Department of Education & Training v Sinclair No.2
[2006] NSWWCCPD 163
•22 March 2004
WORKERS COMPENSATION COMMISSION APPEAL AGAINST A DECISION OF THE COMMISSION
CONSTITUTED BY AN ARBITRATOR FOLLOWING REMITTER
FROM THE COURT OF APPEALSTATUS: Remitter: This decision is a decision on remitter from the Court of Appeal decision in Department of Education and Training v Sinclair [2005] NSWCA 465; (2007) 4 DDCR 206 CITATION: Department of Education & Training v Sinclair No.2 [2006] NSWWCCPD 163 APPELLANT: Department of Education & Training RESPONDENT: Jeffrey Sinclair INSURER: GIO Treasury Managed Fund Workers Compensation FILE NUMBER: WCC18512-03 DATE OF ARBITRATOR’S DECISION: 22 March 2004 DATE OF INITIAL APPEAL DECISION: 16 December 2004 DATE OF REMITTER FROM COURT OF APPEAL:
20 December 2005DATE OF DECISION ON REMITTER: 26 July 2006 SUBJECT MATTER OF DECISION: Section 11A of the Workers Compensation Act 1987; reasonable action with respect to discipline, and costs. PRESIDENTIAL MEMBER: President Justice Terry Sheahan HEARING: On the papers REPRESENTATION: Appellant: Sparke Helmore, Solicitors Respondent: Maurice Blackburn Cashman, Solicitors ORDERS MADE ON APPEAL: The Workers Compensation Commission’s initial appeal decision of 16 December 2004 is confirmed and I make the following orders: 1. The Department of Education & Training’s appeal is dismissed. 2. The Arbitrator’s decision in favour of Jeffrey Sinclair and paragraphs 4, 5 and 6 of the Workers Compensation Commission’s Determination of 22 March 2004 are confirmed. 3. In respect of paragraphs 1, 2 and 3 of the Workers Compensation Commission’s Determination of 22 March 2004 the parties are to confer upon, and file with the Registrar within 28 days of the date of this decision, appropriate draft orders specifying the correct amounts of Mr Sinclair’s specific statutory entitlements for all components of the period 15 August 2003 to date and continuing, in accordance with these Reasons. 4. If the parties are unable to reach agreement on the amount of weekly compensation payments in respect of period 15 August 2003 to date and continuing the matter is remitted to the Arbitrator at first instance to redetermine the weekly amounts in accordance with the reasons in my decision dated 16 December 2004. 5. The Department of Education & Training to pay Mr Sinclair’s costs of the appeal dated 16 December 2004. The Appellant to pay the Respondent’s costs of this remitter. BACKGROUND TO THIS RECONSIDERATION OF THE APPEAL
1.This appeal has been remitted to the Workers Compensation Commission (‘the Commission’) by the Court of Appeal for redetermination.
2.Mr Sinclair succeeded before an Arbitrator of the Commission in having his workers compensation benefits reinstated – see Sinclair v Department of Education & Training [2004] NSWWCC 18. His case was founded upon his claim that a psychological injury was caused by a departmental investigation which ensued from an allegation of wrongful conduct on his part, an investigation properly seen to occur in the course of, and to arise out of, his employment with the Department of Education & Training (‘the Department’).
3.The Department failed in its appeal to a Presidential member (myself) against the Arbitrator’s decision – see Department of Education & Training v Sinclair [2004] NSWWCCPD 90 – but then succeeded, in part, in its appeal to the Court of Appeal – see Department of Education & Training v Sinclair [2005] NSWCA 465.
4.The issue on which the appeal to the Court of Appeal (per Spigelman CJ; Hodgson and Bryson JJA agreeing) succeeded concerned my application of section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’) to the facts of the case as found. Those facts are set out in detail in the reasons given by the Arbitrator at first instance, and in more detail by me on the initial appeal (at [30]-[79]), and concisely by the Court of Appeal (at [3]-[13]).
5.The Court of Appeal did not make any factual findings at variance with those earlier decisions, and summarised them in the cover note of its judgment as follows:
“The Respondent was a school teacher employed by the Appellant. On 21 February 2001 the Respondent was informed by letter that an allegation had been made against him that could amount to improper conduct against a student. Shortly thereafter he was transferred away from the school (the ‘Transfer’), and directed to have no contact with any student from the school (the ‘No Contact Direction’). The Respondent was provided with no details of the allegations made against him until 8 November 2001. On 14 November 2001 the Respondent made a claim for compensation for psychological injuries arising from his employment. The Appellant accepted liability and made weekly payments. On 12 August 2002 the Respondent was advised that he had been charged with two breaches of discipline, which charges were found proven on 19 June 2003. On 15 August 2003 the Respondent was dismissed. The Appellant then denied any further liability for weekly compensation payments. The matter proceeded to the Workers Compensation Commission (the ‘Commission’).”
6.Section 11A of the 1987 Act excludes liability of an employer to a worker in cases of psychological injury where the sole or predominant cause of the injury was “reasonable action with respect to” (relevantly) “discipline”. For completeness I set out the terms of section 11A(1) in full:
“11A No compensation for psychological injury caused by reasonable actions
of employer
(1)No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was 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.”
7.The Court of Appeal (per the Chief Justice at [35]) held that “[t]he formulation in s11A extends to the entire process involved in, relevantly, ‘discipline’ including the course of an investigation”.
8.Before the Arbitrator, Mr Sinclair argued that four aspects of the Department’s investigation of complaints about him were not reasonable actions with respect to discipline, for the purpose of section 11A –
·the delay in investigating the allegations;
·the failure to give particulars of the allegations;
·the No Contact direction, and
·the Transfer out of his school.
9.The Arbitrator found that the “delay” was reasonable, but that the three other impugned aspects of the investigation were unreasonable, and concluded, as a result, that Mr Sinclair’s injuries were not wholly or predominantly caused by the Department’s actions with respect to discipline. As the Chief Justice notes (at [29]): “The Arbitrator concluded (at [47]) that s.11A had ‘no application’ and (at [49]) that ‘the injury was not caused by reasonable action with respect to discipline or transfer’.”
10.On the initial appeal I agreed with the Arbitrator’s decision on the ‘delay’, the ‘No Contact direction’, and the ‘failure to give particulars’ points, but not on the Transfer point. I held that both the ‘delay’ and the Transfer were reasonable, but that both the ‘direction’ and ‘the failure to give particulars’ were not, and I proceeded to uphold the Arbitrator’s finding that the Department’s liability to Mr Sinclair was not excluded by section 11A.
11.The Department appealed to the Court of Appeal on many grounds, but succeeded only on its section 11A case. At [69] and [97] the Chief Justice said:
“69. In view of the submission made to him, … it was necessary for his Honour to form his own judgment as to whether or not the sole or predominant cause of the employer’s contribution to the Respondent’s psychological injury was reasonable action on the part of the Appellant, and to express reasons for that conclusion. The statutory test could not be satisfied merely by identifying two respects in which the Appellant’s conduct was unreasonable. It remained necessary to determine whether, notwithstanding those blemishes in the decision-making process, “reasonable action” was the sole or predominant cause. On the submissions before his Honour, it was incumbent upon him to determine whether or not the sole or predominant cause was the employer’s reasonable action, in circumstances where the investigation itself, the delay in completing it, and the Transfer, were all found to be reasonable. His Honour did not address that issue.”
“97 His Honour’s analysis, as that of the Arbitrator, appears to assume that any specific blemish in the disciplinary process, however material in a causative sense or not, was such as to deprive the whole course of conduct of the characterisation ‘reasonable action with respect to discipline’. In my opinion, a course of conduct may still be ‘reasonable action’, even if particular steps are not. If the ‘whole or predominant cause’ was the entirety of the disciplinary process, as much of the evidence suggested and his Honour appeared to assume, his Honour did not determine whether the whole process was, notwithstanding the blemishes, ‘reasonable action’. For this alternative reason the appeal should be allowed.”
(It is to be noted that no submission was made to the Arbitrator, nor to me in the initial appeal, that section 11A was supposed/required to be applied in such a two-step process).
12.The medical evidence before the Arbitrator and me came mainly from Mr Sinclair’s general practitioner (‘GP’), Dr Pendel, his psychiatrist, Dr Teoh, a clinical psychologist, Vicki Garner, and the Department’s consultant psychiatrist, Dr Synnott, and was summarised in paragraphs [84]-[92] of my judgment, which paragraphs were set out in full by the Chief Justice at paragraph [30] of his judgment.
13.The Chief Justice returned to examine that evidence closely at paragraphs [76]-[87] of his judgment, concluding (at [87]) that on the expert evidence before me in the initial appeal it was open for me to have concluded that the Department’s section 11A defence had been made out, and that the Court of Appeal should, therefore, remit the matter to the Commission. The use of the word ‘alternative’ in [97] is explained by the fact that the Chief Justice also said (at [95]) that the appeal should be allowed because I failed to deal properly with Ms Garner’s evidence linking Mr Sinclair’s injury to the delay in the investigation, “which conduct both the Arbitrator and Sheahan J found to be reasonable”.
14.Accordingly, my task on this remitter is to now revisit the investigation process, as a whole, to assess its reasonableness, despite my having found in the initial appeal that some elements of it, viewed individually, were unreasonable.
ON THE PAPERS REVIEW
15.Pursuant to section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), and having regard to the written submissions of the parties on the question, I am satisfied that I have sufficient information before me to proceed “on the papers” to determine afresh the outstanding element of this case, without holding any conference or formal hearing.
16.I note that, in its submissions in reply dated 29 May 2006, the appellant Department speaks of the service on it by Mr Sinclair’s solicitors of a “further report from the respondent’s general practitioner, Dr Pendel, dated 11 April 2006.”
17.That medical report appears from the Commission file not to have been filed in this remitted appeal, I have not seen it, and there is no application to admit late evidence, so any such report does not form any part of the ‘papers’ considered in arriving at this decision.
THE PARTIES’ SUBMISSIONS ON THE REMITTER
18.On Mr Sinclair’s behalf it is submitted that for the Commission to find that the disciplinary process as a whole was reasonable it must find that the Department’s unreasonable conduct in the process “was either inconsequential, or played a very minor role in the causation of” his injuries. If the unreasonable conduct is found to have played more than a minor role in the causation of injury, the reasonable conduct in the process cannot be said to have been the whole or “predominant” (in the sense of “stronger” or “prevailing over other causes”) cause of his injuries, albeit that “delay is arguably an aggravating factor”. Mr Sinclair says that the general view taken by the medical experts is that the process as a whole was causative, and that that evidence is not helpful in determining the relative weight to be attributed to individual factors causative of his injuries. On all the evidence, the unreasonable elements of the Department’s conduct cannot be seen to be insignificant or inconsequential.
19.The Department submits that there is no authority for Mr Sinclair’s central proposition that the unreasonable features of its conduct need to be found to be inconsequential or very minor, and that the principal cause of the injuries was “the process, and especially the delay”, which the medical evidence emphasised, and which the Arbitrator and I found to be reasonable. Serious investigations routinely involve delay, as well as “attendant or incidental aspects such as the transfer and the ‘no contact’ direction here … [T]he process as a whole will not ordinarily suffer if there are one or two imperfections in subsidiary aspects of it”.
CONSIDERATION
The Process and Mr Sinclair’s reactions
20.The investigation of the allegations against Mr Sinclair commenced on or about 12 February 2001, and he was officially notified of it by letter dated 21 February 2001. On 26 February 2001 he was transferred out of his posting at Baulkham Hills High School, effective next day, and forbidden to visit or meet or otherwise contact, even “through an intermediary”, “any student of” the school.
21.The evidence indicates that he “missed school terribly”, quickly began to feel depressed, sought counselling, and remained very concerned about his classes. He had expected to return to normal duty quickly, but was still working in the Department’s Parramatta District office at the end of the 2001 school year. It was not until 8 November 2001 that the investigators detailed at some length the Department’s actual allegations against him. The letter of that date also alleged he had “knowingly breached” the “No Contact” direction.
22.It appears that his father died in about July 2001, and his counsellor (Fran Fagan) recommended he consult his regular GP (Dr Pendel, whom he had seen regularly since 1992 – see my judgment at [85]), to obtain a prescription for anti-depressants. By 8 November 2001 he was “having regular medical and psychological treatment”.
23.On 14 November 2001 Mr Sinclair notified his “injury” to the Department, ceased work, and applied for workers compensation benefits. He was regularly seeing Dr Pendel, and commenced both a series of consultations with psychologist Vicki Garner (on 30 January 2002) and a rehabilitation programme. He did not return to work after the 2001 Christmas school holidays, and formally relinquished his post as Head of English at Baulkham Hills High School on 21 February 2002. At about the same time he responded formally to the 8 November 2001 letter, and his wife left for an extended overseas trip.
24.In May 2002 Dr Pendel referred him to a psychiatrist, Dr Teoh, whom he appears to have seen from at least August 2002. In about July 2002 Mrs Sinclair returned from her trip and formally separated from her husband. On 19 November 2002, Mr Sinclair returned to work – at the Parramatta Office, but for only 2 days per week – and increased his work to 3 days per week from February or March 2003.
25.Work apparently continued on the Department’s investigation through to the end of May 2002, but charges were not formulated and notified to Mr Sinclair until 12 August 2002. His solicitor denied the charges on 19 September 2002, and the Department appointed a “prescribed officer” to deal with them. She decided to deal with the matter on the papers, and on 8 January 2003 required him to put on his evidence and submissions. The Department’s material reached Mr Sinclair’s solicitor on or about 31 March 2003, and Mr Sinclair’s response was provided on or about 13 June 2003.
26.During May-June 2003 the allegations began attracting what I described (at [73]) as “substantial, and quite confronting” media attention, which caused Mr Sinclair to take time off work, and he then applied for medical retirement.
27.On 19 June 2003 the charges were found “proven” and submissions were invited on the question of punishment. On 28 July Mr Sinclair’s dismissal by the Department was recommended, and on 15 August 2003 he was dismissed. Shortly after that (2 September 2003) his workers compensation benefits ceased.
Mr Sinclair’s claims
28.I introduced the various elements of the medical evidence with the following comments (at paragraphs [80] to [83] of my judgment):
“80. Mr Sinclair’s case is that it was “unreasonable”, and harmful to his health, for the Department to:
· Take him away from his responsibilities as Head Teacher, and as a teacher of several Year 12 classes,
· Assign him to a very different job at the Department’s District Office,
· Keep him waiting “in the dark” (T96) for more than 8 months before he was told the allegations against him,
· Subject him to behavioural limitations with which it was practically impossible, and personally very stressful, for him to try to comply, and
· Take more than two and a half years to conclude the investigation and consequential disciplinary proceedings.
“They should maintained (sic) human contact with me and treated me as somebody who had worked for them very, very hard for a very, very long time…. [W]hen you investigate something someone might be guilty, someone might be innocent. I was treated like I was guilty right from, you know, the first five minutes”. (T96)
81.He became “more disheartened and depressed”, “very discouraged”, and “increasingly morose” as the investigation proceeded during 2001. He began consulting an EAP psychologist, Ms Fran Fagan on 25 July 2001, and his regular GP in September 2001, about these symptoms. He was particularly “distressed” at not being able to see his Year 12 students, many of whom were Julian’s contemporaries – “this broke my heart”.
82.He further argues that any confidentiality was lost as a result of his sudden removal from the school, long before the allegations were put to him, which led to a great deal of “public comment, with questions raised about my whereabouts and health”, and was “exacerbated” by the release to the media of “mostly untrue” information about his case. “This media attention has been most stressful…”, but the Department denies any role in the media attention, attributing it to actions taken by Mr and Mrs Shackle. In none of the evidence is the media seen as any more significant in Mr Sinclair’s distress than as a subsidiary factor in the passage of the investigation.
83.Mr Sinclair readily concedes that the death of his son in 1996 “had a terrible and lasting effect” on him, but claims it made him work harder and gain more prominence in his chosen profession – writing textbooks (he has published six in all), and being promoted to Coordinator of the HSC English Advice Line (T3 L23-57). “…[M]y career flourished to its highest point after Julian’s death”, but the “investigation made me give up on everything”. He then contends that “when I finally gave up on myself and applied for Medical Retirement, the CPID blocked the application”, and the resultant delay “caused my retirement to come through just one day after I was dismissed”.”
The expert medical evidence relevant to this remitter
29.As noted above (at [13]) the substantive medical evidence was summarised at paragraphs [84]-[92] of my judgment, which in turn the Chief Justice set out in full in paragraph [30] of his. These paragraphs need not be repeated here, but the Chief Justice went on to comment as follows (at [31] and [32]:
“31 In the course of dealing with the submissions of the Appellant that employment was not a substantial contributing factor within s9A of the Act, his Honour made findings of fact based on the medical evidence. His Honour referred to the contention of the Respondent that there was “an initial onset of relevant symptoms in February 2001” (at [132]), relying on the original consultation with Dr Pendel.
His Honour held:
“[133] I would conclude, as apparently did the Arbitrator, that Mr Sinclair’s psychological condition was evolving throughout 2001, as the investigation and redeployment continued and that it became incapacitating when specific allegations (as distinct from ‘charges’) were formulated.”
32 This appears to place the onset of the injury in November 2001. However, the conclusion that that is when the injury became “incapacitating” does not require a finding that there was no prior injury. Nor does it prevent reference to earlier conduct that commenced the psychological process which culminated at that time.”
30.The Chief Justice returned to the medical evidence (at paragraphs [76] to [87] of his judgment), noting (at [76]) that Mr Sinclair had said in his evidence:
“On 25th July [2001] I attended the first of six free counselling sessions with Fran Fagan, a psychologist in Parramatta. On 9th August she determined that I was clinically depressed and expressed the opinion that it was a result of the treatment I had received from my employer: especially being removed from my role, instructed not to speak to students (many of whom live near by and frequent the same shops as I normally would etc) and kept in the dark.”
and (at [78]) that the Department placed considerable emphasis on the report of Vicki Garner, which said:
“I have seen Mr Sinclair for regular psychological consultations, approximately fortnightly between 30/10/2002 and 21/08/2003, for treatment of symptoms of depression and anxiety resulting from the prolonged nature of the investigation by the Child Protection Investigation Department of the NSW Education Department.
…
Mr Sinclair was informed that he was dismissed by the Education Department on 18/08/2003. Although this decision has contributed to a worsening of his depression as would be expected his chronic depression as a result of the extremely prolonged investigation precludes him from returning to work for at least the next few months.” [Emphasis added by the Chief Justice]
31.The Chief Justice commented (at [78] and [79]) that Ms Garner was “the only expert who gave a clear indication of a sole or predominant cause”, and that “the other medical evidence does not address this issue in terms”. His Honour continued (at [86]):
“Only Ms Garner gave evidence which expressly addressed the s11A issue. Understandably, the expert evidence was generally focused on the s9A issue, i.e. did employment substantially contribute to the injury. There was, however, uncontradicted expert evidence which identified as the sole cause conduct which was found to be reasonable. It was open to be accepted and the other expert evidence did not detract from it and, with regard to a test of “predominance”, may be seen to be supportive.”
32.The Chief Justice (at [80]) quoted from Dr Teoh’s report:
“[Mr Sinclair] presented with a history of significant depression when I first saw him in August 2002.
He was experiencing problems with his employer. He told me that he was notified of ‘unprofessional conduct, and that he was transferred out of school’
He had consulted a psychologist, Vicki Garner, but his depression had persisted despite counselling and anti-depressants prescribed by his general practitioner.
The process started on 23rd January 2001 and no clear decisions were made for a prolonged period. Mr Sinclair said that not knowing the outcome of the investigation and his future made him more depressed. …His problems with the investigation and disciplinary proceeding have been a substantial contributing factor to his depression. …”
and observed (at [81]):
“This makes no specific mention of either the failure to furnish particulars or the ‘No Contact’ Direction, but draws attention to the long period of time taken by the investigation overall.”
33.In respect of Dr Pendel’s evidence, the Chief Justice said (at [82]-[83]):
“82 The Report of Dr Pendel, dated 13 June 2003 states that:
“I have treated Mr Sinclair for work-related anxiety and depression for over two years. In early 2002 his depression exacerbated to a point when he was unable to continue with his duties as a teacher of English”.
83 The certificate, dated 11 September 2003, prepared by Dr Pendel stated that the Respondent had suffered from depression for more than two years, that is, prior to September 2001. He had prescribed antidepressant medication in September 2001. The certificate of Dr Teoh, of the same date, estimates the duration of the injury at 1.5 years, that is, March 2002.”
34.In respect of Dr Synnott’s evidence, the Chief Justice said (at [84]-[85]):
“84 The report of Dr Synnott notes that the Respondent claimed that the cause of his injury was:
“the investigation into his misconduct (and the drawn out nature of the investigation)”.
85 The use of the word “and” suggests that both the delay and the investigation were causes.”
35.As noted above (in paragraph [13] of this judgment), the Chief Justice concluded (at [87]):
“ In my opinion it was open to his Honour to have concluded that the Appellant had made out its s11A defence on the expert evidence before him. This Court should remit the matter.”
Discussion
36.The Department has consistently relied on other documented stressors in Mr Sinclair’s life, such as the death of his son, Julian, in 1996, the death of his father during 2001, the personal relationship with the relevant student (Nicki Shackle), and his ultimate separation from his wife in 2002. His case, on the other hand, was that his symptoms commenced early in 2001, when the investigation began, and changed little from September 2001, even though he lost no time from work until approximately the 2001 Christmas school holidays (paragraph [96] of my judgment).
37.The specific allegations of the Department were put to Mr Sinclair only on 8 November 2001, almost a full school year after his redeployment, and it was only then that he actually ceased full-time work with the Department. He resumed on a part-time basis 12 months later.
38.Mr Sinclair has never argued that his employment was the only substantial contributing factor involved in his injury. Indeed his case included evidence by his own psychiatrist of other stressors dating back to childhood. None of these stressors appeared to hold him back, professionally or personally, prior to 8 November 2001. (See paragraphs [128] to [130] of my judgment). He was receiving no counselling or other psychological or psychiatric treatment prior to the employment-related events of 2001, but by May 2002 he was considered to be in need of specialist psychiatric help.
39.The medical evidence is unanimous that his employment with the Department was a “substantial contributing factor” to the injury, and the claimed resultant incapacity, and the Department’s expert (Dr Synnott) parts company with the others only on the degree of incapacity as at 19 May 2003 (when he saw him).
40.In so far as the Chief Justice found Ms Garner’s evidence to be of particular significance in the appeal, I would respectfully note that I considered her opinion – that Mr Sinclair’s symptoms of depression and anxiety resulted primarily from the “prolonged nature of the investigation” – at [86] of my judgment.
41.Nonetheless, I concluded (at [133]), as noted by the Chief Justice (at [31] – see [29] above) that Mr Sinclair’s psychological condition was evolving throughout 2001, as the investigation and redeployment continued, and that it became incapacitating when specific allegations (as distinct from “charges”) were formulated. Nothing in the Court of Appeal decision challenges, or diverts me from, that view.
42.I further noted (in [133]) that there was “improvement in the incapacitating condition as treatment continued and stressors modified, with textbook and other writing, and other changes (possibly including the evolution of his relationship with Ms Shackle) occurred in his life during 2002”.
43.What I later said (at paragraph [169]) also bears repeating here:
“169. … it must be remembered that there was substantial unanimity among the doctors about (i) the existence of a psychological condition, and, despite all of them knowing about a number of other significant stressors in his life, also about (ii) the fact that Mr Sinclair’s employment was a substantial contributing factor in it. They parted company only on the question of incapacity, and on that question the Arbitrator preferred the views of the treating doctors, who accepted, as indeed did the Arbitrator, Mr Sinclair’s “history” evidence as to how he felt and how fit he felt. Put simply, despite the fact that other problems in both his life and his normal teaching work did not cause compensable stress, he steadily became depressed when separated from his students, it got worse when he was kept waiting many months, then told the allegations and then charged, and he could work only 3 days per week at the time of his dismissal, because he got very tired.”
44.I dealt with the reasonableness/unreasonableness issues regarding the Department’s process at [150]-[154] of my judgment. In all the circumstances of the case, I found the “delay” in the investigation – although “most unfortunate indeed for all concerned” ([151] - to be not unreasonable, and I found the early change in the original decision to leave Mr Sinclair at the school during the investigation to also be reasonable.
45.In specifically finding “delay” to be not unreasonable, my judgment makes clear that I was dealing with the cumulative effect of various time lapses which occurred in the passage of the investigation itself. The other side of the time aspect, however, is the fact that the “No Contact” direction took effect for a much longer period than Mr Sinclair was given to expect. The impact of depriving him for so long of the benefits he obviously gained, in his personal stress and grief, from daily contact with his students (especially his HSC classes, and those closely associated with his dead son) was exacerbated by the passage of time, however the period might be justified. As Mr Sinclair now submits, “delay is arguably an aggravating factor” ([18] above).
46.I found the failure to provide him, for many months, with even basic particulars of what was alleged against him, combined with a total prohibition on his having any contact with any of his students to be unreasonable, and, having now reconsidered the matter in depth, I conclude that those two “blemishes” (to use the Court of Appeal’s word) caused the conduct of the investigation, as a whole, to fall far short of “reasonable action with respect to discipline”.
47.Furthermore, the medical evidence overall makes it absolutely clear that the extremely oppressive nature of the process as a whole, as so infected by unreasonable conduct, caused not only the gradual serious decline in Mr Sinclair’s symptoms over time, but, more relevantly, also their almost immediate manifestation once the transfer, coupled with the draconian “No Contact” direction, took effect.
48.Some restriction on his making contact with particular students (such as an alleged victim or material witnesses) was probably reasonable, but not the “blanket prohibition” imposed, especially in the absence of particulars as to what precisely was being investigated, and who was involved. His psychological deterioration commenced immediately, and understandably so.
49.In my view, the evidence demonstrates that Mr Sinclair suffered much more than mere emotional impulse, or an anxiety state, frustration or emotional upset, or a litigation neurosis, none of which constitute psychological injury (Stewart v New South Wales Police Service (1998) 17 NSWCCR 202. See also Hunt v Department of Education and Training (NSW) (2003) 24 NSWCCR 642). The issue of whether a psychological effect that amounted to a psychological injury was induced by the unreasonable actions of the Department, is a question entirely of fact, and not law (Commission of Police v Minahan (2003) 1 DDCR 57; BC200305623; [2003] NSWCA 239).
DECISION
50.In those circumstances, it cannot possibly be concluded, on the evidence, that the Department’s “reasonable action with respect to discipline” was “wholly or predominantly” the cause of Mr Sinclair’s injury, in terms of section 11A, and the Department’s defence to his claim, pursuant to that section, on the Court of Appeal’s view of how that section should properly be applied, must fail.
51.Accordingly, the Workers Compensation Commission’s initial appeal decision of 16 December 2004 (in [212]) should be, and is, confirmed, and I make the following orders:
1.The Department’s appeal is dismissed.
2.The Arbitrator’s decision in favour of Jeffrey Sinclair and paragraphs 4, 5 and 6 of the Workers Compensation Commission’s Determination of 22 March 2004 are confirmed.
3.In respect of paragraphs 1,2 and 3 of the Workers Compensation Commission’s Determination of 22 March 2004 the parties are to confer upon, and file with the Registrar within 28 days of the date of this decision, appropriate draft orders specifying the correct amounts of Mr Sinclair’s specific statutory entitlements for all components of the period 15 August 2003 to date and continuing, in accordance with these Reasons.
4.If the parties are unable to reach agreement on the amount of weekly compensation payments in respect of the period 15 August 2003 to date and continuing the matter is remitted to the Arbitrator at first instance to redetermine the weekly amounts in accordance with the reasons in my decision dated 16 December 2004.
5.The Department of Education & Training to pay Mr Sinclair’s costs of the appeal dated 16 December 2004.
COSTS
52.On 16 December 2004 I ordered the Department to pay Mr Sinclair’s costs of the initial appeal, as agreed or assessed.
53.The Court of Appeal, having upheld the Department’s appeal in part, set aside that costs order in these terms (par [98] of the Chief Justice’s judgment):
“… The Respondent succeeded on almost all points below and may well succeed entirely on remitter. The order for costs should be set aside but left in the discretion of the Commission on remitter. His Honour may well find it appropriate to restore the order in whole or in part. In this Court the Appellant was successful in part. The Respondent should pay half the Appellant’s costs in this Court.”
54.The parties’ submissions are agreed that, in the event of “in whole or in part …” succeeding on the remitter, costs should follow the event.
55.Having now determined in Mr Sinclair’s favour the only matter remitted by the Court of Appeal I do find it appropriate to reinstate my original costs order, and, in addition, I now order the Department to pay also the costs of these remitter proceedings.
Justice Terry Sheahan
President 26 July 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUSTICE TERRY SHEAHAN, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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