Robinson v Workers' Compensation Regulator
[2016] ICQ 16
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- Robinson v Workers' Compensation Regulator[2016] ICQ 16
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Robinson v Workers' Compensation Regulator[2016] ICQ 16
Robinson v Workers' Compensation Regulator[2016] ICQ 16
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Robinson v Workers’ Compensation Regulator [2016] ICQ 016 |
PARTIES: | SAUL JOHN ROBINSON (appellant) v WORKERS’ COMPENSATION REGULATOR (respondent) |
FILE NO/S: | C/2016/4 |
PROCEEDING: | Appeal |
DELIVERED ON: | 7 September 2016 |
HEARING DATE: | 8 August 2016 |
MEMBER: | Martin J, President |
ORDER/S: | Appeal dismissed. |
CATCHWORDS: | WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – GENERALLY – where the appellant, a train driver, sought workers’ compensation for a psychiatric or psychological injury said to be brought about by the conduct of his fellow workers – where that conduct was said to include co-workers calling him by certain nicknames and making imputations about his sexuality – where the Regulator rejected the appellant’s claim for compensation – where the Deputy President confirmed that decision and rejected the appellant’s appeal against it – where the Deputy President found that the events did not occur as described by the appellant – whether the Deputy President misunderstood certain evidence – whether the Deputy President of the Commission ‘misused her advantage’ – whether the Deputy President failed to give adequate reasons to explain its decision – whether the Deputy President’s findings were glaringly improbable Workers’ Compensation and Rehabilitation Act 2003, s 32(1) |
CASES: | Abalos v Australian Postal Commission (1990) 171 CLR 167, cited |
APPEARANCES: | P W Moore for the appellant instructed by Eureka Legal S A McLeod for the respondent instructed by the Workers’ Compensation Regulator |
- [1]Saul Robinson was, for 21 years, a train driver employed by Aurizon. He sought workers’ compensation for a psychiatric or psychological injury brought about, he claimed, by the conduct of fellow workers.
- [2]The issues at the hearing before the Commission were:
- (a)whether the events said to have caused his injury occurred, and
- (b)the nature of his injury.
- (a)
- [3]The Deputy President determined that the relevant events, as described by Mr Robinson, did not occur. Further, her Honour also held that if the events had occurred as described they did not give rise to a compensable injury.
- [4]Mr Robinson identified 10 stressors as the events which led to his injury. At the hearing, he identified 27 October 2011 as the date of decompensation for the purposes of identifying his claim, abandoned two of the stressors, and amended another. The final list of stressors was identified by the Deputy President in her reasons:
No | Date | Event |
Various dates commencing in or about June 2011 | In the presence of, and hearing of, the appellant and various of his co-workers, Mr Giddy called the appellant “cocksucker”, “homo” and “knob jockey” and made imputations about his sexuality. | |
Various dates from June 2011 to February 2013 | Various of the appellant’s co-workers took to using the nicknames created by Mr Giddy and also started using the terms in reference to the appellant. | |
One day in late August 2011 | On a handover at Hail Creek from the appellant and Mr Chris Fulton to relief crew of Mr White and Mr Giddy, Mr Giddy yelled “Hey Knob jockey” to the appellant and grabbed his lunchbox and walked off. | |
One day in late August or early September 2011 | In the smoko room in the presence of co-worker Mr Steve Grendon, Mr Giddy called the appellant names including “cocksucker” and repeated that when challenged by the appellant as to the Code of Conduct, “whatever cocksucker”. | |
One day in late August or early September 2011 | In the Jillalan Control Room, in the presence of Mr Tony Yard, on learning that the appellant wished to speak with Mr Yard, Mr Moule responded, “Why? Can you taste something on Yardy’s cock?” Mr Moule repeated the insult when the appellant asked him what he had said. | |
One day in September 2011 | At Coppabella the appellant was spoken to by a co-worker (who the appellant does not know) who said, “Hey cocksucker! I hear that’s your new name down at Jillalan”. | |
One day in mid September 2011 | The appellant and Mr Fulton were called to a meeting with four more senior staff in the office at Coppabella. One of whom, Mr Neville Murchie, to the amusement of the senior staff, touched on the issue of rumours about the appellant and then asked after his neck (the site of surgery to the appellant). The other senior staff present were in hysterical laughter at this point. | |
Various dates from about June 2011 until 27 October 2011 | The employer failed to take action to cease the appellant being continually exposed to name calling and other offensive behaviours whilst the appellant performed his duties at work. |
- [5]At the relevant time, s 32(1) of the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”) defined an injury in this way:
“An injury is a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.”
- [6]The notice of appeal contains 20 grounds – many of which assert errors in accepting certain evidence or failures to provide reasons with respect to particular stressors. I will deal with them individually.
Ground 1
“The Deputy President misunderstood the evidence in a material way in assessing:
- (a)that the medical opinion in evidence differed as to ‘whether events at Mr Robinson’s workplace actually did occur as recorded by him’; and
- (b)that Dr Caniato opined that the events described in the Statement of Stressors were delusional/hallucinatory moments;
because neither Dr Larder nor Dr Caniato purported to extend their opinions to what actually happened in the workplace.”
- [7]The appellant refers to comments by the Deputy President at [8] and [95].[1] At [8], her Honour said:
“…the medical opinions differ as to a specific diagnosis and whether events at Mr Robinson’s workplace actually did occur as reported by him.”
- [8]At [95], the Deputy President says:
“The Regulator relies upon Dr Caniato’s opinion that the appellant believed that the various events had occurred but that this was because of his underlying condition of delusional/hallucinatory moments and that he suffered from schizophrenia.”
- [9]The appellant contends that there was no expert evidence of this nature. There was. This appeal ground misunderstands both the evidence given and the reasons of the Deputy President. In [8], her Honour recites that there was a difference of opinion about whether events at the workplace actually did occur and in [95] refers to the submission from the Regulator. Dr Caniato did, in his medical report[2] and supplementary report[3] refer to his views of the reliability of the account given by Mr Robinson. In his medical report, he says:[4]
“Possibly the worker genuinely believes the version of events that he has outlined to me and it is likely however that psychiatric factors are influencing his reporting and it is unlikely that his version of events reflects an objective reporting of what occurred.”
- [10]This opinion was amplified in Dr Caniato’s supplementary report where he refers to some specific instances such as the statement alleged in stressor 5 and says:[5]
“These are reasonably unusual statements and seem to indicate delusional experiences or hallucinatory occurrences.”
- [11]The opinion given by Dr Caniato was with respect to the reliability of the account given to him by Mr Robinson. The determination made by the Deputy President that the events, for the most part, outlined in the list of stressors did not occur, was reached upon consideration of the evidence given before her. The opinion of Dr Caniato did not form the basis of the Deputy President’s findings in this respect.
Ground 2
“The Deputy President misused her advantage in preferring Dr Caniato’s evidence over that of Dr Larder, and by giving it the weight she did, where Dr Caniato accepted a lack of contemporaneous material provided to him limited the accuracy of his opinions on both causation and diagnosis (which limitations did not apply to Dr Larder’s evidence).”
- [12]It is asserted that the Deputy President “misused her advantage” in preferring Dr Caniato’s evidence. The term “misused her advantage” has not been used in its appropriate sense. The correct meaning was described by McHugh J in Abalos v Australian Postal Commission:[6]
“[28] In SS Hontestroom v SS Sagaporack [1927] AC 37, Lord Sumner pointed out, at 47, that:
“not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should, as I understand the decisions, be let alone.”
[29] Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied “that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion”: Watt or Thomas v Thomas [1947] AC 484 at 488.” (emphasis added)
- [13]It may be observed that the Deputy President was not making a finding of fact when preferring Dr Caniato’s opinion and, in any case, she did refer to the evidence of Dr Larder.
- [14]The basis for the appellant’s assertion in this ground of appeal which is repeated in other grounds, is that Dr Caniato had not seen the notes from the Ambrose Medical Centre and the 300 pages of documents from Mackay Base Hospital concerning the treatment of Mr Robinson. This and the associated arguments of the appellant overlook an important part of Dr Caniato’s evidence, namely that he could find “no obvious plausible relationship between the work related issues as alleged by Mr Robinson as [sic] current psychiatric symptoms.” In other words, his opinion was that whether these events occurred or not they did not lead to the development of his symptoms.
- [15]It must be acknowledged that Dr Caniato, in cross-examination, did accept that the accuracy of his report could be limited because he had not had an opportunity to consider all the documentation. This was in contrast to Dr Larder who had had that opportunity. Two things may be said about this argument. The first is that Dr Caniato was not taken to any part of the documentation during his cross-examination and asked whether it affected his opinion. It is not open to criticise an expert opinion of this nature on the basis that certain material has not been taken into account when the expert has not been given an opportunity to consider whether that extra information would have affected the opinion. The second matter is that the Deputy President, quite properly, noted that Dr Larder’s report was based, to a relevant extent, on a misunderstanding about the appellant’s date of decompensation. As a result, Dr Larder took into account events which were said to have occurred after that date and which led up to a second breakdown experienced by the appellant in 2012. The difference between the two experts was that Dr Larder was of the view that if it was found to be factual that he was called the names referred to in the list of stressors in the months leading up to October 2011, then that would be sufficient to trigger the illness. Dr Caniato disagreed with that. The Deputy President found that some of the history given to Dr Larder by Mr Robinson was incorrect and that his opinion was affected by that. The Deputy President clearly explained why she preferred Dr Caniato’s opinion over that of Dr Larder in her discussion of Dr Larder’s evidence.
Ground 3
“The Deputy President misunderstood the evidence in finding that the medical opinion evidence of Dr Larder was contingent upon Mr Robinson’s history of work related events being accepted, because it was not.”
- [16]The appellant relies upon the same arguments advanced for ground 2 to support this ground. This argument is difficult to understand as advanced by the appellant. As I have noted above, Dr Larder conditioned his report on the premise that if Mr Robinson’s account was found to be factual, then that was sufficient to trigger the illness. That was exactly what Dr Larder did say in giving his opinion. The opinion evidence of Dr Larder could, as a matter of principle, only be useful if it was accepted that the factual basis for it was correct. The Deputy President did not accept the factual basis. It follows that Dr Larder’s opinion could not be relied upon.
Ground 4
“The Deputy President acted on a wrong principle by failing to determine, independently of the expert evidence, whether any or all of the stressors listed occurred, or alternatively failed to properly explain such determination.”
- [17]Under the heading “Did the events as alleged by Mr Robinson at his work place occur?”, the Deputy President commences her analysis of the evidence and of the stressors. In part of her reasons, the Deputy President says:
“[102] Considering these medical opinions with the facts of this case, it is found, for the following reasons, that Mr Robinson’s history of work related events is not accepted. From the evidence, it appears that Mr Robinson may have been in the vicinity of persons who used language of the general type referred to in this decision. But what is not found, on the evidence, is that any of those words were directed at Mr Robinson.
[103] I have accepted medical evidence to the extent that Mr Robinson believed that the events he nominated as stressors actually occurred, but the facts of the case do not make that proposition a reality.”
- [18]The Deputy President did not rely upon the expert evidence to support her findings with respect to whether or not the assertions contained within the stressors were supported on the evidence. Rather, she found that the words were not directed at Mr Robinson but that, on the medical evidence, Mr Robinson believed that the stressors actually occurred.
- [19]The Deputy President considered each stressor and dealt with them in accordance with the evidence as she had accepted it. For example, with respect to stressor 1, she said:
“[104] … I have not, however, found that those words were directly aimed at Mr Robinson.”
- [20]This ground of appeal is misconceived.
Ground 5
“The Deputy President erred by giving nil or insufficient weight to the evidence of Dr Caniato that:
- (a)even if the appellant were psychotic and paranoid, an aggravation as a result of simple name calling could be claimed;
- (b)the appellant may have suffered an onset of depression from work stressors that co-existed with a psychotic disorder;
or alternatively failed to properly explain the use she made of such evidence.”
- [21]The appellant refers to evidence given by Dr Caniato where he said:
“What I would say would be a reasonable assumption is I doubt anyone would believe that a primary psychotic illness could be caused by work stress; however, it would be completely plausible to claim that a primary illness was aggravated by work stress. … in terms of primary psychosis there’s no way name calling or – you know, simple name-calling or derogatory statements would be considered to be able to cause a psychotic illness.
Okay?--- However, it someone is already psychotic and paranoid, certainly one could argue that then name calling and certain types of behaviour might make a person feel more ostracized and more sort of – and more outcast in a workplace and maybe could aggravate it. I think that an aggravation could be claimed. A causation I don’t think could be claimed.”[7]
- [22]As is accurately submitted by the respondent, this argument by the appellant overlooks the basic fact that the Deputy President did not accept that the events which were nominated as stressors had actually occurred. It follows then that there was no basis to consider whether there was an aggravation of a psychological or psychiatric disorder.
Ground 6
“The Deputy President misused her advantage by not making the general credit and/or reliability inference that inevitably followed from her acceptance of Mr Ellul’s evidence of a conversation with Mr Giddy (which Mr Giddy denied) or alternatively did not explain why she reasoned it did not follow.”
- [23]This ground appears to be based on the mistaken premise that a decision maker, who does not accept the evidence of a witness on one item cannot then accept the witness on another item. The term “misused her advantage” is misused in these circumstances but, perhaps, it means “erred”. In any event, this is a very peripheral issue as it concerns a conversation between two persons to which Mr Robinson was not a party.
Ground 7
“The Deputy President’s finding that the events contained in the Statement of Stressors did not occur was contrary to the preponderance of the evidence and not reasonably open where:
- (a)Mr Giddy’s version of how often the appellant and he saw each other (on which she relied) was never put to the appellant;
- (b)there was no medical opinion that the events in the Statement of Stressors were delusions;
- (c)it was never put to the appellant that any of these events were delusions, and neither was it put to Dr Larder for his comment;
- (d)the evidence of Mr Ellul (whom she accepted over Mr Giddy) corroborated the appellant’s evidence as to the stressors occurring; or
- (e)on all the evidence the finding that the events had not occurred was glaringly improbable.”
- [24]This is said to relate to a finding made in paragraph [102] of the Deputy President’s reasons. It is based upon a misunderstanding of the finding. The Deputy President did not find that the events did not occur, rather she found that language of the type alleged may have been used when Mr Robinson was in the vicinity but that the words were not directed at him. As with many of the grounds of appeal raised by the appellant, this ground seeks to isolate one paragraph from the rest of the reasons of the Deputy President and, in the absence of that context, seek to find fault. A decision cannot be read in that way. The decision consists of some 134 paragraphs. In order to understand the Deputy President’s reasoning, it is necessary, as with all decisions, to read the entire decision and to read each part of it in context.
- [25]Another matter which demonstrates that there is no basis to this ground is the objection that it was not put to the appellant that any of these events were delusions. He was cross-examined on the basis that he was mistaken as to the nature and form of the comments but it would have been objectionable to put to the appellant a conclusion, such as that the events were delusions, when such a question would call for expert opinion.
- [26]It is argued by the appellant that the evidence of Mr Ellul corroborated the appellant’s evidence. This evidence is identified by the appellant as including that the appellant seemed “anxious and upset” to Mr Ellul and that he had not ever previously appeared sensitive about such things. The subjective judgment of Mr Ellul as to the appellant’s state of mind is not corroboration.
Ground 8
“The Deputy President’s findings were glaringly improbable in light of the following evidence with which they were inconsistent, which inconsistency the Deputy President did not explain:
- (a)the prior consistent statements from the appellant to several unnamed persons in the workplace, to the effect that he was being upset by Mr Giddy calling him names;
- (b)the prior consistent statements from the appellant to Mr Davidson of management;
- (c)the prior consistent statement from the appellant to Mr Ellul of management;
- (d)the prior consistent statement from the appellant to Mr Giddy himself.”
- [27]The notion that a prior consistent statement by a party can be evidence of the content of that statement is surprising. The submission that such statements made to “several unnamed persons” can be evidence of anything is even more surprising. Prior consistent statements are relevant in very few circumstances. The most common occurrence when they are relevant is to rebut an accusation of recent invention. But, even then, they are only evidence that the witness has made a similar claim on an earlier occasion. They are not evidence of the contents of the statement. This ground is misconceived.
Ground 9
“The Deputy President provided inadequate reasons as to why she preferred Mr Giddy over the appellant, and also why she rejected the appellant’s evidence generally as to events in the workplace.”
- [28]This ground is one of a number in which it is asserted that the Deputy President did not provide adequate reasons for her findings. It is correct that one cannot find in one place in the reasons a concise explanation for why particular evidence was accepted over evidence from another person. But, this was a case in which the Deputy President was confronted with a contest of recollection among a number of witnesses. In particular, it was a contest with respect to whether particular words were used and were used towards the appellant. This was not a case in which a decision on credit could be made by reference to independent contemporaneous documents. This is a case in which it is necessary, as has been observed above, to examine the reasons as a whole. There were matters which can be seen to afford support for findings made by the Deputy President as to who should and should not be believed. For example, in [106] Mr Giddy’s admission that he used foul language to Mr Robinson is noted even though Mr Robinson did not recall that comment being made. This and other matters were able to be taken into account by the Deputy President in forming an overall view as to what was most likely to have occurred. Another example in which it can be seen that the Deputy President provided reasons for preferring one witness over Mr Robinson is in [32] where she dealt with the issue of rosters and what was most likely to have occurred. Where there is a contest between one witness and another then, in the absence of independent oral evidence or contemporaneous written evidence, a member of the Commission is required to make a decision on the impression gained of the witness in the light of all the evidence. This is what can be seen to have been done by the Deputy President.
Ground 10
“The Deputy President’s findings as to the hospital records from 27 October 2011 misunderstood the records and in particular did not consider records that specifically referenced work stress complaints from the appellant.”
- [29]So far as I can understand the argument on this point, the appellant submits that the failure by the Deputy President to refer to a notation in the hospital records that read “driver stress++” in some way demonstrates an appellable error. The note was made on the date of decompensation but in the absence of calling the person who made the note to explain why that note was made, its relevance remains unknown. As with so many of these grounds of appeal, this is another example of the appellant claiming that something is an error but then not demonstrating how the error affected the decision.
Ground 11
“As to stressors 1 and 6, the Deputy President:-
- (a)did not give adequate reasons for her decision;
- (b)gave excessive weight to the following matters which did not support her decision but in fact militated against it (or alternatively did not explain how they supported her decision);
- (i)her finding that Mr Giddy had not ‘directly aimed’ the offensive words he uttered at the appellant;
- (ii)Mr Giddy’s evidence that comments such as ‘Whose cock have you been sucking to get the local?’ were not uncommon in this workplace;
- (iii)Mr Giddy’s evidence that after he was told by others that the appellant was complaining to others about the words Giddy was using, that he at that point refrained from using the words.”
- [30]The appellant did not make any submissions with respect to ground 11(a) but did not abandon itWith respect to ground 11(b), the appellant does not explain how the findings referred to or the evidence given did not support the decision “but in fact militated against it”. The case for the appellant was that the language that had been used was used against him and that, as a result, he decompensated. (In the Appellant’s reply, it is said that it is not to the point whether the language was directed at Robinson; the question is whether it was a significant contributing factor to his injury. But that is inconsistent with the stressors nominated as contributing to his injury.) These findings and the evidence set out in this ground support a conclusion that the appellant’s version of events should not be accepted. No error has been demonstrated.
Ground 12
“The Deputy President erred in finding that the question, ‘Whose cock have you been sucking to get the local?’ had not been nominated as a stressor given that the comment was an imputation about Mr Robinson’s sexuality, and fell within stressor 1.”
- [31]The appellant seeks to include the statement made by Mr Giddy as an element of stressor 1 on the basis that it was “an imputation about the appellant’s sexuality”. It may be accepted that such a statement carries such an imputation. But, it was not part of the appellant’s case that it had caused him to decompensate. It is not contended by the appellant that the finding by the Deputy President that Mr Robinson did not recall that comment being made was in error. The appellant does not explain how a comment which he does not remember being made could contribute to his psychiatric state. Once again, no error has been disclosed.
Ground 13
“The Deputy President erred in her finding that the evidence of Mr Henry Enge did not relate to any nominated stressors:
- (a)as the assertion from Mr Giddy in the crib room that Mr Enge and the appellant had been engaging in homosexual activity was an imputation about the appellant’s sexuality made to a co-worker, within stressor 1; and
- (b)the fact that Mr Enge’s evidence as to his conversation with Giddy was denied by Giddy, was a crucial credit issue relevant to all stressors.”
- [32]The basis for the appellant’s assertion that this was an error is that the evidence of the words used by Mr Giddy came within the description in stressor 1 of an imputation about the appellant’s sexuality. In a case which depends entirely on the language used and the circumstances in which it was used, it is incumbent upon the appellant to set out in the Statement of Stressors all the relevant words or terms upon which he seeks to rely. It is inconsistent with the proceedings and the way in which they were conducted for the appellant to grasp at statements upon which he has not relied to demonstrate an error by the Deputy President.
- [33]Appeals before the Commission in these matters are conducted on the basis of the Statement of Stressors. The regulator is entitled is entitled to rely upon that statement as setting out all that the worker asserts was responsible for his or her injury.
- [34]In any event, the best that could be said for this is that the appellant became aware of this alleged remark when told of it by Mr Enge. The remark does not come within the description of the event in stressor 1, namely that it was something said by Mr Giddy in the presence of and in the hearing of the appellant. As such, it cannot come within the terms of stressor 1.
Ground 14
“The Deputy President acted on a wrong principle in not considering stressors 2 and 6 because of ‘lack of specificity’ where particulars were never sought and the particulars became apparent during the hearing.”
- [35]Stressors 2 and 6 were rejected by the Deputy President on the basis that they lacked specificity. Stressor 2 alleges that over a 20 month period unidentified co‑workers took to using the nicknames created by Mr Giddy in reference to the appellant. The co‑workers were not identified. The evidence relied upon by the appellant was that “other people” called him such words. No co-workers were identified by him or evidence led that the persons who used the words were, in fact, co-workers.
- [36]With respect to stressor 6, the evidence of this was confined to the appellant saying that a man he did not know and had not met before came up to him at Coppabella and used those terms. Once again, there was no evidence that this person was a co‑worker or someone for whom the employer would be otherwise responsible.
- [37]The Deputy President was correct in rejecting these stressors.
Ground 15
“The Deputy President misunderstood and confused the evidence in a material way as it related to stressors 5 and 7.”
- [38]The Deputy President erred in describing the alleged perpetrator of stressor 7 as Mr Moule. It was the appellant’s case that it was Mr Murchie who was responsible. The balance of the Deputy President’s reasons clearly show that she was aware that the allegations concerned Mr Murchie. The reference to Mr Moule is nothing more than an inadvertent error. In any event, the argument advanced by the appellant is that the Deputy President “convoluted the evidence” on these two stressors and that she failed to accurately comprehend the facts of those stressors. No argument is advanced to support those statements.
Ground 16
“As to stressor 5, the Deputy President provided insufficient reasons for preferring the evidence of Mr Moule over that of Mr Yard and the appellant, or alternatively gave excessive weight to extraneous evidence.”
- [39]This ground was abandoned.
Ground 17
“As to stressor 7, the Deputy President:-
- (a)did not provide sufficient reasons for her decision;
- (b)misused her advantage by not giving sufficient weight to unchallenged evidence;
- (i)that a comment about the neck operation in fact was made by Mr Murchie; and
- (ii)that the comment was the catalyst for the appellant attending his general practitioner.”
- [40]This is again an assertion that insufficient reasons were given with respect to stressor 7 and that the Deputy President “misused her advantage”. The argument by the appellant is that insufficient weight was given to particular evidence. The evidence which Mr Robinson gave was that he was part of a conversation in which people were laughing. He could not recall anything being said to him that was of a nature similar to the assertions in the other stressors. He agreed that Mr Murchie did not outline what the alleged rumour was about and he accepted that he jumped to a conclusion because he was paranoid that it was something about his sexuality.[8] Other evidence was given by Dr Caniato about the interview he had with Mr Robinson in which this episode was considered and that it may well have been a delusion on the part of the appellant as to what had occurred during an operation he had had on his neck.
- [41]The appellant argues that insufficient weight was given to unchallenged evidence as outlined in this ground but does not seek to demonstrate this by argument. The Deputy President held that there was insufficient evidence about the stressor to consider that the reference to his neck operation was something more than it appeared to be. The appellant argues that the relevant question, which should have been considered, was whether what Mr Murchie and his friends did was to tease Mr Robinson and whether that was an event that resulted in an aggravation of a psychiatric or psychological condition or caused such a condition. But, the appellant in his own submission says that the stressor did not result in the ultimate decompensation. In other words, it was not relevant. Thus, whether it occurred as the appellant thought it occurred it was not relevant and was not a stressor.
Ground 18
“As to stressor 8, the Deputy President’s finding that the responses by two separate members of management were reasonable:-
- (a)was contradicted by facts incontrovertibly established;
- (b)was contrary to compelling inference;
- (c)was not reasonably open on the evidence;
- (d)took into account irrelevant and extraneous evidence; or
- (e)was a finding for which the Deputy President gave no adequate reasons.”
- [42]In the light of the findings made by the Deputy President with respect to the stressors, it is unnecessary to consider this ground. The appellant has not demonstrated any error with respect to the findings and conclusions made with respect to whether or not s 32(1) of the Act was satisfied.
Ground 19
“The Deputy President erred in rejecting Dr Larder’s opinion generally because her finding that the appellant was not called names between June and 28 October 2011 was contradicted by facts incontrovertibly established, or was glaringly improbable.”
- [43]The relevance of this ground is not made clear in the submissions of the appellant. In any event, it appears to be premised on a basis which has been rejected, namely that the appellant was called names between June and October 2011.
Ground 20
“The Deputy President’s decision overall was glaringly improbable and contrary to compelling causative inferences that existed from the following unchallenged evidence, which the Deputy President failed to take into account (or alternatively failed to explain):-
- (a)the appellant had told management that homosexual taunts from Giddy were causing him such psychological symptomology, that he was considering seeing a psychiatrist;
- (b)less than two days prior to the date of decompensation Mr Enge told the appellant (who had been expressing concern about the possibility) that Giddy had indeed been suggesting to other persons that the appellant was a homosexual;
- (c)the words repeatedly uttered by the appellant at the time of decompensation, were ‘fucking Giddy’ and ‘fucking Moule’.”
- [44]This ground is almost incomprehensible. It is nothing more than a complaint about the findings which were made and it ignores the evidence which was contrary to the appellant’s case – evidence which the Deputy President was entitled to accept. As to (a), the reference to the appellant having told management about homosexual taunts is a prior consistent statement and, thus, not relevant. As to (b), that has been dealt with above. As to (c), the argument for the appellant was that it was “common sense” to form a view contrary to that formed by the Deputy President. Unfortunately for the appellant, it falls upon him to demonstrate error and not to offer opinions as to what might be common sense and what might not be.
Conclusion
- [45]The appellant has not established any relevant errors. The appeal is dismissed.