State Rail Authority of NSW v Reodica

[2000] NSWCA 371

CITATION:	STATE RAIL AUTHORITY OF NSW v REODICA [2000] NSWCA 371
FILE NUMBER(S):	CA 40982/99
HEARING DATE(S):	21 November 2000
JUDGMENT DATE:	20 December 2000
PARTIES :	STATE RAIL AUTHORITY OF NEW SOUTH WALES v REYNATO REODICA
JUDGMENT OF:	Mason P at 1; Meagher JA at 61; Fitzgerald JA at 62

LOWER COURT JURISDICTION :	Compensation Court
LOWER COURT FILE NUMBER(S) :	CC 11644/96
LOWER COURT JUDICIAL OFFICER :	Geraghty CCJ

COUNSEL:	Appellant: P R Sternberg Respondent: G M Swinton
SOLICITORS:	Appellant: Balcock Stacy & Niven Respondent: Jones Staff & Co
CATCHWORDS:	Workers compensation - reasons for decision - error of law - whether assault took place against respondent in workplace - Commissioner and later trial judge found assault did not take place - respondent found not to be suffering post traumatic stress disorder but might be suffering other psychological injury - Compensation Court not a court of strict pleading - s17(1) Compensation Court Act - respondent entitled to have wider psychological injury addressed by Commissioner despite unwillingness of counsel to press such a case - appeal dismissed with costs. ND
DECISION:	Appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40982/99
CC 11644/96

MASON P
MEAGHER JA
FITZGERALD JA
Wednesday 20 December 2000


STATE RAIL AUTHORITY OF NEW SOUTH WALES v
Reynato REODICA
JUDGMENT

1    MASON P: The respondent worker claimed compensation against his employer the appellant. 2    The application was heard by Turner C who made an award in favour of the employer. The worker appealed to a Judge of the Compensation Court. Such appeal lies only if the party is aggrieved by an award in point of law or on a question as to the admission or rejection of evidence (Compensation Court Act 1984, s34A). 3 Geraghty CCJ upheld the appeal and ordered a new hearing. He concluded that the Commissioner had failed to deal with all issues before him. From that order the employer appeals to this Court.
4    The worker had been employed by State Rail Authority and its predecessor since 1974. In his Application for Determination he sought compensation by way of weekly payments, expenses and interest. It is appropriate to set out portions of the original Application:

4. (a) Nature of employment of worker at time of injury	(a) Senior Foreman, Electrical
5. (a) Day, month and year of injury:	(a) On 6 October 1995 and on and after August 1995.
(b) Place of injury:	(b) Respondent’s premises at Diesel Engine Maintenance Section, Chullora.
(c) Nature of work at time of injury:	(c) Usual duties.
(d) Cause of injury:	(d) The Applicant was physically and verbally assaulted by a fellow worker in the course of his employment. In and after August 1995 the Applicant engaged in work the nature and conditions of which placed stress and strain upon him.
6. Nature of injury:	Post Traumatic Stress Disorder.
7. Particulars of incapacity for work, whether total or partial and estimated duration of incapacity.	Total incapacity for 2 months following the incident, thereafter partial incapacity to late January 1996 and thereafter total and in the alternative partial incapacity to date and continuing.
13. (a) Date of notice of injury	(a) On the date of the accident.
(b) Date of notice of incapacity given:	(b) Shortly after the commencement of incapacity.
(c) Date of claim for compensation	(c) Shortly after the commencement of incapacity.

5    The hearing before the Commissioner commenced on 11 November 1997. At the outset, counsel for the worker stated that he wished to add “a second cause of injury”. The worker was given leave to amend the Application as follows:

• In par 5(a) “August 1995” was changed to “August 1993” .

• In par 5(d), “(1)” was inserted before the existing material and the date of “August 1995” was altered to “August 1993” .
• In par 5(d) the following was added:

“(2) The nature and conditions of the Applicant’s employment with the respondent.”

6    Various medical reports and a wages schedule were tendered. The hearing was then adjourned. 7    When the hearing resumed, on 1 June 1998, counsel then appearing for the worker described the case as one:

formulated around an assault which took place at work, the person assaulting the applicant being a fellow worker. As a result of the assault, the applicant suffered very little by way of physical sequelae, probably only a bruise to the chest according to his general practitioner, but the applicant very quickly developed a number of stress conditions: nightmares, incontinence and so on. (CB 10)

Reference was then made to diagnoses of post-traumatic stress disorder (PTSD).

8    The Commissioner noted that the disputed frank assault occurred on 6 October 1995. He then enquired about the case based on the nature and conditions of employment from 1993 onwards. That was described by the worker’s counsel as:

…simply more a supplementary pleading that was put on in a time of uncertainty, but as the case is presented today, I would have to concede that if there - as the case would appear on paper, if it [is] not an assault I do not think it is going to be anything, but one can never tell. I mean I understand there is quite an amount of lay evidence and who knows, Commissioner, with a bit of luck the respondent’s lay witnesses may persuade you how stressful it all was. (CB 11)

9    Counsel indicated that he would like to leave the pleadings stand as amended “just in case something develops that I cannot see in my own case”. 10    Further medical reports were then tendered. 11    The worker then gave his evidence. He had come to Australia from the Philippines, having graduated in electrical technology at college. After being licensed, he commenced working for the State Rail Authority (sic) in 1974. He was competent and was promoted three or four times. He was happy until 6 October 1995 when there was an incident involving a fellow employee called Garcia (CB 14). 12    The worker’s version of that incident was that Garcia was asked by him several times to give him the MI (material index) number of an engine part. Garcia kept refusing and matters escalated. Garcia then barged into the worker’s office, pushed his chair, pinned him against the desk face down and poked his finger into his face saying “Don’t you boss around you donkey, you don’t know this job. You’ve got no capusi” (translated as brains). 13    Later that morning a conference was arranged to deal with the incident and what lay behind it. It was attended by union representatives and representatives of management as well as the two men. According to the worker, Garcia kept on saying that the worker was “a very sick man and he [Garcia] cannot work for me any more. His idea, him to stay or I to go” (CB 16). 14    The conference ended around 9.00am. The worker did not continue working that day. He picked up his bag and he went to see the assistant manager “because the workshop manager told me that he doesn’t want to see me any more” (CB 16). He made an official report of having been assaulted by one of his staff and was then taken to see the occupational health nurse who took him to see Dr Tsang. He was feeling terrible, in shock (CB 16). Later that day he went to see his own doctor, Dr Guanlao whom he had been consulting from February 1995 onwards. 15    The worker gave evidence of the subsequent onset of serious psychiatric symptoms including nightmares, sleeplessness, bed wetting and lack of motivation. He had never had any of those problems before (CB 17). 16    He told of treatment by Dr Guanlao followed by a referral to Dr Westerink, a consultant psychiatrist. There was counselling by a psychologist from the St John of God Hospital and ongoing treatment from Dr Westerink (CB 17,18). 17    The worker never returned to his employment after 6 October 1995. Indeed, apart from some process work attempted for two or three days at a factory in North Ryde, he had not returned to any form of work by the time of the hearing in June 1998. He gave evidence of continuing nightmares, bed wetting and the continuation of his unhappy psychiatric state (CB 19). 18    That in substance was his evidence in chief. 19    The cross examination concentrated upon challenging the allegation of physical assault (CB 19ff). The worker was taken through the matters discussed at the conference on the morning of 6 October 1995. These focussed on the statements made about the incident itself. It was however put to the worker that Mr Garcia had asserted that he had been behaving in an overbearing manner to his staff and that he had not been fully cooperative in attempting to learn the range of computer transactions that was part of the job of an inventory officer. The worker agreed that these and other allegations were made, but he did not acknowledge that the complaints were well grounded (CB 23,24). He agreed that the whole purpose of the meeting was to sort out differences and problems that were being experienced (CB 24). He felt that “everybody’s against me” (CB 25). 20    The cross-examination then returned to the hotly contested issue of whether the worker had been jabbed in the cheek by Mr Garcia. 21    Later the worker agreed that he was highly dissatisfied with a workplace test conducted at the end of September 1995 in respect of paint fumes that he said were causing him problems (CB 30-31). He denied the suggestion that he was angling for redundancy. 22    There was exploration about the worker’s experiences after leaving his employment with the appellant and his readiness to seek alternative employment. 23    The worker’s oral evidence was completed and he was stood down (CB 40). Further medical reports were then tendered, including clinical notes showing that the worker had been seeing a psychologist before 6 October 1995. Counsel for the employer than obtained permission to cross-examine the worker further (CB 46). 24    The worker was recalled. He agreed that prior to 6 October 1995 his general practitioner Dr Guanlao had referred him to Dr Westerink, a consultant psychiatrist at St John of God Hospital, Richmond. (There are medical reports from these two practitioners covering this period (CB 218-221).) Dr Guanlao records a “history of work problems” that prompted counselling management and a referral to the psychiatrist. Dr Westerink first saw the worker in December 1995.
25    The main thrust of the cross-examination was to challenge the worker’s earlier statement that he had had no particular problems at work until the incident on 6 October 1995. This was obviously done to base an attack on his credibility as well as to lay the groundwork for the submission that any incident on 6 October did not have the impact contended for. The cross-examination did, however, have the capacity to provide material for the alternative “nature and conditions” case, just as counsel for the worker had foreshadowed might happen through the employer’s witnesses (pars 8-9 above). In this context, the worker gave evidence of stresses and strains at work prior to October 1995, including “a relationship problem with workmates” (CB 48). The matter was not explored in depth (see CB 48-52) but there was evidence of work-related stress symptoms in the period prior to the incident of 6 October (see esp CB 52). 26    The employer then called Mr Garcia and other fellow employees involved in the events of 6 October 1995 (CB 56ff). Mr Garcia denied any assault or any allegation of assault having been made at the meeting later that morning. He did agree that there had been an incident in which he, Garcia had told the worker (his superior) that he was too busy to get “the MI number” that the worker was demanding. He said that the worker started to bang on the table demanding “give me the number” (CB 77). There were raised voices in which Mr Garcia said “Rey. The words you say very upsets me (sic). When are we going to see the manager?” (CB 79). Following this incident the meeting was called. 27    Mr White, the resource manager of the Diesel Engine Maintenance Centre at Chullora was then called. He had taken part in the meeting on 6 October 1995. His recollection was that the meeting related in part to some problem between the two staff members, Garcia and the worker. There was friction between the two men, with Mr Garcia being unwilling to accept instructions from the worker. Following the meeting the worker approached Mr White and raised the possibility of getting redundancy. It was then, for the first time, that he alleged that he had been assaulted. Mr White told him that that was a very serious accusation. He could not see any redness in the worker’s face. He agreed that the worker was distressed and that he broke down and cried at this stage (CB 87). Mr White arranged for the occupational care nurse to take the worker to see a doctor. 28    Mr White agreed that there had been a history of friction between the two men for some time that he had been aware of and that he had previously discussed this with each of them (CB 89). He agreed that the situation and the meeting was something that “had been building up for a long time … it must be a couple of months” (CB 95). The worker had expressed concern that included a complaint that the environment was causing irritation to his throat because of the smell of paint (CB 85, 89, 90, 91, 103). 29    Other witnesses were called to corroborate Mr Garcia about the incident that occurred on 6 October 1995. They told of an angry exchange following the worker’s request to be given a particular number straight away. According to them, there was no assault (see Mr Benero at CB 105ff, Mr Parame (CB 115ff), Mr Miller (CB 124ff), Mr Wales (CB 133ff), Mr Russell (CB 149ff), Mr Oyarce (CB 191ff)). 30    Reading this evidence as a whole, one gets a fairly clear picture of the issues joined between the parties. The witnesses called by the employer did not deny that there had been earlier friction between Garcia and the worker or that an exchange of angry words on the morning of 6 October led to the meeting attended by representatives of management and the unions. All eye witnesses (except the worker) denied that Garcia had assaulted the worker and all of the employer’s witnesses asserted that an allegation of assault was not raised by the worker at the management meeting. There was some exploring of the history of the friction between the two men and the worker’s concerns expressed about paint fumes, but this was very much in the context of these matters having been discussed at the management meeting.
31    The employer also called Ms Lee who had been the occupational health and safety co-ordinator of the workshop division at the time of the incident. She remembered the worker being upset and crying and making an allegation of assault. She could see no bruising or swelling but she took him to a doctor for examination. Cross-examination from the worker’s counsel elicited that Mrs Lee had never seen the worker in a similar state and that normally he had been “cool, calm and collected” like most of the workmen (CB 144). 32    Dr Tsang was the doctor consulted by the worker on 6 October 1995. He observed a line indentation in the worker’s face consistent with a finger mark or finger nail. There was no swelling or bruising. Dr Tsang agreed that what he saw was most unlikely to have been the product of an incident that occurred three hours earlier (CB 162). 33    Counsel then addressed (CB 199ff). 34    Mr Sternberg, who represented the employer, submitted that the principal issue in the case was whether or not the applicant had been assaulted on 6 October 1995. Counsel pointed to the medical evidence which recorded such a history. He added that, if there was no assault, “then we are looking at something else in this man’s history which might have caused him to become depressed and have to be admitted to hospital by Dr Westerink, it certainly was not the assault”. The evidence of the eye witnesses and of those who attended the management meeting was adverted to. The Commissioner was reminded that, with one exception, all said that there was no complaint on that occasion of any physical assault. The medical evidence indicative of no assault having occurred was also relied upon. 35    Commissioner Turner then pointed out that the pleadings had been amended to include the alternative nature and conditions allegation. Mr Sternberg’s response (CB 205) was to remind the Commissioner that the worker’s own evidence was that, despite difficulties endured through paint fumes and personality problems, his case had been that he had been working up to 6 October. The events of 6 October, an assault according to the worker, were responsible for the serious health problems (CB 205). It was submitted that the medical evidence was dependent upon a history that included a physical assault. It was conceded that there was some medical evidence indicative of the worker having been anxious about his work future, consequent upon having been placed on a re-deployment list in 1994. However, it was only subsequent to the alleged assault that the worker developed anxiety symptoms including panic attacks, sleeplessness and the like. If the worker was not assaulted, then no explanation had been adequately presented to suggest that the nature and conditions of employment were responsible for his condition (CB 206). 36    Counsel for the worker then addressed (CB 206ff). In the main he concentrated upon the events of 6 October and the central allegation of physical assault. He emphasised that “what is not in dispute up to [6 October was that] the applicant was having no particular problems…The applicant says, look, it is what happened that morning that caused this trauma, and that is why I have got this condition. That is basically it”. (CB 208). 37    Turner C gave reasons extempore at the conclusion of argument. 38    The early paragraphs of the judgment emphasise that the worker’s pleaded claim was that he suffered PTSD as a consequence either of a physical assault on the morning of 6 October 1995 or in consequence of the stressful nature and conditions of his employment in and after August 1993. 39    Turner C noted that Dr Westerink supported a claim in respect of PTSD, but that he and the other doctors had effectively predicated their opinions on the ground that the worker had been physically assaulted. He observed that the employer’s counsel had submitted that:

If one takes that alleged fact [ie the assault] out of the scenario, then the applicant has no basis for succeeding in his claim for post traumatic stress disorder, as to the point of 6 October 1995, he had not lost any time for work nor on the face of it had he had psychiatric advice and treatment in the period to 6 October 1995. The consequence being that the applicant’s nature and conditions claim from in and after August 1993 ought also be seen to fail.

40    The Commissioner then made reference to medical evidence that debated whether the severity of the alleged assault was such that it met the diagnostic criteria of PTSD according to the Diagnostic and Statistical Manual of Mental Disorders, 4th ed 1994 (DSM-IV) (see generally Morgan v Tame (2000) 49 NSWLR 21 at 37-39). 41 The Commissioner observed that, with the exception of Dr Westerink, who placed considerable weight upon the alleged assault, the experts did not consider that the alleged incident met the DSM-IV criteria for PTSD. 42 The Commissioner than turned to the eyewitness evidence. He recognised that Mr Garcia and other witnesses called by the employer affirmed “raised voices” and “finger pointing”. However, they denied any physical assault. The evidence on this controversy was then summarised (pars 12-28). The Commissioner concluded in the following terms:

29. Quite frankly gentlemen, on balance, I do not accept the applicant’s allegation of physical assault by Mr Garcia or anyone else on 6 October 1995. I do not believe his story as to symptoms and I certainly do not believe that he has been incapacitated on the basis of either an injury to his cheek or an injury to his right chest wall or post traumatic stress disorder. I am of the view that if the applicant did have a sign of injury to either his left cheek or his right chest wall, that those matters are totally unrelated to any circumstances which prevailed on 6 October 1995 in the course of the applicant’s employment with the respondent. In other words, I do not believe that he was physically assaulted by Mr Garcia. There is evidence that the applicant was having difficulty with a number of matters arising in the course of his employment with the respondent over a long period of time not the least of which I believe was alleged dust inhalation that the applicant just was not satisfied in the respondent’s employ. Whether that arose from a lack of support from the management people within the respondent organisation or not is perhaps not material.
30. The applicant’s doctors base their opinion on acceptance of the applicant’s allegation of assault on 6 October 1995 and they do not give the applicant any comfort or support that the nature and conditions of his employment from August 1993 brought about a post traumatic stress disorder. Their opinions are flawed.
31. I am inclined on balance to accept and adopt the opinions of Dr Roberts and Ms Morrow in all the circumstances. Dr Roberts to recap states there is no way that there could be any connection between the alleged assault and the symptoms of which the applicant subsequently complained. I so find.
32. It is my view that the applicant has not met the onus in respect of the post-traumatic stress disorder in its alleged relationship to the nature and conditions of his employment prior to and including 6 October 1995. I so find. That any injury to the applicant’s left cheek or his right chest were of little or no moment and were not incapacitating in nature. On balance I am inclined to the view that such injuries were self inflicted. If I be wrong in holding these views I am of the opinion that the applicant had fully recovered from the cumulative effect of all symptoms at or before 5 December 1995 and that from 6 December 1995, or before, the applicant was fully fit for his normal duties with the respondent or like duties on the open labour market.
33. I simply make those latter observations in the even that this case goes beyond this Court today.

43    There was an award for the employer. 44    The Notice of Appeal from the Commissioner’s decision to the Compensation Court (RB 25) gives little indication of the issue as it came to be addressed before Judge Geraghty. I am not suggesting thereby that his Honour was precluded from dealing with the matter in the way that he did. 45    Geraghty CCJ observed that the case had been run almost exclusively before the Commissioner as a physical assault, though there was considerable evidence as to verbal abuse on 6 October 1995. His Honour adverted briefly to such evidence as there was that the nature of conditions of employment had caused or aggravated a psychological injury (pars 5-9). He noted that it was agreed before him that the nature and conditions claim had not been seriously pressed by counsel for the worker and that there was certainly no focus placed on the nature and conditions of employment as causing a psychological injury (par 10). 46    His Honour observed that the injury disclosed in the Application was PTSD (pars 11, 13). 47    The issue in the appeal was stated to be whether the Commissioner had failed to give reasons or proper reasons for rejecting the claim based on nature and conditions of employment. 48    The Judge’s essential reasoning was that the Commissioner had erred when he confined himself to considering the nature and conditions of employment as a trigger for PTSD as distinct from a trigger or exacerbation of psychological injury generally. The medical opinion did not support the allegation that the nature and conditions caused PTSD, but there was evidence (including medical evidence) suggestive that the nature and conditions may have resulted in psychological injury in the form of anxiety, depression or adjustment disorder. The worker was entitled to have such a case considered, yet it was not. The Commissioner had confined himself to a PTSD case in light of the pleadings and the thrust of the submissions, yet the issues joined at the hearing required the broader case to be addressed (see pars 13, 26, 30-58).
49    Geraghty CCJ concluded in the following terms:

59. I find:
60. THAT in his judgment the Commissioner did not deal with all the issues, focusing his attention only on the fact of a physical assault of 6 October.
61. THAT he did not address his mind to the verbal assault and its effect, and more importantly, to the nature and conditions of the appellant’s work, and to the medical evidence in relation to this as a possible cause of psychological injury.
62. For these reasons I uphold the appeal.
63. I order a new hearing.

50    I take it to be implicit that the new hearing is to be confined to the nature and conditions claim as a possible cause of psychological injury other than PTSD. It would be unjust for the physical assault claim or the PTSD injury claim to be reventilated. 51    I agree with the learned judge that the Commissioner did not address this broader case in his reasons and that there was some evidence capable of supporting it. 52    The real question, and the only question, is whether the Commissioner was called upon to address this broader case. If he was, his judgment failed to address it. If he was not, then he could scarcely be faulted for saying nothing about it. 53    As his Honour recognised, the Application (even as amended) confined itself to a claim that the relevant injury was PTSD. As regards nature and conditions of employment, such a claim deserved the short shrift it got in the Commissioner’s judgment in light of the diagnostic criteria in DSM-IV and the medical evidence in the case. 54    But it remained the situation that the evidence before the Commissioner suggested that the earlier stresses and strains of employment had contributed to the worker’s overreaction to the incident that did occur on 6 October. The flare-up between Mr Garcia and the worker had a background and, though it did not involve a physical assault, it arguably had a serious consequence for the worker in health and job terms. Medically that consequence was not PTSD, but it was nevertheless capable of being viewed as a psychological illness. There was a real issue as to the extent to which the nature and conditions of the worker’s employment on and before 6 October 1995 had contributed to the illness and its monetary consequences. 55    The following passage in the Commissioner’s reasons bears repeating in this context:

There is evidence that the applicant was having difficulty with a number of matters arising in the course of his employment with the respondent over a long period of time not the least of which I believe was alleged dust inhalation that the applicant just was not satisfied in the respondent’s employ. Whether that arose from a lack of support from the management people within the respondent organisation or not is perhaps not material.

56    It was however material if the nature and conditions of employment case was not tied exclusively to PTSD. 57    It is generally the case that litigants are bound by the conduct of their counsel (Crampton v The Queen [2000] HCA 60 at [18]). Here the worker’s counsel gave the Commissioner very little assistance in perceiving the reality of the alternative case that was available to be considered on the evidence. The pleadings focussed exclusively upon PTSD as the compensable injury and counsel put nearly all of the worker’s eggs in the physical assault basket. 58 However, the Compensation Court is not a court of strict pleading. Section 17(1) of the Compensation Court Act enjoins the Court to decide any matter “upon the real merits and justice of the case” (see generally Lambidis v Commissioner of Police (1995) 37 NSWLR 320 at 335-7). 59 This was a case where the remarks of counsel for the worker in his opening before the Commissioner were prophetic (“with a bit of luck the respondent’s lay witnesses may persuade you how stressful it all was”). In the circumstances of this case the worker was entitled to have the wider psychological injury case addressed by the Commissioner despite the unwillingness of his then counsel to perceive and press clearly such a case. 60    I would dismiss the appeal with costs. 61    MEAGHER JA: I agree with Mason P. 62    FITZGERALD JA: I agree with Mason P.

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