RPC Computer Consultancy Pty Limited v Richard Stanislaw Musial

[2009] ACTCA 13

RPC COMPUTER CONSULTANCY PTY LIMITED v RICHARD STANISLAW MUSIAL
[2009] ACTCA 13 (17 September 2009)

WORKERS COMPENSATION – Workers Compensation Act1951 (ACT) – whether employment substantially related to injury – bi-polar depression – appeal – reasonable inferences upon evidence – whether reasoning of court below assumed medical expertise.

Workers Compensation Act1951 (ACT)

RPC Computer Consultancy Pty Ltd v Musial [2008] ACTSC 5
CSR Ltd and Another v Della Maddalena (2006) 224 ALR 1
Warren v Coombes and Anor (1979) 142 CLR 531

Fox v Percy (2003) 214 CLR 118

Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492

ON APPEAL FROM THE CHIEF JUSTICE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No.   ACTCA 3 of 2008
No.  SCA 36 of 2007

Judges:   Refshauge, Penfold and Cowdroy JJ
Court of Appeal of the Australian Capital Territory

Date:   17 September 2009

IN THE SUPREME COURT OF THE       )
  )          ACTCA 3 of 2008
AUSTRALIAN CAPITAL TERRITORY    )          SCA 36 of 2007

ON APPEAL FROM THE CHIEF JUSTICE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:RPC COMPUTER CONSULTANCY PTY LIMITED

Appellant

AND:RICHARD STANISLAW MUSIAL

Respondent

ORDER

Judges:  Refshauge, Penfold and Cowdroy JJ
Date:  17 September 2009
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

Facts

1. This is an appeal from the decision of Higgins CJ delivered on 5 February 2008 which dismissed an appeal from a decision of Magistrate Somes (“the award”) made under the Workers Compensation Act1951 (ACT), hereafter referred to as “the Act”.

1. Prior to 2003 the respondent had worked for many years as a self employed computer programmer and consultant.  From about 2003 the appellant engaged the services of the respondent as a computer expert.  In about July or August 2004 the respondent developed symptoms of a mental disorder which prevented him from carrying out his work.  As a consequence, a claim was made by him against the appellant for an award of compensation under the Act.  Magistrate Somes heard the application and delivered the award in favour of the respondent on 26 April 2007. 

1. The critical issue arising before Magistrate Somes was whether the evidence established that the employment of the respondent “substantially contribute[d] to the injury”.  This question involved a determination whether the depressive illness suffered by the respondent, described as melancholic depression or bipolar disorder, and variations on those descriptions, was caused by the respondent’s involvement in a stressful contract during 2004, as found by Magistrates Somes, or was caused by the onset of a separate medical condition, namely tinnitus.

1. The evidence of the respondent was not disputed before Higgins CJ, nor was there any dispute that the respondent was incapacitated for work.

The respondent’s evidence

1. During 2003 the respondent consulted Dr Foo, his general practitioner, in respect of a variety of medical issues.  On 29 July 2003 Dr Foo recorded the following in his clinical notes:

visual disturbance on 2 occasions, circular oscillation and distortion, lasting about 30–45 mins, followed by disorientation and confusion for 2–3 hours.

1. The respondent again consulted Dr Foo on 28 October 2003.  Dr Foo’s notes of that consultation record the following:

visual disturbance this am, lasting about half hour, eyes feel ‘wide open’, difficult to focus tingling in left scalp, buzzing in left ear, pressure left parietal region feels ‘funny’, no nausea or vomiting hard to concentrate.

1. For convenience the notes of Dr Foo dated 29 July 2003 and 28 October 2003 will be referred to as “the 2003 reports” and the symptoms recorded therein as “the 2003 symptoms”.  No diagnosis was made by Dr Foo that the 2003 symptoms were indicative of depression.

1. The respondent said that he commenced a new project in late July to August 2004 which he said was especially difficult for him because of the lack of support provided.  As a consequence he began to experience difficulties speaking to people and began to lose his ability to comprehend documents.  The respondent also became frustrated and angry.

1. Dr Foo’s clinical notes for 24 August 2004 record the respondent’s first complaint of symptoms indicating tinnitus.  On 13 September 2004 Dr Patterson Kwan, who attended the respondent in Dr Foo’s absence, recorded: “Tinnitus, cannot read or concentrate.  , [sic] cannot sleep, struggling at work”.  Dr Kwan made a similar notation on 15 September 2004 which included an observation that the respondent could not concentrate at work.

1. On 23 September 2004 Dr Foo made the first reference to depression in his clinical notes.  Such entry provides:

has been quite depressed, depressed moods, nocturnal waking, lacking motivation, poor concentration and memory, restless, feels hot flushes, irritable, no suicidal ideation, fatigue and tiredness, no family history of depression, worries about tinnitus and not being able to work.

1. On 24 August 2004 Dr Foo referred the respondent to Dr Tuan Pham, an ear, nose and throat specialist.  Having examined the respondent, Dr Pham wrote a letter to Dr Foo on 4 November 2004 reporting that he found no physiological abnormality in the respondent.  Dr Pham however also stated:

I suspect the tinnitus has become quite loud because of the depression itself.  He is currently being treated for that and hopefully if that improves his perception of the tinnitus will decrease and it will not be such a problem for him.

1. On 21 October 2004 Dr Foo referred the respondent to Dr Fatma Lowden, a psychiatrist.  After the initial consultation, the respondent consulted Dr Lowden approximately once every two weeks for medications and therapy.  As there was no improvement in the respondent’s condition, on 23 March 2005 Dr Lowden referred him to Professor Gordon Parker and Dr Melissa Barrett, psychiatrists working with the Black Dog Institute of the Prince of Wales Hospital, for a second opinion.  On 9 June 2005 Professor Parker and Dr Barrett wrote to Dr Lowden (“the joint report”) indicating that they concurred with Dr Lowden’s original diagnosis of melancholic depression and possibly bipolar disorder.  Dr Lowden then recommended that the respondent undergo electroconvulsive therapy.  Dr Saboisky performed such treatment. 

1. On 17 November 2004 the respondent told Dr Saboisky that he began to experience bilateral tinnitus in about July 2004 and that an anti-inflammatory drug, Naprosyn, which had been prescribed for an attack of gout in his knee, had made his tinnitus worse.  In his report dated 22 November 2004 Dr Saboisky recorded the following:

The role of tinnitus inn [sic] the development of depression is worthy of comment.  In the literature I have read there is an over-representation of depression in populations of people suffering from tinnitus.

The award

1. Magistrate Somes considered the evidence of the respondent that in July or August 2004 he commenced a stressful contract which had the consequence that symptoms of depressive disease commenced.  Magistrate Somes continued (at [7]):

The notes of Dr Foo however do disclose earlier complaints of a type not dissimilar to those about which the Applicant complains concerning the July/August 2004 contract.

1. Magistrate Somes then referred to the 2003 reports and continued (at [10]) of the award:

The clinical notes of Dr Foo… seem to suggest that there had been symptoms mentioned to Dr Foo… well prior to the tinnitus complaint of August 2004.  While there is no evidence… to suggest that the episodes referred to in the July and October 2003 entries are related to the present condition of the Applicant it would seem possible that issues of the same type complained of after September 2004 were already in existence.  There would seem to be a possibility on the notes of Dr Foo that the Applicant has been experiencing some difficulty with his health prior to undertaking the particular project about which he now complains, namely the July/August 2004 project.

1. The contentious finding of Magistrate Somes (at [27]) is as follows:

It is possible as I have said that the symptoms of this illness emerged much earlier than the Respondent now appreciates and may have emerged as early as July 2003.  It is clear however that if the symptoms did emerge in July and October 2003 that they did not prevent the Applicant from carrying out his duties until a much more significant group of symptoms emerged in August and September 2004.  The emergence of these symptoms clearly caused a situation to arise in which the Applicant was unable and has been unable since that time to carry out his work.

1. Magistrate Somes concluded (at [47]):

I am satisfied that the evidence given by the Applicant indicates that he had an onset of symptoms prior to the onset of the tinnitus.  I am required to be satisfied that his employment “substantially contributes to the injury.” In all of the circumstances I am so satisfied that his employment substantially contributed to the development of symptoms perhaps from as early as July and October 2003 but certainly from July, August and September of 2004.  These symptoms which have been diagnosed by all of the medical practitioners as a depressive illness have resulted in the Applicant being incapacitated on a total basis from his employment with the Respondent.

Appeal to the Supreme Court

1. By notice of appeal dated 22 May 2007 the appellant appealed to the Supreme Court of the Australian Capital Territory.  The principal ground of appeal challenged the finding of Magistrate Somes that the 2003 reports were supportive of the development of depression prior to the onset of tinnitus.  The appellant claimed that in reaching such conclusion the Magistrate made a medical assessment of the 2003 symptoms but was unqualified to do so.  It was also alleged that Magistrate Somes erred in rejecting the evidence of other experts.

1. Chief Justice Higgins’ judgment was published on 5 February 2008: RPC Computer Consultancy Pty Ltd v Musial [2008] ACTSC 5. His Honour found (at [26]) that Magistrate Somes was “informed by expert medical testimony sufficient to recognise for himself” that the 2003 symptoms had a connection with the symptoms documented in 2004. His Honour observed (at [10]):

His Honour [Magistrate Somes] accepted that the work the respondent was doing was generally stressful.  He was entitled so to conclude.  It seems to me to have been a fair assessment of the respondent’s account of his duties.  He had deposed that his inability to cope came on before the tinnitus.  That evidence was not challenged in so far as it represented the respondent’s perception.  The appellant’s contention was that the expert evidence did not support a causal connection.

1. Chief Justice Higgins also found (at [16]) that the three treating psychiatrists (Drs Lowden and Barrett and Professor Parker) considered that the stress of work sustained by the respondent had “caused or exacerbated to a disabling extent the disorder which, in turn, resulted in the relevant incapacity”.  His Honour found that there was no reason for Magistrate Somes to reject such opinions.  His Honour held (at [19]) that Magistrate Somes found that the psychiatrists retained by the respondent were “more focussed on the ascertainment of the cause of the condition and, hence, their opinion was to be preferred”.  His Honour found that Magistrate Somes was entitled to reject the evidence of Drs Saboisky and Champion in view of such finding.  His Honour concluded that Magistrate Somes’ decision was clearly open to him on the evidence before him.

Appeal to Court of Appeal

1. The notice of appeal to the Court of Appeal raises three issues which are considered separately hereunder. 

Did Higgins CJ err in holding that Magistrate Somes had not erred by interpreting the 2003 notes as indicating the onset of depressive symptoms?

1. The appellant submits that no submissions were made by counsel suggesting that the 2003 reports indicated the onset of depressive symptoms, and nor did Dr Foo make such a suggestion.  Accordingly the appellant submits that Magistrate Somes’ finding that the 2003 symptoms identified in the 2003 reports were indicative of the onset of depression was a “medical judgement” which he had no qualifications to make.

1. While the 2003 reports were not the subject of cross-examination by counsel for the appellant nor did he refer to them in his submissions, they were tendered by the appellant and, therefore, were evidence before Magistrate Somes, and he was entitled to consider and make what he could of them.

1. However Magistrate Somes was clearly aware that there was no evidence that the 2003 symptoms were necessarily related to depression.  His Honour stated (at [10]):

While there is no evidence, as I understand the evidence, to suggest that the episodes referred to in the July and October 2003 entries are related to the present condition of the Applicant it would seem possible that issues of the same type complained of after September 2004 were already in existence.  There would seem to be a possibility on the notes of Dr Foo that the Applicant had been experiencing some difficulty with his health prior to undertaking the particular project about which he now complains, namely the July/August 2004 project.  [emphases added]

1. Magistrate Somes observed (at [21]) that there was evidence to suggest that:

… the disease from which the Applicant clearly suffers is one which gradually accumulates in a symptomatic way until its ultimate diagnosis as a condition described as, amongst other things, depression.

1. His Honour then stated (at [22]):

That is to say that it may be that the references to visual disturbances in July and October 2003 may indeed represent symptoms of the ultimately diagnosed depressive condition which were not recognised by either Dr Foo, the Applicant or anyone else as being symptoms of a depressive condition.

1. Contrary to the submissions made by the appellant, Magistrate Somes made no finding that the 2003 symptoms which are detailed in the 2003 reports represented the onset of depression.

1. It is correct that Magistrate Somes speculated upon the possibility that the 2003 symptoms may have been indicative of depression, and observed (at [47]) that the respondent’s employment “substantially contributed to the development of symptoms perhaps [emphasis added] from as early as July and October 2003”.  However, no finding was made that such symptoms were in fact indicative of depression.  Rather, his Honour found that symptoms of depression existed “certainly from July, August and September 2004”, being diagnosed by “all of the medical practitioners as a depressive illness”.  Magistrate Somes also found that it was only from this time, due to the stressful work experienced, that the symptoms were clearly diagnosed as depression which caused the respondent’s incapacity for work. 

1. On appeal Higgins CJ was required to conduct a thorough examination of the record and of the award: see CSR Ltd and Another v Della Maddalena (2006) 224 ALR 1 (at [16]). Having done so he was entitled to review the inference drawn by the Magistrate, and to draw his own inference: see Warren v Coombes and Anor (1979) 142 CLR 531. In that decision the majority of the High Court of Australia said (at 547):

It is often difficult to decide whether observations made by a judge on appeal as to the proper attitude to be taken by the appellate court to the findings of fact made by the trial judge can be regarded as expressing the ground on which the decision of the appellate court rests.  Sometimes it is unimportant what principle is applied, because a judge who takes the view that he is in as good a position as the trial judge to decide what inferences should be drawn from established facts may reach the same conclusion as a judge who believes that the decision of the trial judge should be allowed to stand notwithstanding that the judge of appeal has himself reached a different conclusion as to the proper inferences to be drawn.  Often it will be unnecessary for the judge on appeal to decide between the different approaches; he may decide simply on the facts, as judges in appellate courts have done in countless cases. 

1. And (at 551):

Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.  In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. 

See also Fox v Percy (2003) 214 CLR 118.

1. There was no error by Higgins CJ in reaching the conclusion that Magistrate Somes was entitled to draw the inference that the symptoms detailed in the 2003 reports were possibly connected to the symptoms of depression recorded in 2004.  Significantly, Magistrate Somes only speculated upon such possibility, and such possibility was not determinative of his finding regarding the existence of the respondent’s incapacity and the relationship of such incapacity to his employment by the appellant.  That is, the learned Magistrate’s consideration of the 2003 symptoms did not form the basis of his critical finding regarding the onset of depression.

1. The appellant relied upon the Victorian Supreme Court of Appeal decision in Ucar v  Nylex Industrial Products Pty Ltd (2007) 17 VR 492. In those proceedings a denial of natural justice was found to have occurred because the trial judge made a finding based on his observations of the plaintiff, whilst the plaintiff was present in the court room but was not giving evidence. That is a different circumstance to the present, where there was evidence before Magistrate Somes entitling him to draw the above inference. Accordingly the authority relied upon by the appellant is distinguishable.

1. There was no error in Higgins CJ’s finding that Magistrate Somes did not err in his approach to the 2003 medical notes.

Did Higgins CJ err in finding no challenge to the claim that the respondent’s inability to cope preceded the tinnitus?

1. The critical findings on this issue relate to the following observations of Higgins CJ (at [10]):

He [the respondent] had deposed that his inability to cope came on before the tinnitus.  That evidence was not challenged in so far as it represented the respondent’s perception.

1. The respondent gave clear evidence in chief that the problems he was suffering from which were ultimately diagnosed by Dr Foo as depression pre-dated the onset of the tinnitus.

1. Before the Magistrate the respondent was cross-examined in relation to his complaints to Dr Foo.  The respondent testified that he “initially saw somebody about my tinnitus, which I thought was related to what was happening to me, and I then saw Dr Pham, had an MRI, and that caused me to take time off from work”.  The following question was then put directly to the respondent:

But sir, the way you’ve tailored your evidence today is that you got all these symptoms and then you got the tinnitus, whereas in fact, I suggest to you, sir, it’s exactly the opposite way around; the tinnitus came first, didn’t it?

The respondent disagreed. 

1. Cross-examination ensued concerning the respondent’s symptoms and the specific dates upon which he consulted Dr Foo.  It was put to the respondent that the history provided by him in his evidence concerning the projects he was involved in leading up to September 2004, including the assertion that it was the last of those projects which caused him difficulties, was a reconstruction.  The respondent denied such assertions.

1. It is not clear from Higgins CJ’s above observations whether the respondent’s “inability to cope” referred to the respondent’s depressive symptoms.  The Court notes that if such observations did refer to the respondent’s depressive symptoms then his Honour’s finding that there was no challenge to the respondent’s perception is incorrect, as cross-examination did take place upon the question of whether the respondent’s depressive symptoms preceded the onset of tinnitus.

1. However, the intended meaning of “his [the respondent’s] inability to cope” is immaterial for the purposes of the current appeal, as the Court is of the opinion that  such an oversight, if it is in fact one, is not a matter which is sufficient to cause the award to be set aside.  Magistrate Somes took such cross-examination into account by finding (at [21]):

The Applicant was cross-examined by Mr Stretton and initially it was put to the Applicant that the tinnitus to which I have referred in my comments concerning Dr Foo came before any other symptoms of a depressive illness nature.  The Applicant denied that that was the position.  Much was made by Mr Stretton in his cross-examination of issues concerning dates and in particular the dates referred to in the claim form Exhibit 1.  The evidence however would tend to suggest that the disease from which the Applicant clearly suffers is one which gradually accumulates in a symptomatic way until its ultimate diagnosis as a condition described as, amongst other things, depression.

1. Magistrate Somes had evidence from Dr Pham’s letter dated 4 November 2004 that the tinnitus suffered by the respondent was likely to have been exacerbated by his depression, and also had evidence from Dr Lowden that bipolar disorder can give rise to a variety of physical symptoms.  She said:

In fact, the recent information in the literature that – with these new findings of about six/seven different genes playing a part in bipolar disorder, they actually make people more vulnerable… The same genes causing the motor disorder symptoms, psychological systems, they are also responsible – the gene causes arthritis.  At the same time they cause – make people vulnerable to arthritis, diabetes, hypertension, asthma, skin conditions and – in other words, it’s a lot of physical problems can be part of the condition.

1. The Court is satisfied that there is no error in the award in respect of the finding that the cause of the respondent’s depression was his work stresses rather than tinnitus, and that any deficiency in the finding of Higgins CJ relating to the absence of cross-examination is of no consequence. 

Did Higgins CJ err in holding that the opinions of Drs Lowden and Barrett and Professor Parker were “cogent and well-reasoned”?

1. The Court observes that a challenge to the description of the manner in which an expert provides evidence is not, per se, a ground of appeal.  Rather, the question is whether the evidence should have been accepted, and if so, whether such evidence was probative.

1. There are three separate submissions made in support of such challenge.  The first submission claims that Dr Lowden’s evidence was “rambling and unsatisfactory” and that she could not provide an adequate explanation for her failure to record any work-related cause for the respondent’s symptoms upon her first consultation. 

1. Chief Justice Higgins observed that the opinions of Drs Lowden and Barrett and Professor Parker had been accepted by Magistrate Somes and that there was no reason for them to be rejected.  Magistrate Somes observed that Dr Lowden, who gave evidence by telephone, experienced some difficulty in keeping her answers relevant to the questions asked and that counsel for the appellant was critical of her evidence, especially in relation to the issue of tinnitus.  However, his Honour also observed that Dr Lowden did not resile from her conclusion that the respondent’s bipolar depression was triggered by employment stress.  Whilst the cross-examination by telephone was not entirely satisfactory, Dr Lowden’s expert medical opinion relating to the cause of the respondent’s depression was clear. 

1. Based upon such findings it was clearly open to Magistrate Somes to accept Dr Lowden’s evidence.  Chief Justice Higgins similarly accepted such evidence and it was open to him to do so. 

1. The second submission claims that Dr Barrett had no knowledge of the connection between tinnitus and depression and that she agreed that she had not been focused on the issue of “causality”.

1. Dr Lowden referred the respondent to Dr Barrett and Professor Parker to provide a second opinion regarding the respondent’s treatment.  Dr Barrett acknowledged that her investigation was not focused on causation but on treatment, and that she could not comment upon the proposition put to her that tinnitus could be distracting and annoying and could interfere with concentration.

1. Nevertheless, Magistrate Somes accepted the opinions of Drs Lowden and Barrett and Professor Parker that the respondent’s condition was caused by the stresses of his work.  After carefully comparing the medical reports of the other medical witnesses, namely Drs Saboisky and Champion, Magistrate Somes was satisfied that the evidence of the medical experts for the respondent should be accepted.  The learned Magistrate was entitled to arrive at such a conclusion after weighing up the evidence before him. 

1. The Court finds no error by Higgins CJ in adopting the learned Magistrate’s findings.

1. The third submission relied upon contends that Professor Parker and Dr Barrett obtained no history of other stressors that might have caused the depression, and merely accepted the opinion of Dr Lowden that the respondent’s condition was work-related.

1. Both Professor Parker and Dr Barrett were asked by Dr Lowden to provide a second opinion.  The joint report records the history which the respondent provided to them concerning the significant stressors at work and the respondent’s “sense of failure in a difficult job”.  The joint report states:

The onset was preceded by anger, frustration and anxiety, followed by the development of depressed mood with significant melancholic features, including … agitation … markedly impaired concentration, guilt and ruminative concerns relating to his future.

1. The history which the respondent provided is clearly detailed in the joint report.  The joint report also refers to the other medical issues of the respondent, including tinnitus.  Significantly, Professor Parker and Dr Barrett concluded:

Our impression, is that Mr Musial has a highly perfectionist temperament and that the current episode was precipitated by his perceived failings and resultant disruption to his self-esteem due to stressors at work.  Following this he has developed a severe biological depression with melancholic features.  The history is consistent with the diagnosis of Bipolar II Disorder.  This concurs with the MAP report diagnosis of melancholic depression and possibly Bipolar Disorder.

1. The above assessment was apparently based upon the history provided by the respondent and was not predicated upon Dr Lowden’s opinion.  Since the credit of the respondent has not been challenged, the Court must assume that the statements made to Professor Parker and Dr Barrett by him were truthful. 

1. In these circumstances, there is no basis for the Court to find that the evidence of the three doctors should not have been accepted or was not probative.

Conclusion

1. The Court finds that there are no grounds upon which the orders of Higgins CJ should be set aside.  It follows that the appeal should be dismissed with costs.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date:    17 September 2009

Counsel for the Appellant:  Mr G A Stretton
Solicitors for the Appellant:  Dibbs Abbott Stillman Lawyers
Counsel for the Respondent:  Mr G J Lunney
Solicitors for the Respondent:  Pamela Coward Higgins Lawyers
Date of hearing:  11 August 2008
Date of judgment:  17 September 2009