrary to the context and purpose of the Act, which is to limit the compensability of illnesses or disorders of the mind to circumstances where the employment was a substantial cause of those conditions and they did not arise wholly or predominantly from the matters prescribed in s 30A(b).
This analysis and the reasons of the Chief Justice disclose the difficulty in construction of s 30A. I acknowledge that the construction I give the provision requires reading in the words “to the extent that the employment caused the injury” at the commencement of s 30A(b) in order for the text of the section to conform to its context and purpose. The principles applicable to the circumstances in which a court can legitimately read words into legislation for the purpose of statutory construction were considered in Taylor v The Owners – Strata Plan No 111564 & Ors,[17] in the majority judgment of French CJ, Crennan and Bell JJ who said:[18]
[17] [2014] HCA 9, (2014) 253 CLR 531.
[18] [2014] HCA 9 at [34]-[40], (2014) 253 CLR 531at 547-549.
The active respondents differ on the question of whether, in a Relatives Act award in which the court has regard to the claimant’s earnings, the s 12(2) limitation applies. The sixth respondent submits that s 12(1)(b) would engage the s 12(2) limitation in such a case. The submission misconceives the basis of a claim for economic loss under s 12(1)(b). A claimant who reasonably chooses to give up, reduce or change his or her employment in order to perform the services previously performed by the deceased is not awarded damages for the deprivation or impairment of earning capacity. The first to fourth respondents are correct to acknowledge that, on the construction of s 12 for which they contend, the s 12(2) limitation has no application to an award under the Relatives Act in which a component of the loss is calculated by reference to the claimant’s gross weekly earnings.
The principles
In Young Spigelman CJ suggested that the authorities do not warrant the court supplying words in a statute that have been “omitted” by inadvertence per se. Construing the words actually used by the legislature in “their total context”, Spigelman CJ suggested that the process of construction admits of reading down of general words or giving the words used an ambulatory operation. His Honour cited Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation as an instance of the former and Bermingham v Corrective Services Commission (NSW) as an instance of the latter. In R v PLV his Honour expanded on his analysis in Young, observing:
“The authorities which have expressed the process of construction in terms of ‘introducing’ words to an Act or ‘adding’ words have all, so far as I have been able to determine, been concerned to confine the sphere of operation of a statute more narrowly than the full scope of the dictionary definition of the words would suggest. I am unaware of any authority in which a court has ‘introduced’ words to or ‘deleted’ words from an Act, with the effect of expanding the sphere of operation that could be given to the words actually used … There are many cases in which words have been read down. I know of no case in which words have been read up.”
(Emphasis in original.)
In Leys the Victorian Court of Appeal was critical of Spigelman CJ’s characterisation of purposive construction as a process of construing “the words actually used” (emphasis in original). Their Honours said that the process requires the court to determine whether the modified construction is reasonably open in light of the statutory scheme and against a background of the satisfaction of Lord Diplock’s three conditions. Their Honours questioned the utility of the distinction between “reading up” and “reading down” and rejected the proposition that a purposive construction may not result in an expanded operation of a provision.
Consistently with this Court’s rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia, the question of whether a construction “reads up” a provision, giving it an extended operation, or “reads down” a provision, confining its operation, may be moot.
The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.
Lord Diplock’s three conditions (as reformulated in Inco Europe Ltd v First Choice Distribution) accord with the statements of principle in Cooper Brookes and McColl JA was right to consider that satisfaction of each could be treated as a prerequisite to reading s 12(2) as if it contained additional words before her Honour required satisfaction of a fourth condition of consistency with the wording of the provision. However, it is unnecessary to decide whether Lord Diplock’s three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that “the modified construction is reasonably open having regard to the statutory scheme” because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour’s further observation, “[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances”.
Lord Diplock’s speech in Wentworth Securities laid emphasis on the task as construction and not judicial legislation. In Inco Europe Lord Nicholls of Birkenhead observed that even when Lord Diplock’s conditions are met, the court may be inhibited from interpreting a provision in accordance with what it is satisfied was the underlying intention of Parliament: the alteration to the language of the provision in such a case may be “too far-reaching”. In Australian law the inhibition on the adoption of a purposive construction that departs too far from the statutory text has an added dimension because too great a departure may violate the separation of powers in the Constitution.
[Footnotes omitted.]
Lord Diplock’s three conditions are that before interpreting a statute by adding or omitting words, the Court must be certain:
(1) of the intended purpose of the statute or provision in question;
(2)that by inadvertence the drafter and Parliament failed to give effect to that purpose in the provision in question; and
(3)of the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the bill been noticed.[19]
[19] Inco Europe Ltd v First Choice Distribution (a firm) [2000] 2 All ER 109 at 115 (Lord Nichols), citing Jones v Wrotham Park Settled Estates (or Wentworth Securities Ltd) [1979] 1 All ER 286 at 289 (Lord Diplock).
Lord Diplock emphasised that the third of these conditions was crucial. Otherwise, any attempt to determine the meaning of the legislation would transgress the boundary between juridical construction and judicial legislation.
In my view Lord Diplock’s three conditions are satisfied in this case. It is consistent with the approach taken by the New South Wales Court of Appeal in Department of Education and Training v Sinclair[20] where Spigelman CJ, with whom Hodgson and Bryson JJA agreed, construed similar provisions in the Workers Compensation Act 1987 (NSW) in order to avoid a similar absurdity by reading into s 11A the words “to the extent that the employment contributed to the injury”[21] so that s 11A(1) was understood to mean:
No compensation is payable under this Act in respect of an injury that is a psychological injury unless:
(a)the employment concerned was a substantial cause of the injury; and
(b)to the extent that the employment contributed to the injury, the injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
[20] [2005] NSWCA 465.
[21] [2005] NSWCA 465 at [58].

By contrast, the construction adopted by the Chief Justice in this case involves reading into s 30A(a) the words “other than an action or decision specified in (i), (ii) and (iii) of subparagraph (b)” after the words “the employment”, and reading down s 30A(b) by excluding the words “wholly or” in the chapeau. In my view the addition and omission of those words does not satisfy Lord Diplock’s three conditions. The omission of the words “wholly or” in s 30A(b) is the direct result of reading into s 30A(a) the words proposed by the Chief Justice. That omission is necessary because reading into s 30A(a) the words “other than an action or decision specified in (i), (i) and (iii) of subparagraph (b)” renders the words “wholly or” in s 30A(b) otiose. In my view, the Court cannot be certain that the intended purpose of s 30A is that to qualify for compensation a worker suffering a psychiatric injury must prove that an employment cause, other than reasonable administrative action et cetera, was a substantial cause of the injury, and that reasonable administrative action et cetera was not the predominant of all employment and non-employment causes of the condition. Accordingly, the Court cannot be certain that the provision Parliament would have made would have included the words “other than an action or decision specified in (i), (ii) and (iii) of subparagraph (b)” into s 30A(a) and omitted the words “wholly or” from s 30A(b).
The Court can be certain that the intended purpose of s 30A is to limit the compensability of psychiatric injuries by requiring proof that the employment is a substantial cause of the injury and that to the extent that the employment caused the injury it did not arise wholly or predominantly from one of the prescribed matters in s 30A(b). That is because that construction is consistent with the context and purpose of s 30A when considered in the context of the statute as a whole.
I accept that the construction which I favour is confronted by the terms of s 30A(b)(iv) which might be considered to stand outside the scope of employment, however, I consider there are two answers to this contention. First, the conduct of the WorkCover Corporation of South Australia or an exempt employer under the Act affecting a worker must be considered to arise out of employment. The Act applies to a worker as an incident of his or her employment. That is obviously so in respect of a worker employed by an exempt employer. The situation should not be any different in respect of a worker employed by a non-exempt employer. The basal liability created by the Act was an entitlement to compensation for injury arising from employment.[22] Section 30A(b)(iv) is a subsidiary provision. It refers to disqualifying events from which an injury arises. That is only relevant if the injury arose from employment. There would be no need to exclude from an entitlement to compensation an injury which arose from the events described in placitum (iv) unless those events arose from the worker’s employment for the purposes of the Act. Second, as a matter of legislative history, placitum (iv) was inserted into the Act when s 30A replaced its predecessor provision s 30(2a), which contained only placita (i) to (iii). The purpose of enacting placitum (iv) was to extend the disqualifying events in s 30A(b), it was not to change the operation of the rest of s 30A. In those circumstances the Court will not construe the Act in a way which involves placitum (iv) altering the construction of the section read as a whole.
[22] Workers Rehabilitation and Compensation Act 1986 (SA) s 30(1).
The construction I have given s 30A means that in determining the compensability of an illness or disorder of the mind suffered by a worker it must be proved that the employment was a substantial cause of the disability. The use of the indefinite article in s 30A(a) is important. It recognises that there may be more than one substantial cause of the illness or disorder of the mind from which the worker suffers. It is possible that the illness or disorder of the mind may be substantially caused by employment and non-employment related factors contemporaneously. Likewise, the illness or disorder of the mind may be substantially caused by employment related factors that fall within the disqualifying events set out in s 30A(b) and employment related factors that do not fall within those disqualifying events either because they are not action or decisions of the kind to which the subsection refers, or if they are, they are not taken in a reasonable manner. In these circumstances, the illness or disorder of the mind is compensable unless it arises predominantly from the disqualifying events in s 30A(b).
It follows that a worker who suffers an illness or disorder of the mind that is both substantially caused by employment and by non-employment factors will be entitled to compensation in accordance with s 30A if the psychiatric disability did not arise wholly or predominantly from the disqualifying events prescribed in s 30A(b). This construction is consistent with the context and purpose of the provision considered in the Act read as a whole.
This construction is inconsistent with the reasons of Lander J in Keen v Workers Rehabilitation and Compensation Corporation.[23]Lander J said:
In addressing that second matter it has to be remembered of course that the worker must have already established that the employment was a substantial cause of the disability. The worker therefore has to proceed upon the premise that whatever it was that caused the disability the employment was a substantial cause. In other words, any factors extraneous to the employment must have been insubstantial causes.
[23] (1998) 71 SASR 42 at 47.
The approach taken by Lander J was not adopted by the other members of the Full Court, Cox and Bleby JJ. I consider it is a construction that is contrary to the text, particularly the use of the indefinite article in s 30A(a). I decline to follow it.
For these reasons I consider the construction given to s 30A by the Full Bench is wrong. I would allow the appeal. The issue is the appropriate order disposing of the appeal.
At first instance the Deputy President found that although there were many factors, including a number that had nothing to do with the respondent’s employment, that caused her psychiatric injury, there were work causes that were significant enough to say that her employment was a substantial cause of that injury. However, the Deputy President found that in respect of the work-related causes, they arose predominantly from disqualifying actions. On that basis, the Deputy President concluded that the respondent’s psychiatric injury was not compensable. However, for the reasons explained by the Chief Justice, the Deputy President’s factual findings are vitiated by his Honour’s failure to address the evidence of workplace causes of the respondent’s depressive condition other than administrative action. That leaves open the possibility that there were employment related causes other than those arising from disqualifying actions. Accordingly, I agree with the dispositive orders proposed by the Chief Justice. The appeal must be allowed, the orders made by the Full Bench set aside and the matter remitted to a Deputy President to determine the respondent’s claim in accordance with the construction of s 30A I have adopted.
BAMPTON J: I would allow the appeal for the reasons given by Stanley J. I agree with the orders he proposes.