Curd v Q-COMP [2008] QIRC 43 (2008) 188 QGIG 37

[Extract from Queensland Government Industrial Gazette, Dated 16 May 2008, Vol. 188, No. 3, pages 37-42] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to Commission Marie Majella Curd AND Q-COMP (WC/2007/99) COMMISSIONER FISHER 7 May 2008 Appeal against decision of Q-COMP - Evidence - Finding personal injury diagnosed as major depressive disorder - Injury arose out of or in the course of employment - Employment significant contributing factor to injury - Reasonable management action not taken in a reasonable way - Appeal upheld. DECISION Marie Curd has appealed against the decision of Q-COMP rejecting her claim for damages for a psychiatric illness said to have commenced on 3 September 2004. Before the claim for damages can be considered it is necessary to establish whether Ms Curd suffered an injury within the meaning of s. 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act). Ms Curd claims that she suffered a personal injury being a major depressive disorder arising out of or in the course of her employment with the Moranbah Workers Club (MWC/the Club) and her employment was a significant contributing factor to her injury. Ms Curd also contends that the reasonable management action exclusion contained in s. 32(5) of the Act does not apply. In its review decision Q-COMP found that: 1. Ms Curd was a worker within the meaning of the Act; 2. Ms Curd suffered a personal injury diagnosed as a major depressive disorder; 3. Ms Curd's injury did not arise out of or in the course of her employment; 4. if a finding had been made that the injury arose out of or in the course of her employment, it would have been found that the employment was not a significant contributing factor; and 5. further, although the finding in 3. above did not make it necessary for Q-COMP to consider the exclusionary provision of reasonable management action, had it been considered then the actions of the MWC would have been found to have constituted reasonable management action taken in a reasonable way. Based on the material before me I am satisfied that Ms Curd was, at the relevant time, a worker within the meaning of the Act and that she suffered a personal injury diagnosed as a major depressive disorder. The following issues remain for determination: whether the injury arose out of or in the course of her employment; whether employment was a significant contributing factor to the injury and, if so, whether the reasonable management action exclusion applies. Witnesses Evidence from the following witnesses was given: For the appellant: Marie Curd; and Professor Basil James, Consultant Psychiatrist. For Q-COMP: Alan Madden, President, MWC; Dennis Morgan, Vice President, MWC; James Simpson, Treasurer, MWC; and Dr Michael Leong, Consultant Psychiatrist. It should be noted that the three committee members held their respective positions at the time the events of September 2004 occurred. Because of the passage of time since those events some inconsistency in the evidence arose particularly in respect of which committee members attended certain meetings with Ms Curd. The outline of events given below is the version of events I have accepted based on an assessment of the evidence. Outline of Events The MWC was established in about 1988 by the unions which had members in Moranbah. Initially the unions financed the Club with contributions from their members but it later became self-supporting largely through the sale of alcohol and gambling on poker machines. The members of the Club were its owners and certain members were elected to form a committee of management. In June 1990 the MWC was incorporated. -- 1 of 5 -- 2 In December 1995 Ms Curd's husband commenced employment as the Secretary/Manager of the MWC. He was also the liquor licence nominee and the gambling nominee. Ms Curd commenced employment at the MWC in February 1996. Her role initially included training of employees engaged on traineeships. Ms Curd later became the Catering and Functions Manager. The first few years of the Curds' employment were relatively uneventful. In 2000/01 Ms Curd became concerned with her husband's gambling in the Club. She approached the Club's Committee of Management with her concerns but believed that no action to cease her husband's gambling occurred. The evidence showed however that Mr Curd was told to cease gambling in the Club, although his betting on the horse racing in the Club was not prohibited. From the commencement of Mr Curd's employment Mr and Ms Curd resided in a house owned by the MWC. In 2003 Mr Curd was given the option to purchase the house consistent with a scheme available to miners in the town. Both Mr and Ms Curd signed the contract of sale which contained an option for the MWC to re-purchase the house in certain circumstances including if the owner left the employment of the MWC within seven years of the purchase. In late August 2004 Ms Curd took leave from her employment with the MWC to visit her daughter in Brisbane. During her absence Ms Curd did not hear from her husband so she contacted Alan Madden, the President of the Club, and the Office Manager to see what had happened. Ms Curd returned to Moranbah on or about 1 September 2004. She had received a telephone call from the wife of one of the Committee members asking her to go around to their house on her arrival back in Moranbah. There she was asked if she knew anything about $20,000. To this Ms Curd replied that she was aware that her husband had signed a cheque in that amount. Ms Curd was not provided with further information so subsequently telephoned Jim Simpson, the Treasurer of the Club. Mr Simpson, Mr Madden and John Morgan, the Vice-President, attended her house and told her that money was missing from the MWC. She was not informed then of the amount of money missing. At that stage the Committee members assured her that her job at the MWC was secure. On later meeting with the auditors who had been called in by the MWC Ms Curd learned that $200,000 was missing and her husband was responsible. After this meeting Ms Curd met again with Mr Madden, Mr Simpson and another Committee member. Discussions ensued about the impact of Mr Curd's conduct on Ms Curd continuing to live and work in the town. On that occasion the Committee members suggested to Ms Curd that it would be in her best interests if she resigned her employment. The suggestion was made in light of advice from the Club's auditors who believed that Ms Curd should have known something was "going on". Although evidence of the actual words used in the conversation by the Committee members varied to some extent it is apparent that the Committee clearly indicated members of the Club were upset and angry with Mr Curd's conduct and it was likely that Ms Curd was likely to suffer some abuse as a result were she to return to the MWC. Ms Curd's daughter, who was present at the meeting, suggested that her mother should seek legal advice, to which the Committee members agreed. Approximately a week later the Committee asked Ms Curd to consider exercising the option under the Option Agreement attached to the contract of sale of the house for the Club to re-purchase it. Ms Curd subsequently resigned her employment with the MWC by letter dated 20 September 2004 and by separate letter of the same date advised the Club of her wish to sell the house back to the MWC. Both letters were written after receiving legal advice. The Club accepted Ms Curd's resignation and subsequently re-purchased the house. During the time that Ms Curd was considering her employment and housing situations her husband was still missing. In early October 2004 Mr Curd was apprehended in northern New South Wales. He was subsequently charged with and convicted of embezzlement. He was sentenced to three years' imprisonment with a minimum of six months to be served. Since his release Mr and Ms Curd have not reconciled. Ms Curd is presently working less than full-time hours in a retail position. Evidence regarding Ms Curd's mental health In 2001 Ms Curd suffered a depressive disorder and did not work for a period of three months. She sought treatment from the local General Practitioner and was prescribed medication which she was still taking in 2004. It seems that her condition stabilized until the events commencing in August/September 2004. One of the issues for determination is whether the injury arose out of or in the course of Ms Curd's employment. Part of the difficulty in determining this is that Ms Curd did not contemporaneously report to any medical practitioner the issues about the health impact of the events in August/September 2004. The first report was made in July 2006. -- 2 of 5 -- 3 The evidence given by Ms Curd in the hearing was that she was in "a mess" when the Committee members arrived for the first meeting at her house. Mr Morgan confirmed that Ms Curd was in "a bad state" at the time. When this occurred, Mr Curd had been missing for a week or so without contacting his wife and Ms Curd had been asked what she knew of $20,000. It is not surprising that Ms Curd was in a distressed state even before being asked to resign and the issue of the house being raised. Professor James first saw Ms Curd on 5 July 2006. In his report of 15 September 2006 Professor James said that of all of the events beginning in August 2004 - the disappearance of her husband; the suspicion that he had stolen a substantial sum of money; the subsequent criminal proceedings and his imprisonment - the most psychologically destructive was the required resignation. The disappearance of Mr Curd and his subsequent participation in the criminal justice system would have caused anxiety for Ms Curd but the major factors causing the severe depressive episode were those that removed the most important elements of her life and her self-image and without which she may have survived the other stressors without decompensation. He said that her resignation involved a series of losses including loss of her job which was important for her identity; loss of her circle of friends; loss of reputation and belief that she was no longer perceived as a separate individual and loss of her home. It is Professor James' opinion that these loss events are more typically associated with the disorder of depression. A subsequent report was provided by Professor James in July 2007. In it he confirmed his opinion that Ms Curd is not characterologically predisposed to distorted perceptions. Professor James' oral evidence elaborated on his opinions. In particular, he noted that when Ms Curd resigned and made the decision regarding the house she would have been in a great state of vulnerability and helplessness. Dr Leong saw Ms Curd on 11 May 2007. Amongst other documentation, he also had available to him Professor James' report of 15 September 2006. After assessing Ms Curd and Professor James' report, Dr Leong concluded that "there are other significant losses in her life round that time, the loss of her husband and also her marriage and also her reputation and financial losses were equally, if not more significant losses in addition to the loss of her job". In his evidence-in- chief Dr Leong confirmed his opinion that the clinically significant precipitating factors to Ms Curd's depression were related to the events of 2004: the disappearance of her husband; his subsequent arrest, conviction and jailing which led to their marriage breakdown and a feeling of betrayal by her husband. In cross-examination Dr Leong agreed that from employment human beings derive self-esteem, self-confidence and financial benefits and that the loss of those things can be very significant events in a person's life. He acknowledged that Ms Curd reported to him that she felt devastated at the loss of her job which she had put everything into for a number of years and agreed that this loss would have impacted on her self-esteem. Did Ms Curd's injury arise out of, or in the course of, her employment and was the employment a significant contributing factor to it? The onus rests with Ms Curd to establish on the balance of probabilities affirmative answers so as to satisfy s. 32(1) of the Act. The difficulty that arises in this matter is that there is no contemporaneous reporting of the injury by Ms Curd. The first reporting occurred nearly two years after the events commenced. It is possible that when Ms Curd consulted Professor James and later Dr Leong she had a jaundiced view of the employment issues and placed greater weight on them than they had at the time. This possibility was conceded in cross-examination by Professor James. Accordingly, it is necessary to consider the whole of the evidence to ascertain the significant contributing factor(s). Both Psychiatrists acknowledge that a number of factors contributed to Ms Curd decompensating. They differ on the weight to be ascribed to the various factors that were in play - Mr Curd's disappearance, misconduct and subsequent participation in the criminal justice system; the effect of Mr Curd's behaviour on Ms Curd personally, her reputation and social network; the request for her resignation and the loss of her house. For the injury to fall within s. 32(1) it is necessary to establish that the employment was a significant contributing factor. Employment must be more than the setting in which the injury occurs; it must be the real or effective cause: Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100. Ms Curd's distress was evident from the first meeting with the MWC Committee in early September 2004. At that time the issue of Ms Curd resigning was not raised by the Committee members so her distress would then have largely related to the effect of her husband leaving Moranbah under a cloud. The full extent of his misconduct had not yet been revealed. In Ms Curd's resignation letter of 20 September 2004 she advised that her resignation was as a result of the "pending investigation of her husband" and "his departure from Moranbah" and that "due to the emotional stress and trauma of recent events ... it would be impossible ... to continu(e) living in such a small town". Although Ms Curd expresses regret at having to resign no mention is made of the resignation being involuntary. -- 3 of 5 -- 4 Item 36 of the Notice of Claim for Damages requires the claimant to state, where the injury occurred over a period of time, to nominate the date the event resulting in the injury commenced. Ms Curd has nominated the date as 3 September 2004 - the date she states in the claim that she returned to Moranbah after visiting her daughter in Brisbane. The medical opinions do not suggest that the injury did not occur over a period of time. Accordingly, the employment factors of being requested to resign and to consider exercising the re-purchase option cannot be discounted as being contributing factors to the injury. The issue is whether the employment was a significant contributing factor to the injury. For the injury to arise out of or in the course of employment it is necessary to establish that employment is a significant contributing factor. Where, as the case here, multiple contributing factors exist employment need only be one such significant contributing factor in order to satisfy the requirements of s. 32(1). I am satisfied on the evidence of both Psychiatrists that loss of employment can have a significant impact on a person. In the context of this case the loss of employment also led to the loss of a home. Such a loss can also be significant. Although many negative events were occurring in Ms Curd's life in September 2004 the evidence has established that loss of employment had a significant impact on Ms Curd's mental health. The evidence of both Psychiatrists supports that conclusion. Accordingly, I find that Ms Curd suffered an injury within the meaning of s. 32(1) of the Act. Is the injury excluded from s. 32(1) because it arose out of, or in the course of, reasonable management action taken in a reasonable way by the employer or Ms Curd's expectation or perception of reasonable management action? Ms Curd complains of two management actions, viz.: (i) being asked to resign; (ii) being asked to exercise the option to enable the Club to re-purchase the house. (i) Resignation The evidence from witnesses who formed the Club's Executive at the relevant time was a little contradictory about how and by whom Ms Curd's continued employment was raised. I am satisfied on the evidence that Ms Curd was asked to resign her employment by members of the Club's Executive. This request was made on the advice of the auditors who considered Ms Curd would have known about her husband's conduct. This was not the reason put to Ms Curd at the time. The request for the resignation as verbalized to Ms Curd was couched in concern and compassion for her well- being on the grounds that had she returned to work then she was likely to suffer abuse by members given the conduct of her husband. I do not doubt that Ms Curd would have suffered abuse by the members. The MWC membership is comprised largely of miners who have a reputation for being robust. Given the magnitude of Mr Curd's theft it was inevitable that some members would have vented their anger and disgust at Ms Curd, the perpetrator's spouse. Although Mr Madden accepted that the Club could have taken action to ensure that Ms Curd was protected from such abuse it is clear that the other Committee members were not inclined to be protective and in this way would have been abrogating their responsibilities under the Workplace Health and Safety Act 1995 to provide a safe place of work. Indeed, it is apparent from some evidence that they believed that Ms Curd was involved in or at least had knowledge of her husband's misconduct. It is important to note, however, that no charges have ever been brought against her. Although I believe Ms Curd would have suffered abuse by MWC members I am not satisfied that the request for her resignation constituted reasonable management action taken in a reasonable way. The difficulty is that the Club's request for her resignation constituted discrimination in employment on the grounds of relationship (or marital) status. This is because the Club imputed to Ms Curd the characteristic that because of her marriage she was likely to be engaged in the misconduct of the type undertaken by her husband: Waterhouse v Bell (1991) 25 NSWLR 99. The seeking of legal advice by Ms Curd as to her employment situation does not absolve the Committee of its responsibility to treat Ms Curd in a non-discriminatory way. Discriminatory treatment cannot constitute reasonable management action taken in a reasonable way. (ii) House The Committee also raised with Ms Curd the prospect of her requesting the Club to exercise its rights under the option agreement attached to the contract for sale of the house. The evidence suggests that certain Committee members wished to ensure Ms Curd exercised the owner's option to require the Club to re-purchase the house for the new Secretary/Manager and so sought her resignation. -- 4 of 5 -- 5 It was clear on the evidence that not all committee members understood that both Mr and Ms Curd had purchased the house. There was also confusion about whether Ms Curd was an "Owner" under the Option Agreement General Conditions as the Reference Schedule to the Option Agreement specifies the "Owner" as being both Theo Lester Curd and Marie Majella Curd whereas the "Employee Owner" is given as Theo Lester Curd only. The Option Agreement General Conditions referred in Clause 1.1 to the "Employee Owner" but subsequently only to the "Owner". Clause 1.1 does not contain a provision to the effect that "Employee Owner" was thereafter referred to as "Owner." Clause 10 of the Option Agreement General Conditions requires the Owner to consent to a non-lapsing caveat being lodged over the property to protect the rights and interests of the Seller. Given that the house was available to Mr Curd as part of his salary package it is likely that the reference to "Owner" in the Option Agreement General Conditions refers to Mr Curd. The triggers for the Club to re-purchase the house include the Owner leaving the employment of the Seller or the Owner ceasing to reside in the property. Both of these triggers applied in the case of Mr Curd but it was Ms Curd (an Owner but not the Employee Owner) who notified the Club in accordance with the relevant provisions of the Option Agreement General Conditions requiring the Club to re-purchase the house. The legal dilemma concerning the meaning of the Option Agreement General Conditions is not a matter for me to determine. The question concerning the house re-purchase is whether it was reasonable management action taken in a reasonable way for the Club to seek Ms Curd to exercise the option available so that the Club could re-purchase the property. On one level it is understandable that the Club sought to recover the house so that it could be available for the new Secretary/Manager. However, the means used to achieve this end were unscrupulous. The Club sought Ms Curd's resignation so as to engineer her into exercising the re-purchase option. I do not consider such actions to be reasonable management action taken in a reasonable way. Ms Curd's injury is therefore not excluded by s. 32(5) of the Act. Conclusion My findings can be summarized as follows: 1. Ms Curd was a worker within the meaning of the Act; 2. Ms Curd suffered a personal injury diagnosed as a major depressive disorder; 3. Ms Curd's injury arose out of or in the course of her employment; 4. the employment was a significant contributing factor to the injury; and 5. the actions of the MWC were not reasonable management actions taken in a reasonable way. Accordingly, Ms Curd's injury is one that falls within the meaning of the Act. The decision of Q-COMP is therefore set aside and the appeal is upheld. Order accordingly. G.K. FISHER, Commissioner. Hearing Details: Appearances: 2008 31 March and 1 April Released: 7 May 2008 Mr K.C. Fleming, QC instructed by Dempseys Lawyers on behalf of the Appellant. Mr P.B. Rashleigh instructed by Q-COMP on behalf of the Respondent. Government Printer, Queensland The State of Queensland 2008. -- 5 of 5 --