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Martyn v Workers' Compensation Regulator[2016] QIRC 99

Martyn v Workers' Compensation Regulator[2016] QIRC 99

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Martyn v Workers' Compensation Regulator [2016] QIRC 099

PARTIES:

Martyn, Deborah

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2014/34

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

23 September 2016

HEARING DATES:

19, 23, 24 September 2014 (hearing dates)

4, 5, 6 and 7 May 2015 (hearing dates)

29 May 2015 (Respondent's submissions)

29 June 2015 (Appellant's submissions)

24 July 2015 (Submissions in Reply)

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Knight

ORDERS:

  1. The appeal is dismissed.
  2. The decision of the Regulator dated 6 January 2014 is confirmed.
  3. The Appellant is to pay the Respondent's costs of and incidental to, the appeal to be agreed or, failing agreement, to be subject to a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – whether injury arose out of or in the course of employment – teacher – claims of physical and sexual assault – psychological injury – post traumatic stress disorder – depression – whether employment a significant contributing factor – whether reasonable management action taken in a reasonable way – appeal is dismissed.

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 32

Industrial Relations Act 1999, s 329

McDonald v Q-COMP (2008) 188 QGIG 180.

Eric Martin Rossmuller AND Q-COMP (C/2009/36) - Decision

Kudryavtseva v Simon Blackwood (Workers' Compensation Regulator [2015] QIRC 053

Newberry v Suncorp Metway Insurance [2006] QCA 48

Davis v Blackwood [2014] ICQ 009

Keen v Workers' Rehabilitation and Compensation Corp (1998) 71 SASR 42

Prizeman v Q-COMP (2005) 180 QGIG 481

WorkCover Queensland v Kehl (2002) 70 QGIG 93

Bowers v WorkCover Queensland (2002) 170 QGIG 1

WorkCover Queensland v Heit (2000) 164 QGIG 121

O'Brien v Q-COMP (2007) 185 QGIG 383

Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR 437

Kuenstner v Workers' Compensation Regulator [2016] QIRC 083

WorkCover Queensland v Buchanan (2000) QGIG 124

Q-COMP v Riggs (2005) 179 QGIG 251

Boyd v Q-COMP (2005) 180 QGIG 1129

APPEARANCES:

Ms T. Ryan, Counsel, directed instructed by Mr Dennis, for the Appellant.

MsJ. McClymont, Counsel, directly instructed by the Workers' Compensation Regulator.

Decision

  1. [1]
    Ms Deborah Martyn, a science teacher, has lodged a notice of claim for damages with Workcover Queensland stating she suffered a psychological injury in the form of a post-traumatic stress disorder due to incidents which occurred at the Forest Lake High School (the school) during the period 30 October 2009 to 31 December 2011. Essentially, Ms Martyn claims her psychological or psychiatric injury arose as a result of a number of sexual and physical assaults perpetrated by a number of male students during this period.
  1. [2]
    On the 20th of February 2012, Ms Martyn collapsed at the school. Ms Martyn was transported to the Wesley Hospital where she was treated for hypertension, tachycardia and dizziness. Her health continued to decline throughout 2012 to the extent she was unable to resume her role as a teacher. Ms Martyn subsequently lodged a workers compensation claim for damages on 21 November 2012.
  1. [3]
    WorkCover subsequently rejected the claim for damages. On review, the Regulator confirmed WorkCover's decision to refuse Ms Martyn's claim. Ms Martyn is now appealing the Regulator's decision, arguing her employment was a significant contributing factor to the onset of her post-traumatic stress disorder. She also contends the management action taken by the school in response to the alleged incidents was unreasonable and/or taken in an unreasonable way.
  1. [4]
    Ms Martyn has provided the Commission with a list of six stressors from 2009 until November 2012 which she says contributed to her post-traumatic stress disorder.

Issues for Determination

  1. [5]
    There is no dispute between the parties that Ms Martyn is a "worker" in so far as it is defined in the relevant legislation. Likewise the parties agree she has sustained a psychological injury.
  1. [6]
    The questions that must be considered in this matter are:
  • whether the workplace stressors nominated by Ms Martyn played a significant role in giving rise to her psychiatric condition; and
  • whether the actions contained within the nominated stressors were unreasonable management action or reasonable management action taken by her employer in an unreasonable way.

Nature of the Appeal and Relevant Authorities

  1. [7]
    The Appeal is conducted as a hearing de novo and the onus rests with the Appellant, on the balance of probabilities. The applicable legislation is the Workers’ Compensation and Rehabilitation Act 2013, as at 2012.
  1. [8]
    In Kudryavtseva v Simon Blackwood (Workers' Compensation Regulator)[1] NeateC considered the authorities in so far as they related to onus, noting:

"Although the onus to be discharged in on the balance of probabilities, the Commission, in dealing with the matter, must feel an actual persuasion before the alleged facts can be found to exist. The mere possibility of an appellant suffering an injury on mere conjecture is not enough. Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish (See MacArthur v WorkCover Queensland (2001) 167 QGIG 100, 1010 (Hall P) and cases cited)."

  1. [9]
    Whether employment is a significant contributing factor to the injury is a mixed issue of law and fact. In Newberry v Suncorp Metway Insurance[2], Keane JA, with whom de Jersey CJ and Muir J agreed, noted "the requirements of s 32 of the WCRA that 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".
  1. [10]
    In Kuenster v Workers' Compensation Regulator[3], Neate C made reference to a number of helpful authorities where the question of whether employment was the major contributing factor to an injury was considered, including:
  1. Where events that occurred were misconstrued by the appellant or the appellant imagined incidents, and this misinterpretation was the consequence of an existing condition. In decisions where this factual scenario was examined it was held that the appellant's employment could be a contributing factor but not a significant, or major, contributing factor;[4]
  1. Where the appellant misconstrues an instruction from their employer and as a result becomes distressed. In circumstances like this it has been held that the appellant's employment would not be a significant contributing factor to the injury. [5]
  1. [11]
    In circumstances where it is determined the workplace stressors nominated by Ms Martyn played a significant role in giving rise to her psychiatric condition, it will also be necessary to examine whether the actions contained within the nominated stressors were unreasonable management action or reasonable management action taken by her employer in an unreasonable way. The extent and limits of the operation of s32(5) of the Act, in so far as they are relevant to this matter are well established.
  1. [12]
    In O'Brien v Q-COMP[6], her Honour Vice President Linnane referred to the Canadian authority of Canadian General Electric Company Limited v The Ontario Labour Relations Board[7] to assist in determining the scope of what is and what is not management action. At page 443 it was stated:

"... It is obvious ... that the essential meaning of the word is to control and direct and that must obviously include not only administration but direction of planning for any particular enterprise..."

  1. [13]
    I accept the factors nominated by Ms Martyn relate to management action. The onus also lies with Ms Martyn in establishing that the management action taken by the school in respect of the incidents she alleges to have contributed to her injury was not reasonable or not taken in a reasonable way.
  1. [14]
    In Prizeman v Q-COMP[8], Hall P stated that in determining whether action was reasonable management action taken in a reasonable way by the employer, in connection with the worker's employment, "it is the reality of the employer's conduct and not the employee's perception of it which must be taken into account."
  1. [15]
    There is also authority in decisions of Hall P for the proposition that "reasonable" should be treated as meaning "reasonable in all the circumstances of the case".
  1. [16]
    For s32(5)(a) to operate there must not only be reasonable management action but that action must be "taken in a reasonable way." The responsibility of management action being taken in a reasonable way lies with management. Whether management action was taken in a reasonable way is a question of fact. Reasonable people may differ from time to time about whether a particular management decision was reasonably implemented.
  1. [17]
    In Davis v Blackwood[9], President Martin, in considering the manner in which the Commission should apply s 32(5) of the Act and determine whether management action was taken in a reasonable way, recently noted:

"Sometimes, that may involve considerations of what else might have been done but that will be relevant to whether what was done was, in fact, reasonable."

  1. [18]
    In Prizeman v Q-COMP[10], Hall P wrote:

"And it must be remembered that it is a consequence of s34(5)(b) of the WorkCover Queensland Act 1996 that, in determining whether action was reasonable management action taken in a reasonable way in connection with the worker's employment, it is the reality of the employer's conduct and not the employee's perception of it which must be taken into account."

  1. [19]
    In WorkCover Queensland v Kehl[11], President Hall said that "reasonable" should be treated as meaning "reasonable in all the circumstances of the case"; and in Bowers v WorkCover Queensland[12], he also wrote:

"The circumstances that a system of work or its implementation has miscarried does not necessarily lead to the conclusion that either the system of work or its implementation was unreasonable. Reasonable schemes reasonably implemented can miscarry".

  1. [20]
    Other decisions where consideration has been given to reasonable management action have reinforced:
  1. (a)
    what management must do is be reasonable, not perfect, and, although considerations of fairness will always be relevant, "reasonableness" does not always equate with "industrial fairness;" and
  1. (b)
    it is not necessary that management action be perfect or above criticism, and the term "reasonable management action" permits "failings, deficiencies and flaws provided the management action was sound, based on reason, was not arbitrary, did not involve any unfairness and did not produce an unfair result."

The Statement Stressors

  1. [21]
    At the commencement of the proceedings, 15 stressors were nominated by Ms Martyn (Exhibit 11) as contributing to her psychiatric condition. The Statement of Stressors was then condensed to 11 (Exhibit 12) and further reduced during the proceedings to a total of 6 stressors (Exhibit 13). On Day 4 of the proceedings, the representative for Ms Martyn initially flagged the prospect of relying on the first four of the final six stressors set out in Exhibit 13 as causative of her injury, but after some equivocation confirmed the remaining two would also remain in the list of stressors, noting they had "exasperated the situation". It should be noted that at no time was Ms Martyn directed by myself to reduce the list of stressors she chose to rely on for the hearing.
  1. [22]
    The final list of stressors provided to the Commission and relied on by Ms Martyn was thirteen pages in total and has been reproduced with obvious grammatical errors in Attachment One to this decision. The individual headings within the document describing the six incidents nominated by Mrs Martyn as contributing to the onset of her post Traumatic Stress Disorder are set out below:
  • Stressor One (21 October 2009) - Ms Martyn threatened with rape by male senior students;
  • Stressor Two (23 October 2009) - Male students attempt to break into staff toilets and rape/assault Ms Martyn;
  • Stressor Three (30 October 2009) - Ms Martyn physically assaulted by senior male students;
  • Stressor Four (9 September 2010) - Ms Martyn sexually/physically assaulted;
  • Stressor Five (27 May 2011) - Ms Martyn surrounded and physically attacked by a large group of male students on the oval (first oval attack);
  • Stressor Six (1 June 2011) - Ms Martyn surrounded and physically assaulted by a large group of male students on the oval (second oval attack)

The Witnesses

  1. [23]
    The Appellant relied on the evidence of the following witnesses:
  • Ms Deborah Martyn - Appellant, Science Teacher 2008-2012
  • Mr Kelly Dixon - Union Delegate, Teacher, Forest Lake High School
  • Ms Helen Vaughan –-Teacher, Forest Lake High School: 2008-2010
  • Dr Sonya Stemper - General Practitioner, Stellar Medical Centre
  • Ms Alison McColl - Consultant Psychiatrist
  • Dr Dominique Hanna - Consultant Psychiatrist
  • Dr Robinson - Consultant Psychiatrist
  1. [24]
    The Respondent relied on the evidence of:
  • Ms Heather Varcin - Former Principal, Forest Lake High School
  • Ms Helen Hall - Deputy Principal, Forest Lake High School 2009
  • Ms Marilyn Hamill - Deputy Principal, Forest Lake High School - Current
  • Ms Cheryl Harvey - Deputy Principal, Junior Secondary, Forest Lake High School
  • Mr Anthony Thomas - Groundsman, Forest Lake High School: 2009 - 2013
  • Ms Amanda Nuell - Head of Science, Brisbane State High (previously Head of Science, Forest Lake High School: 2000 - 2010)
  • Mr Carapeto - Science Teacher, Forest Lake High School
  • Ms Joanne Francis - Associate Deputy Principal, Forest Lake High School
  • Dr Varghese - Consultant Psychiatrist

Stressor One (21 October 2009) - Ms Martyn threatened with rape by male senior students

  1. [25]
    Ms Martyn told the Commission she was threatened with rape on the 20th of October 2009. She described how she was moving across a walkway at the school when she noticed five or six boys sitting on a bench to the left of the walkway. Ms Martyn heard one of the bigger boys in the group say, "There she is bro… That's the one. That's the one I want to fu-k. Will you help me get her? I want to hump her. That’s the one I want to hump."
  1. [26]
    Ms Martyn said she was sure the boy was staring straight at her when he made the comments. She said she didn't report the incident immediately because she didn't know how to respond to the situation.
  1. [27]
    Ms Martyn provided the Commission with a summary of the incident which she said was attached to a One School Report she prepared and submitted to Deputy Principal, Helen Hall in early November 2009. The description of the incident contained in this document noted:

 

"Incident 1: 20/10/2009 As I was walking to the main office via going past the canteen area from Freeman POD staff room, a large group of male students made comments to and about me of a sexual nature ('I want to ---- her', 'I am going to ---- her' and 'I would really like to hump that' and 'I am going to hump that'. I ignored these comments and continued into the main office."

  1. [28]
    Under cross-examination, Ms Martyn explained the absence in the One School Report of some of the more threatening comments she had included in her evidence to the Commission was due to being pushed by Ms Nuell, a senior colleague, to keep her report brief. There were also a number of inaccuracies in the dates contained in the One School Report. Ms Martyn explained the dates in the attachment in the One School Report were 'guestimates'.

Stressor Two (23 October 2009) - Male students attempt to break into staff toilets and rape/assault Ms Martyn

  1. [29]
    Ms Martyn told the Commission the attempted rape took place in the teachers' toilets at the back of the student canteen a few days after the initial sexual comments described in Stressor One were made. She was unsure of the date on which the incident occurred, but recalled submitting a report through the OneSchool reporting system on or around 4 November 2009.
  1. [30]
    Ms Martyn's evidence was that she was crossing over a walkway when she noticed the same group of boys who were involved in the previous verbal threats of rape sitting to the left of the walkway. She recalled walking towards the staff toilets which were located behind the canteen. They were key-locked and self-closing. She used a key on a lanyard around her neck to unlock the toilet building and recalled forcibly slamming the door behind her. After this, she entered the toilet cubicle.
  1. [31]
    Whilst Ms Martyn was in the toilet she heard loud footsteps on the path outside the toilet block. She recalled hearing a banging noise and the handle to the door being turned and someone saying, "She’s in there, bro. She’s in there, bro. She’s gone in there."
  1. [32]
    After a few minutes in the toilet, Ms Martyn said she heard a female voice call out to whoever was outside the toilet block asking them to move on. She said that although the bell rang, she wasn't able to move because she was so scared. Eventually, Ms Martyn said she moved out of the toilet cubicle, washed her face and moved towards her final class for the day.
  1. [33]
    Ms Martyn provided the Commission with a summary of the incident which was attached to a One School Report she said she prepared at the request of Ms Hall in early November 2009. At the time, Ms Martyn described the incident in the following terms:

"Incident 2: 26/10/2009 On my way to use the toilets behind the canteen I had to tell a group of male students (the same males as mentioned above) to move off the walk bridge. I then continued to the toilet. Comments were made at this point of time about me between the above mentioned male students. Whilst using the toilet, the door of the toilet was attempted to be opened with some force. At the same point of time, I also heard male voices talking and laughing outside the toilet."

  1. [34]
    Under cross-examination, Ms Martyn confirmed the date she initially proposed on which the attempted rape occurred was not accurate, indicating instead that the incident took place on the 23rd of October 2009.
  1. [35]
    Ms Martyn told the Commission she was under duress and quite stressed at the time she prepared the attachment to the One School Report. She repeatedly explained that this was why there were a number of inconsistencies between her verbal description of the incidents to the Commission and the incident reports contained in the attachment to the One School Report which had been submitted in 2009. Ms Martyn claimed Ms Hall, the Deputy Principal, had placed her under duress. She also said there was limited time and space to include all of the details of the incidents in the attachment in circumstances where Ms Nuell was standing behind her and hurrying her up.
  1. [36]
    Ms Martyn clarified that she had heard one male voice, which was louder than the others making the comments outside the toilet building, but that she also heard other males. She said the reason she did not report the incident to the school immediately after it occurred was because she was terrified and didn’t know what to do.
  1. [37]
    Other explanations provided by Ms Martyn in respect of the inconsistency between the details in the various list of stressors she had provided to the Commission over time and her subsequent description of the incidents was due to a typographical error on the part of someone else who typed the document for her. Ms Martyn explained she had not carefully checked the stressors she submitted to the Commission because she was so unwell at the time.

Stressor Three (30 October 2009) - Ms Martyn physically assaulted by male students

  1. [38]
    Ms Martyn told the Commission she was physically assaulted by a student from the school on 30 October 2009. She recalled walking across a walkbridge with a teaching colleague, Helen Vaughan, when a large Polynesian student who was walking in the opposite direction appeared to move from one side of the walkbridge over to Ms Martyn's side and purposely barge into her shoulder. Ms Martyn said her colleague, Ms Vaughan called out to the student as he walked by, but he just laughed and continued in the opposite direction.
  1. [39]
    Ms Martyn said the contact with the student was so strong it resulted in her taking three steps backwards. She recalled feeling severe pain in her shoulder. She said that in combination with the previous incidents involving threats of rape and attempted rape, the shoulder barge incident left her feeling very anxious and scared.
  1. [40]
    Ms Martyn provided the Commission with a summary of the incident which she said was attached to and submitted with the One School Report she prepared in early November 2009 after meeting with Ms Hall to discuss her concerns. The description of the incident at the time noted:

"Incident 3: 30/10/2009 - When moving to my period 4 class walking over the bridge (from Freeman POD to senior science labs on the left hand side), I saw some of the above mentioned group of male students also walking on the walk bridge (right hand side) in the opposite direction. When Lui Teomatavui saw me he nudged Lawrie Grounds and some of his other mates, they then proceeded to change to the other side of the bridge making contact with my shoulder as they walked passed. At the time comments were also exchanged such as 'there she is' 'that’s the one'."

  1. [41]
    Later, under cross-examination Ms Martyn was adamant the walkway incident in which she was barged in the shoulder by a student occurred on 23 October 2009. In some detail, she specifically recalled how she had a very sore shoulder when she went out to dinner with her husband for her anniversary later that night. On being reminded that she had previously nominated the 30th of October 2009 as the date of the shoulder barge incident, Ms Martyn said she had did have a sore shoulder on the night of her anniversary (the 23rd of October) but wasn't able to recall why it was sore.
  1. [42]
    Under cross-examination Ms Martyn confirmed the shoulder barge incident left her with bruising. She confirmed she was shocked, fearful and immediately began crying on the walkbridge. Ms Martyn explained that she didn't immediately report the incident to the school because she "wasn't going up to see Helen Hall again" but after being reminded she had nominated the date of her initial meeting with Helen Hall as 4 November 2009, which fell after the shoulder barge incident, she explained to the Commission that she was very confused about what to do at the time, which is why she didn't immediately report the incident to the school (emphasis added).
  1. [43]
    Ms Martyn confirmed she did not tell her husband about the incident, nor did she contact the police or report it to her doctor, but later said she couldn't recall if she had told her husband about the incident.
  1. [44]
    She explained the disparities between the summary of the incident she initially attached to the One School Report and her verbal evidence to the Commission, (for example – in the attachment in the One School Report Ms Martyn referred to a student "making contact" with her shoulder, but she later told the Commission a student purposely "barged" into her shoulder with such severity that it caused her to take three steps backwards), occurred because she prepared the report under duress and was told by Ms Nuell to keep it brief.
  1. [45]
    Ms Martyn explained other inconsistencies between her evidence to the Commission and the various lists of stressors provided to the Commission as typographical errors. On other occasions she either wasn't able to provide an explanation in support of the inconsistencies or explained that she had previously provided a lot of the details to Ms Hall, in a face to face to meeting about the incidents. That aside, Ms Martyn continued to insist the incidents occurred in the manner in which she had described to the Commission.
  1. [46]
    Ms Helen Vaughan, a teacher at the school between 2008 and 2010, told the Commission she recalled an incident on the walkbridge where a student walked past herself and Ms Martyn and appeared to deliberately give Ms Martyn a shove. She said he was laughing about it with his mates and it appeared to be deliberate. Ms Vaughan wasn’t able to recall what happened after that, other than they kept moving towards their classrooms.

Reporting of Stressors One, Two & Three - One School & Meeting with Ms Hall

  1. [47]
    Ms Martyn told the Commission she eventually confided her concerns about the incidents to one of her colleagues, Ms Natalie O'Neil. She surmised Ms O'Neil must have told a more senior staff member about their conversation, because shortly after the discussion with her work colleague, she recalled Ms Amanda Nuell, who was the Head of the Science Department at the time, approaching her and suggesting they go and speak to Helen Hall, the Acting Principal.
  1. [48]
    Ms Martyn recalled sitting in Helen Hall's office whilst she reported the incidents outlined in Stressors 1 - 3. She said she remembered asking Ms Nuell to stay with her whilst she spoke to Ms Hall. Ms Martyn's memory of the meeting was that Ms Hall didn't appear to be too interested in her story and didn't write anything down during the meeting. Instead, she asked Ms Martyn to prepare and lodge an incident report on the One School system and told her they would look into it.
  1. [49]
    Ms Martyn's evidence to the Commission was that Ms Hall's verbal response to her complaint was that it was all her (Ms Martyn's) fault and that "I brought it on myself, I encouraged these boys because I didn’t turn around and face them at the time and confront them". She recalled Ms Nuell putting her arm around her and apologising for Ms Hall's comments after the meeting had concluded.
  1. [50]
    Under cross-examination, Ms Martyn acknowledged she had previously made references in other stressor documents to Ms Hall providing her with assurances during the meeting where she detailed the manner in which it would be managed, but had since removed those comments from the refined and final list of stressors.
  1. [51]
    After her meeting with Ms Hall, who was the Acting Principal at the time, Ms Martyn said she and Ms Nuell accessed a shared computer in a staff room so she could lodge the incident on the One School reporting system. She recalled Ms Nuell standing behind her, advising her to keep it brief, not to go into too much detail and to put in a 'guesstimate' of the relevant dates.
  1. [52]
    An extract from the One School database provided to the Commission by Ms Martyn was also accompanied by a separate attachment she said had prepared in November 2009, which included a description of the incidents complained of in Stressors One – Three.
  1. [53]
    Ms Helen Hall was Acting Principal at the school at the time of the alleged incidents, but had since transferred to another school. She had no recollection of the events described by Ms Martyn. She was unable to recall the meeting with Ms Martyn or Ms Nuell. Ms Hall confirmed that no teacher had ever reported to her that they believed they were at risk of rape or sexual assault. She was confident that where words such as rape or sexual assault were raised in a conversation by a teacher, that she would have remembered them and acted on them.
  1. [54]
    In response to the suggestion that Ms Martyn had said she had failed to respond to the complaints about the threat of rape and sexual assault, Ms Hall noted:

"That's absolutely crazy. If she'd come to my office and reported a threat of rape and an assault and an attempted assault, which is clearly what the – the second incident is, you know, at the very least I would have spoken to the principal about it. If the principal wasn't there, I would have spoken to the deputy principal about it. You know, I certainly would have not done nothing about it."

  1. [55]
    Ms Hall was unable to recall any meeting that may have taken place with Ms Martyn in relation to the incidents. She was also unable to directly recall the incidents being reported by Ms Martyn. She acknowledged that at some point she must have responded to the One School Report lodged in early November 2009, in circumstances where it was clear she had made some notes in the follow-up section of the document. In it, she had made a note that she had banned a group of boys from sitting near the walk bridge area for the remainder of year.
  1. [56]
    A follow-up summary at the end of the document, contains an entry from Ms Helen Hall dated 6 November 2009 with the following details:

"Spoke to Lui and the rest of the group about this. All boys indicated the comments were directed towards "hot" girls – not the teacher. The look of surprise on their faces appeared to be genuine and they appeared and indicated they were surprised and would never speak to a teacher like this. All boys have agreed to move away from the area for the remainder of the year."

  1. [57]
    Ms Hall told the Commission the follow up notes in the report suggested the boys had indicated the comments had been made about some other students rather than Ms Martyn.
  1. [58]
    Ms Hall's evidence was that although she could not recall the incidents complained of by Ms Martyn, the One School follow up notes indicated she had clearly taken steps to respond to Incident One raised in the One School Report, by requiring the boys associated with making the comments (as they were initially reported in the One School notes by Ms Martyn) to move away from the area near the walk bridge for the rest of the year. Based on her general approach to such matters Ms Hall indicated she would have spoken sternly to the boys about their language. They also received a warning.
  1. [59]
    Ms Hall appeared to have no recollection of being provided with a separate attachment to the initial One School Report dealing with Incident One. In circumstances where she had entered in follow up notes for Incident One which dealt with the initial stressor, Ms Hall appeared to question whether the attachment containing a description of the other two incidents was included with the One School Report at the time it was submitted.
  1. [60]
    Ms Hall's evidence was that she would never have spoken to a teacher and suggested she had "brought it on herself", as claimed by Ms Martyn, noting that such a claim was ridiculous.
  1. [61]
    Although Ms Hall had no independent recollection of the incidents complained of by Ms Martyn, she described to the Commission the steps she would have taken in circumstances where a serious complaint of rape or threatened rape was raised by a teacher, noting she would have suggested the police be called in a situation where she considered a teacher had been threatened with rape.
  1. [62]
    Under cross-examination Ms Martyn recalled Ms Anne Yuros contacted her to provide feedback in respect of the investigation, but that she never received a direct follow-up from Ms Hall in respect of the her complaint.
  1. [63]
    Ms Amanda Nuell, Head of the Science Department at the time of the alleged incidents, told the Commission she was unable to recall ever accompanying Ms Martyn to a meeting with Ms Hall, where an allegation was made that students had made rape threats or physically assaulted Ms Martyn. She agreed that such a meeting would have been memorable had such an allegation been made, but was unable to recall any conversations with Ms Martyn or Ms Hall where a complaint of this nature had been raised.
  1. [64]
    Ms Neull told the Commission she had no recollection of any of the incidents or students complained about by Ms Martyn in the context of alleged threats of rape or threats to her safety. She was also not prepared to accept Ms Hall would have made comments to the effect that Ms Martyn had somehow encouraged the comments the boys had made noting:

"No, and I don’t believe it's of her nature to say – well, in interactions that I've had with Helen, I wouldn’t attribute that to her."

  1. [65]
    She was also unable to recall ever seeing Ms Martyn in a distressed state around the period of the alleged incidents, nor was she able to recall Ms Martyn advising her that she would never report an incident again given the nature of Ms Hall's response to her complaints about threatened rape and assault.
  1. [66]
    Ms Nuell explained to the Commission that it was her practice to assist teachers with their One School Reports. She said it was also possible for the original author of a One School Report to edit the details of the report after the incident had initially been entered, however it would not be possible for someone else to go in and edit the report of another teacher.
  1. [67]
    Ms Nuell was unable to recall a time where she requested that Ms Martyn ensure her reports on One School were brief, noting it was important to put in specific details so the person to whom the matter was being referred was able to understand the situation. Ms Nuell told the Commission the One School reporting program was quite prescriptive in that it contained drop down boxes and calendars. She described how an author of a report would be asked to select specific dates, locations, buildings and names.
  1. [68]
    Ms Nuell strongly denied suggesting to Ms Martyn that she not report an incident to the police, or that Ms Martyn choose between going to the police or keeping her job and allowing Education Queensland to undertaken an investigation. She said there were some incidents which could arise at the school where the police would be called straight away.
  1. [69]
    Ms Helen Varcin, who previously held the position of School Principal at the Forest Lake State High School, told the Commission she was unaware of any reports made by Ms Martyn indicating she had been threatened with rape or that her safety had been threatened.
  2. [70]
    She told the Commission that had any rape threats been directed to a teacher, of which she was aware, the school would have investigated the incident thoroughly. Ms Varcin explained the school would have initially provided Ms Martyn with support through various sources, including Queensland Teachers Union, followed by a thorough investigation of the incident, but that she was never advised Ms Martyn had been threatened with rape or assaulted.

Stressor Four (9 September 2010) – Ms Martyn sexually/physically assaulted

  1. [71]
    Ms Martyn told the Commission that just under a year later she was sexually and physically assaulted at the school on or around the 9th of September 2010. She recalled the school bell had rung. As she tried to make her way from the middle school teaching area she ran into a group of boys playing handball as the students were moving off to their own classes.
  1. [72]
    She recalled a student, Mr Howitt, striking her with both hands directly on her chest. Ms Martyn's evidence was that she fell to the ground as a result of the contact. She said Mr Howitt groped her breast and was sprawled all over her. She recalled pushing him off and yelling, "Get the f-ck off me, Just get the f-ck away from me. Don’t ever touch me again!"
  1. [73]
    Ms Martyn continued on to her next class but told the Commission she was so upset in the classroom it was necessary for two of her senior students to escort her down to the administration area. She recalled Ms Marilyn Hamill, another Deputy Principal at the school, came and spoke to her in a separate room. Her recollection of Ms Hamill's response was that she said something along the lines of, "That boys will be boys. And we won't make an official report on One School about the incident. I will deal with any irate parents who happen to call up about swearing…but at least it humanises teachers. It makes them more human to students".
  1. [74]
    Under cross-examination Ms Martyn acknowledged she was worried she was going to get into trouble for swearing at the student involved in the incident. She confirmed Ms Hamill had reassured her that she understood why Ms Martyn had sworn at the student. Whilst her responses were somewhat unclear at times, Ms Martyn appeared to acknowledge that she had not told Ms Hamill she believed the incident and physical contact between herself and Mr Howitt was anything but an accident.
  1. [75]
    Ms Martyn initially told the Commission she was sent home from her duties for a few days after the incident. Under cross-examination it transpired her father-in-law had actually died on the 8th of September 2010, the day before the incident with Mr Howitt. As such she had already been absent from the school on bereavement leave on the day before the incident and further leave had already been planned to commence from the following Monday and continued until the 13th September 2010.
  1. [76]
    Ms Marilyn Hamill, recalled Ms Martyn coming to speak her about the incident. She said Ms Martyn didn't complain about the incident or say that the student had deliberately knocked her over, but instead, was upset because she had sworn at the boy as he’d gone to help her up. Ms Hamill confirmed Ms Martyn did not mention anything about being groped by a student or that other students were cheering and yelling at her after the incident. Ms Hamill confirmed Ms Martyn did not collapse, nor did she require first aid after the incident occurred.
  1. [77]
    Ms Hamill's recollection was that Ms Martyn was quite embarrassed and upset that she had sworn at the student. She recalled Ms Martyn was also upset about her father-in-law passing away on the previous day and they’d had a conversation about how she shouldn't be at school in those circumstances. Ms Hamill recalled taking Ms Martyn to her staffroom, where she'd gathered her belongings and gone home to commence her leave.

Stressor Five (27 May 2011) - Ms Martyn surrounded and physically attacked by a large group of male students on the oval (first oval attack)

  1. [78]
    Ms Martyn told the Commission the first oval attack occurred on the 27th of May, 2011. She recalled being rostered on playground duty when a large group of males came down towards where she was standing near the oval. Ms Martyn noticed that two of the boys were carrying sticks that looked like broomsticks. One of the sticks had gold glitter material on one end and the other stick had silver glitter material attached to one end.
  1. [79]
    She questioned the boys about being on the oval and asked them to leave the area, but they refused. Ms Martyn's evidence was that two of the boys started lunging at her with the sticks, trying to hit her. She said she thought there were about 12 or 15 boys swarming around her. She remembered trying to protect herself from being hit by the sticks. Ms Martyn recalled thoughts of being raped and killed going through her head at the time of the incident.
  1. [80]
    Ms Martyn then heard a tractor approach the group and recognised the school groundsman, Tom Thomas, driving the tractor. She asked Mr Thomas to contact administration, advising him she was concerned about the situation. Ms Martyn's evidence is Mr Thomas, who also coached football at the school, told her he would calm the boys down but failed to contact the school administration despite her request.
  1. [81]
    At the time, Ms Martyn said she felt scared and thought she was going to die. She confirmed she began to cry and that Mr Thomas would have observed her crying. She was unable to say whether these were the same boys involved in the other incidents she had experienced.
  1. [82]
    Ms Martyn said she made her way to the middle school office and reported the incident to the Senior Deputy Principal, Mr Manny McAuley. She said she was very distraught after the incident. She told Mr McAuley she had been attacked and showed him a piece of gold material that had fallen from the end of one of the sticks. Ms Martyn recalled Mr McAuley advising her he would investigate the situation straight away, but then told her to go and teach her next class.
  1. [83]
    Ms Martyn told the Commission she entered the incident on the One School Reporting system, but wasn't entirely clear as to the actual date she made the entry. She noted the One School Report included a reference to the 27th of May 2011.
  1. [84]
    A One School Report summary prepared by Ms Martyn after the incident and provided to the Commission included the following comments:

"On my playground duty 2nd lunch Friday 27/5 I had advised a group (approx 10-12) of mainly Somoan boys…that the oval and huts were out of bounds in second lunch…I then got shouted at that they weren't seniors…and they were going to play footy...then two of the boys both carrying broom sticks…started swirling their sticks not far from me. The unknown stick holder started moving towards me and lunging towards me as he was swinging it. All the other unknown boys were in the background cheering him on and refusing to move back to their area."

  1. [85]
    The One School Report provided to the Commission by Ms Martyn makes reference to Tom Thomas arriving on his tractor, whereupon the report notes the boys had started to move away from the area. Ms Martyn says she made her way to the middle school office where she reported the incident to Mr McAuley. Later, in the same One School Report, Ms Martyn notes that she met with Ms Marilyn Hamill who indicated she would investigate the incident.
  1. [86]
    The follow-up summary records in respect of the incident investigation and outcome note the following:

"All students banned frm (sic) the oval for the remainder of the term – Jason also did a series of detentions at lunchtime".

  1. [87]
    Under cross-examination, Ms Martyn was unable to provide an explanation about inconsistencies between various accounts she had previously prepared in other stressor documents in respect of the first oval attack. For example, a prior account of the incident referred to Ms Martyn being struck on the arms and legs by the students. Ms Martyn denied she was struck on the arms and legs, but was unable to explain how this wording had found its way into one of the stressor documents provided to the Commission.
  1. [88]
    Likewise, she was unable to explain why the One School report containing details about the stick incident on the oval incident contained no suggestion of students screaming abuse in circumstances where her description of the incident to the Commission portrayed a situation where the students were yelling and screaming, making rude and lewd comments and trying to hit her with sticks.
  1. [89]
    Tom Thomas, the groundsman at the school at the time of the incident, told the Commission he recalled an occasion where some boys were performing the haka on the oval. He thought the sticks the boys were using were taken from an old tree and they were twirling them around, like a baton. He was unable to recall the year he observed them doing the haka, but was able to confirm it was at lunchtime.
  1. [90]
    His recollection was that there was no conflict between the boys who were performing the haka but he stopped the tractor, hopped off and took the sticks off the boys. He said he had the same responsibility as everyone else to ensure the students were safe and ensure no-one was hurt.
  1. [91]
    Mr Thomas had no memory of an incident involving Ms Martyn or her being threatened with broomsticks on the oval. He was not able to recall Ms Martyn being present on the oval, nor did he recall any boys thrusting sticks towards her in a threatening manner or observe her crying or hyperventilating on the oval. Mr Thomas told the Commission that had he observed a colleague in this position, he would have provided assistance to that person.

Stressor Six (1 June 2011) – Ms Martyn surrounded and physically assaulted by a large group of male students on the oval (second oval attack)

  1. [92]
    Ms Martyn told the Commission the second oval attack took place on or around 1 June 2011, whilst she was on playground duty. She recalled a large group of males approaching her, some of whom may have also been involved in the initial attack. She said the group continued to grow and she recalled footballs being involved.
  1. [93]
    Ms Martyn's evidence is that she asked the boys to leave the area, but was told to f-ck off. The students continued to play football on the oval. She said one of the students began climbing a tree to retrieve a football that had gotten stuck. She remembered calling the student to come down from the tree. Around the same time she became aware she was being surrounded by more and more students.
  1. [94]
    Ms Martyn said the students started circling her. Initially, she recalled somewhere between 10 to 12 students being present when she first engaged with the boys, but eventually the group grew to 30 or 40 students. She said there was lots of shouting, grunting and yelling. Ms Martyn's evidence is the students were close to her – charging her, bumping into her. She said she froze at one point, but could feel herself getting hit. She said some students were telling her "…we’re going to get you, Miss".
  1. [95]
    Eventually, Ms Martyn said she recalled a Year 9 boy went to call for some help and that's when two other teachers, Jo Francis and Barbara Walker, came running down to the oval area to assist her. She recalled the students dispersed pretty quickly after that, but that Ms Francis was able to grab one of the boys who was then asked to apologise to Ms Martyn.
  1. [96]
    The school bell had rung by that point and Ms Martyn said she headed off to her next class in a very distressed state. Later, she recalled reporting the incident on One-School.
  1. [97]
    A One School Report dated 1 June 2011, prepared by Ms Martyn around the time of the incident and provided to the Commission included the following comments:

"…at second lunch today I had a group of approx. 20 unknown students converge bunching around me as I was asking them all to leave this area… I moved out of their way where they were getting louder and louder and would not listen to anything I had to say…The ball kicker then started climbing up the tree to get his ball. I asked again for him to come down from there…he would not listen. I then walked to a nearby student playing handball to go straight to MSO for me to get help…When Ms Francis and Ms Walker arrived she managed to get the students under control, after a lot had run off."

  1. [98]
    Under cross-examination, Ms Martyn explained the differing accounts contained in the One School Report about the second Oval incident and her evidence to the Commission were due to the requirement to keep the reports relatively brief and also because she "was not in a very good state by then".
  1. [99]
    Ms Joanne Francis, an Associate Deputy Principal at Forest Lake State High School told the Commission she was teaching at the school in 2011. She recalled at one point insisting a middle school student, in year eight or nine apologise to Ms Martyn, but she said this didn't take place on the oval and she couldn’t recall the circumstances in which the apology was given.
  1. [100]
    Ms Francis had no recollection of an incident on the oval but confirmed that such an event, had it happened, would have been a memorable occasion. Her evidence was she had never witnessed Ms Martyn screaming or hysterical. She told the Commission it was quite likely she would have remembered an event where students were shouting, grunting and yelling, at a teacher, but she had no recollection of anything like this occurring on the oval or running down to the oval to assist Ms Martyn.
  1. [101]
    She explained that she avoided running anywhere in the school due to the perception this might create amongst students. Ms Francis was unable to recall Ms Martyn telling her she could no longer do playground duty in the area, nor did she recall observing Ms Martyn in a distressed state.
  1. [102]
    Under cross-examination, Ms Francis acknowledged it was possible the incidents described by Ms Martyn on the oval could have occurred before she was present, though she confirmed she was completely unable to recall any such event or the subsequent interaction between herself and Ms Martyn after the event in the manner in which it had been described to the Commission by the Appellant.
  1. [103]
    The follow-up summary records recorded in the One School documentation in response to the report made by Ms Martyn, with Ms Hamill noted as the staff contact, included a reference to all students being banned from oval remainder of the term.

Medical Evidence

  1. [104]
    Five doctors gave evidence in relation to the nature of Ms Martyn's injury, along with the cause and the timing of the injury.
  1. [105]
    Ms Martyn called four doctors to give evidence:
  1. Dr Sonia Stemper, a General Practitioner who commenced treating Ms Martyn on or around February 2011;
  2. Dr Dominique Hannah, a Consultant Psychiatrist, who first examined Ms Martyn on September 2012;
  3. Dr Alison McColl, a Consultant Psychiatrist examined Ms Martyn on 30 May 2013, as part of a separate QSuper Insurance claim;
  4. Dr Geoffrey Robinson examined Ms Martyn on 27 February 2014 and again on 18 March 2014. The duration of each consultation was two hours.
  1. [106]
    The Regulator called Dr Varghese, a consultant psychiatrist, who examined Ms Martyn on 28 November 2012 and prepared a report dated 14 January 2013. A further report was prepared by Dr Varghese on 24 April 2013.

Medical History

  1. [107]
    There is no question that Ms Martyn has a long and complex medical history. Prior to the incidents occurring at the school which are alleged to have contributed to Ms Martyn's disorder, Dr Sonya Stemper's medical notes contain references to bladder surgery, cervical cancer, a hysterectomy and a breast lump.
  1. [108]
    According to Dr McColl in 1988, Ms Martyn developed Hashimoto's disease following the birth of her second child. In 1990, she was diagnosed with maturity onset diabetes. In 2005, Ms Martyn was diagnosed with melanosis coli, and in 2011 she was diagnosed with irritable bowel syndrome.
  1. [109]
    In early July 2010, Ms Martyn was also involved in relatively serious car accident. In the same month she lodged a compulsory third party insurance claim for seeking compensation for pain and suffering, soft tissue neck damage, continual headaches and psychological trauma.
  1. [110]
    Dr Stemper's notes regarding Ms Martyn's medical history, from 2010 to 2012, also contain references to:
  • a C6 nerve impingement and a motor vehicle accident in 2010;
  • carpel tunnel syndrome in 2011;
  • urinary continence in 2011;
  • chronic daily headache with vertigo in 2012; and
  • depression
  1. [111]
    There is no question Ms Martyn collapsed at the school on 20 February 2012 and was transported to hospital. She reported experiencing palpitations, sweatiness and, at the time, thought she might be having a heart attack. She said she was admitted to the Wesley Hospital for fourteen days where she fell under the care of Dr Peter Cain, a Cardiologist. He treated her for hypertension, tachycardia and dizziness.
  1. [112]
    Subsequent to this event, Ms Martyn says she was admitted to the Greenslopes Private Hospital Hypertension Unit. She reported her cardiologist had been questioning a possible adrenal tumour as the cause of her hypertension and tachycardia. She was also referred to Dr Paul Sandstrom, a neurologist, who diagnosed her with chronic vertiginous migraines.

What was the nature and cause of Ms Martyn’s Injury?

Dr Stemper - General Practitioner

  1. [113]
    In early August 2012, Ms Martyn was referred by her general practitioner, Dr Stemper to a Counsellor and Art Therapist, Ms Lody Levy, for an opinion and management regarding depression. On or around this time, Ms Martyn had confided in Dr Stemper that she thought she could be experiencing depression.
  1. [114]
    Dr Stemper told the Commission she had been treating Ms Martyn since February 2011. The GP confirmed she had referred Ms Martyn to a social worker and art therapist, Ms Lody Levy, who diagnosed Ms Martyn with post-traumatic stress disorder.
  1. [115]
    Under cross examination, Dr Stemper confirmed she had frequently treated Ms Martyn in relation to her health concerns between February 2011 and August 2012. On the materials before the Commission it appears it wasn't until late 2012 that Ms Martyn made any comments to Dr Stemper in respect of any workplace events that may have been impacting her health.
  1. [116]
    In November 2011, Ms Martyn was referred to Dr Cain. Dr Stemper reported that around this time Ms Martyn had been experiencing symptoms such as frequent headaches, nose bleeds, blurred vision and general lethargy. She said Ms Martyn's symptoms started to become seriously debilitating in 2012, noting she had a chronic daily headache with vertigo. Ms Martyn was subsequently referred to Dr Stowasser for hypertension.
  1. [117]
    Dr Stemper confirmed she administered a K10 diagnostic assessment on or around 7 August 2012 as a prelude to preparing a mental health plan for Ms Martyn and a referral to Lody Levy, in response to Ms Martyn's view that she might be depressed. Although she had previously noted a family history of depression for Ms Martyn's mother, Dr Stemper was confident Ms Martyn, as far as she knew, did not have a prior history of depression. She was also confident Ms Martyn's thyroid and diabetes condition were being treated and under control.
  1. [118]
    Although Dr Stemper's responses were not always entirely clear, under cross-examination, she indicated that it was around this period, that both she and Ms Martyn began to link the incidents that occurred at the school with Ms Martyn's physical symptoms. On reflection, she opined that some of Ms Martyn's physical symptoms could have been related to the onset of post-traumatic stress disorder, though she acknowledged such a diagnosis fell outside the bounds of her expertise as a GP.
  1. [119]
    In a letter to Dr Stemper dated 30 August 2012, Ms Levy noted:

"Deborah told me how physically unwell she feels and that she is currently signed off work. She told me about workplace bullying which seems to have triggered her physical symptoms. I have suggested she is considered for Workcover as her psychological state seems to be indicative of severe emotional distress as a result of bullying at work."

  1. [120]
    After a series of appointments, it appears Ms Levy subsequently advised Dr Stemper she was concerned Ms Martyn may have post-traumatic stress disorder. In a referral to psychiatrist, Dr Dominique Hannah, dated 7 September 2012, Dr Stemper noted:

"Her main ongoing medical issue is headaches and dizziness, which are debilitating enough that Deborah has accessed her QSuper and has leave of her job as a secondary teacher. I referred Deborah to a psychologist who is concerned she may have PSTD and I wonder if this is contributing to her physical symptoms and how to optimally manage it."

Dr Hannah - Psychiatrist

  1. [121]
    In correspondence to Dr Stemper dated 19 October 2012, Dr Dominique Hannah, a psychiatrist confirmed Ms Martyn matched all the criteria for post-traumatic stress disorder. In the same letter, Ms Hannah noted:

"Given the nature of the assaults and threatening behavior, the severity of her psychological symptoms and the timing of the onset of her physical symptoms, I consider that it is likely her headaches and dizziness are somatic manifestations of her trauma syndrome and I have completed Workcover forms reflecting this."

  1. [122]
    Dr Hannah told the Commission she had been treating Ms Martyn since September 2012. Dr Hannah was of the view Ms Martyn exhibited a number of features that were more consistent with anxiety and post-traumatic stress disorder, rather than depression.
  2. [123]
    In a report prepared for Q-Super dated 19 September 2013, Dr Hannah reported Ms Martyn had continued to experience ongoing incapacitating symptoms related to post-traumatic stress disorder including depressed and anxious mood. She noted Ms Martyn had reported flashbacks and feelings as if the events were reoccurring.
  1. [124]
    Dr Hannah said her diagnosis of Ms Martyn's post-traumatic stress disorder was determined utilizing the DSM-IV-TR, which were the diagnostic criteria in place at the time she assessed Ms Martyn.
  1. [125]
    Based on the history provided to her by Ms Martyn, it was her opinion the Appellant was re-experiencing flashbacks and nightmares associated with incidents in her workplace. Dr Hannah explained Ms Martyn was fearful of being raped noting that one of the principal criteria for post-traumatic stress disorder required exposure to a traumatic event, or a circumstance where the person believes they are at threat of experiencing that event.
  1. [126]
    Other significant events Ms Martyn had described to Dr Hannah included an incident on the oval which involved a number of students with broomsticks and resulted in her feeling threatened. In a further incident relayed to Dr Stemper, she had described a student assaulting her as she was walking down a corridor.
  1. [127]
    Dr Hannah was of the opinion that incidents including the death of Ms Martyn's mother, her husband's medical problems and the existing hypothyroidism she was experiencing were unlikely to have contributed to her post-traumatic stress disorder.
  1. [128]
    Under cross-examination, Dr Hannah acknowledged that as Ms Martyn's treating psychiatrist she accepted the truth of her patients' comments in respect of their description as to how events they allege to have contributed to their health symptoms may have occurred. She also confirmed she did not review any other independent reports or information from the school or other sources in respect of the incidents Ms Martyn described to her.
  1. [129]
    Dr Hannah confirmed Ms Martyn's physical symptoms and eventual decompensation in 2012 may have been due to an accumulation of stress over a period of time as a result of the incidents at the school she had described, but also accepted the change in Ms Martyn’s functioning in early 2012, in circumstances where the school incidents described to her by Ms Martyn may not have been entirely accurate, could have been due to other factors. She also acknowledged she would have expected Ms Martyn to have made a comment to her general practitioner about the duration of time she had been experiencing symptoms of anxiety at some point during her consultations with her general practitioner.
  1. [130]
    Dr Hannah acknowledged her diagnosis was made based on Ms Martyn's description of events. Further, that it was possible for a patient to describe an event that didn't actually occur and, in less common circumstances, re-experience events that didn't actually occur.

Dr Varghese - Psychiatrist

  1. [131]
    In his report dated 24 April 2013, Dr Varghese noted:

"At the time I evaluated Ms Martyn, she was suffering from Major Depression with secondary anxiety. She certainly described symptoms of Major Depression and her mental state was consistent with this condition. She is unlikely to suffer from PTSD as a result of her experiences in the school."

  1. [132]
    Dr Varghese noted that Major Depression is of multifactorial origin, but essentially reached a conclusion that Ms Martyn's depression had been brought about principally by issues unrelated to the workplace. Dr Varghese was of the view Ms Martyn's experience of events in the workplace had instead been influenced by the development of a depressive illness with associated depressive cognitions and depressive perceptions in the context of personality and attribution style.
  1. [133]
    Dr Varghese explained to the Commission that depression develops insidiously, over a period of time, confirming that it was entirely possible Ms Martyn's depression had influenced her recollection of the incidents that occurred in 2009, further noting:

"When people get depressed, they look for a cause, why am I feeling like – what is wrong with me, why am I not my normal self? And they – it is not uncommon that how one understands the cause of it is related to your attributional style…"

  1. [134]
    In diagnosing Ms Martyn, Dr Varghese considered two scenarios in respect of the reported incidents she had reported as resulting in her injury. The first scenario accepted Ms Martyn's account of the incidents at the school was accurate, the second scenario took into consideration circumstances where Ms Martyn may have embellished particular aspects of the incidents due to the onset of depression, her subsequent perception of events and her attribution style.
  1. [135]
    Dr Varghese was of the opinion it wasn't open to a psychiatrist to conclude Ms Martyn's agitated behaviour or hyperarousal was in direct response to any actual threats of rape in 2009, noting:

"When one is attributing – attempting to seek a solution – seek an answer to why one is feeling some way…the event will be changed by one's depression, and the more one dwells on that, the more committed one becomes to the solution that that's what caused the problem."

  1. [136]
    Dr Varghese was particularly clear in his view about Ms Martyn diagnosis, noting she had described to him extremely classic and typical symptoms of depression during his examination. Under cross-examination, he confirmed he had used Australia's official diagnostic classification - the International Classification of Diseases - when diagnosing Ms Martyn. Dr Varghese was clear that a genuine threat of rape would need to exist, rather than the perception of a rape threat for a patient to meet criteria (a) for post-traumatic stress disorder. He was of the opinion that post-traumatic stress disorder arose out of a major actual event as opposed to the perception of an event, by way of example noting:

"…something very serious like witnessing a murder, being in a concentration camp, being in combat, serious combat, very serious car accident, being subject to sexual assault – those kind of events – as against one’s perception of events and they ought to be – they ought to be events which would affect anybody."

  1. [137]
    He said Ms Martyn was keen to speak about the events she believed had contributed to her post-traumatic disorder during his examination, but that this was not generally what occurred with a patient who suffered from post-traumatic stress disorder, in that it was often necessary for a psychiatrist to draw the events out of the patient in circumstances where they would not normally be so forthcoming about the incidents.
  1. [138]
    Dr Varghese was also of the view Ms Martyn's may have developed depression in response to her husband's serious illness.

Dr Alison McColl - Psychiatrist

  1. [139]
    In her report prepared for Q-Super Insurance dated 17 June 2013, Dr Alison McColl diagnosed Ms Martyn with moderate post-traumatic stress disorder, noting the diagnosis had been made on the basis of the history, mental state examination findings and collateral information provided to her.
  1. [140]
    Dr McColl examined Ms Martyn on 30 May 2013. She explained the criterion (a) experience under the DSM-IV when diagnosing post-traumatic stress disorder, as a situation where an individual experiences (or witnesses another experiencing), an event that would be considered an out of the ordinary experience in which there was a threat of death or serious injury, or a threat to the physical integrity of the person or others.
  2. [141]
    Dr McColl told the Commission Ms Martyn had described during her examination a number of work events where she had felt she was in danger of being harmed, including an incident where she recalled overhearing a large male student telling a friend, "That’s the one I’m going to f--k. Will you help me get her?" Dr McColl recalled Ms Martyn telling her the students would stalk her, describing an incident where she was followed to the toilet. Further, that when Ms Martyn reported the incident to the head of the department, she came away feeling that she was being blamed for the incident.
  1. [142]
    According to Dr McColl, Ms Martyn scored very highly on all measures of depression, anxiety and stress. Dr McColl told the Commission this was consistent with the history she presented in her mental state examination. She was of the view Ms Martyn's disorder may well have been present well before it was diagnosed, noting that a person experiencing the disorder may present with an array of physical symptoms before being formally diagnosed with the disorder.
  1. [143]
    Under cross-examination, Dr McColl acknowledged the purpose of her examination was to assess Ms Martyn's capacity to return to work, rather than determining the cause of her injury. She also acknowledged that sleep apnoea can affect mood and can often impact cognitive functioning and memory, but was unable to comment on whether Ms Martyn's husband’s illness may have played a role in the development of Ms Martyn's condition, because she wasn’t aware of his illness at the time of she examined Ms Martyn.

Dr Geoffrey Robinson - Psychiatrist

  1. [144]
    In a report dated 5 April 2014, Dr Geoffrey Robinson diagnosed Ms Martyn as suffering post traumatic stress disorder and major depressive illness, Dr Robinson was of the opinion Ms Martyn's major depressive illness was essentially secondary to her post traumatic stress disorder.
  1. [145]
    It was Dr Robinson's opinion that post-traumatic stress disorder is commonly associated with major depressive disorder. He also confirmed that it was not uncommon for patients with the disorder to experience post-traumatic amnesia which would go some way to explaining Ms Martyn's inconsistent recollection of events and dates.
  1. [146]
    In Dr Robinson's view, the major traumatic event contributing to Ms Martyn's condition was the threat of gang rape by young men who were students at the school. He noted Ms Martyn's description of the verbal commentary by the young men as she walked passed, and the subsequent storming of the toilet block two days later by the same boys led Ms Martyn to believe there was a very genuine threat. Dr Robinson was of the opinion that a number of subsequent incidents at the school exacerbated the post-traumatic stress disorder.
  1. [147]
    Dr Robinson told the Commission, Ms Martyn had described being left with feelings of intense fear, horror and helplessness following the attempted rape. He recalled Ms Martyn describing "thunderous" footsteps outside the toilets and the "boys trying to bash the door down", noting that she collapsed and had to be taken to hospital after being reminded of the incident following her use of the same toilets some years later in 2012.
  1. [148]
    According to Dr Robinson, it was his understanding the Deputy at the school had not written anything down during their discussions about the threatened rape incident and had told Ms Martyn she had brought it all on herself by not confronting the boys when the comments were first made.
  1. [149]
    Dr Robinson was of the opinion Ms Martyn's disorder commenced on or after the time she alleges the first two stressors (threatened rape and attempted rape) took place in late October 2009. In his view, it was only after Ms Martyn's hospitalization at Greenslopes in 2012 that she began to be more open about her experiences, which according to Dr Robinson, was consistent with his view that many people with post-traumatic disorder attempt to avoid thoughts, feelings and discussions about the traumatic events that have contributed to the disorder. Dr Robinson said it was not uncommon for people to avoid reporting such incidents, which in turn could result in a delayed diagnosis.
  1. [150]
    Under cross-examination and in response to queries around why Ms Martyn's recall of particular stressors had, at times, been inconsistent or factually incorrect, Dr Robinson opined that Mrs Martyn may have been providing an account of what she had remembered from a dream sequence. He surmised that it had only been when she'd had some time to think about the incident more clearly and more carefully, that she'd realised her account was not accurate.
  1. [151]
    Dr Robinson acknowledged he relied on Ms Martyn's description of events when making his diagnosis, later confirming that the presence of distress or depression could also affect the quality of memory.

Consideration of the Listed Stressors – Attachment One (Exhibit 13)

  1. [152]
    The Regulator submits the Stressors or incidents described by Ms Martyn were not a significant contributing factor to her injury, essentially arguing the incidents submitted by the Appellant either did not occur or were highly exaggerated accounts of certain events at the school in circumstances where, according to Dr Varghese, Ms Martyn may have embellished particular aspects of these incidents due to the onset of major depression and her subsequent perception of these events some years later.
  1. [153]
    Ms Martyn contends the workplace stressors or incidents she has described to the Commission were a significant contributing factor to her illness. In particular, she has argued Stressors One to Four were causative of her injury and Stressors Five and Six further exacerbated her disorder. Dr Robinson opined Ms Martyn's post-traumatic stress disorder, commenced on or around the time when Stressors One and Two occurred in late 2009.
  1. [154]
    In the first instance, it is necessary for the Commission to consider the workplace stressors nominated by Ms Martyn as having played a significant role in giving rise to her psychiatric condition.

Stressor One (21 October 2009) - Ms Martyn threatened with rape by male senior students

  1. [155]
    Having considered the materials before the Commission in respect of Stressor One, I accept Ms Martyn walked past a group of students at the school in late October 2009 and overheard one of the boys within the group making comments of a sexual nature which may have been directed towards her. There is no question, given the One School record of the incident lodged around this period and other evidence before the Commission, that Ms Martyn reported the incident to the school through the One School reporting process.
  1. [156]
    Whilst she was unable to recall the incident or any meeting she may have held with Ms Martyn in relation to the comments made by the boys, Deputy Principal Hall's notes in the One School report indicate she took steps to meet with a group of boys to raise Ms Martyn's concerns. Ms Hall's notes indicate the boys denied directing the comments towards Ms Martyn and instead, were addressing the comments towards other girls in the area. That aside, Ms Hall took steps to direct the boys to move away from the area near the walkway for the remainder of the year.
  1. [157]
    I accept Ms Martyn did raise the incident with Ms Hall through the One School process and may well have had a discussion with a colleague or colleague(s) about the incident. In my view however, the evidence before the Commission supports a finding that at the time, the complaint was not framed or described by Ms Martyn as a "threat of rape" but instead, as an incident where a student or student(s) had made some inappropriate comments of a sexual nature which may have been directed towards her as she was walking past a group of boys.
  1. [158]
    I accept the evidence of Ms Hall, Ms Nuell and Ms Varcin, all of whom were teachers with considerable seniority and experience at the school, that a complaint from a teacher in respect of a "threat of rape" would have been a memorable occasion and would have been taken seriously by the school, had it actually been raised in this form of a "rape threat".
  1. [159]
    Having reviewed various materials and reports extracted from the One School reporting system, not just in respect of Stressor One, but a number of other incidents which occurred, it is clear the school had a robust reporting system and follow-up process in place in regards to incidents involving students and misbehaviour. The evidence of Ms Hall, Ms Nuell and Ms Varcin in respect of reporting and investigation processes undertaken by the school was clear, unambiguous and consistent. I accept the school took complaints by teachers of student misbehaviour seriously and took steps to investigate and address concerns where appropriate.
  1. [160]
    Both Ms Hall and Ms Nuell were unable to recall a situation or conversation where Ms Martyn had made a complaint about being threatened with rape. Ms Hall in particular was quite clear about the processes which she would have followed in her role, had such a complaint been made by anyone within the school. She was adamant she would have followed these processes in the event she had become aware of a teacher being threatened with rape. Neither Ms Hall nor Ns Nuell could recall arranging or attending a meeting with Ms Martyn where a complaint in the form of a "threat of rape" was raised, nor could they recall Ms Martyn being distressed or concerned about such an incident.
  1. [161]
    Having considered Ms Hall's evidence in respect of the processes the school would ordinarily have followed in response to a complaint of that nature, I am unable to be persuaded that Ms Martyn was told by Ms Hall she had brought the threatened rape on herself by not confronting the students involved at the time the comments were made.
  1. [162]
    Ms Martyn was unable to provide the Commission with any medical records containing any notes or references to an account of the rape threat or the impact it may have had on her mental or physical health from around the time it was allegedly made in late 2009 to just prior to making a Worker's Compensation claim on or around August 2012. Nor did she make a report to the Queensland Police despite her husband and also her son and daughter all holding officer roles within the service at various times during this period.
  1. [163]
    In my view, Ms Martyn's account of the "threatened rape" incident and the manner in which it was reported to Dr Hannah, Dr McColl and Dr Robinson was inconsistent with the manner in which it was originally reported through the One School system; and eventually to the Commission during these proceedings.
  1. [164]
    Explanations provided by Ms Martyn and later Dr Robinson in respect of the inconsistencies in the manner in which the threatened rape incident and other subsequent incidents were reported by Ms Martyn ranged from assertions by Ms Martyn that she'd been under pressure from Ms Nuell to keep her One School report brief, to Dr Robinson explaining that patients experiencing post-traumatic stress disorder often developed amnesia as a result of the trauma.
  1. [165]
    On balance, although I don't doubt that Ms Martyn walked past a group of students at the school in late 2009, one of whom may have engaged in making inappropriate comments containing sexual content in the presence of or towards her, in my view, the incident itself and its impact on Ms Martyn as reported by her to her treating health practitioners and later, to the Commission, has been overstated.
  1. [166]
    Further, to the extent that an incident was reported by Ms Martyn, I note that although Ms Hall was unable to recall the specific circumstances of her meeting with the boys who were involved, a contemporaneous record made at the time indicates Ms Hall took steps to promptly follow up the incident within forty-eight hours, subsequently directing the boys to stay away from the walkway area for the rest of the year, notwithstanding their insistence the comments weren't directed towards a teacher.
  1. [167]
    As such, I do not accept Stressor One occurred in the manner reported by Ms Martyn to her treating doctors and to the Commission. To the extent that an incident did occur and was reported to the school, I accept the school took reasonable action to address the concerns in relation to the student(s) comments.

Stressor Two (23 October 2009) - Male students attempt to break into staff toilets and rape/assault Ms Martyn

  1. [168]
    Attached to a One School Report lodged by Ms Martyn in early November 2009, was an A4 document including reference to two further incidents (Stressors Two and Three). Ms Martyn claims she attached this document to the One School Report at the same time she reported the rape threats. Ms Martyn’s account of Stressor Two at the time of the alleged incident was reported in the following manner:

"On my way to use the toilets behind the canteen I had to tell a group of male students (the same males as mentioned above) to move off the walk bridge. I then continued to the toilet. Comments were made at this point of time about me between the above mentioned male students. Whilst using the toilet, the door of the toilet was attempted to be opened with some force. At the same point of time, I also heard male voices talking and laughing outside the toilet."

  1. [169]
    The contrast between the details of the incident recorded in the A4 attachment which Ms Martyn claims was provided to the school in November 2009; and the description provided to her treating doctors between 2012 and 2014, and then some time later to the Commission is significant.
  1. [170]
    For example, Dr McColl recalled Ms Martyn reporting that students were stalking her, describing an incident where she was followed to the toilet. In his evidence to the Commission, Dr Robinson referred to the threat of "gang rape" by young men who were students at the school. He recalled Ms Martyn describing "thunderous" footsteps outside the toilets and the "boys trying to bash the door down". Dr Hannah referred to assaults and threatening behaviour. In her evidence to the Commission, Mr Martyn described hearing loud footsteps on the path outside the toilet block. She recalled hearing a banging noise and the handle to the door being turned and someone saying, "She's in there, bro. She's in there, bro. She's gone in there."
  1. [171]
    Again, Ms Martyn's account of the "attempted rape" incident and the manner in which it was reported to Dr Hannah, Dr McColl and Dr Robinson was inconsistent with the manner in which it was originally reported through the One School system; and eventually to the Commission during these proceedings. The One School Report makes no reference to "stalking", "attempted rape", "thunderous footsteps", "slamming the toilet door", nor does it include any reference to comments being made by students such as "She's in there, bro. She's in there, bro. She's gone in there."
  1. [172]
    In my view, the contemporaneous account of the event included in the attachment to the One School Report is far more likely to be representative of the events as they occurred at the time, rather than those reported by Ms Martyn to her treating practitioners some three or more years later.
  1. [173]
    I accept the evidence of Ms Hall, Ms Varcin and Ms Nuell, that had Ms Martyn reported the incident or framed (even verbally) the "attempted rape" events in the manner she subsequently described to her various treating doctors, the school would have taken steps to respond to such a complaint. Instead, a close review of the account attached to the One School Report, suggests a far more benign incident.
  1. [174]
    To the extent that Ms Hall may have been aware of any incident around this period, in respect of the walkway and comments made to or around Ms Martyn by male students, I'm satisfied she took appropriate steps to address the complaint, by asking the group of students to move away from the area for the rest of the year.
  1. [175]
    Having considered Ms Martyn's evidence where she described being told to choose between an internal school investigation into the alleged incident and holding onto her career in lieu of reporting the "attempted rape" or "threatened rape" to the police, I prefer the evidence of Ms Nuell who denied any such conversation, noting that it was always open to the school to call the police in certain instances.
  1. [176]
    As such, I do not accept Stressor Two occurred in the manner reported by Ms Martyn to her treating doctors and to the Commission. I note that Ms Hall was completely unable to recall the "attempted rape" or being advised about the incident by Ms Martyn. In my view, had the incident been reported to Ms Hall in the same manner it was reported to Ms Martyn's treating practitioners or to the Commission, I accept the school would have taken steps to investigate such a serious complaint. To the extent that it did occur, I’m satisfied that by directing students away from the walkway area, Ms Hall took reasonable steps to ensure the boys were moved away from the area in question.

Stressor Three (30 October 2009) - Ms Martyn physically assaulted by senior male students

  1. [177]
    Ms Martyn's description of Stressor Three in early November 2009 included:

"When moving to my period 4 class walking over the bridge…Lui Teomatavui ……then proceeded to change to the other side of the bridge making contact with my shoulder as they walked passed. At the time comments were also exchanged such as 'there she is' 'that’s the one'."

  1. [178]
    Having considered the evidence of both Ms Martyn and Ms Vaughan, I accept a student at the school walked past Ms Martyn on the walkbridge and made contact with her shoulder. Again, the difficulty with Stressor 3 is that the account provided by Ms Martyn through the One School reporting process at the time of the incident compared to her reports of the incident to her treating practitioners and later, the Commission are significantly different.
  1. [179]
    Dr Robinson's suggestion that Ms Martyn's recall of certain events may have been hazy or unreliable due to her having post-traumatic amnesia was unconvincing.
  1. [180]
    In her initial evidence to the Commission, Ms Martyn adamantly aligned the timing of Stressor Three to the same day as her anniversary dinner, recalling she was in significant pain that evening as a direct result of a "shoulder barge", despite acknowledging later that the walkway "shoulder barge" incident (Stressor 3) occurred after the date of her anniversary dinner. Likewise, Ms Martyn told the Commission she didn't report the incident to the school immediately, notwithstanding she was bruised and in significant pain, because she didn’t want to have to deal with Ms Hall again given her previous response about the other incidents.
  1. [181]
    The difficulty I have with this comment, is that Ms Martyn previously claimed she had raised all three incidents (including Stressor Three) concurrently, via the attachment to the Incident Report she attached to her One School Report on 4 November 2009, which meant that at the time Stressor Three allegedly occurred, the discussions with Ms Hall in relation to any incidents, as reported by Ms Martyn, hadn't actually taken place.
  1. [182]
    I note that again Ms Hall was completely unable to recall the "shoulder barge" or being advised about the incident by Ms Martyn. In my view, had the incident been reported to Ms Hall in the same manner it was reported to Ms Martyn's treating practitioners or to the Commission, particularly in the context of Ms Martyn's account of Stressors One and Two and what was essentially an emerging pattern of harassment, I accept the school most likely would have taken steps to address the complaint.
  1. [183]
    Further, whilst I do accept that a student may have unnecessarily or purposely made contact with Ms Martyn's shoulder on the walkway bridge, I do not accept Stressor Three occurred to the extent reported by Ms Martyn to her treating doctors and later, to the Commission.

Stressor Four (9 September 2010) - Ms Martyn sexually/physically assaulted

  1. [184]
    Ms Martyn told the Commission she was sexually and physically assaulted at the school on or around the 9th of September 2010. She recalled a student, Mr Howitt, striking her with both hands directly on her chest. Ms Martyn's evidence was that she fell to the ground as a result of the contact. She said Mr Howitt groped her breast and was sprawled all over her. Ms Martyn's initial account suggested there was limited support provided from the school in response to the incident and that she had been sent home for a period of time.
  1. [185]
    Again, the contrast between Ms Martyn's description of the incident to the Commission in respect of Stressor Four and that of her colleague, Ms Hamill is significant.
  1. [186]
    Essentially, Ms Hamill's evidence was that Ms Martyn came to see her to discuss the incident. She confirmed that at no time during their discussions did Ms Martyn state or indicate the student had deliberately knocked Ms Martyn over. Instead, she said the reason Ms Martyn had reported the event to her was that she had told Ms Hamill she was concerned about the potential reaction from parents in circumstances where she had sworn at the student after he had attempted to help her up. Further, that Ms Martyn was already quite upset about the death of her father-in-law on the previous day, in circumstances where she pre-arranged to take additional bereavement leave in the coming days.
  1. [187]
    Under cross-examination, Ms Martyn confirmed many aspects of Ms Hamill's account of the incident as it was reported at the time. For example, Ms Martyn confirmed her father-in-law had passed away and that she was taking bereavement leave at and after the time of the incident.
  1. [188]
    Further, she appeared to acknowledge that she was concerned about the reactions of the parents of the student involved given the nature of her swearing.
  1. [189]
    In those circumstances, I prefer Ms Hamill's account of the incident as it was reported to her by Ms Martyn at the time. In particular, I accept that at no stage did Ms Martyn suggest to Ms Hamill the student had deliberately groped her or fallen on her. Further, that the real basis for Ms Martyn reporting the incident were her concerns about any potential fall-out from parents, as a result of her swearing at a student, rather than a sexual assault.
  1. [190]
    Although it is clear that an incident occurred whereby Ms Martyn fell as a result of a student making contact with her, I do not accept Stressor Four occurred in the manner reported by Ms Martyn to her treating doctors and later, to the Commission.
  1. [191]
    To the extent the incident was reported, I accept Ms Hamill's evidence that students were subsequently banned from playing handball in the area where Ms Martyn was knocked over by one of the students.

Stressor Five (27 May 2011) - Ms Martyn surrounded and physically attacked by a large group of male students on the oval (first oval attack)

  1. [192]
    Ms Martyn filed a report in relation to the above Stressor on the One School system in or around May 2005. The report included the following comments:

"On my playground duty 2nd lunch Friday 27/5 I had advised a group (approx 10-12) of mainly Somoan boys…that the oval and huts were out of bounds in second lunch…I then got shouted at that they weren't seniors…and they were going to play footy...then two of the boys both carrying broom sticks…started swirling their sticks not far from me. The unknown stick holder started moving towards me and lunging towards me as he was swinging it. All the other unknown boys were in the background cheering him on and refusing to move back to their area."

  1. [193]
    Again, the contrast between this report about the incident, and Ms Martyn's subsequent description of the event to a number of her treating doctors and later, the Commission is significant.
  1. [194]
    Ms Martyn's description to the Commission included language such as the students "lunging" at her with sticks, trying to "hit her", boys "swarming" around her, protecting herself from being "hit by the sticks". She also recalled thoughts of being "raped" and "killed" going through her head in the context of the other threats of rape and attempted rape, as detailed in Stressors One and Two.
  1. [195]
    Mr Tom Thomas, a groundsman whom Ms Martyn claimed to have been present at or around the time of the event on the oval was unable to recall having observed any such incident. He told the Commission that had he observed a colleague in this position, he would have provided assistance to that person but could not recall a time when he had any involvement with Ms Martyn in respect of any incident on the oval. Instead, he recalled an incident where students were performing the haka on the oval. He recalled removing the sticks from the students to ensure no-one was hurt.
  1. [196]
    Having considered Ms Martyn's respective accounts of the first oval incident, as well as the evidence of Mr Thomas, I am not persuaded the incident as described by Ms Martyn to a number of her treating doctors and later, to the Commission occurred in the manner in which it was subsequently reported. In my view, Ms Martyn's initial report of the incident was most likely the more accurate of the two accounts.
  1. [197]
    It is more likely than not Ms Martyn did come across students on the oval, who were practicing or performing the haka with sticks. I accept Ms Martyn's attempts to direct the boys away from the oval were unsuccessful and most likely ignored or met with derision on the part of one or more of the students.
  1. [198]
    To the extent the incident was reported and investigated, the One School report confirms the school took appropriate steps to address the issue by banning students from the oval for the remainder of the term and requiring one of the students to attend detention.

Stressor Six (1 June 2011) - Ms Martyn surrounded and physically assaulted by a large group of male students on the oval (second oval attack)

  1. [199]
    A One School Report dated 1 June 2011, prepared by Ms Martyn around the time of the incident and provided to the Commission included the following comments:

"…at second lunch today I had a group of approx. 20 unknown students converge bunching around me as I was asking them all to leave this area… I moved out of their way where they were getting louder and louder and would not listen to anything I had to say…The ball kicker then started climbing up the tree to get his ball. I asked again for him to come down from there…he would not listen. I then walked to a nearby student playing handball to go straight to MSO for me to get help…When Ms Francis and Ms Walker arrived she managed to get the students under control, after a lot had run off."

  1. [200]
    Again, the contrast between the One School report prepared around the time of the incident and the manner in which aspects of the event were subsequently described by Ms Martyn to a number of her treating doctors, and later the Commission is significant.
  1. [201]
    In her description to the Commission, Ms Martyn reported that the students started "circling her". She recalled 30 or 40 students being present and described a situation where they were "charging her, bumping into her". At one point Ms Martyn said she could feel herself getting hit and being told "…we’re going to get you, Miss".
  1. [202]
    Ms Martyn told the Commission a number of teachers including Ms Joanne Francis came to her assistance on the oval. Ms Francis, an Associate Deputy Principal at the school had no recollection of the incident as it was described by Ms Martyn. She did not recall Ms Martyn being in a distressed state, nor did she recall insisting that a student apologise to Ms Martyn during the alleged event. She did however recall a separate incident elsewhere in the school where she had asked a student to apologise to Ms Martyn.
  1. [203]
    Ms Martyn told the Commission she wasn't in a very good state by the time she submitted the One School Report about the incident, which in her view, explained why there were inconsistencies in her various accounts of the incident. Later, in addition to "post-traumatic amnesia", Dr Robinson opined a number of the inconsistencies in Ms Martyn's description of various stressors over time could have arisen due to her recalling details from a "dream sequence".
  1. [204]
    Having considered Ms Martyn's description(s) of the second oval account, as well as the evidence of Ms Francis, I am not persuaded the incident as described by Ms Martyn to a number of her treating doctors and later, to the Commission occurred in the manner in which she described. Again, in my view, Ms Martyn's initial report of the incident was most likely the more accurate of the two accounts.
  1. [205]
    Essentially, Ms Martyn attempted to ask a group of students on the oval to leave the area. Her efforts were unsuccessful in that they disregarded her requests and continued to play. Her efforts to cajole a student out of a tree were also unsuccessful. I accept Ms Martyn's claims the students ignored her and were most likely disrespectful.
  1. [206]
    I'm satisfied that in banning the students from the oval for the remainder of the year, the school took reasonable steps to address the issue, as it was then reported by Ms Martyn.

Other Stressors

  1. [207]
    Prior to the hearing of this matter, Ms Martyn submitted other Stressor documents to the Commission listing events she claimed had contributed to the onset of her post-traumatic stress disorder including two separate incidents involving a "Toy gun" and another event referred to as "Violent Student in possession of dangerous drugs namely cocaine…and involving other students in the class whereby the Appellant was assaulted".
  2. [208]
    Both stressors were subsequently deleted from the formal list of Stressors the Appellant relied on these proceedings (see Attachment One).
  1. [209]
    Notwithstanding this, both the Regulator and the Appellant provided written submissions to the Commission which dealt with evidence provided by some witnesses during the course of the hearing in respect of those two additional stressors.
  1. [210]
    In the case of both stressors, Ms Martyn's evidence was directly and credibly contradicted by the witnesses called in the Respondent’s case. Notwithstanding Ms Martin's prior description of the event, the incident report dealing with the 'cocaine' event made no mention of violent and uncontrollable behaviour, assault or items being thrown around a room. Again, Ms Martyn's subsequent description of the events some years later, was completely at odds with the contemporaneous report.
  1. [211]
    Likewise, a contemporaneous report in respect of the 'toy gun' incident and the evidence of Mr Carapeto was a far more measured and believable account of an event otherwise described in much more colourful terms by Ms Martyn during the proceedings.
  1. [212]
    As is the case for the preceding six stressors, I am also not persuaded these incidents as described by Ms Martyn accurately reflected the actual circumstances as they unfolded at the time.

Did the workplace stressors nominated by Ms Martyn play a significant role in giving rise to her psychiatric condition?

  1. [213]
    For the Appeal to succeed, the Commission must be satisfied that on the balance of probabilities, the Appellant's injury arose out of, or in the course of her employment and employment was a significant contributing factor to her injury.
  2. [214]
    The Appellant contends her post-traumatic stress disorder arose as a result of the incidents described in Stressors 1 – 6. As such, one of the primary questions I must consider in this matter is whether the events that underpin the diagnosis by Dr Hannah, Dr McColl and Dr Robinson of post-traumatic stress disorder actually occurred.
  3. [215]
    The Regulator has submitted Ms Martyn's evidence cannot be accepted as reliable for the following reasons:
  • Her accounts of important incidents have varied in significant respects over time;
  • Her attribution of the factors contributing to her psychiatric condition has varied over time;
  • There has been considerable embellishment of a number of incidents when compared with the contemporaneous statements made by Ms Martyn;
  • Given the asserted severity of her symptoms, and the significance of the claimed events, as the Appellant now relates them, it is inconceivable that:
  1. There was no presentation for medical treatment (she contends she reported work stress to Dr Cain and Dr Florin, but did not call those witnesses to say so);
  2. There was no report to any person at the school of work-related stress (though she claimed she informed her husband of the events at school, he was not called to give that evidence at trial);
  3. She did not involve the school administration, the Union, the Employee Assist program, or the police;
  4. She continued to work as a teacher and function normally and appropriately.
  1. [216]
    Conversely, the Appellant has submitted Ms Martyn's evidence is compelling, arguing is it clearly supported and comprehensively corroborated by the evidence before the Commission, including that of:
  1. Other witnesses before the Commission;
  2. OneSchool reports and documents;
  3. Witness statements;
  4. Expert medical reports
  1. [217]
    Ms Martyn's representative contends the medical experts provided reliable evidence that the Appellant was unlikely to have embellished information about the incidents, even where information given by the Appellant to the Commission pursuant to the Commission's requirements had changed somewhat over time. Further, that the inconsistencies in dates provided by the Appellant are properly explained by the nature of the PTSD in that sufferers can experience post-traumatic amnesia and, in Ms Martyn's case, a "disturbance of memory from around the time of the traumatic incident".
  2. [218]
    The difficulty I have with this submission is that I am unable to accept Ms Martyn as a credible witness. I am unable to accept her assertions that the incidents she has relied as having contributed to her post-traumatic stress disorder occurred in the manner in which she described to the Commission.
  1. [219]
    Having reviewed the various materials in respect of this Appeal, it is abundantly clear Ms Martyn's version of the events changed over time and conflicted with the evidence she provided to the Commission. The explanations provided by Ms Martyn and later, Dr Robinson, in respect of the inconsistencies in her accounts were unconvincing. If anything, Dr Robinson's explanation Ms Martyn may have potentially recalled some aspects of the events from a "dream sequence", raised serious questions from the Commission's perspective in relation to the Ms Martyn's capacity to accurately remember the incidents.
  1. [220]
    I also don't accept Ms Martyn framed her complaints to management at the school in the same manner in which they were described to the Commission. Where she did approach management or submit a complaint, I accept having considered the materials before the Commission and in particular, the follow-up actions recorded in those reports, that the incidents as Ms Martyn reported them on One School at the time, were promptly and appropriately addressed by the school.
  1. [221]
    Likewise, I am unable to accept the events Dr Hannah, Dr McColl and Dr Robinson relied on to formulate the diagnosis of post-traumatic stress disorder were accurately reported by Ms Martyn at the time of their respective examinations. Further, whilst she was not called to give evidence, I note the initial suggestion that Ms Martyn may be suffering post-traumatic stress disorder originated in or around August 2012 from Ms Lody Levy, an Art Therapist and Counsellor, who, based on her correspondence to Dr Stemper, first raised the prospect that Ms Martyn may have the disorder in response to complaints from Ms Martyn about events at the school which occurred in late 2009.
  1. [222]
    On the materials before the Commission, it would appear that Ms Martyn did not make any comments about or references to the incidents which took place at the school or any related psychological anxiety or symptoms that may have arisen as a result of those incidents to any of her treating specialists until some point in 2012.
  1. [223]
    Prior to this time, Ms Martyn continued to function in her role as a teacher with seemingly no complaints either from the school or herself in respect of her capacity.
  1. [224]
    In these circumstances I prefer the evidence of Dr Varghese in respect of the nature of Ms Martyn's injury. In his report dated 24 April 2013, Dr Varghese noted:

"At the time I evaluated Ms Martyn, she was suffering from Major Depression with secondary anxiety. She certainly described symptoms of Major Depression and her mental state was consistent with this condition. She is unlikely to suffer from PTSD as a result of her experiences in the school."

  1. [225]
    Dr Varghese noted that Major Depression is of multifactorial origin, but essentially reached a conclusion that Ms Martyn's depression had been brought about principally by issues unrelated to the workplace. In this regard, I note for the period 2009 - 2012 there were a number of non-work factors unfolding in Ms Martyn's life that may well have contributed to the onset of her depression over time.
  1. [226]
    Dr Varghese was of the view Ms Martyn's experience of events in her workplace had instead been influenced by the development of a depressive illness with associated depressive cognitions and depressive perceptions in the context of personality and attribution style.
  1. [227]
    Unlike the other treating specialists, some of whom did not have the benefit of reviewing all of the materials, including the One School Reports provided to the Commission, Dr Varghese considered a number of scenarios, one of which considered a situation where Ms Martyn was embellishing her account of events which unfolded at the school due to the onset and nature of her major depression.
  1. [228]
    I accept Dr Varghese's opinion Ms Martyn suffers and has suffered depression. Significantly, Dr Stemper, Dr Hannah and Dr Robinson all indicated Ms Martyn suffered from depression, albeit in conjunction with her post-traumatic stress disorder.
  1. [229]
    In turn, I am of the view, Ms Martyn's Depression significantly interfered with her recall and subsequent description of the incidents to both her treating practitioners and the Commission.
  1. [230]
    Although it is clear from the One School reports that Ms Martyn did experience certain events at the school which involved students misbehaving and at times being disrespectful and rude during her time as a teacher, I am also not satisfied those events, even as they were initially reported through the One School system, were a significant contributing factor to the onset of her depression.
  1. [231]
    I accept Ms Martyn sustained a psychiatric injury, however I am not satisfied that Dr Stemper, Dr Robinson, Dr Hannah and Dr McColl could objectively conclude that her employment and in particular the Stressors complained of, led to the onset of post-traumatic stress disorder.
  1. [232]
    In those circumstances, I find Ms Martyn injury was not a personal injury arising out of, or in the course of employment where her employment was a significant contributing factor to the injury.

Martyn v Workers' Compensation Regulator [2016] QIRC 99Did Ms Martyn's condition arose out of, or in the course of, reasonable management action taken in a reasonable way?

  1. [233]
    Had I been satisfied Ms Martyn's injury arose out of, or in the course of her employment and her employment was a significant contributing factor to the injury, I would have been obliged to dismiss the application if I had found Ms Martyn's psychiatric or psychological disorder arose out of in the course of reasonable management action taken in a reasonable way.
  1. [234]
    In this matter however, it is not necessary to make a finding in respect of the exclusionary provisions of s32(5) of the Act which, in any event, would have clearly applied (as set out in each of the findings of the Commission for each Stressor) if it had been found that Ms Martyn's injury had fallen within the meaning of "injury" in s32(1) of the Act.
  1. [235]
    I have been unable to find Ms Martyn has discharged the necessary onus in proving on the balance of probabilities that her claim is one for acceptance.
  1. [236]
    The Appeal is dismissed.
  1. [237]
    The Appellant is to pay the Regulator's cost of, and incidental to the Appeal.
  2. [238]
    Order accordingly.

Martyn v Workers' Compensation Regulator [2016] QIRC 99

Martyn v Workers' Compensation Regulator [2016] QIRC 99

Martyn v Workers' Compensation Regulator [2016] QIRC 99

Martyn v Workers' Compensation Regulator [2016] QIRC 99

Martyn v Workers' Compensation Regulator [2016] QIRC 99

Martyn v Workers' Compensation Regulator [2016] QIRC 99

Martyn v Workers' Compensation Regulator [2016] QIRC 99

Martyn v Workers' Compensation Regulator [2016] QIRC 99

Martyn v Workers' Compensation Regulator [2016] QIRC 99

Martyn v Workers' Compensation Regulator [2016] QIRC 99

Martyn v Workers' Compensation Regulator [2016] QIRC 99

Martyn v Workers' Compensation Regulator [2016] QIRC 99

Martyn v Workers' Compensation Regulator [2016] QIRC 99

 

Footnotes

[1] Kudryavtseva v Simon Blackwood (Workers' Compensation Regulator [2015] QIRC 053.

[2] Newberry v Suncorp Metway Insurance [2006] QCA 48.

[3] [2016] QIRC 083.

[4] Kuenstner v Workers' Compensation Regulator [2016] QIRC 083 [27] citing WorkCover Queensland v Buchanan (2000) QGIG 124.

[5] Kuenstner v Workers' Compensation Regulator [2016] QIRC 083 [27] citing Boyd v Q-COMP (2005) 180 QGIG 1129.

[6] O'Brien v Q-COMP (2007) 185 QGIG 383.

[7] Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR 437.

[8] Prizeman v Q-COMP (2005) 180 QGIG 481.

[9] Davis v Blackwood [2014] ICQ 009.

[10] Prizeman v Q-COMP (2005) 180 QGIG 481.

[11] WorkCover Queensland v Kehl (2002) 70 QGIG 93 at 94.

[12] Bowers v WorkCover Queensland (2002) 170 QGIG 1.

Close

Editorial Notes

  • Published Case Name:

    Martyn v Workers' Compensation Regulator

  • Shortened Case Name:

    Martyn v Workers' Compensation Regulator

  • MNC:

    [2016] QIRC 99

  • Court:

    QIRC

  • Judge(s):

    Member Knight IC

  • Date:

    23 Sep 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Bowers v WorkCover Queensland (2002) 170 QGIG 1
2 citations
Jump To
Cite 1 - (2002) 170 QGIG 1
Cite 2 - (2002) 170 QGIG 1
Boyd v Q-COMP (2005) 180 QGIG 1129
2 citations
Jump To
Cite 1 - (2005) 180 QGIG 1129
Cite 2 - (2005) 180 QGIG 1129
Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR 437
2 citations
Jump To
Cite 1 - (1956) OR 437
Cite 2 - (1956) OR 437
Davis v Blackwood [2014] ICQ 9
2 citations
Jump To
Cite 1 - [2014] ICQ 9
Cite 2 - [2014] ICQ 9
Keen v Workers' Rehabilitation and Compensation Corporation (1998) 71 SASR 42
1 citation
Jump To
Cite 1 - (1998) 71 SASR 42
Kudryavtseva v Blackwood [2015] QIRC 53
2 citations
Jump To
Cite 1 - [2015] QIRC 53
Cite 2 - [2015] QIRC 53
Kuenstner v Workers' Compensation Regulator [2016] QIRC 83
4 citations
Jump To
Cite 1 - [2016] QIRC 83
Cite 2 - [2016] QIRC 83
Cite 3 - [2016] QIRC 83
Cite 4 - [2016] QIRC 83
MacArthur v WorkCover Queensland (2001) 167 QGIG 100
1 citation
Jump To
Cite 1 - (2001) 167 QGIG 100
Newberry v Suncorp Metway Insurance Ltd[2006] 1 Qd R 519; [2006] QCA 48
2 citations
Jump To
Cite 1 - [2006] QCA 48
Cite 2 - [2006] QCA 48
O'Brien v Q-Comp (2007) 185 QGIG 383
2 citations
Jump To
Cite 1 - (2007) 185 QGIG 383
Cite 2 - (2007) 185 QGIG 383
Prizeman v Q-Comp (2005) 180 QGIG 481
3 citations
Jump To
Cite 1 - (2005) 180 QGIG 481
Cite 2 - (2005) 180 QGIG 481
Cite 3 - (2005) 180 QGIG 481
Q-COMP v Riggs (2005) 179 QGIG 251
1 citation
Jump To
Cite 1 - (2005) 179 QGIG 251
Rossmuller v Q-COMP [2010] ICQ 4
1 citation
Jump To
Cite 1 - [2010] ICQ 4
Stephen Horace MacDonald v Q-COMP (2) (2008) 188 QGIG 180
1 citation
Jump To
Cite 1 - (2008) 188 QGIG 180
WorkCover Queensland v Buchanan (2000) QGIG 124
2 citations
Jump To
Cite 1 - (2000) QGIG 124
Cite 2 - (2000) QGIG 124
WorkCover Queensland v Kehl (2002) 70 QGIG 93
2 citations
Jump To
Cite 1 - (2002) 70 QGIG 93
Cite 2 - (2002) 70 QGIG 93
WorkCover v Heit (2000) 164 QGIG 121
1 citation
Jump To
Cite 1 - (2000) 164 QGIG 121

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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