Caldwell v WorkCover/Allianz Australia

"The expression "burden" or "onus" of proof, "As applied to judicial proceedings . . . has two distinct and frequently confused meanings: (1) the burden of proof as a matter of law and pleading - the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of introducing evidence" (Phipson on Evidence, 10th ed. (1963) par. 92). This is a proposition which has been frequently acknowledged (See e.g. Fitzpatrick v. Walter E. Cooper Pty. Ltd. [1935] HCA 82; (1935) 54 CLR 200 at 218 and Mummery v. Irvings Pty. Ltd. [1956] HCA 45; (1956) 96 CLR 99 at 118 et seq). The position is, we think, correctly stated by the learned author of the work to which we have referred when he says: "the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates (ibid. par. 95)".

1. I do not think that this submission or this case are of any particular significance here, because through its cross-examination of the worker and through its own evidence the Corporation has placed before the Tribunal evidence that suggests that stressors associated with the worker as director and shareholder have featured in his disability. It might have been that at the conclusion of the worker's evidence in chief there was an evidentiary burden on the Corporation but that has been discharged. In the end what is required in this case is an evaluation of all of the evidence to determine the fundamental question as to whether the worker's employment was a substantial cause of his disability.
2. Finally he contended, that in any event, there were sufficient stressors that could be said to have resulted from the employment in the narrow sense, to justify a finding that employment was a substantial cause of the disability.
3. Ms Kelly, for the Corporation, in arguing to the contrary submitted that it was important to recognise that the worker was both a director and shareholder of the employer as well as being an employee. She submitted that only those stressors that arose out of the worker's relationship with the employer as its employee were relevant. Next she said that when one carefully analysed the evidence it was clear that it was the worker's relationship with his co-director Mr Popow, the financial concerns that he had relating to the employer, the threatened insolvency proceedings against the employer, issues arising out of the sale of and value of the business and the failure of the initial sale to proceed, that were the potent causes of the worker's stress, and that it could not be said that any of these were employment related. She was critical of much of the worker's evidence that related to alleged work related issues. She submitted that the worker had failed to disclose a number of these matters when he consulted with Dr Kennett, Dr Blakemore and Dr Frost and that he failed to mention many of them when he was first interviewed in connection with his claim. She said that Mr Caldwell's evidence about the extent of his duties and responsibilities was inconsistent with the time sheets that had been produced and with the evidence of Mr Wotton which she said demonstrated that the worker had exaggerated his involvement in the quality control side of the rubber business and the extent of hours that the worker allegedly worked.
4. Ms Kelly submitted that having taken all of these matters into account I could not be satisfied that the worker had met the threshold test to qualify for compensation under the Act.
5. I now turn to consider the evidence in light of these submissions.
6. The worker first sought medical treatment on account of his anxiety on 30 November 2000 when he consulted with his general practitioner, Dr Kennett. The worker made a general complaint of feeling stressed at work. In an examination that took place on 14 January 2000 Dr Kennett recorded the following history:-

"He described his work stresses as major, and described his 'now hands on' partners as being very difficult, in placing pressure, legal and otherwise on him."

1. Over the course of the further consultations with Dr Kennett on 14 January, 3 February and 18 February 2000 its pretty clear that the worker's anxiety condition was deteriorating. The history taken by Dr Kennett on 18 February 2000 records:-

"He was tremulous, sweating, and felt totally unable to cope. He had been struggling with the expectation that the business would be sold, but when the sale fell through he decompensated, realizing he may be subject of this stressful environment for some further time."

1. The claim for compensation was made by the worker on 20 February 2000.
2. The worker there identifies the date of injury as being 1 November 1999. He identifies that which led to the injury or disease thus: "Ongoing threats from non working director and poor results in selling business".
3. Following the lodgment of the claim the Corporation instructed assessors who interviewed the worker.
4. In the course of that interview, the worker identified the source of his problems as: "Yes, I based most of my problems today on personal problems with a fellow director." (TB 59).
5. The fellow director was clearly Mr Popow. The worker was then asked to relate to the history leading up to this. He described it as follows:-

"Okay, well as I said, John POPPO [sic] decided that he wanted to take over production management side of the business, and he did that for probably for about six months or so....nine months.

In that period he brought the company to its knees through bad productivity, poor product, rejects, that type of thing. We got to a stage where the Directors couldn't ... we couldn't even draw wages. And that was an extremely stressful time, being a little bit too close to the problem, something I was able to see it, to start off with, was actually happening.

When the incoming wages and the monies that were at their worst then Mr POPPO just up and quit. He retained his Directorship of course, and share. He went off and got another job and left us with a mess. And when we did clean the mess up, we did get ourselves back on track again, and since he's gone we've had record profits and record turnover since he's gone. So it was certainly the problem ...

And when the cause of the problem was brought out in the open at the Directors meetings he then went really strange, and there was a lot of personal verbal attacks, Lawyers letters, threats of litigation

1. On Joe, the other working director. But I don't think there was any to the other silent partner. Yes, he wanted the company liquidated and all sorts of strange things.

And of course, as I said, you know during this period we're building the business back up again quite successfully, but we were being threatened with litigation's, and we was fighting off...he was trying to buy our shares and sell his share, and all sorts of rubbish was going on.

And that's continued on for about eighteen months, and its gradually got worse and worse and worse.

Q.28 When you say he was trying to buy shares he was going from one end to the other, he was trying to liquidate the business one day and then take over the next day?

1. Yes. We were getting weekly threatening Letters from Solicitors and God knows what. We've actually got a file, which Joe's holding, and it's about three inches thick with all this crap in it.

Joe suffered the worst earliest, he's on nerve tablets and God knows what. Our Production Manager, or our Chemist what we made Production Manager, Nigel Wotton, he's finished up he's having anxiety attacks. His health isn't all that good either.

It's affected us all, not just myself, and it has been extremely nerve racking and stressful.

Q.29 So this would be over the eighteen months it's got worse?

1. Yes, it's got worse. It's still not over yet, we're kind of hoping ... there's a contract signed on the business now and if that goes through ... and the only thing that will stop it is ... The contract has got to go before the Board of Directors now, and if we sign it, well, it will just go ahead, and that's it it's all over then. And we will go our separate ways and hopefully there'll be no more threats of litigation or whatever. So the end is near I hope. (TB 59 - 61).

"Q.34 Your condition itself though, you don't relate it to work, you relate it to this other fellow? I mean its not the duties and that type of thing that you were doing...?

1. A. I can do work, that's not a problem. I think it's just this bloody ... just him."

1. The worker saw Dr Blakemore, not long after this, on 20 April 2000 at which time he gave the following history:-

"Mr Caldwell explained that he and three other directors had bought into a company 10 years ago. He said that three years ago one working director was allowed to operate the business, on the promise that he would make it stronger, but he said the result instead was that the business was almost brought to its knees, he said that they were left to sort out the mess. He said that they decided to sell it and go their separate ways, and he said the sale had just been made today, the day of this interview.

With the stress of trying to rebuild the business after it was nearly destroyed, Mr Caldwell said that the workshop manager and one other became very anxious, and, in addition, there were continuing threats of law suits by the director, who had almost run the business into the ground.

Mr Caldwell said that he saw the manager and the other man become emotionally distressed, he thought they were weak, and then he said he started to get severe chest pain, and disturbed sleep, but was most apparent in October 1999, but he said that he had been feeling the stress from the start, from when they had to try and resurrect the business. ..."

1. The worker was examined by Dr Mary Frost, on 17 August 2000. Dr Frost records that the worker identified relevant stressors as including the souring of his relationship with his partners, the losses that the employer experienced as a result of reject products in 1995/1996, Mr Popow's verbal aggression, the pressure associated with building up the business following Mr Popow's departure in 1997, the pressure associated with being accused by his other partners of cheating and swindling, and the legal manoeuvres associated with the sale of the business.
2. Whilst I found the worker to be a generally reliable witness I am troubled about his evidence concerning the apparent prominence of work related stressors that he allegedly experienced prior to 1999.
3. When the worker first sought medical advice on account of his stress and anxiety on 30 November 1999 he told Dr Kennett that he had increasing frequency of chest pain over the preceding two months. That seems to suggest that it was around October 1999 that the worker's symptoms of stress and anxiety were significant. This accords with Mrs Caldwell's statement that it was around October 1999 that she noticed her husband continuously rubbing his left chest. It also accords with the date of injury identified by the worker on the initial claim form.
4. I am mindful of the evidence Dr Kennett who said that the worker was reluctant to reveal the extent of his psychological difficulties. I am mindful of the evidence of Dr Frost that her experience and research revealed that in the case of men there was often a long time lag between the development of symptoms and the seeking of medical help and that often it is only the physical manifestation of symptoms that prompts the seeking of medical attention. But, I am also mindful of the shortcomings of such evidence for the reasons explained by Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at 729- 45. In the end all that can be said of this evidence is that it lends some support for the proposition that the worker's anxiety or depression might have been present before October 1999 but that it goes no further than that.
5. By the time the worker made his claim for compensation and was interviewed if there had been a mindset to tough it out and hold back his feelings of depression or anxiety I would have expected that this would have passed by then and there would have been every reason to expect the worker to reveal what it was that was troubling him. It is to be noted that the worker had identified on the claim form that apart from the threats from a non-working director "poor results of selling business" was a matter that led to his disease. Evidence was led suggesting that the valuers had indicated that the business was estimated as being worth of the order of $325000 to $365000 and that its eventual sale realised only $150000. Importantly there is no mention on the claim form of difficulties in carrying out his employment duties with the employer as leading to his anxiety or depression.
6. It is also notable that in the interview that took place with assessors in March 2000 the worker explained as to why he made the claim. He said TB 63:-

"...And then we had another whole pile of crap...crap occurred, that contract fell through, through Union intervention and one of our workers creating a storm in a teacup. We lost that contract, so that's about when I went onto WorkCover."

1. Another matter which I find of significance, is the following question and answer in that record of interview (TB 64).

"Q.50 Would it be fair to say that...I mean obviously we won't be talking a miraculous recovery, but once the business is sold and once you get away from this fellow, you expect that everything will return to normal fairly swiftly?

1. A. I think so, yes. The business and the sale of the business and the Directors are the problem that I've...as I see it, and I would assume that once that's gone so has the problem."

1. When I add these to the statements that the worker made to the investigator that I have referred to earlier indicating that his work was not the issue but rather it was Mr Popow it leads me to the conclusion that much of the worker's evidence about the impact of work related stressors was the product of reconstruction on his part rather than reflecting an accurate account of the significance of these events.
2. I have every sympathy for the worker and his plight. He has clearly suffered much through his ordeal and work clearly played its part. However Parliament has seen fit to treat psychiatric disabilities differently to other disabilities such that mere work contribution is not enough to attract the benefits that the Act provides.
3. Having carefully considered all of the evidence I find that it was the issues relating to the worker's relationship with his co-director and matters relating to the business and the sale of the business that were the really significant events that led to the worker's stress. Whilst I accept that events related to his capacity as an employee played their part, in weighing them all up, I do not think it can be said that the worker's employment was a substantial cause of the disability.
4. In my opinion, the threshold necessary to support a claim for compensation pursuant to s 30A, has not been met. Accordingly, in my opinion, the Corporation was right to reject the worker's claim and I determine accordingly.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.