Appeal - Two appeals - First appeal against a decision of a Deputy President reversing rejection of worker's claim for compensation - Employer rejected worker's claim and denied liability for treatment expenses thus requiring worker to return forthwith to her employment - Worker then suffered an alleged psychological condition secondary to her physical injury - Deputy President considered physical injury had resolved but the psychological overlay continued and worker remained partially incapacitated by this - Limits of appellate Courts ability to alter finding at first instance - Rules of causation in case law considered - Second appeal against a ruling that legal professional privilege did not attach to a video and a consequent order that said video be produced to worker's solicitors - Cases considered dominant purpose test - Treleaven's Case applied - Both appeals dismissed - S 30A, s 92 Workers Rehabilitation and Compensation Act 1986.

Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; (1996) 140 ALR 227

Whiteley Muir and Zwanenberg Ltd v. Kerr (1966) 39 ALJR 505

Gardiner v Land Agents Board (1976) 12 SASR 458

Carian v Elton (2000) NSWCA 175

Commissioner for Railways for the State of Queensland v Peters and Another (1991) 24 NSLWR 407

Fresh Farm Produce Pty Ltd v Tu [2001] NSWCA 448

Rosmini v Chrysler Australia Ltd (1973) 6 SASR 212

Turner v HIH Winterthur (ANH Management Pty Ltd) JD 23/1998

Arrowcrest Group Pty Ltd v Nguyen [2000] SAWCT 121

Vanderdoes v. WorkCover Corporation/VACC Insurance Worksafe (Seanco Pty Ltd) JD68/1998

Koutsouliotas v Royal District Nursing Service of SA Inc [2002] SAWCT 24

Treleaven v WorkCover Corporation/MMI Worker's Compensation (SA) Ltd (Ridgepark Nursing Home) JD17/1998

Robbins v Harbord and Another [1994] SASC 4571; (1994) 62 SASR 229

Grant v Downs [1976] HCA 63; (1976) 135 CLR 674

Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 168 ALR 123

Treleaven v WorkCover Corporation/MMI Worker's Compensation (SA) Ltd (Ridgepark Nursing Home) J.D.59/1998

Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245

United Dairies v Felletti (New South Wales Court of Appeal, unreported, delivered 3 April 1992)

Conway v R (2002) 186 ALR 328

1 Before the Full Tribunal are two appeals. One from the decision of a Deputy President reversing the rejection of the worker's claim for compensation. The other from a ruling that legal professional privilege did not attach to a video and a consequent order that the film be produced to the worker's solicitors following the worker's cross-examination.

2 The substantive judgment dealt in detail with the evidence presented. During the course of argument before us comment arose as to the general approach of the Full Tribunal to those reasons and the proper implications or inferences to be made (13). Before describing the Deputy President's reasoning we set down the manner of our approach on this appeal.

3 In Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; (1996) 140 ALR 227 the High Court endorsed the following dicta of Barwick CJ in Whiteley Muir and Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (229 - 230):-

"The trial judge, although not depending in any respect on the credibility of any witness, may have preferred one possible view of the primary facts to another as being in his opinion the more probable. Such a finding may, in my opinion, be disturbed by an appellate court but this should only be done if other probabilities so outweigh that chosen by the primary judge that it can be said that his conclusion was wrong. Again, the trial judge, having found the primary facts, may decide that a particular inference should be drawn from them. Here no doubt the appellate court has more room for setting aside that conclusion. But, even in that case, the fact of the trial judge's decision must be displaced. It is not enough that the appellate court would itself, if trying the matter initially, have drawn a different inference. It must be shown that the trial judge was wrong. This may be achieved by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge's decision is wrong."

4 Where there are arguable gaps in the reasoning the presumption favours the judgment. In Gardiner v Land Agents Board (1976) 12 SASR 458 Walters J stated the rule as follows (480):-

"I recognise the import of the rule that a tribunal `will be presumed to have found as a fact everything necessary to support its conclusion although the same are not explicitly stated' (Watts v. Welch (1950) SASR 289, per Mayo J at p 292). But as his Honour went on to add, there is a proviso to the rule, namely, that `there be evidence upon which such findings may be satisfactorily based, and in the reasons disclosed there is no indication conflicting with that assumption'. ..."

5 A recent expression of the rule describes similar sentiment to those found in Gardiner. In Carian v Elton (2000) NSWCA 175 at par 50, Handley JA stated:-

"... An appellant must establish that the judgment appealed from was wrong (Warren v. Coombs [1979] HCA 9; (1979) 142 CLR 531, 539), and will give respect and weight to the trial judge's conclusions (ibid 551). In an appeal from the exercise of a judicial discretion Lord Wright said that an appellate court will make every reasonable presumption in favour of upholding the judge (Heyman v. Darwins Ltd (1942) AC 356, 388). In my view this was the approach adopted by McHugh J in the passage last quoted, (i.e. Abalos v. Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, 178-9), and in my judgment it requires this Court to conclude that the Judge rejected the evidence of Mr Cooper that Elton had admitted that he was the driver of the bike."

These rules must be understood without compromise to the requirement for adequate reasons: Commissioner for Railways for the State of Queensland v Peters and Another (1991) 24 NSLWR 407 at 416 - 417 per Kirby P, see also Fresh Farm Produce Pty Ltd v Tu [2001] NSWCA 448

6 As stated the Deputy President dealt with the material extensively and in detail. The worker's case was that she injured herself shortly after her shift commenced on the night of 3 August 1999 while loading sealed cartons of Twisties onto a conveyor belt. These weighed between one and two kilograms. They were stacked to a height at or above the worker's head level. The worker claims this activity resulted in her suffering an injury to her neck and left shoulder. The Deputy President concluded on the matter as follows (par 51):-

"On the whole of the evidence I am satisfied and find that the worker did suffer a straining injury to the soft tissues around her neck and shoulder as a result of having to reach above her head for some of the stacked cartons on the night of 3 August 1999. I find that the injury was not a severe one, nor immediately incapacitating. ..."

7 The Deputy President then dealt with the treatment the worker received after the onset of her symptoms. This was by Dr Bentley, the work's doctor and a physiotherapist, Ms Tregoning. He continued (par 56):-

"In light of the worker's treatment by Dr Bentley and Ms Tregoning and the opinions of those treating people, the respondent's acceptance of the certificates issued by and work limitations imposed by Dr Bentley, the opinion of the worker's general practitioner Dr Alexander and thereupon the opinion of Dr Graham that was not without qualification as to the worker's fitness for her normal work duties, the respondent's abrupt rejection of the worker's claim and denial of liability for treatment expenses and its requirement that the worker forthwith resume her normal duties, was in my view unreasonable. From an objective viewpoint it seems to me that the respondent's position was determined without due regard to the worker's interests and the not inconsiderable evidence in support of her claim to have been injured."

8 The Deputy President expressed the view that the response of the employer at this stage compounded the problem. The employer took the view that the worker was a lot better than she said she was. The Deputy President stated (par 58):-

"Clearly the worker was still symptomatic when she was returned to her normal duties on 26 August 1999. I find that she was not at that stage fit for unrestricted duties. Neither Dr Bentley, Dr Alexander, Ms Tregoning or even Dr Graham thought so."

9 This is a scenario not uncommon. A worker, suffering an injury may have his or her difficulties complicated by the denial of the employer. Common experience in this jurisdiction is that the worker's sickness presentation sometimes may then become complicated with psychological features. Such occurred in Rosmini v Chrysler Australia Ltd (1973) 6 SASR 212, a leading case on causation in workers compensation. The headnote accurately describes the sequence of events in that case.

10 However Mr Cole, counsel for the appellant, frames his argument on the premise that the psychological response was disparate from the physical condition. Furthermore the psychological response was produced by the worker's reaction to the rejection of her claim for compensation, (Appellant's Outline of Argument par 2). Such a circumstance fell within s 30A and, malafides excepted, the discharge of the delegated function in s 53 could never constitute unreasonable action or action taken in an unreasonable manner under the Workers Rehabilitation and Compensation Act 1986 ("the Act"). Nor could that constitute the occasion for an injury arising out of employment, (see his argument at 2, 3, 6, 9, 11, 32, 33, 36, 41, 44 and 45).

11 We will assume for the moment that a question of law is raised by this argument. This is not clearly so as it entails a particular question of fact being overturned to reach any possible question of law. Mr Cole's contention that the Deputy President dealt with the matter within the terms of s 30A depends upon his interpretation of par 56 and par 68 of the Deputy President's judgment, inter alia, and the use of the word "unreasonable". It is the respondent's case that the Deputy President did not proceed with reference to s 30A, (54, 62). Rather, the psychological overlay was secondary to the physical injury. Thus s 30A had no application: see Turner v HIH Winterthur (ANH Management Pty Ltd) JD 23/1998, Arrowcrest Group Pty Ltd v Nguyen [2000] SAWCT 121. The respondent says such a reading of the judgment exemplifies a constructive approach to the interpretation of the reasoning. That is consistent with the authorities detailed at the outset.

12 That the Deputy President regarded the psychological condition as secondary to the physical injury is sufficiently clear from his reasons. He states (par 63 - 70):-

"63 I find that the return of the worker to her normal packing work was premature and had the effect of prolonging her disability by aggravating her symptoms and delaying her recovery.

64 In addition it is clear on the evidence that a non-organic component intruded at an early stage to amplify the worker's subjective pain experience. All of the doctors who saw her in 1999 spoke of significant non-organic features, well before the involvement of psychiatrists in the following year. The three psychiatrists who then saw her in 2000 were unanimous in saying that the worker was by then suffering from one form or another of psychiatric/psychological disturbance.

65 Dr Alexander described the worker as `quite distressed' when he saw her on 20 August 1999 following her meeting with Ms Allen when she was told that she would likely have to bear her own treatment costs and resume her normal duties. Six days later the respondent's determination not only confirmed that this was the respondent's position but added salt to the wound by asserting that she had not suffered a work injury at all and all but saying that her claim was a manufactured one.

66 Dr Alexander thereafter repeatedly described the worker's ongoing condition as `most distressed', until 2 September 1999 when she was ultimately `so distressed and not able to continue working' that he wrote out a certificate of incapacity for one month.

67 The worker's evidence describes a deteriorating condition and capacity to cope at work, and this is confirmed by the evidence of the respondent's Ms Allen.

68 Whilst the evidence suggests that there were a number of factors contributing to the worker's psychological state, some work-related and others not, I am satisfied and find that foremost among the aggravating factors was the respondent's unjustified rejection of her claim and the consequential denial to the worker of treatment and support in the workplace as per the recommendations at that time of Dr Bentley, Dr Alexander and Ms Tregoning.

69 The following statement of the worker I think sums up her dilemma:-

`... I was in physical pain and I was emotionally upset because I did not understand why, after working from the Smith's Snackfood Company for ten years, they did not believe that I had sustained a genuine injury and in fact told me that I would have to pay for the cost of my doctor's visits, CT Scans and physiotherapy treatment myself.' (TB 151)

70 I am satisfied and find that both organic and non-organic factors were contributing to the worker's condition as at 6 October 1999 when she finally stopped work. She was then still partially incapacitated for work."

13 The Deputy President went on to deal with the current situation (par 73). He was not persuaded on the evidence that the worker's present symptoms had an organic basis. On all the evidence he regarded the physical injury to have resolved by November 1999. But the overlay continued and she remains partially incapacitated by reason of this.

14 It is also important to note that the worker claimed one injury. Her case was conducted on that premise. Besides this there is ample evidence to justify a psychological overlay sequential to and resulting from the physical injury, (AB Vol III at 30, 37, 51, 52, 53 and Tregoning AB Vol III at 254, 258 and the worker AB Vol I at T106, T198, Dr Czechowicz AB Vol I at T310, Dr Frost AB Vol 11 at T519, T538). But of even more telling is the fact that the Deputy President never mentioned s 30A in his reasons. To suggest as the appellant does that the matter was dealt with with reference to s 30A is unsustainable on any reasonable view of the judgment.

15 Therefore both the reasoning found in the judgment and the consideration of the evidence must result in a rejection of the contention that the Deputy President dealt with the matter under s 30A. He concluded there was a physical injury that developed a psychological component or overlay. The two aspects of the one injury could not be compartmentalised or treated as two distinct or unconnected reactions. That understanding deals with any argument by Mr Cole reliant on Vanderdoes v WorkCover Corporation/VACC Insurance Worksafe (Seanco Pty Ltd) JD68/1998. As such that part of Mr Cole's argument need not be dealt with (36).

16 Having said that, it is reasonable to observe the following. The Act provides for a no fault scheme. The rules of causation as described in the cases highlight the need for an unbroken chain of cause and effect. To contend that if a consequent deed, brought to occurrence by the process, (ie an adverse determination of the compensating authority), cannot enlarge or aggravate an existing injury would be wrong. In contrast s 30A creates special rules for illnesses or disorders of the mind initiating and constituting the exclusive basis of the injury claim. (As to where the line is otherwise drawn for work related injuries: see Koutsouliotas v Royal District Nursing Service of SA Inc [2002] SAWCT 24.)

17 We turn to consider the second appeal. The ruling that legal professional privilege did not apply to the film was concluded by the Deputy President as follows (par 15):-

"15 On the authority of Robbins and Bawden as applied by Gilchrist J in Treleaven, this decision itself being approved by the Full Tribunal in Treleaven v. WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Ridge Park Nursing Home) JD 59/1998, I find that legal professional privilege cannot apply to the video film commissioned by the respondent in this matter. ..."

18 Treleaven v WorkCover Corporation/MMI Worker's Compensation (SA) Ltd (Ridgepark Nursing Home) JD17/1998 concerned the dispute resolution process as it currently operates. Robbins v Harbord and Another [1994] SASC 4571; (1994) 62 SASR 229 was concerned with a situation under the repealed provisions. Gilchrist J commenced his analysis (at 3) by reference to the relevant provisions of s 92 of the Act which state:-

(b) each party to the dispute must, in accordance with the rules-

i) disclose to the conciliator the existence and nature of all evidentiary material in the parties possession relevant to the dispute,

ii) at the request of another party to the dispute, give the party access to the relevant evidentiary material.

(2) However, if the conciliator agrees, a party need not give another party access to evidentiary material if-

(a) the material is a videotape, photographic material, or a report of surveillance; or

(b) the disclosure of the material could prejudice the investigation of a suspected offence."

19 Gilchrist J referred to the rule in Grant v Downs [1976] HCA 63; (1976) 135 CLR 674. That concerned whether the material came into existence for the sole purpose of anticipated or actual litigation. If so, legal professional privilege could be claimed. That decision has now been overtaken by the decision in Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 168 ALR 123. The rule is now the dominant purpose test, not the sole purpose test (par 62). The dominant purpose test is set out in the judgment of Barwick CJ in Grant v Downs (at 677).

20 As we understand Gilchrist J in Treleaven, the issue of the test was not the focus of his determinative reasoning. Yet here the affidavit of Ms Kathryn Allen of 14 June 2001 is remarkably sketchy on the question of purpose so as to establish legal professional privilege (see AB Vol I at 4 at par 3). However we proceed on an assumption that the legal professional privilege requirement attached to this video.

21 In Treleaven, Gilchrist J quoted critical parts of the decision of Robbins identifying and highlighting the statutory function of the Corporation as decision maker. He described the current state of the Corporation at the time immediately prior to lodgement of a Notice of Dispute as indistinguishable from its state prior to lodgement of an Application for Review under the repealed provisions. However he observed the situation changed at the Tribunal level. That presumably was because removal of the protection of legal professional privilege by s 92 only existed during the conciliation process. Once that stage is completed without effect, the right resumes. He stated (at 5, 6):-

"If it was intended that the material would also had to be disclosed to others, further along the dispute resolution process, parliament could have said that the disclosure had to be made to the Tribunal. The fact is, that it did not. This leads me to conclude that under the new regime, beyond the conciliation phase, the obligation of disclosure is not as extensive as was previously the case. I am fortified in reaching this conclusion by the changes to the dispute resolution process, which, beyond the conciliation phase, assume a far more adversarial flavour than was previously the case.

In the case of video evidence that existed prior to conciliation and which was not ordered to be produced, the principles determining whether or not disclosure should be made are, in my respectful opinion, as discussed by Debelle J in BHP Pty Co Ltd v. Mason and Jennings (unreported, delivered 7/11/1996 S5877) which in turn, refers with approval to the decision of Robbins. In the main, production of video evidence would have the effect of breaching the requirements of procedural fairness and therefore, save an exceptional case, it would not be ordered before the hearing.

In this case the worker says that she seeks production of the video evidence taken prior to MMI's re-determination, because it was said that that evidence might corroborate her complaints of back pain and discomfort, or otherwise, that it might raise issues regarding the bona fides of MMI's re-determination, such that she therefore might wish to tender it as part of her case.

In my view there is nothing remarkable about this case that warrants treating the worker differently to other workers. In the ordinary course if this matter proceeds to hearing, at the conclusion of the worker's cross examination, if an application were made for production of the video evidence, such an order would be made."

22 On appeal the Full Tribunal in Treleaven (JD59/1998) dealt with the matter on a narrower basis than it had been dealt with by Gilchrist J. This was because the worker's counsel confined the application for discovery at first instance to those documents in existence up to the date of the re-determination but not otherwise. Still, the Full Bench observed that Robbins' case should be understood and explained on the basis that the Corporation or the exempt employer were not parties to a review appeal in the ordinary role as litigant. They were primary decision makers defending their primary decisions against a person affected by the decision. As such the film's purpose was not used as in the case of an ordinary litigant in the course of litigation.

23 In Treleaven the appellant tried unsuccessfully to argue that legal professional privileges in all its forms, whether solicitor/client privilege or litigation privilege was out. It was contended that was the necessary effect of the Corporation in its statutory role. The Full Bench disagreed. It stated (at 6 - 7):-

"The normal principle regulating cases such as this is that video evidence of the worker's activities should be excused from production until after the worker has been cross-examined about her physical activities (BHP (supra) which cites Robbins (supra) with approval). In essence the learned single Member could see no basis for departing from that normal principle in the instant matter."

24 Mr Cole's essential contention must cut across that conclusion of the Full Tribunal in Treleaven unless he contends a distinguishing factor. He says that legal professional privilege attaches to the video at all times after conciliation is complete and the right uneffected as nothing is contemplated within s 92(b) that removes it. Moreover there is no requirement in the Act that if the video film is not used by the appellant it can be ordered over at the end of the worker's cross-examination. He argues that it cannot because it remains privileged. There is much in support of both his arguments namely it is privileged in these circumstances and the end of cross-examination makes no difference to that status.

25 We reiterate the sequence of events. The worker's injury occurred on 3 August 1999. The determination rejecting her claim occurred on 26 August 1999. The films dated 30 September to 18 November 1999. The conciliation conferences were held on 18 November 1999 and 22 December 1999. The respondent's representative disclosed the existence of the video at the conciliation conference. No relief was given by the Conciliator in accordance with s 92(b) of the Act. No request of the worker for access to the video occurred in the course of the conciliation proceedings. Mr Cole stressed (20) that in Robbins' Case the video had been filmed prior to the original decision to reject the worker's claim and this was an important difference to the situation of the worker here.

26 The Full Tribunal in Treleaven has stated the principle that production should be declined until after the worker's cross-examination. Then it should be ordered. The Deputy President here has obediently applied that principle. To uphold Mr Cole's argument would mean revisiting and changing the Full Tribunal's decision so shortly after it had been expressed. Such a step requires extra consideration and caution: Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 at 269 per Dawson, Toohey and McHugh JJ.

27 There is also the matter of the sketchiness of Ms Allen's affidavit to clearly state the purpose for which the video was brought into existence. The conclusion favouring Mr Cole's argument depends on interpretation and inference to be drawn from the affidavit.

28 However the determinative issue in our opinion is that, even assuming legal profession privilege did attach and further assuming the order ought not to have been made, it appears to have had no impact whatsoever on the hearing or particularly on the conclusions reached by the Deputy President. In other words the respondent suffered no prejudice. In saying that we acknowledge, as submitted by Mr Cole, that it was referred to in the judgment of the Deputy President in par 50 (30). However as Mr Cole also concedes it is hard to conclude any effect it had, whether it helped or hurt the worker (31). It was of little evident consequence. This is the point made by Mr Saies, counsel for the respondent, in his argument (Respondent's Outline of Argument par 4.4, tr 72). It formed no part of the evidence upon which he relied in his final address (74).

29 That being the case this appeal is confined to the wrongful order to produce the video. Such being a decision in the nature of discretionary rulings related to evidence, it is not one which usually attracts the intervention of this Tribunal unless it occasions a substantial injustice: United Dairies v Felletti (New South Wales Court of Appeal, unreported, delivered 3 April 1992), Conway v R (2002) 186 ALR 328.

30 For these reasons the argument on the second appeal is rejected. As the Notice of Alternative Contentions was contingent on a success by the appellant (76) we are not called upon to consider them. Both appeals are dismissed.