State of Tasmania v Stirling

[2021] TASSC 25

[2021] TASSC 25

COURT:  SUPREME COURT OF TASMANIA

CITATION:                State of Tasmania v Stirling [2021] TASSC 25

PARTIES:  STATE OF TASMANIA
  v
  STIRLING, Patricia Joy

FILE NO:  413/2021
DECISION

APPEALED FROM:  The State of Tasmania (Department of Health) v S

[2021] TASWRCT 3

DELIVERED ON:  24 June 2021
DELIVERED AT:  Hobart
HEARING DATE:  11 May 2021
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Workers Compensation – Employment related injury, disability or disease – Employment "substantial or significant contributing factor" – "Contributing factor" in relation to disease or disease "due to nature of employment" – Particular cases – Adjustment disorder – Contributing factors incidental to performance of employment duties.

Workers Rehabilitation and Compensation Act1988 (Tas), s 29(1)(b).
University of Tasmania v Cane (1994) 4 Tas R 156, followed.
Aust Dig Workers Compensation [94]

REPRESENTATION:

Counsel:
             Appellant:  B R McTaggart SC
             Respondent:  L K Mackey
Solicitors:
             Appellant:  Wallace Wilkinson & Webster
             Respondent:  Ogilvie Jennings

Judgment Number:  [2021] TASSC 25
Number of paragraphs:  37

Serial No 25/2021

File No 413/2021

STATE OF TASMANIA v PATRICIA JOY STIRLING

REASONS FOR JUDGMENT  BLOW CJ

24 June 2021

1. This is an appeal from a decision of the Workers Rehabilitation and Compensation Tribunal, constituted by its Chief Commissioner, Ms A M Clues: State of Tasmania (Department of Health) v S [2021] TASWRCT 3. It concerns a referral pursuant to s 81A of the Workers Rehabilitation and Compensation Act 1988 ("the Act"). That section concerns interim payments. The learned Chief Commissioner made a determination that the employer did not have a reasonably arguable case. As a result, the employer remained liable to make continuing weekly payments of compensation, and to pay medical and other expenses, pending a final hearing. The employer has appealed, contending that the learned Chief Commissioner erred in law in making the determination. It contends that the only conclusion open to her was that it did have a reasonably arguable case, that she made a number of specific errors of law, and that she failed to provide adequate reasons for her decision.

2. This case appears to have arisen out of an unfortunate clash of personalities. It concerns a claim under the Act made by the respondent to this appeal, Patricia Stirling. She is employed as a supervisor in the finance section of the Department of Health. One of her subordinates was a woman whom I will refer to as "Carol". That is a pseudonym, not her real name. She and the respondent worked together in two buildings in Hobart known as the CBA building and the Wellington building. Difficulties between Carol and the respondent led to the respondent taking two days' sick leave on 14 and 15 August 2020, subsequently ceasing work on 1 October 2020, and claiming workers compensation in respect of an adjustment disorder.

3. The State, as the respondent's employer, disputed liability on the basis that there was no relationship between any incapacity on the part of the respondent and her employment duties.

The legislation

1. The relevant provisions in the Act can be summarised as follows:

   · For the purposes of the Act, any "ailment, disorder, defect or morbid condition, whether of sudden or gradual development" constitutes a "disease", and every disease constitutes an "injury": s 3(1).

   · "If in any employment ... a worker suffers an injury, which is a disease and to which his [or her] employment contributed to a substantial degree ... his [or her] employer is, except as otherwise provided by this Act, liable to pay compensation": s 25(1)(b).

   · "For the purposes of this Act, employment contributed to a disease to a substantial degree only if it is the major or most significant factor": s 3(2A).

   · When an employer disputes liability to pay compensation by way of weekly payments, and refers the matter to the Tribunal pursuant to s 81A, if the Tribunal considers that a reasonably arguable case exists concerning the liability of the employer to pay compensation by way of weekly payments, it must determine that compensation is not to be paid by the employer: s 81A(3)(c).

   · Similarly, if the Tribunal considers that a reasonably arguable case exists concerning the liability of the employer to pay medical expenses or other benefits under the Act, it must determine that the cost of such benefits is not to be paid by the employer: s 81A(3)(d).

   · If a determination adverse to a worker is made under s 81A(3)(c) or (d), the worker may refer the claim for compensation to the Tribunal under s 42 and pursue the claim at a final hearing.

   ·     A party aggrieved by any determination of the Tribunal may appeal to this Court, but only on a point of law: s 63(1).

The evidence

1. The respondent reported to a team leader named Shauna Grey.  On 13 August 2020 she sent Ms Grey and another person an email which contained her version of events that occurred that morning. She began by saying that she was speaking on the phone when she realised that Carol had gone to get the mail. She continued as follows:

   "[Carol] returned only to say very aggressively 'You could have told me you got the mail'. I asked her was something wrong, and her reply was, 'you know very well what is wrong'. I had no idea what she meant, thought it had something to do with her going to get the mail and I had already got it.

   Then she told me in an angry raised voice and pointing her finger at me, that I had no right to tell other people to watch out for her. To which I said I tell everyone to watch their back. [Carol] replied 'You know very well what I mean', again pointing the finger at me.

   At this stage I was shaking and very upset, I admit that I did become defensive. I said to [Carol] that she had no right in gossiping about me with ..., in a public place, such as Harris Scarf, [sic] last year. To which she denied. [sic] I suggested to her that it may well be on tape, and she told me that would be illegall [sic]. Not if it is store CTV.

   I was shaking and very upset, and suggested to [Carol] that she returns to CBA for the day as I did not think that it was appropriate for us to work together. [Carol's] reply was 'I don't have to'.

   After a small silence [Carol] then asked me what had I done, and what would I like her to do, to which I replied, 'I have asked you to go back to CBA for the day'. [Carol] replied, 'ok I will then'. Closed down her computer and stormed out, telling me to have a good day, as She certainly was going to now as she wasn't working with me."

2. The respondent had the rest of that day and all the next day off work. She returned to work on Monday, 17 August. On the following day Carol applied for a restraint order against her pursuant to the Justices Act 1959. Her application included the following allegations as to the respondent's conduct:

   "The Respondent has admitted video recording myself and work colleagues both in my work environment and during my lunch breaks around the City Centre without my approval.

   On Friday 13 December 2019 a work colleague ... and I were have a conversation in Harris Scarfe during our lunch break and the Respondent admitted to filming us on her phone as she states we were talking about her.

   The Respondent continually walks around the office with her phone in hand has admitted recording me with other members of the staff talking about her. (This is a breach of the State Service Code).

   I am feeling harassed, stalked and it is making me feel very violated.

   The Respondent comes in daily and stands next to my space and stares at me numerous times (I have times and dates to prove this).

   At lunch breaks around the City appears in my space and laughs at my colleague and I.

   The Respondent has changed her route in the office to deliberately walk past my desk instead of taking the short route to the photocopier.

   These behaviours are more frequent in the office when the Manager is off on a Friday or attends meetings during the day.

   The Respondent's obsession with myself has been escalating over the past 2 weeks to the point I am feeling as if I cannot have a conversation with my work colleagues on a personal note or work related without her approaching and glaring at me and holding her phone at me.

   I feel uncomfortable to eat my lunch in the designated lunch area as she continually walks past with phone pointing at me.

   I am finding the constant lies she is saying about me around the office is defaming me and invading my private life.

   I don't feel comfortable talking to other staff members on the floor as the Respondent constantly circles me glaring at me and hiding behind partitions to listen into my conversation with her phone in hand. I understand this is not an isolated incident.

   The Respondent has admitted she has an IT report sent to her weekly checking on my inward and outward emails about me allegedly gossiping about her to other staff members. This is an invasion of my privacy and is also totally untrue and defamation of my character.

   I feel vulnerable both in the work place and in the public streets.

   My concerns are that the Respondent has admitted obtaining my private information through our systems we work on daily and her obsession about me could escalate to her stalking me at my place of residency.

   I feel I am not being supported and this situation taken seriously by the HR team of the Department and have been given misleading information and I don't feel comfortable and safe in the workplace.

   I am having CCTV installed at my place of residency as the Department have done nothing to reassure me that she would not try and come and harass and film me there."

3. On the afternoon of Wednesday, 19 August, the respondent and Carol both went to the Magistrates Court. The case was adjourned to 8 September. They returned to work. Arrangements were made for them to work in separate buildings. On 8 September the case was adjourned to 5 October. On 9 September Carol attended a meeting with departmental officers, accompanied by an industrial advocate. At that meeting it was resolved that there was to be an internal investigation. On 18 September, the respondent swore an affidavit in which she addressed and denied each of Carol's allegations.

4. The respondent left work during the morning on 1 October. In an email later that morning her team leader, Ms Grey, gave the following description of events:

   "Joy [the respondent] left work this morning feeling unwell and over the whole situation and stated she would not be back. She did not indicate that there had been another incident to trigger how she was feeling today. However, she has been out of sorts all week and she did read the grievance from [Carol] yesterday. She indicated that she was going to the Police Station to file a suit ... not sure exactly against who, however she was looking back at old emails where ... had made a complaint to ... in 2017 about certain staff in the office. She did not want to talk to me. She shut down her computer, grabbed her bags and I walked her to the lift and ask that she keep in touch.

   Tony Stirling, Joy's husband, has rung me this morning to advise that when Joy left work she was very disorientated and he had to go find her. He found her at Constitution Docks and took her home. He is extremely worried about Joy and stated she is not the same wife he had 3-6 months ago. He advised Joy would not be returning to work until this is sorted out."

5. On 5 October the respondent and Carol attended a conciliation conference in relation to the restraint order proceedings. Both were accompanied by legal practitioners. The respondent was represented by a practitioner from the Office of the Solicitor-General. It was agreed that the matter would be adjourned, and that if it was not relisted before 4 November it would be dismissed by a magistrate in chambers. Neither party resiled from her version of events at that conference.

6. On 6 October a medical practitioner examined the respondent and provided her with a medical certificate. She described the respondent's symptoms as "Depressed mood, anxiety, difficulty concentrating, reduced energy levels, insomnia, reduced appetite, social withdrawal [and] anhedonia". She stated her provisional diagnosis to be "Adjustment disorder with depressed and anxious mood". She described the incident on 13 August and the restraint order application as the stated causes, and said that the respondent's condition was "consistent with the stated cause". She certified the respondent to be incapacitated for any work from 2 to 15 October.

7. On 12 October the respondent signed and submitted her claim for workers compensation. She described her condition as "severe shock & adjustment disorder". She described what happened as follows:

   "Staff member verbally abused with raised voice & pointed finger in Cashier's Booth @ Wellington on Thurs 13/8. Staff member applied for restraint order. Appeared in court 19/8 – all allegations were lies."

The Tribunal's decision

1. The reasons why the learned Chief Commissioner made a determination favourable to the respondent appear in the following paragraphs of her decision:

   "24    ... the uncontested evidence is that the worker first became totally incapacitated for work for a period of two days by reason of the injury on 13 August 2020 as a result of the first incident. Based on the only medical evidence which is contained in the initial certificate, the first incident was the cause of the injury and the incapacity for work from 2 October 2020.

   25 The worker's employment in s25(1)(b) is a reference to the performance each working day of the worker's duties and all that which was reasonably incidental thereto including interaction with fellow employees. See Cane v University of Tasmania [1993] TASSC 98 at [6].

   26     It was the interaction between the worker and the co-worker that caused the injury and the resultant incapacity for work. The evidence suggests no other cause. As stated by Underwood J in Cane v University of Tasmania (supra) at [8]:

   'The finding that the stress "arises out of that relationship, an employment relationship" is of necessity, a finding that the employment caused the stress disorder.'

   27     There is no evidence that it was the application for a restraint order in isolation was [sic] the cause of the worker's incapacity for work. The injury arose as a result of an employment relationship between the worker and the co-worker. It follows from this that the worker's employment was the major or most significant contributing factor to the injury.

   ...

   32     In this case, the employer has not provided evidence of a plausible potential cause that is inconsistent with a finding that the worker's employment was not the major or most significant contributing factor to the injury.

   Conclusion

   33 I have reached the view that the employer's evidence does not support an argument to dispute the claim on the basis that the worker's employment was not the major or most significant contributing factor to the worker's injury. The employer's s81A referral is therefore dismissed. ...".

A reasonably arguable case?

1. The employer contends that it had a reasonably arguable case on the basis that it was reasonably arguable that the respondent's employment did not contribute to her claimed adjustment disorder to the extent of being the major or most significant factor for the purposes of ss 3(2A) and 25(1)(b) of the Act. In more detail, its contentions are to the following effect:

   · The respondent and Carol had conflicting versions of events. Since the s 81A referral was determined on the basis of documentary evidence alone, it was not open to the learned Chief Commissioner to make findings as to the disputed facts. It was reasonably possible that Carol's version of events would be accepted as wholly truthful and correct at a final hearing.

   ·     On Carol's version of events, the claimed adjustment disorder was arguably a consequence of conduct on the part of the respondent that had nothing to do with her employment duties. That alleged conduct included conduct during lunch breaks away from the respondent's workplaces, video recording Carol and her colleagues in their workplaces, and telling lies and defaming Carol in the work environment.

   · Section 25(1)(b) should be construed as entitling a worker to compensation for a disease only if it both arose out of the worker's employment and arose in the course of the worker's employment.

   ·     The claimed adjustment disorder did not arise out of the respondent's employment because it did not arise out of anything she did in service to the employer or incidental to her employment.

   ·     The only conclusion reasonably open to the learned Chief Commissioner was that the employer had a reasonably arguable case on the basis that conduct of the respondent that was not within the course of her employment might reasonably be found to have been the major or most significant cause of her claimed adjustment disorder. If so, reaching a contrary conclusion involved an error of law.

2. It is clear that if, on the evidence before the Tribunal, only one conclusion was open to it, then reaching any other conclusion would have involved an error of law: Protective Security Pty Ltd v Bedelph [2004] TASSC 128, 13 Tas R 354 per Crawford J (as he then was) at [22]-[28].

3. It is also clear that, for the purpose of assessing whether the employer had a reasonably arguable case, it had to be assumed that Carol's version of events might be accepted at a final hearing and the respondent's version rejected.

4. However I do not accept the employer's submissions as to the interpretation of s 25(1)(b). Those submissions were based on the history of that provision. From 1 July 2001 until 31 October 2007, that provision provided that compensation was payable when "a worker suffers an injury, which is a disease, arising out of and in the course of his employment and to which his employment contributed to a substantial degree, within the meaning of section 3(2A)". An amendment in 2007 removed the words "arising out of and in the course of his employment and".

5. Counsel for the employer relied on a passage in the clause notes relating to the amending legislation, the Workers Rehabilitation and Compensation Amendment Act 2007. The note in respect of the relevant amendment was as follows:

   "Amends subsection 1(b) of section 25 to remove the words 'arising out of and in the course of'. For injuries that are diseases, the 'arising out of and in the course of' test is surplus because employment must have contributed to the disease to a substantial degree anyway. According to section 3(2A), 'substantial degree' means employment 'is the major or most significant factor'."

6. Before the 2007 amendment, s 25(1)(a) and (b) made injuries and diseases compensable only if they both arose out of and arose in the course of a worker's employment. There is a distinction between the two concepts. An injury arises "out of" a worker's employment if there is a causal connection between the employment or its incidents and the injury, whereas an injury arises "in the course of" employment if it occurs at a time when the worker is doing something in the course of his or her employment duties: Kavanagh v Commonwealth (1960) 103 CLR 547 at 556; University of Tasmania v Cane (1994) 4 Tas R 156 at 164. By 2007, modern workers compensation legislation in other Australian jurisdictions made injuries and diseases compensable if they arose either out of or in the course of employment, but Tasmania had retained the requirement that an injury or disease had to arise both out of and in the course of employment.

7. The author of the clause note appears to have missed the point that the amendment to s 25(1)(b) removed the requirement of a temporal connection between the onset of a disease and the performance of employment duties. That is of no significance in this case since the evidence suggested only one possible time when the respondent commenced to suffer from the claimed adjustment disorder, namely the time of the alleged finger pointing incident on 13 August.

1. The 2007 amendment made no difference to the need for a worker to establish a causative connection between the employment or its incidents and the suffering of a disease.

2. The employer's argument is based on a contention that, on Carol's version of the facts, the respondent's incapacity was caused by conduct on her part that had no significant connection to the performance of her duties as an employee. The Full Court held in University of Tasmania v Cane that the word "employment" in the requirement "and to which his employment contributed to a substantial degree" in s 25(1)(b) extends beyond mere duties of employment to matters naturally incidental to the contract of employment: Wright J at 165-167; Slicer J at 170; Cox J (as he then was) agreeing at 158. That case related to an anxiety disorder suffered by a worker arising from a personality clash with her supervisor. At first instance in that case, Underwood J (as he then was) held that the word "employment" in s 25(1)(b) referred not only to the worker's duties but also to "all that which was reasonably incidental thereto including interaction with fellow employees": Cane v University of Tasmania B39/1993 at 2 [1993] TASSC 98 at [6]. The Full Court upheld his Honour's decision. There is no basis for distinguishing that case. It follows that all aspects of the respondent's interaction with Carol were aspects of her employment for the purposes of s 25(1)(b).

3. Grounds 1, 2, 3 and 7 of the employer's grounds of appeal are based on a contention that the Tribunal erred in taking into account aspects of the interaction between the worker and Carol, particularly the restraint order application and associated events, as aspects of the worker's employment for the purposes of s 25(1)(b). Those grounds must fail.

The medical certificate (Ground 4)

1. As I have said, a medical practitioner provided the respondent with a medical certificate that described the incident on 13 August and the restraint application as the stated causes of the respondent's condition, and said that that condition was "consistent with the stated cause". In her reasons, at [21], the learned Chief Commissioner, referring to the same certificate, said this:

   "The initial certificate attributes the injury and subsequent incapacity for work to the first incident that occurred at work on 13 August 2020 ...".

2. That was incorrect. The certificate did not attribute the injury – the adjustment disorder – and the subsequent incapacity for work to the 13 August incident. It said that the "injury or disease" was "consistent with the stated cause". Strictly speaking, the doctor did not attribute the condition to the stated cause, but merely acknowledged that that was a possibility.

3. In saying that the certificate attributed the injury and subsequent incapacity to the 13 August incident, the learned Chief Commissioner may have made an error of fact, but not an error of law. Another possibility is that she was simply a little careless in her choice of words.  Since she made no error of law, ground 4 must fail.

Incapacity in August 2020? (Ground 5)

1. In her reasons, at the beginning of [24], the learned Chief Commissioner said:

   "Pursuant to s 3(5)(a) of the Act, the uncontested evidence is that the worker first became totally incapacitated for work for a period of two days by reason of the injury on 13 August 2020 as a result of the first incident."

2. Ground 5 asserts that there was no evidence upon which such a finding was open, and that the learned Chief Commissioner therefore erred in law in making such a finding.

3. Section 3(5)(a) of the Act provides that, for the purposes of the Act, "where a worker suffers an injury that is a disease, that injury shall be deemed to have occurred ... on the day on which the worker became totally or partially incapacitated by reason of that injury".

4. The only medical evidence before the learned Chief Commissioner was the medical certificate. The opinions expressed by the doctor were not challenged or contradicted. The doctor made a provisional diagnosis of "Adjustment disorder with depressed and anxious mood". She noted that the respondent stated that the condition had been caused by the incident on 13 August. The certificate did not mention the absence from work on 13 and 14 August, but there was evidence of that absence in the statement of Shauna Grey. That statement also contained evidence as to the psychological symptoms associated with the respondent's absence from work. It was open to the learned Chief Commissioner to infer that the respondent was totally incapacitated for work on the two days in question, and that that incapacity resulted from the 13 August incident. Ground 5 must therefore fail.

5. It should be noted that compensation was not claimed in respect of an incapacity for work on 13 and 14 August. In the sentence to which ground 5 relates, the learned Chief Commissioner was simply making a finding as to the day when the "injury" was deemed to have occurred for the purposes of s 3(5)(a). If that finding was incorrect or inappropriate, it was also inconsequential.

The restraint order application (Ground 6)

1. Ground 6 relates to the learned Chief Commissioner's reasons at [27]. For convenience, I will set out the whole paragraph again:

   "27  There is no evidence that it was the application for a restraint order in isolation was [sic] the cause of the worker's incapacity for work. The injury arose as a result of an employment relationship between the worker and the co-worker. It follows from this that the worker's employment was the major or most significant contributing factor to the injury."

2. Ground 6 reads as follows:

   "The learned Chief Commissioner erred in law in concluding at [27] that it was necessary for the restraint order in isolation to be the cause of the Respondent's incapacity for work."

3. The employer's case in the Tribunal proceedings was that various factors outside the respondent's employment duties contributed so substantially to any incapacity for work that her employment could not be regarded as the major or most significant contributing factor. Its case was not based solely on the contribution made by the restraint order application. The learned Chief Commissioner did not say that the employer's case was so confined. If she meant to imply that, any such implication is immaterial. In the second and third sentences of [27], she applied the correct legal test, in accordance with the first instance decision in Cane v University of Tasmania (above). She did not err in law in what she said about the restraint order application in [27]. Ground 6 must therefore fail.

Inadequate reasons? (Grounds 8 and 9)

1. Grounds 8 and 9 assert that the learned Chief Commissioner erred in law by failing to provide adequate reasons for concluding that the employer did not have a reasonably arguable case and determining its s 81A referral accordingly. Those grounds have no merit.

2. There is no common law rule requiring statutory tribunals to give reasons for their decisions: Public Service Board of New South Wales v Osmond (1986) 159 CLR 616. However, subject to some exceptions of no present relevance, s 61(3) of the Act obliges the Tribunal to "provide a statement in writing of its reasons for making the determination to which the order relates". When there is a duty to give reasons, a tedious examination of detailed evidence is not required, nor is a minute explanation of every step in the reasoning process: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259; James v Eyles [2007] TASSC 55 at [27]. As Mahoney JA said in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386, "Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it."

3. The learned Chief Commissioner made it perfectly clear that she rejected the respondent's contention that it had a reasonably arguable case because the causative factors that it relied upon as being outside the scope of the respondent's employment were, as a matter of law, within the scope of her employment for the purposes of s 25(1)(b). These grounds must therefore fail.

Conclusion

1. For these reasons, the appeal is dismissed.