Day v Electronik Fabric Makers

Supreme Court of Victoria|2004-02-16|Before: NETTLE J

Accident compensation - Workers compensation - Injury - Reactive depressive disorder - Whether reactive depressive disorder an "injury" - Whether employment with the first respondent was a significant contributing factor - Accident Compensation Act 1985, ss.5(1), 5 (1B) and 82(1) Appeal - Appeal from Magistrates' Court - Whether Magistrate erred in law in failing to hold that employment with the first respondent was a significant contributing factor - Magistrates Court Act , ---

This is an appeal from a final order of the Magistrates' Court at Melbourne made on 2 April 2003 whereby the appellant's claim to be entitled to compensation pursuant to s. 82(1) of the Accident Compensation Act 1985 was dismissed.

The appellant was born on 18 April 1954 and at relevant times was 48 years of age. She left school at 17 years of age after obtaining her leaving certificate and thereafter worked more or less continuously in a succession of jobs in sales and related activities. Most of her positions were as an employee but between July 1996 and 1998 she endeavoured to establish a business on her own account, called "Photo Watch". Unfortunately it ended in failure and as a result she lost the house in which she was living and was left with debts of some $25,000.

The appellant was also married three times: the first time, between 1973 and 1976, when she and her first husband divorced; the second time between 1986 and 1995, when her second husband died of cancer; and the third time, beginning in 1999, so that she was still married at the time of the events in issue. She had one child from her first marriage, who was approximately 30 years old and had children of her own at the time of the events in issue, and who was something of a problem for the appellant.

The first respondent was at relevant times in the business of manufacturing and selling clothes and fabrics. The business had once been owned (at least indirectly) and managed by Hymie Wein, but some time before the events in issue it had encountered financial difficulties and was put into receivership. While the business was in receivership it was conducted by Carmel Flannery on behalf of the receiver. Hymie Wein's son, Jonathan Wein, then purchased the business from the receiver and re-established it in the first respondent under his own direction. He allowed Hymie Wein to stay on as a sort of family elder and consultant, and he retained Ms Flannery as general manager of the business.

The appellant began work with the new business in August 1999, as a sales manager. Her role was to establish contacts with customers and to maintain customer relations and deal with customer complaints. She was for some time successful in the job and by all accounts she functioned effectively until about 2002. Even in 2002 she earned $20,000 in commissions and $48,0000 in salary, as well as being provided with a company car, and that was regarded as a substantial package. But by about July 2002 she found herself so stressed and emotionally overwrought as to be unable to continue to work, and she has been off work since that time.

The appellant's claim before the Magistrate was that her stress was a reactive depressive disorder of the mind, which was sustained in the course of or arising out her employment with the first respondent, and of which her employment was a significant contributing factor (and hence that it was an "injury" within the meaning of s.5(1) of the Act and compensable under s. 82(1) of the Act). As she put her case, there were three things that occurred in the course of her employment which gave rise to the stress: first, the fact, as she alleged, that she had been directed to tell lies to customers and to act unethically by accepting orders when she knew that delivery dates could not be met; secondly, alleged misbehaviour on the part of Carmel Flannery and the alleged inaccessibility of Jonathan Wein; and, thirdly, the fact, as she alleged, that she had concerns about the financial position of the first respondent. It was also said on her behalf that she had never before beginning work with the first respondent suffered from any psychiatric or psychological problems.

The respondents' position was that they did not deny that the appellant had suffered a reactive depressive disorder with associated anxiety or that it had caused the appellant to become totally and permanently disabled. But they denied that her condition was compensable. Their contention was that her condition was due to personal and domestic problems the result of the appellant's and her husband's straitened financial circumstances and the appellant's problems with her daughter.

In the result, the only question for the Magistrate was whether the appellant's employment with the first respondent was a significant contributing factor.

After referring to several of the decisions on the meaning of "significant" in the context of s. 82 [1], and to what his Worship perceived to be a difference of views between Ashley J in Popovski and Winneke P in Zammit, the Magistrate determined that it was unnecessary to determine which view he should follow. In his Worship's opinion it was sufficient to resolve the case that the appellant bore the burden of establishing her claim on the balance of probabilities and he was not satisfied that she had discharged that burden of proof:

"even if (Ashley J's) interpretation or construction of the word is the correct one, and even if it is of a lesser standard than the one that President Winneke seems to prefer...".

The appellant now advances five grounds of attack upon the Magistrate's decision, based upon the questions of law identified in the Master's order:

(1) First, that the Magistrate erred in law in holding that the effects of unethical behaviour in which the appellant was required or at least perceived that she was required to engage, were not a cause of her condition.

(2) Secondly, that the Magistrate erred in law by failing to take into account the effects upon the appellant of the appellant's belief as to the financial position of the first respondent.

(3) Thirdly, that the Magistrate erred in law in failing to consider evidence given by one Nicole Stock that the appellant had complained to Stock of work related rashes and further or alternatively erred in law in failing to give reasons for the rejection of that evidence.

(4) Fourthly, that the Magistrate erred in law in failing to take into account the effects upon the appellant of an incident involving Hymie Wein and another incident involving Carmel Flannery.

(5) Fifthly, that the Magistrate erred in law in holding that because the instructions which the appellant gave to her treating psychologist and to her consulting psychiatrist were untrue, their opinions as to the cause of her condition were of no assistance, or alternatively that his Worship erred in law in failing to give adequate reasons for the rejection of their opinions.

Two other questions of law identified in the Master's order were abandoned in the course of argument.

The appellant's case before the Magistrate was opened on the basis that the appellant would give evidence that both Carmel Flannery and Hymie Wein had instructed her to lie to clients as to when the company might deliver goods and in relation to quality problems, and that those instructions caused the appellant considerable concerns (and presumably, therefore, stress) as to the honesty of her dealings with customers.

The evidence actually given by the appellant about the instructions received, was as follows:

"All right. In terms of instructions, were you instructed as to what to do about what to say and what to do with customers?---Which point? "On quality problems or on delivery, time of delivery of garments? ---I was given basically the information to deal with these problems except from Hymie Wein and Hymie Wein caused a situation. It was a constant problem, where he would say that I had to lie, that a customer might ring for say 1000 metres of fabric and they would need it by five days to win an order and I would do the homework. I would find out whether we had the yarn or the fabric or when it can be knitted and dyed and so on and I would find out that we couldn't produce it for maybe three or four weeks and I was instructed from him that I wasn't allowed to tell the customer that, that I was no salesperson because I was to take the order an any cost. Sometimes he would ring me half a dozen times during the day to see if I had rung the client to tell them that I could deliver it and I would say, `no, I haven't. I haven't. Just leave me alone, etcetera.' But as I was saying, form his point of view you took the order at any cost and of course this is where the stress (lay)---" "And did you ever take order where you felt you couldn't meet the delivery?---I tried not to. I always tried to be honest with the customer within a few days. Obviously you would say to a customer, if there was some flexibility, maybe a day or two, or the customer might be adamant because of their manufacturing that it had to be ready by this date for them to be able to meet their commitment. So I would say to them, if you want it on Friday, I think we could get it to you maybe by Monday, you make the decision. So that sort of thing. "

The appellant did not depose to any instructions given to her by Carmel Flannery to tell lies to customers.

Hymie Wein was not called to give evidence, but Jonathan Wein did give evidence. In evidence in chief he refuted the suggestion that the appellant was given instructions to tell lies to customers:

"MR BATTEN: Mr Wein, it is suggested in this case by Mrs Day that she was instructed either by Carmel Flannery or your father to tell her customers, to tell her clients that deliveries were to be sooner rather than later, that effectively she was instructed to lie to clients?---No, she was never - no. "It is suggested in this case that your father directed persons to deliver sub-standard quality product, a product which he and others knew didn't meet with the client's contract specifications. To deliver that product willy nilly to customers"---No."

The Magistrate rejected the appellant's evidence that she was required to perform unethically, and although there is no transcript of that part of his Worship's reasons for judgment (because it is said that the tape broke!), a note taken on behalf of the respondent, which it is agreed is accurate, records the following:

"I reject entirely Mrs Day's evidence that she was required to perform unethically and if she did, she did so on her own initiative. And if she did, she has herself to blame and not the workplace and if she fudged delivery dates in order to get an order, that she could not fulfil then she behaved in a silly fashion. If her behaviour was unethical, I am not prepared to say. She knew before she took an order that she could not comply. She knew all her efforts wasted and the reputation of the company suffered."

In the written submissions filed on behalf of the appellant in advance of the hearing of the appeal it was contended that the Magistrate's finding that the appellant was not "required" to lie to customers was insufficient to resolve the issue, and that the Magistrate erred by failing to go on and consider what if any other pressure the first respondent had put upon the appellant to lie and what effect that may have had upon her. The point as it was explained in argument was that being "required" to do something is not necessarily the same thing as, for example, being "requested" to do something, and it may be that even though Hymie Wein could not have "required" the appellant to lie (because Hymie Wein had no authority to impose requirements on behalf of the first respondent), Hymie Wein may still have "requested" her to lie and the request may have been a cause of the stress which she suffered.

In oral argument a further contention was advanced that, even if the appellant had not been "required" or "requested" to lie, but had acted of her own volition, the Magistrate erred in failing to consider that the fact of so acting may itself have been a cause of stress of which the appellant's employment was a significant contributing factor.

I reject the original contention. The way in which the appellant put her claim about being required to engage in unethical conduct was that she had been told by Hymie Wein and Carmel Flannery to tell lies to customers. But as has been seen, she offered no evidence that Carmel Flannery told her to lie. That being so, the Magistrate's emphatic rejection of her evidence about being "required" to lie to customers can only mean that he did not accept that Hymie Wein had "requested" her to tell lies to customers. So far as that part of the case went, the authority of Hymie Wein was simply not in issue. The question was one of fact, as to whether Hymie Wein told the appellant to lie, and the Magistrate found that he did not.

It is not suggested that it was not open to the Magistrate to reject the appellant's evidence on the point, or that it was not open to the Magistrate to accept the evidence given by Jonathan Wein in preference to the evidence of the appellant. Moreover, given the absence of any cross-examination of Jonathan Wein on the point, it is difficult to see how such a suggestion might have been maintained[2]; despite the absence of Hymie Wein from the witness box.

I consider, however, that the second contention has merit. As it appears from the part of the notes of the Magistrate's reasons which I have set out above, the Magistrate found that the appellant might have misled customers about delivery dates, but then went to hold that, in as much as the appellant had taken it on herself to do so, she had only herself to blame. If that were the Magistrate's process of reasoning, I think it to have been in error.

Assuming that the appellant had engaged in such practices, the question was whether her conduct and such stress as it may have imposed upon her was causative of her condition. Culpability was irrelevant. It was not to the point that she may not have been instructed so to act, or that she acted in "a silly fashion" or with or without any insight as to the probable reaction of customers upon learning that they had been misled.

It is possible that the Magistrate's reference to fault is devoid of any consequence. On one view of the Magistrate's reasons, his Worship was not satisfied that the appellant engaged in the practice of misleading customers, whether on the basis of instructions or of her own volition. If so it could be that whatever his Worship intended to convey by his observations about fault is of no more than academic interest. But that is not the only construction of which his Worship's observations permit. An equally and possibly more probable view of them is that his Worship's explicit lack of preparedness to characterise the appellant's conduct as unethical was an implicit acceptance of the possibility that the conduct had occurred.

It is also true, as the respondents submitted, that the hearing before the Magistrate was a curial proceeding of which the point was to determine inter partes the questions of fact and law identified by the parties as in issue. Contrary to the assumption that appears inherent in some parts of the appellant's written submissions, the proceeding was not in the nature of an administrative decision or of an administrative review of a decision to refuse compensation. Whatever may be the obligations of an administrative decision maker or administrative tribunal to inquire into issues not identified by parties before them[3], there was no error of law on the part of the Magistrate in confining himself to issues identified by the parties[4].

But it is necessary to bear in mind that s. 5(1B) of the Act required the Magistrate to take into account all of the factors identified in that provision and, as a consequence, that the question for the Magistrate was not just whether his Worship was satisfied that the appellant had been instructed to mislead customers, or even perhaps whether she had done so of her own volition. The question was: considering the presence or absence of circumstances fitting each of sub-paragraphs (a) to (g) of the section, and such other findings as were relevant, had the appellant shown that her dealings with customers was a factor which contributed to her condition to a significant degree[5].

As matters stand it is not possible to determine from the Magistrate's reasons whether he followed the process of reasoning dictated by s.5(1B) or fell into the error earlier identified of dismissing the effects of the appellant's conduct on the ground that she had only herself to blame. It is therefore not possible to conclude that his Worship erred in the manner contended. But there is in my opinion sufficient doubt about it to make it more than a mere possibility. For my own part, the fact that an employee perceived it as being necessary to mislead customers as to delivery dates, and the type of stresses likely to result from that, might well be thought capable of contributing significantly to the sort of reactive depressive disorder later suffered by the appellant. And the fact that the Magistrate mentioned culpability is a significant indication that he considered it to be relevant. If his Worship were not persuaded that customers had been misled, why mention fault at all?

In Perkins v County Court of Vicoria[6] it was said that:

"The degree of detailed reasoning required of a tribunal depends upon the nature of the determination, the complexity of the issues and whether the issues are ones of fact or of law or of mixed fact and law, and the function to be served by the giving of reasons. As to the last matter, reasons which are required to enable a right of appeal on questions of fact to be exercised might not be required if an appeal is limited to questions of law. In Soulemezis v Dudley Holdings Pty Ltd the applicant appealed against the finding made in the Compensation Court of New South Wales that she was "fit for work" after a particular date, contending that the judge committed an error of law in failing to give any or sufficient reasons for that finding. The right of appeal was given only in respect of a question of law. It was held that the duty to give reasons for a decision in respect of a finding of fact from which no appeal lay was sufficiently satisfied by the giving of grounds for the finding without detailed reasoning in support of the findings."

Taking all that into account, I do not consider that the Magistrate's reasons in this case sufficiently disclose the grounds on which was based the finding that the appellant had not established that her conduct in misleading customers was a significant contributing factor. So far as appears there are at least two routes by which the Magistrate could have reached that conclusion, and at least one of them would be affected by error. Consequently, in the circumstances of this case, and in this respect, I regard the failure of the Magistrate to make clear his chain of reasoning as an error of law in itself.

That part of the appellant's case which concerned the financial position of the first respondent was opened to the Magistrate as follows:

"The plaintiff's concern in relation to solvency of the company also related to creditors of the company who complained to her and sought assurances from her that they be paid. In particular the company had moved premises and people such as painters and the like who had done work in the new premises rang her up and would be chasing their bills to have them paid. The plaintiff found that she was coping less and less well and things came to a head on 23 July 2002 in which she essentially lost it in a meeting at the company and that she went and saw Dr Grosman who immediately referred her to Christine Ffrench, the psychologist, who the plaintiff has been seeing ever since and first saw...on 6 August 2002."

The appellant also gave evidence that the company suffered from shortage of funds and that its financial deprivations affected the rate of production and the ability to pay creditors.

Jonathan Wein gave evidence too that the company was under financial pressure and that it caused some difficulty in the day to day running of the company and resulted in significant problems with three customers, although he disagreed that the problem of late delivery to one of those customers was as great as had been suggested. Stanley Owen Carroll, who had been the operations manager of the first respondent, also said in evidence that the company was in difficult financial times in 2002 and that there was pressure on sales staff.

The Magistrate found that the first respondent had suffered from financial difficulties but he rejected the idea that the appellant had any real concerns about them. He noted that she had no equity in the company and that she had said that she had loved her job and that she had decided to stay with the company at the time at which the first respondent's financial difficulties were said to be causing the greatest concern, even though she had been offered a more lucrative position with one of the first respondent's competitors. His Worship's point, although not expressly so stated, seems to be that if the financial position of the first respondent had caused anything like the sort of concern needed to constitute a significant contributing factor, one would have expected the appellant to leave.

In the appellant's written submissions it was contended that the process of reasoning entirely misses the point, and that the Magistrate erred fundamentally in failing to consider the appellant's perception of the flow-on effects of the financial deprivations upon orders and commissions.

I do not agree. I doubt that I would have taken the same view as the Magistrate of the effect upon the appellant of the financial difficulties of her employer. I am inclined to think that whether or not she had equity in the operation and despite her decision not to jump ship, the sorts of financial difficulties it was conceded existed were capable of imposing stress upon one whose responsibility was to attract new customers and to maintain and satisfy existing accounts. But of course the question is not whether I would have come to the same view as the Magistrate[7]. For the purposes of this appeal the question is whether it was open to the Magistrate to take the view of the facts which he did[8]; and I conclude that it was. Views about the effects of economic conditions upon an employee are almost bound to differ, and while generally speaking I may consider that financial pressures of the type in question are likely to have significant effects upon employees, it was the Magistrate's responsibility to decide the specific question of fact of whether they had such an effect upon the appellant. His Worship approached that task, as he should have, upon the basis of his perception of the whole of the evidence; including his perception of the appellant as a witness. He was entitled to take the view which he did.

The appellant's case was opened to the Magistrate on the basis that the effects of the stress which the appellant alleged she suffered at work caused her to suffer rashes while she was still at work. But the appellant did not give any evidence herself in support of that suggestion. The only evidence on the point was given by Nicole Stock. Stock had worked for the first respondent as a sales executive responsible to the appellant between January 2001 and May 2002. She deposed to difficulties the result of not being able to fill customer orders on time and also to difficulties in her dealings with Carmel Flannery. She was asked if the appellant had made any complaints to her about coping with the work environment, and she said that she had. She also deposed that both she and the appellant had suffered from rashes while she was working for the appellant and that she had chosen to leave the first respondent because of the stress from which she suffered.

The Magistrate accepted Stock's testimony that she had been verbally abused by Carmel Flannery but his Worship said, in effect, that he found the remainder of Stock's testimony to be unreliable. He rejected her testimony that she had left the first respondent because of stress and found that she had left because she wanted to improve her position in the plastics industry. It is implicit (although the Magistrate did not say so in terms) that his Worship rejected her testimony that she had seen that the appellant was suffering from rashes.

The appellant contends that the Magistrate erred in law by ignoring Stock's evidence that the appellant suffered from rashes or alternatively by rejecting her evidence on the point without assigning reasons for its rejection. In the appellant's contention it was not open to the Magistrate to accept one part of the witness's testimony and to reject the remainder.

I reject the contention. To begin with there is no error in accepting part of a witnesses testimony and rejecting other parts of it. Juries are customarily directed that they may do just that according to their perception of the evidence[9].

In the second place, it appears to me that the Magistrate did assign a reason for rejecting Stock's testimony about rashes, which was that he perceived her to give false evidence on another issue and so was not prepared to accept her testimony about rashes. It was open to the Magistrate to take that view.

In the third place, as was observed by Mahoney JA in Soulemezis v Dudley (Holdings) Pty Ltd[10] the weight which a judge will give to the evidence of a witness will often not be capable of rationalisation beyond the statement that having heard the witness the judge is not satisfied that he should accept what the witness says. The weight which a judge gives to a particular fact may be affected by his experience of the significance of that fact in the order of things. Thus his reasons in a particular case may partake as much of intuition based on experience as on formal and deductive reasoning.

That is not to deny that in cases of a conflict of testimony on a substantial point it is incumbent upon the judge to deal with the conflict of testimony and plainly state his or her reasons for preferring one witness to the other. In cases of that kind it will rarely if ever suffice for the judge to say only that he or she prefers the evidence of one to the other. But that is not this case. Here the only evidence on the point was Stock's evidence and, as I say, I consider that it was open to the Magistrate to reject her testimony for the reason which he gave.

(4) The incidents with Hymie Wein and Carmel Flannery

The appellant's case before the Magistrate was opened on the basis that Carmel Flannery was an aggressive personality and "would fly off the handle quickly and in particular, would abuse Jonathan (Wein)...but was also short and irascible with all staff including the plaintiff". It was also said that Ms Ffrench and Dr Cole would be called to give opinion evidence as to the cause of the appellant's condition. As will be seen, their opinions were based on instructions given to them by the plaintiff that she had been caused stress at work by Carmel Flannery's behaviour; by the fact, she said, that Jonathan Wein was not available to consult with her; and the pressure which she said was put upon her by Hymie Wein to lie to the customers.

The appellant gave evidence that she was abused by Flannery and Hymie Wein. She deposed that Flannery abused her by slamming doors, screaming, refusing to speak to her and generally behaving irrationally. She said that Flannery had often behaved in that fashion although the frequency had reduced to some extent towards the end of her time with the first respondent. She deposed that Hymie Wein verbally abused her on average a couple of times each week and that the frequency increased the longer time went on. According to her he had telephoned her frequently to pressure her to tell lies to customers and on one occasion he had abused her in front of customers, clients and staff when she proposed accepting an offer of 20c or 50c per metre for old stock.

Carmel Flannery gave evidence in which she denied that she acted irrationally or otherwise in the manner alleged and deposed that Jonathan Wein was available for consultation. Jonathan Wein gave evidence corroborating that Flannery did not act irrationally and that he was available for discussion. He accepted that there had been one incident involving Hymie Wein and the appellant in which Hymie Wein had berated the appellant for accepting a low offer for old stock and he said he considered that his father had gone too far on that occasion. He believed however that his father had apologised and he said that the appellant had never complained to him about his father's conduct.

The Magistrate rejected the appellant's evidence about her relations with Carmel Flannery:

"I find that (Flannery) was... a highly competent person and fully equipped to undertake the role (of general manager). But I also have to say of her demeanour in the witness box that she was impressive. And I reject because of her evidence, the way she gave her evidence, and the fact that other people who were present at all relevant times support her in this regard, that she is not aggressive, that she is not abusive, that she is not aloof, that she is not given to hysteria, let alone screaming or slamming doors, that she was always available, if not in person then by mobile telephone, and that there was, in fact, no cause on her behalf for low morale. "I also find though that there were times that she may have been tense, there may have been times that she raised her voice, there may have been times when she did slam a door, and there may have been times when she asked to left alone so she could do a particular task or job of work, and in the latter, or in the last regard, that she may have done that on a regular basis. In other words, I prefer at a certain time each day not to be disturbed unless by an emergency because I do my particular job of work at this time and I want to get that out of the way first. None of which I find to be behaviour which is in any way unusual, let alone repressive or intimidating, and certainly could not be described as abusive. "It seems she was guilty, regrettably I have to say, of using swear words from time to time, but I find that wasn't the rule, it was rather the exception, and regrettably she, strangely enough, because she is a lady, used on at least one occasion a description which would be regarded today as politically incorrect and, indeed, insulting, and of course involved gender bias, namely, calling Ms Stock a silly blonde. And I don't wish at all to denigrate the discomfort that one might feel when that occurs at the hands of one's superior, but in short I reject Ms Day's evidence that she was subjected to the sort of behaviour by Ms Flannery that she accuse her of, and which she complained of the her psychologist, and the legal medico specialist who saw her."

The Magistrate appears also to have rejected the appellant's evidence that she was overborne by the conduct of Hymie Wein:

"... I am prepared to accept that he was an old and cantankerous, out of date, outmoded, and sometimes rude man. I also find he was a relic of the past. He was the old trophy that remained from the old team left on the shelf. He was the old coffee mug perhaps. Perhaps trophy is the wrong word. He was the old coffee mug that the old owners left because it wasn't worth taking. He was there because he was Jonathan's father." "It was his business to offer his opinion, (but) these opinions were understood by all as the opinions of an old man. At worst, he was an irritation from time to time because of the way he expressed his opinions. "On most occasions, apart from the fact that she did not like him - personal chemistry - I find that she (the appellant) liked working for the company. This was typical irritation that one finds in the workplace."

In view of what the Magistrate said, I am unable to accept the appellant's contention that the Magistrate failed to consider the effects of the alleged incidents on the appellant. The thrust of the Magistrate's reasoning, as I read it, is that whatever incidents there may have been as between the appellant and Carmel Flannery and Hymie Wein, they were of such a commonplace and low level variety as to be incapable as causing significant stress.

But I must say that I regard the Magistrate's conclusion as surprising, if only because it attributes to the appellant a degree of emotional robustness that it is hard to think was warranted in the circumstances.

As the Magistrate observed elsewhere in his reasons, the appellant was already under considerable pressure when she came to the company and was subjected to even more when she lost her home:

"When she came to this company, or shortly after arriving at it. She had the following personal problems. And I will identify them simply in point form. She had some financial losses or debts sustained in her own business. I am speaking of a business called Photo Watch, that she owed, according to her, some $25,000. She had financial pressures as a result and also because her husband's business, which was a new one, he having sold his existing business and started a fresh business, was not blooming at the time, and certainly wasn't booming. He had hopes for it, but was not really doing well. "She had concerns about her daughter's family problems, her daughter having had a number of unsatisfactory relationships, and there being young children, and one of those relationships ending in a Court case in which the daughter sought a crimes family violence restraining order..." "The stresses of them living together, especially since the daughter seems to have placed some good deal of burden on the mother, and if not, then looking after the children, then certainly financially, by not paying rent, by having activities which were noisy and disruptive to her and her husband, that is the mother and her husband, and which led at times to friction and even estrangement between her and her daughter, and her and her grandchildren, more particularly. "So much I find on the balance of probabilities to be the facts..." ... "...What had changed in July 2002?...She had to leave her house...A house that (was important) in her life...her substantial asset. Her dream home...That caused rashes upon her selling it. It must have been a tragic loss for her given her history..."

In those circumstances, I should have thought that the sort of work pressures which the Magistrate characterised as common place could well have constituted a significant contributing factor of the appellant's reactive depressive disorder; even if they might not have done so in the case of someone not subject to similar personal and financial pressures. Nothing in workers compensation law suggests that an objective standard should be set up when considering the compensability of injury or that a factor need be the sole or dominant factor causing injury in order that it qualify as a significant contributing factor even while not the sole or even dominant contributing factor[11].

The question is, however, one of fact and degree and, despite my reaction to the Magistrate's decision I am unable to conclude that it was not open to the Magistrate to take the view that he did. Nor, despite my misgivings, is it possible to say with certainty that the Magistrate's conclusion was affected by the adoption of an objective standard or misconception of the essential elements of a significant contributing factor. There is nothing apart from the conclusion to suggest that his Worship may have imposed an objective standard or conceived that because home pressures were great, it necessarily followed that work pressures could not have been a significant contributing factor. That is not enough.

I have already referred to the fact that the appellant gave instructions to her treating psychologist and consultant psychiatrist that she had been caused stress at work by Carmel Flannery's behaviour; by the fact, she said, that Jonathan Wein was not available to consult with her; and by the pressure which she said was put upon her by Hymie Wein to lie to the customers. Each expert had thus formulated their opinion on that basis and implicitly on the basis that there were no other facts or circumstances likely to have been responsible for the appellant's condition.

Ms Ffrench's evidence on the instructions given her was as follows:

"Yes. Could you be specific in relation to her complaints?---Okay. She said that her employers were verbally aggressive and abusive to her, that she was unable to discuss things with them, any issues that she had, any problems, they wouldn't discuss it with her, that the general manager in particular became quite- and her words - hysterical and aggressive when she tried to discuss things with her. The second part, which was what they were asking her to do, Raelene felt that the ethical standards of the company were not too high. She said that her were asking her to lie to customers, to promise them anything just to get a sale, make promises that couldn't be kept, and that the employers and Raelene knew couldn't be kept, but still said that she should do that to the customer, and Raelene found this very distressing because it compromised her sense of professionalism her ethical standards. "All right. Was there, in relation to the managing - you have spoken about the general manager - in relation to the managing director did she have any concerns about him?---The managing director, yes, she said that he just wasn't available, she couldn't get in touch with him. "And did she have any concerns about staffing levels?---That the - well, it was all tied in with, she suggested, the morale of the company was very low, there had been a lot of retrenchments going on. "And was there anything else at the workplace that was causing her concern?---They were the major things. There were the day to day things. The company had apparently moved, and that was a fairly stressful kind of a time. But the main issues for her were the way she felt she was being treated, and the compromising of her ethical standards."

Based upon those instructions, Ms Ffrench expressed the opinion that the appellant's condition was "caused by the treatment she received by her employers and the conflict which she experienced between her ethical beliefs and her employers' demands".

Dr Coles' opinion was based upon similar instructions although, as he said in cross examination, he had also taken into account the effect of the appellant's domestic circumstances. On that basis he was of opinion that the appellant's work was a significant cause of her condition. As he put it:

"...I have acknowledged that domestic matters had made a significant contribution towards her condition. But there is a great deal of other material that she told me which may or may not be accurate that indicates that her employment also played a significant part in the development of... (her condition)".

In rejecting both opinions the Magistrate said, in substance[12]:

"When the plaintiff said she loved the job I think she really meant it. She saw the troublesome company as having a viable future. She loved it enough to ignore Wein Junior to stay, Ms Flannery's treatment and the subsequent clash about low morale and being left unsupported (after Nicole Stock left). Despite all this she loved the job enough to stay on. This cannot be reconciled with complaints made (to) the psychologist, and which she rehearsed before this court. The plaintiff did fail to give an extensive and accurate history to doctors and I am satisfied that she did so deliberately. It was not up to the Court to find out why she did not give an accurate history, choosing to treat those problems as unimportant (sic, more probably: or why she chose to treat some matters as unimportant). To that extent, Ms Ffrech and Dr Coles' opinions were of no help to the Court."

The appellant accepts for the sake of argument that it was open to the Magistrate to find that the appellant misled Ms Ffrench and Dr Cole and that they proceeded on the basis of misleading instructions. But the appellant contends that before the Magistrate rejected the opinions it was incumbent upon his Worship to look at all the evidence as to work stresses and decide whether the experts might have reached the same conclusion on that basis of events.

I do not accept that submission. One need hardly cite authority for the proposition that if an expert opinion is to be of any value the facts on which it is based must be proved by admissible evidence[13]. The logic of the proposition is obvious. Consequently, where, as here, medical opinions are premised upon acceptance of the appellant's account of her history and complaints, and that account is rejected, there is no reason why the trial judge is required to give any weight to the opinions[14].

That does not mean that a claimant under s. 82(1) cannot succeed without the benefit of expert opinion. At least in principle, and in some cases in practice, it would be open to a claimant to persuade a court by other forms of evidence that employment was causative of condition. But, in this case, once the Magistrate rejected the appellant's version of events, as it is conceded it was open to him to do, and the expert opinions went with it, there was simply was no other basis left open to the appellant on which the Magistrate could have found in her favour.

Despite my misgivings about a number of aspects of the Magistrate's reasons, it follows from what I have said that the only error of which I am persuaded is that the Magistrate erred in the first respect identified by the appellant. Nevertheless, I

think the error to be significant. It may be that the Magistrate would have come to the same determination notwithstanding the error. At least the tenor of his Worship's reasons suggests that he might have done so. But, plainly, his Worship would not have been bound to come to the same conclusion and there is no other complete answer to the appeal that occurs to me. This therefore is not a case in which the appeal may be dismissed notwithstanding that the answer to a question of law framed by the appeal is favourable to the appellant.

I have considered whether I am able to resolve the substance of the dispute, but I have concluded that I cannot. It would be different perhaps if I could be confident that the Magistrate had made a finding one way or the other as to whether the appellant did engage in the conduct of misleading customers. But as I have endeavoured to explain earlier in these reasons, there is no certainty about that one way or the other. And I do not consider that it is possible, or at least it would not be appropriate for me to determine that question myself on the basis of the materials before me. Whatever view one takes about the unethical conduct issue may well affect one's view upon the expert opinion issue, and possibly other issues, and so in effect it would not be enough to revisit the one issue in respect of which error has been demonstrated without also reconsidering the other issues. The matter must be remitted for rehearing.

For the reasons given, the appeal should be allowed and the matter should be remitted to the Magistrate's Court, differently constituted, for hearing and determination in accordance with these reasons.

[1] Lobjoit v Victoria Police, unreported, Ashley J (23 March 1998); Poposvski v Ericcson Australia Pty Ltd [1998] VSC 61; Greeves V HIH Winterthur Workers' Compensation (Vic) Ltd [2000] VSCA 68; (2000) 1 VR 344; Tranport Accident Commission v Dello Russo [2000] VSC 275; TGT Transport v Zammit (2001) 2 VR 312; Hegedis v Carlton & United Breweries [2000] VSC 380; (2000) 4 VR 296

[2] cf. Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505,507

[3] See Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at p.39; Transport Accident Commission v Bausch [1998] 4 VR 249 at pp 263-264

[4] Ericcson (Australia) Pty Ltd v Popovski [2000] VSCA 52; (2000) 1 VR 260; at [14]

[5] Popovski v Ericsson Australia Pty Ltd, supra at [80]

[7] TAC v Hoffman [1989] VicRp 18; [1989] VR 197 at p. 199; Ericsson (Aust) Pty Ltd v Popovski ibid; Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at pp. 450-453

[8] Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at pp.77-8; S v Crimes Compensation Tribunal [1998] 1 VR 83 at p.89

[9] See also Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [136]

[11] Popovski v Ericsson (Australia) Pty Ltd, supra at [70]

[12] There are several different versions of his observations in the notes in evidence before me. This is a synthesis.

[13] Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 at p.647; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 at p.846

[14] Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 at pp. 1606 and1607, [44] to [47]

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Judgment (97 paragraphs)

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Cases Cited (12)