BMW v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	BMW v Secretary, Department of Education [2024] NSWPIC 158
APPLICANT:	BMW
RESPONDENT:	Secretary, Department of Education
MEMBER:	John Wynyard
DATE OF DECISION:	2 April 2024
DATE OF AMENDMENT:	13 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim by applicant against Department of Education for weekly payments and lump sum in respect of a psychological injury; applicant acquitted after 2 trials of historical sex offences; during that time placed in Departmental district office where she was bullied, harassed and unsupported for three years; evidence from three qualified experts consistent with allegations by the applicant; contemporaneous documentation supportive also; no evidence from the respondent challenging evidence; whether section 11A defence that predominant cause was notification after 2nd acquittal that the Department would be conducting an investigation; Held – respondent failed to meet its onus; Northern NSW Local Health Network v Heggie, Hancock v East Coast Timber Products Pty Ltd and State Transit of New South Wales v Fritzi Chemler cited in argument; evidence demonstrated applicant had been aware that investigation would follow for some years; respondent expert opinion in nature of ipse dixit; award applicant.
DETERMINATIONS MADE:	The Commission finds: 1. The predominant cause of the applicant’s psychiatric injury was not the notification by Professional and Ethical Standards that they would be investigating the allegations of historical sexual abuse (following the finalisation of the criminal proceedings). 2. Accordingly, there is an award in favour of the applicant. 3. The applicant has been without any work capacity since 2 December 2020. 4. The pre-injury average weekly earnings is $2,019.90. The Commission orders: 1. The respondent will pay the applicant $1,664 pursuant to s 37 and s 38 from 28 July 2021 as indexed and adjusted. 2. Liberty is granted to apply in respect of order 1. 3. I remit this matter to the President for referral to a Medical Assessor on the following bases: (a) Date of injury: 2 December 2020, deemed. (b) Matter for assessment: psychological/psychiatric injury. (c) Evidence: (i) Application to Resolve a Dispute and attached documents; (ii) Application to Admit Late Documents dated 31 January 2024 from the applicant; (iii) Application to Admit Late Documents dated 20 February 2024 from the applicant; (iv) Reply and attached documents; (v) Application to Admit Late Documents dated 25 January 2022 from the respondent; (vi) Application to Admit Late Documents dated 19 January 2024 from the respondent, and (vii) Minutes of 1 December meeting – emailed shortly after commencement of the second day of the hearing.

STATEMENT OF REASONS

BACKGROUND

[BMW] (the applicant) brings an action against Secretary, Department of Education (the respondent) for weekly benefits and lump sum payments in respect of a psychological injury claimed to have occurred on a deemed date of 2 December 2020.
Dispute notices were duly issued and the proceedings commenced.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Do the provisions of s 11A exclude the respondent from liability?
(b) In particular, were its actions in respect of discipline reasonable?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was heard on 9 February 2024 in person and on 21 February 2024 by video link. The applicant was represented by Mr Lachlan Robison instructed by Ms Karena Nicholls from Messrs Coutts Legal. The respondent was represented by Mr David Baran of counsel instructed by Mr Michael Tan and Mr Dylan Roskodv of Messrs Bartier Perry Lawyers. Also in attendance was Ms Rawouha Zreika for the insurer at the in-person hearing.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE
Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Application to Admit Late Documents dated 31 January 2024 from the applicant;
(c)    Application to Admit Late Documents dated 20 February 2024 from the applicant;
(d)    Reply and attached documents;
(e)    Application to Admit Late Documents dated 25 January 2022 from the respondent;
(f)    Application to Admit Late Documents dated 19 January 2024 from the respondent, and
(g)    Minutes of 1 December meeting – emailed shortly after commencement of the second day of the hearing.

Oral evidence

No application was made with respect to oral evidence.

FINDINGS AND REASONS

Preliminary

The hearing of this matter was delayed, as it was referred to the District Court by the Commission on 23 September 2022 on a jurisdictional issue that subsequently was found not to be valid by the Court of Appeal.
At the outset of the hearing Mr Robison objected to statements contained in the Application to Admit Late Documents from the respondent dated 19 January 2024. The statements were from [redacted], Director of Education & Leadership at [redacted] Principals Network and [redacted], Director of Education & Leadership for the [redacted] Principals Network, who had retired in December 2021. These statements had not been foreshadowed at the earlier preliminary conference and I was advised that the applicant sought to issue summonses to those witnesses to attend for cross-examination. However, due to some mishap, the summonses were not issued. Unsealed copies of the summonses were served on the respondent, who did not arrange for the witnesses to be present as the unsealed summonses had no legal effect.
During argument it transpired that one of the annexures to one of those statements had not been served until 11:38am on the morning of the hearing. After some consideration I rejected the above statements.
In response to an invitation from Mr Baran, Mr Robison said he was relying on the opinion of Dr Shannon Paisley and not the opinion of Dr Abhishek Nagesh.

Short factual background

The respondent conveniently lodged a chronology, which gives a rough overview of relevant dates:[1]
[1] Reply pages 20 - 21.
“PES INVESTIGATION SUMMARY[2]
[2] “PES” indicates Professional and Ethical Standards.
[BMW] CPM 2017 2299
Prepared for Mr Bruce McLean, Solicitor
Report Date 30 March 2021
13/9/17 Professional and Ethical Standards (PES – Formerly EPAC) was informed of
allegations against [BMW]
11/12/17 [BMW] was arrested by police for historical child sex offences (1997).
She was charged with 21 occasions of aggravated sexual assault, assault
with act of indecency in relation to two male victims under 16 years at the
time of alleged offences. Timeframe of charges was 1/10/97-31/12/97. [BMW] was released on bail.
11/12/17 [redacted]’s letter informed [BMW] she was suspended on full pay as
a result of criminal charges, and she would be placed on alternative duties at
[redacted] Network Office commencing 29/1/18.
13/12/17 OCG notified PES that [BMW] was barred person as a result of the
cancellation of her WWCC clearance.
[BMW] remained on alternative duties on the basis that she no longer
held the relevant credentials to work as a teacher.
Oct-Nov 2019 Trial #1 – Parramatta District Court Ref: [redacted]
Outcome: Hung jury
Oct-Nov 2020 Trial #2 Dowling District Court
Outcome: Hung jury
24/11/20 PES Director Investigation’s letter to [BMW]: advising that PES
investigation will commence. (Copy attached)
1/12/20 Director Educational Leadership met with [BMW] and handed her PES
letter dated 24/11/20.
David Wright-Smith
Director Child Protection Investigations”
I note that the reference to the outcome of the second jury trial in November 2020 was incorrect, and that [BMW] was in fact acquitted, with perhaps some back-up charges being withdrawn. The situation is not clear as, surprisingly, neither side could affirmatively advise the Commission what the actual outcome had been. A document entitled “Plaintiff’s chronology” was attached to the application to Admit Late Document dated 31 January 2024. It noted that the last day of the second trial was on 3 November 2020.

[BMW]’s statements

The applicant made two statements dated 22 October 2021[3] and 20 February 2024.[4]

22 October 2021
[3] ARD page 1.
[4] Applicant’s ALD dated 20 February 2024.

She said she had been employed by the respondent since 1997 and worked as a high school teacher in many schools.
She said that she had recently been a defendant in both a criminal trial and civil proceedings regarding allegations of sexual assault and that she was acquitted of all charges in the criminal trial and two of the charges were dropped. She had not worked as a teacher since 2017.
She set out her experiences after she was charged in December 2017. She said that around April 2018 she was “Redeployed to the [redacted] Network Office to perform alternative duties”.
She said that in this redeployment position she had been subjected to bullying and had been ostracised and discriminated against by her colleagues. She said:
“9.     My colleagues would stare at me and ignore me. Whilst I was speaking mid sentence they would shut the door on me or turn and walk away. They would openly harass and call me names such as a 'sex offender'. There were two other colleagues being investigated and we were referred to as the 'three amigos'. The three of us were excluded from work events.
10.    I reported this behaviour to my superiors and no action was taken to address these issues. The colleague who called me a sex offender was asked no[t] to come back to [redacted] District Office. The comment she made still had a significant impact on my mental health.
11.    Prior to the second trial I sat in a small room separate from my colleagues. After I was acquitted, I was forced to sit in a chair specifically for persons who were being investigated by the Department. When I was shown to the seat I immediate requested to be moved however it was denied.
12.    My colleagues would pointedly ignore me and stared at me. I felt like I had nowhere to hide. The bullying and harassment continued and increased causing me to request to be moved into a smaller room as opposed to working in the main office with all my colleagues. I had on multiple occasions advised of my panic attacks in the main office but still my request was denied by my superiors.
13.    When I complained about the rudeness of the staff and the bullying I was told that this was merely my perception by Director [redacted]. I was frightened to take anything further because I was worried that their behaviour would worsen.
14.    For the last two and half years I have not been provided with any substantial work.
15.    I have been shut off from the procedures accessible to all other staff members in the office and as a result I feel isolated and alone at my workplace. They had little to no concern for my mental health. I would cry frequently including at meetings with the Director [redacted] but nothing changed.
16.    On or about March 2020 I was abused by a clerical staff member regarding boxes of tissues. The clerical staff questioned why I needed two boxes of tissues. She then proceeded to check my desk to confirm that my box of tissues was empty. The clerical staff berated me for taking them without their permission. I had been previously advised by Sam to 'help myself'.
17.    After the tissue incident I went to my general practitioner who gave me a doctor's certificate that included a statement that I should work from home due to being immunocompromised
18.    In November 2020, I was notified by the Department of Education's Professional and Ethical Standards Directorate that I was to be subject to an internal investigation of the allegations of sexual misconduct, despite the fact I was acquitted of the criminal charges.
19.    I made repeated requests to Director Finn to sign in somewhere else or call in due to my repeated panic attacks. This request was denied. The work environment was not a safe and supportive one.”
[BMW] said that on 2 December 2020 she obtained a certificate from her general practitioner (GP), Dr Sayyal certifying her as being unfit for work.

DISPUTE NOTICES

A s 78 Notice was issued dated 1 July 2021, and the denial confirmed in a s 287A Notice dated 22 September 2021. The s 78 Notice stated:[5]
“We do not agree that you are entitled to compensation because your psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by your employer with respect to discipline under section 11A of the Workers Compensation Act 1987.”
[5] ARD page 16.
The s 287A Notice confirmed that denial, stating:[6]
“On 1 July 2021 Allianz issued a dispute notice in relation to your claimed injury that occurred on 2 December 2020. The effect of this notice was to dispute liability for the payment of compensation in respect of your psychological injury on the basis that S11A(1) of the 1987 Act allowed the employer a defence to the claim. That notice also attached a report of Dr Clayton Smith whose opinion supported the dispute on the basis that he considered the predominant cause of your injury was the notification by Professional and Ethical Standards that they would be investigating the allegations of historical sexual abuse (following the finalisation of the criminal proceedings).”
[6] ARD page 20.

Contemporaneous evidence

The respondent lodged a Workcover certificate of capacity from her GP Dr Gligorov dated
[7] Reply page 1.
5 February 2018.[7]
It noted that [BMW] was suffering “mixed anxiety and depression” and that the date of injury was 13 December 2017. The employment relationship was described as:
“Alleged of sexual abuse in the past [sic]. Symptoms started after arrest in December.”
The clinical notes of My Health Brigadoon were lodged.[8]
[8] ARD page 81.
On 5 February 2018 Dr Gligorov noted:
“Alleged sexual assault over 20 years ago .Was arrested on 13 .12.2017
Two man are accusing her of assaulting them when she was teaching in HS / apparently they were not her students .
On the news , in the local news paper. Had been band form her school and any school grounds ..
Claims non of that happened
Anxiety and marked insomnia
fear , constant worry , attacks of SOB and chest pains etc
Reason for contact:
Insomnia
anxiety /depression
anxiety attacks”
(As written)
On 15 February 2018 [BMW] emailed Margaret Alridge at the insurer. The applicant said, amongst other things:[9]
“I spoke to you a little while ago about my situation I was arrested and subsequently charged with historical sexual offences on dec 13 2017. I was taken to Bankstown police station and spent the day in a cell. I was released on bail at the end of the day. The police chose to release a media brief with my name and picture and charges. As a result the major news stations and papers ran the story. On 10 January I was required to front at Bankstown Court where I was besieged by media. That night my face and name were broadcast along with the allegations. As a result there have been innumerable threats on both face book and the Internet my home has been spray-painted. I am a single mother with a 5 year old child and I am not able to pick him up pick up or drop him off at school without prior approval. My working with children's check has been suspended and I have been placed on alternative duties until the trial which is envisaged to be some time in 2019.
I am terrified to leave my home. I am unable to sleep and I get regular panic attacks. I am currently on valium and antidepressants. My anxiety is through the roof and I don't feel safe anywhere…”
[9] Reply page 4.
On 26 March 2020 [BMW] sent an email to [redacted] who was then the District Manager:[10]
“Hi [redacted]
I’m sorry to bother you but I’m finding it difficult to function at District office at the moment. A lady from that front office (answers to [redacted]) just came over to speak to me. I had taken two small boxes of tissues from the storage room (as I had been advised to do so before if I needed them). This lady wanted to know why I needed two boxes (they are half the size of the regular boxed which I [sic] why I took 2). I replied that the box that I had was nearly empty. She then asked to check the box that I had on my desk. She kept reiterating that she was directly answerable to [redacted] and she was an executive officer. She stated that in future I needed to ask for permission from her.
After the way I was treated on Monday, I am overwhelmed at the sub par treatment I have been receiving. I feel I am being bullied and I am unable to cope with this any more. I have put up with being referred to as a ‘sex offender’ and part of the three ‘amigos’ but this is too much. I haven’t put in a formal complaint yet as I didn’t want to cause any trouble but this last episode is too much.
When the lady asked to feel the box of tissues that I had on my desk after I told her is was nearly empty was appalling and insulting. I am not a liar and I was absolutely treated like one.
I took two because I hate going into the front office as it is. I get panic attacks and just want to be left alone. I took two so I didn’t have to go over again in a few days.
I am extremely upset and don’t know what to do anymore.
[BMW]”
[10] Applicant ALD dated 31 January 2024 page 95.
[redacted] replied that same evening. He noted that he and [BMW] already had a meeting arranged to discuss concerns which had been raised by her.[11]
[11] Applicant ALD dated 31 January 2024 page 95.
On 30 March 2020 Dr Wang noted:
“Emotional stress at work
bullied over petty things
had anxiety attack
would like to take some time off
Also to work from home”
On 24 November 2020 [BMW] received a letter from Victoria Myerscough, Director Child Protection Investigations.[12] Ms Myerscough stated relevantly:
“I write further to previous correspondence from Julie Smith, Investigator, dated 16 September 2020.
The Professional and Ethical Standards (PES) Directorate has been advised of the outcome of your criminal trial. This is to confirm that PES (formerly EPAC) will now commence its investigation of the allegations that you may have engaged in sexual misconduct when you were a teacher at [redacted] Boys High School. PES is investigating the matter against you in line with the Department’s Guidelines for Management of Performance and Conduct. These Guidelines can be accessed at: Reply page 18.

Ms Myerscough’s letter then gave a number of directions as to what [BMW] was forbidden from doing professionally, and advised her of the process and the support available to her.

On 1 December 2020 a meeting was held with [BMW], [redacted], [redacted] “Admin Officer – Note Taker” and “[redacted]” a support person.

The minutes of that meeting were tendered without objection by email on the second day of hearing, 21 February 2024.

The purpose of the meeting was said to be to “deliver letter of direction from Professional & Ethical Standards Directorate”. The notes were as follows:

“Notes
·        [redacted] explained to [BMW] that he had a letter of direction to give her after her criminal trial where she was found not guilty, from Professional & Ethical Standards Directorate (PES) formerly known as EPAC.
·        [redacted] explained the letter states [BMW] is to continue reporting to [redacted] Office on alternate duties whilst PES continues with their investigation.
·        [BMW] read the letter and was relieved as she thought she was ‘being fired’.
·        [BMW] explained how stressed she has been and is suffering panic attacks and anxiety.
·        [BMW] stated she does not check her emails anymore as she finds them too confronting. She indicated that [redacted] had brought to her attention there was an email from [redacted] inviting her to a meeting, but she had already seen it.
·        [BMW] explained she has been extremely stressed since reading the email and the anticipation of the meeting.
·        [redacted] asked [BMW] if she would prefer him approach her in the office and tell her when he needs to meet with her, instead of via email?
·        [BMW] confirmed she would prefer this to happen as emails are too stressful for her.
·        [redacted] confirmed [BMW] was well supported.
·        [BMW] explained yes she has support from her lawyers and very well supported otherwise.
Meeting ended at 12:40pm”

On 6 December 2020 [BMW] sent an email to the insurer concerning her claim for compensation. Relevantly, she said:[13]
“I have attached my certificate and wish to apply for stress leave/ workers compensation. I am happy to discuss my case with you at any time …..
I rang on Friday and spoke to a lady who gave me this email address. I'm not capable of going back into work so I was unable to get the other number to call.
I have been attending [redacted] district office for three years after being accused of heinous historical sexual offences while teaching at [redacted] Boys high school. I was found not guilty of all charges two weeks ago. I just can't cope anymore, especially as the department of education is now opening their own investigation into these charges.”
[13] Reply page 5.
An Incident Report Form was lodged by the respondent dated 15 February 2021.[14] The “Description of Incident/Hazard” contained the following:
“[[BMW]] reports to have sustained a psychological injury whilst working in her temporary role at the [redacted] Educational Office under the management of [redacted] (DEL – [redacted] Principals Network) in and around ongoing investigations for performance related issues in her substantive teaching role at [redacted] High.”
[14] Reply page 6.
The entry by Dr Sayyal in the Brigadoon Medical Centre notes on 2 December 2020 stated:[15]
[15] ARD pages 122 – 123.
“WORK RELATED STRESS
Is a school teacher
Is going through trial at court
Has been decided in her favour
pt has been very stressed
goes to work daily and just sits there
does not get any work to do
reports no one wants to speak to her at work
no one makes eye contact wit her
other people are called for Christmas parties but no one invited her
feels that even though all cases have been cleared but she is treated like a convict at her work place causing significant anxiety
pt report feeling sick in the morning
does vomit most mornings
cant go to work and face came situation every day any more”
(As written)
Dr Sayyal issued a SIRA certificate the same day, 2 December 2020 which stated that the injury was related to “ongoing stress and discrimination at work”.[16]
[16] ARD page 32.
On 3 February 2021 Dr Sayyal noted:
“work situation still same
under stress
not suitable for her to return to work under current situation”
On 1 March 2021 Ms Helen Madigan, psychologist, advised the insurer that she had assessed [BMW], who had been sent for assessment by Dr Sayyal. Ms Madigan understood that eight sessions of psychological treatment had been approved. Ms Madigan administered a DASS21 test and diagnosed a psychological injury. She said:[17]
“Based on reported and observed symptoms, I believe [BMW] meets the criteria for Adjustment Disorder with mixed anxiety and depressed mood. The precipitating stress or for these symptoms is ongoing bullying in the workplace by colleagues in the Department of Education District Office, where [BMW] (sic) has been placed for the past three years.”

[BMW]’s supplementary statement 20 February 2024
[17] ARD page 56.

In this statement [BMW] referred to her original statement of 22 October 2021 and a further statement which appeared to be dated 6 February 2024, although the “4” is smudged on the copy. This did not appear to be amongst the papers and was not referred to by either counsel. I assume therefore that it is not relied on.
[BMW] reviewed the meeting notes document of 1 December 2020. As to her expression of relief that the meeting was just about the investigation she said she had been advised that this process will occur when she first arrived at the [redacted] District Office by another officer of the department in December 2017.
She confirmed that she was concerned that she might be fired, in which case she would be unable to pay her bills and support her son. She confirmed that she told [redacted] that she did not like checking her emails and she said that she stated several times that she suffered anxiety and panic attacks at the [redacted] District Office. She said that she did not go into much detail with [redacted] as she had already emailed [redacted] about that mistreatment.

MEDICAL

Dr Shannon Paisley

Dr Shannon Paisley was a consultant psychiatrist who was qualified by the applicant.
Dr Paisley supplied three reports, two dated 7 May 2022 and the other dated
13 December 2023. Dr Paisley took a consistent history. He said:[18]
“[BMW] was removed from her teaching role whilst her charges were pending. She was transferred to the district office at Riverwood during this time. [BMW] alleged that she was bullied and harassed during her time at the [redacted] district office. She said – ‘they called me a sex offender’ and treated her with hostility. She said they would not reply to her greetings and disrespected her in various ways such as allowing the door to close on her face instead of calling it open. She was excluded from social occasions such as Christmas lunches and felt isolated in the office. She was not given meaningful work. She was criticised for taking a box of tissues and a woman reportedly said to her – ‘you have no right to take tissues,’ and ‘from now on you need to ask permission.’ She said they ‘treated me like dirt,’ and ‘badmouthed me.’ She felt as though she was being put in a ‘naughty chair’ in an exposed location so that she would be exposed to more ridicule and embarrassment. She spent a total of approximately two years from 2018 until 2020 at the [redacted] office. Despite being acquitted of all charges, she was told by the Department of Education that they were also going to conduct an internal investigation into her conduct. This investigation was reportedly meant to only last for six months but took 14 months to be finalised. The Department of Education reportedly accused her of lying and she felt persecuted.
[BMW] said that she reported the bullying behaviour, but nothing changed.
[18] ALD applicant dated 31.1.24 page 11.
[BMW]’s employment with the Department of education was eventually terminated in February 2022 because of an ethical breach in regard to her relationship with the young man 20 years ago. She subsequently moved to Queensland because of the damage to her reputation in Sydney.”
Dr Paisley’s opinion was:[19]
“[BMW]’s symptoms developed in the context of mistreatment by colleagues within the New South Wales Department of education. Her symptom onset correlated with these experiences. These experiences were significant and sufficient to cause Major Depressive Disorder. The legal charges against her and subsequent court proceedings also contributed to her condition. However, her mistreatment at work and her symptoms persisted after she was acquitted. Therefore, her employment remains a substantial contributing factor to her current condition and impairment.”
[19] Ibid page 16.
Dr Paisley was asked to comment on Dr Clayton Smith’s opinion. He said:[20]
“I have read the report by Dr Clayton Smith dated 6 May 2021. Dr Smith diagnosed
[20] Ibid page 18.
[BMW] with an adjustment disorder with mixed anxiety and depressed mood. Given the chronicity and severity of his (sic – her) symptoms, I consider that Major Depressive Disorder better describes her condition. Dr Smith noted that her prognosis was poor, but the outcome of the Department of Education investigation was not finalised at the time of the report. Given the negative findings of the report, her prognosis is poorer, because she will not be able to return to work in her preinjury role again in the future.”
Dr Paisley’s second report of 7 May 2022 concerned his assessment of whole person impairment.
His next report was dated 13 December 2023.[21] It was in the nature of an update. Dr Paisley advised that [BMW] had no current capacity for work. Dr Paisley said in answering questions from her instructing solicitors:
“[BMW] has no capacity to work in any role because of the severity of her psychiatric symptoms. I doubt she will ever be able to return to work as a teacher because of her persisting impairments and reputational damage.
3. Your opinion as to our client’s fitness for employment other than her pre-injury occupation;
[BMW] has no capacity to work in any role because of the severity of her psychiatric symptoms.
8. Your opinion on whether it is likely that our client has suffer deterioration of her psychiatric condition since her last assessment, and if so, the nature of that deterioration;
There has been no improvement in her condition since my last review. Her level of functioning has deteriorated in that she has become more socially isolated and is no longer able to care for her son like she used to. This indicates a deterioration in her psychiatric condition. The worsening in her functioning because of her psychiatric condition is reflected in the impairment assessment below.”

[21] Ibid page 4.

Dr Abhishek Nagesh

Dr Nagesh supplied a report dated 20 August 2021.[22]
[22] ARD page 68.
Dr Nagesh took a consistent history that after being charged and arrested [BMW] was placed in the [redacted] District Office. He said:[23]
“At the [redacted] district, [BMW] reports being placed in a small room with two other people until the trial was over while she was going to court. When the trial finished in November 2020, she was told to return to the [redacted] district office again.
While she was at the [redacted] district office, she had to sit in a seat designated for someone being investigated, where [BMW] reports that she was ignored, she was not greeted by her colleagues and she was isolated. Although [BMW] reports telling her managers and superiors that she was not coping, this was ignored by her management. [BMW] reports that she was crying there all the time, she received no emotional support, she felt victimised, she was repeatedly bullied and called a sex offender and also called a three amigo. She reports being bullied by a variety of staff members where she started to develop recurrent panic attacks. Her repeated requests to move to an alternative site were ignored. She reports being verbally abused, was constantly stared at and felt humiliated and she was not allowed to do anything and not valued and sometimes she spent weeks on her own together with no support from any body within the department.
[BMW] reports that she developed panic attacks in 2018 while she was placed in the [redacted] district because of the above bullying and harassment.”

Dr Clayton Smith
[23] ARD page 70.

Dr Smith was retained by the respondent as its qualified consultant psychiatrist. He reported on 6 May 2021.[24] The history he recorded is as follows:[25]
“[BMW] is a 50-year-old single woman with two children, a 27-year-old daughter living in .Leumeah with her fiancé and an 8-year-old son who lives with [BMW] and [BMW]'s mother in Panania, New South Wales. [BMW] shares custody of her 8-year-old son with her ex-partner who lives in Townsville.
[BMW] is employed as an acting head teacher at [redacted] Secondary College on secondment from her substantive position at [redacted] High School. She began the role at [redacted] at the beginning of 20l7 and was arrested on l0 December 2017 accused of historical sex offences. She was released on bail the same day and was suspended for the remainder of the year. She was then directed to the [redacted] District Office commencing in March 2018. She remained at the [redacted] District Office until her first trial in October 2018, took six weeks off for the trial and then returned to work at the [redacted] District Office until the 'beginning of the COVID-19 pandemic. She then worked from home until the second Court case in October 2020 which concluded in November 2020. She said she was told she had to return to the District Office and returned to work for one week before leaving work and lodging a WorkCover certificate of capacity on 2 December 2020. She has been certified with no capacity since."
[24] ARD page 57.
[25] ARD page 58.
Dr Smith noted that at the second trial [BMW] was found “not guilty on all 21 charges”. He then said:[26]
“[BMW] said on 2 December 2020, she found out she was being investigated by Professional & Ethical Standards for the same historical sex offences, despite being found not guilty by a Court of NSW.”
[26] ARD page 58.
Dr Smith then took the following extensive history:[27]
“In addition, she said that even though it had been proven beyond reasonable doubt that the events could not have happened and that the student was not at the school at the time of the offences, the student is trying to sue the Department of Education for damages and the Department of Education is suing [BMW] to recover any money offered as a settlement. [BMW] said she has spent in the order of $280,000 defending herself.
[BMW] said she fell relieved when she was found not guilty in October 2020 and returned to work at the [redacted] Head Office in November 2020 believing that the situation would be different She said ‘Then I was notified of the Professional and Ethical Standards investigation’.
[BMW] said when she returned to work she was put in the main office amongst many of the people she had known from previous workplaces. She said ‘The difference in their behaviour was incredible, they ignored me completely, I was told to sit there right next to the kitchen and I couldn't handle the fact that they had to look at me and ignore me’. She said they turned their back on her and she was treated like a pariah. She said she requested to move to a small room out the back but was told she had to stay where she was. She said ‘I sat and cried for a week and then I got called in for notification of the Professional and Ethical Standards investigation’.
She· said during her time at the district office there were instances where she was openly harassed and she was referred to as a. sex offender. She said she was abused by another woman about a tissue box, asking ‘Who did I think I was to take her tissues, she was so aggressive and I was a wreck’. She said she had an incident with one of the Directors of Schools the week prior to COVID- 19. She said she had taken her son in to work because he was sick. She said over two and a half years she had not been given any work to do, she had just watched Netflix, and then someone complained that her son was there. She said the Director flailed his hands in the air saying be did not want to know about the situation.
….
[BMW] said when she started at the District Office, she worked with a woman called [redacted] who was very supportive. [BMW] said she got to a point where she did not mind going. She said in 2019, [redacted] took a year off to travel to Lebanon. [BMW] said she commenced 2019 in a room on her own in a less public area.”
[27] ARD page 59.
Dr Smith noted that he had been advised by his instructing solicitors that in both trials the jury was unable to reach a verdict, but he acknowledged that [BMW] disputed that saying she was found not guilty of all charges at the second trial.
Dr Smith recorded that [BMW] lodged a workers compensation claim in February 2018 but that it was disputed and she had to return to work in March 2018.
In discussing [BMW]’s reported symptoms, Dr Smith noted:[28]
“… She said she is apprehensive about returning to the District Office “just to sit at my desk and wait to be tapped on the shoulder and be told that I’m sacked.”
[28] ARD page 60.
Dr Smith’s opinion was as follows:[29]
“[BMW] is a 50-year-old woman employed as a high school teacher for the Department of Education. She has been on alternative duties since allegations of historical sex offences were raised in 2017. Most recently she left work injured after being presented with notification of a Professional and Ethical Standards investigation in to the matter after [BMW] (sic) said a Court of New South Wales found her not guilty on all charges.
Her mental status fluctuated since charges were laid against her in 2017 but she was optimistic about returning to work in November 2020, that the matter was resolved and she would be able to proceed with her return to work without the allegations hanging over her. Her mental health deteriorated after she was allegedly ostracised by her colleagues at the District Office then notified about the Professional and Ethical Standards investigation.
…
Perpetuating factors identified include the chronic nature of the stressor, perceived damage to her reputation, heightened social threat sensitivity and legal matters which remain unresolved and threaten her career and financial security.”
[29] ARD page 63-64.
With regard to the involvement of Mr X (whose identity is not relevant to the present issues) Dr Smith recorded that after the 2004 assault, Mr X “went quiet for a bit and then turned up in 2006”, when he “was blackmailing me and making death threats”. The applicant paid him $29,000, but he began blackmailing her again after 18 months. Mr X said he would destroy her career in 2010 when she refused to pay any further and she did not hear anything more until July 2017 when police set up a wiretap with Mr X while he spoke to her on the phone.[30]
[30] ARD page 62.
Dr Smith was asked to give his opinion as to whether employment had been the main contributing factor to [BMW]’s psychological disorder. He said:[31]
“Work-related events were the main contributing factor to the current episode of adjustment disorder. Work-related causative events include feeling ostracised at the District Office, notification of a Professional and Ethical Standards investigation after being found not guilty by a Court of New South Wales and legal action by the Department of Education against her in the event that the Department of Education is sued for damages by [Mr X].”
[31] ARD page 65.
Dr Smith was then asked his opinion as to “whether one or more of these events might be considered either the whole or the predominant cause of the psychological injury…” He said:
“The predominant cause of the current psychological injury was notification by Professional and Ethical Standards that they would be investigating the allegations of historical sexual abuse. Prior to this notification [BMW] had hoped that the matter was behind her, that her reputation had been cleared and she was optimistic about returning to work.”

SUBMISSIONS
Mr Baran

The parties agreed that the issue was s 11A and therefore Mr Baran addressed first, as the respondent bore the onus of proof.
Mr Baran referred to the background of the case. He noted emails between the applicant and the [redacted] District Office of the respondent department in 1998 regarding [BMW]’s alleged misbehaviour in December 1997 with two 15-year-old former students.
One of those students was Mr X, the eventual complainant in [BMW]’s criminal trials.
I was advised that there were a number of civil actions whereby Mr X sued the Department, which in turn sued the applicant. These were resolved by Deed.
Mr X after some time went to the police and in December 2017 the applicant was raided by 10 officers and a warrant executed on her property, Mr Baran confirmed. [BMW] was arrested, and her name and images were not suppressed. She was, Mr Baran said, “named and shamed” by the media.
Mr Baran referred to the letter of 24 November 2020 from the respondent advising her that there would be an investigation into her conduct after her eventual acquittal.
Mr Baran referred to the basis of the respondent’s justification in taking that action. It is not necessary to traverse this aspect, as Mr Robison conceded quite properly that the Department would not be criticised for conducting its investigation, or the manner by which they undertook it.
Mr Baran identified the primary claim by [BMW] was that she was referred to a separate division of the Department “which was where it was well known that persons who were either in trouble, persons who were under investigation or persons who were suspected of these type of matters were working”. In that environment, Mr Baran said, [BMW] claimed that she was treated unfairly, that people were unkind to her, and he referred to the specific complaints that were the subject of [BMW]’s evidence. The respondent, Mr Baran said, had accepted that, being in the position she was in, and being in that area of the Department, [BMW] would have from time to time become stressed and she would from time to time have suffered psychological problems. It was accepted for the purposes of the current proceedings that she had a psychological injury, but Mr Baran said that the predominant cause was to be found in Dr Smith’s opinion, as I understood his submission.

Mr Baran read out the history taken by Dr Smith regarding [BMW]’s transfer to the [redacted] District Office after she had been charged until she had to work from home with the onset of the COVID-19 epidemic. After her acquittal she was told she had to return to the Riverwood Office. Mr Baran accepted that [BMW] was under enormous stress, as
Dr Smith recorded, when facing her charges, and Mr Baran referred to Dr Smith’s account of her statement when she referred to her position once she had been acquitted. This included the “background litigation” between the Department, Mr X and [BMW] (which Mr Baran allowed would be distressing to anyone), that she was not treated well in the workplace “and various other complaints” as recorded by Dr Smith. Mr Baran submitted that the allegation that [BMW] was forced to sit in a small room out the back and was told to stay where she was, was dealt with in “our statements” He further submitted that there was no evidence that the respondent was aware that [BMW] “sat and cried for a week when she was notified of the intention to investigate her departmentally.”
With regard to the complaints made to Dr Smith about the events [BMW] experienced whilst at the district office, Mr Baran referred to, and indeed read out the email [BMW] had sent to a senior case manager at Allianz Australia Workers’ Compensation (NSW) Ltd, Margaret Alridge, on 15 February 2018. Mr Baran said there was a claim made about the events therein described which was rejected, and never pursued - no doubt, he thought, because the basis of the claim did not involve the respondent.
Mr Baran then referred to the complaints taken by Dr Smith. Mr Baran was traversing the facts taken as to [BMW]’s account of the conduct of Mr X when Mr Robison objected, and Mr Baran replied that he was leading to a submission about predominant cause. He referred to Dr Smith’s opinion that the notification to [BMW] of the Departmental investigation was the predominant cause of her psychological injury, saying that Dr Smith’s premise that [BMW] had hoped that with her acquittal the matter was behind her, that her reputation had been cleared and she was optimistic about returning to work, “must be right”. It was necessary to take into account all that [BMW] had been through before the notice was served because her obvious distress at receiving the notice was pertinent to the s 11A enquiry as to whether its actions had been reasonable.
Mr Baran referred to the history taken by Dr Nagesh. With regard to the history [BMW] gave as to her experiences in the district office, Mr Baran said that she did not name any of the persons responsible for the alleged conduct. However in his opinion, Dr Nagesh made no mention of the receipt of the notice of the impending investigation.
In discussion Mr Baran confirmed that the respondent’s apprehension of the applicant’s claim was concerned with both the way [BMW] had been treated in the workplace since March 2018 and the receipt of the notice of intention to conduct an investigation. She was acquitted on 3 November 2020 and received the notice on 24 November 2020. The matter then adjourned.
When it resumed on 21 February 2020 further evidence was admitted without objection, namely:
(a) Application to Admit Late Documents from the applicant dated 20 February 2024, and
(b) minutes of the meeting of 1 December 2020 emailed to me by the respondent shortly after the commencement of the hearing on 21 February 2021.
Mr Baran resumed his submissions, observing that the s 11A issue was predicated on the basis that the department was required to undertake its own investigation once [BMW] had been acquitted. From a temporal point of view Mr Baran submitted that the proposed action triggered [BMW]’s psychological injury. Mr Baran referred to the email sent by [BMW] to the insurer of 6 December 2020. The date was important, Mr Baran said, only six days or so after the meeting of 1 December 2020. This was a probative piece of evidence, Mr Baran submitted, as it constituted confirmation that [BMW]’s psychological condition had been triggered by her being told about the investigation.
The incident reporting form was further support for the respondent’s case, Mr Baran said. He submitted that the relevant date was 2 December 2020. The description therein contained
Mr Baran read out. This corresponded with the email, he said, and from a temporal point of view if one looked at the meeting notes of 1 December 2020.
Mr Baran went through those notes, submitting that the meeting was really of support for the worker. It explained the process, and was the type of meeting that would be expected in circumstances like this. Mr Baran noted that [BMW] was relieved that she had not lost her job, and that she had been extremely stressed to the extent that she did not open her emails.
Thus, Mr Baran submitted, this was a case where he expected a submission that there had been an unreasonable delay in producing the results of the investigation, but Mr Baran submitted that the proposed action had rather been the notification of the investigation, not the length of time it took. The notice was given within a reasonable time.
Mr Baran said that the respondent accepted that where she was would have caused
[BMW] some psychological problems but that the predominant cause of her injury was the instigation of the disciplinary action instituted on 24 November 2020, and that action,
Mr Baran submitted, had been reasonable.
Mr Baran addressed [BMW]’s statement of 25 February 2024, saying it does support a submission that [BMW] was aware the investigation would happen, and it could not be said that she had been taken by surprise. Mr Baran conceded that the applicant knew this type of review would follow on from the criminal process. She had in fact known this since 2017, he said. He said that her allegation that a woman called Harris had called her a sex offender had to be seen in the light of other evidence that her case had received wide international coverage.
Mr Baran then turned to the applicant’s medical case. With regard to Dr Paisley’s report of
[32] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11.
13 December 2023 he submitted that the history Dr Paisley took regarding the outcome of the departmental investigation necessarily included the fact of the investigation itself. However Mr Baran submitted that Dr Paisley did not appear to assume the facts that she was required to assume for both the applicant and respondent cases. The opinion was required to have at least some close association, not necessarily a precise one, to those assumed facts, Mr Baran submitted, referring to Hancock.[32] Thus not too much weight could be given to the opinion, he argued.
The same argument applied to the earlier report of 7 May 2022, Mr Baran said. What appeared to be bound up in the bullying behaviour described by Dr Paisley was that
[BMW]’s employment was terminated in February 2022. Dr Paisley had not only failed to refer to or deal with the respondent’s alleged proposed action, but also the other aspects of what the respondent has put forward which, Mr Baran submitted, he was “duty bound to do… as an expert in the Commission, not the applicant’s”.
Mr Baran accepted that Dr Paisley did refer to the general bullying allegations but appeared to have left out the critical area upon which the respondent relied. In discussion Mr Baran clarified that Dr Paisley included in the history that the investigation by the department took 14 months, but did not take into account the essential issue, the notification, including the email of 24 November 2020 and other evidence the respondent relied on. Dr Paisley’s opinion, he argued, was too wide and too vague to establish that it was not the proposed action of the respondent that had caused the psychological injury, I understood him to say. The doctor did not assume the critical facts nor identify why those facts then lead to his path of reasoning to the opinion that it was something other than the s 11A action that caused the injury.
Dr Clayton Smith, on the other hand took a thorough, fair and unbiased analysis of the facts and concluded that the proposed disciplinary action was the predominant cause. Dr Ian Smith had the same view, Mr Baran asserted.
Mr Baran submitted that reliance on facts occurring after the deemed date of injury could in certain circumstances be relevant, citing the Court of Appeal authority of Heggie.[33] He submitted however that the effect of 14 month delay between notification and determination would not be relevant. He said that what is required was an objective presumptive analysis of what happened on the deemed date. In that regard he referred to Irwin[34] which was approved in Heggie.
[33] Northern NSW Local Health Network v Heggie [2013] NSWCA 255.
[34] Irwin v Director-General of School Education (Compensation Court, 18 June 1998, unreported)
Mr Baran submitted that the conduct of the respondent was reasonable, as that term had been considered in Heggie. It was “incontrovertible” that [BMW]’s psychiatric injury had been caused by her being subjected to the investigation.

Mr Robison

Mr Robison made some general “overarching” submissions by way of introduction. He noted that the respondent had accepted that [BMW] had been psychologically injured. The prima facie position was that she must succeed if the respondent could not satisfy the onus accordingly fell on it, as it was relying on the provisions of s 11A.
Mr Robison stated that he would not submit that the investigation, the notification of which the respondent claimed had been the whole or predominant cause of [BMW]’s injury, was unreasonable or improper. He said under the circumstances the Department was obliged to investigate.
Mr Robison submitted however that the need for investigation did not mean that it had been reasonably conducted. He said it was not reasonable for the department to have taken as long as it did, as it should have been across the details immediately after the acquittal, given the history of the matter.
The date of the acquittal was 3 November 2020 Mr Robison established and the investigation was commenced on 24 November 2020. I understood Mr Robison to submit that the investigation took 14 months, although he quite properly accepted that the investigation had to cover the two trials that [BMW] had faced.
(I interpolate to note that this submission may be dealt with immediately, the respondent’s case is that it was the notice of the investigation that was the predominant cause of the injury. Whether the duration of the subsequent investigation was unreasonable or not is not relevant to this issue).
Mr Robison said that the true issue was whether the actions pleaded by the respondent were the whole or predominant cause of the psychological injury.
Mr Robison said that the evidence showed that the cause was the bullying that occurred prior to any action that could be categorised as falling within the provisions of s 11A.
He said that the clinical notes supported [BMW]’s assertions that it was the way she was being treated rather than the fact she was being investigated, which she had been well aware of, that caused her injury. She always expected the investigation, Mr Robison submitted, and it was inevitable.
Mr Robison noted that the issue raised in the Dispute Notice was narrow and was confined to an assertion that the actions of the respondent with regard to discipline were pleaded.
Mr Robison referred to the evidence and submitted that it demonstrated that the cause of
[BMW]’s psychiatric injury was multi-factorial.
Mr Robison referred to the applicant’s statement and submitted that [BMW]’s account of her treatment whilst in the [redacted] District Office demonstrated that she was bullied and unsupported. He said that in some cases it might be that it was simply her perception but for the most part her allegations were unchallenged and constituted evidence that could be accepted that she was treated in the manner that she described. There had been no response to her complaints, which Mr Robison submitted was conduct that could not be described as reasonable.
Mr Robison referred to [BMW]’s account of being told to sit in a separate room before her second trial. He relied on the authority of Fritzi Chemler[35] to submit that she may well have perceived that requirement to be bullying and ostracisation. Nonetheless it would have been humiliating to have been ordered to sit there, and to have her request to move into the main office refused.
[35] State Transit of New South Wales v Fritzi Chemler [2007] NSWCA 249.
Mr Robison referred to the claim form that [BMW] lodged. He referred to
[BMW]’s description of the treatment she was accorded by her colleagues whilst at the [redacted] District Office. He said another factor which may have contributed to that cause was the factor that she was being sued by the department. Mr Robison submitted that it could not be said that it was simply the instigation of the investigation that was wholly or predominantly the cause.
Mr Robison referred to a notice issued by the insurer on 11 May 2021 which advised that the respondent had accepted liability for her injury.[36] He submitted that the action by the respondent in issuing that acceptance constituted evidence of an admission that the respondent was accepting liability for her injury. Mr Robison referred me to an unreported Supreme Court case of some vintage, Heuston v Your Contractors Pty Ltd (unreported) 11451 of 1987 (9 March 1992), a decision of Hunt CJ at CL.
[36] ARD page 25.
(This submission, I interpolate, was without merit. The acceptance of liability by an insurer is an evidentiary admission which is capable of explanation. The issue of the s 78 and s 287A notices on 1 July 2021 and 22 September 2021 respectively was sufficient explanation for the subsequent denial of liability under s 11A).
Mr Robison referred to the medical evidence in the case. He noted that the first certificate issued by Dr Sayyal on 2 December 2020 stated that the injury was related to “ongoing stress and discrimination at work”.
During the period the insurer did accept liability, it authorised treatment by a psychologist, Helen Madigan, Mr Robison said. He submitted that her opinion was compelling support for [BMW].
Mr Robison referred to the opinion of Dr Clayton Smith as to the predominant cause of
[37] [2017] NSWWCCPD 6.
[38] [2001] NSWCA 305.
[BMW]’s psychological injury. He referred to Hamad v Q Catering Pty Ltd,[37] in submitting that Dr Smith’s opinion did not properly explain why he reached the conclusion he did in the face of the other multifactorial causes that he had himself set out earlier in his report – indeed Mr Robison submitted that Dr Smith contradicted himself. Dr Smith’s opinion also contrary to the principles of Makita Australia Pty Ltd v Sprowles[38] in that he failed to set out the facts and circumstances on which he based that opinion.
Mr Robison also relied on the history taken by Dr Nagesh which, he submitted, was consistent with all of the histories taken, including that of Dr Clayton Smith.
Regarding the clinical notes, Mr Robison submitted that they showed the existence of a psychological injury as far back as 5 February 2018, and he submitted that the entry of
30 March 2020 by Dr Wang was significant, as it recorded complaints that were consistent with [BMW]’s statements, but could not be said to be connected with the commencement of the investigation because at that stage the second trial was not to commence until later that year.
Mr Robison submitted that the opinion of Dr Paisley of 7 May 2022 demonstrated that the whole and predominant cause of [BMW]’s present psychological injury was not the investigation. Dr Paisley found that the experiences with her colleagues prior to the investigation were in fact the cause and that although the legal charges and subsequent court proceedings also contributed to her condition, it was her mistreatment at work that was the predominant cause of her psychological condition.
Mr Robison then discussed the evidence regarding the meeting of 1 December 2020. He firstly submitted that I could not place much probative weight on it because the note taker, [redacted] had not been called. He accepted that the notes of the meeting constituted a business record and he noted that there had been a forensic decision not to call either
[redacted] or [redacted] whose statements were rejected on the first day of the hearing.
Mr Robinson submitted that the respondent’s case that the instigation of the investigation was the whole or predominant cause of her psychological condition, was contradicted in the notes of the meeting when [BMW] was recorded as saying after she had read the letter from the Directorate that she was relieved, as she thought she was being fired. Something causing relief, Mr Robinson argued, could hardly be the cause of a psychological injury.
Moreover, Mr Robison submitted, [BMW]’s recorded comment that she had been and was still suffering panic attacks and anxiety was an allusion to the past. It was consistent with the opinion of Dr Paisley and indeed the histories taken by Dr Clayton Smith, Dr Nagesh and psychologist Ms Madigan.
Mr Robison noted that there had been no re-tender of the document that was rejected on the first day of hearing which contained statements of [redacted] and [redacted]. He said therefore there was no challenge to [BMW]’s (sic) statement about the meeting.
This was further evidence, he submitted, that the investigation itself was not the whole or predominant cause of her already existing condition.
Whether the conduct of the colleagues at the [redacted] District Office were genuinely intended to be bullying or whether it was simply a perception by [BMW], Mr Robison submitted that those events were the cause of [BMW]’s psychiatric condition.
Whilst the investigation was a reasonable action by the respondent indeed a mandatory action, the respondent had not satisfied its onus of proof to show that its instigation had been the whole or predominant cause of [BMW]’s injury.

Mr Baran in response

Mr Baran submitted that it could not be said that there was a delay in the investigation and I indicated that I did not need to hear him on the question of delay.
Mr Baran referred to the email that had been sent by [BMW] on 26 March 2020 to
[redacted]. He noted that in his email in response, [redacted] had referred to a meeting that was set for 30 March 2020 at which the concerns that had already been raised by
[BMW], as well as other management issues, were to be discussed.
Mr Baran argued that no complaint in terms of the email had ever been made notwithstanding that [BMW] had been invited to make a complaint.
He advised that the [redacted] District Office was a place where people went to do selected duties and was not purely for the purposes of disciplinary action.
He began to address on the question of whether there had been in effect an estoppel caused by the initial acceptance of liability, but again I indicated that I did not wish to hear from him on that subject.

DISCUSSION

Section 11A of the 1987 Act provides relevantly:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The dispute notice denied liability on the basis that [BMW]’s psychological injury had been wholly or predominantly caused by the notification by Professional and Ethical Standards that they would be investigating the allegations of historical sexual abuse (following the finalisation of the criminal proceedings). These proposed actions were alleged to relate to discipline.

It is unremarkable that the respondent has admitted that [BMW] suffers from a psychological injury. She has endured two criminal trials and the ignominy of having the allegations made against her made public both nationally and internationally. It has not been challenged that between 1998 when her conduct brought her to the notice of the respondent and December 2017 when she was arrested by police on charges arising from that conduct that she was blackmailed by her accuser, Mr X, until 2010. When she refused to pay any more she was finally arrested seven years later. She then went through the trauma of the first trial in October 2018, which resulted in a hung jury. Before then she was directed by the respondent to the [redacted] District Office in March/April 2018. She took six weeks off for the duration of her October trial and then returned to the [redacted] Office until she worked from home at the beginning of the COVID -19 pandemic, which the evidence suggested occurred in about March 2020. She worked from home until her second trial which commenced in October 2020 and concluded on 3 November 2020. She was then directed to return to the [redacted] Office where she worked until she was certified as having no capacity to earn on 2 December 2020. She has not worked since, and indeed relocated to Queensland because of the damage to her reputation in Sydney.
Against that background, she developed her psychological injury. She first sought compensation from the respondent in February 2018, as the email of 15 February 2018 to the insurer demonstrated. Liability was declined, and it is a fair assumption that
[BMW]’s claim was not pursued because liability could not have been established against the respondent, as was submitted by Mr Baran.
Mr Robison submitted that the detail surrounding the cause of [BMW]’s psychological injury was not relevant in the present enquiry because liability had been admitted, and the onus was on the respondent to make out its case as to the whole or predominant cause. It is well-established that such is the case.[39]
[39] Northern NSW Local Health Network v Heggie [2013] NSWCA 255 at [54].
As indicated, the respondent directed [BMW] to work, from March/April 2018, in the [redacted] District Office. I was advised that this office was not only used by the Department to place its employees who were under a disciplinary cloud, but that other employees were placed there on light duties.
Be that as it may, it was whilst [BMW] was placed at [redacted] that she alleges a number of events occurred that were factors in her psychological decompensation. The histories taken by all the experts reflected these complaints. To summarise:
(a)    she was ignored/ would not reply to her greetings (Dr Smith, Dr Nagesh,
Dr Paisley);
(b)    she was told to sit right next to the kitchen/sit in a seat designated for someone under investigation/ naughty chair (Dr Smith, Dr Nagesh, Dr Paisley);
(c)    her colleagues turned their back on her/ not greeted by her colleagues (Dr Smith, Dr Nagesh, Dr Paisley);
(d)    she was treated like a pariah/ isolated/ excluded (Dr Smith, Dr Nagesh,
Dr Paisley);
(e)    she requested to move to a small room at the back/ move to an alternative site (Dr Smith, Dr Nagesh);
(f)    however, she was told to stay where she was/ ignored by management
(Dr Smith, Dr Nagesh);
(g)    she sat and cried for a week/ was crying all the time (Dr Smith, Dr Nagesh);
(h)    then she was called in for notification of the investigation (Dr Smith);
(i)    she was openly harassed/ repeatedly bullied and victimised (Dr Smith,
Dr Nagesh, Dr Paisley);
(j)    she was referred to as a sex offender (Dr Smith, Dr Nagesh, Dr Paisley);
(k)    she was called three amigos (Dr Nagesh);
(l)    she was abused by another woman about a tissue box (Dr Smith, Dr Paisley);
(m)     she was verbally abused, constantly stared at humiliated/ badmouthed
(Dr Nagesh, Dr Paisley);
(n)    she was unsupported/ reported bullying but without result (Dr Nagesh,
Dr Paisley);
(o)    over the time she was at Riverwood she had not been given any work to do
(Dr Smith, Dr Paisley);
(p)    she just watched Netflix (Dr Smith), and
(q)    before COVID-19 she took her son to work because he was ill and when another colleague complained, the Director “flailed his hands in the air” and did not want to know (Dr Smith).
[BMW]’s statements were consistent with these histories, although somewhat more descriptive. The “three amigos” mentioned to Dr Nagesh she said was a reference to how she and two other alleged sex offenders were referred to, and that they were excluded from work events. She said that prior to her second trial she had to sit in a special chair for persons under departmental investigation, and after her acquittal her request not to sit there was denied. She also “on multiple occasions” advised she had panic attacks in the main office but her request to move to a smaller room was denied. She named Director [redacted] as the person to whom she made “repeated requests” to sign in somewhere else or call in due to her repeated panic attacks but was denied.
These claims have not been challenged. As indicated, on the first day the respondent sought to admit statements from two Department witnesses, the Director of Education & Leadership at [redacted] Principals Network, [redacted], and the Director of Education & Leadership for the [redacted] Principals Network, [redacted], whom I assume was the same “Director [redacted]” referred to by [BMW]. The tender was not pressed on the second hearing day, and it is possible that the forensic decision not to do so was influenced by the indication that these witnesses would be required for cross-examination. Whatever the reason, the claims have not been challenged.
Moreover, there is contemporaneous documentation as to many of them. [BMW]’s first visit to the Myhealth Brigadoon Medical Centre on 5 February 2018 were concerned with her reaction to her arrest and consequent anxiety state, as was the content of her email to
Ms Alridge on 15 February 2018. These entries demonstrated a high degree of anxiety and medication at this early stage of her trauma.
However, the email to [redacted] of 20 March 2020 contained a detailed account of her encounter over the “tissue box” incident, and confirmed that she was “overwhelmed at the sub-par treatment” she was receiving, that she was “being bullied” and was unable to cope any more. She referred to being called a “sex offender” and part of the “three amigos.” She also said that she suffered panic attacks.
The respondent claimed that it was the notice of intention by the relevant Department to investigate [BMW]’s case that was wholly or predominantly the cause, or the “trigger” as Mr Baran described it, of [BMW]’s psychological condition. The contemporaneous documentation is also of significance in evaluating that claim.
It is common ground that [BMW] received the notice of intention dated 24 November 2020 at the meeting of 1 December 2020. Of interest is the opening sentence of that notice, which referred to “previous correspondence from Julie Smith, Investigator, dated 16 September 2020.”
That correspondence was not before the Commission, but it does confirm that, at a time before her second trial, [BMW] was in touch with an investigator from the Department. An inference is available that the topic of that correspondence concerned an investigation of [BMW]’s conduct. The use of the word “now” in Ms Myerscough’s notice indicated that a condition precedent to the investigation – namely the outcome of the trial – had occurred, which also gives rise to an inference that [BMW] was made aware by
[redacted] that such an investigation would occur following her trial. Indeed, Mr Baran conceded that [BMW] had known since 2017, as [BMW] said as much in her supplementary statement of 20 February 2024.
In any event the minutes of the meeting of 1 December 2020 do not record any reaction by [BMW] other than relief, “as she thought she was ‘being fired’”. What is significant is that [redacted] recorded that [BMW] told the meeting that “she has been and is suffering panic attacks and anxiety”. [BMW] was also noted as saying that “she did not check her emails anymore as she finds them too confronting”, although she had in fact seen the email from [redacted] (who was relieving for [redacted]), advising of the meeting.
Further, [BMW] was recorded as saying that she had already been suffering stress and panic attacks. The fact that [BMW] was also not checking her emails because they were too stressful for her, prior to her receiving the email giving notice of the meeting, is further corroboration that she was already injured at the time she received notice that the investigation was to take place.
Whilst [BMW] acknowledged she had been “extremely stressed since reading the email and the anticipation of the meeting,” I do not draw the inference that is advanced by the respondent that the reason for her stress was the realisation that she was to be investigated. In context, it is probable that she was referring to her fear of “being fired”, as she said when she read the letter at the meeting. Moreover she explained in her supplementary statement of 20 February 2024 that she would have been unable to pay her bills and support her son had she lost her employment, which is a consistent explanation for her expressed stress and anticipation before the meeting.
It follows that there is some force in Mr Robison’s submission that something causing relief could hardly be the predominant cause of the injury.
Dr Paisley took a history that was consistent with the other histories, as I have indicted. Part of the history was “…despite being acquitted of all charges, she was told by the Department of Education that they were also going to conduct an internal investigation into her conduct”.
Dr Paisley’s opinion was unequivocal as to what he described as the “substantial contributing factor” which he said was the mistreatment by [BMW]’s colleagues within the Department of Education. This mistreatment he had described (as had Dr Smith and
Dr Nagev) as that given by [BMW]’s colleagues at the Riverwood District Office.
Dr Paisley noted the legal charges and subsequent court proceedings were also contributory, but the persistence of her symptoms after she had been acquitted, and the continued conduct of her colleagues remained a substantial contributing factor.
Whilst Dr Paisley’s opinion raised some definitional problems such as whether the legal charges and court proceedings were also substantial contributing factors, and if so to what degree, it is clear that he was aware of all the facts and found that [BMW]’s employment was the cause of her psychological condition, which was also the position taken by the respondent in its s 78 Notice of 1 July 2021.
The respondent’s criticism of Dr Paisley’s report as I understand it, is that he did not engage with the issue of whether the psychological injury had been wholly or predominantly caused by the respondent’s actions regarding discipline. In particular, he did not engage with the proposition that the notice given to [BMW] on 1 December 2020 was wholly or predominantly the cause of her injury. Indeed, whilst Dr Paisley was invited to comment on Dr Smith’s report, he simply argued about the precise psychological diagnosis and did not traverse Dr Smith’s opinion that the notice of investigation predominantly was the cause of the injury.
It is perhaps fortunate that, given the facts in this case, such an analysis was not required.
Dr Paisley’s reports reinforce the insurer’s decision to admit liability, and the critical question in this case is whether the respondent has satisfied its onus.
The respondent relied on the report of Dr Clayton Smith. I have already indicated that the history taken by him was consistent with those taken by Dr Nagesh and Dr Paisley, which in turn were consistent with that given by [BMW], and was supported by the contemporaneous material I have above referred to.
The history taken by Dr Smith acknowledged in some detail that [BMW]’s mental health had been fragile since she had been both assaulted and blackmailed by Mr X between 2004 and 2010. Dr Smith also acknowledged the perpetuating factors in that fragility which included the chronic nature of the stressor, perceived damage to her reputation, heightened social threat sensitivity and legal matters which at the time of Dr Smith’s report remained unresolved and which threatened her career and financial security.
Dr Smith noted that [BMW] felt relieved when she had been found not guilty and she returned to the [redacted] District Office “believing that the situation would be different”. Just pausing there, the evidence demonstrates that there was no change in approach from
[BMW]’s colleagues when she returned after being found not guilty, and the perpetuation of that approach may well have contributed to her injury in view of her acquittal. Dr Smith continued:
“She said ‘Then I was notified of the Professional and Ethical Standards investigation.”
(Emphasis added).
Dr Smith also said:
“Her mental status fluctuated since charges were laid against her in 2017 but she was optimistic about returning to work in November 2020, that the matter was resolved and she would be able to proceed with her return to work without the allegations hanging over her. Her mental health deteriorated after she was allegedly ostracised by her colleagues at the District Office then notified about the Professional and Ethical Standards investigation…”
(Emphasis added).
It can be seen that Dr Smith included as a cause of the injury the mistreatment given to
[BMW] by her colleagues at the [redacted] District Office. Having done that, he added that there was “then” the notification about the Departmental investigation. In his description of [BMW]’s reaction to the behaviour of her colleagues, Dr Smith recorded:
“She said ‘I sat and cried for a week and then I got called into notification of the Professional and Ethical Standards investigation.’”
(Emphasis added).
Dr Smith’s opinion was, to repeat:
“The predominant cause of the current psychological injury was notification by Professional and Ethical Standards that they would be investigating the allegations of historical sexual abuse. Prior to this notification [BMW] had hoped that the matter was behind her, that her reputation had been cleared and she was optimistic about returning to work.”
In his submissions, Mr Baran misquoted Dr Smith in submitting that the evidence would sustain Dr Smith’s opinion that the psychological injury was predominantly caused by the notification on 1 December 2020. Mr Baran said that [BMW] could not substantiate her allegation that she sat and cried for a week “when” she was notified of the intention to investigate her departmentally. In fact Dr Smith used the word “then”, and this error illustrates the difficulty with Dr Smith’s opinion.
Firstly, Dr Smith himself set out multifactorial causes for [BMW]’s injury which spanned a number of years. Dr Smith, it must be said, gave a detailed and thorough history, but the reason why he determined that the notification of the investigation was the predominant cause is not apparent, as he did not set out the facts and circumstances on which he reached his opinion.
I have reproduced above each occasion that Dr Smith referred to the notification of the pending investigation. It can be seen that Dr Smith’s references always follow his account of the difficulties [BMW] said she was facing at the District Office. Indeed, when asked to nominate the main contributing factor to [BMW]’s injury, Dr Smith was unable to do so. He nominated several main contributing factors which he described as “work-related causative events include feeling ostracised at the District Office, notification of a Professional and Ethical Standards investigation after being found not guilty… and legal action by the Department of Education against her…”
There can of course only be one “main contributing factor,” but Dr Smith nominated four, one of which, “causative events,” I infer referred to the many more instances that Dr Smith recorded of other mistreatment to [BMW] by her colleagues at the District Office.
Just why therefore Dr Smith picked the notification of the Departmental investigation as being the predominant cause, is not clear. There is an inherent contradiction between nominating several causes as being “the main contributing factor” and then nominating only one as the predominant cause.
Thus, the explanation for Dr Smith’s opinion is of some evidentiary importance. The reason he gave was that “prior to this notification [BMW] had hoped the matter was behind her that her reputation had been cleared and she was optimistic about returning to work.”
Assuming there were statements from [BMW] to that effect, the question still arises as to why, in the face of the detailed mistreatment she had experienced over the three-year period, Dr Smith chose to nominate what amounted to [BMW]’s disappointment. Further, as will be seen, the facts do not support that allegation. This is particularly so as she was told, to her relief, that indeed she was still employed at the meeting.
In any event, in a thorough and detailed 10 page report, there is no record by Dr Smith of any conversation with [BMW] to that effect. By use of the word “then” he has appended the notice of investigation to [BMW]’s mistreatment each time he mentioned it, as indicated. The only exception was when Dr Smith was describing [BMW]’s symptoms as she presented on 6 May 2021, when the investigation was ongoing. Her recorded comment that she was apprehensive about returning to the District Office just to be told that she had been “sacked” does not support Dr Smith’s explanation.
Further, whilst it is true that [BMW] said in her email of 6 December 2020 to the insurer “I just can’t cope anymore, especially as the Department of education is now opening their own investigation into these charges”; without more that statement indicates no more than frustration with the process.
Secondly, as I have already discussed, the investigation was no surprise to [BMW], who was aware it would happen.
Thirdly, I accept her evidence that she was anxious about the outcome of the meeting, but only in respect of whether she would continue to be employed. It is unlikely that her expressed and recorded relief on that account would not also have contained some expression of surprise or distress if the notification dashed her hopes of a return of her reputation, and of returning to work had that been the case. In any event she found at the meeting she was still employed
Fourthly, the work capacity medical certificate issued by Dr Wang on 2 December 2020 set out many of [BMW]’s complaints about the way she was treated at the [redacted] Office, and did not mention any distress at the fact that the investigation was to proceed.
Fifthly, the incident report form dated 15 February 2021 (and not 5 December 2020, as assumed by Counsel) recorded the claim as arising from “working in [[BMW]’s] temporary role at the [redacted] Educational Office under the management of [redacted]… in and around ongoing investigations for performance related issues…” Again, there was no mention of any disappointment that the investigation was proceeding.
Sixthly, Helen Madigan, the psychologist appointed by the insurer prior to its declination of liability, reported on 1 March 2021 that the “precipitating stressor” was the “ongoing bullying in the workplace by colleagues in the Department of Education District Office, where [BMW] has been placed for the past three years”. There was no suggestion of any disappointment about the notification of the investigation.
Dr Smith’s opinion was in the final analysis, an ipse dixit. His explanation that [BMW] had hoped the matter was behind her and that she was optimistic about returning to work is not supported in the evidence – indeed it is not supported elsewhere in his report – and there is no plausible evidence that the predominant cause was the notification. Dr Smith’s careful analysis of the circumstances [BMW] experienced whilst at the [redacted] Office is perhaps even more detailed than that of Dr Nagesh or Dr Paisley, but Dr Smith did not explain why he discounted that evidence in favour of an unsupported and contradicted theory.

It also needs to be observed that the situation in the [redacted] District Office had its own unique properties. It is quite probable that there could well be some animus from work colleagues to persons directed there whilst accused of sexual offences against children. The ignominy such a status carries would explain why work colleagues would be hostile and rude to such people. However, every now and then a person is falsely accused, as [BMW] maintains she was, or at least is acquitted of such charges, and the perspective of that person is also relevant. Mr Robison submitted that some of [BMW]’s complaints may have been perceptions in view of her position, and indeed they may have. However, the accounts of the hostile conduct have such independent consistency and support that I have no doubt they were based on real events.
For these reasons I decline to apply the provisions of s 11A, as the respondent has failed to satisfy its onus of proof.
There is agreement that [BMW] has been without any current work capacity since the date of injury, 2 December 2020. I have made orders accordingly. No submissions were made regarding [BMW]’s entitlement to weekly compensation pursuant to s 38, and I have granted liberty to apply in relation to the order for weekly compensation.

[2024] NSWPIC 158

2 April 2024