BBY v The GEO Group Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	BBY v The GEO Group Australia Pty Ltd [2022] NSWPIC 562
APPLICANT:	BBY
RESPONDENT:	The GEO Group Australia Pty Ltd
MEMBER:	Nicholas Read
DATE OF DECISION:	11 October 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for medical expenses following discontinuance of claim for weekly benefits payments; whether applicant’s claim barred by sections 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); determination of deemed date of injury with reference to the claim made upon the respondent and section 15 of the Workers Compensation Act 1987; Held – deemed date of injury is date of incapacity for which compensation is claimed; applicant is barred from recovering compensation by section 261 of the 1998 Act; award for the respondent on the claim for medical expenses.
DETERMINATIONS MADE:	1. The date of injury is 20 January 2017 (deemed). 2. The applicant’s claim is barred by section 261(1) of the Workplace Injury Management and Workers Compensation Act 1998. 3. Award for the respondent on the applicant’s claim for medical expenses.

STATEMENT OF REASONS

BACKGROUND

BBY (the applicant) was employed by The GEO Group Australia Pty Limited, the respondent, as an immigration detention officer, for a period between 3 August 1998 to 31 January 2001. The former name of the respondent was Australasian Correctional Management Pty Limited (ACM).
In the Application to Resolve a Dispute (ARD) dated 10 June 2021 BBY claimed weekly benefits compensation from 17 February 2017 and medical expenses.
The matter proceeded to an arbitration on 2 November 2021 before Member McDonald. During the arbitration hearing the Member granted leave to BBY to discontinue his claim for claim for weekly benefits compensation. The Member declined to grant leave to BBY to amend the proceedings to allege injury based on the nature and conditions of his employment with the respondent. The Member’s decision in respect of the allegation of injury was overturned on appeal to the Presidential Division.
BBY claimed that in the course of his employment with the respondent he was exposed to a number of traumatic events and incidents which caused him to sustain a psychological injury in the form of post-traumatic stress disorder (PTSD) and a depressive condition. The traumatic events and incidents included incidents of detainees committing self-harm, being required to forcibly extract – extricate detainees, capturing escapees, coming into contact with detainees’ blood and having threats made to his safety. BBY alleged that he sustained an injury pursuant to s 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act).
The matter was listed before me for a telephone conference on 3 August 2022. On that date the date of injury in the ARD was amended to 19 January 2021 (deemed), that being the date of BBY’s claim for weekly benefits compensation and medical expenses.
In a dispute notice dated 7 July 2021 the respondent raised a number of reasons for disputing liability for BBY’s claim, including that BBY was barred from recovering compensation because he had not complied with the timeframes for giving notice of injury or making a claim in accordance with s 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

ISSUE FOR DETERMINATION

The respondent notified the matters in dispute in a notice issued pursuant to s 78 of the 1998 Act dated 7 July 2021.
The issue in dispute was agreed by the parties to be as follows:
“Whether BBY’s claim is barred by operation of sections 254 and/or 261 of the
Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)
(notice of injury/notice of claim). This issue will involve determination as to what, on the available evidence, is the date of injury pursuant to section 15(1) of the 1987 Act.”
It was agreed between the parties that the above issue ought to be dealt with as a preliminary threshold issue to the other matters raised in the dispute notice.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conciliation/arbitration before me on 24 August 2022.
Mr Dewashish Adhikary of counsel appeared for the applicant instructed by Acorn Lawyers. Mr Paul Barnes of counsel appeared for the respondent instructed by Moray & Agnew Lawyers.
I was satisfied that the parties to the dispute understood the nature of the application and the legal implications of the assertions made in the information supplied. I used my best endeavours to attempt to bring the parties to a settlement acceptable to them. I was satisfied that the parties had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and have been taken into account in making this determination:
(a)    the ARD, and attachments;
(b)    Reply filed by the respondent, and attachments (Reply);
(c)    Application to Admit Late Documents lodged by the applicant dated
20 October 2021;
(d)    Application to Admit Late Documents lodged by the applicant dated 29 October 2021;
(e)    Application to Admit Late Documents lodged by the respondent dated 29 October 2021;
(f)    Application to Admit Late Documents lodged by the applicant dated
12 August 2022; and
(g)    Application to Admit Late Documents lodged by the applicant dated 19 August 2022 (ALD).

Background

BBY was employed by the respondent as an immigration detention officer from 3 August 1998 to 31 January 2001. BBY alleges that in the course of his employment he was exposed to a number of traumatic events and incidents which caused him to sustain a psychological injury in the form of PTSD and a depressive condition. The traumatic events and incidents are alleged to have included incidents of detainees committing self-hard being required to forcibly extract – extricate detainees, capturing escapees, coming into contact with detainees’ blood and having threats made to his safety.
Following employment with the respondent BBY worked in the following roles:
(a)    October 2020: [redacted] – Area Security Manager (NSW) and Director of Risk;
(b)    2003: [redacted] – Corporate Security Manager;
(c)     2003 – 2008: [redacted] – Risk Manager;
(d)    2008 – July 2012: [redacted] – [redacted] Risk Management Officer; promoted to
[redacted] – Manager, Security and Threat Mitigation, consultant to National Business Continuity Manager;
(e)    November 2012 – September 2012: Security Consultant – [redacted] and other government agencies;
(f)     2013 – February 2015: [redacted];
(g)    February 2015 – June 2015: [redacted];
(h)    November 2015 – December 2016: [redacted]– Senior Manager of Security Strategy and Governance; and
(i)     January 2017: [redacted] Senior Security Consultant – terminated in February 2017 (ARD pages 148 - 149).
In late 2016 BBY was charged with serious criminal offences, in particular possession of a prohibited firearm and unauthorised receipt of official secrets. By his own admission BBY said the search warrant, Australian Federal Police charges and Local Court prosecution took an “enormous” toll on him and he became incapable of working from mid-January 2017 (ARD page 2). There is no evidence BBY has suffered any incapacity for work prior to this time.
On 13 December 2016 BBY entered pleas of guilty to the charges (ARD page 180).
On 20 January 2017 BBY sought medical treatment from Dr Anthony Henderson, forensic psychologist. In a report dated 27 April 2017 addressed to BBY’s former legal advisors, Dr
Henderson stated that BBY’ presentation was consistent with PTSD complicated by comorbid Major Depressive Disorder and Panic Disorder. Dr Henderson said:
“He [BBY] experiences recurrent nightmares intrusive daytime recollections of past traumatic experiences associated with his past employment and recent police investigation. The experiences include three experiencing of witnessed selfevisceration and suicide attempts by immigration detention detainees, murder threats by detainees and repeated occasions where he believed both he and his family safety and welfare were at risk during his work associated with a risk assessment and subsequent risk in various crime figures” (ARD page 97).
On 1 June 2017 BBY submitted a claim for compensation on Comcare in respect of his employment at the [redacted] Detention Centre. At the time BBY erroneously believed that his employer was the Commonwealth Department of Immigration and Border Protection and not the respondent. Relevantly, the claim form submitted to Border Protection:
(a)    described the condition BBY was claiming compensation for as “PTSD, Major Depressive Disorder and Anxiety”;
(b)    stated that BBY first noticed his symptoms on 6 February 2017;
(c)     stated that BBY first sought medical treatment for the condition on 1 June 2007. This date cannot be accurate given that BBY said he first noticed his symptoms on 6 February 2017. It is most likely a typographical error; and
(d)    noted that treatment was received from a Dr Henderson.
The claim form attached a schedule of incidents that BBY alleged he was exposed to during his employment (ARD pages 4 - 11).
On 1 June 2017 BBY also submitted a claim for compensation on Comcare in respect of his employment with [redacted]. The claim form in respect of this injury alleged to have occurred at [redacted] records the same alleged injury, that being PTSD and Major Depressive Condition (ARD page 14). In respect of this injury it was alleged that BBY first sought medical treatment on 23 December 2016 from Dr Henderson.
On 17 August 2017 Comcare declined liability for BBY’s claim in respect of injury received during his employment with [redacted].
On 9 October 2017 Comcare advised BBY that the respondent was not a Comcare employer (ALD 12 August 2003 to pages 3 - 4). After receiving this advice BBY sought legal advice from his current solicitors, Acorn Lawyers. By 9 October 2019 it was apparent to BBY that a claim for compensation against the respondent could not be made upon Comcare, but was required to be made to the respondent.
BBY brought proceedings for compensation in the Administrative Appeal Tribunal (AAT) challenging Comcare’s decision to decline liability in respect of his employment with ASIC. During those proceedings BBY alleged that his employment with [redacted] significantly contributed to his ailment. The matter proceeded to a hearing in mid-September 2019 and a decision was issued on 7 November 2019 affirming the decision to decline liability for the alleged injury (ARD pages 143 - 186). BBY was represented by experienced counsel and his current solicitors.
The Senior Member of the AAT determined:
“The difficulty for [redacted] is that, although he was an employee of ASIC at the time of the alleged injury, when he first suffered his incapacity for work in December 2016, he had not been an employee with ASIC for almost 4 years. Also, he had not lodged a claim for the alleged injury until almost 5 years after he had ceased being an employee with ASIC.
[Redacted] claims that he had not been aware, until January 2017, that he had suffered an injury while working with ASIC when he had been informed by his treating psychiatrist Dr Henderson of the significant contribution of his past employment to his current psychological condition. In effect, [redacted]’s claim is based on a retrospective interpretation of past circumstance.
…
[redacted] has created a retrospective narrative, covering almost 20 years, which tries to connect his experience while working at the Villawood Detention Centre, his employment with ASIC and the consequences of the AFP raid in November 2016 to his current severe psychological condition.
…
Throughout [redacted]’s employment with ASIC there was no evidence of incapacity for work…” (ARD page 177).
I am not aware of any appeal of the AAT’s decision.
Over a year after receipt of the unfavourable AAT decision, on 19 January 2021, BBY eventually made a claim on the respondent for weekly benefits compensation and medical expenses compensation. The letter making the claim stated as follows:
“We are now in a position to make a claim for weekly payments compensation and medical expenses and we do so in the following terms:
• Weekly payments: $3.300gpw (as adjusted by operation of statute) from

20 January 2017 to date & continuing (the Applicant last worked for Norman,

Disney & Young in January 2017, where his wage was $173,000 gpa, plus

Super); &
• Medical expenses: estimated at $25,000 for the same period (see attached schedule of expenses for the treating consultant psychiatrist Dr Antony Henderson, in the sum of $15,093 for the period 20 January 2017 to 15 October 2020)”

The letter attached medico-legal reports and called for copy of BBY’s personnel, workers compensation and medical files (ARD page 17).
The claim sought compensation from 20 January 2017 to date and continuing. The letter from Acorn Lawyers making the claim stated “the applicant last worked [redacted] in January
2017…” The claim for medical expenses was made for the same period, and attached a schedule of expenses for Dr Henderson for the period 20 January 2017 to 15 January 2020) (ARD page 17).
BBY made two statements would which were admitted into evidence.
In a statement dated 7 June 2021 BBY said that he first suffered “psychological difficulties” in 1998, as a result of his work with the respondent. BBY said he was first diagnosed with depression in 2007 and had been on anti-depressant medication since that time. BBY stated that the AAT Senior Member had accepted that:
“…[redacted]’s employment at [redacted] Detention Centre…had contributed, to a significant degree to the deterioration of his pre-existing psychological condition which resulted in an incapacity for work” (ARD page 3).
BBY omitted words from the above finding. The precise wording of the findings of the Senior Member are set out below:
“On my reading of the available evidence I am satisfied that [redacted]’s employment at [redacted] Detention Centre and the AFP raid in November 2016 had contributed, to a significant degree to the deterioration of his pre-existing psychological condition which resulted in an incapacity for work” [emphasis added] (ARD pages 184 - 185).
The reasons BBY omitted the words were not explored during the arbitration hearing. One possible explanation is that BBY was seeking to mislead the Commission in relation to the
“main contributing factor” test, which is relevant to the question of injury under section 4(b)(i) of the 1987 Act.
It is also relevant to note that the incapacity referred to by the Senior Member was incapacity claimed in those proceedings, that is incapacity alleged to have been suffered for work from December 2016 (ARD page 177). In any event, the findings of the Senior Member are obiter dicta and are not binding on the Commission.
In a supplementary statement dated 12 August 2022, which was admitted over strong objection by the respondent, BBY said as follows:
“I first gave notice of psychological injury arising from a traumatic work incident during the course of my employment with [redacted] in or about July or August 2000.
The cause of the notification was my involvement in a detainee hunger strike at
[redacted] Immigration Detention Centre in or about July 2000…
A few days after the end of the hunger strike, I spoke with ACM’s resident clinical psychologist, Dr Nair if I remember his name correctly, and told him that I was experiencing flashbacks of the incident and having nightmares and waking up with sweats.Dr Nair said to me words to the effect of: “I would advise you to take some time off, at least two weeks.
I then discussed this recommendation with ACM’s operation manager, Mr Ross Furlong, and I recall that he approved my request for leave.
I recall having approximately four weeks off work at this time and having the support of ACM’s human resources department and their workers compensation insurer, GIO.
I continue to receive my weekly wage payments during my time off work, but I can’t recall that these payments are made by ACM or GIO.
While I was off work, I recall meeting with an insurance investigator acting on behalf of
GIO at my house…
The interview was conducted in my dining room and my wife, Connie, sat in on this, and over the course of about two hours investigator asked me about the hunger strike in my psychological reaction to it.
I was never given (or shown) a copy of my statement.
Although I was frequently exposed to traumatic events during the course of my employment with ACM, I do not recall lodging any other workers compensation claim or notice of injury apart from the hunger strike.
My failure to give notice in relation to any of the other events apart from the hunger strike was occasioned by my ignorance at the time of the need to do so. I was unaware that I was in the process of developing permanent psychological injury which would cause me to make a compensation claim nearly 20 years down the track.
In relation to the issue of any delay in giving formal notice of the claim for
compensation against ACM, I say that I gave timely notice after first becoming aware in or about January/February 2017 of a connection between my psychological injury and my employment with ACM many years prior.”
BBY referred to a report written by Dr Stephen Woods, clinical forensic and consultant psychologist, dated 6 February 2017 in which Dr Wood recorded that BBY’s response to the PTSD scale/inventory identified his experiences at the Villawood Detention Centre as being the most traumatic (ARD page 75).
BBY said:
“At this time I was not thinking about lodging compensation claims because I was severely incapacitated by my psychological injury and I had to dedicate my time and energy to preparing my defence to the criminal charges that had been laid against me in December 2016.”
The above statement is confusing in the circumstances where BBY entered pleas of guilty to the charges laid against him on 13 December 2016 (ARD page 180).
BBY said that he made claims on Comcare in respect of employment with ACM and ASIC on 20 June 2017.
BBY said he remained in receipt of total incapacity income protection benefit payments which commenced in or about February 2017 and had received a Total and Permanent Disability lump sum claim (ALD page 4).
BBY said:
“Any delay in giving formal notice of a claim against ACM earlier than 20 June 2017 was occasioned by my ignorance of the need to do so. The causal link between my psychological injury which manifest in January/February 2017 in my work at ACM nearly 2 decades earlier was not apparent prior to the diagnosis of Mr Woods [in his report of 6 February 2017].” (ALD 12 August 2003 to page 4).

REASONS

Notice of injury/deemed date of injury

In order for BBY to recover compensation the respondent must have received notice of the injury.
Section 254 of the 1998 Act relevantly provides:
“(1) Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2) The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3) Each of the following constitutes special circumstances:
(a)the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b)the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c)the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d)…”

BBY bears the onus of proof in relation to all matters, including that he gave notice of injury. In the event that notice was not given within the timeframes specified, BBY bears the onus of establishing that special circumstances exist to avoid the operation of s 254(1), including the absence of prejudice (s 61(2)); s 254(3)(a)).
The standard of proof is the balance of probabilities (see Nguyen v Cosmopolitan Homes(NSW) Pty Ltd [2008] NSWCA 246 at [44]).
As preliminary issue to determining whether BBY’s claim is barred by s 254, it is necessary to determine the date of injury.
Section 15 of the 1998 Act relevantly provides:
“(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process—
(a) the injury shall, for the purposes of this Act, be deemed to have happened—
(i) at the time of the worker’s death or incapacity, or

(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and

(b)compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due [emphasis added].”

The reference to compensation in s 15(1)(b) is a reference to the incapacity for which compensation is claimed (GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187).
BBY submitted that the notice provisions do not apply because the date of injury is modified by s 15(1) of the 1987 Act. BBY said that s 15(1) had the effect of deeming his injury to have happened on 21 January 2021, when the claim for compensation was made. BBY also
submitted that given that the claim for weekly benefits compensation had been discontinued, the date fixed for the claim for medical expenses should be fixed as the date of the claim.
The respondent submitted that the correct date of injury was July 2000 when BBY first suffered incapacity to work following the hunger strike incident.
I am not persuaded by the respondent’s submission. This is because the claim BBY is making in these proceedings is that he suffered a disease contracted in the course of his employment as a result of exposure to traumatic incidents from 1998 to 2001, inclusive of the subject incident in July 2020. BBY’s claim in these proceedings is made in respect of exposure to traumatic incidents during the entire period of his employment with the respondent, not only the July 2020 incident. BBY’s evidence is that he did not recall lodging any notice of injury or claim apart from in relation to the hunger strike. Notice of injury and a claim in relation to a particular event is to be distinguished from the “nature and conditions” type claim that is now being made which covers the entire period of the employment.
I am also not persuaded by BBY’s submission that the date of injury is the fate of the claim was made on the respondent’s insurer.
This submission asks the Commission to ignore that the claim made on 21 January 2021

(the 2021 claim) was also made in respect of incapacity for work resulting from the injury.

Whilst the application for weekly benefits compensation was discontinued, in my view the fact that it was part of the 2021 claim cannot be ignored in the context of determining the date of injury. Section 15(1) refers to the making of a claim for compensation with respect to the injury, not the prosecution of such claims in the Commission. The 2021 claim was validly made. There is no reason to suggest that discontinuance of the proceedings based on the 2021 claim nullified the claim or constituted an election by BBY to abandon the claim altogether (cf. Downer EDI Works Pty Ltd v McLuckie [2014] NSWWCCPD 57 (9 September 2014) at [59] – [60]).
This matter is readily distinguishable from cases involving separate claims for lump sum compensation and other compensation which have been made at different times and may have different deemed dates based on the interpretation of ss 15 and 16 of the 1998 Act. The claims were made on the same date and are inextricably connected. The claims are claims for economic loss and out of pocket medical expenses, not non-economic loss. BBY was not able to point any specific authority to support that claims for weekly benefits and medical expenses could have separate dates of injury. I also note the claim for medical expenses commences on the same day as he claim for weekly benefits compensation.
Moreover, discontinuing an application for weekly compensation for the purposes of attempting to obtain a different date of injury to circumvent the limitations periods in ss 254
and 261 of the 1998 Act is contrary to the purpose of having limitation periods in the first place.
The 2021 claim was for was weekly benefits compensation from 20 January 2017 to date and continuing and noted that BBY last worked for Norman Disney & Young in January 2017
(ARD page 17). The period of incapacity claimed is consistent with BBY’s evidence that his only source of income from February 2017 was from an income protection policy held by his last employer (ALD page 4). It is also consistent with the AAT decision that BBY first suffered incapacity to work from December 2016 (ARD page 117). There is no evidence of BBY suffering from any incapacity prior to December 2016/January 2017 (see also paragraph 122 of the AAT decision, ARD page 178).
In BBY’s matter, the date of injury is to be deemed to have happened at the time he first suffered incapacity as a result of the injury for which compensation has been claimed. It is not to be determined by the date of the claim. By reference to the 2021 claim, the date of injury is 20 January 2017 (deemed).
BBY first gave notice of the injury on 19 January 2021, almost four years after the date of injury.
BBY has not given notice as soon as soon as possible after the injury happened and before he voluntarily left the employment with the respondent.
Therefore, in order to recover compensation, BBY must establish there are “special circumstances” within the meaning of s 254(3).
BBY submitted the respondent was not prejudiced by the delay, noting that the dispute notice referred to a factual investigation that was in the process of being undertaken to corroborate
BBY’s allegations. However, the dispute notice also stated that the respondent was mindful that the events allegedly occurred some 21 years ago (Reply page 16).
The effluxion of time forms a reasonable basis upon which a presumption of prejudice can be made (Westlake v Sydney Symphony Orchestra Subscribers Committee [2009]
NSWWCCPD 12 at [69]). In Camden Council v Hancock [2005] NSWWCCPD 6 Byron DP stated that he did not agree that lengthy delay alone must always give rise to prejudice and injustice.
A very significant period of time has passed since BBY left the employment of the respondent, approximately 21 years.
The respondent submitted it would suffer extreme prejudice due to the effluxion of time. I accept the prejudice is likely to be extreme. However, there is no specific evidence before me that the chances of a fair trial are unlikely due the unavailability of evidence. For example, there is no evidence that attempts have been made to contact the respondent’s personnel, such as Mr Furlong, and he is no longer available to provide any evidence relevant to BBY’s allegations.
I find that the respondent would not be prejudiced by the failure to give notice in accordance with s 254.
It is only necessary that for a worker to be able to prove that one of the special circumstances is made out in s 253(3) (Zheng v Xie [2011] NSWWCCP 58 at [193]-[197]). Therefore, it is not necessary for me to consider the other circumstances in that subsection. To the extent that it was submitted that the injury had been reported following the July 2000 incident, this is not the injury that relevant to these proceedings.
I find that the applicant’s failure to give notice in accordance with s 254(1) is not a bar to the recovery of compensation.

Notice of claim

Section 261 of the 1998 Act relevantly provides:
“(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2)    If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
(3)    For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
(4)    The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:
(a)the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b)the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
(5)    The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6)    If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware…” [emphasis added].
Awareness of injury” is awareness of injury as defined in ss 4 and 15 of the 1987 Act and not merely awareness of a physical problem (Heartcraft Australia Pty Ltd v Lapa [2007] NSWCCPD 27 at [37]).
It is common ground between the claim was made on 19 January 2021 and this satisfied the requirements of ss 260 of the 1998 Act.
I have found that the date of injury is the first date of incapacity arising from BBY’s injury, that being 20 January 2017 (deemed).
I find that BBY first became aware that he received an injury at least by January/February 2017 when he was advised of a connection between his psychological injury and his employment with the respondent. In making this finding I rely upon BBY’s evidence at paragraph 21 of his statement (ALD page 3). Having become aware of his injury in January/February 2017, BBY was required to make a claim upon the respondent within six months (at least by September 2017).
BBY did not make a claim until 17 January 2021, almost four years after he was aware of the injury. Therefore, BBY cannot recover compensation unless he establishes that he falls within the exception in s 261(4).
The claim BBY made on Comcare on 6 June 2017 did not constitute a claim on the employer for the purposes of s 260 of the 1998 Act. There is no evidence that the respondent was somehow put on notice of the claim as a result of the claim. BBY’s evidence, set out above, wrongly supposes the claim made upon Comcare was a valid claim for compensation made upon the respondent.
BBY submitted that his failure to make a claim was occasioned by ignorance, mistake, or other reasonable cause for the reasons set out in his statement.
I do not accept BBY’s submission.
On 9 October 2017 BBY made aware that the respondent was not a Comcare employer.

Following the advice from Comcare, BBY engaged his current solicitors. It is reasonably

inferred from the chronology set out above that BBY elected to not pursue his claim against the respondent and instead to pursue a claim against Comcare (ASIC).

It is only following the rejection of the BBY’s claim for compensation by the AAT in November 2019 that a claim upon the respondent was made. Even then, a claim was not made promptly (over a year after the AAT decision).
As noted above, BBY was legally represented through the Comcare claim by competent counsel and his current solicitors. It would have been incumbent upon those persons to advise BBY of his rights against other potential tortfeasors, such as the respondent, and the time periods for making a claim. This Commission is aware that BBY’s solicitors regularly appear in this jurisdiction and are well aware of the timeframes for making claims. It beggar’s belief that BBY was ignorant of his legal rights against the respondent and his obligation to make a claim.
I do not accept that BBY was impeded in making a claim by his psychological injury and preparing his defence to the criminal charges. BBY entered pleas of guilty to the charges laid against him on 13 December 2016 (ARD page 180). In any event, he made a claims with Comcare on June 2017. BBY could have made a claim on the respondent shortly after receiving notice that it was not a Commonwealth employer. Instead BBY elected to prosecute the claim made on Comcare in relation to his employment with ASIC through to late 2019. BBY was not psychologically impeded in the prosecution of that claim.
I am not satisfied that BBY’s failure to make a claim was occasioned by ignorance, mistake or other reasonable cause. Therefore, BBY cannot recover the compensation claimed in these proceedings. It is not necessary to consider whether the claim is one made in respect of an injury resulting in serious or permanent disablement.
I find that BBY cannot recover the compensation claimed because he has not made a claim within six months after the injury or accident happened. BBY was aware of the injury from at least January/February 2017 and he did not bring a claim until 17 January 2021. The delay in making the claim was not due to any ignorance of his legal rights and obligations. There will be an award for the respondent on the claim for medical expenses.

[2022] NSWPIC 562

11 October 2022