State of New South Wales (NSW Police Force) v Nguyen
[2021] NSWPICPD 34
•20 October 2021
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | State of New South Wales (NSW Police Force) v Nguyen [2021] NSWPICPD 34 |
| APPELLANT: | State of New South Wales (NSW Police Force) |
| RESPONDENT: | Lina Nguyen |
| INSURER: | Employers Mutual Limited – TMF |
| FILE NUMBER: | A1-4537/20 |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| DATE OF APPEAL DECISION: | 20 October 2021 |
| ORDERS MADE ON APPEAL: | 1. The appellant’s application to rely on fresh or additional evidence pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 is refused. 2. The Arbitrator’s Certificate of Determination dated 3 February 2021 is confirmed. |
| CATCHWORDS: | WORKERS COMPENSATION – Section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 – leave to rely on fresh or additional evidence – application of CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501; alleged factual error in finding injury pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 – application of Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 and associated authorities; causation – application of Calman v Commissioner of Police [1999] HCA 60; 167 ALR 91; 73 ALJR 1609, Sutherland Shire Council v Baltica General Insurance Co. Ltd (1996) 39 NSWLR 87 |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Ms L Goodman, counsel | |
| Turks Legal | |
| Respondent: | |
| Ms E Grotte, counsel | |
| Santone Lawyers | |
| DECISION UNDER APPEAL | |
| MEMBER: | Ms R Homan |
| DATE OF MEMBER’S DECISION: | 3 February 2021 |
INTRODUCTION AND BACKGROUND
Lina Nguyen (the respondent) was employed by the NSW Police Force (the appellant) in a senior role as Principal Executive Officer, a position she had filled since 2014. She was based at Police Headquarters at Parramatta.[1] She took approved leave from 19 December 2019.[2] On 20 December 2019 (whilst on leave) she attended a function at a hotel in Parramatta, a send-off for a detective superintendent, arriving at about 5 pm. The respondent stated that she was sexually assaulted that night by a senior police officer, initially at the hotel and later in a park at Parramatta. The respondent reported the assault on the following day. [3] She was off work on sick leave until 3 February 2020.
[1] Respondent’s statement, [1], Application to Resolve a Dispute (ARD), p 1.
[2] ARD, p 17, respondent’s statement, [5], ARD, p 1.
[3] Dr Takyar’s report 15/5/20, ARD, pp 46–47.
During January 2020 the respondent enquired about what was happening with the person who assaulted her, who ordinarily worked in the same building as the respondent. She was initially offered work on a part-time basis, at Parramatta Headquarters. It was to be in a job different to her usual position, so that she would not be working on the same floor as the senior officer involved in the assault. She stated her “boss” expressed concerns about her coming into contact with the person involved in the assault and witnesses, and she was instead offered a transfer to premises at Woolloomooloo, which she agreed to.[4]
[4] Respondent’s statement, [18]–[25], ARD, pp 2–3.
The respondent said the tasks she was allocated at Woolloomooloo were outside her normal duties. She formed the view that many of those working at Woolloomooloo were “injured in one way or another”, some were on return-to-work plans or were not “operational”. She stated that the person who assaulted her was doing his normal job at Parramatta and no action was taken against him, yet her job was taken from her. Her hours increased over time to three days per week.[5] The respondent was twice offered chances to move back to Parramatta, which were then withdrawn. She perceived this to be associated with the appellant awaiting advice from the Office of the Director of Public Prosecutions (DPP) regarding whether charges would be laid in respect of the assault. She felt she was dealt with “inappropriately”.[6]
[5] Respondent’s statement, [28]–[36], ARD, pp 3–4.
[6] Respondent’s statement, [29]–[32], ARD, pp 3–4.
The respondent stated her “boss” telephoned her on 11 June 2020, and she told him of the status of the workers compensation claim she had made. He “expressed his disagreement with her claim”, which she regarded as a withdrawal of support when she needed it. She took sick leave from 15 to 30 June 2020. From 1 July 2020, the respondent accepted a position as the manager of the Woolloomooloo office. On 4 August 2020, the respondent returned to working at Parramatta Headquarters, but in a different role.[7]
[7] Respondent’s statement, [46]–[52], ARD, pp 5–6.
The respondent’s claim for compensation was disputed in a s 78 notice dated 14 January 2020.[8] The notice disputed that the relevant function was one “organised or sanctioned” by the appellant. It disputed that the alleged psychological injury occurred in the course of or arising out of the respondent’s employment. It denied that s 9A of the Workers Compensation Act 1987 (the 1987 Act) was satisfied. The denial was maintained in a second notice dated 28 January 2020.[9] In correspondence dated 10 June 2020, the respondent’s solicitors sought a review of the decision on the basis that the respondent was “essentially demoted after reporting the assault”, and that the “transfer and demotion” aggravated the pre-existing psychological injury.[10] In a review pursuant to s 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), dated 23 June 2020, the appellant again denied liability.[11] It stated that the “reporting of the assault and subsequent investigation” related entirely to the incident on 20 December 2019, which was not related to employment.
[8] ARD, pp 15–19.
[9] ARD, pp 23–27.
[10] ARD, p 40.
[11] ARD, pp 32–36.
The matter was listed for an arbitration hearing on 5 November 2020. Ms Grotte appeared for the respondent and Ms Goodman for the appellant. The respondent sought to amend the ARD to plead a deemed date of 30 January 2020 and to plead a disease injury pursuant to s 4(b)(ii) of the 1987 Act.[12] This application was opposed and was refused by the Arbitrator, who gave ex tempore reasons.[13] The respondent elected to proceed on the unamended ARD.[14] The matter was relisted for hearing on 2 December 2020 with the same appearances. The respondent did not argue that the function at the hotel was a “work function”.[15] Reliance was placed on how the appellant treated the respondent subsequent to the assault, being returned to a different workplace so that she felt she was “being punished for reporting the crime”.[16] Both counsel addressed and the Arbitrator made orders on 3 December 2020 for the lodgment of additional evidence dealing with earnings during the claimed weekly period.
[12] Nguyen v State of New South Wales (NSW Police Force) [2021] NSWWCC 35 (the reasons), [7].
[13] Transcript 5/11/20 (T1), T1 1.22–5.15.
[14] Appellant’s submissions, [6].
[15] Transcript 2/12/20 (T2), T2 6.22–23.
[16] T2 7.33–8.20.
A Certificate of Determination was issued on 3 February 2021, accompanied by reasons. There was a finding that employment between 4 February 2020 and 5 July 2020 was the main contributing factor to an aggravation or exacerbation of a psychological condition pursuant to s 4(b)(ii) of the 1987 Act. There was an award on the basis of partial incapacity during the period from 29 February 2020 to 5 July 2020.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
TRANSITIONAL MATTERS
The Personal Injury Commission Act 2020 (the 2020 Act) relevantly commenced on 1 March 2021 (the ‘establishment day’). The Arbitrator’s decision was issued on 3 February 2021. This appeal was lodged on 3 March 2021. The appellant’s right to appeal as at 1 March 2021 fell within the definition of an ‘unexercised right’ in cl 14A of Sch 1 to the 2020 Act. Clause 14D of Sch 1 to the 2020 Act permits the exercise of the right of appeal before me as a Presidential member of the Personal Injury Commission, a ‘new decision maker’. The first instance decision maker’s title at the time of her decision was that of an ‘arbitrator’ and I will refer to her by that title.
THE ARBITRATOR’S REASONS
The Arbitrator set out the factual and procedural background, which does not need to be repeated. She summarised the respondent’s statement and incident notification forms.[17] She summarised the material from treating medical practitioners in detail.[18] She summarised the report of Dr Takyar, the psychiatrist qualified in the respondent’s case.[19]
[17] Reasons, [13]–[37].
[18] Reasons, [38]–[60].
[19] Reasons, [61]–[70].
The Arbitrator summarised the respondent’s submissions. The respondent accepted that she suffered from psychological symptoms following the assault. Her argument was that “depressive symptoms were exacerbated and made worse in the period of incapacity from 1 February 2020 as a result of the lack of support by her employer”. She relied on the opinion of Dr Bennett, a treating psychiatrist, that her “incapacity between February and July 2020 was the result of an exacerbation of the original condition”. The respondent relied on Murray v Shillingsworth,[20] “employment need only be the main contributing factor to the aggravation of her condition”. It was submitted that Dr Takyar also supported this proposition. It was submitted the respondent “had an impressive curriculum vitae but was transferred to a unit where employees who were not operational were placed. The [respondent] felt this was a dumping ground and perceived the transfer as a demotion”. It was submitted that there were “delays and uncertainty”. The respondent noted that no defence pursuant to s 11A of the 1987 Act was raised. She was certified fit for pre-injury duties on 6 July 2020.[21] In her submissions in reply the respondent referred[22] to Federal Broom Co Pty Ltd v Semlitch,[23] on the basis that “employment had contributed to a worsening of the symptoms”.
[20] [2006] NSWCA 367.
[21] Reasons, [72]–[84].
[22] Reasons, [98].
[23] [1964] HCA 34; 110 CLR 626.
The Arbitrator summarised the appellant’s submissions. It submitted the assault was not a work-related matter. “Everything that happened afterwards flowed from the assault.” The appellant’s obligations were not those that would apply if a worker was injured at work. It had “no obligation to do anything to assist the [respondent]”. The appellant submitted that it had no obligation to remove the assailant, who was not charged, from the workplace. It did try to protect the respondent from coming into contact with the assailant. The respondent said she had no problem with her boss’s conduct, however it was him who caused her to be transferred to Woolloomooloo. The evidence suggested that he “tried to act in her interests”. It submitted the appellant’s actions were “temporary” and “the only action which the employer could responsibly take”. The appellant submitted that Dr Takyar did not appear to appreciate that the initial injury was not compensable, nor did Dr Bennett. It was submitted to be unclear what conduct the respondent relied on, as the main contributing factor to an aggravation injury. The appellant submitted there was a suggestion of increased symptoms related to the criminal investigation. There should be a distinction between the appellant’s actions in the criminal investigation and its actions as an employer.[24]
[24] Reasons, [85]–[97].
The Arbitrator quoted from the summation of principle regarding the proof of psychological injury in Attorney-General’s Department v K.[25] She referred to Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes, in which Roche DP said: “Cases are determined on the evidence and arguments presented, not on the pleadings or particulars, which are only a ‘means to an end’.”[26] The Arbitrator noted s 354 of the 1998 Act (as it then was) and said that the Commission is not a court of strict pleading. She said she was satisfied that, before the commencement of the current proceedings, the respondent had identified to the appellant the events relied on in the respondent’s submissions, and the appellant had an opportunity to respond. Injury due to aggravation following the respondent’s work resumption was specifically disputed by the appellant in the dispute notice dated 23 June 2020. She said the respondent did not argue that either the alleged assault or the criminal investigations caused compensable injury.[27]
[25] [2010] NSWWCCPD 76; 8 DDCR 120 (K), [52], [54].
[26] [2015] NSWWCCPD 35, [54].
[27] Reasons, [103]–[122].
The Arbitrator noted that the respondent stayed off work on sick leave from 14 January 2020 until 3 February 2020. The Arbitrator said she was not satisfied that any exacerbation, caused by the investigation and the perpetrator remaining in the workplace, was “at this point an exacerbation ‘in the course of employment’”.[28]
[28] Reasons, [127].
The Arbitrator referred to the respondent’s statements. The respondent said that she felt as though she was moved to preserve the perpetrator’s working conditions and rights, as though she were a burden to her boss. She felt there were doubts regarding her credibility. She felt her duties were below her normal role, she perceived she had been sent to a “dumping ground”. The respondent stated that she raised her concerns with her boss in late February 2020, evidence described as “uncontradicted”.[29]
[29] Reasons, [129]–[130].
The Arbitrator referred to the treating medical evidence. Dr Bennett recorded the respondent voicing concerns following her return to work. She was upset about being excluded from her usual workplace, she felt that her needs were “considered secondary”. She felt she had been “demoted” which would have a detrimental effect on her career progression, she felt “unsupported”. The doctor recorded that the respondent’s distress, at not being returned to her workplace, had “exacerbated her psychiatric symptoms”. Dr Bennett said that “the conduct of the employer had been the main contributing factor to the exacerbation and delay in the [respondent’s] recovery”.[30]
[30] Reasons, [135]–[136].
The Arbitrator referred to Dr Takyar’s opinion. The Arbitrator said that much of the doctor’s report dealt with the “symptoms caused by the events in December 2019”. She said the doctor also referred to a history of the respondent being “removed from her workplace and placed in a position where she had no structure, meaningful work or access to her usual supports”. The doctor said the respondent “described feeling a sense of humiliation, lack of support, isolation and exclusion as a result of the transfer”. The doctor described the appellant’s conduct after the assault as an “equal main contributing factor” to the respondent’s psychological condition.[31] The doctor said:
“If her condition is considered to have commenced in the context of the sexual assault, then the main contributing factor to the aggravation of that psychiatric condition would be considered to be the employer’s conduct and lack of support.”[32]
[31] Reasons, [137]–[139].
[32] Reasons, [139].
The Arbitrator dealt with this aspect of the expert evidence:
“I accept, reading Dr Takyar’s report as a whole, that like Dr Bennett he has also expressed an opinion that events in the workplace after the [respondent’s] return to work were the main contributing factor to an aggravation or exacerbation of the psychological condition sustained as a result of the alleged assaults in December 2019.”[33]
[33] Reasons, [140].
The Arbitrator described the opinions of Dr Bennett and Dr Takyar as “consistent with the [respondent’s] own evidence”. She said that Dr Lander’s clinical records “presented [a] more mixed picture”, however she approached those with “caution”, as they were the “records of a general practitioner … not prepared with subsequent legal proceedings in mind”. The Arbitrator referred to Dr Lander’s final Workcover certificate dated 4 July 2020, which “stated that the [appellant’s] treatment of the [respondent] after the sexual assault, particularly transferring her out of the workplace had detrimentally affected the [respondent’s] recovery”. The Arbitrator described this as “broadly consistent” with the opinions of Dr Bennett and Dr Takyar. She noted there was “no contrary medical opinion from the [appellant]”.[34]
[34] Reasons, [141]–[142].
The Arbitrator referred to the appellant’s submission that its actions were “reasonable and that it was required to balance the interests of both the [respondent] and its other employees.” She referred to a submission by the appellant that “there was no evidence that the [respondent] was in fact demoted or paid a lower rate of pay”. The Arbitrator said she would be prepared to accept these submissions, but they were not inconsistent with “the conclusion that there was a work-related aggravation or exacerbation”. She noted that no defence under s 11A(1) of the 1987 Act was raised. The Arbitrator said real events occurred in the workplace “which were perceived by the [respondent] as creating an offensive or hostile working environment, and that an aggravation or exacerbation of the [respondent’s] psychological condition followed”.[35] She made the following finding of ‘injury’:
“Considering the evidence and submissions as a whole, I am satisfied on the balance of probabilities that the [respondent’s] employment between 4 February 2020 and 5 July 2020, was the main contributing factor to an aggravation or exacerbation of the psychological condition sustained by the [respondent] on 20 December 2019. I am satisfied that the [respondent] sustained an injury that satisfies the definition in s 4(b)(ii) of the 1987 Act.”[36]
[35] Reasons, [143]–[144].
[36] Reasons, [145].
The Arbitrator then turned to whether the alleged incapacity resulted from the aggravation injury that was found to have occurred. She referred to Kooragang Cement Pty Ltd v Bates[37] and Calman v Commissioner of Police.[38] She concluded that any incapacity prior to 4 February 2020 (when the respondent resumed work) resulted solely from the assault, which she had found not to be compensable. She said the first reference to work duties being causative of incapacity was in the certificate of Dr Lander dated 29 February 2020. She said the opinions of Drs Lander, Bennett and Takyar consistently said that “the work-related injury had delayed the [respondent’s] recovery and slowed her return to work”. She found that from 29 February 2020 to 5 July 2020 the respondent was partially incapacitated as a result of the aggravation injury, and that she had worked to her full capacity during this period. It is unnecessary to further summarise the Arbitrator’s reasons dealing with quantum of the award.[39]
[37] (1994) 35 NSWLR 452 (Kooragang), 463G–464B.
[38] [1999] HCA 60; 167 ALR 91; 73 ALJR 1609 (Calman), [38].
[39] Reasons, [146]–[158].
THE GROUNDS OF APPEAL
The appellant raises the following grounds of appeal:
(a) The Arbitrator erred in fact and law in finding that there had been an aggravation injury. (Ground No. 1)
(b) The Arbitrator erred in fact and law in finding that the respondent’s incapacity for work flowed from the aggravation injury rather than the events of 20 December 2019. (Ground No. 2)
THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)
Section 352(5) of the 1998 Act provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd[40] Roche DP, applying Whiteley Muir & Zwanenberg Ltd v Kerr[41] to the appeal process pursuant to s 352, said:
“(a) A [member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [member] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the [member] may draw a particular inference from them. Even here the ‘fact of the [member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [member] was wrong.
(c) It may be shown that [a member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [member] is so preponderant in the opinion of the appellate court that the [member’s] decision is wrong’.”[42]
[40] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston), [19].
[41] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[42] Raulston, [19].
In Workers Compensation Nominal Insurer v Hill Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[43]
[43] [2020] NSWCA 54, [20].
In Northern New South Wales Health Network v Heggie, Sackville AJA, dealing with the scope of such appeals, said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[44]
[44] [2013] NSWCA 255, [72].
APPELLANT’S APPLICATION TO RELY ON ADDITIONAL EVIDENCE
Section 352(6) of the 1998 Act provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The appellant applies for leave pursuant to s 352(6) to rely on a statement dated 24 February 2021 by Assistant Commissioner Fitzgerald, who is the person referred to in the respondent’s statement as her “boss”. The statement is attached to the appellant’s appeal document. It is 11 pages long with 5 pages of attachments. It deals with the viability of the respondent’s position as chief executive officer, regardless of the assault on 20 December 2019 and associated events. It deals with the events surrounding the respondent’s placement at Woolloomooloo. It deals with the circumstances in which the alleged perpetrator of the assault came to continue to work at Headquarters at Parramatta during 2020. It deals with the respondent’s return to working at Headquarters at Parramatta.
Appellant’s submissions
The appellant submits that failure to grant leave would result in ‘substantial injustice’, if the fresh evidence is admitted the result would be different. The appellant submits this evidence relates to “events following the alleged assault”. It submits one of the attachments confirms the respondent’s “acceptance of her return-to-work arrangements”. It submits the evidence demonstrates the efforts made by the Assistant Commissioner to accommodate the respondent. It submits the appellant was required to “balance the rights of the [respondent] against the rights of all its other employees”; if the additional evidence is taken into account the Arbitrator “may have given less weight to the [respondent’s] evidence”.[45]
[45] Appellant’s submissions, [37]–[44].
Respondent’s submissions
The respondent submits that no defence was raised pursuant to s 11A of the 1987 Act. She submits that the appellant’s submissions dealing with reasonableness are “misconceived”, the ‘injury’ dispute did not turn on the reasonableness of the appellant’s action nor on the Assistant Commissioner’s attempts to accommodate the respondent. The respondent submits the appellant seeks “to adduce evidence that would typically support a s 11A defence”, where no such defence is raised. The respondent submits it would suffer prejudice if the additional evidence is admitted, the evidence raises “extraneous and irrelevant matters … which seek to broaden the dispute”.
The respondent submits that there is no explanation for why the additional evidence was not adduced previously, a statement could have been “easily and reasonably” obtained from the Assistant Commissioner.
Consideration
In CHEP Australia Ltd v Strickland[46] Barrett JA (Macfarlan JA agreeing) dealt with the application of s 352(6) of the 1998 Act. His Honour at [27] and [30]–[31] said:
“27. In the s 352(6) context, there are two threshold questions. They arise as alternatives and are set out in the second sentence of the provision. The first goes to the issue of availability in advance of the proceedings. The second entails an assessment of whether continued unavailability of the evidence ‘would cause substantial injustice in the case’. The discretion to admit becomes available to be exercised only if the Commission is satisfied as to one of the threshold matters.” (emphasis added)
“30. Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
31. ... The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”
[46] [2013] NSWCA 351; 12 DDCR 501 (Strickland).
Dealing with the exercise of the discretion, Roche DP in Drca v KAB Seating Systems Pty Ltd said:
“The legal profession is reminded, yet again, that it will only be in the most exceptional case where a party will be permitted to tender on appeal evidence that, with reasonable diligence, was readily available at the arbitration. Arbitrations are not a dress rehearsal where the parties can await the outcome and then attempt to tender, on appeal, evidence that could and should have been tendered at the arbitration, as if the arbitration was merely a preliminary hearing.”[47] (emphasis in original)
[47] [2015] NSWWCCPD 10 (Drca), [28].
The Arbitrator recorded submissions before her, from the appellant, that were similar to those accompanying the s 352(6) application. These were that its actions were ‘reasonable’ and it was required to balance the interests of the respondent with those of its other employees. The Arbitrator said that acceptance of such submissions would not lead to a different outcome.[48] The Arbitrator quoted from the decision in K dealing with the proof of ‘injury’ in such matters.[49] The Arbitrator said her finding of ‘injury’ was not dependent on whether the appellant’s actions were reasonable or not:
“I am satisfied that there were real events which actually occurred in the workplace which were perceived by the [respondent] as creating an offensive or hostile working environment, and that an aggravation or exacerbation of the [respondent’s] psychological condition followed. There is no requirement at law that the [respondent’s] perception of the events must be reasonable rational or proportionate.”[50]
[48] Reasons, [143].
[49] Reasons, [103].
[50] Reasons, [144].
The appellant in Ground No. 1 challenges the Arbitrator’s finding of an aggravation ‘injury’, on the basis of alleged error in her analysis of the medical evidence and the weight given to the opinions of different doctors. It does not submit that the Arbitrator applied an incorrect test on ‘injury’. Ground No. 2 goes to how the Arbitrator dealt with causation, whether incapacity resulted “not from the aggravation injury but rather from the alleged sexual assault”.[51] The additional evidence is not submitted to be relevant to the causation question.
[51] Appellant’s submissions, [32].
Acceptance of the argument supported by the additional evidence would not, on the test applied by the Arbitrator, the correctness of which is not challenged, lead to a different result on the ‘injury’ issue. It follows that the appellant cannot establish that the additional evidence would, if admitted, result in the emergence of a different result. The second of the threshold tests identified in Strickland is not satisfied. The additional evidence clearly could have been available for use at the arbitration, the appellant properly does not submit otherwise. The first of the threshold tests is not satisfied.
The threshold tests necessary to enliven the discretion in s 352(6) of the 1998 Act are not satisfied and the discretion is not enlivened. The application cannot succeed. If the discretion were enlivened it would not, in any event, have been appropriate to exercise the discretion in the appellant’s favour. The appellant offers no explanation of why the additional evidence was not available and used in the proceedings before the Arbitrator.[52] The appellant’s application for leave to rely on additional evidence is refused.
GROUND NO. 1
The Arbitrator erred in fact and law in finding that there had been an aggravation injury
[52] Iovanescu v McDermott [2004] NSWCA 106, [16].
Appellant’s submissions
The appellant’s submissions on this ground turn on the weight given by the Arbitrator to the opinions of Dr Takyar and Dr Bennett, as opposed to the material from Dr Lander, the treating general practitioner. The appellant submits that neither Dr Takyar nor Dr Bennett provided an opinion in a fair climate.[53]
[53] Appellant’s submissions, [1]–[2].
The appellant submits that both Dr Takyar and Dr Bennett assumed that the “incident of 20 December 2019 was a work-related event”. The Arbitrator found that it was not. It is stated that the respondent’s solicitors asked Dr Takyar “whether the employer’s conduct after the assault including the transfer and demotion was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the [respondent’s] condition”. The doctor responded: “If her condition is considered to have commenced in the context of the sexual assault, then the main contributing factor to the aggravation of that psychiatric condition would be considered to be the employer’s conduct and lack of support” (emphasis added in appellant’s submissions).[54]
[54] Appellant’s submissions, [3]–[5].
The appellant submits that Dr Takyar did not actually diagnose an injury by way of aggravation, rather he was asked to assume it.[55] The appellant says that Dr Bennett was asked a similar question and responded:
“The conduct of the employer has been the main contributing factor to the exacerbation and delay in her recovery. She would have recovered faster if she had not been removed from her own workplace and if she could return to a safe environment by the perpetrator being removed from her workplace. The delay and continued independent assessments (despite the assessment recommending she return to her own workplace) has caused increased distress and exacerbated her psychological injury. She has felt that she is being punished for reporting the assault and is at risk of losing her career. She has felt unsupported by her employer (although her immediate boss has been supportive).”
[55] Appellant’s submissions, [6].
The appellant submits that the assessment referred to by Dr Bennett was on 14 July 2020, by which point the respondent was performing a role as a manager at Woolloomooloo without complaint. It submits that neither Dr Takyar nor Dr Bennett attempted to separate the effects of the assault from the ‘employer’s conduct’.[56] It submits that neither doctor diagnosed an aggravation injury, although both doctors diagnosed a psychiatric injury as a result of the alleged sexual assault. It is submitted that the opinions of Dr Takyar and Dr Bennett should have been given little, if any, weight.[57]
[56] Appellant’s submissions, [9]–[11].
[57] Appellant’s submissions, [14]–[15].
The appellant seeks to contrast the above with the material from Dr Lander. Dr Lander’s initial certificates gave a date of injury as 20 December 2019 (the date of the assault) and diagnosed “psychological trauma from the work-related incident”. The appellant refers to a certificate dated 20 January 2020 which includes “Prior to incident, working on the same floor as the perpetrator. Injury exacerbated while perpetrator remains in the workplace and there is a current internal investigation.” The appellant sets out the following note from 1 February 2020:
“Starting back at work on Tuesday; will return to work 1 day week 1, 2 days week 2, then review. Will be working from the city rather than headquarters. Initially wanted to work from headquarters as previously to show she could, but felt relief on agreeing to work elsewhere. Has worked through and reached some acceptance around all of the above”. (emphasis in appellant’s submission)
It is submitted to be clear the respondent was relieved to be resuming elsewhere rather than at Police Headquarters.[58] The appellant refers to a note of Dr Lander dated 14 March 2020 that referred to a “longer term career move for Lina which would be good for her career, but also move her to a different workplace, and Lina feeling very positive about this” (emphasis in appellant’s submissions). It is submitted that, in the notes after 4 February 2020 when the respondent was working, Dr Lander noted “no aggravation or exacerbation of the [respondent’s] condition”.[59] The appellant submits it was “not until 4 July 2020” that Dr Lander issued a certificate that stated:
“The perpetrator is also an employee who works on the same floor as Lina. The employer’s treatment of Lina after the sexual assault, particularly transferring her out of the workplace rather than the perpetrator, and the lack of consequence for the perpetrator, has detrimentally affected Lina’s recovery”.
[58] Appellant’s submissions, [17]–[24].
[59] Appellant’s submissions, [25]–[26].
The appellant notes Dr Lander certified the respondent as fit to return to pre-injury duties from 6 July 2020 in the same certificate. The appellant submits Dr Lander’s clinical notes “do not support an aggravation of the [respondent’s] condition”. It submits the complaints flow from the psychiatric injury which resulted from the alleged sexual assault and its aftermath, for example denial of the respondent’s workers compensation claim. It submits Dr Lander was in the best position to know:
“(a) whether the Worker’s undoubted psychiatric injury as a result of the alleged sexual assault on 20 December 2019 had in fact recovered; and
(b) whether there had then been an aggravation of her condition as a result of ‘her employer’s conduct’.”
The appellant submits the Arbitrator erred in giving insufficient weight to Dr Lander’s evidence and greater weight to the opinions of Dr Takyar and Dr Bennett.[60]
[60] Appellant’s submissions, [28]–[31].
Respondent’s submissions
The respondent refers to Raulston and the nature of an appeal pursuant to s 352(5) of the 1998 Act – the appellant must demonstrate that the Arbitrator was wrong in preferring the opinions of Drs Bennett and Takyar. The respondent refers to the appellant’s submission that Drs Bennett and Takyar incorrectly assumed that the assault on 20 December 2019 was work-related. The respondent submits this was “not an accurate representation of the basis of the expert evidence”. The respondent refers to the letter of instruction from her solicitors dated 12 May 2020, which said the function on 20 December 2019 “was not a function organised or sanctioned by NSW Police, but that the Respondent Worker, as an employee of the NSW Police, was obligated to report the sexual assault and had to participate in a lengthy investigation process”.
The respondent submits that Dr Takyar was asked “whether the employer’s conduct after the assault including the transfer and demotion, was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of our client’s condition (not the primary psychological injury or condition as a whole)”. The respondent submits that Dr Takyar does not rely on the function being work-related and that is not the basis of his expert opinion.[61] The respondent refers to Dr Takyar’s response to question 5 in his report, including material summarised at [19] above. The respondent submits it is clear from this response that Dr Takyar understood that there was an injury as a result of the non-work-related assault and an aggravation from the perceived transfer and demotion.[62]
[61] Respondent’s submissions, [10]–[12].
[62] Respondent’s submissions, [13]–[14].
The respondent refers to Dr Bennett’s opinion at [5] of her report:
“The conduct of the employer has had a major impact on Ms Nguyen’s recovery. This is now causing more distress and having a greater impact that the original traumatic incident. The assault was a traumatic event and Ms Nguyen was taking steps to facilitate her recovery. The conduct of the employer has been the main contributing factor to the exacerbation and delay in her recovery. She would have recovered faster if she had not been removed from her own workplace and if she could return to a safe environment by the offender being removed from her workplace. The delay and continued independent assessments (despite the assessment recommending she return to her own workplace) has caused increased distress and exacerbated her psychological injury. She has felt that she is being punished for reporting the assault and is at risk of losing her career. She has felt unsupported by her employer (although her immediate boss has been supportive).”
It is submitted the opinions of Drs Takyar and Bennett were based on a correct understanding of the history of injury, the events, treatment and the respondent’s perception of events subsequent to the assault.[63] The respondent referred to a decision of Wood DP in Elsamad v Belmadar Pty Ltd[64] in which the Deputy President discussed the proof of ‘injury’ in cases involving the aggravation of a ‘disease’. The respondent submits that Drs Lander, Takyar and Bennett support the occurrence of an injury in the nature of an aggravation.[65]
[63] Respondent’s submissions, [15]–[16].
[64] [2019] NSWWCCPD 22, [150]–[153].
[65] Respondent’s submissions, [17]–[18].
The respondent’s submissions refer to the decision of K, from which the Arbitrator quoted. It is submitted the Arbitrator correctly described the question to be determined:
“… whether the event or events complained of occurred in the workplace, and that, if they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, whether it was open to find that causation is established.”[66]
[66] Respondent’s submissions, [20].
The respondent sets out the Arbitrator’s reasoning at [136] to [145] of her reasons. The respondent submits the reasoning was clear, the findings were open to the Arbitrator, and she placed reliance on both the expert evidence and that of the respondent.[67]
[67] Respondent’s submissions, [19]–[21].
Consideration
The letter from the respondent’s solicitors, qualifying Dr Takyar, was dated 12 May 2020.[68] It clearly informed the doctor that the “farewell was not a function organised or sanctioned by NSW Police”. It stated that the respondent “was obligated to report the sexual assault and has had to participate in a lengthy investigation process”. The letter stated that the claim was “in respect to the treatment of the worker by her employer after reporting the assault including the processes undertaken by her employer as opposed to the sexual assault itself”. The “Referral Information” in the doctor’s report quotes from the letter qualifying him, it can be readily inferred that the doctor read the letter of referral. The appellant describes the doctor as assuming the assault occurred at “a work-related event”. That term is a general one which, in the circumstances, has the capacity to be misleading. The doctor recorded a history, repeated in his report, that the respondent attended the hotel “for the main purpose of farewelling a senior police officer”.
[68] ARD, pp 42–44 (Dr Takyar letter of instruction).
The appellant’s reference to providing an expert opinion in “a fair climate” is apparently a reference to Paric v John Holland Constructions Pty Ltd in which Samuels JA (Hutley and Priestley JJA agreeing) said:
“It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis.”[69]
[69] [1984] 2 NSWLR 505 (Paric), 509G-510A.
This refers to the well-known requirement for an appropriate level of correlation between the facts as proved and the factual assumptions on which an expert report is based. In the context of the Commission, in Hancock v East Coast Timber Products Pty Ltd it was said:
“In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 [Bell] at [19] per Hodgson JA.”[70]
[70] [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399 (Hancock).
The appellant has, in dealing with this ground, based its submissions on the weight to be afforded to the opinions of Drs Bennett and Takyar. The appellant submits that Dr Takyar was asked to assume the existence of an ‘aggravation injury’. Dr Takyar’s letter of instruction said that “[b]ased on our client’s instructions, we understand that the employer’s treatment of our client after the assault, including the reporting of the assault and the investigation process, has aggravated our client’s pre-existing psychological injury.” (emphasis added) Some of the questions asked of the doctor were of a leading nature. For example, the doctor was asked for the “history of our client relative to the psychological injury which arose out of the course of employment”. This assumed the existence of such an injury and additionally misstated the test in s 4 of the 1987 Act.
Dr Takyar’s opinion on ‘injury’ is briefly summarised at [19] above. Dr Takyar diagnosed a “major depressive order with anxious distress”. The doctor said:
“Ms Nguyen described a change in her mental state in the context of both sexual assault occurring in December 2019 and a lack of organisational support from her employer after the male who had allegedly assaulted her was not subjected to any intervention or removed from the workplace, but she rather found herself removed from the workplace. She said that she was put in a position where she had no structure or meaningful work, no access to her usual supports in her substantive office and she described deterioration in her mental state for a period of six to eight weeks in an intense manner, but with continuing psychiatric symptoms at the current time.”[71]
[71] ARD, p 51.
The doctor regarded the relevant psychological condition as having two causes, one of these (the assault) was not compensable and this was made clear in the doctor’s letter of instruction. The other was the appellant’s actions in managing the respondent after the assault. The doctor distinguished between these causative factors and said that each was an “equal main contributing factor”. He continued:
“If her condition is considered to have commenced in the context of the sexual assault, then the main contributing factor to the aggravation of that psychiatric condition would be considered to be the employer’s conduct and lack of support.”[72]
[72] ARD, p 52.
Dr Bennett, the treating psychiatrist, recorded a relatively detailed history of the respondent’s return to work following the assault.[73] Dr Bennett made the same diagnosis as Dr Takyar, major depression with anxious distress. The doctor was asked for her opinion on whether the appellant’s conduct after the assault was the main contributing factor to the aggravation, etcetera of the respondent’s condition. Dr Bennett said:
“The conduct of the employer has had a major impact on Ms Nguyen’s recovery. This is now causing more distress and having a greater impact that [sic, than] the original traumatic incident. The assault was a traumatic event and Ms Nguyen was taking steps to facilitate her recovery. The conduct of the employer has been the main contributing factor to the exacerbation and delay in her recovery. She would have recovered faster if she had not been removed from her own workplace and if she could return to a safe environment by the offender being removed from her workplace. The delay and continued independent assessments (despite the assessment recommending she return to her own workplace) has caused increased distress and exacerbated her psychological injury. She has felt that she is being punished for reporting the assault and is at risk of losing her career. She has felt unsupported by her employer (although her immediate boss has been supportive).”[74]
[73] ARD, p 55.
[74] ARD, p 56.
The basis on which the case was conducted by the parties was that the appellant, if the respondent succeeded, was liable for the consequences of the events that post-dated the assault. Dr Takyar’s opinion drew a distinction between those events and the assault. A combination of the lay evidence, together with the specialist medical evidence from Dr Takyar and Dr Bennett, was sufficient to support the finding of injury by way of aggravation which the Arbitrator made. The appellant submits that Dr Takyar and Dr Bennett failed to separate the effects of the assault from the effects of the respondent’s return to work and the associated difficulties. Both doctors were asked by the respondent’s solicitors to make that distinction, and it is apparent from their opinions that they sought to do so. The appellant relied on no medical evidence of its own, a matter to which the Arbitrator referred (see [21] above). The respondent’s counsel, making submissions in reply before the Arbitrator,[75] referred to the well-known authority of Federal Broom Co Pty Ltd v Semlitch in which Windeyer J said:
“The next question then is, was there in December 1960 ‘an aggravation, acceleration, exacerbation or deterioration’ of the disease? The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.”[76]
[75] T2 75.34–76.25.
[76] [1964] HCA 34; 110 CLR 626 (Semlitch), [9].
The respondent’s counsel submitted that the four steps identified by Windeyer J in Semlitch were satisfied. On the question of whether there was an injury by way of aggravation, she submitted:
“… for aggravation to be found it’s not necessary to be, for there to be an actual worsening in the disease but for there to be an increase in symptoms and restrictions resulting from the disease is sufficient.”[77]
[77] T2 77.4–7.
The finding that there was an injury by way of aggravation, as a result of the respondent’s work duties subsequent to 20 December 2019, was available on the evidence overall, in particular that of the respondent, Dr Takyar and Dr Bennett. It was not inconsistent with the view expressed by Dr Lander.
The appellant argues that Dr Lander, the respondent’s general practitioner, was the best placed to assess whether the psychiatric injury from the sexual assault had recovered and whether there had been an aggravation due to the conduct of the appellant (see [46] above). Whether the respondent had recovered from the effects of the sexual assault was not a matter on which her entitlement to compensation for the effects of any aggravation injury depended. Injury or loss can have multiple causes.[78] Dr Lander did not give the appellant any great assistance on the issue of whether there was aggravation due to the conduct of the appellant. Dr Lander’s comments in the certificate dated 4 July 2020 are referred to at [45] above. These are consistent with the respondent suffering aggravation as a result of events associated with the appellant’s actions after the assault.
[78] See generally ACQ Pty Limited v Cook [2009] HCA 28; 237 CLR 656, [25], Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 2 NSWLR 435.
To the extent to which there was inconsistency between the reports of the two psychiatrists as opposed to the material from Dr Lander, the Arbitrator dealt with her preference for the opinions of Dr Bennett and Dr Takyar (see [21] above). She described the opinions of the psychiatrists as being consistent with the respondent’s evidence. She said that Dr Lander’s clinical records “presented a more mixed picture”. The Arbitrator said that she approached those records with “caution”, as they were the “records of a general practitioner … not prepared with subsequent legal proceedings in mind.” This was a reference to a line of authority that included cases such as Mason v Demasi,[79] Davis v Council of the City of Wagga Wagga[80] and Mastronardi v State of New South Wales.[81] It was an appropriate matter for the Arbitrator to have regard to in assessing the medical evidence. In Shellharbour City Council v Rigby Beazley JA (as her Honour then was) said: “As I have stated a number of times, the acceptance of evidence and the weight it is given is peculiarly a matter for the trial judge.”[82]
[79] [2009] NSWCA 227, [2].
[80] [2004] NSWCA 34, [35].
[81] [2009] NSWCA 270, [87].
[82] [2006] NSWCA 308, [207].
The appellant has not identified appealable error within the meaning of s 352(5) of the 1998 Act (see [25] to [28] above). Ground No. 1 fails.
GROUND NO. 2
The Arbitrator erred in fact and law in finding that the respondent’s incapacity for work flowed from the aggravation injury rather than the events of 20 December 2019
Appellant’s submissions
The appellant submits that the respondent’s incapacity “flowed not from the aggravation injury but rather from the alleged sexual assault” (emphasis added). The appellant submits the Arbitrator’s reasons refer to the reports of Dr Takyar and Dr Bennett, which state that the respondent was not fit to work “within proximity of the male perpetrator”. This is submitted to be consistent with incapacity resulting from the sexual assault. It submits that, if the incapacity resulted from the employer’s actions subsequent to the assault, it would not matter whether the respondent was within proximity of the perpetrator. It follows, in the appellant’s submission, that the partial incapacity for work was not compensable.[83]
[83] Appellant’s submissions, [32]–[36].
Respondent’s submissions
The respondent claimed weekly compensation from 1 February 2020 to 5 July 2020, and the weekly award was for a period from 29 February 2020 to 5 July 2020. The respondent submits she was unable to return to work over this period due to the s 4(b)(ii) injury. She submits the Arbitrator correctly stated that the employment injury does not have to be the sole cause of the incapacity. She submits that, having reviewed all of the evidence, the Arbitrator was satisfied the work injury caused some incapacity during the period awarded. She submits there is no error in this.
Consideration
The Arbitrator referred to Kooragang and Calman in dealing with the issue of incapacity.[84] The quoted passage of Calman included the following from the judgment of Jordan CJ in Salisbury v Australian Iron and Steel Ltd:
“It is not necessary that the employment injury should be the sole cause of disability. It is sufficient if it is a contributing cause. It may be the catalyst which precipitates disability in a medium of disease. But when the stage is reached at which the employment injury ceases to produce effects and could therefore no longer be a contributing cause to any incapacity which may then exist, the right to compensation ceases.”[85]
[84] Reasons, [147]–[148].
[85] (1943) 44 SR (NSW) 157, 162.
The Arbitrator additionally quoted from a passage from Calman which included the following:
“Once the appellant established that his underlying anxiety disorder was an injury within the meaning of the Workers Compensation Act, he was entitled ‘to compensation ... under [that] Act’ upon proof that his total or partial incapacity for work resulted from that injury. The question then for the Tribunal was whether the appellant’s incapacity was causally connected to the underlying anxiety disorder. It has long been settled that incapacity may result from an injury for the purposes of workers’ compensation legislation even though the incapacity is also the product of other - even later - causes.”[86]
[86] Calman, [38], quoted in the reasons, [149].
In Accident Compensation Commission v CE Heath Underwriting and Insurance (Australia) Pty Ltd Brennan J (as his Honour then was) said:
“Similarly, liability under the Act to make weekly payments during incapacity or to pay a lump sum in redemption of that liability arises from each of the injuries which caused or materially contributed to the incapacity. Any employment in the course of which the worker sustained an injury causing or materially contributing to his incapacity attracts liability to the employer and to the insurer on risk at the time of the injury ...”.[87]
[87] [1994] HCA 68; 121 ALR 417 (Accident Compensation Commission), [5].
In Sutherland Shire Council v Baltica General Insurance Co. Ltd[88] (a case involving apportionment pursuant to s 22 of the 1987 Act) Clarke JA, applying Accident Compensation Commission, said:
“... I do not think there is any impediment to my acceptance of the view that the common law test applies and that the relevant enquiry directs attention to whether the injury caused or materially contributed to the incapacity.”[89]
[88] (1996) 39 NSWLR 87 (Baltica).
[89] Baltica, 97G–98A.
The appellant’s submission, that incapacity “flowed not from the aggravation injury but rather from the alleged sexual assault” (emphasis added) asks the wrong question. It assumes an ‘either/or’ approach which is inconsistent with authority. An argument that incapacity results from the alleged sexual assault is not necessarily inconsistent with the proposition that incapacity also results in the relevant sense from the ‘aggravation injury’. The applicable question is whether the ‘aggravation injury’ caused or materially contributed to the relevant period of incapacity. There was ample evidence to support this proposition.
Dr Bennett said: “The conduct of the employer has had a major impact on Ms Nguyen’s recovery. This is now causing more distress and having a greater impact than the original traumatic incident.” (see the passage quoted at [60] above). Dr Takyar described two causes of the respondent’s psychological condition, the “sexual assault occurring in December 2019 and a lack of organisational support from her employer” thereafter.[90] The doctor described the appellant’s “conduct and lack of support” as the “main contributing factor to the aggravation” (see [59] above). The medical evidence supported the proposition that the ‘aggravation injury’ materially contributed to the incapacity.
[90] ARD, p 51.
The lay evidence also assists in this regard. The appellant submits, as if it is a self-evident truth, that an inability to work “within proximity of the male perpetrator” is consistent with incapacity resulting from the sexual assault, as opposed to the ‘aggravation injury’. How the appellant dealt with the respondent, and her perception of the contrast with how the appellant treated the perpetrator, was a significant aspect of the respondent’s complaint regarding her perceived treatment after the alleged assault. She said that the perpetrator was “out in the public, probably still carrying a firearm”, something she found “especially difficult”.[91] She said “I feel like I have been moved to preserve the offender’s working conditions and rights”.[92] During February 2020 she heard another employee at Woolloomooloo speaking to the perpetrator on the telephone. She said:
“This conversation was a reminder that the offender was still doing his job and no action had been taken against him. It was a stark contrast to my position where I had my job taken from me and felt like I had caused problems for my boss to manage.”[93]
[91] Respondent’s statement, [15], ARD, p 2.
[92] Respondent’s statement, [26], ARD, p 3.
[93] Respondent’s statement, [32], ARD, p 4.
The respondent described a telephone conversation with her “boss” on 31 January 2020. She said her boss “expressed his serious concerns about me coming into contact with the offender and the witnesses. He said he wanted me to work from Woolloomooloo and not return to PHQ [Parramatta Headquarters]”.[94] The respondent resumed work at Woolloomooloo on 4 February 2020.[95] The respondent, in her statement, described a number of conversations with her “boss” on 26 February 2020, 10 March 2020, 11 March 2020 and 14 March 2020. On none of these occasions did her boss support a return to Parramatta Headquarters.[96] Throughout, the respondent complied with the working arrangements put in place by the appellant. On 23 March 2020, the respondent increased her working days to three per week. By this point she was directed to work from home due to COVID-19 restrictions.
[94] Respondent’s statement, [21], ARD, pp 2–3.
[95] Respondent’s statement, [25].
[96] Respondent’s statement, [31]–[35], ARD, p 4.
Following a medical assessment, the respondent was told she could work at Parramatta Headquarters from 9 June 2020. On 4 June 2020, the respondent was told there was “no work for me at PHQ until 1 July 2020”. The respondent described this as “consistent with the timeframe of the DPP’s legal advice”.[97] She stated she had made childcare and other arrangements for her return to Parramatta. She said she was “shocked by the decision”. She stated:
“41. … This was the second time a start date had been revoked. I felt that my position was being worked around the offender. My employer was willing to shuffle me around but was not willing to remove him. From 4 June 2020, I commenced training to perform the manager’s role at Woolloomooloo by the then substantive manager.
42. I do not feel like my situation was dealt with appropriately. I do not hold this against my boss, but the organisation, my employer.
43. I continued to feel like I was in ‘limbo land’ in Woolloomooloo.”[98]
[97] Respondent’s statement, [39]–[40], ARD, p 4.
[98] Respondent’s statement, [41]–[43], ARD, p 5.
The lay evidence, like the psychiatric evidence, is consistent with the conclusion that the ‘aggravation injury’ materially contributed to the incapacity. The above evidence from the respondent is consistent with her suffering distress due to how she was treated by the appellant following the assault. More particularly, it is consistent with a perception on her part that she was treated unfairly compared to the perpetrator. Dr Takyar and Dr Bennett considered she could not work “within proximity of the male offender” (Dr Takyar)[99] or “in the same location as the offender” (Dr Bennett).[100] There is no reason to regard this restriction as necessarily relating to the assault as opposed to the aggravation injury. It is a matter of conjecture, it is not something that could be appropriately inferred.[101]
[99] ARD, p 52.
[100] ARD, p 56.
[101] Bradshaw v McEwans Pty Ltd [1951] HCA 480; 217 ALR 1, [5], Luxton v Vines [1952] HCA 19; 85 CLR 352, [8] Fuller-Lyons v New South Wales [2015] HCA 31, 323 ALR 639; 89 ALJR 824, [46].
Dr Lander’s certificate of capacity dated 20 January 2020 described the injury as being “exacerbated while perpetrator remains in the workplace and there is a current internal investigation”.[102] The doctor’s certificates of capacity dated 4 July 2020 and 25 July 2020 said “The employer’s treatment of Lina after the sexual assault, particularly transferring her out of the workplace rather than the offender, and the lack or consequence for the offender, has detrimentally affected Lina’s recovery.”[103] Dr Lander’s certificates do not support the appellant’s argument that an inability to work within proximity of the offender is solely due to psychological injury sustained in the alleged sexual assault.
[102] ARD, p 229.
[103] ARD, p 245.
It follows from the above that I reject the submission that the assessed incapacity to work within proximity of the offender does not result from the found ‘aggravation injury’.
Ground No. 2 fails.
CONCLUSION
Both grounds of appeal have failed. The appeal fails.
DECISION
The appellant’s application to rely on fresh or additional evidence pursuant to s 352(6) of the 1998 Act is refused.
The Arbitrator’s Certificate of Determination dated 3 February 2021 is confirmed.
Michael Snell
DEPUTY PRESIDENT
20 October 2021
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