St Mary's School v Askwith
[2011] VSCA 90
•5 April 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2009 3887
| ST MARY'S SCHOOL | Appellant |
| v | |
| JENNIFER ASKWITH | Respondent |
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| JUDGES | WARREN CJ, ASHLEY JA and KYROU AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 4 April 2011 |
| DATE OF JUDGMENT | 5 April 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 90 |
| JUDGMENT APPEALED FROM | Askwith v St Mary’s School (Unreported, County Court of Victoria, Judge Wischusen, 19 August 2009) |
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ACCIDENT COMPENSATION – Workers compensation – Whether injury arising out of or in the course of employment – Whether employment a significant contributing factor – Respondent suffered psychiatric disorder prior to employment – Psychiatric disorder deteriorated during course of employment – Non-employment factors relevant to deterioration – Respondent rendered incapacitated for suitable employment – Stress associated with employment significant contributing factor to psychiatric deterioration –Whether trial judge adequately and completely considered Appellant’s expert psychiatric evidence – Whether trial judge properly identified contribution made by compensable injury to psychiatric disorder – Whether trial judge failed to take into account matters identified in s 5(1B)(d), (f) and (g) Accident Compensation Act 1985 (Vic) – Whether trial judge gave adequate reasons for decision – Trial judge properly considered evidence – Trial judge took into account all relevant considerations – Trial judge gave adequate reasons for decision – Appeal dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr R Gorton QC and Mr J Gorton | Minter Ellison |
| For the Respondent | Mr A Keogh SC and Mr S Carson | Maurice Blackburn |
WARREN CJ:
I have had the benefit of reading the judgment of Justice Ashley and agree with his Honour’s reasons.
ASHLEY JA:
A County Court judge held that the respondent, Jennifer Askwith, a woman born 26 May 1962, had suffered compensable injury in the course of her employment as a teacher by the appellant, St Mary’s School. Her employment commenced at the beginning of the school year in 2005, and for practical purposes continued until 11 October 2006. The judge therefore set aside the decision of the WorkCover insurer to reject the respondent’s claim for compensation.
The judge below identified the live issue in the trial as follows:
In substance, the issue in the case was this. It was the plaintiff’s case that her work and her dealings with the people she worked with at St Mary’s School was a significant contributing factor to the deterioration in her mental health which occurred in the year 2006. The plaintiff pointed to a number of aspects of her experiences at St Mary’s School which, taken together, amounted to a significant contributing factor to the aggravation, acceleration, exacerbation and deterioration of her mental health. It was the defendant’s case that the worsening in 2006 was a result of non-work factors and that if employment played any part at all, which was denied, it did not satisfy the statutory requirement that it be a significant contributing factor. The defendant pointed to other circumstances in the plaintiff’s life which it said readily explained or caused the worsening of the plaintiff’s condition at that time. Importantly, it pointed to the significant problems with the plaintiff’s physical health over the period of her employment, her long and complicated history of psychiatric ill-health, her previous level of functioning and the deteriorating health and death of the plaintiff’s father. The defendant denied that many of the plaintiff’s complaints had any basis in truth and contended that the events which did occur in the course of her employment did not cause sufficient stress to be a significant contributing factor to the worsening.[1]
[1]Footnote omitted.
The grounds of appeal
The grounds of appeal are as follows:[2]
[2]Paragraphs 1–6 of the notice of appeal set out the orders made below.
7.The learned trial Judge erred by failing to consider and have regard to the evidence and opinion of Dr Entwistle, psychiatrist, that employment was not a significant contributing factor to the Respondent’s mental condition.
8.Alternatively to [7], the learned trial Judge erred by failing to give any or any adequate reasons for rejecting or not acting in accordance with the evidence and opinion of Dr Entwistle, psychiatrist, that employment was not a significant contributing factor to the Respondent’s mental condition.
9.The learned trial judge erred by failing to identify, as a necessary and prior step to considering whether employment was a significant contributing factor in a person with a pre-existing psychiatric condition, the compensable injury (in contrast to her general medical condition) including by reference to its nature and date of occurrence.
10.Having found that the Respondent was psychiatrically unwell at least by late September 2006, the learned trial Judge erred in considering whether employment was a significant contributing factor by:
(a)Failing to limit himself to consideration of stressors occurring prior to the onset of compensable injury or manifestation of her psychiatric condition.
(b)Taking into account stressors occurring after the Respondent suffered the onset of her mental condition or compensable injury.
(c)Failing to consider whether the Respondent’s mental condition would have occurred in any event if no regard were had to:
(i)employment stressors generally; or
(ii)employment stressors after the onset of the relevant medical condition or compensable injury.
11.The learned trial Judge erred by failing to take into account factors (f) and (g) of s.5(1B) of the Act, and particularly the Respondent’s domestic and family stressors, accidents, alcohol consumption and bouts of medical treatment as matters requiring consideration when determining whether employment was a significant contributing factor to the Respondent’s mental condition.
12.The learned trial Judge erred by failing to take into account factor (d) of s.5(1B) of the Act, alternatively by failing to give any or any adequate explanation in his reasons as to how it was taken into account.
13.The learned trial Judge erred by failing to give adequate reasons demonstrating the process by which he arrived at the conclusion that employment was a significant contributing factor to a compensable injury.
The nature of the appeal
The County Court judge exercised jurisdiction under s 39(1)(a) of the Accident Compensation Act 1985. Right of appeal is given by s 52(1) of the Act, which provides that a party may appeal to this Court ‘on a question of law raised during [the] proceedings.’ That is a confined right of appeal, as is illustrated by the judgment of Tadgell JA in Green v Victorian WorkCover Authority,[3] not to be equated with the appeal authorised by s 74(3) by the County Court Act 1958. Section 52(9) of the Act specifically states that s 74 of the County Court Act is inapplicable to a judgment in proceedings under the Act.
[3][1997] 1 VR 364, particularly 369–370, and 372–3; see also 384 (Phillips JA).
The nature of the appeal must be kept steadily in mind when considering this matter. No question arises of the Court conducting its own review of the evidence, then concluding that some finding made below could not be supported. The notice of appeal, I should say, does not overtly invite such a review.
The legislative framework
The core provision relating to entitlement to compensation, in the respondent’s case, was s 82(1) of the Act. It reads:
82. Entitlement to compensation
(1) If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.
The effect of s 82(2C)(c) is that compensation is not payable in respect of a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease ‘unless the worker’s employment was a significant contributing factor to the injury’.
‘Injury’ is defined by s 5 of the Act, relevantly as follows:
Injury means any … mental injury and, without limiting the generality of that definition, includes
…
(c)a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease;
Section 5(1B) provides that –
(1B)In determining for the purposes of this Act whether a worker's employment was a significant contributing factor to an injury—
(a) the duration of the worker's current employment; and
(b) the nature of the work performed; and
(c) the particular tasks of the employment; and
(d)the probable development of the injury occurring if that employment had not taken place; and
(e) the existence of any hereditary risks; and
(f) the life-style of the worker; and
(g) the activities of the worker outside the workplace—
must be taken into account.
The requirement that employment be ‘a significant contributing factor’ to the injury is less stringent than the requirement that injury arise out of the employment. That is what I held in Popovski v Ericsson Australia P/L.[4] The correctness of the proposition was not doubted on appeal, notwithstanding that a different result ensued.[5] On the other hand, for reasons which I explained in Popovski, ordinarily the difference in the requirements is unlikely to influence the outcome of a proceeding.
[4][1998] VSC 61 [51]–[64].
[5]Ericsson Pty Ltd v Popovski (2000) 1 VR 260.
Legal principles not in issue
It was not in issue at trial that –
[8]It was accepted by the defendant that in examining whether employment was a significant contributing factor to the worsening, the defendant takes the plaintiff as it finds her. It was further accepted that it is not to the point that work influences might have had no effect on a person who did not suffer from the pre-existing conditions or vulnerabilities of the plaintiff.[6]
or
[18]As [defendant’s counsel] properly conceded, a stressor may nevertheless be relied upon for the purposes of a case such as this if the plaintiff’s perception of an event or circumstance, has a real connection with events that occurred arising out of her employment – as distinct from an event she simply imagined was connected with her employment.[7]
[6]Footnotes omitted.
[7]The judge cited State Transit Authority of New South Wales v Chemler [2007] NSWCA 249. See [67]–[69] (Basten JA) and, to similar effect, [34]–[40] and [49]–[54] (Spigelman CJ).
The words ‘significant contributing factor’ involve resolution of an essentially factual enquiry, the question being one of degree, requiring evaluation.[8]
[8]Ericsson Pty Ltd v Popovski (2000) 1 VR 260, 268 [24] (Brooking JA).
In Popovski, I expressed the tentative opinion that the adjective ‘significant’ should be accorded a meaning of ‘considerable amount or effect’.[9] Nothing was said on appeal to put that opinion in doubt.
[9]Popovski v Ericsson Australia Pty Ltd [1998] VSC 61 [61].
Popovski was decided in the context of a different legislative regime. The phrase ‘significant contributing factor’ was then present both in the definition of ‘injury’ and in s 82(1) of the Act. It was in that context that Winneke P used the words, obiter dictum, ‘strong causal connection’ in TGT Transport v Zammit[10] when describing the required causation in the cases to which the ‘significant contributing factor’ requirement applied.[11]
[10](2000) 2 VR 312, 328 [30]. The case substantially raised the question whether a worker had suffered fatal injury during an authorised recess. A majority in this Court so held, reversing the decision of a County Court judge. The widow was granted special leave to appeal to the High Court on 22 June 2001. But it appears that the appeal, for whatever reason, did not proceed.
[11]As to which, see not only Zammit but also Carlton & United Breweries Ltd v Hegedis (2000) 4 VR 296.
In Zlateska v Consolidated Cleaning Services Pty Ltd[12] this Court discussed the meaning of ‘arising out of the employment’. It made some mention of the ‘significant contributing factor’ concept. Although the provisions of the Act relevant in Zlateska remained in the form relevant in Popovki and Zammit, Carlton & United Breweries Ltd v Hegedis[13] had established that the ‘significant contributing factor’ requirement had no operation in the circumstances of Zlateska. So, understandably, the Court expressed no opinion about the meaning of the phrase which I had tentatively advanced in Popovski.
[12][2006] VSCA 141. See [42]–[61], [73]–[76] and [78]–[82] (but see n 52).
[13](2000) 4 VR 296.
In the present case, it was uncontroversial at trial that the judge should act upon that meaning; and no suggestion is made by the notice of appeal that his Honour misdirected himself by doing so. In deciding the question, the matters specified in paragraphs (a)-(g) of the s 5(1B) definition must be brought to account – remembering always that the matters specified are not exhaustive.
Factual matters not in issue
Certain factual matters were not in dispute at trial. Thus -
(a) The respondent suffered from psychiatric injury before she began work with the appellant. She had been under treatment from late 1993.
(b) The respondent suffered episodic ill health throughout the period of her employment by the appellant. She lost time off work.
(c) The respondent’s psychiatric condition deteriorated during the period of her employment by the appellant.
(d) The respondent’s psychiatric condition ultimately incapacitated her for suitable employment.
The sources of evidence at trial
The sources of evidence put before the judge were as follows:
[10]The plaintiff gave evidence and was cross examined. Her evidence took the better part of three days. In addition, there was evidence from her treating general practitioner and, until the end of the year 2006, her treating psychiatrist, Dr John Mestrovic. A number of medical reports and records were tendered. The defendant called evidence from the two principals of St Mary’s School at the relevant time, and from the principal of the school at which the plaintiff taught before joining St Mary’s School. A number of her fellow workers were also called in evidence. The Defendant tendered medical reports from psychiatrists, Dr Entwistle and Dr Sheehan.
The judge’s assessment of the respondent
Bearing in mind the importance of determining whether there was a factual basis for the perception of affairs which the respondent claimed to have, and the importance of determining whether the respondent held the averred perception, the judge’s assessment of the respondent as a witness was extremely important. This is what his Honour said:
[11]The plaintiff was extensively cross examined as to all of the matters she said caused her difficulty in the course of her employment with St Mary’s, and as to circumstances which existed, including her health, before her employment with St Mary’s, and external to it. The plaintiff’s presentation and demeanour in the witness box was unusual, no doubt explained partly at least by the serious psychiatric illness it is agreed she now suffers from. Her demeanour varied from time to time over the days on which she gave her evidence. Her answers were not always responsive. She sat slumped in the witness box, often with her eyes closed and looking away from the questioner. At times her answers were rambling and she often had to ask what the question she was answering had been. She was dogmatic and particular about certain events that she said had occurred and, at other times, vague and apparently forgetful. Her recall of dates and times and conversations in respect of many ‘key’ events was remarkably precise and was in contrast to her recall of other matters which were put to her as having occurred.
[12]Overall, I thought the plaintiff’s evidence was an attempt to give an accurate account of her experiences in certain areas and I am not persuaded, despite forceful submissions to this effect by Mr Batten, who appeared with Ms Manova for the defendant, that her account of her experiences at St Mary’s School was made up, feigned, or a deliberate construction designed to fortify her claim for compensation.
[13]That is not to say that I accept her evidence (in the end this was an opinion or belief that the plaintiff had formed) that the behaviour of staff and superiors at St Mary’s School were in any sense a deliberate attempt to bully or harass her. Rather, given her personality and pre-existing psychiatric health, I think it likely that her account in evidence before me is of her perception of events and circumstances that, in large part, is based on fact, but which has been substantially coloured by ruminations and her mental illness since that time and by, what her long-term treating psychiatrist described as, her ‘paranoid view of the world’.[14]
[14]Footnote omitted.
Sources of stress
The judge very clearly identified the broad sweep of the (alleged) conduct upon which the respondent relied:
[14]The plaintiff identified a number of events and behaviours by the people that she worked with at St Mary’s School as the causes of stress which significantly contributed to the worsening of her condition. In the main they were the making of phone calls on a frequent basis to enquire about her health and when she would be coming back to school, the pressure she was subjected to at the end of Term 2, 2006 to produce reports on her students, the failure of the school to provide her with any documentary evidence of her employment, the fact that she was informed very late in her employment that she was on a fixed term contract whereas she believed that she had been offered a permanent or, to use the school industry jargon ‘ongoing’ position at St Mary’s School, the Principal’s direct enquiries as to her various unrelated health conditions, the school’s insensitive handling of her need to attend to her father during his final days, the lack of support offered to the plaintiff in respect of an incident with a parent in October 2006 and a range of other perhaps less important moments of friction between the plaintiff and school administration
Then he discussed the competing evidence with respect to particular items of conduct, and expressed conclusions. He prefaced this analysis by saying that –
I have found that there is, on the evidence taken as a whole, considerable support for a finding that in fact, many of the matters upon which the plaintiff relies took place.
In short, his Honour found that there was a factual basis for –
(a) The respondent’s perception that she was put under unfair strain and pressure on the last day of Term 2 in 2006 to finalise reports.
(b) The respondent’s perception that many telephone calls made to her by school officials on occasions when she had to take sick leave were invasive and threatening.
(c) The respondent’s claim that the school principal unreasonably interfered with her attendances upon her terminally ill father in August 2006,[15] this distressing her.
[15]He died on 1 September 2006.
(d) The respondent’s perception that the principal and (at least) one other teacher intrusively enquired into the state of her physical health, this including a specific episode on 18 July 2006, reported by the respondent to her medical practitioner that evening.
(e) Stress caused to the respondent by many matters of relatively minor detail of which she gave evidence.[16]
[16]The judge said that he was satisfied that the events, or ‘something like them’, had occurred.
There was a dispute in the evidence whether, as the respondent alleged, she had originally been engaged on a permanent basis, only to be belatedly told that she was employed on a fixed term contract. The employer averred that the respondent had always been employed on a fixed term contract. The issue ignited when the respondent was sent a letter, in September 2006, ‘confirming’ the status of her employment.
The judge was unable to decide what the terms of the employment were. But it is at least clear that he was not persuaded to accept the appellant’s submission – which was that the respondent’s account of the terms of her employment was untruthful, and that she was always clear that she was on a fixed term. Clear also it is that he concluded that the September letter was a cause of stress. By that time, he said, she was already quite unwell.
His Honour did not state explicitly whether the particular source of stress – that is, the content of the letter - contributed to the respondent’s compensable mental injury. But, for two reasons, I infer that this was how he viewed the matter. First, the matter was one of the list of matters prefaced by the observation noted at [22] above. Second, albeit that the respondent was ‘quite unwell’ by late September 2006, not until 11 October did she cease work; and that cessation followed hard upon another source of stress which the judge appears to have treated as being relevant to injury. I add that the respondent’s allegation of injury – ‘throughout the course of the … employment’ – was broadly enough drawn to permit a finding of injury up to the time of cessation of work.
The ‘other source of stress’ to which I referred in the preceding paragraph was this: the judge found that there was a factual basis for the respondent’s claim that she had been distressed by the actions of a pupil’s mother in remonstrating with her when the pupil ‘disappeared’ after a school concert; and by the administrative aftermath of that incident. The events giving rise to this source of stress occurred on 5 October 2006 and on two days thereafter.
The judge observed that -
… by this stage the [respondent] was suffering from a major depressive illness and it is unsurprising that her account of these events is at odds with others who were well at the time.
His Honour must have been there referring to the events which took place on the succeeding days; for, concerning the events which occurred on 5 October, the potential for disagreement must have been limited to one of emphasis.
The incident was one of a number prefaced by the observation noted at [22] above. It certainly seems that the judge treated it as a source of stress relevant to the suffering of compensable injury.
The competing cases
At [3] above, I noted the way in which the judge identified the issue for his determination. Having detailed his conclusions as to the sources of stress perceived by the respondent, and in doing so having identified circumstances upon which the appellant relied – the respondent’s recurrent ill health when employed by it, the respondent’s frequent absences because of the need to consult medical practitioners, the terminal illness of her father – the judge returned to the appellant’s case. He had already considered evidence given by some witnesses called for the appellant, and in certain respects had not accepted it. He now considered other evidence adduced for the appellant.
His Honour recounted the evidence of the principal of a school at which the respondent had previously taught. The import of the witness’s evidence was that the respondent had been ‘high maintenance’ and ‘low performance’ – this, no doubt, being relevant to the appellant’s case that the respondent’s mental state was precarious before she began her employment with it.
But the judge, implicitly, took the evidence with a grain of salt. As he said, it stood in stark contrast with the evidence of the principal of the appellant school in the first year that the respondent taught at that school.
Then his Honour addressed the medical evidence.
He had heard viva voce from the respondent’s long-time general practitioner and psychiatrist. Each of them gave evidence of the respondent’s long time psychiatric disorder. The general practitioner’s notes, put in evidence, also documented the physical ailments which had afflicted the respondent from time to time. But each of them expressed the opinion that various work stressors described by the respondent had played a significant part in the deterioration in her mental health.
The judge summarised his conclusion with respect to the evidence of the treating psychiatrist, Dr Mestrovic, this way:
[77]In the end Dr Mestrovic, though extensively and skilfully cross examined, was not moved from his view that the pressure the plaintiff perceived she was under from school and the absences, particularly through the phone calls to her, contributed to the worsening of her mental health in 2006, explaining that her pre-existing condition made her a vulnerable personality especially to perceived pressures of pursuit. The opinions of other psychiatrists were put to him but the doctor was not shifted from his view that although her health and her father’s health were significant in the deterioration of the plaintiff’s health, they were not the only significant factors. In re-examination, Dr Mestrovic said that the other matters he had been alerted to in the course of his evidence also fell in to the category of pressure and pursuit and that in his notes there were a number of references to perceived difficulties at the school.
In light of grounds of appeal 6 and 7, his Honour’s reference to the opinions of other psychiatrists being put to the doctor, but his opinion not being shifted, is of importance.
The judge noted the opinion of Dr Palmer, the general practitioner, as follows:
‘I think that the whole of this case is to deal with the fact that – depression and anxiety is multifactorial, Your Honour, and I think that all of these things pertain, I think that her personality, her anxiety, her work, the physical illnesses, the things that have happened to her in life, they all come together as a thing, and that somehow in 2005 and 2006 this pressure became so great that she gradually began to decompensate over a period of time, and I would say that was probably 18 months or so. Part of that was her physical illnesses. Part of that was her personality. Part of that was something that happened at that school at that time and that created the problem’.[17]
[17]Footnote omitted.
His Honour referred also to the reports of Dr Anthony Sheehan, one of the appellant’s medical witnesses. Like Dr Entwistle, he had not given viva voce evidence. His opinion had varied according to the amount of information provided to him. His final opinion - less favourable to the respondent than his second opinion, but more favourable than his first opinion - was that -
employment was one of multiple factors associated with the worker’s condition and probably of no more significance than the other factors described above .
On this last occasion, his attention had been specifically drawn to paragraphs (a)-(g) of s 5(1B) of the Act. His opinion, as the judge noted, was in the context of him having been provided with witness statements by persons not all of whom gave evidence. That observation, as will be seen, applied equally in the case of Dr Entwistle.
The judge’s conclusions
The judge’s conclusions were these:
In cross examination the plaintiff’s treating doctors were unshifted in their views. I accept their opinions. It is not to the point that the school’s behaviour from a business point of view was perfectly reasonable. The plaintiff’s peculiar vulnerabilities meant that for her, her dealings with the administration at the school and with her work were stressful and contributed significantly to the worsening of her mental state.
and
For these reasons, I find that the plaintiff’s employment with the defendant was a significant contributing factor to the ‘worsening’ of her mental disease and so to the aggravation, acceleration, exacerbation and deterioration of a major depressive disorder. In doing so I have taken into account the matters listed in s.5(1B), though (e), (f) and (g) seem to have little relevance here. In reaching that conclusion I have accepted that the non employment factors identified were of significance, but I am persuaded that the effect of the employment circumstances meet the test approved of by Ashley J in Popovski being ‘of considerable amount of effect’.
Resolution of the appeal
Grounds 7 and 8
Grounds 7 and 8 assert that the judge failed to consider and have regard to Dr Entwistle’s opinion that the employment was not a significant contributing factor to the respondent’s mental condition, or else that his reasons are not adequate to reveal why he rejected the doctor’s evidence. In my opinion, there is nothing to either contention.
The judge was well aware of Dr Entwistle’s opinion. He referred to it at [10] in his reasons. Moreover, he noted that ‘the opinions of other psychiatrists were put to’ Dr Mestrovic, the respondent’s treating psychiatrist, but that the latter’s opinion (see [36] above) was not shifted. The cross-examination, I interpolate, was in part specifically based upon Dr Entwistle’s report. Thereafter, the judge accepted the opinion of the treating doctors. He explained, in detail, why he did so.
It is a nonsense, in the circumstances, to postulate that the judge did not consider and have regard to Dr Entwistle’s opinion at all.
Further, his Honour’s explanation was quite adequate, both in what it said explicitly, and in what it necessarily implied, to reveal why he rejected Dr Entwistle’s opinion. Thus -
(a) Dr Entwistle concluded that nothing in the respondent’s employment ‘would result in’ her personality disorder and traumatisation. It pre-existed the employment. Her present condition occurred ‘within the realm of a vulnerable personality’. Those conclusions were put to Dr Mestrovic, and he agreed with them. They were, however, the starting point for the required analysis, not the end point. But Dr Entwistle treated them as the end point, then opining that the employment was not a significant contributing factor.
(b) Appellant’s counsel avoided putting that opinion to Dr Mestrovic for his comment, saying that the matter was ‘effectively [one] for his Honour’. On that footing, the judge could hardly be criticised for rejecting an opinion that was said by appellant’s counsel not to be within the doctor’s province.
(c) The doctor’s opinion was in part reliant, as his report showed, upon statements provided by persons some of whom did not give viva voce evidence; and, more importantly, the statements of several witnesses who did give evidence at trial, their evidence being in part rejected by the judge. This was a matter to which respondent’s counsel had drawn attention in his final address.
Senior counsel for the appellant submitted in this Court that matters such as those which I have just mentioned were matters to which the judge might have drawn attention in rejecting Dr Entwistle’s opinion. But, he submitted, the judge did not do that.
The doctor’s ultimate opinion, whether or not it was a matter within his province, involved a departure from the opinions of all the other doctors. The gist of his report was that there had been no employment-related injury at all. Having considered medical evidence which had been tested in cross-examination, and also Dr Sheehan’s reports, the judge rejected that view. Once he so concluded, it was the end of Dr Entwistle’s ultimate opinion. This did not need to be said.
Grounds 9 and 10
The gist of these grounds is that the judge failed to clearly identify the compensable injury, this requiring a conclusion as to period in which it had been sustained. The evidence of Dr Mestrovic and Dr Palmer showed that the respondent was disabled by late June 2006, or at least by August 2006. She was incapacitated for work, although she was still in work. Compensable injury was thus at an end. But his Honour had identified work stressors occurring both before and after August 2006. It followed that his Honour had no way of conducting a proper investigation of the ‘significant contributing factor’ test, because the respondent was a person who had come to the employment with a pre-existing psychiatric condition, and had arguably been exposed to employment stressors after any compensable injury had been sustained. Another analysis put by counsel was that the later stressors may have caused further compensable injury, but that any such injury was irrelevant because the respondent, albeit still working, was already totally incapacitated for work. The problem with the judge’s approach, counsel argued, was exacerbated because his Honour had not adhered to the language of paragraph (c) of the definition of injury, but had instead used the imprecise term ‘worsening’.
In my opinion, these various arguments should be rejected.
First, at an early stage in his reasons the judge explained what he meant by ‘worsening’. It was a contraction used by the parties, and adopted by the judge, as a shorthand for paragraph (c) of the definition of injury. His Honour’s conclusion in the second passage cited at [41] above must be understood accordingly. There is no reason to infer that he was disabled from conducting the necessary analysis.
Second, it is true that there is a distinction between ‘incapacity for work’ and ‘incapacity to work’. But his Honour did not find that the respondent was incapacitated for work by August 2006, still less by late June of that year. To say, as his Honour did, that the respondent was very unwell by August was no more than a statement of fact. It did not imply a conclusion that the respondent was then incapacitated for work. There was evidence, a little of which I mentioned in argument, which permitted a conclusion that the respondent became incapacitated for work when she was put off work by her doctor in October.
Third, as I observed earlier in these reasons, and as I observed during the hearing of the appeal, the appeal in this matter is confined by s 52(1) of the Act. It is difficult not to be concerned that, under cover of an alleged error in methodology asserted by grounds 9 and 10, the appellant was really inviting a re-finding of facts.
Fourth, the judge identified work stressors subsequent to August 2006. This implies that he considered them relevant to determining compensable injury. Again, in the second passage cited at [41] above, the judge did not confine the period of the employment which he implicated. Both these matters support a conclusion that his Honour concluded that compensable incapacity began in October 2006, all stressors up to that time being relevant. They also draw attention to what I perceive was a case put on appeal which was not put below. Nothing was identified by appellant’s counsel in this Court to suggest that a submission was made below for his client that any compensable injury was sustained not later than 28 June, or sometime in August, 2006. Had such an argument been put, the judge would have had to address it, by reference to the evidence. It is inappropriate that the appellant should now be at liberty to agitate such an argument – not that it affects the fate of this appeal.
In the event, the judge’s findings enabled him to assess, without any ambiguity, the contribution made by the compensable injury to the disorder which incapacitated the respondent for work from October 2006.
Grounds 11 and 12
Ground 11 complains that the judge erred by ‘failing to take into account [the matters identified in paragraphs] (f) and (g) of s 5(1B) of the Act … as matters requiring consideration when determining whether employment was significant contributing factor to [injury]’ (my emphasis). Ground 12 complains that the judge ‘erred by failing to take into account factor (d) of s 5(1B), alternatively by failing to give any or any adequate explanation . . . as to how it was taken into account’ (my emphasis).
Putting the alleged inadequacy of explanation to one side, the complaint, necessarily, is that the judge failed altogether to address the so-called ‘factors’ set out in paragraphs (d), (f) and (g) of s 5(1B). I say ‘necessarily’ because, if the judge did take the matters into account, his conclusion that employment was a significant contributing factor to injury involved an evaluative process; one not susceptible of attack in an appeal under s 52(1) of the Act for the reasons explained by Tadgell JA in Green v Victorian WorkCover Authority.[18]
[18][1997] 1 VR 364.
The first problem for the appellant is that the judge referred in his reasons, both directly and indirectly, to the respondent’s pre-existing psychiatric history, her episodic ill-health when employed by the appellant, the stress of her father’s terminal illness, and medical evidence bearing upon the compensability of injury and the significant contributing factor enquiry. Non-exhaustively, I refer to paragraphs 6, 7, 8, 11,13, 16, 29, 41, 58, 65, 72, 74 -95 of his Honour’s reasons.
The next problem for the appellant is that the judge specifically stated that he had ‘taken into account the matters listed in s 5(1B), though (e), (f) and (g) seem to have little relevance here’. He specifically accepted that ‘the non employment factors identified were of significance’. But, having set out the test of ‘significant contributing factor’ which I tentatively proposed in Popovski (I have already observed that the correctness of that test is not put in issue in this appeal), he concluded that the employment contribution met that test.
It is significant that his Honour expressed the view, in the circumstances of the case, that factors (e), (f) and (g) seemed to have little relevance. It very strongly suggests that he considered the s 5(1B) factors one by one. It also shows that he applied an evaluative analysis to them. The fact that another judge might have weighed them differently is not in point.
In the event, the contention that the judge simply failed (altogether) to take account of factors (d), (f) or (g) cannot be accepted.
The appellant’s contention, by written outline of submissions, that the judge did not explain ‘how he had regard to the lifestyle of the respondent … and her activities outside the workplace, particularly relating to the care of (sic) concern she had for her dying father’, travels beyond ground 11.
The written outline contains no submission with respect to the second limb of ground 12 – that is, that the judge gave no or no adequate explanation as to how factor (d) was taken into account. But the matter was orally pursued. I consider that it should be rejected.
Consistently with s 82(2C), which states that compensation is not payable in respect of certain injuries,[19] s 5(1B) takes as its starting point the occurrence of compensable injury. It then sets out a non-exhaustive list of matters which must be considered in order to answer the s 82 (2C) enquiry. In the present context, there is an obvious difficulty in the language of factor (d). Unless ‘injury’ where first appearing in s 5(1B) and ‘injury’ where appearing in paragraph (d) are given different meanings, I cannot see how the provision could work. But what alternative meaning should the word be given in paragraph (d)? And if one assumed that ‘the injury’ in paragraph (d) should be read as something like ‘the condition’, should it not be temporally confined?
[19]The structure of s 82(2C) is quite unlike the former regime, in which the ‘significant contributing factor’ requirement was set out in both s 82(1) and the definition of ‘injury’.
These questions (and perhaps others) were not raised in submissions below. Moreover, the respondent’s witnesses were not cross-examined in a way as would have enabled them to opine whether, subtracting assumed employment aggravation of her psychiatric condition,[20] it was likely or possible that by October 2006[21] the respondent would have been incapacitated by that condition in any event. I consider that this is another instance of a factual issue being raised on appeal which was not raised below. Worse, it is a factual issue not raised which concerned a potentially difficult legal issue which also was not raised.
[20]I do not suggest that this would be the precise formulation of a relevant question. The matter was not debated.
[21]Or any other later time, if it could be relevant.
In the circumstances, I doubt that the appellant should be permitted to pursue the second aspect of ground 12. But, if the contrary view be taken, the judge stated that he gave consideration to factor (d)[22] in circumstances where appellant had not assisted him in that task. He cannot be criticised for not embarking upon an excursus of his own as to how paragraph (d) should work. I infer from his reasons that, doing his best in an unsatisfactory situation, he concluded, having regard to the evidence which he described and accepted, that the worsening of the respondent’s psychiatric condition to the point where she was wholly incapacitated for work in October 2006 had, as a necessary and indispensable feature, contribution by the employment stressors. Whether or not that was an appropriate test is beside the point in this case.
[22]This is implicit in his reasons at [96].
Ground 13
As explained in the appellant’s written outline of submissions, this ground complains that the judge failed to explain the process by which he reasoned to a conclusion that the employment amounted to a significant contributing factor.
In my opinion, this ground cannot be sustained. The judge very carefully identified the critical issue, and the evidence adduced. He explained what evidence he accepted, what he rejected, and why. He applied an unchallenged test in evaluating the extent of the work contribution by reference to the ‘significant contributing factor’ test. His ultimate conclusion, shortly expressed, was expressed
in the context of all that had gone before. The appellant was not thereby left in doubt, in my opinion, why it had lost.
Conclusion
I would dismiss the appeal.
KYROU AJA:
I also agree with Ashley JA.
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