Employer held liable for a worker's abusive marriage11 November 2015
Can an employer be held responsible for domestic abuse resulting indirectly from a worker's compensable injury? The answer, according to the recent case of Omni Care v Koumouris , is yes.
In this case, the Victorian Supreme Court upheld a finding by the Medical Panel that a worker's major depressive disorder was partly associated with a work-related knee injury, even though her disorder was really the result of being abused by her husband due to her inability to earn money following a work-related injury.
Ms Koumouris suffered an injury of the right knee in the course of her employment with Omni Care Pty Ltd. Her weekly payments were terminated on the grounds that she had a capacity for work or that her work-related injury no longer materially contributed to any incapacity for work. This decision was disputed by Ms Koumouris, who subsequently referred the matter to conciliation.
The matter went to the Medical Panel for an opinion on the nature of Ms Koumouris' condition and her work capacity. The Panel found that Ms Koumouris was not prevented from working by her original knee injury, which had been treated, but was incapacitated as a result of her psychiatric condition. The ongoing incapacity was found to be partly work-related, despite the Panel's own reasons indicating that most of the worker's distress was related to her husband pressuring her to return to work and earn money.
The Supreme Court proceeding
Omni Care sought judicial review of the Panel's opinion on the grounds that the Panel had made an error of law and had failed to provide adequate reasons. It was argued, among other things, that the only reasonable conclusion was that Ms Koumouris' psychiatric condition was attributable to the hostility and abuse of her husband, which was non-compensable. As such, it was argued that the abuse had broken the chain of causation between the knee injury and Ms Koumouris' depressive disorder.
The Court found that the question of whether Ms Koumouris' incapacity for suitable work had resulted from her work-related injuries required a chain of causation "unbroken by any novus actus interveniens". This chain could be broken by an intervening event amounting to either voluntary human action, or an independent event coupled with a wrongful act or omission that, by ordinary standards, would be so extremely unlikely as to be considered a coincidence.
The Court acknowledged that, based on its own reasons, the Panel could have reached the conclusion that Ms Koumouris' incapacity for work was due to her husband's hostility and abuse rather than her knee injury. Furthermore, the Court did not accept that the hostility and abuse directed towards Ms Koumouris amounted to "ordinary marital stress" caused by one partner being unable to work. Omni Care could not, therefore, be held responsible for the husband's abuse, which was an ongoing feature of his behaviour as an individual. However, the Panel had also found that, while the worker's marriage was fraught to begin with, she had been able to cope reasonably well and perform suitable work before injuring her knee. After being injured, on the other hand, she found she was unable to cope with the hostility and abuse and ultimately stopped working. As such, her major depressive disorder was caused by her knee injury, in that her knee made her unable to cope with her husband's continued behaviour.
The Court found that the above reasoning was legally open to the Panel. It might have been different if, for example, there had been no prior behaviour of hostility or abuse by the worker's husband or if she had not been able to cope with the abuse previously, in which case the cause of her incapacity would have been the "new hostility and abuse or the continuation of her inability to cope with it". The Court found that the Panel had appropriately considered the history of abuse, but was not bound to find that this was an independent cause of the psychiatric condition. Accordingly, there was no error of law in the Panel's decision or reasons.
Implications for insurers and employers
The Panel's reasoning in this case was a stretch. The Court seemingly acknowledged that it would have been open to find that the abuse of the worker by her husband, which predated the injury and amounted to voluntary human action, was the only cause of her depressive condition.
The present case stands in contrast to the decision of Petrogas, where some of the conclusions on which the Panel's opinion was based were not open on the evidence. However, provided the Panel's opinion is not wrong in law and discloses a clear path of reasoning, it will not be possible for a Court to overturn the Panel's findings.