Toll Transport Pty Ltd v Nand
[2023] NSWPICPD 64
•19 October 2023
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Toll Transport Pty Ltd v Nand [2023] NSWPICPD 64 |
APPELLANT: | Toll Transport Pty Ltd |
RESPONDENT: | Rohitendra Nand |
INSURER: | Toll Holdings Ltd |
FILE NUMBER: | A1-W3403/22 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 19 October 2023 |
ORDERS MADE ON APPEAL: | 1. Leave to appeal the Member’s interlocutory decision is granted pursuant to section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. The Member’s Certificate of Determination dated 26 October 2022 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – consideration of objective evidence when witness evidence unreliable – Devries v Australian National Railways Commission [1993] HCA 78 applied; histories recorded by the medical experts are not required to be precisely in accord with the proven facts – Ramsay v Watson [1961] HCA 65; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 applied – requirement to show error – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 applied – failure to raise an argument before the primary decision maker –Mamo v Surace [2014] NSWCA 58; Brambles Industries Limited v Bell [2010] NSWCA 162 applied – referral of a claim pursuant to s 66 of the Workers Compensation Act 1987 to a medical assessor after liability for injury was determined – Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264; Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 applied – failure to consider a submission does not amount to error where the submission would not change the outcome –Walshe v Prest [2005] NSWCA 333; Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478 applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr B Jones, counsel | |
| Colin Biggers & Paisley | |
| Respondent: | |
| Mr L Robison, counsel | |
| Santone Lawyers | |
| DECISION UNDER APPEAL | |
MEMBER: | Mr C Burge |
DATE OF MEMBER’S DECISION: | 26 October 2022 |
INTRODUCTION AND BACKGROUND
Mr Rohitendra Nand (the respondent) was employed by Toll Transport Pty Ltd (the appellant) as a truck driver, having commenced that employment in or about 2015.
The respondent alleged that from about December 2019, he received verbally threatening treatment from the general manager, Mr Steve Innes, was targeted by management and was ridiculed and humiliated by Mr Innes and his manager, Mr Mitchell Varnam, because he wore a mask and gloves due to the COVID-19 epidemic. He also alleged that, on 3 April 2020, he was grabbed, shoved and repeatedly spoken to in an aggressive manner by Mr Innes. The respondent complained that swearing, racist comments and inappropriate conversations about women were common in the workplace and that all of the workplace behaviour caused him psychological injury. He lodged a claim for weekly compensation which was denied by the appellant. In January 2021, the claim for weekly payments was resolved at conciliation on the basis that the proceedings were discontinued, with an agreement that the appellant pay the respondent voluntary weekly payments.
On 24 September 2021, the respondent made a claim for 17% whole person impairment in respect of his psychological injury. On 14 December 2021, the appellant denied liability for the claim in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), asserting that:
(a) the respondent had not suffered an injury as alleged (ss 4(a) and 4(b) of the Workers Compensation Act 1987 (the 1987 Act);
(b) the respondent’s employment was not the main contributing factor to the injury (s 4(b)(i) of the 1987 Act, or to the aggravation of the condition (s 4(b)(ii) of the 1987 Act);
(c) the respondent’s employment was not a substantial contributing factor to his employment (s 9A of the 1987 Act), and in the alternative,
(d) the respondent’s psychological injury was wholly or predominantly caused by reasonable action taken by or on behalf of the appellant in respect of performance appraisal, discipline and/or dismissal (s 11A of the 1987 Act).
The respondent commenced proceedings in the Personal Injury Commission (the Commission) and the dispute proceeded to arbitration before a non-presidential member on 21 September 2022. The Member issued a Certificate of Determination on 26 October 2022 in favour of the respondent. The appellant appeals that decision.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties agree that this appeal can be determined on the basis of the documents and their submissions.
I have had regard to Procedural Directions PIC2 – Determination of matters ‘on the papers’ and WC3 – Presidential appeals and questions of law, the documents and submissions that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of those documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
Both parties assert that the decision is not interlocutory in nature, so that leave to appeal in accordance with s 352(3A) of the 1998 Act is not required.
Section 352(3A) provides that:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The Member determined that the respondent suffered a psychological injury, the respondent’s employment was the main contributing factor to the injury and the appellant’s defence pursuant to s 11A of the 1987 Act was not made out. The Member then remitted the matter to the President for referral to a medical assessor to determine the whole person impairment that resulted from the injury.
In determining whether a decision is interlocutory in nature, the question to be posed is whether the judgment or order finally disposes of the rights of the parties.[1]
[1] Licul v Corney [1976] HCA 6.
A review of earlier decisions made by Presidential members discloses that CoatesHire Operations Pty Ltd v Geddes[2] (per Candy ADP) and Visy Board Pty Ltd v Nguyen[3] (per O’Grady DP) involved decisions by arbitrators of the former Workers Compensation Commission in which the arbitrators made findings in respect of the question of “injury” and remitted the matter for assessment of the injured worker’s permanent impairment by an Approved Medical Specialist (AMS) in circumstances where the appeal was lodged prior to the assessment taking place. In Geddes, Candy ADP observed (citation omitted):
“This is in conformity with the decision of Roche DP in P&O Ports Limited v Hawkins that a final decision which determines the parties’ rights on issues such as worker, injury or substantial contributing factor, inter alia, is not interlocutory although medical disputes remain to be determined. The decision of the Deputy President has been followed in many subsequent cases and I propose to do likewise. There has been a finding of injury to the worker’s neck in this case which is final unless set aside on appeal although there has been no determination by an AMS as to the existence or extent of permanent impairment referable to such injury.”[4]
[2] [2008] NSWWCCPD 120 (Geddes).
[3] [2010] NSWWCCPD 101 (Nguyen).
[4] Geddes, [18].
In Nguyen, O’Grady DP observed (citation omitted):
“That finding of injury constitutes a finding as to liability and is binding upon the parties. Such finding of injury defines the parties’ rights and liabilities and as such is a determination which finally disposes of the rights of the parties in the sense as addressed by Gibb J in Licul v Corney. Such a determination is not ‘interlocutory’ within the meaning of … s 352(8). Mr Nguyen’s submission that an appeal may not be made against the Arbitrator’s determination must be rejected.”[5]
[5] Nguyen, [22].
The decisions of Geddes and Nguyen are inconsistent with a number of subsequent Presidential decisions about whether a determination prior to a referral for medical assessment is interlocutory in nature, including the decision of Phillips P in Mosawi v Baron Forge (NSW) Pty Ltd.[6] In that decision, the President considered that it was necessary that liability in respect of the cervical spine be finalised before the assessment of whole person impairment took place. The Member below had determined that the worker’s cervical spine was not injured as alleged and referred the accepted injuries of the lumbar and thoracic spine to a medical assessor. The appeal was lodged before the medical assessment took place. In the appeal, the President accepted that the Member’s decision in respect of the cervical spine was interlocutory in nature.
[6] [2022] NSWPICPD 48 (Mosawi).
In Moore v Greater Taree City Council,[7] the then Arbitrator determined that the worker suffered injury to her back in the course of her employment and referred the worker’s claim for permanent impairment to an AMS. Acting Deputy President Snell (as he then was) reviewed a number of decisions as to whether decisions made before a referral to a medical assessor were interlocutory in nature.[8] He concluded that:
“The order made in the present matter has not finally disposed of any rights but has merely determined that the assessment of the claim for lump sum compensation may be referred to an AMS for assessment.”[9]
[7] [2009] NSWWCCPD 17 (Moore).
[8] P & O Ports Limited v Hawkins [2007] NSWWCCPD 87; Maricic v Medina Serviced Apartments Pty Limited [2007] NSWWCCPD 196; McGuire v State Transit Authority of NSW (No 2) [2007] NSWWCCPD 109; Arquero v DJ & T Denning Pty Limited t/as Capital Coast Steel [2007] NSWWCCPD 126; Waverley Council v Sheen [2007] NSWWCCPD 127.
[9] Moore, [37], citing Fine Meats (Boners PM) Pty Ltd v Hart [2007] NSWWCCPD 164 per Roche DP at [24].
Both Mosawi and Moore are on all fours with the present matter. Additionally, in South Western Sydney Area Health Service v Edmonds,[10] the Court of Appeal considered an appeal from a Presidential decision that involved an arbitrator’s determination in favour of the worker that her lumbar and left knee symptoms were referrable to her accepted right knee injury. The appeal to the President was lodged prior to the claim being referred for assessment by an AMS. McColl JA (with Tobias JA agreeing) made the following observation:
“South Western Sydney Area Health Service seeks leave to appeal pursuant to s 353 of the Workplace Injury Management and Workers Compensation Act1998 … from a decision of Deputy President Fleming of the Workers Compensation Commission of New South Wales in turn dismissing an appeal from a determination of Arbitrator Wynyard … Leave is required because the Arbitrator’s determination, and hence the Deputy President’s decision, was interlocutory.”[11]
[10] [2007] NSWCA 16 (Edmonds).
[11] Edmonds, [12].
The above authorities are equally applicable to appeals from members of the Personal Injury Commission. I am satisfied that the decision the subject of this appeal is an interlocutory decision and the appellant requires leave to bring the appeal at this stage.
Section 352(3A) provides that the Commission is not to grant leave unless it is of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute. If the appeal does not proceed at this interlocutory stage, the assessment of the respondent’s permanent impairment will take place and a Medical Assessment Certificate will be issued. If the appeal is then lodged and succeeds, the whole process of the respondent being assessed and a Medical Assessment Certificate being issued would involve an unnecessary use of the Commission’s resources and incur undue delay in the efficient resolution of the issues, contrary to the Commission’s guiding principle to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings.[12]
[12] Section 42(1) of the 2020 Act.
I am of the view that it is desirable to grant leave to appeal as it is the more efficient and effective manner in which the dispute can be determined. Leave to appeal the decision pursuant to s 352(3A) of the 1998 Act is therefore granted.
THE EVIDENCE
The respondent’s statement evidence
A statement obtained by NSW Police and dated 13 April 2020 was agreed to be that of the respondent but was unsigned.[13] The document recorded that on 3 April 2020, the manager, Mr Mitchell Varnam, called a group of employees together for driver training, including the respondent. The respondent said that he had noticed an issue in relation to the area they were in and began to take photographs with his mobile telephone, but Mr Varnam approached him and told the respondent he was not allowed to use his mobile telephone. He said that, following the meeting, Mr Steve Innes, the general manager, approached him and yelled “Are you [profanity] finished?” The respondent said that Mr Innes then grabbed his shirt by the sleeve and pulled him away from a co-worker, before shoving the respondent with his left hand, which caused the respondent to stumble. He said that Mr Innes yelled at him again, directing him to leave. The respondent said that he reported the incident to Mr Paul Wilson, a member of the Health and Safety Committee, who said he would investigate the matter.
[13] Reply to Application to Resolve a Dispute (reply), pp 1–2.
The respondent was interviewed by an investigator appointed by the appellant. A statement was prepared on 8 May 2020, but the respondent signed the document on 19 June 2020.[14]
[14] Reply, pp 3–26.
The respondent confirmed that he had worked as a truck driver for the appellant for approximately five years. He said that he consulted his general practitioner, Dr David Li, on 17 April 2020, and Dr Li referred him to Dr Rajneesh Singh, psychiatrist. He said that Dr Singh diagnosed him with depression and prescribed medication. He said that he also received counselling from a psychologist, Mr Warwick Brown.
The respondent complained of the following stressors:
(a) the incident with Mr Innes on 3 April 2020;
(b) the appellant’s lack of safety concerning COVID-19;
(c) being targeted by management, and
(d) fear of losing his job, as had other drivers from the beginning of 2020.
The respondent indicated that his symptoms of depression and anxiety commenced during the week after the incident on 3 April 2020, and escalated a few days later when he was reprimanded by Mr Jonathan (John) Neasey, manager, for being late for work several times the week before. He stated that this made him feel the appellant was trying to get rid of him. The respondent said that he told a co-worker, Mr Mark Webster, and several other co-workers but they advised him to not worry about it, or the appellant would terminate his employment.
The respondent described a lack of interest in doing things he liked to do and began to realise the effect the incident with Mr Innes had on him and of Mr Innes’ past comments about bringing a loaded gun to the negotiating table, which he said were comments Mr Innes made on a number of occasions, most recently in January 2020. The respondent nominated several witnesses to those comments. He said that he felt that he had no choice but to make a complaint to the police because of Mr Innes’ aggressive behaviour on 3 April 2020. The respondent said that he thought that there would have been some sort of disciplinary action as a result of the incident.
The respondent denied having previously suffered from a psychiatric or psychological condition. He indicated that he had not returned to work since 17 April 2020.
The respondent described a number of prior incidents involving Mr Innes, Mr Varnam and Mr Neasey, which included being:
(a) called to a meeting and reprimanded by Mr Innes and Mr Varnam for taking too long (five to ten minutes) to have a coffee and cigarette before getting his truck. He said he used this time to start his paperwork;
(b) warned by Mr Innes in an aggressive and threatening manner that if he stuck his “head up” he would be “squished”, an incident which the respondent reported to SafeWork, who considered that it was a one-off incident;
(c) called to meetings with Mr Varnam and Mr Neasey, in which he was criticised for the length of time he took to disinfect his truck as a precaution against COVID-19, and about taking too long to perform the new procedure to couple and uncouple the truck, and
(d) spoken to by Mr Neasey about lateness, when he had been late because he had visited his mother who was seriously ill and spoken to by Mr Varnam about recording his breaks.
The respondent indicated that there was also a safety incident just prior to the incident with Mr Innes on 3 April 2020. The respondent described the incident in great detail, described at [21] above. The respondent further described the incident involving Mr Innes on 3 April 2020, which is also summarised at [21] above. The respondent said that he reported the incident involving Mr Innes to Mr Neasey and asked Mr Neasey to speak to Mr Innes.
The respondent stated that he was also worried about the appellant’s lack of concern for COVID-19 protocols in the workplace.
The respondent described the process of coupling and uncoupling the trucks, which was a new procedure introduced in February 2020. He said that it took him longer than the others to get his truck out of the yard because the other drivers were not performing the procedure properly.
The respondent said that he was not aware of ever being issued any warnings and he had never been placed on a performance plan.
The respondent provided a statement dated 2 July 2020.[15] He denied any past history of mental illness or psychological injury. He complained of the following occurrences:
[15] Application to Resolve a Dispute (ARD), pp 1–3.
(a) he had been ridiculed and humiliated by his manager, Mr Varnam, and by Mr Innes for wearing a mask and gloves because of COVID-19, and other drivers remarked on his usage of masks;
(b) in December 2019, he was threatened by Mr Innes when:
(i)Mr Innes slammed the palm of his hand, pointed at the respondent and drew his finger over his own throat, and
(ii)Mr Innes threatened to fire him for speaking to the union;
(c) on another occasion, while in the smoker’s room, Mr Innes said that he had a loaded gun at home and brought it to “every argument’, while looking directly at the respondent;
(d) on 3 April 2020, in his capacity as Health and Safety Review manager, there was an incident where he was taking photographs of an area where he considered the area to be unsafe and Mr Varnam approached him and rebuked him for doing so;
(e) on the same day, Mr Innes yelled and swore at him and rebuked him for not maintaining social distancing;
(f) in that incident, the respondent felt a tug on his shirt sleeve and was pushed on his left side, which the respondent believed were actions taken by Mr Innes (although he did not see the offender);
(g) the respondent reported the incident to SafeWork but no action was taken, and
(h) both Mr Innes and Mr Varnam had behaved aggressively to other drivers.
The respondent said he consulted Dr David Li, general practitioner, Dr Rajneesh Singh, psychiatrist, and Mr Warwick Brown, psychologist, for treatment. He said he suffered from nightmares of Mr Innes shooting him and he was severely stressed and anxious.
The respondent wrote a letter to the appellant on 6 July 2020 following previous correspondence relating to the potential termination of his employment.[16] The respondent informed the appellant that he was suffering from mental health issues which had commenced in about December 2019. He said that he had watched the CCTV video footage of the incident he alleged had occurred between him and Mr Innes on 3 April 2020 and conceded that there had been no physical contact between them. He said that he could not justify filing a report with the police about the alleged incident and could only conclude that he was not of sound mind. He said that, up until the time he saw the video footage, he believed that Mr Innes’ actions involved physical aggression.
[16] Reply, p 62.
He wrote:
“I can see why you believe that I ‘failed to act with integrity by intentionally making false statements’. If I was of sound mind then this would be true but I am/was not. I am progressing with my treatment through professionals and I can start to see the light at the end of the tunnel. The thought that I may lose my job doesn’t aid in my recovery but the one positive is that it has forced me to question myself and to recognise and confront my mental health issues.
Through all this I have been dealing with my Mother’s recovery from abdominal cancer and also my brother, who is currently in a prolonged coma after brain surgery to remove an aggressive tumour. His prognosis is not good and the Doctors do not believe he will ever wake from his coma.”
In a subsequent statement dated 11 November 2020,[17] the respondent expressed the belief that the incident with Mr Innes (presumably on 3 April 2020) was the final straw leading to his psychological injury. He complained that there were many other occasions before that incident that rendered his employment “highly toxic”, unsafe and uncomfortable. He said his co-workers would make racist remarks and jokes about people of his ethnicity, would swear profoundly and make sexualised remarks about women, and if he approached them about those remarks they would query whether he was gay.
[17] ARD, pp 4–5.
The respondent stated that he was very uncomfortable when Mr Innes was around, who he thought was targeting him in the same manner that Mr Innes was treating other employees he did not like. He said Mr Innes behaved in an aggressive and intimidating manner towards him, making comments such as “I’m the boss” and “I’ll squish you,” which the respondent thought were intended to scare him and others about losing their jobs. The respondent said that for several months prior to reporting his claim to the appellant, the constant threats and aggressive behaviour caused him to be concerned that he was being forced out of his job. He added that he was also ridiculed in relation to his concerns about COVID-19.
The appellant’s lay evidence
Mr Steve Innes
In a statement dated 11 May 2020,[18] Mr Innes stated that he was employed by the appellant on 2 August 2019 in the position of general manager and had previously worked for the appellant approximately 11 years prior. He referred to the allegation made by the respondent in respect of a physical interaction on 3 April 2020. He said that, at the time, the appellant was operating under COVID-19 restrictions and, on that day, he was undertaking his usual walk around the premises to ensure the staff were maintaining the social distancing requirements. Mr Innes said that he observed a group of workers about three metres away who were standing almost shoulder to shoulder with each other. He asserted that he told the group that he had “the customer and every f… regulator up my … at the moment”[19] and that they needed to maintain social distancing. Mr Innes advised that the CCTV footage on that day showed that a group of men were looking in his direction when he spoke. He said that he asked the respondent whether he had his load for the truck and whether he had completed his training, to which the respondent replied that he did. Mr Innes advised that he then said to the respondent “Well, off you go. You go and do your load.”[20]
[18] Reply, pp 43–52.
[19] Statement of Mr Innes, reply p 45, [14].
[20] Statement of Mr Innes, reply p 45, [17].
Mr Innes then described what was recorded on the CCTV footage thereafter, which he said disclosed that when the respondent was walking in his vicinity, he was about two or three metres away. Mr Innes indicated that the CCTV footage belonged to Woolworths but it could be made available by Woolworths on request.
Mr Innes mentioned that Mr Mark Bennett, another employee who had been standing next to the respondent in the yard, had supported the respondent’s allegation that Mr Innes had grabbed the respondent by the shoulder. Mr Innes said that there was a lengthy investigation about the incident and the allegation was proved to be untrue. Mr Innes disputed that the alleged incident on 3 April 2020 occurred and denied that he had said to the respondent “What are you f… doing? If you have f… finished, then f… off.”[21]
[21] Statement of Mr Innis, reply p 48, [2]
Mr Innes addressed the further allegations made by the respondent as follows:
(a) During August 2019, he attended meetings with the respondent and Mr Varnam, in which the respondent was reprimanded for taking too long to have his coffee and a cigarette before loading his truck. Mr Innes denied the incident ever happened and advised that he kept a diary of all meetings and there was no such meeting. Further he did not know the respondent at that time.
(b) At a time in December 2019, Mr Innes spoke to the respondent in an aggressive and threatening manner in the lunchroom, telling the respondent that if he stuck his head up, he would be “squished,” following which Mr Innes then slammed his palm on the table (the December 2019 incident). Mr Innes stated that he recalled commenting to a group of employees that if you “pop your head up in this business, you cause too much trouble, you’re out of here.” Mr Innes asserted that he did not use the word “squished.” He admitted putting his hand on the table but denied that he slammed it down. Mr Innes indicated that he was speaking to the whole group, and both Mr Varnam and Mr Neasey would have been there. He said that the incident was reported to the union, but nothing was done, and he subsequently apologised to the respondent for offending him.
(c) During January 2020 and on previous occasions, Mr Innes made comments about having a loaded gun at home which he always brought to the negotiation table. Mr Innes disputed those comments and described the complaint as a “lie” and a “disgrace.” He added that having a loaded gun at home would affect his daughter’s military career and said that his own career was unblemished. Mr Innes said that the Chairman of the Health and Safety Review Committee had also made false allegations against him which had been dismissed after investigation by the WorkCover Authority.
(d) In February 2020, the respondent was reprimanded for taking too long to leave the yard because he was required to perform the new coupling procedure. Mr Innes said that the new procedure was simply a visual check and should only have taken one or two minutes and not five to ten minutes. He did not address the allegation made by the respondent that the respondent was reprimanded.
(e) The appellant only supplied two disinfectant bottles for all the drivers to clean their trucks and the respondent was reprimanded for taking too long to clean his truck before leaving the yard. Mr Innes said that there were disinfectant bottles in numerous places around the site and the drivers were issued with hand sanitisers and antibacterial wipes to use on the trucks’ surfaces. Mr Innes said that the process of wiping down the truck should have only taken three to four minutes.
Mr Innes added that the Health and Safety Review Committee had issued a process improvement notice in respect of the sanitisation procedures, that a SafeWork regulator had attended the jobsite and the issues were resolved within two to three hours. He said that he believed that the respondent was being “coached” by the Health and Safety Review Committee members.
Mr Mitchell Varnam
Mr Varnam, the respondent’s manager, provided a statement dated 11 May 2020,[22] in which he responded to each of the respondent’s allegations. He said that he did not recall the August 2019 meetings but indicated that he and Mr Innes did speak to the respondent in relation to the time he took to have his coffee and cigarette in the mornings.
[22] Reply, pp 34–42.
Mr Varnam referred to the respondent’s complaint that on 3 April 2020, the respondent was rebuked by Mr Varnam for taking photographs on his mobile telephone. He recalled that, at a training session organised by him, the respondent had raised an issue about the truck’s trailer stand being placed under the trailer. Mr Varnam said that he agreed with the respondent in respect of the demonstration which had taken place but advised the group that they should refer to the statement of procedures that had been put in place. Mr Varnam said that he advised the respondent that the procedures were outlined in the statement of procedures which had been approved by the Health and Safety Review Committee. Mr Varnam said that, after the training, the respondent moved away from the training area and was taking photographs in an area where use of mobile telephones was prohibited, which was a safety requirement. He said that he directed the respondent to put his mobile telephone away, and that if he was finished the training, he should return to doing his job, to which the respondent replied that he needed the photographs and that he was returning to work.
Mr Varnam said that he did not witness the alleged incident in which Mr Innes tugged on the respondent’s shirt sleeve, shoved him and verbally assaulted him and he first heard about the alleged incident about a week later. He commented that Mr Innes had extensive industry experience and had implemented some strict guidelines when he commenced with the appellant. Mr Varnam described Mr Innes as “loud” and “very straightforward” about his expectations of the staff, said he would not consider Mr Innes to be aggressive and had never known him to verbally or physically assault anyone.
Mr Varnam referred to the respondent’s complaint about the alleged meetings in March 2020 involving the time it took the respondent to leave the yard after the requirement to undertake the coupling and uncoupling procedure had been initiated and the time taken to disinfect his truck. He explained that all that the drivers were required to do was to visually check the space between their vehicle and the kingpin on the trailer to ensure there was no damage and that the procedure should not have taken more than five minutes. Mr Varnam indicated that the appellant retained an outside company to spend an hour disinfecting the trucks but on one morning, when the respondent was given a truck that was already disinfected, the respondent still took an hour to leave the yard. He added that the appellant provided everything that the drivers needed to properly clean their trucks and that the other drivers would take five minutes, whereas the respondent would take 35 minutes.
Mr Varnam indicated that, in November or December 2019, he had discussed the respondent’s performance with him. He said the issue was that the respondent was taking too long to get to his truck and leave the yard because when the respondent arrived at work, he would have a coffee and wait around, smoking three cigarettes before getting into his truck. He added that it took the average driver 25 minutes to leave the yard, but the respondent was taking more than an hour. Mr Varnam said that the respondent replied that Mr Varnam did not understand, and that he was wrong, but the respondent did not explain further as to what he meant.
Mr Varnam confirmed that he and Mr Neasey met with the respondent on two or three occasions in February and early March 2020 to discuss the respondent’s performance and lack of punctuality. He advised that the respondent had been 30 minutes late for work on five or six occasions within a two-week period, without advising the appellant. He said that it was imperative that the drivers started their shifts on time. He said that he told the respondent that if he continued to be late, he would be forced to change his rostered start time. He advised that the respondent promised to fix the issue and thereafter was not regularly late for work.
Mr Varnam further confirmed that the appellant had terminated the employment of four workers since the commencement of 2020. He explained that two of the workers were let go because of what he described as theft of the appellant’s time and wages. He said that they would clock on for work and submit a run sheet which recorded that they were performing their work tasks, but they were actually pursuing social or other activities. He said that the third worker had been involved in a serious motor vehicle accident and the fourth worker was a business manager who was not setting the right example. Mr Varnam observed that the appellant had not discussed those sorts of issues with the respondent.
Mr Varnam stated that the respondent had not raised any concerns with him in relation to COVID-19. He stated that the respondent began to wear a face mask after the meeting in March 2020, which was his individual choice.
Mr Varnam observed that he believed that the respondent had taken the photographs following the training so that he could send them to the Health and Safety Review Committee members to try to derail the training and the procedure the appellant was attempting to implement. He expressed the view that the drivers had the practice of being unwilling to undertake new tasks, causing delay. He reported that the respondent had been a quiet person but had become disruptive since joining the Health and Safety Review Committee in August 2019. He added that, after taking the photographs, the respondent walked away with “a demeanour of purpose.”[23]
[23] Statement of Mr Varnam, reply, p 37, [3].
Mr Jonathan Neasey
Mr Neasey provided a statement dated 11 May 2020.[24] He advised that he was not involved in the incident in which it was alleged that Mr Innes had physically and verbally assaulted the respondent on 3 April 2020. He said however, that the respondent reported the incident to him on 9 April 2020, although he had heard a rumour about it before then. He said that the respondent told him that he was preparing a statement to be submitted to the appellant. Mr Neasey stated that he told the respondent that if there was an issue in respect of the complaint, he should put it in writing and Mr Neasey would escalate it.
[24] Reply, pp 27–33.
Mr Neasey stated that he knew that the incident had been investigated and was found to be false. He observed that while he was working with the respondent between 2 April and 9 April 2020, the respondent did not appear to be frightened or threatened. Mr Neasey said that the respondent’s last day of work was 10 April 2020.
Mr Neasey confirmed that he attended a meeting with the respondent in early March 2020 which related to the respondent regularly arriving at work up to about 30 minutes late and confirmed that there had been many frequent conversations and meetings with the respondent about taking too long to leave the yard in the morning. He added that he had never seen the respondent perform the coupling and uncoupling procedure, but he had observed other drivers and the process did not take more than one or two minutes. Mr Neasey said that, as a COVID-19 safety measure, the drivers were told that they were required to clean their trucks before and after their shift, which involved wiping down the steering wheel, handles, gearstick and any other areas that may be touched. He said that procedure took about five minutes.
Mr Neasey added that the drivers would normally take from 20 to 30 minutes to leave the yard in the morning but the respondent would take up to one hour, during which the respondent would spend 40 minutes cleaning his truck. He said that he did not recall raising this with the respondent. He remarked that the respondent was the last driver to leave the yard, even before COVID-19, and before the requirement to clean the trucks was introduced.
Mr Neasey referred to the appellant having terminated the employment of three or four employees, which he said was from late 2019 or the beginning of 2020. Mr Neasey thought that their employment may have been terminated because of “stealing company time.” He said that the appellant expects that staff will commence their shift at the rostered time or give notice that they will be late. Mr Neasey added that all drivers were made aware at toolbox meetings that stealing company time was not permitted and the General Manager had addressed the issue at a meeting for all drivers in February 2020.
Mr Neasey confirmed that the respondent was advised that he was required to clock off when he returned to the yard in the afternoons rather than take a break at the end of his shift, which was recorded as company time on his run sheet. He said that the respondent was also spoken to about being late for work on a regular basis and that he would need to have a later start time if he could not be punctual. Mr Neasey said that the respondent told the appellant that he had been visiting his mother, who was in remission with cancer, so the appellant offered the respondent a later start time, which the respondent refused.
Mr David Smith
Mr David Smith, workplace trainer, provided a statement dated 25 May 2020.[25] He said he commenced working with the appellant on about 13 January 2020 and his role involved familiarising the staff with new equipment and the procedures involved in its use.
[25] Reply, pp 53–60.
Mr Smith said that he first met the respondent in January 2020 and interacted with him on a maximum of 20 occasions. He recalled that on 3 April 2020, he was facilitating a training session for about 20 employees, following which the respondent raised concerns about whether the new equipment would hold a trailer with a full load, when the demonstration had only involved an empty trailer. Mr Smith said that the trailer’s compliance plate indicated that it could hold up to 25 tonnes, which was much more than the weight the trailer might be required to hold.
Mr Smith recalled that Mr Innes interrupted the session because of concerns that the group were not following social distancing protocols as they had moved closer together to hear above a nearby truck with its engine running. Mr Smith said that he could not hear what Mr Innes was saying but from his body language, which appeared aggressive, it was apparent as he approached the group that he was trying to get a message across.
Mr Smith said that he did not observe Mr Innes physically come in contact with anyone, including the respondent, although he said he may not have been looking at Mr Innes the entire time. He said Mr Innes was at least one and a half metres away from any of the attendees and that he left the session about two minutes later. Mr Smith advised that Mr Mark Bennett, who had been standing with the respondent, appeared upset about Mr Innes’ manner but he did not recall the respondent appearing upset during the session or after Mr Innes left the group. He said that the respondent did not raise any issue with Mr Smith that day. He did recall that he had heard that some of the employees were upset that Mr Innes interrupted the session in the manner that he did. Mr Smith advised that the respondent had not mentioned to him any incident between Mr Innes and the respondent. Mr Smith said that he did recall Mr Varnam asking the respondent to stop taking photographs during or after a session but not in this particular session.
The medical evidence
The clinical records of Mamre Road Medical Centre
The Mamre Road Medical Centre clinical records were in evidence.[26] The records disclose that the respondent attended the clinic on 14 April 2020 and was seen by Dr Afrujul Alam, who recorded the following history (original spelling and syntax retained):
“H/O suddenly assaulted by his big boss of his work place on 3rd Apr 20. Threatened him to be sacked from his current job.
Pt is also HSR (Health and safety representative).
Now feels very stressed, anxious, snappy to his wife and other family member, as he think he might loss his job.
Pt is not sure whether he will clam w/c, nsw medical certificate now.”
[26] ARD, pp 72–345.
Dr Alam noted that the respondent “looks stressed” and advised the respondent to consult Dr David Li of the same practice.[27]
[27] ARD, pp 143–144.
The respondent consulted Dr Li on the same day. Dr Li noted (original spelling and syntax retained):
“He said he was being bullied at work
felt unsafe at work
happened on 3/4/2020
happened 1030
and he pulled over by his sleeve by his boss he said
and he was sworn at patient said
he said it was unprovoked
he said he feel his workplace is unsafe
felt covid 19 not being followed
felt equipment not adequate he felt
He said he has own gloves and mask
he was talking trainer and driver
and drive a truck
felt covid 19 hygiene not bein follw throgh
have previously problem with boss in december
have been feeling fearful and anxious of going to work
feeling unsafe and felt threatene of going to work
he said his boss said he has a gun
and he said he bring it with him with negiotion tablet
felt unsafe at work
and felt unsafe at home
d/w made wc claim
patient to decide later”[28]
[28] ARD, p 144.
Dr Li issued a certificate of capacity certifying that the respondent had no capacity for work from 14 April 2020 to 16 April 2020, and referred the respondent to Dr Rajneesh Singh, psychiatrist.[29]
[29] ARD, p 145.
On 17 April 2020, Dr Li recorded (original spelling and syntax retained):
“He said his boss was stool down
feeling anxious and worried
want to go back to work
wanted now to make wc claim
concerned boss said has a gun
and he said he was assaultedwith pulling the sleeve.”[30][30] ARD, p 145.
On 23 April 2020, Dr Li also referred the respondent to Mr Warwick Brown, psychologist, for assessment and management of anxiety and depressed mood in the context of issues at work.[31]
[31] ARD, p 132.
The clinical records of Mr Warwick Brown
The clinical records and reports of Mr Brown were annexed to the ARD.[32]
[32] ARD, pp 52–65.
The respondent first attended Mr Brown on 27 April 2020. Mr Brown recorded the following history (original spelling and syntax retained):
“Works as a driver with Toll (Woolworths). Also HSR Manager threatened him in December 2019.
Loss of interest in activities - riding motorbike. Irritability, memory issues, fear of harm, sleep broken and difficulty falling asleep
Mechanic by trade.
Mum just finished chemo - Dad has CF - vulnerable.
On 3/4/, took photos in training re a task (procedure) - manager approached him – states can't use phone in an unsafe zone - asked why training was done in an unsafe zone – Steve Innes - grabbed his shirt and pulled him and shoved him and said "f ... off if you have finished your training). Advised union and WHS delegate.
Reported incident to Police last Monday and saw GP on Tuesday.
…
Aggressive managers (style)
No leave left.
He wants to better at managing his reactions and get better himself.
His role as a HSR has him feeling targeted. Manager talks about unregistered firearms.”[33]
[33] ARD, p 58.
The respondent consulted Mr Brown again on 18 May 2020. He said he was being harassed at work, suffered anxiety and he was concerned about COVID-19 protections at work.[34] The respondent returned to consult with Mr Brown on 9 June 2020. Mr Brown recorded that the respondent’s complaint was essentially that he felt harassed about having work breaks and stops and that management was aggressive and hostile towards him. Mr Brown noted that the respondent had been taking photographs in a restricted zone and the respondent felt targeted by management.[35]
[34] ARD, p 59.
[35] ARD, p 59.
Mr Brown provided a report dated 24 July 2020 at the request of the respondent’s legal representatives.[36] He advised that:
“Mr Nand reported that on the 3/4/2020 he was undertaking some training whilst at work. He stated that this was in a restricted area or an unsafe zone. Mr Nand states that he was taking some photos of the task and was confronted by a manager stating he cant use his phone in this location. He states that he questioned the manager on why it was being undertaken in this area. Mr Nand reported that he was confronted by Steve Innes and that he was grabbed by his shirt by Mr Innes who pulled and shoved him and told him to ‘f.. off if you have finished your training’. Mr Nand states that he was shocked and as a result reported the incident to the Police.
Mr Nand also reported issues including his manager discussing unregistered firearms, a culture of bullying, aggressive management styles, feeling targeted in his role as a HSR, and unsafe practices relating to Covid-19.
It would appear from the information provided, that Mr Nand’s employment was a substantial contributing factor to his injuries.”[37]
[36] ARD, pp 53–55.
[37] ARD, p 54.
Mr Brown was of the opinion that the respondent suffered from an adjustment disorder with mixed anxiety and depression.
Dr Rajneesh Singh, psychiatrist
Dr Singh reported to Dr Li on 22 April 2020.[38] He confirmed that the respondent had consulted him on that day and provided a diagnosis of an adjustment disorder with depressed mood and a major depressive disorder. He did not include a history of the respondent’s complaints.
[38] ARD, p 69.
Dr Singh again reported to Dr Li on 24 June 2020.[39] He noted the following history:
“[The respondent] states his mental health issues started in context of what he describes a toxic work environment wherein he felt unsupported by his management & alleges being bullied & being subjected to verbal & physical intimidation & aggression by one of the managers over the preceding months before stopping to work. [The respondent] also states being targeted over disagreements with the management over his opinion on managing health & safety at work place in regards to COVID-19 in his role as being a Health Safety representative which didn’t help … matters further for him.”[40]
[39] ARD, pp 70–71.
[40] ARD, p 70.
Dr Singh noted that the respondent had no family past history of mental illness. He described the respondent’s symptoms, which included a persistent depressed mood, non-characteristic irritability, feelings of helplessness, lack of motivation and concentration, and the presence of panic attacks.
Dr Graham George, psychiatrist
Dr George was requested by the appellant to provide a psychiatric assessment of the respondent. He reported to the appellant on 8 May 2020 in respect of a teleconference assessment undertaken that day and a review of the available records.[41]
[41] Reply, pp 114–123.
Dr George took a history of the respondent having ceased work several weeks prior to the appointment. He said that the respondent attributed the “immediate precipitant” to the fact that he was threatened by Mr Innes at work. Dr George noted that the respondent complained of an incident in December 2019 when Mr Innes approached him in a hostile manner, telling the respondent he was going to be “squished.”[42] Dr George said that the respondent was the Health and Safety representative for the employees and at that time had volunteered to become a union delegate. Dr George recorded that the respondent found his working environment difficult and tense in the context of other union delegates having been stood down in the past.
[42] Reply, p 116.
Dr George referred to an incident occurring on 3 March [sic, April] 2020 during a training session, when Mr Innes suddenly appeared, shoved the respondent several times and told him three times that “if you have finished your training f… off,” which shocked and humiliated the respondent in front of other workers. Dr George said that the respondent reported the incident but heard nothing further about it. Dr George added that the respondent had been in a training session that had taken place in an area which was not safe for training, so the respondent was taking photographs of the area, but Mr Varnam challenged him for doing so.
Dr George said that the respondent felt intimidated by Mr Innes’ aggression, who had mentioned to the respondent previously that he owned firearms. Dr George further noted that the respondent reported the alleged physical assault by Mr Innes on 3 April 2020 to the police a week later. Dr George also noted that the respondent was concerned about the adequacy of safety measures in respect of COVID-19 in the workplace.
Dr George recorded the symptoms complained of by the respondent and the treatment provided to him by Dr Li, Mr Brown and Dr Singh. He diagnosed an adjustment disorder with mixed anxiety and depressed mood. He opined that the respondent suffered from a diagnosable psychological/psychiatric injury, to which the employment substantially contributed. Dr George added that the respondent did not appear to be exaggerating his symptoms, it did not appear that the injury resulted from reasonable actions by the appellant, and the respondent continued to suffer from anxiety and depression. In response to a query from the appellant as to whether there was any abnormal illness behaviour present, or manipulative or malingering tendencies on the part of the respondent, Dr George advised that the respondent presented in a direct and open manner.
Dr George was subsequently provided with additional documentation by the appellant, who asked Dr George to express his “further views and opinion”. He provided a supplementary report on 6 July 2020[43] and advised that::
“I have read the attached documents where some of the statements by [the respondent] have been challenged. Where there are claims and counterclaims, it is always difficult to know where reality lies. However, in this case it was [the respondent’s] perception that he was under threat in the workplace and did not feel safe in the workplace. He took the additional measure of not only complaining to his employer about his circumstances but, also, reporting an assault to the Police. He appeared genuine on presentation on the day of assessment.
As an independent examiner, I am not in a position to arbitrate on factual information as such. I would point out to you that an Adjustment Disorder is a disorder that resolves usually relatively quickly once a person is removed from the circumstances generating the symptoms. I cannot comment further.”[44]
[43] Reply, pp 124-125.
[44] Reply, p125.
Dr Ash Takyar, psychiatrist
Dr Takyar was requested by the respondent’s legal representatives to assess the respondent and provide an opinion in respect of his claim. Dr Takyar provided a report dated 2 September 2020.[45]
[45] ARD, p 33–39.
Dr Takyar advised that the respondent was a vague historian who required prompting in order to ascertain a clear history. He noted that the respondent complained of an incident in front of other employees in December 2019 when Mr Innes slammed his hand on the table, pointed at him and threatened to terminate his employment by saying that the respondent was going to be “squished.” Dr Takyar said that the respondent complained that Mr Innes had started to “target” workers and terminate their employment. He noted that the respondent said that Mr Innes had “laughed off” the incident in December 2019. Dr Takyar reported that the respondent alleged that the work atmosphere had changed, with the appellant tolerating the behaviour of other drivers in that they were feeling more comfortable about swearing, making derogatory comments about women and making racial slurs, which all offended him.
Dr Takyar recorded the respondent’s current psychiatric symptoms, his functional activities and the treatment he was receiving. He reviewed the documentary evidence and the opinions of the Dr Singh and Dr George. Dr Takyar noted that the respondent had no pre-existing psychiatric history. He referred to the development of anxiety and depressive symptoms presenting over time, occurring in the context of events involving Mr Innes that the respondent felt were attempts to “squeeze” the respondent out of the business, and increasing racist and sexist remarks by colleagues.
Dr Takyar diagnosed the respondent as suffering from an adjustment disorder with mixed anxiety and depressed mood. He opined that the work environment caused the respondent to be demoralised, offended and hurt, causing anxiety and depression, concluding that the respondent’s condition was work related. Dr Takyar considered that the respondent’s condition had not stabilised and that he required further psychiatric treatment.
Dr Takyar provided a brief supplementary report dated 29 September 2020 in which he advised that he had reviewed the documentary material and confirmed that the respondent’s employment was a substantial contributing factor to the injury.[46]
[46] ARD, p 40.
Dr Takyar was asked by the respondent’s legal representatives to provide a further opinion. He responded in a report dated 25 August 2021.[47] He reported that the respondent had found alternate employment simpler in nature than his pre-injury employment and in a more supportive environment, however the respondent’s psychological symptoms of anxiety and depression continued. He confirmed the diagnosis.
[47] ARD, pp 41–48.
Dr Takyar reviewed the respondent’s functioning and activities of daily living for the purpose of assessing the respondent’s whole person impairment pursuant to s 66 of the 1987 Act. Dr Takyar referred to his earlier reports and the history of injury described in the original report in September 2020. He proceeded to assess the respondent’s whole person impairment as 17% whole person impairment.
In a further request from the respondent’s legal representatives, Dr Takyar was asked to address the opinion of Dr Lee (discussed below). In a report dated 22 March 2022,[48] Dr Takyar indicated that the vagueness of the history provided by the respondent, as noted in his original report, was not an indicator that the respondent was malingering but was a consequence of the respondent’s anxiety, depression and cognitive difficulties. He confirmed that he was not of the view that the respondent was malingering. He added that because the respondent’s symptoms had continued beyond the six month period, it would be reasonable to consider a differential diagnosis of a major depressive disorder and a generalised anxiety disorder.
[48] ARD, pp 49-51.
Dr Takyar was of the view that the respondent’s symptoms developed in the context of difficulties with his co-workers and his manager, who he felt was trying to push him out of the employment, together with being exposed to racist and sexist remarks which were inappropriately tolerated by the appellant.
Dr Takyar referred to Dr Lee’s comments about the various statements relied upon by the appellant and advised that he was not in a position to assess the truthfulness of those statements, which he had not seen. He said that he disagreed with Dr Lee’s assertion that the fact that the respondent had returned to work was inconsistent with the presence of a psychiatric disorder. He commented that people with psychiatric disorders could work, although their psychiatric condition may affect their functioning. He said that the respondent had returned to work with a sympathetic employer, in simpler duties than those required in the employ of the appellant. He noted that the respondent made mistakes, which were referrable to his cognitive difficulties, but the new employer was tolerant of those mistakes. He reiterated that, in his earlier report, he had assessed the respondent’s ability to perform work as 20 hours per week, which he had said would lead to issues if the workload or pace increased. He observed that this appeared to be the case in his current employment.
Dr Leonard Lee, psychiatrist
Dr Lee provided a report to the appellant dated 6 December 2021.[49] He advised that, in assessing the respondent he had administered the Miller Forensic Assessment Test (M‑FAST) and the Green’s Memory Complaints Inventory (MCI). He noted that the respondent appeared to answer the questions carefully and honestly, although he did not remember the questions after the session.
[49] Reply, pp 129–138.
In respect of the respondent’s responses to the M-FAST, Dr Lee noted that there were inconsistent, unusual and uncommon responses. In respect of the MCI, Dr Lee reported that the results indicated that there was considerable symptom exaggeration to the point where a person with those results would be expected to have no affective memory and would need a guardian or trustee.
Dr Lee reviewed the documentary evidence. He noted that the respondent alleged that his condition developed from December 2019, when Mr Innes slammed his hand on the table and drew his finger over his throat. Dr Lee further noted that the respondent complained that during this time, he was coping with his mother’s illness, as well as his brother’s condition. Dr Lee referred to the respondent’s further allegation that on 3 April 2020, at a training session in relation to the implementation of new equipment, Mr Varnam told the respondent that he was not allowed to use his mobile telephone in that area, but the respondent thought that he could because the appellant was breaching the safety protocols. Dr Lee recorded that the respondent felt stressed and alleged that Mr Varnam had tried to attack him. Dr Lee observed that the respondent had given five versions of what occurred when Mr Innes was alleged to have tried to shove the respondent. Dr Lee said that he had considered two clips from the CCTV footage which showed that the respondent had started to leave the session when Mr Innes arrived and there was no physical contact between the two.
Dr Lee observed that on 8 May 2020, the respondent asserted that his psychological injury resulted from physical and verbal assault by Mr Innes and the appellant’s unsatisfactory COVID-19 compliance but did not mention racism, swearing or sexism causing him discomfort. Dr Lee referred to the respondent’s subsequent statement evidence in relation to racial slurs and sexist comments in the workplace and the evidence from Mr Innes, Mr Varnam, Mr Smith and Mr Neasey.
Dr Lee was of the opinion that the results of the tests he administered were inconsistent with a recognised psychiatric disorder and indicated that there was a significant likelihood that the respondent was exaggerating his memory issues. He advised that the results indicating gross exaggerating could indicate malingering in circumstances where there was an external benefit or a fictitious disorder in the absence of external benefit. He considered that caution should be exercised in accepting the respondent’s complaints. Dr Lee referred to the Diagnostic and Statistical Manual of Mental Disorders-5 (DSM-5) Handbook requirement that in any assessment, malingering is to be firstly excluded and should be strongly suspected where there is a marked discrepancy between the individual’s alleged complaints and the objective findings on examination. Dr Lee pointed out that, in this case, there were factual inconsistencies and the tests administered were inconsistent with a diagnosable psychiatric disorder.
Dr Lee referred to the diagnosis made by Dr George that the respondent suffered from an adjustment disorder. He noted that Dr George based his opinion on the complaints made by the respondent of disturbed sleep, rumination, anxious and depressed mood. He observed, however, that in his assessment, the respondent did not appear pervasively depressed, his cognition was intact, and there was a strong suspicion that the respondent was malingering. Dr Lee said that Dr George did not administer any tests and did not review the documentation and that clinical presentation alone was not sufficient to detect feigning. He thought it was relevant that Dr George had reported that the respondent had experienced some improvement after ceasing work.
Dr Lee further referred to the opinion of Dr Takyar who he noted also diagnosed an adjustment disorder with mixed anxiety and depressed mood. He observed that the diagnosis was based upon an acceptance of the history of stressors and self-reporting of symptoms. Dr Lee considered that the respondent’s return to work eight hours per day, five days per week was inconsistent with the presence of a psychiatric disorder. Dr Lee observed that, despite Dr Takyar having read the report of Dr George, in which Dr George found the respondent’s cognition intact, Dr Takyar “accepted uncritically” that the respondent had moderately impaired concentration and memory. Dr Lee said that the deterioration observed by Dr Takyar (without providing any reasoning for it) was unexpected, given Dr George’s evidence of improvement.
Dr Lee expressed the view that he disagreed with the diagnosis provided by Dr Takyar because of the inconsistencies in the history provided by the respondent, his acknowledgement that the assault on 3 April 2020 did not occur, and the subsequent allegations that were not previously made. He said that Dr Takyar had not addressed those inconsistencies and the diagnosis of an adjustment disorder is only made when the condition improves after six months from when the stressor or its consequences have been removed.
THE MEMBER’S REASONS
The Member noted the issues for determination, including a preliminary issue raised by the respondent that the consent orders entered in the previous proceedings constituted an admission that the respondent had suffered a compensable injury. The Member concluded that the consent orders did not create an admission of liability. That conclusion is not challenged on appeal.
The Member referred to the ARD, the reply and the Application to Admit Late Documents and said that he had considered the evidence attached to those documents. He noted that the respondent alleged that he suffered a psychological injury as a result of workplace conduct, or his perception of that conduct. The Member referred to Attorney General’s Department v K,[50] in which Roche DP applied State Transit Authority of NSW v Chemler,[51] and summarised the principles to be applied in such cases, as well as Windeyer J’s observations in Federal Broom Company Pty Ltd v Semlitch.[52] The Member referred to s 9A of the 1987 Act and the requirement for the employment to be a substantial contributing factor to the injury and that s 4(b) of the 1987 Act required the employment to be the main contributing factor to the injury or aggravation. He said that it was necessary to focus upon the consequence of the conduct on the worker and not the motivation or intention of the co-worker or supervisor. He observed that if the conduct that actually occurred consisted of real events in the workplace and those events were perceived to be offensive or hostile, following which an injury resulted from that conduct, it was open to the Commission to conclude that causation was established.
[50] [2010] NSWWCCPD 76 (Attorney General’s Department v K).
[51] [2007] NSWCA 249 (Chemler).
[52] [1964] HCA 34.
The Member noted that the respondent submitted that he was subjected to a number of stressors in the workplace that were objectively real events and, combined with the respondent’s perception, caused the injury. The Member referred to the respondent’s allegation that Mr Innes assaulted him on 3 April 2020 and noted that the respondent’s version of events was “seriously and significantly at odds with”[53] the evidence from other witnesses and with the CCTV footage. The Member concluded that on the basis of the extreme conflict in the evidence about that event, he was unable to conclude that the assault occurred. The Member said that it was therefore necessary to consider the full factual matrix in determining whether a psychological injury had arisen.
[53] Nand v Toll Transport Pty Ltd [2022] NSWPIC 595 (reasons), [19].
The Member referred to the respondent’s evidence that he had been ridiculed and humiliated by Mr Varnam, Mr Innes and co-workers for wearing COVID-19 protection, co-workers would swear profusely and make racist jokes, and that he was threatened by Mr Innes in December 2019. The Member pointed to the evidence provided by Mr Innes about the incident in December 2019 and noted that Mr Innes’ conduct was reported to the union, which indicated that some people considered the conduct to be sufficiently serious to warrant being reported. The Member added that the fact that Mr Innes apologised to the respondent indicated that Mr Innes was aware that his comments had adversely affected the respondent.
The Member observed that the appellant’s witness evidence disclosed that there was tension present in the workplace between management and the employees who were members of the union. The Member noted that Mr Innes suspected that the respondent was being “coached” by the Health and Safety Review Committee to lodge complaints. He considered such an allegation to be a serious allegation and observed that it was not supported by Mr Innes having apologised to the respondent in relation to the December 2019 incident. The Member further referred to Mr Innes’ evidence that he was brought in by the appellant to improve the relationship with the workforce and the customers in circumstances where the employees had not been following instructions and the Health and Safety Review Committee had been making false allegations. The Member considered that this evidence, together with Mr Innes’ comment that some of the more militant union delegates no longer worked on the site, corroborated the respondent’s evidence that the workplace had become toxic and confrontational.
The Member noted that Mr Innes denied that the respondent had been “singled out” and said that had the respondent been targeted, he would have been “called into meetings or received notices from management.”[54] The Member said that this evidence was in contrast to the evidence of Mr Neasey that the appellant had had many conversations and meetings with the respondent over the preceding year about the fact that the respondent was taking too long to leave the yards in the morning. The Member said he did not accept that those meetings constituted “targeting”, but the respondent’s evidence was clear that that was how the respondent perceived the meetings.
[54] Reasons, p 9, [26].
The Member turned to the history recorded by Dr Takyar in his report dated 2 September 2022, which included the respondent’s complaints that:
(a) the respondent was increasingly more uncomfortable with his co-workers’ racial slurs, sexist comments about women and swearing which had escalated after Mr Innes had been appointed, and the appellant did nothing to intervene, and
(b) Mr Innes had “laughed off” his conduct in relation to the incident in December 2019.
The Member further referred to the supplementary report of Dr Takyar dated 22 March 2022, in which Dr Takyar disputed Dr Lee’s conclusion that the respondent was malingering and formed the view that the psychological treatment received by the respondent indicated the presence of a significant psychiatric illness.
The Member turned to the evidence of Mr Brown, psychologist, who provided a diagnosis and took a history that the respondent was:
(a) told by a manager on 3 April 2020 to stop taking photographs, following which the respondent was assaulted;
(b) subjected to a culture of bullying and aggressive management styles;
(c) targeted in his role as a Health and Safety Review Committee member, and
(d) exposed to unsafe COVID-19 practices.
The Member considered that each of those matters was work-related and Mr Brown’s opinion was consistent with that of Dr Takyar. The Member noted that in respect of causation, Dr Takyar recorded that the respondent had experienced difficulties with his co-workers and manager, felt that he was being “pushed out” of the job, and was exposed to inappropriate racial and sexual comments in the workplace that were tolerated by the appellant.
The Member referred to the evidence of Mr Varnam, who confirmed that the respondent had been spoken to by both him and Mr Neasey in relation to being late for work. The Member considered that Mr Varnam’s negative comments and opinion about the respondent (summarised at [52] above) corroborated the respondent’s assertion that the workplace was hostile. The Member concluded that Mr Varnam was not “well disposed”[55] towards the respondent being a member of the Health and Safety Review Committee or to the Committee itself.
[55] Reasons, [34].
The Member quoted from the history provided to Dr Singh by the respondent of the workplace being toxic, the lack of support by management, being bullied, being subjected to verbal and physical intimidation and having disagreements with management about COVID‑19 measures in the workplace. The Member further quoted from Dr Singh’s discussion of the respondent’s psychological symptoms.
The Member referred to the report of Dr George, which he noted was relied upon by the appellant and whose opinion was that the respondent suffered a recognisable psychiatric injury and he was not exaggerating his symptoms. The Member observed that Dr George “took a history of the alleged assault in April 2020” and that the respondent “felt intimidated in the workplace over several months”.[56] The Member commented that, to his credit, Dr George did not enter into a fact-finding exercise but considered that the respondent had the perception that he was under threat, felt unsafe at work and had reported the assault to police. The Member concluded that Dr George’s comments were largely consistent with those of Dr Singh, Mr Brown and Dr Takyar, and with the respondent having suffered a psychological injury of the kind referred to in Chemler.
[56] Reasons, [36].
The Member turned to the evidence of Dr Lee, who, he noted, was of the view that the test results disclosed that the respondent was exaggerating his symptoms. The Member reasoned that Dr Lee did not set out the questions posed and the findings that supported the test result, which were therefore not available for other practitioners or the Commission to consider. The Member added that Dr Lee was the only medical expert to conclude that the respondent was either malingering or exaggerating his symptoms. Further, Dr Lee had embarked upon a fact-finding process, concluding that the factual investigation was inconsistent with the respondent’s assertion as to the cause of his injury. The Member commented that Dr Lee’s approach could be described as an “advocate’s enthusiasm”[57] when he formed the view that the respondent would have been malingering when he was examined by Dr George, which was something Dr Lee could not have known. The Member further noted that Dr Lee considered that the respondent’s return to work was inconsistent with a psychiatric disorder. The Member said he rejected Dr Lee’s opinion and observed that having a psychiatric disorder did not necessarily mean that the person could not work, as opined by Dr Takyar, and the respondent had returned to work in a simpler role, with an employer who was more supportive.
[57] Reasons, [43].
The Member observed that the preponderance of the medical evidence supported the conclusion that the respondent suffered from a recognised psychological condition which was caused by stressors in the workplace. The Member considered that there was no suggestion that there was any other contributing factor to the injury other than work-related issues. He noted the presence of family issues, including the respondent’s mother’s illness, but said that the respondent continued to work until the work-related stressors came into play. He said that the focus in the medical evidence was always on the work-related matters. The Member concluded that the respondent suffered a work-related injury caused by the respondent’s perception of real events and that his employment was the main contributing factor to the injury.
The Member turned to the issue of whether the injury was wholly or predominantly caused by reasonable action taken by the appellant pursuant to s 11A of the 1987 Act. The Member’s findings in respect of the application of s 11A are not challenged in the appeal and thus it is not necessary to summarise those reasons.
The Certificate of Determination issued on 26 October 2022 records:
“The Commission determines:
1. The [respondent] suffered a psychological injury in the course of his employment with the [appellant] with a deemed date of injury of 3 April 2020.
2. The [respondent’s] employment with the [appellant] was the main contributing factor to the injury.
3. The [appellant’s] defence pursuant to s 11A of the Workers’ Compensation Act 1987 is not made out.
4. The matter is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following:
Date of injury: 3 April 2020 (deemed);
Body systems claimed: psychiatric/psychological injury, and
Method of assessment: whole person impairment.
5. The documents to be referred to the Medical Assessor to assist with their determination to include the following:
(a)this Certificate of Determination and Statement of Reasons;
(b)Application to Resolve a Dispute and attachments;
(c)Reply and attachments, and
(d)[appellant’s] Application to Admit Late Documents dated 15 September 2022 and attachments.”
GROUNDS OF APPEAL
The appellant brings six grounds of appeal, asserting errors on the part of the Member as follows:
(a) Ground One: An error of mixed fact and law in that the Member failed to find that the evidence did not establish that the respondent received an injury, as contemplated by s 4 of the 1987 Act, and that his employment with the appellant was not a substantial contributing factor to that injury, as contemplated by s 9A of the 1987 Act.
(b) Ground Two: In the alternative, an error of mixed fact and law in that the Member failed to find that the evidence did establish that any psychological injury, as contemplated by s 4 of the 1987 Act had resolved.
(c) Ground Three: An error of mixed fact and law in failing to give sufficient weight to the evidence which reliably established that, absent the assault which was found to have not occurred by the Member, the medical opinions relied on by the respondent had no basis for finding that the incident on 3 April 2020 “triggered” the respondent’s psychological condition, need for treatment, and lack of capacity for employment, i.e. the subject injury. The Member did not deal with a clearly articulated argument raised by the appellant.
(d) Ground Four: An error of law in that the Member did not identify how the respondent had satisfied the burden of proof in light of the lack of contemporaneous complaints, lack of documentary records supporting the worker’s version of events, lack of corroboration of the worker’s version by others, and ultimately an inadequate level of detail and specificity with regard to the timing and location of relevant events and what took place.
(e) Ground Five: An error of mixed fact and law in failing to acknowledge the relevance of the evidence of the respondent’s treating doctors, and that the onset of the respondent’s psychological condition, as noted at throughout the consultations with the respondent was caused by being grabbed and shoved on 3 April 2020 [which was found by the Member to have not occurred]. The Member does not explain, having rejected that allegation, on what basis he was satisfied an injury was sustained on the deemed date of 3 April 2020.
(f) Ground Six: An error of mixed fact and law in failing to make specific findings, on the basis of credit and/or probability, in respect of the evidence of the respondent and regarding the respective stressors relied upon by the respondent as causative of the subject injury.
THE LEGISLATION
Section 4 of the 1987 Act relevantly provides as follows:
“4 Definition of “injury” (cf former s 6 (1))
In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) …”
Sections 15 and 16 of the 1987 Act relevantly provide:
“15 Diseases of gradual process—employer liable, date of injury etc …
(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process:
(a)the injury shall, for the purposes of this Act, be deemed to have happened:
(i)at the time of the worker’s death or incapacity, or
(ii)if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b)compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.”
“16 Aggravation etc of diseases—employer liable, date of injury etc …
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(a)the injury shall, for the purposes of this Act, be deemed to have happened:
(i)at the time of the worker’s death or incapacity, or
(ii)if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
SUBMISSIONS
As to Grounds One and Two
The appellant’s submissions
The appellant refers to the Member’s outline of the law applicable to psychological injuries and says that it does not dispute that a perception of real events in the workplace can be sufficient to establish a work-related psychological injury. The appellant says, however, that it has always disputed in this case that the events complained of were real events, so that there was no basis for the Member to conclude that there was a work-related psychological injury. The appellant submits that the respondent’s complaints were generalised and non-specific and the appellant made those submissions to the Member, as well as that the events related to discipline and dismissal were reasonable actions.
The appellant asserts that the respondent’s credibility was a serious issue in these proceedings, demonstrated by the five different statements made by the respondent which give contradictory accounts of the same event. The appellant submits that the Member failed to make any finding about the respondent’s credibility and honesty. The appellant points to the four statements and the “show cause” letter. It submits that in the latest statement dated 11 November 2020, the respondent provided new and non-specific allegations, without indicating the time frames or the people involved, some seven months after he had ceased employment, which was not corroborated in the medical evidence.
The appellant refers to the evidence of Dr Takyar, who advised that he was not in a position to confirm the veracity of the complaints recorded in Dr Lee’s report in circumstances where Dr Takyar had not been able to examine the statements referred to by Dr Lee. The appellant contends that the only medical assessor who had access to all of the material in evidence was Dr Lee and so his opinion was provided in the “fairest climate.”
The appellant submits that the Member acknowledged that the respondent’s evidence about the alleged incident on 3 April 2020 was seriously at odds with the witness evidence and the CCTV footage and the Member concluded that he could not accept that the event occurred. The appellant submits that, despite the Member’s significant conclusion that the most serious allegation, which purportedly caused the respondent to go off work, could not be accepted, the Member proceeded to accept that the lesser events had occurred and were causative. The appellant asserts that, instead of explaining why the Member accepted the rest of the respondent’s evidence, the Member drew inferences supporting the presence of tension in the workplace between the colleagues and management, including that an alleged incident was reported to the union. The appellant submits that there was no documentary or witness evidence of such an incident being reported, yet the Member gave that occurrence significant weight.
The appellant asserts that the Member took a similar approach with the evidence from Mr Varnam that the respondent had become disruptive since joining the Health and Safety Review Committee. The appellant says that the Member did not explain why that evidence could lead to negative inferences against the appellant. The appellant also points to the Member’s observation that, when Mr Varnam had approached the respondent who was taking photographs with his mobile telephone, Mr Varnam had a preconception that the respondent was doing so in order to undermine the company. The appellant submits that the Member disregarded Mr Varnam’s explanation, which was that they were in an area where mobile telephones were not permitted to be used.
The appellant refers to a further allegation made by the respondent in relation to being threatened by the mention of a firearm by Mr Innes, which event the appellant says the medical experts had included in the history recorded that formed the basis for their opinions. The appellant submits that there was no evidence in support of this event occurring and, although the respondent said that he told the union delegate about the event, there was no evidence adduced from the delegate to that effect. Further, Mr Innes had strenuously denied the event. The appellant submits that the Member did not provide reasons as to why he either accepted or rejected that such a serious event occurred.
The appellant asserts that the Member’s criticisms of Mr Innes and Mr Varnam are unwarranted, given the contents of their statements, read as a whole.
The appellant refers to the diagnosis arrived at by Mr Brown, the respondent’s treating psychologist, and submits that the allegations recorded by Mr Brown as being causative should not be accepted, given the respondent’s lack of credibility. The appellant also refers to the history of complaints recorded by Dr Singh and contends that it could not be accepted that those events had occurred because of the issues pertaining to the respondent’s credibility.
The appellant asserts that the history recorded by Dr Singh of the respondent being subjected to verbal, and physical intimidation and aggressive behaviour from the respondent’s managers should not be accepted given the issues surrounding the respondent’s credibility. The appellant adds that the history recorded by Dr George was that the respondent ceased work because he had been shoved by Mr Innes, who had boasted of having firearms, which events were found to have not occurred.
The appellant submits that it denied liability on the basis that the events complained of by the respondent did not occur, following which the respondent attended Dr Takyar for assessment and provided a different history of events and stressors. The appellant points to various flaws in Dr Takyar’s evidence and says that Dr Takyar’s history was devoid of reference to the initial events complained of by the respondent so that his opinion was not arrived at in a fair climate.
The appellant asserts that Dr Lee was the only expert who recorded a complete history and reviewed all of the evidence and was the only expert who performed psychometric testing in order to assess the validity of the respondent’s self-reporting. The appellant points out that the results of the testing were not contradicted by other evidence, so that it was not open to the Member to “look behind” Dr Lee’s opinion, which was based on that testing.
The appellant observes that the respondent had not sought further treatment for psychiatric symptoms from his general practitioner, his psychologist or his psychiatrist since late 2020. The appellant points out that in June 2020, the respondent indicated that he would be happy to return to work two days per week, despite having complained of the toxic environment, and Dr Lee had examined the respondent on 23 November 2021, at which time the respondent had ceased treatment and had commenced full-time work.
The appellant asserts that the Member erred by accepting the respondent’s allegations without assessing the respondent’s credibility by carefully analysing the events and the circumstances surrounding the later allegations. The appellant contends that the Member failed to address the evidence pertaining to the question of whether the respondent’s employment was a substantial or main contributing factor to the injury. The appellant points to the evidence that the respondent:
(a) attended his general practitioner on 27 May 2020, complaining that he was under stress because his brother was in an intensive Care Unit because of a brain tumour;
(b) was interviewed by the investigator on 19 June 2020 and expressed concern that his brother may not survive, which was further aggravating his psychological condition;
(c) said in his statement dated 19 June 2020 that his mother was recovering from abdominal cancer and his brother was in a prolonged coma following brain surgery and was unlikely to survive, and
(d) in a document completed by the respondent on 7 January 2021 directed to NSW Roads & Maritime Services in relation to the respondent’s fitness to drive, the respondent declared that he had no mental disabilities that would affect his driving.[58]
[58] Application to Admit Late Documents dated 15September 2022, p 47.
The appellant asserts that the Member erred in fact and law in determining that the respondent suffered a psychological injury and that the respondent’s employment was a substantial contributing factor to the injury. The appellant submits, in the alternative, that the Member erred by failing to determine that the respondent had recovered from the effects of any injury.
The respondent’s submissions as to Ground One
The respondent points out that this ground involves the Member’s factual determinations and submits that the Member had the benefit of an ample factual and evidentiary basis for determining the question of causation. The respondent refers to various facts and documents which the respondent says support the Member’s conclusion.
The respondent submits that, ultimately, the atmosphere of tension in the workplace between the respondent, Mr Innes and others was substantiated beyond doubt. The respondent suggests that it is axiomatic that a tense working relationship is likely to cause stress, and that is what precipitated the respondent’s injury. The respondent says that the assault (whether it occurred or not) was the end of the process of either real or perceived bullying and even if the respondent was lacking in credit, the fact that there was tension in the workplace was borne out in the appellant’s own evidence.
The respondent contends that it was not necessary for the Member to recite every aspect of the facts in the case where causation of the injury was multifactorial. The respondent says that the main cause of the injury was real or perceived bullying.
The respondent’s submissions as to Ground Two
The respondent submits that the submissions relative to Ground One of the appeal do not point to the error alleged in Ground Two, but in any event if the injury had resolved, it would indicate that the findings of liability were made out and so, in the absence of a claim for weekly payments, the referral to a medical assessor was properly made.
As to Grounds Three and Five
The appellant’s submissions
The appellant relies on its submissions made in support of the previous grounds of appeal. The appellant points to extracts from the clinical entry made on 14 April 2020, which appears to be an incomplete conflation of entries made by both Dr Alam and Dr Li on 14 April 2020. The appellant further refers to the entry on 17 April 2020 and the respondent’s concerns recorded in that entry about Mr Innes having said that he has a gun and Mr Innes pulling the respondent’s sleeve. The appellant submits that those concerns were the cause of the respondent having ceased work after the deemed date of injury, regardless of the fact that the respondent raised other concerns much later, after those allegations were proven false.
The appellant asserts that those alleged events were the cause of the respondent ceasing work. The appellants says that, in the absence of proof that those allegations did occur, there is no causal explanation whatsoever for the respondent ceasing work. The appellant submits that all of the treating doctors, as well as Dr George, based their diagnosis and opinions on causation on the assumption that the alleged assault took place and that this incident triggered his psychological condition.
The appellant contends that Dr Takyar was silent as to why the respondent went off work and submits that the Member acknowledged that Mr Brown considered that the psychological injury resulted from the alleged assault. The appellant asserts that the Member failed to engage with this evidence and failed to give any explanation for preferring the respondent’s evidence to that of “countless other witnesses” and “failed to acknowledge the evidence provided by the other witnesses which was not disputed by the respondent.”[59]
[59] Appellant’s submissions, [63].
The appellant submits that the Member failed to afford sufficient weight to the evidence that established that there was no basis upon which the medical experts relied on by the respondent could conclude that the incident on 3 April 2020 “triggered” the respondent’s injury and consequent incapacity and need for treatment. The appellant adds that the Member did not deal with its clearly articulated submission to that effect.
The respondent’s submissions as to Ground Three
The respondent submits that attribution of the weight to be afforded to evidence cannot amount to an error of fact or law. The respondent asserts that the appellant is merely cavilling with the Member’s factual finding.
The respondent’s submissions as to Ground Five
The respondent contends that this ground of appeal is misconceived. He submits that the Member did not find that the respondent suffered an injury with a deemed date of 3 April 2020. The respondent refers to s 15 and s 16 of the 1987 Act, which fixes a date of injury but is not a factual finding in relation to when the injury occurred.
As to Ground Four
The appellant’s submissions
The appellant submits that by 19 June 2020, the respondent said that he was happy to return to work two days per week and was getting back to his former family and social pastimes. The appellant contends that this evidence is inconsistent with the subsequent history recorded by Dr Takyar that the respondent was uncomfortable for months working in a toxic environment. The appellant submits that on 24 June 2020, Dr Singh also recorded that the respondent’s symptoms were improving. The appellant asserts that the Member accepted “such open-ended, vague and uncorroborated allegations”[60] without having analysed the events relied upon by the respondent and without assessing the respondent’s credibility and the circumstances in which the later allegations presented.
[60] Appellant’s submissions, [68].
The appellant asserts that there was no mention of racist slurs or sexist comments in any of the treatment providers’ notes or in the reports of Dr George and there were no dates or times identified as to when those events were supposed to have occurred. The appellant provides a long discourse as to why Dr Takyar’s opinion was not provided in a fair climate.
The respondent’s submissions
The respondent asserts that the Member’s reasons were sufficient. He submits that the Member set out the content of the competing medical cases, including that of Dr Takyar and Dr Singh, as well as the evidence provided by Dr Lee and Dr George, before arriving at his conclusion that he was satisfied that the respondent suffered a work-related psychological injury, to which his employment was the main contributing factor.
As to Ground Six
The appellant’s submissions
The appellant asserts that the Member did not assess the respondent’s credibility and asserts that the respondent had told deliberate lies about Mr Innes. The appellant submits that in circumstances where the respondent’s evidence was not independently supported, the Member was required to take great care in making a determining that the respondent’s evidence could be accepted. The appellant contends that the Member failed to do so. The appellant asserts that the Member did not explain what evidence was accepted or rejected.
The appellant adds that there was no documentary record of any contemporaneous complaints made by the respondent about his treatment at work. The appellant also says that there is nothing in the respondent’s statement evidence about other stressors in his life, such as his mother’s illness and that of his brother. The appellant contends that the Member failed to explain why he was persuaded that most of the events complained of by the respondent actually happened and failed to make specific credit findings in relation to the evidence and the stressors relied upon as being causative of the injury.
The respondent’s submissions
The respondent submits that this ground of appeal is indistinguishable from Ground One.
THE RELIEF SOUGHT
The appellant submits that the appeal should be upheld, and the Member’s Certificate of Determination set aside. The appellant further seeks an award for the appellant in respect of the allegation of injury with a deemed date of 3 April 2020.
The respondent seeks to have the appeal dismissed.
CONSIDERATION
Ground One: An error of mixed fact and law in that the Member failed to find that the evidence did not establish that the respondent received an injury, as contemplated by s 4 of the 1987 Act, and that his employment with the appellant was not a substantial contributing factor to that injury, as contemplated by s 9A of the 1987 Act
The appellant asserts that there was insufficient evidence before the Member for the Member to determine that the respondent suffered an injury pursuant to s 4 of the 1987 Act and that the respondent’s employment was a substantial contributing factor to the injury.
The case presented by the respondent was that he suffered a psychological injury, which was a disease injury pursuant to s 4(b)(i) of the 1987 Act, that was deemed to have occurred on 3 April 2020.[61] In accordance with s 4(b)(i), the respondent was required to satisfy the test of whether his employment was the main contributing factor to the injury, which is a stricter test than that of a substantial contributing factor.
[61] ARD, p 8, “Injury Details”.
The appellant refers to the matters placed in issue that:
(a) the events complained of by the respondent were not real events;
(b) the respondent’s credit was seriously in issue;
(c) the respondent’s medical evidence was not produced in a “fair climate”, and
(d) the respondent’s evidence was not corroborated.
In addressing the question of whether the events complained of by the respondent were actual events, the Member firstly referred to the various authorities providing guidance in respect of what is sufficient to establish that a psychological injury occurred, in circumstances where the respondent perceived that the events were hostile. He correctly observed that the authorities permitted a finding that an injury occurred where the worker perceives those real events to be hostile. The Member did not accept that the alleged assault on 3 April 2020 occurred but considered that that finding was not, of itself, determinative of the case.
The Member referred to the respondent’s complaints that:
(a) he felt ridiculed and humiliated by the criticisms made by Mr Varnam, Mr Innes and other co-workers in relation to his precautions against COVID-19;
(b) he felt threatened by Mr Innes in an incident in December 2019;
(c) he was subjected to racist and sexist comments;
(d) profanity was common, and
(e) the incident on 3 April 2020 was “the last straw.”
The Member proceeded to analyse the factual evidence recorded in the various statements provided by the appellant. The analysis is summarised by me at [104] to [106] and [111] above. He determined that that evidence supported the respondent’s assertion that various incidents did in fact occur in the workplace and that there existed some tension and conflict in the workplace. He provided an extensive evaluation of that factual evidence in support of his conclusion. The conclusion reached by the Member in respect of that factual evidence was open to the Member on that objective evaluation of the evidence.
The Member turned to the medical evidence. The Member noted that Mr Brown’s opinion was consistent with that of Dr Takyar. The Member observed that in relation to the question of causation, Dr Takyar recorded that the respondent had experienced difficulties with his co-workers and manager, felt that he was being “pushed out” of the job, and was exposed to inappropriate racial and sexual comments in the workplace that were tolerated by the appellant. The Member referred to Mr Brown’s opinion on causation, which included what the Member described as having referred to:
“the incident on 3 April 2020 when the [respondent] was told by a manager that he could not take photographs and then the alleged assault by Mr Innes together with other issues, including a culture of bullying, aggressive management styles, feeling targeted in his role as an HSR committee member and unsafe practices relating to COVID 19.”[62]
[62] Reasons, [31].
The Member further analysed the histories recorded and the opinions expressed by Dr Singh and Dr George.
It is relevant that the evidence before the Member included the clinical notes of the respondent’s general practitioner, Dr Li, which disclosed that the respondent attended Dr Li on 14 April 2020 and Dr Li recorded an extensive history of workplace difficulties largely consistent with the case presented by the respondent in these proceedings. That history is reproduced above at [65]. It must also be noted that the Member correctly found corroboration from the appellant’s own witnesses that many of the events did actually occur, however they were perceived by the various witnesses.
The appellant submits that the respondent’s credibility was seriously in issue. It was clear from the Member’s reasons that he was alive to the fact that the respondent’s evidence was unreliable, which prompted him to consider the appellant’s evidence as to what did and did not occur. It was open to the Member to take that path.[63]
[63] Devries v Australian National Railways Commission [1993] HCA 78.
The appellant further submits that the respondent’s medical evidence was not based upon a “fair climate.” That is, the histories recorded by the respondent’s medical experts were wrong. In less detail, Mr Brown and Dr Singh recorded histories not inconsistent with that of Dr Li. Although the respondent’s perception of what occurred in the incident involving Mr Innes on 3 April 2020 was contradicted by the appellant’s evidence and not accepted by the Member, the Member found support for other aspects of the respondent’s complaints which were recorded by the treatment providers as being causative. Indeed, the evidence when read as a whole, indicates that on 3 April 2020, Mr Innes did approach the group of drivers in a forthright manner and enforced social distancing rules and Mr Varnam did take issue with the respondent for taking photographs on his mobile telephone. In that context, and on the basis of the above evidence, the appellant cannot say that there was no basis upon which the Member could accept the opinions of the experts that the respondent’s employment was causative of the injury. The Member notably placed some reliance on the opinion of Dr George, the appellant’s expert, who was appraised of the fact that the alleged physical assault did not occur yet maintained that the respondent’s psychological condition was nonetheless work-related. The Member provided detailed and valid reasons for rejecting the opinion of Dr Lee, whose opinion was entirely inconsistent with the conclusions reached by all of the other medical experts that the respondent suffered from a diagnosable psychological condition and that the condition was caused by events in the workplace.
The histories recorded by the medical experts are not required to be precisely in accord with the proven facts.[64] In Paric v John Holland (Constructions) Pty Ltd[65] the Court (Mason CJ, Wilson, Brennan, Deane and Dawson JJ) 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. 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 ... 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.”
[64] Ramsay v Watson [1961] HCA 65.
[65] [1985] HCA 58, [9].
Ultimately, the acceptance or rejection of evidence is generally a matter within the province of the primary decision maker. Having found the primary facts, it was open to the Member to draw a particular inference from those facts, which involves an evaluative judgment. It is not enough that the Presidential member may have drawn a different inference, the fact of the Member’s decision must be displaced. It must be shown that the Member was wrong.[66]
[66] Raulston v Toll Pty Ltd [2011] NSWWCCPD 25.
I do not consider that the Member erred in his evaluation of the primary facts or in drawing those inferences from those facts. In those circumstances the appellant has failed to establish error on the part of the Member sufficient to disturb the Member’s ultimate conclusion and this ground of appeal fails.
Ground Two: In the alternative, an error of mixed fact and law in that the Member failed to find that the evidence did establish that any psychological injury, as contemplated by s 4 of the 1987 Act had resolved
The appellant submits that, if the respondent was injured as alleged, the Member erred by failing to determine that the respondent had recovered from the effects of his injury. The respondent submits that, on the basis of his submissions made in respect of Ground One, the appellant’s ground of appeal is not made out. The respondent further submits that, even if it were made out, the appellant would not enjoy any relief because, in the context of a claim pursuant to s 66 of the 1987 Act and absent a claim for weekly payments, a conclusion reached that the respondent had recovered from the injury was irrelevant.
I have reviewed the transcript of proceedings before the Member and it is not readily apparent that a submission that the respondent had recovered from the effects of any injury was made to the Member. Extrapolating from the transcript of proceedings, the submissions that could potentially be considered relevant to such submissions were as follows:
(a) In relation to a document (Fitness to Drive Medical Assessment) signed by the respondent on 7 January 2021,
“It’s signed by the [respondent] … on 7 January 2021. There’s only two conclusions, we say, that can properly be drawn from that document. One, the [respondent] does not experience the psychological condition of which he complains or, two, knowing he has that condition, he has, for reasons only known to himself, deliberately concealed it for his own self-gain in renewing his licence.
My friend says the social media material including at page 12 of the [Application to Admit Late Documents] does not take things any further. Again it is a part of the jigsaw in the sense that it shows the [respondent] out and about and, indeed, socialising as at 4 January 2022 which pales in comparison to his reported restrictions to Dr Takyar where he says that he needs prompting to be bathed and has difficulty around the home”[67], and
(b) “I can’t find the reference but at one stage when confronted with the opinion of Dr George that, well, the diagnosed condition ought to resolve relatively quickly when removed from the work environment acknowledges as much and suggests, well, perhaps an alternative diagnosis is possible.”[68]
[67] Transcript of Proceedings, (T), T 44.6–22.
[68] T 46.24–29.
None of those submissions squarely raises an argument that if the respondent did suffer a psychiatric injury, he had at some stage recovered from the effects of the injury. The legal position with respect to raising an argument on appeal in circumstances where that argument was not squarely raised below was summarised by McColl JA (Ward JA and Tobias AJA agreeing) in Mamo v Surace:[69]
“A party is bound by the conduct of his or her case. It has long been the law that, except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him or her, to raise on appeal (even one by way of rehearing) a new argument which, whether deliberately or by inadvertence, he or she failed to put during the hearing when there was an opportunity to do so.”[70]
[69] [2014] NSWCA 58 (Mamo).
[70] Mamo, [75].
The Member cannot be seen to have fallen into error in circumstances where the argument that the respondent had recovered from the effects of the injury now put forward by the appellant was not the subject of submissions at arbitration.[71] In any event, the respondent’s claim was limited to a claim in respect of his whole person impairment. In those circumstances, the Member’s task was to determine the questions of whether the respondent suffered the injury (s 4()), whether the respondent’s employment was the main contributing factor to the injury (s 4(b) and whether the respondent was precluded from recovering compensation because of the application of s 11A of the 1987 Act. Once those “liability” issues were determined, the Member was required to refer the dispute in respect of the respondent’s whole person impairment to the medical assessor.[72] It follows that Ground Two of the appeal fails.
Ground Three: An error of mixed fact and law in failing to give sufficient weight to the evidence which reliably established that, absent the assault which was found to have not occurred by the Member, the medical opinions relied on by the respondent had no basis for finding that the incident on 3 April 2020 "triggered" the respondent’s psychological condition, need for treatment, and lack of capacity for employment, i.e. the subject injury. The Member did not deal with a clearly articulated argument raised by the appellant
[71] Brambles Industries Limited v Bell [2010] NSWCA 162, [30].
[72] Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264; Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79.
The appellant relies upon his submissions made in respect of Ground One of the appeal. I have not accepted those submissions and Ground One of the appeal failed.
The appellant further submits that in the absence of proof that the assault on 3 April 2020 occurred and of proof that the threat was made by Mr Innes that he had a gun, there was no cause established for the respondent to go off work after 3 April 2020. The appellant asserts that the other allegations were made later, after those allegations were found to be false, and that all of the treating doctors, as well as Dr George, attributed the onset of the respondent’s condition to those false allegations.
I do not accept the appellant’s submissions, which have no foundation in the evidence. All of the medical experts, apart from Dr Lee, took a history of a culture of bullying, aggressive management styles, the respondent feeling targeted in his role as a Health and Safety representative, and perceived unsafe practices relating to COVID-19.
Certificates of capacity issued by Dr Li between 14 April 2020 and 19 June 2020 all referred to the respondent’s complaints as having been “bullied at work with anxiety and he is concerned with covid 19 protection”.[73] Mr Brown recorded on 9 June 2020 that the respondent’s complaint was essentially that he felt harassed about having work breaks and stops and that management was aggressive and hostile towards him, noting also that the respondent had been taking photographs in a restricted zone and the respondent felt targeted by management.[74] Mr Brown diagnosed an adjustment disorder and concluded that the respondent’s employment was a substantial contributing factor to his injuries. Dr Singh also recorded a similar history of stressors, in his report dated 24 June 2020, quoted above at [75]. While Dr George referred to the event of the respondent feeling threatened on 3 April 2020 as the “immediate precipitant”, he also referred to the various other incidents and mistakenly attributed the alleged physical assault as having occurred on 3 March 2020. He diagnosed the respondent as having suffered from a diagnosable psychological/psychiatric injury, to which the employment substantially contributed. With the knowledge that the alleged physical event did not occur, he opined that the respondent’s perception was that he was under threat in the workplace and did not feel safe in the workplace.[75]
[73] ARD, pp 105–138.
[74] ARD, p 59.
[75] Reply, pp 124–125.
The Member’s preference for the evidence provided by those medical experts was discussed under Ground One of the appeal and the Member’s acceptance of that evidence was open to him.
The appellant asserts that the Member did not deal with its clearly articulated submission that there was no basis for the conclusion reached by the medical experts that the incident on 3 April 2020 “triggered” the respondent’s injury. None of the medical experts attributed the injury solely to the alleged physical assault on 3 April 2020 and the Member did not reach such a conclusion. Even if the appellant made a clear submission to that effect, it was irrelevant in the light of the medical opinions expressed and was not a fair representation of those opinions. Thus, any failure to consider the submission cannot affect the outcome in this case and does not constitute an appealable error.[76] As the respondent submits in Ground Five, the deemed date of injury, as provided for in ss 15 and 16 of the 1987 Act, is a method for fixing a date of injury in respect of a disease injury occurring over a period of time pursuant to s 4(b) of the 1987 Act, not an indicator that an injury occurred on that date.
[76] Walshe v Prest [2005] NSWCA 333; Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478.
The appellant has failed to establish error of the kind required to succeed on this ground of appeal and the ground of appeal fails.
Ground Four: An error of law in that the Member did not identify how the respondent had satisfied the burden of proof in light of the lack of contemporaneous complaints, lack of documentary records supporting the worker’s version of events, lack of corroboration of the worker’s version by others, and ultimately an inadequate level of detail and specificity with regard to the timing and location of relevant events and what took place
The appellant refers to the evidence that by mid-June, the respondent’s condition was improving, which the appellant says is inconsistent with the history recorded by Dr Takyar that the respondent was “uncomfortable for months in a ‘toxic work environment’.”[77] The appellant does not explain how the fact that the respondent’s condition was improving after being away from the reported stressors and following treatment from a general practitioner, a psychologist and a psychiatrist constitutes an inconsistency with the history of how the injury occurred.
[77] Appellant’s submissions, [66].
The appellant further refers to the absence of complaints of racism and sexist slurs in the evidence from the treatment providers and that of Dr George, which complaints were alluded to by Dr Takyar. I do not accept that the Member went so far as to include the allegation of racist remarks and sexist comments in the conclusion that there was tension in the workplace and a strained relationship between the respondent and the appellant’s management. The appellant appears to be intimating that because those complaints were not made until sometime later, they could not be true. It should be noted that there was no evidence adduced by the appellant to counter the respondent’s evidence of this issue but in any event, the Member accepted the earlier histories recorded by the treatment providers and Dr George, which evidence was of itself sufficient to found the Member’s conclusion.
For the reasons expressed above in respect of each of the earlier grounds of appeal, the Member clearly and correctly identified the evidence in support of his conclusions. He included in his deliberations the corroborative statement evidence from the appellant’s witnesses, the complaints made to the various treatment providers at the initial consultations, the opinions of those treatment providers and the opinion of Dr George, the appellant’s own qualified expert. That evidence adequately discharged the respondent’s onus of proof. This ground of appeal fails.
Ground Five: An error of mixed fact and law in failing to acknowledge the relevance of the evidence of the respondent's treating doctors, and that the onset of the respondent's psychological condition, as noted at throughout the consultations with the respondent was caused by being grabbed and shoved on 3 April 2020 [which was found by the Member to have not occurred]. The Member does not explain, having rejected that allegation, on what basis he was satisfied an injury was sustained on the deemed date of 3 April 2020
This ground of appeal is in essence the same complaint as that asserted in Ground Three, which has not succeeded. It follows, for the same reasons, that this ground of appeal is not made out and fails.
Ground Six: An error of mixed fact and law in failing to make specific findings, on the basis of credit and/or probability, in respect of the evidence of the respondent and regarding the respective stressors relied upon by the respondent as causative of the subject injury
The appellant submits that there is nothing in the respondent’s statement evidence about other stressors in his life, such as his mother’s illness and that of his brother. It is not clear what effect the appellant says that that evidence should have had or why it needed to be addressed in the respondent’s statement evidence when the medical evidence disclosed that the respondent was coping with his mother’s illness[78] and his brother’s serious illness did not present until after the respondent had ceased work and was diagnosed with his psychological condition.[79]
[78] Report of Dr George dated 8 May 2020, reply, p 118.
[79] Dr Li’s clinical notes, entry dated 27 May 2020, ARD, p 149; Mr Brown’s notes, 18 May 2020, ARD p 59.
The Member noted the presence of family issues, including the respondent’s mother’s illness, but said that the respondent continued to work until the work-related stressors came into play and the focus in the medical evidence was always on the work-related matters. The Member concluded that the respondent suffered a work-related injury caused by the respondent’s perception of real events and to which his employment was the main contributing factor. The Member thus considered other non-work-related potential causes and provided reasons as to why he did not consider those relevant to the question of injury and to the assessment of the main contributing factor to the injury.
The appellant raises issues of purported error on the part of the Member in assessing the respondent’s credibility, in failing to explain which evidence was accepted and which was rejected, and failing to explain why he was persuaded that the events relied upon (apart from the alleged assault) actually occurred. Those purported errors are dealt with in Ground One and it is not necessary to repeat those reasons. Appeal Ground One failed and it follows that this ground of appeal is not made out and also fails.
CONCLUSION
The appellant’s appeal fails to establish any error on the part of the Member. The Member’s Certificate of Determination is confirmed, and the appeal is dismissed.
DECISION
Leave to appeal the Member’s interlocutory decision is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998.
The Member’s Certificate of Determination dated 26 October 2022 is confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
19 October 2023
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