Compensation Court of New South Wales CITATION : Miodrag v Primo Smallgoods [2001] NSWCC 147 revised - 5/09/2001 Nevan Miodrag PARTIES : v Primo Smallgoods MATTER NUMBER(S) : 41247 of 1998 JUDGMENT OF: Geraghty J CATCHWORDS: Entitlements & Liability :- psychological injury employers contribution - real and substantial LEGISLATION CITED: S 9A, S 11A CASES CITED: Allan Aubry Townsend v The Commissioner of Police (unreported 17/2/1992); Drayton v Coles Supermarket Pty Ltd (unreported 1/6/2001) DATES OF HEARING: 03/05/2000, 16/10/2000, 22/02/2001, 23/02/2001, 12/06/2001, 17/07/2001 DATE OF JUDGMENT: 07/17/2001 FOR APPLICANT: Mr F Curran instructed by Stojanovic Solicitors LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr B Kops instructed by Hicksons Lawyers JUDGMENT: The Claim and the Issues 1. Nevan Miodrag claims weekly benefits from 24 December 1997 to date and continuing, and payment of medical expenses. 2. He had based his claim on a brief period of employment from 4 November to 23 December 1997, during which, he alleged, he was subject to racial harassment which caused him stress and depression. 3. Counsel for the respondent identified the issues for determination as: firstly, whether any harassment and racial vilification was directed towards Miodrag; secondly, if there was any such unpleasant treatment in the factory, whether that treatment caused psychological injury, and thirdly, whether, if he had been subject to racial vilification, that treatment constituted a substantial contributing factor, pursuant to s 9A, to his mental condition. A further issue was whether the provisions of s 11A apply, since the respondent alleged that, if the applicant suffered any psychological injury, it was the result of the termination of his employment at Christmas 1997; and finally, the respondent placed in issue Miodrag's incapacity for work, and the extent of any inability. 4. Miodrag completed a compensation claim dated 16 January 1998. It is Exhibit J. In this document he alleged that an injury had occurred on 2 December 1997 at 10.30. He identified the date of notice as 2 December 1997, and person to whom notice of injury had been given as his supervisor, Max. He identified the injury as depression and anxiety. Annexed to this claim for compensation is a two page hand-written, detailed, itemised allegation as to the vilification and harassment, including physical threats, to which Miodrag alleged he was subjected. A Profile of the Applicant 5. Miodrag was born in Croatia of Serbian parents, and arrived in Australia on 17 March 1996, as a refugee. In his home country of Croatia, he had been an electrical welder and steel worker. He had served for some years in the army and had also worked in a factory. In October 1991, his home, which was situated in the war zone in Croatia, had been burnt and destroyed. He had lived thereafter in a zone protected by the United Nations for four years. His family and himself had been caught up in the fierce war in Croatia. When he came to Australia in March 1996, he began to live with his uncle and his uncle's wife. Miodrag was learning English and searching for work. 6. Exhibit K is a student record of achievement relating to the period July to September 1996. Miodrag's achievements are recorded as straight A's. He was graded A for his ability to undertake the roles and responsibilities of a learner in a formal learning environment; A as being able to use a range of learning strategies and resources; A again, for his ability to demonstrate understanding of a spoken information text; A again, for his ability to provide personally relevant information using spoken language, and A's for the following abilities, namely, his ability to request information and goods using spoken language; for telling a short recount; for reading social sight signs; reading simple written instructions; reading a short information text; reading a short narrative recount; and for his ability to complete a simple formatted text. Similar abilities were graded in the further course which ran from October to December 1996. He was issued three certificates (all forming part of Exhibit K), certifying that he had met the requirements for mixed language skills, orientation to learning and for pronunciation. 7. In searching for work, Miodrag had answered advertisements, and more particularly, advertisements which appeared in the Croatian newspapers, though he himself was Serbian. He attended Dr Strinich ( a general practitioner) in April 1996, in respect of a matter which has no relevance to these proceedings other than that he had enjoyed the services of a local practitioner. 8. On 4 November 1997, Miodrag began working for the respondent and worked there until Christmas. He was employed on a short term employment contract. He was engaged to work as a meat processor, particularly in the Parma section of Primo Smallgoods. At the time he applied for work, he was given a series of documents which, it would seem, were taken home, read together with his uncle, signed and returned. This series of documents from Exhibits 5 - 11. 9. Miodrag began work in the Parma section, with five or six other employees, in a factory where approximately 300 other employees were working. It was a very multi-cultural workforce. There was a heavy concentration of Lebanese migrants (who spoke Arabic), of islanders from the Pacific, and some, perhaps 25 to 30 (maybe even more), Croatians. Miodrag worked under the supervision of Max Cappelletti and with employees whose first names were Joseph, Slavka and Albert. He complained that he was attacked every day, that he became the subject of threats, slurs, abuse, teasing and racial questioning with implications of harassment. He gave evidence that he had been threatened with knives which were held to his throat, and with fists. 10. He and other employees were required to manoeuvre trolleys in the factory, and he alleged that he had been threatened with some people driving or pushing these trolleys at him. He told the Court that his mother's name was subject to abuse by workers saying Fuck your mother. He had also been asked how many Serbians he had killed. Someone is alleged to have said words to the effect You're a Croatian. I'm going to kill you. Miodrag had problems of communication with the bosses and with many of the members of the workforce. He said that about 10 people in the factory, from different sections of the workforce, had threatened him. 11. On 2 December ( the date nominated as the date of injury in the compensation claim form), Miodrag approached the welfare worker of the Serbian Orthodox Welfare Association in Cabramatta. When he returned there again on 12 December 1997, making allegations of harassment and discrimination, the welfare worker, Vera Cvijetic, contacted Miodrag's employer and spoke to someone at the factory about the complaints he had made. The report of the welfare officer is Exhibit H. I will return to this report. 12. Miodrag said that he had complained to his foreman, Max, and to the manager of the factory, Mr Newman. His complaint, he said, had been in English. He said that he had told them that he had been discriminated against and that they had tried to kill him with a knife. He said that his supervisor, Max, had said words to the effect: I can't help much. I'm in a dangerous position of being killed myself. They wouldn't dare to attack you in future. Max Cappelletti denied that this conversation had taken place. I do not accept Miodrag's evidence in this regard, or the details of the evidence of harassment and vilification as described by him. When I saw Miodrag, he was extremely disturbed and out of contact with reality. He seemed confused. He spoke a lot of nonsense. His claim became a very difficult one to process. He was angry and short-tempered. He refused sometimes to answer questions. At other times, he would rattle on with a flood of irrelevant information. His counsel was patient, supportive, and respectful to him, but firm in dealing with him. It seemed to me at one stage appropriate to appoint a next friend for the applicant's protection. 13. I concluded that, in his present condition the applicant was not able to describe accurately events which had occurred before Christmas 1997, since in his mind they were overlapped with phantoms, exaggerations and reconstructions. The details of his evidence I do not accept. When I saw him, Miodrag was in no position to recount an accurate history. However, the general tenor of his complaints was supported from a number of independent sources: for example, his uncle and his uncle's friend, whose evidence I will come to in due course, the Serbian Orthodox Welfare Association (Exhibit H), Dr Strinich, the Liverpool Hospital records, and to some minor but quite significant extent, the observations of the respondent's witnesses. 14. At Christmas 1997, on 23 December, the applicant approached the hospital as an out-patient, and the records are available as Exhibit D. He consulted Dr Strinich on 24 December 1997. His records are Exhibit A. He returned to Liverpool Hospital on 29 December 1997, and it appears from its records that Miodrag had suffered a mental collapse from which he has failed to recover. He returned to Liverpool Hospital on 25 August 1998, as appears in the records. He was incapacitated and remains so. In my assessment, because he is clearly unable to work with other people and is a man in an extreme psychiatric state, he is totally incapacitated. He has not worked since December 1997. He lives in isolation in the Moree District, with no real contact with anyone, and particularly no contact with his uncle. Two Friends of the Applicant 15. The applicant's evidence was supported by two senior gentlemen. His uncle, Dusan Coso, who had known Miodrag for 25 years, gave evidence, as did Mr Coso's friend, Danilo Pejic, a gentleman of 67 years of age who was a long-time friend of Miodrag's uncle. 16. Six people from the respondent's factory gave evidence on behalf of the respondent: Max Cappelletti, the foreman who worked with Miodrag and who is a Perugian Italian; Joseph Shamou, an Iraqi man who was a process worker in the Parma section and who worked with Max and, for some short time before Christmas 1997, with Miodrag; Steven Bertram, the human resources manager at Chullora from June 2000, who gave evidence, but only as to concerted and sometimes fruitless attempts to identify employees who had worked with Miodrag; David Newman, who was the factory manager and who made a statement which is now Exhibit L; Monica Drvenka, a young payroll clerk from March 1997 to November 2000 at the Primo factory, who had acted for a time as an interpreter for Miodrag when he was dealing with Mr Newman and Michelle Murphy (she too made a statement which is now Exhibit 19); and finally Michelle Murphy, the personnel manager, (whose statement is Exhibit M), who dealt with Miodrag at the time of his employment, who provided the documents which he signed, and who dealt with him after his employment had been terminated. 17. Miodrag did not present well in Court. His evidence, on its own, was not of such a quality that one could rely on it. However, his uncle, Dusan Coso, a 60 year old gentleman who came to Australia in 1970, a man who has worked as a welder in Australia, came to support his nephew. He had sponsored Miodrag as a refugee. From March 1996, his nephew had lived with him and his wife for about three and a half months. During this time, Coso said, his nephew had been happy, normal and apparently free of problems. Before November 1997, when Miodrag began working for the respondent, Coso had had regular weekly contacts with his nephew and everything, he said, seemed to be normal. However, after he had begun working, from 4 November, a radical change had come over Miodrag. 18. Doing the best he could, Coso said that his nephew had begun to change about two weeks after he had commenced work. Miodrag reported threats to him, and problems, and Coso had given his nephew advice and encouragement. He had told him to report his problems to management. He had advised him to remain quiet, to work hard. He said that his nephew had seemed scared. He had seen him shaking, and red in the face. Coso seemed to me to be a good, gentle, concerned man. He appeared careful and restrained, anxious about his nephew - attending the Court each day to support him. 19. Danilo Pejic also attended on one occasion to support Miodrag. He is a retired fitter and turner who came to Australia in 1958, and is now 67 years of age. He is a friend of the applicant's uncle. He has known him for 30 years. He said that he had met Miodrag early in 1996, that the man whom he knows now is not the same man whom he met when he first arrived in Australia. There has been a radical change. When he first met him, Miodrag had been relaxed and laughing, but in 1998, when he saw him again, he was rigid, unresponsive and completely different. 20. Reflecting on the evidence of these two senior men, I was impressed to observe those who had been in Australia for years and had worked here as tradesmen, who were experienced and knew the Australian culture, coming to Court to support a young man who was so obviously disturbed. The Respondent's Witnesses 21. (1.) Max Cappelletti is an Italian from Perugia who appeared to me to be a happy, smiling, simple, spontaneous man. He was employed by the respondent in 1993 and is a foreman in the special products area. Miodrag worked in his section for about six weeks with 8 to 10 other employees. The number of the employees in the section varied since at Christmas time, there was an increase of casual staff. 22. Cappelletti said that he had had some difficulties with the different languages and therefore had problems giving directions to men such as Miodrag. Slavko, a Croatian, would interpret for him. 23. Cappelletti identified and made observations about some of the other workers in his section, especially about Slavko, Joseph (the Iraqi man) and Albert (a Lebanese employee). He made no adverse comments about any of them. He observed they were good, happy, easy workers. He did not observe any vicious teasing, any harassment or abuse. He said that there normal teasing occurred- about soccer, for example. He himself was nicknamed Spaghetti. 24. He said that Miodrag had never made any complaint to him and he commented that Miodrag had been like a dead rose. He had been an unhappy worker from the beginning (as far as he could remember), though he was prepared to admit that maybe his memory was faulty and that perhaps Miodrag had been unhappy for two weeks before his termination. 25. Cepelletti said there were in excess of 300 employees in the factory, mostly men, and that a considerable number of them were Croatians, though there were other ethnic groups. He agreed that they used trolleys throughout the factory and in the section where Miodrag had worked. They also used knives, especially in the boning room, though it would seem that Cappelletti himself also carried knives. 26. Cappelletti said that he had not heard of the Serbian Welfare Association. It would follow that one might draw the conclusion that he was not involved in any investigation about harassment, or if he had been involved, perhaps the person who had approached him had not disclosed the source of any allegation - or, alternatively, he had forgotten. It does not seem significant. 27. (2.) Joseph Shamou is an Iraqi gentleman who speaks Arabic, Syrian and some broken English. No interpreter attended court. I must say that I found it hard to understand him. He did the best he could, and so did we. 28. Shamou had been employed by the respondent for two periods, the first ending in April 1997, the second from 17 November 1997 to 3 March 1998, so that he had worked in the Homebush factory for a time, and later, after Christmas 1997, at Chullora. He had worked with Max in the Parma section where, he said, he had been employed with four or five others, whom he nominated as: Albert; Algie, a Tongan person; Ronnie, a Samoan with whom he used to drink in the pub (though I can only guess what language they communicated in); and Max. 29.29. At the time Shamou gave his evidence, Miodrag was in Court, and he was asked to identify the applicant. He said that he had never seen him. He was firm in his evidence that Miodrag, the man at the back of the Court, was not someone he knew. Nor did he know a person called Slavko. He said that in November 1997, when he had returned to the Parma section, he had been working with the same people as before and that there was one new Lebanese worker. He said that the employees had all acted as friends and worked as a team, that there had been no teasing. He had never heard the term mother fucker at Primo. Maybe the explanation of this was that he did not speak Croatian, and spoke poor English. He also said that he had been invited to recall the circumstances of his employment only two or three weeks before he gave evidence in June of this year. 30. (3.) David Newman (whose statement is Exhibit L), said in his evidence that he has been the factory manager since 1994. At Christmas 1997, he said, the factory had been very busy and would have had about 300 or 350 employees. He said that the respondent was not a Croatian company, as Miodrag has alleged and presumed, but was an employer of a multi-ethnic group where there was a substantial number from the Balkans. He said that in early November 1997, Miodrag had come to the factory with another person who had introduced him. He learned that he was a recent refugee from Bosnia and that he had had a little trouble, so he was asked to help him out. He had taken an interest in him. Miodrag, he said, had been employed for the Christmas period. 31. Newman remembered Joseph Shamou, Abdul Kanj (Exhibit 20 is an affidavit setting out the attempts made by the respondent to contact Abdul Kanj), and he also remembered a person called Slavko. Newman said that as a rule he was constantly in the factory, that there had been a close observation of the employees. He also gave evidence of the strict company policy about discrimination. 32. Exhibit H is a report from the welfare worker of the Serbian Orthodox Welfare Association in which she relates that she had telephoned the factory and spoken about the concerns Miodrag had about threats against him. Newman had taken that call and spoken to the foreman, Max, and to other foremen. He said that there had been nothing to pursue, though he had kept an eye on the situation. 33. I note that there was no record kept of these queries, nor was there a record that Newman or anyone had spoken to Miodrag about the complaints. The telephone call is not referred to in Newman's statement (Exhibit L). 34. Newman said that he knew the endearing Croatian phrase - screw your mother - or brother or sister - and he described this invocation as not acceptable. Newman's only fluent language is English. He was not conversant with Croatian. It seemed curious that he would know such Croatian phrases. His familiarity would seem to indicate that they were used regularly, frequently, to such an extent that a non-Croatian speaking person in the factory might know what they meant. 35. In his statement and evidence-in-chief, Newman was confused about the identity of an employee named Slavko. He had made a mistake about his identity in his statement. This mistake does not seem to me to be significant in itself. He said in paragraphs 5 - 6: I have been made aware that Miodrag has made allegations of intimidation or harassment. I have read the annexure which has accompanied the claim form to assist in identifying the names or dates of any occasion Mr Miodrag spoke with other staff. I am not aware of Mr Miodrag being harassed or intimidated. I have heard staff in the presence of Mr Miodrag talk about politics as they related to his former country as he was only a recent immigrant. I do recall that Mr Miodrag had heavy discussion on politics with Slavko Vranic. When the discussion took place it was in their national tongue and I could not understand what they were talking about. I do recall Mr Vranic telling me that they did speak of politics in their country. I am aware that Slavko Vranic is a Serbian Croatian and Mr Miodrag is a Serb Croatian. At the time of the Bosnian War break-out, Mr Vranic was at the time spoken to about his political leanings. I had received complaints from female staff who worked in the smallgoods who I believe were from the same area, and that Mr Vranic was making stupid comments and he was asked to stop. I spoke to him and one of the directors, John Hunt, also spoke to him. He was told that this was a workplace, there were no place for politics. He told me that he accepted this, and was told that if he didn't stop with this type of behaviour he would not have a job with us. We do not tolerate racial harassment or any type of slurring from staff towards other staff. Most of these conversations took place in the lunch hour, and not in their respective working areas. I was told by Slavko Vranic that they only discussed their native politics. I am not aware if the subject of the killing of Serbians was discussed or not. I was never told by Slavko Vranic that he had this type of discussion. 36. I should say, firstly, that Slavko Vranic's employment was terminated in January 1997, some ten months before Miodrag was employed in the factory, so that the Slavko Vranic referred to in the statement is not the Slavko with whom Miodrag alleged he was working between November and December 1997. I do not regard this observation as of any significance. What is of significance, in my estimation, is that in January 1997 there was a Slavko Vranic who was a political troublemaker and a militant, and whose employment was terminated in January 1997. It would seem that the evidence, for example, given by Joseph about harmonious atmosphere in the factory, was not entirely accurate. Newman knew of heavy, animated discussions about politics, religion and sex. Balkan politics was a major topic among those from the region. There had been heated discussions, though, he said, they were not threatening. Newman said that any violent incident was brought to his attention and, if two employees were found fighting, they were immediately sacked as a matter of policy. Implied in these observations is that sometimes, perhaps rarely, there were violent incidents, giving rise to his observation that they would be brought immediately to his attention, and he would deal with them. 37. Newman said that he had been keen to follow Miodrag's progress. He observed that Miodrag had lost concentration at some time in the course of his employment, and that he had become an unsatisfactory employee. His employment would not have been continued even if he had not agreed to a short-term contract. Newman said that Miodrag had been diligent for the first couple of weeks and that then his performance had fallen away, though he did not remember exactly when this had occurred. He said that Miodrag had been unfit to do his work because of his attitude and his demeanour. 38. (4.) Ms Monica Drvenkar made a statement (Exhibit 19) and gave evidence. She was a young payroll clerk who had been employed from March 1997 to November 2000. I thought her to be a careful witness, with no apparent reason to colour her evidence. She spoke both Croatian and English, with equal fluency. 39. At Christmas 1997, she had been summoned by Michelle Murphy to translate for Miodrag in relation to the employment arrangements and contact he had entered into some weeks before. She said that Miodrag had assured her he could understand every document relating to his employment. She observed that he had been agitated, that he had raised his voice, and had seemed aggressive. He had rung to speak, on two occasions at least, with her. He had pleaded for his old job, yelled at her and seemed desperate for work. He had made no complaint about harassment, but simply wanted to be reinstated. She said that there had been about 350 employees in the factory, and agreed that between 20 and 25 were of Croatian origin. 40. She never experienced any racial discrimination or any similar problem in the factory, though I should observe that her office was upstairs, away from the factory floor. However, she did know expressions like fuck your mother - or sister or brother. She said that they were just jocular statements, though she regarded them herself as rude, as statements which should never be used in ordinary speech. She agreed that she would be quite offended if they were used to her. As a result of questions from myself, I concluded that the expression could be funny, or alternatively, grossly insulting - similar to some typically Australian expressions whose meaning depends on the tone, the inflection of the voice, and on the relationship between the two parties communicating. Context was and remains essential. 41. (5.) Michelle Yvonne Murphy had been the personnel officer up to June 2000. She gave evidence orally and produced a statement which is Exhibit M. She too appeared to be a careful witness. She was professional in her demeanour, but again, not an employee who was on the floor of the factory on a regular basis. 42. In October/November 1997, she had dealt with all Christmas applicants for work, and she had dealt with Miodrag. He had arrived with a relative and together they had taken documents away, she said, and returned with them signed up. These are the documents which appear as Exhibits 5 - 11. 43. She said that about 12 December 1997, she had received a telephone call from a welfare officer about Miodrag. She agreed that this had been a few weeks before Christmas. She had answered the telephone and passed the caller to Newman, the factory manager. They had agreed that the complaint needed to be investigated and that they should speak to the supervisors. She knew nothing of any harassment in the factory. 44. On 23 December 1997 she had been part of the interview with Miodrag in which Monica Drvenkar had acted as an interpreter, and Ms Murphy agreed that Miodrag had appeared agitated, angry, very vocal, but that he had made no complaint of harassment. 45. Ms Murphy said that she had known Slavko Vranic but disagreed that he had been a troublemaker. She said his employment had been terminated because of misconduct and that there had been a court case. She disagreed with the assertion that there had been political agitators in the workforce. At least she was not aware of them. She said that she had become the human resources manager only after the dismissal of Slavko Vranic in January 1997. 46. Ms Murphy said that there were Croatians on the floor of the factory, but that the Lebanese were the main group and there were a lot of Islanders. She said there might have been 30 to 35 Croatian employees, that is people from the Balkans, she being unable to distinguish between Serbians and Croatians. She said that the factory had had some trouble with the Lebanese and Arab-speaking employees, but that she had not heard of any tension between the Balkan people. I regarded this observation as quite significant. The Medical Evidence 47. In reviewing the medical reports, one must examine carefully whether each doctor had a full history of trauma in Yugoslavia and a complete history of presenting symptoms at hospital in August 1998. Important also to identify the history provided at various stages of the applicant's treatment. 48. Exhibit H is a report from the welfare officer of the Serbian Orthodox Welfare Association. Vera Cvijetic recorded that Miodrag had telephoned her from his workplace on 2 December 1997, complaining that he was being hassled and discriminated against by his co-workers. He was talking in an excited way and seemed to be in panic. She invited him to come to the office of the association, to discuss the matter further. Miodrag attended the office on 12 December 1997 and, as the welfare officer reports, in his presence and at his request she had telephoned his employer. A representative of the employer spoke to her because Miodrag did not speak English well. He explained that Miodrag should speak to him, to discuss his complaint and to try to resolve the problem. 49. Exhibit B is the records of the Emergency Section Liverpool Hospital. They record that Miodrag attended on 23 December 1997. He was feeling upset. He reported a two week period, preceding the retrenchment (which was not foreseen), characterised by a feeling of depressed mood, insomnia, anorexia with weight loss of 3 kg, and anhedonia and fatigability. 50. When he returned to the hospital on 29 December 1997, the examining doctor noted that there were no psychotic features, or any intention of suicide or homicide. He returned there a year later, on 25 August 1998, with depression. The doctor noted on this occasion that he was irritable and easily agitated. He was experiencing panic attacks and felt that he might hurt someone because he became easily agitated. He said there was something inside him that appears every day, in his head. He requested a certificate so he did not have to work. 51. Dr Parmegiani's report is Exhibit F. It is the report to Dr Strinich dated 23 December 1997. Dr Parmegiani recorded that in an interview, with the aid of a Serbian interpreter, Miodrag had given a two week history of symptoms consistent with major depression preceding his retrenchment - including fatigue, anhedonia, anorexia and insomnia. He had denied suicidal ideation. I do not understand the significance of the words preceding his retrenchment. I do not understand whether this is a causal phrase, or a temporal one. I assume it is temporal since a two weeks' history of symptoms consistent with a major depression would seem to pre-date the panic response to the applicant's retrenchment. 52. Dr Strinich was the general practitioner who reviewed the applicant regularly and who saw him before his employment. His report and notes form Exhibit A. He examined Miodrag on 24 December 1997, after he had sought treatment at the Liverpool Hospital, after he had been diagnosed as suffering a major depression. The doctor remarked that his depression was evidently the result of his being retrenched from work. However, looking further into it, I was informed by the patient that at the place of employment he was harassed and verbally abused by his fellow employees on religious and political bases. I gather there was no actual physical confrontation between them. 53. When Dr Strinich saw him, Miodrag was visibly shaken and upset about the treatment he had received in the workplace after traumatic experience in Croatia. Dr Strinich certified him unfit to return to work. He saw him again on 5 January 1998 with the same symptoms, and continued to treat him from that time. He referred Miodrag to Dr Kecmanovic on 16 January 1998. He noticed some deterioration in April 1998. Dr Strinich continued to review Miodrag, and remarked that when he checked through his clinical notes, there was no evidence of any mental disorder until this episode. By September 1999, there was no improvement in his condition. 54. Dr Kecmanovic began treatment in January 1998, and continued to review Miodrag in August, November 1998, September and December 1999. His reports are Exhibit 3. 55. In January 1998, the doctor diagnosed symptoms of reactive anxiety and depression. By this time, on his own account, Miodrag's overall mental condition had improved, though he insisted he was not fit for any work whatsoever. Dr Kecmanovic said that in his mind there was no obvious reason for his unfitness for work, but that he required further psychiatric treatment. In his report of 1998, Dr Kecmanovic observed that Miodrag was keen to claim compensation for sustained mental suffering. He saw him in January 1998 and he recorded: ... Miodrag complained of having miscellaneous physical and mental problems and of not feeling fit for any work. 56. In his report of 22 November 1998, Dr Kecmanovic stated that Miodrag was not suffering any mental illness. He had a personality disorder and this kind of mental condition was virtually unmanageable as it was built into his psychological makeup. Low tolerance threshold, poor control of impulses, egocentricity, an inability to learn from experience, poor tolerance of frustration and subsequent occasional acting out, a tendency not to observe norms governing social behaviour, were the major characteristics of his condition. Dr Kecmanovic also produced other reports which are part of Exhibit B. 57. In his report of January 1998, Dr Kecmanovic recorded that Miodrag had told him he was happy with the job itself, but not with the people around him who, on his account, were mocking, harassing and picking on him. The majority of them happened to be Croats, he said. He told the doctor that on 23 December he had been upset when he was sacked and that he was admitted to Liverpool Hospital. He told him that he experienced work-related stress and was discriminated against on the basis of ethno-nationality. Dr Kecmanovic noted his patient had never dated a girlfriend for longer than a few days. He described his mental condition during the examination. The patient had been upset, angry with people in his workplace, and determined to claim compensation for the mental suffering he sustained at work. There had been a touch of revengefulness to his overall mental attitude. He had had no obvious thought disorder and denied any perceptual disturbance. The doctor diagnosed reactive anxiety and depression. 58. In his report of September 1999, Dr Kecmanovic observed there was a long tradition of animosities, conflicts and mutual retaliation between Serbians and Croatians in the region where the patient and his family had lived. He noted that at a particular time, ethno-national sentiments had started to run high and that in such a political environment, Miodrag had been dismissed from his employment, being the victim of repeated threats. Eventually, he had been forced to leave Croatia in 1992. He recorded a history that, while employed with the respondent, the applicant had been subject to mocking. He had been harassed in numerous and various ways, and his co-workers had made offensive and rude remarks about him. He said that the abuse and ethnic taunts, after a period of time, had begun to annoy and trouble him. He recorded a history that the Croatian workers had grabbed him from behind while holding a knife against his throat. He said the patient had reported this incident to management immediately. 59. Dr Kecmanovic's final opinion was that Miodrag had suffered mentally as a result of the trauma he had experienced at work. He had developed anxiety and a depressive syndrome. There was no doubt, according to the doctor, that the long history of conflict between Croatian and Serbian population in the patient's country of origin, had played a significant role in his reaction to stressors he had experienced and to which he had been exposed in the workplace. 60. Dr Taggart's report (Exhibit 2), notes that Dr Kecmanovic was treating Miodrag for reactive anxiety and depression. He observed the applicant was not acutely psychotic or suicidal, and that Dr Kecmanovic had thought he was capable of work. 61. Dr Campbell also had some contact with the applicant and his report is Exhibit G. 62. On 14 May 1998, Dr Newman Harris examined the applicant (Exhibit 15). He observed that even the most direct and simple of questions received torturous and long-winded responses which were then relayed through the interpreter. This comment reminded me of the applicant's answers in Court. The doctor observed that the usual spontaneity of interaction between interviewer and interviewee had been absent and that it had been difficult to assess the psycho phenomenology taking place. The doctor recorded that Miodrag had stated that he was employed on a full-time permanent basis. He was asked whether his supervisors had known of the harassment and ultimately agreed that they did but they did not care. 63. Dr Newman Harris, reporting to the GIO, observed that the picture was complicated because Miodrag was hoping to make sufficient money to assist his parents and sister to migrate from Serbia. The content of the interview, according to Dr Newman Harris had had a strongly persecutory tone, as well as a flavour of entitlement. There had also been a strong flavour of paranoid ideation, and the nature of some of the non-sequiturs had caused concern as to the possible presence of psychotic processes. The doctor diagnosed an adjustment disorder, with depressed and anxious mood, and a possible paranoid psychosis. Dr Newman Harris observed that Miodrag had been clearly distressed by the alleged events in the workplace, and by his perception that he had been unfairly retrenched. It appeared that some of the distress emanated from a communication problem, according to the doctor, because he may not have appropriately understood the conditions of his employment. 64. Dr Newman Harris observed that he was well aware, from his clinical experience, that inter-racial rivalries between Serbs and Croats were such that the events described could quite possibly have occurred. Nevertheless, verification of the events was an important diagnostic factor. Considering various factors and some of the comments made by Miodrag, Dr Newman Harris thought there was a strong suspicion that he was suffering a significant paranoid illness. However, even if present, this did not exclude the possibility that he had been the victim of some racist discrimination: I should say that the issue is not whether the alleged incident has been a substantial cause of his disability, but indeed whether the incidents actually occurred and whether he suffers a major psychotic illness. 65. Dr Mayne examined the applicant in August 1999 (Exhibit C) and had the assistance of a Serbian language interpreter. Miodrag complained of depressed moods, explosive outbursts, strangling sensations and feelings of suffocation. He was constantly preoccupied with negative thoughts. He complained that from the outset of his employment, he had been under tremendous stress because of the attitudes and behaviour of his work colleagues. On a daily basis, he had been bullied and threatened by other workers, three in particular, two of whom were Lebanese and another Croatian. He said that these workers had regularly abused him, and sworn at him. His life had felt like a torture. He had also been very deeply hurt by his dismissal in December 1997. Dr Mayne diagnosed depressive and anxiety symptoms. He thought it was reasonable to assume that, in view of his major stresses to which he had been subjected since 1990, Miodrag was a man who was vulnerable to the development of depressive illness. The loss of his homeland, his family and career would have been significant stressors: Nevertheless, in my opinion there is a direct connection between the abuse and threatening behaviour to which Mr Miodrag was subjected during his period of employment and the development of his symptoms. In particular, the incident where he was threatened with a knife was particularly terrifying for him. His depression and anxiety was compounded by his loss of a job and the associated reduction in status and financial opportunity. 66. Finally, Dr Champion examined the applicant in August 1999. His reports are Exhibit 1. The doctor also provided evidence orally, and commented on the views of Dr Ken Mayne. 67. Dr Champion related that when Miodrag was asked whether he would be happy to continue to work in the job from which he was sacked, he responded of course. He had only left when they sacked him, and he thought that this had been unfair. He remained very angry about his dismissal, according to Dr Champion. The doctor observed that the applicant's interaction with the interpreter demonstrated intense and rather angry affect. The interpreter himself had told the doctor that Miodrag was a very angry man. The doctor further observed that Miodrag very often seemed to choose to ignore questions posed through the interpreter, and delivers statements on entirely unrelated matters - again shades of the applicant's evidence in Court! 68. The doctor further commented Miodrag's answers and behaviour were consistent with a significant paranoid state, though he said also that they would be consistent with an individual who was in real danger from some type of conspiracy. Much of what the applicant said to Dr Champion demonstrated quite advanced paranoia about conspiracy and political forces. When describing the applicant's presentation, Dr Champion said that he was often intense and angry, that his affect was not depressed, that he did not seem to display any abnormal anxiety, that the history he provided had been extremely vague and that he chose to answer questions by giving information which often did not relate in any meaningful way to the question. He had been suspicious, evasive and angry. 69. Dr Champion commented on the reports of Dr Newman Harris who had seen the applicant in May 1988, and on the reports of Dr Kecmanovic. On balance Dr Champion said that in view of the applicant's presentation, history and claims of ongoing symptoms, he was strongly of the view that Miodrag was an individual who was suffering a paranoid personality disorder, most likely the result of being exposed to strongly adverse circumstances in his country of origin, though he agreed one could not exclude the possibility that the events in the factory might have occurred, either to some degree, or as Miodrag himself had described. He said that while this was possible, the strong probability was that the current claim of poor psychological function resulted directly from underlying personality disorder. He said the personality disorder which the applicant suffered, had its basis in constitutional factors, and in the extended period of severe adversity and stress associated with the interracial disputes and their affect before his arrival in Australia. 70. Dr Champion was cross-examined by Miodrag's counsel and, in the course of this exchange, the doctor agreed that the illness suffered by the applicant could be explained by a pre-existing vulnerability, together with circumstances or life factors, such as the civil war in his home country. He agreed that the condition, namely a personality disorder, could arise spontaneously, or as a result of circumstances, and for this reason it was important to compare the condition of the applicant before and after the war events in Yugoslavia, and before and after his work with the respondent. He agreed that the major question was: how much was the condition caused by environmental factors, and how much by pre-existing vulnerability, that is, how much was caused by the environmental factors, and how much was projected onto the environmental factors. 71. Dr Champion considered that the applicant was totally incapacitated for work as at Christmas 1997, and would probably have been so for maybe six months, if treated, perhaps even a shorter period. He said that Miodrag would be able to do some rural work, such as cotton chipping, though he observed it would be difficult for him to work with others, and that he was in need of treatment. The Respondent's Submissions 72. Mr Kops of counsel identified the many issues which were raised in this hearing, including the credibility of the applicant; the need for corroboration of his evidence; the question as to whether any events complained of actually occurred; the terms of his contract; the effect of his termination on his psychiatric condition; the cause of his illness; the application of the revisions of s 9A dealing with substantial contributing factor; and the provisions of s 11A which would relate to the circumstances of his cessation of work. 73. Mr Kops submitted that the applicant had always known that he had been engaged for a short-term period before Christmas, that he had signed the contract and the documents which had been supplied, that he had taken these home and read them. Mr Kops submitted that the applicant was upset and injured because of the termination of his employment only, and that he had not been subjected to vilification or harassment. He detailed many aspects of the evidence which supported the conclusion that the applicant had been upset by the cessation of employment rather than by vilification and harassment. 74. I do not propose to recite all aspects of the evidence referred to. I will simply refer to a number. 75. He submitted that Miodrag had not made any complaint of harassment to his supervisors or to anyone else in the factory, though he had made a complaint on 2 December to the welfare officer of the Serbian Orthodox Association. Mr Kops submitted that Cappelletti and the other employees had given evidence that they had not observed any harassment, yet the applicant himself had alleged constant, daily vilification. These two pieces of evidence could not stand together - and I agree. The applicant was undoubtedly exaggerating his treatment in the factory. However, it seemed to me that the workers who gave evidence were oblivious to what was taking place, irregularly in the factory, or were choosing not to give expansive evidence of the difficulties which some employees were experiencing. 76. Mr Kops submitted that there were language difficulties in the workforce where the applicant had been working. There had been a mixture of Arabic, Croatian, English and other tongues. Miodrag said that his tormentors had spoken in Croatian, and yet he had identified fellow employees who only spoke Arabic, workers such as Joseph. Furthermore, and finally, Mr Kops submitted in support of his contention that there had been no vilification or harassment, that the applicant had been upset by the cessation of his employment, that Miodrag had contacted the company after he had lost his job, that he had rung up angry and agitated, but that he had made no contact or complaint about the vilification and harassment. 77. Mr Kops dealt with Miodrag's medical condition submitting that he was seriously psychotic, that his complaints (in accordance with McGrath J's decision in Allan Aubry Townsend v The Commissioner of Police [unreported 17/2/1992]) -amounted to a radical misperception of what had been occurring in the factory. In his distorted mind, there had been an excessive concentration on ethnicity and racial conflict, and his termination had been ethnically-based, so that Miodrag, according to the respondent, had exhibited a tendency to filter his ordinary experiences through an ethnic prism, and to misperceive the motivation of his fellow workers. It was submitted that there had been no rational basis for his belief that his employment had been ended for racial and religious considerations, and no rational basis to believe that he was being persecuted for racial reasons. 78. Mr Kops further submitted, pursuant to s 9A, that the Court of Appeal decision in Drayton v Coles Supermarket Pty Ltd (unreported 1 June 2001) demanded a finding that Miodrag's conditions at work had not constituted a substantial contributing factor to his injury, that the racial conflict which might have been part of the factory experience, existed away from the workforce and had been imported into the workforce from outside. It had nothing to do with the workforce. 79. Counsel further submitted, in support of s 11A counter-claim that there had been no evidence that the respondent had acted unreasonably, that in fact the company had acted reasonably and in accordance with the terms of the signed contracts. I agree with this submission. If the termination of the applicant's employment was the cause of his injury, the respondent had acted reasonably at all times, and consequently the applicant would not be entitled to compensation because of the provisions of s 11A. 80. Mr Kops addressed extensive submissions to the credit of the applicant. He had not been a reliable witness. He had already been seriously psychologically unwell, and many of the events of which he complained not been corroborated by any employee, and had been denied by others. 81. The respondent submitted that the cause of Miodrag's problem was simply that his had been a short-term contract (a fact which he may not have understood) that he wanted to work, and that he was terminated at Christmas 1997. He had lost his job and because of this, he had become depressed. The company further submitted that the applicant had agreed that if he had been kept on by the respondent, he would have continued to work. Because he said this, he continued to be capable of working. The Applicant's Submissions 82. Mr Curran's submissions were equally long. I will refer to only three. 83. Firstly, Mr Curran submitted that the Court must carefully consider the applicant's condition before and after his employment. He said that in November to December 1997 there had occurred a major change in his personality, and that the evidence given by Mr Newman was very telling. Beforehand Miodrag had had a good work history. He had survived in a very troubled environment and had undergone a lot of stress, and had displayed no anxiety nor any tendency to psychological illness. He had attended Dr Strinich in 1996/1997 and he had identified no problem of a psychological nature. There had been no suggestion of a florid psychiatric condition. Then, Miodrag had been employed in November 1997 and Mr Newman gave clear evidence of a change in the course of his employment. 84. The second area of Mr Curran's submissions was as to the diagnosis. He relied heavily on the opinion of Dr Champion. The diagnosis varied from adjustment disorder to major depression, to personality disorder, to a possible paranoid psychosis. However, Dr Champion agreed that two elements had come together in this man's condition, a pre-existing vulnerability, and stressors - potential stressors in Croatia, and further stressors with the respondent. Mr Curran said this was a significant concession by Dr Champion. 85. The third submission dealt with s 9A. Mr Curran said that the events to which the applicant was subjected in the employ of the company constituted a substantial contributing factor when one compares his condition free and happy before his employment, with his condition afterwards and particularly with his presentation in Court. He had no previous problems, it would appear, and has been subject to much suffering since. Some General Observations 86. This is a curious and troubling matter. Several features resonate in my mind and have determined my conclusions. I refer to nine of them which I will enumerate. 87. Firstly, Miodrag was already unwell before 23 December 1997. He had made complaint to a welfare officer, he had given a history of two weeks previous problems at the Liverpool Hospital and Mr Newman himself had made observations that his work had become unsatisfactory, that he had lost concentration and seemed pre-occupied, that he was mixing with the wrong employees, that he eventually was unsuitable and unfit for work because of his attitude. He would not have been re-employed. 88. Secondly, Miodrag had changed. There was no evidence of earlier emotional problems or treatment. He had begun work with the respondent, worked well for a few weeks, then his work had deteriorated at about the time when he sought help from the Serbian welfare. 89. Thirdly, the respondent, through Murphy and Newman, determined to investigate the complaints which had come through the Serbian welfare officer. There had been problems before. In January 1997, Slavko Vranic had been terminated as a troublemaker. There were problems with some of the Lebanese (as Ms Murphy pointed out) despite the stated policy of the respondent. There was a significant cohort of Croatians in the factory, and loud discussions about politics. The respondent investigated Miodrag's complaint and found nothing. But there was no record written of such an investigation; no details were provided of what had been done or who interviewed, except the supervisors had been questioned. 90. Furthermore, it seemed strange that the complainant himself was not spoken to or questioned. I ask myself why would this be the case, since he was the worker who had initiated the telephone call from the Serbian welfare officer? Language might be the answer. Language is a barrier, sometimes a screen behind which people can hide. The supervisors did not speak Macedonian, or Croatian, or Serbian. They could not know what was being said among the workers. Furthermore, phrases like screw or fuck your mother can be uttered in a jocular, trivial manner, and in a grossly insulting manner. It also seemed strange that someone who did not speak Croatian, knew these phrases. They must have been used frequently. 91. Fourthly, Joseph Shamou said that he did not recognise Miodrag. He said he had never seen him before. He seemed so certain, so definite (at least to begin with), - yet they had worked together in the same confined area for a number of weeks, from 17 November (when Shamou had returned to the employ of the respondent) until 22 or 23 December. 92. How can this evidence be explained? Shamou may have forgotten that he once knew him, though this seems unlikely. He may have been uncertain whether he knew him, but he certainly did not appear confused or doubtful. His certainty that he did not recognise him was puzzling. No-one else had forgotten the applicant, and this man had worked with him in a small team. Being Iraqi, speaking poor and broken English, being an unqualified worker in a strange country, it may be that Shamou did not want to get involved, to expose himself to who knows what consequences. Another possibility is that he had something to hide, and that he did not know what the consequences would be of making an admission, or a statement for or against, one way or the other. Not only was his evidence, in the circumstances, unreliable, but his denial aroused serious suspicion. He also denied knowing a man called Slavko who had been dismissed as a troublemaker in January 1997, and Shamou himself had been in the factory at the time and worked there until April 1997. That too seemed puzzling. 93. Fifthly, Miodrag's evidence in itself was difficult to accept. But it was strengthened and corroborated by his uncle and his uncle's friend, by the Serbian Orthodox Association's intervention, by the hospital notes, and by the evidence of Mr Newman and Ms Murphy. 94. Sixly, on balance, I am persuaded that Miodrag was subjected to some harassment when working in the factory, (though to what extent, I cannot determine), and that the harassment caused the psychological condition from which he has not recovered. His termination of his employment exacerbated his condition, but did not cause it. 95. There are a number of possible causes for his diagnosed condition, including a personality disorder and paranoid traits, cultural conflicts and trauma in Yugoslavia, harassment and vilification in the workplace, and finally, the termination of his employment. I prefer the explanation that he was harassed and vilified at work and that this compacted upon his vulnerability, causing a personality disorder and the florid condition I witnessed in court. 96. Seventhly, as to the provisions of s 9A, the applicant was trouble-free before his employment, though probably vulnerable to the injury. The employer's contribution, in my estimation, was real and substantial. I refer to the decision of Davies AJA in Drayton v Coles Supermarkets Pty Ltd (unreported 1 June 2001) in which he said: Likewise, in this context and particularly having regard to the list of factors specified in s 9A(2), the word 'substantial contributing factor' requires that compensation be paid only when the employment can be said to have contributed to the injury in a manner that is real and of substance. This section intends to exclude those many instances where, as a result of legal theory and extension of thought, liability has been found in case where, as a matter of practical reality, the contribution which employment has made to the injury has little substance. So interpreted, the section appears to me to have a clearer and more appropriate application than if the word 'substantial' were used in the sense of words such as serious, weighty, important, sizeable or large, terms to which the trial judge referred. The word substantial may be used appropriately in a range of circumstances, a matter which is large or weighty is also substantial. However, a matter may be substantial without necessarily being large or weighty. In s 9A, it is sufficient that the contribution be substantial. [para 37-38]. 97. It seems to me that in this case, the contribution of the respondent before the applicant's termination to the condition of the applicant was real and substantial. 98. Eighthly, as to the provisions of s 11A, in the light of my findings they do not apply since the injury was already sustained before the termination. 99. Ninthly and finally, it seems to me the applicant is totally incapacitated and has been from 24 December 1997. He is clearly unable to work with others, is living in social isolation, and suffers a florid personality disorder. 100. I make the following findings and award: 101. 1. Miodrag was injured in the course of his employment, by virtue of harassment and threats from fellow employees, causing him psychological injury. 102. 2. The harassment and threats at work constituted a substantial contributing factor to the injury of the psychological nature. 103. 3. The injury occurred before the termination of the applicant's employment, so that, in the circumstances, the provisions of s 11A do not apply. 104. 4. The applicant is, and has been since Christmas 1997, totally incapacitated. 105. I make an award in his favour from 24 December 1997 to 23 June 1998, in the sum of $627.69, and thereafter, to date and continuing, of $263.30 as adjusted. 106. I order the respondent to pay the applicant's medical expenses and his costs. 107. I certify a second conference in the sum of $500. Mr F CURRAN instructed by Stojanovic Solicitors appeared for the applicant Mr B KOPS instructed by .Hicksons Lawyers appeared for the respondent 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.