Debs v Neuroscience Research Australia

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Debs v Neuroscience Research Australia [2025] NSWPIC 116
APPLICANT:	Sophie Debs
RESPONDENT:	Neuroscience Research Australia
MEMBER:	Rachel Homan
DATE OF DECISION:	31 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation and medical expenses in respect of psychological injury due to bullying and harassment; applicant employed by the respondent for a period of time before resigning and accepting appointment as a visiting PhD student to conduct studies at respondent’s premises; whether during PhD studies the applicant was a worker/deemed worker; whether injury arose out of or in the course of employment; Held – applicant was not a worker or deemed worker while conducting her PhD studies; injury was not sustained in the course of employment; although injury arose out of employment, employment was not the main contributing factor to the injury; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Ms Sophie Debs (the applicant) was employed by Neuroscience Research Australia (the respondent) from June 2019 to 15 November 2019 as a full-time research assistant.
On 18 November 2019, the applicant commenced PhD studies through the University of New South Wales (UNSW). The applicant was awarded a scholarship by the Australian government to complete her PhD studies, which was administered by UNSW and paid to the applicant as a stipend. The applicant undertook her research at the respondent’s premises.
The applicant claims that she sustained a psychological injury as a result of psychological and emotional bullying by a research assistant employed by the respondent, which commenced when the applicant was employed as a research assistant but continued after she commenced her PhD studies.
Liability for the injury was disputed by the respondent’s insurer in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 7 February 2022.
After the applicant made a claim for lump sum compensation for permanent impairment resulting from the injury, a further notice was issued pursuant to s 78 of the 1998 Act on
2 January 2024.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute in the Personal Injury Commission (the Commission) on 24 September 2024. The applicant claims lump sum compensation and medical and related treatment expenses.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter proceeded to a conciliation conference and arbitration hearing on 28 November 2024. After an extended period in conciliation, the parties were unable to reach a mutually acceptable agreement. As oral submissions were not able to be completed in the remaining time, the parties were directed to serve and lodge written submissions according to a timetable.
Neither party complied with the timetable for written submissions, apparently because discussions towards an agreed resolution were ongoing. On 31 January 2025, the Commission made a direction extending the timetable for written submissions. The parties were advised of the Commission’s intention to determine the dispute on the papers at the conclusion of that timetable.
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.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant was a worker/deemed worker in the period from
16 November 2019 to 3 February 2021;
(b) whether the applicant sustained an injury arising out of or in the course of employment pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act);
(c)    whether the medical and related treatment expenses claimed were reasonably necessary as a result of a compensable injury; and
(d)    the entitlement to lump sum compensation pursuant to s 66 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to an Application to Lodge Additional Documents lodged by the respondent on 20 December 2024;
(d)    written submissions lodged on behalf of the applicant on 8 January 2025; and
(e)    written submissions lodged on behalf of the respondent on 7 February 2025.

Relevant facts

The facts in this case are largely uncontroversial.
In June 2019, the applicant commenced employment with the respondent as a research assistant in the Schizophrenia Research Laboratory. The applicant remained in that employment until 15 November 2019, on which date she resigned from her role in order to commence PhD studies through UNSW. The applicant had received a scholarship under the Australian government’s Research Training Program which provided her with a stipend, managed by UNSW, for a maximum of three and a half years.
The applicant undertook her PhD studies at the respondent’s premises after accepting a place as a “visiting PhD student”. The terms of that offer were set out in a letter dated
18 October 2019.
The applicant’s stipend was supplemented by an additional payment of $5,000 provided by the respondent. The respondent provided the premises, resources and supervision required for the applicant to complete her studies.
The respondent had a business affiliate relationship with UNSW whereby the respondent would provide projects, facilities, and resources for PhD students enrolled at UNSW, facilitating their research activities, whilst simultaneously receiving students to assist towards their own research.
The applicant claimed that she sustained a psychological injury due to bullying perpetrated by a fellow research assistant employed by the respondent, Ms Amelia Brown. The bullying commenced in June 2019 and continued throughout the applicant’s time with the respondent, with increased intensity between August and November 2020. The applicant characterised the bullying as involving “psychological and emotional harassment”.
The applicant reported her concerns to her supervisor, Dr Tertia Purves-Tyson, in November 2019. In early 2021, the applicant reached a point at which her psychological health was in significant decline. A formal grievance was lodged on 3 February 2021.
An investigation instigated by the respondent confirmed that bullying occurred over an extended period, with recommendations made for disciplinary action against Ms Brown. Ms Brown rejected the findings, leading to a further investigation. Ultimately, Ms Brown resigned.
The applicant obtained a medicolegal report from psychiatrist, Dr Assad Saboor on 21 April 2023 (amended on 23 June 2023). Dr Saboor found that bullying and harassment from Ms Brown between June 2019 of February 2021 had exacerbated the applicant’s pre-existing anorexia nervosa leading to the onset of a major depressive disorder with anxiety features.
The respondent obtained medicolegal reports from psychiatrist, Dr Nadeem Anwar on
13 December 2023 and 20 February 2024. Dr Anwar also diagnosed a major depressive disorder and relapse of anorexia nervosa precipitated by workplace bullying from Ms Brown starting in 2019.
Both experts made an assessment of 16% whole person impairment resulting from the injury.

Applicant’s submissions

The applicant submitted that her entitlement to the compensation claimed would flow from determination of the disputes as to whether the applicant was a “worker” and/or deemed worker and sustained the injury in the course of or arising out of “employment”.
The applicant submitted that her initial exposure to bullying and harassment occurred in the course of her employment as a research assistant. It was the applicant’s employment that acted as the genesis of the bullying conduct and the psychological injury.
In this regard, the applicant submitted that her employment relationship with the respondent gave rise to the relationship between the applicant and Ms Brown and provided the grounds for the bullying and harassment conduct.
The applicant said her psychological injury manifested itself in the initial period of employment. As early as November 2019, the applicant first approached the respondent about the conduct and sought assistance on an informal basis.
Alternatively, the applicant submitted that in the period from November 2019 to 3 February 2021, she was either a worker or deemed worker.
The applicant said the letter of offer dated 18 October 2019 set out the terms of her engagement by the respondent. However, looking at the totality of the relationship, it was clear that the applicant was not an independent contractor running her own business.
The applicant submitted that the payments which she received were consistent with remuneration that an employee would have received.
The letter of offer demonstrated the level of control exercised by the respondent over the applicant in the manner in which she performed her work. Amongst other things, the applicant:
(a)    was required to familiarise herself comply with policies and procedures together with the requirements of the letter of offer;
(b)    was required to perform her responsibilities and duties in accordance with the terms of the letter of offer and in accordance with any lawful direction given by the respondent and all applicable laws;
(c)    was required to work under the direction of Dr Purves-Tyson with usual hours within the workplace between 8:00am and 6:00pm, Monday to Friday;
(d)    would be paid a supplementary payment of $5,000 per year separate to the stipend administered by UNSW;
(e)    would be covered by the respondent’s insurance policies for any work-related injuries; and
(f)    was subject to being terminated by the respondent in the event that she was to commit an act of serious or wilful misconduct; an act of fraud or material misrepresentation, engaged in falsification of research, mislead the respondent in a material way, was convicted of a serious criminal offence, became of unsound mind or committed any serious or persistent breach of the letter of offer.
The applicant submitted that the work she performed for the respondent was represented or portrayed as the activity of the respondent. The applicant could not subcontract or retain anyone else perform the work she was required to perform by the respondent.
In these circumstances, the applicant submitted that the Commission would be satisfied on the balance of probabilities that she was a “worker” in the relevant period.
In the alternative, the applicant submitted that she was a deemed worker. In particular, the applicant submitted:
(a)    she was a party to a contract to perform work;
(b)    the work exceeded $10 in value;
(c)    the work was not incidental to a trade or business regularly carried on by the applicant in her own name or under a business name; and
(d)    the applicant neither sublet the contract nor employed any workers.
The applicant sought to distinguish the decision in Galal v University of New South Wales[1] (Galal), noting that she had not brought a claim against UNSW. The applicant had a separate relationship with the respondent which required her to comply the respondent’s policies and practices, perform responsibilities and duties as directed by the respondent, work at the direction of the respondent, work within hours provided by the respondent and be subject to discipline and termination by the respondent.
[1] [2020] NSWWCCPD 74.
In exchange, the applicant was provided with research facilities and an additional income. The applicant submitted that there was no sound reason for determining that the additional payment of $5,000 was anything other than payment and reward for work.

Respondent’s submissions

The respondent agreed that there was no dispute that the applicant was a worker between 25 June 2019 to 15 November 2019. After that date, the respondent submitted that the applicant was a PhD student, undertaking research at the respondent’s premises and was not a “worker” or deemed worker employed by the respondent.
The letter dated 18 October 2019 offering the applicant that appointment specifically stated that she was “not deemed to be an ‘employee’ (under law) of NeuRA…”.
The payment of $5,000 per year by the respondent was a supplementary scholarship allowance.
The respondent noted that on its payroll records, the applicant was described as an “employee” for the period 15 July 2019 to 15 November 2019. Thereafter, she was described as a “PhD student”.
The respondent submitted that the evidence did not establish that the applicant sustained an injury during the period of her employment or that the conduct of Ms Brown during that period was the main contributing factor to the contraction and/or aggravation of the applicant’s psychological condition. The evidence supported a finding that it was Ms Brown’s behaviour during the period that the applicant was a PhD student that was causative of the psychological condition.
In this regard, the respondent referred to the following medical evidence:
(a)    the applicant first reported workplace bullying to general practitioner Dr Nicholas Loukakis, on 27 January 2021 and to her usual general practitioner, Dr Phan on 15 February 2021;
(b)    the applicant reported a six-month history of increased dietary restriction and weight loss to her psychiatrist A/Prof Sloane Madden on 9 April 2021 and “an 18-month history of increasing general and social anxiety in the context of significant workplace bullying as a PhD candidate”;
(c)    the applicant saw psychologist Dr Brooke Donnelly in May 2021 for treatment for a relapse of anorexia nervosa;
(d)    Dr Saboor recorded that the applicant reported that her anxiety became noticeable later in 2020 and she began losing a significant amount of weight at the beginning of 2021;
(e)    Dr Anwar found that the bullying by Ms Brown caused an aggravation of the applicant’s pre-existing major depressive disorder and a relapse of anorexia nervosa in 2020, and
(f)    although Dr Anwar stated that the applicant started experiencing some symptoms during the period that she was a worker, they were intermittent and did not impact her functioning; the applicant’s functioning only started to be affected in early 2020.
The respondent also noted that witness evidence given by Human Resources Manager, Angy Dinevska and Dr Purves-Tyson was that the applicant first reported Ms Brown’s conduct in 2020. The applicant lodged a formal grievance on 3 February 2021.
The respondent submitted that the Commission would be satisfied that any injury sustained by the applicant was not contracted and/or aggravated by her employment with the respondent between 25 June 2019 and 15 November 2019. Furthermore, the Commission would not be satisfied that the applicant’s employment during this period was the main contributing factor to the injury.
With regard to the period from November 2019 to 3 February 2021, and the applicant’s submission that she was a worker and/or a deemed worker in that period, the respondent submitted there was no employment contract; no contract to perform work; no wage or reward for work performed; and there was no obligation upon the applicant to perform any work.
Rather, there was an appointment as a visiting PhD student, which was contingent upon the applicant’s continued studies towards the attainment of her PhD at UNSW. The applicant was given the right to perform the research required for her PhD at the respondent’s premises.
The respondent submitted that the letter of 18 October 2019 was not a contract of employment and did not require the applicant to perform any work. The letter was an offer of an appointment as a visiting PhD student, which enabled the applicant to attend the respondent’s premises to engage in projects established by her supervisor and use the respondent’s facilities and resources.
The respondent’s supervisor, Dr Purves-Tyson, was a conjoint senior lecturer at UNSW and a paid employee of the respondent. The only control exercised by Dr Purves-Tyson was in respect of the supervision of the research conducted by the applicant for the purposes of her studies to obtain her PhD.
The letter stated that no remuneration would be paid as the appointment was honorary. The allowance of $5,000 per year was in the nature of a voluntary gift to the applicant, not payment for work done. The payment was not calculated on the basis of hours of work performed or services provided. No tax was deducted from the payments after 15 November 2019. The payments were described in the payroll records as “PhD top up” rather than salary. The applicant’s staff number and employment status changed in the personnel records from 15 November 2019.
The respondent submitted that the decisions in ZG Operations Australia Pty Ltd v Jamsek[2] and Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd[3] were authority for the proposition that a written contract was decisive of the character of the relationship. The letter of 18 October 2019 clearly established that the relationship between the parties was not that of a worker and employer but of a student being given the right to use facilities and resources for the purposes of completing studies towards achieving her PhD.
[2] [2022] HCA 2.
[3] [2022] HCA 1.
The respondent identified a number of factual similarities between this case and the decision of Galal. The respondent noted that Galal was decided before the High Court decisions in ZG Operations Australia Pty Ltd v Jamsek[4] and Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd[5]. To the extent that the applicant argued that the traditional common law indicia of a contract of employment ought to be examined, these resulted in an overwhelming finding that there was no employment relationship between the applicant and the respondent.
[4] [2022] HCA 2.
[5] [2022] HCA 1.
With regard to the applicant’s submission that she was a deemed worker, the respondent referred to the decision in Scerri v. Cahill[6] and said there was no evidence of a contract to perform “work”.
[6] (1995) 14 NSWCCR 389.
The respondent submitted that other than the fact that the applicant performed her PhD studies at a different venue, the facts in this case were very similar to the facts in Galal and the Commission would come to the same conclusions as Arbitrator Bell in Galal.

FINDINGS AND REASONS

As acknowledged by both parties’ submissions, there is no dispute in this case that the applicant sustained a psychological condition as a result of Ms Brown’s conduct.
There is no dispute that such conduct commenced during a period in which the applicant was in an employment relationship with the respondent.
The materials attached to the Application to Resolve Dispute include an offer of employment as a full-time research assistant for a six-month term commencing on 25 June 2019. That offer was accepted by the applicant on 13 June 2019. Also attached to the Application to Resolve a Dispute is a letter of resignation authored by the applicant on 17 October 2019.
A letter accepting the applicant’s resignation, dated 18 October 2019, confirmed that the applicant’s last working day would be 15 November 2019.
The parties are in disagreement as to whether the relationship between the applicant and the respondent in the period that followed was one of employment. In that period, the conduct from Ms Brown continued and intensified, leading ultimately to the diagnosis of the psychological condition which is the subject of these proceedings.

If it is found that the applicant was in an employment relationship during this second period, there is no dispute that the applicant sustained a compensable injury in accordance with
s 4 of the 1987 Act. There being no medical dispute as to the degree of permanent impairment resulting from that injury, awards for the payment of lump sum compensation and medical and related treatment expenses would follow.

Whether the applicant was a whether the applicant was a “worker” or deemed “worker” in the period from 16 November 2019 to 3 February 2021

Section 9 of the 1987 Act provides that a “worker” who has received an “injury” shall receive compensation from the worker’s employer.
The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
“Psychological injury” is further defined in s 11A(3) of the 1987 Act:
“(3) A psychological injury is an injury (as defined in s 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”
The term “worker” is defined in s 4 of the 1998 Act as, subject to some exceptions not presently relevant,
“…a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing).”
The workers compensation legislation deems certain other persons to be “workers”.
Section 5 and Sch 1 of the 1998 Act deal with the concept of deemed employment of workers. Schedule 1, cl 2 provides as follows:
“Outworkers and other contractors
2 (1) Where a contract:
(a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor’s own name, or under a business or firm name), or
(b) [Repealed]
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.”
Section 2A of the 1987 Act provides that the definitions in the 1998 Act apply to the word “worker” where it appears in the 1987 Act.
In considering the question of whether work was done under a contract of service in Stevens v Brodribb Sawmilling Co Pty Ltd,[7] the High Court set out a number of relevant indicia. These included, but were not limited to:
[7] [1986] HCA 1.
•      the mode of remuneration;
•      the provision and maintenance of equipment;
•      the obligation to work;
•      the timetable of work and provision for holidays;
•      the deduction of income tax;
•      the right to delegate work;
•      the right to dismiss the person;
•      the right to dictate the hours of work, place of work and the like, and
•      the right to the exclusive services of the person engaged.
In Hollis v Vabu Pty Ltd[8] the High Court reiterated that the “totality” of the relationship must be considered and said the factors set out in Stevens were merely a guide to establishing the nature of the relationship.
[8] [2001] HCA 44.
More recently, in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd,[9] the plurality said,
“In Stevens v Brodribb Sawmilling Co Pty Ltd and Hollis v Vabu Pty Ltd, it was said that the characterisation of a relationship as being either one of employment or one of principal and independent contractor is to be determined by reference to "the totality of the relationship between the parties". It was not suggested that this assessment should proceed as if the court is running down items on a checklist in order to determine a balance of ticks and crosses. It has never been suggested that the factors identified to be relevant are of equal weight in the characterisation of the relationship. Some understanding as to the relative significance of the various factors is desirable, both to minimise the extent to which application of the test may produce an impressionistic and subjective outcome on the one hand, and to avoid the injustice of a mechanistic checklist approach on the other.”
[9] [2022] HCA 1.
In that case and ZG Operations Australia Pty Ltd v Jamsek,[10] which was heard at the same time, the High Court found that where there exists a comprehensive written contract, that should be the starting point in determining the nature of the relationship.
[10] [2022] HCA 2.
Consistently with ZG Operations Australia Pty Ltd v Jamsek and Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd, the starting point in determining whether the applicant had, in the period from 16 November 2019 to 3 February 2021, entered into or worked under a contract of service with the respondent must be the written agreement governing that relationship.
Both parties referred the Commission in this regard to a letter, dated 18 October 2019, sent to the applicant by the respondent’s chief operating officer, Dr Kate Johnston. That letter offered the applicant “an appointment as a Visiting PhD Student”. The “appointment” was to take effect on 18 November 2019 and continue (unless terminated in accordance with the terms of that letter) until 30 April 2023. The letter stated,
“You are not deemed to be an ‘employee’ (under law) of NeuRA, and this appointment is contingent upon your continued studies towards your PhD at the University of New South Wales.”
The letter continued to outline the applicant’s responsibilities and duties as an “appointee”. The letter stated,
“No remuneration will be paid to you by Neuroscience Research Australia as this is an honorary appointment.
Effective 25 September 2019, NeuRA will contribute a supplementary scholarship allowance of $5,000 per year in addition the your RTP scholarship being paid by UNSW.”
The letter confirmed that as a “visiting appointee” the applicant was not entitled to be paid annual leave, sick leave or long service leave entitlements. The applicant was advised to make her own arrangements for any leave in conjunction with Dr Purves-Tyson. The circumstances in which the appointment could be terminated were set out.
The respondent submits that these aspects of the arrangement were inconsistent with an employment relationship.
The applicant highlights other aspects of the arrangement offered to the applicant in the letter of 18 October 2019 as being consistent with an offer of employment. Amongst other things, the applicant highlights a reference to the applicant’s “hours of work”, expressed in the following terms,
“Your hours of work will be negotiated with Dr Tertia Purves-Tyson and will usually be worked between the workplace hours of 8.00am and 6.00pm, Monday to Friday.”
The letter also informed the applicant that she would be covered by the respondent’s insurance policies for any “work related injuries”. The letter stated that the applicant’s research activities would be carried out “for and on behalf of” the respondent. The letter also indicated that all research work had to be approved by the applicant’s supervisor.
The applicant submitted that these elements of the arrangement demonstrated a degree of control consistent with an employment relationship. The applicant submitted that the respondent dictated the hours of work and place of work and could dismiss the applicant. It was submitted that the payment of $5,000 per year was consistent with remuneration for work. The respondent had control over the applicant’s work and her work was performed for and on behalf of the respondent, using the respondent’s facilities and equipment.
While I accept that aspects of the relationship between the applicant and respondent are, viewed in isolation, potentially consistent with an employment relationship, when the offer is read as a whole, I am not satisfied that the relationship it proposed is appropriately characterised in that way.
Rather, I accept the respondent’s submissions that the applicant was offered (and accepted) an honorary appointment as a visiting student to conduct research towards her PhD studies. While I accept the applicant’s submission that the facts of this case can be distinguished from Galal, I have reached the same conclusion as Arbitrator Bell. I am not satisfied on the particular facts of this case that there was a master/servant relationship. The true nature of the relationship was one in which facilities and resources for the applicant’s PhD studies would be provided together with an allowance supplementing the applicant’s stipend in exchange for the applicant carrying out research studies for and on behalf of the respondent.
The evidence regarding the manner in which the relationship was actually conducted after the written offer was accepted, does not lead me to a different conclusion.
I am not satisfied that the applicant was, in the period from 16 November 2019 to 3 February 2021, a “worker” under a contract of service with the respondent.
For the same reasons, I am not also satisfied that the applicant was a deemed worker. I am not satisfied that there was a contract to perform “work” for the purposes of cl 2 of Sch 1.
The relationship between the parties was of a different character, in the nature of an honorary appointment to undertake study.
Having made these findings, the applicant’s claim will only succeed if it is found that her psychological condition arose out of or in the course of her employment between
25 June 2019 and 15 November 2019 and if such employment was “the main contributing factor” to the condition.

Whether the applicant sustained an injury arising out of or in the course of employment pursuant to s 4 of the 1987 Act

The applicant gave evidence in her written statements dated 16 July 2021 and 12 September 2024 that bullying from Ms Brown commenced in June 2019. The applicant said Ms Brown was:
“…extremely manipulative, and she engaged in both verbal and written harassment of me; she was controlling and interfered with my work; and she intimidated me. Examples of this include, but are not limited to, her constantly sending me text and Facebook messages about personal and inappropriate things; making offensive and demeaning remarks; standing over myself and others yelling when we were performing tasks; inciting gossip and rumours; creating issues in the workplace that were not there; and controlling the work load of myself and my colleagues.”
The applicant said she first raised the issues she was having with Ms Brown with
Dr Purves-Tyson in November 2019 and continued to raise her concerns every few months. The behaviour became particularly problematic from August 2020 to November 2020. In that period, the applicant approached the Human Resources Manager, Ms Dinevska, about making a complaint. The applicant informed Dr Purves-Tyson that she intended to lodge a formal complaint in November 2020 because she was unhappy with how the issue had been handled. The applicant sought to take extended sick leave from her PhD in January 2021. A formal grievance was lodged on 3 February 2021.
A letter from Ms Dinevska in relation to the grievance dated 8 February 2021 indicates that the applicant had claimed that Ms Brown had bullied her in the workplace for approximately one and a half years. The grievance investigation report dated 1 March 2021 contained examples of the bullying behaviour including, particular interactions on 5 November 2019,
8 November 2019, 15 January 2020, 6 November 2020, 10 November 2020 and 11 November 2020.
The applicant gave evidence that her family and friends first noticed a recurrence of symptoms of anorexia in around November or December 2020 although the signs of stress were apparent prior to this. The applicant said that her symptoms were gradual and her intake of food reduced over a few months from around August 2020. By November or December 2020, the applicant had lost 5kg and had lost a further 5kg by May 2021.
The applicant first discussed the stress she was experiencing with her general practitioner, Dr Jonathan Phan in April 2020. Dr Phan referred the applicant to a psychologist. At that point, the applicant did not feel as though the stress was interfering with her capacity to perform her duties as a PhD student, although it did affect her mood and motivation.
Dr Phan’s clinical notes confirm that on 20 April 2020 the applicant reported th at she had been accessing psychological support from her university. The applicant completed DASS 21 testing and a GP Mental Health Care Plan was prepared. The cause of the applicant’s symptoms was not recorded.
By June 2020, the applicant returned to Dr Phan reporting increased stress, difficulty sleeping, loss of interest in her usual activities and hair loss. The applicant’s anti-anxiety medication was reviewed and she was given a medical certificate for time taken off from her studies.
The histories recorded by the medicolegal experts is broadly consistent with the factual and treating evidence.
Dr Saboor gave the opinion that the applicant’s injury was one of gradual onset caused by multiple events:
“I am of the opinion that it has been caused by multiple events whereby she has been subjected to bullying and harassment behaviour by a colleague. This started when she joined the workplace in June 2019 until the colleague left work in 2021. This resulted in the development of her psychological condition and it was the main contributing factor for the relapse of her Anorexia Nervosa and a substantial contributing factor for the development of her depression and anxiety.”
Asked to specify exactly when the applicant had suffered a condition that would be considered a psychological injury, Dr Saboor said:
“Based on her provided history and the trajectory of her illness, she was exposed to this bullying and harassment behaviour since June 2019 until the investigation outcome in 2021 for an extended period of time. She reported that she started feeling anxious and depressed in 2020 and in 2021 her anorexia relapsed, leading to excess weight loss and malnutrition and then she was admitted to hospital.”
Similarly, Dr Anwar took a history of bullying starting when the applicant was employed by the respondent and continuing after she left to start her PhD studies. With regard to the onset of symptoms, Dr Anwar recorded:
“She reported she started experiencing psychological symptoms soon after she started working with Ms A. The psychological symptoms were intermittent and did not impact on her functioning. In 2019, the psychological symptoms indicated sleep difficulties, lack of motivation, feeling demoralised, tired, fatigued, pervasively reduced energy, and concentration levels, indecisiveness, memory problems, worries about minor life matters, difficulties coping with stress, social isolation, feeling numb, hypervigilance, lack of interest in life, lack of enjoyment, poor self-cognition, loss of confidence, distractibility. The psychological symptoms started impacting on her functioning around early 2020. She struggled with self-care, household activities, work performance, academic matters, became socially isolated, could not enjoy daily life and avoided visiting public places and family and friends around 2020. She started seeing a psychologist privately around April 2020 for mood and anxiety symptoms.”
Dr Anwar gave the opinion,
“The history provided by her and the mental state examination during the assessment indicated pre-existing Anorexia Nervosa (AN) in her teenage years, she completely recovered from AN with treatment. She completely remained psychological/psychiatric symptoms/behaviour after the AN resolved completely to until 2019. The workplace stressors (worked bullying and targeting from Ms A) caused and aggravated major depressive disorder in 2020. The AN relapsed in 2020 due to workplace stressors (worked bullying and targeting from Ms A).”
In his supplementary report Dr Anwar was asked whether the injury occurred during the period of employment with the respondent. Dr Anwar responded:
“The MDD symptoms during the employment with the Neuroscience Research Australia, being 25 June to 15 November 2019. most likely would not have caused significant impact on her functioning to fulfil the DSM 5 diagnostic criteria for MDD in 2020 and the AN symptoms/behaviour most likely would not have relapsed and fulfilled the DSM 5 diagnostic criteria for AN if she had not received the alleged bullying from Ms A after she stopped working with Neuroscience Research Australia, being 25 June to 15 November 2019.
The psychiatric conditions the worker suffered were primary psychological disorder due to alleged workplace bullying from Ms A after she left the employment with Neuroscience Research Australia, being 25 June to 15 November 2019.
The alleged bullying from Ms A after Ms Debs left the employment with Neuroscience Research Australia, being 25 June to 15 November 2019 was the predominant cause for MDD and relapse of AN.
The employment with the insured, being 25 June to 15 November 2019 was NOT the predominant cause for MDD and relapse of AN.”
I am satisfied on this review of the evidence that the problematic behaviour which led to the applicant’s psychological condition commenced during the period of the applicant’s employment in June 2019. Although the applicant resigned from her employment in October 2019, she continued to work until 15 November 2019. The factual evidence, including documents relating to the respondent’s investigation, indicates that there were some particular incidents in early November 2019 which aggrieved the applicant and in respect of which she sought assistance from Dr Purves-Tyson.
I also accept that the applicant started to experience symptoms of a psychological nature during the period of her employment with the respondent. Those symptoms are described in detail in Dr Anwar’s report.
Dr Anwar has, however, expressed the opinion that the symptoms were not sufficient to give rise to a diagnosable condition during the period of the applicant’s employment. This opinion is broadly consistent with the treating evidence and the applicant’s statement evidence which indicates that the applicant did not seek medical assistance for psychological symptoms until April 2020. When Dr Saboor was asked when the injury occurred, said it occurred over an extended period of time commencing during the period of employment until 2021. Symptoms of anxiety and depression started in 2020 and the applicant’s anorexia nervosa relapsed in 2021.
In these circumstances, I am not satisfied on the balance of probabilities that the applicant sustained a diagnosable “psychological disorder”[11] temporally in the course of her employment with the respondent.
[11] See s 11A(3) of the 1987 Act.
The applicant has, however, submitted that her employment acted as the genesis of the bullying conduct and the psychological injury. The applicant says the employment relationship with the respondent gave rise to the relationship between the applicant and Ms Brown and provided the grounds for the bullying and harassment conduct.
Consistently with the applicant’s submissions, I am satisfied that there is a causal relationship between the applicant’s employment and her diagnosed psychological disorder. In Tarry v Warringah Shire Council[12], Glass JA (with whom Samuels JA agreed) held that in a given situation an injury may “arise out of” employment, even though at the time it is sustained the worker is no longer in the course of employment. In Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Aust Pty Ltd[13] the Court held that it would be sufficient to establish that an injury “arose out of” employment the fact of being employed caused, or to some material extent contributed to, the injury. Applying these authorities am prepared to accept that the applicant sustained a psychological injury which arose out of employment.
[12] [1974] 48 WCR 1.
[13] (2009) NSWCA 324.

The factual and medical evidence in this case indicates that the injury was one of gradual onset. It is also uncontroversial that a psychological condition can be a “disease” for the purposes of s 4 of the 1987 Act[14]. In these circumstances, both s 4(b)(i) and s 4(b)(ii) of the 1987 Act contain an additional requirement that employment was “the main contributing factor” to the injury.
[14] See, fo rexample, Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 at 632.
This is not a question in respect of which Dr Saboor gave a direct answer. The question was considered by Dr Anwar. Although Dr Anwar did not use the language of “main contributing factor” in his report, he did express the view that employment was not the “predominant cause” of the injury for the reasons given in the extract quoted above.
My own review of the factual and treating evidence confirms that the bulk of the problematic behaviour from Ms Brown occurred in 2020 and 2021 after the applicant ceased employment. It was in 2020 that the applicant’s symptoms reached the point that medical intervention was sought and her functioning became impaired.
After carefully considering all of the evidence, I am not satisfied on the balance of probabilities that the applicant’s employment with the respondent was the main contributing factor to the injury.
I have noted that the injury was pleaded, in the alternative, as a “personal” injury. In some cases, it may be accepted that a personal injury has occurred as a result as a series of traumatic events which have caused sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state.[15] I am not satisfied however, that either the medical or factual evidence in this case supports a finding that the injury was a personal injury falling within s 4(a) of the 1987 Act.
[15] See, for example, NSW Police Force v Gurnhill [2014] NSWWCCPD 12 and Grate Lace Pty Ltd v Thiess Watkins White (Constructions) Pty Ltd (1995) 12 NSWCCR 365.
For the reasons given above, I am not satisfied that the applicant has sustained a compensable psychological injury.
There will be an award for the respondent.

[2025] NSWPIC 116

31 March 2025