Boustead v Q-COMP [2008] QMC 7

MAGISTRATES COURTS OF QUEENSLAND CITATION: Boustead v Q-COMP [2008] QMC 7 PARTIES: BRADLEY STEPHEN BOUSTEAD (appellant) v Q-COMP (respondent) FILE NO/S: Brisbane MAG200850/07(6) DIVISION: Industrial Magistrates Court PROCEEDING: Appeal against decision of Q-COMP ORIGINATING COURT: Industrial Magistrates Court at Brisbane DELIVERED ON: 21 July 2008 DELIVERED AT: Brisbane HEARING DATE: 14 April 2008; 15 April 2008 MAGISTRATE: Callaghan CJ ORDER: Appeal allowed CATCHWORDS: INDUSTRIAL MAGISTRATES COURT – APPEAL AGAINST Q-COMP DECISION – WHEN INJURY OCCURED – does mitigation of further stressors negate claim for initial injury Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 32 COUNSEL: J McClymont appeared for the appellant G Stenson appeared for the respondent SOLICITORS: Macrossans for the appellant Respondent on their own behalf [1] Bradley Stephen Boustead appeals against the review decision of Q-Comp of 29 October 2007 which confirmed the decision of WorkCover Queensland of 30 May 2007 to not accept his application for workers‟ compensation which he made on 22 March 2007. [2] The grounds of appeal as set out on the notice of appeal are:- -- 1 of 12 -- 2 1. The Review Officer was wrong to find that the exclusionary provisions of section 32(5) of the Workers’ Compensation and Rehabilitation Act 2003 precluded the acceptance of this claim; 2. There was sufficient evidence adduced by the appellant that established on the balance of probabilities that:- (i) the appellant was a worker; (ii) the injury arose out of or in course of employment; (iii)employment was a significant contributing factor to the injury; and (iv) the injury did not arise from reasonable management action taken in a reasonable way by the employer.” [3] The appeal was heard over two days on 14 and 15 April 2008. [4] The appellant, who was at the material time a secondary high school teacher at the Maleny High School, gave evidence and called evidence from Cameron Page who at the material time was also a secondary high school teacher at the Maleny High School and Heidi Gills, the appellant‟s general medical practitioner. [5] The respondent called Matthew Fitton who was at the material time the deputy Principal of the Maleny High School and Josephine De La Paz, a psychologist. The respondent also tendered a statement of Paul Tarbuck, the school‟s Principal at the material time pursuant to section 92(2)(b) of the Evidence Act 1977. [6] To succeed in this appeal, the appellant must prove, on the balance of probabilities, relevantly the following:- 1. That he was at the material time a worker pursuant to section 11 of the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”); 2. that he suffered a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury1; and 1 pursuant to section 32(1) of the Act -- 2 of 12 -- 3 3. that the personal injury did not arise out of, or in the course of “reasonable management action taken in a reasonable way by the employer in connection with the (appellant‟s) employment”2. THE FACTS [7] In the afternoon of 14 February 2007 the appellant and about three or four other teachers were supervising about one hundred students who, as they were not participating in inter-school sporting events, were left at the school. [8] Beau Guest was then a student in year 9 and was one of the students being supervised back at the school. [9] Early in that afternoon Beau Guest, due to some incident, was sent to the Deputy Principal‟s office. Thereafter the students were separated into various activity groups. [10] About twenty minutes to one half hour after Beau Guest was sent to the Deputy Principal‟s office the appellant noticed that he was playing ping pong with one of these groups. [11] It appears that nothing of any significance happened at that time. [12] About ten minutes before the bell was to sound signifying the end of the school day, the appellant noticed three students at the school‟s fence. He went up to them and started to speak with them. [13] He then gave the following evidence:- 1. That whilst talking to them Beau Guest was at a window upstairs yelling to him “hey you, teacher, you leave those kids alone.”; 2. He left the three students and went upstairs straight to Beau Guest and said “was it you yelling out to me down below?”; 2 pursuant to section 32(5)(a) of the Act -- 3 of 12 -- 4 3. Beau Guest “arched up” at this, came towards him, into the appellants space, and started to push the appellant, saying “Do you want a fight?”; 4. The appellant said “mate this is just a yes, no, question; that‟s all I ask.” 5. Beau Guest became really agitated and the appellant thinking that either Beau Guest was going to hit him or that he was going to lose it with Beau Guest walked away; 6. Beau Guest then threw something at him, which hit him in the back; 7. The appellant then left and went downstairs and heading towards the administration block. There was a large audience of parents who were there to pick up students and students gathering at this time. As he walked towards the administration block Beau Guest yelled out at the top of his voice “I‟m going to get you, you big fat blue cunt.” 8. The appellant by that stage was steaming and angry went to the staff room in the administration block where he says he deflated fairly quickly by returning to normal. 9. The appellant wrote out a hand written statement as to what had occurred, showed it to Cameron Page, another teacher who had witnessed the incident and then took it and gave it to Ian Fitton the Deputy Principal. 10. The next day the Principal, Mr Paul Tarbuck, spoke with the appellant and asked the appellant if he was prepared to be a part of a mediation process with the child (who had been kept away from school that day). The appellant said “if that‟s what you want me to do, then that‟s what you want me to do.” [14] The appellant said he had expected to be called to that mediation on the following day which was Friday. He says that about 2:30 or 3:00 pm that Friday afternoon he spoke to the school‟s Chaplin who told him that Beau Guest had received a three-day suspension. The appellant didn‟t consider that to be a very big suspension given that he had already had the day off previously, today was Friday and Monday was the school‟s swimming carnival. The appellant had not been asked to be part of any disciplinary process other than the first approach as to whether or not he would be prepared to be involved in mediation. -- 4 of 12 -- 5 [15] The following Tuesday Beau Guest returned to the school. The appellant said he passed him in the playground and had unpleasant eye contact with Beau Guest who appeared to the appellant to be agitated with him. [16] The appellant gave evidence also that during the course of that week that another student came up to him unsolicited and said, “Hey, Mr B, Beau still wants to fight you.” Also he gave evidence that one of the girls in his year 10 classes and a friend of hers came into his class. He approached the girls telling them that they both could not sit at the same computer, took one girl aside and set her up on another computer and then came back to the first girl who put her hands up and said “get away from me you freak.” [17] He also gave evidence that another student from another class mentioned the Beau Guest incident as well. [18] He gave evidence that he started to think “hang on, this guy‟s out there spreading rumours and stirring the pot a bit.” [19] He gave evidence (and said the same to the psychologist Ms De La Paz) that, “whilst it is really no big deal, I would have liked somebody (in the staffroom) to maybe say, „Brad, I‟m sorry it‟s happened – this has happened; how are you feeling?‟ That‟s all.” He said he would have liked a bit more support. [20] By Sunday night of that week which followed the incident he says that he felt the carpet was being pulled out from under him and that he needed to go and see someone. He gave evidence that his self-esteem was disappearing, that he thought his respect as a teacher had been lost and that he did not know when another incident was going to happen. [21] He said that on the Monday after crying in the shower he made his decision to see Dr Heidi Gills as soon as possible, and made an appointment to see her the following Wednesday. On the Tuesday before he saw Dr Gills he spoke to his union organiser who happened to be at the school. -- 5 of 12 -- 6 [22] He saw Dr Gills on the Wednesday. She wrote him out a certificate authorising him to have two weeks off work. [23] The appellant returned to full time work at the start of semester two of 2007, which is after the June/July holidays. He had started some work slightly before the Easter break and had a gradual return to work prior to the commencement of semester two 2007. [24] Cameron Page was one of the supervising teachers that afternoon. He said that he had sent Beau Guest to the Responsible Thinking Classroom as he had being disrupting the initial talk to all of the students by the appellant by constantly talking. Apparently because of an earlier incident at that Responsible Thinking Classroom Beau Guest was redirected to the Deputy Principal Matthew Fitton. Sometime later Beau Guest was allowed to join the table tennis group which was by that stage being supervised by Cameron Page. Mr Page said that he noticed Beau Guest yelling out the window but he didn‟t hear what Beau Guest was saying. A short time after that the appellant came upstairs and when he was about a table away from Beau Guest said to him “Were you talking to me?”. Beau Guest, according to Mr Page ignored the appellant and the appellant went up to a position which was about 1 metre away from him where the appellant once again said “Were you talking to me?”. At that Beau Guest, according to Mr Page, pushed the appellant‟s arm out of the way. The appellant said, “You just assaulted me”. Beau Guest said, “No, man, you‟re assaulting me by talking to me.” The appellant then again said, “Were you talking to me outside?” where after Beau Guest then said “Alright. Let‟s go. Let‟s have a fight.” Mr Page says that Beau Guest then started to face up to the appellant and was very aggressive. He said that the appellant said, “Look, you know, were you talking to me; yes or no?” Mr Page says that he can‟t remember the words that Beau Guest was saying but he said that it was aggressive talk about fighting and going outside. He then says that the appellant said “Alright. Well I‟m going to admin and I‟m going to talk to Mr Tarbuck.” Mr Page says that as the appellant was then walking past the table tennis table Beau Guest picked up a table tennis ball and full-on threw it and hit the appellant in the middle of the back. Mr Page said that he then told Beau Guest to calm down and that he needed to go back to see the Deputy Principal whereupon Beau Guest faced up to Mr Page and invited him outside for a fight. After a short time with some further words he says that Beau Guest threw the bat down onto the table and started walking away. He said that -- 6 of 12 -- 7 before leaving he was yelling out the window towards the appellant “You blue fat cunt.” This was in front of other students who had been released from classes and were starting to line up to catch buses home. [25] Both the appellant and Mr Page were, in my view, witnesses of some credit. Whilst there were some inconsistencies between their evidence as to what precisely occurred around the table tennis table those inconsistencies were minor and the type of inconsistencies one would expect from witnesses of truth when giving evidence about an incident which occurred over a very short period and which occurred in an aggressive and highly charged atmosphere. Mr Page in particular said that whilst he did see Beau Guest push the appellant‟s arm out of the way when the appellant had had his hand out and was pointing his finger to Beau Guest he did not see Beau Guest push the appellant in the chest or anything like that. He said that Beau Guest had his back to him when Beau Guest was chesting up to the appellant. [26] Mr Fitton gave evidence in the case for the respondent. He said that the appellant came over to see him as a result of the incident referred to above which had occurred towards the end of the last period of the day. He said that the appellant was upset. In describing why he came to that conclusion he said that the appellant seemed angry and a little flushed in the face. He‟s known the appellant for eight years and he could tell when he was angry. He said that it would be understandable that a person in the appellant‟s position would be upset following an incident the like of which had just occurred. THE MEDICAL EVIDENCE [27] Dr Gills was consulted by the appellant on the 28 February 2007, two weeks after this incident. She formed the view that the appellant was completely incapacitated for work from 28 February 2007 to 16 April 2007 and then fit to participate in a graduated return to work program from 17 April 2007 to 22 June 2007. She also said that she believed that the injury arose after the assault on the appellant on 14 February 2007 and was as a result of that assault. So much is revealed from her report which is exhibit 4 in the proceedings. In evidence she said that she diagnosed the appellant as suffering an adjustment disorder. She said that the things that happened after the assault affected the appellant and she said that a person who is suffering an adjustment disorder would -- 7 of 12 -- 8 have their own perception of their own need for support affected. Ultimately she said that it was her opinion that the assault was causative and the other matters were exacerbating the illness which had derived from the assault. [28] In cross-examination she gave further particulars of the “things” that happened after the assault as disclosed to her by the appellant in his initial consultation with her. Those things were that other incidents had occurred during the week following the assault where other students had said things to him; that he felt unsafe and intimidated in his high school environment and that there had not been any communication with him as to what was going to occur with the student as a result of the assault. [29] She said that the appellant did not tell her at that first consultation that he cried in the shower a couple of days earlier. [30] In my view the fact that the appellant did not tell his doctor of his crying in the shower does not affect the credit of the appellant‟s evidence. There are many reasons why a person might not provide that detail to the person‟s medical practitioner such as he simply forgot it or he found it embarrassing. Further I am of the view that this non- disclosure at the first consultation does not detract from her opinion given in Court. [31] Ms De Le Paz, a psychologist gave evidence in the respondent‟s case. She, in her report which was exhibit 6 in the proceedings, which was dated 10 April 2007 and which was a result of an assessment of him conducted by her on 4 April 2007, assessed the appellant as having developed an Adjustment Disorder with Depressed Mood. [32] In her evidence she said that the physical and verbal assault of the 14 February 2007 triggered the Adjustment Disorder and the matters that followed the assault may have made the Adjustment Disorder, which would normally be only of short duration, last longer and may have made the symptoms worse. She said quite specifically that the Adjustment Disorder was sustained, or triggered as a result of the assault. She said specifically that the Adjustment Disorder with Depressed Mood was an immediate reaction to the assault. -- 8 of 12 -- 9 [33] I find, given the medical evidence, that the appellant sustained an Adjustment Disorder with Depressed Mood immediately upon being assaulted and that he was already suffering that injury at the time he was subjected to the subsequent events or “stressors” which exacerbated the symptoms of his injury by causing them to last longer than they would have and by making them more severe. THE LAW [34] It is clear on the evidence and it has not been contested in this appeal that the appellant was at the material time a worker pursuant to section 11 of the Act. [35] Sub-section 32(1) of the Act provides – “An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.” [36] Sub-section 32(5) of the Act provides – “Despite subsection (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances— (a) reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment; (b) the worker’s expectation or perception of reasonable management action being taken against the worker; (c) action by the Authority or an insurer in connection with the worker’s application for compensation.” -- 9 of 12 -- 10 [37] The respondent in its submissions does not dispute the fact that the appellant‟s “personal injury” arose out of or in the course of his employment, and that the employment was a significant contributor factor. [38] The point to be determined upon this appeal is therefore whether the appellant has established, on the balance of probabilities, that sub-section 32(5) does not exclude the appellant‟s personal injury from the definition in sub-section 32(1). [39] The respondent argues that there were three stressors which were reasonable management actions taken in a reasonable way by the employer which (in addition to the assault) caused the injury to arise. They were:- 1. The appellant was not included in the mediation meeting3; 2. The penalty of three days suspension was perceived to be lenient4; 3. There was lack of support from the appellant‟s colleagues5. [40] Whilst arguing that all 3 “stressors” were reasonable management action taken in a reasonable way by the employer in connection with the appellant‟s employment, the respondent says that the decision of President Hall in Q-Comp v Education Queensland [2005] QIC46; 179QGIG 491 (“McArthur‟s case”) is authority for the proposition that if there is any one stressor which was as a result of reasonable management action taken in a reasonable way and which significantly contributed to the injury then the injury is excluded by sub-section 32(5) from the definition in sub-section 32(1), and accordingly I would only have to be not satisfied on the balance of probabilities that 3 See paragraph 14 herein 4 See paragraph 14 herein 5 See paragraph 19 -- 10 of 12 -- 11 any one of the above “stressors” did not significantly contribute to the injury and was not reasonable management action taken in a reasonable way. [41] The difficulty I have with the respondent‟s submission lies in the evidence of its own witness, Ms De Le Paz, in that the injury, being the adjustment disorder as a psychiatric condition was an immediate reaction to the assault and sustained or triggered by, and at the time of, the assault. [42] The phrase “arising out of” involves some causal or consequential relationship between the injury and the employment (for these purposes replace “employment” with “reasonable management action”) and I appreciate that the phrase is wider then that posited by the phrase “caused by”.6 However by the time that the Appellant suffered each of the “stressors” the injury had already arisen. Whilst an injury can arise from more then one source, once the injury has arisen from one source it cannot arise again, unless it firstly disappears. [43] Here the medical evidence is quite clear that the injury (adjustment disorder) arose at the time of the assault, it did not disappear before any of the “stressors” presented themselves. [44] Having made that finding it is not necessary to consider whether the “stressors” were matters of reasonable management action taken in a reasonable way by the employer in connection with the appellant‟s employment. CONCLUSION -- 11 of 12 -- 12 [45] I find that the Appellant has established on the balance of probabilities that: 1. the Appellant was a worker within the meaning of that term in the Act; 2. the Appellant suffered a personal injury (Adjustment Disorder) which arose out of or in the course of his employment as a secondary school teacher on 14 February 2007; 3. his employment was a significant contributing factor to the injury; 4. the injury did not arise out of or in the course of: (i) reasonable management action taken in a reasonable way by his employer in connection with his employment; (ii) any expectation or perception held by the Appellant of reasonable management action being taken against the Appellant; or (iii)any action by the Workers‟ Compensation Regulatory Authority or WorkCover in connection with the Appellant‟s application for compensation. [46] It follows therefore that the Appeal is allowed. [47] In accordance with section 558(1)(c) of the Act I set aside the decision of the Respondent dated 29 October 2007 and substitute it with the decision that Compensation is payable to the Appellant under the Act. 6 See Avis v WorkCover Queensland [2000] QIC 67 (7 December 2000); 165 QGIG 788 -- 12 of 12 --