Etherington v Anglo Coal (Capcoal Management) Pty Ltd [2019] ICQ 4

INDUSTRIAL COURT OF QUEENSLAND CITATION: Etherington v Anglo Coal (Capcoal Management) Pty Ltd [2019] ICQ 4 PARTIES: JOHN BRIAN ETHERINGTON (appellant) v ANGLO COAL (CAPCOAL MANAGEMENT) PTY LTD (respondent) FILE NO: C/2017/23 PROCEEDING: Appeal DELIVERED ON: 3 May 2019 HEARING DATE: 26 February 2018 MEMBER: Martin J, President ORDER: The appeal is dismissed. CATCHWORDS: WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE – EMPLOYMENT SUBSTANTIAL OR SIGNIFICANT CONTRIBUTING FACTOR – TO INJURY – where the appellant, a worker, suffered a psychiatric injury – where the Commission found that the injury arose out of the appellant’s employment and his employment was the major significant contributing factor – where the Commission further found that the injury had arisen out of reasonable management action taken in a reasonable way in connection with the appellant’s employment and his perception of reasonable management action taken against him – whether the Commission’s reasons were sufficient – whether findings made by the Commission were open on the evidence APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – APPEALS BY WAY OF REHEARING – SCOPE AND EFFECT OF REHEARING – where the Workers’ Compensation and Rehabilitation Act 2003 provides that an appeal to the Court proceeds by way of rehearing – where the respondent submits that no error of law or fact has been established by the appellant – whether the appellant has demonstrated any error Coal Mining Safety and Health Act 1999 Workers’ Compensation and Rehabilitation Act 2003, s 561 -- 1 of 7 -- 2 CASES: Allesch v Maunz (2000) 203 CLR 172, cited Coulton v Holcombe (1986) 162 CLR 1, cited Fox v Percy (2003) 214 CLR 118, cited McMah v Blackwood & BHP Billiton Coal Pty Ltd [2015] ICQ 009, cited APPEARANCES: Appellant in person GC O’Driscoll instructed by Ashurst Lawyers for the respondent [1] Mr Etherington commenced employment with Anglo Coal in November 2011. In October 2014 he was appointed as a mine surveyor at the Foxleigh Mine. During that engagement he was supervised by Mr Chris Crosby, a technical services superintendent. [2] When this matter was before the Commission, Anglo Coal contended that Mr Etherington had not suffered a psychiatric injury within the meaning of the Workers’ Compensation and Rehabilitation Act 2003 (the Act) in that: (a) any injury which did occur did not arise out of or in the course of his employment and that his employment was not the major significant contributing factor to such an injury, and (b) if, contrary to that submission, an injury did arise, then Anglo Coal argued that it arose out of, or in the course of, reasonable management action taken in a reasonable way by it or it was due to Mr Etherington’s expectation, or perception, of reasonable management action taken against him. [3] There was no dispute that Mr Etherington had suffered from a major depressive disorder and that he was a “worker” for the purposes of s 11 of the Act. [4] The Regulator had found that the application for compensation made by Mr Etherington was to be accepted and Anglo Coal appealed that decision. [5] In the hearing below, the Deputy President accurately described the primary question before him as: whether Mr Etherington suffered a compensable psychiatric or psychological injury for the purposes of s 32 of the Act. He determined that, while the injury did arise out of Mr Etherington’s employment and that his employment was the major significant contributing factor, it had arisen out of reasonable management action taken in a reasonable way in connection with his employment and his perception of reasonable management action being taken against him. As a result, Mr Etherington’s injury was excluded from the definition of “injury” in s 32(1) of the Act and Anglo Coal’s appeal succeeded. The grounds of appeal [6] Mr Etherington’s application to appeal is lengthy and discursive. It is argumentative and is mixed in with submissions and assertions of fact. For the purposes of this appeal, I will proceed on the basis that the grounds of appeal can be considered under four headings: -- 2 of 7 -- 3 (a) the Deputy President’s decision concerning the stressor identified as the issuing of the verbal warning on 6 February 2015, (b) the Deputy President’s decision regarding the stressor identified as Mr Crosby’s disclosure that Mr Etherington had been diagnosed with Asperger Syndrome, (c) the Deputy President’s decision regarding the stressor identified as the meeting held in response to an altercation between Mr Etherington and Mr Lopez, and (d) the Deputy President’s decision that it was Mr Etherington’s perception and not the fact that Mr Crosby was intimidating him, undermining and so on. [7] Much of Mr Ethington’s submissions and arguments are premised on what amounts to re-arguing the matters considered in the Commission. Before dealing with those matters, I need to set out a brief description of the principles which apply to an appeal to this court from a decision of this kind. The nature of an appeal of this kind [8] Section 561 of the Act provides that an appeal may be brought to this court by way of a rehearing of the evidence and proceedings before the Commission. Section 562 provides that, in deciding an appeal, the court may: confirm the decision, vary the decision, or set aside the decision and substitute another decision. [9] The nature of an appeal by way of rehearing was described by the High Court of Australia in Allesch v Maunz1 in the following way: “[23] For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. …” [10] In dealing with a similar issue in Fox v Percy,2 Gleeson CJ, Gummow and Kirby JJ said: “[22] … The ‘rehearing’ does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal. [23] … On the one hand, the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance’. On the other, it must, of necessity, observe the ‘natural limitations’ that exist in a case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share. …” 1 (2000) 203 CLR 172. 2 (2003) 214 CLR 118. -- 3 of 7 -- 4 [11] I also bear in mind that, while the appeal is by way of rehearing: “… To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. …”3 Sufficiency of reasons [12] Underlying the grounds of appeal which I understand to have been advanced, is an assertion that the Deputy President failed to set out appropriately the reasons for the conclusions he reached. This is particularly the case with respect to his decision to accept the evidence of Mr Crosby over that of the appellant. Mr Etherington commences his written submissions with the following assertion: “To discharge adequate reasons for a decision, one must review all the evidence and resolve all the conflicts prior to determining a judgment as considered by President Martin in State of Queensland (Department of Education and Training) v Workers’ Compensation Regulator [2016] ICQ 021 (Ground 1(e)).” [13] The appellant says further that the reasons given are “insufficient to determine that the Deputy President had in fact considered the relevant evidence and there are several unresolved matters not addressed which require consideration.” [14] The decision referred to by the appellant above concerning the adequacy of reasons is to the contrary of what the appellant has set out. A member of the Commission is not required to review “all the evidence” and “resolve all the conflicts prior to determining a judgment”. The correct approach was set out in McMah v Blackwood & BHP Billiton Coal Pty Ltd4 where I said: “[24] The principles guiding the adequacy and nature of reasons are well known. They were most recently set out in Qld Independent Education Union of Employees v Local Govt Association of Qld Ltd: ‘[14] A Tribunal need not set out reasons for every step which has led to a decision but it must record the steps which were taken to arrive at the result (Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666). [15] The extent of the reasons which are required to be given will depend upon the circumstances and the context of the case. Generally, reasons should deal with the substantial points which have been raised, including findings on material questions of fact. The reasons should refer to any evidence or other material upon which those findings are based and provide an intelligible explanation of the process of reasoning that is led from the evidence to the findings and from the 3 Coulton v Holcombe (1986) 162 CLR 1 at 7. 4 [2015] ICQ 009. -- 4 of 7 -- 5 findings to the ultimate conclusion. Some explanations should be given if the evidence tendered or the submissions made by a party have been rejected (Police Federation of Australia v Nixon [2011] FCAFC 161 at [67]). The reasons must set out the steps that were taken by the Tribunal to arrive at the decision. This allows the parties who have been unsuccessful to determine whether they have a basis for appeal (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386). [16] It must be understood, though that the principles set out above do not mean that reasons for decision have to be lengthy or elaborate. A distinction has always been drawn between courts and tribunals. Just as it is not necessary for a judge to make an express finding in respect of every fact leading to, or relevant to, his or her final conclusion of fact, it is not necessary that the judge reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271). The fact that reasons of the Commission might be brief is not necessarily a flaw. Courts conducting reviews or appeals from tribunals have been repeatedly enjoined by the High Court to avoid overly pernickety examination of the reasons. The focus of attention is on the substance of the decision and whether it has addressed the ‘real issue’ presented by the contest between the parties (Roncevich v Repatriation Commission (2005) 222 CLR 115 at [64]).’ (emphasis added)” [15] The nature of the appellant’s submissions disclose that he is fully aware of the manner in which the Deputy President considered the relevant issues before him but his case on appeal is simply that he disagrees with the decisions made. [16] The Deputy President did not address each and every point raised in the hearing before him. He did not need to. He considered the relevant evidence which was necessary to determine the questions before him. One of those important matters was the decision concerning whose evidence he should accept on various matters. The Deputy President preferred the evidence of Mr Crosby and gave adequate reasons for that preference. His findings with respect to credit were reasonably open on the evidence. [17] It is not a valid ground of appeal that a disappointed party disagrees with the findings below. As is pointed out above, an error of a particular type must be demonstrated and the mere fact that a member of the Commission has preferred some evidence over other evidence is not, on that ground alone, an appellable error. [18] The Deputy President’s reasons covered some 30 pages and engaged at an appropriate level of detail with all the relevant evidence so far as the issues before him were concerned. The verbal warning [19] Under this heading, the Deputy President considered the evidence of both Mr Crosby and Mr Etherington and accepted the evidence of Mr Crosby that the appellant had undertaken to do the calculations. In doing so he sets out his reasoning for that preference in -- 5 of 7 -- 6 paragraphs 29, 30, 32, 33, 87, 92 and 93. While Mr Etherington points to what he says is evidence to the contrary that does not satisfy the test. It was open on the evidence to make the findings. The disclosure of the diagnosis [20] Mr Etherington asserts that the Deputy President erred in not providing sufficient reasons for coming to the conclusion that it was reasonable for Mr Crosby to seek assistance and, in doing so, disclose the diagnosis of Mr Etherington’s condition. [21] The Deputy President considers the various factors relating to that disclosure over some three pages of his reasons. He sets out the determinations made by Mr Crosby as to who should be told and Mr Crosby’s concerns about safety and his own statutory obligations under the Coal Mining Safety and Health Act 1999. [22] The Deputy President held: “[101] Mr Crosby was confronted with Mr Etherington’s diagnosis, he made a decision to confide in the HR Manager and OHS Manager for the purposes of obtaining advice on how best to handle the situation. In that context, and having regard to Mr Crosby’s position and obligations as a registered mine surveyor, it was not in my view unreasonable for him to disclose the diagnosis in order to obtain that advice. Mr Crosby’s intention was to talk through with Mr Etherington what strategies the appellant could adopt to help him cope. I accept that Mr Crosby was concerned for the safety and wellbeing of Mr Etherington. [102] Equally, it was not unreasonable for Mr Crosby to have a discussion with Mr Atkinson about Mr Etherington’s diagnosis. Mr Atkinson was, on the evidence of Mr Etherington somewhat of a mentor and a person for whom he had a great deal of respect. [103] The dissemination of the diagnosis was on a limited, ‘need to know’ basis. Mr Crosby advised only Mr Atkinson, HR and OHS on a confidential basis appreciating the sensitivity of the matter. It was not, to use his words, ‘… something that you would go and broadcast to the rest of the world …’ I accept the evidence of Ms Baker that she did not divulge the nature of the second respondent’s condition. I also accept that both Ms Allen and Ms Lambie were acutely aware of the need to keep the information confidential.” [23] All of those findings were available to the Deputy President on the evidence. The meeting held following the altercation between Mr Etherington and Mr Lopez [24] An altercation occurred between Mr Etherington and Mr Lopez, a blast and drill engineer, at the Foxleigh Mine in April 2015. There was a dispute between them with respect to where some marker pegs had been placed. [25] As a result of interaction between Mr Etherington and Mr Lopez a meeting was convened involving both of them, Mr Crosby and Mr Barnes. The others at that meeting concluded that Mr Etherington had refused a direct request with respect to the pegs and, in an email from Mr Crosby to Mr Etherington following that meeting, the following was said: -- 6 of 7 -- 7 “As discussed in our meeting just now. My expectation from this point forward is that any time you are tasked with a specific survey task, you communicate completion of that task by placing a peg and writing the appropriate information on that peg.” [26] The Deputy President considered the matters leading up to that meeting, the content of the meeting and the consequences of the meeting. He noted that no disciplinary or other action was taken against Mr Etherington with respect to this matter. Mr Etherington perceived that he was being targeted but with no action being taken against him this ground must fail. Mr Etherington’s perception of what was being done to him [27] It is a necessary consequence of the Deputy President’s preference for Mr Crosby’s evidence (supported by reasons) that the perception held by Mr Etherington was not reasonable in the circumstances. By way of example, the Deputy President said: “[105] I do not accept that Mr Crosby used the diagnosis to denigrated [sic] Mr Etherington to Mr Atkinson. Mr Atkinson made it clear in his evidence that Mr Crosby made no such disparaging remarks. Rather, his evidence was that Mr Crosby showed concern for Mr Etherington. While Mr Etherington may have been under the belief that he had been denigrated, the evidence does not support such a view.” [28] The Deputy President correctly pointed out that, in assessing management action, it is the reality of the employer’s conduct, and not the worker’s perception of it, that must be taken into account. The Deputy President set out in detail why he preferred the evidence of Mr Crosby and took into account the medical evidence, particularly that of Dr Storor, that at the relevant time, the appellant’s obsessional features were going into “overdrive”. An appeal of this type is not one in which it is open to an appellant simply to reargue points which were lost below. Error must be shown. In this case, the appellant has not demonstrated any error on the part of the Deputy President in reaching the conclusion he did. [29] The appeal is dismissed. -- 7 of 7 --