Newman v Workers' Compensation Regulator
[2015] ICQ 14
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- Unreported Judgment
- Newman v Workers' Compensation Regulator[2015] ICQ 14
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Newman v Workers' Compensation Regulator[2015] ICQ 14
Newman v Workers' Compensation Regulator[2015] ICQ 14
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Newman v Blackwood [2015] ICQ 014 |
PARTIES: | KAREN NEWMAN (appellant) (respondent) |
CASE NO/S: | C/2014/56 |
PROCEEDING: | Appeal |
DELIVERED ON: | 20 April 2015 |
HEARING DATE: | 20 April 2015 |
MEMBER: | Martin J, President |
ORDER/S: | Appeal dismissed. |
CATCHWORDS: | WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE – EMPLOYMENT SUBSTANTIAL OR SIGNIFICANT CONTRIBUTING FACTOR – TO INJURY – where the appellant and another employee argued as to who should be responsible for the posting of mail at the end of each day – where the appellant suffered from a psychological injury – where the Commissioner did not accept the appellant’s version of events – where the medical evidence was based on the appellant recounting the incident – whether the Commissioner erred in finding that the appellant’s version of events was exaggerated – whether the Commissioner erred in concluding that the appellant’s employment was not a significant contributing factor to her injury Workers’ Compensation and Rehabilitation Act 2003, s 32(5) |
CASES: | Fox v Percy (2003) 214 CLR 118 |
APPEARANCES: | OK Perkiss on behalf of the appellant instructed by Everingham Lawyers C Clark counsel on behalf of the respondent instructed by Workers’ Compensation Regulator |
- [1]This is an appeal against an order confirming a decision by the Regulator to reject the appellant’s claim for compensation. In the appeal, the appellant seeks to overturn findings of facts. In particular, the appellant seeks, in effect, that the finding made by the Commissioner be replaced by a finding that, as a consequence of certain events, the appellant suffered a compensable injury.
- [2]In order to provide the principal background to this, I need to refer to the principles in the decision of the High Court in Fox v Percy[1]. In the joint judgment of Gleeson CJ, Gummow and Kirby JJ the following is said:
[20] Appeal is not, as such, a common law procedure. It is a creature of statute. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd, Mason J distinguished between (i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo. There are different meanings to be attached to the word “rehearing”. The distinction between an appeal by way of rehearing and a hearing de novo was further considered in Allesch v Maunz. Which of the meanings is that borne by the term “appeal”, or whether there is some other meaning, is, in the absence of an express statement in the particular provision, a matter of statutory construction in each case.
[21] In New South Wales a right of appeal from a judgment of the District Court lies to the Supreme Court pursuant to the District Court Act1973 (NSW) s 127(1). In the present case such appeal lay as of right. Within the Supreme Court such an appeal is assigned to the Court of Appeal. The character and features of the appeal are governed by the Supreme Court Act 1970 (NSW). Section 75A of that Act provides, relevantly:
- ‘(5)Where the decision or other matter under appeal has been given after a hearing, the appeal shall be by way of rehearing.
- The Court shall have the powers and duties of the court … from whom the appeal is brought, including powers and duties concerning:
- (a)…
- (b)the drawing of inferences and the making of findings of fact, and
- (c)the assessment of damages and other money sums.
- The Court may receive further evidence.
- Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds.
- …
- The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires.’
[22] The nature of the “rehearing” provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the subsections quoted. The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits.
[23] The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
[24]Nevertheless, mistakes, including serious mistakes, can occur at trial in the comprehension, recollection and evaluation of evidence. In part, it was to prevent and cure the miscarriages of justice that can arise from such mistakes that, in the nineteenth century, the general facility of appeal was introduced in England, and later in its colonies. Some time after this development came the gradual reduction in the number, and even the elimination, of civil trials by jury and the increase in trials by judge alone at the end of which the judge, who is subject to appeal, is obliged to give reasons for the decision. Such reasons are, at once, necessitated by the right of appeal and enhance its utility. Care must be exercised in applying to appellate review of the reasoned decisions of judges, sitting without juries, all of the judicial remarks made concerning the proper approach of appellate courts to appeals against judgments giving effect to jury verdicts. A jury gives no reasons and this necessitates assumptions that are not appropriate to, and need modification for, appellate review of a judge's detailed reasons.
[25] Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this court reiterated the rule that:
‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.’
As this court there said, that approach was “not only sound in law, but beneficial in … operation”.
[26]After Warren v Coombes, a series of cases was decided in which this court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.” (citations omitted)
- [3]The primary work for the Commissioner in this case was to decide what occurred on the 24th of April 2012 in the workplace of the appellant. There had before that date been a dispute between the appellant and a Ms Ricketts. The dispute was about a number of matters, but included an argument between them as to who should be responsible for the posting of mail at the end of each day. The Commissioner summarised the issue in this way:
“[13] Ms Newman's evidence in relation to the injury was that on the morning of 24 April 2012 she arrived at work to discover Ms Ricketts had placed the mail from the previous day on her desk. In response, Ms Newman placed the mail back on Ms Ricketts' desk for her to post and went about her ordinary duties.
[14] On returning to the front office some time later Ms Newman noticed the mail had been placed back onto her desk. When she requested Ms Ricketts not leave the mail on her desk anymore, Ms Ricketts advised her she was not going to post the mail anymore.
[15] Ms Newman said that she then suggested to Ms Ricketts she speak to Tydon Hadwen about the issue to which Ms Ricketts responded that "she had talked to effing Tydon and she was not doing it anymore..." (D1, P17).
[16] Ms Newman's evidence is their interaction escalated from this point noting:
‘…and then she started carrying on and I said, well, Michelle, I catch the train, there is no mailboxes along the train route. You drive which means you probably pass a lot of mailboxes and then she started carrying on about how when she lived on the south side, train fares and she hadn't lived on the south side for over 18 months, so I didn't really see what relevance this had...and when I said I don't understand, she just went right off and she basically lunged forward towards me and said, are you calling me an effing liar, are you calling me an effing liar, and I was terrified, absolutely terrified, and felt threatened, and I was back into the corner, I couldn't do anything and I jumped up to her and just said, that's it, I resign. And she was so shocked, the look on her face and she just backed off and got up and walked into the office. And I just didn't know what to do, I just sat there shaking and oh, I was so upset. I just never expected to feel attacked in my workplace, like it was a safe place as far as I knew. Yeah.
Ms Newman, during that incident, did you raise your voice? --- I don't know.
Did Ms Ricketts raise her voice? --- Yes.’ (D1, P17).”
- [4]That was the extent of the incident which on the appellant’s case gave rise to the injury. The appellant relied upon the report of Dr Chau to establish the necessary causal link between the events of the 24th of April and the injury which he claimed to have occurred. Dr Chau, not unnaturally, had to rely on the appellant recounting the incident in order to form an opinion. The basis of any expert report must be established before the opinion is relevant. In this case, the Commissioner did not accept the appellant’s version of events. At paragraphs 73 and 74 of her reasons, the Commissioner correctly set out the test to be applied:
“[73] In this appeal, Ms Newman is required to prove on the balance of probabilities that her psychological injury arose out of, or in the course of her employment as a bookkeeper/receptionist at Hadwens. This denotes a causal or consequential relationship between the employment and the injury but it does not require a proximate relationship (see Lackey v Workcover Queensland).
[74] More specifically, in this matter, the Commission is also required to consider the question of whether the distress associated with the psychological injury Ms Newman says she was suffering when she made her application for compensation in June 2012 is causally related to the workplace incident which occurred on 24 April 2012. And, if so, was the 24 April 2012 incident a significant contributing factor to the psychological injury.” (citations omitted)
- [5]In arriving at her conclusion, the Commissioner set out the matters which had influenced her in arriving at her decision. At paragraphs 80 to 87, the Commissioner sets out the evidence upon which she relied. In particular, she accepted the evidence from Ms Ricketts about an important part of the event, that is, that Ms Ricketts moved away from the appellant and did not stand over her. Further, the Commissioner formed the view based on the evidence of Mr Iland that the appellant was frustrated or annoyed, rather than distressed, by what had occurred. The Commissioner dealt with Dr Chau’s evidence in paragraphs 104 to 108. She expressed her inability to accept that evidence in these terms:
“[106] The difficulty I have with this opinion is the evidence before the Commission does not support Ms Newman’s account to Dr Chau of how her interaction with Ms Ricketts unfolded on the morning of 24 April 2012, particularly in relation to the alleged intensity of Ms Ricketts’ intimidation of Ms Newman.”
- [6]The Commissioner concluded this part of her reasons with this finding in paragraph 108. She said:
“[108] There is no doubt both ladies were involved in an argument, but the evidence supports a finding that Ms Newman’s account to Dr Chau of Ms Ricketts’ conduct during the argument is inaccurate and exaggerated.”
- [7]The findings of the Commissioner were open to her to make on the evidence. This is a case in which the perception of the Tribunal hearing the evidence is quite important. There is no objective evidence which would have led the Commissioner to a different view. As was set out in Fox v Percy, an appellate Court must remember that the Tribunal hearing the evidence has an advantage, particularly where a decision is affected by the Tribunal’s impression of the credibility of the witnesses. This is such a case. The findings of the Commission were supported by the evidence. That means that the evidence of Dr Chau was of little value because it was based on a scenario which the Commissioner found did not happen.
- [8]The Commissioner also considered the application of s 32(5) of the Workers Compensation and Rehabilitation Act 2003. That was not strictly necessary, but appears to have been done out of an abundance of caution and it is unnecessary to consider it now.
- [9]The appellant has not demonstrated any error either factual or legal. The appeal is dismissed.
Footnotes
[1] (2003) 214 CLR 118.