Secretary, Department of Education v Dawking

Court of Appeal (NSW)|2023-12-05|Before: Gleeson JA, Mitchelmore JA, Kirk JA

Background circumstances

An outline of the circumstances giving rise to the appeal is as follows.
The worker was employed by the Secretary, Department of Education (the Department), as a specialist education teacher at the Lucas Gardens School in Canada Bay, a suburb of Sydney. On 27 August 2021, by email at 10:52 am, the Secretary advised "[a]ll school-based staff":

of an expected announcement that day by the Premier of New South Wales relating to the Covid-19 pandemic that, in order "to allow for a safe return to face-to-face learning under the roadmap, NSW Health has advised that by 8 November all NSW public school and preschool staff will be required to be fully vaccinated"; and
"[t]oday, the Premier is expected to announce that - as with the Aged Care and Health sectors - mandatory double-doses of vaccinations will be required for all public school staff from 8 November". (The foreshadowed Premier's announcement was not in evidence before the Commission.

Issue - employment as the "main contributing factor"

The statutory entitlement to compensation from a worker's employer depends upon the worker receiving "an injury": Workers Compensation Act 1987 (NSW) (1987 Act), s 9(1). The term "injury" is defined to mean personal injury "arising out of or in the course of employment" (s 4(a), Injury), and includes a "disease injury" (s 4(b)), which means in this case, relevantly: (i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, …
With respect to a personal injury, s 9A of the 1987 Act relevantly provides: 9A No compensation payable unless employment substantial contributing factor to injury (1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury. Note - In the case of a disease injury, the worker's employment must be the main contributing factor. See section 4. (2) The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination) - (a) the time and place of the injury, (b) the nature of the work performed and the particular tasks of that work, (c) the duration of the employment, (d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment, (e) the worker's state of health before the injury and the existence of any hereditary risks, (f) the worker's lifestyle and his or her activities outside the workplace. (3) A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following - (a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment, (b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury. …
Pursuant to s 11A, the entitlement to compensation for psychological injury is qualified by reasonable actions by the employer: 11A No compensation for psychological injury caused by reasonable actions of employer (1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers. … (3) A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system. (4) This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system. … (6) This section does not extend the definition of injury in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment. This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury). …
Before the Commission the worker's case was that (i) she had suffered a psychological injury arising out of or in the course of her employment, (ii) her employment was a substantial contributing factor to the injury, or (iii) if her injury was a "disease injury", her employment was the main contributing factor to the injury.
The Department's case was that (i) the worker had not suffered an injury arising out of or in the course of her employment, (ii) the employment was not a substantial contributing factor or the main contributing factor to the alleged injury, (iii) any psychological injury was wholly or predominantly caused by reasonable action taken by the Department in respect of discipline of workers under s 11A(1) of the 1987 Act.
The certificate of determination issued by the Member stated that the worker (1) sustained psychological injury on 27 August 2021 arising out of or in the course of her employment with the Department, (2) the worker's employment was the main contributing factor to injury, (3) the injury was not wholly caused by reasonable action taken or proposed to be taken by or on behalf of the Department in respect of discipline, (4) the worker has no current capacity for any employment since 7 September 2021, and (5) the Department is to pay the worker weekly benefits compensation (a) for the first 13 weeks from 7 September 2021 to 6 December 2021, pursuant to s 36(1) of the 1987 Act, and (b) from 7 December 2021 to 3 November 2022 and continuing, pursuant to s 37(1) of the 1987 Act. As required by s 294(2) of the 1998 Act, the Member attached to the Certificate the Commission's reasons for the determination.

The reasons of the Deputy President

The Department's appeal against the decision of a non-presidential member, pursuant to s 352(1) of the 1998 Act, was limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal was not a review or new hearing: s 352(5) of the 1998 Act.
The only questions in issue before the Deputy President were whether:

the Member failed to consider an argument made squarely by the Department that the approach taken by Member Wynyard in Bjekic v State of New South Wales [2022] NSWPIC 214 was correct and ought to have been followed (ground 1);
the Member failed to give adequate reasons: (a) as to the correctness and/or the applicability of Bjekic; and/or, (b) for finding that the worker's employment was a substantial contributing factor to her injury and the main contributing factor to the contraction of the disease (grounds 2(a) and (b)); and
the Member erred in finding that the worker's employment was a substantial contributing factor to the injury and the main contributing factor to the contraction of the disease (ground 3).

There was no appeal against the Member's conclusion on the s 11A issue that the injury was not wholly or predominantly caused by reasonable action taken by the Department.
The reference to the decision in Bjekic requires brief explanation. Bjekic involved a security officer employed at a hospital who suffered from sinusitis and found that the wearing of the mask required by a Public Health Order aggravated that condition. The employer was bound by a Public Health Order to implement the wearing of facemasks. Member Wynyard found that employment was not a contributing factor to the aggravation of Mr Bjekic's disease condition on the basis that "the substantial cause of Mr Bjekic's condition was not his employment, but the NSW health orders which changed the conditions of his employment where the employer was unable to waive compliance therewith": at [47].
Before the Member, the Department submitted that Bjekic was an "analogous recent authority", whilst Ms Dawking submitted that it was distinguishable.
In her decision, the Deputy President first carefully reviewed the evidence before her, including statements by the worker, the report by Dr Rastogi, psychiatrist, the certificates of capacity issued by Mr Ziedni, clinical psychologist, and Dr Vago, general practitioner, and the lay evidence of Dr Paul Wood, who from July 2021 to February 2022 was the Department's Executive Director COVID-19 taskforce. At [38]-[41] the Deputy President summarised Dr Rastogi's report as follows: Dr Rastogi reported that the respondent suffered from anaemia and other medical conditions and was fearful of having the COVID-19 vaccine because she believed it would compromise her underlying medical condition. Dr Rastogi took the history that the Public Health Order made on 26 August 2021 mandating vaccination was issued suddenly and was followed by intense daily emails from the appellant (including from the respondent's principal) coercing teachers to be vaccinated. She noted that the emails required updates on the teachers' vaccination status, set short time frames to comply with the mandate and made threats of not being allowed on site. Dr Rastogi recorded that, up until this time the respondent felt valued as a teacher, but those actions made her feel worthless and made her feel her integrity was challenged. Dr Rastogi identified the respondent's current complaints of symptoms and recorded that the respondent felt anxious, ostracised, depressed, and apprehensive, was overwhelmed and concerned about her future. She noted that the respondent was receiving psychological intervention on a weekly basis. Dr Rastogi opined that the respondent was: … a high functioning person who took pride in her job and her self-worth and selfesteem was enmeshed with her job. She developed heightened anxiety with adjustment disorder following coercive emails doing [sic, during] COVID pandemic to receive vaccination with mandate enforced that she was concerned given her medical condition and uncertainty causing career threats and uncertainty. She felt discriminated, ostracised and under duress to receive vaccination and stated that her integrity has been questioned. She developed anxiety disorder with avoidance, social scrutiny, excessive fears and poor stress coping associated with coercion, feeling betrayed and ostracised and victimised at work due to a vaccine mandate. Dr Rastogi diagnosed the respondent as suffering an adjustment disorder with anxiety. She considered that, in the absence of any other non-work related stressors, the respondent's employment was the main contributing factor to her injury. Dr Rastogi was of the view that the respondent's injury was not wholly or predominantly caused by the appellant's actions in respect of promotion, appraisal, discipline, or dismissal. Dr Rastogi certified that the respondent was unfit for work.
The Deputy President then summarised the Member's reasons, recorded the submissions before her, and proceeded to make her decision and her findings. With reference to Bjekic, the Member observed at [68] that: The applicant refers to the decision of Member Wynyard in Bjelic v State of NSW (sic) which dealt with a different factual scenario in which the worker was a security officer working in a hospital and required to wear a face mask. Clearly, the unwillingness or inability to wear a face mask in that circumstance would be a breach of the Public Health Order.
The Deputy President's summary of the parties' competing submissions, included at [88] and [93]: The appellant asserts that there is no real or substantial distinction between the email and the public health policy. The appellant says that the notion that the policy caused the injury is supported by the respondent's own evidence that her symptoms were caused by the vaccination mandate and her decision not to be vaccinated, and not the email itself. The appellant points to the respondent's statement evidence and submits that the respondent only referred to receiving mandatory notice on 27 August 2021 and did not mention the email from the appellant. … The respondent says that she presented her case on the basis that her injury occurred on receipt of the email dated 27 August 2022, which was consistent with her evidence and that of her treatment providers, Mr Ziedni and Dr Vago, who cited that date as the date of the injury. She adds that Dr Rastogi took the history of heightened anxiety following coercive emails.
The Deputy President found that the Member's reasons in relation to the applicability of Bjekic were adequate (at [107]), given that the Department: (i) made no submission to the Member over and above the submission that Bjekic was "particularly analogous" to the present matter; (ii) did not submit to the Member that he was required, or even expected, to apply comity in respect of Member Wynyard's decision, nor that comity required him to follow Bjekic unless he considered it to be wrong; and (iii) if a matter is not raised, it is not an error not to refer to it, citing Brambles Industries Limited v Bell [2010] NSWCA 162 at [30].
Next, the Deputy President found that the Member's reasons, when read as a whole, were more than adequate to support his conclusion that the employment was a substantial contributing factor to the injury and the main contributing factor to the injury: at [115]. Addressing the Department's argument as to the comparative roles of the Secretary's email and the Public Health Order, the Deputy President reached the conclusion that the Member clearly took into account the facts that may have constituted some other contributing factor: at [116]:
Finally, the Deputy President found that the Member did not err in finding that the worker's employment was a substantial contributing factor to the injury and the main contributing factor to the contraction of the disease. After referring at [120]-[121] to the Member's reasons at [93], including the cross-reference to [61], and setting out at [121] the Department's submission that: "What occurred on 27 August 2021 was the decision of the government of NSW to impose a mandatory requirement that staff working at public schools (among other places) have double doses of Covid-19 vaccination by 8 November 2021 and/or the announcement of that requirement by the Premier of NSW", and therefore, Ms Dawking's employment "was neither a substantial contributing factor nor the main contributing factor to her injury", the Deputy President rejected that submission at [122] and reached the conclusion at [123]: The Member's conclusion was arrived at by a consideration of the evidence and the submissions of the parties as to what that evidence showed. The conclusions were factual conclusions. Applying Raulston [Raulston v Toll Pty Ltd [2011] NSWWCCPD 25], the appellant has failed to show that Member overlooked material facts, or gave undue or too little weight in deciding the inference to be drawn, or that the available inference in the opposite sense to that chosen by the Member was so preponderant that the Member's decision was wrong.

The errors of law contended on appeal to this Court

Section 353(1) of the 1998 Act relevantly provides: 353 Appeal against decision of Commission constituted by Presidential member (1) If a party to any proceedings before the Commission constituted by a Presidential member is aggrieved by a decision of the Presidential member in point of law, the party may appeal to the Court of Appeal. … (5) In this section, decision includes an award, interim award, order, determination, ruling, opinion and direction.
On an appeal to this Court under s 353(1) limited to errors "in point of law", it is necessary to distinguish between asserted errors by a presidential member of the Commission and asserted errors by a non-presidential member; it is also necessary to distinguish possible errors in point of law from erroneous factual findings.
Circumstances where a decision might be erroneous in point of law include where the Commission constituted by a presidential member: [134] … (a) misapprehended the relevant legal principles to be applied; (b) made a finding as to primary facts which was unsupported by any evidence or other material on which reliance might properly be placed; (c) in the application of correctly stated principles, drawn an inference from the facts which was not reasonably available in the circumstances, or (d) failed to address an issue which is raised by the agreed or established facts. See Amaca Pty Ltd (under NSW External Administration) v A B & P Constructions Pty Ltd [2007] NSWCA 220; (2007) Aust Torts Reports 81-910 at [134], summarising the authorities referred to in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [149]-[168]; SAS Trustee Corporation v Pearce [2009] NSWCA 302 at [20] (Giles JA, Beazley and Basten JJA agreeing); see also Western Districts Developments Pty Ltd and Turnpike Land Pty Ltd v Baulkham Hills Shire Council (2009) 75 NSWLR 706; [2009] NSWCA 283 at [54] (Preston CJ of LEC, Giles and Campbell JJA agreeing).
In this case, the notice of appeal was deficient. The appeal grounds did not identify asserted errors "in point of law" in the decision of the Deputy President. Ultimately, senior counsel for the Department conceded at the hearing that the grounds of appeal were deficient. The worker did not oppose the Department's oral application to amend the grounds, which application was granted.
The amended grounds of appeal read: Reasons 1. That the reasons of the Member were deficient in terms of expounding the comparative causal potency of employment and non-employment related factors. 2. That the Deputy President should have found the reasons were inadequate and failure to do so constituted an error of law being: a. Misapplication of relevant legal principle; and b. A constructive failure of jurisdiction. No evidence 3. That the Member erred in law in drawing factual conclusions the evidence did not allow, namely that a cause of the respondent's injury was that the email on 27 August 2021 threatened sanctions and was inaccurate. 4. This constituted an error of law being the making of findings and drawing conclusions unsupported by any evidence. 4A. That the Deputy President erred in law in failing to find that error. Misapplication of legal principle 5. The facts compelled a conclusion that employment was not the main contributing factor to the injury. 6. The conclusions of the Member, endorsed by the Deputy President, that employment was the main contributing factor reflected error of law in terms of: a. Misapplication/misapprehension of legal principles; and b. Constructive failure of jurisdiction. 6A. That the Deputy President erred in law in failing to find that error. 7. Failure to undertake the comparative analysis required in terms of determining main contributing factor constitutes error of law in terms of misapplication of legal principles.
The questions of law in the amended grounds of appeal were inelegantly drafted. Grounds 1 and 2 involve two separate concepts: one is the affirmative finding of the Deputy President that the Member gave adequate reasons (which was the subject of appeal grounds 1 and 2(a) before the Deputy President); the other is that the asserted failure of the Deputy President to find that the Member's reasons were inadequate is said to constitute two errors of law: the misapplication of relevant legal principle with respect to causation of injury, and the constructive failure to exercise jurisdiction by failing to respond to a substantial, clearly articulated argument with respect to causation of injury.
Grounds 3, 4 and 4A suffer from the problem identified in Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54 at [7], where Basten JA (Payne JA and Simpson AJA agreeing) said: … The ultimate finding by the Deputy President was not an affirmative finding, but a negative one, namely that she was not satisfied that there was error on the part of the arbitrator. On the other hand, the arbitrator was required to be affirmatively satisfied as to at least one of the limbs in the definition of "injury" in s 4, and that the employment was a "substantial contributing factor" to the injury, pursuant to s 9A of the Workers Compensation Act. She was so satisfied. In finding that the arbitrator did not err, the Deputy President must have been satisfied that there was evidence capable of supporting the relevant conclusions. That implicit decision in point of law was necessarily inherent in the finding that the arbitrator made no error in her fact finding. Accordingly, the question of law which should have been raised in this Court was as follows: Did the Deputy President err in implicitly deciding that there was evidence capable of supporting the factual findings made by the arbitrator?
Grounds 5, 6, 6A and 7 also suffer in part from the problem identified in Workers Compensation Nominal Insurer v Hill at [7], and in part from failing to identify the substantial, clearly articulated argument in respect of which it is said the Deputy President failed to respond.
In substance, the three questions of law raised in this Court were: 1. did the Deputy President's decision that the reasons of the Member were adequate, constitute an error of law (i) in implicitly deciding that the Member did not misapply the relevant legal principles concerning the causation of injury, and (ii) by constructively failing to exercise jurisdiction by failing to respond to a substantial, clearly articulated argument with respect to causation of injury (grounds 1 and 2); 2. did the Deputy President err in law in implicitly deciding that there was evidence capable of supporting the factual finding made by the Member that the employment was the main contributing factor to the injury (grounds 3, 4 and 4A); and 3. did the Deputy President err in law (i) in implicitly deciding that the Member did not misapply or misapprehend the relevant legal principles concerning the causation of injury, and (iii) by constructively failing to exercise jurisdiction by failing to respond to a substantial, clearly articulated argument with respect to causation of injury (grounds 5, 6, 6A and 7).
As will be apparent, there is a substantial overlap between the asserted errors of law referred to in (1) and (3) above.
It is convenient first to address the "no evidence" grounds.

Grounds 3, 4 and 4A: no evidence

Causation of injury is in general a question of fact. With respect to the function of the Compensation Court at a time when an appeal to this Court lay on disputed issues of fact, as well as of law, it was said in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463G (Kirby P, Sheller and Powell JJA agreeing) that "… each case where causation is in issue in a workers' compensation claim, must be determined on its own facts".
Addressing the requirement in s 9A of the 1987 Act that the employment concerned be "a substantial contributing factor to the injury", Allsop P, Beazley and McColl JJA said in Badawi v Nexon Asia Pacific Pty Ltd (t/as Commander Australia Pty Ltd) (2009) 75 NSWLR 503; [2009] NSWCA 324 that the strength of the linkage between the employment and the injury is an evaluative matter involving questions of impression and degree, and "a finding as to relative contributing factors is a finding of fact": at [48(4), (5) and (6)].
The requirement in s 4(b)(i) of the 1987 Act that applies to "disease" injuries was introduced by the Workers Compensation Legislation Amendment Act 2012 (NSW). A finding that the employment is "the main contributing factor to the injury" involves a more stringent connection with the employment than the requirement that the employment concerned be "a substantial contributing factor", that applied to "disease" injuries prior to the 2012 amendments to the 1987 Act. However, like the requirement in s 9A of the 1987 Act, the requirement in s 4(b)(i) is an evaluative matter involving questions of impression and degree, and it is also a finding of fact.
What amounts to material that could support a factual finding is ultimately a question for judicial decision; that is, it is a question of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [90]-[91] (Hayne, Heydon, Crennan and Kiefel JJ). It was accepted in Workers Compensation Nominal Insurer v Hill at [8] that this principle in Kostas should be applied to an appeal under s 353 of the 1998 Act.

Reasoning

Ground 4A, read together with grounds 3 and 4, contend in substance that the Deputy President erred in implicitly finding that there was evidence that could support the Member's factual finding that "a cause of the [worker's] injury was that the email on 27 August 2021 threatened sanctions and was inaccurate".
An understanding of this submission is assisted by reference to parts of the Member's reasons, to which the Deputy President referred in her decision: 1. the Member concluded at [93] that the worker sustained a psychological injury arising out of or in the course of her employment: … I am satisfied on the balance of probabilities that she sustained psychological injury arising out of or in the course of her employment as claimed by her. She commenced to suffer this injury with the receipt of the email from the [appellant] at 10.52 am on 27 August 2021. I accept the [respondent's] submissions in respect [of] the receipt of injury arising out of or in the course of her employment referred to in [61] above. … 1. the worker's submission that Member had recorded at [61] was that: … She was a teacher when she received the emails, it is because she was a teacher that she is subject to the manner in which the Department implemented the Public Health Order, and it is because she was a teacher that by November her employment was terminated. The applicant submits that there is no suggestion from the respondent by way of any medical evidence that her employment was anything other [than] a substantial and, indeed, the main contributing factor if need be, for the occurrence of her psychological condition. 1. on the issue of causation of injury, the Member observed at [93]: … The injury was having a significant impact on her psyche by the time she consulted her general practitioner who referred her to a psychologist for treatment. I think that at least part of the reason that Mrs Dawking suffered such a reaction to the email is touched upon by Dr Rastogi when he says that she was a highly functioning person who took pride in her job, and her self-worth and self-esteem was enmeshed with her job. The content of that email, and whether or not it was strictly accurate in content, will be discussed hereunder when the s 11A issue is dealt with. (Emphasis added.) 1. addressing the two ways in which the causation argument was put, the Member first concluded at [94] that the employment was "at least" a substantial contributing factor to the injury, whilst noting the worker's submission that her employment was the main contributing factor to the injury, and probably the relevant test, but the submission was put in the alternative to a substantial contributing factor. The Member continued at [95] and [96]: In my view the evidence supports a finding that the [respondent's] employment with the [appellant] was a substantial contributing factor to injury. That issue is raised in the s 78 notice. Dr Rastogi in [her] report refers to: (a) the [respondent] suffering anaemia; (b) the [respondent] being in a fragile mental condition, and (c) a previous psychiatric history of adjustment disorder with anxiety associated with a work related back injury in 2012 for which Mrs Dawking received psychological counselling and conservative treatment for pain, and that after 12 months off work returned to pre-injury functioning. … When consideration is given to the kinds of matters that can be taken into account for the purposes of a determination of substantial contributing factor listed in s 9A(2) of the 1987 Act, it is clear that the [respondent's] employment was a substantial contributing factor to injury. 1. the Member also concluded that the employment was the main contributing factor to the injury at [97], for the purpose of s 4(b)(i) of the 1987 Act: The [respondent's] submission, put in the alternative, that her employment was the main contributing factor to the onset of her condition was reliant as, I understand, on s 4(b)(i) of the 1987 Act, that is, a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease. It was submitted by counsel '… in the alternative to overcome 9A and 4(b)(ii) …' I accept that there is sufficient evidence to support a finding that employment was the main contributing factor to the contracting of a disease.
The Department's "no evidence" submission is primarily directed to the Member's reasons at [93] and [104]. It is said that the Member adverts to a submission made by the worker (at [93]) and purports to accept that when dealing with the s 11A issue (which it is acknowledged is irrelevant for present purposes), when the Member said at [104]: … rather than there being a problem with the Public Health Order issued by the government, it was the implementation of that order by the respondent that was significant in her case, and which was the cause of her injury.
It is said that if this statement was meant to reflect a conclusion that there was something about the Department's delivery of the message to the worker, as opposed to the government's decision to impose a vaccination mandate, which played a role in the worker's condition, it is a proposition without any evidentiary foundation. Further, it is said that implementation of the Public Health Order cannot be a factor because the injury occurred on 27 August 2021, well before the order came into effect.
The difficulty with the Department's submissions is that they read out of context the Member's reasons at [104]. The Member had earlier recorded at [82]-[88] the parties' competing submissions on the s 11A issue, relevantly: 1. the Department submitted that the email communicated an expectation with respect to discipline and it was difficult to see a way in which the subsequent correspondence with the worker after the email of 27 August 2021 about the possible termination of her employment could be said to cause her distress; and 2. the worker submitted in response on the s 11A issue that she relied on the implementation of the Public Health Order and the way in which it was presented to her, which became clearer in the subsequent documents sent to the worker where she was threatened with disciplinary action and potential termination of employment if she was not double vaccinated, and no exemptions were considered apart from medical contraindication.
Addressing the s 11A issue, the Member found at [100] that there was insufficient evidence for the Department to show, on the balance of probabilities, that the worker's injury was caused by action it took with respect to discipline. Nevertheless, the Member went on to consider, on a contingent basis, whether the Department's action was reasonable for the purposes of s 11A of the 1987 Act.
Read in context, the Member's reasons at [104] referring to the implementation of the Public Health Order, were directed to the reasonableness of the Department's action for the purpose of its defence under s 11A of the 1987 Act. Those reasons were not material to the Member's primary finding on causation of injury.
It is said that the Member also raises a question as to whether the Secretary's email was "strictly accurate in content" (at [93]) and seems to later suggest that the inaccuracy or deficiency was that the email took no account of teachers who were not at schools (at [104]). Related to this, it is said that "the email was nothing more than advance notice of the Public Health Order which came to pass" and "the worker at no stage suggested that any so-called inaccuracy … was in any way causative of the psychiatric injury upon which she relied".
Again, the Department reads the Member's reasons out of context. It is apparent from the last sentence of the Member's reasons at [93] (see [47(3)] above) that the reference to the accuracy of the content of the 27 August 2021 email was a matter discussed by the Member when dealing with the s 11A issue. Relevantly, the Member said at [104] that the Secretary's email of 27 August 2021 "conveyed what subsequently transpired was a somewhat erroneous message in respect of vaccination requirements" because whereas the vaccine mandate in the Public Health Order only applied to schoolteachers carrying out "relevant work" at a government or non-government school: The email simply referred to the requirement for mandatory double doses of vaccinations required for all public school and preschool staff from 8 November 2021. It took no account of teachers who may not have been at schools.
Next, it is said that the Deputy President's reference to matters "plainly spelt out by the Member" (at [122]) is presumably a reference to the Member's reasons which appeared to suggest that the email was deficient because it took no account of teachers who may not have been at school (at [104]), however, the worker did not suggest that anything about the accuracy of the email or the imposition of broader application and sanctions which caused her injury. This submission misreads the Deputy President's reasons at [122]-[123]: The appellant concedes that the email could not constitute the implementation of the policy because the policy had not been implemented until 23 September 2021, yet submits that there was no "real" or "substantive distinction" between the email and the policy. This submission ignores the evidence that the appellant imposed broader application and sanctions than the content of the Public Health Order, which was eventually issued. The application of the Order and the threatened sanctions initiated by the appellant put in jeopardy the respondent's career with the appellant, and those factors were plainly spelt out by the Member in his reasons in dealing with the question of causation. The Member's conclusion was arrived at by a consideration of the evidence and the submissions of the parties as to what that evidence showed. The conclusions were factual conclusions. Applying Raulston [Raulston v Toll Pty Ltd [2011] NSWWCCPD 25], the appellant has failed to show that [the] Member overlooked material facts, or gave undue or too little weight in deciding the inference to be drawn, or that the available inference in the opposite sense to that chosen by the Member was so preponderant that the Member's decision was wrong.
In rejecting the Department's submission that it was the fact that the policy was to be implemented which caused the worker's psychiatric response, the two points made by the Deputy President at [122] were: 1. the Department conceded that the email could not constitute the implementation of the policy because the policy had not been issued until 23 September 2021; and 2. the Member made clear at [104] that "it was the implementation of the Public Health Order by the [Department] that was significant in [the worker's] case" in response to the s 11A issue raised by the Department.
It is said that there was no basis upon which the Deputy President or the Member could, on the evidence, conclude that the email performed anything other than the role of communicating the mandate. What the email conveyed to the worker was an evaluative exercise involving questions of impression and degree and was a question of fact: Badawi at [48(6)]. Addressing the Department's argument as to the comparative roles of the Secretary's email and the Public Health Order, the Deputy President reached the following conclusion at [116]: The Member clearly took into account the facts that may have constituted some other contributing factor. The Member pointed out that there was no medical evidence adduced by the appellant to counter the respondent's evidence and the evidence of Dr Rastogi. He noted that Dr Rastogi had described the respondent as "a highly functioning person who took pride in her job, and her self-worth and self-esteem was enmeshed with her job." He had already accepted the respondent's submissions, recorded by him at [61] of his reasons, that: … She was a teacher when she received the emails, it is because she was a teacher that she is subject to the manner in which the Department implemented the Public Health Order, and it is because she was a teacher that by November her employment was terminated. The applicant submits that there is no suggestion from the respondent by way of any medical evidence that her employment was anything other [than] a substantial and, indeed, the main contributing factor if need be, for the occurrence of her psychological condition.
The comparative roles of the Secretary's email and the Public Health Order to the injury was a question of fact. Contrary to the Department's submission, there was evidence before the Member that could support that finding of fact.
Finally, it is said that in her statement of evidence the worker only referred to receiving mandatory notice on 27 August 2021 and did not mention the email from the Secretary. This is a gloss on the worker's evidence.
First, the worker's reference to the Public Health Order "which commenced on 27 August 2021" was clearly a reference to the Secretary's email of 27 August 2021, since the Public Health Order was not issued until 23 September 2021.
Second, there was unchallenged evidence given by the worker that the injury occurred on receipt of this email; in her undated statement (page 4) the worker referred to her total incapacity because of events arising out of or in the course of "my employment with my employer from 27 August 2021 and the feelings are increasing".
Third, there was unchallenged medical evidence comprising the certificates of capacity issued by the worker's treating practitioners, Mr Ziedni and Dr Vago, and the report of Dr Rastogi, which all recorded 27 August 2021 as the date of the injury.
Fourth, there were unchallenged findings by the Member that (i) the worker was so affected by the email of 27 August 2021 that she ceased work by 6 September 2021 (at [99]), and (ii) that Dr Rastogi's report contained a record of the history provided by the worker, which was consistent with her statement evidence, relevantly, (at [23): Mrs Dawking related to the doctor that she was made to feel worthless as a teacher and that there was not enough time available to seek medical support. She said that she developed acute anxiety and was extremely overwhelmed with the choices that she had to make. She did not get any clear indications from the consultations she had with her doctor, developed a fear of vaccinations and was fearful that her condition would deteriorate.
It was well open to the Deputy President to conclude that the Member's determination that the employment was the main contributing factor to the injury distinguished between the effect that the receipt of the email from the Secretary on 27 August 2021 had on the worker, given the symptoms that she experienced as a result and that it put the worker's career in jeopardy, and the subsequent Public Health Order issued on 23 September 2021.
The asserted error of law by the Deputy President based on the "no evidence" grounds should be rejected.

Grounds 5, 6, 6A and 7: misapplication of legal principle

As the asserted errors of law underlying these grounds are related, it is convenient to deal with them together.

Obligation to give reasons

The failure to give adequate reasons may be an error of law depending on the statutory context: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] (French CJ and Kiefel J); Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [54] (Basten JA); Westport Insurance Corporation v Gordian Runoff Ltd (2011) 244 CLR 239; [2011] HCA 37 at [57], a case involving an appeal on a question of law as to whether there was an error of law on the face of an arbitral award.
The Department submitted with reference to Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, that the Member's reasoning fell short of the "requisite standard". Each of those decisions is distinguishable as they concerned the duty of judges to give reasons: Soulemezis held that the obligation of judges of the Compensation Court (which decided disputes under the Workers Compensation Act up to 2004) was an attribute of the judicial process in which they were engaged, and in Beale at 443-444, Meagher JA considered the content of the duty on a District Court judge to give reasons in an award for personal injury damages.
In this case, the Member, a non-presidential member of the Commission was subject to an express obligation to give reasons. Section 294(2) of the 1998 Act provided: "[i]f a dispute is determined by the Commission, the Commission must … issue the parties to the dispute with a certificate as to the determination", to which "a brief statement of reasons is to be attached". See also the Personal Injury Commission Rules 2021 (NSW), r 78, which applies, relevantly, to "Commission proceedings" being proceedings before the Commission under the Personal Injuries Commission Act 2020 (NSW), which required: 78 Statement of reasons for decision … (2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker's reasons for the determination that includes the following - (a) the appropriate decision-maker's findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the appropriate decision-maker's understanding of the applicable law, (c) the reasoning processes that led the appropriate decision-maker to the conclusions made. (3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker's view of the case made by each party.
The obligation to give a brief statement of reasons has to be considered in the light of the issues raised for consideration by the parties: Brambles Industries v Bell at [22] (Hodgson JA, Tobias and McColl JJA agreeing), a case involving the obligations of a presidential member to give reasons.

Misapprehension of relevant legal principles

At [112], the Deputy President said that "[t]he Member's conclusions were conclusions of fact". It is said that there was an error of law by the Deputy President in taking the view that the question of causation for the purposes of s 4(b)(i) of the 1987 Act was purely a question of fact. That cannot be accepted.
There was no error in law by the Deputy President in stating that the Member's conclusion that the employment was the main contributing factor to the injury for the purposes of s 4(b)(i) of the 1987 Act was a conclusion of fact. That is consistent with the reasoning in Badawi at [48(6)] that a finding of a substantial contributing factor for the purposes of s 9A of the 1987 Act is a finding of fact.
A related submission is made that the Member's conclusions were not entirely conclusions of fact because the inquiry as to whether the employment constituted the main contributing factor was a legal issue that the Member was required to decide. It is said that the Member did not address the proper construction of s 4(b)(i) or s 9A of the 1987 Act or the relationship between a substantial contributing factor and the main contributing factor to this injury. Reliance was placed on Da Ros v Qantas Airways Limited [2010] NSWCA 89 at [27].
The asserted misapprehension of relevant legal principles by the Deputy President ignored what were the issues raised for consideration before the Commission: Brambles Industries v Bell at [22]. Neither the application to resolve a dispute and the reply, nor the parties' submissions before the Member raised the proper construction of s 4(b)(i) or s 9A of the 1987 Act or the relationship between a substantial contributing factor and the main contributing factor to the injury. It was not necessary for the Member to address the relevant legal principles as to causation of injury for the purposes of either s 4(b)(i) or s 9A of the 1987 Act. The issue before the Member was a question of fact.
Further, as the Deputy President correctly said at [107], if a matter is not raised, it is not an error not to refer to it: Brambles Industries v Bell at [30]. The first reference by the Department to authority concerning the concept of "the main contributing factor" was in the Department's written submissions in this Court referring to the discussion in AV v AW [2020] NSWWCCPD 9 at [78].
By contrast, the Department's submissions before the Deputy President were that "the Member ought to have adopted the approach taken by Member Wynyard in Bjekic, central to [its] argument on causation", and that "[a]s a matter of comity, [the Member] ought to have followed the approach taken by Member Wynyard in Bjekic". As explained at [27] above, the Deputy President rejected this submission at [107]. The Deputy President's reasons continued at [107]-[108], [109] and [112]: … Further, the obligation to give reasons has to be considered in the light of the issues raised for consideration by the parties. The appellant cannot say that the Member erred by failing to give adequate reasons for the "correctness" of Bjekic or the "applicability" of Bjekic to this case. The Member observed: The [respondent] refers to the decision of Member Wynyard in [Bjekic] which dealt with a different factual scenario in which the worker was a security officer working in a hospital and required to wear a face mask. Clearly, the unwillingness or inability to wear a face mask in that circumstance would be a breach of the Public Health Order. That reasoning was sufficient, in my view, to address the appellant's submission that Bjekic was a "particularly analogous recent authority" to this matter. In any event, the [Department] misunderstands the concept of comity. … … The determination required of the Member in the present matter was a question of causation of the injury and whether the respondent's employment was a substantial, or the main contributing factor to the injury. The Member's conclusions were conclusions of fact. The same can be said in respect of Bjekic. As Chen J observed in Comino, judicial comity is limited to questions of law and statutory interpretation and has no application to factual determinations. Neither case turned upon questions of statutory interpretation or principles of law. In any event, the appellant has not made it apparent as to how a failure to apply comity could constitute error of the kind required by s 352(5) of the 1998 Act, which allows for an appeal to a Presidential Member to be brought only on the basis of error of fact, law or discretion.
The Department did not challenge these reasons in this Court.
In this case, the Member, and in turn the Deputy President, each identified the correct legal test for causation of a disease injury by using the statutory phrase in s 4(b)(i) of the 1987 Act that the employment is "the main contributing factor to the injury". There was no misapprehension of the relevant legal principles by either the Deputy President or the Member.

Misapplication of relevant legal principles

It is said that in endorsing the Member's findings on causation, the Deputy President erred in failing to apply correct principle and attaching disproportionate weight to the circumstances of employment as compared to the mandate imposed by the State government which the Department was bound to enforce, and therefore did not engage with the issue of the comparative causative roles of employment as opposed to the government-decreed mandate. This submission directs attention to Da Ros v Qantas, where Basten JA (Tobias and McColl JJA agreeing) said at [26]-[27]: If the Deputy President correctly identified the evaluative exercise for determining whether the employment substantially contributed to the injury, but erred in carrying out that exercise his decision would be beyond review in this Court, even if the result were one at which this Court would not have arrived. The erroneous application of a legal principle would not be reviewable, absent some basis for concluding that there had been error in identifying the correct legal test to be applied. However, where the legal test has not been clearly identified and its application exposed, and where the result appears unreasonable on the supposition that the correct legal test was applied, the proper inference may be that the supposition is false: see Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360 (Dixon J). The proper construction of s 9A involves a question of law. Although the term "substantial" is no doubt to be given its ordinary meaning and the phrase "contributing factor" denotes no more than a causal connection, the proper construction of the phrase taken as a whole requires that it be considered in its statutory context, including (i) the matters to be taken into account in its application - sub-s (2), (ii) the matters which are insufficient of themselves to establish its satisfaction - sub-s (3), and (iii) the circumstances in which it does not operate - sub-s (4): see Badawi at [135]-[136]. Accordingly, its proper construction is a question of law: see Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 397. A decision as to its proper construction, which was necessary for its application by the Deputy President, constituted a decision in point of law for the purposes of s 353 of the Workplace Injury Act.
Thus, with respect to the Deputy President's decision, the Department needs to demonstrate that the proper inference is that the correct legal test was not applied by the Deputy President because the result appears unreasonable: Da Ros v Qantas at [26] citing Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] 78 CLR 353 at 360 (Dixon J); [1949] HCA 26.
There are several reasons why the Department has failed to establish that the decision of the Deputy President is legally unreasonable.
First, in determining whether the Member drew an inference from the facts which was not reasonably available in the circumstances (Amaca v A B & P Constructions at [134]), it is necessary to read the Member's reasons, bearing in mind the relevant statutory obligation in s 294(2) of the 1998 Act is to attach a "brief statement of reasons" to the certificate of determination.
Second, the Member's reasons as to causation of injury commenced at [93]. The Deputy President referred at [115] to the Member's reasons at [97] that the employment was the main contributing factor to the injury, which included reference in footnote 64 to [95]-[97] of the Member's reasons. The Department complained about the Member's reference at [95] to Dr Rastogi's report referring to the worker's medical condition and says that this was irrelevant. That is not so. The matters referred to by Dr Rastogi were relevant to her opinion that there were no pre-existing psychological conditions.
Third, the weight to be given to the strength of the linkage between the employment and the injury to satisfy the requirement that employment, as compared to the mandate imposed by the State government, is the main contributing factor to the injury, was a question of fact for the Member to evaluate. Contrary to the asserted misapplication of legal principles, the Deputy President noted at [116] that the Member "clearly took into account the facts that may have constituted some other contributing factor": see [57] above. That was a reference to the Public Health Order issued on 23 September 2021 which the Department said it was required to implement and was the cause, or the main cause, of the worker's injury.
Fourth, at [116] the Deputy President had regard to the Member's reasons (i) pointing out that there was no medical evidence adduced by the Secretary to counter the worker's evidence, (ii) referring to the evidence of Dr Rastogi who had described the worker as "a highly functioning person who took pride in her job, and her self-worth and self-esteem were enmeshed with her job", and (iii) accepting the worker's submissions, recorded by the Member at [61], that there was no suggestion by the Secretary by way of any medical evidence that the worker's employment was anything other than, relevantly, the main contributing factor for the occurrence of her psychological condition. The Deputy President returned to the causation issue at [122]-[123] (see [55] above), concluding that the Member's reasons adequately dealt with the question of causation, which was a finding of fact.
It is said that the Department is entitled to know why the Member disregarded the argument that employment was not the main contributing factor because the mandate was not the mandate of the employer. But the Deputy President addressed this argument at [122]-[123], when concluding that there was no error in the Member rejecting the Department's submission that there was no "real" or "substantive distinction" between the email and the public health policy.
A related submission is made, with reference to Tudor Capital Australia Pty Ltd v Christensen [2017] NSWCA 260 at [391], that the conclusion of the Deputy President that the Member's reasons were adequate did not engage with the Department's argument of "what it takes to be a main contributing factor". Tudor Capital is distinguishable on the facts; it involved an error of law by a Deputy President in concluding that the arbitrator had had regard to the medical evidence in reaching his conclusion as to "injury" (at [393]) when the arbitrator had not engaged with uncontested contemporaneous records such as autopsy slides.
Here, the Department's argument was encapsulated in the oral submission before the Member that the worker "just … does not make the case that this email is what caused her distress". As counsel for the worker emphasised in this Court, there was no cross-examination of the worker on her statement of evidence and the unchallenged medical evidence that the Secretary's email had caused psychological injury to the worker was "all one way". There was evidence that could support the Member's finding that the employment was the main contributing factor to the injury suffered by the worker on 27 August 2021.
Finally, it is said that the Member appears to have had regard to events which took place subsequent to the date of injury as found, namely, 27 August 2021, by referring to the termination of the worker's employment in November 2021 and this suggests that factors irrelevant to injury were taken into account in the Member arriving at his conclusions. That is a misreading of the Member's reasons. The Member had regard to the termination of the worker's employment in November 2021, relevantly at [103], in the context of addressing the s 11A issue.

Constructive failure to exercise jurisdiction

A failure "[t]o respond to 'a substantial, clearly articulated argument relying on established facts'" is both a constructive failure to exercise jurisdiction and a failure to accord natural justice: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24], [26] and [27] (Gummow and Callinan JJ, Hayne J agreeing).
In Resource Pacific Pty Ltd v Wilkinson at [9], Basten JA (Beazley JA agreeing) said of an appeal limited to errors in point of law involving a challenge to a District Court decision awarding workers' compensation: … In the present case, that function was almost entirely satisfied by the resolution of disputed factual issues. The term "constructive failure to exercise jurisdiction" is used to describe a situation where the court has purported to resolve the parties' dispute but has not in fact done so. Thus, particularly with a court or tribunal required to provide reasons for its decision, it may become apparent from those reasons that a material issue has simply not been addressed or that material evidence has been overlooked. …
In Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 at [15], Kirk JA (White and Mitchelmore JJA agreeing) cautioned: A risk with this type of argument is that claims about failure to address matters can shade into claims about arguments having been resolved incorrectly because misunderstood, or not really grappled with, which tends towards merits or appellate review. Further, as discussed below, it is not necessary for judicial decision-makers to address every argument or every piece of evidence in delivering reasons. Hence the need to show that there has been a failure to grapple with a substantial, clearly articulated argument. That language has been reiterated by members of the High Court: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [13] per Bell, Gageler and Keane JJ and [105] per Nettle and Gordon JJ; Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497; [2022] HCA 17 at [27] per Kiefel CJ, Keane, Gordon and Steward JJ. The failure to address an issue must be of such significance as to warrant a conclusion that the decision-maker has failed to complete the exercise of its power by reason of having failed to engage with an issue of importance to the matter being resolved.
The Department said in written reply submissions that: The Deputy President's failure to apply a principled approach to the consideration of relevant contributing factors amounted to error in point of law and a failure to identify the errors made by the Member also reflected an error of law arising out of a constructive failure of jurisdiction. (Emphasis added.)
The reference to "the errors made by the Member" is to be understood as the Member's asserted "failure to interrogate the requirements of the main contributing factor in the context of the evidence before him".
What was in issue before the Member was a question of fact: relevantly for a disease injury, whether the employment was the main contributing factor to the injury. The evaluative exercise of determining whether the employment was the main contributing factor to the injury, directed attention to the comparative roles of the Secretary's email and the Public Health Order in the worker's injury. The Department's submissions as to comparative causal roles of the email and the public health policy were summarised by the Deputy President: see [27] above.
The Deputy President did not ignore the Department's submission. As noted, the Deputy President addressed this issue at [122]-[123] and rejected the Department's submission that there was no real or substantive distinction between the Secretary's email and the Public Health Order which the Department was obliged to implement.
The contention that the Deputy President failed to respond to a substantial, clearly articulated argument by the Department on the causation of injury is misconceived.

Conclusion

The appeal has failed. There is no reason why the Department should not pay the worker's costs: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.
I propose the following orders: 1. Appeal dismissed. 2. Appellant to pay the respondent's costs.
MITCHELMORE JA: I agree with Gleeson JA.
KIRK JA: I agree with Gleeson JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 January 2024

Workplace Injury Management and Workers Management Act 1998(NSW)

Personal Injuries Commission Act 2020(NSW)

Solicitors: Hall & Wilcox Lawyers (Appellant) McCabe Partners Lawyers (Respondent) File Number(s): 2023/166813 Decision under appeal Court or tribunal: Personal Injury Commission of NSW Jurisdiction: Workers Compensation Division Citation: [2023] NSWPICPD 23 Date of Decision: 3 November 2022 Before: Deputy President E Wood File Number(s): W3277/22

(2022) 109 NSWLR 604

At a glance

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Judgment (13 paragraphs)

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Legislation Cited (9)

Cases Cited (32)

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