Trustees of the Roman Catholic Church for the Diocese of Lismore v Duncan - [2021] NSWPICPD 12

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Trustees of the Roman Catholic Church for the Diocese of Lismore v Duncan [2021] NSWPICPD 12
APPELLANT:	Trustees of the Roman Catholic Church for the Diocese of Lismore
RESPONDENT:	Craig Duncan
INSURER:	Catholic Church Insurances Ltd
FILE NUMBER:	A1-3888/20
MEMBER:	Mr P Sweeney
DATE OF MEMBER’S DECISION:	27 October 2020
DATE OF APPEAL DECISION:	7 May 2021
CATCHWORDS:	WORKERS COMPENSATION – Section 11A(1) of the Workers Compensation Act 1987; defence based on allegedly reasonable action of the employer in respect of discipline; section 4(b) of the 1987 Act; application of the ‘disease’ provisions
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Stockley, counsel
Astridge and Murray Solicitors
Respondent:
Mr B G McManamey, counsel
Brydens Lawyers Pty Ltd
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 27 October 2020 is confirmed.

INTRODUCTION AND BACKGROUND

Craig Duncan (the respondent) was a qualified solicitor and he worked as such for much of his life, most recently in 2007. He was employed from 2007 to 2018 by the Trustees of the Roman Catholic Church for the Diocese of Lismore (the appellant) teaching in the department of Human Society and its Environment at the St John Paul College in Coffs Harbour. The subjects he taught included year 12 legal studies.[1]
[1] Respondent’s statement 10.6.20, [4]–[7], [10]–[11], Application to Resolve a Dispute (ARD), pp 1–2. Duncan v Trustees of the Roman Catholic Church for the Diocese of Lismore [2020] NSWWCC 367 (the reasons).
There was an incident in 2015 in which the respondent felt intimidated, by an interview and surrounding events, involving parents who complained about his showing a video to a class that depicted a person who died after being tasered by police.[2] Later in the same year, a group of students posted defamatory images on Snapchat of a number of teachers, including the respondent. One student was asked to leave the school as a result. The respondent said he felt unsupported by “management regarding consistent issues with misbehaving students”.[3] There was an incident in Term 3 of 2015 in which a girl accused the respondent of making an inappropriate remark prior to a geography excursion. The respondent denied making the remark and the allegation was dismissed.[4] The respondent was off work for the “majority of Term 4” due to “stress and anxiety”.[5] He said the allegations and complaints affected his mental health. He said the school took no action to support him and had “no policy for dealing with bad behaving students”.[6] He said a student struck him on the school oval, on 8 March 2017. He said he reported the matter to the Deputy Principal who took no action.[7]
[2] Respondent’s statement 10.6.20, [16]–[17], ARD, pp 2–3.
[3] Respondent’s statement 10.6.20, [21], ARD, p 3.
[4] Respondent’s statement 10.6.20, [22], ARD.
[5] Respondent’s statement 10.6.20, [18]–[20], ARD, p 3.
[6] Respondent’s statement 10.6.20, [25], ARD, p 4.
[7] Respondent’s statement 10.6.20, [26], pp 4–5.
The respondent arranged for his daughter, who was a lawyer with expertise in international law, to assist in his Year 12 legal studies class on 7 March 2018. This had occurred previously without difficulty. On 7 March 2018, a number of students were disruptive and were rude to the respondent’s daughter. Students threw lollies and interrupted the lesson, which “quickly turned into a mess”. The respondent finished the lesson early; he said he was “shocked by their misbehaviour”. On 8 March 2018, a student told him that one of the disruptive students was telling people she had “out argued ‘Duncan’s daughter’ and was proud of disrupting the class”. On Friday 9 March 2018, the respondent told his legal studies class that he was “disgusted with their behaviour”. The respondent referred to the behaviour of a number of students. He said he told the two most disruptive girls “that their behaviour in particular was unacceptable”.[8]
[8] Respondent’s statement 10.6.20, [28]–[30].
On Monday 12 March 2018, “a series of very serious allegations were made against [the respondent] by the two main girls [he] addressed in [his] last class”. These included physical assaults, belittling students, holding a pen against a student’s throat and wrapping a computer cord around her neck. The respondent said that he felt “distressed and anxious”. He was stood down on special leave while an investigation was undertaken. He heard that rumours were circulating that he had been “kicked out” because he was “touching up girls”. He said that he “received no support from the Principal or Deputy Principal during this process”. [9]
[9] Respondent’s statement 10.6.20, [31]–[36].
The respondent did not accept the substance of the allegations.[10] Mr Fairweather, the first person appointed to investigate the allegations, withdrew from the role after the respondent accused him of bias.[11] Evidence became available from two other students in the legal studies class that was inconsistent with that on which the allegations were based and suggested the possibility of collusion between the complainants.[12] One of these two students gave a statement to the investigating body, the other made her concerns known to the Principal.
[10] Respondent’s statement 14.7.20, ARD, pp 12–15.
[11] Respondent’s statement 10.6.20, [37], ARD, p 6.
[12] Witness statements 2.5.18 & 9.5.19, AALD 10.9.20, pp 23–25, 27–30. Witness statement AALD 10.9.20, pp 31–35.
The Principal wrote to the respondent on 23 November 2018, advising that all four of the allegations were sustained. The respondent was required to show cause why his employment should not be terminated.[13] The respondent replied on 29 November 2018, submitting that his employment should not be terminated.[14] His employment was terminated on 10 December 2018.[15]
[13] ARD, pp 50–51.
[14] ARD, pp 52–54.
[15] Application to Admit Late Documents (AALD) 10.9.20, p 19.
The respondent’s union wrote to Ms Youngberry, the Head of Human Services at the Catholic Schools Office, on 14 December 2018,[16] challenging the various allegations. The Catholic Schools Office advised the respondent’s union in writing on 25 March 2019 that the result regarding allegation 2, “reportable sexual misconduct – crossing professional boundaries” was changed from “sustained” to “not sustained insufficient evidence”.[17] The Diocese of Lismore, Chancery wrote to the respondent’s union on 8 August 2019. The Diocese said it had taken external legal advice and the result in respect of allegation 4, assault wrapping a computer cord around a student’s neck, was changed to “Not sustained – insufficient evidence”.[18]
[16] AALD 10.9.20, pp 14–18.
[17] AALD 10.9.20, p 10.
[18] AALD 10.9.20, p 11.
Ms Spraggs, a senior investigation officer with the Office of the Children’s Guardian (OCG), wrote to the respondent on 8 September 2020[19] regarding his “complaint concerning St John Paul College and the Catholic School’s Office of the Diocese of Lismore”. The complaint was that the investigation did not provide the respondent “with procedural fairness, was biased and in breach of the rule of law”. The OCG noted the findings in respect of allegations 2 and 4 were overturned on Diocesan review. It noted the interest of the OCG was whether the conduct met the threshold for a report to its Working with Children Check arm. It was a matter for the Diocese whether the conduct amounted to misconduct, and any consideration by the Diocese was not subject to review by the OCG. The OCG said that the findings notified by the Diocese did not meet the reporting threshold. The OCG recommended that the finding in respect of allegation 3, conduct causing psychological harm to a child, did not produce sufficient evidence of harm, and it suggested the Diocese reconsider that adverse finding. The OCG noted a breach of the rules of procedural fairness, in that the Diocese, on 27 September 2018, advised it intended finding allegation 4 not sustained due to lack of evidence, and then sustained that allegation without indicating why or giving the respondent “an opportunity to respond to the amended finding”.[20]
[19] AALD 10.9.20, pp 19–22.
[20] AALD 10.9.20, p 21.
The OCG noted that it had “suggested that the Diocese reconsiders the sustained reportable conduct findings made against [the respondent].” It said that, although it had requested this, it “cannot direct the Diocese to overturn the adverse findings”.[21]
[21] AALD 10.9.20, pp 21–22.
The respondent submitted claim forms for workers compensation dated 13 October 2018[22] and 2 December 2018.[23] The respondent’s solicitors made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), together with weekly payments, in a letter dated 26 September 2019.[24] The appellant’s insurer issued a dispute notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 6 December 2019. It disputed the existence and extent of any entitlement. It relied on s 11A of the 1987 Act on the basis that any psychological injury was wholly or predominantly caused by the appellant’s reasonable action in respect of “performance appraisal and/or discipline and/or dismissal”.[25]
[22] Reply, pp 87–90.
[23] Reply, pp 91–99.
[24] ARD, pp 73–74.
[25] Reply, pp 102–110.
These proceedings were commenced on 14 July 2020 and were listed for an arbitration hearing on 21 September 2020. Mr McManamey appeared for the respondent and Mr Saul for the appellant. There were no applications to call oral evidence. Both counsel addressed and the Member reserved his decision. The Workers Compensation Commission issued a Certificate of Determination dated 27 October 2020 accompanied by the reasons. The ‘injury’ finding was that the respondent “suffered psychological injury in the course of his employment on and prior to 13 March 2018, which was further exacerbated by an investigation after that time”. There was a finding that the “psychological injury was predominantly caused by the [appellant’s] actions with respect to discipline, but the [appellant] has not proven that its actions were reasonable in accordance with section 11A(1)”. The s 11A(1) defence accordingly failed. There was an award for weekly payments together with s 60 expenses. The appellant appeals against that decision.

TRANSITIONAL MATTERS

After the current appeal was lodged, the Workers Compensation Commission was abolished.[26] The matter now comes before the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act, from 1 March 2021.[27] The 2020 Act amended certain parts of the 1998 Act. Relevantly, the arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission. The amendments allow for appeals from decisions of the members of the Personal Injury Commission to a Presidential member of the Workers Compensation Division of the Personal Injury Commission in accordance with s 352 of the 1998 Act.
[26] Clause 3 of Div 2 of Pt 2 of Sch 1 of the Personal Injury Commission Act 2020 (the 2020 Act).
[27] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.

ON THE PAPERS

Section 52(3) of 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 without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE MEMBER’S REASONS

The Member noted the issue was whether the conceded psychological injury was “wholly or predominantly caused by reasonable action taken, or proposed to be taken, by [the respondent’s] employer in respect of performance appraisal and/or discipline and/or dismissal”.[28] He noted the appellant’s submission that the initial WorkCover certificate recorded a date of injury of 13 March 2018, and described the injury as occurring when the respondent was “stood down by school as a result of pupil allegations”. The appellant submitted the injury occurred when “the allegations and the disciplinary proceedings have commenced”. The appellant submitted, consistent with Northern New South Wales Health Network v Heggie,[29] that it was unnecessary to consider the appellant’s acts or omissions after the respondent was given notice of the allegations and stood down. The appellant submitted the respondent had recovered from the effects of any earlier employment related psychological injury.[30]
[28] Reasons, [4]–[5].
[29] [2013] NSWCA 255 (Heggie).
[30] Reasons, [11]–[18].
The Member referred to the respondent’s submissions. There were numerous incidents between 2007 and 2018 which cumulatively caused the respondent to believe the school executive was unsupportive of him. There were multiple causes of the psychological injury. Following the allegations in 2018, the respondent did not obtain a medical certificate until 21 May 2018, it was then the injury was identified and diagnosed. The respondent submitted it was appropriate to look at “the entirety of the actions” with respect to discipline. In any event, the appellant’s actions were not reasonable. The appellant’s failure to interview all members of the class, one of whom had subsequently suggested collusion by the complainants, indicated it was conducting a “biased witch hunt”.[31] The respondent referred to the letter dated 8 September 2020 from the OCG. None of the allegations was reportable under the Ombudsman Act 1974. A review by an external investigator and a legal firm overturned two of the findings. Reporting the matter to the police involved “massive over-kill”. “[T]he investigation reached a ‘pre-determined outcome’ and constituted a complete denial of fairness”.[32]
[31] Reasons, [19]–[22].
[32] Reasons, [23]–[24].
The Member summarised the evidence of the respondent,[33] Mr Fairweather[34] and Ms Youngberry.[35] It is unnecessary to repeat those passages here. The Member set out a passage from [59] of Heggie that summarises many of the principles governing the application of s 11A(1) of the 1987 Act.[36]
[33] Reasons, [27]–[42].
[34] Reasons, [43]–[44].
[35] Reasons, [45]–[53].
[36] Reasons, [61].
The Member said the “first issue is to delineate the acts of the [appellant] with respect to discipline, which caused or materially contributed to the [respondent’s] injury”. He accepted 13 March 2018 was “an important date”, the respondent said that he was “overwhelmed”, on the medical evidence there was “significant psychological trauma on that day”. The Member doubted the respondent’s injury was “unaffected by subsequent events so that the [appellant’s] actions after that date are irrelevant”. The investigation “undoubtedly arose out of [the respondent’s] employment”. The Member referred to the medical evidence and concluded that, following the “initial psychological insult” on 13 March 2018, the respondent “made an incomplete but significant recovery”.[37]
[37] Reasons, [62]–[68].
The Member referred to notes from Dr Kennedy which indicated that, in September 2018, the respondent “believed the allegations against him had been ‘dropped’”. The respondent was prepared to return to teaching on 16 October 2018 at his former school, for financial reasons.[38] The Member said that, as the inquiry progressed and the outcome was conveyed to the respondent, “his psychological health appears to have deteriorated markedly”.[39] The Member found that “the investigation process and its outcome materially contributed to the [respondent’s] psychological injury … the continuing investigation perpetuated and aggravated the [respondent’s] psychological condition”. The Member described this as “consistent with the, admittedly slender, contemporaneous evidence”.[40] The Member referred to the opinions of Dr Roberts and Associate Professor Robertson, the psychiatrists qualified by the parties. He concluded that “the actions of the [appellant] which caused the [respondent’s] psychological injury include the investigation and the [appellant’s] actions consequent upon it”.[41]
[38] Reasons, [69].
[39] Reasons, [69]–[70].
[40] Reasons, [71]–[72].
[41] Reasons, [72]–[77].
The Member then dealt with whether the relevant actions of the appellant were the sole or predominant cause of the psychological injury. After discussing the causative roles of various events,[42] the Member found that “the actions of the [appellant] in respect of discipline from 12 March 2018 were the predominant cause of the [respondent’s] psychological injury”.[43]
[42] Reasons, [78]–[84].
[43] Reasons, [85].
The Member turned to the issue of ‘reasonableness’. He observed that three students in the respondent’s class made complaints and were prepared to sign statements. The appellant was obliged to deal with the complaints in a formal manner. The Member said that the appellant had not proved that its actions in respect of discipline were reasonable. He said the “disciplinary process was flawed from the beginning”. It was “assumed or accepted by the [appellant] that there was a ‘sexual’ element involved in the allegations or they otherwise fell within the definition of ‘a reportable allegation’ or ‘reportable conduct’ in the repealed Pt 3A of the Ombudsman Act 1974”. He said this was consistent with the evidence of Ms Youngberry. The appellant’s conclusion that the allegations were ‘notifiable’ and ‘reportable’ was important to the potential outcome for the respondent. “[F]indings of reportable conduct were likely to prevent the [respondent] from teaching again.”[44]
[44] Reasons, [91]–[94].
Ms Spraggs from the OCG, in the letter dated 8 September 2020, advised that allegation 3 could not constitute behaviour that caused psychological harm to a child, as there was no evidence of psychological harm. The Member described this as “self-evident”. In respect of allegation 1, Ms Spraggs said that the NSW Ombudsman, on 19 August 2019, informed the OCG that “the sustained findings notified to it by the diocese did not, in our view, meet the reporting threshold to that office”. The Member said that there was “considerable doubt, on the evidence before the Diocese, whether it should have commenced an investigation on the basis that the complaint that the [respondent] belittled a student in class might constitute a reportable conduct under the Ombudsman Act 1974”.[45] In respect of allegations 2 and 4 the Member said:
“Further, the evidence in respect of allegations 2 and 4 was so unsatisfactory that it is difficult to imagine that it could prove that the substance of either allegation occurred or that they constituted sexual misconduct in the case of the former or assault in the case of the latter. The finding that these allegations was sustained was, of course, subsequently overturned on review and the report to the Ombudsman withdrawn.”[46]
[45] Reasons, [95]–[96].
[46] Reasons, [97].
The Member said he was not persuaded that the investigation process commenced by the appellant was reasonable. He was left in doubt regarding whether the notification to the Ombudsman and report to the police were reasonable actions. It was probable that Mr Fairweather, Ms Youngberry and other Diocesan employees believed that it was. This was insufficient, “the test is an objective one”. The Member said that, on both his analysis and that of Ms Spraggs, “at least three of the allegations [were] highly unlikely on the available evidence to be allegations of reportable conduct”.[47]
[47] Reasons, [98]–[99].

The Member said that the “process by which the [appellant] obtained the evidence upon which it launched the investigation was also flawed”. The Member referred to statements given by Ms W and Ms S, students in the legal studies class. That of Ms W was dated 9 May 2019 and was furnished to those investigating the allegations. It included:
“Very few students from a large class were interviewed, the only ones being those that made complaints and myself. I was only interviewed because I requested that I was after being appalled [sic] by the unfounded accusations made and by the fact that only those making complaints were being interviewed.”
More students from the class should have been interviewed outside of the circle who were writing their statements together.”[48]
[48] Reasons, [100].
The Member noted that Ms W was not interviewed until 2 May 2018. He said:
“Both Ms W and Ms S suggest the possibility of collusion between the complainants in the preparation of their statements. Both categorically deny that any of the events alleged by the complainants took place in the legal studies class.”
The Member said “there is some substance in the assertion that more students should have been interviewed”.[49] He said that if the appellant had the evidence of Ms W and Ms S at an earlier stage, “it may have obtained witnesses statements and interviewed others in the [respondent’s] class so that a decision to abort or continue with the investigation could have been made on a sound evidentiary basis”.[50] On the topic of ‘reasonableness’, the Member concluded:
“The absence of satisfactory evidence necessitated two of the findings of the investigation being overturned on review. The entirety of the evidence before the Commission leaves considerable doubt as to whether the remaining findings would have been made if the [appellant] approached the collection of evidence in the systematic manner that it should have in the circumstances of this case. It also establishes that it is unlikely that any of the allegations constituted reportable conduct as defined by the Ombudsman Act 1974. It follows that the actions of the [appellant] with respect to discipline in this matter have not been proven to be reasonable.”[51]
[49] Reasons, [101].
[50] Reasons, [102].
[51] Reasons, [103].
The Member then made findings going to the weekly entitlement to compensation, which is not at issue on this appeal.

THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)

Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[52] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[53] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[54]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)    A [member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [member] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the [member] may draw a particular inference from them. Even here the ‘fact of the [member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [member] was wrong.
(c)     It may be shown that [a member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [member] is so preponderant in the opinion of the appellate court that the [member’s] decision is wrong’.”[55]
[52] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[53] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[54] [1996] HCA 140; 140 ALR 227.
[55] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd, Keating P observed that these principles “have been consistently applied in the Commission”.[56] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[57]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[58]
[56] [2017] NSWWCCPD 5, [67].
[57] [2001] FCA 1833, [28].
[58] Raulston, [20].
In Heggie, Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[59]
[59] Heggie, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[60] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[61]
[60] [2020] NSWCA 54 (Hill).
[61] Hill, [20].

GROUNDS OF APPEAL

The following grounds of appeal are raised:
(a)    The Member erred in fact and law, in considering events and actions beyond 13 March 2018 for the purpose of assessing reasonableness under s 11A of the 1987 Act. (Ground No. 1)
(b)    The Member erred in law in determining an injury other than that claimed and pleaded in the proceedings. (Ground No. 2)
(c)    The Member erred in fact and law in finding injury that was not supported by medical evidence. (Ground No. 3)
(d)    The Member erred as a matter of law in finding that the perpetuation of the found injury of 13 March 2018 constituted an injury within the meaning of the Workers Compensation legislation. (Ground No. 4)

LEGISLATION

Section 4 of the 1987 Act relevantly provides:
“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”.
Section 15 of the 1987 Act relevantly provides:
“15    Diseases of gradual process—employer liable, date of injury etc (cf former ss 7 (4), (4C), (5), 16 (1A))
(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.
(2)     Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.”
Section 16 of the 1987 Act relevantly provides:
“16    Aggravation etc of diseases—employer liable, date of injury etc (cf former ss 7 (4A), (5), 16 (1A))
(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.
(2)     Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any such employment shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.”
Section 11A(1) of the 1987 Act provides:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
Section 25A of the Ombudsman Act 1974 at the relevant time contained the following definitions:
“reportable allegation means an allegation of reportable conduct against a person or an allegation of misconduct that may involve reportable conduct.”
“reportable conduct means:
(a) any sexual offence, or sexual misconduct, committed against, with or in the presence of a child (including a child pornography offence or an offence involving child abuse material (within the meaning of Division 15A of Part 3 of the Crimes Act 1900)), or
(b)     any assault, ill-treatment or neglect of a child, or
(c)     any behaviour that causes psychological harm to a child,
whether or not, in any case, with the consent of the child. Reportable conduct does not extend to:
(a)     conduct that is reasonable for the purposes of the discipline, management or care of children, having regard to the age, maturity, health or other characteristics of the children and to any relevant codes of conduct or professional standards, or
(b)     the use of physical force that, in all the circumstances, is trivial or negligible, but only if the matter is to be investigated and the result of the investigation recorded under workplace employment procedures, or
(c)     conduct of a class or kind exempted from being reportable conduct by the Ombudsman under section 25CA.
Note—
Examples of conduct that would not constitute reportable conduct include (without limitation) touching a child in order to attract a child’s attention, to guide a child or to comfort a distressed child; a school teacher raising his or her voice in order to attract attention or to restore order in the classroom; and conduct that is established to be accidental.”

GROUNDS NOS. 1 AND 2

Appellant’s submissions

The appellant submits the respondent relied on a deemed date of injury of 13 March 2018. No claim was brought for injury after that date. There is a procedure for claims and dispute notification. Events post 13 March 2018 were not pleaded as being causative of injury. The appellant’s counsel did not acquiesce in the course adopted by the Member.[62] Having regard to ss 15 and 16 of the 1987 Act, the deemed date referred to the date when the respondent suffered incapacity as a result of the psychological injury. Weekly payments were ordered from 13 March 2018. The Member found that the respondent suffered injury “on and prior to 13 March 2018” which was “exacerbated by the investigation after that time”.[63]
[62] Appellant’s submissions, [19]–[22].
[63] Appellant’s submissions, [13]–[14].
The appellant submits that it was purely on the basis of events after 13 March 2018 that the Member found the appellant’s actions were not ‘reasonable’. Injury within the meaning of s 4 of the 1987 Act was pleaded and found, sufficient to cause incapacity and to sound in weekly payments. The reasonableness of the appellant’s actions should have been determined on the basis of the respondent’s actions that were causative of that injury. The appellant refers to Heggie at [59]. It is submitted the Member erred in considering actions beyond those that were causative of the injury that was found and pleaded.[64]
[64] Appellant’s submissions, [15]–[18].

Respondent’s submissions

The respondent refers to the pleading of ‘injury’, which was in the following terms:
“The [respondent], over an extended period of time, was exposed to incidents of aggression, antisocial behaviour and defamatory comments, pictures and allegations from students, whilst employed as a teacher at St John Paul College.
The [respondent] was unsupported by management during these incidents.
Over an extended period of time the totality of these events had a cumulative effect on the [respondent’s] psyche which resulted in a disease of gradual process with a deemed date of injury of on or about 13 March 2018.”
He submits the pleading was not restricted to events prior to 13 March 2018. The ARD relied on events which were not limited in the way the appellant submits.[65] He submits this was “reinforced” by his submissions before the Member.[66] His statement dated 10 June 2020 at [32] to [39] dealt with “events subsequent to 13 March 20108 which formed part of the disciplinary process and which were seen by the [respondent] as causative of his injury”. He submits that s 15 of the 1987 Act does not create an injury, which is “created by the circumstances”. It is “relevant to consider what followed after 12 March 2018 [sic]”.[67]
[65] Respondent’s submissions, [15].
[66] Reference is made to the transcript of arbitration hearing 21.9.20 (T), T 29.27.
[67] Respondent’s submissions, [1]–[5].
The respondent refers to Grate Lace Pty Ltd v Thiess Watkins White (Constructions) Pty Ltd,[68] where Kirby P (as his Honour then was) identified the purposes of s 15 of the 1987 Act, being to avoid unnecessary litigation, simplify the assignment of liability, remove the debate about true causation and fix the last relevant employer with primary liability. Before ss 15 or 16 are applied, it is first necessary to identify an injury, which can result from events both before and after the deemed date. The Commission “was entitled to consider all the incidents of discipline which caused or contributed to the injury”.[69] The respondent acknowledges the appellant argued that the injury was “ruled off” from 13 March 2018, but submits the appellant did not argue the respondent’s submissions on this topic were outside the scope of the pleadings. The Member’s findings at [65] and [72] were in accord with the case presented to him.[70]
[68] (1995) 12 NSWCCR 365 (Grate Lace).
[69] Respondent’s submissions, [6]–[8].
[70] Respondent’s submissions, [9]–[10].
The respondent argues the matter can be distinguished from Heggie. In Heggie it was found as a fact that the ‘injury’ had occurred by 4 June 2009. It was not appropriate to have regard to events after that date to determine reasonableness. In the current matter, the finding was of injury occurring due to a series of events, which extended beyond 13 March 2018.

Appellant’s submissions in reply

The appellant accepts that ss 15 and 16 fix a date for payment. It submits those sections are not relevant to the s 11A defence once injury is established. The Member determined the injury was caused by events on and prior to 13 March 2018 (Order 1 in the Certificate of Determination). An injury was suffered by 13 March 2018, consistent with the pleaded date, and the respondent was unfit thereafter. Only events up to that date could be considered dealing with the issue of ‘reasonableness’.[71]
[71] Appellant’s submissions in reply, [1]–[6].

Consideration

Ground No. 1 deals with the Member’s finding of ‘injury’ on the basis of the ‘disease’ provisions, and with the extent (if at all) to which it was appropriate to have regard to events after 13 March 2018 in considering the issue of reasonableness. Ground No. 2 deals with whether the finding of ‘injury’ was outside the pleadings. The issues are connected but different and I will deal with them together, on that basis. There is overlap between these grounds.
The appellant’s submissions place some emphasis on the fact that the ‘injury’ pleading nominated 13 March 2018 as the deemed date. Whilst this is true the pleading did not, on a fair reading, restrict the period of exposure to allegedly injurious workplace events, to one ceasing on 13 March 2018. The pleading (see [42] above) appears to be intentionally general regarding the period relied on. The date is referred to only in the context of a deemed date (consistent with the claim being brought on the basis of the ‘disease’ provisions).
The respondent refers to Grate Lace. Kirby P in that case described s 15 of the 1987 Act as “a semi-arbitrary formula”. His Honour described the objects of s 15 as:
·to avoid unnecessary litigation;
·to simplify the assignment of liability;
·to remove the highly disputatious debate about ‘true’ causation; and
·to fix the last relevant employer with the primary liability (subject to the limited contribution right provided in s 15(2)).[72]
[72] Grate Lace, 368E–F.
The Court of Appeal in StateCover Mutual Ltd v Cameron[73] dealt with the interaction between ss 4 and 15 and (in that case) 18 of the 1987 Act. Basten JA (Beazley P and Ward JA agreeing) said:
“The Act deals with matters in steps. The first step requires that the worker establish that he or she has received an injury, within the meaning of s 4. That will include proving that the injury, in the case of a disease injury, is contracted in the course of employment and that the employment was the main contributing factor. Section 15 presumes that an injury has been established and, in the case of a disease contracted by a gradual process, identifies a point in time at which it is deemed to have happened and the employer who is liable to pay compensation.”[74]
[73] 2015 NSWCA 127; 13 DDCR 272 (Cameron).
[74] Cameron, [18].
His Honour continued in that case to deal with the application of s 18 of the 1987 Act, in a way that did not derogate from what is set out above. Proof of injury pursuant to s 4 is required before one has regard to the deeming provisions in ss 15 and 16. The respondent’s counsel before the Member referred to the decision in Gales v Lovett, McCracken & Bray Pty Ltd in which Hodgson JA (Ipp JA and Hoeben J agreeing) said “[Alto Ford Pty Ltd v] Antaw does not support a proposition that s 15(1)(b) can in effect create an injury, simply by deeming an injury to have occurred on a particular date”.[75] This is consistent with the analysis of the authorities in Collingridge v IAMA Agribusiness Pty Ltd [76] and also with the respondent’s submissions (see [44] above). 13 March 2018 was the initial date of incapacity. Neither party argues that it was other than an appropriate deemed date.
[75] [2008] NSWCA 171 (Gales), [32].
[76] [2011] NSWWCCPD 31; 10 DDCR 174 (Collingridge), [64]–[67].

The deeming provisions may result in different dates of injury, in respect of the same injurious events, depending on the circumstances and the nature of the compensation which is claimed: Alto Ford Pty Ltd v Antaw;[77] Stone v Stannard Brothers Launch Services Pty Ltd.[78] It would be nonsensical if the matters to be considered, in determining whether an employer’s actions were ‘reasonable‘ for the purposes of a defence pursuant to s 11A(1) of the 1987 Act, varied depending on the nature of the compensation at issue. In Heggie Sackville AJA said:
“Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.”[79] (emphasis in original)
“The statutory language directs attention to whether the psychological injury was caused by reasonable disciplinary action taken or proposed to be taken by the employer. Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care. The language does not readily lend itself to an interpretation which would allow disciplinary action (or action of any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”[80]
“This does not mean that evidence of events that post-date the relevant action can never be material to the question of reasonableness. Reports prepared or correspondence created after the event may shed light on the facts known to the employer at the time the action was taken or that could have been ascertained had reasonably diligent inquiries been undertaken. But I think it is unlikely that facts or circumstances that were neither known nor ascertainable when the employer took the action could have a material bearing on the reasonableness of that action.”[81]
[77] [1999] NSWCA 234; 18 NSWCCR 246 (Antaw).
[78] [2004] NSWCA 277; 1 DDCR 701 (Stone), [10], [36].
[79] Heggie, [59(v)].
[80] Heggie, [61].
[81] Heggie, [64].
It is consistent with the above that the actions or proposed actions of the appellant, to be assessed regarding their reasonableness, are those which caused the relevant psychological injury. This directs attention to the Member’s fact-finding regarding causation of the psychological injury. The Member accepted that the respondent “suffered significant psychological trauma” on 13 March 2018. He noted the opinion of Dr Roberts, in the appellant’s case, that events on that day “may be the only cause”.[82]
[82] Reasons, [64].
The Member then engaged in a consideration of the respondent’s psychological reaction to the investigation that followed, particularly by reference to the material from Dr Kennedy (the respondent’s general practitioner) and Mr O’Neill (a psychologist qualified by the appellant’s insurer).[83] Both of these practitioners saw the respondent during the period between 13 March 2018 and the termination of the respondent’s employment in December 2018. The Member said that “the investigation which resulted in the termination of his employment on 10 December 2018 undoubtedly arose out of his employment”. This finding is not challenged on this appeal and is clearly correct.
[83] Reasons, [66]–[71].
In Department of Education & Training v Sinclair Spigelman CJ said:
“Furthermore, the case before Sheahan J primarily focused on the whole course of Departmental conduct as constituting the relevant ‘substantial contributing factor’ for purposes of s 9A. His Honour appeared to approach the s 11A issue on the same basis. This is an appropriate course to adopt in a context concerned, and concerned only, with psychological injury arising from matters such as ‘demotion, promotion, performance, appraisal, discipline, retrenchment or dismissal’. Such actions usually involve a series of steps which cumulatively can have psychological effects.”[84]
[84] [2005] NSWCA 465; 4 DDCR 206 (Sinclair), [96].
The approach for which the appellant argues has the effect of isolating the events on 13 March 2018 from the balance of the investigation. This is argued to remove the balance of the appellant’s actions from consideration, in assessing the ‘reasonableness’ of the appellant’s actions with respect to discipline. The approach taken by the Member, in considering the ‘reasonableness’ issue, is more consistent with the above passage from Sinclair. The Member found that if the investigation “materially contributed to [the respondent’s] psychological condition it should be considered as an action by the [appellant] with respect to discipline”.[85] He made the following finding:
“In the unusual circumstances of this case, I find that the evidence establishes that the investigation process and its outcome materially contributed to the [respondent’s] psychological injury. In my opinion, the continuing investigation perpetuated and aggravated the [respondent’s] psychological condition. In many respects a contrary conclusion would not make sense. However, this conclusion is consistent with the, admittedly slender, contemporaneous evidence which I have set out above.”[86]
[85] Reasons, [65].
[86] Reasons, [72].
It is necessary that the Member’s reasons be read as a whole.[87] The Member’s reasons are consistent with a factual finding that the psychological injury resulted from the events as a whole, including the investigation and surrounding events. The finding on ‘injury’ is not restricted to events on and before 13 March 2018. The consideration of ‘reasonableness’ is not restricted to the appellant’s actions on and before 13 March 2018.
[87] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 444.
In this regard, the matter can be distinguished from Heggie. Heggie involved injury resulting from a worker being stood down on a specific date, with an issue regarding whether that action was reasonable. The reasonableness of the employer’s action was to be determined by reference to the circumstances known at the time, including relevant information that could have been obtained with reasonable inquiries or the exercise of reasonable care (see [52] above). At issue in the current matter is the reasonableness of a course of conduct over a period of time.
The appellant submits it was not open to the Member to make the ‘injury’ finding described at [56] above, on the basis of the allegations made. The way in which the injury allegation was described in the ARD is set out at [42] above. It nominated 13 March 2018 as the ‘deemed’ date. It did not restrict the ‘injury’ allegations to events on and prior to that day.
Dealing with matters at issue between the parties, the respondent refers to the evidence in the ARD and attached documents on which he relied. The respondent relied on his statements dated 25 September 2018,[88] 10 June 2020[89] and 14 July 2020.[90] That dated 25 September 2018, taken by an investigator, referred to multiple matters that postdate 13 March 2018. It referred to the respondent’s lack of confidence that he would be supported by “the administration”, rumours circulating of sexual misconduct, the appellant’s conversion of his leave payments from “director approved leave” to “family leave”, the appointment of Mr Fairweather to the investigation and his removal due to an allegation of ‘bias’, Mr Fairweather’s reporting of the matter to the Police and a lack of communication from the appellant.[91] The respondent submitted a claim form dated 13 October 2018 to the appellant’s insurer.[92] In response to a question “What happened and how were you injured?” the respondent wrote “see the statement provided to Mr Mark Hill & supporting documentation previously provided”. This was a reference to his statement dated 25 September 2018. The date of injury was not inserted in the claim form.
[88] ARD, pp 16–34.
[89] ARD, pp 1–7.
[90] ARD, pp 12–15.
[91] ARD, pp 31–32.
[92] Reply, pp 87–90.
The statement dated 10 June 2020 referred to similar matters to those mentioned in the first statement.[93] In short, matters referred to in these statements and the claim form included reference to matters that post-dated 13 March 2018.
[93] Respondent’s statement 10.6.20, [32]–[38], ARD, p 6.
The s 78 notice issued by the appellant, dated 6 December 2019,[94] referred to its lay statements and to multiple matters that post-dated 13 March 2018. These included the change made by the appellant to the respondent’s leave payments, the delay in the investigation, correspondence from the principal, Mr Carniato, regarding meetings attended by the respondent in October and November 2018, the outcome of the investigation, and the respondent’s examination with Dr Roberts and the doctor’s opinion. The s 78 notice lists the “Information, Reports and Documentation Obtained and Relied on” by the parties in making and disputing the claim.[95] This includes matters that post-date 13 March 2018. The s 78 notice stated that “[t]aking into account the above evidence, liability for your claim is disputed”.
[94] Reply, pp 102–110.
[95] Reply, p 109.
The way in which the injury allegation was pleaded in the ARD did not restrict itself to allegations of injury based only on events on and prior to 13 March 2018. The way in which the exchange of information between the parties, and the s 78 notice, were framed also was not restricted in such a way.
The above is sufficient to deal with the first two grounds of appeal. Grounds Nos. 1 and 2 fail.

GROUND NO. 3

Appellant’s submissions

The appellant submits that the Member’s primary findings on medical causation involved acceptance of the views of Dr Roberts, qualified by the appellant. The appellant submits that Dr Roberts dealt with the claim as made, there was no reason to have the doctor comment on cause of an injury (events after 13 March 2018) that was “not nominated or claimed”. It submits the Member “expand[ed] the parameters of the claim, without inviting amendments to the pleadings”. It submits the Member then “had to rely upon his own assessment of clinical material without the assistance of the expert consultant psychiatrists qualified by the parties”. It is submitted the Member erred in considering a question that was not asked of him in the dispute and in making a finding in the absence of supporting medical evidence. The Member impermissibly found a “second injury by way of exacerbation” which permitted “an erroneous consideration of the reasonableness of the employer’s actions” beyond 13 March 2018.[96]
[96] Appellant’s submissions, [23]–[26].

Respondent’s submissions

The respondent submits the Member did not impermissibly find a second injury by way of exacerbation. Rather, he found a series of events which went beyond 13 March 2018 and was causative of injury. The respondent submits the Member was expressly asked to consider these matters. He submits a claim for weekly compensation made on the insurer, in correspondence dated 26 September 2019, was accompanied by A/Prof Robertson’s report in support. It submits A/Prof Robertson (the psychiatrist engaged by the respondent) knew of a history from the respondent that he believed the allegations were false and were known to be so by the Catholic Schools Office in Lismore. It is submitted that A/Prof Robertson’s report involved a history from the respondent that events after 13 March 2018, particularly the need to engage the Ombudsman, were causative of the injury.[97]
[97] Respondent’s submissions, [17]–[22].
The respondent submits the Member’s findings at [75] of the reasons were that the actions which caused the injury included the investigation and the appellant’s actions consequent upon it. The “findings at paragraph [72] and [77] make it clear that the [Member] was only considering one injury”.[98]
[98] Respondent’s submissions, [23].

Appellant’s submissions in reply

The appellant submits the Member determined the injury was suffered on 13 March 2018. The finding of an exacerbation subsequently carries “particular meaning” under the 1987 Act. An exacerbation of a pre-existing disease or condition “invites the inference of a finding of second injury”. It submits it was implicit in the Member’s findings that the Member found a second injury. The Member “in essence determined that the injury suffered by the worker was exacerbated by subsequent events”. Be that as it may, the finding under s 4 was that it was sustained on 13 March 2018.

Consideration

The submissions on this ground substantially recapitulate issues raised in Grounds Nos. 1 and 2. Dealing with those grounds I have concluded that the Member’s finding of ‘injury’ involved a single injury. That injury was not restricted to events on and prior to 13 March 2018, but included a series of steps that encompassed the investigation and associated matters. I concluded that those matters were sufficiently raised by the pleadings (which did not restrict themselves to 13 March 2018) and by the claims process between the parties.[99]
[99] See Far West Area Health Service v Radford [2003] NSWWCCPD 10, [23]–[24], Woolworths v Wagg [2017] NSWWCCPD 13, [96], Rinker Group Ltd v Mackell (No. 2) [2009] NSWWCCPD 97, [241], BHP Billiton Ltd v Bourke [2009] NSWWCCPD 117; 7 DDCR 535, [58], Harding v Westpac Banking Corporation [2018] NSWWCCPD 7, [46].
In my view, it is apparent that the Member did not find that there was a second injury. The passage of the reasons that deals with the causative role of events, both on and after 13 March 2018, is to be found at paragraphs [62] to [77]. At [65] the Member said: “However, I doubt that the [respondent’s] psychological injury was unaffected by subsequent events so that the [appellant’s] actions after that date are irrelevant in the causation of the [respondent’s] psychological injury.” During this discussion the Member referred twice to a “psychological injury” in the singular (see also [72] of the reasons). In his factual finding at [77] of the reasons the Member said: “the actions of the [appellant] which caused the [respondent’s] psychological injury include the investigation and the [appellant’s] actions consequent upon it”. This does not suggest a finding of two injuries, one on or prior to 13 March 2018 and another caused by the investigation and associated events thereafter.
The appellant’s submissions refer to Dr Roberts’ report dated 19 November 2019. The member referred to that report briefly, at [64], [74] and [75] of the reasons. At [64] the Member said that, in Dr Roberts’ opinion, the psychological trauma on 13 March 2018 “may be the only cause of the [respondent’s] psychological injury”. At [74] of the reasons, after making his finding regarding ‘injury’, the Member said that “the opinion of Dr Roberts may not be entirely consonant with the view that I have formed of the causes of the [respondent’s] injury, although it is not necessarily diametrically opposed to that view”. At [75] he said that Dr Roberts did not “explicitly refer to the subsequent enquiry, but he does not exclude it as a cause”. Dr Roberts’ report explicitly stated that the referral to him was on the basis of an allegation of “various events occurring in the course of his employment over a period of time leading up to 13 March 2018”.[100] The appellant’s submission makes the point that there was no reason to ask the doctor for “comment on the causation of an injury that had not been nominated or claimed”.[101]
[100] Reply, p 2.
[101] Appellant’s submissions, [24].
Whether injury resulting from events after 13 March 2018 was sufficiently raised is dealt with in Ground No. 2 in a fashion contrary to the appellant’s arguments. The Member did not rely on Dr Roberts in forming his views on ‘injury’. The highest it was put by the Member was to say that Dr Roberts may not be “entirely consonant” with the Member’s views but was “not diametrically opposed”. This was consistent with the general lack of opinion expressed by Dr Roberts on that topic. I cannot see that it involves error on the Member’s part, much less error that could affect the outcome.
The way in which this ground is framed suggests an argument that the Member’s finding on injury was not properly available on the medical evidence. The appellant does not make such an argument in its submissions. To the extent to which it is raised, it is not sustained on the basis of the discussion (dealing with the nature of appeals pursuant to s 352(5) of the 1998 Act) at [29] to [33] above.
In its submissions in reply the appellant refers to Order 1 in the Certificate of Determination and to the use of the word “exacerbated”. It submits this “invites the inference of a finding of second injury”. I indicated, dealing with Grounds Nos 1 and 2, that it was necessary to read the Member’s reasons as a whole. On a fair reading, the reasons dealing with ‘injury’ at [62] to [77] do not suggest a finding of two injuries.
Ground No. 3 fails.

GROUND NO. 4

Appellant’s submissions

The appellant submits the Member made an artificial, in the sense of an impermissible and unnecessary, finding of an exacerbation injury, the only effect of which is to permit him to consider the reasonableness of the employer’s actions after 13 March 2018. It submits that “consideration of perpetuation or exacerbation could have played no part in the determination of the worker’s entitlement per se”. It submits that, “[t]aken to the extreme, this approach would permit the identification of additional injuries in every psychological injury claim, where the claims process re-enlivens the stressors”. It submits this “is wrong in principal and constitutes an error of law”.[102]
[102] Appellant’s submissions, [27]–[30].

Respondent’s submissions

The respondent submits, again, that the Member did not find a second separate injury. He found a single injury that included exacerbation by the events after 13 March 2018. The respondent submits that the appellant refers to “no authority which impeaches the approach taken”. The Member was entitled to consider the totality of the injury and the totality of the causes. There is “no warrant or requirement to split the injury into subgroups as proposed by the [a]ppellant”.
The respondent submits that the only utility of the appellant’s submission is that it allows the appellant “to avoid the consequences of their indisputably unreasonable conduct in this matter”. The respondent submits that, in the absence of authority to support the appellant’s contention, it is “otherwise unable to respond”.[103]
[103] Respondent’s submissions, [25]–[29].

Appellant’s submissions in reply

The appellant submits that, even if a separate injury by way of aggravation had been sustained, there was a finding that an injury within the meaning of s 4 of the 1987 Act was sustained before that aggravation and incapacity had resulted. Conduct thereafter did not affect the finding of injury on 13 March 2018.

Consideration

I have accepted, dealing with Ground No. 1, that the Member’s ‘injury’ finding was of a single injury over a period of time, pursuant to the ‘disease’ provisions, based on not only the events on and around 13 March 2018, but also the ensuing investigation. This was consistent with the case run by the respondent, both before the Member and on this appeal. The appellant’s arguments dealing with Ground No. 4 proceed on a basis that is inherently inconsistent with this scenario.
The respondent’s counsel addressed on the basis that the deemed date “described dates for the purposes of calculation of the rate of compensation … they don’t create an injury, the injury is still created by its circumstances”.[104] He referred to Gales in support of that proposition (see [51] above). He referred to the investigation, the evidence gathering process and the allegation of collusion between students in providing their statements. He referred to the limited number of students who were interviewed in that process. He referred to allegations of bias in how the investigation was conducted. He referred to the alleged lack of interest, on the part of the principal, when told of students colluding in their statements.[105]
[104] T 29.28–33.
[105] T 31.4–41.10.

The way in which the respondent’s case was run was not restricted to matters on and about 13 March 2018. His case on ‘reasonableness’ was clearly based on the whole sequence of events in the process, it was not restricted to events up to the deemed date of injury. Addressing on ‘reasonableness’, the respondent’s counsel said:
“Clearly the investigation was deficient in many ways. They had information to say this is a collusion, they didn’t act on it, they didn’t interview people. Using an investigator who, on the evidence of people other than the [respondent] was biased, they replaced me, they then do nothing. He doesn’t re-interview, he doesn’t do anything else and ultimately come up with an outcome which they had to withdraw in two respects which has been criticised by the child guardian and about which they made – you know, they made a report into the police and to the Ombudsman when it wasn’t appropriate to do so, it only inflames the situation so accordingly you wouldn’t find that their actions were – when taken as a whole [their] actions were reasonable.”[106]
[106] T 42.31–43.10.
The case presented to the Member involved allegations involving alleged defects in the whole course of the investigation process on multiple issues. It involved an allegation of a single injury involving the ‘disease’ provisions, with a deemed date of injury of 13 March 2013, the first date of incapacity. The Member did not make an artificial, impermissible and unnecessary finding of an exacerbation injury. He was required to deal with the case that was run before him, which he essentially accepted. The appellant’s submissions on Ground No. 4 allege the only effect of the finding of an exacerbation injury was to “permit him to consider the reasonableness of the Employer’s actions after 13 March 2018”. It submits the “only forensic utility of this approach is that it potentially permits the defeat of the employer’s defence.” It submits “this approach would permit the identification of additional injuries in every psychological injury claim …”. It is appropriate to have regard to the passage from Sinclair quoted at [55] above:
“Such actions usually involve a series of steps which cumulatively can have psychological effects. More often than not it will not be possible to isolate the effect of a single step. In such a context the ‘whole or predominant cause’ is the entirety of the conduct with respect to, relevantly, discipline.”
The appellant submits that “[a]bsent the defence, consideration of perpetuation or exacerbation could have played no part in the determination of the worker’s entitlement per se”. The Member said that it was “evident from [the respondent’s] statement and from the medical record that [the respondent] was prepared to return to work with the [appellant] for financial reasons”. The Member noted the respondent told the appellant’s investigator in September 2018 that “he would return to teaching at his former school on 16 October 2018”.[107] The Member said that “[a]s the inquiry progressed and the outcome [was] conveyed to the [respondent], his psychological health appears to have deteriorated markedly”. The Member referred to a note of a consultation with Dr Kennedy on 17 December 2018, and said the “above note is not consistent with a person who is capable of returning to teaching work …”.[108] This finding was relevant to the respondent’s entitlement.
[107] Reasons, [69].
[108] Reasons, [69]–[71].
The approach taken by the Member involved a consideration of the whole course of the appellant’s conduct in respect of discipline. This was consistent with the approach approved in Sinclair, and appropriate where the Member had made a finding of injury (as is frequently the case) involving that course of conduct. The appellant has referred to no authority in support of its criticism of this approach.
Ground No. 4 fails.

DECISION

The appeal fails. The Certificate of Determination dated 27 October 2020 is confirmed.

Michael Snell
DEPUTY PRESIDENT

7 May 2021