Evans v Q-Comp

[2011] QMC 42

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Evans v Q-COMP [2011] QMC 042

PARTIES:

MATTHEW JOHN EVANS

(appellant)

v

Q-COMP

(respondent)

FILE NO/S:

MAG85098/10(1)

DIVISION:

Magistrates Court – Industrial Magistrate

PROCEEDING:

Appeal against decision of Q-COMP

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

2 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2011, 23 August 2011

MAGISTRATE:

Lee G

ORDER:

The decision of Q-COMP is confirmed. This means the appeal is not successful.

CATCHWORDS:

INDUSTRIAL LAW - WORKERS COMPENSATION - personal injury – psychological injury – whether arose out of or in the course of management action – whether management action reasonable and taken in a reasonable way

INDUSTRIAL LAW - WORKERS COMPENSATION – application for review – merits review – de novo hearing – whether management action reasonable and taken in a reasonable way – who bears onus of proof in that respect

Workers Compensation and Rehabilitation Act 2003 (Qld), s 32(5)

Aigner v Q-COMP, C/2011/2 Queensland Industrial Court (16 May 2011)

Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen [1945] HCA 22; (1945) 70 CLR 635

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Ivey v WorkCover Queensland [1999] QIC 65; (1999) 162 QGIG 392

Parker v The President of the Industrial Court of Queensland & Q-COMP [2008] QSC 175; [2009] QCA 120

Pye v The Metropolitan Coal Co Ltd [1934] HCA 9; (1934) 50 CLR 614 and on appeal to the Privy Council at (1936) 55 CLR 138

Q-COMP v Hohn (2008) 187 QGIG 139

Q-COMP v Rowe [2009] QIC 17

Rossmuller v Q-COMP, C/2009/36 Queensland Industrial Court (5 February 2010)

Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512

COUNSEL:

G Cross for appellant

S Gray for respondent

SOLICITORS:

AK Compensation Lawyers for appellant

Respondent on own behalf

1. By applications dated 14 and 15 October 2009 Mr Evans applied for workers compensation[1] in respect of a psychological injury sustained during his employment with Dellgale Pty Ltd (Dellgale) as a welder. In his handwritten application

   
   

   (exhibit 1) he states this injury developed over a period of time whereas in the typed application (exhibit 2) it was not expressed as developing over a period of time but having occurred on 14 October 2009 when his employment was terminated. I note the employer’s report exhibited “ME 14” to Mr Evans’ affidavit sworn

   
   

   22 August 2011 (exhibit 6) says the injury happened “Over time from the stress of getting consumables and uniforms”.

   [1] Exhibits 1 (handwritten) & 2 (typed); exhibit 1 also referred to a physical injury i.e. “right hand been sore over 5 weeks”;  

2. On 26 November 2009 the claim was rejected by WorkCover[2] primarily on the basis that, although accepting Mr Evans sustained a personal injury in the nature of work related stress, it was excluded from the definition of injury under section 32(5) of the Workers Compensation and Rehabilitation Act 2003 (the Act) because it arose out of or in the course of reasonable management action taken in a reasonable way. As he had not sustained an injury as defined, compensation was not payable to him under section 108 of the Act.

   [2] See exhibit 3 for WorkCover’s Statement of Reasons;

3. Mr Evans requested a review of that decision[3] and upon review on 26 March 2010

   
   

   Q-COMP confirmed WorkCover’s decision for similar reasons[4]. In doing so,

   
   

   Q-COMP’s review officer accepted that Mr Evans was a worker, that he had sustained a personal injury in the nature of either “stress & anxiety disorder” or “work related stress”, and that this arose out of or in the course of his employment and that his employment was a significant contributing factor satisfying section 32(1). However, it was concluded that the injury was excluded from the definition of injury under section 32(5).

   [3] Exhibit 4 – Application for Review dated 24 February 2010;

   [4] Exhibit 5 – Q-COMP’s reasons for decision;

4. Mr Evans appealed to this court from that decision pursuant to section 550 of the Act[5]. 

   [5]

5. This appeal is not an appeal in the strict sense. It is a hearing de novo to be conducted as a full trial where both parties call evidence in support of their cases and witnesses are subject to cross examination: see for example Labaj v. WorkCover Queensland [2003] QIC 155; 174 QGIG 370 (17 September 2003) per Hall P[6]. As a general rule Mr Evans as the appellant bears the onus of proof on the balance of probabilities: for examples in this jurisdiction see Labaj v. Q-COMP [2005] QIC 37; 179 QGIG 365 (20 June 2005) and Briffa v. Q-COMP [2005] QIC 55; 180 QGIG 70 (19 August 2005) per Hall P. More will be said shortly about this.

   [6] While that case dealt with the WorkCover Queensland Act 1996 (now repealed), the comments equally apply to the current Act; see also Stephen Horace MacDonald v. Q-COMP (2) [2008] 188 QGIG 180 and Ergon Energy v. Training and Employment Recognition Council [2008] QIRC 101;

6. Dr G Cross of Counsel appeared for Mr Evans and Mr S Gray of Counsel appeared for Q-COMP. The trial proceeded on 22 & 23 August 2011. At the conclusion of evidence I received both written and oral submissions and then reserved the matter to 29 August 2011 for judgement.

7. With agreement of both counsel I received further written submissions on the question of who bears the onus of proving whether section 32(5) applies or does not apply as the case may be. Submissions were received from Dr Cross on 26 August 2011 and from Mr Gray on 30 August 2011. The matter listed for judgment for 29 August 2009 was vacated and adjourned sine die. I will deal with onus of proof now.

   Onus of Proof    

8. During oral submissions on 23 August 2011 it seemed settled that the onus of negativing section 32(5) was with Mr Evans. In support submissions for both parties[7] referred to Ivey v WorkCover Queensland [1999] QIC 65; (1999) 162 QGIG 392, a decision of the Industrial Court of Queensland in a worker appeal regarding the precursor to section 32(5)[8]. At the penultimate paragraph on page 3 of his judgement Hall P said:

   I do not accept the appellant’s submission that the burden of proof fell upon the respondent. On a fair reading of s 34 it does not impose a general liability to which s 34 (4) “provide[s] for some special grounds of excuse, justification or exculpation depending upon new or additional facts”. Section 34 states “the complete factual situation which must be found to exist before anyone obtains a right – under the provision”. Compare Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 at 519. The onus is born by the appellant. ……  

   [7] Paragraph 12 submissions for Q-COMP; paragraph 2.1 submissions for Mr Evans;

   [8] Section 34 (5) of now repealed WorkCover Queensland Act 1996 which is for all intents the same; It had previously been renumbered from section 34(4);

9. In further support of the proposition that Mr Evans bears the onus of proof of negativing section 32(5), in submissions on 23 August 2011 Q-COMP also cited Rossmuller v Q-COMP C/2009/36 (5 February 2010), another decision of the Industrial Court of Queensland regarding a worker appeal. At paragraph [2] of the judgment, Hall P said:

   Mr Rossmuller, who was the applicant for compensation and who was seeking to disturb the status quo, carried the onus of proof. To establish his claim under the Act, Mr Rossmuller was required to establish:

   (a)that he was a worker;

   (b)that he suffered a psychological injury;

   (c)the injury arose out of or in the course of his employment;

   (d)that his employment was a significant contributing factor; and

   (e)to negative any issue under s 32(5) of the Act raised by his own evidence or by evidence led by Q-COMP.

   The appeal to the Industrial Magistrate was not limited to the questions about whether an admitted psychological injury arose out of or in the course of reasonable management action taken in a reasonable way.  

10. Unlike Rossmuller, in Mr Evans’ case the only issue before this court is in paragraph (e) above i.e. section 32(5).

11. In written submissions received from Mr Evans’ counsel 26 August 2011, Aigner v
    Q-COMP C/2011/2 (16 May 2011), another decision of the Industrial Court of Queensland, was cited in support of the proposition that Q-COMP bears the onus of proof of establishing section 32(5) in a worker appeal. Q-COMP was the respondent in the appeal. Certain passages from the judgment of Hall P were emphasised at paragraphs [2], [6] & [20] respectively as follows:

    I should add, that it is accepted also that on the issues at s 32(5)(a) of the Act, Q-COMP carried the onus of proof. …..

    Section 32(5) (a) of the Act requires Q-COMP to demonstrate that reasonable management action was taken in a reasonable way in connection with the injured worker’s employment. ….

    The critical question is whether in the absence of such consultation,
    [Q-COMP] has demonstrated that in implementing a reasonable management decision about Ms Aigner’s employment, the Hospital acted in a reasonable way. In my view, [Q-COMP] who bears the onus of proof has failed to make out such a case.     

12. Submissions for Mr Evans continue that Aigner is “entirely consistent with the decisions in Pye v The Metropolitan Coal Co Ltd (1936) 55 CLR 138[9] and Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635” both of which considered now repealed New South Wales workers compensation legislation[10] for the proposition that:

    (6)… Where there is an exception to the liability of the employer, the onus is upon the employer to prove that in respect of which the worker would otherwise be entitled to. The party who relies on the matter which defeats the liability arising from other facts, in the absence of that matter must establish it by evidence. ……

    (7) The onus lies upon Q-COMP to establish those matters sufficient by reason of s 32(5) to defeat the appellant’s claim. 

    [9] The Privy Council affirmed the decision of the High Court – (1936) 55 CLR 138;

    [10] Both cases along with others were cited in the judgment of the High Court in Vines v Djordjevitch (1955) HCA 19; (1955) 91 CLR 512 at para [8];

13. In Pye, the definition of “injury” in the Workers’ Compensation Act 1926 – 1929 (NSW) set out the conditions for “injury” including all diseases “other than a disease caused by silica dust”. There were two workers compensation legislative schemes in existence, a general one[11] and a special scheme of compensation for incapacity resulting from diseases caused by silica dust[12] with a combined intention of providing compensation in every case of “injury”[13]. Unlike the present case where Q-COMP and not the employer is a party, the parties in Pye were the worker and the employer. It was held by majority that the employer bore the onus of proving that silica dust caused the worker’s disease to deny compensation under the general scheme but which would undoubtedly create an entitlement under the special scheme. I note that McTiernan J. (in the majority) foreshadowed that the onus may shift for the worker to disprove the employer’s case in relation to that issue[14].       

    [11] Workers’ Compensation Act 1926 – 1929 (NSW);

    [12] Workmen’s Compensation (Silicosis) Act 1920 (NSW);

    [13] Per Sir Sidney Rowlatt, Privy Council; (1936) CLR 138 at 142 (point 5);

    [14] (1934) CLR 614 at page 631 (point 5);

14. In Jacobsen, the question was who bore the onus of proving that injuries sustained during a journey to work were sustained “without his own fault or wilful act”: Workers’ Compensation Act 1926 – 1942 (NSW), s 7(1). In that case the injuries were fatal. It was held by majority that the onus lies with the employer to prove the worker received injury by reason of his own default or wilful act and not for the worker (or dependants) to prove that the injury was sustained without fault. Again, the parties in Jacobsen were the dependants of the worker and the employer. Dixon J (as he then was) (in the majority) said if the true nature of the qualification was “to introduce new matter, not as part of the primary grounds of liability, but as a special exception or condition defeating or answering liability otherwise existing, then the onus of proof lies with the party setting up default or wilful act by way of answer”[15]. He emphasised three factors that influenced his decision (1) the introduction of new matter that does not go to the character of the journey nor to the definition of “injury” (2) the qualification is expressed negatively i.e. proof of a negative is not imposed on a party & (3) the qualification involves fault or misconduct[16].

    [15] (1945) 70 CLR 635 at 643 (point 9);

    [16] Supra at page 644;

15. It appears to me that Hall P in Ivey (at [8] above), had turned his mind to similar matters considered in Pye and Jacobsen where he said that former section 34 “does not impose a general liability to which s 34(4) provides for some special grounds of excuse etc. depending upon new or additional facts” and that former section 34 “states the complete factual situation which must be found to exist before anyone obtains a right – under the provision”. It is not disputed that former section 34 of now repealed WorkCover Queensland Act 1996 (Q’ld) for all intents and purposes is to the same effect as current section 32. Prima facie, the decision of Ivey is binding on this court unless it is distinguishable. No point of distinction has been drawn to my attention and I am unable to find any.

16. The central question in Vines v Djordjevitch (supra) referred to by Hall P in Ivey, was whether the plaintiff in a action for damages against the Nominal Defendant bore the onus of proving facts amounting to compliance with a proviso in section 47(1) Motor Car Act 1951 (Vic)[17] limiting the rights of a plaintiff to obtain judgment against the Nominal Defendant in certain circumstances[18]. The statements of principle at paragraph [8] are along similar lines to those expressed in Pye and Jacobsen:

    8. It is said that the form of the sub-section places the burden of disproof on the defendant. For the requirement of prompt notice after the injured party becomes aware of the impossibility of identifying the car inflicting the injuries is expressed in the form of a proviso. "There is a technical distinction between a proviso and an exception, which is well understood. All the cases say, that if there be an exception in the enacting clause, it must be negatived: but if there be a separate proviso, it need not" - per Abbott J. in Steel v. Smith (1817) 1 B & Ald 94, at p 99 (106 ER 35, at p 37) . The distinction has perhaps come to be applied in a less technical manner, and now depends not so much upon form as upon substantial considerations. In the end, of course, it is a matter of the intention that ought, in the case of a particular enactment, to be ascribed to the legislature and therefore the manner in which the legislature has expressed its will must remain of importance. But whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies. When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter: see Morgan v. Babcock & Wilcox Ltd. [1929] HCA 25; (1929) 43 CLR 163 ; Pye v. Metropolitan Coal Co. Ltd. [1934] HCA 9; (1934) 50 CLR 614; (1936) 55 CLR 138 ; Darling Island Stevedoring & Lighterage Co. Ltd. v. Jacobsen [1945] HCA 22; (1945) 70 CLR 635 ; Barritt v. Baker [1948] VicLawRp 85; (1948) VLR 491, at p 495 ; Dowling v. Bowie [1952] HCA 63; (1952) 86 CLR 136 . (at p520)

    [17] "Provided that no such judgment may be obtained unless such person as soon as possible after he knew that the identity of the motor car could not be established gave to the Minister notice of intention to make the claim and a short statement of the grounds thereof".

    [18] The High Court found that the burden of proof was with the plaintiff at para [11];

17. Submissions for Q-COMP emphasise the consistent approach of the Industrial Court of Queensland that the onus of negativing section 32(5) rests with an appellant worker in a merits review de novo hearing before an Industrial Magistrate as opposed to an appeal to the Industrial Court which is concerned with correcting an identified error in a judgment of an Industrial Magistrate[19]. This is supported by other decisions of the Industrial Court constituted by Hall P, namely, Bowers v WorkCover Queensland (2002) 170 QGIG 1[20], Q-COMP v Foote (No. 2) (2008) 189 QGIG 539 at 540[21], Verhagan v Q-COMP (2008) 189 QGIG 542 at 543[22] and Q-COMP v Rowe (2009) 191 QGIG 67 at 71[23]. It is further supported by Parker v The President of the Industrial Court of Queensland & Q-COMP [2008] QSC 175 and on appeal to the Court of Appeal at [2009] QCA 120[24]. I do not intend reiterating all of the passages referred to in Q-COMP’s submissions suffice to say that I accept those submissions so that Mr Evans bears the onus of proof in negativing section 32(5) in a merits review de novo hearing before me.

    [19] Paragraphs 7 & 8 submissions for Q-COMP dated 30 August 2011;

    [20] Paragraph 2(b) submissions for Q-COMP dated 30 August 2011;

    [21] Paragraph 2(c) submissions for Q-COMP dated 30 August 2011;

    [22] Paragraph 2(d) submissions for Q-COMP dated 30 August 2011;

    [23] Paragraph 2(e) submissions for Q-COMP dated 30 August 2011;

    [24] Paragraphs 3 to 5 submissions for Q-COMP dated 30 August 2011;

18. Further, I agree with Q-COMP’s submissions that comments made by Hall P in Aigner must be seen in the light of the task before His Honour, namely to identify and correct any error in the judgement appealed from and that “conclusions upon factual matters reasonably open to the Industrial Magistrate are not to be interfered with” and, “[s]ubject to the limitations developed in Fox v Percy (2003) 214 CLR 118, the findings of primary fact based on an evaluation of a witness seen and heard by the Industrial Magistrate are not to be departed from”[25]. Appeals to the Industrial Court are thus not merits review de novo hearings. I agree with Q-COMP’s submissions that the comments by Hall P in Aigner “do not amount to a reversal of the accepted onus of proof born by [Mr Evans] in relation to section 32(5) of the Act”[26].              

    [25] Paragraph 8 submissions for Q-COMP dated 30 August 2011 citing Hall P in Prizeman v Q-COMP (2005) 180 QGIG 481 at 482;

    [26] Paragraph 19 submissions for Q-COMP dated 30 August 2011;

1. Moreover, I note Aigner does not refer to Ivey, Rossmuller or any of the other cases cited above and while at first blush it would appear to be inconsistent with those other cases on the question of who bears the onus in respect of section 32(5), such inconsistency is not explained by any material amendment to section 32 of the Act from enactment of the Act up to Aigner in 2011[27]. 

   [27] Workers’ Compensation and Rehabilitation Act 2003 (Reprint No 5E as in force 6 June 2011) indicates the only amendment to section 32 since enactment was to 32(5)(c) by No 45 of 2004 (Endnotes No 7 at p 477); Rossmuller was decided 5 February 2010 and Aigner, 16 May 2011;  

2. Even apart from Q-COMP’s submissions, I would prefer the views expressed in Ivy over Aigner because, for reasons best known to the parties in Aigner, it was apparently accepted between them that Q-COMP bore the onus and Hall P was not called upon to specifically adjudicate on the matter. It may be, as Q-COMP submits, it was recognised that an evidentiary onus fell on Q-COMP in proceedings before the Industrial Court in the task of identifying error. Hall P did adjudicate that point in Ivey and gave reasons for his conclusion based on his interpretation and effect of former section 34 and the legislative scheme of a Queensland statute. This view was subsequently indorsed for section 32(5) of the Act by Hall P in Rossmuller and other cases as well as the Court of Appeal in Parker. It seems to me that section 32(5) forms part of the primary grounds of liability required to be proved to establish initial liability as Hall P has found in Ivey and is not, as Dixon J in Jacobsen found in coming to his conclusions, new matter to defeat a liability that otherwise exists by way of exclusion etc.     

3. If I am wrong in that conclusion, for reasons that follow, I would find in any event that Q-COMP has discharged any onus in that regard. Q-COMP called three witnesses whose evidence I generally accept. I note that Dixon J, who concluded that the employer had the onus in Jacobsen, nevertheless adopted a similar approach in that case[28].  

   Relevant Statutory Provisions

   [28] (1945) 70 CLR 635 at 643;

4. Section 108 of the Workers Compensation and Rehabilitation Act 2003 (the Act) generally provides that compensation is payable for an “injury” sustained by a “worker”.

5. Relevantly “worker” is defined in section 11[29] to include an individual who works under a contract of service.

   [29] In Chapter 1 (Preliminary) Part 4 (Basic concepts);

6. The definition of “injury” is in section 32 (Chapter 1 Part 4 of the Act) as follows:  

   32 Meaning of injury

   (1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.

   ………..

   (5) Despite subsection (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances--

   (a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
   (b) the worker's expectation or perception of reasonable management action being taken against the worker;
   (c) ….

   Examples of actions that may be reasonable management actions taken in a reasonable way--
   action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
   a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment

   The Issues

7. It is not disputed that Mr Evans is, and was at all material times, a worker as that term is defined in the Act[30].

   [30] Paragraph 4.1 submissions for Mr Evans; paragraph 16 submissions for Q-COMP;

8. It is also not disputed that Mr Evans sustained an “injury” as that term is defined in section 32(1) of the Act. That is, Mr Evans sustained a psychological disorder in the nature of a major depressive disorder that arose out of or in the course of his employment and that his employment was a significant contributing factor to that injury[31]. This is supported by the medical evidence.

   [31]

9. There is an issue as to when the psychological disorder manifested. On the one hand it was submitted for Mr Evans that it occurred on 14 October 2009, his last day of work, so that any events pre and post dating that day are not relevant. For example, it was submitted for Mr Evans that the subject matter in his diary entries of 17 February 2009, 19 February 2009 and 8 April 2009 tendered by Q-COMP as exhibits 18, 19 & 20 “are well before any alleged injury”[32]. On the other hand, it was submitted for

   
   

   Q-COMP that the disorder developed over a period of time up to its full manifestation on 14 October 2009 so that events occurring before then are to be taken into account on a more global basis. It is not contested that events after 14 October 2009 are not relevant for the purposes of section 32(5).

   [32] Paragraphs 8.1 & 8.2 submissions for Mr Evans; 

10. The central issue is whether Mr Evans’ psychological injury is excluded from the definition of injury by virtue of section 32(5) of the Act. If the answer is in the affirmative, then Mr Evans is taken not to have sustained an injury as defined in the Act so that compensation would not be payable.

11. In considering the application of section 32(5), it is not disputed that only paragraph (a) of that section potentially applies in this case and that paragraph (b) is not applicable[33].

    [33] This was made clear in oral submissions;

12. To provide context, it is noted that Mr Evans also sustained two separate physical injuries at work which have been the subject of two workers’ compensation claims. In about September 2009 he said he first noted symptoms in his arms, in particular, his right arm. He could not hold a grinder in his right hand[34]. Also in his affidavit Mr Evans said he had an accident at work in late August or September 2009 where he had fractured his right hand[35] although Dr Couzens’ records October 2009 based on information provided to him by Mr Evans on 3 June 2010[36]. In respect of the first injury Dr Couzens described this as ulna neuritis of the right elbow that developed over a period of time from April 2008[37] or at least Christmas 2008[38]. Mr Evans’ claim for compensation in respect of this injury has been accepted. As to the specific accident, Dr Couzens said there was a possible break of the hook of the Hamate of the right wrist. The Hamate is a carpal bone in the wrist. Mr Evans’ claim for compensation for this injury is being assessed.   

    [34] Paragraphs 34, 35, 38 & 41 exhibit 6 (Affidavit of Mr Evans sworn 22 August 2011);

    [35] Paragraph 36 exhibit 6;

    [36] Dr Cousin’s report 14 July 2010 (exhibit 8) at p 2 (para 5);

    [37] Dr Couzens’ report 14 July 2010 (exhibit 8) at p 1 next to heading “Date of Injury”

    [38] Dr Couzens’ report 14 July 2010 (exhibit 8) at p 2 (paras 3 &4), p5 (para 1); 

13. Mr Evans gave evidence in support of his appeal. His evidence in chief was given by way of affidavit sworn 22 August 2011 (exhibit 6)[39] and he was cross examined. Mr Evans’ mother Mrs Sharon Evans, Dr Peter Mulholland (psychiatrist) (by phone) and Dr Susanna Matthysen (general practitioner) (by phone) gave evidence in support of his appeal.

    [39] By consent, orders were made to this effect on 17 February 2011 due to Mr Evans psychological condition;

14. The medical evidence adduced for Mr Evans included reports of Dr Mulholland dated 7 & 20 October 2010, 26 May 2011, 28 June 2011 and 22 August 2011 (exhibit 12), statements from general practitioners Dr S Matthysen dated 16 June 2011 (exhibit 25) and Dr P Talati dated 19 August 2011 (exhibit 26) and their clinical notes (exhibits 11 & 10 respectively[40]) as well as three reports from orthopaedic surgeon Dr Gregory Couzens dated 9 December 2009 (exhibit 7), 14 July 2010 (exhibit 8) and 26 July 2011 (exhibit 9). The reports of Dr Couzens relate to physical injuries sustained by Mr Evans during his employment with Dellgale. Dr Couzens and Dr Talati were not required for cross examination.   

    [40] Also exhibited to Mr Evans’ affidavit sworn 22 August 2011 (exhibit 6) – exhibits 1 & 2 therein;

15. Q-COMP called the following witnesses who are brothers:

    ·     Mr Damian Rouhan (Workshop Manager for Dellgale)

    ·     Mr Shane Rouhan (Managing Director of Dellgale)

    ·     Mr Darrin Rouhan (Occupational Health Safety & Welfare Officer for Dellgale)    

16. Thirty exhibits were tendered.

    Background & Discussion  

17. Mr Evans, born 20 April 1982, commenced employment with Dellgale in May 2008 as a welder or boilermaker. Mr Evans said at first he was employed on a casual basis and became permanent about four months later[41] although evidence from the employer’s witnesses suggests that his employment was confirmed after he had served a three month probation period. It is not disputed that his employment with Dellgale was terminated on 14 October 2009 after an incident where Mr Evans threw a hammer through a wall that day. I note photos in exhibit 23 depicting the hole in the wall. 

    [41] Paragraphs 11 & 15 Mr Evans’ affidavit sworn 22 August 2011 (exhibit 6);

18. He was a self taught welder describing himself as a second class welder with about five years experience. Mr Evans attended courses to become qualified as a first class welder but discontinued due to expense. Prior to his employment with Dellgale he worked for a welding and fabrication business for trucks at Ormeau[42]. Mr Evans said he never had any difficulties with his arms prior to working for Dellgale.   

    [42] Paragraphs 5 to 8 of exhibit 6;

19. Dellgale imported cranes built in China for the purposes of selling them to others in Australia. Mr Shane Rouhan spent a lot of time in China for this purpose. The cranes did not comply with Australian standards and had to be modified. As a welder, Mr Evans’ duties included drilling, grinding and welding metal parts to the cranes so that they complied with Australian standards etc. One bone of contention emphasised at trial by Mr Evans was that he was often required to use reject metal pieces from a business next door. He says he had to crawl into their bins to retrieve the metal. Evidence from Q-COMP was that while the sizes of metal pieces for the business next door was of no use to them, they were quite serviceable for Dellgale’s needs and Dellgale was permitted to retrieve them when required. There were aids available for this purpose such as a crane. It appears that Mr Evans also performed computer work for Dellgale out of hours creating their web site. He was to be paid for this work. Dellgale went into liquidation late 2010 or January 2011.    

20. Mr Shane Rouhan was the Managing Director of Dellgale during Mr Evans’ employment. Mr Damian Rouhan, the Workshop Manager, was Mr Evans’ immediate supervisor at all times. Mr Darrin Rouhan was the Occupational Health Safety & Welfare Officer for Dellgale at all times. There were about six or so staff in the workshop as well as office and sales staff located away from the workshop area. It appears that Dellgale employed additional temporary staff from time to time depending on workloads. I also note that other staff flew around the country for projects from time to time.     

21. The case for Mr Evans is that his psychological injury resulted from two sources i.e.  (1) stressors in the workplace, and (2) as a secondary consequence of his physical injuries[43]. It is also Mr Evans’ case presented at trial in this court that he sustained his psychological injury on 14 October 2009 and therefore, matters occurring before and after are not relevant.    

    [43] Paragraph 4.2 to 4.5 submissions for Mr Evans;

22. It was submitted for Mr Evans that the psychological injury caused by the physical injuries cannot be excluded from the definition of injury by section 32(5) on the ground that such injury arose out of or in the course of reasonable management action taken in a reasonable way in connection with his employment. Rather, the psychological injury developed as a result of the physical injuries themselves[44]. No authorities were cited on this point. For reasons that follow, it is not necessary to conclusively determine this.     

    [44] Paragraph 4.7 (a) submissions for Mr Evans;

23. In a separate submission, it is Mr Evans’ case that in any event the workplace stressors that gave rise to the psychological injury did not arise out of or in the course of reasonable management action taken in a reasonable way in connection with Mr Evans’ employment[45]. 

    [45] Paragraph 4.7 (b)(i) submissions for Mr Evans; a reference in para 4.7 (b)(ii) to ss 32(5)(b) does not seem to apply here; 

24. As I understand from Dr Cross’ opening address and closing submissions the crux of Mr Evans’ case is that even if it was found that the workplace stressors arose out of reasonable management action taken in a reasonable way, Mr Evans’ psychological injury is not excluded from the definition of injury by section 32(5) simply because section 32(5) does not apply in respect of the psychological injury that stemmed from the physical injuries, which, according to the medical evidence, was a significant contributor. Unfortunately, both counsel were unable to locate any authority on this direct question although submissions for Q-COMP identified cases on the interaction between section 32(1) & (5).

25. In support of Mr Evans’ case, reliance was placed on the views of psychiatrist Dr Mulholland in his statement signed 28 June 2011[46] (in exhibit 12):

    I believe that the major depressive disorder is related to the physical injuries suffered and the interpersonal issues that [Mr Evans] has experienced in the workplace, while working at Dellgale Pty Ltd 

    In my opinion the interpersonal issues in the workplace and the physical injuries, including the fractured right wrist, are each on their own sufficient to cause a psychological injury in a person with an anxious personality type such as [Mr Evans].   

    [46] The second paragraph cited is referred to at para [41] submissions for Q-COMP;

26. In a later statement dated 22 August 2011[47] (in exhibit 12), Dr Mulholland said:

    The physical injuries and the psychological stressors are each on their own a significant contributing factor to the psychological injury. In this case they add up as well. (my emphasis)

    [47] Cited at para [4.5] submissions for Mr Evans;

27. I interpolate here that the component “a significant contributing factor” is a consideration in respect of establishing whether there is an injury as defined in section 32(1) but not a consideration in section 32(5) for the purposes of excluding a disorder from the definition of injury. I agree with Q-COMP’s submissions on this point[48]. There is no issue that Mr Evans has sustained an injury pursuant to section 32 (1).   

    [48] Paragraphs 23 to 25 submissions for Q-COMP;

28. Dr Matthysen was of a similar view[49]. She also said that, despite Mr Evans’ personality type and being stressed, there was no indication of a psychological illness during consultations on 10 & 22 November 2008 although exhibiting stress. 

    [49] Paragraph 33 submissions for Q-COMP; paragraph 5.7 submissions for Mr Evans;

29. I shall first consider the stressors in the workplace in the context of section 32(5)(a). If it is found that the stressors resulted from reasonable management action taken in a reasonable way, having regard to the authorities such as Q-COMP v. Rowe [2009] QIC 17 and Q-COMP v Hochen C/2009/47 (1 March 2010)[50], an examination of whether there is a sufficient causal nexus[51] to satisfy “arising out of” between management action and the development of Mr Evans’ psychological condition is all that is required to see if section 32(5)(a) is invoked: see for example Parker v
    

    [50] Relevant paragraphs of the judgements are cited in submissions for Q-COMP;

    [51] “Arising out of” in section 32 (5) is a broader concept than “caused by” and does not require a direct or proximate relationship between the employment and the injury; it only involves some causal or consequential relationship; the phrase “caused by” is used in section 11A(1) of the Workers Compensation Act 1987 (NSW) entitled “No compensation for psychological injury caused by reasonable actions of employer”: and see Avis v WorkCover Queensland (2000) 165 QGIG 788   

    [52] That decision was unsuccessfully challenged upon judicial review to the Supreme Court and Court of Appeal; paras [62] to [65] submissions for Q-COMP; 

    [53] Cited at paragraph [79] on page 28 submissions for Q-COMP; 

    [54] Cited at paragraphs [66] & [67] submissions for Q-COMP;

    Q-COMP 185 QGIG 269 at 273[52]. In this regard, one should not undertake the exercise of determining the degree of causation or dominance between separate events or sources, in this case, the effects of the physical injuries as opposed to the workplace stressors: see for example Hochen at para [12][53]. Likewise, in undertaking this exercise one should not add a gloss to section 32(5)(a) of the Act that the injury was “materially connected” to the management action concerned: see for example Q-COMP v Hohn (2008) 187 QGIG 139 at 140[54].  

30. Mr Evans provided a handwritten statement of five stressors to general practitioner Dr Talati on 14 October 2009 (exhibits 16 & 26). They are (1) seeking protective clothing since April 2009 (2) Mr Evans bought his own drill bits and not being reimbursed (3) inability to do overtime (4) he was being burnt at work, and (5) an injury to his hands[55]. Dr Talati certified Mr Evans unfit for work in a workers compensation certificate from 14 to 21 October 2009 (in exhibit 10).

    [55] See paragraph 7.1 submissions for Mr Evans; 

31. On or around 22 October 2009 Mr Evans learned that he had been dismissed from his employment and he saw Welfare Rights Centre Inc, a community legal centre, on

    
    

    29 October 2009 alleging impairment discrimination under the Anti Discrimination Act 1991 (Qld)[56]. 

    [56] Paragraphs [65] to [67] and exhibit “ME 17” to affidavit of Mr Evans (exhibit 6);

32. In addition to this Mr Evans engaged solicitors soon after 14 October 2009 who, upon his instructions, wrote a detailed letter to WorkCover dated 6 November 2009 identifying the issues (exhibit 24)[57]. They are described in Dr Cross’ submissions as:

    ·     Mr Evans was not provided uniforms despite requests

    ·     Mr Evans offered to pay for his uniforms

    ·     It was compulsory to do overtime

    ·     He suffered burn injuries[58] and metal in his eyes

    ·     He suffered bilateral ulna neuritis and a wrist fracture.    

    [57] Summarised in paragraph 7.2 submissions for Mr Evans;

    [58] Examples of which are in photos in exhibit 13; 

33. Exhibit 14 is one of Mr Evans’ work shirts which is torn in some places the major tear being below the waist line at the front. Exhibit 15 consists of three photos of one of Mr Evans’ work shirts.    

34. As submissions for Q-COMP point out and as is evident from the detailed solicitor’s letter itself (exhibit 24)[59], that letter emphasises persistent bullying by Mr Damian Rouhan “soon after [Mr Evans] started working with Dellgale” by “frequently threaten[ing] to sack him” and “that there was a personality clash between him and his manager” who “took every opportunity to threaten and harass [Mr Evans], and to make him feel intimidated”. Dr Mulholland refers to “interpersonal issues” in his reports. I observe this is contrary to the picture portrayed by Mr Evans during his evidence and which is reflected in closing submissions on his behalf relying on those matters in [46] above without primary focus on the alleged difficulties with Mr Damian Rouhan. I note also no reference to these difficulties in Mr Evans’ handwritten note given to Dr Talati on 14 October 2009 (exhibits 16 & 26).  

    [59] Paragraph 28 submissions for Q-COMP;

35. A convenient summary of Mr Evans’ consultations with general practitioners from

    
    

    13 December 2004 to 1 December 2009 is set out in Dr Mulholland’s report dated

    
    

    7 October 2010 (exhibit 12) after reviewing medical records. Many of these and more are reflected in the clinical notes of Dr Matthysen (exhibit 11) and Dr Talati (exhibit 10). Without citing all, commencing prior to employment with Dellgale, they are relevantly:

Date of Consultation	Who Consulted	What for?
28/9/2006 (3.06 pm)	Dr T Somasundaram	Anxious personality & others – Valium prescribed
15/11/2006 (10.20 am)	Dr Matthysen	Very upset over work issues – Medical Certificate issued
28/12/2006 (2.59 pm)	Dr Matthysen	Still anxious – Medical Certificate issued
8/1/2008 (12.06 pm)	Dr C Perera	Tired run down stressed depressed..-referral
11/1/2008 (2.57pm)	Dr C Perera	Still stressing
1/4/2008 (3.18 pm)	Dr C Perera	Stressed, insomnia, issues at work – meds including Valium prescribed
9/5/2008 (12.52 pm)	Dr C Perera	Valium prescribed
10/11/08 (3.32 pm)	Dr Matthysen	Stressed at work & baby on the way – Valium prescribed
22/11/2008 (10.00 am)	Dr C Perera	Work stressors; wants to take a few days off – med certificate issued
15/2/2009 (9.04 am)	Dr P Talati	Various stressors et al
14/10/2009 (12.26 pm)	Dr P Talati	Stressors at work ++, conflicts with floor manager ++
14/10/2009 (2.26 pm)	Dr P Talati	Hyperventilating – issues at work – med certificate issued
19/10/2009 (3.12 pm)	Dr Matthysen	Work related injury
26/10/2009 (1.35 pm)	Dr Matthysen	Stressed + anxiety et al

1. While Dr Mulholland could not come to a definitive diagnosis due to lack of co-operation by Mr Evans on 2 September 2010 and 19 October 2010, he observed that Mr Evans had pre-existing issues and that there was no doubt that he had a serious psychiatric condition characterised by anger and depression that had developed over time. In support of the view that the psychological injury did not occur over a period of time but on 14 October 2009 it was submitted for Mr Evans that he did not consult Dr Matthysen for a stress condition between November 2008 and after 14 October 2009 and the last time he saw Dr Talati in this respect before 14 October 2009 was Sunday 15 February 2009[60]. Be that as it may, it doesn’t overcome the existence of alleged workplace multiple stressors relied on by Mr Evans over a period of time. This is supported not only by the contents of his diary entries in January to September 2009, but the fact that he thought it necessary to make them (exhibits 17 to 22). Further, I note general practitioner Dr Matthysen’s comments that as of November 2008 there were no signs of a psychological disorder in Mr Evans regardless of his then presenting symptoms. However, this statement is simply a snapshot in time and does not take into account the full picture, including the consultation with Dr Talati on 15 February 2009, and that any such disorder may have been in an inchoate state and not developed. It may be that Dr Matthysen was not in a position to make a formal diagnosis at that time. I would defer to the views of Dr Mulholland that Mr Evans’ psychological disorder evolved over a period of time and not just on

   
   

   14 October 2009 so that events antecedent to 14 October 2009 should be considered for the purposes of section 32(5). This is further supported in the letter from Mr Evans’ solicitors of 6 November 2009 (exhibit 24) where, in relation to the psychological injury, it said[61]:

   …Our client has requested that we provide a little bit more detail in relation to the work related stressors that have resulted in his workplace injury.

   There are a number of issues that have caused [Mr Evans] to decompensate and some of these have been present for a period of time. (my emphasis)

   [60] Paragraphs 5.5 & 5.6 submissions for Mr Evans;

   [61] At paras [3] & [4] at page 1 of exhibit 24;

2. The letter then goes straight to the alleged bullying by Mr Damian Rouhan “soon after [Mr Evans] started working with Dellgale[62]” which “culminated following significant stress in [Mr Evans’] workplace with his decompensating on 14 October 2009”[63]. While the stressors relied on in this court at para [34] above were referred to in the letter and while Mr Evans did consult Dr Matthysen on 10 & 22 November 2008 about stress due to interpersonal conflict at work[64], contrary to the position taken in this court it appears the major platform forming the basis for the psychological injury at the time of that letter was the longstanding conduct of Mr Damian Rouhan. The letter concludes[65]:

   It is submitted that such injury is based upon bullying and harassment of Damian Rouhan and unreasonable management action taken in an unreasonable way by Damian Rouhan. Further, the other managers in the workplace haves [sic] contributed by not taking reasonable steps to remove the conflict that was well known to be present.      

   [62] At para [6] at page 1 exhibit 24;

   [63] At para [4] at page 3 exhibit 24;

   [64] Paragraph 5.3 submissions for Mr Evans;

   [65] Penultimate paragraph at page 5 exhibit 24;

3. Prior to 14 October 2009, on 5 October 2009 Mr Evans attended Dr Talati with right hand pain to the extent that he could not hold his tools[66]. Dr Talati issued a general medical certificate certifying Mr Evans’ unfit for work from Monday 5 October 2009 to Wednesday 7 October 2009 (in exhibit 10). On 14 October 2009 he consults Dr Talati twice about stressors at work and at Mr Evans’ request Dr Talati issues a workers compensation medical certificate certifying him unfit for work from

   
   

   14 October 2009 to 21 October 2009 for “work related stress”. On 19 October 2009 Mr Evans then twice consults Dr Matthysen who issued a worker’s compensation medical certificate certifying him unfit for work from 19 to 26 October 2009 for “painful right wrist and work related stress”[67]. On 26 October 2009 Dr Matthysen issues a further worker’s compensation medical certificate certifying Mr Evans unfit for work from 26 October 2009 to 9 November 2009 for “painful R wrist and work related stress” and on 26 November 2009 certifying Mr Evans unfit for work from

   
   

   26 October 2009 to 18 December 2009 for “L hand and elbow nerve damage” (in exhibit 11). Dr Matthysen subsequently issued several further workers’ compensation medical certificates for physical and stress related conditions (in exhibit 11).   

   [66] Paragraph 6.5 submissions for Mr Evans;

   [67] Paragraph 60 & exhibit “ME 15” to Affidavit of Mr Evans (exhibit 6); 

4. A major workplace stressor relied on by Mr Evans is that he was not provided with an earlier than usual reissue of new uniforms despite requests from about April 2009 onwards. If uniforms were only issued after the probation period as Mr Darrin Rouhan says, Mr Evans would have received his first new issue sometime in October 2008. He said he had to wash every night so that he could wear his uniform the next day as it was compulsory. He said on one occasion he had to go to the doctor with bronchitis contracted because of wearing a freshly washed uniform that had not fully dried. I note however, and I accept evidence from Q-COMP’s witnesses that Mr Evans was often seen wearing his own clothes. Mr Evans admits this[68]. Mr Evans said for some reason he was only given two shirts instead of the usual three when first issued. Even if that is accepted, it is not clear what happened to his second shirt. Mr Darrin Rouhan said it is usual practice to distribute 3 shirts and no reason was identified as to why Mr Evans would be any different. 

   [68] Paragraph 28 affidavit of Mr Evans (exhibit 6);

5. Evidence for Q-COMP is that uniforms are not distributed to employees until they have served their probationary period. Mr Darrin Rouhan gave evidence that all workshop staff were supplied with one set of uniforms each year. A set comprises 2 workpants, 3 long sleeved shirts with company logos and the employee’s name embroidered on them, 1 set of overalls and 1 pair of steel capped boots. Mr Evans said he only received 2 shirts. In addition, special items were issued from time to time depending on the particular work the employee was doing including goggles and gloves. These are recorded in a safety equipment register such as exhibit 27 dated 24 September 2009. Mr Darrin Rouhan explained that these items are contrasted with other items of equipment that are available for a particular work area or where particular work is being carried out in which case the safety equipment register does not apply. He said a leather welder’s jacket and welder’s gloves were always available for Mr Evans in his particular workplace and this would not be reflected in a safety equipment register as it relates to the job rather that the individual employee. Mr Shane Rouhan also said a welder’s jacket was available for Mr Evans in his particular area but noted that Mr Evans was not wearing it on the occasion he was there. On the other hand Mr Evans said he was never issued with a leather jacket and if one were issued to him, he would have used it[69]. On balance I prefer the evidence of Q-COMP’s witnesses on this point. It seems to me that Mr Evans’ account on these matters is less satisfactory compared with the witnesses for Q-COMP. It is more likely that there was a leather jacket for his use but for reasons best known to him he chose not to wear it. I found Mr Shane Rouhan particularly impressive as a witness. If indeed Mr Evans’ shirts wore out more quickly than for other workers, failure to wear the leather jacket provided may explain this.

   [69] Paragraphs 29 & 30 affidavit of Mr Evans (exhibit 6);

6. Mr Darrin Rouhan said Mr Evans did approach him for new uniforms and he approved them. However, he explained the system for ordering uniforms. He said that due to prohibitive expense uniforms were usually ordered for a number of employees at a time to keep the cost per uniform to a minimum. The cost per uniform varied from $900 to $1200 largely because of the embroidered company logo and depending on the number ordered at any one time. For new employees who had not been measured up before, a representative of the uniform supplier attended the workshop for that purpose. If employees had been measured before, those measurements could be used. This process usually took some time particularly given that the suppliers had the proforma for their logo.

7. There is evidence that there were problems with Dellgale’s uniform suppliers in that they were having difficulties with their own suppliers. Further, it appears that Dellgale’s account was on hold with their suppliers presumably because accounts had not been paid. This is reflected in Mr Darrin Rouhan’s email to WorkCover dated

   
   

   3 November 2009 (exhibit 30). While Mr Darrin Rouhan seemed unsure that this was in fact the case, on balance I accept that it probably was the case. The question is whether, in all the circumstances of the case, Dellgale acted reasonably in securing uniforms for Mr Evans. I accept that uniforms were usually replaced annually. It is said that Mr Evans’ duties were more onerous than other workers due to the nature of his work and that his uniforms required replacing more frequently although, as I have found, a leather welders jacket was available. Walls were eventually built around Mr Evans’ work area which protected other workers from sparks etc. I note and accept that no other worker complained about uniforms either before or after the walls were erected around Mr Evans’ work space.

8. If he was first issued with uniforms in about October 2008 after serving his probationary period, his first request for a reissue of new uniforms in April 2009 is only about six months or so after the first issue. He not only wanted a fresh issue but, contrary to standard practice in the industry according to Mr Darrin Rouhan, he wanted five shirts for each day of the week although he was prepared to pay for them himself if need be[70]. The exhibits showing the state of Mr Evans’ shirt would be the state they were in around the time of his dismissal. There is no physical evidence or photograph evidence as to its condition in April 2009. Also, there is no evidence as to precisely when the walls were built around Mr Evans’ work area which protected other workers from sparks although in his affidavit Mr Evans says it was built only “a couple of months before [he] stopped working”[71] which would be after he first requested reissue of new uniforms in April 2009. Presumably his shirt would have been in a much better condition in April 2009 than that depicted in exhibits 14 & 15 although accepting that it would have been worn out to an extent.     

   [70] Paragraph 27 affidavit of Mr Evans (exhibit 6);

   [71]

9. Having said that, I accept that Mr Evans first requested new uniforms in April 2009 and was not reissued with new uniforms upon that request or subsequent requests. I am not satisfied on the evidence that the state of his uniforms as of April 2009 were in such a state that they needed replacement although I accept that his work was more demanding of his shirts than other workers in the workshop. He was provided a leather jacket which, if consistently used would have offered protection to his shirts and body. I accept that he was seen not wearing the leather jacket and was requested to wear it. Mr Evans also wore his own clothes to work at times. I think the point about wearing compulsory uniforms, although articulated at tool box meetings[72], is a distraction here as far as Mr Evans is concerned when considering section 32(5). I also accept the evidence of Mr Darrin Rouhan about the system of ordering uniforms and the delay in that process. It was not simply the case of walking into a store and buying them. However, due to the nature of Mr Evans’ work, I think Dellgale could have expedited matters a bit more than it did. Having said that, I don’t think that this is fatal. It is a blemish and not unreasonable in the whole circumstances of the case.

   [72] See for example exhibit 28 – toolbox meeting of 22 April 2009;

10. An issue arose during submissions in the issuing of goggles to Mr Evans on

    
    

    24 September 2009 (exhibit 27) shortly after he had got something in his right eye at work. He attended Dr Talati on 27 & 30 August 2009 for that injury and a worker’s compensation medical certificate was issued (in exhibit 10)[73]. I was invited to infer that Dellgale simply reacted to this circumstance, firstly to protect its own interests, and secondly that it suggests that Dellgale in fact did not provide adequate clothing and equipment to its employees in the normal course of affairs in a timely manner. The activities embracing Mr Evans duties were no doubt hazardous with grinding metal causing particles and sparks to fly through the air. I note that Mr Evans saw general practitioner Dr R Parry on 2 August 2004 for a foreign body in his right eye while grinding at his former work and it was noted that he was wearing eye protection on that occasion (exhibit 10). In fact on 23 June 2009 Mr Evans consulted Dr Talati regarding a possible foreign body in his right eye. None was found on that occasion. It appears to me that this supports the hazardous nature of Mr Evans’ work performing drilling, grinding and welding. However, I do not accept the submission that the issue of fresh goggles to Mr Evans shortly after he presented to Dr Talati on 27 & 30 August 2009 in itself means that Dellgale was remiss in providing necessary equipment to employees in a timely way.  

    [73] Paragraph 31 affidavit of Mr Evans (exhibit 6);

11. The next issue is that Mr Evans said he had to purchase drill bits because Dellgale would not supply any to him. On the other hand, evidence from Mr Darrin Rouhan who I found to be convincing, is that there was a store at work which was available to workers. If items needed replacing then an order would be placed and the items would be delivered to the workshop the next day. Having said that, Mr Darrin Rouhan and Mr Damian Rouhan said that Mr Evans broke an excessive number of drill bits. I find it improbable that the situation portrayed by Mr Evans was as bleak as he makes out even if, on occasion, a particular item was not readily available. He said he paid about $1200 for drill bits and grinding discs himself[74]. According to Mr Darrin Rouhan, reimbursement was available in the unlikely event that it was necessary but in any case there is no record of such a claim being made by Mr Evans. Mr Evans simply says he was not reimbursed for that and was not paid a tool allowance. Given his modest pay rates as set out in the applicable award[75], I note that no documentary evidence has been provided by Mr Evans to support his claims of spending that amount of money on drill bits etc for work in circumstances where he appears to be a stickler for keeping records in other respects. I think it is more probable there was in fact a store that was able to be accessed by employees with approval to replenish items and that if items needed to be ordered in, they would be ordered in. In all probability there were times when particular items were not available but systems do not have to be perfect. I reject Mr Evans’ claim on this ground. 

    [74] Paragraph 32 affidavit of Mr Evans (exhibit 6);

    [75] Exhibit “ME 8” affidavit of Mr Evans (exhibit 6);

12. Mr Evans raised a number of other issues at trial. He said he felt pressured into working overtime with the effect of working 60 hours per week. I note that he managed to resist working a lot of overtime. His standard hours were 40 hours per week and in fact he said he “generally worked a 40 hour week”[76]. There is no mention of 60 hour weeks in the minutes of the tool box meetings in evidence[77]. Mr Darrin Rouhan and Mr Shane Rouhan gave evidence about the varying needs for staffing depending on workloads in particular when cranes were imported. Their busiest time was in the first six or so months after Mr Evans started work with Dellgale. I accept Mr Darrin Rouhan’s evidence that some overtime was expected of Mr Evans to the tune of one or two hours per week when required but that at times Mr Evans did not even turn up for work. I do not accept that he was required to work 60 hours per week either consistently or at all. I do not think it unreasonable to expect a worker to do some overtime as circumstances require to the extent outlined by Mr Darrin Rouhan.    

    [76] Paragraph 11 affidavit of Mr Evans (exhibit 6);

    [77] Exhibits 28 & 29 and exhibit “ME 5” to the affidavit of Mr Evans (exhibit);

13. Other issues for Mr Evans included the fact that Mr Damien Rouhan kept turning his radio down during work hours. The radio was in the workshop. Mr Damien Rouhan’s office was in the workshop when this occurred. He subsequently relocated his office away from the workshop. It is not disputed there was an issue about the volume of the radio. When Mr Damien Rouhan turned the volume down, Mr Evans would turn it right back up. In my view, Mr Damien Rouhan was entitled to maintain order in the workshop. It was reasonable for him to have turned the volume down to enable him to perform his work. I gained the impression that Mr Evans wanted Mr Damien Rouhan’s office moved out of the workshop and his view was that it should not have been there in the first place. Even if that were so, the point is it was in the workshop for a period and it is reasonable in my view to expect that the radio volume be kept at a reasonable level. In my view this is a rather petty matter. 

14. Another issue for Mr Evans was that he was criticised for parking his car at the front of the workshop premises. There was no dispute that he did so and that the staff car parks were at the side of their building. In my view asking Mr Evans to park in the spaces allocated for staff is reasonable. This event was of short duration.  

15. Another issue was when Mr Damien Rouhan wanted his whiteboard markers and was “told off”. In response, Mr Evans said he gave Mr Damien Rouhan one. Mr Damien Rouhan agreed that he wanted a white board marker and that Mr Evans had them all when he should not have. Mr Damien Rouhan denied telling Mr Evans off although he conceded that he might have been annoyed by it. I can accept that Mr Damien Rouhan might have been less than polite to Mr Evans in those circumstances. However, humans are not perfect. Mr Damien’s Rouhan’s conduct is not required to be perfect. If anything this is a minor blemish and the incident was of short duration. Again, in my view this is rather petty.

1. All in all, I have come to the view that the actions on behalf of Dellgale were reasonable and taken in a reasonable way.

2. Having regard to the medical evidence, it is clear that Mr Evans’ interactions at work were one of two broad causes for his decompensation. Relevant passages have been cited above. In my view, there is a sufficient causal nexus between management actions which I have found to be reasonable and taken in a reasonable way and Mr Evans’ psychological condition to find that Mr Evans’ psychological condition is excluded from the definition of injury pursuant to section 32(5)(a) of the Act.

3. This case is distinguishable from the scenario posited in Q-COMP v Hohn (2008) 187 QGIG 139 by Hall P in adopting the view of author Watson at 145

   If there are eight stressors which give rise to the injury and they all arise out of or in the course of employment only seven are significant contributors whereas the eighth is exceedingly minor but arises from reasonable management action taken in a reasonable way, where is the justification for denying a claimant compensation in those circumstances.

4. For Mr Evans reliance was placed on views expressed by Hall P in Rowe (2009) 191 QGIG 1 at 5:

   The passage from the Industrial Laws of Queensland [Watson], is by way of commentary upon the decision of this Court in Q-COMP v Hohn (2008) 187 QGIG 139. It is made by way of comment upon rejection of the view that so long as a psychological/psychiatric injury is ‘touched’ by reasonable management action reasonably taken, it will be withdrawn from the statutory definition of ‘injury’ by operation of s. 32 (5)(a) of the Act. The passage is plainly correct. It is the effect of the decision in Q-COMP v Hohn, ibid, that a claimant may succeed though some of the operative events or stressors arise out of or occur in the course of reasonable management action taken in a reasonable way. (my emphasis)

5. Importantly, the passage continues:

   However, ‘may’ cannot be read as ‘must’: nor may the passage be read as asserting that an Appeal Body is at liberty to allow a claimant to succeed where at least one stressor does not ‘… arise or occur in the course of reasonable management action taken in a reasonable way’. In all such cases, the Appeal Tribunal will be required to embark upon the inquiry whether the psychological/psychiatric injury arose out of or in the course of reasonable management action taken in a reasonable way. ….      

6. In the present case, the medical evidence is clear that there was sufficient causal nexus between Mr Evans’ workplace interactions at work involving management action and his psychological injury so as to invoke section 32(5) even though there was another significant contributor to that injury, namely, the secondary effects of his physical injuries. It cannot be said that Mr Evans’ psychological injury was merely “touched” by reasonable management action or that such action was “exceedingly minor”.

   In Summary

7. In conclusion on balance I find:

   ·     Mr Evans suffered a personal injury, namely a major depressive disorder;

   ·     That injury arose out of or in the course of Mr Evans’ employment and that his employment was a significant factor;   

   ·     The actions for or on behalf of Dellgale were management action;

   ·     That management action was reasonable;

   ·     That the management action was taken in a reasonable way.

   ·     That there is a sufficient causal nexus between the above reasonable management action taken in a reasonable way and Mr Evans’ psychological injury.

   · Therefore, for the purposes of section 32(5), as the psychological injury arose out of or in the course of reasonable management action taken in a reasonable way Mr Evans has not sustained an injury as defined in the Act despite there being another cause for the injury viz. his physical injuries.

   Conclusion

8. In view of my findings, pursuant to the section 558 (1) (a) of the Act I confirm the decision of Q-COMP dated 26 March 2010. This means the appeal is unsuccessful so that Mr Evans is not entitled to compensation.

9. I grant liberty to apply to either party on 3 business day’s notice for any consequential orders including costs if the parties cannot agree.   

   
   

In Division 1 (Appeals to Industrial Magistrate or Industrial Commission) Part 3 (Appeals) in
Chapter 13 (Reviews and Appeals);

Paragraphs 4.3 & 4.4 submissions for Mr Evans; paragraphs 16 to 22 & 86(a) submissions for
Q-COMP;

Paragraph 21 affidavit of Mr Evans (exhibit 6); the subject was raised at a toolbox meeting on
20 May 2009 (exhibit “ME 5” to affidavit of Mr Evans);