Cotter v Q-COMP [2010] ICQ 33

CITATION: Elizabeth Cotter AND Q-COMP (C/2010/21) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Workers' Compensation and Rehabilitation Act 2003 - s. 561(1) - appeal against decision of industrial magistrate Elizabeth Cotter AND Q-COMP (C/2010/21) PRESIDENT HALL 10 August 2010 DECISION [1] By an Application for Compensation made under the Workers' Compensation and Rehabilitation Act 2003 (the Act) and dated 3 July 2008, Ms Elizabeth Cotter sought benefits for a psychological and/or psychiatric injury said to have arisen out of or in the course of her employment as a police officer with the Queensland Police Service (QPS). WorkCover Queensland accepted the claim. QPS sought a Statutory Review. By a decision dated 18 May 2009, Q-COMP set aside WorkCover Queensland's decision and substituted a decision to reject the Application. Ms Cotter appealed to the Industrial Magistrate at Southport. By a decision dated 2 March 2010, the Industrial Magistrate dismissed the appeal. On 2 April 2010, Ms Cotter filed an Application to Appeal to this Court. On the Appeal to this Court the only issue is whether s. 32(5) of the Act operates to remove from the statutory definition of injury, an injury otherwise within the statutory definition. [2] The first point taken for the Appellant is that the Industrial Magistrate erred in law in failing adequately to disclose His Honour's reasoning. The nature of the obligation to give reasons was discussed in Martin v Rowling and Anor1. At paragraph 3 McMurdo P observed: "In giving reasons for decision, a judicial officer is obliged to adequately disclose the process of judicial reasoning so that justice is not only done but seen to be done. A judge should refer to relevant evidence; set out any material findings of fact and any conclusions or ultimate findings of fact reached; give reasons for making the relevant findings of fact and conclusions or for preferring one conclusion to another and explain how the law has been applied to the facts found. This is because the reasons must place the parties in a position to understand why the decision was made sufficiently to allow the exercise of any right of appeal and so that any appellate court considering the decision can understand the reasoning process. The obligation to give adequate reasons does not require the reasons to necessarily be lengthy or elaborate but they should articulate the essential ground or grounds upon which the decision rests.". Whilst at paragraph 80 Mullins J said: "It is undisputed that a trial judge is obliged to provide reasons for making the relevant findings and conclusions and, where evidence has been rejected, to explain the reasons for so doing, in order to avoid any sense of grievance or injustice on the part of the party who has been adversely affected by the findings; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 431, 443-444. See also Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 278-279, Mirage Resorts Holdings Pty Ltd v Brellen Pty Ltd [2003] QCA 579 at paragraph [57] and Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127, 135-136.". [3] The criticism that whilst each of the witnesses was found to be "an honest and truthful witness", whilst no reasons were advanced to explain why the evidence of one witness was preferred to the evidence of another, seems to me not to be justified. It is an everyday experience that perfectly honest and truthful witnesses are afflicted by flawed recollection and by imperfect understanding of events in which they were participants. Further, save as to an obligation that Inspector Barrett directed Ms Cotter to attend a morning tea whilst she was in a distressed state (with which I shall subsequently deal), it was not so much a case of conflict of evidence as a case in which (save for the key players) witnesses had an exposure to different parts of the events. [4] If the Industrial Magistrate's reasons for decision are read as a stand alone document, there is force in the submission that findings have been made without articulation of the reasons for the findings. If one reads the reasons for decision after reading the affidavits and the transcript, the reasons for decision seem to me to become rather clear and obvious. However, lest I move into speculation and to avoid turgidity of expression, the preferable course is to assume the error of law and rehear the matter on the record. [5] Ms Cotter, who was born on 18 September 1950, was accepted into the Queensland Police Academy in 1999. After a period of seven months training she commenced employment with QPS as a First Year Constable. She was assigned to the Gold Coast District. For the period 2001 to 2005, Ms Cotter was stationed at Southport. 1 Martin v Rowling and Anor [2005] QCA 128 -- 1 of 3 -- 2 During that period she rose to the rank of Senior Constable. After suffering an injury in the course of her employment Ms Cotter was assessed as a unfit for operational duties and was transferred to the Recruiting Section. The Recruiting Section was based at QPS Headquarters in Brisbane. Ms Cotter continued to reside on the Gold Coast. She commuted to her place of work by train. [6] Because Ms Cotter was not fit to perform operational duties, she was required to surrender her accoutrements, i.e. she was no longer issued with a fire-arm, nor with a baton, nor with hand-cuffs. Further, her physical injury prevented her from undertaking Operational Skills and Tactics Training (hereafter, OST Training). Indeed, Ms Cotter applied for and was granted a permanent exemption from the requirement that she maintain an OST Training qualification. Initially, Ms Cotter's inability to undertake OST Training was not a problem to her. It appears from the evidence of Inspector Barrett that, whilst all non-operational police officers had originally completed OST Training (or training for a precursor qualification), many had failed to maintain their qualification. As of 6 April 2007, that era came to an end. In consequence of a decision of the Police Commissioner, all police officers up to and including the rank of Senior Sergeant, were required to complete OST Training courses on an annual basis. Once trained, non-operational police were available to support operational police and, indeed, were placed on operational duties for a period each year. Officers such as Ms Cotter, who were exempt from the requirement to maintain an OST Training qualification, were not to be deployed to perform any duties which might require "competence and currency in operational skills and tactics". Over time, as these around her requalified, Ms Cotter became an anomaly. Some criticism is made that others in the Recruiting Section, e.g. Sergeant Hawkins, were assessed and placed on rehabilitation programs to assist them to reach a fitness level at which OST Training was reasonably accessible. On the evidence, I accept the explanation that Ms Cotter's disability precluded adoption of such course. For completeness, I also accept that the Commissioner's decision to introduce a new OST training regime was "reasonable management action taken in a reasonable way" for the purposes of s. 32(5) of the Act. [7] For a time, Ms Cotter enjoyed her work in the Recruiting Section. She particularly enjoyed attending recruiting events outside Headquarters. Over time, the recruitment functions were decentralised. Officers from the Recruiting Section based at Headquarters ceased to travel to the Districts. In consequence, Ms Cotter's opportunity to travel and to wear her police uniform in public, were diminished. Whilst I accept that Ms Cotter was disappointed, I am unable to accept that implementation of the policy of decentralisation was other than "reasonable management action taken in a reasonable way". [8] Inspector Barrett commenced as Manager of the Recruiting Section on 12 March 2007. Very early on, it became apparent to Inspector Barrett that most (if not all) of the business of the section was transacted between 8.00 a.m. and 5.00 p.m. Accordingly, Inspector Barrett established these hours as the core hours of the Section. Personnel were allocated to shifts of 8.00 a.m. to 4.00 p.m. or 9.00 a.m. to 5.00 p.m. Such shifts were inconvenient to Ms Cotter who continued to commute from the Gold Coast. Inspector Barrett's predecessor had been prepared to accommodate Ms Cotter with a 7.00 a.m. to 3.00 p.m. shift. (Perhaps significantly, an operational shift.) Because Ms Cotter's duties required her to be in touch with the section's client base during the core hours of 8.00 a.m. to 5.00 p.m., Inspector Barrett was not prepared to continue the indulgence. A subsequent request by Ms Cotter to leave a few minutes early to catch her train was also rejected. Whilst Inspector Barrett was favourably disposed to "a few minutes", Ms Cotter was unable to satisfy Sergeant Hawkins that it would be a matter of "a few minutes". In my view, having regard to the train timetable, the distance and Ms Cotter's need to change, Sergeant Hawkins' apprehension that it would be a matter of 12 minutes or more was well justified. In my view, neither the change of shift nor the rejection of Ms Cotter's request to depart early from her work was other than "reasonable management action taken in a reasonable way". On one occasion, Sergeant Hawkins at the request of Inspector Barrett, interviewed Ms Cotter when she apparently arrived late for work. Ms Cotter was late. She explained that her train had been late. The explanation was accepted. Sergeant Hawkins did not speak to another officer who was late because he was not that officer's supervisor. Again, it was all "reasonable management action taken in a reasonable way". [9] Prior to the arrival of Inspector Barrett, it had not been the practice for officers from the Recruiting Section to take accoutrements with them when they went to outside events. It had always been recognised that an incident might occur. It had also been recognised that because the officers wore police uniforms, assistance might be sought from them. In fact, apart from a minor incident at a display at Musgrave Park and an occasion when a particular officer had been cut off by flood waters, there had neither been incidents nor request for assistance. The risk was assessed as being low. [10] Inspector Barrett took rather a different view. Inspector Barrett did not confine himself to the risk of an incident or a request for assistance leading to physical harm. The Inspector was concerned also about the career risks to officers called upon to perform an operational task, who were not able adequately to do so because they had no accoutrements with them. In evidence the Inspector expressed a view that such officers might be exposed to disciplinary action. It is not an unreasonable inference that the Inspector considered that if such an occurrence occurred on his watch, his career might suffer also. In the event, with the exception of very low risk outside events (e.g. at the Police Academy), officers took accoutrements with them. The police van which Inspector -- 2 of 3 -- 3 Barrett had acquired for the purposes of outside events was fitted with a safe for fire-arms. (It was the evidence of Inspector Barrett that the use of a marked police van increased his concern that a call might be made upon his officers for assistance.) [11] All of the above was very prudent. However, it made Ms Cotter's participation in "outside events", other than at places such as the Police Academy, quite untenable. She had no accoutrements to take with her. She had not the OST Training necessary to use accoutrements. In terms of the Police Commissioner's directive of 6 April 2007, Ms Cotter was not supposed to be deployed upon operational work. Additionally, she was medically assessed as unfit to perform operational duties. If the task was such as to require OST Trained officers to take accoutrements, it was also a task which precluded Ms Cotter's participation. Over time, Ms Cotter was excluded from "outside" events. Whilst as Inspector Barrett observed in cross-examination, she was welcome to attend events at Headquarters, such events were primarily held at night. Ms Cotter did not take up the option because of the demands of her travel arrangements and made that difficulty known to Inspector Barrett. Substantially, Ms Cotter had become a person with administrative duties. Great though Ms Cotter's disappointment seems to have been, I share the Industrial Magistrate's view that what had occurred could not be characterised as other than "reasonable management action taken in a reasonable way". I accept, of course, that employers have a responsibility to make adjustments for disabled employees. Particularly is that so where the disablement occurs in the course of the employer's service. However, QPS had shifted Ms Cotter to a non-operational role and had allowed her to maintain her position as a sworn police officer. She had not been required to resign and take employment as a public servant performing administrative duties. The requirements of s. 35(3) of the Act are satisfied by the reasonable implementation of reasonable decisions. QPS was not required to give undue weight to Ms Cotter's shattered dream in the arrangement of its affairs. [12] At first instance, much was made of an incident which occurred on 3 June 2008. It appears from the evidence that Ms Cotter had voiced concerns that younger constables were seeking her position. Her immediate superior, a Mr Blackwell, who was neither a police officer nor OST trained, took her to speak to Inspector Barrett. Inspector Barrett assured her that she had a permanent position. It is clear that Inspector Barrett also described her duties as "administrative". It is equally clear that the comment was distressing to Ms Cotter. Against that (in cross-examination) Ms Cotter admitted that, by that time, her duties were administrative. In any event, Ms Cotter collapsed in tears. At first instance she alleged that, notwithstanding her distressed state, she was ordered by Inspector Barrett to attend a morning tea. The words attributed to Inspector Barrett were "Liz, I want you in there". The allegation was squarely denied. The Industrial Magistrate did not accept Ms Cotter's version. There are no admitted facts and no inconvertible evidence to weight against that finding. I am not prepared to go behind that finding. [13] Before the Industrial Magistrate, complaints were raised also about the way Ms Cotter had been treated by a Senior Constable Rowley, in relation to the packing of some material and about the advertising and deadlines set by Mr Blackwell and the training which he provided. The Industrial Magistrate found that Ms Cotter was not at anytime held responsible for difficulties with advertising deadlines set by Mr Blackwell. Any discourtesy by Rowley and unhelpfulness by Blackwell in relation to training, might occur in any workplace at anytime. They were not nominated to the psychiatrists as causes of Ms Cotter's distress. I understand that having become distressed, Ms Cotter may well have mulled over the whole of her employment and focused on the issues involving Senior Sergeant Rowley and Mr Blackwell. However, it seems tolerably clear that Ms Cotter's psychological/psychiatric condition arose out of or in the course of the diminution of her role within the Recruiting Section and what she perceived to be the marginalisation of her position. If that be so, her psychological/psychiatric condition arose out of or in the course of reasonable management action taken in a reasonable way. [14] The Order of the Court is that the Appeal be dismissed. I reserve all questions as to costs. Dated 10 August 2010. D.R. HALL, President. Released: 10 August 2010 Appearances: Mr K. Fleming QC and with him Ms L. Willson, instructed by Parker Simmonds Lawyers, for the Appellant. Mr P. Rashleigh, directly instructed for the Respondent. -- 3 of 3 --