State of New South Wales v Hayden - [2017] NSWWCCPD 43

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	State of New South Wales v Hayden [2017] NSWWCCPD 43
APPELLANT:	State of New South Wales
RESPONDENT:	Donna Hayden
INSURER:	Employers Mutual acting as agent for NSW Self Insurance Corporation (NSW Treasury Managed Fund No 2)
FILE NUMBER:	A1-1236/17
ARBITRATOR:	Mr P Young
DATE OF ARBITRATOR’S DECISION:	8 May 2017
DATE OF APPEAL DECISION:	13 October 2017
SUBJECT MATTER OF DECISION:	Duty to give reasons where there is a conflict of expert evidence; application of Hume v Walton [2005] NSWCA 148 and Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402; 79 ALJR 1816
PRESIDENTIAL MEMBER:	Acting President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Bartier Perry
Respondent:	Carroll & O’Dea Lawyers
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 8 May 2017 is revoked. 2. The matter is remitted for re-determination by another Arbitrator.

INTRODUCTION

This is an employer’s appeal against a decision by an Arbitrator. It raises issues going to fact finding and the adequacy of the Arbitrator’s reasons.

BACKGROUND

Donna Hayden (the respondent) was employed by the State of New South Wales (the appellant), through the Western NSW Local Health District (the Health District), at the Mental Inpatient Unit at Dubbo Base Hospital (the Unit). She was employed as an enrolled nurse from 2007, and as a registered nurse from 2010. She cared for mentally ill patients. She lived with her husband and son on a rural property at Quambone.
On 28 February 2014, during the respondent’s shift, a patient in the Unit (the patient) committed suicide. The respondent and another nurse found the patient. It was the first time the respondent had seen a successful suicide. The respondent was “Nurse Charge” on the shift, in charge of both the Sub-Acute and High Dependency sections of the Unit. The respondent was off work from 2 March 2014. She came under the care of her general practitioner, a psychologist, and two psychiatrists in Orange. There were investigations into the death, involving the Western NSW Local Health District, and the NSW Police. There were identified discrepancies between the written records of when the patient was observed by nursing staff prior to his death, and CCTV footage in the Unit.
The respondent gave an “initial notification of injury” dated 11 March 2014. The appellant’s insurer gave notice on 25 June 2014, that it would not commence provisional payments of compensation due to “insufficient medical information”. It issued a s 74 notice dated 28 October 2014, in which it accepted that the respondent “sustained a psychological injury satisfying the requirements of sections 4 and 9A [of the Workers Compensation Act 1987 (the 1987 Act)]”. It denied liability to pay compensation “in accordance with section 11A(1) [of the 1987 Act]”, on the basis that the injury resulted, wholly or predominantly, from its reasonable actions or proposed actions, with respect to transfer, performance appraisal or discipline.
The respondent was placed on paid leave for a period. On 8 July 2014 the Health District issued a “formal final warning” to the respondent. Her employment was to be conditional on various matters, including psychiatric assessment of her fitness to work, and a “clinical competency assessment”. There was also a requirement that she complete six months supervised work at Bloomfield Hospital, Orange (a mental health facility) followed by a further “independent competency assessment”. A finding of “unsatisfactory professional conduct” was notified by the Health District to the Australian Health Practitioner Regulation Agency (AHPRA). The respondent was on leave without pay for the next year. On 24 August 2015 the Health District wrote to her, noting that she had not “returned to work in any capacity”. Her employment was terminated effective 21 September 2015.
A claim for permanent impairment compensation was made by the respondent, through her solicitors, on 27 November 2015. The appellant’s insurer issued a further s 74 notice dated 18 March 2016, again relying on s 11A(1) as a defence, and also stating that the respondent’s condition had not reached maximum medical improvement.

THE ARBITRAL PROCEEDINGS AND DECISION

The respondent commenced proceedings no 1978/16, which were discontinued on 9 August 2016, following a telephone conference. The current proceedings were commenced by Application to Resolve a Dispute registered on 13 March 2017. The claim was for weekly compensation for a period from 28 February 2014 to 26 August 2016, medical expenses, and lump sum compensation in respect of 44 per cent whole person impairment (psychological injury). The matter was listed for an arbitration hearing at Dubbo on 5 May 2017. Mr P Perry, instructed by Ms Aldrich, appeared for the respondent. Ms Wood appeared for the appellant. The matter proceeded on the documentary material, and counsel addressed. The respondent also relied on written submissions handed up on her behalf, dated 4 May 2017.The Arbitrator delivered his reasons for decision on the day of the arbitration hearing, following a short adjournment.
The Arbitrator described the dispute as whether the respondent’s “pathology and hence her incapacity results from the incident of 28 February 2014 or subsequent events which occurred thereafter” (Reasons (R) T2.1-5). He described these events as falling “within four broad categories”. There was “the investigation by the [appellant] into the circumstances of the death, [the respondent’s] discharge of duties, the [appellant’s] decision to allocate duties to her and her suspension from duties pending further investigation of the event” (RT2.6-11). He described the appellant’s argument as one that “these events are the true cause of her incapacity rather than the incident of 28 February 2014”, so that “the employer has the benefit of section 11A in that regard” (RT2.11-18). He said “there appears to be no dispute that the [respondent] has had no capacity for work during the period in question” (RT2.25-8).
The Arbitrator noted that the appellant relied on Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, a decision which the respondent submitted should be distinguished (T2.32-3.13).
The Arbitrator referred to the reports of Dr Roberts, on which the appellant relied. He described a “change of opinion” by Dr Roberts, who initially accepted the respondent had suffered psychological injury, but then mentioned the other matters as having “compounded” this (RT4.13-8). The Arbitrator mentioned further matters of history raised in Dr Roberts’ report dated 17 February 2017, regarding psychological complaints when the respondent was 23 years old and broke up with a boyfriend, and an incident in 2001 when a neighbour stabbed his wife. He said the appellant did not suggest these matters caused the respondent’s incapacity after 28 February 2014, but rather that her failure to mention these things to qualified doctors in the case went to her credit (RT5.24-6.4).
The Arbitrator referred to the history to Dr Hedley on 19 March 2014, with reference to “exposure to stressful events before which she has handled well” (RT6.11). He said this was “not the sign of someone trying to hide past stressful events” (RT6.6-17). The Arbitrator said that the appellant “must have been somewhat overwhelmed and preoccupied” with the event on 28 February 2014, rather than the events dating back to 2001, or when she was 23 (RT6.19-22). He accepted the respondent as “a credible witness”, and accepted the opinion of Dr Hampshire. He found injury on 28 February 2014 in the course of her employment, “a severe psychological injury” (RT6.6-28). He said (RT6.28-31):
“I don’t believe it matters whether that is to be categorised as major depression, post traumatic stress disorder, an anxiety disorder or any other disorder such as an acute stress disorder.”
The Arbitrator then turned to s 11A(1) of the 1987 Act (RT6.34-7.7.6):
“My first view on this is that section 11A does not apply because the events which I noted earlier, namely, the four extra circumstances which occurred. The investigation, the employer’s decision to change the roster and a suspension pending further investigation were not wholly or predominantly caused by reasonable action on the part of the employer.”
The Arbitrator quoted a passage from Jackson v Work Directions Australia Pty Ltd [1998] NSWCC 45; (1998) 17 NSWCCR 70, in which Walker J dealt with the dictionary meaning of the word “predominant”. The Arbitrator said (RT7.29-8.4):
“In my view none of the events referred to by the [appellant] have that character. Indeed, in my view, the predominant event is the event of the 28^th of February 2014. His Honour also reasoned in that decision that for an employer to succeed it must establish that its action was a stronger cause of the psychological injury and prevailed over all others. In my view the four events to which I refer and the other events referred to by Ms Wood were such that not one of them nor a combination of all of them prevailed over the incident of 28 February 2014.”
The Arbitrator then referred to Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92, and said “[i]n my view the applicant’s pathology was principally caused, not by any of those events, but by the incident of 28 February 2014” (RT8.6-12).
The Arbitrator then made an award in the respondent’s favour for weekly compensation from 2 March 2014 to 28 August 2016, and a ‘general order’ for the payment of expenses pursuant to s 60 of the 1987 Act. He remitted the matter to the Registrar, for referral to an Approved Medical Specialist, to assess whole person impairment as a result of psychological injury on 28 February 2014.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) 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 without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the 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 as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.
The appeal is not of an interlocutory nature.

THE NATURE OF THE APPEAL

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“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.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”

THE GROUNDS OF APPEAL

The appellant raises the following grounds of appeal:
(a)     Failing to give proper reasons for preferring the opinion of Dr Hampshire (Ground No 1);
(b)     Failing to consider the evidence when determining the respondent was a witness of credit (Ground No 2);
(c)     Failing to determine a diagnosis when it was “critically relevant” in determining the question of causation (Ground No 3);
(d)     Determining that s 11A(1) did not apply (Ground No 4);
(e) Applying the wrong test in determining s 11A(1) (Ground No 5);
(f)      Failing to properly determine each step, in applying s 11A(1) (Ground No 6), and
(g)     Giving no reasons for his finding that “the injury was ‘principally’ caused by the suicide itself, without a proper evaluation of the evidence. The finding was against the weight of the evidence (Ground No 7).
In the appellant’s submissions, Ground No 6 has been subsumed into the submissions dealing with Ground No 4. The ground numbered 7 above has then been addressed as Ground No 6.

GROUND NO 1 – PREFERRING DR HAMPSHIRE

The Appellant’s Submissions

The appellant refers to Dr Hampshire’s reports. In the first (dated 27 October 2015) he diagnosed Post-Traumatic Stress Disorder, and said the death of the patient was the “major issue”. In the second (dated 7 July 2016) he referred to the respondent’s hospital admissions on 3 November 1993 and 8 November 1993. Dr Hampshire accepted the respondent had forgotten these events, which he described as “quite trivial”. He was not given a history of the event in 2009 when a neighbour murdered his wife, or of the stressful effects of the drought.
The appellant submits that these deficiencies in Dr Hampshire’s history affect the weight of his reports, as there was not a fair climate for the expression of his opinion. It submits Dr Hampshire’s opinion is inconsistent with the histories of other “injurious insults” flowing from discipline and termination of her employment. It submits the Arbitrator did not explain why he accepted Dr Hampshire’s opinion, in the presence of inconsistency, rather than that of Dr Roberts.

The Respondent’s Submissions

The respondent refers to the decision of Keating P in NSW Police Force v Newby [2009] NSWWCCPD 75 (Newby) at [149]-[151], reviewing a number of authorities on the adequacy of reasons. The respondent submits the Arbitrator’s reasons complied with his obligations, consistent with Newby.
If there were shortcomings in Dr Hampshire’s history, these were “clearly remedied” by his second report dated 18 October 2016. The respondent’s history of working in aged care from 2003, and as a registered nurse from 2010 supports Dr Hampshire’s conclusion that she did not suffer from a pre-existing psychiatric illness. The assertion that Dr Hampshire’s opinion is inconsistent with the other “injurious insults” is “unsustainable”. In his second report, the doctor diagnosed “PTSD, but she also suffers from a Major Depressive Disorder with melancholic features and from recurrent Panic Attacks and a recurrent dissociative state which are comorbid to her primary PTSD”. Dr Hampshire was “aware of the prior stressors, which he listed”. Dr Hampshire described the subsequent acts of the appellant as “a very significant contributor to her psychiatric disorder”. This did not conflict with the doctor’s view that the patient’s suicide was the major cause of the condition, predominantly PTSD.
The Arbitrator’s reasoning included reference to the report from Dr Hedley of Dudley Private Hospital dated 19 March 2014, which referred to a history of “exposure to stressful events before which she had handled well”.
The appellant submits that the Arbitrator gave reasons for his acceptance of Dr Hampshire. He accepted the credibility of the respondent, and he said that he was a little perplexed by Dr Roberts’ change of opinion. There were reasons for his preference for Dr Hampshire over Dr Roberts.

Consideration

Dr Hampshire’s Reports

Dr Hampshire’s first report was dated 27 October 2015, following an examination on 16 October 2015. The doctor recorded a history of the respondent and another nurse finding the patient, who had tied a sheet around his neck, and attached it to the end of the bed (which elevated), choking himself. It was “the first time she has ever seen someone’s suicide or hang themselves [sic]”. The cardiac arrest team were summoned, but “resuscitation techniques” were unsuccessful. The history recorded the respondent found the event “extremely distressing”, and on the evening after the incident she “had no sleep and had cried virtually throughout the night”.
Dr Hampshire’s history referred to the respondent being accused by the Mental Health Office, for not having the patient on “constant observation because he was deemed a suicide risk”. The history also recorded the respondent’s “recollections of the handover being that of two hourly observations”. The respondent said that she had “great support and sympathy from doctors and nurses, although she saw no one from the administrative team”. Dr Hampshire recorded “that there is a Coronial Enquiry which will be forthcoming likely in 2016, and also “a complaint against her submitted by hospital authorities and there is going to be an HCCC Enquiry”. The respondent gave a statement to the police. Her history was that the “other staff member at the time was sacked”. She said that the “Senior Mental Health Officer, Sandra Duff, criticized her extensively”, saying “the patient should have been on fifteen minute obs”. The respondent was “ordered by the hospital administration to do six months training at Bloomfield Hospital”. The respondent told Dr Hampshire that she refused to do the six months training “for a number of reasons”. Dr Hampshire said the main reason in his opinion was that the respondent “had developed extremely severe psychiatric problems and was unfit to work”.
Dr Hampshire described the “muddled” content of the respondent’s dreams after the incident as usual, and said that it “moves towards her honesty as a historian”.
Dr Hampshire described the respondent’s past personal history as “unremarkable”, and recorded that she “never had any psychiatric illnesses”. The doctor diagnosed “severe PTSD and comorbid recurrent Panic attacks and episodic periods of heightened anxiety”. He said she was “also suffering from a major Depressive Disorder with melancholic but not psychotic features”. He described her “major issue” as the death of the patient. He said that the respondent’s “trauma is not from the way she has been treated by the hospital and administrative staff since”. He said the respondent was “very anxious about the upcoming Coronial Enquiry”. The material which Dr Hampshire listed as being available to him included the insurer’s factual investigation dated 16 April 2014, and Dr Roberts’ report to the insurer dated 5 May 2014.
Dr Hampshire’s supplementary report dated 7 July 2016 commented on documents. He referred to notes from the Warren Base Hospital relating to the respondent’s admissions in November 1993 following the break-up of a relationship, when she ingested Paracetamol tablets. The initial diagnosis was “severe Depression with suicidal intent”, although the paracetamol dose was one “unlikely to cause problems”. The Arbitrator noted the respondent, in her statement, said that she had not mentioned these events to her solicitors, or Dr Hampshire on examination, as “she had forgotten it had even taken place”. Dr Hampshire said he “accepted that”, it was “a very minor event”. He did not, in any event, think it of relevance to the views expressed in his earlier report.
Dr Hampshire reported again on 18 October 2016, following a re-examination. He reviewed material from Warren Hospital in 1993, and a statement of the respondent dated 1 July 2016, which referred to those events. The respondent said she had not thought of the incident in “many, many years”, and had “completely forgotten” about it. She said that she was distraught in 1993 as she lacked family support at the time. She said that she underwent support and counselling, recovered, and had “lived a normal life ever since”. “November 1993 was a self-contained episode.” She said she had not told Dr Hampshire of the incident as she had “forgotten that it had even taken place”. The respondent said that she had tried to recall “other incidents”. She referred to the incident in 2001, when a man on a property, adjoining that where she and her husband lived, stabbed his wife 23 times. The respondent described this:
“That was something that was very traumatic, but I believe I handled it well. I never had to go to hospital, or seek treatment for depression, anxiety or emotional instability.”

Dr Hampshire said that the material sent to him did not alter his opinion in any way. He said that he had “explored the issue of pre-existing psychiatric illness in Ms Hayden very closely”. He described the history of the events in 1993. He said the respondent’s behaviour “was classed as a suicide attempt, which it was not”. She “had counselling four or five times”. Dr Hampshire said that he did not see the events at that time “as a psychiatric disorder”. He took a history of the events involving the respondent’s neighbour murdering his wife in 2001, and said:
“Ms Hayden was not particularly stressed by the action, any more than one would be, and she did not seek any help, other than to speak to elders in her church, because her own daughter had commenced sleep walking for a period after this event.”
Dr Hampshire enquired about “acute stress in 2009, she had no idea what that refers to”. Dr Hampshire enquired about a complaint of “stress” to the respondent’s GP in October 2013. He was given a history that the Unit was very busy at the time, the respondent wanted some time off, and knew that if she told he GP the problem was stress, she would be given some time off without further disclosures. “She was not suffering from a psychiatric disorder at the time and she had four days off.” Dr Hampshire said “I can only re-emphasize that I do not think that this woman suffers from a pre-existing psychiatric illness.” Dr Hampshire’s diagnosis was:
“Yes, she suffers from a Post Traumatic Stress Disorder, but she also suffers from a Major Depressive Disorder with melancholic features and from recurrent Panic Attacks and recurrent Dissociative States which are comorbid to her primary PTSD.”
The doctor commented that the respondent “looks strikingly deteriorated from when I last saw her, both physically and on Mental State Examination”. He said there was “slowed up mentation, which is in itself an expression of her Major Depressive Disorder which has also become worse”. She was “currently awaiting a Coronial Enquiry”. The respondent also gave a history that she was to undergo a Health Care Complaints Commission Enquiry (HCCC Enquiry), which she understood was to be “some weeks prior to the Coronial Enquiry”.
On causation, Dr Hampshire said:
“Yes, my diagnosis remains unchanged and I am of the opinion that her diagnosis and condition are directly related to the suicide of her patient, but I would also add that the way in which she has been not only abandoned by, but turned on by both the Consultant Psychiatrist in this matter and the hospital itself, has also contributed to her condition.”
And:
“The patient’s suicide is the major cause of her condition, but the acts of her employer which, in my opinion, are not reasonable, have also been a very significant contributor to her psychiatric disorder.”

The Weight of Dr Hampshire’s Reports

The appellant’s main attack on the Arbitrator’s reasons, for accepting the opinion of Dr Hampshire, focusses on the adequacy of the history on which Dr Hampshire’s opinion stands, and whether this affects the weight of the doctor’s reports. The appellant identifies the following areas in which Dr Hampshire’s history is said to be inadequate:
(a)     The respondent’s admissions to Warren District Hospital from 3 to 5 November 1993, and 7 to 8 November 1993, following a relationship break-up.
(b)     The notes of Dudley Private Hospital on 19 March 2014 recorded a history of “exposure to trauma (neighbour murdered his wife and attended Donna’s house covered in blood) 6 yrs ago asking for a gun to shoot himself with after stating he had killed his wife”. The history recorded that the respondent “helped the neighbour’s children until emergency services arrived”.
(c)     The history in Dr Smith’s report dated 14 March 2014, referring to the respondent’s family life, said:
“… the farm is experiencing financial distress as a result of the drought… they shortly may have to sell off their stock. This is obviously a situation that carries its own distress. Donna’s daughter is also to be married in three weeks.”
(d)     The appellant refers to the “very stressful events that the appellant [sic, respondent] was undergoing which were matters of discipline taken by or on behalf of the employer and/or ‘non-work related’ – such as her deregistration as a nurse and the coronial inquiry”. The appellant refers to material in its Reply from Dr Smith, Dr Hedley, Dr Duncan, Mr Tyrer (psychologist) and Dudley Private Hospital.
In considering the weight to be afforded to Dr Hampshire’s reports, it is necessary that they be read together: Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 80 NSWLR 705; 8 DDCR 399 Beazley JA (Giles and Tobias JJA agreeing) at [92].
The High Court, in a well-known passage in Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844 (at [9]), said:
“It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v. Watson[1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels J.A. in the Court of Appeal (Wigmore on Evidence, (1940) 3rd ed., vol.II, 680, p.800; 2 Wigmore, Evidence 680 (Chadbourn rev. 1979), p.942) to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.”
The attack on the adequacy of the history, on which Dr Hampshire’s reports are based, and consequently on the weight of those reports, is without merit. Dr Roberts, in his report dated 15 February 2016, described Dr Hampshire’s account of the “incident” as consistent with his. Dr Hampshire’s account of the aftermath included reference to the allegations by Ms Duff, the respondent’s concern at the prospect of a coronial inquest, the HCCC Inquiry, and requirement of six months training at Bloomfield Hospital.

The Past History

The appellant refers to various aspects of the respondent’s past history. A number of these things were not referred to in the history recorded by Dr Hampshire on his initial examination. These included the respondent’s hospital admissions in November 1993. Dr Hampshire, in his second report, said that he accepted the respondent’s explanation that she had forgotten the incident. On any version of the evidence, the effects of that episode were short-lived. Dr Hampshire recorded that after a period of support and counselling, the respondent “lived a normal life ever since” (report 18 October 2016). Dr Roberts recorded a history that, after one to two weeks at Lindara, a facility in Dubbo that had programs with counsellors, the respondent “got on with life” (report 17 February 2017). Both of these doctors had access to the material from Warren Base Hospital, dealing with what happened in 1993, for the purpose of giving their opinions.
The incident in 2001, when a neighbour of the respondent murdered his wife, clearly would have the capacity to be upsetting. The respondent told Dr Roberts that she recalled it as “a horrible experience”, and an “absolute [sic] terrifying experience” (report dated 17 February 2017). The histories do not suggest that it caused psychological symptoms in the respondent. She told Dr Hampshire that she spoke to elders at her church, because her daughter began sleepwalking. Dr Roberts recorded that the respondent had counselling with a Minister at her church, for a couple of days, and that the respondent and her husband “dealt with it together”, moving to Queensland as their daughter was not coping.
There is a certificate from Dr Hester dated 9 November 2009 giving the respondent time off work from 10 to 11 November 2009, due to “acute stress”. On specific enquiry from Dr Hampshire, the respondent was unable to recall what this involved. A certificate from Dr Paing, dated 6 November 2013, said the respondent was unfit from 6 November 2013, due to “stress related condition”, it was estimated for two weeks. The respondent told Dr Hampshire that she was not suffering from a psychiatric disorder at the time, wanted some time off, and in fact took four days off work.
The appellant refers to Dr Smith’s report dated 14 March 2014, and “financial distress as a result of the drought”. The appellant submits that Dr Hampshire had no history of this. This information was not necessarily known to Dr Smith as a matter of formal medical history. Dr Smith, psychiatrist, was a visiting medical officer at Dubbo Base Hospital, where the respondent worked in the Unit. Dr Smith said that she had worked with the respondent (who she described as a “good nurse”) for “several years”. The factual report described Dr Smith as offering “support, friend to friend”. Dr Smith said she knew “a little of [the respondent’s] family life”. Dr Smith then referred to the respondent’s marriage, financial distress associated with drought, and the upcoming marriage of the respondent’s daughter. Dr Smith described the respondent as, to the best of her knowledge, having “no mental health history”. She said the respondent described herself as “usually a calm and resilient person”.
When Dr Hampshire’s reports are read together, he had a full history of most of the matters raised in other material. Some history, such as the certificate in 2009, the respondent could not recall. The episode in 1993 (21 years prior to the events the subject of this claim) the respondent said she had initially forgotten. The evidence did not suggest ongoing problems flowing from this episode. The event in 2001 involving a neighbour (13 years prior to the pleaded injury) involved, on the history, only some brief counselling undertaken through the respondent’s church, associated with problems affecting the respondent’s daughter. Other matters raised, of pre-existing psychological problems, are essentially trivial. In the appellant’s case, Dr Roberts, in his report, dated 17 February 2017, said “I am not of the opinion that the prior episodes are related to the current episode”.
In these circumstances, it was unnecessary for the Arbitrator to give extensive reasons dealing with his acceptance of Dr Hampshire’s report, on the basis of any suggested deficit in the recorded past history. An arbitrator’s obligation to give reasons depends on the circumstances of the individual case: Mifsud v Campbell (1991) 21 NSWLR 725 at 728, applied in Luxotica Retail Australia Pty Ltd v Susak [2014] NSWWCCPD 36 at [37]. Dr Hampshire, reading his reports together, had a relatively full history of past events, generally consistent with that of Dr Roberts. Dr Hampshire, in his second and third reports, said that the further history with which he was furnished did not affect his opinion. In his report dated 18 October 2016, after considering the past history at some length, Dr Hampshire said “I do not think this woman suffers from a pre-existing psychiatric illness”. This was essentially consistent with the opinion of Dr Roberts, in the appellant’s case.

The History of Events after 28 February 2014

The histories recorded by different doctors, dealing with events after the patient’s suicide, vary in the level of detail they include. Dr Hampshire, in preparing his report dated 27 October 2015, had access to the factual investigation dated 16 April 2014, carried out at the request of the insurer. This included “Post Incident Events”, which involved reference to discrepancies emerging between the observation records and the CCTV footage. It dealt with the respondent being offered supervised day or afternoon shifts in March 2014 (rather than unsupervised night shifts). It described the respondent providing a statement to the Police. It recorded the respondent’s stated belief that she and Ms Rumble had been “hung out to dry by management”. The factual report referred to advice from Mr Fahey that:
“… the allegations have been sustained, one that all three workers had not observed the patient as clinically indicated and two that they made false entries in the patient’s record in undertaking observation that had not occurred.”
Dr Hampshire’s report dated 7 July 2016 recorded a history of the respondent awaiting a “Coronial Enquiry”, and being about to have “her HCCC Enquiry”, although the doctor said he was unsure if that would be held, as the respondent “recently signed a document”. Dr Hampshire described the acts of the appellant, after the patient’s suicide, as “a very significant contributor to her psychiatric disorder”.
Dr Roberts’ history, in his report dated 15 February 2016, included some other aspects of history. It recorded renewal of the respondent’s registration being “declined by APHRA” and her employment being terminated. Dr Roberts’ history in his report dated 17 February 2017 recorded that the coronial inquest had been delayed to June 2017, that a “HCCC hearing” was held in December 2016, which the respondent did not have to attend, and that she was uncertain as to the outcome. The history recorded that the respondent had given up her registration. Dr Roberts referred to Dr Hampshire’s report dated 18 October 2016, and said it was not apparent that Dr Hampshire had “considered the protracted and harrowing internal investigative process, the HCCC process and the Coronial Inquest as contributing to the causation of [the respondent’s] condition”. Dr Hampshire had referred to the internal investigation, the respondent’s belief that she had been “hung out to dry” by management, the HCCC Enquiry, and the respondent being “very anxious” about the prospect of “the upcoming Coronial Enquiry”.
Overall, Dr Roberts recorded slightly more detailed information than Dr Hampshire regarding the subsequent events, and to a later point in time (his last report was dated 17 February 2017, as opposed to 18 October 2016 in Dr Hampshire’s case). Overall, both of them recorded histories, which were consistent with the presence of “a fair climate for the opinions they expressed” (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509G-510B). The appellant’s submission to the contrary, in respect of Dr Hampshire’s opinion, is inconsistent with a fair reading of his reports as a whole.

The Reports of Dr Roberts

Dr Roberts’ initial report was dated 5 May 2014. It included a detailed account of events involving the patient’s suicide. It included reference to matters postdating that event. Dr Roberts recorded the respondent received a letter the day before her daughter’s wedding, accusing her of failing in her duty of management of the patient. It said that the “Clinical Director of the Ward” sought a letter of apology from the respondent, which she did not write. It said that the respondent had provided statements to the Police and an investigator. It referred to the respondent’s impression that the event had “gotten bigger and bigger”, and that the respondent and Julie (the other nurse involved) had “gotten lost in it”. The respondent was told that she would have to work supervised (that is, not night) shifts. The history recorded that the appellant had wanted the respondent and the other nurse “to watch the CCTV of the night in question”, which the respondent did not do as she was “emotionally overwrought”. The report included a detailed description of the respondent’s psychological symptoms. Dr Roberts had access to the factual investigation report.
Dr Roberts identified:
“… an Acute Stress Disorder in accordance with the criteria stipulated in DSM-V. Namely, Ms Hayden was exposed to a serious traumatic event, the hanging of a patient under her care, in the context of which she has experienced a variety of symptoms including intrusion symptoms, negative mood, avoidance symptoms and arousal symptoms.”
Dr Roberts also said:
“Compounding the effects of the incident itself, are the effects of the investigation process that has necessarily arisen as a consequence of the hanging.”
Dr Roberts agreed that the injury was “reasonably attributable to the alleged incident”, and said that there were not any “other contributing factors”.
In a supplementary report dated 29 May 2014, Dr Roberts responded to a question regarding whether the “diagnosis in any capacity is related to the suicide or the actions taken by [the respondent’s] employer”. He said:
“… Ms Hayden developed an acute stress disorder consequent upon the hanging of a patient under her care. The psychiatric condition developed by Ms Hayden is consequent upon this hanging itself. Her psychiatric condition has however been compounded by the emotional impact of the investigations and actions taken by her employer.”
Dr Roberts re-examined the respondent on 5 February 2016, and reported on 15 February 2016. He referred to investigation of the incident, the respondent’s registration being declined by APHRA, and HCCC becoming involved. He referred to material from Dr Duncan, psychiatrist, Mr Tyrer, psychologist and the first of Dr Hampshire’s medico-legal reports. He took a history of the respondent’s ongoing symptoms. He said the respondent developed an Acute Stress Disorder, as he had originally diagnosed. He said that her “condition has changed over time such that her current presentation reflects a diagnosis of Major Depressive Disorder”. He said the original psychiatric condition developed due to the patient’s suicide. He referred to the appellant’s investigation, the HCCC process, and the Coronial Inquest. He said:
“The relative contribution of the original workplace incident is now remote in time and, in the scheme of the ensuing events, so limited in magnitude, that its contribution to the causation of her current presentation is no longer considered substantial. It is therefore appropriate to consider the processes that ensued, namely the HCCC process and the coronial inquest, represent the predominant factors in Ms Hayden’s current psychiatric condition.”
Dr Roberts, in that report, also said:
“Having regard for the account presented by Ms Hayden it is evident that the Acute Stress Disorder arose by virtue of the death of the patient. Having regard for the account presented by Ms Hayden, it is expected that if the investigation had vindicated and supported her actions with respect to her care of the patient, if the adverse finding against her had not arisen and if no Coronial Inquest had proceeded, if her registration had not been compromised and if her employment had not been terminated, Ms Hayden’s condition would have evolved differently. From a psychiatric perspective, it is my opinion that if the only event that confronted Ms Hayden was the death of the patient, it is more likely than not that her condition would have resolved fully within a period of three months.”
Dr Roberts wrote a supplementary report dated 7 March 2016, dealing with whether maximum medical improvement of the respondent’s psychological injury had occurred. It did not contribute to the causation issue. He wrote a further supplementary report dated 3 August 2016, commenting on material forwarded to him by the appellant’s solicitor. This related to the admissions to Warren District Hospital in 1993, certificates relating to “stress” on 9 November 2009 and 6 November 2013, and some reports from treating practitioners which included Dr Smith’s history about “financial distress as a result of the drought”. Dr Roberts said that the additional information did not alter the “diagnostic impression” in his report dated 15 February 2016. Dr Roberts described the events in 1993 as “moderately unforgettable”, and on this basis said that the respondent had “wilfully withheld aspects of her past history from assessing clinicians, the extent to which other aspects of her account can be relied upon would inevitably be called into question.”
Dr Roberts also summarised his opinion on causation, based on his assessment in February 2016:
“The circumstances that were identified as causative in Ms Hayden’s initial psychiatric condition related to the suicide by hanging of a patient under her care. The circumstances that caused the ongoing psychiatric condition with which she was suffering at the time of her attendance on 5 February 2016 were considered to include the investigation undertaken by her employer, a Health Care Complaints Commission process and a Coronial Inquest, with the associated potential to compromise her career in nursing.”

Dr Roberts’ final report was dated 17 February 2017, following a re-examination on 6 February 2017. By then the respondent had given up her registration as a nurse. A hearing by the HCCC involving three nurses, of which the respondent was one, had been held in December 2016, and she was uncertain as to the outcome. A coronial inquest had still not been held, and was expected in June 2017. The respondent said she had to be a witness at the inquest. The respondent said that Mr Fahey, the Area Director of Nursing, had notified the HCCC of the “circumstances”, and she thought also AHPRA. Dr Roberts described the patient’s suicide as “remote in time”, and said “it is no longer substantial in the causation of her psychiatric condition”.

The Reasons and the Medical Issue

The appellant submits that the Arbitrator’s reasons for preferring Dr Hampshire’s opinion, “in the presence of such inconsistency”, is not explained.
There is no significant inconsistency between the history on which the reports of Dr Hampshire and Dr Roberts are based. There is a considerable level of consistency between the opinions of those doctors. Both thought the prior historical matters raised in the appellant’s case were not contributory to the psychological injury. Both thought that the respondent suffered psychological injury as a result of the patient’s suicide.
Dr Hampshire considered the psychological injury involved “PTSD and comorbid recurrent Panic Attacks and episodic periods of heightened anxiety”, together with “Major Depressive Disorder with melancholic but not psychotic features”. Dr Roberts said the injury resulting from the patient’s suicide involved an Acute Stress Disorder, “compounded by the effects of the investigation”. However, in his report dated 15 February 2016, following a re-examination, Dr Roberts said the respondent’s “condition has changed over time such that her current presentation reflects a diagnosis of Major Depressive Disorder”.
Dr Hampshire’s view on causation, by comparison, did not differentiate between causation of the “PTSD” (which he diagnosed) and Major Depressive Disorder (which was diagnosed by both of these psychiatrists). His view was that the “patient’s suicide is the major cause of her condition, but the acts of her employer which, in my opinion, are not reasonable, have also been a very significant contributor to her psychiatric disorder.”
Dr Roberts explained his additional diagnosis of Major Depressive Disorder, saying that the respondent’s condition “changed over time”.
President Keating, in Newby, referred to the statutory basis of the duty to give reasons, in the context of the Commission (s 294(2) of the 1998 Act and the Workers Compensation Commission Rules 2011 at Pt 15 r 15.6); at [149]-[151] his Honour helpfully summarised a number of the relevant principles.
In Hume v Walton [2005] NSWCA 148 (Hume) McColl JA (at [69]) said:
“The primary judge’s duty was not only to record the evidence but also to record the findings she made based on that evidence: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. While the extent of that duty may depend upon the circumstances of the individual case (ibid), where there is disputed expert evidence, the “parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other”: Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 at [54] per Sheller JA (with whom Beazley JA agreed); see also Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 at [33] per Santow JA (with whom Sheller JA and Campbell AJA agreed).”
Bingham LJ in Eckersley v Binnie (1988) 18 Con LR 1 at 77–78 said “a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons” (quoted with approval by Beazley JA (as her Honour then was) in Taupau v HVAC Constructions (Queensland) Pty Limited [2012] NSWCA 293 at [133], applied in Charles Sturt University v Manning [2016] NSWWCCPD 10 at [53]).
Reasons do not have to be “lengthy or elaborate”: Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 444, University of New South Wales v Brooks [2014] NSWWCCPD 68 at [42]. It is not necessary for an arbitrator to spell out every detail of his process of reasoning, but it is necessary that reasons be exposed for resolving a point critical to the contest between the parties: Ainger v Coffs Harbour City Council [2005] NSWCA 424 at [48].
The Arbitrator’s reasons at RT2.1-6.31 contained his analysis of the medical issue. He referred to the medical issue run by the appellant (see the summary at [8] above). He referred to the respondent’s consultation at Western Plains Medical Centre on 4 March 2014, apparently with Dr Alam, who issued a certificate on that date. The doctor’s note from that date included a history that a “young patient hung himself with bed sheet/was in charge of the unit 4 days ago”. The Arbitrator referred to the recorded symptoms, described as “not sleeping”, “anxious”, “she keeps shaking her head, feels guilty”, “flashbacks”, “waking up at night”, “emotional crying and nightmares”. The respondent was “smoking more and she was to see psychiatrist, Dr Smith”. The Arbitrator said the “doctor at that time made a notation PTSD”, and “suggested she go for counselling”.
The Arbitrator referred to the most recent consultation in those notes before 4 March 2014, on 6 November 2013, with a history of work stress. He said that the respondent had, “apart from the time she had off in November”, worked on until the incident on 28 February 2014.
The Arbitrator referred to Dr Roberts’ reports, saying (RT4.13-8):
“I must confess I am a little perplexed by Dr Roberts change of opinion throughout his four reports. Initially he accepted that the applicant had suffered psychological injury but his subsequent report mentions the four matters I have referred to as having compounded the applicant’s injury.”
The Arbitrator then referred to Dr Hampshire’s report dated 27 October 2015, and that doctor’s diagnosis of Post-Traumatic Stress Disorder and Major Depression. He referred to Dr Duncan’s history of “brutal letters from the hospital”, and his diagnosis of Acute Stress Disorder.
The Arbitrator referred to Dr Roberts’ opinion in his initial report dated 5 May 2014, that the diagnosis was Acute Stress Disorder and that employment was the main contributing factor. He referred to Dr Roberts’ opinion in his last report dated 17 February 2017. The Arbitrator said that “further history had emerged”, referring to the events in 1993 and 2001. He said that the appellant did not suggest that these “incidents” were a cause of the respondent’s incapacity after 28 February 2014, rather the appellant “does suggest that the failure by the [respondent] to advise qualified doctors of these events goes to her credit”. The Arbitrator continued “I am not convinced by that argument”. He explained this, referring to the history recorded by Dr Hedley at Dudley Private Hospital (see [11] above) saying (RT 6.16-31):
“That to me is not the sign of someone trying to hide past stressful events. I also accept that having gone through the event of 28 February 2014 the applicant must have been somewhat overwhelmed and preoccupied with that event rather than an event that occurred three [sic] years previously or indeed an event that occurred when she was 23 years of age.
So I accept that the [respondent] is a credible witness. I accept the opinion of Dr Hampshire and I therefore find that the [respondent] on 28 February 2014 suffered injury in the course of her employment, namely, a severe psychological injury. I don’t believe it matters whether that is to be characterised as major depression, post traumatic stress disorder, an anxiety disorder or any other disorder such as an acute stress disorder.”
It will be observed that the Arbitrator moved from a rejection of the proposition that the respondent was “trying to hide past stressful events” to an acceptance of her credibility, and of “the opinion of Dr Hampshire”, apparently in its entirety. Dr Roberts’ credibility remark was based on perceived historical deficiencies, going to events prior to 28 February 2014 (the main ones were in 1993 and 2001). It was common ground between these doctors that those events were not causative of the injury at issue. It did not follow that, if the respondent’s credibility was accepted (contrary to Dr Roberts’ remark about her veracity), this necessarily involved acceptance of Dr Hampshire’s opinion overall.
Dr Roberts initially examined the respondent on 30 April 2014, about one month after the incident of 28 February 2014. He diagnosed an Acute Stress Disorder, which he thought resulted from the patient’s suicide. In this initial report Dr Roberts described “compounding” of the effects of the incident, by “the effects of the investigation process”. He restated this view in his supplementary report dated 29 May 2014, saying the condition was “compounded by… the ensuing investigations and actions”.
Dr Roberts’ second examination of the respondent was on 5 February 2016, a little less than two years after 28 February 2014. The doctor referred to the history, in a letter from the appellant’s solicitors, of various subsequent developments, which he described as “an extensive investigative process which resulted in an adverse outcome”. There is a substantial body of evidence dealing with investigation of the patient’s suicide, and subsequent actions by the appellant and other bodies. Dr Roberts, following this re-examination, arrived at a different diagnosis, Major Depressive Disorder. He said that “the processes that ensued” represented the predominant causative factors. In his report dated 17 February 2017 Dr Roberts described the patient’s suicide as “no longer substantial in the causation of [the respondent’s] psychiatric condition”.
This contrasted with the opinion of Dr Hampshire, who first assessed the respondent on 16 October 2015, about three and a half months before Dr Roberts’ second examination. Dr Hampshire’s diagnosis included Post-Traumatic Stress Disorder and Major Depressive Disorder, which he related to the patient’s suicide, and “the acts of her employer” thereafter (see [39] above). Dr Hampshire did not regard the subsequent acts as the whole or predominant cause of the psychological injury which he diagnosed.
Dr Hampshire, while conceding the events after the patient’s suicide had a significant causative role, did not concede that those events were the predominant cause of the psychological injury (see [39] above). Dr Roberts, on the other hand, considered that those “processes” were the “predominant causative factors”. The Arbitrator was required to resolve the issue of the competing medical cases, in dealing with the s 11A(1) defence. This required that he “enter into the issues canvassed” and explain why he preferred one case over the other (see Hume at [70] above). The Arbitrator’s remark that he was “a little perplexed” by Dr Roberts’ change of opinion did not constitute entering into the issues canvassed.
The Arbitrator, in his reasons for accepting Dr Hampshire’s views over those of Dr Roberts, referred to the “further history” that emerged, relating to events prior to 28 February 2014. This further history was of little significance medically. Neither Dr Hampshire or Dr Roberts regarded these prior historical matters as being of causal importance.The Arbitrator referred to Dr Hedley’s history of previous “exposure to stressful events” (see [11] above), and to a likelihood that the respondent would have been more “preoccupied” with the events of 28 February 2014, than with those in 1993 and 2001. This may have been reasonably available as a matter of inference, and may have been relevant to rejection of Dr Roberts’ reference to the respondent’s veracity. It did not constitute appropriate analysis of the issues canvassed in the medical evidence, going to whether the injury resulted wholly or predominantly from actions taken or proposed to be taken by the appellant, which postdated 28 February 2014. There was no analysis in the reasons, of the views of Dr Hampshire and Dr Roberts on this issue, or of why the opinion of one or the other should be preferred.
The Arbitrator, at RT6.33-8.12, went on to deal with whether the respondent’s injury was caused “wholly or predominantly” by reasonable action on the part of the appellant. He did so in a fashion consistent with the opinion of Dr Hampshire, although without specifically referring to the parties’ medical evidence. He did so by reference to a more limited group of actions than was raised by Dr Roberts’ reports, although this does not require further discussion in the context of Ground No 1.
The fact that Dr Roberts’ criticism of the respondent’s veracity was not accepted did not mean that his evidence was necessarily unacceptable on other issues; “there is no requirement for the judge to accept the whole of the evidence of any one witness”: Chanaa v Zarour [2011] NSWCA 199 at [86], per Campbell JA (Bathurst CJ and Tobias AJA agreeing), Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167 at [30].
The failure to “enter into the issues canvassed” involves error, of the sort identified by Hayne J in Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402; 79 ALJR 1816 at [130]:
“In the present case, however, reference to the ‘sufficiency’ of the primary judge's reasons is not to be understood as seeking to invoke only those principles. Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue.”
Ground No 1 is upheld. For brief reasons that appear below, the appropriate course is that the matter be remitted for re-determination by another Arbitrator. In those circumstances it is unnecessary to deal with the balance of the grounds.

ORDERS ON DISPOSITION OF THE APPEAL

The availability to the appellant, of a potential defence pursuant to s 11A(1) of the 1987 Act, was dependent on the relevant psychological injury having resulted, wholly or predominantly, from the appellant’s reasonable actions or proposed actions, with respect to transfer, performance appraisal or discipline. Identifying the injury and its cause was clearly fundamental to whether the defence could be established. This, in the circumstances, required consideration of the medical evidence on causation (see Hamad v Q Catering Limited [2017] NSWWCCPD 6 at[88]). It was not the only issue.
There were various arguments raised by the parties during their submissions at the arbitration hearing, relevant to the s 11A(1) defence. It was argued that the “compounding effect”, of subsequent events, was consistent with being caused by the incident on 28 February 2014, rather than resulting from relevant reasonable actions or proposed actions of the appellant (T12.10-14.28). Reference was made to Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452. Sutherland Shire Council v Baltica General Insurance Co Ltd (1995) 39 NSWLR 87 may be relevant. The respondent argued that matters such as the coronial inquest and the complaint to the HCCC did not fall within s 11A(1) as they were not actions with respect to discipline, and were not actions of the appellant (respondent’s written submissions before the Arbitrator at P 10, T14.3-13, 21.6-16). These other issues were not, in the circumstances, dealt with at first instance. All of the raised ‘liability’ issues remain extant. The appropriate course is that the matter be remitted, pursuant to s 352(7) of the 1998 Act, to another Arbitrator for re-determination.

DECISION

The Certificate of Determination dated 8 May 2017 is revoked.
The matter is remitted for re-determination by another Arbitrator.

Michael Snell
Acting President

13 October 2017