Duggan v Workers' Compensation Regulator - [2023] QIRC 309

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: PARTIES:	Duggan v Workers' Compensation Regulator [2023] QIRC 309 Duggan, Cornelius (Applicant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2020/20
PROCEEDING:	Appeal against decision of Workers' Compensation Regulator
DELIVERED ON:	27 October 2023
HEARD AT: HEARING DATE:	Brisbane 19 April 2021 20 April 2021 21 April 2021
MEMBER:	Hartigan DP
ORDER: CATCHWORDS:	1. The appeal is dismissed. 2. Should the Regulator wish to make an application for costs, such an application is to be filed in the Industrial Registry within 28 days of this decision. WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – psychiatric or psychological injury - whether Appellant's injury was excluded pursuant to s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 – whether Appellant's personal injury arose out of, or in the course of, reasonable management action taken in a reasonable way – determination of date of injury – management action reasonable – appeal dismissed.
LEGISLATION: CASES:	Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32 Kuenstner v Workers' Compensation Regulator [2016] QIRC 083 State of Queensland v Q-COMP [2010] ICQ 6 Allwood v Workers Compensation Regulator [2017] QIRC 88 Davis v Blackwood [2014] ICQ 9 State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 097
APPEARANCES:	Mr T. O'Brien counsel instructed by Optimum Legal for the Appellant Mr C.J. Clark counsel directly instructed by Ms A. Schultz from the Workers' Compensation Regulator

Reasons for the Decision

Introduction

Mr Cornelius Duggan appeals a decision of the Workers' Compensation Regulator ("the Regulator"), dated 19 February 2020, confirming the decision of WorkCover to reject his application for compensation in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("the WCR Act"). Mr Duggan claims that he has suffered a psychiatric or psychological injury whilst employed by Brisbane Catholic Education ('BCE').
Mr Duggan commenced employment on a full-time basis with BCE as a Groundsmen at the St Martin's Catholic Primary School at Carina on or about 15 May 2017. Mr Duggan had been working as a contractor at the school assisting the then Groundsman prior to this time.
In or around November 2018, Mr Duggan was the subject of an informal complaint made by a teacher at St Martin's (Ms WT)[1], to the Principal, Mr Geoffrey Sullivan. The substance of the complaint was that Mr Duggan had complimented Ms WT on her appearances and that this made Ms WT feel uncomfortable ('the first complaint).
[1] The Classroom teacher's name will not be used in these reasons and has been anonymised by the use of a pseudonym 'Ms WT'.
In response to the first complaint, Mr Sullivan directed Mr Duggan to, amongst other things, not approach or speak to Ms WT unless it is an emergency; and be mindful of being near Ms WT's classroom.
On or around 25 June 2019, Ms WT made a written formal complaint regarding Mr Duggan to Mr Sullivan ('the second complaint').
On or around 27 June 2019,…

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 [2023] QIRC 309
Case: [2023] QIRC 309
Decision Date: 27 October 2023

CaseChat Overview and Summary

In the matter of Duggan v Workers' Compensation Regulator, the Appellant, Mr Duggan, sought to appeal against the Workers' Compensation Regulator's decision to refuse compensation for a psychiatric injury he sustained. The primary issue for the court was whether Mr Duggan's injury was excluded under section 32(5) of the Workers' Compensation and Rehabilitation Act 2003, and if his injury arose out of, or in the course of, reasonable management action taken in a reasonable way. The court also needed to determine the date of the injury and whether the management action taken was reasonable.

The court found that the Appellant's psychiatric injury was not excluded under section 32(5) of the Workers' Compensation and Rehabilitation Act 2003. It was established that the Appellant's injury arose out of, and in the course of, his employment. However, the court held that the Appellant's injury was not caused by reasonable management action taken in a reasonable way. The evidence demonstrated that the management action taken was reasonable and did not contribute to the Appellant's injury. The court also determined that the date of the injury was after the Appellant was provided with the written complaint, which was not in dispute.

The appeal was dismissed, and the court's decision was that the Appellant's psychiatric injury was not caused by reasonable management action taken in a reasonable way. The court held that the Workers' Compensation Regulator's decision was correct, and there was no basis for the Appellant's appeal. Should the Regulator wish to make an application for costs, such an application is to be filed in the Industrial Registry within 28 days of this decision.

Orders

Orders of the court

1. The appeal is dismissed.

2. Should the Regulator wish to make an application for costs, such an application is to be filed in the Industrial Registry within 28 days of this decision.

WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – psychiatric or psychological injury - whether Appellant's injury was excluded pursuant to s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 – whether Appellant's personal injury arose out of, or in the course of, reasonable management action taken in a reasonable way – determination of date of injury – management action reasonable – appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The first complaint provides the context to the matter. However, consistent with Dr Chalk's view, the first complaint played no role in the causation of Mr Duggan's injury.The second complaint and subsequent steps – evidence of the witness Mr Sullivan's evidence was that from about March 2019 Ms WT continued to raise concerns with respect to Mr Duggan as well as other concerns not related to Mr Duggan.[18][18] See for example Exhibit 28 - Emails between, [redacted] Ms WT, Mr G. Sullivan and another, sent 17 March 2019. Mr Sullivan considered it was not necessary to raise Ms WT's ongoing concerns with Mr Duggan until he received a written complaint made on a BCE complaint form contained in an envelope marked "confidential" from Ms WT dated 25 June 2019.[19][19] Ibid. The complaint was in the following terms:[20][20] Exhibit 33 – BCE Complaint Form. Complainant made by [redacted] Ms WT in relation to Mr C. Duggan, dated 25 June 2019.…2. If the complaint is about another person, details of staff member to whom the complaint relates Staff Member's Name: Con Duggan Role/Position: groundsman School/Office location: St Martin's Catholic Primary School, Carina 3. Details of Complaint…See attached form. …Details of Complaint – 20192019I didn't seem to have any issues with Con this year until recently.Monday 13/5/2019I had taken my [redacted] 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 Year [redacted] 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. As 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.…5. Outcome being sought to resolve the complaintI 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.6. Describe any action that has been undertaken to resolve the complaintI understand the principal (Geoff) spoke to Con, however there have been further instances where he has made me feel uncomfortable. … It is not in dispute that prior to the development of the injury, Mr Duggan was not provided with a written copy of the complaint. Mr Sullivan's evidence was that upon receiving the written complaint he assessed the complaint in accordance with the complaint management procedure as follows:[21]---I did. I did. Because there was – there were some comments that had been addressed with Mr Duggan previously. There were others that needed some clarification but in assessing the complaint I didn’t believe that it was of a nature that needed to be addressed in a formal sense, in a formal – and so I – the complaint management procedure actually has a flow chart. I followed the flow chart and with the information that I’d received and had previously dealt with, with Mr Duggan, I decided to apply the informal management procedure.[21] T2 – 21, l 44 – T2 – 22 l 3.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.