Lee v Toll Transport Pty Ltd - [2023] NSWPICPD 54

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Lee v Toll Transport Pty Ltd [2023] NSWPICPD 54
APPELLANT:	Frazer Lee
RESPONDENT:	Toll Transport Pty Ltd
INSURER:	Toll Holdings Limited
FILE NUMBER:	A1-W6050/21
PRESIDENTIAL MEMBER:	Acting Deputy President Michael Perry
DATE OF APPEAL DECISION:	1 September 2023
ORDERS MADE ON APPEAL:	1. Amend the name of the respondent wherever it appears to Toll Transport Pty Ltd. 2. The Certificate of Determination dated 2 May 2022 is revoked. 3. The matter is remitted for re-determination afresh by a different member.
CATCHWORDS:	WORKERS COMPENSATION – Whether events or conduct that did actually occur in the workplace were relevant to the assessment of whether the appellant sustained a compensable psychological injury; whether the appellant’s perceptions in relation to such events or conduct were relevant to and/or taken into account; whether errors found infected the ultimate conclusion or were operative errors as described in Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45 and Akora HoldingsPty Limited v Ljubicic [2008] NSWCA 339
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr C Tanner, counsel
Santone Lawyers
Respondent:
Mr B Jones, counsel
Colin Biggers & Paisley
DECISION UNDER APPEAL
MEMBER:	Ms R Homan
DATE OF MEMBER’S DECISION:	2 May 2022

INTRODUCTION AND BACKGROUND

On 24 November 2021, Frazer Lee (the appellant) lodged an Application to Resolve a Dispute (ARD) seeking an award for weekly compensation and medical and treatment expenses pursuant to the Workers Compensation Act 1987 (the 1987 Act). He had been employed by Toll Transport Pty Limited (Toll/the respondent) working as a full-time pick-up delivery driver between at least January 2015 and February 2021.
Mr Lee alleges he suffered a “disease” psychological injury “from instances of bullying and harassment” with the deemed date of injury being 9 February 2021. In a detailed decision comprising 48 pages,[1] the Member refused Mr Lee’s claim and made an award for the respondent. Mr Lee brings this appeal against that decision.
[1] Lee v Toll Global Express Parcels [2022] NSWPIC 192 (reasons).

HEARING

The parties did not seek an oral hearing. Section 52(3) of the Personal Injury Commission Act 2020 provides:
“If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Procedural Directions PIC2 – Determination of matters ‘on the papers', and WC3 – Presidential appeals and questions of law, provide that I may be satisfied that the documents and submissions of the parties give me sufficient information for the appeal to be determined on the papers without holding a formal hearing. While I was mainly satisfied of this, I formed the view it was preferable for a brief hearing to occur (notice was provided to both parties on 8 August 2023) to allow the parties to make further submissions as to whether or not the reasons contain any or any adequate:
(a) application of the principles in Attorney General’s Department v K,[2] that is, in relation to the extent to which, if at all, the appellant’s perception of real events in the workplace were or were not relevant to (that is, taken into account with) the injury causation analysis, and
(b) reasoning for any application or analysis of the matters referred to in (a) above.
[2] [2010] NSWWCCPD 76; 8 DDCR 120.
A brief hearing was held on 9 August 2023 when both counsel provided further submissions in relation to these and other or related consequential (to be developed below) matters, including a consent application to amend the name of the respondent to Toll Transport Pty Ltd.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

THE EVIDENCE

The reasons include lengthy and detailed summaries of the evidence. Neither party has criticised them on the basis of the evidence having been erroneously summarised. That is not to say the parties accept the Member’s analysis of the evidence. Mr Lee clearly does not. Also, while Toll strongly supports the decision, it contends that it was “certainly open to the Member to [find Mr Lee lacked credit]”, acknowledging there was no such finding.
In these circumstances, together with the manner of disposition of this appeal decision, it is unnecessary to summarise the evidence separately to my summary of the reasons, which includes detailed summaries of the Member’s recording of the evidence.

THE MEMBER’S REASONS

The reasons (at [9]) note the agreement of the parties that three issues were in dispute, firstly whether “[Mr Lee] sustained a psychological injury pursuant to ss 4 and 11A(3) of the 1987 Act, including whether employment was the main contributing factor to the injury for the purposes of ss 4(b)(i) and/or (ii)”. The second issue was whether any injury was wholly or predominantly caused by reasonable action etc pursuant to s 11A(1) of the 1987 Act. The third issue was the extent and quantification of incapacity resulting from injury. The second and third issues are not directly relevant to the issues on this appeal.
The reasons comprehensively record the evidence. This comprised written and oral evidence from Mr Lee and his partner Taegan Baird, and the statement of Mr Fiti Apulu, a truck driver and co-worker of Mr Lee. Mr Lee’s written statement, in summary, stated that Mr Tanner (Mr Lee’s supervisor) and Mr Perkiss (a manager at Toll) talked “down to him”, that his work was not good enough on numerous occasions and, for example, despite him pushing himself nearly every day, he was told that if he “pulled his finger out” he could get the job done better.[3] He also said on about five occasions, when a truck he was not responsible for had broken down, Mr Tanner made him unload his truck after it had already been loaded and give it to the driver whose truck had broken down, instead of another empty truck being given to the other driver.
[3] Reasons, [20].
The reasons note Mr Lee stated there had been discussion about the respondent being in financial difficulty, meaning that some workers might have been made redundant. With three dependent children, he was worrying if he was going to have a job – and that around this time, Mr Tanner and Mr Perkiss had regularly raised issues with his work performance.
The reasons summarise the oral evidence of Ms Baird, including questions about whether a person observed by an investigator on 17 February 2022 was or was not Mr Lee.
The reasons also provide a detailed summary of Mr Apulu’s evidence. The Member observed this was generally supportive of and consistent with Mr Lee’s evidence including that he “constantly witnessed bullying and verbal threats” by Mr Tanner.[4]
[4] Reasons, [52].
The reasons summarise the statements of Graham Perkiss (31 March and 6 December 2021), Toll’s Southwest New South Wales Region Manager, and Denis Tanner (29 March 2021), a supervisor employed by Toll. It was noted that Mr Perkiss stated he was acutely aware of his responsibility to provide a safe workplace. He also denied ever speaking “down to” Mr Lee or calling him (or Mr Apulu) a name other than his given name. He also denied being aware of any complaints about bullying or threats by Mr Tanner. Mr Tanner’s denial of bullying or making racist or other offensive remarks to Mr Lee or Mr Apulu was also noted.
The Member considered further documentary material, including email correspondence from Mr Perkiss to himself, his text message correspondence with Mr Lee, surveillance material, and records of his discussions with various other drivers engaged by the respondent. The Member also considered other Toll documents recording issues about Mr Lee’s punctuality, absenteeism and work performance. These span the period between about September 2019 and 19 January 2021 – when Mr Lee was sent a “final warning” letter by Toll expressing attendance and punctuality concerns.
The reasons set out detailed summaries of the records and reports from Mr Lee’s treating medical practitioners, particularly doctors he saw at the Illawarra Medical Services general practice, Ms Saima Khan, psychologist, who saw him for treatment on various occasions between 18 September 2020 and April 2021, and Ms Sue Stern, psychologist who saw him during 2021. The reasons provide a detailed summary of the expert medical reports from Dr Abdal Khan, psychiatrist, engaged by the appellant’s solicitor (4 and 27 November 2021 and 1 March 2022) and Dr Robert Kaplan, psychiatrist, engaged by Toll’s solicitor (reports 6 October 2021, 9 November 2021 and 6 March 2022).
The Member set out the relevant terms of ss 4, 9A and 11A(3) (definition of psychological injury) of the 1987 Act and also referred[5] to the summary by Roche DP of “the principles to be applied in determining causation in cases of psychological injury” in Attorney General’s Department v K.[6]
[5] At reasons, [241]–[242].
[6] [2010] NSWWCCPD 76, [52]. Hereafter referred to as “K” or “K principles” although drawn from the principles enunciated in State Transit Authority of New South WalesvFritzi Chemler [2007] NSWCA 249 (Chemler).
The Member noted there was no suggestion in the evidence that Mr Lee had a pre-existing psychological condition. It was also noted that Mr Lee bore the onus of establishing that the employment was the main contributing factor to the contraction of the psychological condition and that the employment was a substantial contributing factor to the condition.
At [247] the Member noted Dr Khan opined that Mr Lee’s psychological condition was caused by “unreasonable action adopted by his employer whereby he was bullied, harassed, intimidated and threatened”. The Member accepted it was not necessary for Mr Lee to establish that the workplace events complained of satisfy some definition of “bullying” or “harassment” – but that he did need to demonstrate, as a probability, “that real events occurred in the workplace which were perceived by him as offensive or hostile, giving rise to psychological injury”.[7]
[7] Reasons, [248].
The reasons then set out the details of the events relied on by Dr Khan in giving his opinions[8] – essentially involving him accepting Mr Lee’s evidence. The Member said it was necessary to consider whether the history on which Dr Khan’s opinions were based was adequately supported by other evidence for there to be “a fair climate” for the acceptance of those opinions. The Member also considered the material from Mr Lee’s treating practitioners, including Dr Chahoud, Ms Stern and Ms Khan, but found the reports from Dr Kaplan weighed “against [Mr Lee’s] medical evidence [including Dr Khan]”.[9]
[8] Reasons, [249].
[9] Reasons, [286]–[287].
The reasons note that Dr Kaplan said Mr Lee had a diagnosable psychological condition, but did not accept employment was the main contributing factor to that condition.[10]
[10] Reasons, [287]–[289].
The Member then observed that a “factual dichotomy” existed between “almost all of [Mr Lee’s] claims and the respondent’s evidence” except with respect to discussions:
“… with drivers as to their productivity and results generally. The respondent’s evidence confirms that there were communications with [Mr Lee] and other staff regarding possible restructuring of the … business and redundancies … [and] … discussions including warnings about [Mr Lee’s] absenteeism and he was placed on a performance improvement plan in relation to this issue”.[11]
[11] Reasons, [264].
The Member said that in considering whether Mr Lee’s evidence should be accepted, weight was given to Mr Apulu’s evidence. However, the Member noted “that with few exceptions, [Mr Lee’s] evidence lacked specificity and detail”.
The Member said she was not satisfied that Mr Lee was “bullied, harassed or the subject of intimidating, threatening, offensive or racist comments”, and that:
“Whilst [Mr Lee] may have been subject to supervision and monitoring of his work performance, I am not satisfied that he was pressured repeatedly to deliver items faster or pressured repeatedly to deliver items requiring more than one person to lift. I am not satisfied that there were multiple incidences where [Mr Lee] was made to unload his delivery truck and load his items into another delivery truck so that a colleague could use his truck”.[12]
[12] Reasons, [292].
At [293] of the reasons, the Member then stated:
“Whilst I do accept that [Mr Lee] was subjected to performance management and disciplinary action in relation to absenteeism, and that this absenteeism was the subject of regular discussion, I am not satisfied that this was unfounded, unwarranted or constituted a form of bullying or harassment. Nothing in the contemporaneous text message and email correspondence or the employer’s records of the action it took in relation to [Mr Lee’s] absenteeism appears unreasonable. [His] own evidence does not suggest that such action was unreasonable, because it is not addressed in his own evidence”.
The Member found “inadequate detail of the instances of bullying and harassment described”, as well as “a lack of evidence in relation to significant personal stressors that are temporally relevant and which [Mr Lee] described as causally related to his psychological symptoms and absences from work …”.[13]
[13] Reasons, [295].
The Member stated that:
“The impact of the performance management and disciplinary action [Mr Lee] was subjected to was inadequately addressed in the lay evidence and treating medical evidence and inaccurately represented in the history recorded by Dr Khan. [Mr Lee] also failed to address the impact of the possible restructuring of [Toll’s] business in his own statement or in the history provided to Dr Khan despite this being a matter noted to be significant in the general practitioner’s notes [when] a psychological condition was first diagnosed”.[14]
[14] Reasons, [296].
The Member then stated that while she was “prepared to accept that [Mr Lee] did find the possibility of being made redundant or terminated stressful and may have experienced psychological symptoms associated with coming to work in the late part of 2020 and 2021”, she was “not satisfied on the evidence … that employment was a ‘substantial contributing factor’ or ‘the main contributing factor’ to the contraction of his psychological condition”.
The Member then noted that:
“Whilst aspects of Dr Kaplan’s reports appear inconsistent and lack clarity, and the preponderance of medical opinion indicates … [Mr Lee] sustained a work-related injury, for the reasons given above, following my own weighing of all the evidence, I agree with Dr Kaplan’s ultimate conclusion”.[15]
[15] Reasons, [298].
The Certificate of Determination issued 2 May 2022 records: “Award for the respondent”.

GROUNDS OF APPEAL

Eleven grounds of appeal have been advanced, each alleging “error of mixed fact and law”; except Grounds 3 and 10 where error of law is alleged. It is unnecessary to recite the full terms of Grounds 1–5 below, although I believe I have accurately summarised them.
Ground 1 alleges failure to find that the evidence established an injury under s 4, and that the employment was a substantial contributing factor to that injury by s 9A, of the 1987 Act.
Ground 2 alleges failure to give sufficient weight to the evidence of Mr Lee and Mr Apulu and to find their evidence established a variety of workplace stressors which caused injury.
Ground 3 alleges error in requiring “a variety of pre-requisites to be satisfied” to satisfy the burden of proof including contemporaneous complaints, records, corroboration and “specificity and detail … with regard to the timing and location of relevant events …”.
Ground 4 alleges the Member failed to find that the evidence did include the various “prerequisites” and other matters referred to in the third appeal ground.
Ground 5 alleges the Member failed to make specific findings, on the basis of credit and/or probability, in respect of the evidence of Mr Lee and Mr Apulu.
Ground 6 alleges error in failing to find Mr Lee experienced a variety of work-related stressors which were not disputed.
Ground 7 alleges error in failing to find Dr Khan’s opinion was “reliably founded on a history … supported by evidence of work-related stressors”.
Ground 8 alleges error in failing to note and find that all practitioners who examined Mr Lee diagnosed a work-related psychological condition.
Ground 9 alleges error in failing to find that Dr Kaplan, in opining that Mr Lee “had an aggravation of a psychological injury due to reasonable actions by his employer”, confirmed he received an injury in the course of his employment and such employment was a substantial contributing factor to that injury.
Ground 10 alleges the Member erred in treating what she considered to be reasonable action by the respondent as relevant to the issues she was required to determine under ss 4 and 9A of the 1987 Act.
Ground 11 alleges error in failing to acknowledge the relevance of Ms Khan’s evidence (that the onset of the psychological condition noted at her in initial consultation with the appellant on 18 September 2020, was “caused by a combination of personal stressors related to the custody of his children and bulling [sic] and harassed [sic] by his manager at work”.

SUBMISSIONS

Each party lodged 20 pages of primary written submissions as well as supplementary/reply submissions. The following is a summary of those submissions.

Submissions for Toll

Toll firstly submitted that Mr Lee was seeking “to reagitate the case run at first instance”, but that all findings made were reasonably open and could not be said to be glaringly wrong.
Toll says the reasons at [241] refer to K which “demonstrates the Member considered the correct test”, and this was “put beyond doubt” with the following statement at [243]–[244] of the reasons:
“… [Mr Lee] has sustained a diagnosable psychological condition … Where the evidence diverges is on the question of the contributing factors to [his] psychological condition.”
Toll noted the Member’s statement (at [246] of the reasons) that Mr Lee bore the onus of proof and referred to the “contributing factor tests” under ss 4 and 9A of the 1987 Act, and the statement that Mr Lee had to establish “real events occurred in the workplace which were perceived by him as offensive or hostile, giving rise to psychological injury”, and “[i]nformed by those principles, the evidence was not merely recited. The Member grappled with the real issues ...”.[16]
[16] Toll’s submissions, [14].
Toll noted the Member’s reference to the large “factual dichotomy” (at [264] of the reasons) with the evidence presented for the parties, and that Mr Lee’s evidence, with few exceptions, lacked specificity and detail. Toll also put that there was limited information, conflicts across sources, and paucity of detail concerning Mr Lee’s complaints. Toll says these evidentiary inadequacies informed the Member’s decision that Mr Lee had not discharged the onus, including by adversely affecting the adequacy of the history given to the experts engaged in his case.
Toll also emphasised the inadequacy of the material contained in the clinical records of Mr Lee’s treating GP practice. It is submitted that this is “critical because absent such details, it cannot be said there were real events in the workplace”.[17]
[17] Toll’s submissions, [19].
Toll referred to the reasons at [294] to [296], noting these passages also show the Member’s view about omissions in Mr Lee’s evidence, inadequate detail of the instances of bullying and harassment, and the “impact of the performance management and disciplinary action … was inadequately addressed in the lay evidence and treating medical evidence and inaccurately represented in the history recorded by Dr Khan”.

Toll says that in these circumstances, the medical opinions relied upon by Mr Lee were found not to have been given in a fair climate. For example, Dr Khan disagreed with Dr Kaplan that Mr Lee’s non-work-related stressors contributed to his condition, and his opinion also conflicts with the opinion of Ms Khan, but otherwise, “Dr Khan reiterates that the unspecified bullying and harassment … caused his condition”.[18]
[18] Toll’s submissions, [30].
Toll also put that the clinical records of Mr Lee’s GP make no mention of any work issues contributing to his psychological condition until September 2020, with the only reference then being to “courier company will be shutting down.”
Toll also submitted that the lack of detail and inconsistencies in Mr Lee’s case had a “cumulative effect” with the Member correctly being unable to be satisfied about “what real events were the whole or predominate [sic] cause” of the appellant’s injury.[19]
[19] Toll’s submissions, [35].
Toll then separately addressed each appeal ground. It submits Ground 1 has no merit. As to Ground 2, it says Mr Lee’s submissions fail to disclose in what respects insufficient weight was given to the evidence of him and Mr Apulu and are made “without regard to key passages in the reasons”. It is also put that Mr Apulu “clearly has an axe to grind”.
As to Ground 3, the Member did not say that contemporaneous complaints and records were a pre-requisite to discharging the onus of proof. The Member merely took such matters into account in the overall weighing of the evidence. In relation to detail of the timing and location of events, Toll says Mr Lee must prove real events occurred which caused his perception, and if there were insufficient details of those events, proof of that could not occur. Mr Lee was required to lead evidence about what occurred and how he felt and point to evidence supportive of his employment being a substantial and the main contributing factor to any diagnosed condition – and he did not do so.
Toll submits that the complaint in Ground 4 only complains about failure to make certain findings and contains no specifics. As to Ground 5, Toll concedes the Member did not find that Mr Lee lacked credit but says “it was certainly open to the Member to so find”. Regardless, Toll submits it does not follow that merely because a witness is accepted as credible their evidence must be accepted. It remains to be assessed in the context of all evidence. The Member gave detailed reasons for her non acceptance of Mr Lee’s evidence.
Toll disputes Ground 6, including Mr Lee’s reference to “unchallenged evidence”, and notes such has been largely dealt with in its response to Ground 2. Similarly, Toll disputes Ground 7 noting the precise passages in submissions earlier made dealing with this ground.
As to Ground 8, Toll submits the issue was not the presence of a psychological condition, it was a requirement that the employment be “the” (sic, “a”) substantial contributing factor and main contributing factor to the onset of that condition. In answer to Ground 9, Toll refers to its submissions dealing with Dr Khan’s opinion (relating to Ground 7).
As to Ground 10, Toll says the Member found that the text messages between Mr Lee and Mr Perkiss were not offensive, harassing, intimidating, condescending or threatening. Toll also submits that the Member found the performance management and disciplinary action of Mr Lee was not unfounded or unwarranted or bullying or harassing. However, Toll submits that neither of these findings had a bearing on the result, and Mr Lee’s claim failed because there was insufficient evidence to satisfy the onus he bore to establish that his employment was a substantial and the main contributing factor to the contraction of his psychological condition (particularly the passages at [296] and [297] of the reasons).
Toll says Ground 11 has already been emphasised as the hurdle the appellant could not overcome, and the evidence militates against a finding that Ms Khan’s evidence alone was sufficient to satisfy the burden the appellant bore.
Toll’s further submissions in the brief oral hearing referred to the significant extent to which the Member “[grappled] with the evidence” before commencing the reasoning at [291].
Toll also put that the Member ultimately was not satisfied “of the real events”, and that in relation to events referred to at [293] (“the performance management and issues to that effect”) these matters were not something that “founded the injury per se or [gave] rise to the injury on the medical evidence”.[20]
[20] Transcript (T) of hearing of 9 August 2023, T10.2–14.
Thus, the Member’s reference to “majority of the events” should not be construed to mean there was at least one real event which was perceived as supportive of injury, and the “real events” Mr Lee complained of were otherwise, and such is emphasised at [294]–[295] of the Member’s reasons. As to the reasoning in relation to the K principles, Toll says this was dealt with in the context of Mr Lee not proving “that those real events actually occurred” and the claim “falls over at [that] juncture”.[21]
[21] T13.20–24.

Submissions for Mr Lee

Mr Lee submits that the weight of the lay evidence, and the preponderance of medical evidence, supported a finding he experienced workplace stressors which caused a psychological condition which was diagnosed by all medical practitioners who examined him.
Mr Lee says his evidence, and that of Mr Apulu, was not given sufficient weight, including by acknowledging that his evidence was corroborated by Mr Apulu’s evidence. Mr Lee also says the reasons do not acknowledge that much of this evidence was not disputed, and that every practitioner who examined him diagnosed a work-related psychological condition. He also says the reasons do not “[a]cknowledge that contemporaneous complaints were noted” by other witnesses, including Ms Khan and Dr Dela Cruz (general practitioner).
Mr Lee says that the Member was incorrect in finding there was a lack of detail. In fact, it was Toll’s evidence that was so lacking, and the reasons were inconsistent in this regard. Mr Lee also put that the reasons generally failed to adequately engage with Mr Lee’s lay and expert evidence, and any inconsistencies were insignificant or immaterial, for example, as to whether Mr Perkiss called Mr Lee or Mr Apulu a “marshmallow”. In either case it supports Mr Lee’s case and is “an unusual insult” which showed Mr Apulu’s memory was likely correct.
Mr Lee also put that the Member was only required to determine whether Mr Lee’s undisputed psychological condition was caused by the work-related stressors, and, contrary to the way the case was determined, such determination was not dependent upon the existence of contemporaneous complaints, documentary records or corroboration of the worker’s version by others. It is not unusual that complaints in relation to such matters do not occur contemporaneously and are not the subject of such documentation. In any event, there exists documentation which is relatively contemporaneous, particularly in the medical records.
The prospect of closure of the company and the loss of the appellant’s employment was obviously a source of stress experienced by him prior to his attendance on Dr Dela Cruz on 10 September 2020. That was not acknowledged in the reasons as contributing to the psychological condition then diagnosed by Dr Dela Cruz.
Mr Lee submits there were ongoing pressures on (him) and other drivers like Mr Apulu and his evidence that his performance was criticised is not rendered unreliable because he did not refer to a particular date is undisputed. The prospect of closure of the company and the loss of the appellant’s employment was obviously a source of stress experienced by Mr Lee prior to his attendance on Dr Dela Cruz on 10 September 2020.
Mr Lee also says the reasons fail to provide any findings as to credit, in relation to any rejection of the evidence of Mr Lee and favouring the evidence of Mr Tanner and Mr Perkiss, or why the evidence of Mr Lee was said to be improbable.
Mr Lee puts that the reasons fail to acknowledge Dr Kaplan’s essential acceptance that Mr Lee’s injury was work-related, with his comment that Mr Lee did “not have a psychological injury from his work” only being made on the basis that he preferred the factual/non-medical evidence of the respondent to Mr Lee’s evidence in that respect. The latter opinion might be relevant to a defence under s 11A, but the reasons did not consider that aspect of the case.
It is submitted that Mr Lee was:
“… accounting for his distress as being caused by what he perceived to be bullying and harassment, i.e. adverse treatment by those who supervised and managed him.
The relevant underlying detail which explains that perception and that choice of words is recorded in the statements of the appellant and Mr Apulu.
… there is unchallenged evidence … which provides a proper foundation for [that] perception”.[22]
[22] Appellant’s submissions, [128]–[130].
Although the above passage was in the context of Mr Lee’s history taken by Ms Khan, there is no doubt that Mr Lee’s case has been put generally, inter-alia, on the basis that in terms of real events, what mattered was his perceptions of them as adverse treatment by those who supervised or managed him. While this has been labelled as bullying and harassment, he relies upon the underlying detail as referred to in the statements of him and Mr Apulu.
In this respect Mr Lee also says that the reasons fail to apply the K principles in the analysis of his evidence by the Member. Further, he submits that there is no or no adequate reasoning in relation to any contrary inference that may be sought to be drawn. These matters were dealt with in the brief hearing on 9 August 2023.
At the brief oral hearing, Mr Lee clarified his written submissions to relevantly confirm that they included an assertion that the injury causation analysis neither dealt with the K principles or provided any or any adequate reasoning, and such was particularly the case in relation to the extent to which, if at all, the reasons take into account Mr Lee’s perceptions of events that actually occurred.

THE NATURE OF AN APPEAL UNDER SECTION 352 OF THE 1998 ACT

This appeal is brought under s 352 of the 1998 Act. Subsection 5 of that section provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing”.
In Raulston v Toll Pty Ltd[23] Roche DP, applying Whiteley Muir & Zwanenberg Ltd v Kerr[24] to the appeal process pursuant to s 352, said:
“(a)    [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c)     It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”
[23] [2011] NSWWCCPD 25; 10 DDCR 156, [19].
[24] (1966) 39 ALJR 505.

DISCUSSION

I do not accept Toll’s submission that the reference to the K principles (even in the context of “having considered the totality of the evidence”) shows the correct test was considered, and that such was “put beyond doubt” with the statement that although Mr Lee sustained a “psychological condition”, the evidence diverged on the question of the contributing factors to that condition. While the K principles may have been considered in the context of their recitation and existence, there appears no consideration in the context of their application to the facts of this case. Also, the reference to the evidence diverging on the question of contributing factors to the condition does not itself show, let alone “put beyond doubt”, that K was applied to the injury causation analysis.
My concern is about whether the K principles were taken into account when the Member undertook this analysis and in resolving the “factual dichotomy”[25] – or whether adequate reasoning is shown in that regard. While the reasons also note it was necessary for Mr Lee to demonstrate “that real events occurred in the workplace which were perceived by him as offensive or hostile, giving rise to psychological injury”,[26] there was no mention in the analysis following and/or findings, about whether or not Mr Lee perceived any events which actually occurred in the workplace as being offensive or hostile – and in that context, inter-alia, whether causation was established.[27]
[25] Reasons, [264].
[26] Reasons, [248].
[27] Chemler, per Basten JA, [69].
This was in circumstances where the Member essentially accepted[28] that there were real events that did actually occur in the workplace. This will be developed below.
[28] At reasons, [293], [297].
The manner in which the Member assessed Mr Lee’s evidence is relevant in this regard. If, for example, she had clearly rejected his evidence generally (or with some other caveat such as unless it was otherwise corroborated) the result of Toll’s submission regarding the K principles may have been different. Both counsel said there was no finding that Mr Lee’s evidence “lacked credit”. Toll raised a “credit” issue before the Member, at least in relation to the surveillance and the bank records. But there was no analysis or finding in that respect.
In my opinion, the issue in this respect is not so much whether or not Mr Lee’s evidence lacked credit, it is rather about the existence or content of any credit or reliability findings made. The Member said of Mr Lee’s evidence “that with few exceptions”, it “lacked specificity and detail”[29] and that she did “not feel a sense of actual persuasion that the majority of the events complained of … actually occurred”.[30]
[29] Reasons, [265].
[30] Reasons, [291].
In CJZ Pty Ltd v Giant Dwarf Pty Ltd; CJZ Pty Ltd v Morrow,[31] Adamson JA (Ward P and Mitchelmore JA agreeing) stated this at [59]:
“The assessment of credibility at first instance involves a number of factors, which include consistency of the statement with other statements and with the surrounding circumstances, motive and any corroboration which may be available: see generally Onassis v Vergottis [1968] 2 Lloyds Rep 403 at 431 (Onassis)”.
[31] [2023] NSWCA 135.
The passage in Onassis (at [431]) bears repeating in the circumstances of the present case:
“Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though and untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others?”
Mr Lee’s credit, in the sense of whether he was telling the truth or not, and the reliability of his evidence, was an issue in this case. At one level, the Member’s approach in assessing it follows established general principle. But each case of course is to be determined on its own facts. This is a case of alleged psychological injury where Mr Lee clearly placed reliance on, inter-alia, his perceptions of events that actually occurred.
This is not to say it was necessary for the Member to find Mr Lee’s evidence was lacking credit in the sense of honesty or truthfulness. But given the evidentiary landscape, which the Member described as “a factual dichotomy between almost all of [Mr Lee’s] claims and the respondent’s evidence”, there at least needed to be some reasoning allowing for a likely inference that the rejection of his evidence by reference to the documentary information took into account his perceptions. I do not see any such reasoning.
The reason there needed to be an assessment of whether or not there were any relevant or operative perceptions, and if so, how if at all they might influence the injury causation analysis, is because there is evidence of, and findings that, certain relevant or operative conduct actually occurred in the workplace. Firstly, at [292]–[293] of the reasons, the Member did:
“… accept that [Mr Lee] was subjected to performance management and disciplinary action in relation to absenteeism, and … this … was the subject of regular discussion” (“the absenteeism disciplinary action”).
Secondly, in accepting that Mr Lee “did find the possibility of being made redundant or terminated stressful”,[32] it is clear that the Member accepted the reality of the redundancy and/or termination event(s). Then a brief conclusion immediately follows, appearing to circumscribe the effects of such stress falling short of constituting a relevantly significant causal “factor to the contraction of his psychological condition”.
[32] Reasons, [297].
There may be some overlap between the absenteeism disciplinary action and the redundancy/termination event(s). However, in the context of identifying the “[real] events” relied on by Dr Khan giving his opinion, twelve “events” are listed, including the absenteeism disciplinary action, and then, as a separate “event” Mr Lee “being threatened with the termination of his employment”.[33] These are at least some of the things that needed consideration in the context of Mr Lee’s perceptions – in relation to “the real events” referred to in pars [86]–[87] above.[34]
[33] Reasons, [249].
[34] See also the matters listed at reasons, [251].
Again, “so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events”.[35] I appreciate the Member was not satisfied that Mr Lee was “bullied, harassed or the subject of intimidating, threatening, offensive or racist comments”, but this was not assessed in the context of whether there were, and the extent of, any relevant perceptions, be they “flawed” or not. While these terms are only labels or conclusions, they may or may not be still relevant in the sense of being informed by the matters noted at reasons [249] and [251] – as long as they are considered as perceptions, on the basis of and resulting from real events or conduct – in this case, the disciplinary action and or redundancy/termination aspects.
[35] K, [52].
The reasons refer to the “inadequate detail” in relation to bullying and harassment instances and a “lack of evidence” in relation to “significant personal stressors that are temporally relevant and which [Mr Lee] described as causally related to his psychological symptoms and absences from work to his general practitioner, Ms Khan and his supervisors”.[36]
[36] Reasons, [294]–[296].
In these passages, the Member also commented on the “disciplinary action [Mr Lee] was subjected to” being inadequately addressed in the lay evidence and treating medical evidence and inaccurately represented in the history recorded by Dr Khan. Such reasoning only heightens my concern that Mr Lee’s perceptions were not taken into account in relation to the disciplinary action because they are restricted to objective analysis of documents. As the Member earlier noted:
“A worker’s reaction to the events will always be subjective and will depend upon his or her personality and circumstances”.[37]
[37] Reasons, [242].

Thus, I find the Member has erred at [293] by not considering Mr Lee’s alleged subjective perceptions in relation to the disciplinary action, including whether, and if so how, those perceptions influenced the injury causation assessment. If that is wrong, I find there is at least no adequate reasoning to show otherwise.
Mr Lee’s perceptions about real events were clearly part of his case and were also raised in other parts of the submissions[38] – in relation to Grounds 10 and 11. However, this error comes within the scope of, and is sufficiently covered by, Ground 10 and paragraph [122] of Mr Lee’s submissions. Toll had the opportunity of dealing with this point and made submissions in relation to it both in writing and during the brief oral hearing. I do not think it necessary or appropriate to stray into Ground 11 given that it is formulated in such a way that conflates questions arising in relation to the evidence of both Mr Lee and Ms Khan, and my following comments.
[38] See appellant’s submissions, [122], [128], [130].
I also find the following further error at [293] of the reasons. After having accepted Mr Lee was “subjected” to the disciplinary action, the reasoning immediately following is that the Member was:
“… not satisfied that this was unfounded, unwarranted or constituted a form of bullying or harassment. Nothing in the contemporaneous text message and email correspondence or the employer’s records … appears unreasonable. [Mr Lee’s] own evidence does not suggest that such action was unreasonable, because it is not addressed in his own evidence”.
The reasonable actions of Toll were not relevant to the injury causation analysis. They were relevant to issues under s 11A of the 1987 Act and that issue was not dealt with. In my opinion, this constitutes an error of fact and law and again falls within Ground 10. Again, it is important, in a case where psychological injury is alleged, there be consideration of the worker’s perceptions in relation to events or conduct that actually occurred in the workplace.
It is necessary to consider whether these are operative errors. In Workers Compensation Nominal Insurer v Al Othmani,[39] Bathurst CJ (McColl JA agreeing) stated that:
“The critical question … is whether the errors infected the … ultimate conclusion; that is whether they were operative errors in the sense discussed by Basten JA in Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339 [Akora].”
[39] [2012] NSWCA 45 (Al Othmani), [92].
In Akora, Basten JA (at [17]), after having identified error, relevantly stated:
“… it was not a material or operative error. If that conclusion were removed from the Deputy President’s reasons, it is sufficiently clear that he would still have set aside the decision of the arbitrator for the reasons articulated ...”.
In my opinion, each of the errors I have found above are operative errors (the operative errors) in the sense described in Al Othmani and Akora, for the reasons that follow. However, none of what follows is intended to inform anything other than to firstly enable or support the finding of error, and secondly, whether the errors I have found are operative errors. Otherwise, I express no opinion in relation to the Member’s reasoning.
At [291] of the reasons, the Member said she was not actually persuaded “that the majority of the events complained of … actually occurred”. However, a lack of actual persuasion that the majority of events actually occurred does not necessarily equate to the remaining minority of events not having the capacity to support a finding of injury under s 4, or the employment (through that minority of events) being a substantial contributing factor to that injury under s 9A of the 1987 Act. To the contrary, it is not too difficult to imagine many given situations where a minority of influences/factors produce a major contribution to a result. In the present situation, it is clear that at least the absenteeism disciplinary action “event” or “conduct” is an important factor in terms of contribution to Mr Lee’s “psychological symptoms”. For example, Dr Kaplan stated in his first (6 October 2021) report (page 6):
“Mr Lee does not have a psychiatric injury in which his employment was the main contributing factor. The claim that he was subjected to bullying appears to be retrospective, his employers were within their rights in following approved steps to warn him about his performance and the other problems in his life, which are ongoing, are listed above”.[40]
[40] Reply to Application to Resolve a Dispute (reply), p 409.
In his second report (9 November 2021, page 3), after having the opportunity of considering reports from Dr Khan and the “Surefact” investigator and being requested to consider whether such material changed his earlier opinion, he opined, inter-alia:
“Both his personal problems and the disciplinary issues at work could explain the need to seek help”.[41]
[41] Reply, p 413.
While Dr Kaplan does not precisely identify what these “disciplinary issues” are, the history he recorded in his first report (page 2) refers to counselling “due to unacceptable unplanned absenteeism going back to July 2015”, then “counselled again about absenteeism and punctuality from 6 September to 6 December”, then “[i]n January 2020, he was put on a performance improvement plan”, and finally, “[o]n 19 January, he was sent a final warning letter regarding attendances and punctuality, to be reviewed in the following month”.
There does not appear to be any, at least clear, other historical matter referred to in Dr Kaplan’s reports that easily fits within the description of “disciplinary issues at work”. He clearly views the disciplinary action factor as an important one in terms of the causation of the Adjustment Disorder with depression and anxiety that he found Mr Lee suffered.
While Dr Khan’s opinion regarding causation of injury uses the labels bullying and harassment and intimidation for some of the alleged “events” or “conduct”,[42] it appears that he also understood from the history that the disciplinary action similarly fell within those labels or description. For example, he wrote:
“Mr Lee reflected on how Mr [Perkiss] would repeatedly make comments about approved leave he would arrange. His employer subjected him to performance management and disciplinary action in relation to this alleged absenteeism but Mr Lee maintained that his leave had been pre-approved. On the last day that Mr Lee worked, Mr [Perkiss] reportedly made the comment about how if he took another day off work, ‘It’ll be the last day you ever have off’. He was threatened with the termination of his employment. Mr Lee had leave planned for the following week, which had been approved”.[43]
[42] ARD, p 111.
[43] ARD, p 111, final paragraph.
It can be inferred from Dr Khan’s opinion that the disciplinary action aspect of the “events” or “conduct” is an important factor contributing to Mr Lee’s psychological state or injury. If one then takes into account Dr Kaplan’s even clearer opinion about this, it is my opinion that the operative errors did infect the ultimate conclusion by the Member. Both errors essentially relate to the treatment of the most important category of evidence in the case – Mr Lee’s evidence. They thus produce a systemic infection because the extent of the non-acceptance of Mr Lee’s evidence directly runs through and adversely affects the non-acceptance of the other witnesses in the case, including Dr Khan, Ms Khan and Mr Apulu.
Applying the test used by Basten JA in Akora, if the operative errors were removed from the Member’s conclusions, it is not at all clear that the Member’s ultimate conclusion would be the same. In other words, the operative errors could reasonably be supposed to have affected the result of the hearing.[44] My opinion about this is only confirmed upon consideration of any contribution to that state or injury from the termination/redundancy aspect referred to in the reasons at [297].
[44] Conway v R [2002] HCA 2, [29].
The Member accepted (at [297]) that Mr Lee “did find the possibility of being made redundant or terminated stressful and may have experienced psychological symptoms associated with coming to work in the late part of 2020 and early 2021” – but then immediately dismissed such symptoms as not representing “‘a substantial contributing factor’ or ‘the main contributing’ factor to the contraction of his psychological condition”. In my opinion, it cannot be said that a wider or less limited acceptance of Mr Lee’s evidence would have made no difference to the causation conclusion (if his perceptions were taken into account).
Accordingly, I uphold Ground 10. Because the operative errors did infect the Member’s ultimate conclusion in a systemic way, the whole of the Certificate of Determination is revoked.
I have formed the view that the Certificate of Determination should be revoked and the matter remitted to a different Member. It is regrettable that I cannot do more to quell the dispute at this stage. However, it is near impossible, or at least potentially unsafe, for me to attempt to re-determine the matter or any part of it. Upholding the appeal means the matter needs to return at least for a further hearing on the s 11A issue as this was not dealt with in the reasons and was not part of the appeal. I then do not have jurisdiction to deal with that issue.[45]
[45] Ballina Shire Council v Knapp [2019] NSWCA 146.
Further complications arise also because the facts and issues in the “injury” aspect of the dispute are inextricably entwined, or substantially overlap, with the facts and issues in the s 11A aspect. A credit issue also persists with at least Mr Lee’s evidence, and surveillance film was run in the hearing when both Mr Lee and Ms Baird gave oral evidence and were cross-examined. Toll submitted at the brief oral hearing that if error is found “it all has to go back and all issues have to be tried afresh”.[46] I agree with this submission and it was ultimately submitted for Mr Lee that he agreed with this approach.
[46] T20.4–5.

DECISION

Amend the name of the respondent wherever it appears to Toll Transport Pty Ltd.
The Certificate of Determination dated 2 May 2022 is revoked.
Remit the matter for re-determination afresh by a different member.

Michael Perry
ACTING DEPUTY PRESIDENT

1 September 2023