Reported Decision : [2001] ACL Rep 125 NSW 29 New South Wales Court of Appeal CITATION : Garling v Association to Resource Co-Operative Housing Co-Op Limited [2001] NSWCA 377 FILE NUMBER(S) : CA 40576/00 HEARING DATE(S) : 24 October 2001 JUDGMENT DATE : 24 October 2001 PARTIES : Anne Garling (Appellant) Association to Resource Co-Operative Housing Co-Op Limited (Respondent) JUDGMENT OF : Sheller JA at 27, 29; Beazley JA at 28; Heydon JA at 1 LOWER COURT JURISDICTION : Compensation Court LOWER COURT CC 34043/99 FILE NUMBER(S) : LOWER COURT Neilson CCJ JUDICIAL OFFICER : COUNSEL : Mr M Thompson (Appellant) Mr J D Hislop QC/Mr N E Chen (Respondent) SOLICITORS : Shanahan Tudhope (Appellant) Hunt & Hunt (Respondent) CATCHWORDS : Workers Compensation - Appeal from Compensation Court - Whether Court of Appeal has jurisdiction to hear appeal - Distinction between errors of fact and errors in law - Misconstruction or misunderstanding of evidence resulting in wrong factual conclusion is error of fact not law - Compensation Court Act 1984 (NSW), s 32(1) - ND LEGISLATION CITED : Compensation Court Act 1984 CASES CITED: Ambulance Service of New South Wales v Daniel (2000) 19 NSWWCR 697 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 DECISION : See para 26 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40576/00 CC 34043/99 SHELLER JA BEAZLEY JA HEYDON JA 24 October 2001 GARLING v ASSOCIATON TO RESOURCE CO-OPERATIVE HOUSING CO-OP LIMITED Judgment 1 HEYDON JA: This is an appeal by the applicant below against an award made by Neilson CCJ in favour of the respondent below on 26 June 2000. 2 The applicant particularised her application as follows. The date of injury was 29 and 30 June 1995. The place was the respondent's premises. The work she was doing was work as an employed administrator. The injury occurred by reason of receiving "threatening telephone calls". She claimed weekly compensation from 26 April 1996. 3 The trial judge made the following findings of fact in the sense that the matters of fact narrated were either expressed to be findings of fact or consisted of evidence which the trial judge appeared to accept. "Ms Garling was born on 5 July 1955 and will shortly reach her 45th anniversary. Her life has not been a happy one. At the age of three she was repeatedly sexually assaulted by a neighbour of her grandparents in that man's shed in which were kept, amongst other things, ropes. The applicant's relationship with her mother does not appear to have been at all good. The applicant described her mother to Dr Robert Lewin as 'a very difficult person. She was physically and emotionally abusive'. The applicant's marriage from which she has two children was also an unhappy one. The applicant has had much psychiatric treatment in the past. That has been summed up by Dr Marilyn Segal, a psycho-therapist, in a manuscript report of 1 May 2000 in the following terms: She gave her past psychiatric history: - Two or three 'breakdowns'. Hospitalised only a few days at a time in John Hunter Hospital. - Marriage breakdown when 33 or 34, with young children. 'Diagnosis' of 'personality disorder' with transient psychotic episodes which felt like being stuck in a nightmare state, limbo and couldn't snap out of it. She says it was precipitated by her husband's departure, taking the children. She says she was hospitalised more than twenty times in fourteen months She was seeing a counsellor who suggested hospital because the therapist feared she was a suicide risk. Her second [difficult to decipher, perhaps 'baby'] was very sick. Re Suicidality: - She says she was most depressed as a teenager and felt alone at 13 or 14, but made no plans and thought she had not attempted suicide but had 'blackouts'. She said she suffered occasional 'dissociation' experiences. She says she had psychotherapy with Dr Sandra Smith. There are other references in the medical reports to the applicant's husband from whom she separated in the late 1980's being both abusive and being a drug taker. The evidence also discloses that the husband took the children from the applicant and it was during that period between 1987 and 1989 that the applicant had many psychiatric attendances at hospital. The applicant then rejoined the workforce and told me that between 1989 and 1995 she had no psychiatric treatment and no psycho-tropic medication. Between March 1990 and February 1992 the applicant was employed by the Central Coast Disability Council Limited as an office manager. She then worked for Mr Bob Baxter, a master builder, as a secretary between August of 1992 and March of 1993. In January 1993 she had taken up the position as the manager of the Avoca Beach Theatre which position she held until 1994. On 4 July 1994 she commenced with the respondent as an administration worker. She performed various clerical duties which she has set out in her curriculum vitae which is Exhibit 1. The applicant told me that on 29 June 1995, which was a Thursday, she received three telephone calls, all of which were sexually oriented. She received two further phone calls on the following day, Friday 30 June 1995. Those phone calls were more explicit." 4 The trial judge said that the applicant's case was that in the final telephone call the caller suggested to her that he would like to have sexual intercourse with her whilst she was tied up. This brought back to her memory the events of sexual molestation at the age of three in her grandparents' shed. 5 The trial judge then said: "The real question that troubles me is whether the applicant's psychiatric state after she saw Dr Lewin [on 9 February 1996] … is causally related to the telephone calls received by the applicant at work on 29 and 30 June 1995. There is no suggestion in the applicant's case that those telephone calls arose out of the employment, merely that they were received in the course of the employment. There is no suggestion that the phone calls were made by a co-worker or that they were somehow in any way related to the applicant's employment." 6 The trial judge said that by reason of what the applicant told the police on 30 June 1995, a general medical practitioner on 1 July 1995 and a psycho-therapist, Dr M Segal, on 18 July 1995, the applicant perceived the calls to have been made by a member of the respondent's staff as a result of comments the applicant had made about his work performance. 7 In July 1995 the applicant left the respondent's employment and worked for City West Housing Pty Ltd until 30 November 1995. A colleague there, Jenny Fischer, gave a "glowing report" of her work performance and dedication, which left the trial judge "with the impression that the applicant was performing her work effectively for City West Housing [Pty] Ltd". Before she resigned from City West Housing Pty Ltd on 13 November 1995, the applicant obtained a certificate from Dr Segal stating that that employer was "excessively demanding in terms of her workload and overtime worked". On 14 November 1995 the applicant obtained a certificate from a general medical practitioner, Dr C Anthony, to the same effect. 8 After considering the report provided to the respondent by Dr Lewin, a psychiatrist, which communicated Dr Lewin's suspicion that the applicant was experiencing "persecutory delusions" on 29 and 30 June 1995, the trial judge said: "I am not persuaded that there was a persecutory delusion at the time or any form of psychotic breakdown. I accept that the phone calls occurred and at least towards the end were sexually explicit and brought up the question of sexual intercourse whilst the applicant was tied up with ropes which triggered off memories of her past sexual molestation. However, the applicant's perception that this was in somehow related to other events at work is, firstly, not relied upon and, since it is not relied upon, I can only accept to be not the case and therefore may suggest that the applicant was paranoid to some degree, and I do not use that word technically but in the popular sense in trying to attribute responsibility for these phone calls to her workplace or work colleagues." 9 The trial judge then noted that the applicant told other medical practitioners in 1996, 1998, 1999 and 2000 that the caller was suspected by her to be or was a work colleague. 10 The trial judge concluded by saying: "The applicant has relied on a very simple case. That is that she is functioning psychiatrically very well until a sexual act was suggested to her in a telephone call which she received in the course of her employment which triggered off memories of the applicant's unfortunate past which have caused a serious ongoing psychiatric disability. I am afraid that the simple case to me is just too simplistic. The applicant was betrayed by her grandparent's neighbour in a shed at the age of three. She appears to have been betrayed by her mother with her abusive conduct, she was betrayed by her husband, resulting in a matrimonial breakdown. What the applicant was essentially painting in the histories given to the doctors is of being betrayed at work, that is that the applicant felt that these calls were somehow related to her experiences at work and that she was not being supported at work and if she stayed there she would continue to be undermined. Of course, the applicant in these proceedings does not rely on that betrayal, that lack of trust, but when one looks at the histories closely, that is really what the applicant is telling the doctors. Of course, that perception may be unreal. However, it is not for me to judge when those events are not directly before me. The applicant has the onus of proof. The applicant must establish on the balance of probabilities that the psychiatric condition upon which she relies is causally related to the telephone calls which she received at work on 29 and 30 June 1995. As Dr Lewin said, such phone calls may have caused an adjustment disorder which in his view ought to have gone away a long time before he saw the applicant on 9 February 1996. However, on one view it has not, and that is not because she received the phone calls but because of her belief that she was somehow undermined in her employment by the actions of her fellow employees. She thought she was being 'ripped off', that she was being 'got at', that she was being 'disablised'. That is not the case that she presents to me. However, in my view, the applicant's reaction is due to some events which she thinks were work-related whereas these telephone calls are not. They are telephone calls merely received in the course of her employment. It is of course very difficult to unravel a work cause from a plethora of issues and to say that that is the cause of ongoing psychiatric illness. However, I am not persuaded that the ongoing psychiatric illness is causally related to the telephone calls received at work on 29 and 30 June 1995. The matter is best summed up, in my view, by Dr Lewin that they may have caused some adjustment disorder but such disorder would have long ceased by the time the applicant saw Dr Lewin on 9 February 1996. The matter can be seen in another way. The applicant as I have said held down full time employment with City West Housing Limited between 30 July 1994 and 13 November 1994, a period of some three-and-a-half months. The applicant now says that she can do very little work if any. She does one day a week for a shop known as the Luscious Shop and may work from time to time for friends in their business without remuneration. She says essentially that she has only been able to work two or three days a week since she has moved to the North Coast. However, the wage records indicate that at least in one period between 12 December 1998 and 31 January 1999 the applicant has been working at the Nambucca Ex-Services Club. She must have been working at least 30 hours a week. In other words, since leaving Sydney, the applicant's ability to work has declined according to the applicant, and she herself said that her condition had deteriorated since she left working for the respondent. If the incapacity were mediated by her reaction to the telephone calls on 29 and 30 June 1995, one would expect gradual amelioration rather than deterioration. It is pointed out that the applicant recovered from the traumatic effects of her marriage break up after two years of psychiatric treatment between 1987 and 1989. If she could recover from that, one would expect her to be able to recover from the lewd telephone calls that she received in the course of her employment. In other words, the extent of the ongoing psychiatric illness and the extent of the disability are inconsistent with the trigger alleged by the applicant in these proceedings." 11 Some time before the day fixed for hearing the appeal, certain of the grounds of appeal were abandoned but the balance were supported by written argument. This morning, in effect only three points have been raised and it is not necessary to deal with the numerous other points raised in now abandoned grounds of appeal and now abandoned written argument. Inferences drawn 12 Under this heading the applicant put the following submissions: "In considering whether the Appellant's incapacity continued to be the result of psychiatric illness his Honour drew inferences that were not open to him from Dr Wade's evidence: that is, that the form of the treatment disclosed to his Honour Dr Wade's opinion as to the cause of the incapacity. It was not open to his Honour to conclude, based on the treatment Dr Wade provided, that the illness was not related to the phone calls." 13 These submissions appear to relate to paragraph 7 of the Notice of Appeal: "His Honour erred in drawing inferences from the evidence which were not fairly available to him." 14 The trial judge said the following about Dr Wade whom the applicant saw on fourteen occasions between July 1999 and May 2000: "A fuller presentation of these other work problems is contained in Dr Wade's report of 16 May 2000. After giving Dr Wade a history of obscene sexual telephone calls, the doctor then goes on to say: She said she was also having problems with a male colleague and that she came to believe that the timing of the calls was related to the problems with the male colleague and that the caller was possibly an associate of the work colleague and she also felt that the police believed that. She said that with the harassment she thought she handled it well but then she started suffering insomnia and overall light sleep and often waking throughout the night, she said the sexual contents of the calls was very disturbing and caused her much agitation and physical agitation and physical upset was mixed up with the emotional state. The doctor then goes on to record the applicant's unfortunate childhood experiences and then goes on to record this history: Back to problems with the work colleague, Mrs Garling said she was good at doing her job, administration, and she said that the place was very poorly administrated for probably five-eight years before she was there. She said when she started there were four people there and then three left because of the coordinator and committee problems. She said it was all very haphazard and 'you were left to do your own thing', there was no direction, there were a lot of fights and screaming, a lot of screaming matches in the office. She said the main problem though was the education resources officer, John Kelly, not returning calls, clients would be trying to get into contact with him and he wouldn't be there, he wouldn't answer calls, she said he basically wasn't doing his job but his response to Mrs Garling was that he felt she was against him because she was doing her job. She felt that John Kelly was 'very dodgy' and she gave an example of an architect associated with him who hardly came to work for a whole year She said that there was all this pressure put on her to cover up rorts, people not doing their jobs, she said the coordinator pressured her to cover for people not turning up for work, not going to meetings and she was also pressured to hand over blank cheques, she also had pressure outside from groups threatening her for others not doing their jobs. Mrs Garling said that because of this pressure from both within and without the organisation she was having episodes of 'blackouts' where she would lose vision and lose hearing, she said that she could keep talking, she said she had some minor incidents of these so-called blackouts when her marriage broke down 12-13 years before. She said she saw a psychiatrist, Dr Dent, in George Street who said it was not unusual and described it as dissociation. Mrs Garling said she doesn't recall all that much what happened at Dr Dent. She said back on the work front she had many fears associated with Kelly. She said her fears were confirmed by another woman who was intimidated by him. Mrs Garling said that she wanted to stay away from Mr Kelly and she believed that Mr Kelly manipulated and lobbied the coordinator who pressured her but when pressured to come up with the missing cheques occurred that Kelly went on stress leave. She had felt that the whole organisation was unethical. She said there were also moneys for Mrs Garling's compensation and rehabilitation that were misappropriated, these monies were put back into funds to pay off computer programs. Mrs Garling described much boundary violation at work and indicated that work wasn't work. She said she stayed because she needed a longer stay at work with the work resume and the work record. Clearly the applicant perceived that there was much more going on and in light of the perception that she had that the phone calls were work-related, one can see how in the applicant's mind these other things were important. A clue, in my view, to the case is given by the treatment proffered by Dr Wade. Dr Wade said that he provided the applicant with supportive psychotherapy which was designed" to help her put the past in the past and develop proper boundaries and proper adult like perception of the world, that is a perception of being fair, of being equal, of not having a tendency to take on too many responsibilities around her and to have a more definite sense of what is hers and what isn't. That form of counselling to me does not appear to be directed in particular to the recurrence of the childhood sexual molestation but when it is designed to assist the applicant to be equal and not to take on too many responsibilities it appears to me to be directed to the other concerns which the applicant voiced to Dr Wade. Towards the end of the report the doctor expressed this view: There is a possibility though that her disabilities may not respond so positively and she may be permanently disabled from work in terms of distrusting the work situation and becoming so apprehensive of it that she could not function in it but I think it is still early days to determine this but I feel though on the balance of it she should be able to return to work within five years, I doubt it will be much before then because there is such significant damage done and a lot of work is needed to establish more trust within her and to resolve the losses of her life, the depression and anxiety in her life and to find the right perspective as an adult to deal with her issues from. Again what comes through is the applicant's perception of distrust for which she needs treatment in the future. Clearly Dr Wade's perception of it is that the applicant felt distrust in the respondent's workplace and that she somehow felt betrayed." 15 The applicant's complaint appears to be that the trial judge found a "clue to the case" in the supportive psycho-therapy which Dr Wade provided, and said it was not directed to the problems associated with her sexual molestation in childhood, but with an attempt to "assist [her] to be equal and not take on too many responsibilities". 16 The applicant submitted that the inference drawn by the trial judge in [33] as to Dr Wade's diagnosis was drawn from the form of treatment employed by Dr Wade. She submitted that it was not open to the trial judge to draw that inference in view of the fact that Dr Wade had expressed his own opinion in his report at combined appeal book page 60 D-M. Whether or not there was any error in the reasoning of the trial judge in relation to Dr Wade this Court only has the jurisdiction conferred on it by s 32(1) of the Compensation Court Act 1984: "If a party to any proceedings before the Court constituted by a Judge is aggrieved by an award of the Judge in point of law or on a question as to the admission or rejection of evidence, that party may appeal to the Court of Appeal." 17 The question whether a particular piece of evidence will support an inference is not a question of law, unless there is no evidence to support a finding of fact and that finding is made against a person, such as the applicant, bearing the burden of proof: Ambulance Service of New South Wales v Daniel (2000) 19 NSWWCR 697 at 711-712 per Hodgson CJ in Eq (Sheller and Beazley JJA concurring). In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156 Glass JA (Samuels JA concurring) said: "It is … pointless to submit that the reasoning by which the Court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law". 18 In relation to this argument and other arguments the applicant submitted that what was involved was more than a wrong finding of fact but a wrong finding of fact which rose to the level of an error of law because it was based on a misinterpretation of what the evidence was. In Azzopardi's case Glass JA said: "It is clear from these extracts that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal." 19 To misconstrue or misunderstand evidence and to arrive at a result by reason of a wrong factual conclusion is in my opinion only to err in fact and not in law within the meaning of Glass JA's analysis. Accordingly, this Court has no jurisdiction to consider the complaints about the trial judge's handling of Dr Wade's evidence. Misstatement of the evidence 20 Under this heading the applicant submitted: "By late 1995 the Appellant was under the care of Dr Christine Anthony. In her report of 14 November 1995 [Exhibit F] Dr Anthony reports that the Appellant's inability to remain working for City West Housing Pty Limited was a result of 'recurrent sexually-harassing and threatening phone calls'. [See Exhibit F, page 1]. His Honour misinformed himself as to this evidence, misreading it as 'sexual harassment and threatening phone calls' [paragraph 20 of the judgment] Based on this misreading, his Honour went on to state: 'Clearly there is a distinction there drawn between sexual harassment and threatening phone calls. There are two things there involved, not one.' That was not the evidence. Even more clearly, Dr Anthony expressed the opinion further into her report, and not considered by his Honour, that: '[The Appellant] was unable to continue at this prior work because of the stress resulting from these phone calls'." 21 The relevant ground of appeal was ground 18: "His Honour erred in misinforming himself as to what the evidence was. 22 The first point under this head related to Dr Anthony's report of 14 November 1995. It appears to be true that the trial judge construed the words "recurrent sexually-harassing" as "sexual harassment". However, again, if that is an error, it is an error of fact. 23 The applicant submitted that if the trial judge had not misinterpreted Dr Anthony's report he might have been persuaded that the psychiatric illness from which she may be suffering was causally related to the phone calls. Even if that submission is sound the error in question remains an error of fact. Even if it were an error of law it is an error which plays so minor a part in the trial judge's reasoning as a whole that it could not justify allowing the appeal. 24 The failure of the trial judge to refer to Dr Anthony's statement which may be a piece of history from the applicant or an opinion from Dr Anthony that the applicant could not continue her work with the respondent because of the stress resulting from the phone calls does not mean that he did not take it into account. He was not obliged to accept it and it was not an error of law either not to refer to it or to accept it. 25 The other submission made concerns Dr Lewin's report. It was submitted that Dr Lewin's words "an impairment of this nature could to be seen as a work related injury" were misquoted by the trial judge as "an impairment of this nature could not be seen as a work related injury". The applicant submitted orally that the trial judge had incorrectly formed the view that the applicant was suffering from an adjustment disorder and that conclusion could only be arrived at by the insertion of "not" into Dr Lewin's report. First, if the trial judge did make an error again it was only a factual error. Secondly, when read in context the word "to" in Dr Lewin's report may in truth have been a slip on Dr Lewin's part for the word "not". Orders 26 The following orders are proposed: 1. The appeal is dismissed. 2. The appellant is to pay the respondent's costs of the appeal. 27 SHELLER JA: Yes I agree. 28 BEAZLEY JA: I agree. 29 SHELLER JA: The orders of the Court will be as proposed by Heydon JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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