Skippers Aviation Pty Ltd v Curtin
[2015] WADC 82
•3 JULY 2015
SKIPPERS AVIATION PTY LTD -v- CURTIN [2015] WADC 82
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 82 | |
| Case No: | APP:127/2014 | 18 & 28 MAY 2015 | |
| Coram: | DAVIS DCJ | 3/07/15 | |
| PERTH | |||
| 46 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| PDF Version |
| Parties: | SKIPPERS AVIATION PTY LTD LAUREN PARIS MICHELLE CURTIN |
Catchwords: | Workers' compensation Application for leave to appeal Adequacy of arbitrator's reasons The rule in Pollock v Wellington Onus of proof on issue of incapacity Turns on own facts |
Legislation: | Workers' Compensation and Injury Management Act 1981 s 247 |
Case References: | Alcoa of Australia Ltd v Blay [2015] WADC 62 Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 BHP Billiton Nickel West Pty Ltd v Lockwood-Hall [2012] WADC 108 Catholic Education Office of Western Australia v Granitto [2012] WASCA 266 Fox v Percy (2003) 214 CLR 118 Garrett v Nicholson (1991) 21 WAR 226 Health Department of Western Australia v Prosser [2004] WASCA 83 Leeder v The State of Western Australia [2008] WASCA 192 Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 Nardi v Department of Education and Training [2006] WACC C32-2006 Pacific Industrial Co v Jakovljevic [2008] WASCA 60 Public Transport Authority v Djano [2010] WACC C9-2010 SNF (Australia) Pty Ltd v Jones [2008] WASCA 121 Summit Homes v Lucev (1996) 16 WAR 566 Velez Pty Ltd v Tudor [2011] WASCA 218 Wilson v Metaxas [1989] WAR 285 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
LAUREN PARIS MICHELLE CURTIN
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram : ARBITRATOR HOLYOAK-ROBERTS
Citation : ARBITRATOR'S DECISION A12332
Catchwords:
Workers' compensation - Application for leave to appeal - Adequacy of arbitrator's reasons - The rule in Pollock v Wellington - Onus of proof on issue of incapacity - Turns on own facts
Legislation:
Workers' Compensation and Injury Management Act 1981 s 247
Result:
Leave to appeal refused
Appeal dismissed
Representation:
Counsel:
Appellant : Mr J P Wilson
Respondent : Mr T J Hammond
Solicitors:
Appellant : WHL Legal Pty Ltd
Respondent : Simon Walters
Case(s) referred to in judgment(s):
Alcoa of Australia Ltd v Blay [2015] WADC 62
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
BHP Billiton Nickel West Pty Ltd v Lockwood-Hall [2012] WADC 108
Catholic Education Office of Western Australia v Granitto [2012] WASCA 266
Fox v Percy (2003) 214 CLR 118
Garrett v Nicholson (1991) 21 WAR 226
Health Department of Western Australia v Prosser [2004] WASCA 83
Leeder v The State of Western Australia [2008] WASCA 192
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Nardi v Department of Education and Training [2006] WACC C32-2006
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Public Transport Authority v Djano [2010] WACC C9-2010
SNF (Australia) Pty Ltd v Jones [2008] WASCA 121
Summit Homes v Lucev (1996) 16 WAR 566
Velez Pty Ltd v Tudor [2011] WASCA 218
Wilson v Metaxas [1989] WAR 285
1 DAVIS DCJ: This appeal arises from a decision after arbitration pursuant to the provisions of the Workers' Compensation and Injury Management Act 1981 (the Act).
2 The arbitration concerned the entitlement of the respondent, Ms Curtin, to payment of weekly payments and statutory expenses for a period from 11 February 2010 to 30 September 2010.
3 From 18 December 2006 until 10 February 2010 Ms Curtin was employed by the appellant, Skippers, as a flight attendant.
4 It was not in dispute at the arbitration that on Friday 26 June 2009 Ms Curtin had been subjected to highly inappropriate and derogatory remarks, inappropriate touching, foul language and other unacceptable behaviour, including food throwing, from intoxicated passengers during a flight from Learmonth to Perth (the incident).
5 It was also not in issue that Ms Curtin had continued to work for Skippers as a flight attendant after this incident for another 7 1/2 months until 10 February 2010.
6 The issues at arbitration were:
(a) Whether Ms Curtin suffered a compensable injury as a result of the incident. The principal injury which she claimed to have suffered was post-traumatic stress disorder (PTSD).
(b) If she had suffered a compensable injury, whether that resulted in an incapacity for work after she ceased working for Skippers on 10 February 2010.
7 On 2 December 2014, for reasons which she published in writing on that day, the arbitrator found in favour of Ms Curtin on both issues.
8 The decision by Skippers to appeal the arbitrator's decision is understandable. Ms Curtin was found to be dishonest in a number of respects and there were many objective grounds as to why one might doubt all of her complaints. The arbitrator recognised this, but decided in the result to accept some of Ms Curtin's evidence. In making findings in favour of Ms Curtin, the arbitrator used language and a structure in her reasons which had a tendency to obscure rather than expose her reasoning. However, for the reasons which follow, I must refuse leave to appeal and dismiss the appeal.
The grounds of appeal
9 There are three grounds of appeal relied upon by Skippers:
Ground 1: The Arbitrator erred in law by failing to discharge the obligations to act judicially to:
(a) consider relevant evidence and make proper findings; and
(b) give adequate reasons for decision;
particularly, in circumstances where:
(A) the central issue was the credibility of the Respondent as to whether, and to what extent, she had symptoms sufficient to constitute an 'injury' and resulting 'incapacity for work'; and
(B) the Arbitrator had made findings adverse to the Respondent's credibility including that:
(i) representations made by her as to those symptoms were not true; and
(ii) where her evidence was inconsistent with other witnesses, those witnesses were to be preferred.
(a) consider relevant evidence and make proper findings; and
(b) give adequate reasons for decision; and
(c) then properly apply the rule in Pollock v Wellington (1996) 15 WAR 1 to find that there was no sufficient factual foundation for any medical opinion as to 'injury' and 'incapacity'.
Ground 3: The Arbitrator erred in law in finding that the Respondent had total 'incapacity for work', in that the Arbitrator:
(a) failed to properly apply the burden and standard of proof as to whether the Respondent had the capacity for suitable employment in the relevant period; and, instead
(b) reversed the onus of proof, by concluding that Appellant's evidence was insufficient to establish that the Respondent had the capacity for her full time pre-accident employment and/or alternative duties.
General principles on an application for leave to appeal
10 Pursuant to the provisions of s 247 of the Act, Skippers can only appeal against the decision with the leave of this court where a question of law is involved and the amount in issue exceeds the thresholds in s 247(2)(a).
11 There is no dispute the amount in issue exceeds the thresholds. What has been disputed on Ms Curtin's behalf is whether a question of law is involved in any of the grounds of appeal.
12 An appeal will 'involve' a question of law if the arbitrator has made an error of law or an error of mixed law and fact: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 (BHP Billiton v Brady) [3]; Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [20].
13 An arbitrator does not make an error of law merely because he or she finds a fact wrongly or upon a doubtful basis: see Atanasoska [21].
14 An arbitrator does not make an error of law simply because he or she prefers one version of the evidence or one set of inferences over another version of evidence or set of inferences: BHP Billiton v Brady [5].
15 So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no error of law: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 356; Alcoa of Australia Ltd v Blay [2015] WADC 62 [15] (Sleight DCJ).
16 Want of logic is not synonymous with error of law. The refusal of an arbitrator to accept and act upon evidence, even if it is perverse or illogical to do so, is regarded as an error of fact, and not of law: Nardi v Department of Education and Training [2006] WACC C32-2006 (Nardi) [48] (McCann DCJ); Health Department of Western Australia v Prosser [2004] WASCA 83 [22] - [29] (Prosser).
17 The failure of an arbitrator to give reasons, or adequate reasons, for a decision, is an error of law: Summit Homes v Lucev(1996) 16 WAR 566 (569). This is subject, however, to the provisions of s 213(4) of the Act: Velez Pty Ltd v Tudor [2011] WASCA 218; (Velez v Tudor); Nardi [26] - [31]. Section 213(4) provides:
(4) The reasons for an arbitrator’s decision -
(a) need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and
(b) need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and
(c) need not canvass all the evidence given in the case; and
(d) need not canvass all the factual and legal arguments or issues arising in the case.
19 A decision does not 'involve' an error of law unless the error is material to the decision, in the sense that it contributes to it, so that but for the error, the decision would or might have been different: BHP Billiton v Brady [15].
20 If a ground of appeal, properly analysed, does not involve a question of law, linguistic gymnastics in the formulation of the ground cannot alter the position: Atanasoska [21].
21 If no question of law is involved, there is no jurisdiction to grant leave to appeal: Catholic Education Office of Western Australia v Granitto [2012] WASCA 266 [53] - [54].
22 If a question of law is involved, the grant of leave to appeal lies in the discretion of the court. The view of Buss JA in BHP Billiton v Brady [20] was that if a question of law is involved leave should be granted if, in all the circumstances of the case, it is in the interests of justice to do so. This has been stated in other ways in other decisions. In Public Transport Authority v Djano [49] McCann DCJ spoke of an error of law giving rise to a 'miscarriage of justice'. In Alcoa of Australia Limited v Blay [17] Sleight DCJ applied the test of a 'substantial injustice', following Wilson v Metaxas [1989] WAR 285, 294.
23 If leave to appeal is granted, then the appeal is to be by way of a 'real review' of the decision. The review is not a hearing de novo and invoking the review procedure does not sweep aside the effect of the decision. The aggrieved party must provide some 'proper basis' for disturbing the decision under challenge. It remains valid unless the appeal judge, on review, is persuaded that the order being reviewed should be altered or discharged: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [20] - [22], [24] and [26] (Wheeler JA, with Pullin JA and Buss JA agreeing); Catholic Education Office of Western Australia v Granitto [56] - [57] and [65].
24 In Pacific Industrial Co v Jakovljevic [25] it was suggested it is not a necessary precondition to the conduct of a review that an error of law has been held to have occurred. Wheeler JA explained that the appeal judge (in that case, the commissioner) can, and often does, consider in a single hearing both the application for leave and the appeal itself:
If, on such a hearing, it is the commissioner's view that, although a question of law is 'involved', there has been no relevant error of law, that may be a factor which the commissioner will consider relevant to the question of whether leave should be granted. To take an extreme case, should an appellant raise a number of issues which were plainly questions of law, but were equally plainly unarguable, in an attempt to persuade the commissioner to engage in a pure factual review, the commissioner might consider that that was not appropriate, having regard to the legislative focus upon the correction of errors of law as the commissioner's principal, but not only, task.
25 It was also suggested in BHP Billiton v Brady that the proper approach, particularly when the application for leave to appeal and the appeal are heard together, is that the question of leave be dealt with after considering the merits of the proposed grounds of appeal. If the proceedings are conducted in that way, then the court will be in a position at the end of the hearing to either grant leave and uphold or dismiss the appeal or refuse leave to appeal: BHP Billiton v Brady [14] (Pullen JA, Wheeler and Buss JJ agreeing); see also Atanasoska [32].
26 In this case, no formal orders have been made for the application for leave to appeal and the appeal to be heard together (in fact, programming orders have referred to this matter as 'the appeal'). However, it is clear from the submissions filed by counsel for both parties and the way both parties approached the appeal hearing that I should determine both the question of leave and the appeal together.
The arbitration hearing and the evidence at the arbitration
27 The arbitration was heard over three days. Ms Curtin gave evidence by way of the tendering of her statement of evidence and a supplementary statement and she was cross-examined. There were also four other lay witnesses, work colleagues of Ms Curtin, called by Skippers. These witnesses provided written statements which stood as their evidence at the arbitration hearing and on which they were cross-examined.
28 There were also a number of documents including reports and a DVD recording of surveillance conducted of Ms Curtin (the surveillance material) and some entries taken from Ms Curtin's Facebook pages commenting on her attendance at social events between 26 January 2010 and 14 May 2010 (the Facebook entries).
29 There was expert medical evidence in the form of:
(a) two reports from a psychiatrist Dr De Felice, relied upon by Ms Curtin the first dated 29 April 2010 (AB 244); and the second dated 20 May 2011 (AB 289) and a letter from Dr De Felice to Ms Curtin's lawyers dated 12 August 2010 (AB 282);
(b) two reports from a psychiatrist, Dr Edwards-Smith, relied upon by Skippers (AB 259 and AB 276). These two reports were both dated 15 June 2010 although it is apparent from the second report that it was written after the first and after the provision of the surveillance material and Facebook entries.
30 Also tendered into evidence were the medical reports and progress medical certificates from Ms Curtin's general practitioner, Dr Polczynski.
31 The evidence from the work colleagues, the surveillance material and the Facebook entries related to exactly what occurred during and immediately after the incident and also Ms Curtin's conduct and appearance both at work and on social occasions. This latter aspect of the evidence was relevant to the issues of whether she had, in fact suffered a compensable injury and whether that led to an incapacity. The following summary is thus confined to the evidence on those issues.
32 Ms Curtin's evidence as set out in a statement dated 25 March 2010 and tendered at the arbitration hearing was that following the incident she and the other flight attendant on the flight, after cleaning up the mess on the plane left by the passengers, decided to report the incident. That night after she returned home she broke down in tears to her parents. Ms Curtin gave evidence that the Monday following the incident, no-one at Skippers said anything about the incident nor did anyone offer any assistance or counselling to her. Ms Curtin's evidence was that she received a letter from the CEO of Skippers saying that the incident had never happened, which made her extremely frustrated and feel worthless. (This letter was written, however, after she had stopped working for Skippers and in response to a letter of demand written by her lawyer in which damages were claimed, as a result of Skipper's negligence in relation to a work-related 'accident' which occurred on 26 June 2009. Skippers wrote back, quite understandably in the context of the letter of demand, advising that it had no record of an accident occurring on that day.)
33 As to the effect the incident had on her, Ms Curtin's evidence was that apart from her parents she did not tell anyone about what happened as she was too embarrassed. She said she spent a lot of time on subsequent flights in the toilet of the plane throwing up. When driving to work some days she would be forced to pull over because she would throw up at the thought of returning to work. She said in the months following the incident she was given two warnings by her employer for failing to hold up her appearance at work, being told she was wearing the wrong nail varnish and that she should be wearing heels.
34 Ms Curtin's evidence was that following the incident she began experiencing nightmares and problems sleeping at night which got so bad she would wake up her parents at night. She eventually finished up at Skippers in February 2010 because she was 'spending too much time throwing up and being sick in the toilet during flights', feeling it was dangerous to continue to work as she was putting the safety of passengers at risk by not being able to help them in the case of an emergency.
35 Ms Curtin gave evidence that she resorted to staying home and sleeping all day, which led her into 'a lifestyle of isolation and feelings of worthlessness. It got to a point where I wouldn't even leave my bed all day as I was too afraid and depressed to face the outside world'. She ate to feel better, which led to weight gain. She had never felt so depressed and worthless in her life. Before the incident she was bubbly and energetic, very social and attended dinners and went out regularly with her friends. After the incident she excluded herself from this type of behaviour for a period of time. Her boyfriend broke up with her as a result as she was becoming very moody and extremely hard to handle. She talked about feeling suicidal at many points during 2010 and feeling that she had lost a year of her life 'in that the whole of 2010 I did or achieved nothing'. She later said she would remain in bed all day and just sleep and most days she would not leave the house, unless her parents forced her to do so. She talked about the emotional and financial pressure which the incident had placed her parents under as 'enormous'. She said she was too afraid to apply for new jobs, that she had been left feeling dumb and worthless and 'the fact that Skippers did nothing to help or support my situation contributed to this feeling of worthlessness'. She also said the incident had cost her dream job of being a flight attendant and travelling the world.
36 The flight attendant who was on the same flight at the time of the incident, Ms Ackerman, gave evidence that she was herself subjected to inappropriate touching. She gave evidence that she had been rostered with Ms Curtin since the incident and had not noticed a change in her demeanour in the workplace. She noted that Ms Curtin was always the centre of attention, bubbly and popular and very social.
37 Another employee of Skippers, Ms Seabrook, gave evidence that she had known Ms Curtin since the commencement of her employment. Ms Seabrook had been Skippers' compliance officer between 2008 and 2010 and in January 2010 was appointed as the Safety, Health, Environment and Quality Manager for Skippers. Ms Seabrook recounted how Ms Curtin reported the incident and the steps which had been taken by Skippers as a result, which included reporting the incident to the Operations Manager, Roy Frost. Ms Seabrook's evidence was that Ms Curtin was not emotional when recalling the incident to her and Mr Frost, and that both she and Mr Frost asked both staff (Ms Curtin and Ms Ackerman) if they were alright and if they required counselling. Both declined and stated that they were okay. (A Skippers' incident report (AB 327) confirms Ray Frost's involvement and the steps he took.)
38 Ms Seabrook also gave evidence that she and Ms Da Silva 'de-briefed' Ms Curtin and Ms Ackerman after the incident which was probably the following Monday. Ms Seabrook was involved in the de-brief as the acting Safety, Health, Environment and Quality Manager (while the current manager was away).
39 Ms Seabrook's evidence included that Ms Curtin continued to work, completing over 105 flights, until she took sick leave on 11 February 2010. During this time she did not raise any issues or report any difficulties following the incident or that it was affecting her ability to carry out her duties. She had only utilised 'isolated' sick days since the incident. Ms Seabrook also described Ms Curtin as very bubbly, popular, loud and lively as well as usually very vocal and forthcoming.
40 Ms Seabrook advised that during November 2009 Ms Curtin had received a verbal warning in relation to her 'timeliness on duty'. Other than this Ms Seabrook stated there were no issues with Ms Curtin's standard of work.
41 There was before the arbitrator a copy of the 'Formal Verbal Warning' (which was in writing, and dated 4 November 2009 (AB 351)). The warning was for failing to present at work on two occasions, Thursday 17 September and Friday 30 October 2009, although it recorded 'you have been addressed previously for the same issue'.
42 Another Skippers document entitled 'Progress Review' (also dated 4 November 2002 (AB 353)) recorded that Ms Curtin had been late to work on numerous occasions for various reasons. She had also been spoken to about her grooming, i.e. hair untidy, wrong nail varnish and heels not being worn while in the Skippers building.
43 There was also a report from Ms Seabrook written after the receipt of the workers' compensation claim (AB 380) in which Ms Seabrook again set out the steps taken by Skippers following the incident, the fact that Ms Curtin continued to carry out her duties and that 'we at no time were approached by the worker that she was distressed, depressed or having anxiety issues on any of the 105 plus flights she has carried out since the incident'.
44 Ms Loughlin, another flight attendant employed by Skippers, gave evidence that she had known Ms Curtin for the past two years and worked with her on many occasions. Ms Loughlin described Ms Curtin as really loud and very social but a bit lazy at work. At work functions Ms Loughlin said that Ms Curtin liked to be the centre of attention. Ms Loughlin also spoke of Ms Curtin having 'run-ins' with other girls because of lies she has told (although in cross-examination she admitted this was what she had been told by others; she had never had a run-in herself with Ms Curtin). Ms Loughlin stated there had always been drama with Ms Curtin and that she exaggerated greatly about matters both work and non-work related.
45 Ms Loughlin's evidence included a description of a training session in January 2010 where scenarios were carried out to reflect both potential and actual in flight situations. One of those situations dealt with bad behaviour by drunken passengers about which Ms Curtin was very vocal, stating that this was the flight she was on, they were a bunch of 'dickheads' and she 'had dealt with that', or words to that effect. She was brazen and forthright in her manner.
46 Ms Loughlin gave evidence that Ms Curtin was introduced by another flight attendant at the commencement of that course as a 'party animal' and 'DJ Paris', with the introducer speaking about their nights out and that Paris (Ms Curtin) 'wanted to get more DJ gigs, get rich and retire'. After June 2009 Ms Curtin invited Ms Loughlin and others via Facebook and internal company email to a DJ competition in which she was a competitor and which she went on to win (although in cross-examination Ms Loughlin said she was not present at the event and heard only 'gossip' that Ms Curtin had won).
47 Ms Loughlin also gave evidence that she flew with Ms Curtin after the incident. She never mentioned the incident and seemed her usual self. She seemed even more happy than usual after starting a new relationship and talked about getting engaged. Ms Curtin had also attended the Skippers ball in October 2009 and was her usual self.
48 Ms Da Silva (now Mrs Hedges, but I will refer to her as Ms Da Silva as the arbitrator did so) was Skippers' Cabin Attendant Manager who was responsible for managing about 30 flight attendants, including Ms Curtin. Ms Da Silva described Ms Curtin as a friendly, happy positive character, flamboyant in her mannerisms with a tendency to over dramatise. She was very loud and vibrant and led a very busy social life (Ms Da Silva was a Facebook friend of Ms Curtin until March 2010). In cross-examination Ms Da Silva described Ms Curtin as 'a vibrant personality within the department and got on with passengers, and they got on with her. She was boisterous and loud but it was a positive thing' (ts 128).
49 Ms Da Silva could also recall the DJ event recalled by Ms Loughlin, and gave the date of this event as 16 September 2009, recalling that Ms Curtin was late for work the following morning, causing a flight delay. Ms Da Silva could recall that this (lateness to work) happened on at least three other occasions.
50 Ms Da Silva's evidence included that after the incident was reported, Ms Da Silva and Ms Seabrook met with both Ms Curtin and Ms Ackerman – a de-brief always occurred after any incident, whether minor or major (ts 128). Neither Ms Curtin nor Ms Ackerman appeared to be distressed when discussing the incident, but were more shocked at the behaviour of the passengers on the flight. Ms Da Silva discussed the procedures which the girls should have followed, and when they thought they were both in trouble, Ms Da Silva assured them they were not. Ms Da Silva's evidence was that at no time did Ms Curtin appear to be emotionally upset when relaying the events from the incident. Ms Curtin continued with her duties for months after the event. She did not display a different demeanour at work and remained her usually bubbly self. At no time did she tell Ms Da Silva that the incident was causing her distress and Ms Da Silva had seen her on an almost daily basis since the incident. Ms Da Silva described Ms Curtin as 'certainly not shy in speaking out when she has had an issue or problem'.
51 The surveillance material included two reports (AB 392 and AB 411) and a DVD recording (exhibit 5 (AB 130)) relating to Ms Curtin's attendance at Western Force rugby game on 2 April 2010, within two months of the commencement of the period of claimed incapacity. The surveillance report accompanying that DVD set out observations of Ms Curtin's attendance at the game as a special guest, attending a pre and post-match function held in the marquee. As she watched the match she 'laughed, cheered and conversed with family members and other spectators around her. She was also observed to drink alcohol'. I have reviewed the DVD recording of Ms Curtin walking to and watching the game. I noticed that she was happy throughout the game, chatting animatedly to different people who sat next to her, cheering and laughing at times. I observed her to have a glass of white wine and also drinking beer.
52 The surveillance material also included a report of Ms Curtin attending the Llama Bar on 25 May 2010, where her sister was singing. The report noted that Ms Curtin presented as 'jovial', gregarious and outgoing. This, the Western Force game and an 'Arts for Education' function on 30 May 2010 were the only social activities which Ms Curtin was observed to have attended during the relevant surveillance period (three days in April 2010 and between 14 May and 13 June 2010).
53 The Facebook entries (AB 400 – 410) included the following:
(a) Entries evidencing that Ms Curtin had attended a concert known as the Big Day Out (referred to as BDO) on 31 January 2010, telling her friends the following day, 1 February 2010, 'Paris Curtin actually had a Bestival yesterday, Girl Talk AMAAAAAAAZING!!!!!' (Ms Curtin admitted in cross-examination in the arbitration that she had spent all day at the Big Day Out).
(b) An entry dated Friday 5 February 2010 in which she posted 'Paris Curtin does noooooo have a Doppelganger, Pink Champies going down like heaven'.
(c) An entry dated 9 February 2010 saying 'Paris Curtin would like some suggestions on a new career. All suggestions welcome'.
(d) An entry on 17 February 2010 by a friend saying 'Your mum wrote on my fb status, but I accidentally deleted it. and she mentioned you and bec coming over my way middle of year… so what's the plan baboosh, you heading to oxford or london?'.
(e) An entry on 7 March 2010 from a Steven Anthony which said 'Thanks for boozing me up Paris, tomorrow I'm going to be such joy, sent me those ball pics'.
(f) A posting by Ms Curtin on 16 April 2010 saying 'Paris Curtin likes to think the best in me is still hiding up my sleeve'.
(g) A posting on 17 April 2010 about watching a YouTube video 'I honestly can't stop watching this and cracking up'.
(h) The following day, 18 April 2010 a posting which said 'Paris Curtin can't believe its been one amaaaaaaaaaaazing year, love your guts x'.
(i) Another friend's entry on 7 May asking 'Parissssss!!!!, what's your travel plans for Europe?!'.
(j) A posting on 12 May 2010 which said 'getting an iphone is just as exciting as kissing the tradie working on my backyard'.
(k) An entry 14 May 2010 referring to the Fremantle Dockers AFL football game 'Give em the old heave ho loving the drinks and atmosphere at the game! Gina you're missing out cheers for leaving me high and dry with just the boys haha game on!!!!'.
(l) An entry the following day on 15 May 2010 in response to going out that night 'Yes lover I am sorry! I never replied to your txt I have a new phone and lost all of my numbers can't wait to see you xx'.
(m) A posting from a friend on 17 May 2010 saying 'Hey Parieeeeee! How did you go at the engagement party. Nath ended up being very marinated so we got home about 9!', followed by a comment from another friend 'Ahaha I think she left an impression on everyone'.
(n) A posting by Ms Curtin about a band called UNIFYD having a gig at the Llama Bar on 25 May 2010, and inviting 'everyone' to attend.
54 In response to the statements containing the above evidence from her work colleagues, the surveillance material and the Facebook entries Ms Curtin stated (in her original and a supplementary statement or in her cross-examination at the arbitration) that:
(a) In her original statement, in relation to the rugby game in which she was seen smiling and displaying enjoyment, she was asked by her parents to attend as a way of getting her out of the house to try and be more sociable and she reluctantly attended with her parents. She stated that she was on medication for her depression and having forgotten this, started to consume some alcoholic drinks which she believed had an adverse effect on her as the mix of the prescription medication and alcohol was quite strong. Later in her supplementary statement Ms Curtin stated that she was being pushed by her sister and mother to go, and took her mother's ticket. She drank because she needed to have 'dutch courage'.
(b) When asked about attending rugby games by Dr Edwards-Smith, she honestly believed that the last game she attended was the year before.
(c) The Facebook entries had been taken out of context or only part of the message had been copied. Facebook is not factual but a fantasy; everyone posts messages regarding happy and outrageous things. She could not post her suicidal thoughts; no-one would ever post their true dark thoughts. Her father called it Fakebook and she thought it is exactly that. She later said, however, that 'Facebook became my connection with the outside world as well as my escape. It was the place I could go and presented how happy I was even while I was in the depths of depression and having suicidal thoughts'. A lot of what she posted on Facebook was from songs, quotes, or a reflection of how she wished she felt rather than what she did feel.
(d) In relation to some specific Facebook entries:
(i) The words 'the best of me is still hiding up my sleeve' were lyrics from a John Mayer song. She was a fan of his and used his songs as a way of making herself feel better.
(ii) When she asked for suggestions for a new career this was in response to her employment at Skippers and a direct result of the incident and her injuries. She later said it was a joke.
(iii) The entry 'getting an iphone is just as exciting as kissing the tradie working in my backyard' were written after receiving a new phone and the tradie in the backyard was a reference to her boyfriend.
(iv) In relation to the Llama Bar postings she did this to encourage her friends to turn up and support her sister, or to promote her sister, who is a singer and often had gigs at the Llama Bar. She did attend the Llama Bar on 25 May 2010 where her sister sang in the band.
(v) As to the entry on 7 February 2010 'Paris Curtin does not have a doppelganger, pink champers going down like heaven', when she wrote this she was not actually drinking champagne (she made the post just after 3pm when home alone) but thought it sounded good to post while she searched for her doppelganger.
(vi) The post on 17 February 2010 was a friend her mother contacted so that her sister would know someone when she studied in the UK. She did not respond to the friend's question about whether she planned to head over to the UK because she had no plans to.
(viii) The post on 7 March 2010 was from her boyfriend's best friend and the boozing up comment was directed at her boyfriend who rarely answered Facebook comments.
(ix) The post on 18 April 2010 when she said it had been an amazing year was her one year anniversary with her boyfriend.
(x) While she ticked yes to a party invitation on Facebook on 1 May 2010 she did not attend.
(xi) On 15 May 2010 she replies yes to the post 'ur coming2night aren't you babe?' simply to please people and did not attend.
(xii) She did not attend the engagement party referred to in the post-dated 17 May 2010. Her boyfriend attended alone.
(e) While she attended the Luxe Bar on 16 September 2009 she did not enter a DJ competition but merely put on a CD she had burnt at home and pushed play.
(f) On 17 September 2009 she was running late for work. During the two years she had worked for Skippers she had never received a verbal warning for anything.
(g) She had attended the Skippers ball in October 2009 but this was the last work social event she went to.
(h) On 30 October 2009 she had not received any complaint about her work, time or standards. When she received the verbal warning which was also written on 4 November 2009 she sobbed in the office of Sandra Da Silva. She was not asked what was wrong, why she was so upset or why she was depressed 'as noticed by other flight attendants'.
(h) She attended the Crew Resource and Management Training session which was a 'dreadful day of humiliation for me'. She tends to become loud and animated to cover embarrassment. She possibly did refer to the passengers as dickheads but did not recall bragging 'I dealt with that'. That training session left her feeling even more insecure at the thought of flying.
(i) The girls she worked with and considered friends would continuously ask her what was wrong because she was so down. None of those girls were asked to provide a statement. Ms Da Silva saw her on occasions after the incident when she was upset and teary but never asked her what was wrong.
55 There was also evidence at the arbitration that Ms Curtin had travelled to the UK in mid-2010 (she was not sure whether she had left in June or July) and also went to Bali in November 2010.
56 A critical issue at the hearing of the arbitration was the credibility of Ms Curtin and the reliability of the account she provided as to her symptoms, not only generally but also to the medical experts, Dr De Felice and Dr Edwards-Smith.
57 A diagnosis of PTSD and depression had been made by Dr De Felice and Dr Edwards-Smith on the basis of a history given by Ms Curtin which included, relevantly, that:
(a) Driving to work she felt terrible, nauseated and would start vomiting: Dr De Felice's first report of 29 April 2010 (AB 245); Dr Edwards-Smith first report (AB 263). She only tolerated flights with marked nausea and anxiety and was especially bad when she was the sole flight attendant and vomited on flights: Dr De Felice's first report (AB 245 – 246); Dr Edwards-Smith first report (AB 263).
(b) As she deteriorated through 2009 she took less and less care of herself. She said that she was told off by the head cabin attendant because her appearance had declined and was given a written warning because of this. She indicated that it made her feel that the company just did not care about how she was and how the incident had affected her, but rather just about how she looked: Dr De Felice's first report (AB 245); see also Dr Edwards-Smith first report (AB 263 – 264). She had burst into tears in the interview in which she had been given her written warning: Dr Edwards-Smith first report (AB 264).
(c) She experienced difficulty sleeping and nightmares: Dr De Felice's first report (AB 245, page 2); Dr Edwards-Smith first report (AB 264, page 6). At first she did not have nightmares so often but these increased the longer she tried to put the issues aside. Since the beginning of the year (2010) she had experienced frequent nightmares of the incident and intrusive recollections of the incident despite efforts to put it out of her mind: Dr De Felice's first report (AB 245, page 2).
(d) She did not go to work functions and felt that everyone at work started to criticised how she had dealt with the incident: Dr De Felice's first report (AB 245).
(e) She pushed her friends away and had become snappy with people, she was irritable and started to push her boyfriend away: Dr De Felice's first report (AB 245 - 246); see also Dr Edwards-Smith first report (AB 265) (where she told Dr Edwards-Smith that the relationship with her boyfriend had been rocky).
(f) These changes started off initially at work and then spilt over into her personal life within weeks. They gradually worsened despite her efforts to ignore it all. She did not want people to know so she tried to put on a brave face, even though she felt panicky and was vomiting when on board: Dr De Felice's first report (AB 246); see also Dr Edwards-Smith's first report (AB 271).
(g) She avoided going anywhere in public: Dr De Felice's first report (AB 247). She felt that others were staring at her and felt exposed: Dr De Felice's first report (AB 246 and AB 247); see also Dr Edwards-Smith first report (AB 265).
(h) She started to lose interest in going out, gradually withdrawing socially, reaching the point towards the end of 2009 where she did not want to go out at all. She lost interest in things and did not want to do anything: Dr De Felice's first report (AB 245). She had stopped going out (for example to dinner or dancing) and out on other occasions such as going to Western Force games, or going to pubs and had not returned to doing these things: Dr De Felice's first report (AB 247). Since ceasing work she had not wanted to go out. She preferred not to go out and to remain at home: Dr Edwards-Smith first report (AB 264 and AB 265, pages 6 and v 7). Dr Edwards-Smith recorded that Ms Curtin told Dr Edwards-Smith that she had not attended a rugby game this year and she is usually an avid Western Force supporter.
(i) She had increased her alcohol towards the end of 2009 ('self-medicating' with alcohol according to Dr Edwards-Smith) and food intake (eating 'for comfort' according to Dr Edwards-Smith) and gained weight: Dr De Felice's first report (AB 246 and AB 247); Dr Edwards-Smith's first report (AB 263, AB 269 - 270 and AB 271).
58 Based on this history, Dr De Felice in his first report concluded that Ms Curtin suffered from PTSD precipitated by the traumatic incident she described in the course of her work on 26 June 2009. She had developed the complication of alcohol abuse but this had settled. She had also developed a major depressive disorder precipitated by the trauma of the incident and her experience of it as derogatory and humiliating. In relation to her work capacity Dr De Felice said 'I think that Ms Curtin should be applauded for having continued to work as a flight attendant until February 2010. Unfortunately, her efforts at containing her psychiatric symptoms were gradually overwhelmed and she has been unable to work since February 2010'.
59 In a subsequent letter to Ms Curtin's lawyers dated 12 August 2010, Dr De Felice confirmed that Ms Curtin had suffered from PTSD precipitated by the traumatic incident she described in the course of her work and then developed the secondary problems of major depression and alcohol abuse, 'the latter having settled at the time of my review'. He also expressed the opinion that Ms Curtin's employment had contributed to her condition and was a significant contributing factor to the psychiatric symptoms and condition she had been experiencing.
60 In Dr Edwards-Smith's first report she noted that 'in this matter the assessment is entirely reliant upon the veracity of Ms Curtin's history. If one accepts her self-report then the diagnosis is of 1) Post-traumatic Stress Disorder and 2) Major Depressive Episode pursuant to the criteria of the DSM IV and that she is now in the recovery phase' (AB 269 and see also AB 272 and AB 273).
61 Dr Edwards-Smith's diagnosis of PTSD was based on Ms Curtin's development of 'intrusive re-experiencing phenomena in the form of nightmares and thoughts of the incident of 26 June 2009, in association with increasing symptoms of anxiety'. Dr Edwards-Smith's diagnosis of Major Depressive Episode was made 'in the context of her symptoms of low mood, increased appetite, weight gain and sleep disturbance, loss of interest, energy and enjoyment and here there is obviously an overlap with the symptoms of PTSD. There has also been evidence of a co-morbid alcohol abuse disorder which she states is currently in remission'. Dr Edwards-Smith did note, again, some concerns with the reliability of Ms Curtin's history.
62 By the time of their second reports both Dr De Felice and Dr Edwards-Smith had the surveillance material, which included the surveillance of Ms Curtin at the Western Force game on 2 April 2010, the Facebook entries and statements from Ms Curtin's work colleagues. Both medical experts noted that these had an effect on Ms Curtin's veracity, although Dr Edwards-Smith was more forceful in her views.
63 In her second report Dr Edwards-Smith stated in relation to the DVD of the Western Force game that Ms Curtin 'is noticed to be gesticulating, smiling, is obviously displaying enjoyment, consuming alcohol, dancing'. Based on this Dr Edwards-Smith stated that she did not consider that Ms Curtin's self-report was concordant with her presentation on the surveillance DVD, noting further that:
… In addition, I questioned Ms Curtin on three occasions during my interview with her and reminded her that it was important that she was honest with me as to whether or not she had attended any major events, including sporting events or games of the Western Force and said that, no, she had not attended any Western Force games in 2010. This is in direct contradiction to the surveillance DVD.
64 Dr Edwards-Smith later noted that in relation to Ms Curtin's apparent demeanour on the surveillance DVD:
I consider that it does not appear that she was simply putting on a brave face, but rather displayed extroverted behaviour far in excess of what one would consider to be a 'brave face'.
65 Dr Edwards-Smith also reported that Ms Curtin's 'extensive postings on Facebook and descriptions of social activity' were not at all concordant with her self-report of her activities, enjoyment of life or relationships.
66 With regard to all of the evidence (including the surveillance and Facebook pages), Dr Edwards-Smith advised that she did not consider that Ms Curtin was a reliable historian and that cast into 'considerable doubt' the veracity and reliability of the history upon which Dr Edwards-Smith's diagnostic and other conclusions were based in her previous report, and also on whether Ms Curtin was medically incapacitated. Dr Edwards-Smith went further and stated that the more likely possibility in the context of a medico-legal and forensic assessment, given the weight of the evidence, was 'that Ms Curtin is either fabricating or exaggerating her symptoms for the purpose of secondary gain'.
67 When Dr De Felice wrote his second report of 20 May 2011 he also had the benefit of Dr Edwards-Smith's second report, the surveillance report (but not the DVD), the Facebook entries and witness statements from Ms Curtin's work colleagues. Dr De Felice saw Ms Curtin again and took another history which included:
(a) Since last seeing Dr De Felice in April 2010, she had been seeing a psychiatrist, Mr Golic 'probably' from mid-2010 but had not seen him for a while because she felt guilty her parents were paying for it. She also had not continued to see a psychologist she had seen in about April 2010 because she 'didn't have confidence in the confidentiality of that psychologist'. She did not want to see another psychologist because she felt worse for her contact with the psychologist at the time as she had 'kept just going over all that she had experienced on the flight' (AB 289).
(b) She had broken up with her boyfriend in January 2011 ending an approximate 18-month relationship because he could not handle her mood swings (AB 290).
(c) She was scared to gain employment for fear that people would think she was stupid, she lacked confidence, skills. She had received knockbacks from job applications and interviews (AB 290).
(d) She felt nervous and sick about things including things to do with employment or going places she had not been before (AB 290).
(e) She lacked confidence, was emotional, had up and down moods and felt depressed half the time and had suicidal ideas on some days (AB 290).
(f) She experienced nightmares once every few weeks about being in a plane and people asking her things she did not know (AB 290). Her sleep was better (AB 291).
(g) With reminders of the incidents she had feeling of not having control, feeling dumb, upset, worthless, anxious, sick and nauseated (AB 291).
(h) She felt she had to tell her friends about the incident because they did not understand why she went missing in action for so long. She was trying to reach out to her friends and reconnect (AB 291).
(i) She drank socially (AB 291) and had lost weight but was still heavier than before the incident (AB 290).
68 Dr De Felice noted that Ms Curtin was distressed, anxious, down and tearful throughout the interview. He concluded that, on the face of Ms Curtin's self-report, confirmed by her mother (who attended the interview) Ms Curtin suffered from 'some residual symptoms' of PTSD and major depression, although these were much improved from when he had last seen her in April 2010.
69 Dr De Felice addressed the witness statements of Ms Curtin's work colleagues. He suggested that they were in keeping with Ms Curtin's description of putting on a brave face, hiding her distress, particularly at work and accordingly those work colleagues may not have observed anything unusual about her behaviour.
70 Dr De Felice did, however, agree with some of Dr Edwards-Smith's observations:
(a) He agreed that 'some of the comments on Facebook go beyond putting on a brave face and show an enthusiasm that is not in keeping with someone who is suffering with PTSD and major depression'.
(b) Dr De Felice also considered that the surveillance of Ms Curtin attending the Western Force game, 'casts some doubt on the history Ms Curtin provided' and he did not accept her explanation that she had simply forgotten to tell both Dr Edwards-Smith and himself about attending this game. Dr De Felice had not seen the DVD, but had seen the pictures in the surveillance report and observed 'she seems to be enjoying herself much more than I thought she would, given her description of her symptoms when she saw me in April 2010'. Dr De Felice noted, however, that in the absence of other surveillance footage it was unclear whether this was indicative of Ms Curtin's activities and social engagement throughout that period.
71 As to whether Ms Curtin was a malingerer as stated by Dr Edwards-Smith, Dr De Felice said that he understood that 'there is some doubt as to the reliability of Ms Curtin's history'. Nevertheless, he could not conclude that her history should be dismissed.
72 Earlier in his report, however, when Dr De Felice had said he could not conclude that Ms Curtin was malingering, he added that 'I would certainly defer to a court's decision in this regard but I don't think that the evidence is sufficient for me to conclude this'.
The arbitrator's reasons for decision
73 The first part of the arbitrator's reasons [1] - [6] dealt with background and the circumstances of the incident. The arbitrator then summarised the evidence of Ms Curtin in [7] - [28] (confined to the incident) and most of the evidence of the witnesses called by Skippers in [29] - [54].
74 The arbitrator then addressed, in her reasons [55] - [64], the reliability of Ms Curtin's evidence. It is necessary to reproduce these paragraphs in full:
55. I am concerned about the inconsistencies in the various statements made by the Applicant in relation to the circumstances of the incident and the differing representations made by the Applicant as to her symptoms and the effect they have had on her. More particularly, in regards to the latter, I am concerned that the Applicant has said things to the doctors about her social isolation and not attending events, going out etc ... that are simply not true.
56. For example, the Applicant specifically told Dr De Felice as reported on 29 April 2010 'that she used to go out dancing a couple of times a week, out to dinner with her friends every couple of weeks, out with her boyfriend, Andy, once or twice a week to dinner and out on other occasions such as going to Western Force games, or going to pubs and the like. She said she hadn't returned to doing these things'. Further, she told Dr Edwards-Smith as reported on 15 June 2010 'she said that she had not attended a rugby game this year'. She also told Dr Edwards-Smith she 'had been out once in the last two months'.
57. The statements regarding the rugby game are not correct as on 2 April 2010, 27 days before her appointment with Dr De Felice and about 10 weeks before Dr Edwards-Smiths' report she attended a Western Force game including pre and post-game functions. The Applicant admits so in evidence in chief and on cross-examination. It is also evidenced by the surveillance and the surveillance report on page 89 of exhibit 2. She had said she didn't mention this because it slipped her mind.
58. She was planning a trip to Europe by the time she saw both Dr De Felice and Dr Edwards-Smith.
59. Further, in October 2009 she attended the Skippers Ball, on 31 January 2010 she attended the Big Day Out. On 16 September 2009 she was involved in a celebrity DJ event. There was some conjecture about her involvement. She says she simply attended and put a mix of her own songs and she actually wasn't an entrant in the competition. However, she seemed to have painted a different picture to her work colleagues, posting the event asking them to attend and vote for her. There was talk that she 'had won the event' though the Applicant denies this. These social events predate the period of incapacity claimed an [sic] in my view, do not equate to a capacity for work, particularly as she was working during that period.
60. I find it hard to accept the Applicants explanation in relation to the Western Force game, that she simply forgot. For a person as isolated as she portrayed herself to be at that time, I would expect that an outing such as this would be memorable. Further, in a background of social isolation and withdrawal, the Applicant not only attended a Western Force game notwithstanding that she told both Dr De Felice and Dr Edwards-Smith that she no longer does so, she also attended the Big Day Out which she posted on Facebook and accepted on cross-examination and seemed to enjoy the event. This is evidenced by a posting on Facebook on 1 February 2010, the day after the Big Day Out which is 'Paris Curtain actually had a best of all … girl talk AMAAAAAAZING'.
61. Whilst the Applicant refers to Facebook as 'fake book', I am not convinced that she did not enjoy herself at the event. It also appears that she attended the event for the whole day.
62. Further there seemed to be further social events that she attended during the period of incapacity claimed. For example, one posting on Facebook being 7 March 2010, 'Thanks for boozing me up Paris …'. She was cross-examined on this and indicated that the person who posted this was her boyfriend's best friend and it was actually a reference to her boyfriend and not herself. However when she was pressed that it reflects her drinking with Stephen Anthony, her response was it was not actually what had happened. Whilst she says this, if it was a reference to her boyfriend, I would have expected his name to be there and not hers.
63. Further, the Applicant attended the Llama Bar on 25 May 2010.
64. Such inconsistency causes me to look carefully at the Applicants evidence and to reason her explanation 'as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events': Fox v Percy [2013] 214 CLR 118 [31]. As such, in those instances where her evidence is inconsistent with the evidence given by other witnesses whose reliability is not in doubt my approach is to prefer the evidence of those other witnesses as to the inconsistency. Whilst these inconsistencies in the Applicants evidence place some doubt on the reliability of her evidence, I am not prepared to dismiss totally her history as portrayed to me. I find it difficult to believe that someone having been subjected to the appalling behaviour and physical abuse by the passengers on that flight would not suffer some sort of trauma. This is in keeping with the Respondents approach whereby it has acknowledged both flight attendants as having been distressed by the incident as contained in the Bristow Report dated 29 June 2009 as appears on page 41 of Exhibit 2 being the Respondent's documents.
75 After making findings as to the circumstances of the incident, the next part of the arbitrator's reasons [69] – [104] dealt with the issue of whether Ms Curtin suffered a compensable injury. In her reasons [75], in discussing whether Ms Curtin had suffered an injury, the arbitrator recorded Ms Curtin's evidence that although she continued working for about eight months following the incident, her symptoms 'of anxiety, vomiting etc' became gradually worse to the point where she ceased work in February 2010. The arbitrator observed, further, that:
75. … She says that her symptoms were exacerbated by the lack of support she felt she received from the Respondent. I find it difficult to reconcile the Applicants [sic] feelings with what actually occurred as there was extensive evidence as to the extent of investigation undertaken by the Respondent regarding the incident and the actions taken following it. However, I understand the Applicant to be saying that she continued to suffer from the effects of the incident and felt subsequently unsupported. I understand she feels this way but it appears to me the Applicant did not necessarily make it known that she was still suffering so as to alert the Respondent that support was needed.
76 Later in [76] the arbitrator addressed the evidence of Ms Curtin's symptoms which I would summarise as vomiting during flights, becoming depressed, staying at home and sleeping, feeling isolated and worthless to the point where she would not leave her bed as she was too afraid and depressed to face the outside world (and not leaving the house unless forced to do so by her parents), eating more and gaining weight, becoming socially withdrawn, breaking up with her boyfriend, becoming moody, having trouble sleeping at night and experiencing nightmares.
77 In [78] the arbitrator set out the symptoms from a report dated 28 April 2010 from Ms Curtin's general practitioner, Dr Polczynski which recorded complaints by Ms Curtin of symptoms including low mood, nihilistic thoughts, anhedonia, anxiety, tearfulness, interrupted sleep, changed eating habits leading to weight gain, loss of confidence and hatred for work. The arbitrator noted 'the symptoms complained of seemed to be consistent with the complaints by the Applicant in her statement. It is also noted by this doctor that the emotional symptoms are accompanied by chronic nausea which is consistent with her statements that she was vomiting on flights'. In the reasons in [80] the arbitrator also noted the symptoms recorded in Dr De Felice's second report.
78 At [83] - [87] the arbitrator stated (italics in original; underlining added):
83. The Applicant's evidence is that she put on a brave front in remaining at work for 7.5 months. Dr De Felice says in the report of 30 May 2011 [sic 20 May 2011] that she may have suffered from a delayed onset of PTSD. However, the evidence suggests to me that there was not a delayed onset for 7.5 months. Whilst there are inconsistencies in the Applicants evidence, I accept her evidence as to the onset of her symptoms. The onset seemed to occur quite quickly after the accident but she covered it up. She appeared to be having and experiencing symptoms such as anxiety, nausea, increased alcohol use, known complications of PTSD well before she ceased work in February 2010.
84. For example, the Applicant says in her evidence that she spent a lot of time on subsequent flights in the toilet of the plane throwing up. When driving, she would be 'forced to pull over because I would throw up at the thought of returning'. Her grooming suffered, she began experiencing nightmares and had trouble sleeping. I accept these are subjective complaints. I accept Ms Da Silva said she seemed to display her usual demeanour after the incident. I accept Ms Loughlin's evidence that the Applicant made representations at the work training day. I accept Ms Seabrook's evidence that the Applicant made no complaint to her despite having flown 105 flights since the incident. However, the Applicants representations or lack thereof, seem to me to be consistent with her statement that she simply put on a brave front. There is nothing in the evidence before me to cause me to doubt her complaints. Even though she attended some social events during this time, it does not mean she was not experiencing the symptoms complained of.
157 Having regard to context in which delayed PTSD is mentioned, as well as the balance of the reports, I do not consider that either of the psychiatrists did, in fact, diagnose delayed PTSD. Rather, they were of the opinion that symptoms of PTSD had been suffered by Ms Curtin before she stopped work in February 2010. So far as the arbitrator suggested otherwise in her reasons, that is a mistake of fact and there is no error of law involved.
158 I am satisfied that the facts as found sufficiently vindicate the arbitrator's conclusions, both as to compensable injury and incapacity.
159 For these reasons I do not consider that there is any merit in this ground of appeal, and I refuse leave.
Appeal ground 3
160 This ground arises from the arbitrator's statement in her reasons [120] that having considered the evidence and in particular Skipper's submissions as to the reliability of Ms Curtin's evidence, 'I am not satisfied that the discrete and relatively low key outings constitute a capacity to work full time in her pre-accident duties or other duties or even on a part-time basis'.
161 It is for the applicant worker (in this case, Ms Curtin) to establish an incapacity, not for the respondent (Skippers) to establish a capacity: Mitchell v Canal Rocks Beach Resort[2002] WASCA 331 [13] - [14] and [20] (Templeman J) and [50] - [55] (Roberts-Smith J, Sheppard AUJ agreeing).
162 The submissions on behalf of Skippers were that the arbitrator's reasons [120] did not reflect the onus of proof and, in fact, reversed the onus.
163 In my view this paragraph in the arbitrator's reasons is another example of infelicitous language and lack of clarity. Reading the reasons as a whole I interpret this as a finding that Ms Curtin's activities and social engagements were 'relatively low key outings' and that notwithstanding the submissions by Skippers, the arbitrator accepted that Ms Curtin had an incapacity for the whole of the period as claimed.
164 To the extent that the arbitrator's language is an error of law or involving a question of law, I am not satisfied that [120] of the arbitrator's reasons is material to her decision, in the sense that it contributes to it so that, but for the error, the decision would or might have been different, or that there has been miscarriage of justice.
165 I refuse leave to appeal on this ground.
Conclusions and orders
166 For the reasons I have given I refuse leave to appeal and dismiss the appeal.
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