Gunawardana v GMA Environmental Services

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKERS COMPENSATION DIVISION OF COURT

Case No. G10200336

JANAKA GUNAWARDANA	Plaintiff
v
GMA ENVIRONMENTAL SERVICES PTY LTD (ACN. 085 775 506)	Defendant

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MAGISTRATE:	M A HOARE
WHERE HELD:	Melbourne
DATE OF HEARING:	29-30 October 2020, 3-5 November 2020
DATE OF DECISION:	10 December 2020
CASE MAY BE CITED AS:	Gunawardana v GMA Environmental Services
MEDIUM NEUTRAL CITATION:	[2020] VMC 031

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CATCHWORDS – Workers Compensation – Aggravation of Pre-Existing Lumbar Spine Condition – Mental Injury – Jet-truck operator working with high-pressure hoses on sewer lines – Bullying - Whether a ‘worker’ – Whether a deemed worker – Whether employment was a significant contributing factor – Whether mental injury arose out or in the course of employment – Whether management action on reasonable grounds taken in a reasonable matter - Credit of the plaintiff – ‘worker’ – Contractor –- Workplace Injury and Rehabilitation and Compensation Act 2013 (Vic) – ss. 3, 39, 40, cl.9 of Sched.1 - Accident Compensation Act 1985 (Vic).

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APPEARANCES:	COUNSEL	SOLICITORS
For the Plaintiff	Mr C. Thompson	Koya & Co.
For the Defendant	Mr N Dunstan	IDP Lawyers

HER HONOUR:

INTRODUCTION AND OVERVIEW

Between about 2007 and 2012, Mr Janaka Gunawardana, the plaintiff in this proceeding, worked as a jet-truck operator with the defendant, GMA Water Services Pty Ltd (‘GMA’). GMA, a waste management business, undertook maintenance and service works of sewer lines as a contractor for South East Water (SEW). Mr Gunawardana brings proceedings in respect of the rejection of multiple workers compensation claims lodged against GMA.

Mr Gunawardana’s matter has a protracted and complicated history, the Complaint having been issued in January 2016. An Amended Statement of Claim dated 20 April 2017 refers to five separate rejected workers’ compensation claims all lodged by Mr Gunawardana after having ceased work with the defendant. The claims were lodged between May 2012 and February 2017. Mr Gunawardana has retained different firms of lawyers over that time.

It was common ground that when Mr Gunawardana began in around 2007 to work for GMA as a jet-truck operator, he was a full-time casual employee who also performed after-hours work as required. It was also common ground that, after around March 2008, Mr Gunawardana continued to perform work for GMA, but did so under altered contractual arrangements. The plaintiff’s case was that Mr Gunawardana, notwithstanding the altered arrangements, remained an employee of GMA and therefore was ‘a worker’ (or alternatively met the statutory criteria to be deemed a worker) for the purposes of workers compensation. The defence case was that, under the altered arrangements, Mr Gunawardana had become an independent contractor and had, accordingly, no entitlement to workers compensation.
The proceeding is brought primarily under the Workplace Injury Compensation and Rehabilitation Act 2013 which came into operation on 1 July 2014 and governs claims lodged after that date even if they relate to injuries sustained beforehand. Whilst Mr Gunawardana’s first claim (lodged in 2012) is governed by the Accident Compensation Act 1985, the parties were in agreement that, given the largely identical nature of the relevant provisions, little, if anything, turned on that. My references therefore will be (unless stated otherwise) to the Workplace Injury Compensation and Rehabilitation Act 2013 (‘the Act’).
At the outset of the hearing, whilst the pleaded injuries were more extensive, Mr Gunawardana’s case proceeded only in respect of injury to his back and a mental injury.
For the reasons which follow, I find the plaintiff is entitled to partial relief on this basis:
·That the plaintiff has failed to discharge the evidentiary and legal burden of proof that, after March 2008, onwards he was a ‘worker’ within the meaning of the Act.
·That the plaintiff also did not satisfy the statutory criteria to be deemed a worker for the majority of his time under the altered arrangement with GMA. However, I further find that, as a contractor, Mr Gunwardadana did satisfy the statutory criteria in the 2012 tax year to be deemed a worker, including as at the date he ceased work with GMA.
·That the plaintiff has discharged the evidentiary and legal burden of proof in relation to his claimed mental injury which resulted in, or materially contributed to him, being unfit for his pre-injury employment for a limited period only between 15 May and 30 September of 2012 but not beyond.
·That the plaintiff otherwise failed to discharge the evidentiary and legal burden of proof in relation to his claimed back injury.

Conducted over five days via WebEx, oral evidence was given in the proceeding by Mr Gunawardana. The defendant called two lay witnesses, Mr Mahendran Ananthakumar, GMA’s managing director, and Mr Rama Digumarti, an operations manager with GMA. All medical evidence was tendered into evidence by consent as well as a quite voluminous amount of other documentary material.

THE EVIDENCE

Given the nature of the factual issues in dispute, it is convenient to consider the evidence in this matter in chronological sequence.

Background

Mr Gunawardana, who is now 45 years of age, is a divorced father of one daughter. He came to Australia aged 9 from Sri Lanka. He was educated in Melbourne and left school without completing Year 11. After leaving school, he completed a motor mechanics apprenticeship which involved attending TAFE. Mr Gunawardana then did a series of jobs as a mechanic as well as some factory work.

10. In the early 1990s, and onwards, Mr Gunawardana was in trouble with the law for various criminal matters. Mr Gunawardana was cross-examined extensively in relation to his criminal history as it was the defendant’s case that Mr Gunawardana had long-standing, pre-existing issues with anger management and poor mental health.

Prior Injury History

11. When he started with GMA, Mr Gunawardana said his physical fitness was perfect and he exercised daily at the gym.

12. Mr Gunawardana was cross-examined extensively in relation a history of back problems. Whilst denying any specific recollection, he did not dispute having a 12-month period of intermittent back pain in the early 1990s for which he saw an orthopaedic surgeon. He thought there an episode of back pain in the early 2000s. He did not dispute having a CT scan of his lumbo-sacral spine in 2004 which demonstrated disc prolapses at L3/4 and L4/5. He said his back was ‘not too bad’ at that time.

Employment with GMA

13. In around 2005 or 2006, Mr Gunawardana was employed briefly by GMA as a casual labourer associated with the relocation of GMA premises. In September 2005, he obtained an ABN and said the boss (meaning Mr Ananthakumar) had told him to do that, so he could become a contractor of GMA. However, nothing came of it at the time. In cross-examination, Mr Ananthakumar denied making such as suggestion to Mr Gunawardana as there was no reason to for him to do so then.

14. Mr Gunawardana thought he started work as a jet-truck operator with GMA in around 2006 or 2007. In any event, he completed a formal employment application form dated 28 May 2007. He did a pre-employment medical examination in June 2007 which found no pre-existing medical issues. After a period of observation and induction, he started the job having been issued with required cards such as ‘confined space entry’ and certification with SEW.

15. The role of a jet-truck operator involves driving and operating a truck with a specially fitted high-pressure hose used to service and clear sewer lines. The work was, by its nature, heavy and unpleasant. After raising the cement pit-lid, a hose of 180 metres in length was fed through the sewer pipes. This was known as ‘retic cleaning’. For the regular servicing work, jet-truck operators, whilst essentially working alone, operated in tandem with the CCTV camera operators (employees of GMA) who controlled the CCTV cameras fed on cables down the sewer-lines. The camera operators were in separate vehicles. For the after-hours work, jet-truck operators attended the jobs alone, although a worker employed by SEW or, at times, SEW’s head contractor, Thiess Pty Ltd, would also be in attendance.

16. GMA allocated a jet-truck to Mr Gunawardana which he used for both the regular day work and the after-hours work. By agreement, the truck was kept at his house so he could attend call-outs and also go directly to the first job in the morning. Mr Gunawardana said, as a single parent, he sometimes had to make up a bed in the back of the truck-cabin for his daughter when attending jobs overnight.

17. For the regular servicing work, Mr Gunawardana worked around 40 hours a week Monday to Friday generally between the hours of 7:00 am to around 4:00 pm. Additionally, Mr Gunawardana was ‘on call’ outside these hours and on weekends. The emergency call-outs involved responding, as directed by GMA, to SEW alerts regarding line blockages such as caused by storm-water debris. Mr Gunawardana said he did the bulk of GMA’s ‘on call’ work due to reluctance of other workers to do it.

18. Mr Gunawardana was paid wages on an hourly rate for his regular day work based on time-sheets. For the after-hours call-outs, he was paid a flat fee per job which at that time was $85 per job.

Altered Arrangements with GMA

19. Throughout most of his time with GMA, Mr Gunawardana reported to Mr Digumarti, an employee of GMA since 2002 and an operations manager since 2007. Mr Digumarti said Mr Gunawardana was a reliable worker. Mr Digumarti agreed that Mr Gunawardana did ‘the lion’s share’ of the after-hours call-outs as others were reluctant and he had volunteered to do more.

20. In or around March 2008, following a break in working for GMA, Mr Gunawardana approached Mr Digumarti about coming back to GMA and how he could make more money. Mr Digumarti said he could become independent contractor, but that would need Mr Ananthakumar’s approval. A meeting then took place with Mr Ananthakumar to discuss the terms of a return to GMA. Mr Gunawardana said Mr Ananthakumar told him it would be better for him financially if he returned, not as an employee, but as an independent contractor. This was because of higher pay rates and the allowable deductions against his taxable income.

21. Instead of being paid wages on time-sheets, Mr Gunawardana would provide GMA with tax invoices for hours of work performed for the regular day work and for the after-hours call-outs on a per job basis. Mr Gunawardana would provide GMA with a USB stick fortnightly containing partially completed tax invoices and job sheets. He would enter dates, hours and the agreed hourly rate in designated columns. The GMA accountants would calculate the GST and generate totals payable to him. Monies (inclusive of GST) were then paid into Mr Gunawardana’s bank account.

22. Mr Gunawardana’s tax invoices to GMA were issued on stationery using the name, logo and ABN of the business name, ‘Kleen Kleen 1’. Mr Gunawardana had adopted the logo and the name from his parents’ and brother’s commercial cleaning business, Kleen Kleen.

23. Under the altered terms, Mr Gunawardana was paid a higher hourly rate ($24/hour) and a higher flat fee for call-outs ($100 per job). Call-outs could last for anywhere from between 15 minutes to as long as six hours. At one point in the evidence, Mr Gunawardana said, after a certain amount of time, an hourly rate would also be paid. However, Mr Ananthakumar had said it was a flat fee only, which figure was arrived at by GMA to take into account the range of short and long jobs and would allow the contractors a margin.

24. Mr Gunawardana was required to continue wearing the supplied clothing with GMA logo. From 2010, Mr Gunawardana said SEW required GMA jet-truck operators to also wear SEW-logo vests. GMA would continue to organise and pay for hepatitis vaccinations for jet-truck operators due to the nature of the work. GMA also would also arrange and fund annual safety certification and accreditation. Mr Digumarti confirmed that GMA organised induction sign-offs, certifications, cards and so on.

25. GMA would continue to provide a jet-truck and to cover all running costs including petrol, repairs and maintenance of the truck.

26. Under the altered terms, Mr Gunawardana was told by Mr Ananthakumar he would need his own WorkCover insurance. Mr Gunawardana said, at one stage, in cross-examination he hadn’t known QBE existed. Later, he said he contacted QBE regarding WorkCover, but was told he didn’t need WorkCover insurance because he was a worker given he wore a uniform and worked only for GMA. In cross-examination, Mr Gunawardana was shown a notice dated 7 April 2010 of a QBE WorkSafe injury insurance policy for Janaka Gunawardana trading as Kleen Kleen 1. He was also shown certificates of currency for periods covering 28 February 2010 to 30 June 2010. Mr Gunawardana denied ever having taken out a policy for WorkCover insurance. In re-examination, he said a GMA accountant named Matt arranged the policy for him.

27. Mr Gunawardana did not dispute that, in July 2008, soon after starting under the altered arrangement with GMA, he took out life insurance, trauma and total and permanent disability insurance through ANZ. He denied taking out these policies because he knew that he was no longer an employee of GMA and would no longer be able to access GMA’s workers compensation in the event of injury.

28. Mr Ananthakumar, who had been managing director of GMA since 2009 and a general manager with GMA for ten years prior to that, agreed that Mr Gunawardana was initially an employee. Mr Ananthakumar said the altered arrangements had come about after Mr Gunawardana approached Mr Digumarti about returning to GMA and wanting to know how he could earn more money. He disagreed that Mr Gunawardana had been told he could only return as an independent contractor. He said GMA had 48 employees and eight individuals who were independent contractors. The independent contractors were paid about 30 per cent more than the employees to cover costs and profit margins.

29. Mr Ananthakumar said the new arrangement with Mr Gunawardana was not in writing as that was not the practice then. Mr Ananthakumar said all the independent contractors were supplied with uniforms, tools and vehicles and that GMA covered all costs associated with the vehicles such as petrol, servicing and repairs. Mr Ananthakumar agreed that GMA also took responsibility for all annual training and certification including for the independent contractors. This was to make sure it got done.

30. Mr Ananthakumar said that GMA’s chief financial officer was Mr Matthew Kidd. As to Mr Kidd’s availability to give evidence in this case, Mr Ananthakumar had made enquiries however Mr Kidd was unavailable for medical reasons.

31. Mr Gunawardana disagreed he was free to accept work other than with GMA and could come and go as wished. He disagreed that he could reject GMA work, other than when jobs clashed with parenting commitments such as picking up his daughter. He said he could not work elsewhere because he had possession of GMA’s jet-truck. He agreed GMA had written to him on 6 November 2009 advising of a down-turn in work which meant he could expect no more work from them at that time. He said later in evidence he took numerous short and long breaks from GMA after disagreements with GMA managers. Between January and June of 2011, Mr Gunawardana agreed he stopped doing GMA work and performed work for another entity via Hayes Recruitment earning about $11,000. He said this was after a dispute with GMA, however Mr Digumarti had asked him to come back to GMA which he had done.

32. As for how the work was distributed to jet-truck operators, Mr Ananthakumar and Mr Digumarti both said the operations managers gave out weekly packages of work that could be carried out at any time through that week. In cross-examination, Mr Ananthakumar was shown tax invoices evidencing Mr Gunawardana’s hours of work which, even after March 2008, were generally from 7:00 am to around 4:00 pm. Mr Ananthakumar disagreed that GMA prescribed the hours of work. Mr Ananthakumar said jet-truck operators ‘ran the show’ in carrying out the packages of work. They were followed from job to job by the CCTV camera operator. In relation to keeping the truck overnight, Mr Ananthakumar said all GMA jet-truck operators (whether on wages or issuing invoices) did that so jobs could be attended first thing. Mr Digumarti also said the jet-truck operators knew what they were doing and it was left it with them to decide the order of the work.

33. When asked whether the jet-truck operators who were not on wages were permitted to employ other individuals to perform the work for GMA, Mr Ananthakumar said that they were free to do that provided the individuals were trained up and accredited. Mr Ananthakumar thought this happened at times of increased workload or when a contractor could not work. Mr Ananthakumar said other GMA contractors did the work themselves. Mr Digumarti said, apart from Mr Gunawardana, none of GMA’s contractors used other individuals to do the work. Both Mr Ananthakumar and Mr Digumarti said Mr Gunawardana had other individuals working for him.

Invoicing by Kleen Kleen 1 for Individuals Performing Work other than Mr Gunawardana

34. Between 2008 and 2011, Mr Gunawardana’s business Kleen Kleen 1 issued GMA with tax invoices for work performed by individuals other than himself, namely: Mr Ramesh Stembo and Mr Indika Gunawardana (a brother of the plaintiff). Mr Gunawardana denied ever having employed any other workers. He also denied that payments made to those individuals by him represented Kleen Kleen 1 remunerating them for work performed. He said sub-contracting or hiring other workers was not allowed by GMA nor permitted by SEW. Mr Gunawardana said at all times he was just a normal worker with an ABN.

35. Regarding Mr Stembo, Mr Gunawardana had introduced him to GMA. Mr Digumarti had asked whether he knew of people who would be willing to do work for GMA. Mr Gunawardana offered to train up Mr Stembo which he did. After a period of observation and training, Mr Stembo completed the SEW induction and obtained necessary certificates which were organised by GMA. Mr Digumarti agreed he would ask whether anyone at GMA, including Mr Gunawardana, knew of individuals interested in doing the work and that staff turn-over was high due to the unpleasant nature of the work.

36. In cross-examination, Mr Gunawardana agreed he received payment from GMA of Kleen Kleen 1 tax invoices for work done by Mr Stembo. He said at one stage he and Mr Stembo had lived together as house-mates. It was a matter of convenience for GMA to make payments to him and for him to then pass on the appropriate amount to Mr Stembo. At first, Mr Gunawardana said this occurred only once. He was then shown Kleen Kleen 1 tax invoices and job-sheets indicating this was a regular occurrence from June 2008. For example, Kleen Kleen 1 invoiced GMA for ‘2-man Janaka & Ramesh’ and on one day for ‘Ramesh’. At another point, Mr Gunawardana said the explanation for such tax invoices was that he was training up Mr Stembo at the request of Mr Ananthakumar. Alternatively, Mr Gunawardana suggested that Mr Stembo himself could have rendered the invoices in the name of Kleen Kleen 1. He denied that Indika had ever worked for him nor had he ever trained him in retic cleaning. He could not explain how it was that Kleen Kleen 1 had invoiced GMA for labour done by his brother, Indika, other than they must have been fabricated by GMA.

37. Mr Ananthakumar said Mr Stembo and Indika were paid by Kleen Kleen 1, not by GMA. He said Kleen Kleen 1 was responsible for training the individuals that it took on. When asked why Mr Stembo had completed time-sheets on GMA letter-head, Mr Ananthakumar said Mr Gunawardana had no proper system and all contractors were issued with GMA stationery. Mr Ananthakumar denied that Mr Stembo was ever an employee of GMA (although he was presently a contractor with GMA). Mr Digumarti also said Mr Gunawardana had had Mr Stembo and Indika working for him and that Mr Gunawardana had responsibility for their training.

Rock Incident in 2008

38. On or around 11 November 2008, Mr Gunawardana had an episode of low back pain after shifting a large rock that was on top of a pit-lid during an after-hours call out (‘the rock incident’). Mr Gunawardana said the rock was the size of half a car. On 13 November 2008, Mr Gunawardana attended a GP at Narre Gate Medical Centre. He agreed he told the doctor he had hurt his back moving a heavy rock and that he did contract work. He agreed he also told the doctor that there was an old back injury about six years ago. Mr Gunawardana thought he had a week off work. He attended the GP again the next day. He could not recall, but did not dispute, that a CT scan was arranged which showed mild disc bulging without nerve root compression. No WorkCover claim was lodged.

39. Mr Gunawardana said he had no ongoing back trouble and agreed there were no recorded complaints of back trouble to any GP after 14 November 2008. He said, however, that after this he had ongoing cramping and pain in his left calf. He managed this by having regular massages of his calf which he did continuously until he could no longer afford it when he stopped working in 2012.

Pit-lid Incident in 2010

40. In the early hours of 20 January 2010, Mr Gunawardana, whilst on an emergency call-out job, was shifting a pit-lid when a build-up of gases caused the pit-lid to fly up and strike him in the chest (the ‘pit-lid incident’). Mr Gunawardana said the force pushed him up into the air and he then landed across the open pit. He was transferred by ambulance to Dandenong Hospital. The Casualty discharge summary dated 21 January 2010, which was put to Mr Gunawardana in cross-examination, recorded: ‘chest injury post struck by exploded (from septic tank high pressure) tank lid; struck chest only; abrasion to chest wall’. Mr Gunawardana agreed there was no recorded complaint of back injury or pain.

41. Mr Gunawardana said after that he stayed in bed for a full week to recover and was then off work completely for three months. There was an investigation and GMA bosses came to his home and made accusations of him falling into the pit.

42. On 21 January 2010, Mr Gunawardana attended Narre Gate Medical Centre and reported an injury to his left loin area due in an incident at work two days prior. He agreed he made no complaint of back pain and that the only recorded finding by the GP (whose name is not indicated by the notes) was of swelling and tenderness of the left side of his chest. He did not recall having discussed WorkCover with the GP or of saying he would think about WorkCover. On 24 January 2010, he again attended that clinic and complained of chest pain. On that occasion, his low back was examined, and no abnormality was detected.

43. Other than for an unrelated medical attendance in February 2010, Mr Gunawardana agreed he did not attend Narre Gate Medical Centre again for treatment. He also agreed there were no recorded attendances at any GP clinics for back pain or indeed any medical complaints at all from February 2010 until after he had ceased work with GMA in May 2012. He said that was because he was the sort of person who only saw a doctor if he had real pain.

44. In cross-examination, Mr Gunawardana initially maintained that he was off work for three months after the pit-lid incident. He could not explain why he would be giving GMA tax invoices for work performed in this three-month period. He denied paying wages to anybody else to work. Mr Gunawardana was shown a series of Kleen Kleen 1 invoices for fortnights during this three-month period when he had claimed to be unfit for work. These included a Kleen Kleen 1 tax invoice dated 1 February 2010 for ‘retic cleaning’ and marked ‘2 Indika’ for eight-hour days from 18 to 22 January 2010 and from 25 to 29 January 2020. A note next to 25 January 2010 read: ‘went to a retic with Ramesh 3.30 to 4.30’. Another tax invoice dated 1 February 2010 was for four days of retic cleaning labour 25 January 2010 to 29 January 2020. These were generally dated but not numbered. When asked to explain these tax invoices, he said he had never seen them before and they were fraudulent. The fact that some invoices were not numbered showed they were faked by GMA using documents on his USB stick. He could not say why GMA would do that.

45. After the pit-lid incident, Mr Gunawardana tried to access his ANZ income protection cover, but could not because of a 90-day preclusion period. He denied having taken out the 2010 WorkSafe injury insurance policy with QBE only when he realised he could not claim on the ANZ insurance for the first 90 days after an injury.

Mr Gunawardana’s Income Tax Returns and his GMA earnings for 2008 to 2012

46. Mr Gunawardana was cross-examined extensively on his individual income tax returns for the years 2008 through to 2012. He stated repeatedly that his tax agent was responsible for his tax returns that were prepared based on documents on his USB sticks. Mr Gunawardana never read the final returns and didn’t recall ever signing annual declarations as to their accuracy. When pressed on this, he said at times he was ‘in another world’ in terms of his mental state due to initially to inhaling chemicals (from the fumes of the sewer lines) and later (after he ceased work) to heavy prescription medications.

47. As for 2008 tax year, Mr Gunawardana did not dispute that, for the period 1 July 2007 to 18 March 2008, he received from GMA earnings in the sum of $21,880 (with tax deducted of $4,799). However, he could not explain why the 2008 tax return declared a total taxable income of $5,310 (inclusive of Centrelink benefits of $4,178). He could not explain why his declared earnings from his main salary and wage occupation of ‘supervisor’ comprised a gross sum for the year of $646.

48. As for the 2009 tax year, under BPI (business & professional items) income, Mr Gunawardana’s tax return declared earnings from plumbing services in the amount of $51,801. However, the sum of his total taxable income after BPI deductions was $21,917. His declared BPI deductions amounted to $29,885 (comprising claimed motor vehicle expenses of $17,664 and contractor expenses of $5,500). Mr Gunawardana could not explain why he had claimed motor vehicle expenses in the order of $17,000 when GMA retained ownership of the jet-truck and covered all running costs. He denied the deductions actually represented wages paid via Kleen Kleen 1 to Mr Stembo.

49. As for the 2010 tax year, Mr Gunawardana similarly could not explain his tax return. In that year, his claimed deductions for BPI expenses amounted to $36,192 against his declared BPI income for waste and treatment disposal services of $57,337 resulting in an overall taxable income of $21,145. He said he was ‘surprised’ the ATO had never asked for an explanation of his deductions. He conceded it was ‘shocking’ to see what was in his tax returns when expenses relating to the truck and his clothing were covered by GMA.

50. As for the 2011 tax year, in his original 2011 tax return, Mr Gunawardana had declared total gross income in the sum of $11,530 from his occupation as a driver (with tax withheld of $2,064). Mr Gunawardana did not dispute GMA’s records that, in the 2011 tax year, GMA had paid Kleen Kleen 1 the total sum of $54,370 comprising payments for work done by him of $31,200 and by Mr Stembo of $19,587. Subsequently, he agreed he lodged an amended income tax return for 2011. The ATO notice of amended assessment reported amended taxable income in the sum of $72,232. Mr Gunawardana could not explain why his original 2011 tax return had under-stated his earnings from GMA.

51. As for 2012 tax year, Mr Gunawardana’s income tax return (not lodged till February 2020) declared income of $40,291 plus Centrelink benefits. His claimed BPI deductions for the 2012 tax year were zero.

52. In cross-examination, Mr Gunawardana denied having claimed significant BPI deductions when it was to his financial advantage to do so (as in 2009 and 2010), but then nil BPI deductions when it suited another purpose at a later stage. He denied that his purpose in lodging the amended 2011 tax return and the late 2012 return was to maximise earnings for the purpose of the workers compensation litigation. Mr Gunawardana conceded he had difficulty retaining lawyers for his workers compensation matter because of his previous tax returns. Mr Gunawardana said he didn’t know much about the tax system and ‘when you have gone crazy, you don’t have time to think about tax’. He said was getting into trouble with multiple road rage incidents at the time of the returns being lodged.

Other Events in the Workplace

53. Mr Gunawardana said that from around 2009 or 2010 onwards, the bosses became a problem for him. Two managers, Mr Marcus Middleton and Mr Anthony Medina, especially Mr Middleton, picked on him and swore at him. He was abused every day usually at the depot in the early morning when there was no one else around. Mr Middleton swore at everyone but more so at him and abused ‘the crap out of him’. There were frequent arguments about his driving or if he turned down a job to pick up his daughter. At one stage, there was a huge argument with Mr Middleton after Mr Gunawardana had complained about a tool (a ‘shifter’) being taken from his truck. In one argument with Mr Middleton, Mr Gunwardana threw his work-issued mobile phone across the room and it had broken.

54. In terms of whether he had ever made complaints to GMA about being sworn at by the operations managers, Mr Gunawardana said he raised it with Mr Digumarti who had referred the issue to Mr Ananthakumar.

55. Mr Ananthakumar said he was aware of Mr Gunawardana having communication issues with Mr Middleton and maybe with Mr Medina. Because of this, he had directed that Mr Gunawardana only dealt with Mr Digumarti including work allocation. This was to avoid Mr Gunawardana having to deal with Mr Middleton. He said the company took bullying seriously and there was a process in place for such complaints. He was not aware of Mr Gunawardana complaining of bullying nor of initiating any process. Mr Ananthakumar said GMA had written polices about bullying now, but could not say whether they were in writing in 2012. Mr Digumarti conceded that, whilst Mr Gunawardana had never complained of bullying, there were communications issues with Mr Middleton. Mr Gunawardana had not liked the way Mr Middleton spoke to him. Mr Digumarti said he took that ‘with a grain of salt’. He said GMA was commonly under tight dead-lines to respond to SEW emergencies in a timely way and problems arose when Mr Gunawardana was on call but didn’t answer his phone for the call-outs. This was one of the causes of arguments between Mr Gunawardana and Mr Middleton and others. Mr Ananthakumar also said there were issues with Mr Gunawardana not answering his phone for after-hours call-outs and also arriving later at the call-out than within the hour which was a requirement of GMA’s contract with SEW.

56. In February 2012, Mr Digumarti relocated to Queensland to take up another role within the GMA business. He then handed over the reins of his Melbourne responsibilities to someone else and no longer had oversight of Mr Gunawardana as it was not practical for him to do so.

57. Between February and May 2012, Mr Gunawardana was involved in a number of traffic incidents whilst driving GMA jet-trucks. He said none of the incidents were his fault. He felt targeted and things were being made up about him. He was sworn at frequently especially by Mr Middleton. He agreed he was spoken to by GMA managers (generally Mr Middleton or Mr Medina) following each of the traffic incidents. After some of these incidents, the truck required repair and Mr Gunawardana would be given a replacement truck. After one incident, he offered to do the repair but GMA declined the offer and gave him a replacement truck. At one stage, there was a brawl on the phone with Mr Middleton over damage to the truck.

58. On 17 February 2012, there was a collision when another motorist reversed out of a driveway.

59. On 21 February 2012, an incident occurred when a motorist merged in front of his truck on the Monash Freeway. Mr Ananthakumar said that GMA had received phone calls from two concerned motorists complaining about Mr Gunawardana’s erratic driving. Mr Gunawardana denied this was a road rage incident. He agreed Mr Middleton spoke to him about the complaints and warned him about the dangers of speeding. Mr Gunawardana conceded this was reasonable in the circumstances.

60. On 10 April 2012, there was an argument between Mr Gunawardana and Mr Medina when Mr Medina said he had observed him driving his truck in the far-right hand lane and changing lanes without indicating. Mr Gunawardana said Mr Medina had, in front of other staff, had gone off his head, sworn and yelled at him. Mr Gunawardana said he had wanted to bash him. Mr Medina had later apologised. Mr Gunawardana was embarrassed and upset by Mr Medina swearing at him as he did not swear himself. When asked, in cross-examination, why he hadn’t seen his GP and kept working if the incident was upsetting to him, Mr Gunawardana said because it was not a big deal.

61. On 10 May 2012, Mr Gunawardana damaged the jet-truck when he struck a pole. He said this occurred because of inhaling chemicals whilst opening a pit-lid. He attended the depot where the incident was written up on a white-board. He was given a replacement truck. In cross-examination, Mr Gunawardana said after this incident there was no abuse and no arguments.

62. On 11 May 2012, Mr Gunawardana was involved in a traffic collision in the replacement truck. He attended the office and completed an incident report. He could recall no argument and there was nothing wrong with the way the incident was handled by GMA.

63. On 14 May 2012, Mr Gunawardana was driving a replacement truck when he inadvertently drove onto a roundabout causing the truck to become wedged onto the traffic island. Mr Gunawardana said he had tried repeatedly to call Mr Ananthakumar, but he couldn’t get through. He called Mr Digumarti who told him to call Mr Middleton which he did. There was a dispute and Mr Gunawardana hung up on Mr Middleton. Mr Gunawardana then left the scene. When asked what was unreasonable about GMA’s handling of this incident, he conceded there was nothing unreasonable other than he had kept calling, before he could reach anybody at GMA. Mr Ananthakumar denied receiving missed calls from Mr Gunawardana and said he always took calls from his drivers because ‘the buck stopped with him’.

64. When asked about the circumstances of Mr Gunawardana ceasing work with GMA in May 2012, Mr Ananthakumar said that Mr Gunawardana had been involved in five motor vehicle incidents in GMA trucks between February and May including three in a week. Company procedure required timely completion of incident reports, however Mr Gunawardana had not consistently done that. Mr Middleton had called him into the office to do the paper-work after the last incident and Mr Gunawardana had come into the office, slammed the keys on desk and walked out.

Events and Treatment Subsequent to Ceasing Work for GMA

65. As for his mental state at the time of stopping work with GMA, Mr Gunawardana said he felt angry. His ‘brain was everywhere’ and he wasn’t ‘all there’, which was because of inhaling chemicals and the bullying. Mr Gunawardana said he was ‘fully cuckoo’ during this time.

66. The day following the last traffic collision in May 2012, Mr Gunawardana attended a GP, a Dr Wang, who had mentioned WorkCover. He said there were language issues and he did not go back to Dr Wang.

67. Mr Gunawardana agreed that from June 2012 onwards, he attended Parkway Medical Centre where he mainly saw Dr Roshan Mendis. He agreed, when shown the clinical records for Pathway Medical Centre, that between October 2006 and June 2012, there no GP attendances at Parkway for the entirety of his time working for GMA.

68. On 4 June 2012, he attended Dr Mendis who recorded the following note: ‘pt. under severe pressure at work, unable to work, pt. has been abuse verbally by managers. Under stress, unable to cope, insomnia, depressed, irritable, moody, workplace problems’. Mr Gunawardana attended Dr Mendis frequently with complaints of severe work-related stress from June 2012 until at least September 2012 (as recorded by the Parkway clinical notes).

69. In an attendance on Mr Gunawardana on 28 June 2012, Dr Mendis recorded ‘patient under severe pressure due [to] court case pending today’. Valium was prescribed.

70. In July 2012, he was referred to a psychologist, Ms Nicolson, which he found not of benefit. In August 2012, he was referred to a psychiatrist, Dr Lanka Cooray.

71. In October 2012, Mr Gunawardana complained to Dr Mendis regarding problems with corrections officers whilst doing community work as part of a community corrections order (“CCO”).

72. In cross-examination, Mr Gunawardana did not dispute that in 2012, and subsequently, he was facing criminal charges and court proceedings mainly for road rage type incidents. In September 2012, he was sentenced to a 12-month community corrections order (‘CCO’) at Dandenong Magistrates’ Court and convicted on charges of threat to kill and intentionally damaging property. The CCO included conditions requiring mental health assessment and treatment, a parenting plan and an anger management program. Mr Gunawardana also agreed in cross-examination to the following matters:

·   In February 2013, he pleaded guilty to a February 2012 charge of common law affray from February 2012 and was sentenced to a suspended term of imprisonment.
·   In July 2015, he was convicted and sentenced for criminal damage from September 2014.
·   In December 2015, he was convicted of an unlawful assault from March 2015.
·   In May 2016, he was convicted on a charge of assault with a weapon from February 2015.

73. When asked in cross examination whether he was saying his criminal convictions from 2012 onwards related to his prescription medications, Mr Gunawardana said it was caused by the abuse by GMA managers and the inhaling of chemicals. He referred to various mental disturbances at this time including being able to see his skull talking to him in the night. He tended to stay in his house other than to transport his daughter to and from kindergarten and school. He was taking 20 tablets a day.

74. As noted earlier in these reasons, Mr Gunawardana was extensively cross-examined on a considerable prior history of criminal convictions going back to the 1990s including in 1996 a six-month term of imprisonment. He agreed there were numerous convictions for violent offending and dishonesty offences including such as theft of a motor vehicle, burglaries and fraudulently altering identification. When asked why he had never given an accurate history to doctors regarding the long-standing problems with anger management and criminal behaviours prior to working for GMA, he said he didn’t have to disclose it because he wasn’t asked about it.

75. In cross-examination, Mr Gunawardana was asked about his back problems since stopping work with GMA. He said the back problems began with the left calf symptoms following the 2008 rock incident. The leg problem worsened in 2012 about one month after finishing work with GMA when he stopped massage treatment as he could not afford it. The back pain came on about six or seven months later. He could not explain the record of his attendance on Dr Mendis on 15 August 2012 which noted a complaint of a painful left calf for a period of one week as well as numbness radiating into the left foot. Mr Gunawardana said he had told doctors about his leg trouble heaps of times and the doctor said it was muscular.

76. In early 2013, Mr Gunawardana developed worsening left leg symptoms including numbness and tingling into his toes and foot drop. The first attendance on Dr Mendis for low back pain was on 20 March 2013 when Mr Gunawardana complained of lower back pain the day before after heavy lifting. The next attendance for low back pain was on 17 May 2013 when he complained of lower back pain one week after lifting a go-kart. Dr Mendis recorded: ‘Sciatica ++, Constant pain, due to heavy lifting’. In cross-examination, he said he had been lifting a child’s light plastic go-kart. When asked about symptoms before and after the go-kart incident, he said beforehand there was constant left leg problems about which he had complained to Dr Mendis repeatedly. After the go-kart incident, there was back pain as well as a sensation of electricity shooting down his left leg and numbness into the foot. A CT scan of 14 June 2013 showed a disc bulge causing thecal compression and nerve root compromise. In July 2013, Mr Gunawardana attended the Alfred Hospital’s neurosurgery unit where lumbar radiculopathy was diagnosed. An MRI scan demonstrated an L4/5 prolapse with left L5 nerve root compression. Mr Gunawardana was recommended to undergo surgery, but after discussions with Dr Mendis and his psychologist Ms Nicolson, he decided not to have spinal surgery.

77. In September 2014, Mr Gunawardana was involved in a motor vehicle accident for which he has an accepted claim with the Transport Accident Commission. Mr Gunawardana did not dispute that on 21 April 2016, he was transported by ambulance to the Alfred Hospital after slamming his hand in a door at Dandenong Courts. He did not dispute a history recorded at the Alfred on that date of having used crutches for mobility for the previous two years due to left leg damage from the 2014 motor vehicle accident.

Lodgement of WorkCover Claims

78. Mr Gunawardena lodged WorkCover claims on GMA as follows:

· On 21 May 2012, a mental injury claim for bullying throughout the course of employment and in particular on 15 May 2012 (rejected by notice dated 11 July 2012).

· On 20 February 2015, a claim for injury to the left side of the body and ribs relating to the pit-lid incident on 20 January 2010 (rejected by notice dated 25 March 2015).

· A second claim, on 20 February 2015, for injury to the lower back throughout the course of employment with a purported date of injury of 16 August 2012 (rejected by notice dated 25 March 2015).

· On 18 September 2015, a claim for injury to the lower back, left leg, anxiety and depression, neck and left rib throughout the course of employment (rejected by notice dated 30 October 2015).

· On 28 February 2017, a claim for injury to the spine including but not limited to lumbar spine, lower limbs and anxiety and depression throughout the course of employment (rejected by notice dated 30 March 2017).

The plaintiff’s current condition and circumstances.

79. Mr Gunawardana never returned to work for GMA following the last traffic incident when he had left the truck at the scene. He had done no paid work for any other employer. There is continuous buttock pain and a sensation of electricity down his leg. He cannot weight-bear on the heel of his left foot. He has trouble with sitting and walking. He did not believe he could work. He does what he can around the house and can carry bags of shopping. He stuck in the house lying in bed. His daughter now mainly lives with her mother. He receives the Centrelink disability support pension.

80. Mr Gunawardana no longer sees Dr Mendis and is now under the care of another GP, Dr Zaman, in Pakenham. Dr Zaman prescribes Tramadol (400 mgs/daily), Somac, Panadeine Forte and Valium. He has psychological treatment funded by the TAC under the 2014 claim.

THE MEDICAL EVIDENCE

81. Mr A. B. Razif, orthopaedic surgeon, wrote a letter dated 16 February 1994 to Mr Gunawardana’s then GP and noted a history of 12 months of intermittent back ache with no abnormality on x-ray. There was a postural back problem with symptoms which radiated up and down his spine.

82. Dr Roshan Mendis, former GP, of Parkway Medical Centre, provided reports dated 10 December 2015, 11 October 2018 and 24 May 2019. Dr Mendis said that during the working period, Mr Gunawardana had been under severe stress due to workplace problems for which he first consulted him in June 2012. There was also a history of work-related low back pain diagnosed as a disc prolapse with sciatica and restricted movement. He had not been able to work since 2012 and there had been deterioration of his mental condition. Due to his psychiatric condition and anti-psychotic medications, Mr Gunawardana had memory problems and suffered from confusion which affected his daily living. Mr Gunawardana had not attended at Parkway Medical Centre since October 2016.

83. Dr Y. Kadota, neurosurgery resident at the Alfred, reported to Dr Mendis on 31 July 2013 that Mr Gunawardana had reported back and left leg pain for the past two months. He was on medication for workplace bullying and anger issues. Mr Gunawardana had told him he may have ‘caught his back pain from his work from inhaling chemicals at the sewer system’. He confirmed the MRI findings and the recommendation for spinal surgery.

84. Ms Lorraine Nicolson, former treating psychologist, provided a report dated 7 January 2016. Mr Gunawardana was seen on 12 occasions in 2013 and 2014. He reported workplace issues and inhalation of noxious gases as potential causes of his problems. Mr Gunawardana reported no psychiatric history. Ms Nicolson could not state conclusively that the mental health issues were related to work due to the lapse of time between him stopping work and first seeing her in March 2013. Mr Gunawardana reported being constantly undermined by his employer and being spoken to with offensive language. He objected to the frequent swearing and use of the word ‘fuck’ in the workplace. He left GMA many times but kept returning due to the high earnings. He reported anger, headaches, insomnia, poor concentration and explosive mood fluctuations all of which he attributed to work issues.

85. Mr John Di Battista, treating psychologist, prepared assessments for Dr Mendis dated 29 August 2014 and 10 April 2015 and a report dated 29 October 2019 at the request of Mr Gunawardana’s lawyers. He saw him on 83 occasions between June 2014 and October 2019. Key issues included: chronic back pain, aggressive behaviour, anger, depressive thinking, financial problems, forensic issues (police). There were problems with managers at GMA, of being regularly bullied, belittled and harassed often in front of other staff. There was a history of significant pain from the time of the 2010 pit-lid incident onwards until his pain escalated to the point where he could no longer work. There was a history of escalating anger and of traffic-related altercations leading to criminal proceedings. The motor vehicle accident in 2014 caused damage to his upper back. There had been minor improvement in Mr Gunawardana’s psychological state under Mr Di Battista’s care. This may also have been due to a total and permanent disability settlement which reduced financial pressures. On mental health grounds, there was no capacity for work.

86. Dr Hillol Das, psychiatrist, provided medico-legal reports at the request of the defendant, dated 6 July 2012 and 30 January 2017. Dr Das obtained a history of the work at GMA and of difficulties relating to managers who were all of a different race. There were frequent arguments and one particular manager was aggressive and used the ‘F word’ frequently. After one argument Mr Gunawardana had smashed his work phone. For a period, the big boss arranged for Mr Gunawardana not to have to deal with that particular manager. Mr Gunawardana reported being off work for three months after the 2010 pit-lid incident which had been frightening and accusations were made against him by managers about this incident. Mr Gunawardana quit GMA several times only to be called on to return. After Mr Digumarti transferred to Queensland, things were more difficult with four bosses bossing him around. He felt angry a lot which affected his driving. After the traffic incident on 15 May 2010, Mr Gunawardana had responded aggressively. There had been a build-up of things and he couldn’t cope any longer. In July 2012 Dr Das diagnosed an adjustment disorder with presentation of somatic anxiety and insomnia coupled with feelings of anger and agitation that related to his experience of dealing with managers at work. This was a new condition that had arisen over the past few months with no non work-related factors. He thought he would be unfit for work for two months. In his 2017 report, Mr Gunawardana reported leg cramps and a sore back ever since the time of pit-lid incident as well as nausea and light-headedness. There was a referral in 2013 to a psychiatrist, Dr Cooray, of him feeling crazy and having hallucinations. There was a neck injury from the 2014 car accident for which he had TAC-funded treatment. There were ongoing anger issues leading to criminal charges. In 2017, Dr Das opined that it still appeared to be the case that employment was a significant contributing factor to the onset of his adjustment disorder with emotional symptoms. Mr Gunawardana had no capacity for work.

87. Mr Clive Jones, orthopaedic surgeon, provided reports at the request of the defendant, dated 25 March 2015 and 9 April 2016. Mr Gunawardana was found to be a difficult historian. He had been unemployed since his back injury on 16 August 2012 at which time he was employed by GMA. At the time of the first examination, Mr Gunawardana could not explain the circumstances of his low back injury. At the time of the second examination, he described the heavy and awkward work including handling the high-pressure hoses. There had been a spontaneous onset of right-sided sciatica and left foot weakness which had led to the 2013 Alfred Hospital assessment. The pit-lid incident in January 2010 caused chest bruising which had resolved. Mr Gunawardana complained of constant, incapacitating low back pain with referred left leg numbness and tingling. He attended leaning heavily on a crutch and there were prominent non-organic signs. The diagnosis was of a large, symptomatic L4/5 disc prolapse. There was back discomfort as far back as 2010, but he had kept working until 2012 when increasing back pain and left-sided sciatica appeared. Mr Jones was initially unable to say whether employment was associated with the development of the disc injury. In his second report, Mr Jones opined that it would be reasonable to see the worker’s employment as a significant contributing factor to the back condition with material contribution to his incapacity for suitable employment. There was no history of previous back problems. Mr Gunawardana was unable to work due to a combination of physical and mental problems.

88. Dr Nigel Strauss, psychiatrist, provided a report to Mr Gunawardana’s previous lawyers, dated 20 April 2016. Mr Gunawardana, who attended in a wheel-chair saying he now hardly walked at all due to paraesthesia in his legs, was not found to be a good historian. Other than a prior two-month episode of back pain, there were no previous physical or psychiatric problems. Whilst he generally enjoyed his work with GMA, it was difficult working with the managers due to a poor atmosphere and people swearing and arguing. The pit-lid incident of 2010 caused chest injuries from which he recovered. As for the circumstances of stopping work in 2012, Mr Gunawardana reported that over three particular days he had inhaled fumes from a sewer pit which had led to him becoming confused and upset and he was involved in traffic incidents. There were underlying psychotic problems which may or may not be connected to his physical symptoms. Dr Strauss concluded that it was impossible to reach absolute conclusions in the case and he could only note possibilities. Whether or not employment contributed to the psychotic problems was very difficult to decide upon. Mr Gunawardana was possibly abused at work but that was probably not enough to cause the development of his psychosis. Dr Straus thought that if there were not work-related physical problems, then there was the possibility that the psychiatric problems were not work-related. Mr Gunawardana was totally and permanently incapacitated for work.

89. Mr David Brownbill, neurosurgeon, provided a report dated 26 July 2016 to the plaintiff’s lawyers and a supplementary report of 11 September 2016. There was a history of strenuous work as a jet-truck operator including handling high-pressure hoses. There was intermittent mild back symptoms while driving and with lifting which resolved quickly. There was no back pain associated with the pit-lid incident of 2010. As for why he ceased work in 2012, Mr Gunawardana had inhaled methane gas from a pit and from that day he never went back to work and had anger issues. Six months later he had leg pain. Mr Brownbill opined that, on the basis of material including a statement Mr Gunawardana made to a WorkSafe investigator dated 20 March 2015 (which was not tendered into evidence), the heavy, repetitive work with GMA over some years had been a significant contributing factor to lumbar spine degenerative change which acted as the basis for the subsequent disc prolapse. Whilst there was no apparent history of ongoing back pain whilst working at GMA or in the several months afterwards, the absence of such definite pain did not preclude the described heavy, repetitive activities contributing to the degenerative changes.

90. Associate Professor Bruce Love, orthopaedic surgeon, provided a report dated 12 September 2018 at the request of Mr Gunawardana’s lawyers. Mr Gunawardana, who attended using a brace and a crutch, gave a history of work from 2004 with a company that cleaned sewers. There was a history of the 2010 pit-lid incident and of him ceasing work in 2012 due to poor health because of fume inhalation from the sewers. Left leg symptoms developed following the pit-lid incident which were treated with massage. There was left buttock and leg pain and weakness. The neck symptoms from the 2014 motor vehicle accident had abated. It was opined that, on the description of the pit-lid incident, that was sufficient for him to accept that the back condition was a consequence of that explosion. He noted the history was vague, but the energy described would be sufficient to produce symptoms in a susceptible lumbar spine. The diagnosis was of an L4/5 disc prolapse with nerve root compression. Any return to work would be in a sedentary capacity only.

91. Dr Lester Walton, psychiatrist, provided a report dated 3 October 2018 at the request of Mr Gunawardana’s lawyers. A history was obtained of the 2010 pit-lid incident. There was conflict with workmates. The context of ceasing work with GMA in 2012 was of inhaling fumes from a sewer pit and feeling confused leading to three truck incidents. Mr Gunawardana reported a criminal history including assault charges and of a past term of imprisonment. Dr Walton understood the back condition as being related to the 2014 motor vehicle accident. There was no evidence of current psychosis or of disordered thought. In relation to diagnosis, Dr Walton stated that, if a diagnostic label is to be applied, then perhaps that of a chronic adjustment disorder with mixed anxiety and depression would fit best. In relation to causation, Dr Walton opined that it would need to be established that Mr Gunawardana did suffer from some form of physical injury resulting in chronic pain for him to be regarded as suffering from a psychiatric injury that was work-related.

92. Mr Douglas Gardiner, orthopaedic surgeon, provide a report dated 9 October 2019 at the request of Mr Gunawardana’s lawyers and the TAC regarding the 2014 motor vehicle accident. The prior history was noted to be a complex, disjointed description of several alleged incidents including an explosion in 2012 after which there was left leg pain. Mr Gunawardana had worked until he suffered the effects of an episode of gas inhalation and, six months after that, the insidious onset of left foot pain. An injury at work in 2013 resulted in severe low back pain that led to the Alfred Hospital assessment. The motor vehicle accident in 2014 caused a soft tissue cervical spine injury. As for any orthopaedic diagnosis pre-existing that motor vehicle accident, this was a significant L4/5 disc prolapse originally causing left L5 radicular pain but now shrouded in inconsistent findings and significant emotional overlay to the degree that a clear diagnosis was not forthcoming. There was no capacity for employment due to a combination pf psychiatric and low back conditions.

ANALYSIS

Burden of Proof

The legal and evidentiary burden of proof rested upon the plaintiff to satisfy the Court, on the balance of probabilities, as to the following:

That after March 2008 he was either a worker or a deemed worker within the meaning of the Act.
That his employment with GMA was a significant contributing factor to any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease to his lumbar spine;
That any mental injury arose out of or in the course of his employment with GMA, or that his employment with GMA a significant contributing factor to any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing psychological condition;
That any incapacity for work resulted from, or is, or was materially contributed to by either or both the lumbar spine injury and the mental injury.

The Law

94. The Act provides that if there is caused to a worker an injury arising out of or in the course of any employment the worker is entitled to compensation in accordance with the Act: s39(1). A ‘worker’ is defined as an individual who either performs work for an employer or agrees with an employer to perform work ‘at the employer’s direction, instruction or request whether under a contract of employment or otherwise’: s.3. The Act includes, within the definition of ‘worker’, an individual who is deemed to be a worker including by satisfying the requisite factors in clause 9(1) of Schedule 1 to the Act which is headed ‘Contractors’.

95.Whether an individual is an employee (and thus a worker within the meaning of s.3 of the Act) may be determined by considering various factors. According to the Court of Appeal in Elazac Pty Ltd v Shirreff[1], these include:
[1] [2011] VSCA 405

the degree of control which the former can exercise over the latter;
whether what is being supplied is the work and skill of a person (contract of service) or the supply of equipment or its performance (contract for services);
whether or not the person engaged can set their own hours of work;
the method of payment (and, in particular, whether payment is determined by hours of service or output or production);
whether or not income tax is deducted and holiday pay or long service leave or superannuation paid;
whether or not the person engaged employs employees and/or conducts his business in partnership;
whether or not there is a power to delegate (send someone else to perform the work); and
whether or not the person engaged considered the relationship as one of independent contractor[2].

[2] [2011] VSCA 405 at [30]

96. The Court of Appeal also made it clear that control (or, more particularly, the right to exercise control) is only one of a number of possibly relevant factors (albeit an important one) in determining the issue. Modern authority is to the effect that it is the totality of the relationship between the parties which must be considered[3]. In Eastern Van Services v Victorian WorkCover Authority[4], the Court of Appeal noted that it does not serve to identify a ‘bright line test’ or to dictate which side of the line a given set of facts fall[5]. However, the distinction between an employee and an independent contractor could be encapsulated as being ‘rooted fundamentally in the difference between an employee in his, the employer’s, business and a person who carries on a trade or business of his own’[6]. The Court of Appeal held in Eastern Van that: ‘the correct method is to examine and weigh various indicia or criteria in a multi-factorial analysis. Inevitably, those matters will be inter-related and do not carry a fixed weight’. [7]
[3] Ibid]]
[4] [2020] VSCA 154
[5] Ibid at [29]
[6] Ibid]
[7] [2020] VSCA 154 at [36]

97. Regarding the employment of other individuals, which was the situation of Mr Shirreff in Elazac Pty Ltd v Shirreff[8] , the Court of Appeal said the following:
[8] [2011] VSCA 405

‘In our view, the most significant feature in relation to the issue of whether the plaintiff was an employee, or a contractor is the plaintiff’s employment of his own employees at the work sites in which he was required to work. Whilst it may not be inconsistent with a relationship of employer/employee that an alleged employee employ on site his or her own employees, in our view this would certainly unusual’.[9]
[9]Ibid at [36]

Plaintiff’s Submissions

98. The weight of evidence supported a finding that Mr Gunawardena remained an employee of GMA even after the altered arrangements of March 2008. GMA continued to supply Mr Gunawardana with the truck, the tools and equipment for performing the work. GMA covered all running costs of the truck. GMA employed and allocated the CCTV camera-operators who worked in tandem with the jet-truck operators for the servicing work. GMA arranged for SEW’s approval, and annual accreditation, of the jet-truck operators.

99. Counsel for the plaintiff submitted that the Court should follow the High Court decision of Hollis v Vabu Pty Ltd[10] due to compelling similarities between Mr Gunawardana’s situation and that of bicycle couriers whom the plurality found to be employees rather than independent contractors. It was said there the couriers were not providing skilled labour or labour requiring special qualifications and the idea that they were ‘running their own enterprise [was] intuitively unsound’[11]. Similarly, whilst the jet-truck operators needed certification to be accredited by SEW, they were essentially labourers who had learned a particular process. Mr Gunawardana was not running a business in any real sense in that he was not advertising for work and had to be available to complete the allocated parcel of work Monday to Friday.
[10] (2001) 207 CLR 21
[11] Ibid at [48]

Also, as with the couriers who had little control over the manner of their work and were assigned rosters from to Monday to Friday, Mr Gunawardana consistently worked Monday to Friday from around 7:00 am carrying out the allocated parcel of work. Whilst there was some discretion that could be exercised as to the order of work, Mr Digumarti’s evidence was that he organised an advance order of work by suburb. After hours and on weekends, Mr Gunawardana had to answer calls immediately and attend emergency call-outs within the hour.

Just as the couriers were presented to the pubic as ‘emanations’ of the principal by wearing a uniform adorned with Vabu’s logo, Mr Gunawardana wore GMA logo on his clothing.

As for Kleen Kleen 1’s rendering of tax invoices, it was notable that defendant had not called any of its current or past employees to explain the inputting of figures. Regarding the tax arrangements, Eastern Van was authority for the proposition that tax arrangements were one factor only and depended on the overall circumstances and level of sophistication of the operator.

It was conceded for the plaintiff that the question of delegation was a vexed one and that there was no particularly satisfactory explanation for Mr Stembo and Indika being remunerated via Mr Gunawardana’s bank account. Mr Gunawardana had deducted no tax or any other amount and simply passed on the monies and held the belief that he did not have the power to delegate work to others. Further, there was no basis for having employees, as jet-truck drivers operated alone in tandem with the CCTV camera-operators.

In terms of mental injury, the weight of evidence was that Mr Gunawardana had suffered a mental injury which arose out of the employment circumstances of persistent, overbearing, unpleasant verbal abuse by managers such as Mr Middleton that constituted workplace bullying. It was also connected to Mr Gunawardana’s concerns and perceptions regarding the hazards of exposure to chemicals such as methane. Dr Das, a medico-legal psychiatrist for the defendant, had concluded that employment was a significant contributing factor to the onset of his adjustment disorder with emotional symptoms in his 2017 report, on the basis of a history that included non work-related factors such as the criminal charges.

Additionally, the heavy, repetitive and physical nature of the work as a jet-truck operator was a significant contributing factor to the aggravation of pre-existing lumbar spine degeneration. In this regard, the plaintiff relied upon the opinion of Mr Clive Jones, a medico-legal orthopaedic surgeon for the defendant.

Mr Gunawardana had no capacity for suitable employment for the foreseeable future which resulted from a combination of his mental injury and back injury.

Defendant’s Submissions

The plaintiff’s credit was entirely in issue. Whether Mr Gunawardana was lying or a very poor historian, his evidence was completely unreliable and ought not be accepted by the Court unless independently corroborated by other evidence. There were numerous, fundamental inconsistencies, inaccuracies and changes in Mr Gunawardana’s evidence on virtually all matters in dispute including:

· the consequences of the 2010 pit-lid incident and being incapacitated for three months;

· the inaccuracies and inconsistencies in his income tax returns covering the whole of the relevant period from 2008 to 2012;

· the implausible explanations for Mr Stembo and also his brother being remunerated via Kleen Kleen 1.

· his failure to disclose, or to adequately disclose, to any doctors his extensive pre-existing issues with anger management and long forensic history unrelated to his work with GMA;

· histories to the doctors were riddled with inaccuracies regarding his leg and/or back trouble having persisted since either the rock incident or the pit-lid incident and failing to report the go-kart incident which led to the Alfred assessment in 2013.

As to whether Mr Gunawardana was, after March 2008, an employee of GMA or an independent contractor, the weight of evidence was that he had become an independent contractor. Mr Gunawardana had begun as an employee and had elected to alter arrangements to become an independent contractor in order to earn higher income. To the extent there was any inconsistency between his evidence and that of Mr Ananthakumar and Mr Digumarti, their evidence should be preferred given the plaintiff was not a witness of credit. The defendant referred the Court to the authorities of BSA v Victorian WorkCover Authority[12] , and also Eastern Van Services Pty Ltd v Victorian WorkCover Authority[13] as supporting the defendant’s position.
[12] [2018] VSCA 265 at [102]
[13] [2020] VSCA 154 at [36], [173-177]

Mr Gunawardana knew he was a contractor and had told his own doctors that. That is the explanation for why no WorkCover claim was lodged until well after he ceased working for the defendant. Importantly, Mr Gunawardana had employees and delegated GMA work to other individuals, Mr Stembo and Indika. Mr Gunawardana had performed the work autonomously once allocated the weekly parcel of work. It was notable that he stopped and started work with GMA and stopped altogether for six months in 2011 and worked for another entity. All of these matters were inconsistent with a finding that Mr Gunawardana was a worker.

As for whether Mr Gunawardana was, in the alternative, a ‘deemed worker’, the plaintiff failed, on the evidence, to satisfy the statutory test set out in Clause 9(1) of Schedule 1 of the Act because of the 80% gross income test. In all but the final tax year of 2012, Mr Gunawardana’s individual earnings were substantially less than 80% of the total gross income of Kleen Kleen 1 as follows:

· In the 2009 tax year, Mr Gunawardana’s individual earnings were $26,000 whereas Mr Stembo’s earnings were $17,000 and Indika had earned $2,750.

· In the 2010 tax year, Mr Gunawardana’s earnings were $31,000 whereas Mr Stembo’s earnings were in the order of $19,500.

It was conceded that only period in which Mr Gunawardana did satisfy the 80% test as a ‘deemed worker’ was 2012 tax year when his earnings represented 100% of Kleen Kleen1’s gross income.

Even if the Court were to find Mr Gunawardana was a worker or a deemed worker, the plaintiff had failed, it was submitted, to discharge the evidentiary onus in relation to injury. In relation to the back, the weight of the evidence was against a finding that the work with GMA was a significant contributing factor to any aggravation of a pre-existing lumbar spine injury. This was given: the absence of back complaints to any doctor until March 2013 (some 10 months after ceasing with GMA); the lack of complaint of leg trouble other than a single instance in August 2012 (which was reported to be of one week’s duration); no doctor had a history of the go-kart incident in 2013 that on the evidence had led to acute sciatic symptoms and left foot drop. It was only after this event that had led to his attendance and assessment at the Alfred.

On the evidence, there was no basis for a finding that the plaintiff had suffered a work-related mental injury or one that resulted in him being unfit for work in May 2012. The evidence instead pointed to Mr Gunawardana’s escalating mental health issues being connected to the criminal proceedings he was facing in 2012 as a consequence of the threat to kill charge in 2010. On the evidence, the plaintiff had very long-standing anger issues pre-dating his work with GMA. There were no complaints of bullying or concerns as to management raised with any doctor prior to June 2012 a month after stopping work.

Findings

Mr Gunawardana’s credit was seriously challenged in this case. Even allowing for faded recollections of events of ten years prior to hearing, I was, based on the whole of the evidence, left with the troubling impression that Mr Gunawardana not merely a poor historian, but rather not a credible witness in the sense of not being a truthful person. His accounts of events were often simply implausible and gave rise to an impression that he was attempting to mislead the Court by presenting a version of events that would be of most assistance to his case. Some examples include: suggesting Mr Stembo himself could have used his details to render the invoices in the name of Kleen Kleen 1; denying that Mr Indika Gunawardana had ever worked for him or had he ever trained him in retic cleaning; denying that he had rendered Kleen Kleen 1 tax invoices to GMA for Mr Stembo, saying that they were a fraud and totally made up by GMA using his Kleen Kleen 1 letter-head invoices; denying any knowledge of applying for WorkSafe injury insurance; and inconsistent evidence as to his period of apparent incapacity for work for the three months after the pit-lid incident; his explanations regarding his tax returns and disparities between what was declared as taxable income and what his earnings from GMA were, for example in the tax years 2008, 2009 and 2010. He conceded having claimed unjustified and inexplicable BPI expenses deductions to minimise his taxable income in the tax years 2009 to 2011. He denied that he then took a different approach to suit a different purpose in relation to workers compensation, although he conceded that he had difficulty retaining lawyers because of the tax returns.

Having the benefit of observing Mr Gunawardana while he was giving evidence to the Court, I found his presentation to be most unusual and, very frequently, his attempts to explain matters were not only improbable, but bordered on the bizarre. I therefore accept the defendant’s submission that Mr Gunawardana’s evidence could not be relied upon unless it was independently corroborated by other evidence.

I note, for the sake of completeness, that Mr Gunawardana made frequent reference, both in evidence and to doctors, to exposure to fumes in the course of work with GMA as an explanation for his apparent confusion regarding matters in dispute. However, in the absence of any supporting medical or other evidence regarding such a link, I am not satisfied that was an explanation for the problematic nature of much of Mr Gunawardana’s evidence.

In any event, as I have said, it is my conclusion that Mr Gunawardana’s evidence was not reliable. The plaintiff’s credit is, of course, always of critical importance, as has been noted by the Court of Appeal in a long line of authorities, including recently in Johns v Oaktech Pty Ltd.[14] Mr Gunawardana needed to persuade the Court that not only his evidence was credible and reliable. He also had to establish the reliability of the histories he gave to the medical witnesses, whose opinions were premised on the accuracy of his accounts to them[15]. I will return to the medical evidence when I address the question of injury.
[14][2020] VSCA 10 at [76]
[15] Ibid
I found Mr Ananthakumar and Mr Digumarti to be credible witnesses for the defendant. During cross-examination, Mr Ananthakumar gave his evidence openly and without embellishment. I also consider that Mr Digumarti was a witness of truth who endeavoured to given accurate answers and made concessions such as Mr Gunawardana being generally a reliable worker.

Whether the plaintiff was an employee of GMA or an independent contractor

I turn first to the question of whether Mr Gunawardana was an employee of GMA after March 2008 and so a ‘worker’ within the meaning of the Act.

I agree with the plaintiff’s submissions that, on the evidence, various indicia support a finding that Mr Gunawardana was a ‘worker’. In terms of the degree of integration into the business of GMA, he wore a uniform with GMA’s logo, he was supplied with the jet-truck for which all costs were met by GMA and all necessary accreditation, certifications and vaccinations were arranged and paid for GMA. In terms of the nature, extent and use of control of GMA, he was given a parcel of work with a planned order of work by locality which had to be completed generally between the hours of 7 am and 4 pm. He needed to work in tandem with a GMA-employed CCTV operator. When he was on call for after hours work, he was expected to be on site within the hour.

However, notwithstanding the presence of these factors, the inquiry involves a question of substance rather than nomenclature in accordance with Eastern Van[16] and the distinction is ‘rooted fundamentally in whether the person … is carrying on a business or trade of his own’. As a matter of substance, on the weight of evidence, I am of the opinion that Mr Gunawardana was an independent contractor whose circumstances were quite different, for example, to those of the bicycle couriers in Hollis are. I note the following matters of substance:
[16] 2020] VSCA 154 at [36]

· Mr Gunawardana, when he returned to work with GMA after March 2008, set out to alter his arrangement with GMA to become a contractor. His own belief at the time was that he was a contractor, for example, as he informed the GP in November 2008. Mr Ananthakumar also intended for, and believed, Mr Gunawardana to be an independent contractor. Mr Gunawardana’s understanding of his changed circumstances was evidenced by his taking out the ANZ disability insurance in mid-2008 and by not claiming on GMA’s Workcover insurance after rate 2010 pit-lid incident.

· Mr Gunawardana, according to his own evidence and corroborated by Mr Digumarti, came and went from GMA, taking long and short breaks, between March 2008 and May 2012, apparently at will, after disagreements with the managers. In 2011, he had six months away from GMA working for another entity altogether.

· Further, and of paramount importance, in my opinion, Mr Gunawardana delegated the work to other individuals whom he had trained, and whom he remunerated. Indeed, Counsel for plaintiff conceded there was no satisfactory explanation for Kleen Kleen 1’s payments to Mr Stembo and Indika. It is completely implausible that Mr Stembo was an employee (or even a contractor) of GMA who was remunerated via Mr Gunawardana’s bank account. In this regard, I prefer the evidence of Mr Ananthakumar and Mr Digumarti that those two individuals were retained, supervised, trained by and delegated to, by Kleen Kleen 1

I find therefore, on the balance of probabilities, that Mr Gunawardana employed (or sub-contracted) other individuals to perform the work he was contracted to undertake for GMA.

Accordingly, on the whole of evidence, and as a matter of substance weighing the various indicia or criteria in a multi-factorial analysis, I find that Mr Gunawardana was not an employee of GMA from the time of the altered arrangement in around March 2008 and therefore not a ‘worker’ within the meaning of the Act.

Having found that Mr Gunawardana was not a worker for the purposes of the Act, I turn to the question of whether he was a contractor deemed to be a worker in accordance with Clause 9(1) of Schedule 1 of the Act. I accept the defendant’s submissions and calculations (as set out earlier), that Mr Gunawardana’s individual earnings were substantially less than 80% of the gross income of Kleen Kleen 1 throughout all relevant tax years (2008 onwards) save for the 2012 tax year. In that year, on GMA’s own records of payments, Mr Gunawardana’s individual earnings were 100% of the gross income of Kleen Kleen 1. I find therefore, and note the defendant’s concession in this regard, that Mr Gunawardana did satisfy the legal and evidentiary burden to be deemed a worker in the 2012 financial year including as at the date he ceased work.

Nature of Injury and Diagnosis

Having found that Mr Gunawardana was a deemed worker in the final period of working for GMA including as at the date he ceased work (on or about 15 May 2010), I next turn to injury and causation.
1. I find the diagnosis of the back injury to be of a lumbar spine condition involving aggravation of underlying degenerative changes associated with a disc prolapse and nerve root impingement. I make that finding of diagnosis based on the of Mr Jones, Mr Brownbill and Associate Professor Love.
2. In terms of mental injury, I find that the diagnosis to be of an adjustment disorder with low mood and anxiety features. I base my finding on the opinion of Mr Di Battista, the treating psychologist who saw Mr Gunawardana on 82 occasions. This diagnosis is also consistent with Dr Das, the only medico-legal psychiatrist who examined Mr Gunawardana on two occasions (in July 2012 and January 2017) and with Dr Walton, who examined the plaintiff most recently of the psychiatrists (in October 2018).
3. Whilst I will return to the question of causation, I find, consistent with Mr Di Battista, Dr Das and Dr Walton, that the diagnosis, for the purpose of this case, does not extend to what Dr Strauss termed underlying psychotic features. I agree with Dr Strauss’ view that it was ‘impossible’ to reach absolute conclusions regarding those issues nor was it necessary given my other findings.

Causation and Whether Employment a Significant Contributing Factor

I find that the plaintiff has failed to discharge the legal and evidentiary onus of proof that Mr Gunawardana’s work with GMA was a significant contributing factor to his back condition. Given the diagnosis of the back involved aggravation, that was the appropriate test according to counsel for both parties. As the Court of Appeal made clear in St Mary’s School v Asquith, the ‘significant contributing factor’ test involves resolution of an essentially factual enquiry, the question being one of degree, requiring evaluation[17]: ‘The existence of other contributing factors does not preclude a finding that a worker’s employment was a significant contributing factor’, as Ginnane J held in Sensis Pty Ltd v Jones, in applying Ashley JA’s analysis in Asquith.[18] As to what is meant by the adjective ‘significant’ in terms of assessing the role of employment, it must be of ‘considerable amount or effect’:[19]

[17][2011] VSCA 90 at [13].

[18][2018] VSC 754 at [93].

[19][2011] VSCA 90 at [14].

The plaintiff’s case was that his back injury was due to the heavy, physical nature of the work over the course of employment. I accept entirely the submissions of the defendant that the weight of the evidence is against such a finding and note the following:

·There was no altered pathology on the lumbar CT scans between 2004 and 2008.
·No record of attendances or complaints to GPs of back or leg pain beyond 14 November 2008 nor any recorded attendances at any GP clinics for back pain from February 2010 until well after he had stopped work with GMA in May 2012.

·No evidence was called to corroborate Mr Gunawardana’s claim of having regular massage treatment for years prior to the onset of acute back pain in 2013. Such corroborative evidence is required given my findings as to credit.

· The lapse of ten months after ceasing work with GMA before complaining in March 2013 of back pain for one day after heavy lifting and then not till 17 May 2013 when he complained of lower back pain one week after lifting a go-kart. Following the go-kart incident, there were acute symptoms which led to the Alfred assessment

In relation to the medical evidence, whilst the plaintiff had apparent support from Mr Jones and Mr Brownbill, both were relying on very confused or inaccurate histories of persisting leg and/or back symptoms from the time of the pit-lid incident and no history of the go-kart incident in 2013 that led to the Alfred assessment. It was necessary for Mr Gunawardana to establish the reliability of the histories he gave to the medical witnesses, whose opinions were premised on the accuracy of his accounts to them[20]. I find he has failed to do so with respect to his claimed back injury. Dr Mendis was not called to give evidence. I draw the interference that his evidence would have been unhelpful to the plaintiff’s case.

[20] ibid

I turn now to whether the mental injury either arose out of or in the course of employment or whether his work with GMA was a significant contributing factor to the mental injury. I accept the submissions of counsel for the plaintiff on this issue and, weighing the whole of the evidence, I find on the balance of probabilities that Mr Gunawardana’s work with GMA (and specifically his treatment by managers such as Mr Middleton) particularly from February 2012, was a significant contributing factor to the onset of the mental injury referred previously in these reasons. In arriving at this finding, I have considered the following:

· Mr Ananthakumar and Mr Digumarti both conceded a history over an extended time of Mr Gunawardana having persistent communication difficulties and conflict with managers such as Mr Middleton. These difficulties were sufficiently acrimonious and entrenched that Mr Ananthakumar himself (the managing director) became involved directing that Mr Gunawardana was only to deal with Mr Digumarti.

· Mr Digumarti corroborated Mr Gunawardana’s evidence that Mr Middleton tended to swear frequently, and that the situation would become tense when there were after hours emergencies. Although Mr Digumarti said this needed to be ‘taken with a grain of salt’, such treatment undoubtedly has a different impact when directed personally towards a subordinate and in front of others.

· When Mr Digumarti moved interstate in February 2012 and ‘handed over the reins’ of his Melbourne responsibilities to other managers, Mr Gunawardana’s exposure to other managers, such as Mr Middleton, inevitably and substantially increased. He lost the supporting presence of Mr Digumarti and, on the evidence, no clear reporting structure was put in place even though Mr Ananthakumar and Mr Digumarti had an awareness of these issues. As Mr Gunawardana said to Dr Das in July 2012, he had four bosses bossing him around.

· The series of traffic incidents increased tensions, no doubt leading to cost and inconvenience for GMA, with the operations managers.

In relation to causation, I prefer the opinions of Dr Mendis, as the treating GP in June 2012, and of Dr Das, who assessed the plaintiff just two months after he ceased with GMA. Neither Ms Nicolson, the treating psychologist from March 2013, nor Mr Di Battista, the treating psychologist from 2014, provided useful or conclusive opinions on the question of causation.

I take into account the evidence that Mr Gunawardana had attended doctors sparingly over the years. Yet, by contrast, between 4 June 2012 and October of 2012 he saw Dr Mendis on around ten occasions with the reason for contact being workplace stress. In his 2015 report, Dr Mendis said that ‘during the working period’, Mr Gunawardana had been under severe stress due to workplace problems. I am satisfied that these workplace issues were at that time of ‘considerable amount or effect’ in accordance with Asquith.[21]
[21][2011] VSCA 90 at [14].

Thereafter, from around October 2012 onwards, on the evidence, other stressors became more prominent and references in Dr Mendis’ clinical records to problems with, for example, the community work under the CCO increase. No report was provided in this case by Mr Guanwardana’s treating psychiatrist Dr Cooray and I draw the inference that, from the time she started treating him relevant to his sentencing in September 2012, other issues were more prominent and her evidence would not have assisted the plaintiff’s case. Dr Das’ opinion was that that employment was a significant contributing factor to the onset of the adjustment disorder with emotional symptoms. I take into account that his opinion as to causation was unaltered in 2017 even after a fuller (although still not complete) history of non-workplace-related matters was obtained.

Having found that Mr Gunawardana suffered a mental injury, the question arises as to whether his injury is of a type for which there is, under the Act, no entitlement to compensation. The defence case was that any mental injury was caused wholly or predominantly by the management action taken on reasonable grounds and in a reasonable manner: s40(1). It was accepted that the defendant carries the legal and evidentiary onus of proof in showing that circumstances fell within s.40(1).
The definition of management action in s 40(7) is not exhaustive in nature and includes, but is not limited to, any one or more of a range of fourteen actions. The management action relied upon appeared to relate to the defendant’s actions in responding to the series of work-related traffic incidents between February and May of 2012. In my view, the following sub-sections are relevant to the defendant’s conduct: (b) counselling of the worker;(m) an investigation by the worker’s employer of any alleged misconduct of the worker; (n) communication in connection with an action in any of the above paragraphs. Certainly, the defendant’s actions to the extent that it was counselling him for alleged speeding and about complaints from other motorists, requiring him to follow policies regarding the reporting of these incidents were arguably management action taken on reasonable grounds. Mr Gunawardana conceded the reasonableness of the steps taken after each of the incidents. However, weighing the whole of the matters referred to earlier, I find that overall Mr Gunawardana’s workplace circumstances including the unreasonableness of the conduct of the managers towards him particularly after Mr Digumarti’s departure led to the onset of the mental injury that caused him to attend Dr Mendis.

I turn to whether the plaintiff was incapacitated for employment and whether any such incapacity resulted from or was materially contributed by his mental injury. In July 2012, Dr Das considered that Mr Gunawardana would be unfit for work for two months. Dr Mendis’ clinical notes indicate that from late September 2012 onwards, Mr Gunawardana was engaged in, and experiencing stress related to, the community work ordered as part of his CCO. Accordingly, I find that the plaintiff had no capacity for work from the date of ceasing work (or around 15 May 2012) and beyond that date. However, for the reasons outlined earlier, I find that his employment resulted in or materially contributed to his incapacity only until the end of September 2012 and not beyond that time.

CONCLUSION

Accordingly, I find:

A.The plaintiff was not a worker within the meaning of the Act, however as at 15 May 2012 he was a contractor deemed to be a worker in accordance with the factors set out in Clause 9(1) of Sched 1 of the Act.
B.The plaintiff’s employment was a significant contributing factor to the onset of a mental injury in the nature of a chronic adjustment disorder with mixed anxiety and depressed mood with a nominated date of injury of 15 May 2012;
C.The defendant’s reliance on the defence of management action under s40(1) of the Act) is unsuccessful.
D.The plaintiff was incapacitated for his employment pre-injury employment because of his mental injury and his incapacity for employment resulted from, or was materially contributed to by his employment, until 30 September 2012 but not beyond that date.
E.The plaintiff had an entitlement to reasonable medical and like expenses over the same period.

[2020] VMC 31

10 December 2020