Singh v Westpac Banking Corporation

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Singh v Westpac Banking Corporation & Anor [2025] NSWPIC 73
APPLICANT:	Narinder Singh
FIRST RESPONDENT:	Westpac Banking Corporation
SECOND RESPONDENT:	TAL Services Limited
MEMBER:	Michael Wright
DATE OF DECISION:	5 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 66 claim for primary psychological injury; alleged two injuries with two employers; disputed injury with later employer; consideration of aggravation; Secretary, New South Wales Department of Education v Johnson, and Ozcan v Macarthur Disability Services Ltd considered; Held – aggravation injury was sustained; referral to Medical Assessor for aggravation injury.
DETERMINATIONS MADE:	The Commission determines: 1. Pursuant to s 4(b)(ii) of the Workers Compensation Act 1987, the applicant sustained injury by way of aggravation, exacerbation, acceleration or deterioration of primary psychological injury as a result of his employment with TAL Services Limited (the second respondent), deemed to have happened on 22 August 2022. 2. Pursuant to r 77(b) of the Personal Injury Commission Rules, proceedings against Westpac Banking Corporation (the first respondent) are dismissed. 3. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: a. Date of injury: 22 August 2022 (deemed) – Disease b. Body systems / parts: Psychological/psychiatric disorder c. Method of Assessment: Whole person impairment 4. The documents to be reviewed by the Medical Assessor are: a. Application and attached documents b. Reply of both respondents and attached documents c. Application to admit late documents dated 11 November 2024 and attached documents A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Mr Narinder Singh, the applicant, was employed by Westpac Banking Corporation, the first respondent, as a Customer Manager within the complaints team from 10 August 2020 until
1 August 2022, when TAL Services Limited, the second respondent, took over the group in which the applicant was employed.
The applicant sustained primary psychological injury in the course of his employment with the first respondent deemed to have happened on 28 May 2021. After a period of time off work he returned to work with the first respondent on or about 9 January 2022 with restrictions on the type of work that he was performing. The applicant continued in this employment until the applicant’s area of employment duties was transferred to the second respondent on 1 August 2022. The applicant was there after employed by the second respondent.
Following further work duties in the employee of the second respondent, the applicant ceased working on 22 August 2022 as a result of his psychological symptoms.
The applicant brings a claim in these proceedings for lump sum compensation for permanent impairment in respect of both the first respondent and second respondent.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the hearing of this matter on 14 November 2024, the applicant was represented by Mr Nicholson of counsel, instructed by Ms Jackson solicitor, the first respondent by Mr Doak of counsel, instructed by Mr Ballan, solicitor, the second respondent by Mr Perry of counsel, instructed by Ms Lawrence, solicitor.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents, and
(b)    Replies and attached documents,
(c)    Application to admit late documents dated 11 November 2024 and attached documents.

Oral evidence

There was no oral evidence.

Statements

The applicant provided a statement dated 5 August 2024.
There was no dispute that the applicant sustained psychological injury in the course of his employment with the first respondent, namely major depression disorder. In general terms, this was the result of workload and pressure of work.
The applicant stated, amongst other things, that following his psychological injury sustained as a result of his work with the first respondent, he returned to work on 10 January 2022 with medical restrictions in place including a reduction in his portfolio of work to two to three complaints per week and no calls from customers. He said that he continued to suffer from anxiety and panic attacks, and he continued to take prescribed medication for his injury.
He received treatment from his general practitioner (GP) Dr Shanmugaratnam, his psychologist Mr Karimyar, and his psychiatrist, Dr Saeed.
He said that on 1 August 2022 the second respondent took over his employment and he came under new management with new procedures, systems and team structure. He said that a colleague had planned leave and as a result his workload was increasing.
The applicant stated that his mental state declined as his workload and stress increased. He stated that he raised his concerns with his manager about being unable to complete his tasks in a timely manner. He stated that he was informed that any overflow of his work would be distributed to the other team members more widely, but he said that this did not happen. He stated that he tried to do his best to manage his workload but his mental state became “so fragile” that he stopped work on 30 August 2022.
Statements of Ms Phillips and Mr Rowe were also provided. These statements described workload with the first respondent applicable to the applicant’s employment. Although not signed, these documents were not controversial.
Mr Brett Prado also provided a statement dated 18 April 2024. Mr Prado was the manager of the applicant from 2021 while with the first respondent and from 1 August 2022 with the second respondent. I will deal with Mr Prado’s statement and reasons given below, rather than summarising it here. In general terms, his statement might not be said to be in accordance with the matters raised by the applicant in terms of his employment with the second respondent, although in my view there were matters raised by the applicant which were not specifically disputed by Mr Prado or were dealt with by way of generalisation.

Medical reports and opinion

There were a number of reports by medical or psychologist practitioners who provided treatment to the applicant.
Dr Shanmugaratnam in a report dated 27 May 2023 noted the unrelenting workload and work pressure of the applicant in the employ of the first respondent. Dr Shanmugaratnam noted that the deterioration in the applicant’s mental health as a result of work related stress could be divided into two time periods, the first from March 2021 to August 2022 and the second from August 2022 and “ongoing”.
Dr Shanmugaratnam noted that with the applicant’s return to work on 10 January 2022 on a graduated basis he made slow but steady progression full-time with restricted duties and during this time he was supported by his team and supervisor and he was optimistic and looking forward to full recovery.
Dr Shanmugaratnam recorded that the situation worsened for the second time with the change in company in August 2022. He noted that the workload was “dramatically increased” and support was “minimised” and that he was given conduct of a colleague’s portfolio when she went on long leave. He noted there was an increase in pressure to learn new systems and processes and in trying to keep pace with the new work environment. Dr Shanmugaratnam noted that the applicant described this as being “chucked into the deepest end”.
Dr Shanmugaratnam stated that as a result the applicant’s “mental health crashed down with several panic attacks” within days “leading to incapacitation”. He stated that as a result the applicant has been unfit to work from 30 August 2022 to date and has been unable to recover from his injury.
Dr Saeed provided, among other treating reports, a report dated 30 August 2022. This report recounted consultations with the applicant on 14 June 2022 and 30 August 2022. She noted on 14 June 2022 the applicant said that his sleep had improved but he continued to experience anxiety and continued to have low mood.
Dr Saeed noted that he assessed the applicant again on 30 August 2022 and that he presented with deteriorating low mood and increased anxiety. She recorded that the applicant said that workload had increased and that he was unable to complete his tasks and follow up on complaints and had been experiencing panic attacks and was having more days off work and he was emotional and teary. Dr Saeed noted that the applicant said that he raised his concerns with his manager “who acknowledged Narinda’s concerns”.
Dr Saeed diagnosed major depressive disorder with anxious distress and also secondary adjustment disorder.
Mr Karimyar provided a report dated 30 August 2022. He diagnosed major depressive disorder, general anxiety disorder and social anxiety disorder. Mr Karimyar noted that the applicant had a recent flare up of symptoms “due to increased workload and systematic issues precipitated by the acquisition at work”. He recorded that the applicant said that he was experiencing one panic attack per week on average and was in a constant state of despair and anxiety. Mr Karimyar was of the view that the applicant did not have a current work capacity.
Dr Verma, psychiatrist, provided a treatment consultation report dated 2 May 2023. He noted the history of work-related stress due to increase workload and workplace reform changes and the applicant was off work from October 2021 until January 2022. He noted that the applicant subsequently made a graded return to work from February 2022 until August 2022 when he stopped working. Dr Verma noted that in the period from February 2022 to August 2022 the applicant did not do dispute resolution work but did administrative and support work. He noted that the applicant said if not for the transition to the second respondent on
1 August 2022, which involved a lot of additional work and new management, “he would have continued doing the administrative support work that he was doing”.
Dr Verma diagnosed major depressive disorder with anxious distress and panic attacks.
There were a number of qualified expert medical reports.
Dr Khan, psychiatrist, provided reports to the applicant’s solicitors dated 18 September 2023 and 12 August 2024. In his report dated date 18 September 2023, Dr Khan recorded a history of high workload and pressure of work with the first respondent, and the transition to employment with the second respondent which was in similar terms to that provided by the applicant. Dr Khan was of the opinion that it was the totality of the work-related stresses that resulted in the deterioration of the applicant’s mental state. He diagnosed major depressive disorder and generalised anxiety disorder.
Dr Khan did not agree with the opinion of Dr Bisht. Dr Khan was of the view that the applicant’s condition arose from his employment with the first respondent and that his work with the second respondent “merely aggravated” the applicant’s already fragile mental state “but these changes were not the whole or predominant cause” of the work-related psychological injury.
In his report dated 12 August 2024, Dr Khan noted the opinions of Dr Bisht and Dr Anwar but did not alter his opinion. Dr Khan relied upon his account of the temporality of events in relation to the onset of the applicant’s symptoms and injury in the employee of the first respondent and the resulting fragility of the applicant’s mental state when he was employed by the second respondent.
Dr Anwar, psychiatrist, provided reports dated 10 January 2024, 13 May 2024, and
28 June 2024 to the workers compensation insurer of the second respondent. Dr Anwar took a generally consistent history of workplace stressors, symptoms and capacity in the course of the applicant’s employment with both the first and second respondents. Dr Anwar diagnosed major depressive disorder. Dr Anwar was of the opinion that the workplace factors during his employment with the second respondent aggravated the applicant’s psychological symptoms resulting in stopping work on 29 August 2022 and that those psychological symptoms have continued since that time. Dr Anwar considered the timeline of workplace stressors, symptoms and employment and was of the opinion that employment with the second respondent was the main contributing factor for the current psychological disorder. Dr Anwar was asked in his final report to comment on the opinion of Dr Khan, but it appears the doctor Anwar was unresponsive as he reproduced part of Dr Khan’s opinion without apparent comment. However, he was of the opinion that there was evidence to suggest that the applicant’s inury in his employment with the first respondent materially contributed to the effects of injury while in the employment with the second respondent.
Dr Bisht provided reports dated 18 June 2024 to the solicitors for the first respondent. Dr Bisht referred to his earlier reports, which were not before me. Dr Bisht did not repeat the history of injury and workplace stressors that presumably he had taken in his earlier reports. However, there was no direct controversy as to histories recorded by various medical practitioners, other than matters dealt with below in relation to the statement of Mr Prado.
Dr Bisht diagnosed major depressive disorder. Dr Bisht was of the opinion that 10% of the applicant’s condition was attributable to injury resulting from employment with the first respondent and 90% attributable to employment with the second respondent.
Dr Hoey-Thompson, psychiatrist, provided a report dated 8 July 2024 to the second respondent directly in respect of fitness for employment. Dr Hoey-Thompson diagnosed major depressive disorder, generalised anxiety disorder and social anxiety disorder. She took a consistent history. Dr Hoey-Thompson was of the view that the precipitating origins of the applicant’s mental health condition were as outlined in the history recorded, which referred to workplace stressors in the course of employment with both the first respondent and second respondent. Dr Hoey-Thompson was of the opinion that the applicant had no capacity for work.
I also note the various entries in the clinical records from 20 June 2022 to 20 April 2023 of the Medipharm Medical Practice, to which I was taken in submissions.

Reasons

There was no dispute that the applicant sustained psychological injury in the course of his employment with the first respondent.
The applicant claimed injury in the course of employment with the first respondent, with a deemed date of injury of 28 May 2021, and also injury by way of aggravation, acceleration or exacerbation or deterioration of a disease as a result of his employment with the second respondent, with a deemed date of injury of 22 August 2022.
The applicant’s submissions were generally that he sustained injury by way of aggravation of disease in the course of employment with the second respondent, and that his symptoms and injury with the first respondent were “subsumed” in the injury sustained in the course of employment with the second respondent, or failing which, injury was sustained in the course of employment with the second respondent.
The first respondent’s submissions were to the effect that there were new circumstances and worsening symptoms in the course of employment with the second respondent, and that liability should be attributed to the second respondent.
The second respondent submitted that there were no new relevant employment circumstances, as evidenced by the statement of Mr Prado and other than the fact of the change in the employer, medical evidence indicated that the deterioration in the applicant symptoms in his employment with the second respondent due to a recurrence of the previous stressors, with the result that injury sustained in the course of employment with the first respondent had a continuing effect. The second respondent relied upon decisions including Secretary, New South Wales Department of Education v Johnson[1], and Ozcan v Macarthur Disability Services Ltd[2].
[1] [2019] NSWCA 321 (Johnson)
[2] [2021] NSWCA 56 (Ozcan)
It is necessary to firstly determine factual and medical issues.
They are being no dispute, I find that the applicant sustained psychological injury in the course of his employment with the first respondent, deemed to have happened on
28 May 2021. There was no dispute that employment with the first respondent was a substantial or the main contributing factor to this injury.
Turning then to factual issues in this matter, submissions were made by the respondents about the statement of Mr Prado. Dealing with matters arising from the statement of Mr Prado, I note and find the following:
i)     In relation to what was said to be a lack of support for the applicant while he was employed with the second respondent, Mr Prado was not specific in his statement, particularly at paragraphs 71 to 72. He said that there was as much support for the applicant at the first respondent as there was at the second respondent. He said that this support was in two forms, being available when the applicant requested it and when also Mr Prado observed that it was necessary. He was vague as to how other colleagues and management provided support to the applicant. He said that the period of three weeks that the applicant was with the second respondent was a very short period of time and insufficient “to form an opinion as to the relevant change over”. In my view, Mr Prado’s evidence as to support provided to the applicant was not persuasive and not preferred.
ii)     As to the asserted lack of support to the applicant resulting from the acquisition by the second respondent, Mr Prado took issue and said that this was not true as there was “nothing different”, at paragraphs 74 and following. He said that “there is now a robust frontline team” who deals with the initial interaction with customers, unlike the first respondent. This in my view is not responsive to the circumstances in which the applicant found himself in the three weeks that that he worked with the second respondent. He said that, in contrast with the first respondent, his team received only escalated complaints while the applicant dealt only with matters from the first respondent. He also said that the applicant “was not with us long enough and he did not see that” at the second respondent. Further, he appeared to concede that changes made prior to the acquisition by the first respondent “may have been somewhat fragile…during these changes”. In my view the comments by Mr Prado were again general in nature and did not specifically contradict the applicant’s evidence. I do not prefer the evidence of Mr Prado on this point.
iii)    Mr Prado also did not contradict the applicant’s evidence that there was a change in systems and processes at paragraph 79. He confirmed that a change in systems did take place, although this was described as “minor”. He pointed to a lack of complaint in support of his evidence. This is not determinative, rather there was a change which the applicant regarded as resulting in more pressure and work. I accept the applicant’s evidence on this point.
iv)    Mr Prado, at paragraph 89, did not dispute that the applicant’s evidence that he felt there was or would be an increase in workload due to the absence of other staff. His comment was on this point was vague. I prefer the applicant’s evidence on this point.
v)     Mr Prado, at paragraph 91, also did not dispute that there were strict deadlines for completion of work, as referred to by the applicant. He confirmed that this was the case in respect of both respondents. I accept the applicant’s evidence on this point.
vi)    Further, as submitted by the first respondent, Mr Prado at paragraph 19 appeared to concede that the change from the first to the second respondent, involving a different office location and some different people, and that “we did things really tightly”, may have been confronting for the applicant. In my view this supports the matters noted above, and also of the applicant’s evidence of his work with the second respondent.

I accept the applicant’s evidence in his statements and in medical histories noted above, as to the change in systems with the second respondent. I also accept the applicant’s evidence as to lack of support with work with the second respondent and the other matters noted above with respect to the evidence of Mr Prado.
In my view, these were not matters of work which were the same or almost the same as the applicant’s work with the first respondent. In my view, the applicant’s employment with the second respondent constituted new causal circumstances, when the contemporaneous medical histories and evidence are considered.
In particular, the treating reports of Dr Saeed and Dr Shanmugaratnam assist. Dr Shanmugaratnam noted that as a result of his work with the second respondent the applicant’s “mental health crashed down with several panic attacks withing [sic] days” and as a result he was unfit for work. This is in contrast to the applicant prior to his work with the second respondent, when he was working full time, with restrictions, and was “optimistic and looking forward to full recovery”. In my view, this indicative of a significant change from the applicant’s condition such as that reported by Dr Saeed in June 2022., including a change in symptoms of panic attacks in terms at least of frequency.
Dr Saeed in his 19 April 2022 report noted “panic situations and anxiety attacks” prior to going off work in 2021. He noted a return to work on 9 January 2022. Dr Saeed prescribed medication. In his 31 August 2022 report, Dr Saeed noted continuing anxiety and continuing low mood at consultation on 14 June 2022. Dr Saeed noted at consultation on 30 August 2022 increasing workload deteriorating low mood, panic attacks and increased anxiety. Although Dr Saeed referred to continuing symptoms due to work stressors, in my view this was not an opinion as to the issue for determination in these proceedings. In my opinion the history taken by Dr Saeed supports the view that there was a significant change in symptoms in terms of deteriorating mood and increased anxiety as a result of the applicant’s employment with the second respondent.
Similarly, the treating psychologist, Mr Karimyar, in his 30 August 2022 report also noted a recent flareup in symptoms “due to increased workload and systematic issues precipitated by the acquisition at work”. He noted one panic attack per week on average and a constant state of despair and anxiety. Mr Karimyar was of the opinion that there was no current work capacity. Although he does not provide a “before and after” history, Mr Karimyar does note issues with work with the second respondent and symptoms which he described as a flare up. In my view this provides further support for the change in symptoms resulting from employment with the second respondent noted above.
Dr Verma in my view also provides support for there being a significant worsening of symptoms and circumstances as a result of employment with the second respondent.
The clinical notes of the Medipharm Medical Practice noted a consultation on 20 June 2022 and recorded a panic attack on 17 June 2022, resulting in the applicant leaving work early but feeling better on the day of consultation. In my opinion, this supports the view that the applicant had not recovered from his injury that was sustained in the course of his employment with the first respondent. However, it is inconclusive as to the question with there was further injury in the course of employment with the second respondent as to the question with there was further injury in the course of employment with the second respondent. In my view, this note is outweighed by the matters noted above.
Dr Khan was of the view that the applicant’s condition was solely attributed to his employment with the first respondent and that the timeline supported his view that the applicant was in a fragile state at the time of his employment with the second respondent. In my view, while the matter is noted above provide support for the view that the applicant’s mental state was fragile prior to commencing employment with the second respondent, this timeline does not support the view that the applicant did not sustain injury in the course of his employment with the second respondent. Dr Khan also did not discuss the issue of whether there was injury by way of aggravation or exacerbation or deterioration in the course of employment with the second respondent. He did say that work with the second respondent “merely aggravated” the applicant’s fragile mental state, but these changes were not the whole or predominant cause of the work related psychiatric/psychological injury”. I do not prefer the opinion of Dr Khan on this point.
Dr Anwar was of the opinion that, while the applicant’s work with the second respondent caused injury on 22 August 2022 and ensuing incapacity, the injuries sustained in the cause of employment with the first respondent materially contributed to the injury sustained in the course of employment with the second respondent. However, the question here is whether there was injury by way of aggravation or exacerbation or deterioration in the course of employment with the second respondent. Dr Anwar did not discuss this issue. I do not prefer the opinion of Dr Anwar on this point.
In response to a question as to whether any pre-existing injury or condition had wholly or partially contributed to the applicant’s psychological condition, Dr Bisht in his report of
18 August 2024 was of the view that 10% of the condition was attributable to pre-existing injury with the first respondent and 90% attributable to employment with the second respondent. Dr Bisht did not otherwise explain this opinion. Earlier reports of Dr Bisht, presumably detailing matters of history, were not before me. I do not prefer the opinion of Dr Bisht as to whether there was an injury in the course of employment with the second respondent by way of aggravation, acceleration or deterioration.
I do not accept the second respondent’s submissions as to the factual matters of the applicant’s work with the second respondent, on the basis that I prefer the applicant’s evidence as recorded in his statement and also the history taken by the treating medical practitioners referred to above. I also do not accept the second respondent’s submissions that the symptoms that the applicant is sustained in the cause of his employment with the second respondent were a continuation of the symptoms arising from the psychological injuries sustained in the course of employment with the first respondent, having regard to the treating medical and psychological practitioners’ reports noted above.
In my view, as a result of his employment with the second respondent there was an aggravation, acceleration, deterioration or exacerbation of the applicant’s injury that was sustained in the course of his employment with the first respondent. The symptoms and restrictions noted above were in my view were increased or made more serious by the work-related stressors in the course of his employment with the second respondent.[3]
[3] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626;
There was no dispute that the applicant’s psychological condition was a disease injury. I find that the applicant sustained injury by way of aggravation in the course of his employment with the second respondent.
In the submission of the second respondent, there was no evidence to suggest that the circumstances of injury in employment with the second respondent “were so divorced from the circumstances of the pre-existing injury that it was a new injury”. It was also submitted that they were not new or novel circumstances owing to the employment with the second respondent which caused injury, rather that the evidence supported that the existing injury resurfaced in the new employment. I do not accept the submissions. In my view, it is not a question of whether there are “new or novel circumstances”, nor whether the circumstances of injury with the second respondent were so divorced from the circumstances of the pre-existing injury that there was a new injury. In my opinion, the question is whether the applicant’s work duties in the course of his employment with the second respondent resulted in injury by way of aggravation, acceleration, exacerbation or deterioration of his psychological condition. In any event, there were new systems in the transition to employment with the second respondent, which were noted in the treating medical and psychological practitioners’ reports.
There was no medico legal opinion that I have accepted as to whether employment with the second respondent was the main contributing factor to that aggravation. However, the treating medical and psychological reports noted above provide support for such a finding. Further, the opinions of Dr Bisht, Dr Anwar, and Dr Khan, although not accepted in relation to injury, did not disagree that an aggravation had taken place. I was not taken to any evidence of any other factor that was not work related. Having regard to the principles outlined in the decision of AV v AW[4], I find employment with the second respondent was the main contributing factor to the aggravation of his psychological disease injury resulting from the course of his employment with the second respondent.
[4] [2020] NSWWCCPD 9 at [65]-[78]
The submissions of the second respondent also relied upon common law authorities on causation[5].
[5] Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 (‘Johnson’); Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56 (‘Ozcan’)
Johnson discussed the principles arising from the decision of State Government Insurance Commission v Oakley[6], as to causation principles where there one or more subsequent injuries.
[6] (1990) 10 MVR 570; [1990] AustTorts Reports 81-003
In Johnson, it was also stated by Emmett J that:
“There has been no finding that the Second Injury resulted in greater permanent impairment than would have been sustained by the Worker if she had not sustained the First Injury. There has been no finding that the current level of permanent impairment suffered by the Worker is the result of aggravation of the First Injury by the Second Injury. There has been no finding that the incident while employed by Hostels occurred only because of the First Injury. Rather, the findings demonstrate that the Second Injury resulted from the subsequent incident that occurred while the Worker was employed by Hostels and the Second Injury would have occurred even if the First Injury had not occurred, such that the Second Injury and First Injury are causally independent of each other. In those circumstances, it was necessary for the Appeal Panel to assess the extent of continuing permanent impairment of the Worker that is attributable to the First Injury.”
The first respondent submitted that Johnson should be considered on the basis that the subject matter in question was a claim for compensation for permanent impairment on appeal from an appeal panel decision. It was submitted that the proper application of the Oakley principles is “at the level of assessment of impairment and not injury”.
The first respondent also relied upon the decision in Ozcan, where it was stated that:
“It is no answer to this reasoning that the injuries suffered in the first incident only materially contributed to, and were not the sole cause of, the injuries suffered in the second and third incidents. If the incidents had occurred in the employment of different employers, more than one employer might have been liable to pay workers compensation (see Accident Compensation Commission v CE Heath Underwriting & Insurance (Aust) Pty Ltd (1994) 68 ALJR 525 at 526-7; [1994] HCA 68).”
In my view, this reasoning is persuasive. I do not accept the submissions of the second respondent in this regard. However, the conduct of this matter at the hearing and in submissions is significant.
The application in this matter pleaded separate injuries being an injury deemed to have happened on 28 May 2021 as a result of employment with the first respondent, and also injury by way of aggravation deemed to have happened on 22 August 2022 as a result of employment with the second respondent. The claim for permanent impairment compensation nominated a date of injury of 28 May 2021 only. As strict pleadings do not apply, and there being no objections from either respondent, the applicant in my view was entitled to rely upon one or the other or both of the injuries pleaded.
The applicant in submissions said that an aggravation injury should be found against the second respondent and only that injury should be referred to a medical assessor for the assessment of the degree of permanent impairment. The applicant said that only if I was not persuaded that injury was sustained by way of aggravation in the course of employment with the second respondent should the matter be referred to a medical assessor on the basis of injury in the course of employment with the first respondent. The applicant submitted the aggravation injury with the second respondent “subsumed” the injury sustained with the first respondent. This was not explained, although it is not necessary for me to decide this aspect.
The first respondent submitted that both injuries, that is injury in the course of employment with the first respondent and aggravation injury in the course of the second respondent, should be referred to a medical assessor for assessment. The second respondent submitted that the referral to a medical assessor should only be for injury sustained in the course of employment with the first respondent.
In my view, the applicant at the hearing of this matter and in submissions chose to rely only upon the aggravation injury sustained in the course of his employment with the second respondent, if there was a finding that such aggravation injury had occurred. I have found that the applicant sustained injury by way of aggravation as a result of his employment with the second respondent. It seems to me that the only referral that can be made to the medical assessor is for the aggravation injury resulting from employment with the second respondent. This was a not unreasonable approach adopted by the applicant, given there was no complete certainty as to as to a finding of aggravation injury as a result of employment with the second respondent. It is of course a matter for a medical assessor to determine the degree of permanent impairment, if any, resulting from the aggravation injury sustained in the course of employment with the second respondent, and also any deduction for a pre-existing condition pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998.
In these circumstances, it seems to me that the applicant in these proceedings has chosen not to prosecute a claim for lump sum compensation for permanent impairment against the first respondent. Pursuant to rule 77(b) the Personal Injury Commission Rules, the proceedings against the first respondent are dismissed.
In terms of the documents to be provided to the Medical Assessor, in my view the assessment would be assisted by the provision of documents attached to the Reply of the first respondent, in addition to other documents.

Cant v Catholic Schools Office [2000] NSWCC 37

[2025] NSWPIC 73

5 March 2025