Jones v Svitzer Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jones v Svitzer Australia Pty Ltd [2023] NSWPIC 677
APPLICANT:	Phillip Campbell Jones
RESPONDENT:	Switzer Australia Pty Ltd
MEMBER:	Jane Peacock
DATE OF DECISION:	18 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury not disputed; dispute under section 11A as to whole predominant cause of injury and also as to whether action taken by employer was reasonable; respondent bears onus of proof; employers action in relation to two separate incidents found to be the predominant cause on the expert medical evidence; employers actions reasonable in respect of one incident but not the other; the applicant not precluded from the recovery of compensation because of the provisions of section 11A; Held – award for the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent pay the applicant’s s 60 expenses on production of accounts and/or receipts. 2. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment as follows: (a) Date of Injury: 23 December 2022 (deemed); (b) Body systems/parts: psychological, and (c) Method of assessment: whole person impairment 3. The documents to be forwarded to the Medical Assessor are as follows: (a) The Application to Resolve a Dispute and all documents attached. (b) The Reply and all documents attached. (c) The late documents filed by the respondent with an Application to Admit Late Documents dated 5 September 2023. 4. The matter be relisted for a conference before me in respect of the claim for weekly compensation once the Medical Assessment Certificate is issued.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (Application), as amended, Mr Phillip Campbell Jones (the applicant), seeks lump sum compensation and compensation for medical expenses and weekly compensation as a result of psychological injury alleged deemed to have occurred on 23 December 2022 in the course of or arising out of his employment as a Tug Master.
Switzer Australia Pty Ltd (the respondent) was insured at the relevant time for the purposes of workers compensation.
The respondent denied liability for the claim.

ISSUES FOR DETERMINATION

There is no dispute that the applicant suffers from a work related psychological injury.
The respondent relies on s 11A of the Workers Compensation Act 1987 (the 1987 Act) and says that the applicant is precluded from the recovery of compensation because his psychological injury was wholly or predominantly caused by the reasonable action taken or proposed to be taken by the employer in respect of performance appraisal, discipline, and/or dismissal.
If the respondent is successful in its s 11A defence, there will be an award in its favour.
In the event that the applicant is successful on the liability question, the parties agree that the matter will be remitted for referral to a Medical Assessor to assess the degree of permanent impairment, if any, as a result of psychological injury deemed to have occurred on 23 December 2022.
It is agreed that the claim for weekly compensation would be dealt with once the Medical Assessment Certificate is issued in accordance with the authority of Jaffarie v Quality Casings Pty Ltd [2015] NSWWCCPD 79 (Jaffarie).
The claim for compensation for medical expenses was amended by consent to seek a general order for the payment of medical expenses and this order would follow any liability finding in favour of the applicant.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

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.
At the conciliation/arbitration held on 12 September 2023 the Commission directed as follows:
“1.     By consent, the applicant has leave to amend the Application to Resolve a Dispute (ARD) as follows:
(a)To amend the claim for lump sum compensation to rely on a deemed date of injury, in respect of the claim for lump sum compensation only, of 23 December 2022 being the date of claim.
(b)To amend the claim for compensation for medical expenses to seek a general order.
2.     By consent, the documents to be admitted into evidence are as follows:
(a)The ARD and all documents attached.
(b)The Reply and all documents attached.
(c)The late documents filed by the respondent with an Application to Admit Late Documents dated 5 September 2023.
3.     It is noted that neither party sought leave to cross-examine the witnesses of the other party.
4. It is noted injury is not disputed but the respondent raises a defence under section 11 A of the Workers Compensation Act 1987 that the applicant’s psychological injury wholly or predominantly resulted from the reasonable action taken or proposed to be taken by the employer in relation to performance appraisal, discipline and/or dismissal and the respondent says that on this basis the applicant is precluded from the recovery of compensation.
5.     It is noted that the counsel for both parties have made application to make written submissions in view of the complexity of the matter and accordingly, the parties are directed to file and serve written submissions in accordance with the following timetable, noting that counsel have specifically requested that they be given the length of time specified, and it is noted the respondent will go first given the 11A defence:
(a)The respondent to file and serve written submissions by 4pm 22 September 2023.
(b)The applicant to file and serve written submissions by 4pm 6 October 2023.
(c)The respondent to file and serve written submissions in reply by 4pm 13 October 2023.”
The parties complied with the above direction.

EVIDENCE

Documentary evidence

The following documents were admitted into evidence before the Commission by consent and considered in making this determination:
For the applicant:
(a)    Application and attached documents;
For the respondent:
(b)    Reply and attached documents;
(c)    late documents filed with an Application to Admit Late Documents on 5 September 2023.

Oral evidence

The applicant did not seek leave to adduce oral evidence and counsel for the respondent did not seek leave to cross-examine the applicant. Counsel for the applicant did not make any application in respect of cross-examination of the witnesses who provided statements in respondent’s case.

FINDINGS AND REASONS

The applicant was employed by the respondent as a tug master. He had a career that spanned some 40 years. He says he was a competent tug master who made many sacrifices for his job for example time away from his family and he worked hard.
Certainly the evidence would seem to reflect that the applicant equipped himself capably in his employment without coming to any notable adverse attention until an incident on 15 October 2019 when under his master the tug struck another vessel (the 2019 incident).
The applicant did not report the incident to his employer the night it occurred as per clear company policy (although it was reported to the harbour master) but went home with the intent to report it to his employer the next day. Before he could report it, his employer asked him about the incident. An investigation ensued and the applicant was stood down from work for one month and issued a written warning.
There is a difference between the applicant and the employer as to whether there were steerage issues with the tug. The applicant says he had been reporting steerage issues. The applicant says the steerage issue was responsible for the collision.
The applicant returned to work.
The applicant worked performing full duties up until a time in early 2021 when he was stood down for a failure to disclose his use of oxycodone medication (the 2021 incident).
He was subsequently terminated.
The applicant filed an application that “pleads” psychological injury deemed to have occurred on 27 May 2021 as follows:
“...the applicant sustained psychological injury as a result of the incident on 15 October 2019 which occurred whilst the applicant was in the course of his employment with the respondent and/or subsequent dealings with his colleagues which are broadly classified as bullying , harassment and interpersonal conflict.”
It is noted that the date of injury was amended by consent to be 23 December 2022 being the date of claim. The description of injury was not sought to be amended.
There is no dispute that the applicant suffered a psychological injury although the allegation of injury is disputed in the sense that the whole or predominant cause of the injury is disputed.
Essentially it is not disputed that the injury results from action taken or proposed to be taken by the employer in relation to discipline of the applicant but there is a dispute about the predominant cause of the psychological injury, that is, whether it resulted from disciplinary action taken in response to the 2019 incident or the 2021 incident.
The respondent says that the applicant’s psychological injury was wholly or predominantly caused by the reasonable actions of the employer taken or proposed to be taken in relation to discipline of the applicant. It is noted that although the dispute notices referred to performance appraisal and dismissal, it is clear from the submissions of the parties that the employer’s action has been properly characterised by both parties as disciplinary action and it is on this basis that I will approach determination of the matter.
There is a dispute between the parties about the whole or predominant cause of the psychological injury. This requires determination on the evidence and in accordance with the law.
There is dispute between the parties as to whether the action taken or proposed to be taken by the employer was reasonable. This requires determination on the evidence and in accordance with the law.
The dispute concerns s 11A of the 1987 Act which provides as follows:
“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.”
The respondent bears the onus of proof in relation to the s 11A defence.
This case must be decided, on the balance of probabilities, on the evidence and in accordance with the law.
A useful summary of the relevant case law can be found in the case of Hamad v Q Catering Limited [2017] NSWCCPD 6 (Hamad) in which Deputy President Snell said as follows:
“43. The appellant relies on Shore, a case of psychological injury where a defence pursuant to s 11A(1) was raised, and ‘wholly or predominantly caused’ was an issue. In that matter the only medical opinion was from a doctor who attributed the psychological injury to ‘all of the incidents at work’ (at [26]). Roche AP was critical of the Arbitrator’s analysis in that matter, as the Arbitrator restricted the enquiry to ‘the claim as defined by the Application’, which was an allegation based on a single date, and a meeting on that day (at [41]). Section 11A(1) required that the Arbitrator consider more than just the events on the pleaded date of injury.
44.   The Acting President, in Shore at [42] and [52], said:
‘The causation issue before the Arbitrator was not causation in the sense dealt with under ss 4 or 9A, but was the causation test in s 11A. That section requires the employer to prove that the relevant psychological injury was ‘wholly or predominantly’ caused by the employer’s reasonable action with respect to, in this case, transfer. That is a different, and more difficult, test to satisfy and it required the Arbitrator to consider more than just the events on 8 July 2010.’
Second, the issue is not whether the other events were causative of the alleged incapacity or need for treatment, which requires an application of the ‘results from’ test in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, but whether the transfer was the whole or predominant cause of the admitted psychological injury. On this issue, the Arbitrator failed to consider the nature of the relevant psychological injury and the relevant evidence from Dr Westmore dealing with the cause of that injury. Instead of considering the terms of s 11A, he approached the question from the point of view that ‘the claim as defined by the Application relates to 8 July 2010 and the meeting on that day’.
45. The causal test in s 11A(1) is ‘different, and more difficult’, in that the test does not involve proof of ‘personal injury arising out of or in the course of employment’ (the s 4(a) test), or that employment was a ‘substantial contributing factor’ to the injury (the s 9A test), but rather whether the injury was ‘wholly or predominantly caused’ by the relevant action. It is to be proved on the balance of probabilities; normal principles governing proof of causation apply, but subject to the fact that what must be established is a different statutory test to those in ss 4 and 9A. And the onus falls on the employer, rather than the worker.
46.     In Ponnan Handley ADP at [24] held that the meaning of ‘predominant’ in s 11A(1) is ‘mainly or principally caused’. This was applied by Roche DP in Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd [2008] NSWWCCPD 96 (Temelkov). In the same case Roche DP also dealt with the causation issue on the basis that Kooragang, as ‘the leading authority on causation in workers compensation claims’, applied – ‘causation is a question of fact to be determined on the evidence in each case’ (at [79]).
47.     The Arbitrator at [60] of his reasons identified the causation issue requiring determination (see [9] above). It involved a consideration of all of the evidence, both lay and medical. The Arbitrator’s statement of the principles to be applied was consistent with the remarks of Herron CJ in Bes at 119, quoted and applied in Murray v Shillingsworth [2006] NSWCA 367; 68 NSWLR 451; 4 DDCR 313 at [37]-[38]. The Arbitrator was entitled to rely on his ‘commonsense evaluation of the sequence of events’: Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 (Etherington) at [90]. He was entitled to make commonsense findings, provided these were ‘within the realm of common knowledge and experience’: Tubemakers in the High Court per Mason J at 724, applied in Etherington at [91].
48.     There are limits to such commonsense reasoning. It is restricted to matters within the realm of common knowledge and experience. Roche DP in Ramasamy v Rail Corporation of New South Wales [2009] NSWWCCPD 41; 8 DDCR 1 (Ramaswamy), dealing with a causation issue, at [72] said:
‘…the connection between a thoracic strain on 5 February 2002 and the subsequent findings on CT scan on 26 April 2002 is not within ‘the realm of common knowledge and experience’ (see Mason J (with whom Barwick CJ and Gibbs J agreed) in Tubemakers of Australia Ltd v Fernandez(1976) 50 ALJR 720 at 724 (cited by McColl JA in Hevi Lift at [91])) that would enable an arbitrator or a Presidential member to rely on his or her ‘commonsense’ to conclude that the findings on CT scan resulted from a strain that occurred nearly three months earlier. Nor does ‘commonsense’ indicate, in the absence of appropriate medical evidence, that the incident on 5 February 2002 aggravated, accelerated or exacerbated the symptoms of any disease Mr Ramasamy suffered.’
49.   In Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352; 281 ALR 223;85 ALJR 1130 (Jackson) the plurality at [66] said:
‘The respondent's proposition is that it was not probable that his injuries resulted from a stumble onto the drain from one of its sides and a heavy fall, but that it was probable that they resulted from a fall from the vertical wall. That proposition is not self-evident. To establish it would call for more than the application of ‘commonsense’ or the court's experience of ordinary life. The proposition turns on an inference from the nature of the respondent's injuries to their probable cause. That inference could only be drawn in the light of expert medical evidence.’
50.     The appellant relies on Craig, in which Keating P, applying Strinic v Singh [2009] NSWCA 15; 74 NSWLR 419, at [79] said:
‘It is a fundamental judicial obligation to make findings of fact on proved evidence (not being matters of common knowledge or judicial knowledge [Strinic v Singh]). Her Honour added (at [64]) that even if a judge is experienced in adjudicating in medical matters ‘that experience does not replace the requirement to base findings on the evidence’. For a judge to base a decision in such circumstances on his or her personal knowledge involves an error of law. Her Honour added ‘underlying that error is a fundamental breach of procedural fairness’. A party is not afforded procedural fairness where a trial judge makes a finding of fact based on the judge’s own purported knowledge, or understanding of matters that do not form part of the evidence.’
51.     Craig also dealt with the Commission’s status as a specialist tribunal, and the relevance of this to fact finding on an issue of causation. The Arbitrator, in the current matter, did not rely on the Commission’s status as a specialist tribunal. His reasons do not suggest that he approached his fact finding on that basis. In Etherington McColl JA (Mason P and Beazley JA agreeing) at [93] said that a primary judge (or an arbitrator or Presidential member) intending to rely on his or her specialised knowledge, should disclose this to the parties, to give them an opportunity to respond to it. As regards the effect of the Commission’s status as a specialist tribunal, on its fact finding, see also Wallaby Grip (BAE) Pty Ltd (in liq) v Macleay Area Health Service (1998) 17 NSWCCR 355, MMI Workers Compensation (NSW) v Kennedy (1993) 9 NSWCCR 482, Perkins v Ceva Materials Handling Pty Ltd (previously TNT Materials Handling Pty Ltd) [2011] NSWWCCPD 32 and Workers Compensation Nominal Insurer v Howard [2011] NSWWCCPD 37.”
Deputy President Snell dealt with the causation issue at stake in that case making it clear that the onus is on the respondent in respect of the s 11 A defence:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”

In that case, Deputy President Snell found that:
“The respondent could not, on the available evidence, in the absence of any medical evidence dealing appropriately with the topic, discharge its onus of proving that the appellant’s psychological injury resulted wholly or predominantly from its ‘reasonable action taken or proposed to be taken’ with respect to discipline.”
The respondent has conceded that the applicant suffered a psychological injury although they dispute the allegation of injury in the sense that they say the psychological injury was wholly or predominantly caused by the action of the respondent taken in relation to discipline of the applicant.
The respondent bears the onus of proof on the issue of causation in the context of an s 11A defence.
The applicant made this concession:
“Given the evidence in this matter, the Applicant concedes the whole or predominant cause of the injury in this matter were the actions taken with respect to discipline following the events of 15 October 2019.”
The applicant says he suffered psychological injury in 2019 prior to the issues with his medication coming to light and being responded to by the employer (the 2021 incident). The applicant submitted:
“The Applicant was injured in 2019, prior to the issues relating to his medication use (which surfaced in 2021).”
Counsel for the applicant submitted that in support of this contention, he relies on his statement evidence as well as the following:
(a)    report of Dr Whetton, dated 25 November 2021 (page 108 of the Application);
(b)    Certificate of Capacity (page 360 of the Application);
(c)    report of Dr Kalla, dated 5 July 2022 (page 132 of the Application), and
(d)    report of Dr Smith, dated 29 July 2021 (page 256 of the Application).
Applicant’s counsel submitted: (emphasis in original)
“Dr Murphy’s opinion is somewhat consistent with the above, as he has indicated that the predominant cause was the investigation (that followed the events of 15 October 2019) and the Applicant being stood down in March 2021 (related to his medication use).
The Applicant submits that the first part of this opinion ought to be accepted, but not the latter as the Applicant had already sustained the relevant injury in 2019 (as confirmed by the evidence listed above).
In his supplementary report, Dr Murphy has stated that he agreed with Dr Whetton.
Moreover, the relevant enquiry is what the whole or predominant cause of the injury was. The fact that an event that may satisfy a concept listed in section 11A does not mean it is so causally relevant.
The Applicant’s lay evidence also supports that he had sustained an injury as a result of the events that followed 15 October 2019 i.e. by 2021, and he had ongoing symptoms following same (see, for example, the statement dated 7 October 2022 at page 30 of the ARD – paragraphs 16 - 23).
As Sackville AJA indicated in in Northern NSW Local Health Network v Heggie [2013] NSWCA 255 once the whole or predominant cause of injury has been established, it is the reasonableness of that action which must be assessed, and not the reasonableness of other action taken by the employer even if this other action may, technically, satisfy a definition of a concept within section 11A.
The effect of this is that the events pertaining to the Applicant’s medication use is not relevant to this dispute because they were not the whole or predominant cause of his injury and the issues surrounding his medication intake were not actions related to the discipline that was the whole or predominant cause.”
The applicant submitted:
“In the event the Member does not agree, the Applicant submits that these actions were not reasonable and will address the relevant evidence below as well.
The concept of performance appraisal is not applicable to this matter, noting the comments of Geraghty J in Irwin v Director-General of School Education (unreported, 18 June 1998).”
Despite the inclusion of performance appraisal in the various dispute notices as one of the heads of s 11A relied upon, it is clear from the submissions of both parties that the actions taken or proposed to be taken by the employer in relation to both the 2019 incident and the 2021 incident are appropriately being regarded as disciplinary in nature and the case will be approached by me on that basis.
The respondent submitted:
“The respondent’s case is that the Commission will find that the predominant cause of the applicant’s injury is the respondent’s actions taken and proposed to be taken following its discovery, on 16 March 2021, that the applicant was a long-term user of Oxycodone for medicinal purposes and it's later discovery that the applicant was using medical cannabis. The applicant’s failure to disclose this history of medication was a breach of the obligation imposed upon the applicant by the respondent’s drug and alcohol policy:
It is the responsibility of each employee/contractor/visitor, taking prescribed or over the counter drugs which may interfere with their capacity to work safely and effectively to inform his/her direct manager in order for appropriate arrangements to be made (Reply page 567).
The disciplinary action taken by the employer following this breach led directly to the applicant’s leaving work on 22 May 2021, following his encounter with Ms Dello Iacono on that day, described at Reply page 374.
The applicant’s case regarding the causation of his psychological illness is a different one.
The applicant submits that disciplinary action taken in 2019 was the whole or the predominant cause of his injury. See applicant’s submissions at [7].
While making this contention as to the whole or predominant cause, the applicant does not contest the proposition that the actions taken by the employer responding to the failure to report the collision and responding to the applicant’s medication intake were actions with regard to discipline. The applicant’s position is that while those actions were actions with respect to discipline, they were not reasonable action.
The difference between the applicant’s contention and the respondent’s contention as to the predominant cause requires determination.”
The question of what is the whole or predominant cause of a psychological injury is a matter that has to be decided on the medical evidence weighed in the balance with the other evidence. The evidence needed to allow determination of this issue differs in each case. But in this case there is expert medical opinion as to the predominant cause of the applicant’s psychological injury. In this case, the determination as to the whole or predominant cause of the applicant’s psychological injury must be made with the benefit of the expert medical opinion as to what was the whole or predominant cause of the psychological injury.
The respondent bears the onus of proof.
The respondent qualified Dr Murphy, psychiatrist, to provide an Independent Medical Expert (IME) opinion.
Dr Murphy provided two reports dated 31 July 2021 and 21 March 2023 respectively.
He examined the applicant by AVL for the purposes of both reports.
In his first report date 31 July 2021, Dr Murphy having recorded a history, which is largely consistent with the other evidence before me, and conducted a mental state examination, opined as follows:
“…the predominant cause of Mr Jones’ injury is recent managerial action including an investigation in 2019 and being stood down on pay in March 2021.”
In his second report dated 21 March 2023 after further review of the applicant, Dr Murphy indicated that his opinion on causation was unchanged from his first report.
He also noted that his opinion on causation was the same as Dr Whetton, the IME qualified on behalf of the applicant:
“Dr Whetton similarly identified managerial action as the main contributing factor”.
Now the respondent says that the disciplinary action taken as a result of the 2021 incident is the predominant cause.
However this submission has been made when it is not what Dr Murphy said.
Dr Murphy saw the applicant in July 2021 that is, contemporaneously to the 2021 incident but his history included the 2019 incident and, in his expert opinion, the predominant cause was the managerial action including an investigation in 2019 and being stood down on pay in March 2021.
His opinion doesn’t delineate between the managerial action (the parties agree it is characterised as disciplinary action) taken in response to the 2019 incident and the 2021 incident. I can’t cherry pick part of his expert opinion and attribute causation (predominant cause) to one but not the other.
The applicant also asks me to cherry pick from Dr Murphy’s opinion but in the opposite direction, that is, they say the predominant cause was disciplinary action taken in response to the 2019 incident and the 2021 incident is irrelevant. But again that is not what Dr Murphy says. He says it is the employer’s action taken in response to both incidents that is the predominant cause of the applicant’s psychological injury.
The applicant points to the line in Dr Murphy’s second report dated 21 March 2023 where he says he agrees with Dr Whetton.
Dr Murphy had noted that Dr Whetton agreed that the managerial action was the predominant cause of the psychological injury.
Dr Whetton, the IME qualified to provide an opinion on behalf of the applicant provided two reports dated 25 November 2021 and 27 May 2022 respectively.
In his first report dated 25 November 2021 Dr Whetton recorded a history of the 2019 incident and applicant’s psychological state as a result of the disciplinary action that followed.
He is specifically asked whether the applicant’s psychological injury resulted from the disciplinary action taken in response to the 2019 incident and he answers in the affirmative. He is not asked to consider the effect of the disciplinary action taken in response to the 2021 incident.
The difficulty with the history taken by Dr Whetton providing a fair climate for the opinion on the issue that requires determination, namely the whole or predominant cause of the psychological injury, is that while the history refers to coming off oxycodone, there is nothing at all in the history about the requirement to disclose the use of this drug, the applicant’s failure to disclose the taking of that drug for some five years and the action taken by the employer in response. It is just silent on that aspect. The attribution by Dr Whetton to the disciplinary action taken as a result of the 2019 incident can be considered as an opinion that has not been given in a fair climate. It is not as though Dr Whetton saw the applicant before the 2021 incident because he saw him in November 2021 after the medication use came to light.
In these circumstances I cannot rely on his opinion to attribute the predominant cause to the 2019 incident as the applicant submits I should do and ignore the 2021 incident.
Dr Whetton reviewed the applicant and provided a further report dated 27 May 2022.
In that report he records an expanded history that includes the managerial action taken after the 2021 incident. He attributes causation to the managerial actions but on a proper reading of his opinion and given the expanded history, this can only be read as an attribution of causation to the managerial action taken in response to the 2019 incident and in response to the 2021 incident.
It is clear when the report is read as a whole that attribution of injury is to actions of the employer in relation to both the 2019 incident and the 2021 incident.
When I have regard to the opinions of both Dr Murphy and Dr Whetton and have regard to them in the context of the medical and other evidence before me, I come to the view, on the balance of probabilities, that the predominant cause of the applicant’s psychological injury was the disciplinary action taken by the employer in relation to the 2019 incident and the 2021 incident. On the evidence, and on a proper reading of the medical opinions of Dr Murphy and Dr Whetton, they cannot be divorced from each other.
This brings me to the next determination, that is, whether the actions of the employer were reasonable.
In the circumstances of this case, it requires a determination of whether the actions were reasonable in response to the 2019 incident and the 2021 incident.
The question of reasonableness is not a matter for medical opinion.
The question for determination is whether the action taken by the employer or proposed to be taken was reasonable.
Whilst the finding on predominant cause of injury was a matter the determination of which was dependent on medical opinion, the question of reasonableness must be determined on an objective basis.
Counsel for the applicant referred to the relevant case law as follows:
“As Sackville AJA indicated in in Northern NSW Local Health Network v Heggie [2013] NSWCA 255
‘The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of justice.’”
Counsel for the applicant also referred to the unreported decision of Geraghty J in Irwin v Director-General of School Education (unreported, 18 June 1998):
“The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
The applicant submitted that the disciplinary action was not reasonable.
The respondent submitted that the disciplinary action was reasonable as follows:
“The employer’s disciplinary action in 2019 was the issue of a written warning, and the standing down of the applicant for one month as a penalty for his failure to report the collision of 15 October 2019. The objective of the employer (see Irwin and Shore, referred to in principal submissions, is clearly to promote maritime safety. This of course, is in accordance with the requirements of the Australian Maritime Safety Authority.
It is reasonable for an employer engaging in, and with the responsibilities of, operating tugs in a harbour to take disciplinary action to promote safety, and to require prompt (that is within four hours maximum) reporting of collisions, such as occurred on 15 October 2019.
In the present case, the step taken by the employer in pursuance of that objective was the disciplining of the applicant, who had clearly failed to report the incident as required by the Authority and in the respondent’s own guide, by way of a written warning and a month’s suspension.”
In respect of the 2019 incident, essentially what can be gleaned from the evidence is that the applicant was tug master of the tug named “Marloo” when an incident occurred such that a survey boat was struck.
The applicant says that he had been telling his employer that there were steerage issues with the Marloo but this had been ignored.
The applicant did not initially realise there had been a collision but he was informed of same by his colleague.
It is not in dispute that there is a requirement to report incidents of such a nature to his employer. The applicant says he understood he had 24 hours to report the incident to his employer. This understanding is at odds with the respondent’s clear policy documents in the reply which mandate a four hour reporting timeframe. The applicant gives no explanation for the basis on which he held the view that he only had to report the collision within a 24 hour timeframe.
It seems it was brought to his attention by his colleague that the matter needed to be reported to the employer but the applicant decided to return home and leave the reporting to the next day. There are various explanations given for this which include the fact he was in shock, that he didn’t want to make a mistake with the reporting and that he understood that in any event he had 24 hours to report it to his employer and that in any event it had been reported to the harbour master and there were witnesses so he was not hiding it as such. He also didn’t think the damage was significant to the other vessel as he understood it to be limited to a broken window. It appears on the evidence that the damage to the other vessel was later estimated to be in the order of $200,000 as it included computer equipment. The mandate to report a collision is not dependent on the extent of the applicant’s perception of damage. The fact is that it is a clear requirement by the employer that such incidents be reported to them within four hours. This requirement is in keeping with their obligations to ensure maritime safety. The applicant, whatever explanation is given for the failure to report, failed to report to his employer within the mandated 4-hour timeframe, a collision on the water in which another vessel was struck. He was required to make that report within four hours and he did not.
The applicant would attribute the collision to the steerage issues which he says he had been telling his employer about and which they had ignored.
The applicant gave evidence about his meeting with Mr Doug Ovenden on 16 October 2019 as follows:
“I had a meeting with Dirk on 16 October 2019 which went for half an hour. I was not offered a support person. Dirk took notes. There was no other witness present. I tried to explain to Dirk about the steerage issue on the ‘Marloo’. I said to Dirk ‘The Marloo has a steerage failure’. I explained to Dirk I had done my steerage checks and I went back out of the berth and the alarms went off. His response was ‘Look me in the face and tell me you are ok to go and drive that tugboat’”?
The tone he used was very sarcastic. He had not listened to anything I said. He had no respect for me and what I was trying to say to him.
Dirk had me in fear. I said to Dirk ‘Of course I am alright’. I told Dirk I was fine to go and do my job. I said I would have to go now. He asked me if I was capable, and I said ‘Yes’. Dirk said, ‘This is not finished’.”
The applicant was subsequently stood down from duty whilst the investigation continued.
The applicant gave evidence that he was intimidated by Mr Ovendon, that he was not believed when he reported the steerage issues, that Mr Ovendon rang him repeatedly during the course of the investigation while he was stood down and he was not offered a support person and he felt intimidated by Mr Ovendon. Ultimately the applicant refused to deal with Mr Ovendon without a support person and he was assisted by his union.
Employer’s disciplinary action has to be reasonable, it does not have to be perfect. Here the disciplinary action is the investigation process, standing the employee down and the issue of a written warning.
It would seem to me when all of the evidence is weighed in the balance that disciplinary action could reasonably be taken by the respondent in circumstances where a tug master has a collision with another vessel and failed to report the collision as required within the four hour mandated reporting window. The respondent has pre-eminent obligations to ensure maritime safety. They also of course have obligations to their employees and must behave fairly towards them. The applicant says it was not reasonable and he should have been provided with a support person in circumstances where he was in shock which the employer was aware. The difficulty with this proposition is that the applicant was also holding out to the employer that he was fully capable of immediately resuming his duties as tug master. So on the one hand he says he needs a support person to be questioned about a collision and why he didn’t report it because he was in shock but on the other hand he can resume duties such that he has control of a vessel despite being in shock.
When I weigh all of the evidence in the balance, I am satisfied that the employer’s disciplinary actions in response to the 2109 incident were reasonable.

Turning then to the employer’s action taken in response to their discovery that the applicant had been taking oxycodone for five years without disclosure of its use as per their reporting requirement and then subsequent use of medicinal cannabis.
Again the test of reasonableness is an objective one and not based on the applicant’s perception.
It would seem that the applicant was a long term user of prescription oxycodone. He did not disclose this use to his employer. He said he never worked whilst using the drug and never failed a drug test. He said there was no requirement to disclose his use of this prescription medication because he did not work when he took it and always allowed it to clear his system before working.
There is no suggestion that he has ever failed a drug test.
It would seem to the applicant’s great credit that he was able to break this habit once he decided he would do so in early 2021.
Th applicant’s evidence is that the employer was aware of his usage. There is no evidence to support this contention other than the applicant’s statement that it was so.
What is clear on the evidence is that once the employer became aware of the applicant’s use of this drug in March 2021 they immediately took steps to address the issue.
It would seem that Ms Icacno was informed by Mr Millword that the applicant was addicted to pain medication or opiods. Ms Icacno contacted the applicant about the issue whilst he was on leave.
He was stood down for one month without pay.
He was asked to attend an independent doctor for opinion as to his ability to perform his duties. The opinion was he could but it may create legal issues in the event of an incident.
The applicant provided a letter to the respondent from his general practitioner (GP) in April 2021 that stated he was no longer being prescribed pain medication and that he didn’t need to see an addiction specialist:
“I write on behalf of the above in the capacity as the usual GP.
Mr Jones has not had any s8 medications prescribed to him since 1.4.21, nor has he requested any more. He has already been reviewed by the pain clinic at Port Kembla Hospital. I note your letter suggesting that his management is suboptimal, but I disagree as he is no longer taking any S8 mediation, so why does he need to see an addiction specialist? I’m happy to have a conversation about your reasons for him to see an addiction specialist, but at this stage, he has managed through his own merit, to come off all of medication in question.
Kindly let me know your thoughts.”
The applicant says the respondent did not take the GP’s letter into account.
The applicant submitted that the actions of the respondent were not reasonable as follows:
“The Respondent’s actions were not reasonable.
It was not reasonable for the Respondent to have contacted the Applicant and ambushed him whilst he was on leave and without any warning.
The Applicant was clearly ambushed and he was not in a position to properly provide the requisite information or explain the context of his medication use.
The Respondent was also aware that the Applicant was on leave and the reason for this.
There was no reason why it could not wait until the Applicant had returned to work or made formal arrangements to discuss the matter.
This was objectively unfair, as he was not only caught unawares, he had consumed alcohol when the Respondent contacted him, and it contacted him with two people being present on its end.
Whilst the Applicant’s medication intake as a serious matter, the Applicant was not able to properly defend himself and he was ambushed.
The basis for contacting the Applicant out of the blue was not reasonable, either.
The Applicant refers to paragraphs 57 - 61 of Ms Icano’s statement in this regard (page 90 of the Reply).
Based on Ms Icanono’s statement, Mr Millwood had apparently informed her that the Applicant was addicted to opioids.
This is not only inaccurate given the evidence that is before the Member, but it is also not an accurate reflection of the conversation which the Applicant had with Mr Millwood. There is no evidence from Mr Millwood so as to substantiate what Ms Iacono has stated.
Accordingly, the Applicant submits that it was not reasonable for the Respondent to have ambushed him in this manner.
The inability of the Applicant to properly defend himself or provide, fairly, his side of the story is evidenced by the evidence of Mr Shaw, Ms Iacono and Ms Gomes generally, as their evidence is to the effect that it was the Applicant’s responsibility to have arranged the conversation to take place another time, or indicated that he was inebriated and contact the Respondent later.
The Respondent has failed to grasp the proposition that it contacted the Applicant whilst he was on leave, without there being an actual reason for him to contact him at that time.
There was no reason, at least not on the evidence at hand, why the Respondent could not have contacted the Applicant when he was no longer on leave.
The Applicant was entitled to have time off from work and he was also entitled to demarcate himself from work. The Respondent, unreasonably, considered that he was not so entitled and it could contact him whenever it wanted.
It was also not reasonable for the Respondent to have ignored the GP’s evidence and challenged it.
The Applicant refers to the two reports noted above.
The contents of the reports are clear.
The GP had also offered to discuss the matter with the Respondent.
The Applicant submits that it was not reasonable for the Respondent to have ignored the evidence of the Applicant’s treating doctor and submits that it was disagreed with, and challenged, on the basis of lay evidence.
It was also not reasonable for the Respondent to have stood the Applicant down in the circumstances of his matter.
The Respondent ignored the years of drug tests that had been performed without any issues. This is confirmed by Mr Shaw at paragraphs 88 – 89 of his statement.
The Respondent also ignored the fact that there were no issues related to his use of any medication. This is noting the Applicant had worked with the Respondent for over 30 years.
If the Respondent was, in fact, concerned about the effects of the Applicant’s medication use, it could have easily asked him to perform alternate duties. There is no evidence to suggest that this was ever considered. The Applicant submits this failure was inappropriate and unfair as the Applicant was willing to continue working.
Despite this, the only action taken was to stand the Applicant down and what compounds this situation was that the Applicant was stood down without pay.
Similarly, Mr Shaw’s remarks that the Applicant was inherently unable to comply with the safety requirements of his role was not a true reflection of the Applicant’s employment as his use of medication had not caused any such issues in the past.
The manner in which the Applicant was stood down was also, it is submitted, not reasonable.
It was effected via text message; abruptly; and without any proper consultation.
The Applicant submits that the Respondent has also ignored that he complied with its policy.
The Applicant refers to the Drug & Alcohol Policy & Procedures (page 128 of the Reply).
The medication which the Applicant was using did not satisfy the term ‘Drugs’ (see page 128 of the Reply) in this Policy. Clause 3.1 did not apply, either, as there was no drug misuse in the workplace.
The Applicant also submits that the Respondent’s actions were not objective. In other words, the Respondent’s actions were guided by preconceived notions about the Applicant and his credibility that were not put to him and these considerations guided the Respondent’s actions, again, in circumstances where the Applicant could not defend himself.”
When I weigh all of the evidence in the balance I am not satisfied that the disciplinary action taken by the respondent in relation to the applicant’s hitherto undisclosed medication use was reasonable. Whilst it is true that the respondent has pre-eminent obligations to ensure maritime safety it also has obligations towards it’s employees to behave fairly towards them. In this context, the applicant, an employee of considerable years standing, without any history of failing a drug test (of which he has undertaken many and on a random basis), is contacted whilst on leave after another employee Mr Millwood apparently reports to management that he is addicted to opioids. There is no evidence from Mr Millwood. Ms Icacno contacts the applicant while he is on leave. It was known to the employer that their employee was on leave. He simply should not have been contacted whilst on leave because the matter was not of such pressing urgency to warrant that contact. It is not up to an employee to stand up to their employer (their source of income) and refuse to talk whilst on leave. The employer should know they should not contact an employee on leave. The matter should have been handled when the applicant returned from leave by the scheduling of a formal interview with the offer of a support person. It was a sensitive matter that required careful handling and it required careful handling from the beginning of the process. The suggestion of drug use or misuse risks serious reputational harm to the employee. There was no basis to stand the applicant down without pay in circumstances where the employee is of such long standing with no history of failing a drug test without having a formal meeting with a support person to discuss the issue. Alternative duties could have perhaps been considered whilst the matter was investigated if concerns were held. The situation would present entirely differently if the matter was being responded to was one where the applicant failed a drug test prior to taking command of a vessel. He has never failed a drug test. The manner in which the respondent chose to handle this matter from the time they took a reporting from another employee that the applicant was addicted to opioids tainted the disciplinary process from the start such that it could not be regarded as reasonable.
What this means is that the action taken or proposed to be taken by the employer in relation to discipline was not reasonable and accordingly all limbs of s 11A are not satisfied and the applicant is not precluded form the recovery of compensation.
The matter will be remitted for referral to a Medical Assessor in respect of the claim for lump sum compensation, a general order for the payment of medical expenses will be made and the claim for weekly compensation will be relisted once the Medical Assessment Certificate is issued.

[2023] NSWPIC 677

18 December 2023