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QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Kiesouw v Workers' Compensation Regulator (No 2)  QIRC 172
Kiesouw, Daniel Franciscus
Workers' Compensation Regulator
Appeal against a decision of the Workers' Compensation Regulator
14 November 2019
7 and 8 February 2019
14 April 2019 Appellant’s submissions
8 May 2019 Respondent’s submissions
17 June 2019 Appellant’s reply submissions
Deputy President Bloomfield
WORKERS' COMPENSATION – APPEAL AGAINST DECISION – where psychiatric or psychological injury – where appellant claims injury arose as a result of being bullied and harassed – where injury alleged to have occurred over time – where date of decompensation established – where decisive event happened outside workplace on a weekend – whether injury arose out of, or the course of, employment – whether employment was a significant contributing factor to the injury – whether psychiatric or psychological injury attributable to other factors – history of mental health issues – history of significant alcohol consumption – medical evidence – witness evidence – witness credibility – appeal allowed.
Workers' Compensation and Rehabilitation Act 2003, s 32
Attorney General’s Department v K (2010) 8 DDRC R 52
Avis v WorkCover Queensland (2000) 165 QGIG
Briginshaw v Briginshaw (1938) 60 CLR 336
Byrnes v Workers’ Compensation Regulator  ICQ 004
Chattin v WorkCover Queensland  ICQ 44
Commonwealth of Australia v Lyon (1979) 24 ALR 300
Croning v Workers’ Compensation Board of Queensland (1997) 156 QGIG 100
Eric Martin Rossmuller v Q-Comp  ICQ 004
Gilmour v Workers’ Compensation Regulator  QIRC 022
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Holtman v Sampson  2 Qd R 472
Kavanagh v The Commonwealth (1960) 103 CLR 547
Kiesouw v Worker’s Compensation Regulator  QIRC 064
Kiesouw v Workers’ Compensation Regulator  ICQ 006
Luxton v Q-Comp (2009) 190 QGIG 4
Newberry v Suncorp Metway Insurance Ltd  1 Qd R 519
Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 59
Qantas Airways Limited v Q-Comp and Blanche (2009) QGIG 115
Q-Comp v Foote (No 2)  ICQ 042
Q-Comp v Green (2008) 189 QGIG 747
Ramsay v Watson (1961) 108 CLR 642
Sergeant v Q-Comp  ICQ 051
Sheridan v Q-Comp (2009) 191 QGIG 13
Tudor Capital Australia Pty Limited v Christensen  NSWCA 260
WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6
Mr J.A. Greggery QC, instructed by Ms T. Cox of Organic Legal, for the Appellant.
Mr P.B. O'Neill of Counsel, directly instructed by Ms K. Bednarek of the Workers' Compensation Regulator, for the Respondent.
Decision (No 2)
- This is an Appeal by Daniel Kiesouw (Mr Kiesouw/the Appellant) pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the review unit of the Workers' Compensation Regulator (the Regulator/the Respondent) dated 22 June 2016.
History of the Appeal
- The matter has a long history. On 14 December 2015 WorkCover Queensland (WorkCover) rejected a Notice of Claim for Damages (Notice of Claim), filed on or around 6 October 2015 by Mr Kiesouw, in accordance with section 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act).
- Mr Kiesouw's Notice of Claim recorded that his psychiatric or psychological injury occurred over the period February 2012 to September 2013 and that the injury was as a result of being bullied and harassed on numerous occasions during that period by Mr Matthew McSkimming, a Site Supervisor for McConnell Dowell Constructors (Aust) Pty Ltd (McConnell Dowell) on the Gold Coast Light Rail Project (the Project).
- On 14 March 2016 Mr Kiesouw sought a review of WorkCover's decision to reject his Notice of Claim. By review decision dated 22 June 2016 the Regulator confirmed the decision of WorkCover to reject the Notice of Claim in accordance with sections 32(5) and 258 of the Act.
- By Notice of Appeal filed in the Commission on 6 July 2016 Mr Kiesouw appealed the review decision of the Regulator. The matter was the subject of four conferences before two different Members of the Commission before being assigned to the Commission as presently constituted for hearing.
- Because of difficulties I had in identifying the date of diagnosis of Mr Kiesouw's psychiatric or psychological injury in his Statement of Facts and Contentions (SOFAC) filed on 16 January 2017, I conducted a hearing in relation to that issue on 13 June 2017.
- Subsequent to the above proceedings, during which he represented himself, the Appellant has been represented by Mr J Greggery SC, instructed by Ms T Cox of Organic Legal. After their engagement, an Amended SOFAC was filed by the Appellant on 18 May 2018.
Issue for determination
- The issue for determination in this Appeal is whether Mr Kiesouw sustained an "injury" within the meaning of that term in s 32 of the Act. The legislation at the relevant time provided:
32 Meaning of injury
- (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 subsections (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 Regulator or an insurer in connection with the worker's application for compensation.
(*Note: The Regulator does not contend that s 32(5) is relevant to this appeal.)
Nature of Appeal and onus of proof
- The nature of the Appeal is by way of a hearing de novo. To succeed the Appellant must satisfy the Queensland Industrial Relations Commission (the Commission), on the balance of probabilities, that his claim is one for acceptance.
- This will require him to establish:
- he was a “worker” within the meaning of the Act;
- he suffered a personal injury;
- the injury arose out of, or in the course of, his employment; and
- the employment was a significant contributing factor to the injury.
- The first and second dot points are accepted by the Regulator. Consequently, the only two issues in contention are those raised in the third and fourth dot points, i.e. the matters mentioned in s 32(1) of the Act.
Background and witness evidence
- In order to understand the arguments of the parties in relation to the two issues in contention, it is necessary to provide a brief background of the nature of the relationship between Mr Kiesouw and Mr McSkimming (as perceived by the former) prior to an incident on Saturday 26 January 2013, which I previously determined was the date of Mr Kiesouw’s decompensation.
- Mr Kiesouw commenced employment with McConnell Dowell as a CAD Draftsperson - Civil on or about 1 December 2011 and was initially based at the main office for the Project in Bay Street, Southport. In February or early March 2012 he was transferred to the Cypress Avenue project site (a fenced compound covering one half of a city block) in Surfer’s Paradise to work more directly on the Project. At Cypress Avenue he reported to Mr Craig Sampson, the Engineering Manager – who was also referred to as the PUP (Public Utility Plant*) Construction Manager. (* infrastructure such as Telstra lines, underground electricity lines, water and sewerage services, etc.)
- Mr McSkimming was also based at Cypress Avenue, but in a building whose entrance was some 20 - 25 metres from three portables in which Mr Sampson, Mr Kiesouw and other members of the PUP Team were located. Mr McSkimming was in charge of construction of part of the Project (Nerang River at Southport to Broadbeach) and, in particular, work crews operating out of the Cypress Avenue compound.
- Over the 10 months (or so) between February/March 2012 and 26 January 2013, Mr Kiesouw encountered Mr McSkimming on a number of occasions, with the undermentioned incidents being a source of concern to Mr Kiesouw. (Note: the events are as described by Mr Kiesouw)
Mr Kiesouw’s evidence
- Several weeks after he started at the Cypress Avenue site, Mr Kiesouw was standing in the shade of a large tree, in a vacant car spot, smoking and talking to a surveyor about work related matters, when a white McConnell Dowell utility came into the car park. The driver of the vehicle drove up very close to them and asked them to move because he wanted to park in the spot where they were standing, although there were other vacant spots available. Mr Kiesouw said “yeah, no worries” and he and the surveyor moved to another vacant car spot. Mr Kiesouw also opined that the driver looked like he would have run them over if they had not moved.
- After alighting the vehicle, the driver, Mr McSkimming, complained about them talking and told them to get back to work. Mr Kiesouw said that Mr McSkimming’s tone was very aggressive and he “hadn’t come past that in all my years of civil engineering”. “It wasn’t polite … It was just rude”.
- Within a few days (it might even have been the same day) Mr Kiesouw was heading from under the tree in the car park back towards the PUP portables when he heard Mr McSkimming “shouting and screaming*” from behind him. He did not know that Mr McSkimming’s comments were directed at him until he turned around, by which time Mr McSkimming had said most of what he wanted to say. However, he recalled that Mr McSkimming said that he was “a rabbit”, or something of that nature. (* Note: he also said that Mr McSkimming was “mumbling and screaming” at him.)
- Mr Kiesouw responded by saying words to the effect “I don’t want to know about it, I don’t know what you’re on about” or “I don’t want anything to do with it”. In his oral evidence he said “I just had a bad feeling about it”.
- After the second incident, Mr Kiesouw spoke to Mr Sampson about both incidents, saying that Mr McSkimming had been screaming at him and seemed to have a chip on his shoulder. According to Mr Kiesouw, Mr Sampson said “I’ll deal with it” or “I’ll handle it”, or words to that effect.
- About one week after the above incidents, Mr Kiesouw was at his desk working when he heard something. As he looked up he saw a hand extended towards him for a handshake. It was Mr McSkimming, who said “do you want to work on this project?” and “I am the boss of this site”.
- Mr Kiesouw said he was caught off guard and didn’t know what to do. He froze. Once again, he said something like “I don’t want anything to do with it”. While he could not recall Mr McSkimming’s tone, he nonetheless said “it was quite forceful - it felt very intimidating”.
- Following this, Mr Kiesouw told Mr Sampson about the encounter and what Mr McSkimming had said. Mr Sampson reportedly responded by saying “leave it with me”.
- Mr Kiesouw said that he had never been in a position before where he “froze” or became scared. As such, from that point on, if he was out buying lunch or if he was off site and saw Mr McSkimming he would cross the road or turn around and go back the other way and try to avoid him at all costs.
- Towards the end of 2012, after September and probably in November*, Mr Kiesouw was cycling along Surfers Paradise Boulevard one Saturday, along the easterly boundary of the site compound, when he noticed that the access gate on that side of the compound, which was usually locked, was open. Without stopping he had “a stickybeak” to see what was going on and saw Mr McSkimming near the entrance. He then rode on. (*Note: the Appellant’s Amended SOFAC said that this event occurred about three months after the first three incidents. However, the notes of Dr John Wilson, who Mr Kiesouw saw on 29 January 2013, record: “stress at work - work colleague has threatened to assault him [three months] ago and difficulties since. That same work colleague threatened him verbally on Saturday”.).
- On the following Monday, Mr Kiesouw was walking across the car park, back to the PUP building, when Mr McSkimming walked right up to him. Mr McSkimming told him that if he stared at him again he was going to bash him. Mr Kiesouw opined that Mr McSkimming must have thought that he was staring at him the previous Saturday.
- Mr Kiesouw said that Mr McSkimming’s tone was menacing, and he took his threat seriously. He turned away, because he didn’t know what was going to happen, and walked towards Mr Sampson’s window in the PUP building. He said to Mr Sampson “Have a listen to this…” following which Mr McSkimming said to Mr Sampson “If he stares at me again I’ll bash him.”. According to Mr Kiesouw, Mr Sampson just said “be nice” to Mr McSkimming.
- Immediately following this event Mr Kiesouw went to his desk and phoned Human Resources to complain that Mr McSkimming had just threatened him in the presence of Mr Sampson, who had done nothing, and to ask for something to be done about it.
Other incidents (described together, for convenience, as the Fifth incident)
- Without specifying the dates or the circumstances, Mr Kiesouw said there were probably another 10 occasions on which Mr McSkimming called him names, or said things to him, while walking around the compound or whenever they saw each other. These included comments along the line: “dickhead”, “you weak prick”, “you’re an idiot” and “rabbit”. Mr Kiesouw said he was sure he was called a few other names as well but did not want to listen to what was being said.
Saturday 26 January 2013 (Sixth incident)
- On the afternoon of Saturday, 26 January 2013, Mr Kiesouw was walking from his rental apartment (one block north of the project compound) towards McDonald’s in Surfers Paradise along a route which took him past the project compound. Shortly after walking a short distance along the Cypress Avenue boundary of the compound and turning right onto Surfers Paradise Boulevard (which had been made a one-way street), a black Range Rover drove from behind him up onto the footpath at a 45 degree angle, a short distance in front of him, at the entrance of the side access gate to the compound which was usually locked (the gate mentioned in Incident four).
- When the driver stepped out of the vehicle – which Mr Kiesouw had never seen before – he noticed that it was Mr McSkimming. Mr McSkimming accused him of giving him the finger, to which he responded by saying “That’s a load of bull crap”. After a few things were said, Mr McSkimming allegedly invited Mr Kiesouw to hit him. According to Mr Kiesouw he responded by saying “well, I know that one punch can kill” and walked around the vehicle and headed south along Surfers Paradise Boulevard.
- A short distance further on he noticed Mr McSkimming driving down the street parallel to him, to his left, and thought to himself “bugger it… If he thinks that I stuck my finger up at him, I’m going to do it”. He then gave Mr McSkimming “the finger” and said, he believed, “F you”.
- Mr McSkimming pulled into the next driveway, got out of his car and started arguing again. During this exchange – which would have only lasted 30 to 40 seconds – Mr Kiesouw remembered telling Mr McSkimming to “F off” and saying words to the effect “You can’t do this to me. I’ve had enough”. He also recalled making a comment along the lines that he wanted to make sure Mr McSkimming did not get the job as Superintendent on the project.
- Mr Kiesouw said that the above exchanges with Mr McSkimming had a “huge” impact on him. He was shocked to see a black car suddenly pull up in front of him and someone jump out. He was taken off guard. After the second exchange he was upset for a long time, and “just let it all out”. He said he pretty much knew, at that point in time, that he could not work on the project again.
The immediate aftermath of the events of 26 January 2013
- Mr Kiesouw said that he thought long and hard over the next few days about his situation because he was earning good money and had a nice place to live. Other than what was happening at work everything else was going okay. He thought to himself “I just have to bite the bullet, I can’t keep going through this” because it was affecting him too much.
- He went to see his Doctor on Tuesday, 29 January 2013, following the Australia Day public holiday the previous day, and explained the situation to him. He believed he was crying at the time. The doctor filled out a Workers’ Compensation certificate (to Friday 1 February 2013), with a diagnosis of “anxiety depression” and cause of injury described as “verbal altercation by colleague on Saturday”, and gave him a referral to see a Psychiatrist to obtain an evaluation.
- After visiting the doctor he returned to his apartment and phoned McConnell Dowell. He spoke to the receptionist, telling her that he was on WorkCover and would not be coming into work. About 20 minutes later he received a call from the Employee Relations Manager, Mr Kulk, who asked him what was going on. He told Mr Kulk about the incident with Mr McSkimming and that his doctor had filled out a WorkCover certificate and referred him to a Psychiatrist.
- According to Mr Kiesouw, Mr Kulk told him not to worry about making a workers’ compensation claim because the company would send him to another site office and make sure that he did not have to go back to the Cypress Avenue site and work with Mr McSkimming. They would also arrange to get him the best medical treatment.
- On Thursday 31 January 2013, Mr Kiesouw attended an appointment made for him by Mr Kulk with Dr Rosemarie Knight at Medibank Health Solutions. Dr Knight’s notes record a provisional diagnosis of “acute stress reaction”, referral to a psychologist for counselling, with review in one week. Her notes also record her intention to contact the employer about Mr Kiesouw’s access to its Employee Assistance Program and his return to work at an alternative site.
- Commencing on Monday 4 February 2013 Mr Kiesouw began to see Mr Peter Doyle, a Psychologist with Guidelight Psychology. His attendance on this day and five subsequent appointments were all paid for by McConnell Dowell.
- Sometime during the first week of February 2013, Mr Kiesouw started to work at a site office for the Project in Scarborough Street, Southport. He did not return to, or visit, the Cypress Avenue compound again. He also re-located his accommodation to Southport so as not to be exposed to his previous workplace.
Mr McSkimming’s evidence
- Despite the passage of time, Mr McSkimming had a good recall of most of the incidents described by Mr Kiesouw. In terms of the first incident, he drove into the car park, in his own vehicle - a black 2008 second hand Range Rover - and the only space available was the one allocated to him. He drove up to his parking space where Mr Kiesouw and a surveyor were standing and talking. He did not want to toot the horn and thought he would wait until they saw him and moved. They looked up and he tooted his horn, but Mr Kiesouw turned his back and ignored him. Then they moved away. “That’s when all this has started, from there”.
- Although he could not remember exactly what he said at the time, Mr McSkimming said it would have been something along the lines of “haven’t you got anything to do” or “can you move out of the way” and “what’s the problem?”.
- Mr McSkimming said that several female staff members complained to him that Mr Kiesouw would stand near the women’s toilets when he was smoking, which made them feel uncomfortable. As the site supervisor he approached Mr Kiesouw to tell him that if he was going to smoke he needed to go to the designated smoking area. Mr Kiesouw didn’t agree and questioned why he should have to move. Mr McSkimming said that because he did not want to tell Mr Kiesouw that the female staff had complained, which would have made everyone feel uncomfortable, he simply told him not to smoke where he had been smoking.
- Mr McSkimming doubted whether he would have shouted at Mr Kiesouw to try and express the fact that he could not continue to smoke in that location because that would have been unprofessional and would not have gained anything. In any event, he said, Mr Kiesouw must have made a complaint to HR because the senior project manager and Mr Kulk “pulled me into the office”. They said there had been a complaint and advised him to “steer clear” of Mr Kiesouw.
- As a result of the complaint being raised, Mr McSkimming thought he should go across to the PUP buildings to try to make amends with Mr Kiesouw so that things could move forward. His view was that things had got out of hand and it was all rather childish. “Whether I said ‘I’m the boss of this job’, well that sounds rather arrogant. I was the boss of the job but that didn’t mean I meant it in that sense… I just felt we’ve all got to work together, you know it’s a big job, lots of pressure and you can’t afford little things like that to upset the decorum…”.
- In cross-examination, Mr McSkimming said that when he spoke to Mr Kiesouw he said “We’ve all got to work here … We’ve all got to work together”. He also said “… Whether they like it or not, I am the boss, and have to make some decisions (about where people can and cannot smoke) ...”. “If I let one person do it, then the other ones feel that someone is getting special treatment …”. A short while later he accepted he had conveyed to Mr Kiesouw that he was the boss of the site, saying “In that position, in regards to the smoking… That was my role at the time.”.
- In responding, in examination in chief, to the allegation that he had threatened to bash Mr Kiesouw if he looked at him again, Mr McSkimming said (after a long pause) “… I was a 54 year old guy running a job, why would I threaten to bash people? I’ve never threatened to bash anyone in my life… whether words were said and they’ve been misconstrued and (taken) in a different way, maybe, because honestly I didn’t know anything about this until a year or so ago…”.
- When asked, also in examination in chief, whether he could recall a subsequent incident where he had approached Mr Kiesouw while he was smoking, Mr McSkimming said that he had, at which time he said “look mate, I’ve asked - I can’t have you here,” as a result of which Mr Kiesouw went to Craig Sampson’s window. Craig opened the window and said “‘play nicely’ or ‘be nice’, or whatever the words were.”.
- After it was pointed out to him that Mr Kiesouw had given evidence that the time he went to Mr Sampson’s window he (McSkimming) repeated that if Mr Kiesouw stared at him again he would bash him, Mr McSkimming said “Maybe through frustration or someone has said that if someone’s like that, it’s got me beat, someone has the - that could have been, you know. I would never threaten someone. I (had) no reason to threaten anyone.”.
- When invited to explain what he meant by the above statement, he responded “Well, through frustration - I don’t get angry, I get frustrated maybe and I am - it’s a construction site and I might have said things and there (sic) can be misconstrued. I don’t – I’m a bit more professional than that…”.
- Asked to respond to Mr Kiesouw’s allegation that he had called him names and said derogatory things to him, Mr McSkimming said “I’m sure I swore and I – it - it’s part of the culture - not the culture but it is the environment. You swear, but not in a threatening way and - part of my role is for the people to respect me. And for them to respect me, I have to respect them. If I start shouting out at people that you’re this and that, and they say it (sic), they lose respect and then I - then the morale – you - it just doesn’t work. Whether you say things in frustration or argument, you know, when you’re - you under pressure and someone will say, “Just go” - you know, you might do it flippantly.”
Sixth incident (Saturday, 26 January 2013)
- Mr McSkimming said there was a large storm on Saturday, 26 January 2013 on the Gold Coast from the tail end of a cyclone and the senior project manager, project supervisor and he were all on call and required to attend to a number of fences along the length of the rail construction project which had been blown over by the wind. They met up at the Cypress Avenue compound before travelling off, in separate vehicles, to fix the fencing. As he was the one who shut the access gate in Cypress Avenue he was the last one to leave.
- After leaving the compound and turning right into Surfers Paradise Boulevard he saw Mr Kiesouw (on the footpath to his right) who gave him the middle finger. He immediately turned into a driveway, pulled up, got out of his vehicle and said “What is your problem?” Mr Kiesouw’s response was “One punch can kill”. Mr McSkimming’s evidence was that he replied “Well, you had better make it a good one mate because I’m over this”. He then said “I don’t need this”, climbed back into his vehicle and went to fix the fences. He later explained to his superiors what had happened.
- Although the extent of the exchange as described above suggests otherwise, Mr McSkimming said the discussion between he and Mr Kiesouw lasted “two to three minutes … a couple of minutes, whatever it took”. When asked whether anything else was said he responded “Not that I can remember. Like I said, it was just more frustration, heat of the moment words and, you know, I thought why would he say ‘one punch would kill’, and I thought ‘(is) he threatening me?’… My daughters came up one weekend and they had - he had embarrassed me in front of them, things like that, there were lots of things – it was like I was being provoked all the time, you know, for whatever reason.”
- In cross examination, Mr McSkimming said that when he pulled his vehicle onto the footpath in front of Mr Kiesouw it wasn’t in his role as a supervisor. “… If I drove past and he hadn’t done what he had done, I would have kept driving. … If I wasn’t provoked, I - I had no reason to pull over to see him … This was - a private citizen driving on the road and someone has confronted me that way. It wasn’t in my role as a supervisor … It’s only because we knew each other.”
- A short while later Mr McSkimming said “… If it was some drunk in the street, you know, you would ignore it as well, you know. I thought, yeah - but because we knew each other, and I thought we were on the one team, and, you know, we worked for the same company, we’re on the one project. That’s the only reason.”.
Attack on Mr Kiesouw’s credibility and mental status
- Mr O’Neill, who represented the Regulator, raised a number of concerns about Mr Kiesouw’s credibility as a witness, as well as his subjective perception of the various incidents described above in light of his psychological make up, medical history, and level of alcohol consumption. These concerns were addressed in considerable detail in his written submissions.
- While the number of concerns raised are not easily summarised, the following examples reflect the character and the content of the submissions:
- First incident
- “… this was an entirely benign and mundane workplace interaction. It could not be seriously contended that such an incident is an example of bullying or harassment…”;
- “The Respondent submits that if the Appellant found this incident to be one of a threatening nature, the Commission is entitled to draw the inference that as early as March 2012 there was something awry with the Appellant’s mental health and the manner in which he was perceiving events.”
- Second incident
- “…the Respondent notes the inconsistency in the Appellant’s version that Mr McSkimming was alleged to be both mumbling and screaming at the Appellant, but despite this the Appellant could not make out what he was saying… Mr McSkimming telling the Appellant to not smoke in an area where smoking was not permitted would not constitute bullying or harassment… Once again, the Respondent submits that it appears that the Appellant is embellishing his evidence and is misperceiving events.”.
- Third incident
- “The Respondent submits that this is perhaps the clearest example of the Appellant’s flawed perception of events and the Appellant incorrectly interpreting events.”;
- “… The Respondent submits that the Commission would draw the inference or conclusion that this is a further indication of the Appellant misperceiving events and interpreting an innocent event in an adverse way.”;
- “It is also a further indicator of there being an underlying issue with the Appellant’s mental health.”.
- Fourth incident
- “In his SOFAC the Appellant alleges that this incident occurred one or two months after March 2012. When the Appellant gave oral evidence about this, he alleged that it occurred towards the end of 2012. No explanation was proffered for this inconsistency.”;
- “Despite the Appellant alleging that he was upset for days about this (incident) he did not seek medical treatment nor was it reported to his treating General Practitioner.”;
- “The Respondent submits that the version of this incident provided by the Appellant is far-fetched, improbable and should be rejected by the Commission.’;
- “It is inherently implausible that Mr McSkimming, the Civil Supervisor for the construction site, would without any apparent cause approach the Appellant out of the blue and threaten to bash him. Mr McSkimming’s denial of the allegation should be accepted by the Commission.”;
- “It is it is even more inherently implausible that Mr McSkimming would repeat that threat in front of Mr Craig Sampson, PUP Project Manager (and a senior manager on the project) and that Mr Sampson would merely respond to such a threat being made in his presence by saying ‘play nicely’ is farcical.”
- Fifth incident
- “The allegations by the Appellant of there being approximately 10 occasions on which he was abused by Mr McSkimming are classical broad-brush and general allegations which completely lack any particulars.”;
- “The Appellant’s evidence is the epitome of the type of evidence that was described by Dixon J in Briginshaw as being inexact proofs, indefinite testimony or indirect inferences.”
- Sixth incident (Saturday, 26 January 2013)
- “The Appellant alleged that he walked a further 10 - 20 meters prior to the second confrontation occurring. The Appellant was then taken to earlier versions of his SOFAC which failed to mention Mr McSkimming pulling in on two occasions. The Respondent submits that this indicates that the version about Mr McSkimming pulling in twice is a more recent invention by the Appellant.”;
- “The Appellant noted that it just felt good to get it off his chest and he went (on his way). The latter evidence from the Appellant about it feeling good to get it off his chest and that he chose to leave and go on his way is completely inconsistent with him feeling threatened or being an unwilling participant in the incident.”
- Other concerns regarding the reliability of the Appellant’s evidence (precis of submissions)
- “There are a number of examples of the Appellant’s evidence of the versions he has provided to doctors proving to be unreliable. It also appears that the Appellant embellished or exaggerated events.” A short summary of these are:
- providing a history to Dr Likely in 2018 that an event of seeing a photograph of a deceased person while on jury duty, after which he sought counselling, occurred in 1995. He provided a history to two other doctors in 2013 that this event occurred in 2011;
- the inconsistency between the alcohol history that the Appellant provided to Dr Mark Whittington and Dr Amanda Adams compared to his evidence during the hearing. “… The Appellant’s evidence during the hearing regarding his alcohol consumption appeared to be an attempt to re-write history.”;
- “An example of the Appellant’s ability to exaggerate or embellish is Exhibit 6, the Notice of Claim for Damages. In response to Question 40, which requested the Appellant to completely describe the details of the events resulting in the injury, he states ‘On no less than 8 occasions I had my life threatened’*. The evidence before the Commission fails to reveal one instance where the Appellant’s life was threatened. In cross-examination the Appellant admitted that his response to Question 40 was false.” (* Note: Mr Kiesouw clarified that his life was not threatened by Mr McSkimming);
- the Appellant’s denial that within a short time after the second incident he was told by Mr Sampson not to smoke in the Cypress Avenue compound which contradicted the information in paragraph 21 of his SOFAC, and his attempt to maintain that the version in the SOFAC might be wrong;
- “The misleading and inaccurate answers regarding the Appellant’s previous medical history provided in the pre-employment medical (Document 5 in Exhibit 9) also cast considerable doubt over the Appellant’s credibility. The Appellant ultimately conceded that in five different areas his response to questions on that form were patently false.”.
- In light of the above matters, the Respondent submitted that “the Commission would not accept the Appellant as being a credible, reliable and accurate witness and where there is any conflict with the evidence of Mr McSkimming, the Commission would prefer Mr McSkimming’s evidence.”
- Mr Kiesouw’s pre-existing medical history (precis of submissions)
- The medical report of Dr Michael Likely (Exhibit 7) records that the Appellant had been diagnosed with an episode of depression around 1995/1996 at the time of significant psychological stressors in his life. The Appellant reported: nursing his grandmother (who raised him) through the final stages of cancer, a relationship breakdown, loss of employment and the use of marijuana;
- The Appellant reported to Dr Likely that his symptoms of depression at that time were treated with an anti-depressant drug for some three months, but denied any contact with psychiatric services;
- At a consultation with Dr John Wilson on 29 January 2013 the Appellant reported a past history of seeing a psychologist in about 2011 after he was upset when he saw a photo of a dead person as a juror. In cross-examination, he agreed he had several sessions with a psychologist after this event. This history is inconsistent with that given to Dr Likely, both in terms of timing of the event and that he did not require any medical intervention;
- The medical report of Dr Mark Whittington, Psychiatrist, dated 27 August 2013 records that the Appellant reported a history of becoming depressed after his grandmother passed and after his relationship broke up. For a period of time he was homeless and had a two-week stay at the Royal North Shore Hospital with depression. This occurred in 1996, at which time he was treated with Zoloft for several months. Dr Whittington’s report also recorded that the Appellant reported having to see a counsellor, following the event on jury duty in 2011, for distress that lasted some months;
- In cross-examination the Appellant:
- confirmed that in 1996/1997 he was dealing with mental health issues and, at that time, was living itinerantly in his car (as occurred post 2014);
- confirmed that in February 1997 he self-admitted to the mental health unit of the Royal North Shore Hospital, for a period of longer than five days, during which time he was under the care of psychiatric doctors (which appears to be a more significant history than that revealed by the Appellant to Dr Likely);
- denied he had a history of alcohol abuse but admitted drinking six drinks a night (at the time he saw Mr Doyle in 2013);
- reported that he had consulted a General Practitioner for depression at some stage between 2001-2004, at which time he was prescribed Zoloft; and
- confirmed that he had a past history of drink driving charges at 21, 23 and 25 years of age, respectively.
- Alcohol consumption (precis of submissions)
- The Appellant informed Dr Amanda Adams, of Haan Medical Centre, on Friday, 16 May 2014 that he had been drinking ½ a bottle of rum a day+, but had cut down in November 2013;
- The report of Dr Mark Whittington, of 27 August 2013, recorded that the Appellant reported that six months earlier he had been drinking 3 to 4 bottles of Bundaberg rum each week. At the time of consultation (August 2013) consumption was said to have decreased to several beers, a glass of red wine and two ports. Dr Whittington opined “There is evidence to indicate that Mr Kiesouw does have a drinking problem, and even his current reduced consumption would be at the hazardous range.”;
- The clinical records of Mr Peter Doyle, Psychologist, record the following relevant entries:
- 04.02.13 - the Appellant reported consuming 4-6 Crown Lager stubbies each night, currently cutting down. To the side of this entry is an additional note “plus binges on rum when distressed by Matt”;
- 03.06.13 - the consultation note records an entry “Friday 24 August - too flat/depressed to go to work & drank a bottle of rum (7am to midday)!”;
- 25.09.13 - the consultation note records “no binge drinking” but also records “averaging 6 x stubbies per night & seeing himself on a social/holiday lifestyle”.
- In light of the above, the Respondent submitted “… the Commission, on this evidence, would be satisfied that the Appellant has a history of alcohol consumption and that he was heavily consuming alcohol in 2012/2013.”.
Dr Likely’s evidence
- Dr Michael Likely, Consultant Psychiatrist, examined Mr Kiesouw on Saturday, 7 April 2018, at the request of his solicitor for the purpose of completing a medico-legal report. The examination lasted approximately two hours. By and large, Dr Likely’s report recounts Mr Kiesouw’s version of his interactions with Mr McSkimming between February 2012 and 26 January 2013 and his medical/psychiatric history as disclosed during examination and in the notes/reports of each of the medical practitioners and specialists referred to above, as well as in the following: a medical report of a Registrar in Psychology (presumably from Royal North Shore Hospital in Sydney) dated 28 February 1997; separate reports dated August 2013 from Dr Graham Edwards, Occupational Physician, to Dr Whittington and McConnell Dowell; and, the consultation notes of Dr Joseph Zukelis, a Consultant Psychiatrist on the Gold Coast, who Mr Kiesouw had attended on a monthly basis (under Medibank) since March 2015.
- In response to specific inquiries made of him by Mr Kiesouw’s solicitor, Dr Likely provided the following responses:
- Question 1: whether Mr Kiesouw suffered a psychological/psychiatric injury on 26 January 2013:
Yes. I believe that Mr Kiesouw suffered a psychiatric injury as a result of events leading up to and culminating in the workplace incident on 26 January 2013.
- Question 2: the nature of that injury and developing mental disorder recognised under the DSM-V:
Mr Kiesouw gave a history of symptoms consistent with the evolution of a Major Depressive Episode, severe in its nature, after the events of 26 January 2013 as outlined in the DSM-V Multi-Axial Diagnostic Formulation outlined above. This has now resolved although Mr Kiesouw is now left with residual and chronic anxiety symptoms.
- Question 3: the cause of that injury, particularly whether the incidents involving Mr McSkimming in 2012 at the worksite were a necessary contribution to the occurrence of the injury following the incident on 26 January 2013 outside the work site:
Yes. It is my opinion that Mr Kiesouw’s psychological injuries were caused directly by work related stressors from March 2012 culminating in the incident on 26 January 2013. I cannot identify any other contributory factors.
- Question 4: to the extent that you are able to provide an opinion, whether the psychological/psychiatric injury arose out of, or in the course of, his employment and was the major significant contributing factor to the injury?:
Yes. It is my opinion that the previous Major Depressive Episode (severe in its nature, now resolved) and residual anxiety symptoms were solely caused by workplace stressors outlined above in the body of this report.
- Question 6: is there a risk of recurrence of the injury in the future and, if so, in what circumstances and what effect may that have on his capacity to work?:
Yes. Major Depressive Disorder is by its nature a chronic re-occurring and relapsing disorder. Symptoms tend to become more severe and treatment refractory with the passage of time despite appropriate treatment.
Re-occurrences can occur spontaneously although high risk times include periods of stress (including financial stress, physical health in Mr Kiesouw or a family member, loss etc. etc.)
- Elsewhere in the course of his report Dr Likely wrote, under the heading “Mental state examination:
Mental state examination today showed Mr Kiesouw to be a casually groomed man who looked his stated age. He was polite, friendly and cooperative with the interviewer, maintaining good eye contact throughout. He spoke spontaneously and appropriately although circumstantially and his speech with (sic) over inclusive. His eye contact was good. His mood was euthymic (i.e. subjectively normally experienced). His affect was reactive and mood congruent. Thought content showed a preoccupation with the events described above pertaining to his work at McConnell Dowell culminating in April 2013. There were some cognitive distortions consistent with anxiety (negative automatic thoughts, catastrophisation) but not residual signs of depression.
Although an extremely pleasant man Mr Kiesouw demonstrated some psychological traits consistent with narcissism (elevated sense of self-importance and entitlement). There are no abnormities of thought, form, stream or possession although, as noted above, Mr Kiesouw was a somewhat difficult historian. He appeared to be a man of average/above average intelligence who was cognitively intact although residual cognitive deficits were apparent in the areas of poor attention, concentration, and short-term memory. Rapport was easily established and Mr Kiesouw appeared to have a reasonable insight into his condition (i.e. he realised that he was mentally unwell and had sought and complied with appropriate treatment).
- Dr Likely was cross-examined at some length by Mr O’Neill about the opinions expressed in his report and his reliance upon the factual history as recounted to him by Mr Kiesouw. In doing so, Mr O’Neill drew Dr Likely’s attention to several matters where the information given to him by Mr Kiesouw conflicted with information given to other medical practitioners/specialists or given in evidence by Mr Kiesouw, and invited Dr Likely to reconsider his opinions in light of the corrected history. However, nothing in Dr Likely’s responses altered the substance of his opinions.
- Turning to Dr Likely’s response to Question 6 (see paragraph  above), Mr O’Neill invited him to explain what he meant by the words used in the second paragraph. In responding, Dr Lightly said (T 5-9):
In the DSM-V nosology, Major Depressive Disorder is included in the chapter entitled Mood Disorders and epidemiological studies have shown that in patients diagnosed with Major Depressive Disorder, the condition becomes more severe, symptoms become more deeply ingrained and the symptoms become more resistant with the passage of time, with the important qualification “if they are not effectively treated”. Also, epidemiology shows that with the passage of time, the so-called “well interval”, which is the time that patients are free from depressive symptoms, tends to shorten as one progresses through life and that subsequent episodes of major depression are, in general, more severe and more difficult to treat than previous episodes…
- Following on from that response, Mr O’Neill referred Dr Likely to Mr Kiesouw’s depressive episode in 1996/1997, the depressive event in the early 2000’s (which Mr Kiesouw did not tell Dr Likely about) and asked him whether the situation in 2012/2013 may have been a re-occurrence of a pre-existing depressive disorder. In answering, Dr Likely said (T 5-10):
Yes, that’s certainly a reasonable hypothesis. I would add, to qualify my last statement, that, in reference to… my second paragraph in my answer to Question 6, the re-occurrences can occur spontaneously or - but I would emphasise [the] words “although high-risk times include periods of stress”. So, whilst it is possible that this could have been a spontaneous re-occurrence, in my opinion, that’s unlikely. I would say that if it is a re-occurrence of pre-existing [major] depressive disorder, which is a very reasonable thesis, it has occurred because of the work-related stressors outlined in my report.
- Referring to the “Mental state history” prepared by Dr Likely (see paragraph  above), Mr O’Neill sought clarification of the distinction between a person suffering from a personality disorder and a person who exhibits personality traits. After a number of questions and responses about the topic, Dr Likely was asked whether he agreed or disagreed with an observation made by Dr Whittington, as follows:
The primary problem, I think, with Mr Kiesouw is at a personality level. There are certain eccentricities, dramatic style and self-importance that would indicate an amalgam of eccentric, histrionic and narcissistic personality traits that may well constitute a personality disorder although during the interview I was unable to make this diagnosis.
- By way of response, Dr Likely said (T 5-13):
I agree with Dr Whittington’s observations [indistinct] that I assume that Dr Whittington’s report was based on a cross-section of interviews, so one must bear those - that qualification in mind, and I note that Dr Whittington’s observations of Mr Kiesouw’s personality traits, as you say, he was unable to make a diagnosis of personality disorder, was similar to my own, but I disagree that the primary problem before the Commission today is Mr Kiesouw suffering from a personality disorder. I’m of the opinion that the primary problem that has affected - the psychological problem that has affected Mr Kiesouw is a recurring mood disorder and also the evolution of an anxiety disorder. So, in summary, I certainly agree with some of Dr Whittington’s observations, and I agree with his statement at the end of the paragraph the he was unable to make a diagnosis of a personality disorder. But I do not believe - I disagree with Dr Whittington in that I do not believe that the primary problem with Mr Kiesouw is at a personality level.
- After further questions and answers on the topic of the development of personality traits, Mr O’Neill asked Dr Likely whether they varied in terms of their intensity from person to person. In response, Dr Likely said (T 5-15) “Very much so, yes. Even with personality disorders. It’s important to remember that they exist on - and, indeed, all mental disorders for that matter, they exist on a spectrum of severity. So, no two folks are alike, a mental disorder is going to manifest itself differently in different individuals depending on their personality traits.”
- This reply led to the following questions and answers (T 5-15):
Mr O’Neill: And what about the interplay that may occur for somebody that has personality traits, and it would seem on the basis of your report and your assessment that the traits that Mr Kiesouw displayed fall within cluster B; that’s correct?
Dr Likely: That’s correct.
Mr O’Neill: And the impact that those traits may have when we combine them with the fact that he may have a pre-existing and underlying depressive disorder, what impact can that have on the personality traits? Can that bring them out in a greater way?
Dr Lightly: Very much so. The general rule is that if – we’re just talking about personality traits here, not disorder ---
Mr O’Neill: Yes, certainly, I’m definitely just concentrating on traits at the moment. I’m not suggesting that there has been a diagnosis of a personality disorder by anybody in relation to Mr Kiesouw.
Dr Lightly: Sure. Thank you very much for the clarification. So, with that in mind, in general when someone develops a mental disorder/injury, underlying personality traits are, as you quite rightly say, exaggerated or become more prominent.
Mr O’Neill: All right. And can they potentially have the impact, and, let’s concentrate on the cluster B personality traits because that’s what we seem to be dealing with in this case, can they have the potential impact of impacting upon the way a person perceives events that are occurring around them?
Dr Lightly: Yes.
Mr O’Neill: All right. And if, in fact, those traits have been heightened at a particular stage that may mean that it would have a greater impact on the way that they perceive events?
Dr Lightly: That’s correct.
- After canvassing Mr Kiesouw’s level of alcohol consumption, as disclosed in the notes of various medical practitioners and in evidence - and obtaining Dr Likely’s agreement that Mr Kiesouw’s level of alcohol consumption (of between 39.2 and 58.4 “units” a week) was problematic when he saw Mr Doyle, a Psychologist, on 4 February 2013 - Mr O’Neill asked several follow-up questions, as follows (T 5-20):
Mr O’Neill: In circumstances where Mr Kiesouw may be experiencing the onset of depression… what impact could that level of consumption of alcohol have?
Dr Likely: In general, alcohol is probably the most depressive genic, ie, depression inducing drug, that we know of, so it would exacerbate the symptoms of depression.
Mr O’Neill: Okay. Thank you. When we combine that issue, the potential onset of a depressive episode with a high level of consumption of alcohol with his personality traits, where do we get to?
Dr Likely: A very good question. In my opinion, we get to a man who has personality traits but not a personality disorder, a man who has developed a major depressive episode which may indeed represent a recurrence of a pre-existing condition, and a man who is attempting to self- medicate his symptoms of depression which have been caused by workplace injury by taking large amounts of alcohol, potentially, therefore worsening the course of the depressive condition.
- Shortly after canvassing the above matters with Dr Likely, Mr O’Neill began to question him about the innocuous nature of, in particular, the first and third incidents and whether Mr Kiesouw’s reactions to his interactions with Mr McSkimming on those occasions could be examples of him misperceiving events. While Dr Likely accepted such proposition as being “perfectly reasonable”, he nonetheless cautioned that Mr Kiesouw’s subjective response was that he perceived the events differently. After being advised that Mr Kiesouw’s evidence in relation to the Third incident was that he “froze” after he saw Mr McSkimming’s hand extended, Dr Likely said this reaction (T 5-23) “… would indicate that his - his response was - that he felt - that would indicate to me that he felt extremely uncomfortable, no matter what the content of the exchange was.”.
- This response led to the following questions and answers (T 5-23):
Mr O’Neill: Do you consider, Dr Likely, somebody approaching you and putting out their hand to shake your hand is something that could be regarded as being threatening?
Dr Likely: That would depend on my relationship with the person involved.
Mr O’Neill: Okay. Once again, could this be regarded as being an example of him, Mr Kiesouw, misperceiving the intentions of Mr McSkimming?
Dr Likely: Potentially. Yes.
Mr O’Neill: Can I put this fundamental proposition to you about those three incidences which are all said to occur within about a week, sometime in March 2012?
Dr Likely: Yes.
Mr O’Neill: Could I describe those quite fairly as being quite innocuous incidents?
Dr Likely: You could, but in light of the history given to me by Mr Kiesouw, he certainly did see them as - as differently.
- Later, Dr Likely was asked further questions about Mr Kiesouw’s reaction to the first three incidents, as follows (T 5-25):
Mr O’Neill: So, if we accept that scenario I put to you earlier, that we have had these three isolated incidents that I’ve described as being innocuous, in March 2012, and then no other interaction prior to this event on 24 August, where he is so flat and depressed that he can’t go to work and consumes a bottle of rum, does that indicate that there is something else going on Doctor?
Dr Likely: I think your point is that - I beg your pardon, please correct me if I’m - the answer is not acceptable, but… there’s been three, what you describe as triggered incidences of - of which Mr Kiesouw portends to be significantly distressing, and then nothing appears to happen for a period of some months?
Mr O’Neill: Yes
Dr Likely: Yet, a depressive disorder evolves - correct me if I’m wrong, I think the point you’re trying to make is that the events in and of themselves were not sufficient enough to cause the recurrence of a major depressive disorder, but what we may be witnessing is the spontaneous recurrence of a major depressive disorder.
Mr O’Neill: That’s exactly the point I wanted to get to Doctor.
Dr Likely: Yeah.
Mr O’Neill: That that is, in fact, given that the nature of those events that occurred in March 2012 that I’ve described as being innocuous, that what we do have is the spontaneous development of a recurrence of his depressive condition?
Dr Likely: That is a - certainly a viable hypothesis, Mr O’Neill, but I would go back to my original opinion that the - the three tension causing events had precipitated the development of - have - sorry, have caused the recurrence of the depressive disorder.
Mr O’Neill: Sorry, that - you would say that those three incidents “have”?
Dr Likely: What – “have”. Yes. What you described as innocuous, but which Mr Kiesouw reported as subjectively very troubling. I believe that they were contributory in the recrudescence of a - a major depressive episode.
Mr O’Neill: But he said that it’s his perception of those events that troubles him?
Dr Likely: Of course. I mean, that’s - one’s perception of events is - is - is - ergo. For example, trauma is perceived in many different ways by many different people. So, yes, it’s his perception…”.
- Mr O’Neill also asked Dr Likely what impact it would have on his view about causation if the Commission did not accept Mr Kiesouw’s evidence that Mr McSkimming threatened to bash him. In response, Dr Likely said (T 5-26) “Well, it would appear that - that there - firstly [is] a serious historical anomaly. Secondly, however, I believe that the cumulative effects have started when Mr Kiesouw assumed the position on that Cypress Avenue [indistinct], if you will, have still contributed to the development of the [indistinct] disorders I have diagnosed.”.
- This response led to the following questions and answers (T 5-26):
Mr O’Neill: You stated before that my suggestion to you that there could have been a spontaneous recurrence of the depressive disorder was a viable hypothesis, I think… they were your words?
Dr Likely: Yes.
Mr O’Neill: … Can I put the proposition to you that, given his preceding psychiatric history, given his personality traits, and given his alcohol consumption, that the theory about a spontaneous re-occurrence of the depressive condition is in fact equally as likely as the theory posited by you?
Dr Likely: In my opinion, no, that’s not very [indistinct] me. It’s obviously my opinion. I think that the alcohol - the history of increased alcohol consumption around that time is what we would describe [as] an epiphenomenon*, that is, Mr Kiesouw was developing, or had developed, as it’s unclear, but certainly there’d been the evolution of significant psychological morbidity from the first three incidents and, in response to that, he was developing a significant disturbance in his mood and also symptoms of anxiety which we haven’t discussed. And that his use of alcohol I describe as an epiphenomenon*, by which I mean that he was using alcohol to self-medicate the evolving symptoms of depression. (*Note: means a secondary symptom, occurring simultaneously with a disease or condition but not directly related to it.)
Mr O’Neill: If the commission accepts my description of those three events as being innocuous, and that we’re dealing with some degree of misperception of events by Mr Kiesouw, are you able to assist us as to what may be giving rise to his misperceptions?
Dr Likely: I think what you’re getting at here again is the - the latest of his – correct me if I’m wrong - the latest of the [indistinct] traits?
Mr O’Neill: Yes.
Dr Likely: Yes, but that would be my answer to your question. However, I’ve remained of the unequivocal opinion that perception traits notwithstanding or happened as described in my report and then reiterated by yourself, they (i.e. the three incidents) have caused the recurrence, or the early stages of recurrence, of the major depressive episode.
- In addition to the above matters, Mr O’Neill also invited Dr Likely to reconsider his conclusions about causation if the various interactions (referred to as the Fifth incident) between Mr Kiesouw and Mr McSkimming, as described to him by the former, were not accepted by the Commission as having occurred. In response Dr Likely said (T 5-27) “They would undermine the hypothesis. It might completely destroy it.”.
- Finally, Mr O’Neill invited Dr Likely to respond to the proposition that the factual basis of his conclusions would be further undermined if the Commission ultimately accepted that the factual scenario of the events of Saturday 26 January 2013 were as described by Mr McSkimming, and not those recounted by Mr Kiesouw. In responding, Dr Likely said (T 5-28):
It would be factually different, but what’s important to stress is what happened afterwards, of the [indistinct] in respect of who the instigator was, but there was, to my understanding, an altercation between the two on that day, irrespective of whether a finger was raised by Mr Kiesouw first, or - or after, so well, an altercation which Mr Kiesouw perceives to be extremely threatening and causes some significant subjective distress, that appeared to be, as you said, the conclusion of an amalgam of events that occurred and evolved [over] the preceding 12 months, and that - that event was the - the combination of those pre-existing issues which was enough to bring Mr Kiesouw to clinical attention, so to speak.
- This response was followed by the following question and answer:
Mr O’Neill: The fact that he has actually sought medical attention after that incident, that he hadn’t in relation to any of the previous incidences, can we assume, therefore, that this event is perhaps the most significant, in giving rise to his decompensation?
Dr Likely: It certainly is the one, yes, in that - in that he sought medical assistance thereafter. Yes.
- In a re-examination, Mr Greggery asked Dr Likely several questions about the relevance of Mr Kiesouw’s perception of events vis a vis any finding of fact about them, as follows (T 5-30):
Mr Greggery: … how significant… is the distinction between an objective finding of fact about events and Mr Kiesouw’s perception [of them] to the development of the symptoms and the disorder?
Dr Likely: Yes. I think it’s crucial. I think the word “perception” is crucial, hence the debate in the psychiatric community about rewriting the criteria for a different disorder, but there is a large discussion in the psychiatric community at present about one’s perceptions, and the importance therein, in the generation of any mental disorder or injury. So I think that the word “perception” is crucial.
Mr Greggery: And you say “crucial” in the sense that that’s the crucial issue?
Dr Likely: That makes a huge - yeah, it’s almost the - the crux of the argument, I suppose, in that Mr O’Neill pointed out the three events that I had [indistinct] reported on and said, you know, … they’re innocuous – or words to that effect. I apologise if that wasn’t the exact word, but Mr Kiesouw certainly did not perceive them to be innocuous at all. In fact, they caused him significant subjective distress, and in my opinion, were the first events which led to the evolution of an extremely toxic relationship between himself and Mr McSkimming, which in my opinion caused the evolution of significant psychological injuries.
Mr Greggery: Does it follow, then, that the objective description of the various events over the course of 2012 is less significant than Mr Kiesouw’s perception of them to the development of the condition?
Dr Likely: Yeah, by extrapolation, it does.
- Noting that Mr O’Neill had questioned Dr Likely about his clinical opinion being dependent upon the accuracy of the history provided by Mr Kiesouw, Mr Greggery asked him about the role the contemporaneous accounts of the workplace events - as recorded in such documents as workers’ compensation certificates, medical certificates and GP records - played in his assessment of the history provided by Mr Kiesouw. In response, Dr Likely said (T 5-31):
They’re very important, and very valuable. If I could take the Commission to page 5 of my report… on the 29th of January, Mr Kiesouw was referred to a psychiatrist, so a doctor assessed Mr Kiesouw and formed an opinion that he was suffering symptoms which merited some specialist treatment. That’s very significant. Also, at paragraph 5 of that page, which begins two days later on the 31st of January 2013, Mr Kiesouw attended Dr Rosemarie Knight, and … she was a doctor “aligned with the employer”, but she, nonetheless, generated a medical certificate which diagnosed Mr Kiesouw suffering from “acute stress reaction” … that had arisen … as a result of “harassment and abuse at work by a colleague over the last year”. So those contemporaneous records are extremely important in reinforcing my opinion.
The meaning of s 32(1) of the Act
The Appellant’s submissions
- In his initial submissions Mr Greggery said that the terms of s 32 of the Act had been considered by Keane JA in Newbury v Suncorp Metway Insurance Ltd where His Honour said:
 … I should also observe in passing that the fact that an injury has been suffered arising out of employment, or in the course of employment, is not sufficient to establish that the employment has been “a significant contributing factor to the injury”. To read s 32 of the WCRA in that way would be to read the latter words out of the section, and in my respectful opinion to accord scant respect to the evident intention of the legislature to require a more substantial connection between employment and injury than is required by the phrases “arising out of employment” or “in the course of employment”.
 Further, there is no warrant in the language of s 32 of the WCRA for reading the words “if the employment is a significant contributing factor to the injury” as lessening the stringency of the requirement that the injury “arise out of the employment”, as was suggested in the course of argument on the appeal. It is clear, as a matter of language, that the words “if the employment is a significant contributing factor to the injury” are intended to be a requirement of connection between employment and injury additional to each of the requirements that the injury occur in the course of employment or arising out of the employment. It cannot, in my respectful opinion, sensibly be read as lessening the stringency of the latter or increasing the stringency of the former. (Citations omitted)
- Mr Greggery said the matter was the subject of further analysis by Martin P in Byrnes v Workers’ Compensation Regulator where His Honour wrote:
 Section 32(1)(a) of the Act makes the primary factor for consideration whether the employment was a significant contributing factor to the injury. The requirement is preceded by another condition, namely, that the injury arise out of, or in the course of, employment. Those words are to be regarded as alternative conditions not cumulative. It was explained in this way by Fullagar J in Kavanagh v The Commonwealth (1960) 103 CLR 547 at 548:
[T]he effect of requiring a causal connection between employment and injury is always attributed to the words “out of” and not to the words “in the course of”. (The words “out of” do indeed import causation. The words “in the course of” do not.). The conclusion seems inevitable that the main object of the changing of the conjunction was to eliminate the necessity of finding such a causal connection. If there was such a causal connection, the injury was to be compensable even though it did not occur while the worker was engaged in his employment or anything incidental to his employment. If, on the other hand, injury occurred in the course of employment, it was to be compensable even though no causal connection could be found between it and the employment. And it necessarily follows, I think, that the words “arising in the course of his employment” ought not to be regarded as meaning “anything more or less than arising while the worker is engaged in his employment”. For I can find no tenable half-way house between this view and the view that the words in question have the same meaning as the words “arising out of his employment.”. (Mr Greggery’s emphasis)
 A similar definition of “injury” is contained in s 4 of the Workers’ Compensation Act 1987 (NSW). It provides that an injury means a “personal injury arising out of or in the course of employment”. The proper construction of the definition was considered by McColl JA in Tudor Capital Australia Pty Limited v Christensen  NSWCA 260:
 The use of the disjunctive in s 4 means that “two quite different tests are involved, one or other of which is sufficient to be satisfied for the purposes of s 9”. The first limb, “arising out of”, requires there to be a causal element between the employment and the injury. The second limb, “in the course of employment”, involves a “temporal element and does not of itself contain a causative element.”. It refers to “an injury sustained while the worker is engaged in the work which he is employed to do or in something incidental to that work”. As soon as the employee “ceases to be so engaged the time span ends and with it the course of employment.” (Mr Greggery’s emphasis, citations omitted)
The Respondent’s submissions
- In the course of his written submissions in reply, Mr O’Neill said
 The Appellant’s personal injury must have arisen out of, or in the course of, employment.
 An injury which arises out of employment occurs when there is a causal connection between the employment and the injury - Kavanagh v The Commonwealth.
 The words “arising out of” do not require the direct approximate relationship which would be necessary if the phrase used was “caused by”; yet, there must be some causal or consequential relationship between the employment and the injury - Avis v WorkCover Queensland and WorkCover Queensland v Curragh Queensland Mining Pty Ltd.
 As to what is meant by the phrase “in the course of employment” in workers’ compensation law in Australia, Deane J in Commonwealth of Australia v Lyon said:
Injury in the course of employment means an injury is sustained while the worker is engaged in the work he or she is employed to do or in something which is concomitant of or reasonably incidental to his employment to do that work. The course of employment is a temporal concept and it is unnecessary that there be any causal connection between the work which the employee is employed to do and the injury which he or she sustains. The scope of what is within it depends upon “the sufficiency of the connection between the employment and the thing done by the employee” which “cannot but remain a matter of degree, in which time, place and circumstances as well as practice, must be considered together with the conditions of employment.” (citations omitted by me)
 Thus, an injury in the course of employment means an injury is sustained while the worker is engaged in the work he or she is employed to do or in something which is concomitant of, or reasonably incidental to, the person’s employment to do that work - Hatzimanolis v ANI Corporation Ltd.
- After referring me to the above authorities, Mr O’Neill submitted that the first three incidents were entirely innocuous events that would not be viewed, in any way, as meeting the requirement of being bullying or harassing behaviour. That they were perceived that way by Mr Kiesouw was telling, revealing his true state of mental health as early as March 2012. Further, given the lack of any contemporaneous reporting of the onset of symptoms related to those events to the Appellant’s treating doctors, as well as the significant gap between those events and his decompensation in January 2013, the Commission would not be satisfied that the first three events made a necessary contribution to the Appellant’s decompensation.
- In terms of the Sixth incident (I was urged to accept Mr McSkimming’s evidence that the Fourth and Fifth incidents did not occur as alleged by Mr Kiesouw), Mr O’Neill submitted that given its proximity to the Appellant’s decompensation it appeared to be the key event that had given rise to the Appellant’s injury.
- For the undermentioned reasons, he submitted (at paragraph ) that the Commission would not be satisfied that Mr Kiesouw’s injury, as it related to that incident, was an injury that arose out of, or in the course of, the Appellant’s employment:
- The Appellant had not worked that day, had not attended the workplace for any reason and his presence on the footpath was for his private purposes, apparently he was intending to go to McDonalds;
- Mr McSkimming was also not working that day but had been called in due to the emergent nature of the fencing issue;
- The Appellant in fact instigated the incident by giving Mr McSkimming the finger as he was driving past;
- Equally, Mr McSkimming confirmed in his evidence that in pulling over to speak to the Appellant following the Appellant giving him the finger and apparently shouting at him he was acting in a private or personal capacity and not as the supervisor of the project;
- That both the Appellant and Mr McSkimming engaged in the argument/discussion, and this is confirmed by the Appellant indicating he walked away glad that he had got [it] off his chest; and
- That in conducting that private argument off-site neither the Appellant nor Mr McSkimming were performing work duties or indeed anything incidental to their work duties.
The employment must be a significant contributing factor to the injury
- In turning to the above element of s 32(1), Mr O’Neill submitted:
 It has been held that “significant” probably does not mean “large”, “great”, “weighty” or “substantial” and an appropriate word to describe “significant” is “strong” as are the words “important” or “of consequence” - Qantas Airways Limited v Q-Comp and Blanche.
 Further, while one should not give excessive weight to the adjective “significant” at s 32(1) of the Act, the composite phrase is “[a] significant contributing factor” and the notion of contribution itself suggests some linkage between the employment and the injury – Graham Douglas Sergeant v Q-Comp.
 In Newberry v Suncorp Metway Insurance Limited, Keane JA stated (footnotes omitted):
 It cannot be disputed that, when s 32 of the WCRA speaks of “employment” contributing to the worker’s injury, it is referring to employment as a set of circumstances, that is to the exigencies of the employment of the worker by the employer. The legislation is referring to “what the worker in fact does during the course of employment”. The requirement of s 32 of the WCRA that the employment significantly contribute to the injury is apt to require that the exigencies of the employment must contribute in some significant way to the occurrence of the injury which the claimant asserts was caused by the breach of duty of the person (not the employer) against whom the claim is made.
 that having been said, however, I should also observe in passing that the fact that an injury has been suffered arising out of employment, or in the course of employment, is not sufficient to establish that the employment has been “a significant contributing factor to the injury.”. To read s 32 of the WCRA in that way would be to read the latter words out of the section, and in my respectful opinion to accord scant respect to the evident intention of the legislature to require a more substantial connection between employment and injury than is required by the phrases “arising out of employment” or “in the course of employment.”.
- Mr O’Neill also referred me to Croning v Workers’ Compensation Board of Queensland where de Jersey P dismissed the Appellant’s appeal, noting that the Magistrate below found that the only significant contributing factor to the Appellant’s decompensation “was not the employment, but the appellant’s unpreparedness to accede to, to work within the framework of, … established and reasonable work conditions”. In the course of the decision His Honour also said:
… The work conditions did, as I have said, certainly provide 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 the Magistrate must be taken to have found, a “significant” one - the only significant contributing factor in accordance with his findings being the appellant’s own disposition.
- After referring me to Croning, Mr O’Neill submitted:
 … the Commission could not be satisfied to the requisite standard that the Appellant’s employment was a significant contributing factor to the Appellant’s injury.
 … the significant contributing factors to the Appellant’s decompensation appear to be a combination of his pre-existing mental health issues, his personality traits which are either genetic or developmental and therefore not work-related, and his excessive alcohol consumption.
 Akin to the situation in the case of Croning, the employment was merely the background to the confluence of factors causing a spontaneous flair in the Appellant’s underlying depressive order sometime in mid-2012.
 The Respondent relies on the earlier factual analysis of each of the incidents contained in these submissions and in particular the analysis in the preceding section [concerning] Incident Six.
 Once again, the Respondent submits that if the Commission accepts those submissions, the Commission could not be satisfied on the balance of probabilities that the Appellant’s employment duties were a significant contributing factor to his decompensation and psychological injury.
The Appellant’s reply submissions
- In his reply submissions, Mr Greggery addressed the Respondent’s factual challenge to Mr Kiesouw’s evidence and Dr Likely’s opinion. In doing so, he said:
 A substantial part of the challenge to the evidence of Mr Kiesouw was to downplay the events by an objective retrospective characterisation of them as being innocuous and to assert that Mr Kiesouw’s evidence is overstated by reason of his subjective perception of those events in the context of his psychological make up and medical history. This submission of the respondent is completely answered by the legal principles which apply to workers in Mr Kiesouw’s position.
 In Gilmour v Workers’ Compensation Regulator  QIRC 022 Deputy President O’Connor said (full references and citations omitted):
 I do not accept that this is a case in which it can be said that “the only significant contributing factor” was the appellant’s own particular attitude which led to the injury.
 In Attorney General’s Department v K (2010) 8 DDCR 120 R 52 Acting President Roche drew the following conclusions [from] the leading authorities dealing with perception:
(a) employers take their employees as they find them. There is an “egg-shell psyche” principle which is the equivalent of the “egg-shell skull” principle (Spigelman CJ in Chelmer at );
(b) a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chelmer at );
(c) if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chelmer at );
(d) so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (Hall P in Sheridan);
(e) there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an “objective measure of reasonableness” (Von Doussa J in Wiegand at ); and
(f) it is not necessary that the worker’s reaction to the events must have been “rational, reasonable and proportionate” before compensation can be recovered.
 As was accepted in Attorney General’s Department v K employers take their employees as they find them as long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind.
- Mr Greggery also referred me to Q-Comp v Foote (No 2) where Hall P said:
All of the stressors identified by Mr Foote … are stressors arising from Mr Foote’s employment at BIALA. Whilst there may be much of perception in some of the stressors, a fragile psychological make-up is no more a bar to an entitlement to benefits under the Act than an eggshell skull. … (Subject to statutory qualifications concerning a worker’s perception of management action) an insurer takes a worker with all his faults…
- In concluding his response to the Respondent’s submissions on the topic of Mr Kiesouw’s misperception of and/or overreaction to the various Incidents, as well as its challenge to the evidence of Dr Likely, Mr Greggery submitted:
 Simply because Mr Kiesouw might have been vulnerable to psychiatric injury or was psychologically inclined to perceive higher levels of aggression in the conduct of Mr McSkimming than a worker with a different psychological make up and medical history is a fact of no consequence to the present appeal. (This principle is consistent with the evidence of Dr Likely on the point as to the causation of injury: 5-22 line 46 and following; 5-26 lines 33 to 43.)
 As to the challenge to Dr Likely’s opinion, is important to note that it was not contradicted by any expert called by the respondent. Nor does the respondent submit that Dr Likely lacked expertise or objectivity. While the evidence upon which the opinion is based must be proved, it is not a requirement, though, that the facts which are proved must correspond with complete precision to the propositions on which the opinion is based. (Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844). The respondent has not identified any factual matters which materially detract from the opinion of Dr Likely.
 Ultimately the respondent urges the Commission to reject the opinion of Dr Likely (at ) and substitute its own medical opinion despite the detailed consideration given by Dr Likely to all of the issues raised by the respondent at paragraphs  to . While the ultimate questions are for the Commission to determine, on questions of uncontradicted expert evidence, there is no sound reason to reject Dr Likely’s evidence.
 In this legal context, whether the events took place precisely as Mr Kiesouw described them in his evidence or whether they occurred somewhere in between the versions given by Mr Kiesouw and Mr McSkimming is of little consequence (Dr Likely: see transcript 5-30 lines 45 to 47). The respondent’s ultimate submission at  on factual matters that Mr McSkimming’s evidence would be preferred to Mr Kiesouw’s has no bearing on the development of Mr Kiesouw’s injury from his interactions with a workplace supervisor.
 This approach is consistent with the evidence of Mr McSkimming. [His evidence] was essentially that he recalled the troubled relationship between himself and Mr Kiesouw despite the passage of seven years. He gave evidence from which, although he disputed some of Mr Kiesouw’s factual allegations, he readily appreciated why Mr Kiesouw might have taken an adverse view of [his] conduct towards him and that it persisted over the duration of their time at the Cypress Avenue site. …
 As Dr Likely opined, the appellant’s perception of the events was significant and it is also no answer to the applicable law to find that it might have been considered less confrontational by other employees familiar with the rough-and-tumble of a construction site. Each of the interactions between the appellant and Mr McSkimming reflected the different workplace cultures from which they originated and were familiar. The appellant was unfamiliar with Mr McSkimming’s supervision and he was not seriously challenged that his perception was not honestly held. The appellant found Mr McSkimming intimidating and aggressive.
- Finally, in replying to the Respondent’s submissions concerning the meaning and application of s 32 of the Act, Mr Greggery said:
 The phrase “arising out of, or in the course of, the employment” in s 32(1) of the WCRA contemplates two links between the injury and the employment. To the extent that the appellant’s injury was caused by the interactions with Mr McSkimming in 2012 it satisfies both limbs. The event on 26 January 2013 was a continuation of the workplace conduct in 2012 which “arose out of, or in the course of, the employment”. If the fact the appellant was not performing the duties of his employment on 26 January 2013 is a relevant consideration, the interaction still “arose out of” the employment by reason of it being a continuation of the dysfunctional workplace relationship over the preceding 12 months. As Mr McSkimming accepted, their relationship only existed by reason of them being part of the same work team.
Consideration of the witnesses and their evidence
- Notwithstanding Mr O’Neill’s criticisms of, and challenges to, the reliability of Mr Kiesouw’s evidence and his credibility, I am inclined, on my overall assessment of his evidence, to follow the approach of Hall P in Q-Comp v Foote (No. 2) where His Honour, on a global reading of Mr Foote’s evidence, was disposed to treat him “as (substantially) an honest witness.”.
- In recording that finding, it is also relevant to highlight that my decision to accept Mr Kiesouw as a substantially honest witness was reinforced by my assessment of Mr McSkimming as a witness - which I shall say more about, below.
- I accept that a number of incorrect answers were given by Mr Kiesouw on his Pre-Employment Health Assessment form (Part 5 of Exhibit 6), but I do not accept that that leads to the situation where I should simply dismiss his evidence in the current proceedings as being untruthful. In addition, while Mr Kiesouw’s Notice of Claim, his early SOFACs and, to a much lesser degree, his oral evidence, contained some exaggerations that does not, again, lead to a situation where I should dismiss all of his evidence as being exaggerated.
- Further, although Mr Kiesouw’s evidence did contain some inconsistencies compared to the information contained in his Amended SOFAC, and some earlier versions of the SOFAC which he had prepared, I do not put that down to any deliberate intention to enhance his version of events. Rather, I conclude that it might have had more to do with the circumstance that he was living out of his motor vehicle and attempting to prepare material in the manner required by the Commission within specified time frames, as well as (later) communication issues with his solicitor, given the tyranny of distance in that he was on the Gold Coast while his solicitor was located in Townsville.
- In any event, he was able - in my opinion - to satisfactorily explain most of the inconsistencies between his oral evidence and material contained in his Amended SOFAC and earlier versions of that document. Two critical examples come to mind:
- Although his Amended SOFAC dated 18 May 2018 (lodged by his solicitor) records that the Fourth incident (Mr McSkimming’s alleged threat to bash him) occurred one or two months after the first three incidents, Mr Kiesouw stated in his oral evidence that it occurred towards the end of the year. In doing so, he indicated (at T 4-41) that he was not 100% sure about the timing but noted that he had given Dr Wilson a full history on 29 January 2013 “when everything was fresh”.
Relevantly, Dr Wilson’s notes for that date (page 5 of Exhibit 9) record “work colleague has threatened to assault him 3/12 ago …”. Further, Mr Doyle’s notes of his counselling session with Mr Kiesouw on 4 February 2013 (page 99 of Exhibit 9) record:
Co Worker - Matt McSkimming – Supervisor of Construction
November 2013*: Threatened to “bash me” because said I looked at him funny! (*sic – should be 2012)
- In relation to the Sixth incident, although Mr Kiesouw acknowledged that some earlier versions of his SOFAC did not mention two interactions between he and Mr McSkimming on Saturday, 26 January 2013, he maintained that his evidence about there being two interactions on that day was not a recent invention. In responding to Mr O’Neill’s question about how he could explain the difference, he said “… well, what’s the best way of putting it? I - it was something that I wanted to clarify because there was (sic) two incidents, not just the one.”.
In re-examination, Mr Kiesouw was taken to his SOFACs dated 23 September 2016 and 12 December 2016 and confirmed that in paragraph 14 of each document he had written that Mr McSkimming “pulled up again” after he walked off and gave Mr McSkimming “the finger”. (As an aside, I note that two further SOFACs, dated 16 January 2017 and 19 June 2017 contain the same text).
- In terms of his alcohol consumption, the records of the various medical practitioners Mr Kiesouw saw on or after 29 January 2013 and during 2014 suggest a more significant level of intake than he was prepared to acknowledge in his evidence. However, his level of consumption in that period is not, in my opinion, relevant to the current proceedings, which concern events between approximately February 2012 and 26 January 2013.
- The exception, of course, is the handwritten note of Mr Doyle of 3 June 2013, made during his consultation with Mr Kiesouw that day, about which there was much debate both during the proceedings and in written submissions. Relevantly, this note (which includes the hand drawn line with the asterixis and the arrow), at page 81 of Exhibit 9, records:
Daniel – (still billing the employer)
Up until 3 x weeks ago was physically training really well. (Gave up alcohol completely)
Thursday late in May - surprise D & A test - Safety Officer asked me as he was doing the testing … “How are the problems with Matt McSkimming?”
+ other staff are saying “Matt is going to smash you”
Friday 24th August - two flat/depressed to go to work & drank bottle of rum (7am to midday)!
Action: return to bike riding & regular gym [Fitness First member]
This session * DASS – DO IN OFFICE
- On the basis that 24 August 2012 was a Friday, Mr O’Neill - quite understandably - took this entry at face value and questioned Dr Likely about whether what had occurred on that date might have been a spontaneous recurrence of Mr Kiesouw’s depressive condition (see paragraphs  and  above).
- By contrast, Mr Greggery argued that an examination of the note of Mr Doyle provided the obvious explanation that the reference to “August” was an error and it was intended to be a reference to May. In support of this position he said the entry was more likely to be a reference to the Friday in May which followed the distressing event on a Thursday late in May, which was either Thursday 23 May 2013 or Thursday 30 May 2013, rather than an unexplained absence which could be recalled with particularity over nine months later and was not relayed in any earlier counselling sessions. “It also accords with the hand written asterixis and arrow linking the reference to ‘up until 3 x weeks ago was physically training well (gave up alcohol completely)’ and the later note about ‘Friday 24 August’ creating the temporal link between Mr Kiesouw recently giving up alcohol and the consumption of excessive alcohol due to depressive symptoms. It is also consistent with the references to reducing alcohol consumption in subsequent counselling sessions.”.
- I agree with Mr Greggery’s submissions. Not only does the sequence of Mr Doyle’s entries suggest that the consumption of the bottle of rum followed the events on the Thursday late in May - which Mr Kiesouw found distressing – but the hand written asterixis and arrow reinforce the temporal link described in the paragraph immediately above. Further, Mr Doyle had demonstrated a capacity to make mistakes with dates, in that he had written “November 2013” instead of “November 2012” in his notes of his consultation with Mr Kiesouw on 4 February 2013 (see paragraph  above).
- In light of this finding, it would appear that Mr O’Neill’s “viable hypothesis” about the spontaneous recurrence of a depressive disorder or depressive condition in or around August 2012, exemplified by Mr Kiesouw binge drinking a bottle of rum in five hours, has not been established.
- In any event, Dr Likely’s evidence, given at paragraph  above (Transcript 5-26), was:
“… I think that … the history of increased alcohol consumption around that time (i.e. August 2012) is what we would describe as an epiphenomenon, that is, Mr Kiesouw was developing, or had developed, as it’s unclear, but certainly there’d been the evolution of significant psychological morbidity from the first three incidents and, in response to that, he was developing a significant disturbance in his mood and also symptoms of anxiety which we haven’t discussed. And that his use of alcohol I describe as an epiphenomenon, by which I am meant that he was using alcohol to self-medicate the evolving symptoms of depression.
… I have remained of the unequivocal opinion that perception traits notwithstanding, or happened as described in my report and then reiterated by yourself, that they (the three incidents) have caused the recurrence, or early stages of recurrence, of the major depressive episode.”.
- Mr McSkimming was a reasonably tall, well-built, individual who carried himself - and spoke - as if he was used to being in senior positions and directing staff. He also had a fairly deep, commanding, type of voice.
- Although he claimed at one point to “feel for the guy” (T-5-59), Mr McSkimming’s dislike of Mr Kiesouw was palpable. Six years or so after the relevant events, it was still deep-seated.
- Based upon my observations of Mr McSkimming during his evidence and his responses to questions asked of him, in both examination in chief and cross-examination, I prefer Mr Kiesouw’s evidence about the First*, Second, Fourth and Fifth incidents ahead of Mr McSkimming’s. (Note: this includes the dispute about which vehicle Mr McSkimming was driving. I think he was mistaken when he said he was driving his black Range Rover. It was quite early in the project and he might not, at that stage, have passed the utility he was allocated to a foreman to use, or traded in his black Discovery)
- In relation to the Sixth incident, I am inclined to favour the evidence of Mr Kiesouw over that of Mr McSkimming for several reasons. Firstly, I cannot imagine that Mr Kiesouw, who was so afraid of Mr McSkimming that he would cross the street (or turn around) to avoid passing him at lunchtime, would give him “the finger” and yell out something rude when he happened to see him driving past the site compound. Secondly, I accept Mr Kiesouw’s evidence that he did not know who was in the black Range Rover until Mr McSkimming got out. Thirdly, I accept Mr Kiesouw’s evidence that Mr McSkimming pulled up onto the footpath a second time after he did give him the finger and yelled out “F you”.
- In the course of his appearance in the witness box, Mr McSkimming made a number of comments - several of them clearly unintentional - which, progressively, led me to conclude that his evidence was questionable. Particular examples are:
- his recollection of fairly innocuous events (as they were described during the proceedings) was extraordinarily good, given the passing of time, which was a surprising for someone in his position with his responsibilities. That showed me that he did not regard them that way. He still possessed a very strong memory of them;
- his contradictory responses about when, and why, he tooted his horn at Mr Kiesouw and the surveyor when they were standing in his parking space (T 5-49 and T 5-80), as well as his evidence about how Mr Kiesouw reacted to being “tooted” (T 5-80 to 81);
- his telling response under examination in chief in relation to Incident one (T 5-49) when he volunteered “… that’s when all this started, from there.”;
- the fact that he was “pulled into the office” by the senior project manager and Mr Kulk after the Second incident, and told to stay away from or steer clear of Mr Kiesouw, suggests that the incident was far more serious than Mr McSkimming claimed;
- the long pause, under examination in chief, before he responded to the allegation (T 5-51) that he threatened to “bash” Mr Kiesouw and the way he answered by suggesting that his words might have been misconstrued or taken in a different way;
- his broad, but non-specific, response to the allegation (T 5-53) that he had called Mr Kiesouw names and said derogatory things to him, during which he accepted that he might have sworn, but in a non-threatening way, simply because of the environment he was working in;
- his uninvited comments in examination in chief (T 5-55) that Mr Kiesouw had embarrassed him in front of his daughters “things like that, there was lots of things – it was like I was being provoked all the time, you know, for whatever reason.”;
- his concession under cross-examination (T 5-56 and 57) that his sense of frustration in respect of Mr Kiesouw was ongoing through 2012 and early 2013;
- his response under cross-examination (T 5-58) when he was asked whether his question to Mr Kiesouw on 26 January 2013 “What’s your problem?” referred to the ongoing problems that had happened for a period of time, when he said “Well, it was more so at that particular time, because I had stopped - I had started - was ignoring Mr Kiesouw…”;
- his claim under cross-examination (T 5-64 and 65) that the words Mr Kiesouw said he used in front of Mr Sampson (about bashing) might have been misconstrued by claiming he might have said something along the lines “… this guy’s attitude has got me beat…”;
- his subsequent comments (T 5-65) “… like, am I the only one that is being treated this way, you know, I don’t know. It felt like it was a vendetta or something” and “I just felt it was getting, you know, it was getting out of hand. It was rather childish and, like I said, I had more important things to do.”;
- his additional comment (T 5-70) that when Mr Sampson opened his window “… I said, in ang – not [indistinct]. ‘What is this bloke’s problem?’, whatever it was. And that was the thing, and he just said, ‘Play nicely’”. This evidence was enlightening for two reasons. Firstly, he nearly said “in anger” before stopping himself. Secondly, he confirmed Mr Kiesouw’s evidence about Mr Sampson’s response (T 5-65 and T 5-70) - although he claimed in re- examination that this was in relation to the Second incident;
- his responses (T 5-74) to a generally worded question about whether he had told Mr Kiesouw that he should not be staring at him, when:
- he said “I think that was the time with the Sampson thing”;
- he acknowledged that he recalled saying something like “You need to stop staring at me” to Mr Kiesouw;
- he said “It was uncomfortable … no one likes to be stared at like that”;
- he acknowledged that he was frustrated at the time.; and
- his clearly unintended comment (T 5-84) that his intention in pulling his vehicle onto the footpath in front of Mr Kiesouw was not to confront him but to ask him “What is the problem, how can we move forward?”, which he immediately sought to withdraw by saying “… That’s probably what I was all thinking.” .
As was authoritatively pointed out by the High Court in Ramsay v Watson questions such as those which are critical for determination in this case are not to be answered purely by reference to a medical opinion. The mere fact that a medical witness has expressed an opinion that something is more probable than not does not conclude that issue. It is still for the tribunal of fact to weigh and determine the probabilities…
- The submission then stated “… despite the evidence of Dr Likely, which is supportive of the Appellant having sustained a work-related aggravation of his pre-existing depressive disorder, that is not determinative of the issue. It is open to the Commission to reject the evidence of Dr Likely…(by) undertaking the exercise posited by Justice Williams to draw another conclusion in light of the following evidence before the Commission.”. The “following evidence” included the undermentioned points:
- Mr Kiesouw’s mental health issues in 1996/97, which resulted in his admission to the mental health unit of the Royal North Shore Hospital;
- the Appellant suffers from a depressive disorder which, according the evidence of Dr Likely, was likely to reoccur;
- the Appellant has significant Cluster B personality traits that may lead him to misperceive events and to exacerbate the impact of a depressive disorder (Note: the submission acknowledged that no Psychiatrist had been in the position of having sufficient exposure to Mr Kiesouw to diagnose whether he was suffering from a personality disorder);
- the initial events described by the Appellant were entirely innocuous and his perception of those events is a strong indicator that there were underlying issues with his mental health that were not work-related;
- during the relevant period the Appellant was drinking excessive amounts of alcohol which would significantly exacerbate any developing depressive disorder (Note: Dr Likely’s evidence (T 5 20) was that alcohol “would exacerbate the symptoms of depression”); and
- Dr Likely conceded that if the Commission did not accept the Appellant’s evidence regarding the Fourth and (more so) Fifth incidents, that would undermine his hypothesis and might completely destroy it.
- In light of the above, the Respondent submitted that “the Commission would not be satisfied on the balance of probabilities on the medical evidence that the Appellant had in fact sustained a work-related injury as opposed to a spontaneous flair of mental health issues, perhaps contributed to by his consumption of alcohol.”.
- Dr Likely was a very impressive witness. He was extremely familiar with the contents of his report of April 2018, as well as the notes and reports of the medical practitioners referenced therein, and was able to immediately refer Counsel to relevant pages in his report, if that was required, to help them better understand, or better appreciate, responses he gave to questions asked of him.
- Further, he was prepared to concede the validity of a number of points raised with him by Mr O’Neill without argument while, at the same time, being able to provide courteous, clear, logical, and well-reasoned responses where his professional opinion led him to a disagree with a particular proposition canvassed with him by Mr O’Neill.
- Of particular note was the fact that he appeared to directly respond to each question asked of him - after making sure he completely understood it - without, in any way, attempting to advance a response which might have been favourable to the Appellant. In my opinion, he was the epitome of a truly independent expert witness.
- As recorded several times above, I prefer Mr Kiesouw’s evidence concerning the Fourth and Fifth incidents, respectively, which finding negates the final point made by the Respondent in paragraph  above. Further, on the basis that I have also found that the evidence did not support the Respondent’s proposition that Mr Kiesouw drank a bottle of rum in 5 hours on 24 August 2012 and was too depressed to go to work that day, any concessions made by Dr Likely based on that premise also cannot be relied upon.
- As such, having regard to the totality of Dr Likely’s evidence - particularly the manner in which he was able to respond to questions put to him by Mr O’Neill and explain why he had arrived at his ultimate opinion regarding the origins of Mr Kiesouw’s major depressive disorder - I am prepared to accept his conclusions about the cause of Mr Kiesouw’s major depressive disorder, as recorded in his report of April 2018 (see paragraph  above) and further explained in evidence, as if they were my own.
Did Mr Kiesouw’s injury arise out of, or in the course of, his employment?
- Although Dr Likely’s evidence (see paragraph  above) was that the Sixth incident was the most significant in giving rise to Mr Kiesouw’s decompensation, his unwavering opinion was that the earlier incidents during 2012 which Mr Kiesouw had concerns about were contributory in the recrudescence of his major depressive disorder (see paragraphs  to  above).
- In relation to that point, I agree with Mr Greggery’s submissions at paragraph  of his initial submissions that “there was no dispute that each of the interactions between Mr Kiesouw and Mr McSkimming in 2012 occurred while each was engaged in their employment at the worksite. They did not know each other outside of their employment and their only relationship was the problematic workplace relationship.”.
- The problematic workplace relationship was evidenced by the five incidents that each of Mr Kiesouw and Mr McSkimming gave evidence about. Importantly, as Mr Greggery highlighted, Mr McSkimming acknowledged that each incident occurred in some way or other, although he denied threatening to “bash” Mr Kiesouw (the Fourth incident).
- In the First incident, Mr McSkimming tooted his horn at Mr Kiesouw and the surveyor, following which he said something to them along the lines “haven’t you got anything to do?” and directed them to go back to work. In the Second incident, Mr McSkimming decided to act upon a complaint made to him by female staff to direct Mr Kiesouw not to smoke in the spot that he was using.
- In the Third incident, Mr McSkimming took it upon himself, following a complaint by Mr Kiesouw and despite a suggestion by his senior management that he “steer clear” of Mr Kiesouw, to try to explain why he had directed Mr Kiesouw to smoke elsewhere. In doing so, he explained that he issued the direction because he was the boss of the site.
- In the Fourth incident, Mr McSkimming approached Mr Kiesouw and told him he would bash him if he stared at him again. Although Mr McSkimming denied having made such threat, his later admission that he told Mr Kiesouw to “stop staring at me” - as well as his later comments that it made him feel uncomfortable and no one likes being stared at - convinced me otherwise.
- In relation to the name calling, described as the Fifth incident, I am satisfied from my consideration of Mr McSkimming’s evidence that he did not have a very high regard for Mr Kiesouw and was frustrated at the fact that he had no ability to direct him where to smoke (and potentially to tell him to stop smoking and get back to work). As such, I fully believe Mr Kiesouw’s evidence that Mr McSkimming called him a variety of names, or said things to him, quite often when they saw each other* in the compound. Mr McSkimming’s failure to answer the direct question about whether he said unflattering things to Mr Kiesouw, and instead to simply admit that he swore on-site as part of the culture, as well as his evidence that he told Mr Kiesouw he was a “fucking idiot” after he said “one punch can kill” (during the Sixth incident), reinforces my view. (Note: Mr Kiesouw actually said “whenever they saw each other”, which is clearly an exaggeration)
- As Mr Greggery submitted (at paragraph  of his initial submissions), it was against that background, but also as a supervisor trying to deal with the issue of the strained workplace relationship, that Mr McSkimming engaged with Mr Kiesouw on 26 January 2013. I agree.
- The following evidence highlights the point:
- Mr McSkimming’s acceptance (T 5-60 lines 26 to 37) that it was in the context of teambuilding or making sure relationships aren’t frustrated by things that are unnecessary that he was trying to deal with the issue, and his response “Yeah, because no one likes to go to work and feel uncomfortable, myself or anyone. No one likes tension.”;
- his comment (T 5-60 line 45 to 5-61 line 5) that he chose to pull his car over, rather than ignore what had happened, “… because we knew each other.”;
- his comment (T 5-62 lines 27 to 33) that a reason he asked Mr Kiesouw “What’s your problem? Why did you do the middle finger to me …?” was because he thought they had moved on;
- his comment (T 5-63 lines 9 to 18) that rather than ignore Mr Kiesouw his frustrations got the better of him in that “… I just thought it was unnecessary from someone I knew. If it was some drunk in the street, you know, you would ignore it as well. I thought, yeah - but because we knew each other, and I thought we were on the one team, and, you know, we worked for the same company, we’re on the one project. That’s the only reason.”;
- his response (T 5-63 lines 30 to 32) to the question “When you say you’re on the same team, even though he didn’t report directly to you, you are the site supervisor and its McConnell Dowell and there’s been a history to this work relationship?” when he said “Well, it’s all team wherever you work. It doesn’t matter.”;
- his unintentional comment (T 5-84 line 5) that his intention in pulling up on the footpath was not to confront Mr Kiesouw but to ask “What is the problem, how can we move forward?” (the second phrase was withdrawn almost immediately by the further comment “That’s probably what I was thinking.”); and
- his decision to immediately inform his superiors about the incident, which indicates that he thought it was, at the least, relevant to the Project and his circumstances as a supervisor with previous “history” with Mr Kiesouw.
- Notwithstanding Mr McSkimming’s claim that he was acting as a private citizen at the time he confronted Mr Kiesouw after he gave him “the finger”, the Respondent’s support for that position in its submissions and the Respondent’s argument that in conducting their private argument off-site neither Mr Kiesouw nor Mr McSkimming were performing work duties or anything incidental to their work duties, it is readily apparent that Mr McSkimming was working in his capacity as the site supervisor at the time. This because he was performing on call duties - fixing the fences blown over by the storm - together with two other senior managers. Indeed, Mr McSkimming ultimately accepted that he was working at the time (T 5-62 lines 4 to 8).
- In the end result, I find that I am in total agreement with the written submissions of Mr Greggery which appear immediately after his references to Newberry v Suncorp Metway Insurance Ltd and Byrnes v Workers’ Compensation Regulator (see extracts at paragraphs  and  above) where he said:
 In respect of the events in 2012, Mr Kiesouw was engaged in the work he was employed to do or in something incidental to that work. The contribution to his injury from those events satisfies the requirement that the injury arises “in the course of” the employment.
 In respect of the events on 26 January 2013, Mr Kiesouw was not, independently of the conduct of Mr McSkimming, engaged in his work. It is important to note that s 32(1) of the Act deals with “the employment” and does not limit the factual situation to be decided to the conduct undertaken solely by the employee when the injury occurred. “The employment” contemplates all the exigencies of the employment relationship which includes the conduct of the employer. Two possible paths of construction arise. Firstly, it can be concluded that once Mr McSkimming engaged with Mr Kiesouw as his ultimate supervisor on the entrance to the worksite about a problematic work relationship that Mr Kiesouw became engaged in “something incidental to his work”. Such a conclusion would also satisfy the requirement that the injury arises “in the course of’” the employment by reason of the employer’s election to deal with a workplace issue outside of the employee’s normal hours but within the employer’s operational demands. Secondly, upon the same factual matrix it can be concluded that Mr McSkimming’s conduct caused the injury to arise “out of” the employment. The interaction has no other causative role.
 When the veneer of the fact that Mr Kiesouw was not engaged in normal work hours on 26 January 2013 is removed, it is readily apparent that the true context for the last event was the continuation and culmination of numerous distressing supervisor/employee interactions within the workplace. The respondent’s submissions seek to draw an artificial line in the nature of the employment interaction on 26 January 2013 and to render non-compensable the precipitating event at the employer’s election to engage in work related conduct with an employee outside of the employee’s work hours.
- Relying upon that reasoning, as well as the additional points made by Mr Greggery recorded in paragraph  above, I conclude that Mr Kiesouw’s psychiatric or psychological injury arose out of, or in the course of, his employment.
Was the employment a significant contributing factor to Mr Kiesouw’s injury?
- As would be apparent from my summary of the Respondent’s attack on the evidence of Mr Kiesouw as well my summary of its submissions, Mr O’Neill strongly argued that the Commission could not be satisfied, to the requisite standard, that Mr Kiesouw’s employment was a significant contributing factor to his injury. In doing so, he highlighted that it was up to the Appellant to demonstrate that this was the case.
- In Mr O’Neill’s submission:
… the significant contributing factors to Mr Kiesouw’s decompensation appear to be a combination of his pre-existing mental health issues, his personality traits which are either genetic or developmental and therefore not work-related, and his excessive alcohol consumption.
Akin to the situation in the case of Croning, the employment was merely the background to the confluence of factors causing a spontaneous flair in the Appellant’s underlying depressive order sometime in mid-2012.
- Without being exhaustive, arguments advanced to support the above contention included:
- the first three incidents referred to by Mr Kiesouw were relatively innocuous events that would not be regarded as meeting the requirement of constituting bullying or harassing behaviour;
- that Mr Kiesouw perceived them in that way was telling, revealing his true state of mental health as early as March 2012;
- Mr Kiesouw did not contemporaneously report to his doctors any affects these incidents might have had on him;
- given the significant gap between the first three events and the Appellant’s decompensation in January 2013, the Commission would not be satisfied that those three events have made a necessary contribution to the Appellant’s decompensation;
- the significant level of his alcohol consumption and the contribution that would have had in exacerbating his actual, or developing, depressive disorder during 2012 and early 2013:
- Mr Kiesouw’s personality traits, which Dr Likely confirmed exist on a spectrum which can vary in intensity from person to person;
- Dr Likely’s evidence that if someone is suffering from an underlying depressive disorder and develops a mental disorder, the underlying personality traits are exaggerated and become more prominent: and
- that cluster B personality traits (which Mr Kiesouw has) can impact the way a person perceives events occurring around them and, if those traits have been heightened, it would have a greater impact on the way that the person perceives events.
- However, and with respect, the submission does not appear to give complete recognition to the evidence of Dr Likely on the topic of causation, which included:
- his response to Question 3 (see paragraph  above) where he opined “… Mr Kiesouw’s psychological injuries were caused directly by work related stressors from March 2012, leading in the incident of 26 January 2013. I cannot find any other contributory factors.”;
- his response to Question 4 (see same paragraph) where he opined “… the previous Major Depressive Episode (severe in its nature, now resolved) and residual anxiety symptoms were solely caused by workplace stressors outlined above in the body of this report.”;
- his evidence (at T 5-10) that if Mr Kiesouw suffered “a re-occurrence of a pre-existing depressive disorder, which is a very reasonable thesis, it has occurred because of the work-related stressors outlined in my report.”;
- his evidence (at T 5-23) that, in his opinion, the three tension causing events “have” caused the recurrence of the depressive disorder, and that they were “contributory in the recrudescence of a major depressive episode”;
- his evidence (at T 5-26) that, in his opinion, the history of increased alcohol consumption around August 2012 was an epiphenomenon, in that Mr Kiesouw was using alcohol to self-medicate the evolving symptoms of depression. (Note: his evidence about causation is not affected by my finding that there was no evidence to support the history of increased alcohol consumption in August 2012);
- his evidence (at T 5-28) where he said the event of 26 January 2013 - irrespective of whether a finger was raised first by Mr Kiesouw or not - was the conclusion of an amalgam of events that had occurred and evolved over the preceding 12 months, with that event in combination with those pre-existing issues being enough to bring Mr Kiesouw to clinical attention;
- his evidence (at T 5-30) that Mr Kiesouw did not perceive the first three events to be innocuous. “In fact, they caused him significant subjective distress, and in my opinion, were the first events which led to the evolution of an extremely toxic relationship between himself and Mr McSkimming, which in my opinion caused the evolution of significant psychological injuries.”; and
- his acknowledgement (at T 5-30) that the objective description of the various events over the course of 2012 was less significant than Mr Kiesouw’s perception of them to the development of his condition.
- In is his reply submission, Mr Greggery said that the submission of the Respondent is answered by the legal principles that apply to workers in Mr Kiesouw’s position, as set out in such cases as Gilmour v Workers Compensation Regulator and Q-Comp v Foote (No 2) (see extracts at paragraphs  and  above).
- Having read each of those cases, as well as the decision of Hall P in Sheridan v Q-Comp and considered them in light of the Respondent’s submissions and the evidence in this matter, I find myself in complete agreement with the submissions of Mr Greggery on the point, which are set out in paragraph  above. In my view, his analysis of the applicable case law as it relates to the facts in this case is correct.
- As such, I determine that Mr Kiesouw’s employment was a significant contributing factor to his psychiatric or psychological injury.
- For the foregoing reasons, I have concluded:
- that Mr Kiesouw suffered a personal injury, being a psychiatric or psychological injury in the form of a major depressive disorder;
- that his personal injury arose out of, or in the course of, his employment; and
- that his employment was a significant contributing factor to his injury.
- I make the following orders:
- The Appeal is allowed.
- The decision of the Regulator dated 22 June 2016 is set aside.
- The Respondent is to pay the Appellant’s costs of and incidental to this Appeal to be agreed or failing agreement to be the subject of an application to the Commission.
 Kiesouw v Workers' Compensation Regulator  QIRC 064.
 Kiesouw v Workers' Compensation Regulator  ICQ 006.
 Eric Martin Rossmuller v Q-COMP  ICQ 004.
 Briginshaw v Briginshaw (1938) 60 CLR 336, 362.
 Newbury v Suncorp Metway Insurance Ltd  1 Qd R 519.
 Byrnes v Workers’ Compensation Regulator  ICQ 004.
 Kavanagh v The Commonwealth (1960) 103 CLR 547, 556 per Dixon J, 558 per Fullagar J.
 Avis v WorkCover Queensland (2000) 165 QGIG 788, 788 per Hall P.
 WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6, 7 per Hall P.
 Commonwealth of Australia v Lyon (1979) 24 ALR 300, 303-304.
 Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, 478 per Mason CJ, Deane, Dawson and McHugh JJ.
 Q-Comp v Green (2008) 189 QGIG 747, 751 per Hall P.
 Luxton v Q-Comp (2009) 190 QGIG 4, 6 per Hall P.
 Qantas Airways Limited v Q-Comp and Blanche (2009) 191 QGIG 115, 119 per Hall P.
 Graham Douglas Sergeant v Q-Comp  ICQ 051.
 Newberry v Suncorp Metway Insurance Limited  1 Qd R 519.
 Croning v Workers’ Compensation Board of Queensland (1997) 156 QGIG 100.
 Q-Comp v Foote (No 2)  ICQ 42.
 Q-Comp v Foote (No. 2)  ICQ 042.
 Ramsay v Watson (1961) 108 CLR 642, 645 per Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ.
 Chattin v WorkCover Queensland  ICQ 044; 161 QGIG 531, 532-533 per Williams P.
 Holtman v Sampson  2 Qd R 472, 474 per DM Campbell, Macrossan and Thomas JJ.
 Sheridan v Q-Comp (2009) 191 QGIG 13.
- Published Case Name:
Daniel Franciscus Kiesouw v Workers' Compensation Regulator (No 2)
- Shortened Case Name:
Kiesouw v Workers' Compensation Regulator (No 2)
 QIRC 172
14 Nov 2019