Rail Corporation New South Wales v Hunt

[2009] NSWWCCPD 114

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			Rail Corporation New South Wales v Hunt [2009] NSWWCCPD 114
APPELLANT:			Rail Corporation New South Wales
RESPONDENT:			Kimberly Hunt
INSURER:			Self insured
FILE NUMBER:			A1-8303/08
ARBITRATOR:	Mr G McIlwaine
DATE OF ARBITRATOR’S DECISION:			16 March 2009
DATE OF APPEAL HEARING:		9 September 2009
DATE OF APPEAL DECISION:			15 September 2009
SUBJECT MATTER OF DECISION:			Psychological injury; disease; section 151A of the Workers Compensation Act 1987; worker recovered damages under the Anti-Discrimination Act 1977 for three specific incidents of sexual harassment on 31 May 2004, 9 July 2004 and 3 February 2005; whether barred from recovering workers compensation in a claim for psychological injury as a result of sexual harassment, victimisation and ostracism between May 2004 and 28 March 2006
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			Oral
REPRESENTATION:			Appellant:	Mr Beauchamp, instructed by Sparke Helmore Lawyers
Respondent:	Mr Stockley, instructed by Carroll & O’Dea
ORDERS MADE ON APPEAL:			For the reasons given in this decision, paragraphs 1 to 13 of the Certificate of Determination of 16 March 2009 are revoked and paragraphs 14 to 19 are confirmed.
The appellant employer is to pay the respondent worker’s costs of the appeal, which I assess at $2,200.00 plus GST.

INTRODUCTION

1. The principle issue in this appeal is whether a worker who recovered damages against her employer under the Anti-Discrimination Act 1977 for three specific incidents of sexual harassment is entitled to recover compensation for a psychological injury received as a result of multiple incidents of harassment over a 23 month period up to 28 March 2006.

BACKGROUND

1. The worker, Kimberly Hunt, started work with Rail Corporation New South Wales (‘RailCorp’) in 1988, when it was known as the Railway Commission of New South Wales.  In July 2000 she was appointed Manager, Train Crew Assignment Centre.  She was the first female to be appointed to that position.  Ms Hunt alleges that in that position she was subjected to sexual discrimination, sexual harassment and victimisation by a number of her co-workers from May 2004 until 28 March 2006.

1. Her solicitors, Carroll & O’Dea, claimed lump sum compensation on her behalf by letter dated 27 November 2007.  Through its solicitors, Sparke Helmore, RailCorp disputed liability in a series of letters commencing on 6 March 2008.

1. In an Amended Application to Resolve a Dispute (‘the Application’) filed on 5 December 2008, Ms Hunt claims weekly compensation in the sum of $1,886.44 per week from 1 April 2007 to date and continuing together with hospital and medical expenses in the sum of $11,175.94 and $20,000.00 in respect of a 15 per cent whole person impairment and $45,000.00 in respect of pain and suffering.  The Application describes her injury as “major depressive episode with anxiety and/or adjustment disorder with depressive and anxious mood.  Part 4 of the Application states:

“Between May 2004 and 29 March 2006, the Applicant was subjected to ongoing sexual harassment, victimisation and ostracism with lack of support from her superiors. As a result of the nature and conditions of her employment, the Applicant contracted a disease by gradual process, namely major depressive episode with anxiety and/or an adjustment disorder with depressive and anxious mood. Further, in the alternative, the nature and conditions of the employment as described above, resulted in the aggravation, acceleration, exacerbation and/or deterioration of a disease namely major depressive episode with anxiety and/or adjustment disorder with depressive and anxious mood. The deemed date of injury alleged is 29 March 2006 which was the time of the Applicant’s incapacity. Alternatively, the deemed date of injury in respect of the claim for lump sum compensation is 27 November 2007 upon which date the Applicant made a claim for whole person impairment pursuant to section 66 and 67 of the Workers Compensation Act 1987.”

1. In 2005 or 2006, Ms Hunt claimed damages under the Anti-DiscriminationAct 1977 in respect of nine incidents of sex discrimination, sexual harassment and victimisation that occurred at work with RailCorp between 1 September 2004 and 13 April 2006. The Administrative Decisions Tribunal (‘the Tribunal’) heard the claims in May and June 2006 and delivered its decision on 24 July 2007. It awarded Ms Hunt $20,000.00 damages in respect of three incidents of sexual harassment.

1. In or about April 2007, the parties executed a Deed of Release in which Ms Hunt agreed to release RailCorp from all claims she had against it arising out of or incidental to or associated with her employment with it, but excluding any workers compensation claims.

1. In its letter of 16 September 2008, Sparke Helmore stated that liability was declined on the following bases:

   “(1)   The injuries upon which you seek to rely in support of your claim are injuries in respect of which you obtained damages pursuant to a decision of the Administrative Decisions Tribunal on 24 July 2007 or in the alternative received damages pursuant to a Deed of Release entered into between the parties.  Accordingly, pursuant to the authority of Burns v Gladesville Bowling and Sports Club Ltd (2000) 20 NSWCCR 648, your claim is not maintainable by virtue of section 151A(1) of the Workers Compensation Act 1987 (as amended).

   (2)     Your claim for weekly benefits has not been duly made as you have not provided proper particulars or specified under what section of the Act your claim is brought.

   (3)     Furthermore, it is noted that you claim weekly benefits from 1 April 2007 to date and continuing.  You have not, however, provided copies of WorkCover certificates or medical evidence that demonstrates your incapacity for work as alleged or at all.

   (4)     It is also submitted that you are not as incapacitated for work as alleged or at all as you have demonstrated an ability to perform work duties for a period in 2007, during which you purchased and ran a café.”

2. By letter dated 31 March 2008, Sparke Helmore also disputed the quantification of the worker’s claim for lump sum compensation.

1. In a Reply filed 7 November 2008, RailCorp confirmed the issues in dispute to be those noted in the above correspondence.

1. The Commission listed the matter for conciliation and arbitration on 18 February 2009.  On that day the matter proceeded with lengthy submissions being made by counsel for each of the parties.  In a reserved decision delivered on 16 March 2009, the Arbitrator found in favour of Ms Hunt on all issues and the Commission issued a Certificate of Determination in the following terms:

“The Commission determines:

Findings:

1.          Ms Hunt suffered a psychiatric injury arising out of or in the course of

her employment with the respondent on 29 March 2006. 

2.          Ms Hunt’s employment with the respondent was a substantial

contributing factor to the psychiatric injury pursuant to Section 9A of
           the Workers Compensation Act 1987. 

3.          Ms Hunt suffers from a psychiatric disease, which satisfies this

requirement of the definition of “injury” in Section 4(b) (ii) of the
Workers Compensation Act 1987.

4.          The deemed date of injury is 29 March 2006.   

5.          The nature and conditions of the employment of Ms Hunt with the

respondent between 1 March 2005 and 29 March 2006 aggravated,
           accelerated, exacerbated or deteriorated the underlying disease and
           was a contributing factor to the aggravation, acceleration, exacerbation
           or deterioration. 

6.          At all relevant times Ms Hunt has been totally incapacitated for the

purposes of work. 

7.          Ms Hunt is unfit for any work for which she is trained, qualified, or

can safely perform or that is reasonably available to her. 

8.          I am satisfied on the balance of probabilities that the Deed of Release

between the parties was executed by Ms Hunt on 28 March 2007 and
           by the remaining parties not later than the early part of April 2007. 

9.          The Deed of Release specifically preserves any rights Ms Hunt has

under the relevant Workers Compensation legislation. Section 254
Workplace Injury Management and Workers Compensation Act 1998
           is also applicable.

10.        Ms Hunt is not disentitled to weekly payments of compensation

because of an unreasonable failure to comply with the requirements of
           workplace injury management.

11.        Ms Hunt is not disentitled to weekly payments of compensation and

the other benefits of the legislation because of the operation of Section
           151A (1) and (2) Workers Compensation Act 1987. 

12.        Monies paid to the applicant under the Deed of Release do not amount

to damages in respect of an injury pursuant to Section 151A of the
Workers Compensation Act 1987. 

13.        The respondent is responsible for the Section 60 expenses of Ms Hunt

from 29 March 2006 to date and continuing.

Orders:

14.        Respondent is to pay the applicant weekly benefits of compensation

from 1 April 2007 to date and continuing at the following rates:

a.   From 1 April 2007 to 30 September 2007 at the rate of $1,535.90 (26 weeks – Section 35 cap) per week.

b.   From 1 October 2007 to 31 March 2008 at the rate of $522.60 (no dependant spouse, 2 dependant children).

c.   From 1 April 2008 to 30 September 2008 at the rate of $532.90.

d.   From 1 October 2008 to date and continuing at the rate of $542.10.

15.        Respondent is to pay the applicant’s reasonable and necessary medical

and related expenses pursuant to Section 60 of the Workers
           Compensation Act 1987 from 28 March 2006.

16.        Application is to be referred to an Approved Medical Specialist for

assessment of the whole person permanent impairment of the
           applicant in relation to her psychiatric injury, which dates from 29
           March 2006.

17.        The documents to be referred to the Approved Medical Specialist are

the documents as set out in paragraph 21 of these reasons with the
           exception of the extract from the transcript of proceedings contained
           in the Reply being only for the days 29 and 30 May 2006.

18.        File is remitted to the Registrar for necessary referral to an Approved

Medical Specialist to be selected by her after giving the parties the
           opportunity of first agreeing on the Psychiatrist to be utilised.  The
           Approved Medical Specialist selected by the Registrar is to be given a
           copy of these Statement of Reasons and the decision dated 24 July
           2007 by the Administrative Decisions Tribunal of NSW in the matter
           of Hunt v Rail Corporation of NSW.  Leave is granted to the parties to
           approach the Registry for further consideration by the Arbitrator of the
           issue as to whether it is necessary for the Approved Medical Specialist
           to be given the complete transcript of the five days (5) of the hearing
           before the Administrative Decisions Tribunal of NSW.

19.        Respondent is to pay the applicant’s costs as agreed or assessed.  The

proceedings involved questions of legal advice, injury together with a
           difficult factual situation when the earlier decision of the
           Administrative Decisions Tribunal of NSW was taken into account.
           The Commission required the applicant to clarify her claim and to
           provide an Amended Application to Resolve a Dispute.  The issues in
           my view were quite complex.  The circumstances of these proceedings
           satisfy the criteria for the matter to be certified as complex and it is so
           certified.  Accordingly, in any assessment or agreement it is to be
           taken into account that both parties are to receive 30% uplift in their
           costs and that the matter is certified as complex.”

1. By an appeal filed on 9 April 2009, RailCorp seeks leave to appeal the Arbitrator’s determination.

LEAVE TO APPEAL

Monetary Threshold

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

1. It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.

Time

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. I grant leave to appeal.

THE EVIDENCE

1. The worker relies on her statement of 24 September 2008 which may be summarised as follows:

(a)in July 2000 Ms Hunt became the first woman to be appointed as manager at the Training Crew Assignment Centre.  There were a number of work related problems that significantly impacted upon her from an emotional perspective;

(b)on 31 May 2004, graffiti was found in the men’s toilets at the Train Crew Assignment Centre that made a specific and graphic reference to Ms Hunt, which she found extremely offensive and vulgar.  Ms Hunt complained to the Workplace Conduct Unit and identified a Mr Southan as the person she believed to be responsible.  Investigations into this incident were not handled in a timely manner;

(c)on 9 July 2004, more graffiti was found in the men’s toilets that denigrated Ms Hunt and her husband, who was also an employee with RailCorp.  She found this graffiti even more disgusting and distressing than the first graffiti and she made a further complaint;

(d)on 29 July 2004, an investigation report concluded that no further action could be taken about the graffiti.  Though it was acknowledged that Mr Southan was possibly the author of some of the graffiti, he was not interviewed over the matter;

(e)on 19 August 2004, Mr Southan made a complaint about Ms Hunt’s management style.  Over the previous two years Ms Hunt had spoken to Mr Southan on at least four occasions about his work performance and the deterioration in her working relationship with him.  Mr Hill convened a meeting between himself, Ms Hunt and Mr Southan on 26 August 2004. Ms Hunt alleges, consistent with her evidence before the Tribunal, that Mr Hill said to Mr Southan “you didn’t write that graffiti then” and left it at that.  Mr Hill gave evidence before the Tribunal that he said “did you write the graffiti?” to which Mr Southan replied “no”.  Ms Hunt felt that Mr Southan’s complaints were made to further harass her;

(f)on 8 October 2004, Mr Southan and another employee, Mr Reeves, made a further complaint about Ms Hunt’s management style.  She believes these complaints were baseless and they were made for the purpose of harassing her;

(g)on 27 and 28 September 2004, a talkback radio host made comments on air as a result of documents he received from RailCorp.  He specifically named Ms Hunt and made comments, heard by the Train Crew Assignment Centre staff, that were derogatory and made Ms Hunt feel humiliated.  She felt this was a form of harassment that would not have occurred if she were male.  RailCorp conducted no investigations into the source of the leaked documents and took no steps to counsel staff about the incident;

(h)on 16 December 2004, Ms Hunt became aware that a Mr Setterini would be joining the Train Crew Assignment Centre.  She expressed concern that his appointment was another attempt to pressure her into accepting another position, but received no response.  Mr Setterini commenced a review of the Train Crew Assignment Centre, but Ms Hunt was not consulted in the course of that review even though she was the manager. She felt this was further pressure being applied to her to accept another position;

(i)on 3 February 2005, Ms Hunt returned to her office to find an intra-office envelope with her name on it containing a pornographic magazine under the door.  She was upset and showed the envelope to Mr Masters, a team leader.  She attended a meeting that evening and approached a group of people that included Mr Greenhill, Manager Industrial Relations, Mr Dalton, Mr Cowan, Ms Buvet and Mr Williamson, before the meeting commenced.  She said “this is what I have to put up with on a daily basis”.  Mr Greenhill allegedly replied “what a waste of money.  Maybe we can keep this [the pornographic material] once it’s all over.”  As he said this, he and Mr Dalton allegedly laughed.  The matter was referred to the Workplace Conduct Unit on 28 February 2005.  Ms Hunt complains that the investigation was not conducted in a timely manner and was not thorough, as more staff could have been interviewed;

(j)on 4 March 2005, more graffiti appeared on the wall of the men’s toilets at the Train Crew Assignment Centre.  The graffiti was again derogatory of Ms Hunt and her husband;

(k)on 21 March 2005, graffiti disparaging of Ms Hunt was found in the women’s toilets;

(l)on 13 September 2005, more offensive graffiti relating to Ms Hunt appeared in the men’s toilets at the Train Crew Assignment Centre.  Initially, Ms Hunt was told there would be no investigation into this incident, but in late October 2005 she was informed that there would be an investigation and a delay had arisen because of a miscommunication;

(m)on 16 February 2006, more graffiti referring to Ms Hunt was found in the women’s toilets.  By this time, closed circuit televisions had been installed, but the footage could not be retrieved.  Ms Hunt found each episode of graffiti to be “vulgar, disgusting and humiliating”;

(n)on 6 March 2006, a RailCorp employee Mr Irving, went out drinking after completing his night shift and attended drunk at Ms Hunt’s office at midday looking for her “with an aggressive manner”.  He was apparently upset over a work restructure that was not Ms Hunt’s responsibility.  Though Ms Hunt was not at work on the day Mr Irving came to her office (see Tribunal transcript 30 May 2006 at 42.24), she became fearful for her safety, especially as she had previously complained about Mr Irving’s behaviour in 2003.  Mr Irving was subsequently relocated to another area in RailCorp;

(o)on 22 March 2006, Ms Hunt was told by Mr Cowan that she would be moved to the RailCorp building in Lee Street Sydney.  She expressed her concern that Mr Irving, Mr Southan and Mr Hill all worked at that address.  Though the move was made to increase her safety, she felt that she was not receiving appropriate support.  At a meeting on 28 March 2006 with Mr Cowan, Mr Masters and Mr Williamson, Ms Hunt was directed to move to Lee Street the next day, despite expressing her concerns.  Ms Hunt felt this was “just another example of the victimisation [she] suffered during [her] employment with RailCorp”.  Ms Hunt went on stress leave after the meeting on 28 March 2006 and did not return to work until February or March 2007, when staff refused to work while she was in the building.  She states that her workplace had developed into “a hostile work environment that was created by the cumulative effect of the incidence of graffiti that targeted [her] personally, the failure of management to deal with [her] complaints in a timely manner, the incident with the pornographic magazine, the talk-back radio incident and the continual pressure on [her] to move to another position outside of the Train Crew Assignment area”;

(p)her return to work was made very difficult by RailCorp in that it did not provide suitable duties in a timely fashion or provide duties that were of a similar nature to her substantive position, which was abolished whilst she was on workers compensation;

(q)Ms Hunt last worked for RailCorp on or about 29 March 2007, having been back at work for four to six weeks after having been off work from 29 March 2006.  She accepted a voluntary redundancy under a Deed of Release executed by her at either the end of March or the beginning of April 2007;

(r)after her redundancy, her condition worsened;

(s)Ms Hunt saw Dr Snowden, psychiatrist, for RailCorp in June 2006 and January 2008;

(t)due to her workplace difficulties, Ms Hunt’s anxiety levels have increased and she feels constantly depressed and sad, helpless and powerless.  The sexual harassment, sexual discrimination and victimisation by a number of her male colleagues significantly impacted on her psychological well being.  Management was non-supportive of her situation and there was a tendency to ostracise her in the work setting;

(u)her complaints of sexual harassment were upheld in the Tribunal in respect of the graffiti incidents on 31 May 2004 and 9 July 2004 and in respect of the pornographic magazine incident on 3 February 2005, and she received $20,000.00 in damages;

(v)she purchased a small café in Pyrmont, but was not fit to engage in work because she was “too psychologically affected to do the work in the coffee shop” and closed it after about three months.  As at September 2008, Ms Hunt was enrolled in a Bachelor of Psychology at Sydney University, but had been unable to attend since March 2006;

(w)she continued to feel depressed, experiencing interrupted sleep patterns, feeling isolated and at a loss in regard to her future.  Prior to her work related difficulties, she was in good physical and emotional health and has not previously suffered a psychological illness.  She is now persistently depressed, despairing, irritable and anxious.  She takes luvox, an anti-depressant, stilnox, a hypnotic, and serepax for anxiety as well as valium, reductil and seroquel; and

(x)her marriage of 16 years had been happy until her harassment at RailCorp.  As at September 2008 she was separated from her husband.  She feels that the separation was a response to her work related difficulties.

Medical evidence

1. Ms Hunt attended on her general practitioner, Dr Foltin, on 25 August 2004 complaining of being stressed and depressed due to an “unbearable situation at work” where she had been harassed by another worker who was writing vulgar graffiti about her on toilet walls which caused her embarrassment and humiliation.  She complained to management, but everything was ignored and she was told to stop complaining.  Ms Hunt felt so depressed that she could not concentrate, suffered from insomnia and mental exhaustion, and started getting chest pains due to stress.  Dr Foltin certified Ms Hunt unfit for work from 30 August 2004 until 3 September 2004.  Ms Hunt returned to work on selective duties on 4 September until 30 September 2004.  She returned to her normal duties on 1 October 2004, though “she was not mentally fit to return to work but was forced [to do so] because her payment was stopped”.

1. Dr Foltin recorded that Ms Hunt was seen by a Dr Samuel, psychiatrist, on 13 September 2004 who was of the opinion that she was “not suffering from any mentally affected [sic] disorder and that she [did] not require any treatment and certified her fit to return to work”.

1. Following her return to work, Ms Hunt regularly consulted Dr Foltin about her depression and anxiety and required anti-depressants and sleeping tablets.

1. Ms Hunt consulted Michelle Everett, clinical psychologist, in September 2004 and consulted her at least monthly over the following year.  In her report of 1 September 2005, Ms Everett recorded a “consistent account of the circumstances in her workplace, which have caused her considerable distress over time”.  Those circumstances included the incident involving the pornographic material and obscenities being written about her in toilets located in the workplace.  Ms Hunt exhibited and reported symptoms of anxiety and stress including poor sleep, exhaustion, loss of appetite, irritability, anhedonia, social withdrawal and heightened anxiety.  She expressed her fear that further harassment and disadvantage may be more likely if she were to proceed with formal complaints about the harassment and the internal mishandling of the events.  Ms Everett concluded that the worker faced significant psychological challenges in adjusting to an apparent lack of protection and support from RailCorp.

1. In November 2005, Ms Hunt came under the care of Ms Merrells, clinical psychologist at the same practice as Ms Everett.  Ms Merrells first saw the worker on 1 November 2005, the day after an occupational health and safety meeting at work when Ms Hunt had been handed a report by the union, the existence of which had previously been denied by management.  Ms Hunt was shocked that the report was produced by her union and said that she had been “let down” by them.  She described the experience as “the final humiliation”.

1. Under “Presenting Problems”, Ms Merrells recorded that the worker’s mood was flat and that she appeared “exhausted and deeply demoralised”.  Ms Hunt was teary in the session and said that she was physically sick and experienced a sense of dread at the prospect of going to work.  She complained of regular headaches and often felt “faint and sweaty at work”.  Until 31 October 2005, Ms Hunt said she had been occasionally “restless and wound up” at work, but now felt on edge “all the time”.  She experienced a loss of confidence and wanted “to escape”.  She took serepax to cope. Ms Merrells diagnosed the worker to be experiencing a “reactive depression (severe range)” and also fulfilled most criteria for a generalised anxiety disorder.  Ms Merrells added:

“Placed in the context however of Ms Hunt’s report of harassment at work (ten episodes of which have involved sexually aggressive graffiti – some carved into woodwork) Ms Hunt’s problems can be best understood as a response to chronic and traumatic stress.  Her desire to avoid the workplace (i.e. take long service leave or holidays in order to have ‘a break’) is further indicative of a traumatic stress response.”

1. From examination of Ms Everett’s file it appeared to Ms Merrells that the worker had experienced an escalation of symptoms.  In December 2004 Ms Hunt reported symptoms that placed her in the “mild range of depression”, but 11 months later when seen by Ms Merrells, her score on the same scale had doubled, placing her in the “severe range for symptoms of depression”.  Ms Merrells considered that the passage of time and the lack of resolution of Ms Hunt’s workplace issues had contributed to her escalating condition.  The occupational health and safety meeting on 31 October 2005 was clearly a trigger for Ms Hunt’s further distress.  She thought that the worker had shown a high level of resilience and determination to remain at work despite “ongoing acts [of] harassment designed to intimidate her.”

1. On referral from Dr Foltin, Ms Hunt came under the care of Dr Selwyn Smith, consultant psychiatrist, on 4 April 2006.  He reported to Dr Foltin on 6 April 2006 that Ms Hunt reported a number of significant work-related difficulties that appeared to be linked to harassment.  She presented him with documentation relating to graffiti written by one of her co-workers.  She had been off work for two weeks in August 2004, but returned to work and “continued in the harassing environment”.  He added:

“Because of a recurrence of her symptomatologies and exposure to ongoing harassment, she has submitted a further WorkCover claim dated 29 March 2006.

Kimberly’s symptomatologies are compatible with the diagnosis of Adjustment Disorder with Depressed and Anxious Mood in response to the work situation.  She has now been placed in a work environment which is, from her perspective, quite intolerable.  I have reviewed the documentation and her credibility in this regard is good.”

1. Dr Smith noted that there was no family history of emotional disorder.  Apart from a WorkCover claim approximately 10 years ago when she was also bullied and harassed and off work for several days, Ms Hunt had not submitted further WorkCover claims. 

1. Dr Smith found the worker to be anxious and depressive in response to her work circumstances and he issued her with a WorkCover certificate declaring her unfit for work.  He also prescribed stilnox and recommended that she continue serepax on an as required basis.

2. On 20 September 2007, Dr Smith provided a medicolegal report to Carroll & O’Dea.  Since April 2006, he had examined Ms Hunt on 34 occasions.  He recorded the following history:

“Ms Hunt reported to me a number of significant work-related problems that significantly impacted upon her from an emotional perspective.  It related to sexual discrimination, sexual harassment and victimisation by a number of male co-workers.  At the time of my initial examination Ms Hunt also presented me with documentation pertaining to graffiti that she was strongly convinced had been drawn by one of her co-workers.  She had in response to the impact such behaviour had on her complained to her managers.  She felt there was a non-supportive response with a tendency to ostracise her in the work setting.  In that regard Ms Hunt had submitted a workers compensation claim and at the time of my examination was also awaiting a decision from the Administrative Decisions Tribunal.”

1. Dr Smith noted that Dr Snowden had assessed the worker and, against a background of work-related difficulties, supported her claim. 

1. At the time of his initial examination, Dr Smith felt that the worker’s psychological symptomatologies were a “direct outcome of her work-related difficulties, and in particular the failure of management to provide her with a safe and effective work environment” (page two).  He referred to the several complaints levelled against her by an individual she suspected had been the originator of the offensive graffiti.  She was desirous of reintegrating at work but there was significant opposition to that, which caused her further distress.  When she did reintegrate at work, the individuals involved refused to work with her and she appeared to be powerless to ameliorate the situation.

1. A decision was subsequently handed down in her favour and the conflict resolved and she left RailCorp.  With the money from her settlement, Ms Hunt established a small coffee shop, but reported little joy from the work she was doing.  She described increasing depression, interrupted sleep patterns and feeling increasingly isolated.  She felt at a loss in regard to her future.  It was Dr Smith’s opinion that Ms Hunt had significantly deteriorated from an emotional point of view.  Previously she had maintained a stoic stance in regard to the extensive litigation and assault on her character.  She emotionally decompensated when she left RailCorp and at her most recent examination “demonstrated diagnostic criteria for a Major Depressive Episode” (page three). 

1. On the question of causation, Dr Smith said (at page four):

“In my opinion the frequent work related difficulties that Ms Hunt had experienced in her work environment and in particular her ongoing sexual harassment, victimisation and ostracism by her employers against a background of what she felt was an unsupportive stance by her superiors resulted in excessive anxiety and an apprehensive expectation of further harm befalling her.  She was having difficulty controlling her worry.  She was restless, keyed up and on edge.  She reported fatigability.  There was accompanying difficulty in concentrating and irritability.  She was experiencing sleep disturbances.”

1. Following his initial examination, Dr Smith felt that Ms Hunt’s condition had been substantially contributed to “by her work circumstances”.  Ms Hunt partially improved when absent from work, but wanted to re-engage at work.  The court settlement resulted in her having to resign and that resulted in further decompensation with a marked deterioration in mood.  He stated (at page six) that Ms Hunt’s whole person impairment was not the result of a non work related condition and that her psychological symptomatologies were predominantly caused by her work related circumstances.  He added that her disabilities at the time of his assessments were “in direct response to her adverse work circumstances” and that work had been a substantial contributor to her emotional symptomatologies.

1. RailCorp tendered no medical evidence.

Other Evidence

1. Ms Hunt completed a workers compensation claim form on 27 May 2006 in which she gave a “Date of Accident” as 29 March 2006 and under “Place of Accident” she said “an ongoing harassment TCAC culminating in incident with sector two ops mngr”.  Under “Injury Details”, she said “coping with situation harassment & matters before ADT until incident with Bill Cowan on 29/3/06”.  Under “How did this injury occur and what were you doing at this time?” the worker recorded:

“Harassment, victimisation, intimidation to force [me] to work in an unsafe situation with hostile, threatening persons whom I have complained about, which complaints are before the ADT for hearing.”

1. In her Permanent Impairment Claim completed on 23 October 2007, Ms Hunt stated under “clarification of date of injury if required”:

“(On-going sexual harassment culminated in incident with two operation managers on 29/03/2006.  As recorded in workers compensation claim form.  I was unable to effectively return to work).

Major depressive episode as a result of continued sexual harassment dating from May 2004.”

1. Under “Actual Pain”, Ms Hunt recorded:

“There were a number of work-related problems that significantly impacted upon my psychological well-being.  This included sexual discrimination, sexual harassment and victimisation.  Although I complained to management, due to work related difficulties I was off work for two weeks in August 2004.  On my return I was exposed to an ongoing harassing environment.  Psychological treatment was required…”

THE ARBITRATOR’S REASONS

1. In a reserved Statement of Reasons (‘Reasons’) delivered on 16 March 2009, the Arbitrator noted and found:

(a)the decision of the Tribunal compensated Ms Hunt “up to and including the magazine incident of 3 February 2005” and he proposed to include the period up to 28 February 2005 as the period when “Ms Hunt does not have any entitlement to further workers compensation based on the injury found by the ADT” (Reasons, at [37]);

(b)concentrating on the period after 28 February 2005, there were seven incidents that “substantially extend the earlier matrix upon which the decision of the ADT was based” (Reasons, at [38]);

(c)Ms Hunt’s condition as described by Dr Smith, qualifies as a disease within the meaning of section 4(b)(ii) of the 1987 Act (Reasons, at [42]);

(d)there was an aggravation of a disease “caused by the nature and conditions of her employment after 28 February 2005” (Reasons, at [55]);

(e)that Ms Hunt had also suffered an acceleration of her disease contributed to by her employment after 28 February 2005 (Reasons, at [56]);

(f)Ms Hunt became incapacitated on 29 March 2006 “with respect to the subsequent injury” (Reasons, at [62]);

(g)Ms Hunt’s psychological injury arose in the course of her employment and there was a causal connection with such employment (Reasons, at [70]);

(h)Ms Hunt was totally incapacitated for work (Reasons, at [79]) and entitled to weekly compensation from 1 April 2007, as per the draft orders filed by Ms Hunt’s solicitor on 16 February 2009;

(i)the money paid to Ms Hunt under the Deed of Release did not amount to “damages” pursuant to section 151A of the 1987 Act (Reasons, at [104]);

(j)based on his examination of events since 1 March 2005, the Arbitrator came to a “similar consideration” to that reached by the Tribunal (at [216] of its decision), namely that Ms Hunt’s workplace was “unhappy, stressful and dysfunctional in a way that affected many employees within the Train Crew Assignment Crew” [sic], though he did not base his decision on this finding (Reasons, at [118]);

(k)the injury for which the Tribunal awarded damages was “depression in the mild range with a generalised disorder” caused by the cumulative effect of the graffiti incidents on 31 May 2004 and 9 July 2004 and the magazine incident on 3 February 2005 (Reasons, at [122]) and section 151A proscribes Ms Hunt from being entitled to any further compensation under the 1987 Act “in respect of the injury concerned” (Reasons, at [123]), and

(l)Dr Smith’s opinion justifies a conclusion that Ms Hunt’s present condition is not the “injury concerned” within the meaning of section 151A of the 1987 Act and that section is not a bar to the present proceedings concluding in Ms Hunt’s favour.

ISSUES IN DISPUTE

1. The issues in dispute in the notice of appeal are whether:

(a)Ms Hunt suffered a psychiatric injury on 26 March 2006 [sic, 29 March 2006];

(b)if Ms Hunt suffered a psychiatric injury, such injury was by way of psychiatric disease pursuant to section 4(b)(ii) of the Workers Compensation Act 1987 (‘the 1987 Act’);

(c)work was a substantial contributing factor to Ms Hunt’s injury;

(d)nature and conditions of employment with RailCorp between 1 March 2005 and 29 March 2006 aggravated, accelerated, exacerbated or deteriorated the disease, and

(e)section 151A disentitles Ms Hunt from recovering compensation.

1. At the oral hearing of the appeal on 9 September 2009, counsel for RailCorp, Mr Beauchamp, submitted that the issue was whether the damages Ms Hunt recovered in the Tribunal acted as a bar to the recovery of compensation in the Commission by virtue of section 151A of the 1987 Act (‘the section 151A defence’). He also submitted that a Major Depressive Epsiode is not a disease (‘the nature of the injury’) and that Ms Hunt’s condition significantly deteriorated after 28 March 2006.

1. Mr Beauchamp abandoned any reliance on the Deed of Release.

THE LEGISLATION

1. Section 4 of the 1987 Act provides:

“4 Definition of ‘injury’
In this Act:

‘injury’:

(a) means personal injury arising out of or in the course of employment,
(b) includes:

(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and …”

1. Section 151A(1) provides:

“151A Effect of recovery of damages on compensation

(1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act then (except to the extent that subsection (2), (3) or (4) covers the case):

(a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and
(b) the amount of any weekly payments of compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and
(c) the person ceases to be entitled to participate in any injury management program provided for under this Act or the 1998 Act.

(2) …”

SUBMISSIONS DISCUSSION AND FINDINGS

1. The two issues argued are interrelated and the first (the section 151A defence) cannot be properly determined on its merits until the second (the nature of the injury) is determined. The matter is further complicated because RailCorp has never disputed injury or that employment was a substantial contributing factor to the injury, but, apparently, has always assumed that, unless Ms Hunt can prove the contrary, the injury for which she received damages in the Tribunal is the same injury for which she seeks compensation in the Commission. For reasons set out below (at [71] to [75]) dealing with the onus of proof, that assumption is incorrect. Before turning to the issues argued by Mr Beauchamp, it is appropriate to first consider the nature of the Tribunal’s decision.

The Tribunal’s decision

1. Ms Hunt made nine separate complaints to the Anti-Discrimination Board relating to sex discrimination in employment, sexual harassment, victimisation and aiding and abetting, and victimisation in employment.  In the Tribunal’s decision delivered on 24 July 2007, the complaints of sex discrimination, victimisation, aiding and abetting were dismissed.  The complaint of sexual harassment was upheld to the extent that it related to the graffiti incidents on 31 May and 9 July 2004 and the magazine incident on 3 February 2005 and she was awarded $20,000.00 in respect of those incidents.  In assessing damages the Tribunal took into account the authority of Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503, where Wilcox J observed that damages in such cases should not ignore “injury to feelings, distress, humiliation and the effect of the complainant’s relationships with other people”. However, the Tribunal was acutely aware that it could only award damages for the three incidents of unlawful conduct (see [217] and [221]). It also observed (at [215] and [216]):

“While it is clear that Ms Hunt’s work situation had a substantial and negative impact upon her well-being, it is difficult to ascertain to what extent the symptoms that she suffered can be attributed to conduct towards her that was unlawful under the Anti-Discrimination Act 1977 and what can be attributed to conduct that was not unlawful.

Much evidence was placed before the Tribunal that established that the workplace was unhappy, stressful and dysfunctional in a way that affected many employees within the Train Crew Assignment Centre.”

1. Given these findings, I accept that Ms Hunt recovered damages from RailCorp under section 151A(1), but only for the incidents on 31 May 2004, 9 July 2004 and 3 February 2005 (see Burns v Gladesville Bowling & Sports Club Ltd (2000) 20 NSWCCR 648). The next question to be determined is whether the current claim for compensation in the Commission is “in respect of the injury” for which she recovered damages.

Nature of the injury

1. Mr Beauchamp submits that the Arbitrator erred in finding that Ms Hunt’s Major Depressive Episode in 2007 is a disease.  I do not accept that submission.

1. RailCorp’s section 74 notice never disputed injury and, consistent with the fact that injury was not in issue, Mr Beauchamp agreed at the arbitration that “the medical evidence is generally not in dispute” (T1.47-51).  Further, Mr Beauchamp also conceded at the arbitration (at T19.29) “The applicant has an injury.  It’s a psychological injury…”.  Given that RailCorp never disputed injury in its section 74 notice, and tendered no medical evidence, that concession was appropriate and it is not now open to argue that Ms Hunt’s condition is not a disease or that Ms Hunt has suffered no psychological injury because her condition resulted from events after March 2006.  Such an argument, if it were allowed, would clearly prejudice Ms Hunt, as she has not had the opportunity to respond to it by calling evidence.  There is no justification for requiring her to do so on review in circumstances where the issues were clearly identified in several letters from RailCorp’s solicitor, culminating in the letter dated 16 September 2008.  Both parties were represented by counsel at the arbitration and, rather than seeking to amend the section 74 notice, Mr Beauchamp conducted the case on the basis of the issues identified in it.

1. If I am wrong in taking this approach, considering this new argument on its merits, I have no hesitation in rejecting it. I am satisfied that Ms Hunt’s psychological condition is a disease to which section 4(b)(ii) of the 1987 Act applies. In Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 632 (‘Semlitch’) Kitto J held:

“In its ordinary meaning ‘disease’ is a word of very wide import, comprehending any form of illness; and there is no reason that I can see for reading it in the present context as not extending to mental illness.”

1. This passage is consistent with the statement by Dixon CJ in Darling Island Stevedoring and Lighterage Co Ltd v Hussey (1959) 102 CLR 482 at 496 (‘Hussey’) that the definition of “a disease” covers “what would ordinarily be regarded as a pathological condition continuing to operate according to its pathological nature.”  It is also consistent with the Court of Appeal decision in Fletcher International Exports Pty Ltd v Barrow & anor [2007] NSWCA 244; (2007) 5 DDCR 247 (‘Barrow’) where Mason P (Santow and Tobias JA agreeing) held (at [61]) that “The failure of an area of the body to cope with repeated stress imposed upon it, leading to pain and loss of function is capable of being found to be a disease process.”

1. Mr Beauchamp cited no legal authority in support of his submission, but referred to the chapter on Mood Episodes in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition, published by the American Psychiatric Association (DSM IV), and submitted that the condition of Major Depressive Episode is not referred to as a disease in that publication.  Whilst the statements of medical experts as to whether something is a “disease” or not is a relevant consideration, I am required to apply the legal meaning of the word “disease” as it is used in the workers’ compensation legislation.  That is determined by its context in the legislation and in the light of binding legal authorities.  I doubt that the authors of DSM IV had section 4 of the 1987 Act in mind when they drafted the chapter on Mood Disorders.  It is patently obvious, based on the uncontested medical evidence, and the authorities of Hussey, Semlitch and Barrow, that Ms Hunt’s psychological condition of depression and anxiety is properly characterised as a disease. That is so whether the condition is categorised as reactive depression and/or a generalised anxiety disorder (Ms Merrells), or as an Adjustment Disorder with Depressed and Anxious Mood or as a Major Depressive Episode (Dr Smith). A Major Depressive Episode is not a new injury or condition, but is merely distinguished from Adjustment Disorder with Depressed Mood by the fact that the full criteria for a Major Depressive Episode are not met in an Adjustment Disorder (DSM IV at 355).

1. Next, to establish injury within the terms of section 4(b)(ii) of the 1987 Act, it must be established that Ms Hunt’s employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration of that disease. For compensation to be payable under the 1987 Act, Ms Hunt must establish that her employment was a substantial contributing factor to the injury (section 9A).

1. Ms Hunt’s case is that she was sexually harassed, victimised, ostracised and had a lack of support from her superiors between May 2004 and 28 March 2006.  Her claim is supported by her unchallenged statement, which lists multiple events in that period (excluding the events on 31 May 2004, 9 July 2004 and 3 February 2005) that caused her to feel victimised and harassed.  Those events include:

(a)     Mr Southan’s complaint on 19 August 2004, which Ms Hunt felt had been made to harass her;

(b)     the handling of the meeting on 26 August 2004 by Mr Hill subsequent to Mr Southan’s complaint;

(c)     the complaint by Mr Southan and Mr Reeves on 8 October 2004 about Ms Hunt’s management style, which Ms Hunt believed to be baseless and made for the purpose of harassing her;

(d)     the talkback radio shows on 27 and 28 September 2004 where derogatory comments were made about Ms Hunt, but no investigation made into the source of the leaked documents and no steps taken to counsel staff;

(e)     Ms Hunt perceived that the appointment of Mr Setterini was an attempt to pressure her into accepting another position and she received no response to her concerns;

(f)      Ms Hunt felt that Mr Setterini’s review of the Train Crew Assignment Centre – conducted without consulting her though she was the manager – amounted to further pressure being applied to her to accept another position;

(g)     on 4 March 2005, more graffiti derogatory of Ms Hunt and her husband appeared in the men’s toilets

(h)     on 21 March 2005, graffiti disparaging of Ms Hunt was found in the women’s toilets;

(i)      on 13 September 2005, more offensive graffiti relating to Ms Hunt appeared in the men’s toilets;

(j)      on 16 February 2005, more graffiti referring to Ms Hunt was found in the women’s toilets;

(k)     on 31 October 2005, a union representative handed Ms Hunt a report, the existence of which management had denied.  She felt let down and humiliated;

(l)      on 6 March 2006 Mr Irving entered Ms Hunt’s office in an aggressive manner when affected by alcohol, which made her fearful for her safety;

(m)   when Ms Hunt was told of the move to Lee Street on 22 March 2006, she felt that she was not receiving appropriate support and expressed her concern that Mr Irving, Mr Southan and Mr Hill all worked at Lee Street, and

(n)     at the meeting on 28 March 2006, Ms Hunt was directed to move to Lee Street the next day despite her concerns.  She felt that this was another example of victimisation and she went on stress leave.

1. I have no hesitation in accepting that the above events happened, that they created a hostile and dysfunctional work environment, and that they made Ms Hunt feel victimised and harassed.  I accept Ms Hunt’s evidence that she found “each episode of graffiti vulgar, disgusting and humiliating” (emphasis added).  The evidence does not suggest, and I do not accept, that the incidents on 31 May 2004 and 9 July 2004 were any more serious or humiliating than the other incidents, or that they were critical in causing Ms Hunt’s psychological injury.

1. Ms Hunt’s treating doctors and psychologists did not take a detailed chronological history of the kind I have set out above, but, as is often the case in matters of this kind, especially for treating practitioners, they took general histories.  Dr Foltin, for example, took a history of “an unbearable situation at work”, of vulgar graffiti that caused embarrassment and humiliation (but did not indicate if any one of the several graffiti incidents was of greater significance than the others), and of management being unsupportive.

1. Ms Everett recorded that “circumstances in [Ms Hunt’s] workplace” caused her “considerable distress over time” (emphasis added).  Those circumstances included, but were not limited to, the incidents on 31 May 2004, 9 July 2004 and 3 February 2005.  She also referred to Ms Hunt facing significant psychological challenges in adjusting to an apparent lack of protection and support from RailCorp.  As with Dr Foltin, though Ms Everett referred to the pornographic material and the graffiti, she did not identify any one of the several graffiti incidents, or the magazine incident, as being of critical significance.

1. Ms Merrells took a history of the incident on 31 October 2005, which the worker described as “the final humiliation” and of “harassment at work (ten episodes of which have involved sexually aggressive graffiti)”.  As with Dr Foltin and Ms Everett, Ms Merrells did not place any particular reliance on the events on 31 May 2004, 9 July 2004 or 3 February 2005, but referred to Ms Hunt’s problems being a response to “chronic and traumatic stress” (emphasis added).  Chronic means constant or continuing a long time.  In support of her opinion, Ms Merrells noted that Ms Hunt’s symptoms in December 2004 placed her in the “mild range of depression”, but her symptoms in November 2005 placed her in the “severe range for symptoms of depression”, indicating a deterioration over time.  I am comfortably satisfied that that deterioration did not result from the incident on 3 February 2005, but from Ms Hunt’s exposure to a hostile and dysfunctional work environment over a sustained period.

1. Ms Hunt’s evidence, which I accept, is that the incident on 3 February 2005 was what she put up with on a daily basis.  By that I infer that she considered the incident to be an example of unacceptable behaviour designed to intimidate and harass her.  It did not, of itself, cause her injury.

1. Dr Smith took a history of a “number of work-related problems that significantly impacted upon [Ms Hunt] from an emotional perspective”.  Those matters related to sexual discrimination, sexual harassment and victimisation by male co-workers.  He made specific reference to the graffiti incidents and to the non-supportive response with a tendency to ostracise her in the work setting, but did not single out the incidents on 31 May 2004, 9 July 2004 or 3 February 2005 as being causative of her psychological condition. 

1. The question argued by RailCorp is really one of causation.  What is required is a commonsense evaluation of the casual chain with due regard to the statutory formula by asking the question whether the condition claimed has “resulted from” the work event in question.  In Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 Kirby P (as he then was) said at 463-4:

“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”

1. For a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of the fact (per McDougall J (McColl and Bell JJA agreeing) in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (‘Nguyen’) at [44]). His Honour also referred to the following statement by Dixon CJ in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 305 where his Honour said that “[t]he facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied”. This passage was cited with approval by the majority in West v Government Insurance Office of NSW [1981] HCA 38; (1981) 148 CLR 62 at 66.

1. In Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 Spigelman CJ considered the determination of causation where the aetiology of a disease is uncertain and said (at [94]):

“In circumstances where the aetiology of a disease is uncertain, or subject to significant scientific dispute, the Courts are not thereby disenabled from making decisions as to causation on the balance of probabilities. As Herron CJ said in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 at 242:

‘Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be a touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connection that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’”

1. Herron CJ also said, immediately before the passage quoted above, that “It is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct.”

1. It is clear from the above authorities that the fact that Dr Smith was not asked to comment on causation, after excluding the incidents on 31 May 2004, 9 July 2004 and 3 February 2005, is not determinative of the issues I have to decide.  He did not exclude a causal connection because of those incidents and RailCorp called no evidence to that effect.  What is required is a commonsense evaluation of the causal chain having regard to the history of the matter and the evidence, both lay and expert.

1. Ms Hunt has no family history of psychological problems and had a long and stable work record with RailCorp from 1988. Given these factors, and the evidence I have outlined at [52] above, I am comfortably satisfied that, as a result of the hostile circumstances of her employment between May 2004 and 28 March 2006, excluding the incidents on 31 May 2004, 9 July 2004 and 3 February 2005, Ms Hunt suffered an injury in the nature of an aggravation of a disease, namely depression and anxiety, and that the effect of the aggravation is continuing.

1. It is true that Ms Hunt’s condition deteriorated in 2007 and that Dr Smith then diagnosed a Major Depressive Episode.  That is not a new injury, but is a condition that clearly resulted from Ms Hunt’s work injury.  Dr Smith unequivocally links the Major Depressive Episode to Ms Hunt’s “frequent work related difficulties” and “in particular her ongoing sexual harassment, victimisation and ostracism by her employers against a background of what she felt was an unsupportive stance by her superiors”, which resulted in excessive anxiety and an apprehensive expectation of further harm.  This conclusion is reiterated at page eight where he said that Ms Hunt’s impairment is not the result of a non work related condition and that “her psychological symptomatologies are in my opinion predominantly caused by her work related circumstances”.  Those “circumstances” are the circumstances pleaded. 

1. The High Court decision of Calman v Commissioner of Police [1999] HCA 60; (1999) 73 ALJR 1609 is instructive on this issue. The Court held (at [38], excluding footnotes):

“Once the appellant established that his underlying anxiety disorder was an injury within the meaning of the Workers Compensation Act, he was entitled ‘to compensation ... under [that] Act’ upon proof that his total or partial incapacity for work resulted from that injury. The question then for the Tribunal was whether the appellant’s incapacity was causally connected to the underlying anxiety disorder. It has long been settled that incapacity may result from an injury for the purposes of workers’ compensation legislation even though the incapacity is also the product of other - even later - causes. Indeed, death or incapacity may result from a work injury even though the death or incapacity also results from a later, non-employment cause. Thus, in Conkey & Sons Ltd v Miller, Barwick CJ, with whose judgment Gibbs, Stephen, Jacobs and Murphy JJ agreed, held that it was open to the Workers’ Compensation Commission to find from the medical evidence in that case ‘that the death by reason of myocardial infarction when it did ultimately occur, ‘resulted’ from the work-caused injury of the first infarction, even if it could not be said that the final infarction was itself caused by work-caused injury.’”

1. In circumstances where the evidence establishes that Ms Hunt continued to be symptomatic and unfit from 29 March 2006, I am comfortably satisfied that her current incapacity has resulted from her aggravation injury.  No other conclusion is reasonably open on the evidence.

1. Neither the exclusion of the events on 31 May 2004, 9 July 2004 and 3 February 2005, nor the inclusion of the alleged events after 28 March 2006, makes any difference to this conclusion.  A psychological injury caused by multiple events over a lengthy period of time does not rise or fall on one or two isolated events.  The graffiti incidents on 31 May 2004 and 9 July 2004 and the magazine incident were merely examples of many incidents of offensive or unsatisfactory conduct over a period of almost two years.  It is completely untenable to suggest that if those incidents were removed from consideration Ms Hunt’s case must fail.  Ms Hunt continued to work for over one year after the magazine incident.  In that time several significant incidents occurred that culminated in the proposal to transfer her to Lee Street, triggering her incapacity on 29 March 2006. 

1. In these circumstances I am comfortably satisfied that, excluding the events on 31 May 2004, 9 July 2004 and 3 February 2005, Ms Hunt received a psychological injury, as defined in section 4(b)(ii), on the basis of a contribution to the aggravation of a disease from the events that occurred at work between May 2004 and 28 March 2006 and that, having regard to the terms of section 9A(2) of the 1987 Act, her employment (by those same events), was a substantial contributing factor to that injury, and that Ms Hunt’s incapacity, and any reasonably necessary hospital or medical treatment, results from that injury.

The section 151A defence

1. It follows from the above analysis that section 151A is not a bar to Ms Hunt recovering compensation in the present claim. Nevertheless, it is appropriate, given the way the appeal was conducted, that I make the following additional observations.

1. It is not disputed that RailCorp carries the onus of establishing a defence under section 151A (Currie v Dempsey (1967) 69 SR (NSW) 116 at 125). Mr Beauchamp submitted that the events for which the Tribunal awarded damages, namely the graffiti incidents on 31 May 2004 and 9 July 2004, and the magazine incident on 3 February 2005, are the “injury” in respect of which Ms Hunt has “recovered damages” and Ms Hunt is therefore not entitled to compensation. Whilst he relied on the Tribunal’s decision to establish the defence, his submissions were directed to highlighting alleged deficiencies in Ms Hunt’s case. He argued that, as Dr Smith had not been asked to express a view as to whether Ms Hunt would have suffered her psychological condition had those three events not occurred, Ms Hunt must fail. This submission is flawed as it reverses the onus of proof on the section 151A issue.

1. RailCorp has failed to establish a defence under section 151A. The Tribunal awarded damages for the specific “unlawful behaviour” towards Ms Hunt in the incidents on 31 May 2004, 9 July 2004 and 3 February 2005. Ms Hunt’s case in the Commission does not rest wholly, or even mainly, on those incidents, but is based on a series of events, circumstances and interactions between May 2004 and 28 March 2006 that caused an aggravation injury within the terms of section 4(b)(ii) of the 1987 Act.

1. Though RailCorp arranged for Ms Hunt to be examined on two occasions by Dr Snowden, it has tendered no evidence from that doctor and offered no explanation for not doing so.  I infer that Dr Snowden’s evidence would not have advanced RailCorp’s case.  RailCorp has called no persuasive evidence in support of its case that the injury for which Ms Hunt recovered damages was the injury for which she now seeks compensation in the Commission. 

1. Mr Beauchamp submitted at the arbitration (T19.40):

“What you are now asked to do is to unscramble the omelette and put the eggs back as they were, and you need, with respect, expert assistance to allow you to do that. You need to be able to see that Dr Smith, who is the expert in this case, can tell you that the applicant would still have a compensable condition within the meaning of the Workers Compensation Act if you exclude the events in 2004 and 2005 and their sequelae, and you can’t do that because he hasn’t looked at or if he has he’s come up with a mix, and once he comes up with a mix, then you don’t get a satisfactory response to the question of what contributed to this injury and what didn’t.

Clearly, these were three incidents that burned highly in the mind of the applicant. They are referred to extensively in her statements and extensively in Dr Smith’s history-taking. They are intrinsic in the entirety of the commission of one incapacity which exists and it is conceivable, I suppose, that Dr Smith could take the exercise that you’re asked to adopt and exclude those factors, expunge them from the history and tell you whether or not the residue of itself is enough to cause the condition. But the problem is that they continue to be at the very lowest level.

What my friend was addressing in Justice Kirby’s decision in Kooragang v Bates was a pre-determinative fact or condition that emerges, and whilst ever they contribute to the final outcome, then those events have been awarded damages, those events have been compensated in terms of 151A. So that in the end, in our submission, your task is defeated by the nature of the evidence as it presents itself. The given material in this case is that Ms Hunt has an incapacity, and that such incapacity stems from events that happened with my client. Those are not matters that are - we’re not here running issues that don’t exist. We have always directed our attention to one issue and one issue only, and that is our belief that the parties concluded, in effect, the material injuries when the ADT handed down its decision.” (emphasis added)

1. In circumstances where Ms Hunt has clearly established a prima facie case that her injury and incapacity have resulted from her employment (excluding the three events for which she recovered damages), the onus is on RailCorp to establish that she has no entitlement to compensation as a result of having recovered damages as a result of RailCorp’s unlawful behaviour on 31 May 2004, 9 July 2004 and 3 February 2005.  It is RailCorp that must “unscramble the omelette”, not the worker (Watts v Rake [1960] HCA 58; (1960) 108 CLR 158). It must establish that the injury for which Ms Hunt recovered damages is the same injury for which she seeks compensation. It has failed to do so and cannot succeed with its section 151A defence.

CONCLUSION

1. Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I have concluded, for the reasons given in this decision, that the true and correct position is that, as a result of her employment with RailCorp between May 2004 and 28 March 2006 (excluding the incidents on 31 May 2004, 9 July 2004 and 3 February 2005), Ms Hunt sustained an injury in the nature of an aggravation of a disease, which is continuing, to which her employment was a contributing factor, and to which her employment (by those same events) was a substantial contributing factor, and her incapacity and reasonably necessary medical treatment results from that injury.

1. RailCorp has not challenged the quantum of the award of compensation nor the other consequential orders made by the Arbitrator in respect of the payment of section 60 expenses and the referral to an Approved Medical Specialist, and those orders are confirmed. 

1. As a result of her injury, Ms Hunt was incapacitated on and from 29 March 2006 and that is the correct deemed date of injury under section 16 of the 1987 Act.

1. Though I agree with the Arbitrator’s orders, I do not agree with all of his findings in the Certificate of Determination dated 16 March 2009 and that part of the Certificate of Determination is revoked.  However, the formal orders in paragraphs 14 to 19 are confirmed.

DECISION

1. For the reasons given in this decision, paragraphs 1 to 13 of the Certificate of Determination of 16 March 2009 are revoked and paragraphs 14 to 19 are confirmed.

COSTS

1. The appellant employer is to pay the respondent worker’s costs of the appeal, which I assess at $2,200.00 plus GST.

Bill Roche
Deputy President

15 September 2009

I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE