Boyd v Q-COMP [2005] ICQ 55 (2005) 180 QGIG 1129

[Extract from Queensland Government Industrial Gazette, dated 16 December, 2005, Vol. 20, No. 18, page 1129-1131] INDUSTRIAL COURT OF QUEENSLAND Workers’ Compensation and Rehabilitation Act 2003 – s. 561 – appeal against decision of industrial magistrate Robert Malcolm Boyd AND Q-COMP (C/2005/65) PRESIDENT HALL 2 December 2005 DECISION At all material times Robert Malcolm Boyd was an employee of the Maryborough City Council. On 1 March 2004 Mr Boyd made an application for compensation under the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”). The application, which was made to Local Government Workcare, was for an injury described as a “stress illness” said to have come upon Mr Boyd at or about 3.00 p.m. on Tuesday 13 January 2004 in the office of Mr P. Dart, the senior management accountant for the Maryborough City Council. Importantly, the “application for compensation” eschewed any suggestion that the “stress illness” developed over a period of time or was caused by way of aggravation of an existing condition. On 13 May 2005, Local Government Workcare rejected Mr Boyd’s claim on the basis that he had not suffered an “injury” as defined by s. 32 of the Workers’ Compensation and Rehabilitation Act 2003. On 6 August 2004 Mr Boyd sought a Statutory Review of that decision. On 28 October 2004 Q-COMP confirmed the decision of Local Government Workcare. By a written notice of appeal dated 19 November 2004 Mr Boyd brought an appeal against the decision of Q-COMP to the Industrial Magistrates Court pursuant to Chapter 13, Part 3 of the Act. On 9 August 2005, following upon an appeal by way of hearing de novo which occupied the days of 8 and 9 August 2005, the Industrial Magistrate found that Mr Boyd had not suffered an “injury” as defined in s. 32 of the Act. The Industrial Magistrate dismissed the appeal. Mr Boyd now appeals to this Court pursuant to s. 561(1) of the Act. The application for compensation which set in train the course of events culminating in this Appeal was not the first application for compensation by Mr Boyd. Mr Boyd had made an earlier claim for an adjustment disorder with anxiety and depression in October 2002. That application was granted. For the purposes of this Appeal I assume that Local Government Workcare was right to allow the claim, that the disorder of the mind had been brought on by excessive work, and that the Maryborough City Council by Mr Boyd’s immediate supervisor (Mr K. Slade, Director of Financial Services) knew of Mr Boyd’s decompensation and knew that the decompensation arose out of excessive work. The circumstance that the claim giving rise to these proceedings was not for an aggravation of an underlying condition and that Mr Boyd gave evidence that he had recovered from the illness of October 2002 does not involve the consequence that the events of 2002, known as they were to the Maryborough City Council, were of no evidentiary significance in the assessment of the events of 13 January 2004. On 13 January 2004 Mr Boyd attended at the workplace intending to have his regular meeting with his staff. In fact, he found that his staff were involved in closed door meetings with Messrs Slade and Dart. It was Mr Boyd’s evidence before the Industrial Magistrate that he considered what was occurring to be secretive. However, given his concession that his own staff meetings were held with a closed door, his concession that for the sake of privacy and speaking freely such meetings should be behind closed doors and his agreement with the proposition that it was reasonable management action to close the door, it was plainly open to the Industrial Magistrate to find that what was occurring was entirely benign and certainly a reasonable way of transacting business. It was, additionally, the burden of the evidence that once the meeting with Mr Boyd commenced he was informed of the substance and purpose of the meetings with his staff. At or about 11.00 a.m. Mr Boyd was given notice that he was to have a meeting with Messrs Slade and Dart. Regrettably, the Appellant was given no agenda for the meeting. I take the liberty of saying “regrettably” because the failure to publish an agenda was a cause of anxiety to Mr Boyd and because there was subsequently to be disagreement between Mr Boyd and Mr Dart about what occurred at the meeting. (Mr Slade did not give evidence.) The contention of Mr Boyd is that, at the meeting, Mr Slade directed him to undertake a range of tasks which was beyond the capacity of any one employee to perform. The direction is said to have been given against the history of the earlier “burden of work decompensation” and against the background of discussions between Mr Slade and Mr Boyd in October 2003 about Mr Boyd’s apprehension that he was again being overborne by work. It is the contention of the Respondent that Mr Boyd was not being directed to perform a variety of tasks but to prepare a strategy for the performance of those tasks. The meeting was taped by Mr Boyd. A transcript of the tape is in evidence. Subject to minor corrections Q-COMP accepted the accuracy of the transcript. The Industrial Magistrate was asked to act upon the transcript. His Honour did so and, largely on that material, accepted the contention of the Respondent. The parties have taken the Court to the transcript in some detail. Perhaps predictably, the participants in the conversation have shown scant concern for clarity of ideas and language. But it seems tolerably clear that Mr Boyd was being allocated the task of devising a strategy to deal with vexing issues about water meters but was not being allocated the task of implementing the strategy. The discussion about the issue of “arrears of rates” is much less clear. Part of the difficulty is that the discussion of that issue was the discussion which was occurring as the meeting broke down. -- 1 of 4 -- 2 Arguably Mr Slade was volunteering to devise the strategy and instructing Mr Boyd to implement the strategy. But Mr Slade could be taken to be volunteering to prepare a strategy to be vetted by Mr Boyd. The noun “direction” seems to have been used in relation to a requirement for Mr Boyd to take notes and a requirement for Mr Boyd to participate in the meeting. Additionally to the transcript, the Industrial Magistrate had Mr Dart’s notes of the meeting and Mr Dart’s evidence about “water meters”, both the exhibit and the transcript are supportive of the view that Mr Boyd was being asked to devise a strategy. Additionally, it was the evidence of Mr Dart that in his discussions with Mr Slade the need for additional resources had been recognised. Counsel for the Respondent frankly concedes that Mr Boyd had left the meeting before that matter had been raised with him. However, there seems to be no reason why Mr Dart’s evidence should not be accepted and taken into consideration in considering the objective reasonableness of what the Maryborough City Council was proposing. In any event, it seems plain that during the course of the meeting Mr Slade did advise Mr Boyd that the new responsibilities, which were to be discharged over the next month or two, were being allocated to Mr Boyd on the basis that he was not to be spread too thin, on the basis that Mr Dart was to take over the oversight of the work in order to ensure that Mr Boyd was not constantly worrying about what tasks others were or were not performing and the adequacy of the performance and on the basis that the tasks of subordinate staff would be particularised. I quite accept that on Mr Boyd’s understanding of what was being “demanded” of him he would (and did) become distressed. But appeals are about the correction of error, and I am quite unable to go behind the Industrial Magistrate’s conclusion that Mr Boyd was mistaken about what was being “demanded” of him. Put shortly the Industrial Magistrate’s decision to accept the Respondent’s contention was plainly open to His Honour. Another contributing factor to Mr Boyd’s anxiety about the meeting was that Mr Boyd feared that a purpose of the meeting was to advise him of a demotion and at one point he sought an adjournment of the meeting in order that he might secure the presence of the union delegate. There was no factual basis for Mr Boyd’s concern. Section 32 of the Act (materially) provides: “(1) 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. … (5) 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; Examples of actions that may be reasonable management actions taken in a reasonable way– • action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker; • a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker’s employment.”. The Industrial Magistrate accepted that at the meeting Mr Boyd became distressed and decompensated. That Mr Boyd suffered a psychiatric/psychological injury by way of an adjustment disorder with features of anxiety and depression is not in issue. Neither is it disputed that the disorder arose in the course of Mr Boyd’s employment. The issues on this Appeal, as before the Industrial Magistrate, were whether Mr Boyd’s employment was a significant contributing factor to the injury and, if it was, whether the injury was withdrawn from the definition of injury in consequence of the application of s. 32(5) of the Act. The Industrial Magistrate decided both matters adversely to Mr Boyd. Failure on either issue was, of course, fatal to his claim. On the first issue, viz. whether the employment was a significant contributing factor to the injury, the Industrial Magistrate concluded: “It seems to me that is what has occurred in this case it was his perception of what was going to happen at the meeting rather than what, in fact, did occur at the meeting that was the cause of the injury.”. -- 2 of 4 -- 3 The use which the Industrial Magistrate made of the decision of de Jersey, P in Croning v Workers’ Compensation Board of Queensland (1997) 156 QGIG 100 at 101 in reaching that conclusion has been a matter of concern on this Appeal. The critical passage is in the following terms: “Now but for those work conditions, this particular appellant’s problem would not have arisen. That does not however necessarily mean that the work conditions were a significant contributing cause of the condition. Compare the distinction between a cause sine qua non and a causa causans or proximate cause (see Tophans Ltd v Sefton (1966) 1 All E.R. 1039, 1044 and Stapley v Gypsum Mines Ltd (1953) A.C. 663, 687). The necessity for the former does not mean that on an ultimate assessment, it must be regarded as a significant cause. As said in Tophams, the latter is the ‘real effective cause’, the former ‘merely an incident which precedes in the history or narrative of events”. There may of course be two or more factors which might each be regarded as ‘significant’ contributors to the development of a condition. The determination of which of a number of contributing causes is or are significant, involves a factual exercise. Unless, here, the circumstances of the employment, being necessary background at least, must, because an essential prerequisite to what occurred, be regarded as a significant contributor, I should in principle respect the Magistrate’s factual conclusion as reasonably open and dismiss the appeal.”. Plainly, de Jersey P was not purporting to enunciate a test to be used in determining whether the employment was “a significant contributing factor to the injury”. Indeed, the passage follows reference to the decision of Pincus J in O’Neill v Commonwealth Banking Corporation (1987) 75 ALR 154 where His Honour was at pains to emphasise that a claimant for compensation (under the Compensation (Commonwealth Government Employees) Act 1971)) was entitled to the application of the statutory test unimpeded by judicial gloss or figurative language (at 158). The President was attempting to do no more than elucidate the application of the statutory test in a particular factual situation; viz. where the work conditions provide a setting or back drop against which the Appellant’s particular disposition came into play. Neither was the President suggesting that the same answer would always be given in such a situation. So much appears expressly from the reference to the distinction between causa sine qua non and a causa causans and the sentence “the determination of which of a number of contributing causes is or are significant, involves a factual exercise.”. But I can see no indication that the Industrial Magistrate was mistaken as to any of that. Having referred to Croning v Workers’ Compensation Board of Queensland, op cit, the Industrial Magistrate went on to say: “Whilst the facts in that case were somewhat different it seems to me that the principle there is similar.” The Industrial Magistrate then went on to refer to a subsequent passage in Croning v Workers’ Compensation Board of Queensland, op cit, at 101: “The work conditions did, as I have said, certainly provided the setting or background against which the appellant’s particular disposition came into play. Although no doubt one should conclude then that the system operating at the place of employment was in that sense a ‘contributing factor’ it was not necessarily, as indeed the Magistrate must be taken to have found a ‘significant one’ – the only significant contributing factor in accordance with his findings were the appellant’s own disposition.”. It seems to me, with respect, that the Industrial Magistrate was fully aware of the question which His Honour was called upon to answer and, certainly, did not fall into the error of assuming that a conclusion found to have been open to an Industrial Magistrate in Croning v Workers’ Compensation Board of Queensland, op cit, was invariably the conclusion which must be reached. Indeed, with respect to the careful argument of Mr Merrell for the Appellant, it seems to me that in light of the detailed submissions made to the Industrial Magistrate it would have been exceptional for His Honour to have fallen into such error. The question which remains is whether on the incontrovertible facts and the clashes of evidence as resolved by the Industrial Magistrate, His Honour’s conclusion that Mr Boyd’s employment was not “a significant contributing factor” was open to His Honour. The question can only be answered in the affirmative. This is not a case such as Q-COMP v Riggs (2005) 179 QGIG 251 which was concerned with the operation of disturbed perception and reasoning upon objectively identified workplace issues. Here the “workplace issues” were but pure fantasy. That is sufficient to dispose of the Appeal. It is not necessary to go to the question of whether the injury was withdrawn from the definition of “injury” by the operation of s. 32(5) of the Act. Indeed, any such consideration would be a futility. The characterisation “reasonable management action taken in a reasonable way” may be denied to the necessary administrative action considerately pursued on 13 January 2004 only if the Maryborough City Council, by its servants and agents, was shown to have actual or objective knowledge that Mr Boyd was likely to “latch on” to the transactions in the way in which he did and actual or constructive awareness of the risk of subsequent decompensation. And if such a finding were open, which it is not, the question whether the employment was a significant contributing factor to the “injury” should have been given quite a different answer to the answer which it has been given. Put shortly, awareness that excessive work had caused Mr Boyd to decompensate and might do so again is not to be equated with awareness that the events of 13 January 2004, directed to lightening his load, would produce the outcomes which they did. -- 3 of 4 -- 4 I dismiss the Appeal. I reserve all questions as to costs. Dated 2 December 2005. D.R. HALL, President. Released: 2 December 2005 Appearances: Mr J. Merrell, instructed by Hall Payne Lawyers, for the Appellant. Mr G. O’Grady, directly instructed, for the Respondent. Government Printer, Queensland The State of Queensland 2005. -- 4 of 4 --