Civeo Pty Ltd (formerly The Mac Services Group Pty Limited) v Simon Blackwood (Workers' Compensation Regulator) and Cumbers [2015] QIRC 43

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Civeo Pty Ltd (formerly The Mac Services Group Pty Limited) v Simon Blackwood (Workers' Compensation Regulator) and Shane Cumbers [2015] QIRC 043 PARTIES: Civeo Pty Ltd (formerly The Mac Services Group Pty Limited) (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (First Respondent) and Cumbers, Shane (Second Respondent) CASE NO: WC/2014/164 PROCEEDING: Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) DELIVERED ON: 4 March 2015 HEARING DATES: 2 -3 March 2015 MEMBER: Deputy President Kaufman ORDERS : 1. The Appeal is allowed. 2. The decision of the Regulator is quashed. 3. The First Respondent is to pay the Appellant's costs of and incidental to this appeal to be agreed, or failing agreement to be the subject of a further application to the Commission. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - whether the injury arose out of or in the course of employment - whether employment a significant contributing factor - psychological injury - medical evidence CASES: Workers' Compensation and Rehabilitation Act 2003, s 32 Australia Leisure and Hospitality Group Pty Ltd v Simon Blackwood (Workers' Compensation -- 1 of 8 -- 2 Regulator) [2014] QIRC 105 Comcare v PVYW [2013] HCA 41 Croning v Worker’s Compensation Board of Queensland (1987) 156 QGIG 100 Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519 Oaks Hotels and Resorts (Qld) Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2014] ICQ 023 Q-Comp v Kennerley [2012] QIRComm 723 APPEARANCES: C. Hartigan, of Counsel, instructed by S. Hardy, Baker & McKenzie, for the Appellant. A. Kitchin, of Counsel, directly instructed by the Workers' Compensation Regulator, for the First Respondent. P. Cullinane, of Counsel, instructed by K. Bocos, Macrossan & Amiet Solicitors, for the Second Respondent. Reasons for Decision [1] The appellant, now called Civeo Pty Ltd, appeals against a decision of the regulator to accept an application under 32 of the Workers' Compensation and Rehabilitation Act 2003. The regulator set aside the decision of WorkCover and accepted the claim by Mr Shane Cumbers in respect of a chronic to a severe adjustment disorder mixed anxiety and depression, a post-traumatic stress disorder and soft tissues injuries to the thorax, right rib cage and face. [2] It is accepted that Mr Cumbers was a worker for the purposes of s 32 of the Act and that he suffered the soft tissue injuries. Accordingly, it is necessary to determine whether Mr Cumbers sustained an injury or injuries within the meaning of the Act. [3] As the employer is the appellant, it must be satisfy me on the balance of probabilities that Mr Cumbers did not sustain a personal injury arising out of, or in the course of, employment or, if it did so arise, the employment was not a significant contributing factor to the injury. The Facts [4] The parties helpfully provided me with a statement of agreed facts and a chronology. [5] Mr Cumbers was employed by the appellant from December 2009 as an appliance technician, in which role he continued until his resignation on 15 March 2011. [6] The appellant owned and operated five mining accommodation camps in the Bowen Basin region. -- 2 of 8 -- 3 [7] Mr Cumbers obtained his job when he answered an advertisement, his role was to service and repair commercial appliances used in the kitchens and laundries of five accommodation camps. This required him to travel between the five accommodation sites. He was based at the Moranbah village camp where he was provided with a donga for his own personal use. [8] He worked at Moranbah on 15 December 2010 and finished work at around 4.30pm after which he joined a group of people, most of whom were employees of the appellant for social drinks in an area behind the kitchen. I am satisfied that this area comprised a concrete floor a couple of picnic tables, shade cloth and probably a small barbeque. It was often used by people who were accommodated at the camp for the purpose of socializing. Albeit, this may have been contrary company policy I am satisfied this practice was condoned by site management. [9] In the evening in question, Mr Cumbers and the others drank alcoholic beverages and shared a joint or joints of marijuana. Mr Cumbers went to bed at approximately 11.00pm. He locked the door of his donga and went to sleep in a relatively dark room. He was awakened at approximately 1.50am on 16 December by being assaulted by a person who had obtained the master key to the donga. Although it was dark Mr Cumbers identified his assailant as one of the people who had been at the gathering but who did not work for the appellant and who he had met at the gathering, but not previously. His assailant said nothing during the attack. As a result of the assault, Mr Cumbers sustained the soft tissue injuries and, he asserts, the psychological injuries. [10] Whilst the appellant accepts that he sustained the soft tissue injuries it does not concede that he suffered, and indeed asserts that he did not sustain, the psychological injuries at all, or if he did, that this was as a result of the assault. [11] In any event, it submits that none of the injuries arose out of, or in the course of, Mr Cumbers' employment with the appellant. If they did, it then submits that the employment was not a significantly contributing factor to the injuries. Psychological Injuries [12] I am satisfied that the appellant suffered a psychological injury, being chronic, severe post-traumatic stress disorder (PTSD) and adjustment disorder with anxiety and depressed mood, chronic. [13] After the assault he was taken to the Moranbah hospital and was discharged shortly thereafter. On his return to the camp he was placed in a different donga and the following day moved to another camp. He almost immediately displayed symptoms consistent with PTSD as evidenced by his reaction when the security officer, visited him to see how he was getting on. Mr Cumbers began consulting general practitioners about his symptoms in May 2011, with various visits to doctors Maharj and Solgi through to August 2012. He saw a psychologist, Michelle Summersgill on several occasions between June and July 2012, who diagnosed him with symptoms consistent with PTSD and adjustment disorder. [14] In 17 September 2012, he saw a psychiatrist, Dr Jennifer Lockwood who examined him and provided a report. She also testified by telephone. Dr Lockwood diagnosed -- 3 of 8 -- 4 Mr Cumbers as suffering with post-traumatic stress disorder, chronic, severe as well as adjustment disorder with anxiety and depressed mood, chronic as well as cannabis abuse and dependence, chronic, severe. She attributed the PTSD and adjustment disorder to the assault. In her oral testimony she said the PTSD and the adjustment disorder was a result of the assault and she had no doubt about her diagnosis. She observed that the symptoms of PTSD had manifested themselves almost immediately after the assault. I accept her evidence. [15] The facts and circumstances that confirm me in my conclusion are more comprehensively set out in the written submissions of Mr Kitchin, who appeared for the regulator. [16] The appellant called Professor Harvey Whiteford who saw Mr Cumbers on 24 October 2013, more than a year after Dr Lockwood saw him. Professor Whiteford is of the view that, given Mr Cumbers' higher dependence on cannabis, a diagnosis could not be made. Dr Lockwood, when asked about this, said she did not agree and was comfortable with her diagnosis. [17] Mr Cumbers readily admitted that he had been a cannabis user since his late teens and that until commencing employment with the appellant had smoked marijuana relatively regularly, but infrequently. Whilst working for the appellant he increased his intake when he participated socially on occasions such as that of 15 December 2010. He said he did not buy marijuana but partook of it when it was offered. During this period he performed his job satisfactorily and passed three random drug tests. After the assault, apparently by way of self-medication, he increased his usage to a very high level. He said that his cannabis usage sky-rocketed, he said he took it 24/7 and because it helped him to sleep and stopped him having nightmares of being assaulted which he described as having occurred after the attack. [18] Although Professor Whiteford felt he was unable to make a diagnosis due to Mr Cumbers cannabis usage at the time of examination, he accepted that Mr Cumbers might have developed PTSD as a result of the assault and that the nature of the attack as described Mr Cumbers could well have led to a psychiatric injury. Professor Whiteford's evidence does establish that Mr Cumbers did not suffer the psychological injuries diagnosed by Dr Lockwood. [19] The appellant has failed to persuade me that Mr Cumbers did not suffer PTSD or an adjustment disorder caused by the assault and, in fact, the evidence of Ms Summersgill and Dr Lockwood satisfies me that he did. Arising out of, or in the course of employment [20] In order to fall within the definition of "injury" in s 32 of the Act, it is necessary that the soft tissues injuries and the psychological injury arose out of, or in the course of, the employment and that the employment was a significant contributing factor to the injury. On the appeal, the appellant bears the onus of satisfying me that that was not the case. -- 4 of 8 -- 5 [21] In Australia Leisure and Hospitality Group Pty Ltd v Simon Blackwood (Workers' Compensation Regulator)1, Deputy President O'Connor analyzed Comcare v PVYW2 which clarified the applicable principals in determining whether a personal injury arises out of, or in the course of, employment. His Honour noted that the essential inquiry is how the injury was brought about. The High Court held that the injury would have been suffered in the course of employment if the injury was either: 1) suffered by the employee whilst engaged in activity which the employer had induced or encouraged the employee to engage in; or 2) where an injury was suffered by reference to a place where the employer had induced or encouraged the employee to be. [22] I accept the submission of the regulator that in this matter that Mr Cumbers, whilst sleeping, was not engaged in activity. [23] I am however satisfied that the injury was suffered at and by reference to a place where the appellant had induced or encouraged Mr Cumbers to be. [24] Although Mr Cumbers' contract of employment was silent as to the provision of accommodation there is no doubt that the appellant provided the accommodation at Moranbah for Mr Cumbers for which it made no charge, as well as providing him with meals. [25] Given that Mr Cumbers lived some 300 kilometers from Moranbah the provision of free food and lodging was obviously an inducement and encouragement for him to stay at the camp where the injury was sustained. [26] In PVWY the majority held: "Because the employer's inducement or encouragement of an employee, to be present at a particular place or engage in a particular activity, is effectively the source of the employer's liability, the circumstances of the injury must correspond with what the employer induced or encouraged the employee to do. It is to be inferred from the factual conditions stated in Hatzimanolis that for an injury to be in the course of employment, the employee must be doing the very thing that the employer encouraged the employee to do, when the injury occurs."3 [27] Here, unlike the situation in Australian Leisure and Hospitality Group, Mr Cumbers by sleeping in his donga was doing the very thing the appellant had encouraged him to do, when the injury occurred. [28] Accordingly, I am satisfied that his injuries both physical and psychological arose out of, or in the course of employment. More accurately, for the purposes of this appeal, my finding is that I am not satisfied that his injury did not arise, out of, or in the course of his employment. 1 [2014] QIRC 105. 2 [2013] HCA 41. 3 Comcare v PVYW [2013] HCA 41, 35. -- 5 of 8 -- 6 Significant, contributing factor? [29] In Newberry v Suncorp Metway Insurance Ltd4 the Court of Appeal, in holding that the fact that an injury has been suffered in the course of employment does not on itself mean that the employment was a significant, contributing factor, said: "It cannot be disputed that, when s 32 of the WCRA speaks of 'employment' contributing to the worker's injury, it is referring to employment as a set of circumstances; that is to the exigencies of the employment of the worker by the employer. The legislation is referring to 'what the worker in fact does during the course of employment'. The requirement of s 32 WCRA that the employment significantly contribute to the injury is apt to require that the exigencies of the employment must contribute in some significant way to the occurrence of the injury which the claimant asserts was caused by the breach of duty to the person (not the employer) against whom the claim is made." [30] In Oaks Hotels and Resorts (Qld) Pty Ltd v Simon Blackwood (Workers' Compensation Regulator)5, Commissioner Black in finding that, the injuries suffered by a worker who was raped by a fellow worker in accommodation provided by the employer and which she shared with the co-worker referred to Newberry and said: "[162] The matter for resolution is whether the facts of this case give rise to a set of employment related circumstances or exigencies of employment which have contributed in a significant way to the occurrence of Knauer's injury. In Q-Comp v Kennerley [2012] QIRComm 723, Hall P arrived at his decision that the employment was a significant contributing factor to the injury by concluding that 'it was the nature and terms of his employment together with decisions and initiatives of Qantas, which caused Mr Kennerley to be riding his motorbike where and when he was injured.' [163] In this case the exigencies of employment derive from the employer's decision to transfer Knauer to one of its Brisbane properties. It was a condition of Knauer's employment that she may be subject to transfer. A general clause to this effect was included in her letter of offer. In more particular terms Knauer knew when Oak's engaged her that she would be transferred from the Seaforth once her training and probationary period ended. While it was not the practice of the employer to provide assistance to transferees in the form of temporary accommodation, an exception was made for Knauer. Knauer was reluctant to relocate to Brisbane and in order to persuade her to take the step and to facilitate the relocation, her employer offered to provide free temporary accommodation, and encouraged Knauer to accept the shared arrangement on offer. It is these circumstances, and the related facts, that lead to a conclusion 4 [2006] 1 Qd R 519. 5 [2014] ICQ 023. -- 6 of 8 -- 7 that there was a sufficient connection between Knauer's employment and the injury for the employment to be a significant contributing factor." [31] On appeal, Martin J held that that reasoning is consistent with the principles relevant to the issue of whether employment was a significant contributing factor. [32] In Q-Comp v Kennerley6, a situation where a flight attendant who was required as a condition of his employment to hold a current American visa was injured whilst riding his motorbike to obtain the visa, it was held that the employment was a significant, contributing factor to the injury. His employer not only required the acquisition of the visa it also facilitated the obtaining of it. [33] In both of the abovementioned cases, the exigencies of the employment situation were such that the place of the injury on one hand, and the activities on the other, were sufficiently related to the employment as to enable a finding to be made that the employment was a significant contributing factor. [34] In Oaks, the employer had provided the female employee with a room in a flat owned by it and which flat was occupied by another employee, a male, who it required to share the flat. The female employee had been reluctant to move to Brisbane and the encouragement to stay in the flat was motivated by a desire to remove or diminish the barriers to transfer raised by her [35] In this case, the connection with the exigencies of the employment is more tenuous. Mr Cumbers did not have any contractual obligation to reside or sleep at the Moranbah camp. That he was induced to do so, establishes no more than that his injuries arose out of, or in the course of, the employment. Here there is nothing more. Mr Cumbers went to bed and was later assaulted by someone who had no connection with the employer, albeit he was probably an employee of a contractor. Unlike the situation in Oaks it could not be said that there was anything in the nature and terms of Mr Cumbers' employment together with the decisions and initiatives of the appellant which caused Mr Cumbers to be exposed to his assailant. [36] To my mind this case falls within the principles propounded by De Jersey P in Croning v Workers' Compensation Board of Queensland7. The assault was the cause of the injury, the employment was merely the setting in which it occurred. [37] I could not be satisfied, that the employment was a significant contributing factor to the injury. However I must be satisfied that the employment was not a significant contributing factor to the injury. Having regard to the facts of this case I am satisfied that this case is significantly distinguishable from Oaks and Kennerly so as to enable me to be satisfied that the employment was not a significant, contributing factor to the injuries. There was no relationship between the appellant and the assailant, it was not a condition of Mr Cumber's employment that he stay at the camp. There was no desire or necessity by the appellant to have Mr Cumber's stay at the camp to facilitate its operation as was the case in Oaks. Mr Cumbers could have stayed at Moranbah had he been so minded. 6 [2012] QIRComm 723. 7 (1987) 156 QGIG 100. -- 7 of 8 -- 8 [38] The appeal is allowed, the decision of the regular is quashed and the regular is to pay the appellant's costs to be agreed, or failing agreement, on the application to the commission. -- 8 of 8 --