Secretary, Department of Education v Dawking

1. [1]

   GLEESON JA: On 1 May 2023, Deputy President Wood of the Personal Injury Commission (the Commission) confirmed a determination of a Member of the Commission dated 3 November 2022 to the effect that the employer was liable to pay workers’ compensation to the employee, Ms Diane Dawking (the worker).

2. [2]

   The employer appeals from that decision. Such an appeal lies only where a party is aggrieved by a decision of a presidential member in point of law: Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act), s 353(1).

Background circumstances

1. [3]

   An outline of the circumstances giving rise to the appeal is as follows.

2. [4]

   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”:

3. [5]

   On 2 September 2021, the Department’s Deputy Secretary, Chief People Officer, sent an email directed to all school-based staff providing an update on mandatory vaccinations by 8 November 2021, which included under the heading, “What you need to know”, “From 8 November all NSW school and preschool staff will be required to have received two doses of Covid-19 vaccination”.

4. [6]

   The worker claimed that the contents of the Secretary’s email concerning the mandate to be vaccinated caused her to develop a psychological injury. She left work on 6 September 2021.

5. [7]

   On 23 September 2021, the Minister for Health made Public Health Order (Covid-19 Vaccination of Education and Careworkers) Order 2021 (the Public Health Order) affecting, relevantly, schoolteachers. Clause 4(1) of the Public Health Order provided:

6. [8]

   Certificates of capacity issued by (a) Mr Muhamad Ziedni, a clinical psychologist, dated 12 October 2021, recorded the date of the worker’s injury as 27 August 2021 and stated that the worker had no capacity for work from 9 September 2021, noting that she “suffers from acute stress reaction/disorder in relation to the current Covid-19 restriction and mandatory vaccination commencing on 27/08/2021 and continuing”, and (b) Dr Leslie Vago, general practitioner, dated 30 October 2021 recorded the date of injury as 27 August 2021 and diagnosed the worker’s injury as an “acute stress reaction/disorder”.

7. [9]

   Dr Richa Rastogi, a psychiatrist, provided a report dated 23 December 2021 giving a diagnosis of an adjustment disorder with anxious distress “following coercive emails [during] COVID pandemic to receive vaccination” “with no support making her feel ostracised, alienated and vocational uncertainty. There was no pre-existing psychological conditions”.

8. [10]

   The Department did not challenge the medical evidence relied upon by the worker.

9. [11]

   It is common ground that the worker was advised by the Department on 17 November 2021 that her employment as a temporary teacher ceased as of 8 November 2021, as she had failed to attest that she was vaccinated in accordance with the Public Health Order and the Teaching Service Act 1980 – Determination No 1 of 2021 – COVID-19 Vaccination Evidence, issued under the Teaching Service Act 1980 (NSW).

10. [12]

    The Department refused to pay the worker workers’ compensation. On 27 May 2022, the worker filed with the Commission an application to resolve the dispute. On 3 November 2022, the Commission constituted by a Member issued a certificate of determination awarding weekly benefits compensation to the worker.

11. [13]

    From that determination, the Department appealed to the Commission constituted by a presidential member. The Deputy President determined the appeal without holding any conference or formal hearing, pursuant to s 52(3) of the Personal Injury Commission Act 2020 (NSW). On 1 May 2023, the Deputy President confirmed the determination of the Member of the Commission dated 3 November 2022: Secretary, Department of Education v Dawking [2023] NSWPICPD 23.

Issue – employment as the “main contributing factor”

1. [14]

   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:

2. [15]

   With respect to a personal injury, s 9A of the 1987 Act relevantly provides:

3. [16]

   Pursuant to s 11A, the entitlement to compensation for psychological injury is qualified by reasonable actions by the employer:

4. [17]

   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.

5. [18]

   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.

6. [19]

   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

1. [20]

   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.

2. [21]

   The only questions in issue before the Deputy President were whether:

3. [22]

   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.

4. [23]

   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].

5. [24]

   Before the Member, the Department submitted that Bjekic was an “analogous recent authority”, whilst Ms Dawking submitted that it was distinguishable.

6. [25]

   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:

7. [26]

   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:

8. [27]

   The Deputy President’s summary of the parties’ competing submissions, included at [88] and [93]:

9. [28]

   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].

10. [29]

    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]:

11. [30]

    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:

The errors of law contended on appeal to this Court

1. [31]

   Section 353(1) of the 1998 Act relevantly provides:

2. [32]

   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.

3. [33]

   Circumstances where a decision might be erroneous in point of law include where the Commission constituted by a presidential member:

4. [34]

   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.

5. [35]

   The amended grounds of appeal read:

6. [36]

   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.

7. [37]

   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:

8. [38]

   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.

9. [39]

   In substance, the three questions of law raised in this Court were:

   1. (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. (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. (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).

10. [40]

    As will be apparent, there is a substantial overlap between the asserted errors of law referred to in (1) and (3) above.

11. [41]

    It is convenient first to address the “no evidence” grounds.

Grounds 3, 4 and 4A: no evidence

1. [42]

   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”.

2. [43]

   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)].

3. [44]

   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.

4. [45]

   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.

5. [46]

   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”.

6. [47]

   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. (1)

      the Member concluded at [93] that the worker sustained a psychological injury arising out of or in the course of her employment:

   2. (2)

      the worker’s submission that Member had recorded at [61] was that:

   3. (3)

      on the issue of causation of injury, the Member observed at [93]:

   4. (4)

      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]:

   5. (5)

      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:

7. [48]

   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]:

8. [49]

   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.

9. [50]

   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. (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. (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.

10. [51]

    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.

11. [52]

    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.

12. [53]

    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”.

13. [54]

    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:

14. [55]

    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]:

15. [56]

    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. (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. (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.

16. [57]

    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]:

17. [58]

    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.

18. [59]

    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.

19. [60]

    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.

20. [61]

    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”.

21. [62]

    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.

22. [63]

    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):

23. [64]

    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.

24. [65]

    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

1. [66]

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

2. [67]

   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.

3. [68]

   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.

4. [69]

   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:

5. [70]

   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.

6. [71]

   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.

7. [72]

   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.

8. [73]

   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].

9. [74]

   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.

10. [75]

    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].

11. [76]

    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]:

12. [77]

    The Department did not challenge these reasons in this Court.

13. [78]

    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.

14. [79]

    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]:

15. [80]

    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.

16. [81]

    There are several reasons why the Department has failed to establish that the decision of the Deputy President is legally unreasonable.

17. [82]

    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.

18. [83]

    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.

19. [84]

    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.

20. [85]

    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.

21. [86]

    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.

22. [87]

    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.

23. [88]

    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.

24. [89]

    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.

25. [90]

    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).

26. [91]

    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:

27. [92]

    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:

28. [93]

    The Department said in written reply submissions that:

29. [94]

    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”.

30. [95]

    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.

31. [96]

    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.

32. [97]

    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

1. [98]

   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.

2. [99]

   I propose the following orders:

   1. (1)

      Appeal dismissed.

   2. (2)

      Appellant to pay the respondent’s costs.

3. [100]

   MITCHELMORE JA: I agree with Gleeson JA.

4. [101]

   KIRK JA: I agree with Gleeson JA.