Kaye-Smith v Bgis Technical Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kaye-Smith v BGIS Technical Services Pty Ltd [2022] NSWPIC 249
APPLICANT:	John Kaye-Smith
RESPONDENT:	BGIS Technical Services Pty Ltd
MEMBER:	Jacqueline Snell
DATE OF DECISION:	26 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation and medical and related treatment expenses resulting from primary psychological injury sustained in the course of employment with the respondent; Defence raised under section 11A(1) of the Workers Compensation Act 1987 (1987 Act) relevant to discipline; Held– the applicant’s injury was not wholly or predominately caused by reasonable action taken by the respondent with respect to discipline, the applicant has an entitlement to weekly benefits payable under section 37(1) of the 1987 Act and the applicant has an entitlement to medical and related treatment expenses payable under section 60 of the 1987 Act.
DETERMINATIONS MADE:	1. The psychological injury the applicant sustained in the course of his employment with the respondent, with a date of injury 23 June 2020, was not wholly or predominately caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline. 2. The applicant has had no current capacity for work resulting from the psychological injury he sustained in the course of his employment with the respondent since 25 June 2021. The applicant has an entitlement to weekly compensation payable under s 37(1) of the Workers Compensation Act 1987. The applicant’s pre-injury average weekly earnings are agreed at $1,800. The respondent is to make payments of weekly compensation to the applicant in accordance with s 37(1) of the Workers Compensation Act 1987 from 25 June 2021 to date and continuing at the rate of $1,440 per week. The applicant’s entitlement to weekly compensation is subject to legislative adjustment. 3. The applicant has an entitlement to medical and related treatment payable under s 60 of the Workers Compensation Act 1987 resulting from the psychological injury he sustained in the course of his employment with the respondent, with a date of injury of 23 June 2020. The respondent is to pay the applicant’s medical and related treatment in accordance with s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

At the time of alleged injury the subject of these proceedings, the applicant, John Kaye-Smith (Mr Kaye-Smith) was employed by the respondent, BGIS Technical Services Pty Ltd (BGIS). Mr Kaye-Smith commenced working as an electrical/airfield technician with BGIS in August 2019. He worked on a full-time basis.
Mr Kaye-Smith alleges he sustained injury in the nature of primary psychological injury on 23 June 2020 in the course of his employment with BGIS. The circumstances of his alleged injury are described in the following terms:
“On 23 June 2020 the applicant was escorting two engineers on the RAAF Richmond Air Field. He was advising the Air Field Control Tower of their positions as they moved about the airfield with the Tower providing him with instructions as to where and when the group could move. Despite this, the group were involved in a near miss incident with an aircraft on the taxi way.
The applicant has suffered a primary psychological injury diagnosed as post-traumatic stress disorder with associated major depressive disorder as a result of the above incident on the airfield, which posed a real threat to him.
Since that time, a lack of support from his employer and his dealings with them to date, have also contributed to his ongoing psychological symptoms.”
Mr Kaye-Smith has not returned to work since 23 June 2020.
Mr Kaye-Smith claims:
i) weekly compensation payable under s 37 of the Workers Compensation Act 1987 (1987 Act) from 25 June 2021 to date and continuing, and
ii) medical and related expenses payable under s 60 of the 1987 Act particularised in the sum of $123.50.
Mr Kaye-Smith’s claim is declined and he has been issued with notices dated 3 June 2021[1], 14 September 2021[2] and 26 November 2021[3] in which he has been advised of the decision to decline his claim. In essence, BGIS relies on defence available under
[1] Application to Resolve a Dispute (ARD) at p 36.
[2] ARD at p 42.
[3] ARD at p 54.
s 11A of the 1987 Act in that BGIS says that Mr Kaye-Smith has no entitlement to compensation as the psychological injury he sustained was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of BGIS with respect to discipline. Mr Kaye-Smith’s capacity for work and need for treatment was also placed in issue.

ISSUES FOR DETERMINATION

The parties agree the following issues remains in dispute:
(a) whether the psychological injury sustained by Mr Kaye-Smith in the course of his employment with BGIS was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of BGIS with respect to discipline, and if not,
(b) whether Mr Kaye-Smith suffers an incapacity for work resulting from his psychological injury.
The parties agree it is not disputed Mr Kaye-Smith requires medical or related treatment resulting from the psychological injury he sustained in the course of his employment with BGIS, and it is not disputed Mr Kaye-Smith’s pre-injury average weekly earnings (PIAWE) are $1,800

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

Mr Kaye-Smith’s claim for compensation came before me for teleconference on 20 January 2021. Ms Kakala appeared in the interests of Mr Kaye-Smith and Mr Franco appeared in the interests of BGIS. Mr Kaye-Smith was present and Mr Mussawar, a representative of BGIS, was also present.
With Mr Kaye-Smith’s claim unresolved at teleconference, his claim came before me for conciliation conference/arbitration hearing on 10 March 2022. Mr Hickey of counsel appeared in the interests of Mr Kaye-Smith instructed by Ms Kakala. Mr Barter of counsel appeared in the interests of BGIS instructed by Mr Franco. Mr Kaye-Smith was present, as was Mr Mussawar and Mr Kumar, a representative from QBE.
Following my discussions with counsel I was satisfied on this occasion 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 used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them, and I was satisfied that the parties had sufficient opportunity to explore settlement, despite which they were unable to reach an agreed resolution of the dispute.
Relevant to the documentary evidence before the Personal Injury Commission (the Commission), at the arbitration hearing the respondent sought to rely on a number of documents to which the applicant objected and following careful review of the evidence and consideration of counsels’ submissions, while the report of Dr Bertucen dated 20 May 2021 was not admitted into evidence, the supplementary report of
Dr Young dated 18 February 2022 and the factual report dated 10 January 2022 prepared by LS Intelligence in toto were admitted into evidence.
With the admission of the supplementary report of Dr Young dated 18 February 2022 admitted into evidence, Mr Hickey made application for adjournment of the arbitration hearing so as to enable the applicant opportunity to obtain response from Dr Gertler to the supplementary report of Dr Young. Following consideration of counsels’ submissions I considered the interests of procedural fairness and proper administration of justice favoured the granting of the adjournment sought.
When the adjourned arbitration hearing came before me on 20 April 2022. Mr Hickey appeared in the interests of Mr Kaye-Smith instructed by Ms Kakala. Mr Barter appeared in the interests of BGIS instructed by Mr Franco. Mr Kaye-Smith was present, as was Mr Mussawar and Ms Toth, a representative from QBE.
Relevant to the documentary evidence before the Commission, at the adjourned hearing the respondent sought to rely on a number of further documents to which the applicant objected and following careful review of the evidence and consideration of counsels’ submissions, the documents purporting to demonstrate car travel undertaken by Mr Kaye-Smith after he ceased work with BGIS were not admitted into evidence. Reliance by BGIS on these documents purporting to demonstrate car travel undertaken by Mr Kaye-Smith after he ceased work with BGIS related to travel purportedly undertaken by Mr Kaye-Smith on 30 June 2020, 6 July 2020, 30 August 2020, 6 September 2020, 13 September 2020 and 14 September 2020 had not previously been foreshadowed despite these proceedings coming before me on 20 January 2022 and 10 March 2022 and neither was there evidence before the Commission as to how and by who the documents had been acquired. Given the general considerations of justice and fairness between the parties I did not allow these documents to be admitted into evidence.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents, save for the report of Dr Bertucen dated 20 May 2021;
(c)    Application to admit late documents dated 2 March 2022 and attached documents lodged on behalf of BGIS (RAALD);
(d)    Application to admit late documents dated 7 March 2022 and attached documents lodged on behalf of Mr Kaye-Smith (AAALD);
(e)    Application to admit late documents dated 17 March 2022 and attached documents lodged on behalf of Mr Kaye-Smith (AAALD 2), and
(f)    Application to admit late documents dated 7 April 2022 and attached documents lodged on behalf of BGIS (RAALD 2), save for documents purporting to demonstrate car travel undertaken by Mr Kaye-Smith after he ceased work with BGIS.

Oral evidence

Neither party sought to adduce oral evidence or cross examine any witnesses.

FINDINGS AND REASONS

Brief review of evidence

Statements of Mr Kaye-Smith

Mr Kaye-Smith provided two statements. The first is dated 23 July 2021[4] and the second is dated 30 November 2021[5]. In his initial statement Mr Kaye-Smith explained that on 23 June 2020 he had been requested to escort two people, who he understood to be high voltage engineers, onto the airfield. Mr Kaye-Smith drove his work van while the engineers followed in a separate vehicle. Mr Kaye-Smith explained that while he was stopped “short of taxiway Echo” in accordance with instructions provided by “the tower” he noticed that an aircraft was taxiing on the runway towards “Delta”. He said:
“This is very unusual as they usually travel on the taxiways after they land. I am assuming it did this because it was such a large aircraft and was easier for the plane to move this way. The plane was coming up the runway back towards me. I remember thinking what is this plane doing as it continued past Delta towards Echo and straight towards me. The plane was a Wedge Tail.
We were about 100 meters from the runway at that point. I am not sure of the exact distance. It is difficult to judge distances because the plane was so big. For it to turn into the taxiway, it would have come within 50m of me as I was right at the end of the taxiway. My windscreen was filled with the view of the plane. I recall trying to check if the pilot could see me as I felt that he was going to turn in on me.
I had never had this happen to me that I can recall. I may have seen it before and noticed unusual movement but it was not a normal thing that happened”.
[4] ARD at page 4.
[5] ARD at page 32.
Mr Kaye-Smith said his instinct was to move as soon as possible and he harbored concern the pilot of the aircraft could not see him because he was “so high off the ground”. Mr Kaye-Smith said he drove towards a grass area off the runway with the people in other car following him, but with “a big concrete step off” at the edge of the runway and the aircraft having coming to a standstill, Mr Kaye-Smith drove back onto the taxiway, with the other car continuing to follow him, until he reached the little road which took him towards the flying club, which was where his contact with the tower had advised him to go. Mr Kaye-Smith described himself as being in shock as to what was happening and said he felt “panicked”. He said that when he checked in with the tower again, rather than the apology he had expected because the tower had made a mistake, he was essentially admonished for not listening to instructions provided over the radio.
Mr Kaye-Smith subsequently attended a regularly scheduled safety meeting convened by telephone with his colleague Cameron Fowler sitting beside him in his van. During this meeting he noticed a call from a team leader, Richard Turner, trying to connect with him, which Mr Fowler returned for him. On enquiry, Mr Kaye-Smith told Mr Turner:
“I was at Echo and the plane was coming through Echo as well. I’ve spoken to the tower. I think a trainee was on the radio.”
Mr Turner requested Mr Kaye-Smith meet with him at the conclusion of the safety meeting, which he did. The Operations Manager, Stephen Mazic, was present at the meeting also. Mr Kaye-Smith said that when asked what had happened, he said “the tower stuffed up”. He said:
“I was still a bit shaken up and in shock. I was told it must have been traumatic. They seemed surprised as my story was different to what they had been told. Their version of events was not correct, their story was that a plane nearly landed on me. I told them to listen to the recording. I was informed by Steve Mazic that due to the seriousness of what had occurred, that I was going to be stood down and told to go home. I was told that I was being stood down on full pay whilst an investigation was going to be undertaken. I was told not to worry.”
Mr Kaye-Smith said he subsequently spoke with Mr Fowler and told him he was upset and was going home. He then spent time with both Mr Fowler and Mr Turner before heading home, both of whom reportedly told him “it would be alright”. Mr Kaye-Smith said:
“I was not worried that I had done something wrong, I was just in shock and wanted them to listen to the tower recording to get the full story.”
Mr Kaye-Smith said while driving home he started to recall the incident. He said he “felt he had a close call where he could have been seriously injured”. He said that during the evening he suffered stomach pains, vomited, could not sleep and started to feel angry. He said he consulted with Dr Javed on 24 June 2020 and was provided with a medical certificate, which he forwarded to Mr Mazic, who told him the investigation was ongoing. With his symptoms intensifying, Mr Kaye-Smith returned to Dr Javed on 26 June 2020, who provided with a workers compensation Certificate of Capacity certifying him totally incapacitated for work. Mr Kaye-Smith said he was subsequently referred for psychological counselling with Wendy Wright.
Mr Kaye-Smith said that when he contacted both Mr Turner and Mr Mazic to enquire about the investigation he was provided with no information by them. He said he was subsequently contacted by Mr Mazic regarding the return of his work vehicle, but after discussing this request with the workers compensation insurer, Mr Kaye-Smith said he declined to discuss this with Mr Mazic pending the outcome of the investigation.
Mr Kaye-Smith said that sometime later a person from HR telephoned him about the return of his work vehicle and while Mr Kaye-Smith initially provided him with the same response he had provided to Mr Mazic, he subsequently “just folded” and said he would return his vehicle.
The return of Mr Kaye-Smith’s vehicle proved problematic as he had been told not to attend any BGIS site and ultimately Mr Kaye-Smith’s solicitor wrote to HR advising of arrangement for the return of the vehicle at Ford at Windsor as Mr Kaye-Smith had been contacted by Ford regarding recalls, service and repair. Mr Kaye-Smith subsequently received an email from HR notifying him that he had abandoned his vehicle and was required to attend a show cause meeting “as to why I should not lose my employment”. However, with the involvement of Safe Work NSW, this was reportedly not taken any further.
As at the time of making his statement, Mr Kaye-Smith had not been notified of the investigation into the incident. Mr Kaye-Smith confirmed he remained under the care of Ms Wright, had come under the psychiatric care of Dr Naaz and was prescribed antidepressant medication. He said:
“I want to try and get better and move on with my life but I am still too depressed and upset.”
In his subsequent statement dated 30 November 2021, Mr Kaye-Smith said that on 23 June 2020 he had been “placed in harm’s way, when I thought that a plane was going to crash into my work van while I was on an airfield runway”. He said he “panicked and took steps to move out of the way”, was subsequently told “it was a serious incident that needed to be investigated” and was told he was stood down with pay pending investigation. Mr Kaye-Smith confirmed he felt really anxious and distressed on his way home that day, couldn’t sleep that night and consulted with his general practitioner the following day. Mr Kaye-Smith confirmed that despite enquiry as to the investigation, he “never heard anything back”. Mr Kaye-Smith spoke of the unpleasant situation which had arisen with BGIS regarding the return of his vehicle “while also having no clear communication from them about the so-called investigation that they were carrying out”. Without the clarity he sought, Mr Kaye-Smith said his mental health deteriorated and he accepted his mental health had deteriorated significantly since he ceased work on 23 June 2020.

Email correspondence relevant to the investigation into the incident occurring on 23 June 2020

In email correspondence dated 24 June 2020 Rachel Smith HSEQ Co-Ordinator with BGIS wrote:
“I have been investigating the incident that occurred yesterday on the airfield at Richmond.
Technician Involved: John Kaye-Smith (JKS) – call sign on recording Work Party 3
Technician was asked to escort the BGIS critical environment team as a favour. They required an Airfield escort. There was two vehicles.
Data was collected from listening to the radio recording and an eye witness statement.
Data from the radio recording
Air Traffic Controller heard questioning Work Party as to what they were doing on Taxiway Zulu
Work Party 3 informed them of completing an inspection
Work Party 3 requested to move to Holding Point Echo
Air Traffic Controller Approved
Work Party 3 told to hold at Holding Point Echo by Air Traffic Controller
66
Aeroplane was conducting an engine check down the runway so moving slowly at the end of runway to make turn into holding point echo
Work Party 3 was instructed to move to Flying Club Hold Point from Holding Point Echo Work Party 3 acknowledged
Aeroplane / Work Party 3 and Air Traffic Controller all spoke at the same time
Air Traffic Controller yelled at the Work Party 3 to vacate the runway immediately Work Party 3 continued to the end of the runway then across the grass to the Flying Club
Aeroplane moved through Holding Point Echo and onto Taxiway Zulu
Eye Witness FLGOFF Stephanie Wilkes
Confirmed all of the above and added
Vehicle was seen to be at holding point echo and I heard the call for them to move but then instead of performing a U-turn at the holding Point Echo, the technician drove onto the runway in front of the aeroplane (distance from aeroplane unclear because of distance from Air Traffic Control Tower)
Cameras were down on the airfield at the time of the incident so could not watch the footage.
This has been logged in Sentinel as an Aviation Safety Report (ASR). This does not get reported to the regulator.
…
I have attached a mock-up of the area so you can see what I have described above.
…
[Image unable to replicate].”
In an email dated 4 February 2021, Base Aviation Safety Officer, Flight Lieutenant Christopher Ruse, relevantly included what he described as “the written sequence of events from the Aviation Safety Report”:
“On the day of the incident, Works 3 was escorting a subcontractor to inspect the non-tangible transformers to runway 28/10.
1238h AEST - Works 3 and the subcontractor’s vehicle (Works 3 & Co) entered TWY Z from Fire Section and proceeded west towards TWY E.
Concurrently, the BBJ landed on RWY 28 and began rolling through to exit the runway at TWY E. 1239h – Traveling on TWY Z abeam the BBJ, Works 3 requested to enter RWY 28 at TWY E. Concurrently, abeam TWY D, the BBJ was had slowed to taxi speed.
The surface movement controller (SMC) instructed Works 3 to hold short of RWY 28. Works 3 acknowledged with ‘Works 3’ and read back the hold short instruction.
To deconflict the BBJ and Works 3, the TSPR instructed the SMC to vacate Works 3 onto the FC TWY. The SMC then instructed Works 3 to vacate TWY E onto the FC TWY.
Works 3 acknowledged the instruction with ‘Works 3’ but did not read back the Instruction.
1240h – Works 3 & Co then proceeded straight ahead on TWY E, entering RWY 28 in front of the BBJ, which had stopped rolling and was holding in proximity to the departure end of RWY 28.
The SMC instructed Works 3 to vacate RWY 28 onto the FC TWY.
Works 3 & Co turned right onto the grassed RESA to vacate RWY 28, and proceeded across the grass to the FC TWY. The TSPR instructed the SMC to tell Works 3 to ring the TWR phone.
Upon Works 3 calling the TWR, the TSPR asked Work 3 for an explanation of his actions. Works 3 said he was ‘confused by the presence of the large aircraft’.
The TSPR reported the incident to the BASO, who cancelled the contractor’s airside access and reported the incident to the contractor’s organisation.”

Factual report

LS Intelligence prepared a factual report dated 10 January 2022[6]. The investigator provided a summary of key findings, which included:
“The Worker commenced his employment in August 2019 and his duties included escorting other persons onto that part of the Air Base that included runways and taxiways for the purposes of performing required work.
On 23 June 2020 the Worker escorted two employees of BGIS Pty Ltd who were carrying out work associated with the lighting facilities of the Air Base. The Worker drove a vehicle owned by the employer and the two BGIS Pty Ltd employees followed the Worker at all times in a separate car.
During the course of inspecting the lighting facilities the Worker drove his vehicle onto and across a runway at the same time that a large plane was on the runway.
The Worker claimed at all times including crossing the runway he was acting in accordance with the directions given by the Control Tower. The Defence personnel who were working in the Control Tower claim that the Worker ignored or failed to comply with their directions.
The crossing of the runway in those circumstances was classified as an airside incident and an inquiry was opened by the Employer. The Worker was in accordance with the policy of the Employer stood down on full pay pending the outcome of the investigation.
The day following the airside incident the Worker provided a medical certificate claiming that the airside incident caused him stress and anxiety to an extent that he was not fit for work”.
[6] RAALD at page 3.
The investigator relevantly confirmed that during the course of his enquiries he was able to ascertain that the investigation into the airside incident had not been completed and despite an extensive search a copy of the incomplete investigation could not be located. The investigator also relevantly indicated the information made available to him demonstrated there was not any risk of a collision between the aircraft and
Mr Kaye-Smith’s van and Mr Kaye-Smith did not say at any time on 23 June 2020 he believed there was risk of his van colliding with the plane.
However the investigator also confirmed:
“We have not been able to:
a)     Interview Rachel Smith who led the investigation into the airside incident because she has left the employ of the Employer and despite enquires was unable to be located.
b)     Interview the Defence personnel who were working in the Control Tower because permission has not been provided.
c)     Interview the Defence personnel who comprised the flight crew on the plane involved in the airside incident because permission has not been provided.
d)     View CCTV footage of the airside incident because the CCTV cameras were not turned on.
e)     Listen to audio of the communications between the Control Tower and the Worker or view a transcript of the entire communications between the Control Tower and the Worker because the tapes used to record the communications were erased and used again to record subsequent unrelated communications.”
While the investigator was not able to interview Defence personnel, he included completed questionnaires from Flying Officer Stephanie Wilkie and Flight Lieutenant Ruse. He did not include completed questionnaire from Aviation Safety Officer,
Peter Greaves, despite having requested one.
In response to specific questioning Flight Officer Wilkie confirmed she was employed with Defence working as an Air Traffic Controller. She said the aircraft involved in the incident occurring on 23 June 2020 was not a “Wedge Tail” but rather was either a B737 or a FA7X. She said the aircraft had “just landed and came to a stop on the runway”. She recalled the aircraft being on the western half of the runway and recalled that while Mr Kaye-Smith’s van was initially operating on an adjacent taxiway, it entered the runway at the western end and then drove away from the aircraft to exit onto the grass at the end of the runway. Flying Officer Wilkie said the van had been instructed by the tower to “hold short” of the runway and vacate onto the “Flying Club” taxiway, being a taxiway connected to the taxiway the van was on. She said the van did not comply with the orders issued by the tower. While Ms Wilkie said she did not recall the distance which separated the aircraft and the van, she said she did not believe there was a risk of collision between the van and the aircraft.
In response to specific questioning, Flight Lieutenant Ruse confirmed he was employed by Defence working as the Base Aviation Safety Officer. He said he was the person responsible for raising the relevant Aviation Safety Report and conducting an investigation into the incident. As did Flying Officer Wilkie, Flight Lieutenant Ruse confirmed the aircraft involved in the incident was not a “Wedge Tail” but rather was a Boeing 737-BBJ. Flight Lieutenant Ruse said he had not been able to speak with
Mr Kaye-Smith about the incident as he had been advised by BGIS that
Mr Kaye-Smith was not contactable. He said:
“At no time was I afforded the opportunity to interview the member, which limited our investigation into the incident.”

Statement of Lachlan Russell

Mr Russell provided two statements. The first in time is dated 13 July 2020[7] and the second is dated 11 November 2021[8]. Mr Russell is employed with BGIS in the role of HR Coordinator.
[7] Reply at page 6.
[8] RAALD at page 1.
In his initial statement Mr Russell confirmed he was aware of the incident occurring on 23 June 2020 and said it was investigated by Ms Smith in her capacity as Health Safety Environment Quality Coordinator with BGIS. He confirmed Mr Kaye-Smith had not been spoken to about the incident as BGIS had been in receipt of medical certificates in which Mr Kaye-Smith had been certified as totally unfit for work. He confirmed Mr Kaye-Smith had not returned to work since the day of the incident.
In his subsequent statement Mr Russell said he was aware an investigation report had been prepared by Ms Smith, and while he had not received a copy of the report he had been made aware of its contents by Ms Smith. He said it was subsequently determined “the course of action that needed to be taken” and it was his recollection that Mr Kaye-Smith was to be given a written warning notice.
Mr Russell accepted that despite a thorough search of his office, a copy of the investigation report has not been located. He said Ms Smith was made redundant as part of a restructure occurring approximately two to three months after the incident.
Mr Russell said:
“I am not aware of any complaint being made in relation to the actions of the Worker as a result of the incident. There was only the formal investigation.
The Worker was not suspended in the sense of disciplinary action. He was suspended on full pay pending the outcome of the formal investigation. That is standard Company practice.
…
At some stage after the Worker made his workers compensation claim, the Worker was given notice of a Show Cause meeting. This meeting was called because of the aggressive and defensive behavior of the Worker and his ongoing use of the Company motor vehicle. The meeting was held but the Worker did not attend.”

Statement of Rachel Smith

Ms Smith provided a statement dated 13 July 2020[9]. Relevant to the incident occurring on 23 June 2020, Ms Smith said:
[9] Reply at page 6.
“On the 23 June 2020 in the afternoon, I was made aware of an Incident involving John Kaye-Smith at Richmond Airfield. I was made aware of this incident in the BGISTS Health and Safety Committee Meeting on 23 June 2020. An Incident Report Number is recorded as 10649.
As a result of this information I commenced an investigation the following day 24 June 2020 at 8am. I obtained data from a recording and interviewed Flying Officer Stephanie Wilkes, Joel Van Gunst, Christopher Ruse and Peter Greaves from Royal Australian Airforce (RAAF).
On 23^rd June 2020 John Kaye-Smith was asked to escort the BGIS Critical Environment team as a favour for BGIS. They required an airfield escort.
…
On 24^th June 2020, I commenced the investigation into the incident involving John Kaye-Smith. As part of the investigation I listened to the recording data from the Richmond RAAF Airfield Tower. The audio recording showed that the Air Traffic Controller asked John Kaye-Smith what they were doing on Taxi Way Zulu. John Kaye-Smith informed them they were completing an inspection. John Kaye-Smith requested to move to Holding Point Echo. The Air Traffic Controller approved the request. John Kaye-Smith was told by the Air Traffic Controller to hold at Holding Point Echo. John Kaye-Smith was told that an aircraft was conducting an engine check down the runway and was moving slowly at the end of runway to make a turn into Holding Point Echo. John Kaye-Smith was told by the Air Traffic Controller to move to Flying Club Hold Point. John Kaye-Smith acknowledged. The Pilot, the Air Traffic Controller and John Kaye-Smith all spoke at the same time as John Kaye-Smith had entered the runway. The Air Traffic Controller yelled at John Kaye-Smith to vacate the runway immediately. John Kaye-Smith continued to the end of the runway then across the grass to the Flying Club. The aircraft moved through Holding Point Echo and onto Taxiway Zulu.
Flying Officer Stephanie Wilkes stated that she witnessed John Kaye-Smith’s vehicle holding at Holding Point Echo and heard the call for them to move but then instead of performing a U-Turn at Holding Point Echo, John Kaye-Smith drove onto the runway in front of the aircraft. The distance the vehicle got to the aircraft was unclear from her viewpoint.
There was no CCTV of the incident.
The incident was logged with Sentinel (The Department of Defence incident management system) as an Aviation Safety Report (ASR). This does not get reported to the regulator.
…
I did not have the opportunity of speaking to John Kaye-Smith as on the 24 June 2020 at 1308h he provided a Medical Certificate citing he was unfit for work with a text message stating, “I’m removing myself from the situation” to his Regional Manager, Steven Mazic. This was forwarded to me at 1400h which was discussed immediately with Mel Olennick, BGISTS HSEQ Manager.
Mel Olennick received advice from HR that we were not to interview
John Kaye-Smith until he was cleared to fit to work.
On 25^th June 2020, Mel Olennick and I spoke to BGISTS HR. It was agreed that John Kaye-Smith could not be interviewed as a result of his Medical Certificate that stated he was unfit for work due to a medical condition. His medical certificate stated that he was unfit until 27^th June 2020. It was agreed that on his return to work John Kaye-Smith would be interviewed by myself to complete the investigation. …”

Statement of Gary Beddall

Mr Beddall provided two statements. The first in time is dated 12 February 2021[10] and the second is dated 15 February 2022[11]. Mr Beddall is employed by BGIS, working as a construction manager.
[10] Reply at page 32.
[11] RAALD at page 259.
In his initial statement Mr Beddall explained that on 23 June 2020, accompanied by an electrical engineer, Colin Binfield, he followed Mr Kaye-Smith onto the airfield.
Mr Kaye-Smith was escorting them. He said that while they were working in a particular area Mr Kaye-Smith advised them they were required to move “as there was a plane coming”. Mr Beddall described a sequence of events which ultimately saw him noticing an aircraft on a runway while he was parked directly behind Mr Kaye-Smith. He described the aircraft as being “stationery facing west about 300 meters down the runway”. He said:
“I had the windows up and did not hear it land and the first I knew it was there was when we turned left and I saw it. It was not until I got out of the car that
I heard the plane. I was startled that I did not hear the plane until I got out of the car.”
When subsequently working with Mr Binfield at a switch board, Mr Beddall said he noticed Mr Kaye-Smith was seated in his vehicle and talking on his radio, although he could not hear the conversation. Mr Beddall said:
“That conversation seemed quite in depth rather than just taking an instruction and responding. John appeared to be agitated and it appeared to me he was having a deeper discussion that seemed out of the ordinary compared to how he used the radio prior.
We got back into our vehicle and we followed John north along the grass and joined the sealed section taxiway that leads to the aero club. We turned right and drove along the main taxi way and exited through the gate to our left beside air traffic control.
While driving I said to Colin ‘I think John’s got himself into a bit of trouble’.
We went through the gate and John came over and did another check around the car. He then came to my open car window. I asked if everything was OK. He said there had been a differing of opinion of what had unfolded on the runway. He appeared a bit flustered. There had definitely been a mood change. He did not explain any more than that.
…
John did not share with me what had happened when we were with him. I could tell something had gone down due to the manner in which he had been using the radio at the western end of the runway but I was totally ignorant what the reason was.”
In his subsequent statement Mr Beddall provided an estimate as to when he first saw the aircraft on the runway. He estimated it was 200 to 300 m away from his vehicle. He said he did not at any time think there was any inherent danger or risk of a collision with the aircraft. He also said:
“I estimate that we were in the presence of Mr Kaye-Smith for approximately 20 minutes after I saw the plane on the runway. During that time Mr Kaye-Smith never alluded to any possibility of a collision and there was nothing about his behavior or demeanor which suggested that he thought there was risk of collision.”

Statement of Mr Binfield

Mr Binfield provided a statement dated 4 February 2021[12]. Mr Binfield is employed with BGIS, working as an electrical engineer. Mr Binfield confirmed that on 23 June 2020 he was working with Mr Beddall and were escorted onto the airfield by Mr Kaye-Smith. As regards the aircraft on the runway, Mr Binfield said:
[12] Reply at page 28.
“While we walked back to the cars I could see a plane in the sky approaching from the west. I would think that plane was a good 5 minutes before it was due to land by the distance it was away.
I have spent a lot of working time around airports and travelled a lot so I feel I have a good grasp of plane movements.
Once we returned to the cars John was definitely using the communication device. I could not make out what was being said but it became apparent he was talking to Air Traffic Control.
John did not say anything to Gary and I that suggested a sense of urgency…
…
John stopped and so did we. I turned to the left and saw a stationery plane on the runway diagonally across and slightly behind us at least 150 meters away…
I did not see the plane approaching from behind it was not in my field of vision.
…
It was not a hot day so our car windows were wound up. I did not hear the plane approaching from behind. The first I realized there was plane on the runway was a visual one. The plane was definitely not so loud that we would have been unable to talk in the car. Once we got out of the car we could certainly hear it.
Gary and I got out of the car and John walked with us in a group approximately 150 meters to the next distribution board that was located at the western end of the runway. We took about 10 minutes taking photos and notes. I noticed John at this stage was on his radio or whatever it was.
While at the board Gary made some comment about there having been an issue with the plane landing. John did not say anything to me about there being an issue. I was aware that John was talking with Gary.
I was aware something was bothering John with the expression on his face. He looked concerned. It was a look he had not had prior…”

Statement of Mr Mazic

Mr Mazic provided two statements. The first in time is dated 25 August 2020[13] and the second is dated 17 December 2021[14]. Mr Mazic is employed by BGIS, working in the role of NSW Operations Manager. Relevant to the incident occurring on 23 June 2020 Mr Mazic said in his initial statement:
“On the 23 June 2020 I became aware of John being involved in an air side incident. I have been led to believe he tried to deal with the incident on his own and initially did not notify management of the incident. A meeting was held between myself, John and Richard Turner. I explained to him that it is procedure when an air side incident occurs that he was being stood down until a thorough in depth investigation could be done. I told him once this was done he would have an opportunity to come in and tell us his side of the story regarding the air side incident. He asked what could occur and I said, “It could be several things. It could be an apology from defence, it could be retraining or it could lead to disciplinary action.” John was fine with this and said he had done nothing wrong. John left work”. Mr Mazic confirmed the airfield incident was investigated by
[13] Reply at page 13.
[14] Reply at page 43.
Ms Smith and noted “she has since had her employment terminated.”
In his subsequent statement, Mr Mazic said that during the course of his meeting with Mr Kaye-Smith, Mr Kaye-Smith never said he was afraid or frightened that there was going to be a collision between his vehicle and the plane. His only apparent concern was “to make sure that everybody understood that he was not at fault”.

Statement of Mr Turner

Mr Turner has provided a statement dated 17 December 2021[15]. Mr Turner is employed by BGIS, working as an Electrical Team Leader. Mr Turner said he first became aware of the incident occurring on 23 June 2020 approximately one hour after it occurred when he received a telephone call from Peter Greaves, Aviation Safety Officer. When Mr Turner spoke with Mr Kaye-Smith a short time later, Mr Kaye-Smith told him he was at Holding Echo Point with an aircraft coming through Holding Echo Point as well and he had spoken to the tower. Of the subsequent meeting with
Mr Mazic and Mr Kaye-Smith that same afternoon, Mr Turner said:
“The Worker said that he was following the orders of the Control Tower. He criticized the Control Tower for putting him in the position he found himself in. He also said that the Control Tower swore on the radio, which he said they should not do.
The meeting lasted no more than thirty minutes and the Worker was at all times calm. He was not argumentative and he was not “aggro at Steven or I”. The Worker kept saying that he was not at fault and the Control Tower was responsible.”

Statement of Mr Fowler
[15] Reply at page 35.

Mr Fowler has provided a statement dated 17 December 2021[16]. Mr Fowler is employed by BGIS, working as a Fire Portables Technician. He described
Mr Kaye-Smith as “an average Joe”. He described him as “a friendly happy go lucky person”. Of the incident occurring on 23 June 2020, Mr Fowler said that during a regular safety meeting conducted by telephone during which he was sitting with
Mr Kaye-Smith, Ms Smith said “she had been told that someone had driven in front of an aircraft” and Mr Kaye-Smith said to him “something about the plane driving in front of the car”. Mr Fowler also said that during the later discussion with Mr Kaye-Smith and Mr Turner:
“The Worker appeared to be a little concerned as if he had done something wrong. I recall the Worker saying that he had to do a U Turn to move his position. He also said that he was not at fault and he had followed instructions from the Control Tower.”

Statement Julianne Kaye-Smith
[16] Reply at page 45.

Ms Kaye-Smith provided a statement dated 4 March 2022[17]. Ms Kaye-Smith is the sister of Mr Kaye-Smith. Of the incident occurring on 23 June 2020, she said:
“On 23 June 2020 the day of John’s workplace injury I received a call from him. He presented as upset and highly anxious, talking fast in a shaky voice. John said, ‘I was nearly killed today’. When I asked what had happened, he stated ‘a plane had come straight at me and had I not veered off a taxiway, I would have been dead’. When I asked if he was ok he repeated himself and said ‘I could have died today’.”
[17] AAALD at page 2

Ms Kaye-Smith explained that following the death of their mother on 26 January 2020, the siblings inherited their mother’s home and while agreement was reached the home would be sold, after the incident occurring on 23 June 2020 Mr Kaye-Smith was no longer able to assist with the repairs and general maintenance required to prepare the home for sale. Ms Kaye-Smith also explained agreement was reached that as
Mr Kaye-Smith was unable “to do anything” he would pay for parts and delivery, and authorize for Ms Kaye-Smith’s partner, who along with tradesmen was undertaking work, to pick up the required items. She said:
“On many occasions when John was unable to leave his home due to his anxiety levels, he would give me his credit card and I would accompany my partner to the supply store to purchase the items needed”.
Ms Kaye-Smith also explained that when their mother’s house was ready for sale she organized the sale and was the primary contact for the sale as Mr Kaye-Smith was “incapacitated due to his workplace injury.”

Treating medical evidence

Dr Javed

Dr Javed is Mr Kaye-Smith’s treating general practitioner and his clinical records as at 30 March 2021 are in evidence before the Commission[18]. In response to specific questioning on 8 July 2020[19] Dr Javed confirmed the incident occurring on 23 June 2020, which resulted in Mr Kaye-Smith being stood down pending investigation “was traumatic for him as according to him he was doing his job”.
[18] ARD commencing at page 350.
[19] ARD at page 196.
In his report dated 22 September 2021[20] Dr Javed confirmed Mr Kaye-Smith first consulted him in respect of his psychological injury 24 June 2020. He provided a history of injury:
“The history was that he was working at the RAAF airport. He was in a van when a plane was landing. He was very close to it and it was a dangerous situation. He was in the way of a landing aeroplane and John was under the impression that it was the air controller’s mistake who allowed the aeroplane to land so close to John Kaye-Smith. As a consequence of being very nearly hit by an aircraft, John was obviously very distressed and very upset. He was also very anxious because work did not believe that the aircraft controller was at fault. John was stood down and an investigation started.
John has been a hard working employee with the RAAF as an Electrician. He could not face being unemployed and investigated for something that he believed he did not do. He became very anxious and started developing all the symptoms of anxiety and plunged into a deep state of depression. I have been seeing John on a regular basis, weekly, fortnightly and monthly since then and
[20] ARD at page 170.
I have not seen any improvement in his condition. He is particularly worried about the bullying nature of management.”
Dr Javed provided diagnosis of acute anxiety state, depression and adjustment disorder. As at the date of writing, Dr Javed considered Mr Kaye-Smith was totally incapacitated for work. Regarding prognosis, Dr Javed wrote:
“His future capacity for working will depend on the success of treatment and
I believe delay in the resolution of his issues has worsened the prognosis.”

Wendy Wright

Ms Wright is Mr Kaye-Smith’s treating psychologist and her clinical records as at 1 October 2010 are in evidence before the Commission[21]. Ms Wright provided a report dated 15 September 2021[22] in which she confirmed Mr Kaye-Smith first consulted with her on 14 July 2020. She provided a history of injury:
"As the inspection was underway Mr Kaye-Smith says he saw a large jet approaching and informed the engineers to hurry. As they were completing the inspection, he reports receiving a radio call from the tower to vacate the runway and they vacated via the AIpha taxiway. He states he made a radio caII to the tower reporting vacating the runway with intentions where to proceed. He reports it was not a 'regular 'person on the other end of the radio and requested travelling to the other end of the runway to inspect another transformer regarding the engineer's request. He also reports that at this time the persons in the tower should have been able to visually see the location of the two vehicles. At this point the conversation from the tower was 'clipped'. While waiting near taxiway Echo and informing the engineers to wait, it was then he reports a plane taxiing on the runway which he states is very unusual as they usually travel on the taxiways post-landing and he recalls it was a very large Wedge Tail plane. He reports the plane was travelling up the runway towards him. He and the engineers were, at this point, 100 metres from the runway. For this plane to turn in to the taxiway he states it would have had to do so within 50 metres of the end of the runway. He states his whole vehicle windscreen was filled with the visual of the plane and he was concerned that the pilot could not see him. He reaIised/reaIises this was a dangerous situation and took the most evasive/expedient action. He says he realised he would need to drive to a grassy area off the runway at which point he realised the plane had halted but the engines were still very loud. Off the runway was a large concrete step that it was impossible to safely drive over. He states that it was his responsibility was to remove himself from danger. He says he then veered back to the taxiway to vacate at the end of the runway. At this point it is reported that another voice came on the radio and requested what he was doing. Mr Kaye-Smith then says he heard ‘go the Flying Club’. He states that it was Peter and it should be noted that the directions had changed between the voice changes. Mr. Kaye-Smith said he realised he was in shock. He says he reaIised the hand-held radio had slid from the seat to the passenger floor. He states it was very difficult to hear the tower on the radio due to the jet's engines. Also Mr. Kaye-Smith said the person, in the tower, using the radio was shouting and this has the result of garbling the message. He says he was now instructed to ‘go to the flying club’. He states he was then instructed to caII the tower. He also adds that he was shaking, and his legs were trembling. He says he believes the tower operator made a mistake. He called the tower expecting and explanation/apology but instead he received criticism and reports he countered this with what he was told by the tower. There was also mentioned that there were trainees in the tower and Mr Kaye-Smith strongly suspects that the first order from the tower was a trainee and the airfield commands were not carried out correctly. The next order from the tower was to vacate at a site that it is not possible to vacate from. Mr Kaye-Smith reports that there had been long-standing issues with the hand-held radios.
At the following safety meeting comments such as "He's sacked now" were said sotto voice. Mr Kaye-Smith said this made him feel more stressed. Mr. Turner was called, and he was informed that it sounded like a trainee at the tower. He was instructed to see Mr Tuner after the meeting. He says he complied, and
Mr Mazic was there. He was asked what had happened and he reports he told them "The tower stuffed up". He says the reply was "That must have been traumatic". He says that their story was different to what they had been told. He says he instructed them to listen to the recording. Mr Kaye-Smith reports that
[21] ARD commencing at page 173.
[22] ARD at page 174.
Mr Mazic told him he was to be stood down and sent home on full pay awaiting an investigation due to "the seriousness of what had occurred" and not to worry, he wasn't in trouble, and he could return after the investigation. He reports feeling as though he was having a panic attack. He also states he was having panic symptoms when he met up with Mr Fowler. He reports that when he was driving home, he thought he could have been seriously injured at the base.”
Ms Walker described Mr Kaye-Smith as being symptomatic for depression and
post-traumatic stress disorder (PTSD). As at the date of writing Ms Walker considered Mr Kaye-Smith was totally incapacitated for work.
Ms Walker’s clinical notes of 14 July 2020[23] are consistent with her reporting above.

Dr Naaz
[23] ARD at page 305.

Dr Naaz is Mr Kaye-Smith’s treating psychiatrist and her clinical records as at 27 August 2021[24] are in evidence before the Commission. In her initial short report dated 8 October 2020[25] Dr Naaz confirmed Mr Kaye-Smith initially consulted with her on 10 September 2020 and in her “detailed psychiatric report” dated 26 August 2021[26] she provided a history of injury:
“On the date of the incident in July 2020 John reported there was an incident on the airfield at the RAAF base. He reported it was 1:30pm when he got permission to go in the airfield. Whilst he was waiting on the airfield in a car, an aircraft taxied on the runway and started coming straight towards him. In his words "it turned on to me". He reported that he started driving off the runway, got on to the. grass and out of the way of the aircraft. He reported be could hear on the radio people swearing ''what the f***k is he doing". He reported he got a radio call to call the tower and he rang them. He reported he was abused on the radio for driving on the runway. He reported that the flight controller Peter was abusing him and was implying that he was ‘to sit in the car and expect the aircraft to hit him’. John reported he was all along thinking that he wanted to get off the airfield to safety. This was soon followed by a safety meeting whereby the consensus was that somebody had drove on the airfield (which was him). He reported ‘I was waiting in the car, I could have been hit’. He reported he started getting radio calls, particularly from Cameron who was his supervisor. He went and saw his team leader and was informed it was a serious matter, and so was stood down pending an investigation. He was asked to go home.
John reported being upset as to why he was blamed for no fault of his. He reported he drove home from work. On his way home he reported a truck swerved in front of him and he thought ‘another near miss’. ‘Everything big was hitting me'’. John reported he couldn't sleep that night, was very snappy the following day and was scared at the thought of driving. He went to see his GP
[24] ARD at page 164.
[25] ARD at page 199.
[26] ARD at page 201.
Dr Javed, who gave him a sick day. John reported he couldn’t sleep for the following few days, was tired, reportedly exhausted and had significant nightmares. He went to see his General Practitioner, Dr Javed, again two days later and was prescribed Valium. This is when he was recommended to go on Workers Compensation.”
Dr Naaz provided diagnosis of chronic adjustment disorder with increased anxiety and depressed mood. At the time of writing Dr Naaz considered Mr Kaye-Smith had no capacity for work.

Independent medical evidence
Dr Young

Mr Kaye-Smith was initially psychiatrically assessed on 28 July 2020 by Dr Young in his capacity as independent medical examiner. Dr Young provided a report dated 29 July 2020[27]. Dr Young recorded the circumstances of injury:
“Mr Kaye-smith described the initial incident in which he was stopped on the runway at Richmond Air Force Base when a large 737 sized aircraft taxied towards him. He said that he was surprised by this and expected that the aircraft would not advance further, but as it approached closer he was required to take evasive action stating when the aircraft was perhaps about 7 meters from his vehicle. He described feeling shaken by the incident and experiencing acute anxiety symptoms with increased heart rate and respiration. He said that he felt distracted and confused and had difficulty communicating on the radio. He reported that he continued to feel disturbed for some time by the incident, in particular when discussing with other staff who criticized him for his behaviour. He said he felt distressed that he was stood down following the incident, but at the time thought that the investigation will clear him of any wrongdoing.
He said on the way to home from work he felt highly anxious while driving and there was an incident in which he experienced panic symptoms when a semitrailer approached close to his car. He said that immediately in the days following the incident he experienced recurrent intrusive thoughts about it replaying in his mind as well as disturbing dreams. These have improved over time and had been replaced by a feeling of irritability and anger particularly towards those who he believes have treated him unfairly. He said that he has continued to experience anxiety when around large vehicles, when planes fly overhead or when he drives near his workplace.”
[27] Reply at page 55.
Following interview and mental state examination Dr Young recorded:
“Mr Kaye-Smith reports experiencing traumatic stress and subsequent acute stress symptoms. There appear to be improving over time but have been perpetuated by secondary stressors related to his perceived unfair treatment in the investigation and followup from the incident.
Mr Kaye-Smith appears to be benefitting from psychological treatment and this should continue.
I believe that it would be reasonable at present to diagnose him with acute stress disorder or alternatively adjustment disorder.
If his symptoms continue, then he is at risk of developing posttraumatic stress disorder.”
In response to specific questioning, Dr Young provided diagnosis in terms of acute stress disorder with caution Mr Kaye-Smith was at risk of PTSD. He considered
Mr Kaye-Smith’s employment with BGIS was a substantial contributing factor to injury and relevant to the issue of causation Dr Young said:
“As described by Mr Kaye-Smith, he has experienced some post-traumatic stress symptoms in relation to the near-miss incident itself as well as further general anxiety and stress symptoms in relation to the perceived unsatisfactory follow up following the event.”
Dr Young considered Mr Kaye-Smith “has capability to undertake retraining” and while he considered Mr Kaye-Smith had a good prognosis for returning to his pre-injury duties, Dr Young noted “difficulty exists with his current employer and resolution of the outstanding issues and trust between himself and his employer”. Dr Young considered Mr Kaye-Smith would benefit from further psychological treatment.
In his supplementary report dated 8 September 2020[28], in response to specific questioning about the initial statement provided by Mr Mazic, Dr Young said:
“According to the history reported to me by Mr Kaye-Smith he felt a degree of shock and confusion following the incident.
Mr Kaye-Smith said that he at the time did not anticipate an adverse outcome from an investigation because he was confident that he had not done anything wrong, but he was worried that he would be blamed and scapegoated.
He reported experiencing typical acute traumatic stress symptoms while driving home and being exposed to large vehicles on the road.
He said that he later experienced further distress because he believed the investigation was conducted improperly, that evidence establishing that he was not to blame had been withheld and that he was scapegoated.
Therefore, the interaction with Mr Mazic itself alone cannot be considered the whole and predominant cause of his condition.”
[28] Reply at page 63.
In his supplementary report dated 23 April 2021[29] Dr Young wrote:
“I note that the circumstances of the incident described are disputed, if you are asking me to assume that Mr Kaye-Smith is lying about the circumstances of the incident then I would view his entire account, including his reported symptoms and their effects as unreliable.
If this were the case, then I would conclude that Mr Kaye-Smith does not have a psychological injury as claimed but is malingering.
However, I am unable to adjudicate as to which version of events is correct. As per my previous report, Mr Kaye-Smith alleges that his employer is engaged in a “cover-up” in relation to non-compliance with aircraft regulations.
With regard to the veracity of symptoms claimed, there is no way to confirm this in the absence of objective material such as from surveillance, evidence from online behaviour and/or financial records, and in particular detailed objective psychometric testing.”
[29] Reply at page 65.
Mr Kaye-Smith was reassessed by Dr Young on 11 November 2021. Dr Young provided a report dated 15 November 2021[30]. Dr Young noted that since he last assessed Mr Kaye-Smith, Mr Kaye-Smith had not returned to work. He noted too that Mr Kaye-Smith had come under the psychological care of Ms Wright and psychiatric care of Dr Naaz and had “trialled several different anti-depressant medications”, none of which had been effective in improving his symptoms. Mr Kaye-Smith described his mood having deteriorated with his claim for compensation having been disputed. Following interview and mental state examination on this occasion, Dr Young recorded:
“Mr Kaye-Smith presents reporting having experienced increasing depressive symptoms since the previous assessment in July 2020. This occurred on the background of traumatic event exposure (near miss airfield incident) and of ongoing stress in relation to the claims process and what he perceives as being unfair and unreasonable treatment by his employer.
The description of his current symptoms meets Criteria for Major Depressive Disorder which appears to have resulted from the prolongation of stress in relation to his case.”
[30] Reply at page 67.
In response to specific questioning, Dr Young provided diagnosis as major depressive disorder and relevant to the issue of causation Dr Young said:
“According to the history so described, employment events causally contributed to the development of this condition. As described in the previous report, initial stress of a near-miss has been compounded by the subsequent actions of his employer in relation to the disciplinary actions and the management of his current claim.”
Further specific questioning about the application of defence raised under s 11A(1) of the 1987 Act in the circumstances of this particular matter included comment:
“In terms of discipline, the evidence indicates the worker was escorting engineers on the airfield on 23 June 2020, when he ignored a direct instruction from the air traffic controller. Further, the evidence of the other witnesses is that he drove straight in the path of the plane despite being directed to immediately vacate the runway. Moreover, the evidence indicates the plane was several hundred metres away, not close as the worker claims.
It is common ground that, following the incident, the worker was notified of his suspension on pay and an investigation was instigated. He went home and saw his GP the next day, before submitting a claim for workers compensation several days later.”
In response to such questioning, Dr Young provided opinion Mr Kaye-Smith’s current psychological condition could be considered as “wholly and predominantly” caused by the employer action with respect to discipline.
Dr Young provided opinion Mr Kaye-Smith continued to require ongoing psychological and psychiatric treatment. He also provided opinion Mr Kaye-Smith had had no capacity for work since he ceased working with BGIS and remained that way. He said:
“Prospects for him to return to work on the open labour market currently are minimal at present but may be improved over time were he to be engaged in appropriate rehabilitation program.”
In his supplementary report dated 24 February 2022[31], in response to specific questioning following review of Dr Gertler’s report dated 29 October 2021[32], request for particulars[33], response to request for particulars[34] and financial records of
Mr Kaye-Smith, Dr Young accepted Mr Kaye-Smith had omitted to tell him about any involvement he had “in activities concerning the renovation, repair and improvement, and subsequent sale and purchase of houses” and further accepted the information now provided indicated Mr Kaye-Smith “had been more active generally and more engaged in productive undertakings” than previously indicated to him by
Mr Kaye-Smith. In light of this further information, Dr Young considered Mr Kaye-Smith had had capacity to work since the incident occurring on 23 June 2020 and in response to specific questioning said:
“…the basis of the diagnosis of Major Depressive Disorder is less certain, however there is sufficient evidence to support the diagnosis of Adjustment Disorder for which he would still require treatment… .”
[31] RAALD at page 255.
[32] ARD at page 148.
[33] RAALD at page 219.
[34] RAALD at page 223.

Dr Young also rather curiously said:
“I think that he could not have been performing his role or other similar role initially but has gained greater capacity over time. At the time I last saw him
I considered he was fit to work up to 20 hours per week in similar work to his appointed role.…
I think that Mr Kaye-Smith is able to work up to full-time in a different environment with duties requiring comparable skill and intellect.”

Dr Gertler

Mr Kaye-Smith was psychiatrically assessed on 26 October 2021 by Dr Gertler in his capacity as independent medical examiner, and as noted Dr Gertler provided a report dated 29 October 2021. In his report Dr Gertler recorded the circumstances of injury:
“Mr Kaye-Smith informed me that on the 23 June 2020 he was at work. He was asked to take 2 engineers onto the airfield to inspect some generators.
In the course of this task, Mr Kaye-Smith informed the control tower at the airfield of what he had been asked to do and where he was positioned. He received approval to move onto the airfield and drove off in his van, being followed by the engineers in their car.
After inspecting one of the generators Mr Kaye-Smith and the others moved on to a second generator. He remained in contact with the control tower but then noted that there was a large plane coming towards him. Although he had been told to stay at a certain point in the airfield Mr Kaye-Smith could see that the plane could hit his van. To avoid a collision he drove in another direction away from the plane, being followed by the engineers in their car.
As it happened, the plane came extremely close to Mr Kaye-Smith and he feared that “it was going to run over us”. He was able to drive to a safe area where he then met with other airfield personnel.
At a meeting immediately following the incident, Mr Kaye-Smith described the incident and the fact that the control tower person had given confusing directions. Nevertheless, he was told that there would be an investigation of the incident and he was stood down from his duties.
Mr Kaye-Smith was understandably distressed. On the drive home that day a large semi-trailer turned in front of his car and further aggravated his emotional state.
At home, he remained distressed. He had difficulty sleeping with recurrent dreams and memories of the incident. He was also distressed by the approach that had been taken by staff at the airfield, which he believed was unfair.
Subsequently, Mr Kaye-Smith saw his general practitioner and was placed on stress leave.”
Following interview and mental state examination, in response to specific questioning Dr Gertler provided diagnosis of PTSD with associated major depressive disorder. He considered Mr Kaye-Smith to be totally unfit for work. Relevant to the issue of causation, Dr Gertler said:
“The post-traumatic stress disorder with associated major depressive disorder form which Mr Kaye-Smith suffers, is a result of the incident on the airfield on 23 June 2020 posed a real threat to his physical integrity if not to his life.”
Dr Gertler provided a supplementary report dated 15 March 2022[35] in which he confirmed he had reviewed the diagnosis Dr Young provided in his report dated 24 February 2022. Dr Gertler said that when he assessed Mr Kaye-Smith six months’ previously, Mr Kaye-Smith’s symptoms were consistent with diagnosis of PTSD with associated major depressive disorder and Dr Young’s recent diagnosis does not cause him to change his mind. In response to specific questioning, Dr Gertler said he remained of the view Mr Kaye-Smith was totally unfit for his pre-injury duties. He explained:
“Mr Kaye-Smith described poor concentration and memory at the time I assessed him, a preoccupation with the incident which could have led to him being ‘killed’, tiredness and a lack of motivation with irritability as well as avoidance of working at the airfield because it was described by him as too ‘dangerous’.”

Submissions
[35] AAALD2 at page 1.

Mr Barter and Mr Hickey made oral submissions, which I have carefully considered.
I am grateful to counsel for the assistance provided to me in this particular matter. A recording of counsels’ submissions is available to the parties.

Determination

Defence raised under s 11A of the 1987 Act

It is not disputed Mr Kaye-Smith sustained psychological injury in the course of his employment with BGIS. However BGIS has raised defence under s 11A(1) of the 1987 Act relevant to the discipline of Mr Kaye-Smith. In essence, Mr Kaye-Smith says the psychological injury he sustained in the course of his employment with BGIS resulted from “a near miss incident with an aircraft” while escorting two people on the airfield on 23 June 2020 while under direction of the tower, and BGIS argues the psychological injury Mr Kaye-Smith has sustained was wholly or predominantly caused by reasonable action taken or proposed to be taken by BGIS with respect to discipline resulting from his actions that particular day, which, contrary to direction from the tower, saw him drive and escort two people onto a runway where there was an aircraft.
BGIS has the onus of establishing the defence raised under s 11A(1) of the 1987 Act (Pirie v Franklins Ltd[36] and Department of Education and Training v Sinclair[37]) and there are two aspects to the defence raised by BGIS in disputing Mr Kaye-Smith’s claim.
[36] [2001] NSWCC 167; (2001 22 NSWCCR 346.
[37] [2005] NWCA 465 (Sinclair).
Firstly, Mr Kaye-Smith’s psychological injury must be “wholly or predominantly caused” by BGIS’ actions regarding one of the categories referred to in s 11A(1) of the 1987 Act and in Mr Kaye-Smith’s case, BGIS relies on “discipline”. Principles regarding the “wholly or predominately caused” aspect of s 11A(1) of the 1987 Act were discussed in Hamad v Q Catering Limited[38] with comment made that medical evidence is required to determine this causation issue. It is also accepted that “wholly” and “predominately” are different concepts[39] and that the phrase “wholly or predominantly caused” means “mainly or principally caused” with the test of causation applied being that described in Kooragang Cement Ltd v Bates[40]; Ponnan v George Weston Foods Ltd[41] and Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd[42].
[38] [2017] NSWWCCPD 6.
[39] Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130.
[40] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
[41] [2007] NSWWCCPD 92.
[42] [2008 NSWWCCPD 96.
Secondly, if BGIS successfully establishes Mr Kaye-Smith’s psychological injury was “wholly or predominately caused” by BGIS’ actions regarding “discipline”, then BGIS is required to establish BGIS’ actions were “reasonable”.
Looking first at whether the psychological injury sustained by Mr Kaye-Smith was wholly or predominantly caused by actions taken or proposed to be taken by BGIS with respect to discipline resulting from his actions with respect to the incident occurring 23 June 2020, it is important to remember an injury can have multiple causes and in
St George Leagues Club Ltd v Wretowska[43] Deputy President Roche said at [101]:
“It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA at [25] and [27]). That is especially so in cases concerning a psychological injury, where, in many cases, multiple events over a long period have contributed to the injury. Just because Ms Wretowska stopped work after the events of 12 and 14 November 2011, and did not have time off work before that time and did not seek treatment for emotional conditions until 14 November 2011, does not mean that those events were the whole or predominant cause of her injury. It is necessary to look at the whole of the conduct alleged to have caused the injury and to consider the evidence in light of that conduct.”
[43] [2013] NSWWCCPD 64.
It is also important to note the relevance of perception in matters such as this particular matter. In StateTransit Authority of NSW v Fritzi Chemler[44] it was determined a perception of real events, which are not external events, can satisfy the test of injury and in Attorney General’s Department v K[45] Deputy President Roche provided at [52] a useful summary of the relevant authorities:
“(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which I the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chelmer at [40]);
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chelmer at [54]);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chelmer at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)     it is not necessary that the worker’s reaction to the events must have been rational, reasonable and proportionate’ before compensation can be recovered.”
[44] [2007] NSWCA 249; (2007) 5 DDCR 286 (Chemler).
[45] [2010] NSWWCCPD 76.
There is no doubt that on 23 June 2020 Mr Kaye-Smith was escorting two people on to an airfield. There is no doubt that during this particular activity Mr Kaye-Smith found himself parked in his van on Holding Point Echo with his escorts in a vehicle behind him. While there is no doubt that while parked on this site, both Mr Kaye-Smith and his escorts suddenly became aware of a large aircraft on an adjacent runway, there is debate as to the distance between the large aircraft and their vehicles. While there is no doubt Mr Kaye-Smith was provided with instructions from the tower to immediately vacate the site he and his escorts were in at Holding Point Echo and to go to the Flying Club, which they did, with the aircraft then moving through Holding Point Echo and entering onto Taxiway Zulu, it is apparent from Ms Smith’s investigation that the pilot of the aircraft, the tower and Mr Kaye-Smith were all speaking at the same time, with the tower “yelling at Mr John Kaye-Smith to vacate the runway immediately”. There is no doubt Mr Kaye-Smith was upset by both the incident involving the aircraft and his communications with the tower regarding the incident involving the aircraft, with Mr Beddall noticing that Mr Kaye-Smith appeared “agitated” and “a bit flustered” and Mr Binfield noticing Mr Kaye-Smith “looked concerned” after the incident and his communications with the tower at that point in time.
While it is apparent Mr Kaye-Smith continued working after the incident involving the aircraft and attended both the regular safety meeting conducted by telephone in the company of his colleague Mr Fowler and the meeting with Mr Mazic and Mr Turner during which he was advised that he would be stood down pending an investigation into the incident, Mr Kaye-Smith said that while driving home he started to recall the incident and “felt he had a close call where he could have been seriously injured”. He said that during that evening “he suffered stomach pains, vomited, could not sleep and started to feel angry”. Ms Kaye-Smith said she recalled her brother telephoning her on the day of the incident, presenting as “upset and highly anxious, talking fast in a shaky voice”. Ms Kaye-Smith said her brother told her he had been nearly killed that day.
Mr Kaye-Smith consulted with Dr Javed the day after the incident. Dr Javed confirmed that when Mr Kaye-Smith consulted with him he provided a history of being in a van that was very close to a landing aircraft, which had caused him to become very distressed and upset. Mr Kaye-Smith told Dr Javed he believed the tower had made a mistake in allowing the aircraft to land so close to his van and he was anxious because BGIS did not believe the tower was at fault and he had been stood down, pending investigation.
Mr Kaye-Smith initially consulted with Ms Wright on 14 July 2020. Ms Wright reported Mr Kaye-Smith provided a history of the incident, which does not appear to me to be inconsistent with that provided approximately three weeks’ earlier to Dr Javed.
Mr Kaye-Smith told Ms Wright that on being provided with shouted instructions from the tower to “go to the flying club” and call the tower “he was shaking and his legs were trembling”. Mr Kaye-Smith told Ms Wright he believed the tower made a mistake. Mr Kaye-Smith told Ms Wright that after being stood down pending investigation he felt as though he was having a panic attack. Mr Kaye-Smith told Ms Wright that when driving home “he thought he could have been seriously injured at the base”.
Mr Kaye-Smith was initially assessed by Dr Young in his capacity as independent medical examiner on 28 July 2020, which is just one month after the incident occurring on 23 June 2020. Dr Young reported Mr Kaye-Smith provided a history of the incident, which does not appear to me to be inconsistent with that provided to Dr Javed and
Ms Wright, although I accept Dr Young talks of Mr Kaye-Smith being “required to take evasive action stating when the aircraft as perhaps about 7 meters from his vehicle”. Dr Young took a history of Mr Kaye-Smith “feeling shaken by the incident and experiencing acute anxiety symptoms with increased heart rate and respiration”.
Dr Young reported Mr Kaye-Smith as having difficulty communicating on the radio.
Dr Young reported Mr Kaye-Smith feeling distressed when he was stood down, pending investigation. At that point in time, Dr Young provided diagnosis in terms of “acute stress disorder or alternatively adjustment disorder” but cautioned that if
Mr Kaye-Smith’s symptoms were to continue “he is at risk of developing post-traumatic stress disorder”. At that point in time, relevant to the issue as to the cause of
Mr Kaye-Smith’s injury, Dr Young said:
“As described by Mr Kaye-Smith, he has experienced some post traumatic stress symptoms in relation to the near-miss incident itself as well as further general anxiety and stress symptoms in relation to the perceived unsatisfactory follow-up following the event.”
Mr Kaye-Smith initially consulted with Dr Naaz on 10 September 2020. Dr Naaz provided a history of the incident (albeit she mistakenly refers to it occurring in July 2020), which does not appear to me to be inconsistent to that provided earlier to
Dr Javed, Ms Wright and Dr Young. Mr Kaye-Smith again described the rather acrimonious exchange between him and the tower regarding vacation of the site he was in in light of the presence of an aircraft, and Mr Kaye-Smith again reported being stood down pending investigation. Dr Naaz described Mr Kaye-Smith as “being upset as to why he was blamed for no fault of his”.
Mr Kaye-Smith was assessed by Dr Gertler in his capacity as independent medical examiner on 26 October 2021. Dr Gertler also provided a history of the incident, which again does not appear to me to be inconsistent with that provided to Dr Javed,
Ms Wright, Dr Young and Dr Naaz. Mr Kaye-Smith described the tower as having provided “confusing directions”. Dr Gertler said Mr Kaye-Smith reported the aircraft came extremely close to him and “he feared that ‘it was going to run over us’”.
Dr Gertler noted Mr Kaye-Smith had been stood down pending investigation.
Dr Gertler described Mr Kaye-Smith as being understandably distressed, suffering recurrent dreams and memories of the airfield incident, and being “distressed by the approach that had been taken by staff at the airfield, which he believed was unfair”.
Dr Gertler provided diagnosis of PTSD with associated major depressive disorder, and relevant to the issue of the causation, Dr Gertler said:
“The post-traumatic stress disorder with associated major depressive disorder from which Mr Kaye-Smith suffer, as a result of the incident on the airfield on the 23 June 2020 posed a real threat to his physical integrity if not to his life.”
Following a review of the evidence as a whole (with particular reference to the evidence discussed above) and a careful consideration of counsels’ submissions, I do not accept the psychological injury sustained by Mr Kaye-Smith in the course of his employment with BGIS was either “wholly or predominately” caused by the actions taken or proposed to be taken by BGIS with respect to discipline, but rather I consider his injury was collectively caused by the incident occurring on 23 June 2020, the somewhat urgent and confusing interchange between Mr Kaye-Smith and the tower relevant to his immediate vacation from the site where he was parked with his escorts in light of the presence of a large aircraft in their vicinity, and his being stood down pending investigation into the incident. While it may be that Dr Young ultimately expressed a different opinion as to the cause of the psychological injury sustained by
Mr Kaye-Smith in the course of his employment with BGIS, such change in opinion occurred some 16 months after Dr Young had initially assessed Mr Kaye-Smith just over one month after the incident and provided opinion Mr Kaye-Smith’s injury resulted from the incident and “the perceived unsatisfactory follow-up” after the incident, and
I accept Dr Young’s initial opinion as to causation of the injury.
Even if I was to accept Mr Kaye-Smith’s psychological injury was “wholly or predominantly” caused by BGIS’ actions or proposed actions regarding “discipline” (which I do not) BGIS is required to establish BGIS’ actions or proposed actions regarding discipline were “reasonable”.
Considering the meaning of reasonableness, in Sinclair Spigelman CJ observed that one must look at the entire process, which includes looking at the circumstances surrounding the action, both before and after the action (Burton v Bi Lo Pty Ltd[46]; Melder v Ausbowl Pty Ltd[47] ) and in Irwin Gerahty J said:
“… the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
[46] [1998]NSWCC 13.
[47] [1997]NSWCCR 454.
In Northern New South Wales Local Health Network v Heggie[48] Sackville AJA usefully set out the following statements of principle regarding s 11A (1) at [61]:
“Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care. The language does not readily lend itself to an interpretation which would allow disciplinary action (or action or any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”
[48] [2013] NSWCA 225; 12 DDCR 95.
Shortly after the incident occurring on 23 June 2020 Mr Kaye-Smith was called to a meeting with Mr Mazic and Mr Turner, during which Mr Mazic explained to
Mr Kaye-Smith he was to be stood down “until a thorough in-depth investigation could be done” following which Mr Kaye-Smith would be provided with the opportunity to recount “his side of the story”. In his statement, Mr Mazic said that on enquiry by
Mr Kaye-Smith as to “what could occur”, Mr Mazic told him:
“It could be several things. It could be an apology from defence, it could be retraining or it could lead to disciplinary action.”

Although Mr Mazic said Mr Kaye-Smith was “fine with this and said he had done nothing wrong”, it is apparent Mr Kaye-Smith was not in fact “fine with this”. Mr Kaye-Smith said he started to recall the incident during his drive home and “felt he had a close call where he could have been seriously injured”. Ms Kaye-Smith said Mr Kaye-Smith was distressed when recounting the incident to her that same day. Mr Kaye-Smith said he was distressed during the evening and sought medical assistance the following morning. In circumstances where Mr Kaye-Smith was requested to attend a meeting relevant to the incident involving the aircraft with the NSW Operations Manager and the Electrical Team Leader during which he was told that that he was to be stood down pending investigation into the incident, I consider it would have been appropriate for Mr Kaye-Smith to have been afforded sufficient time to prepare for such a meeting, to have been afforded the opportunity of having a support person with him during his meeting, and to have been reminded at some stage during the meeting of the availability of an Employee Assistance Program should he wish to access it for assistance.
While it is evident Mr Kaye-Smith’s relationship with BGIS broke down relatively quickly once he had been stood down by BGIS, pending investigation, I consider it to be of some concern that neither Ms Smith nor Flight Lieutenant Ruse were able to complete their respective investigations into the incident occurring as BGIS made the decision Mr Kaye-Smith should not be contacted while he was certified totally unfit for work (which prevented Mr Kaye-Smith from being able to recount “his side of the story” as had been foreshadowed to him by Mr Mazic on the day of the incident).
While I can perhaps understand the reasoning behind the decision made by BGIS not to interview Mr Kaye-Smith while he was certified totally unfit for work, Ms Smith states the decision was made by HR on 24 June 2020 (and confirmed on 25 June 2020) and with a need for both Ms Smith and Flight Lieutenant Ruse to investigate the incident, I consider it would have been appropriate for a real attempt to have been made by BGIS to enable Mr Kaye-Smith to recount “his side of the story” so as to enable the required investigations to be completed expeditiously.
In all of the circumstances known to BGIS at the time Mr Kaye-Smith was stood down pending investigation of the incident and subsequently, I do not accept the action taken or proposed to be taken by BGIS with respect to discipline resulting from
Mr Kaye-Smith’s actions that particular day (if the action taken or proposed by BGIS was in fact “discipline” bearing in mind both the comment made by Mr Russell relevant to the nature of the action taken by BGIS and there being no disciplinary document relevant to the action taken or proposed by BGIS in evidence before the Commission) was “reasonable”.
For the reasons discussed above I accept Mr Kaye-Smith as a credible witness. For the reasons discussed above I am not satisfied BGIS has discharged the onus of proof required of BGIS and as a consequence, BGIS cannot rely on the defence raised under s 11A(1) of the 1987 Act.

Capacity for work

Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during incapacity.”
As I do not accept the Mr Kaye-Smith’s psychological injury was wholly or predominately caused by action taken or proposed to be taken by BGIS with respect to discipline it follows Mr Kaye-Smith may have an entitlement to weekly benefits payable under the 1987 Act.
In his initial statement dated 23 July 2021 Mr Kaye-Smith said he remained under psychological care and he said he remained depressed and upset. In his subsequent statement dated 30 November 2021 Mr Kaye-Smith said his mental health had deteriorated significantly since he ceased work on 23 June 2020. In her statement dated 4 March 2022 Ms Kaye-Smith said that since the incident Mr Kaye-Smith “has not been the same person, he is highly anxious and becomes easily agitated, does not sleep much and continually has thoughts of the incident occurring”. Ms Kaye-Smith explained Mr Kaye-Smith was unable to assist with the general maintenance and repairs required to ready their deceased mother’s home for sale and she said she was the main contact for the sale of the home “as John was incapacitated due to his workplace injury and was unable to do so”. Ms Kaye-Smith said too that when their deceased mother’s home was sold, she assisted Mr Kaye-Smith with the purchase of his own property.
In her report dated 26 August 2021 Dr Naaz considered Mr Kaye-Smith was totally unfit for work. In her report dated 15 September 2021, Ms Wright considered
Mr Kaye-Smith was totally unfit for work. In his report dated 22 September 2021,
Dr Javed considered Mr Kaye-Smith was totally unfit for work and said
Mr Kaye-Smith’s future capacity for work was dependent on the success of treatment. In his report dated 29 October 2021 following his psychiatric assessment of
Mr Kaye-Smith on 26 October 2021 Dr Gertler considered Mr Kaye-Smith was totally unfit for work. While Dr Young provided a report dated 15 November 2021, following his re-assessment of Mr Kaye-Smith on 11 November 2021, in which he provided opinion Mr Kaye-Smith had been, and remained totally unfit for work since he ceased work on 23 June 2020, after being informed of Mr Kaye-Smith’s alleged involvement “in activities concerning the renovation, repair and improvement and subsequent sale and purchase of houses”, in a supplementary report dated 24 February 2022 Dr Young provided opinion “I think that Mr Kaye-Smith is able to work up to full time in a different environment with duties requiring comparable skill and intellect”. In a supplementary report dated 15 March 2022, Dr Gertler said he did not agree with this recent opinion proffered by Dr Young, and with reasoning, confirmed his previously expressed opinion Mr Kaye-Smith was totally unfit for work.
With Ms Kaye-Smith having addressed Mr Kaye-Smith’s alleged involvement “in activities concerning the renovation, repair and improvement and subsequent sale and purchase of houses”, I accept the opinions provided by Mr Kaye-Smith’s treating general practitioner, treating psychologist, and treating psychiatrist regarding his capacity for work since 25 June 2021 and I also accept the opinion of Dr Gertler regarding Mr Kaye-Smith’s capacity for work since 25 June 2021. I prefer the opinions of Dr Javed, Ms Walker and Dr Naaz to that ultimately expressed Dr Young. Dr Javed, Ms Walker and Dr Naaz are involved in Mr Kaye-Smith’s day to day care, whereas
Dr Young has only had the opportunity to assess Mr Kaye-Smith on two occasions.
I consider it to be noteworthy also that on both those occasions Dr Young considered Mr Kaye-Smith as totally unfit for work and only changed his mind once he was informed of Mr Kaye-Smith’s alleged involvement “in activities concerning the renovation, repair and improvement and subsequent sale and purchase of houses”, being allegations addressed by Ms Kaye-Smith. I also prefer the opinion of Dr Gertler as to Mr Kaye-Smith’s fitness for work to that ultimately expressed by Dr Young as following review of Dr Young’s most recent opinion, Dr Gertler confirmed his previously expressed opinion regarding Mr Kaye-Smith’s fitness for work remained unchanged.

Quantification of entitlement to weekly compensation

Mr Kaye-Smith’s PIAWE is agreed to be $1,800. I am satisfied that since 25 June 2021 Mr Kaye-Smith has had no current capacity for work and accordingly Mr Kaye-Smith’s entitlement to weekly compensation payable under s 37(1) of the 1987 Act is payable at the rate of $1,440 each week. Mr Kaye-Smith’s entitlement to weekly compensation is subject to legislative adjustment.

Treatment

Mr Kaye-Smith has an entitlement to medical and related treatment payable under
s 60 of the 1987 Act resulting from the psychological injury he sustained in the course of his employment with the respondent, with a date of injury of 23 June 2020. The respondent is to pay the applicant’s medical and related treatment in accordance with s 60 of the 1987 Act.

SUMMARY

It is not disputed Mr Kaye-Smith sustained psychological injury in the course of his employment with BGIS with a date of injury of 23 June 2020 and I have determined that his injury was not wholly or predominantly caused by reasonable action taken by BGIS with respect to discipline.
Mr Kaye-Smith’s PIAWE is agreed to be $1,800. Mr Kaye-Smith has an entitlement to weekly compensation payable under s 37 of the 1987 Act and I have determined that since 25 June 2021 Mr Kaye-Smith has had no current capacity for work. Mr Kaye-Smith’s entitlement to weekly compensation payable under s 37(1) of the 1987 Act is payable at the rate of $1,440 each week. Mr Kaye-Smith’s entitlement to weekly compensation is subject to legislative adjustment.
Mr Kaye-Smith has an entitlement to medical or related treatment payable under s 60 of the 1987 Act.

[2022] NSWPIC 249

26 May 2022