Coombes v Q-COMP [2007] ICQ 48 (2007) 186 QGIG 680

Extract from Queensland Government Industrial Gazette, Dated 23 November 2007, Vol. 186, No. 16, pages 680-683] INDUSTRIAL COURT OF QUEENSLAND Workers' Compensation and Rehabilitation Act 2003 - s. 561 - appeal against decision of industrial commission Briony June Coombes AND Q-COMP (C/2007/44) PRESIDENT HALL 14 November 2007 DECISION Briony June Coombes was employed by IPA Personnel Pty Ltd from 2 January 2005 until 10 March 2006. She last performed work for the company on 16 January 2006. On that day she left the company's premises in a distraught state. She did not return. On 10 March 2006, Ms Coombes lodged an Application for Compensation under the Workers' Compensation and Rehabilitation Act 2003 (the Act). The claim was for a psychiatric/psychological injury said to have occurred over a period of time commencing in November 2005 and ending with her departure from the workplace on 16 January 2006. The injury was attributed to "workplace bullying and sexual harassment". By a letter dated 22 June 2006 WorkCover Queensland (WorkCover) informed Ms Coombes that her claim had been accepted for "major depression; generalised anxiety disorder sustained over a period of time 3 January 2005 to 19 January 2006". Ms Coombes was also informed that WorkCover would pay benefits to her from 19 January 2006. On 7 August 2006 IPA Personnel Pty Ltd filed an Application for a Statutory Review. Shortly thereafter, on 26 September 2006, a Review Officer of Q-COMP gave written notice to Ms Coombes and IPA Personnel Pty Ltd that WorkCover's decision to accept Ms Coombes' claim for compensation had been set aside. In short form, the Review Officer had teased out the incidents and transactions that had occurred during the course of Ms Coombes' employment, had branded some of the conduct to which Ms Coombes had been subject as other than management action, had branded other conduct as reasonable management action reasonably taken and had found a sufficient causal connection between Ms Coombes' condition and the reasonable management action reasonably taken to justify a conclusion that Ms Coombes had not clambered over the barrier to her claim posed by s. 32(5). On 24 October 2006, Ms Coombes lodged an appeal against Q- COMP's decision to the Queensland Industrial Relations Commission. By a decision dated 1 August 2007, now reported 185 QGIG 331, the Queensland Industrial Relations Commission rejected Ms Coombes' Appeal. On 13 August 2007, Ms Coombes commenced an Appeal to this Court against the decision of the Queensland Industrial Relations Commission. The first ground taken was that the Commissioner into whose hands the matter had fallen had failed to discharge His Honour's duty to give adequate reasons for his decision as required by the well known line of authority Pettitt v Dunkley [1971] 1 NSWLR 376, Soulemzis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 241, Sun Alliance Insurance Limited v Massoud [1989] VR 8, Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd [2002] 6 VR 1 and Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd.R. 462. It was the first ground of the Appeal which was developed by the Appellant by the outline of submissions filed pursuant to a Directions Order. By his outline of submissions in reply, Counsel for Q-COMP took the point that an appeal based upon inadequate reasons and s. 561 of the Act could not lead to the grant of the relief sought, viz. remitter of the matter to the Queensland Industrial Relations Commission to be heard and determined according to law. The submission was correct. Section 562 does not authorise the Court to grant such relief where a s. 561 appeal is successful. In those circumstances, the Appeal was ultimately pressed pursuant to s. 248(1)(e) of the Industrial Relations Act 1999. As in Carter v Q-COMP (2007) 184 QGIG 155 at 156-157, the attack upon the decision of the Commission was that there had been a constructive failure to exercise jurisdiction. In fairness, although the application by way of appeal made no reference to s. 248(1)(e), the second ground of appeal concentrates upon the Commissioner's failure to deal with a range of matters and encompasses the argument ultimately pursued. Q-COMP has not sought an adjournment. The argument pressed is very similar to the argument in the Appellant's outline of submissions. (Though, perhaps oddly, it is now contended that the inadequate reasons show plainly enough that the Commissioner did not hear the case which had been argued before His Honour.) The matter cannot be re-heard on the record. There are issues of credibility. With respect to the Commissioner, generalised comment about one witness does not resolve the issues. In those circumstances, the proper course seems to me to deal with the substance of the matter argued on the Appeal. There were four expert witnesses: viz. Ms Keller (psychologist), Dr Lotz (psychiatrist), Dr Richards (psychiatrist) and Dr Weller (general practitioner). It is common ground that in preparing the written opinions tendered at first instance each of the experts took Ms Coombes' history from Ms Coombes herself. It is tolerably clear that no expert was given a full and accurate history. That is a serious matter. An opinion is only as good as the facts upon which it is based. In R v Turner [1975] QB 834 at 840 Lawton LJ said: -- 1 of 4 -- 2 "... Before a Court can assess the value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant facts into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless.". Strictly, as Lawton LJ went on to observe, Counsel calling an expert witness should ask the witness to state the facts upon which it is based. Strictly, it is not for opposing Counsel to elicit the facts by cross-examination. Further, in the absence of agreement, all of the facts should be established by evidence, compare Pollock v Wellington (1996) 15 WAR 1 at 3 per Anderson J. However, the world is not a perfect place. It is not infrequently the case that persons seeking benefits under the Act for disorders of the mind fail to provide a comprehensive history. Commonly, the claimant recounts the events which the claimant considers to be the cause of his/her problem on his/her perception of the facts. The legal representatives of such claimants are often no more favoured than the experts. Commonly, Counsel for the insurer or an employer granted leave to be heard will elicit the additional history. Because expert witnesses are (properly) interposed when available, an alleged history is often put as a hypothesis because the evidence about the history has yet to be led. The inconvenience is justified by necessity. I refer to all those matters because in this case the Commissioner was greatly concerned about Ms Coombes' failure adequately to disclose her history. Certainly, the Commissioner was very much more concerned about that matter than the experts. At 185 QGIG 331 at 334 the Commissioner observes: "All of these practitioners have stated, during the course of giving evidence, that had all the details been disclosed by the Appellant at the time of the consultation, they may have considered her condition differently.". "All" can only be read as a reference to the evidence of Ms Keller and Dr Lotz; viz. the two experts whose evidence was referred to by the Commissioner. Neither Dr Richards nor Dr Weller, whose evidence was not discussed, vacillated from the opinion originally given. Limited to Dr Lotz and Ms Keller, the observation continues to be incorrect. The limitation which Dr Lotz was prepared to place upon his original opinion when apprised of the additional history was expressed in very qualified language indeed. If one goes to the cross-examination of Dr Lotz, the transcript (at 173) shows: "All right. Given all of these factors that I've now put to you in the course of the cross-examination, Dr Lotz, do you still hold to your opinion that it was the bullying and harassment by Mr Goldstein that was a significant contributing factor to the onset of her two psychiatric conditions that you've diagnosed?-- Well, there certainly seems to be a lot more factors and I can't definitively say unless I were to interview Ms Coombes again.". Then, in re-examination (at 175) in answer to a leading question going to the ultimate issue to which objection was not taken, Dr Lotz said: "In light of all of the evidence you've given, what you know and what you have read, you understand the concept of the balance of probabilities, Doctor?-- Yes. As a legal concept, more likely than not?-- Yes. Okay. On the balance of probabilities, do you consider that Briony Coombes was suffering from a major depressive disorder when you saw her?-- Yes. On the balance of probability, do you consider that the actions of Mr Goldstein were a significant contributor to that?-- Yes, a significant contributor. And would you say the same about the generalised anxiety disorder or would you say something different?-- Part and parcel of the whole package, yes.". The Commissioner's remark was not a matter of loose language. The Commissioner also said (at 335): "It is of concern to the Commission that both Ms Keller and Dr Lotz in cross-examination confirmed that on the basis of the additional factors raised, they had doubts as to whether they could find the employment at IPA was a significant contributing factor to the Appellant's condition.". Again, in relation to Dr Lotz, the sentence is incorrect. The sentence, one must add, appears to have been taken from Q- COMP's written submissions below. Paragraph 52 consists of the following sentence: "Further, both Ms Keller and Dr Lotz in cross-examination confirmed that on the basis of the additional factors put to them during cross-examination, they had doubts as to whether they could find the employment at IPA Personnel Pty Ltd was a significant contributing factor to her condition.". I doubt that there is any force in Counsel for the Appellant's submission that the sentence reveals that the Commissioner had confused the burden of proof carried by a claimant for workers' compensation with the burden carried by the Crown in criminal proceedings. The correct (civil standard) is enunciated in Q-COMP's written submissions below and at the outset -- 2 of 4 -- 3 of Counsel for the Appellant's final oral submissions. However, the sentence does spark apprehension that a decision was being cobbled together. The omission to refer to the evidence of Dr Richards is most perplexing. Dr Richards' evidence was very favourable to Ms Coombes. The additional history put to him when evidence was taken by telephone caused him to resile not at all from his written opinion. At the level of "adequacy of reasons" a judicial officer - and the Queensland Industrial Relations Commission is a Court of Record, s. 255 of the Industrial Relations Act 1999 - is required to explain why one set of significant evidence is preferred over a conflicting set, compare Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 443-444 per Meagher JA, Sun Alliance Insurance Limited v Massoud [1989] VR 8 at 17 per Gray J and Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA. It is not simply a matter of a defeated litigant bearing a sense of injustice (which is a somewhat unhelpful guide to sufficiency of reasons, compare Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd.R. 462 at 483 per McPherson and Davies JJA). There must be real apprehension that the evidence has been overlooked. Perhaps more important than the evidence of Dr Richards was the evidence of Dr Weller. In matters such as this, general practitioners often defer to the evidence of the specialists (as did Dr Weller). In consequence, the general practitioner's evidence is at times treated with scant respect. However, in this case, Dr Weller had the advantage of interviewing Ms Coombes within days of Ms Coombes abandoning the workplace and in circumstances in which a claim for workers' compensation benefits was not in prospect. The other experts did not see Ms Coombes in the throes of despair. Further, it was Dr Weller's evidence that Ms Coombes was fixated by the events in the workplace. That was an answer to the suggestion that Ms Coombes was tailoring the history which she gave to the experts. Dr Weller's evidence should also have caused attention to focus on Ms Coombes' claims about what had occurred. A hearing before the Queensland Industrial Relations Commission under the Act is not a trial by expert. The question whether, for the purposes of s. 32, the employment was a "significant contributing factor to the injury" (not, as was once the case, the major significant contributing factor) is a question of fact for the Commission. Doubtless, the Commission would be reluctant to defy accepted medical wisdom. However, in this case, if the Commission had accepted Ms Coombes' evidence about that which had occurred in the workplace and had accepted that it was in the nature of the activities alleged (some of which were quite unusual) that they could cause a worker to decompensate, the Commission might have fallen back (at least) on the opinions of Dr Lotz, Dr Richards and Ms Keller. Whatever reservations Dr Lotz and Ms Keller might have had after being given the revised history, the reservations went to whether the employment was a significant contributing factor in all the circumstances of the case. One only has to go to the written opinions to realise that all three experts were satisfied that the bullying and harassment of which Ms Coombes complained, was capable of causing a worker to decompensate. Regrettably, Dr Weller's evidence was not analysed and the Commission did not go to the detail of the activities in the workplace and to the capacity of those activities to cause harm. Peculiarly, immediately after referring to the inadequacies in the history made available to the experts, the Commission did observe: "This factor must be borne in mind. However, in doing that, it does not negate the Appellant's evidence as to how the event which occurred at the workplace affected her psychologically and psychiatrically.". It is difficult to give the second sentence a literal meaning but, on one view, the sentence represents a recognition that there was an (unresolved) role to be played by the Appellant's evidence. Of course, the Commission was also required to consider the personal stressors which Ms Coombes had not included with her history. The Commissioner (at 333 to 334) summarised those factors as follows: "Ms Keller confirmed that Ms Coombes did not provide a history of a number of matters including:  the sexual assault suffered by the Appellant;  the major stroke suffered by the Appellant's father in November 2004;  the secondary stroke suffered by the Appellant's father in October 2005;  the estrangement between the Appellant and her first son Ben;  no history of increased alcohol consumption by the Appellant in either October or November 2005;  no history was provided by the Appellant about the office being divisive, having distinct groups, or there being rumours and innuendo even prior to Mr Goldstein's commencement at CHR. Ms Keller confirmed that this would have been relevant information.". (Regrettably, it has to be said that the sentence is taken (verbatim) from paragraph 32 of Q-COMP's written submissions below.) Consideration of those stressors should have led the Commission (again) to the evidence of Dr Richards. It was the evidence of Dr Richards that Ms Coombes, who had not had an easy life, was a woman of resilience who would have coped with those personal stressors had she not been drained by the depressive disorder which her employment had inflicted upon her. In fact, that path was not followed. I do not seek to underestimate the significance of the personal stressors. There is, for example, evidence upon which it might be found that the increased alcohol consumption arose immediately after Ms Coombes' father had the second stroke -- 3 of 4 -- 4 and before the difficulties in the workplace became acute. There is, for example, evidence that the workplace had been divided and a place of rumour innuendo prior to Mr Goldstein's commencement. However, that is merely to assert that this is a case in which there are competing bodies of evidence. Resolution of such conflict is a core activity of the appeal bodies at Chapter 13 Part 3 of the Act. Here the Commission did not discharge its role. The case at first instance posed difficult questions of fact. There may be issues of law about the way in which the Review Officer teased out the clusters of incidents in the workplace. The difficulties were not confronted. The case cannot be put aside because the history was not full and complete. I quash the decision of the Queensland Industrial Relations Commission in the matter of Briony June Coombes and Q-COMP (WC/2006/75) given on 1 August 2007. I order the Queensland Industrial Relations Commission to hear and determine the said matter according to law. Dated 14 November 2007. D.R. HALL, President. Released: 14 November 2007 Appearances: Mr T.D. Betts instructed by Giudes & Elliott, Solicitors, for the Appellant. Mr P.B. O'Neill directly instructed for the Respondent. Government Printer, Queensland The State of Queensland 2007. -- 4 of 4 --