HRNG ADELAIDE, 8 August 1995 #DATE 8:9:1995 #ADD 28:11:1995

JUDGE1 DOYLE CJ This is an appeal by leave against a decision of the Workers Compensation Appeal Tribunal ("the Tribunal"). By virtue of s100(3) of the Workers Rehabilitation and Compensation Act 1986 ("the Act") the appeal is limited to a question of law.

2. By its decision the Tribunal allowed an appeal against a decision under the Act by a Review Officer. The Review Officer had confirmed a decision of an exempt employer. The Review Officer's decision was that the present respondent (I will refer to him as "the worker") had not suffered a compensable disability under the Act. The claim made by the worker under the Act, and the claim in respect of which the Review Officer made a determination, was for a disability that consisted of an illness or disorder of the mind caused by stress. The claim and the proceedings before the Review Officer and before the Tribunal, and the outcome of this appeal have been treated as governed by s30(2a) of the Act which provides as follows: "(2a) A disability that consists of an illness or disorder of the mind caused by stress in compensable if and only if - (a) stress arising out of employment was a substantial cause of the disability: and (b) the stress did not arise wholly or predominantly from

• (i) reasonable action taken in a reasonable manner by the
  employer to transfer, demote, discipline, counsel,
  

retrench or dismiss the worker; (ii) a decision of the employer, based on reasonable grounds, not to award or provide a promotion, transfer or benefit in connection with the worker's employment; or (iii) reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment."

3. Section 30 is the first provision contained in Division 1 of Part 4 of the Act. This Division specifies the conditions under which disability is compensable.

4. After the events giving rise to the claim by the worker occurred, the Act was amended, but the amendment does not apply to the disability alleged by the worker: see Workers Rehabilitation and Compensation (Administration) Amendment Act 1994 s20. (By this amendment a new section 30A dealing with stress-related disabilities was inserted). Subsequent to the decision of the Tribunal the Act was amended again by the Workers Rehabilitation and Compensation (Miscellaneous Provision) Amendment Act 1995. A further new s30A was inserted. By s34 of the amending Act this amendment does apply to disabilities arising from traumas occurring before the commencement of the amendment, but does not affect the principles on which weekly payments for a period of incapacity falling before the commencement of this Act are assessed.

5. It is not clear to me whether the worker's claim was for weekly payments (any such claim would be for a period of incapacity falling before the commencement of the latest amendment). However, the latest and current s30A is in terms which appear to raise no different issues from those which arise under s30(2a) and accordingly it seems unnecessary to me to hear the parties further on the point. I propose to deal with the matter on the basis that s30(2a) is the relevant provision.

The Review Officer found that the worker had suffered from a disability, namely a depressive illness, that consisted of an illness or disorder of the mind caused by stress. The Review Officer found that stress arising out of the worker's employment was a substantial cause of the disability. The Review Officer found that the stress was caused by reasonable action taken in a reasonable manner by the employer to discipline the worker. Accordingly, the Review Officer found that the claim failed.

The Tribunal appears to have accepted the findings of the Review Officer as to the cause of the disability. However, the Tribunal came to the conclusion that the conduct of the employer which caused the stress was not reasonable action taken in a reasonable manner by the employer to discipline the worker. Accordingly, it was established to the Tribunal's satisfaction that the stress did not arise wholly or predominantly from such action and the worker's claim succeeded. The Tribunal allowed the appeal against the decision of the Review Officer.

On appeal before this Court the appellant argued three points. First, that the Tribunal had misconstrued s30(2a)(b) of the Act and had wrongly placed the upon the employer the burden of establishing that the action from which the stress arose was reasonable action taken in a reasonable manner to discipline the worker. Secondly it was argued that the Tribunal had misconceived its functions and had wrongly varied or displaced findings made by the Review Officer. Thirdly, it was argued that in any event the Tribunal had erred in concluding that the action of the employer was not reasonable action taken in a reasonable manner to discipline the worker.

My reading of the reasons of the Tribunal does not indicate to me that the burden of proof under s30(2a)(b) of the Act, wherever it might be placed, played a part in the decision made by the Tribunal. However, the manner in which the Tribunal expressed the issue does suggest that it took the view that the burden of proof of the matters raised by s30(2a)(b) rested upon the employer. Moreover, later decisions of the Tribunal indicate that it has taken that view. In the matter of Summers v The Corporation (Colliers Jardine) A.5/1995 Gilchrist DP at p.6 said: "In my view, if the Corporation is to avail itself to the relief granted by the subsection, once the primary entitlement has been established, the onus is upon it to demonstrate that the worker's stress arose wholly or predominantly from one of the disqualifying events and if it cannot do so, then the worker's claim must succeed."

Other decisions to which we were referred suggest that other members of the Tribunal have taken the same view. Because the section in its present form raises the same issue it is, in my opinion, convenient to deal with the first argument raised by the appellant, this clearly being a question of law.

It is my opinion that s30(2a) of the Act places the burden upon the worker to prove the matters identified by that subsection. The structure of the subsection suggests this. The subsection specifies the circumstances under which a particular type of disability is compensable. Such a disability is compensable "if and only if" the circumstances specified in sub-paragraph (a) and sub-paragraph (b) are established. Each paragraph is essential to the compensability of the disability. There is no particular reason to regard the paragraphs as having a different operation. Each of them states a qualification which must be established if the relevant disability is to be compensable. In my opinion the structure of the subsection suggests that it states matters to be established by a claimant for compensation, and not a basis of liability followed by some grounds of exculpation or exclusion of liability: cf Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 at 519.

It is of course true that sub-paragraph (b) is stated in negative terms. Putting the burden on the worker requires the worker to establish a negative. The matters referred to in that sub-paragraph can be called disqualifying or disentitling factors. But in my opinion the particular mode of expression is not significant in relation to the location of the burden of proof. The sub-paragraph is expressed as it is because the intention is to require the worker to prove only that the relevant stress did not arise "wholly or predominantly" from the specified type of action or decision. As long as the worker can establish that the specified type of action or decision is not the whole or predominant cause of the stress, the worker will recover. In my opinion the negative form of expression is explicable in terms of the limited proposition which the worker has to establish. Granted, the negative form of expression also picks up the issue of the reasonableness of the action or decision, but that does not cause me to alter my tentative conclusion.

As a matter of language and structure my tentative conclusion is that the proper reading of subsection (2a) is that the worker must establish the matters specified by that subsection.

The cases establish that it is proper to have regard to the subject matter of the provision in deciding where the onus lies. If the legislation specifies a matter to be proved, and that is a matter which lies exclusively or predominantly within the knowledge of one party, that is a reason for concluding that the onus is placed upon that party to establish the relevant matter. In my opinion this approach, which is really a matter of common sense, is a relevant matter to take into account, but one must remember that in the end it is a matter of the meaning of the language used.

In this respect it is my opinion that sub-paragraph (b) is equivocal. The sub-paragraph identifies three different types of event. If it is not shown that the stress did not arise wholly or predominantly from each of these the claim will fail. In my opinion the link between the stress and the specified events is something readily accessible to the worker, and probably more accessible to the worker than to the employer. Whether those events constituted reasonable action or a decision on reasonable grounds is, I acknowledge, a matter more readily accessible to the employer, but this does not mean that the relevant information is obviously and always exclusively within the knowledge of the employer. In addition, the procedures under the Act enable the worker to obtain information from the employer for the purposes of a hearing before a Review Officer (see for example s96) and before the Tribunal. One also has to bear in mind that what will be required by way of proof of an event will depend upon the information and means of knowledge available to a party, and in considering the proof tendered by a worker in relation to the reasonableness of action or the reasonableness of a decision this principle would undoubtedly operate.

While the argument for the worker under this head has some force, I am not persuaded that the difficulties of proof which would confront a worker are such that I should conclude that, contrary to my tentative conclusion based upon the structure of the section, it is nevertheless intended by Parliament that the relevant burden should rest upon the worker.

In my opinion the worker was required to establish the matters set out in s30(2a).

But it does not follow that the Tribunal erred, even if it incorrectly put the burden of proof on the employer in relation to sub-paragraph (b) of ss(2a). The Tribunal made a finding that the action of the employer was not reasonable and was not taken in a reasonable manner. There were two aspects of the finding. First of all a conclusion, which seems to have involved a departure from the factual findings of the Review Officer, as to the conduct of the employer's representative. Secondly, the more general finding that the employer's response to the action of the worker had been disproportionate. My impression is that the Tribunal was prepared to make the latter finding even if all of the findings of fact of the Review Officer stood without qualification. But whatever the basis of the finding, there is a finding by the Tribunal that the action taken by the employer to discipline the worker was not reasonable action taken in a reasonable manner. On the basis of that finding the worker's disability is compensable. There is no reason to think that the finding would not have been made if the burden of proof rested on the worker.

In response to that the appellant argues that the Tribunal misconceived its function, and made findings of fact to support its conclusion which it was not entitled to make. In my opinion that contention is unsound. This Court has held that an appeal from a Review Officer to the Tribunal is an appeal by way of rehearing on the documents: Simpson Limited v Arcipreste [1989] SASC 1951; (1989) 53 SASR 9 at 13. Applying ordinary principles, the Tribunal was entitled to make different or further findings of fact, if, making due allowance for the advantages which the Review Officer had in seeing the witnesses, the Tribunal was satisfied that the findings of the Review Officer were wrong or that further findings should have been made. There is no suggestion in the judgment of the Tribunal that it took the view that it could simply make its own findings of fact as if it were hearing the matter afresh. Moreover, having read the relevant evidence, I consider that the findings of fact which the Tribunal made were open to it. In my opinion the Tribunal did not misconceive its function.

Nor, in my opinion, did the Tribunal proceed on an incorrect basis in deciding whether or not the action of the employer was reasonable action taken in a reasonable manner. The Tribunal said that the conduct of the employer was to be measured against the standard of the hypothetical reasonable employer. Brief as that is, in my opinion it does not disclose error.

The question of whether, in the particular circumstances, the conduct of the employer was reasonable action taken in a reasonable manner is a question of fact. No appeal lies on that question and it is therefore unnecessary for me to express any view on the issue of whether or not the Tribunal was right in deciding in the circumstances of the case that the conduct of the employer was not reasonable action taken in a reasonable manner.

For those reasons it follows that although the Tribunal may have erred in law in its approach to the burden of proof under s30(2a), that error has not led to any error of law affecting its ultimate conclusion, nor has any other error of law been identified. Accordingly, in my opinion the appeal should be dismissed.

JUDGE2 BOLLEN J I agree with the reasons of the Chief Justice. I think that the words used in s30(2a)(b) demand that the onus be placed on the worker to prove that the stress did not arise wholly or predominantly from the matters mentioned in s30(2a)(b)(i),(ii) or (iii). That is an onus imposed on the worker to prove a negative. That is unattractive. But it will usually not cause hardship to the worker. Usually the worker will prove enough to put an evidentiary onus on the employer.

2. I do not think that the whereabouts of the onus mattered here. On any view of the facts I think that the employer acted unreasonably. I agree with Judge McCusker that the conduct of the worker did not warrant the "sort of" responses taken. But I agree, too, with the Chief Justice that the only point of law here is that on "whereabouts of the onus".

JUDGE3 DEBELLE J I agree with the substance of the reasons of the Chief Justice and with the order he proposes.