Rogers v State of New South Wales (Northern NSW Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Rogers v State of New South Wales (Northern NSW Local Health District) & Ors [2023] NSWPIC 325
APPLICANT:	Amanda Jane Rogers
FIRST RESPONDENT:	State of New South Wales (Northern NSW Local Health District)
SECOND RESPONDENT:	Maxie Shaw
THIRD RESPONDENT FORUTH RESPONDENT Member:	Vanessa Rogers Ianna Rogers Rachel Homan
DATE OF DECISION:	6 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; application for lump sum death benefit and funeral expenses; whether deceased worker sustained a psychological injury pursuant to section 4(b)(ii); whether injury wholly or predominantly caused by reasonable action with respect to discipline pursuant to section 11A(1); whether death resulted from injury; Held – first respondent liable to pay compensation in respect of the death; orders for written submissions in respect of discretionary interest, dependants, apportionment and payment of compensation.
determinations made:	The Commission determines: 1. Gregory Peter Shaw sustained a psychological injury to which employment with the first respondent was the main contributing factor pursuant to s 4(b)(ii) of the Workers Compensation Act 1987. 2. The first respondent has failed to discharge its onus in establishing that the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to discipline pursuant to s 11A(1) of the Workers Compensation Act 1987. 3. Gregory Peter Shaw died on 21 August 2018 as a result of the injury for the purposes of ss 25(1) and 26 of the Workers Compensation Act 1987. 4. The death was not caused by an intentional self-inflicted injury for the purposes of s 14(3) of the Workers Compensation Act 1987. The Commission directs: 5. The first respondent to serve and lodge any written submissions on the following outstanding matters within 14 days of receiving notification of this Certificate of Determination: a. discretionary interest pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, including the appropriate rate and period; b. the identification of any dependants who were wholly or partly dependent for support on Gregory Peter Shaw; c. apportionment of the lump sum death benefit; d. liability to pay funeral expenses pursuant to s 26 of the Workers Compensation Act 1987, and e. the payment of compensation pursuant to s 85A of the Workers Compensation Act 1987. 6. The applicant and second respondent to serve and lodge any written submissions in reply within a further 14 calendar days. 7. The parties are advised of the Commission’s intention to determine the outstanding matters at the conclusion of the timetable above.

STATEMENT OF REASONS

BACKGROUND

Gregory Peter Shaw died on 21 August 2018. Prior to his death, Mr Shaw had been employed as a registered nurse by the State of New South Wales (Northern NSW Local Health District) (the first respondent).
On 28 September 2020, solicitors acting for Amanda Jane Rogers (the applicant) made a claim for payment of the lump sum death benefit pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act). The applicant was Mr Shaw’s de facto partner.
Liability to pay compensation in respect of the death was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 26 November 2020.
The applicant sought internal review and, on 1 March 2022, the applicant was notified that the decision to dispute liability was maintained.
The present proceedings were commenced by an Application in Respect of Death of Worker (the Application), lodged in the Personal Injury Commission (Commission) on
3 November 2022. The applicant sought orders for payment of the lump sum death benefit and funeral expenses.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

On 9 November 2022, a delegate of the President issued a direction requiring the applicant to lodge additional evidence in relation to other family members identified in the Application in order to ascertain whether they wished to claim a portion of the lump sum death benefit and participate in the proceedings.
The matter proceeded to a preliminary conference on 8 March 2023, at which time directions were made joining Maxie Shaw (the second respondent), Vanessa Rogers (the third respondent) and Ianna Rogers (the fourth respondent) to the proceedings. The second respondent is Mr Shaw’s daughter. The third and fourth respondents are the applicant’s daughters from a previous relationship. Further directions were made regarding the filing of additional evidence and an amended Application.
At a further preliminary conference on 5 April 2023, the matter was referred to conciliation conference and arbitration hearing.
The parties appeared for conciliation conference and arbitration hearing on 25 May 2023 in Sydney. The applicant was represented by Mr James McEnaney of counsel, instructed by Ms Anna Tavianatos. The first respondent was represented by Mr Craig Tanner of counsel, instructed by Mr Paul Flocco. A representative from the insurer, Ms Sandona was also present. The second respondent was represented by Mr Greg Horan of counsel, instructed by Mr Michael Abboud.
There was no appearance for the third and fourth respondents at either the second preliminary conference or the conciliation conference and arbitration hearing. Correspondence was forwarded to the Commission from the third and fourth respondents’ legal representative indicating that they no longer wished to participate in the proceedings. I have proceeded in accordance with that advice.
During the arbitration hearing, a late application was made to further amend the Application to rely on a “disease” injury pursuant to s 4(b)(ii) of the 1987 Act with a deemed date of injury. To mitigate any prejudice to the first respondent arising from the late application, a timetable for supplementary written submissions was established.
I am satisfied that the parties to the dispute understand the nature of the Application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether Mr Shaw sustained an injury pursuant to ss 4 and 9A of the 1987 Act;
(b) whether any such injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to discipline pursuant to s 11A(1) of the 1987 Act;
(c)    whether the death resulted from an injury for the purposes of Division 1 of Part 3 of the 1987 Act, and
(d)    whether the death was caused by an intentional self-inflicted injury pursuant to
s 14(3) of the 1987 Act.
In the event of determinations favourable to the applicant in respect of the above issues, the parties further agreed that determinations by the Commission would be required in relation to:
(a)    the identification of any dependants who were wholly or partly dependent for support on Mr Shaw;
(b)    apportionment of the lump sum death benefit;
(c) discretionary interest pursuant to s 109 of the 1998 Act;
(d)    liability to pay funeral expenses, and
(e) the payment of compensation pursuant to s 85A of the 1987 Act.
The parties were advised at the arbitration hearing of the Commission’s intention to deal with the liability disputes first. Further directions would be made, as required, in respect of the remaining matters in the Certificate of Determination.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Amended Application in Respect of Death of Worker and attached documents;
(b)    Reply lodged by the first respondent;
(c)    Reply lodged by the second respondent;
(d)    Reply lodged by the third respondent;
(e)    Reply lodged by the fourth respondent;
(f)    documents attached to an Application to Admit Late Documents lodged by the applicant on 15 March 2023;
(g)    documents attached to an Application to Admit Late Documents lodged by the second respondent on 4 April 2023;
(h)    chronology prepared by applicant dated 25 May 2023;
(i)    chronology prepared by the first respondent dated 25 May 2023;
(j)    written submissions by the first respondent lodged on 9 June 2023;
(k)    written submissions by the second respondent lodged on 22 June 2023, and
(l)    written submissions by the applicant lodged on 23 June 2023.
No party applied to adduce oral evidence or cross examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by her on 15 July 2021,
17 May 2022 and 29 July 2022.
The applicant met Mr Shaw in May 2006 when he was aged 52 years and she was aged 48 years. The applicant sold her house in Ballina and moved to Lismore to be with Mr Shaw in 2007. The applicant and Mr Shaw lived in a rented flat on Keen Street.
For a period of time, the applicant and her daughters moved back to Ballina while her daughters completed high school. Later, the applicant lived in Byron Bay for two years.
Mr Shaw would stay with the applicant when he was not working.
Mr Shaw was employed as a psychiatric nurse at Riverlands Drug and Alcohol Centre (Riverlands) for 18 years. He was the longest serving member of staff and believed he was a valuable member of the team. Mr Shaw had a strong work ethic and would often accept extra shifts that other employees did not want to work. Riverlands and Mr Shaw’s friends there were at the centre of his life.
The applicant described Mr Shaw as an “addict in recovery”. His drug of choice was methamphetamine or speed which he used intravenously. Mr Shaw was a very active person and his use of speed aided his lifestyle. Mr Shaw suffered from chronic social anxiety and found that speed helped to alleviate his symptoms and allowed him to function more comfortably. Mr Shaw was a highly functioning addict and looked after his body by eating healthily, practising yoga, taking dance classes, cycling, swimming and running. Mr Shaw did not regularly attend a general practitioner as he was in good health. Mr Shaw had strict habits when he used speed, keeping his utensils in a specific box which he meticulously cleaned and packed away after each use.
Mr Shaw sought assistance for his chronic anxiety and speed addiction in about mid-2017. Mr Shaw was prescribed subutex and, by 2018, was using only a very small dose.
The staff at Riverlands were aware that Mr Shaw was a recovering addict. As a result of his own personal experiences, Mr Shaw ran groups in the centre to assist clients with their use of narcotics and alcohol. There was a meeting room attached to Riverlands where 12-step Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) meetings were held. Mr Shaw sometimes took clients to those meetings and almost invariably attended the meetings himself.
The applicant said that, as at March 2018, all was well in Mr Shaw’s world. He appeared to be his normal humorous self, maintaining his healthy daily eating and yoga regime and working as usual.
Out of the blue, Mr Shaw received a call from work not to come in for his shift the next day. Mr Shaw subsequently received an email from Wayne Jones, CEO of the North Coast Area Health Service advising Mr Shaw that he was suspended on full pay due to a complaint that had been made by a fellow registered nurse. The letter listed five allegations. Mr Shaw was not given the name of the complainant but subsequently learned that the complainant was a fellow nurse, whom he regarded as friend, named Wayne Holt.
In a subsequent letter, Mr Shaw was advised that he was to have no contact with his fellow workers except the person who had been allocated as his support person. He was not to speak of the matter to anyone other than a union delegate, his legal representative or his medical practitioner.
The applicant said Mr Shaw was devastated by the suspension and sought the assistance of a union representative to respond to the allegations. Mr Holt also met Mr Shaw for coffee and invited Mr Shaw to ring him if he needed support. At no time did Mr Holt disclose to Mr Shaw that he was in fact the complainant and the cause of the suspension and investigations.
On 23 May 2018, Mr Shaw was interviewed by a panel of three persons in relation to the allegations made against him. In early June 2018, Mr Shaw received a letter from Deirdre Robinson, General Manager of Mental Health, Drug and Alcohol Services, advising Mr Shaw that he could return to work but must formally apologise to the Network Manager, Corinne Maynard and Nursing Unit Manager, Matthew Perry and any other person they directed him to apologise to.
The period between March and May 2018 had been a dreadful time and Mr Shaw had not coped well with the situation. Mr Shaw had enjoyed interaction with his work colleagues and social interactions inside and outside the workplace. He loved his job with a passion. When he was told that he could not communicate with his workmates, Mr Shaw told the applicant that he was overwhelmed with a feeling of isolation. In addition, he was told he could not attend the 12 step programs in the meeting room next to Riverlands which he had been attending for 15 years. This was at a time when he needed that program as never before.
Mr Shaw’s exclusion from his workplace, the company of his friends and his 12-step meetings commenced him on a downward trajectory. Mr Shaw started using speed again and ceased participating in his usual activities including yoga and cycling. He considered what had happened to him an attack on his character and reputation. Mr Shaw was mortified and humiliated. His mood was so low he did not seem able to motivate himself as before.
When Mr Shaw received the letter from Ms Robinson advising that he could return to work, he was euphoric. Mr Shaw accepted immediately and texted a few fellow workers to let them know he was returning to the workplace. This included a text message to Mr Holt which the applicant said read something like,
“It appears I'm not a threat to humanity after all, and will be returning to work soon.”
Mr Shaw then received a letter dated 18 June 2018 from Wayne Jones referring to the instruction given to Mr Shaw not to discuss matters with any persons. The letter stated that Mr Jones was in receipt of further concerns, specifically that Mr Shaw had contacted a potential witness by text message about his possible return to work. This made the employee feel that Mr Shaw was targeting and harassing him. As a result, the period of suspension was continued to enable the new information to be properly assessed. It was determined that a final decision in relation to the proposed disciplinary action in response to the original complaint was to be placed on hold while that assessment took place.
Mr Shaw was “shattered” when he received this further letter. Mr Shaw came to know that the complainant was Wayne Holt. The applicant said,
“Greg was of the view that Wayne Holt, his so-called friend, had turned his life upside down. Greg had had no idea that this man was playing a sinister game with him. He immediately formed the view that Wayne Holt was a mole for the management at Riverlands, and that the management were out to get him. He had genuinely thought that he and Wayne Holt were friends.”
Mr Shaw denied sending threatening text messages to Mr Holt or any other person. Mr Holt was not able to show copies of the alleged text messages and the claims were found to be unsubstantiated.
As a result of the second suspension, Mr Shaw reached a new low point. His original support person was not able to support Mr Shaw during the second suspension due to family commitments. No one else was allocated by the management team at Riverlands to support Mr Shaw. Mr Shaw told the applicant that he believed this was a deliberate strategy to make him feel alienated. The original support person, Roland Gaidier, told the applicant that he had advised Riverlands’ management that he was seriously concerned that Mr Shaw was a suicide risk at the time of the suspension. Despite that warning, no action was taken to supply a support person.
Mr Shaw sought the help of a local psychiatrist, Dr Mark Scurrah and his general practitioner, Dr Lauren Adams. Mr Shaw was prescribed Endep to assist with sleep.
At the end of July 2018, over five weeks after being told of his second suspension, Mr Shaw received a letter from Deirdre Robinson advising that he was being issued with a formal disciplinary warning, but that when his registration with the Australian Health Practitioners Regulation Agency (AHPRA) was completed, he could return to work.
At this stage, Mr Shaw had been off work for five months and had been through hell. His mental health was extremely fragile. Even though he was now free to work, he had lost his trust that all would be well when he did return to work. He felt that management was out to get him and his mood did not lift after receiving the letter in the way that it had after hearing that the initial allegations had been dealt with.
Mr Shaw’s nurses’ registration with AHPRA had expired whilst Mr Shaw was on suspension and he was obliged to obtain a medical report before his registration could be renewed.
On 14 August 2018, the applicant travelled to Sydney to attend the premiere of a film that her daughters were appearing in. The applicant planned to be away for a little over a week. The applicant asked Mr Shaw to come with her to Sydney, but he said he couldn’t come as he had to obtain a medical report to complete his AHPRA registration. When the applicant left, Mr Shaw was in perfect physical health, as always. He was depressed and low but the applicant did not think he would do anything like commit suicide.
Whilst the applicant was in Sydney, Mr Shaw arranged to be seen by Dr Christopher Wee to obtain a medical report for his registration. As Dr Wee had not seen Mr Shaw regularly, he referred him back to Dr Scurrah for the necessary document.
While she was away in Sydney, the applicant spoke with Mr Shaw over the phone and by text messages. Mr Shaw sounded well until Monday, 20 August 2018, when the applicant called an ambulance from Sydney as his breathing sounded laboured and shallow.
Mr Shaw turned the ambulance away. The applicant expressed the belief that at that time, he knew he would die and that was what he wanted. Mr Shaw took the drugs available to him slowly.
The applicant said a suicide note was found in Mr Shaw’s computer. It had been drafted on 18 June 2018 but edited at 12:38pm on Saturday, 18 August 2018.
Mr Shaw died on 21 August 2018. The renewal of his nursing registration arrived on
24 August 2018.
Following his death, the applicant checked Mr Shaw’s phone and discovered that on
16 August 2018 he had texted an old friend asking him to get some “white powdery slowing agent”. The applicant understood this to be heroin. Mr Shaw was not a regular user of heroin and the applicant had only known him to take it on one previous occasion, which resulted in an overdose. This had occurred during the period when the applicant had moved to Byron Bay.
The applicant stated:
“I can only but strongly believe that for him to take his own life, while I was away, Greg was in such a state that he no longer was his normal self. He was no longer in control of his emotions and feelings, and he seemed utterly lost. He was so overwhelmed by having been accused of things that were the antithesis of his character and essence, and having been so poorly treated by his work, left abandoned and isolated, a job which he had loved so much and gave so much of himself to. To kill himself over this, Greg was most definitely not thinking clearly of the bigger picture of the lives we had imagined and talked about often into our retirement years.”

The applicant had two meetings with Deirdre Robinson and Helena Bernard from HR following Mr Shaw’s death. The applicant complained about how Mr Shaw had been alienated from his workmates and his support group at the 12-step meetings during his suspensions. During both meetings, clear admissions were made about the poor handling of the allegations against Mr Shaw. Ms Robinson agreed he had been dehumanised and lost in the process. Ms Robinson said words to the effect that he would be used as a lived case to ensure that nothing like this ever happen to another nurse. Mr Shaw was honoured by a memorial plaque at the entrance of Riverlands and the planting of a memorial tree.
The applicant said that the flat she shared with Mr Shaw at Keen Street was in a rundown condition. The drains were blocked and the bathroom had flooded. Many of the powerpoints were no longer working. Although Mr Shaw had contacted the landlord, nothing was done. The applicant and Mr Shaw had intended to move but following Mr Shaw’s suspension in March 2018 and the deterioration of his mental state, they were unable to make plans.
The applicant said that she and Mr Shaw had a solid and happy relationship of over 11 years which they had wished to maintain. As far as she was concerned, she did not see them ever breaking up. Mr Shaw did not ever speak to her about being worried about the relationship. Although she was feeling the beginnings of an “empty nest syndrome” following her daughters’ move to Sydney in May 2018. They were waiting for Mr Shaw’s work issues to be resolved before they decided on whether to remain in Lismore or move elsewhere.
While the applicant had been away in Sydney, she made sure to speak to Mr Shaw frequently. Mr Shaw knew that the applicant had a return ticket booked and was only going to be away for a week. The applicant had previously travelled to Europe for six weeks and the USA for four weeks during their relationship. Mr Shaw was very capable of getting on by himself.
The applicant described conversations with Mr Shaw about his situation as follows:
“He said: ‘I think, the truth is there is no way I can go back. It just can't happen. I don't think I can do it, and I don't think anyone else can do it, and I don't think anyone wants to do it, really.’ He said further: ‘There is nothing much left in my tank, Mandy’. ‘I am struggling you know, all the time, battling an urge to kill myself really, to be honest’. ‘If I resign, there would be a resolution. Every day I wake up with it, and it is doing my head in completely. I'm just in a constant state of anxiety and angst and fear. It doesn't go away. Got nowhere to go.’ He went on to say: ‘That's not my truth really, my truth is like completely opposite to all this. I have never ever really had any malevolent intensions to anybody and that's the truth’ .... ‘The thought of an end to it all is quite appealing. Hum, anyway, that's true, I'm not making it up. As anyone would, I am looking for ways to make it all go away.’ ‘You go through like an evaluation process, like what's the future hold what's the past hold. I really struggle getting out of bed these days. Three or four goes.’”
The applicant provided transcripts of 10 tape recordings of conversations she had with
Mr Shaw during the period from 29 March 2018 and 5 August 2018. The applicant said she had been videotaping and audio taping conversations between herself and Mr Shaw for at least six years prior to his death. The applicant said Mr Shaw had been a great linguist and a comic genius with a black sense of humour. They had decided to co-write a book or situation comedy based on their relationship. The applicant had been capturing material that they would otherwise forget.

Witness evidence

The applicant relies on written statements and letters prepared by a number of witnesses.
In a letter dated 8 October 2018, Timothy Kilroy, a neighbour of Mr Shaw, stated,
“I would often see Greg in the common area to our apartments where we would have general conversations. In the months preceding Greg’s death he shared with me that he was not working. Greg did not specify the details as to why he was not working but simply stated words to the effect that there was an investigation going on at his place of employment and that he was a party to this investigation. During this time I noticed a change in Greg’s demeanour and he verbalised to me that he was disappointed in not being able to work and that his absence from work was causing him a lot of stress.
On the evening on Monday 20 August 2018 an ambulance were called to Greg’s apartment. I was with Greg in his apartment and two male ambulance officers who assessed Greg. I observed the ambulance officers for approximately 10 minutes with Greg where they asked Greg questions and used various medical apparatus’s on Greg. At this time Greg stated words to the effect: ‘There have been some things going on at work. I have been experiencing a lot of stress’.
I believe without a doubt that the general stress Greg experienced for the months he was away from employment contributed greatly to his death.”
Carol Allison, an administration/clinical support officer employed at Riverlands provided a statement dated 23 May 2022. Ms Allison stated she had worked with Mr Shaw for 15 years and was in the same unit as Mr Shaw for four of those years. Ms Allison stated:
“Not long after his suspension, I saw Greg in town on occasion, and his appearance shocked me. Greg was looking drawn and not his usual self. He had lost weight and certainly did not look like the Greg I had known at work.”
Ms Allison stated that when staff were told that Mr Shaw had been suspended from work, they received a directive from Corinne Maynard that they were not to take calls from
Mr Shaw or let him into the facility or contact him. Ms Allison stated,
“Riverlands was Greg's world and he enjoyed coming to work and enjoyed what he did for the clients. He was someone who not only the staff respected but the clients respected. He was an extremely respected man in his field. What happened to Greg with his suspension, and subsequently his death by suicide was a shock to us all.
I can only imagine how Greg Shaw felt, being cut off from his work life, his friends, his patients, the AA and NA groups that he attended, and having his future and the career that he loved put in jeopardy.”
Donna Huxley, a senior administration officer with Riverlands, provided a statement dated
24 May 2022. Ms Huxley said she had worked with Mr Shaw for about 13 years. Ms Huxley described Mr Shaw as full of fun and having a great sense of humour, stating:
“I realise that some people might have misunderstood Greg's sense of humour as it was very quirky, but he always made me laugh.”
Ms Huxley stated that she was told after Mr Shaw suspension that if he rang or turned up at Riverland she was not to engage or let him in. Ms Huxley knew that Mr Shaw attended both AA meetings and NA meetings at Riverland and thought it was unfair that he could no longer attend those meetings. When Matt Parry told her that Mr Shaw had threatened the senior staff and that was why he was suspended, Ms Huxley laughed and said, “Do you think he will hit them over the head with his yoga mat?”
Ms Huxley said Wayne Holt had been in the Army for some years and was somewhat black-and-white in his judgement. She had heard Riverlands staff say he was like “cement”.
Ms Huxley said she did not contact Mr Shaw during his suspension but did run into him in town one day. He gave her a great big bear hug. Ms Huxley thought he did not look very well.
Ms Huxley stated,
“I felt, as did others, that the system had let Greg down. I, and most of the staff that I spoke to, were concerned about how Greg's suspension was handled, and didn't really understand why he had been suspended. It seemed as if he had been found guilty of an offence before any offence had been proven.”
Caroline Howells, a clinical nurse specialist, provided a statement dated 10 June 2022.
Ms Howells said she commenced employment at Riverlands in 2017 and worked with
Mr Shaw. Ms Howells described Mr Shaw’s quirky sense of humour and said he loved a joke.
Ms Howells said that Riverlands was not a very happy place to work and said that staff were bullied and even shouted at by management. Not long after she joined the staff, a new nursing unit manager, Matt Parry was appointed. He was a young man and moved to Lismore from Sydney. Corinne Maynard introduced other new staff members from Sydney who lacked experience and local knowledge. They were given full-time positions in place of trained and experienced local staff. One of the new nurses was Wayne Holt. After leaving the Army, he had trained as a nurse and was inexperienced. Because of senior management issues, a lot of staff members left and, at one stage, there was a shortage of senior nurses. Mr Shaw was doing constant night shifts and Ms Howells recalled him complaining about this to her.
Ms Howells said that staff were called into a meeting and told by Ms Maynard not to contact Mr Shaw, take his calls or let him into the complex following his suspension. Ms Howells stated:
“I was very concerned about the consequences of these directives on Greg Shaw. Riverlands, his work, the patients, and his work mates, were his life. Also, he was very involved in the AA and NA meetings held on the premises at Riverlands, and I realised that for him to be banned from those meetings would be damaging to him, and also to the other attendees.”
Ms Howells said she knew that it was Wayne Holt who had complained about Mr Shaw as
Mr Holt had told her this. Ms Howells said,
“I recall on one occasion I could not help myself, and asked Wayne Holt ‘Why have you done this to Greg? You have taken away his livelihood. You should have spoken to him about any concerns you had, and not report him’. I was worried that the grievance procedure had not been followed. Wayne Holt seemed a bit shamed faced, and said ‘It's alright, I have spoken to Greg, and he is fine’."
Ms Howells stated further,
“As far as I could see the whole way that the complaint against Greg Shaw was made was not by the book, and was against the Local Health District grievance policy. Proper processes and procedures had not been followed by senior management.”
Debra Houghton provided a statement dated 28 July 2022. Ms Houghton said she had been friends with the applicant for 35 years and met Mr Shaw about eight years earlier.
Ms Houghton moved to Lismore in December 2017.
Ms Houghton said she recalled visiting the applicant and Mr Shaw just after Mr Shaw was stood down for what Mr Shaw said was “making a joke”. Mr Shaw appeared to be very upset about the situation and said he was afraid he might never be able to return to his job.
Mr Shaw mentioned that his co-workers were not allowed to speak to him and he was being railroaded out of his job. Ms Houghton saw the applicant around town on his bike over the next couple of weeks and said he was looking unkempt and losing weight.
At a birthday party on 5 May 2018, Mr Shaw appeared depressed and introduced himself as “an unemployable and terrible human who probably wouldn’t work again”. Over the next few months, Mr Shaw told her that he really missed his job and that nobody would talk to him.
On or about 16 August 2018, Ms Houghton saw Mr Shaw at a café in Keen Street having coffee by himself. He looked dishevelled and forlorn. Ms Houghton said,
“I asked him how he was going. He made a joke about wallowing in self-pity because he had lost his job and he is unemployable now. I said ‘Come on Greg you are okay really aren't you?’ In reply he said ‘I am going to throw himself under a bus’. He was laughing it off. I asked if he needed some company instead, as that would be a dreadful thing to do. He said he was okay, and that he would go for a ride on his bike to clear his head. He said, ‘They are treating me like a criminal’. I said, ‘It is a tough call especially without answers’ and added, ‘Is there something I can do for you?’ Greg then said, ‘I loved my job, can you get that back for me?’”
Peter Wilson provided a statement dated 21 August 2022. Mr Wilson ran a naturopathy practice where he first saw Mr Shaw in about 2010. Mr Wilson described Mr Shaw as a nice man with a great sense of humour. About a year before his death, Mr Shaw commenced some deep massage treatment for calming the nervous system. Mr Wilson said,
“I recall that towards the middle of 2018, Greg came to consult with me, and I was shocked by his appearance. He did not look well, and certainly did not look as he generally did. Whereas before he dressed well and always looked well turned out, on this occasion his appearance was unkempt. He had not shaved. He looked to me as if he was suffering from depression. Greg told me that someone where he worked had made a false claim against him. He said to me: “They have taken my job, they have taken my life". I remember thinking that he really must have loved his job. Whatever had happened to him, he certainly gave the appearance of having been badly impacted by it. I remember saying to Greg, ‘It must be just about time for you to retire anyway isn't it?’ He replied with words to the effect that he did not want to retire.”

Employment and related records

A document titled, “RISK ASSESSMENT: Assessment of Concerns about a Staff Member” was completed by Matt Parry in respect of Mr Shaw on 28 March 2018. In response to a question as to what the alleged/suspected behaviour or issue of concern was, the assessment stated,
“Registered Nurse at Riverlands Greg Shaw was reported to have made threats to obtain firearms from the dark web in order to shoot people at Riverlands. These threats were made on three occasions to Registered Nurse and colleague Wayne Holt; the first in late 2017, the second in early 2018, and the most recent on 23 March 2018. Heather Miles, Registered Nurse, also reported similar comments being made at evening handover on 25 March 2018. Mr Shaw reportedly made reference to management being shot in the first instance, but inferred that others may come to harm.”
The assessment stated that there were no known similarly concerning performance issues in Mr Shaw’s employment history. It was noted however that Mr Shaw had disclosed a past history of substance misuse. Mr Holt had disclosed that he believed Mr Shaw could have relapsed and this may be impacting on his judgement/mental state. Since December 2017, Mr Shaw had taken excess sick leave. Mr Parry had been due to meet informally with
Mr Shaw regarding his sick leave in February 2018. The timeline of threats directly correlated to Mr Shaw being managed around his excessive sick leave and implementation of new models of care by new management at the service.
The assessment recommended that Mr Shaw be suspended from duty and access to Riverlands refused during any suspension. Police were to be informed of the threats. The assessment was supported by Corinne Maynard.
In a letter to Mr Shaw from Wayne Jones, Chief Executive, dated 28 March 2018, Mr Shaw was advised of allegations regarding his professional behaviour and conduct within the workplace, identified as:
“1. During the week of 4 December 2017 you stated to another staff member that you were going to shoot people at Riverlands. It is alleged that in this conversation, you stated that you knew which offices to go to first (referring to management) and that you knew when they worked.
2. During the week of 15 January 2018 you made comments to another staff member that you were going to go onto the 'dark web', purchase firearms and return to Riverlands to shoot people and that 'no-one gets out alive'.
3. On 23 March 2018 you made comments to another staff member that you were going to go onto the 'dark web, purchase firearms and shoot certain individuals'.
4. During this conversation on 23 March 2018, you said that you were going to shoot another Registered Nurse in the legs so that he could get workers compensation.
5. During handover on the night of 25 March 2018 in front of staff participating in handover, you stated you were going to get a firearm and shoot people Riverlands.”
Mr Shaw was advised that the allegations were serious and, if substantiated, represented a serious breach of the NSW Health Code of Conduct and would result in disciplinary action up to and including dismissal.
Mr Shaw was given an opportunity to provide a written response by 12 April 2018. Mr Shaw was advised that a risk assessment had been conducted and he was to be suspended from the workplace, on pay, effective immediately until the investigations were finalised. A number of mandatory notifications had been initiated, including to the New South Wales Police. As the matter was confidential, Mr Shaw was instructed not to discuss the matter with any persons, with the exception of his support person, union, legal representative or healthcare provider/s. Mr Shaw was instructed not to enter the Riverlands premises until the matter was finalised. Details of the Employee Assistance Program (EAP) were provided.
An unsigned draft letter, dated 4 April 2018, apparently prepared by Mr Shaw in response to the allegations is attached to the Application. Mr Shaw indicated that he bore no malice or harmful intent towards anyone associated with the workplace. Mr Shaw was concerned to have unintentionally generated a state of apprehension and discomfort for his workmates.
Mr Shaw said it would have been appreciated if some form of intervention had been initiated to identify and rectify areas of concern. It was noted that Riverlands had been undergoing rapid and dramatic cultural shifts characterised by an influx of younger, energetic staff members while older, get more experienced staff had been leaving. Mr Shaw, commented,
“It is at this point that I identify my own possibly quirky, certainly mildly eccentric but totally benign way of working/ navigating in trauma rich environments, both in and out of the workplace. My intentions have always been to contribute to a supportive and productive workplace environment. To this end; up until now, as can be attested by anyone familiar with my work, utilized, albeit at times a little dark, humor.”
Mr Shaw suggested that the conversations described in allegations one and two may have involved an “imaginary reconstruction” in light of media reporting of similar events around the globe. Mr Shaw also noted that he and a colleague were working on a movie production outside of work with parallel themes. Mr Shaw denied allegations three, four and five.
A signed response to the allegations, dated 16 April 2018, is attached to the first respondent’s Reply. In that letter, Mr Shaw denied the allegations and stated,
“I fully appreciated the seriousness of the allegations. I also understand the nature of the process proceeding from the allegations. I have never wished harm upon my fellow workers or management. I continuously lament this situation from everybody's perspective.”
On 14 May 2018, Acting General Manager, Ian McLeish wrote to Mr Shaw acknowledging his response to the allegations. Mr Shaw was invited to attend an interview in order to complete a more thorough review of his conduct and provide him with a further opportunity to provide a response. The applicant was invited to bring a support person and reminded of the counselling service provided by the EAP.
On 30 May 2018, Wayne Jones wrote to Mr Shaw again, noting his response to the allegations and attendance at an interview on 23 May 2018. Mr Jones, commented,
“I have been advised that during your interview you showed remorse and provided an explanation for your behaviour, in that your comments were made in jest and were not meant to be taken seriously and that you posed no threat to anyone. I have been informed you expressed sincere remorse to have upset or offended anyone in the workplace.”
Mr Shaw was advised that it had been determined that his conduct was in breach of the NSW Health Code of Conduct. It was proposed that Mr Shaw return to the workplace and be issued with a formal disciplinary warning. Any further breaches could lead to further disciplinary action, up to and including dismissal. Mr Shaw was informed that no final determination had been made until he had an opportunity to make further comment.
Mr Shaw’s response to the proposed action was requested in writing by 13 June 2018.
Mr Shaw was again instructed not to discuss the matter with any persons other than his support person, union or legal representative or healthcare provider/s and reminded of the EAP counselling service.

A draft response to the proposed disciplinary action was prepared by Mr Shaw on 11 June 2018. In that document, Mr Shaw repeated much of his initial draft letter of 4 April 2018, saying he had omitted it in his response of 16 April 2018 due to conflicting advice from his union/legal support team. Mr Shaw added:
“Complicating matters further for myself was the perceived need for anonymity, thus severely compromising my capacity to respond directly to the allegations. The situation for me was one of ceaseless anxiety and increasing sense of powerlessness. I include this ‘lived’ insight in the hope that others may be spared one of the most ‘traumatic’ experiences of my entire career, possibly life in general. If possible face to face debriefing with those affected by these events could go some way to initiating a healing process. The range of remedial strategies available to management is another unknown, apart from the formal disciplinary warning attached to my work record.”
Mr Shaw said his coping mechanism of humour had proved inappropriate and highlighted his personal defects of character in the most challenging of ways. Mr Shaw said he was “totally mortified at the unfolding of these events” and had been living with a “deep sense of remorse and regret”. Mr Shaw accepted responsibility for the inappropriate nature of his own actions and said he did not intend to diminish their seriously negative effect on others but stated,
“This experience has been the most devastating of my career and one I would never wish to repeat.”
A signed letter of response, dated 13 June 2018, stated simply,
“This is the hard copy acknowledging and accepting the issuance of a formal disciplinary warning.”
On 14 June 2018, a further “RISK ASSESSMENT – Assessment of Concerns about a Staff Member” was completed by Matt Parry and recorded:
“Registered Nurse at Riverlands Greg Shaw was reported to have sent harassing texts to RN Wayne Holt on or before the 5th June 2018, referencing that he was returning to work after his current suspension, and insinuating that he was aware of Wayne Holt’s involvement in the investigation. Texts were shown to Matt Parry as Wayne Holt’s manager. Wayne replied to Greg requesting he cease contact as he felt harassed. Greg Shaw contacted Matt Parry on 13th June and left a voicemail referencing his impending return to work. The voicemail was bizarre in content, with him speaking in an English accent, over familiar and jovial, and referencing that 'his spies' had informed him he was no longer on the roster. Greg Shaw remains suspended from duty whilst threats he made in the context of nursing handover are investigated. The texts correspond to the date he received the letter outlining a first and final warning would be proposed, and therefore he would be returning to the workplace.”
The risk assessment noted that Mr Holt had forwarded the text to Mr Parry and these had been forwarded to Helena Bernard in HR. The voicemail was described as “incongruent, inappropriate and bizarre”. It was noted,
“Greg has been forthcoming in disclosing a past history of substance misuse. During the course of the current investigation staff members disclosed that they are concerned Greg may have relapsed, and/or are concerned for his mental state. He sounded intoxicated when Matt Parry returned his voicemail today, and has been witnessed on one occasion appearing apparently intoxicated in the street by Matt Parry.”
The risk assessment recommended that Mr Shaw’s suspension continue whilst further investigation was undertaken.
In a letter to Mr Shaw from Wayne Jones, dated 18 June 2018, Mr Shaw was advised that
Mr Jones was in receipt of further concerns,
“…specifically, that you have contacted a potential witness by text message/s about your possible return to work, communicating in a way that has made the employee feel that you are targeting and harassing him.”
Mr Shaw was reminded that he had been instructed not to discuss these matters with other persons and maintain appropriate professional level of conduct. Mr Shaw was advised that if proven, this conduct represented a serious breach of the NSW Health Code of Conduct and may constitute reprisal action taken against a person involved in a complaint. Mr Shaw was advised that it had been decided to continue his current period of suspension on pay to enable the new information to be fully and properly assessed. It had also been determined that the final decision in relation to the proposed disciplinary action in response to the original complaint be placed on hold. Mr Shaw was invited to provide a written response on or before 2 July 2018. Again, the applicant was reminded of the EAP counselling service.
In a signed response to Mr Jones, dated 27 June 2018, Mr Shaw stated:
“I would like it noted that assumed author of this matter, with whom I have had a longstanding amicable relationship both within and out of the workplace, offered to be my support person for the duration of proceedings, (as can be independently verified) both during a meeting to discuss union matters, and in conversation with other employees, (specifically my primary support person, Mr Gaidier). All conversations initiated by the assumed allegiant. I have consciously and assiduously avoided discussing any issues remotely connected to the proceedings, apart from with those specified in the documentation. I declined the authors offer of daily supportive connection, explaining it could be in breach of the stipulated confidentiality agreement and wisdom would dictate no contact whatsoever during this period. At no time have I been aware of the source of the allegations, as deemed fit by management to minimise potential complications. I agreed to inform him immediately of the result of the matters, as he so implored. Upon receipt of the result of managerial deliberations, (for which words cannot express my relief and gratitude). Thinking the process completed, I informed the gentleman. Unfortunately, I foresaw no reason to save the texts and from memory contain and would have no rationale to contain any implication of threat or harassment, and constituted communication between friends, leading up to a consolidation of preplanned celebratory or commiserational get together. I cannot describe the feelings of nausea and bewilderment I experienced when the final text included the word harassment. Communication ceased immediately.”
Minutes of a meeting held on 2 July 2018 at approximately 2:30pm between Mr Holt, Trent Taylor and Katrina Van Blanken recorded,
“When asked about the context in which the Text messages between Wayne and Greg were made, Wayne advised he was doing welfare checks on Greg as he was concerned about Greg's Mental Health. Wayne advised he would have left guilty if Greg had of taken guns to work or self-harmed.
When asked did Wayne and Greg have a friendship outside of work, Wayne stated he had been at party's where Greg had been.
Wayne does not feel safe if Greg was to return to work but will do as directed.
Wayne advised he had noticed Greg's altered state at work ie: Pinhole Pupils
When asked did Wayne report this to his Line Manager he stated - No
When asked did Wayne feel comfortable reporting these concerns to his NUM - he asked Yes
KVB asked Wayne if he wouldn't mind showing us the Text messages on his phone. Wayne pulled his phone out of his pocket, after Wayne scrolled through his phone, Wayne stated that he had deleted the Text.”
An unsigned document apparently prepared by Mr Shaw on 4 July 2018 recorded,
“PC to unit manager, (Matt Parry) inquiring re possibility of me attending 12 step meetings at riverlands, outside of work hours) informed that the original proximity restrictions still enforced and that future attendance outside of workhours as a private citizen was also an issue of contention.”
On 9 July 2018, Deirdre Robinson wrote to Mr Shaw advising him that his registration as a registered nurse had been due for renewal on 31 May 2018. Mr Shaw was asked to provide immediate advice as to his intentions regarding re-registration.
On 13 July 2018, Mr Shaw wrote to Ms Robinson, indicating that he had made an application for fast-track registration. On 16 July 2018, Mr Shaw wrote to Helena Bernard, indicating that he was monitoring his fast-track registration application made on 12 July 2018.
On 23 July 2018, Ms Robinson wrote to Mr Shaw regarding the allegations of harassment and breach of confidentiality. Mr Shaw’s response, dated 27 June 2018, was noted. Mr Shaw was advised:
“This matter has been thoroughly reviewed. It has been determined to close these issues following consideration of your response and the evidence available to the service. However, I take this opportunity to remind you that your behaviour needs to be accordance with the NSW Code of Conduct (PD2015_049) and comply with reasonable directives by Management at all times.”
Ms Robinson noted, however, that as registration was a requirement of Mr Shaw’s position, he was now not eligible to be employed in his role. The suspension from work would continue until Mr Shaw was fully registered. Mr Shaw was advised of leave available to him for this duration.
On 26 July 2018, Ms Robinson wrote again to Mr Shaw regarding the original complaints made against him. It was noted that Mr Shaw had accepted the proposed disciplinary action in correspondence dated 13 June 2018. Mr Shaw was issued with a formal disciplinary warning and advised that once his current registration with AHPRA was finalised, he was to return to his substantive position. Mr Shaw was also directed to formally apologise to Corinne Maynard and Matt Parry for his inappropriate conduct. It was noted that they may also direct Mr Shaw to apologise to other staff members affected by his conduct.
Ms Robinson’s letter reminded Mr Shaw of the requirements of confidentiality and the confidential counselling service provided by the EAP.
An undated, typed document from Mr Shaw’s computer, titled “my beautiful friend, the end” reads:
“I know there's nothing adequate to say to ameliorate the rage and valid conflicting emotional chaos I am leaving behind. I have had some practice myself in somehow finding a place of balance between anger and compassion. I guess I really should give thanks for the joy and delight I have been blessed to receive from those with whom I have shared time and place with. Somehow, I never really considered that I would find myself in this situation and secretly marvelled at the ‘chutzpah’, if that's not culturally insensitive, of those choosing to bring the gift of awareness to an abrupt and unexpected end. There is no blame, there is no shame. My inner world has become an ‘unhappy’ and desolate place, apart from the love I feel for you all. I will never know which choices, or why, have brought me to this point of no return, but they were mine alone. I am torn and tormented by the love and affection I have received from others but have proved incapable of feeling for myself, or adequately returning. Another of those incessant paradoxes which I have been unable to process. As I am so fond of saying,......... anyway,,,,, my luck seems to have run out, I wish I had some words of wisdom but if I did I wouldn't be so blatantly stupid. The grand finale of the past few months, despite my personal "Alamo", or "stockade" and ultimately successful duplicity, have highlighted the absurdity of my self-created crucible of a one-person genocide.”
A screenshot attached to the Application indicates that the document titled, “my beautiful friend, the end”, was last edited on “8/18/2018, 12:38 PM”.
A screenshot attached to the first respondent’s Reply, indicates that the same document was authored by and last modified by Mr Shaw. The document was last modified and created on a date which is blurry but reads either “18/06/2018 12:38PM” or “18/08/2018 12:38 PM”.
Notes of a meeting between the applicant, Ms Robinson, Helena Bernard and Karen Veigh on 19 December 2018, were sent in an email on 5 January 2019. According to those notes, the applicant commented that “Wayne” had offered support to Mr Shaw by coming over to his house. The applicant asked why it was okay for Wayne not to abide by the same confidentiality required of Mr Shaw. Ms Bernard is noted to have responded that Wayne had an obligation as an employee to report the comments and he was genuinely concerned about Mr Shaw’s health. Ms Bernard was noted to have said that they had received good references from staff of Mr Shaw’s good character and that was why he was reinstated.
A question was asked why the second allegations from Wayne about feeling harassed and threatened were taken so seriously. Given the good character references and assurances from staff members who had worked with Mr Shaw for over 18 years. Ms Bernard was noted to have responded that the texts were perceived as threatening. The applicant’s thoughts at the time were recorded as follows,
“Surely to God, anyone working within and with basic understanding of mental health would recognise that after an already prolonged suspention, and after lifetime of public serve and 18 years in same service, to clear a man of such allegations and write to let him know the outcome is in his favor and what measures are needed to return to work asap, only to pull the rug from under his feet during his period of massive relief, was a cruel and potententially dangerous action (as it turned out it killed him) there’s only so much anyone can take, and this second bout of slander put greg into such a deep place of dispair ... one of no return .....”
A comment was made that it was the second suspension that sent Mr Shaw “over the edge”.
The notes indicated that the applicant queried why it took so long to investigate Mr Holt’s allegations. It had been communicated from “Roland” to “Matt” that he was very concerned about Mr Shaw and feared he could suicide. The applicant queried how the employer had fulfilled its duty of care to Mr Shaw.
Ms Robinson was noted to have stated:
“Dee said that greg’s obvious gentleness came out during the investagive process .... but doesnt make up for whats happened. ... karen kept reminding them both that it was the second suspension that tipped him over the edge ,,,, and it really should never have hapened .... should have been handled in house... department let greg and mandy down duty of care falls flat... ... HCCC Dee not sure what will do require them to look at their processes ..... but Dee also said that this ''particular situation" highlights some things for her going into the future ... training for managers at all different levels ..... this issue is a key learning piece for management to have a think about the way events are managed, especially in terms of escalation and what is an appropriate escalation and what isn’t, and ‘at the very least, being respectful to Greg, is making sure this doesn’t happen again’
I ask how things could have been done differently
Dee responds what she’d like to as a ‘live case review’ timelines, the incidence lapse of registrations, all compounded for Greg that sense of isolation… Because now there’s a ‘notification and an investigation that was unsubstantiated”. There’s been the text and extension of suspension and lapse of registration goes for further isolation from work…’
…Dee says “and this is a case where managers need to think about humanising staff and the key piece in this is in remembering that this is a human being and sometimes the process becomes the focus and people become dehumanised in the process because it’s about making sure the process happens”

Medical evidence

Clinical records from Mr Shaw’s general practitioners at the Lismore Clinic, indicate that
Mr Shaw had attended consultations reporting symptoms of anxiety and depression during 2017. Mr Shaw was prescribed Endep and, on 11 July 2017, it was noted he had been tolerating it well and his motivation had improved. Mr Shaw was referred to a psychologist, Ms Sue-Ellen Taylor.
Mr Shaw completed a Depression, Anxiety and Stress Scale (DASS) test and a Mental Health Care Plan was prepared on 13 July 2017. Diazepam was prescribed.
A report from Ms Taylor to Dr Tara Thambimuthu, dated 1 December 2017, described:
“…symptoms of depression, anxiety and stress since July 27, 2017. He reports that he has been going through a difficult time as he assesses his stage of life and faces the prospect of retirement and the possible end of a long-term relationship with his partner.”
On 5 December 2017, Dr Thambimuthu recorded a consultation as follows:
“mood is still low.
struggling with concept of retiring in 18 mo
difficulties with partner (partner issues not disclosed today - as per Sue Ellen Taylor’s letter – scanned to file)
has passive suicidal ideation
nil active plan
anhedonia
sleeping okay, except on shiftwork
has also been reflecting on previous events in life which have been contributing to stress and anxiety
doing yoga and dance regularly, though not always motivated to attend dance”
On 26 February 2018, Dr Christopher Wee saw Mr Shaw in relation to the renewal of scripts. Mr Shaw reported that he was still having difficulty sleeping and using Diazepam when he was on night shifts. Mr Shaw was tolerating Endep well and felt that it was helping him.
Mr Shaw wished to wean down his dose. Mr Shaw was noted to be appropriate, denied any passive ideation or plan to harm himself or others and was assessed to be at low risk of self-harm.
The next consultation was recorded by Dr Lauren Adams on 12 July 2018. Mr Shaw reported:
“Multiple life issues at present:
-    relationship issues, partner with multiple health issues
-    housing – current house multiple structural issues
-    work – on suspension, AW further disciplinary hearings are issues with co-worker.”
Mr Shaw asked to increase his dose of Endep and noted that he had an appointment with a psychiatrist that afternoon. Mr Shaw reported ongoing insomnia and denied suicidal ideation or intent. Dr Adams noted,
“Examination:
Looks well.
MSE normal.
Not obviously intoxicated”
On 12 July 2018, consultant psychiatrist, Dr Mark Scurrah prepared a report for Dr Adams, which recorded:
“As you are aware, Greg is a long-term employed nurse of Riverlands (18 years). He made a number of flippant comments in the workplace (which were not said with intent) which were then reported by a person he thought was a friend to management, which then set in train a series of events leading to his suspension. Whilst he has successfully appealed the initial allegation, two more allegations have been made. His union is appealing these.
As you can expect, he is shattered by this process, and although he is suspended on his normal pay, it has damaged his self esteem/confidence, exacerbated a mild pre-existing Depression/anxiety and he is now waiting for his union to appeal the last two. He believes the union will succeed.
He will soon increase his Endep to 35 mg at your recommendation. This will help his sleep. Ideally, the dose to be aimed for is 50 - 150 mg in 10 mg increments.
Fortunately, he is receiving pay, currently WorkCover is not involved (although that would be equally applicable) and Endep is beneficial.
He will restart cycling and yoga (which stopped when this began).”
On 14 August 2018, Dr Wee recorded that Mr Shaw presented requesting psychiatric clearance for registration from AHPRA to return to work. Dr Wee recorded that as he had only met Mr Shaw once in February there had been an insufficient amount of time to establish a reasonable therapeutic relationship to make a clinical call on his psychiatric health and capacity. Given Dr Scurrah was his treating psychiatrist, Dr Wee considered
Dr Scurrah would provide the best assessment and judgement about Mr Shaw’s capacity for work. Dr Wee observed that Mr Shaw was not mentally disordered on consultation and was at minimal risk of self-harm or harm to others.
Dr Scurrah also prepared a letter on 14 August 2018, addressed to Mr Shaw, noting that AHPRA had requested a medical report. The letter noted that the applicant had been seen on 12 July 2018 with a “follow up consultation” on 15 August 2018. Dr Scurrah stated:
“My notes do not reveal information which would place Mr Shaw’s clinical acumen in assessing and managing patients within his long-term employment in a public institution in a compromise state. I have no information from his employer, general practitioner or Mr Shaw which reveals he has a psychotic illness, drug and alcohol issue or a major personality disorder which would interfere with his role performance. To the contrary, he has been a long-term employee of the public hospital service in a drug and alcohol unit (18 years). I have not been provided any information which indicates she cannot continue as a nurse within that environment.”

An ambulance electronic medical record, dated 20 August 2018, indicates that Mr Shaw was seen by paramedics following a call at 18:57. The record stated:
“Herewith PT who met paramedics at door and stated he was having a panic/anxiety attack. Initial call was to a stroke. PT involved in an investigation at work, causing him a great deal of stress. PT is settling down, and doesn’t want to go to hospital.”
An ambulance electronic medical record, dated 21 August 2018, indicates that Mr Shaw was found deceased following a call at 16:48. The record stated:
“O/A – PT sitting on toilet and bathroom slumped over deceased. Friend and neighbour on scene. Friend states he came over to check on him and found him deceased. Neighbour states last saw PT alive and breathing at approximately 1400hrs this PM before he went back to work.”

Police and coroner’s reports

A “Report of Death to the Coroner”, dated 22 August 2018, indicated that the apparent cause of death was “suspected suicide”.
An “External Examination Report for the Coroner”, dated 29 August 2018, prepared by Professor Tim Lyons of the NSW Health Forensic & Analytical Science Service gave the opinion that the disease or condition leading to death was severe bilateral bronchopneumonia in combination with mixed drug toxicity.
Toxicology of the blood showed several opioid drugs and three metabolites including morphine. The benzodiazepines, diazepam, oxazepam, temazepam and nordiazepam were present.
The report noted that both opiates and benzodiazepines are central nervous system depressants. Although the drug levels were relatively low, their effects would have been cumulative and had a sedative action. Amitriptyline and nortriptyline were also present. According to the report, in combination, the drugs present would have caused a spectrum of physiological effects due to mixed drug toxicity.
A “Statement of Police” was prepared by Senior Constable Kim Ellis on 23 September 2018. The statement noted, by way of background, that Mr Shaw had been suspended following comments made in the workplace and appeared to be “distant and extremely stressed due to the unknown outcome of the investigation”.
It was recorded that Mr Shaw had a long history of prior drug use with medication and recreational substances. On the evening of 20 August 2018 paramedics attended Mr Shaw’s address. Mr Shaw denied medical assistance and treatment. At the time, Mr Kilroy was present and stated that Mr Shaw’s breathing was shallow and he appeared to be confused and having trouble putting sentences together which did not make any sense. At around 1:50pm on 21 August 2018. Mr Kilroy checked on Mr Shaw’s welfare. Mr Kilroy located
Mr Shaw lying in his bed. Mr Kilroy had a conversation with Mr Shaw who appeared to be speaking a little clearer and breathing better than the previous night. Mr Kilroy gave Mr Shaw a bottle of water and his glasses and mobile phone.
At approximate 4:48pm on 21 August 2018, a triple zero call was made. Mr Shaw had been found deceased on the toilet in his unit. The statement recorded:
“I would describe the unit as cluttered, filthy and putrid. Many electrical cables were running through rooms to provide power throughout the unit. I located a cap from a syringe in the lounge room, however, could not locate a syringe itself. A belt was rolled up on the lounge and possibly used as a tourniquet. A number of opened blister packs with missing tablets were located throughout the unit.”
According to the statement, in a phone call with the applicant, the applicant stated that
Mr Shaw was not handling work-related matters well and was extremely stressed, and not acting himself for some time.
Based on the available evidence, the statement expressed the opinion that Mr Shaw died between 1:50pm and 4:48pm on 21 August 2018 as a result of a mixture of medical and recreational drug use over an extensive period of his lifetime. It was speculated that due to Mr Shaw’s body slowly shutting down due to the extensive years of drug use, a heart attack was the possible cause of death.
According to the NSW Death Certificate issued on 28 February 2019, the cause of death was “severe bilateral bronchopneumonia in combination with mixed drug toxicity”.

Dr Smith

The applicant relies on a medicolegal report prepared by consultant forensic psychiatrist,
Dr Glen Smith, dated 19 October 2021.
Dr Smith gave a detailed recitation of the documentary evidence on which his opinion was based. Dr Smith noted Mr Shaw’s longstanding history of addictive disorders, primarily Stimulant Use Disorder but also intermittent opiate use. It was noted that the general practitioner’s notes documented depression throughout 2017.
Dr Smith noted Mr Shaw’s suspension and Mr Holt contacting Mr Shaw during this period to offer support. After being reinstated, Mr Holt made further complaints and Mr Shaw was suspended again. Dr Smith stated,
“After this, Mr Shaw apparently became severely depressed and relapsed to illicit substance use. Mr Shaw’s exclusion from Riverlands during the suspensions resulted in him not being able to access the 12-step meetings that were previously an important part of his recovery program. This likely increased the risk of relapse to illicit substance use at that time.”
Dr Smith noted the cause of death in the autopsy report and gave the opinion:
“In my opinion, Mr Shaw, on the balance of probabilities, suffered from a significant depressive condition, likely Major Depressive Disorder, aggravated by the workplace matters, particularly the second suspension and the involvement of Mr Holt, and in that context, he relapsed to use of addictive substances that worsened his anxiety and depressive symptoms. It is probable that he took an overdose of benzodiazepine and opiate substances with suicidal intent, in the context of his severe depressive symptoms.”
Asked for an opinion as to whether Mr Shaw’s “suicide” was an intentional act, Dr Smith responded:
“In my opinion, given the significant distress documented by his GP and psychiatrist,
Dr Scurrah, Mr Shaw was likely suffering from a Major Depressive Disorder with suicidal ideation. In the context of his severe psychiatric symptoms, it is probable that his will was so overborne that his suicide should not be regarded as an intentional act.”

Dr McDonald

The first respondent relies on a medicolegal report prepared by consultant psychiatrist
Dr Geoff McDonald, dated 28 February 2022. Dr McDonald had before him Dr Smith’s report as well as the material provided to Dr Smith. A full history, consistent with the material described above was recounted.
Dr McDonald noted Mr Shaw had a prior history of anxiety, depression, insomnia and drug addiction. Dr McDonald noted that the clinical records from the Lismore Clinic recorded that Mr Shaw was described as experiencing suicidal ideation on 5 December 2017 and had completed a DASS test on 13 July 2017 scoring in the moderate range for depression, mild range for anxiety and normal range for stress.
Dr McDonald observed that Mr Shaw had been suspended from work on full pay after five allegations were made against him on 28 March 2018. Dr McDonald noted that according to the applicant’s statement, the shock of this disciplinary action was associated with a relapse of Mr Shaw’s long-term battle with amphetamine addiction, and the cessation of regular attendance at Riverlands Narcotics Anonymous (NA) and his regular practice of yoga and cycling.
Dr McDonald recorded that the allegations were substantiated and it was decided that
Mr Shaw would return to work with a verbal warning. On 18 June 2018, however, Mr Shaw was advised that his suspension would be extended to allow investigation of a further alleged breach of a direction not communicate with colleagues. A “bizarre, partly incomprehensible” message to Mr Parry suggested that Mr Shaw was intoxicated.
Dr McDonald recorded that a suicide noted written on “18 June 2018”, typed over a period of 60 minutes and not subsequently edited described loneliness and an “unhappy inner world”.
Dr McDonald made an Axis I diagnosis of persistent depressive disorder, possible intermittent major depressive episodes and substance use disorders. Asked to give an opinion as to whether Mr Shaw sustained an “injury”. Dr McDonald agreed that the disciplinary process was one of several contributors to a worsening of Mr Shaw’s persistent depressive disorder, stating,
“There is no doubt in my mind that the allegations which led to the investigation on
28 March 2018 contributed to emotional instability and a worsening of Mr Shaw’s long term persistent depressive disorder.”
Dr McDonald said the exacerbation of the disorder was, however, multifactorial and he was not convinced the employment was “the main contributing factor” to the exacerbation:
“In view of this, in my opinion, the exacerbation of depression initially described preinjury in 2017 and later described post-injury in 2018, was multifactorial. The investigation, suspension from work and the formal warning would have been contributing factors. Relationship problems, possible pending breakup, his de facto’s health problems and recent fall, and his de facto’s absence for one week from 14 August 2018 were also contributors.
The major structural house problems, as described in the police report, was also a likely contributor.
Difficulty transitioning to pending retirement, may have been a significant factor. Chronic social anxiety, as reported by Mr Shaw’s de facto, may have been a background susceptibility as was his previous history of depression and anxiety and his past history of relapsing drug use.
Given the complexities, there is insufficient evidence to be certain that the disciplinary process was the main contributing factor to the exacerbation of his background depression.”
Asked whether the employer’s conduct with respect to discipline was the whole or predominant cause of any psychological decompensation between March and August 2018, Dr McDonald responded:
“No.
In my opinion, on the balance of probabilities, the causes of Mr Shaw’s psychological decompensation between March 2018 and August 2018 were multifactorial. In my opinion, there is insufficient evidence to conclude that the disciplinary process was the whole or predominant cause.”
Asked whether Mr Shaw died as a consequence of an intentional self-inflicted injury as opposed to simple misadventure, Dr McDonald replied that although a suicide note was composed on “18 June 2018” this was no clear evidence that his death was intentional.
Mr Shaw had a previous history of risky drug-taking with a prior heroin overdose. Fluctuating thoughts of suicide and emotional dysregulation were said to be common in people with a history of persistent depressive disorder and comorbid drug addictions, particularly when exposed to other stress. Suicidality was not identified by Dr Scurrah or the general practitioner in July and August 2018 when they saw Mr Shaw.
Dr McDonald concluded:
“I would note that multidrug toxicity is not the single cause of Mr Shaw’s death. Drug levels were described as “relatively low” at autopsy. Autopsy concluded that he died with severe bilateral bronchopneumonia in all lung lobes with micro-abscess formation. Mr Shaw was a 64-year-old smoker of many years, who was presumably on a several-day heroin binge and was noted to be confused and short of breath 20 August 2018, 24 hours prior to death.
It is possible that Mr Shaw was more sensitive to the respiratory-depressant effect of heroin than he realised, if he had not used it for some time. If he was on buprenorphine (norbuprenorphine was found at autopsy), this may have been additive.
In my opinion, this history is not clearly consistent with intentional suicide.
It could be consistent with accidental death, from severe pneumonia and drug toxicity.
Mr Shaw had many years’ experience as a registered nurse, and was familiar with drugs known to be lethal in overdose, such as the tricyclic antidepressants which he was prescribed. The autopsy report does not conclude that the cause of death was cardiac arrhythmia and arrest due to high levels of tricyclic antidepressant toxicity in the blood. If his aim was suicide, massive tricyclic overdose would have been effective.”

Submissions

The Commission has been assisted by oral and written submissions by counsel. The oral submissions were recorded and a transcript is available should the parties request it. The following is a summary of the submissions.

Applicant’s submissions

The applicant relied on a chronology of events served and lodged shortly before the conciliation conference and arbitration hearing. Going through the chronology, the applicant referred the Commission to the lay and medical evidence summarised above.
The applicant highlighted Mr Holt’s interactions with Mr Shaw during the course of the initial investigation and Mr Shaw’s subsequent realisation that Mr Holt was in fact the source of the complaints made against him, as being matters of particular significance.
The second set of allegations was identified as being the cause of a particular deterioration in Mr Shaw’s condition, ultimately leading to his death. It was observed that Mr Holt’s perception of the “tone” of a text message was what instigated the second disciplinary process. The text message was not in evidence and Mr Holt ultimately indicated that he did not want the matter to proceed.
The applicant noted the delay between the comments which were the subject of the initial proceedings being made and the making of a compliant by Mr Holt as a matter relevant to the “reasonableness” of the disciplinary process. The evidence from the applicant’s witnesses consistently highlighted Mr Shaw’s dark sense of humour and suggested the comments should not have been treated as a serious threat of harm but rather a joke.
The decision to block Mr Shaw’s access to the 12-step meetings on the Riverlands premises during the disciplinary process; Mr Shaw’s colleagues being told not to communicate with him and vice versa; the delay in bringing the lapse of Mr Shaw’s nurses registration to his attention; and the slowness of the disciplinary process were also highlighted as factors that contributed to the injury and which were said to be unreasonable.
The applicant drew the Commission’s attention to comments alleged to have been made by Ms Robinson in the applicant’s notes of their meeting in December 2018 conceding certain failings in the first respondent’s handling of the complaints. The applicant submitted that such concessions were fatal to the s 11A(1) defence. No evidence had been provided by the first respondent to contradict the applicant’s account of that meeting.
No statement evidence from Ms Robinson had been provided. The applicant also observed that no witness evidence had been provided from Mr Parry, Mr Holt or Ms Bernard to defend their handling of the complaints.
The applicant’s witnesses had given evidence as to their own concerns about the manner in which the complaints were handled.
The applicant referred to the general practitioner’s notes recording multiple life stressors and submitted that the Commission would approach those notes with caution in determining whether employment was the main contributing factor to the injury. It was not known what context was provided to the general practitioner or the weight and time spent discussing each issue.
Dr Scurrah’s report of 12 July 2018 revealed the primacy of work issues. Dr Scurrah formed the view that the disciplinary process had damaged Mr Shaw’s self esteem and exacerbated a mild pre-existing depression/anxiety.
The applicant acknowledged Dr McDonald’s view that Mr Shaw’s depression was multifactorial but submitted that the only psychiatrist who actually spoke to Mr Shaw was
Dr Scurrah.
The applicant referred to the transcripts of Mr Shaw’s conversations with the applicant. There was no suggestion that the transcripts were inaccurate. Those conversations revealed references to suicidality in the context of the disciplinary process.
Ms Houghton had given evidence that Mr Shaw mentioned throwing himself under a bus and being treated like a criminal when she saw him on 16 August 2018.
The applicant submitted that the suicide note was in fact prepared on 18 August 2018 not
18 June 2018.
The initial paramedic report on 20 August 2018 recorded that Mr Shaw reported having a panic attack and being involved in an investigation at work.
Mr Kilroy had given undisputed evidence that he had observed a change in Mr Shaw’s demeanour and he had verbalised that he was disappointed in not being able to work and that his absence from work was causing him a lot of stress.
The applicant submitted that a review of the evidence indicated that two things were weighing heavily on Mr Shaw, being the work investigations and Mr Holt’s involvement.
Dr Smith accepted that these matters, including Mr Shaw’s exclusion from 12 step meetings, had caused an aggravation of a pre-existing depressive disorder, likely a major depressive disorder. Dr Smith’s opinion was consistent with the evidence from Dr Scurrah and the lay evidence. Dr Smith gave the opinion that it was probable that Mr Shaw’s will was so overborne that his suicide should not be regarded as an intentional act.
The applicant submitted that Dr McDonald’s consideration of the workplace issues referred only to the initial investigation. Although he considered the aggravation of a persistent depressive disorder to be multifactorial, the evidence indicated that in 2017, Mr Shaw was continuing to work, exercise and function satisfactorily. The evidence revealed a clear change in Mr Shaw’s demeanour and presentation following the workplace investigations.
Dr Scurrah’s report made no reference to the other contributing factors relied on by
Dr McDonald. Dr McDonald did not appear to have been provided with all of the lay evidence, including the transcripts of conversations with the applicant and the applicant’s witness evidence. The applicant noted that the betrayal of Mr Shaw by Mr Holt was not a factor weighed by Dr McDonald but was considered by Dr Smith.
The applicant submitted that the first respondent had failed to establish that action with respect to discipline was the whole or predominant cause of the injury. The relative weight of the disciplinary process and the involvement of Mr Holt was unclear.
If the Commission were minded to accept that disciplinary action was the whole or predominant cause, the applicant submitted aspects of that process were unreasonable. These included the failure to give Mr Shaw proper particulars of the complaints made against him; the involvement of the NSW Police; denying Mr Shaw access to the 12 step meetings; the direction to staff not to talk to Mr Shaw; the issuing of a second disciplinary letter based on essentially non-existent evidence; and the delay in notifying Mr Shaw of the outcome of the investigation in circumstances where its effect upon Mr Shaw had been noted to be of concern. The disciplinary action was said to be disproportionate in the context of Mr Shaw’s general good character and employment history as evidenced by the witness statements provided by the applicant. The first respondent’s conduct with respect to the handling of the complaints was grossly unreasonable.
The applicant submitted that Mr Shaw’s death, resulted from the injury. On Dr Smith’s view, the death was suicide caused by the injury. Dr Smith gave the view that in light of the severity of Mr Shaw’s psychological symptoms, his will was so overborne that the act should not be considered intentional.
Although Dr McDonald considered the death was inadvertent and related to Mr Shaw’s escalating drug use, this was in turn the result of his inability to access counselling and deteriorating mental state. On either expert’s opinion, the death resulted from injury.

Second respondent’s submissions

The second respondent adopted the applicant’s submissions.
The second respondent said it was clear that the period between March and August 2018 was a time of enormous upheaval in Mr Shaw’s life. The initial complaints and suspension took place in March 2018 but by the end of May 2018 the evidence indicated that Mr Shaw and the respondent had essentially come to terms with the events and Mr Shaw was preparing to return to work. Mr Shaw had accepted the outcome of the investigation.

I am satisfied that Mr Shaw sustained a psychological injury pursuant to s 4(b)(ii) of the 1987 Act.

Section 11A(1)

A psychological injury which meets the statutory definition will not be compensable if a defence pursuant to s 11(A)(1) of the 1987 Act is made out:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
Subsection 11(A)(1) is a disentitling provision and an employer who wishes to rely upon it carries the onus of establishing that defence.[9]
[9] Pirie v Franklins Ltd [2001] NSWCC 167; Department of Education and Training v Sinclair [2005] NSWCA 465.
In Hamad v Q Catering Ltd[10] (Hamad), Snell DP found that in many cases there will need to be medical evidence to establish that the employer’s action was the “whole or predominant cause” of the injury:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
[10] [2017] NSWWCCPD 6.
The test of reasonableness is an objective one.[11] In Commissioner of Police v Minehan[12] Foster AJA (Sheller and Santow JJA agreeing) cited with approval a passage from an unreported decision of Geraghty J in Irwin v Director-General of School Education:[13]
“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness”.
[11] Jeffery v Lintipal Pty Ltd [2008] NSWCA 138.
[12] [2003] NSWCA 239.
[13] (unreported 18 June 1998).
In Northern New South Wales Local Health Network v Heggie[14](Heggie) Sackville AJA considered a number of authorities dealing with s 11A(1) and distilled the following propositions:
[14] (2013) 12 DDCR 95; [2013] NSWCA 255; BC201311746.
“The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the WC Act:
(i)A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii)Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii)An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv)The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v)Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi)The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii)If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”
The first respondent seeks to establish a defence for the purposes of s 11A(1) on the basis that the whole or predominant cause of Mr Shaw’s injury was reasonable action taken or proposed to be taken by or on behalf of the employer with respect to discipline. The first respondent’s medicolegal evidence does not, however, include an opinion that Mr Shaw’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to discipline. That is because Dr McDonald’s opinion was that employment was not the main contributing factor to the injury.
The decision in Hamad does not, however, mandate a medicolegal opinion weighing the causative events in every case. In this case, the applicant’s own evidence suggests that action with respect to discipline was a significant if not the predominant cause of Mr Shaw’s injury. The Commission is obliged to consider the evidence as a whole in determining whether the s 11A(1) defence has been established.
The evidence before me does not indicate that action by or on behalf of the employer with respect to discipline was the only cause of the injury.
The claimants submitted that Mr Holt’s involvement in the case, particularly his interactions with Mr Shaw during the period of his suspension, in circumstances where he was the source of the allegations, were not actions that were attributable to the employer with respect to discipline. that the first respondent has not submitted that this is not a proper characterisation of Mr Holt’s actions. The applicant’s evidence, Dr Scurrah’s report of 12 July 2018 and Dr Smith’s report all identified Mr Holt’s actions as particularly significant contributors to the deterioration in Mr Shaw’s condition.
The employer’s delay in bringing the lapse of Mr Shaw’s nurse’s registration to his attention and the consequent delay in him being able to return to work has also been identified as another possible contributing factor to Mr Shaw’s condition. Those events are also not obviously characterised as actions with respect to discipline.
The absence of a medicolegal opinion weighing those factors against the actions of the employer with respect to discipline is a significant barrier to the first respondent discharging its onus as to the “whole or predominant” cause.
To the extent that action with respect to discipline may have been the predominant cause of the injury, the claimants allege that a number of the employer’s actions with respect to discipline were unreasonable. Amongst other things, the submissions highlighted the following:
(a)    the decision to block Mr Shaw’s access to the 12-step meetings at the Riverlands premises even out of work hours, during a period in which he was likely to need that support;
(b)    Mr Shaw’s colleagues being told not to communicate with him, in the context of the duration of Mr Shaw’s employment with Riverlands and his close connection to its staff;
(c)    the slowness of the disciplinary process and the delays in notifying Mr Shaw of the outcome of the employer’s investigations, in circumstances where their negative effect upon Mr Shaw had been brought to the employer’s attention;
(d)    the failure to give proper particulars of the allegations, particularly in relation to the second set of allegations, thereby denying Mr Shaw the opportunity of meaningfully responding to them;
(e)    the decision to extend Mr Shaw’s suspension on the basis of Mr Holt’s perception of the tone of a text message, in circumstances where Mr Holt ultimately indicated that he did not want the matter to proceed, and
(f)    the employer’s actions, particularly in relation to the second allegations, being disproportionate having regard to what was known of Mr Shaw’s general good character, employment history and known dark sense of humour.
The evidence placed before the Commission by the first respondent does not adequately respond to the contentions made by the applicant and second respondent. As noted by the submissions, no statement evidence was provided by the main protagonists, Mr Parry,
Mr Holt, Ms Robinson, Ms Bernard or Mr Jones.
The first respondent’s evidence does suggest that some of its actions with respect to discipline were reasonable. The first risk assessment indicates that allegations of a potentially serious threat to the safety of Riverlands’ staff and clients were made. It was appropriate that the risks posed by the allegations were assessed. I accept that the decision to investigate the allegations and to suspend Mr Shaw while the investigation was underway was objectively reasonable in the circumstances. I accept that Mr Shaw was given an appropriate opportunity to respond to the allegations and indeed did provide a response which was taken into account. The disciplinary action ultimately proposed was accepted by Mr Shaw after a further opportunity to comment was provided. In context, the proposed action appears proportionate and reasonable.
There is, however, no medical evidence before the Commission that these reasonable actions were the whole or predominant cause of the injury.
The decision to exclude Mr Shaw from the Riverlands premises entirely, including blocking his access to 12-step meetings, as a private participant, when he was known to regularly attend the meetings, was noted by Dr Smith to have contributed particularly to the injury and to have increased the risk of relapse to illicit substance use. Whilst there may have been good reasons why the employer took this action, I am not satisfied on the evidence provided to the Commission that it was reasonable, weighing the rights of Mr Shaw against the obligations and interests of the employer and its staff.
The decision to extend Mr Shaw’s suspension in response to a text message he sent to
Mr Holt after being advised he could return to work was also highlighted by the applicant’s lay and medical evidence as a as a significant contributing factor to the injury. It was after this event that Mr Shaw sought medical assistance to increase his medication. The evidence provided by the first respondent does not satisfy me that the employer’s actions in respect of this second allegation were reasonable.
The only evidence of what the text message actually said appears in the applicant’s statement. Based on the applicant’s account, the message did not insinuate that Mr Shaw knew of Mr Holt’s involvement. Nor did the message appear on its face to harass or target
Mr Holt. The decision to continue the suspension, including a continuation of Mr Shaw’s exclusion from the 12-step programs at Riverlands, appears on the evidence before the Commission to be disproportionately heavy handed in those circumstances.
I note that the second risk assessment also referred to a voicemail described as “incongruent, inappropriate and bizarre”. The correspondence to Mr Shaw on 18 June 2018 did not, however, invite comment on the voicemail or indicate that it formed the basis of any disciplinary action.
The first respondent’s evidence does not address why it took almost three weeks from the date of the meeting with Mr Holt and Mr Shaw’s response to the second allegations to notify Mr Shaw of the outcome of the second investigation. Given that the employer had been alerted by Mr Gaidier and Mr Holt to their concerns for Mr Shaw’s welfare, I am not satisfied that this delay was reasonable.
A further matter arising on the witness evidence is the apparent directive to members of staff not to communicate or engage with Mr Shaw. Having regard to Mr Shaw’s many years of service and personal friendships within the workplace, it has been alleged that this directive was unreasonably isolating and harmful to Mr Shaw’s mental health. The exclusion from the workplace and a direction not to discuss the allegations or disciplinary process may be been sufficient. The first respondent’s evidence does not satisfy me that this action with respect to discipline was reasonable.
As a result, I find that there were several significant aspects of the disciplinary process which contributed significantly to Mr Shaw’s injury which I am not satisfied were objectively reasonable.
The first respondent referred to Department of Education and Training vSinclair,[15] and submitted that it was necessary to assess the disciplinary process as a whole. Specific blemishes in the process would not render the entirety of the process unreasonable. I am not satisfied, however that the matters identified by the claimants are mere blemishes.
[15] [2005] NSWCA 465 at [96]-[97].
Weighing the evidence before me, the first respondent has failed to discharge its onus of demonstrating on the balance of probabilities that reasonable action taken or proposed to be taken by or on behalf of the employer was the whole or predominant cause of Mr Shaw’s injury. The s 11A(1) defence fails.

Whether the death resulted from injury

Having established that Mr Shaw sustained a compensable psychological injury, it remains for the applicant to establish, pursuant to s 25(1) of the 1987 Act that Mr Shaw’s death “resulted from” that injury.
The first respondent submitted that an unbroken chain between the injury and Mr Shaw’s death was not established on the balance of probabilities. The first respondent pointed to
Mr Shaw’s eagerness to renew his nursing registration and the medical evidence obtained by Mr Shaw in connection with his re-registration application in support of that contention.
The factual evidence demonstrates that on 9 July 2018 Mr Shaw was advised that his registration as a registered nurse had expired on 31 May 2018. Mr Shaw indicated to the employer a few days later that he had made a fast-track application for registration.
Mr Shaw was advised that the investigations into the second allegations had been closed in a letter dated 23 July 2018. On 26 July 2018, Mr Shaw was issued with a formal disciplinary warning in relation to the first set of allegations. Mr Shaw was advised that once his nurses’ registration was finalised, he was able to return to his substantive position.
The evidence indicates that on receipt of this advice, Mr Shaw took steps towards obtaining re-registration. One week prior to his death, Mr Shaw attended upon
Dr Wee in order to obtain psychiatric clearance. Dr Wee observed that Mr Shaw was not mentally disordered on consultation and was at minimal risk of self-harm. Dr Wee suggested, however, that Mr Shaw obtain the relevant report from Dr Scurrah.
Dr Scurrah prepared a report on the same day in which he said he had no information to suggest that Mr Shaw had an illness or disorder which would interfere with his performance of the role.
The first respondent submits that this evidence demonstrates that in the period immediately prior to his death, Mr Shaw had a capacity and willingness to work, which was inconsistent with an ongoing psychological injury causing Mr Shaw’s death.
In considering the first respondent’s submission, it is relevant to note the purpose for which Dr Wee and Dr Scurrah were consulted. Mr Shaw consulted them with the purpose of attempting to demonstrate that he had capacity to return to work. Mr Shaw’s presentation with that purpose in mind is likely to have influenced the doctors’ observations of him. A desire to return to work is not necessarily inconsistent with an ongoing psychological injury, particularly where the absence from work had contributed to the injury.
The doctors’ professional observations must be compared with the other contemporaneous observations of Mr Shaw.
The first respondent sought to draw support for its submission from the statement evidence of the applicant indicating that Mr Shaw appeared well prior to her departure from Sydney on 14 August 2018 and in their communications while she was away until 20 August 2018 when his breathing sounded laboured.
The applicant’s statement evidence does, however, also describe Mr Shaw’s mental health at this point in time as “extremely fragile”. Although he was now free to work, Mr Shaw had lost trust that all would be well when he did return to work. When the applicant left to travel to Sydney, she observed Mr Shaw to be depressed and low, although she did not think he would commit suicide.
Ms Houghton has provided evidence that she saw Mr Shaw on or about 16 August 2018.
Mr Shaw was observed to be dishevelled and forlorn and to have made jokes about wallowing in self-pity because he had lost his job and was unemployable now. When asked if he was okay, Mr Shaw replied that he was going to throw himself under a bus. Mr Shaw also made comments that he felt he was being treated like a criminal but loved his job.
Ms Houghton’s evidence is consistent with that provided by Mr Wilson who said he saw
Mr Shaw towards the middle of 2018. Mr Shaw’s appearance was unkempt and he looked to Mr Wilson to be suffering from depression. Mr Shaw disclosed that someone where he worked had made a false claim against him. Mr Shaw said they had taken his job and his life.
Mr Kilroy provided a statement on 8 October 2018. Mr Shaw had disclosed to Mr Kilroy that there was an investigation going on at work and his absence from work was causing a lot of stress. During this time, Mr Kilroy noticed a change in Mr Shaw’s demeanour. Mr Kilroy saw Mr Shaw on the evening prior to his death when an ambulance was called to his apartment. Mr Kilroy gave evidence that Mr Shaw mentioned that there had been things going on at work and he had been experiencing a lot of stress.
Mr Kilroy’s evidence is consistent with an ambulance medical record of the same event. That record recorded that Mr Shaw was involved in an investigation at work, causing him a great deal of stress. Mr Shaw indicated that he was having a panic/anxiety attack but declined to go to hospital.
These accounts of Mr Shaw’s circumstances around the time of his death, indicate that the effects of the work-related psychological injury were ongoing notwithstanding the observations of Dr Wee and Dr Scurrah. They are observations made by witnesses who knew Mr Shaw well and over a long period of time or professional paramedics. These accounts are also consistent with the contents of the document authored by Mr Shaw himself, titled “my beautiful friend, the end”.
The date of that document was the subject of differing submissions. A screenshot attached to the Application indicates that the document was last edited on 18 August 2018 at 12:38 PM. A screenshot attached to the first respondent’s Reply has been interpreted as reading that the document was last modified on 18 June 2018 at 12:38 PM. The screenshot attached to the first respondent’s Reply is, however, blurry. Having regard to the clearer screenshot attached to the Application, I accept that the document was last edited on 18 August 2018 at 12:38 PM, that is, three days prior to Mr Shaw’s death.

The first respondent has queried whether this document is appropriately described as a suicide note. Its contents do not explicitly indicate that this was the document’s intended purpose. It does, however, give insight into Mr Shaw’s state of mind as at 18 August 2018. The document refers to leaving behind emotional chaos, feelings of anger and bringing his “gift of awareness to an abrupt end.” Mr Shaw described his inner world as an “unhappy and desolate place” and being at a “point of no return”. Mr Shaw described the past few months as his “grand finale”.
This document presents a picture of Mr Shaw’s state of mind that is in stark contrast to the observations of Dr Wee and Dr Scurrah but is consistent with what was observed by the applicant,her witnesses and paramedics.
Weighing the evidence, I am satisfied that immediately prior to his death, the effects of Mr Shaw’s psychological injury were ongoing and that he was experiencing suicidal thoughts.
The cause of Mr Shaw’s death was found in the examination report for the Coroner prepared by Prof Tim Lyons on 29 August 2018 to be severe bilateral bronchopneumonia in combination with mixed drug toxicity. That cause of death was also adopted in the death certificate.
The first respondent has submitted that the finding of severe bilateral bronchopneumonia was consistent with the applicant’s evidence that Mr Shaw’s breathing sounded laboured when she spoke to him on 20 August 2018. Noting that Mr Shaw had been a smoker for many years, this finding was said to be consistent with an accidental death and did not establish a causal relationship to any work injury.
The first respondent submitted that the drug toxicity findings, were also consistent with the evidence from the applicant that Mr Shaw had obtained heroin on 16 August 2018.
Mr Shaw had a long history of drug addiction and had previously overdosed when using heroin several years prior to the work injury. The first respondent submitted that in this context the toxicity findings were also insufficient to establish that the death resulted from a work injury.
The findings in Prof Lyons’ report must, however, be viewed in the context of my finding above that in the period immediately prior to his death, Mr Shaw continued to suffer from the effects of his psychological injury and was experiencing suicidal thoughts.
Opinions on the cause of death were given by both medicolegal experts. Dr Smith formed the view that it was probable that Mr Shaw took an overdose of benzodiazepine and opiate substances with suicidal intent, in the context of his severe depressive symptoms.
I am not persuaded, however, that Dr Smith’s opinion gives adequate consideration to the finding of severe bilateral bronchopneumonia or the finding in Prof Lyons’ report that the drug levels in Mr Shaw’s system were relatively low.
Those findings were considered by Dr McDonald. Dr McDonald considered that the history was not clearly consistent with intentional suicide but could be consistent with accidental death from severe pneumonia and mixed drug toxicity. It was noted that Mr Shaw may have been more sensitive to the respiratory depressant effect of heroin than he realised, if he had not used it for some time. The buprenorphine found on autopsy may have added to this effect.
Professor Lyons’ report also indicates that the opiates and benzodiazepines present would have had a cumulative sedative action and caused a spectrum of physiological effects.
Viewed as a whole, the evidence indicates that Mr Shaw likely became unwell with a respiratory condition, ultimately found to be severe bilateral bronchopneumonia. The medications Mr Shaw was taking to treat his psychological injury together with the benzodiazepines and opioids in his system had a combined sedative action, which exacerbated or interacted with the bronchopneumonia in a manner resulting in Mr Shaw’s death.
Mr Shaw’s use of benzodiazepines and opiates has been attributed to the psychological injury by the applicant, who described a relapse in Mr Shaw’s drug use following his suspension and his exclusion from the 12-step meetings he was attending at Riverlands. The applicant’s evidence in this regard is consistent with the observed changes in Mr Shaw’s appearance described in the witness evidence, the content of the documents drafted by
Mr Shaw in this period, and the description of the voicemail message left by Mr Shaw in the second risk assessment report.
It is also significant that Mr Shaw denied medical assistance when paramedics attended his apartment on the evening of 20 August 2018. Having regard to the evidence of suicidal intent in the document edited on 18 August 2018 and in Mr Shaw’s conversation with Ms Houghton on 16 August 2018, there is a strong probability that the decision to refuse medical assistance was linked to Mr Shaw’s prevailing psychological symptoms and suicidality.
The first respondent submitted that Mr Shaw may have refused medical assistance to avoid disclosure of his use of illicit substances during a period in which he was seeking re-registration. Even if that were so, I am satisfied that the psychological injury materially contributed to the use of illicit substances in the first place.
Considering the evidence as a whole, while I am not satisfied on the balance of probabilities that Mr Shaw’s death was the result of intentional suicide, I am satisfied that the psychological injury materially contributed to the death, through the increased use of prescription and recreational drugs and the refusal of medical assistance.
It follows that I am not satisfied that the death was caused by an intentional self-inflicted injury for the purposes of s 14(3) of the 1987 Act.
I am satisfied that Mr Shaw’s death resulted from injury. As a result, the first respondent is liable to pay compensation in respect of the death in accordance with ss 25 and 26 of the 1987 Act.

Resolution of the proceedings

Before orders can be made resolving the claim in these proceedings, it is necessary to provide the parties with a further opportunity to make submissions in relation to the outstanding issues of the identification of dependent family members, apportionment, discretionary interest, funeral expenses and payment of compensation.
The documentary evidence before the Commission indicates that the only members of
Mr Shaw’s family who may have been dependent, in whole or in part, upon him at the time of his death were the applicant and second respondent. There are currently no submissions to the contrary.
Written submissions addressing the issues of apportionment and interest have been lodged on behalf of the applicant and second respondent. An apportionment of the lump sum death benefit of 77.5% to the applicant and 22.5% to the second respondent has been agreed and appears on its face, having regard to the evidence before the Commission to be appropriate.
The applicant and second respondent have made differing submissions on the rate and period of discretionary interest. The first respondent is yet to address that issue.
In the circumstances, it is appropriate that a timetable for further written submissions on the outstanding issues be established. The first respondent will have a period of 14 days from the date of notification of this certificate of determination to serve and lodge any relevant submissions. The applicant and second respondent will have a further period of 14 days to lodge any written submissions in reply.
The outstanding issues will be determined at the conclusion of the timetable above.

[2023] NSWPIC 325

6 July 2023