Bunce v Sydney Traffic Control

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bunce v Sydney Traffic Control [2022] NSWPIC 66
APPLICANT:	David Paul Bunce
RESPONDENT:	Sydney Traffic Control
MEMBER:	Michael Wright
DATE OF DECISION:	14 February 2022
CATCHWORDS:	WORKERS COMPENSATION – Claim for permanent impairment compensation for primary psychological injury; respondent disputed claim on the basis of dispute as to the degree of permanent impairment and also that there was a secondary psychological condition or injury; considered whether section 65A(1) of the Workers Compensation Act 1987 (1987 Act) is in the nature of a defence and whether respondent has the onus; Parker v City of Rockingham with reference to Currie v Dempsey, and The Australian Special Opportunity Fund LP v Equity Trustees Wealth Services Ltd with reference to Vines v Djordjevitch, Ritchie v Department of Community Services, State of New South Wales (NSW Department of Education) v Kaur ; whether section 4 of the 1987 Act injury must be established; State of New South Wales (NSW Department of Education) v Kaur considered; not secondary psychological condition; Held- section 65A(1) of the 1987 Act is a disentitlement provision in the nature of a defence and the onus is on the respondent to prove injury within the meaning of section 4 of the 1987 Act, not a consequential condition; found applicant had not sustained secondary psychological injury; mattered referred to a Medical Assessor for assessment.
DETERMINATIONS MADE:	1. The applicant has not suffered a secondary psychological injury as a result of injury on 15 September 2017. 2. Matter remitted to the President for referral to a Medical Assessor for the assessment of the degree of permanent impairment in respect of primary psychological injury as a result of injury on 15 September 2017. Documents to be referred to the Medical Assessor are the Application and attached documents, the Reply and attached documents and an Application to Admit Late Documents dated 8 November 2021 and attached documents.

STATEMENT OF REASONS

BACKGROUND

This is an application by David Bunce (the applicant) for permanent impairment compensation pursuant to section 66 of the Workers Compensation Act 1987 (the Act) for primary psychological injury as a result of injury on 15 September 2017 in the course of his employment with Sydney Traffic Control (the respondent).
In a section 78 notice dated 3 August 2021, the respondent disputed the applicant’s claim pursuant to section 66 of the Act for primary psychological injury. Relevantly, the respondent asserted that pursuant to section 66 of the Act the applicant’s degree of permanent impairment was not at least a 15% because pursuant to section 65A(1) of the Act, no compensation was payable because they believed that the applicant’s permanent impairment resulted from a secondary psychological injury. In the same correspondence, the respondent asserted that as Dr Bisht had apportioned half of his assessment of permanent impairment as a result of a psychological condition “consequential or secondary” to the applicant’s physical injuries on 15 September 2017, section 65A(1) of the Act applies.

PROCEDURE BEFORE THE COMMISSION

At the conciliation/arbitration hearing of this matter on 8 December 2021, the applicant was represented by Mr McManamey of counsel, instructed by Ms Moloney, solicitor, and the respondent by Mr Hunt, of counsel, instructed by Mr Buyers, solicitor.
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)    Reply and attached documents,
(c)    Application to Admit Late Documents dated 8 November 2021, and
(d)    letters of the applicant’s solicitors to Dr Anderson dated 27 August 2020 and 14 October 2021.

Oral evidence

There was no application to cross-examine the applicant, nor to give oral evidence.

The applicant’s statement

The applicant provided statements dated 12 May 2021 and 17 May 2021, the latter being a short statement not otherwise relevant to this matter.
In his statement dated 12 May 2021, the applicant said that he was working as a traffic controller when a forklift loaded with a full rubbish bin weighing about two tons hit him in the back causing him to fall to the ground and then watched the forklift run over his right foot. The applicant said that he remembered the excruciating pain in his foot. He said that his foot was very swollen and it took a few days to learn that he had sustained a crush injury with five fractures, as well as tendon, ligament and nerve damage to his right foot. He initially took Panadeine forte and Endone for the pain but those medications made him feel sick so he tried to reduce his intake.
The applicant stated that as he became slightly more active he noticed pain in the right side of his lower back, right hip and knee and his left heel. He stated that his walking pattern was different to what it was like before the injury and he continues to have pain in his right lower back, hip and knee and in his right foot and ankle. He underwent physiotherapy, initially three times per week, until about mid 2019.
The applicant also said that from the onset he had frequent nightmares about the forklift running over him and he would wake up feeling anxious and find it hard to go back to sleep. He stated that he also thought that he could have died in the accident. He was referred for counselling with Ms Rebecca Coutts, psychologist. His relationship with his de facto partner broke down because of the effect of the accident on him as a person and he was very depressed when he broke up with her and was admitted to the psychiatric unit of a hospital in June 2019, but the admission did not help.
He stated that he still has nightmares about the forklift accident and he gets flashbacks. The applicant stated that thinking about the accident makes him feel very distressed and anxious and he sleeps poorly. He stated that he feels down a lot of the time and he has no interest in socialising. The applicant said that the forklift accident really changed his life. He stated that reading documents about the accident or injury makes him feel panicky and he tries to avoid doing that as much as possible. He stated that he is worried about getting injured again and he has now become hyper alert for danger. He said that he is moody and grumpy a lot of the time, it is hard to stay focused and his memory is nowhere near as good as it used to be.
The applicant also described constant aches in his back, right hip, right knee and right ankle and foot. He described numbness, tingling, and aches in his right foot. He also described the physical effects of taking medication for the pain, now Nurofen.
The applicant described a further injury to his back in subsequent employment on 19 June 2020. He stated that he made a good recovery from that injury.

General Practitioner (GP) records of Dr Lee – Maroubra Medical & Dental Centre

Attached to the ARD were the clinical records of the Maroubra Medical & Dental Centre as at 16 April 2020. Reference was made in submissions to a number of clinical entries from December 2017 to June 2019. I will discuss these records below.
Also attached to the ARD was a referral letter dated 17 January 2018 from Dr Lee to Ms Coutts, psychologist. The presenting problem was described as “has anxiety work-related when he suffered multiple fractures in his right foot 15/9/17 – PTSD”.

Ms Coutts, psychologist

Also included in the ARD were clinical notes and entries by Ms Coutts, treating psychologist. There were a number of handwritten notes by Ms Coutts including those in respect of approximately monthly consultations from February 2018 to October 2018. I will discuss these notes below.

Dr Anderson

Dr Anderson, psychiatrist, provided medicolegal reports to the applicant’s solicitors dated 4 September 2020 (2) and 21 October 2021 (2).
In his report dated 4 September 2020, Dr Anderson noted a history of the accident on 15 September 2017, including that the vehicle ran over the applicant’s foot and he watched, helpless as it ran over his foot. Dr Anderson noted considerable pain at that time and thereafter continuing pain. Dr Anderson also noted that the applicant continued to suffer from pain in the foot but over time there was a change in his gait resulting in lower back pain, hip pain and right knee pain.
Dr Anderson noted that the applicant’s main complaints in respect of psychiatric symptoms are of anxiety and depression. He noted nightmare recall of the accident, disturbed sleep and waking with anxiety including physiological symptoms of tight chest, sweaty palms and a feeling in his stomach. He noted that the applicant thinks about the accident on a regular basis with intrusive thoughts and replace the accident and is distressed thereby. Dr Anderson also noted anxiety symptoms and the applicant is asked about the accident. He noted referral to Ms Coutts, psychologist. He also noted relationship breakdown due to the effects of the accident, with aggravated depression at that time.
Dr Anderson noted that the timeline of the applicant’s symptoms “is that they came on at the time of the accident and have continued, and he thinks his symptoms are worse rather than better”. He noted that return to work was impacted by psychiatric symptoms he was constantly anxious. Dr Anderson took a history of daily routine and functioning, isolation and anxiety while driving and travelling and also concentration impacted by anxiety and intrusive thinking about the subject accident.
On examination, Dr Anderson noted that the applicant was markedly anxious and he described depressed mood and re-experiencing symptoms and avoidance symptomatology as well as considerable hyperarousal symptomatology, which were noted. Dr Anderson diagnosed post-traumatic stress disorder. He made no other diagnosis. A second report of the same date assessed permanent impairment.
In his report dated 21 October 2021, Dr Anderson re-examined the applicant and noted the reports of Dr Bisht dated 23 July 2021 and 5 October 2021. He also noted statements of the applicant dated 12 May 2021 and supplementary dated 17 May 2021.
On examination, Dr Anderson noted that the applicant was highly anxious and noted the applicant’s history that talking about the accident was what caused the anxiety.
Dr Anderson noted that since the time of his last examination the applicant’s mental health problems had continued. He noted the applicant’s history that is reclusive and was anxious and often worried about what was going to become of him. He noted that the applicant recounted periods of physiological anxiety symptoms such as those displayed on examination, being shortness of breath and reporting a fast heart, sweaty nurse and an uncomfortable stomached when anxious. He noted bouts of depression for no discernible reason going to periods of weeks. Dr Anderson noted the applicant’s history that he dreamt on a regular basis about the subject accident on a weekly or more often basis and has similar thoughts on a daily basis of an intrusive quality. He noted a history of poor concentration and poor memory and a lack of trust in people and irritation.
Dr Anderson noted a history that the applicant described his pain as constant and affecting his foot, knee, hip and back and groin. Dr Anderson recorded the history that the applicant had a high threshold for pain and this pain, although less severe compared to other painful conditions that he has experienced, is constant and irritating. Dr Anderson noted that the applicant said the pain does not make him anxious which is his main problem but can make him irritable when he is in pain and can get him down. He noted a history of subjectively poor concentration and memory. Dr Anderson noted attendance on Ms Coutts, psychologist.
On examination, among other findings, Dr Anderson noted that there was no abnormal pain behaviour and the applicant gave an account of typical post-traumatic stress disorder symptoms and intermittent depressive symptoms. Dr Anderson was of the view that the account given by the applicant was of the onset of psychiatric symptoms immediately following the subject accident and not at a later date in the face of continuing painful disability.
Dr Anderson confirmed his diagnosis of chronic post-traumatic stress disorder. He also stated:
“I have not made a separate diagnosis of Adjustment Disorder. The reasons for this are that your client’s psychiatric problems came on immediately after the accident, typical of posttraumatic stress disorder not adjustment disorder. Furthermore, he is not a person who has had historical difficulty in adjustment to pain. The fact of continuing pain does not in itself imply adjustment disorder. Nor is there anything abnormal about his report of pain or his behaviour in the face of pain.”
Dr Anderson provided a second report dated 21 October 2021 in respect of the assessment of permanent impairment.

Dr Bisht

Dr Bisht, psychiatrist, provided medico-legal reports to the solicitors for the respondent dated 23 July 2021 and 5 October 2021.
In his report dated 23 July 2021, Dr Bisht recorded a history of injury on 15 September 2017 when a forklift knocked over the applicant and he watched it run him over. Dr Best noted that the applicant feared he was going to die and that he had a foot injury in that incident. He noted a history that the applicant is in constant pain and takes pain medications four times a week.
Dr Bisht noted in the history recorded that the applicant at that time worked for a construction company but he was not going to last in that job because it caused him too much pain and he has had to take some time off because of the pain.
Dr Bisht recorded that the applicant said that he started to have substantial psychological symptoms from the date of that workplace accident. Dr Bisht listed a number of symptoms including frequent recollections about the events on that day, including flashbacks and nightmares, worries about recovery from the physical injury, feeling anxious while having these recollections, feeling anxious on minor provocation and persistent flat or irritable mood. Dr Bisht noted that the applicant said that the symptoms listed had worsened over the next few months. He noted the applicant reported these symptoms to his GP who referred him to a psychologist.
Dr Bisht recorded symptoms over the course of the injury and the applicant said that the pain is a constant reminder and he thinks about what he cannot do any more because of the foot pain and he worries about how is going to survive and that he had to not drive to change worksites because the drive to Liverpool was painful.
On examination, Dr Bisht noted the applicant described his mood as anxious and depressed and his affect was anxious for most of the interview.
Dr Bisht diagnosed “adjustment disorder with mixed anxious and depressed mood, and Post Traumatic Stress Disorder, as per DSM 5”. Dr Bisht stated that the applicant “first developed psychological symptoms relevant to the claim on 15 September 2017”.
Dr Bisht also stated:
“The workplace accident on 15 September 2017 has been a substantial contributing factor to the psychiatric condition, as:
• The onset of the condition coincided with the stressful work experiences on that day.
• These workplace stressors would be considered severe enough to cause a psychological condition.
• The probability that this or a similar condition would have happened around the same time in his life if they had not been in their employment, would be low, considering that there weren't any significant non-work-related stressors, there was no significant contribution from any medical conditions or any medications or any substances of abuse, and there was no pre-existing condition.
The worker feared for his life at the time of the accident, and he has also had chronic pain since the accident. As a result of that workplace accident, he has developed adjustment disorder with mixed anxious and depressed mood, and Post Traumatic Stress Disorder, as per DSM 5.
Thus, the work-related psychological injury, has arisen 50 percent directly from the accident and 50 percent consequential to the physical injuries.”

Letters of the applicant’s solicitors to Dr Anderson dated 27 August 2020 and 14 October 2021

Both of these documents were instructing letters to Dr Anderson. Both provided background details of injury and treatment.
The letter of 27 August 2021 enclosed a report of Dr Bodel dated 16 December 2019 (also attached to the ARD but not otherwise discussed as it references orthopaedic injury only), referral letter from Dr Lee to Ms Coutts dated 17 January 2018 and ambulance report.
The letter of 14 October 2021 provided update information and attached copies of Dr Bisht’s reports dated 23 July 2021 and 5 October 2021, the applicant’s statements dated “30 August 2021 and 17 May 2021”, Sutherland Hospital records admission June 2019 and “latest” report of Dr Kinchington dated 18 August 2021.
The letter of 14 October 2021 was the subject of submissions by the respondent, noted below, in respect of Dr Anderson not being provided with statements upon which the applicant’s current case is not based, and therefore his report is not provided in a fair climate. The applicant’s solicitor submitted that reference to a statement dated “30 August 2021” was a typographical error and in fact the statement dated 12 May 2021 was provided to Dr Anderson. In my view, the report of Dr Anderson dated 21 October 2021 (not the permanent impairment assessment) speaks for itself. As noted above, Dr Anderson specifically noted statements of the applicant dated 12 May 2021 and a supplementary statement dated 17 May 2021 in which there was a history of work done at this time with a construction company and “otherwise the statement is consistent with history received today”. Those were the dates of the statements that were attached to the ARD and I accept that Dr Anderson in his reports of 21 October 2021 considered the statements that were attached to the ARD. I have also discussed below the history recorded by Dr Anderson on examination in the report of 14 October 2021.

FINDINGS AND REASONS

There was no dispute that the applicant has suffered a primary psychological injury.
The applicant submitted that he did not make any allegation that there is a secondary psychological injury, rather that is an allegation that is raised by the respondent. It was submitted by the applicant that this allegation made by the respondent is in the nature of a defence in a claim for permanent impairment and as such it is the respondent who bears the onus of establishing that there is a secondary psychological injury.
The applicant also submitted that section 65A of the Act uses the terms “primary psychological injury” and “secondary psychological injury”, but the section contains no definition of injury. The section, it was submitted, states that a secondary psychological injury is a psychological injury. Importantly, it was submitted, the section uses the term “injury” which is a defined term within section 4. This is significant in that one is not looking for symptoms or the like resulting from the physical injury, it is necessary to establish that there is an injury and that injury is a psychological injury.

It was submitted by the applicant that this means that the respondent must establish that any condition which flows from the physical injury has physiological effect with reference to the comments of Meagher JA in Zinc Corporation Ltd v Scarce[1], referring to Yates v South Kirkby Collieries Ltd[2]; Anderson Meat Packing Co Pty Ltd v Giacomantonio[3], in which Meagher JA did not regard an anxiety state in that case as an injury simpliciter. Meagher JA observed that it was not in doubt that mental shock or trauma can constitute an injury within the statutory meaning, but only where it has physiological effect. Meagher JA noted that in the case before him most of the doctors described the worker as suffering from an anxiety state, which, in the view of Meagher JA, resembled an emotional impulse rather than a physiological effect, and none opined that a physiological effect did exist. It was submitted by the applicant that a physiological effect does not mean there are physical symptoms, as explained by Burke J in Bhatia v State Rail Authority (NSW)[4], (Bhatia) what must be established is that there is an interference with one’s capacity to go about one’s daily tasks.
[1] (1995) 12 NSWCCR 566 at [575].
[2] [1910] 2 KB 538.
[3] [1973] 47 WCR 3.
[4](1997) 14 NSWCCR 568.
It was submitted by the applicant that therefore the respondent bears the onus of establishing that there is not just a condition, but there is an injury which has physiological effect which flows from or consequential to the physical injuries suffered by the applicant.
The respondent submitted that it alleges that the applicant has suffered a consequential psychological condition secondary to his orthopaedic injuries and that the test is the Kooragang Cement Pty Ltd v Bates[5] common sense approach which on considering all the evidence it will be found that the applicant has suffered orthopaedic injuries and pain associated with those injuries which has led to a consequential condition. The respondent submitted that it does not need to prove a secondary psychological injury to the extent of satisfying sections 4, 9A, 15, 16 and the like. The respondent submitted that what it must do is establish on a common sense view of evidence that the applicant has suffered a consequential psychological condition and that has been identified and diagnosed by Dr Bisht, and a secondary psychological condition should be found and the matter referred accordingly.
[5] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
In relation to the question of onus, it has been observed[6]:
“119 We turn to consider who bears the burden of proof in relation to the reasonableness of any costs of proceedings claimed by a local government under s 6.56(1) of the LGA. In particular, does a local government bear the legal burden of proving that the costs claimed by the local government are reasonable or does the ratepayer bear the legal burden of proving that the costs claimed by the local government are unreasonable or, at least, an evidential onus in relation to unreasonableness?
120   In Currie v Dempsey, Walsh JA enunciated the general rule for determining the incidence of the burden of proof in proceedings. His Honour said (539):
In Purkess v. Crittenden, [1966] A.L.R. 98; 114 C.L.R. 164, at pp 167-8, it was said that the proposition there quoted from Phipson on Evidence, 10th ed., para. 92, has been frequently acknowledged. The proposition was that the expression ‘the burden of proof’, as applied to judicial proceedings, ‘has two distinct and frequently confused meanings: (1) the burden of proof as a matter of law and pleading - the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of introducing evidence’. The author went on to say, and this also was approved in the case last cited, that the burden of proof in the first sense is always stable, but the burden of proof in the second sense may shift constantly. In my opinion, the burden of proof in the first sense lies on a plaintiff, if the fact alleged (whether affirmative or negative in form) is an essential element in his cause of action, e.g. if its existence is a condition precedent to his right to maintain the action. The onus is on the defendant, if the allegation is not a denial of an essential ingredient in the cause of action, but is one which, if established, will constitute a good defence, that is, an ‘avoidance’ of the claim which, prima facie, the plaintiff has.
121   Walsh JA noted that when the issue in the proceedings concerns a right or a liability arising under statute, then, depending upon the intention which is to be attributed to Parliament, 'the existence of a particular fact may constitute one of the general conditions on which the right or liability depends or it may constitute a new and additional fact providing a special ground of excuse or exculpation' (539). His Honour said that, in the former case, the burden of proof lies on the person asserting the right or the liability and, in the latter case, on the person disputing the right or the liability (539).
122   In the present case, the proceedings before the Rockingham Magistrates Court in relation to the critical words in s 6.56(1) concerned the respondent's right to costs under that provision. The right conferred on the respondent by s 6.56(1) is a right to recover from the appellant the respondent's reasonable costs of the proceedings. The expression of the respondent's right under s 6.56(1), properly construed, by reference to the reasonableness of the costs is inherent in the statutory right which the respondent sought to enforce against the appellant. In those circumstances, the reasonableness of the costs is an essential element of the right and, consequently, the respondent bore the legal burden of proving reasonableness. The appellant was not required to satisfy an evidential onus.
123 We are of the opinion, generally for the reasons we have given in relation to s 6.56(1), that a local government also bears the legal burden of proof as to reasonableness in the context of the local government's right under s 36Z(2) of the FESA.”
[6] Parker v City of Rockingham [2021] WASCA 120 (Parker) at [120].
The burden or onus under consideration here is the burden in the first sense, that is as a matter of law and pleading, that is the legal burden of proof. The general rule in Currie v Dempsey[7] has been in the past the subject of commentary and analysis[8].
[7] [1967] 2 NSWR 532.
[8] "Burdens and Standards in Civil Litigation", Williams, CR, [2003] SydLawRw 9; (2003) 25(2) Sydney Law Review 165.
The application of the general rule by the Court of Appeal of Western Australia in Parker was in respect of a claim for arrears of rates and service charges, as well as the costs of the proceedings. The relevant statutory provisions conferred on the local government authority the right of recovery, as well as the costs of proceedings for that recovery.
In an earlier decision, the Court of Appeal of New South Wales in The Australian Special Opportunity Fund LP v Equity Trustees Wealth Services Ltd[9] (ASPOF), considered the construction of a Security Trust Deed in respect of a purported exemption from liability of the respondent in respect of not enforcing a security by not appointing a controller during a decision period, in respect of the voluntary administration of a company, as provided by the relevant legislation. It was observed by Bathurst CJ in ASPOF that
“119 In dealing with what was described as the question of onus, the reasoning of Walsh JA, to which I have referred in par [93] above, does not seem to me to be of particular assistance. The question is whether it is an essential element of the cause of action that the trustee acted negligently (which Walsh JA described as ‘the burden of proof in the first sense’) or whether, once the failure to appoint a controller was established, the onus fell on the respondent to establish that it was not negligent.
120   In Vines v Djordjevitch [1955] HCA 19; 91 CLR 512, the High Court considered s 47(1) of the Motor Car Act 1951 (Vic), which gave rights to claim damages from the Nominal Defendant in respect of an accident caused by an unidentified motor vehicle. The proviso to the provision stated that judgment could not be obtained against the Nominal Defendant unless notice of intention to make a claim was given to the Minister as soon as possible after the plaintiff knew that the identity of the vehicle could not be established. The Court made the following comments at 519:
‘When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right.’
121   It seems to me that a similar approach to construction arises in considering cl 2 of the Security Trust Deed. The issue is whether the parties intended that the security trustee would only be liable if its conduct fell within the exception in cl 2.2 or whether it would be liable for any breach of trust unless it could establish that its conduct fell outside the exceptions contained in that clause.
122   In my opinion, the former construction is correct. Clause 2.1 makes it clear that generally, the security trustee will not be liable for its conduct. This is said to be subject to the exception in cl 2.2. It seems to me that in those circumstances, as a matter of construction, it is a necessary element of any claim by a secured note holder against the security trustee that it establishes one of the matters referred to in the latter subclause.”
[9] [2015] NSWCA 225.
In ASPOF, the construction of the Security Trust Deed was considered in relation to matters of proof relating to liability for negligence, and the issue was whether it was intended by the parties that the security trustee would only be liable for conduct within an exception, or whether it would be liable for any breach unless it could establish that the conduct fell outside the exceptions. Whereas in Parker, construction of the relevant legislation was considered in relation to the reasonableness of costs inherent in a statutory right, having regard to principles of statutory construction. It seems that both decisions adopted similar approaches, although travelling down somewhat different paths. In any event, to the extent that there is any doubt, ASPOF must be applied.
In the Commission, and previously in the Workers Compensation Commission and the Compensation Court, the practice in respect of defences, such as section 11A of the Act, is that the respondent bears the onus of proving the defence. In this regard, it was found by Armitage J, in Ritchie v Department of Community Services[10] (Ritchie) that:
[10] (1998) 16 NSWCCR 727 at [42]-[43].
“42 I gratefully adopt what was said by Geraghty J in relation to that provision in Irwin v Director-General of School Education (unreported 18 June 1998) when considering the same provision as it stood between 1996 and 1997, where at 9 to 10 of his judgment he said:
The provisions of s11A have been changed. Counsel agreed what provisions were in force as at July/August 1996 and provided me with a copy of those provisions (significant amendments have been made since that time).
The onus of demonstrating that the applicant’s injury was not caused by the reasonable action of the employer, rests on the applicant herself, whereas, when s11A was amended, the onus was shifted, to fall on the respondent employer. As at July and August 1996, the provisions of s11A provided that no compensation would be payable in respect of a psychological injury ‘unless ... the injury was not wholly or predominantly cause by reasonable action…’
This was a very circuitous and obscure expression of the law which had to be amended to clarify it. There are three negatives contained in the former expression of the law, namely ‘no compensation’ and, ‘unless’ and ‘not wholly or predominantly caused’.
It is an onus difficult for an injured worker to meet—to establish that her psychological injury was not wholly or predominantly caused by the reasonable action of the employment. It was for this reason then, and to shift the onus, that the 11A [sic] was amended to provide ‘No compensation is payable ... in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action...’.
As a general rule, he who asserts must prove. The old formulation of s11A requires the applicant to assert a negative and therefore to prove that negative, whereas the amended legislation requires the employment to assert and to prove a positive, namely, that the injury was caused by its reasonable action. In the end result, and for a short time, the onus rested upon the employee, and in this particular case, on Mrs Irwin to establish the negatives set out in s11A(1). (Emphasis in original)
43 I respectfully agree with his Honour’s interpretation of the section and of the onus of proof applying in relation to it. The use of the formula ‘no compensation is payable... unless’ in s11A(1) in the form here being considered clearly establishes that the words in pars(a) and (b) following ‘unless’, joined by a conjunctive ‘and’ so that both paragraphs need to be established, are conditions of entitlement, even though par(b) involves a negative proposition, and must therefore be established on the appropriate onus by a worker in cases of psychological injury. The new formulation of the section after 12 January 1997 uses the formula ‘no compensation is payable... if’ which I think equally clearly raises a disentitling condition which denies compensation where it is otherwise payable under the Act, and such conditions must traditionally be established affirmatively by the employer on the appropriate onus: cf s10(1A) as it applies to injuries before 11 January 1997 on injuries otherwise covered by the Act.”
The discussion in Ritchie of the onus in respective of section 11A, in its then form, was referred to with approval in Pirie v Franklins Ltd[11] (Pirie). The decision in Pirie, in respect of the onus, was noted in decisions such as Aristocrat Technologies Australia Pty Ltd v Raskov[12].
[11] [2001] NSWCC 167; 2001) 22NSWCCR 346.
[12] [2005] NSWWCCPD 66.
Section 11A(1), as it currently stands, relevantly provides:
“11A No compensation for psychological injury caused by reasonable actions of employer
(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.”
Section 65A(1) relevantly provides:
“65A Special provisions for psychological and psychiatric injury
(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.”
Although section 65A(1) is not in the form of “no compensation is payable… if (or unless)”, it is nevertheless a disentitling provision, following the reasoning of Armitage J, for an entitlement that is otherwise available for compensation for permanent impairment pursuant to section 66. As was observed by Campbell J, in State of New South Wales (NSW Department of Education) v Kaur[13] (Kaur):
“23 Looking at the language of s 65A(1), as matter of construction, it is, to adopt Emmett JA's phrase[14], ‘a disentitling provision’. This is made clear in my view by the language ‘no compensation is payable’ at the outset of s 65A (1). Similar language appears in s 9A and s 11A which are clearly recognised as ‘disentitling provisions’. It is true that s 65A is not found in a division dealing with general liability to receive compensation, as s 9A and s 11A are. Nonetheless, the language of s 65A is concerned with substantive rights rather than questions of the process of the quantification of the entitlement to monetary compensation dealt with in the other provisions of Division 4 of part 3 of the 1987 Act.”
[13] [2016] NSWSC 346 at [23].
[14] Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264.
It might be noted that the definition of a primary psychological injury is that it is not a secondary psychological injury, and therefore implicit in a claim for a primary psychological injury is a claim that is not a secondary psychological injury. Section 65A(5) relevantly provides:
“(5) In this section—
primary psychological injury means a psychological injury that is not a secondary psychological injury.
psychological injury includes psychiatric injury.
secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
For the applicant to invoke the jurisdiction of the Commission, the applicant must make a section 66 claim for primary psychological injury, and once claimed it is not required to assert that the psychological injury is not a secondary psychological injury, and indeed many such section 66 claims are medically assessed and then determined in the Commission without reference to a secondary psychological injury.
Thus the Act, in accordance with the reasoning in Vines v Djordjevitch, and ASPOF, lays down conditions of general application giving rise to a right, in this case pursuant to section 66, additional facts of a special nature may be made a ground for defeating or excluding the right, that is section 65A(1).
It might be observed at this point that the Commission is not a jurisdiction where the rules of evidence apply[15]. However, the general approach is that the incidence of the legal burden is a matter of substantive law[16].
[15] Section 43, Personal Injury Commission Act2020.
[16] Evidence (Interim) Report [1985] ALRC 26 at [33].
I accept the applicant’s submission that the respondent’s assertion that there is a secondary psychological injury or condition is in the nature of a defence and the respondent bears the onus in that regard.
As noted above, the applicant submitted that it is necessary for the respondent to establish injury pursuant to section 4 in the context of asserting that there is a secondary psychological injury. The respondent submitted that it was only necessary for the Commission to find on all the evidence, adopting a common sense view as to causation, that there is a secondary psychological condition consequential to the applicant’s physical injuries.
I do not accept the respondent’s submission. In the context of a claim pursuant to section 66, the respondent’s submission is contrary to section 65A(5) and section 65A(2.
That is, for the purposes of a section 66 claim, a psychological injury, including impairment or symptoms, that is consequential to physical injury falls within section 65A.
This is consistent with the words of section 66(1):
“66 Entitlement to compensation for permanent impairment
(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.”

Section 66 provides for permanent impairment compensation for a worker who receives an injury that results in a degree of permanent impairment greater than 10%. Section 65A relevantly provides for compensation in respect of permanent impairment that results from a primary psychological injury that is at least 15%. This is distinct from conditions, such as arising from overuse or altered gait, secondary to physical injury, which may be compensable pursuant to section 66, as discussed in decisions such as Moon v Conmah Pty Limited[17]. There is no applicable provision equivalent to section 65A for such consequential conditions. Those compensable consequential conditions do not form the basis for an assertion that an assessment of the degree of permanent impairment resulting from a primary psychological injury should have regard to a purported secondary psychological condition which is not an injury. A consequential psychological condition has no basis for consideration other than within the meaning of secondary psychological injury as defined in section 65A(5). To some extent this relies upon a distinction between “physical” and “psychological” injury which is not defined in the Act, but that is not a matter in issue here.
[17] [2009] NSWWCCPD 134.
It is necessary for the respondent to establish injury, that is psychological injury, within the meaning of section 4, when asserting that the applicant has sustained secondary psychological injury. Campbell J, in Kaur[18], stated:
“I am of the view that the definition of secondary psychological injury in s 65A of the 1987 Act should be read as meaning a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical work related injury.
That is to say, a physical injury within the meaning of s 4 of the 1987 Act. This conclusion follows from a consideration of s 65A as a whole. It is quite clear that where “injury” appears in the phrases, ‘secondary psychological injury’, ‘primary psychological injury’ and ‘physical injury’ it is referring to an injury within the meaning of s 4 in respect of which compensation is, but for the provision of s 65A, otherwise payable. One needs to read the 1987 and 1998 Act together as forming part of a single scheme in relation to workers' compensation.
Approaching the matter in this way it is clear to me that s 65A of the 1987 Act and s 323 of the 1998 Act, albeit working in harmony as part of a single scheme, have different work to do.”
[18] At [20].
This means, as submitted by the applicant, that for psychological injury, and hence secondary psychological injury to be established, it is necessary to establish injury that falls within section 4, and that also requires that there is physiological effect, as referred to in the decisions above. I accept the applicant’s submissions in this regard.
The respondent pointed to a number of treating documents which indicated pain, or issues that were suggested to arise from physical injury, such as difficulties with rehabilitation and subsequent work. In my view, the treating notes and reports did not refer to chronic pain, nor did they establish physiological effect, the sense described by Burke J in Bhatia, that is “if you break your leg, you have both a physical and physiological problem. The physical problem is the pathological disturbance of the limb and the physiological problem is the interference with the function of the limb” and “if that reaction [an emotional impulse that is the normal reaction to a particular event] becomes excessive in degree or duration, or is inappropriate to the stimulus, then there can be a physiological problem”.
In relation to the clinical records of the Maroubra Medical and Dental Centre, being those of Dr Lee, GP, the respondent pointed to a number of instances in the notes where there were notes recording pain, attendance at work with “emotional block” and relationship breakdown noting depression. There was also a referral letter of the GP, Dr Lee, to Ms Coutts dated 17 January 2018 which referred to “anxiety work-related when he suffered multiple fractures in his right foot…PTSD”.
The respondent submitted that these notes and documents show that there was nothing to form the basis for a psychological condition, noting that PTSD was not in dispute, but at the same time there is nothing to dispute a diagnosis of adjustment disorder. In my view, none of those entries indicate physiological effect, or in the alternative none were the subject of medical opinion as to their significance in terms of an adjustment disorder, keeping in mind that the applicant has sustained an undisputed primary psychological injury in the form of post-traumatic stress disorder.
Similarly, in relation to the notes of Ms Coutts, psychologist, the respondent submitted that her notes indicate that the applicant’s attendances in 2018 were with respect to the physical effects of injury, and the effect on the applicant’s ordinary activities, and her focus was on the orthopaedic injuries. In my view, Ms Coutts made no mention of a diagnosis of adjustment disorder or a description of chronic pain. Also absent in my view, was a description by Ms Coutts of physiological effect, in the long-term sense described by Burke J in Bhatia.
The respondent also submitted that the report of Dr Davis of 5 May 2021 was significant in that he related the applicant’s injuries, inability to work and non-resolution of symptoms to becoming anxious and depressed, although he had reference to an unsigned statement of the applicant and did not have the notes of Ms Coutts. I do not accept this submission. Dr Davis has qualifications in occupational medicine. In his report of 5 May 2021, in respect of diagnosis, Dr Davis acknowledged that psychological response is outside his area of expertise and opinion should be obtained from a specialist in that field. I place no weight on the opinion of Dr Davis in this regard.
In relation to the report of Dr Bisht, although Dr Bisht noted the applicant’s history of reported pain, he did not explain why this was in his view chronic pain. In my view Dr Bisht did not explain how the chronic pain that he described has resulted in an adjustment disorder. There was no explanation of the factors listed by Dr Anderson in his report, including that initial onset of symptoms were typical of post-traumatic stress disorder, not adjustment disorder; lack of prior history of difficulty in adjustment to pain; lack of any abnormality in the applicant’s report of pain or behaviour in the face of pain; and the issue that continuing pain does not of itself imply adjustment disorder. There was a lack of comment or explanation in the report of Dr Bisht in relation to these matters, as identified by Dr Anderson.
While Dr Bisht recorded a history of a substantial number of symptoms that the applicant said he started to have from the date of the accident, with a worsening of symptoms over the next few months, and thereafter in the ‘course of the injury’, Dr Bisht did not explain which symptoms he considered, or whether he considered any symptoms as separate, in concluding there was chronic pain and reaching a diagnosis of adjustment disorder.
Dr Anderson, on the basis of the history he recorded in his report of 4 September 2020, described “continuing pain”. The respondent submitted that Dr Anderson did not have the update statement of the applicant, which was provided after his report, and the history recorded by Dr Bisht contained a far greater list of restrictions than Dr Anderson considered in his first report. It was submitted that in his report of 21 October 2021, Dr Anderson was asked to consider other statements of the applicant, not the one dated 12 May 2021 that is in the ARD and looking at the list of restrictions listed in his report it was questioned whether it was given in a fair environment.
I do not accept these submissions. It is the history that Dr Anderson took from the applicant on examination, rather than the presence or absence of written statements, that must be considered when evaluating the basis for Dr Anderson’s opinion and report and in consideration of the weight to be given to his reports in respect of the applicant’s case that is before the Commission, including the applicant’s statements of 12 May 2021 and 17 May 2021. Dr Anderson in his report of 4 September 2020 recorded a history of continuing pain following the accident of 15 September 2017, and he recorded symptoms with a timeline commencing at the time of the accident and continuing. In his report of 21 October 2021, Dr Anderson noted a history of current constant pain, and also noted that the current pain is less severe than at other times in the applicant’s life, although it is constant and irritating and the pain did not make him anxious. While the respondent has pointed to a lack of reference in the clinical records to emotional issues until 16 September 2018, there was a reference to post-traumatic stress disorder at a relatively early stage in the referral letter of Dr Lee to Ms Coutts dated 17 January 2018. In my view, this lends support to the history recorded by Dr Anderson of post-traumatic stress disorder symptoms commencing from the time of the accident on 15 September 2017.
In my view, the history recorded by Dr Anderson in his report of 21 October 2021 was sufficiently like[19] the case before me to be of weight in the consideration of this matter. It is not necessary that there be an exact correspondence between the assumed facts upon which the opinion of Dr Parkinson is based on the facts proved in this case[20]. In my view there was a fair climate for his opinion. Dr Anderson took a history of pain and symptoms which was the basis on which he provided his opinion in relation to the diagnosis made by Dr Bisht of adjustment disorder. The respondent submitted that the history of restrictions, or lack of such a history, was relevant to this consideration, but there was no indication in the report of Dr Bisht, nor elsewhere, as to how the history of restrictions was relevant nor how it would support his description of chronic pain and diagnosis of adjustment disorder. While it might be said that it is significant that there was absent a consideration of an extensive list of restrictions that was given in the applicant’s statement of 12 May 2021, it was not explained by reference to expert medical opinion how this was significant. Dr Bisht did not provide an explanation of the significance of the list of restrictions. I do not accept the respondent’s submissions.
[19] Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505.
[20] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 at [88].
I prefer the opinion of Dr Anderson that there was no adjustment disorder arising from pain, that is there is no secondary psychiatric injury.
The respondent has not discharged the onus of establishing secondary psychological injury.
If I am found to be wrong in relation to the allocation of the burden, or onus, of proof, and in respect of injury within the meaning of section 4 then in my view my acceptance of the opinion of Dr Anderson results in a finding that the applicant has not sustained a consequential secondary psychiatric condition.

[2022] NSWPIC 66

14 February 2022