Adams v WorkCover Queensland [2001] ICQ 18 (2001) 167 QGIG 32

32 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 May, 2001 S:\QIRCDEV-BASE\QGIG\2001\167\NO.2 11.05.01.DOC ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND WorkCover Queensland Act 1996 – s. 509 – appeal against decision of industrial magistrate Patricia Ann Adams and WorkCover Queensland (No. C6 of 2001) PRESIDENT HALL 1 May 2001 DECISION By an application dated 26 August 1998 and filed 17 November 1998 the appellant sought compensation under the WorkCover Queensland Act 1996. The application was refused. The appellant sought a Statutory Review. By a letter dated 7 July 1999 she was informed that the Statutory Review Unit had confirmed the decision by WorkCover to reject the application for compensation. The appellant appealed to the Industrial Magistrate’s Court. Once -- 1 of 3 -- 11 May, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 33 again, she was unsuccessful. From the decision of the Industrial Magistrate appeal is now brought to this Court. By s. 509(3) the appeal is by way of re- hearing on the evidence and proceedings before the Magistrate, unless the Court orders that additional evidence be heard. No such order was made in this case. For completeness, because the expression “appeal by way of a re-hearing” is sometimes said to be ambiguous, it is appropriate to note that it is settled that the appeal pursuant to s. 509 is an appeal by way of re-hearing in the sense explained in Warren v Coombes 142 CLR 531. WorkCover Queensland does not dispute that at all material times the appellant was suffering from a major depressive illness, and that her employment at the Queensland Art Gallery was the major significant factor causing the depressive illness. However, both before the Industrial Magistrate and on the appeal, WorkCover maintained that the appellant’s depressive illness fell outside the definition of “injury” at s. 34 of the WorkCover Queensland Act 1996 (in the form which it took at all material times) in consequence of the operation of subsections (4) and (5) of s. 34. It is perhaps useful to reproduce those subsections. “(4) ‘Injury’ does not include a personal injury, disease or aggravation of a disease sustained by a worker if the injury is 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 WorkCover or a self-insurer in connection with the worker’s application for compensation; (d) circumstances in which a reasonable person, in the same employment as the worker, would not have been expected to sustain the injury. (5) For subsection (4) in deciding in a particular case whether management action was reasonable or whether management action was taken in a reasonable way; (a) regard must be had to what action or way of taking action would have been reasonable for a worker of ordinary susceptibility to psychiatric or psychological disorder; and (b) regard must not be had to a particular worker’s susceptibility to psychiatric or psychological disorder.”. The limbs of subsection (4) relied upon were paragraphs (a) and (d). As argued before the Industrial Magistrate the case was a factually unusual s. 34(4) case. The thrust of the appellant’s case was that she had been disadvantaged by management who had treated her less favourably than other employees had been treated, and who had encouraged (or at least acquiesced) in harassment of her by colleagues and immediate superiors. If such a case had been made out, s. 34(4)(a) could not have availed the respondent. Section 34(4) became relevant because of findings made by the Industrial Magistrate in dealing with the case advanced by the appellant. The appellant sought to make out her case by going to a very large number of occasions upon which she is said to have been treated differently to others, and to a large number of incidents of harassment said to have been encouraged or at least acquiesced in by the managers at her workplace. In fairness to the appellant I should add that she did not rely entirely upon her own testimony. Other persons who had been engaged in the workplace gave evidence supportive of her version of events. However, other witnesses were called by WorkCover Queensland who gave conflicting evidence. In the result, the Industrial Magistrate resolved the conflicts in the evidence adversely to the appellant. He variously found that the appellant had not been treated less favourably, that incidents relied upon by the appellant had not occurred, or that if they had occurred were not as described by the appellant. In the case of the incidents which the Industrial Magistrate accepted had occurred, but had not occurred as described by the appellant, His Worship made findings as to what had occurred. His Worship measured the findings about what had occurred against s. 34(4)(a). His Worship concluded that the incidents were, in truth, occasions on which reasonable management action had been taken in a reasonable way by the appellant’s employer in connection with her employment. If one may give an example without descending into unnecessary particularity, the appellant complained that on one occasion a superior humiliated her by allowing patrons to enter the art gallery after she had denied them entry because it was too close to closing time. The Industrial Magistrate found that the incident occurred. He found that the decision was one which the superior employee was authorised to make (at the time of day the incident occurred the appellant was not authorised to allow the patrons into the gallery), had been reasonably taken with a view to the gallery’s relationship with the public, had not been taken with the intention of humiliating the appellant, and was taken in such a way that a reasonable person would have experienced neither humiliation nor distress. It was on that approach to the matter that s. 34(4)(a) became relevant. On the appeal to this Court the appellant’s primary contention, developed both in written submissions and by a painstaking oral argument, is that the Industrial Magistrate should have resolved the very substantial conflicts in the evidence in the appellant’s favour instead of adversely to her. With respect, it seems to me that the submission goes beyond that which Warren v Coombes 142 CLR 531 will permit. At 551, Gibbs ACJ, Jacobs and Murphy JJ summarised the effect of the authorities as follows:– “Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation.”. (Emphasis added) Given the length of the transcript, the number of incidents and the number of witnesses, it would be an extraordinary thing for this Court to substitute its opinion as to how the conflict of evidence should be resolved for the opinion of an Industrial Magistrate who has had the very great advantage of seeing the case develop, hearing the witnesses and seeing the witnesses. At 537 Gibbs ACJ, Jacobs and Murphy JJ adopted the observations of Lord Sumner in SS Hontestroom v SS Sagaporack [1927] AC 37 at p. 47: “. . . not to have seen the witnesses puts appellate judges in a permanent position of disadvantage against the trial judge, and unless it can be shown that he has failed to use or has palpably misused his advantage, the Higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.”. It is then contended that it is a truism that people perceive events differently, and that the Industrial Magistrate should have accepted that the appellant’s recollections and perceptions were honestly held and real to her. Reasonable people acting honestly may well perceive events differently. The Industrial Magistrate was right to inquire as to what a reasonable person might have perceived what the appellant perceived. Given the chasm between the incidents which the appellant described and the incidents which the Industrial Magistrate found had occurred, it is in no way surprising that His Worship took the view that a reasonable person would not have perceived the incidents in the way in which the appellant had. -- 2 of 3 -- 34 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 May, 2001 It is then contended that the Industrial Magistrate failed to take into account that the Queensland Art Gallery was a “very unhappy and in some respects a dysfunctional workplace”. Doubtless a case will eventually arise in which a dysfunctional workplace produces a disorder of the mind causing an erroneous perception of reasonable management action taken in a reasonable way, leading to an aggravation of the existing disorder. Such a case may well pose problems of interpretation. This is not such a case. It may be conceded that a report (by a person who was not a witness) had been put into evidence before the Industrial Magistrate which contained a passage in which the Queensland Art Gallery was described as “clearly a very unhappy and in some respects a dysfunctional workplace”. His Worship referred to the passage. But there was other evidence from persons who did enter the witness box and who were subject to cross-examination supportive of quite a different conclusion. It is understandable that His Worship gave greater weight to that evidence than to the untested report, and found that the tensions in the workplace did not go beyond what “does on occasions, occur within a workplace and that circumstances are generally not such that one would reasonably expect that there would be an ongoing stressful effect on the parties involved”. Some matters the Industrial Magistrate left unresolved. In particular, whilst finding that a particularly distasteful photograph had not been distributed to the appellant at the direction or even instigation of management, the Industrial Magistrate did not find whether or not the photograph had been distributed to her at all. Similarly, whilst negativing any management involvement in an alleged spattering of the appellant’s car with urine, the Industrial Magistrate did not determine whether the spattering had occurred. I rather think that the omission arose out of the vigorous way upon which the appellant put her case about concerted and authorised unfavourable treatment and harassment. In any event, it is apparent that there is nothing in the transcript on the basis of which the Industrial Magistrate or this Court could make a finding as to whether, assuming each of the two incidents had occurred, (i) either incident was capable of causing the depressive illness which the appellant came to suffer; (ii) whether the two incidents cumulatively were capable of causing the major depressive illness; or (iii) major depressive illness was the outcome of multiple causes of which the two matters referred to were two and the various instances of reasonable management action taken in a reasonable way were the others. It may be, as a matter of elegance, that instead of finding that a reasonable person, in the same employment as the appellant, would not have been expected to sustain the injury, the Industrial Magistrate should have found that he could not find that a reasonable person, in the same employment as the appellant, would have been expected to sustain the injury. The onus being on the appellant Ivey v WorkCover Queensland (1999) 161 QGIG 392 at 393, that finding would be fatal to her. In all the circumstances the appeal is dismissed. I reserve the question of costs. Dated this first day of May, 2001. D.R. HALL, President. Released: 1 May 2001 Appearances:– Sir James Killen and with him Ms K. Feely instructed by Drakopoulos Black Solicitors for the appellant. Mr P. Major for the respondent. -- 3 of 3 --