Nizamdeen v University of New South Wales

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nizamdeen v University of New South Wales [2022] NSWPIC 17
APPLICANT:	Mohammed Kamer Nilar Nizamdeen
RESPONDENT:	University of New South Wales
MEMBER:	John Isaksen
DATE OF DECISION:	12 January 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for three months of no current work capacity and permanent impairment for psychological injury; worker is arrested at work on terrorist charges and is remanded in custody for a month before it is found that he was set up by a co-worker; whether the worker sustained injury arising out of or in the course of his employment; whether the worker sustained an injury as provided for by section 4(a) of the Workers Compensation Act 1987(1987 Act), or in the alternative a disease injury; consideration of NSW Police Force v Gurnhill in regard to section 4(a) of the 1987 Act injury; consideration of AV v AW in regard to disease injury; reference to Mercer v ANZ Banking Group on worker’s employment being a substantial contributing factor to the injury; reference to Fire and Rescue NSW v Guymer on whether injury arising out of employment; Held – the worker did not sustain an injury arising out of or in the course of his employment with the respondent; award for the respondent.
DETERMINATIONS MADE:	1. The applicant did not sustain an injury within the meaning of section 4 of the Workers Compensation Act 1987.
ORDERS MADE:	1. An award for the respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mohammed Kamer Nilar Nizamdeen, claims that he sustained a psychological injury arising out of or in the course of his employment with the respondent, University of New South Wales (UNSW). The applicant was employed by the respondent as a business systems analyst.
The applicant claims that he sustained a psychological injury on 30 August 2018 when he was arrested by Australian Federal Police at his workplace for having set out details in a notebook of a planned terrorist attack.
The applicant was detained at Goulburn Correctional Centre from 30 August 2018 to 28 September 2018 and claims that he was placed in solitary confinement and subjected to long hours of interrogation. The applicant was released on conditional bail on 28 September 2018 and all charges against him were dropped when it was established that the notebook entries had been created by a co-worker.
The applicant claims weekly payments of compensation from 28 September 2018 to 14 January 2019 on the basis of having no current work capacity as a result of his psychological injury. The applicant also makes a claim for a lump sum payment for 19% whole person impairment for his psychological injury.
The respondent disputes that the applicant sustained a psychological injury arising out of or in the course of his employment. The respondent contends that the causes of the applicant’s psychological injury were due to factors that had no connection or relationship to his employment with the respondent.
The respondent also contends that the psychological injury sustained by the applicant can only be regarded as a disease injury, but that the applicant’s employment is not the main contributing factor to the contraction of that disease as required by section 4 (b)(i) of the Workers Compensation Act 1987 (the 1987 Act).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) whether the applicant sustained an injury arising out of or in the course of his employment with the respondent (section 4 (a) of the 1987 Act), and, or in the alternative, whether the applicant sustained a disease injury in the course of his employment with the respondent (section 4 (b)(i) of the 1987 Act);
(b) whether the applicant’s employment was a substantial contributing factor to the personal injury sustained by the applicant (section 9A of the 1987 Act);

(c) if the applicant is found to have sustained a disease injury, whether the applicant’s employment is the main contributing factor to the contraction of that disease injury (section 4 (b)(i) of the 1987 Act), and

(d) whether the applicant had no current work capacity between 28 September 2018 and 14 January 2019 as a result of a psychological injury which arose out of or in the course of his employment with the respondent (sections 32A, 33, 36 and 37 of the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

The parties attended a conference and hearing on 17 December 2021. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Mr Andrew Joseph appeared for the applicant, instructed by Mr Kheir. Mr David Saul appeared for the respondent, instructed by Mr Murphy.
The hearing was conducted by video in accordance with the protocols set by the Commission as a result of the coronavirus pandemic.
The parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) were $912.92.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a)    the Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    statement of the applicant dated 5 November 2021 and wages schedule filed by the applicant; and
(d)    documents from Justice Health which were filed by the respondent on 19 November 2021.

Oral evidence

There was no application to adduce oral evidence or to cross examine the applicant.

The applicant’s evidence

The applicant has provided a statement dated 5 November 2021.
The applicant does not provide any evidence of the terms of his employment with the respondent. He simply commences his evidence by stating that he was arrested while at work on 30 August 2018. A claim form that is completed by the applicant on 20 March 2019 states that he had been employed on a full time casual basis with the respondent as a business systems analyst since 2015.
The applicant states that on 30 August 2018 he was at a UNSW café when campus security officers and plain clothed police officers surrounded him. He states that he was asked by an undercover police officer if he had lost a notebook. He states that was arrested in front of fellow students, colleagues and other staff members.
The applicant states that he was released on conditional bail after being in prison for about a month, and that charges against him were dropped on 19 October 2018.

The applicant states that he was not contacted by any co-workers or anyone from the respondent while he was incarcerated, which left him feeling unsupported and isolated. He states that he had anxiety and depressive episodes while he was imprisoned.
The applicant states that a co-worker, Arsalan Khawaja, framed him. He states that
Mr Khawaja had taken a notebook away from his desk and written terrorist threats in the book. He states that Mr Khawaja attempted to copy his handwriting. The applicant states that Mr Khawaja then ‘found’ the notebook and produced it to senior UNSW staff and the police were then contacted.
The applicant states that anxiety, depression and Post Traumatic Stress Disorder (PTSD) prevented him from returning to work after he was released from prison. He states that he lost trust and confidence in his work colleagues and his employer. He states that he returned to Sri Lanka for peace of mind.
The claim form completed by the applicant on 20 March 2019 contains the following as to how the applicant was injured:
“The applicant was wrongly charged with creating a document in connection with preparing for a terrorist attack. The applicant was incarcerated at Goulburn Correctional Centre, super maximum security prison located in Goulburn, NSW, from 30 August 2018 until 28 September 2018 when the applicant was released on conditional bail.”

The applicant states in an affidavit sworn by the applicant on 3 June 2019:
“…I am undergoing constant psychological treatment for anxiety, hyperarousal, fear and social awkwardness as a result of my treatment by the Australian Federal Police in August/September 2018.”

The medical evidence

Dr Shehan Williams, consultant psychiatrist, from Colombo, Sri Lanka, states that he saw the applicant in December 2018 and May 2019. In a report dated 18 May 2020, Dr Williams diagnoses the applicant as having suffered an acute stress reaction, and then an adjustment disorder, following detention in Australia from 30 August to 28 September 2018.
Tim Watson-Munro, consultant psychologist, has provided a report at the request of the applicant’s solicitors dated 4 March 2019.

Mr Watson-Munro records that the applicant was in a cafeteria at UNSW when he was approached by an undercover police officer and questioned about a notebook which contained “threats of a serious nature”. He records that the applicant was taken back to his office and questioned for about eight hours. He records that the applicant was placed in “chains” after bail was refused in court the following day.
Mr Watson-Munro records the applicant being frightened, hypervigilant and highly depressed while the applicant was remanded in custody, and that the applicant feared for his safety and worried about his future. He records the applicant’s sense of despair was compounded by his knowledge that he was innocent.
Mr Watson-Munro writes that the applicant was arrested on 30 August 2018, incarcerated until 28 September 2018, and then charges were dropped on 19 October 2018. He then opines:
“He found the experience to be highly traumatising and when seen, it was clear that he was continuing to suffer a broad range of symptoms reflective of a Depressive Disorder, an Anxiety Disorder and features of an Adjustment Disorder according to DSM-5 criteria.”

Dr Lotz, consultant psychiatrist, has provided a report at the request of the applicant’s solicitors dated 17 December 2020.
Dr Lotz records the following:
“…It appears that a co-worker had set him up. The co-worker had written threats in
Mr Nizamdeen’s notebook against the Prime Minister and alerted the police.
The police arrested him and charged him under the terrorism act.
He was incarcerated in prison between August and September 2018, he stated he was subjected to long interrogations prior to incarceration and whilst incarcerated.”
Dr Lotz records that the applicant was aware that his arrest created significant media coverage and the incident of alleged terrorism appears whenever his name is placed in an internet search engine. He records that the applicant felt there was a bias towards him because he came from a Muslim background.
Dr Lotz writes:
“Mr Nizamdeen summarised the traumatic experience of 2018 stating that there were effectively three attacks. The first was the betrayal by his co-worker who set him up for the terrorism charges, the second was the attitude of the police who did not investigate the handwriting immediately and accept his denials of the acts of terrorism and his racial profiling interrogations and treatment in prison, and the third attack was the media. He now has a permanent blemish on social media which potentially could affect his employment and his application for visas to visit his wife in America.”
Dr Lotz notes that the applicant had no past psychiatric history and concludes that the applicant “developed features of anxiety and depression as a result of the false arrest of 2018, and the consequences thereof”. Dr Lotz diagnoses the applicant as having PTSD. He also notes the findings of Mr Munro-Watson that the applicant had a “severe and recurring depressive disorder”, and opines that “considering the history and examination, this is consistent with the trauma of the false arrest of 2018”.
Dr Kumar, psychiatrist, has provided a report at the request of the respondent’s solicitors dated 21 May 2021.

Dr Kumar records that on 30 August 2018 the applicant was at work at UNSW and went out to get a coffee when a plain clothes police officer arrested him based on some extremist information written in his notebook. He records that the applicant was escorted to his office to get his belongings and the entire university found out about the arrest.
Dr Kumar records that the applicant found out later that a co-worker had framed him by stealing his notebook while the applicant was on leave, and then fabricating the applicant’s hand writing and writing extremist material. He records that this person later confessed this to the applicant.
Dr Kumar records that the applicant was kept in solitary confinement in a maximum security prison for about a month. He records that the applicant “was in a ‘mental shock’ at the process and the way it occurred”. Dr Kumar records that the applicant can still recall the fear of the accusation of being a terrorist and the possibility of a long incarceration.
Dr Kumar records that the applicant has recurrent images and flashbacks of his arrest and time in prison.
Dr Kumar opines that the applicant meets the diagnosis of having PTSD. He notes that
Dr Lotz also makes a diagnosis of PTSD, although Dr Lotz also mentions the applicant having an adjustment disorder.
Dr Kumar writes that the rationale for the diagnosis of PTSD is:
“The trauma event was the false arrest and incarceration for a month, being kept in solitary confinement and the injury to reputation leading from being branded as a terrorist.”

Dr Kumar also opines:
“Based on the information available and my assessment, it is my opinion that the main contributing factors in the onset of Mr Nizamdeen's condition is the work related event where a co-worker framed him and he was then incarcerated for over a month in a high security prison. There are no non work related factors identified. There is no history of a pre-existing condition.”

FINDINGS AND REASONS

Mr Joseph for the applicant submits that the applicant sustained a psychological injury when he was at work and in the course of his employment on 30 August 2018 and was falsely arrested. He submits that the injury sustained by the applicant meets the definition of injury in section 4 (a) of the 1987 Act, although he also submits that there is sufficient evidence to make a finding of a disease injury as provided for by section 4 (b)(i) of the same Act.

Mr Joseph submits that the applicant’s employment was a substantial contributing factor to the injury because it was a co-worker who framed the applicant, the false arrest occurred during work hours, and that the applicant suffered humiliation and disgrace at his place of employment.
Mr Joseph concedes that there were other events outside of the workplace which contributed to the applicant’s injury, such as the applicant being placed in prison for a month, but that the evidence establishes that the applicant’s employment was a substantial contributing to his injury.

Mr Saul for the respondent submits that a review of the evidence reveals that the psychological injury that the applicant has sustained was not caused by a specific event but instead developed as a disease. Mr Saul submits there is no evidence of the applicant suffering a sudden pathological change on 30 August 2018, which is necessary to establish a personal injury as provided for by section 4 (a) of the 1987 Act.
Instead, the evidence supports a finding that the applicant’s psychological condition developed while the applicant was in custody for a month, was subjected to interrogation, and became aware that he was the subject of acute media attention. Mr Saul submits that this evidence, and the expert medical opinion in response to this evidence, leads to a conclusion that the applicant’s psychological condition was a disease injury.

Mr Saul refers to the decision of NSW Police Force v Gurnhill [2014] NSWWCCPD 12 (Gurnhill), wherein DP Roche referred to whether a psychological condition should be classified as a personal injury or a disease injury. DP Roche said at [72-73]:
“…whether a psychological condition is classified as a personal injury or a disease depends on the evidence in each case. For it to be found that a worker with a psychological condition has received a personal injury, it is necessary that the events complained of had a physiological effect on the worker (Yates v South Kirkby Collieries Ltd[1910] 2 KB 538; Anderson Meat Packing Co Pty Ltd v Giacomantonio[1973] 47 WCR 3). More specifically, the High Court has described a personal injury under s 4(a) as a “sudden or identifiable physiological change” (Zickar v MGH Plastic Industries Pty Ltd[1996] HCA 31; 187 CLR 310 per Brennan CJ, Dawson and Gaudron JJ at 716 (Zickar)) and as “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state” (Kennedy Cleaning Services Pty Ltd v Petkoska[2000] HCA 45; 200 CLR 286 per Gleeson CJ and Kirby J at 300 [39] (Petkoska)).
Whether a worker has suffered a physiological effect that satisfies the test for a personal injury in s 4(a) will depend on the nature and severity of his or her symptoms. However, the terms “disease” and “personal injury” in s 4 are not mutually exclusive (Zickar) and the difference will not usually be of critical importance. As noted by Gleeson CJ and Kirby J in Petkoska (at [40]):
‘The disease provisions remain as alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an ‘injury’ in the primary sense’.”
Mr Saul submits that as the applicant’s psychological condition can only be regarded as a disease injury, then the applicant’s employment cannot be the main contributing factor to the contraction of that disease injury because there are several contributing factors to the contraction of the disease which bear no relationship to the applicant’s employment.
The worker in Gurnhill was a police officer who attended an incident where a man shot and killed himself and the worker thereafter started to have nightmares and difficulty sleeping. The worker was also exposed to numerous other traumatic incidents in his work as a police officer both before and after this particular incident, and he ceased work about a year after the incident. The worker claimed that he had sustained a psychological injury by way of a disease, whereas the employer argued that the worker also sustained a specific injury as a result of the incident involving the suicide.

Neither the arbitrator at first instance nor DP Roche were satisfied from the available evidence that the worker had suffered a personal injury as a result of the particular incident involving the suicide. DP Roche said at [100-101]:
“The Arbitrator’s reference to Mr Gurnhill having “florid psychological symptoms” after the event in October 2009 did not lead to the conclusion that he suffered a personal injury as a result of that incident. The resolution of that question required a consideration of all the evidence. A consideration of the expert evidence led the Arbitrator to conclude that the injury was properly characterised as a s 4(b)(i) disease. A review of the medical evidence establishes that, as Mr Edwards submitted at the arbitration, the Police Force’s own medical evidence did not establish that Mr Gurnhill received a “separate injury” in the October 2009 incident, or in any other incident.
Once it was accepted, as the Arbitrator did accept, that PTSD is a disease, and, more importantly, that Mr Gurnhill’s work as a police officer regularly exposed him to multiple traumatic events, and that those events had a cumulative effect on him, the conclusion that Mr Gurnhill suffered a s 4(b)(i) disease injury which he contracted in the course of his employment with the Police Force was inevitable and was correct. Similarly, in the absence of evidence that Mr Gurnhill suffered a “sudden physiological change or disturbance of the normal physiological state” as a result of the incident in October 2009 and, as explained above, there is no such evidence, the Arbitrator did not err in finding that Mr Gurnhill did not suffer a personal injury as a result of that incident.”

I acknowledge that a worker can suffer a psychological injury from a particular event and then further psychological injury can develop as a gradual process when that worker is exposed to additional traumatic events.
However, from my review of the evidence in this dispute, I am not satisfied that the applicant suffered a sudden physiological change or disturbance of his normal physiological state when he was at work on 30 August 2018 such as to cause a psychological injury which is distinct from an injury which developed over the ensuing month.
I accept that the applicant would have experienced shock and distress when he was surrounded by police and security staff at work on 30 August 2018 and then arrested and taken to Maroubra Police Station for questioning. However, the applicant does not provide evidence of the onset of any symptoms at the time he was arrested or from events which occurred immediately following his arrest. Mr Joseph concedes that the evidence on this issue is ‘scant’.
The applicant states that he was surrounded by police and campus security staff and was asked if he had lost a notebook. It is not apparent from his evidence as to whether he was informed in the café of the terrorist threats he had allegedly made or at Maroubra Police Station. However, there is no evidence from the applicant that at either the café or the police station he experienced symptoms which would indicate a sudden physiological disturbance as to cause a psychological injury.
The deficiency in the applicant’s evidence is not remedied by the medical evidence. Dr Lotz opines that the applicant’s severe and recurring depressive disorder is consistent with the trauma of ‘the false arrest’. Mr Joseph submits that this is sufficient to establish a personal injury being sustained by the applicant on 30 August 2018.
However, Dr Lotz does not provide an explanation as to what he understands to have been ‘the false arrest’ of the applicant. It is not apparent from the contents of his report as to whether he is referring to only what occurred on 30 August 2018 or what occurred throughout the following month. Dr Lotz recites so little detail of the events between 30 August 2018 and 28 September 2018 that I cannot be confident that ‘the false arrest’ which he is referring to is the cause of a distinct injury sustained by the applicant on 30 August 2018.
Furthermore, Dr Lotz does not record any psychological symptoms which the applicant experienced at the café and the police station on 30 August 2018 which would assist in a determination as to whether the applicant suffered a sudden physiological disturbance at either or both those locations on that day.

Dr Kumar opines that the rationale for his diagnosis of PTSD is the false arrest and being kept in solitary confinement for a month and being branded a terrorist. However, it is not clear from the contents of Dr Kumar’s report as to whether the ‘false arrest’ he refers to is a reference only to what led to the applicant’s arrest on 30 August 2018 or what occurred to the applicant over the ensuing month.
Dr Kumar’s opinion that one of the two main contributing factors to the onset of the applicant’s psychological condition “is the work related event where a co-worker framed him” suffers from the same ambiguity. The details recorded by Dr Kumar is that the applicant only “later found out” about being framed by the co-worker, which places the aberrant behaviour of Mr Khawaja in the wider context of the events which occurred after the applicant’s arrest rather than what occurred to the applicant on 30 August 2018.
Dr Kumar records the applicant being in “a ‘mental shock’ at the process and the way it occurred”, but from the chronology of events recited by Dr Kumar, this appears to be a reference to entire process involving the applicant’s deprivation of liberty, rather than what occurred on 30 August 2018.
Mr Watson-Munro does not identify the events on 30 August 2018 as being the cause of a separate, frank injury. He writes that the applicant “found the experience to be highly traumatising’”, but that is after he refers to the applicant’s exposure to the harsh realities of the criminal justice system, which included a period of remand in a maximum security prison.
I appreciate that the medical experts have taken a broad approach to the issue of causation of injury in this dispute and have not recognised any distinction between an injury being caused by a particular event or incident and an injury caused by cumulative events or factors. However, it is incumbent upon the applicant, if he is claiming to have sustained a distinct injury as provided for by section 4 (a) of the 1987 Act, to provide sufficient evidence to support such a finding. I am not satisfied that this has been achieved by the applicant on the evidence that has been made available.

The available evidence does support a finding that the applicant sustained a disease over the month following his arrest on 30 August 2018. Both the applicant’s evidence and medical evidence are consistent with the definition of disease provided by Burke CCJ in Perry v Tanine Pty Ltd t/as Ermington Hotel (1998) 16 NSWCCR 253; [1998] NSWCC 14 (Perry) of “a failure of an area of the body to cope with repeated stress imposed upon it”.
The applicant writes in his claim form that he was injured by being wrongly charged with creating a document with terrorist threats and being incarcerated in a maximum security prison for a month. An affidavit sworn by the applicant on 3 June 2019 states that his treatment for anxiety, hyperarousal, fear and social awkwardness is as a result of his treatment by Australian Federal Police in August and September 2018.
Dr Lotz considers that the applicant developed features of anxiety and depression as a result of the false arrest of 2018 and the consequences thereof. Dr Kumar considers the false arrest, one month in solitary confinement and the damage to the applicant’s reputation led to the applicant sustaining PTSD.
However, the applicant can only be successful in establishing a disease injury if his employment is the main contributing factor to the contracting of the disease. Although the decision of AV v AW [2020] NSWWCCPD 9 (AV) addressed the requirements of section 4 (b)(ii) of the 1987 Act, DP Snell provided a very helpful application of the term ‘main contributing factor’ as it appears in both sub-clauses of section 4 (b) of the 1987 Act, when he said at [78]:
“The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.”
In this dispute there are several causal factors identified by the applicant and in the medical evidence in the contraction of the psychological disease injury which are not related to the applicant’s work. There is the imprisonment for a month in a maximum security prison, the lengthy interrogations while in prison, the attitude of the police in response his protests of innocence, the attacks by the media, and his allegations of racial profiling.
Even if it is accepted that other factors such as the arrest at work on 30 August 2018 occurred in the course of the applicant’s employment (which I have yet to address), the evidence which I have reviewed does not support a finding that the applicant’s employment was the main contributing factor to the contraction of a disease injury.
I am therefore not satisfied that the applicant has discharged his onus of proof in establishing that he did sustain an injury within the meaning of section 4 of the 1987 Act.
If I am wrong on the determination of the type of injury sustained by the applicant, I am also not satisfied that the psychological injury the applicant has sustained has arisen out of or in the course of his employment with the respondent.
Mr Joseph submits that the injury sustained by the applicant could only have occurred because of the employment that the applicant was engaged in. He submits that Mr Khawaja only knew the applicant from their workplace, and it was the nature of that relationship which started a chain of events which led to the injury that was sustained by the applicant.
Mr Joseph identifies the following matters referred to in section 9A (2) as support for a finding that the applicant’s employment was a substantial contributing factor to the injury:
“(2)(a) The arrest of the applicant and subsequent humiliation in front of other people from the university occurred during the applicant’s work hours and on the respondent’s premises;
(2)(d) it is probable that the injury would not have happened anyway because the injury was caused by Mr Khawaja being able to use the relationship he had as a fellow employee to betray the applicant;
(2)(e) the applicant’s state of health before the injury and any hereditary risks are not factors to be considered because the applicant had no pre-existing psychological problems.”
Mr Saul submits that the psychological injury sustained by the applicant does not occur in the course of the applicant’s employment. Mr Saul submits that the tampering of the applicant’s notebook by a co-worker, and the arrest of the applicant on the respondent’s premises during the applicant’s work hours, have nothing to do with the applicant’s employment and the respondent therefore cannot be liable for compensation sought by the applicant.
I have already provided my reasons as to why the injury sustained by the applicant can only be a disease injury, for which the respondent cannot be liable for because the applicant’s employment is not the main contributing factor to the contraction of that disease. However, to the extent that I may be in error on this issue, there also remains a difference of opinion between the medical experts as to what work related factors have contributed to the injury sustained by the applicant.
The ‘false arrest of 2018, and the consequences thereof’ which are identified by Dr Lotz as the cause of features of anxiety and depression developed by the applicant might include work related factors, but I have already stated that this is not properly explained by Dr Lotz.
Dr Kumar identifies the applicant being framed by the co-worker as being one of two main contributing factors to the applicant’s psychological injury. This became the emphasis of submissions made by Mr Joseph during the course of the hearing. Mr Joseph submits that a chain of events leading to the applicant’s psychological injury only occurs because the applicant and co-worker were both working for the respondent.

If the opinion of Dr Kumar on a cause of the applicant’s psychological injury were accepted, then arguably that injury has arisen out of or in the course of the applicant’s employment. However, section 9A of the 1987 Act has to be addressed.
Section 9A of the 1987 Act relevantly provides:
“(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):

(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.

(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:

(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.

(4) ….”

In Mercer v ANZ Banking Group Limited [2000] NSWCA 138; 48 NSWLR 740; 20 NSWCCR 70 (Mercer), Mason P said at [13]:
“It is common ground between the parties and well established by earlier authority that, when s9A(1) speaks of "the employment concerned" being a substantial contributing factor to the injury, the legislation is not referring to the fact of being employed, but to what the worker in fact does in the employment (see Federal Broom Co Pty Ltd v Semlitch[1964] HCA 34; (1964) 110 CLR 626 at 632-3, 641). In other words, one starts with the actual and not the hypothetical, with what (if anything) the worker was in fact doing in his or her employment that caused or contributed to the "injury" as defined in s4.”
The evidence provided in this dispute does not reveal what the applicant was doing in his employment as a business analyst with the respondent which led Mr Khawaja to betray him and thereby, at least in the opinion of Dr Kumar, cause injury to the applicant. That the applicant and co-worker merely happened to work for the same employer does not establish that the applicant’s employment was a substantial contributing factor to his injury, even if
Dr Kumar’s opinion on the cause of injury were to be accepted.
The betrayal by Mr Khawaja co-worker was made by the tampering of the applicant’s notebook. Perhaps if there was some evidence that the notebook was an integral or necessary part of the applicant’s duties as a business analyst, then an argument could be made that the applicant’s injury had arisen out of or in the course of his employment with the respondent and his employment was a substantial factor to that injury. However, there is no evidence in regard to this.
Nor is there any evidence of any unique working relationship between the applicant and
Mr Khawaja that would allow for a connection to be made between the work being performed by them and the injury sustained by the applicant. The evidence from the applicant goes no further than to state that Mr Khawaja was a co-worker.
Fire and Rescue New South Wales (formerly NSW Fire Brigades) v Guymer [2011] NSWWCCPD 38 (Guymer) is a decision with some similarities to this dispute, and where the worker was successful in establishing that there was a causal connection between his psychiatric injury and his employment, and that his injury had arisen out of his employment.
Mr Guymer sustained a psychological injury as a result of a radio presenter identifying
Mr Guymer in a broadcast as having committed credit card fraud and an assault.
DP O’Grady listed several matters which linked those allegations to the performance of
Mr Guymer’s duties, and then said at [89]:
“The matters I have summarised above each concern Mr Guymer and the performance of his duties as well as allegations of improper conduct on his part as an officer of the appellant. In the circumstances it is plain that the injury received following the broadcasts was one, as found by the Arbitrator after a commonsense evaluation of the evidence, that arose out of his employment in terms of s 4.”
In this dispute I have not found, and have not been referred to, any evidence which connects the applicant’s work duties or tasks he was to perform for the respondent to the actions taken by Mr Khawaja to betray the applicant.
DP O’Grady said in Guymer at [93]:
“… In my view no error by the Arbitrator is demonstrated in his finding that the happenings in July 2009 were related to Mr Guymer’s employment. His employment was performance of duties as an officer of the appellant. It was his employment, on the evidence, that required him to hazard or to suffer the broadcasts which caused the injury.”
In this dispute there is no evidence that the applicant’s performance of his duties as a business analyst for the respondent “required him to hazard or to suffer” the betrayal instigated by Mr Khawaja.
What Mr Nizamdeen had to endure on 30 August 2018 and for the month that followed was terrible and shocking. I do not wish to downplay or be dismissive of the distressing circumstances he found himself in during that time. I note that Mr Saul at the commencement of his submissions on behalf of the respondent acknowledged the gravity of what occurred to Mr Nizamdeen.
However, I am required to determine if University of New South Wales is liable for workers compensation to be paid to Mr Nizamdeen, and I have provided my reasons as to why I am not satisfied that Mr Nizamdeen sustained a psychological injury which arose out of or in the course of his employment with his employer as provided for by section 4 of the 1987 Act.
There will therefore be an award for the respondent.

[2022] NSWPIC 17

12 January 2022