Duggan v Workers' Compensation Regulator - [2024] ICQ 13

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Duggan v Workers’ Compensation Regulator [2024] ICQ 13

PARTIES:

CORNELIUS DUGGAN

(appellant)

v
WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NO:

C/2023/46

PROCEEDING:

Appeal

DELIVERED ON:

28 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

7 May 2024

MEMBER:

Davis J, President

ORDERS:

1. The appeal is dismissed.

2. There be no order as to costs.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – WHAT IS AN INJURY – Where the appellant worked as a groundsman at a primary school – where the appellant was the subject of two complaints made by a teacher at the school – where the complaints were made nine months apart – where the principal informed the appellant of the complaints as they happened – where the appellant suffered psychological injury as a result of being informed of the complaints – where the appellant sought workers compensation for the injury incurred – where the appellant alleges the date of injury was the date of the second complaint – where the respondent alleges the date of injury was the date the appellant was issued with a workers compensation medical certificate – where the Queensland Industrial Commission found the date of injury was the date of diagnosis of injury – where the Commission found the injury was excluded pursuant to s 32(5) of the Workers’ Compensation and Rehabilitation Act 2003 – where the Commission dismissed the appellant’s application – where the appellant appealed to the Industrial Court of Queensland – where the Industrial Relations Act 2016 limits rights of appeal to where the grounds are errors of law or jurisdiction except by leave – where the appellant complained of factual errors by the Commission – whether there was error by the Commission – whether the injury is excluded by s 32(5) of the Workers’ Compensation and Rehabilitation Act 2003 – whether the injury arose during the course of reasonable management action – whether the management action was taken in a reasonable way by the principal – whether that thereby precludes the appellant from claiming workers compensation.

LEGISLATION:

Industrial Relations Act 2016, s 557
Workers Compensation and Rehabilitation Act 2003, s 32, s 561

CASES:

Duggan v Workers’ Compensation Regulator [2023] QIRC 309, related
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28, cited
Turay v Workers’ Compensation Regulator [2023] ICQ 13, cited
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, cited
Workers’ Compensation Regulator v Glass (2020) 4 QR 693; [2020] QCA 133, cited

COUNSEL:

T O’Brien for the appellant
C Clark for the respondent

SOLICITORS:

Optimum Legal for the appellant
Mr Clark was instructed directly by the Workers’ Compensation Regulator

The appellant, Cornelius Duggan, made a claim for compensation under the provisions of the Workers Compensation and Rehabilitation Act 2003 (WCR Act). That claim was rejected by WorkCover, whose decision was upheld by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Duggan v Workers' Compensation Regulator

Details

AGLC: Duggan v Workers' Compensation Regulator [2024] ICQ 13
Case: [2024] ICQ 13
Decision Date: 28 May 2024

CaseChat Overview and Summary

The Industrial Court of Queensland heard an appeal by Mr. Duggan, the appellant, against a decision of the Queensland Industrial Relations Commission (the Commission) that dismissed his claim for workers' compensation. Mr. Duggan, employed as a groundsman at St Martin’s Catholic Primary School, sought compensation for psychological injury arising from complaints made by a teacher, W.T., alleging inappropriate conduct by Mr. Duggan. The Commission found that the injury was excluded under section 32(5) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), as it resulted from reasonable management action by the principal, Mr. Sullivan. Mr. Sullivan had addressed the complaints informally, without initiating a formal investigation. The Commission's decision hinged on whether the injury arose during reasonable management action and if it was conducted in a reasonable manner.

The primary legal issue was whether the injury sustained by Mr. Duggan was excluded from workers' compensation under section 32(5) of the Act, as it was deemed to result from reasonable management action by the school's principal. Additionally, the Court had to determine if the management action taken by the principal was reasonable and, if so, whether this precluded Mr. Duggan from claiming compensation. The Court's analysis involved examining the nature of the complaints, the informal resolution process undertaken by the principal, and the timing and impact of the complaints on Mr. Duggan's mental health.

The Court found that the principal's informal resolution of the complaints constituted reasonable management action. The principal had spoken to Mr. Duggan directly, advising him to avoid contact with W.T. except in emergencies. This approach was deemed reasonable given the informal nature of the complaints and the lack of direct confrontation with Mr. Duggan. The Court concluded that the psychological injury was a consequence of this reasonable management action, thus falling under the exclusion criteria in section 32(5) of the Act. Consequently, the appeal was dismissed, and no order as to costs was made.

Orders

Orders of the court

1. The appeal is dismissed.

2. There be no order as to costs.

Background

Background to the litigation

From the Regulator’s decision, Mr Duggan appealed to the Queensland Industrial Relations Commission (the Commission) where he was unsuccessful.[1] It is from the Commission’s decision that Mr Duggan appeals to this Court.[1]Duggan v Workers Compensation Regulator [2023] QIRC 309.Background Brisbane Catholic Education (BCE) operates St Martin’s Catholic Primary School at Carina. Working at the school at relevant times were:(a)the appellant, who was employed as a groundsman;(b)Geoffrey Sullivan, the principal of the school; and(c)a teacher whom I will call W.T.. In about October 2018, W.T. complained to Mr Sullivan that Mr Duggan had made some comment to her which she considered inappropriate and made her uncomfortable (the first complaint). That comment made by Mr Duggan was apparently a compliment addressed to W.T.. W.T. did not complain to Mr Duggan directly so Mr Duggan’s first knowledge of the first complaint was through Mr Sullivan. Mr Sullivan’s response to the first complaint was to proceed informally rather than to follow a formal complaint process. He spoke to Mr Duggan and directed him not to approach or speak with W.T. except in an emergency. Avoiding W.T. was no doubt challenging for Mr Duggan. Teachers naturally have the run of the entire school and Mr Duggan would have had no knowledge of W.T.’s expected movements. Mr Duggan’s work was varied. He was the school gardener and handyman, but also performed various other tasks such as opening the school and classrooms in the morning, and generally checking the school and its grounds. Therefore, his duties took him all over the school at random times. Mr Duggan heard nothing further until 27 June 2019 in relation to any complaints. On that day, Mr Sullivan spoke to Mr Duggan about a further complaint made by W.T. (the second complaint). The second complaint was reduced to writing and dated 25 June 2019. Relevantly, it was in the following terms:“2019I didn’t seem to have any issues with Con this year until recently.Monday 13/5/2019I had taken my [class] to the Dominic Centre for a dance lesson. This was to go over the dance that they were learning for the fete.There were only the [class] in the hall. At one point, Con came into the hall and stood on phone went out and came back in a number of times. At one point he stood for about 3 minutes and appeared to be just watching. He was in the hall for about 15 minutes.Thursday 6/6/19It was about 8am when we were doing staff photos on this day. Con was there and I heard him doing his French voice and talking in that way to some of the other staff. Whilst he didn’t say anything directly to me, it made me feel quite uncomfortable as this is what he was doing to me in 2018.ConclusionI would like Con to stay away from me. If he is around me, he needs to remain professional and not make inappropriate remarks about me or my appearance. If we need to have a conversation, I would like there to be a third person with us.” Mr Sullivan’s contact with Mr Duggan on 27 June 2019 was Mr Duggan’s first knowledge of the second complaint. W.T. did not confront Mr Duggan with the terms of the second complaint or other complaints that she had made against him to Mr Sullivan between the making of the first complaint and the second complaint.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Duggan v Workers’ Compensation Regulator [2024] ICQ 13
PARTIES:	CORNELIUS DUGGAN (appellant) v WORKERS’ COMPENSATION REGULATOR (respondent)
FILE NO:	C/2023/46
PROCEEDING:	Appeal
DELIVERED ON:	28 May 2024
DELIVERED AT:	Brisbane
HEARING DATE:	7 May 2024
MEMBER:	Davis J, President
ORDERS:	1. The appeal is dismissed. 2. There be no order as to costs.
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – WHAT IS AN INJURY – Where the appellant worked as a groundsman at a primary school – where the appellant was the subject of two complaints made by a teacher at the school – where the complaints were made nine months apart – where the principal informed the appellant of the complaints as they happened – where the appellant suffered psychological injury as a result of being informed of the complaints – where the appellant sought workers compensation for the injury incurred – where the appellant alleges the date of injury was the date of the second complaint – where the respondent alleges the date of injury was the date the appellant was issued with a workers compensation medical certificate – where the Queensland Industrial Commission found the date of injury was the date of diagnosis of injury – where the Commission found the injury was excluded pursuant to s 32(5) of the Workers’ Compensation and Rehabilitation Act 2003 – where the Commission dismissed the appellant’s application – where the appellant appealed to the Industrial Court of Queensland – where the Industrial Relations Act 2016 limits rights of appeal to where the grounds are errors of law or jurisdiction except by leave – where the appellant complained of factual errors by the Commission – whether there was error by the Commission – whether the injury is excluded by s 32(5) of the Workers’ Compensation and Rehabilitation Act 2003 – whether the injury arose during the course of reasonable management action – whether the management action was taken in a reasonable way by the principal – whether that thereby precludes the appellant from claiming workers compensation.
LEGISLATION:	Industrial Relations Act 2016, s 557 Workers Compensation and Rehabilitation Act 2003, s 32, s 561
CASES:	Duggan v Workers’ Compensation Regulator [2023] QIRC 309, related Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited Lee v Lee (2019) 266 CLR 129; [2019] HCA 28, cited Turay v Workers’ Compensation Regulator [2023] ICQ 13, cited Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, cited Workers’ Compensation Regulator v Glass (2020) 4 QR 693; [2020] QCA 133, cited
COUNSEL:	T O’Brien for the appellant C Clark for the respondent
SOLICITORS:	Optimum Legal for the appellant Mr Clark was instructed directly by the Workers’ Compensation Regulator