BULGA COAL MANAGEMENT PTY LTD v SAGER [2004] NSWCA 443

New South Wales Court of Appeal

CITATION : BULGA COAL MANAGEMENT PTY LTD v SAGER [2004] NSWCA 443 HEARING DATE(S) : 24 November 2004 JUDGMENT DATE : 24 November 2004

JUDGMENT OF : Mason P at 26; Sheller JA at 1; Tobias JA at 27 DECISION : Appeal dismissed with costs.

CATCHWORDS : WORKERS COMEPNSATION ACT 1987 s11A - whether employment was a substantial cause of the psychological injury - meaning of 'substantial' - whether s11A(5) taken into account. LEGISLATION CITED : Workers Compensation Act 1987 CASES CITED : Mercer v ANZ Banking Group Limited (2000) 48 NSWLR 740 PARTIES : Bulga Coal Management Pty Limited - Appellant Gary Allan Sager - Respondent FILE NUMBER(S) : CA 41219/03 COUNSEL : H N Kelly SC - Appellant L King SC/D R Benson - Respondent SOLICITORS : Rankin & Nathan - Appellant Reid & Reid - Respondent

LOWER COURT Compensation Court JURISDICTION : LOWER COURT 18545/02 FILE NUMBER(S) : LOWER COURT Truss J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41219/03 CC 18545/02

MASON P SHELLER JA TOBIAS JA

Wednesday, 24 November 2004 BULGA COAL MANAGEMENT PTY LTD v SAGER Judgment 1 SHELLER JA: Bulga Coal Management Pty Limited appeals from a decision of her Honour Judge Truss sitting in the Compensation Court,given on 15 December 2003. The respondent, Gary Allan Sager, claimed weekly payments from 20 August 2002, together with expenses under s60 of the Workers Compensation Act 1987, as a consequence of a psychological injury which he alleged resulted from events in the workplace on and prior to 19 August 2002. 2 The respondent, who was born on 3 November 1950, had worked in 1979/1980 as a casual truck driver. In the course of that employment in 1980, he was involved in an accident while driving a 50 tonne dump truck. As he was entering a tunnel, the brakes of the truck failed and it hit a wall. The principal injuries to Mr Sager were in the face. His nose was broken. He never resumed that employment but made no claim for compensation because he did not believe he had any entitlement. The respondent said that he suffered flashbacks and bad dreams after the accident. He was unable to say for how long these symptoms continued but he said that thereafter he became afraid of trucks. After a couple of months, the respondent sought other employment and worked in the building industry driving various vehicles including bobcats, excavators and loaders and he also drove a mini concrete truck on a casual basis. 3 Between March 1984 and some time in 1988 he worked for the Electricity Commission. He generally drove a backhoe and sometimes a three tonne tip-truck on site. This did not worry him. His problems were with larger dump trucks. 4 In the later 1980s, he commenced employment at Mount Thorley mine as a plant operator and drove vehicles such as dozers, front-end loaders, graders, scrapers and excavators. The respondent was asked to become skilled on trucks but said that he was unable to do so. In December 1994 he began employment with the appellant. On his application for employment he told a Mr Archer that he did not drive trucks. Before 2001 in this new employment the respondent was not required to drive trucks. 5 The respondent was off work for some period and apparently returned in early June 2002. Sometime in mid 2002, he had a conversation with Michael Carrucan, the mine manager, about being trained in trucks. He said he would try but was very panicky about it. He said at that time the pressure was getting to him and he used to come to work worried about being on the trucks. He took some sick leave and some long service leave. The appellant referred him to a Dr Sagar, a consultant psychiatrist, about his problem. On 31 July 2002, Dr Sagar reported, "Mr Sager is experiencing a phobic anxiety to driving trucks which, no doubt related to the past trauma of the truck accident and may have been exacerbated by the losses of close family members that he has experienced recently. Breaking his ankle rock fishing would not have helped his sense of impermanence and may have also contributed to his anxiety."