Sydney South West Area Health Service v Dyer - [2012] NSWWCCPD 46

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			Sydney South West Area Health Service v Dyer [2012] NSWWCCPD 46
APPELLANT:			Sydney South West Area Health Service
RESPONDENT:			Margaret Dyer
INSURER:			Employers Mutual Limited
FILE NUMBER:			A1-9152/11
ARBITRATOR:	Mr W Dalley
DATE OF ARBITRATOR’S DECISION:			22 March 2012
DATE OF APPEAL HEARING:		20 August 2012
DATE OF APPEAL DECISION:			28 August 2012
SUBJECT MATTER OF DECISION:			Injury; causation; whether psychological condition arose out of employment; whether psychological condition resulted from accepted physical injury; whether worker received a primary psychological injury or secondary psychological injury; ss 4 and 65A of the Workers Compensation Act 1987; application of principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; application of principle of novus actus interveniens in workers compensation proceedings
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			Oral
REPRESENTATION:			Appellant:	Mr P Stockley, instructed by Turkslegal
Respondent:	Mr P Perry, instructed by Stacks Goudkamp
ORDERS MADE ON APPEAL:			The Arbitrator’s determination of 22 March 2012 is revoked and the following orders made in its place: “1. Award for the respondent. 2. Each party is to pay her or its own costs.” Each party is to pay her or its own costs of the appeal.

BACKGROUND

On 18 January 2007, the respondent worker, Margaret Dyer, suffered a serious injury to her left elbow (the physical injury) when she fell in the appellant employer’s car park as she was leaving work. The insurer accepted liability for that injury and has paid compensation for it. She suffered a further injury on 12 September 2008 when she hurt her right shoulder while pushing a gate, though that injury is irrelevant to the current appeal.
Ms Dyer had extensive treatment to her left elbow, including surgery. In November 2008, she had further surgery to replace a tendon in her elbow. Following that operation, her left arm was immobilised in a brace. She was so restricted after the surgery that the insurer approved the provision of domestic assistance. That assistance included personal care assistance with bathing.
While at the worker’s house on 12 January 2009 to provide Ms Dyer with assistance with bathing, a nurse/carer inappropriately touched her. As a result, the nurse was charged with offences under s 611 of the Crimes Act 1900, but was ultimately acquitted. In view of his acquittal, it is inaccurate to refer to the incident as a “criminal assault”, as the parties have on appeal.
It is not disputed that, as a result of the elbow injury on 18 January 2007, Ms Dyer suffered a secondary psychological injury in the nature of an aggravation of a pre-existing depressive disorder. Further, regardless of how the events on 12 January 2009 are characterised, it is not disputed that, as a result of those events, Ms Dyer developed a post-traumatic stress disorder and suffered a further aggravation of her depressive condition, which I will collectively refer to as the “psychological condition”.
The present claim is only for lump sum compensation in the sum of $22,000 in respect of a 22 per cent whole person impairment due to the psychological condition that has allegedly resulted from the incident on 12 January 2009, and for compensation for pain and suffering resulting from that impairment. There is no claim for weekly compensation or medical expenses.
When a worker suffers a psychological injury, s 65A of the Workers Compensation Act 1987 (the 1987 Act) provides that lump sum compensation is only payable if that injury is a primary psychological injury. No lump sum compensation is payable for a permanent impairment that has resulted from a secondary psychological injury. A primary psychological injury means a psychological injury that is not a secondary psychological injury (s 65A(5)). A secondary psychological injury means “a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury” (s 65A(5)).
The Arbitrator identified the following issues to be in dispute:
(a)     whether Ms Dyer suffered a primary psychological injury on 12 January 2009 in the course of or arising out of her employment with the appellant;
(b)     if she did so, whether her employment was a substantial contributing factor to that injury, and
(c)     whether that injury was a “secondary psychological injury”.
He found that, on 12 January 2009, Ms Dyer suffered a s 4 injury in the nature of a psychological injury arising out of her employment, that her employment was a substantial contributing factor to that injury, and that her injury was a primary psychological injury and not a secondary psychological injury. The appellant has challenged the Arbitrator’s findings on all issues.
In particular, the appellant has submitted that the Arbitrator erred in finding that Ms Dyer’s “psychological injury arose out of her employment” and has argued that the events on 12 January 2009 broke the chain of causation between the physical injury and Ms Dyer’s psychological condition as it appeared after 12 January 2009. In the alternative, if there is a connection between the worker’s psychological condition and the employment, the only connection is with the physical injury on 18 January 2007, and it is a secondary psychological injury.
Counsel for Ms Dyer, Mr Perry, submitted that the Arbitrator did not err in finding that, because of the events on 12 January 2009, Ms Dyer suffered a s 4 injury in the nature of a primary psychological injury that arose out of her employment and that the chain of causation was not broken by the events on that day.
In the alternative, he argued that, even if I found there was no s 4 (psychological) injury that arose out of Ms Dyer’s employment, Ms Dyer is entitled to succeed because, on 12 January 2009, in the course of receiving assistance for the injuries resulting from the injury to the elbow on 18 January 2007, she sustained a primary psychological injury and that primary psychological injury has resulted from the physical injury received on 18 January 2007. In the further alternative, Mr Perry submitted that Ms Dyer’s psychological condition is a secondary psychological injury.

THE DECISION UNDER REVIEW

The Certificate of Determination dated 22 March 2012 records the Arbitrator’s orders as follows:
“The Commission determines:
1.       The applicant suffered secondary psychological injury by way of aggravation of a pre-existing Major Depressive Disorder as the result of injury to her left elbow on 18 January 2008 [sic 2007].
2.       The applicant suffered primary psychological injury by way of further aggravation of her pre-existing Major Depressive Disorder and the onset of Post Traumatic Stress Disorder as the result of assault on or about 12 January 2009 arising from her employment with the respondent.
3.       The applicant’s employment was a substantial contributing factor to the onset of that primary psychological injury.
4. The claim under section 66 of the Workers Compensation Act 1987 is remitted to the Registrar for referral to an Approved Medical Specialist to assess whole person impairment in respect of psychological injury suffered by Ms Dyer as a result of the assault on or about 12 January 2009 by way of aggravation of a pre-existing Major Depression Disorder and the onset of Post Traumatic Stress Disorder.
5.
The material to be supplied to the Approved Medical Specialist should be:

(a)Application to Resolve a Dispute and attached documents;
(b)Reply and attached documents, and
(c)Documents attached to the Application to Admit Late Documents by the applicant.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

THE ISSUES ON APPEAL

In summary, the issues on appeal fall under three main headings:
(a) the injury issue, that is, whether Ms Dyer suffered a s 4 injury on 12 January 2009;
(b) the causation issue, that is, whether the chain of causation between the physical injury and the development of Ms Dyer’s psychological condition was broken by the events on 12 January 2009, and
(c) the s 65A issue, that is, whether, assuming that the chain of causation was not broken, Ms Dyer’s psychological condition is a primary psychological injury or a secondary psychological injury.

THE INJURY ISSUE

The Arbitrator’s reasons

The Arbitrator correctly stated that, for the purposes of s 4 of the 1987 Act, an injury does not have to be received in the course of employment for it to arise out of employment. An injury can arise out of employment if it is “directly and unbrokenly connected with” the employment (Tarry v Warringah Shire Council [1974] WCR 1 (Tarry).
Relying on Kasim v Busways Blacktown Pty Ltd [2003] NSWCC 6; 25 NSWCCR 450 (Kasim), the Arbitrator said (at [19]) that, although an injury had been sustained through the agency of a third party after the worker had moved outside the course of employment, there were a number of cases where the injury had been held to arise out of employment “where there is a logical connection to work”.
He added (at [21] and [22]):
“I am satisfied that the injury that Ms Dyer suffered in her home in January 2009 arose out of her employment. The causal connection to her employment is through her treatment for the work injury that she suffered in the course of her employment. It was the work injury to the left elbow that required her to undergo surgery and necessitated her subsequent convalescence. During that period she was necessarily in need of assistance with her care. Causation often involves multiple factors and, although the intervention of a third party was one factor, Ms Dyer's extreme vulnerability caused by the injury at work was a further factor.
Accordingly I am satisfied that Ms Dyer suffered a psychological injury arising out of her employment on or about 12 January 2009.”

Submissions
Appellant employer’s submissions

Counsel for the appellant employer, Mr Stockley, submitted that the facts in Kasim are different to the present matter. In that case, the worker was a bus driver who claimed that a teenager assaulted him after the bus arrived at its destination. The judge found that the injury was not received in the course of the driver’s employment because the driver had slapped the teenager’s head. However, he also found that the injury had arisen out of the employment because the teenager’s conversation with the driver, which provoked him, was one that arose out of the relationship of a driver and a passenger and related to the route the driver had taken.
The factual scenario in the Ms Dyer’s case is entirely different because the psychological condition did not bear any connection with any feature of Ms Dyer’s employment, other than the fact that her work injury caused her to cross paths with the nurse. Reliance was placed on the principles of novus actus interveniens (new intervening act) and it was argued that the incident on 12 January 2009 was an intervening act that broke the chain of causation.

Ms Dyer’s submissions

Mr Perry submitted that the Arbitrator correctly found that the injury (being post-traumatic stress disorder and an aggravation of a pre-existing major depression) arose out of Ms Dyer’s employment. He said that the chain of causation was established because Ms Dyer’s psychological condition, which was a legacy of the January 2009 incident, flowed from the employment injury to the elbow. He said there was a smooth link between the employment and the psychological injury.

Discussion and findings

The text, Workers Compensation (New South Wales)2^nd ed, Butterworths, 1979 by C P Mills, considered the doctrine of novus actus in the context of workers compensation claims. The author said, at 236:
“The concept of an entirely new cause intervening to produce the ensuing incapacity [or impairment] involves the idea of the replacement of the injury, as the cause of the incapacity, by a second incident, again causing incapacity. Before the novus actus will be regarded as the only cause of the incapacity, it must be shown that the incapacity which would have resulted from the injury has ceased to exist and that the incapacity which does exist has resulted from the new cause as the sole cause.”
The text goes on to record that, where an injury has resulted in a wound which has become infected in the course of treatment or healing, there has been little hesitation in saying that the infection is a result of the injury and, if the infection results in incapacity, that incapacity also results from the injury. That may be accepted as a correct statement of principle that is consistent with authority (Lindeman Ltd v Colvin [1946] HCA 35; 74 CLR 313 (Colvin) at 321; D & W Livestock Transport v Smith (No 2) [1994] NTSC 31; 4 NTLR 169 (D & W Livestock) at 172.
It may be seen, therefore, that the novus actus principle relates to the assessment of the quantum of compensation and not to whether a worker has received a s 4 injury. The appellant’s novus actus argument will be relevant to whether Ms Dyer’s psychological condition has resulted from her physical injury, or from some other unrelated event (the causation issue), but it is not relevant to determining whether Ms Dyer suffered a s 4 injury arising out of her employment, as the Arbitrator found.
I assume, though it is far from clear from the Arbitrator’s decision, that he found that Ms Dyer suffered a “personal injury” under s 4 on 12 January 2009. Leaving to one side the difficulty in making that finding in circumstances where there is no evidence of a physiological change having occurred on 12 January 2009 (Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310), the Arbitrator’s decision has failed to distinguish between a “personal injury” arising out of employment under s 4, on the one hand, and a medical condition that has resulted from an injury, in the sense discussed in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), on the other. The two situations are quite separate and distinct.
In Smith v Australian Woollen Mills Ltd [1933] HCA 60; 50 CLR 504 (Smith), Starke J observed that the authorities had established the following propositions (footnotes omitted):
“1.     The expression ‘arising out of’ imports some kind of causal relation with the employment, but it does not necessitate direct or physical causation. Was it part of the injured person’s employment to hazard, to suffer, or to do that which caused his injury? It must arise out of the work which the worker is employed to do—out of his service (Stewart v Metropolitan Water, Sewerage and Drainage Board, and the cases there cited).
2.     An injury does not cease to arise out of the employment because its remote cause is the ideopathic condition of the injured man. The ideopathic condition must be dissociated from the other facts (Wicks v Dowell & Co).
3.     An injury which arises directly out of circumstances encountered because to encounter them falls within the scope of employment is an injury arising out of the employment. If the worker is injured by contact physically with some part of the place where he works, then, apart from questions of his own misconduct, he at once associates the injury with his employment (Upton v Great Central Railway Co; Brooker v Thomas Borthwick & Sons (Aus) Ltd).” (emphasis added)
The words “arising out of” require “a causal connection between the employment or its incidents” (Dixon CJ in Kavanagh v Commonwealth [1960] HCA 25; 103 CLR 547 at 556) (emphasis added).
The term “employment” in s 4 is not to be too narrowly construed and the Commission must look at the employment’s “nature, its conditions, its obligations and its incidents” (Thom v Sinclair [1917] AC 127 at 142). To establish that a s 4 injury arose out of the employment concerned, there must be a causal connection between the employment (its nature, its conditions, its obligations and its incidents) and the injury.
The connection between the injury and the employment in Tarry and Kasim was the fact that the altercations (and the injuries) arose directly out of the workers’ duties, though they were not in the course of their employment at the time they received their injuries. In Tarry, the injury arose out of a matter that concerned the workers’ respective authorities and duties. That is, it arose in a work situation over work issues. In that sense, the injury from which the deceased died (a heart attack) was “directly and unbrokenly connected with his employment”.
In Kasim, the fact that the worker was the aggressor when he slapped a passenger took him outside the course of his employment. However, that incident arose directly out of the worker’s duties, namely, an earlier verbal exchange between passengers and the worker about the correct route the bus was to take. That fact meant that the worker’s injury arose out of his employment though he was not in the course of his employment at the time of the incident in which he received his injury.
The Arbitrator said that the causal connection with Ms Dyer’s employment (and her psychological condition) was through her treatment for the accepted (physical) injury, and it was that injury that required surgery and gave rise to the need for a nurse. That does not establish that the psychological condition that resulted from the incident on 12 January 2009 arose out of the employment.
The causal connection with the employment and the psychological condition needed to establish a s 4 personal injury is missing in this case. It was no part of Ms Dyer’s employment to “hazard, to suffer, or to do that which caused” (Smith) her psychological condition. What the Arbitrator relied on to base his finding of injury was the connection between the need for care and the (physical) injury. That is an entirely different issue to whether an injury has arisen out of the employment.
The question of whether a worker suffers a further injury when he or she receives treatment for an accepted injury was considered in Hand v Alcan Gove Pty Ltd [2008] NTSC 25 (Hand). In that case, the Mr Hand injured his knee at work in 1991. He had numerous operations over several years and ultimately had a total knee replacement in 2004. Because of his extensive treatment, his impairment increased over time. He claimed additional compensation on the ground that each operation he had on his knee was, in itself, a “new injury”.
In rejecting that argument, Mildren J said (at [20]) that it was difficult to envisage a situation where an operation could be an injury that arose out of or in the course of the employment. His Honour added, “[s]uch a concept postulates that it was part of a worker’s employment duties or otherwise sufficiently connected with the employment to undergo an operation”. Obviously, it was no part of the worker’s duties to undergo surgery. Similarly, in the present case, it was no part of Ms Dyer’s employment duties to have home care.
It follows that the Arbitrator erred in finding that, on 12 January 2009, Ms Dyer suffered a s 4 injury arising out of her employment. This conclusion makes it unnecessary to consider if employment was a substantial contributing factor to the injury. In addition, as the appeal was originally presented, it also makes it unnecessary to determine if the psychological condition is a secondary psychological injury. That is because the only claim before the Commission is for lump sum compensation and, even if the psychological condition can be characterised as a secondary psychological injury, that does not entitle Ms Dyer to recover lump sum compensation for it.

However, in the course of the oral hearing of the appeal, Mr Perry sought leave to present an alternative argument that, even if Ms Dyer had not suffered a s 4 injury, she still suffered a primary psychological injury that resulted from the physical injury. After obtaining instructions, Mr Stockley did not oppose Mr Perry presenting that argument, though it had not been raised at the arbitration, or in the written submissions on appeal, and involved relying on the injury on 18 January 2007, which had not been pleaded. As the new argument did not require any further or additional evidence, and as it involved no prejudice to the appellant employer, I gave leave for Mr Perry to rely on it and to rely on the injury on 18 January 2007.
This argument squarely raises a causation issue and it is in this context that the appellant’s novus actus argument is relevant. That is because, if the events on 12 January 2009 were a novus actus that broke the chain of causation between the physical injury and the psychological condition, there is no liability for any compensation arising from the events on that day, and Ms Dyer’s psychological condition cannot be a primary psychological injury or a secondary psychological injury. It is therefore convenient to deal with the causation issue before dealing with Mr Perry’s alternative argument.

THE CAUSATION ISSUE

Submissions

Mr Stockley properly conceded that an employer will be liable for the consequences of reasonably necessary medical treatment, even if that treatment is provided carelessly. In the present case, however, he submitted that the worker’s psychological condition resulted from wrongful touching or assault and it was not part of the treatment regime for a nurse to conduct himself in that way. Therefore, that conduct broke the chain of causation and Ms Dyer’s psychological condition cannot be said to have resulted from the injury to her elbow.
Mr Stockley referred to Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; 156 CLR 522 (Kruschich). In that case, the High Court observed that, in a claim for common law damages, an exacerbation of a plaintiff’s condition as a result of treatment that was either inexcusably bad or outside the bounds of what any medical practitioner might prescribe should be regarded as arising solely from the grossly negligent treatment and not from the original injury.
He also referred to State Rail Authority (NSW) v Chu [2008] NSWCA 14 (Chu). In that case, the plaintiff injured her left ankle when she fell down stairs at Sydenham railway station. She claimed damages for pain and suffering as a result of her physical injury and for depression. Her claim for her psychological condition included a claim for damages as a result of having been sexually assaulted while still disabled by her ankle injury.
The Court of Appeal held that the trial judge had erred in allowing damages for the sexual assault. Mathews AJA (Hodgson and Bell JJA agreeing) said (at [53]) that the preponderance of evidence was that the assault would probably have occurred whether or not the plaintiff had been injured in the fall. Her Honour added that, in any event, the sexual assault was plainly a novus actus which broke the chain of causation.
Mr Perry submitted that the chain of causation was established because the psychological condition is the legacy of the incident on 12 January 2009 and that incident flowed from the physical injury. He submitted that the facts in Chu were different and that Ms Dyer’s need for care arose out of the original injury to the elbow.
At my request, both parties made further oral submissions on 24 August 2012 directed to the relevance of the specific events on 12 January 2009 to the issue of whether Ms Dyer’s psychological condition has resulted from the physical injury.
Mr Stockley submitted that the facts do not allow a conclusion that the nurse may have performed the authorised act of washing Ms Dyer in an unauthorised way. She expressly told the nurse what to do and what not to do. His touching her was not an accidental straying of his hand but was a deliberate act and outside what he was asked to do. Therefore, the consequence is that the act is disconnected with the injury and Ms Dyer’s psychological condition has not resulted from injury to the elbow.
Mr Perry submitted that a critical issue was whether the nurse had any criminal intent and it was important to note that the nurse was acquitted of all of the charges brought against him. The nurse did what he went to Ms Dyer’s house to do, namely, to wash her and it cannot be found that he had any criminal intent. He added, relying on Jordan v Metropolitan Water, Sewerage and Drainage Board [1943] WCR 80 (Jordan), that the appellant employer carried the onus to show that the nurse had a criminal intent and, if I could not decide if that intent existed, causation was made out.
Mr Perry said that the connection with the physical injury came about because it gave rise to the need for Ms Dyer to have assistance with bathing and the insurer approved the sending of a nurse with instructions to ensure that Ms Dyer was properly looked after from a health point of view. All those circumstances were to do with the injury and the psychological condition had its causal genesis in the physical injury. He also drew attention to the fact that there was no evidence of any complaint about the nurse (other than Ms Dyer’s complaint) or any discipline against him by his employer.

Discussion and findings

The leading authority on causation in workers compensation cases is Kooragang. In that case, Kirby P (as his Honour then was) said (at 461G) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. After referring to earlier English authorities, his Honour added (at 462E):
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
His Honour said at 463–464:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
His Honour concluded that the Court was left with “an unbroken chain of undisputed evidence” that linked a back injury with the worker’s later death from a heart attack. In combination, the facts went “beyond mere predisposing circumstances”. They combined to make it “proper to reach the conclusion that the death of the worker ‘resulted from’ his original injury and all of the consequences which it set in train”.
The test of causation in a claim for lump sum compensation is the same as the test in a claim for weekly compensation, namely, has the impairment “resulted from” the relevant work injury (Sidiropoulos v Able Placements Pty Ltd [1998] NSWCC 7; 16 NSWCCR 123; Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648)? Therefore, his Honour’s comments apply in the present matter.
The principles stated in Kooragang are consistent with the later decision by Mason CJ (with whom Toohey and Gaudron JJ agreed) in March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506 (March v Stramare), where his Honour said that causation is resolved as a matter of commonsense and experience; the “but for” test is not definitive; that causation was a question of fact; but it was a question of fact into which considerations of policy and value judgments necessarily entered.
His Honour added (at 510) that traditional formulae about “direct” consequences, or “natural and probable consequences”, or “direct and natural consequences”, or “proximate” causes or “real effective” causes concealed “the making of value judgments or reliance on unexpressed policy reasons for refusing to allow liability to extend to the damage sustained in particular cases”.
Mr Perry’s argument is, in essence (though he did not express it in these terms), based on the “but for” test of causation: but for the injury to the elbow, Ms Dyer would not have needed assistance with bathing and the incident on 12 January 2009 would not have occurred. However, that argument is similar to a worker saying, “Had I not gone to work today, I would not have been injured”. Such a statement is undoubtedly true, but it does not establish that the injury resulted from going to work. As observed by Mason CJ (at 516) in March v Stramare, “a factor which secures the presence of the plaintiff at the place where and at the time when he or she is injured is not causally connected with the injury, unless the risk of the accident occurring at that time was greater”. In the present case, the fact that Ms Dyer required assistance with bathing merely provided the setting for what followed.
The evidence is undisputed and is conveniently set out in the Facts Sheet prepared by the police on 19 April 2010, which both counsel agreed is accurate. In summary, the evidence is that Ms Dyer loudly and clearly told the nurse that he was to wash her hair and back and she could “do the rest”. Once the nurse had finished washing Ms Dyer’s hair, she asked him for the showerhead so she could rinse the areas she had just washed. The nurse gave her the showerhead and she rinsed herself. She then turned off the tap, stood up and placed her right hand on the wall to steady herself while raising her left leg to step out of the bath. As she lifted her left leg, the nurse touched her inappropriately in the manner more fully set out in the police Facts Summary and which the parties have agreed do not need to be repeated in this decision.
While I agree that it is important to consider the nurse’s intention when he touched Ms Dyer as she stepped out of the bath, in the absence of evidence from the nurse, his acquittal of any criminal wrongdoing provides little insight into his intentions or motivation. It merely means that the jury was not satisfied the prosecution had established its case beyond reasonable doubt. On the undisputed evidence available to me, I am comfortably satisfied that, on the balance of probabilities, the nurse’s actions constituted an assault. He not only touched Ms Dyer without her consent, but did so in a way that was against her express and clear instructions.
The evidence does not support a conclusion that the nurse was performing an authorised act in an unauthorised way: the nurse did something that he had been told not to do and something that, on the evidence, was not a part of the assistance he had been engaged to provide. The medical evidence is unanimous that it was that conduct, described by the doctors as the assault, the alleged assault, or the alleged sexual assault, that caused Ms Dyer’s psychological condition.
Mr Perry’s reliance on Jordan is misplaced. In that case, Perdriau J held that the worker’s pulmonary tuberculosis had been aggravated by his duties with the respondent employer and accelerated the happening of incapacity for work. As the evidence had not established that the acceleration of the incapacity had been overtaken by the normal progress of the disease, the employer had the onus of proving when the incapacity due to the accepted work injury had ceased.
The facts in Jordan bear no relation to Ms Dyer’s claim and provide her with no assistance. She has not established that her psychological condition was caused by her employment duties with the appellant employer and the question of whether a work-caused aggravation has ceased does not arise. The general principle is that “he who asserts must proof” applies in this case (Commonwealth v Muratore [1978] HCA 47; 141 CLR 296 at 302–3) and it is not for the appellant employer to show that the nurse acted with criminal intent. It is for Ms Dyer to prove that her psychological condition resulted from the physical injury. She has failed to do so.
I do not accept that Ms Dyer’s psychological condition has its genesis in the physical injury. The physical injury merely created a need for care. When the nurse touched Ms Dyer in a manner contrary to her express instructions, he was not providing care required because of the physical injury. He was committing an assault. That did not result from the physical injury but from the nurse’s deliberate and unauthorised act.
The decision of McHugh J in Bennett v Minister of Community Welfare [1992] HCA 27; 176 CLR 408 at 429–430 (Bennett) (quoted in Chu) is also relevant:
“The causal connection between a defendant’s negligence and the plaintiff’s damage is negatived by the subsequent conduct of another person only when that conduct is ‘the free, deliberate and informed act or omission of a human being, intended to exploit the situation created by [the] defendant’”.
Applying a commonsense evaluation to the causal chain, as explained in Kooragang and March v Stramare, I am satisfied that the chain was broken by the assault because, on the uncontested evidence, the nurse’s conduct was a “free, deliberate and informed act” which was intended to exploit, and did exploit, the situation created by the original physical injury. It follows that Ms Dyer’s psychological condition cannot be found to have resulted from the injury to the elbow on 18 January 2007 and that it cannot be either a primary psychological injury or a secondary psychological injury under s 65A.
This means that Ms Dyer’s claim cannot succeed and it is not strictly necessary to consider Mr Perry’s alternative argument under s 65A. However, in view of the way the case was presented on appeal, and in view of certain statements made by the Arbitrator, I make the following observations.

THE S 65A ISSUE

Mr Perry submitted that, even if I made a finding against his client on the injury issue, his client is still entitled to succeed because, on 12 January 2009, in the course of receiving care (personal assistance with bathing) for the condition resulting from the physical injury on 18 January 2007, Ms Dyer sustained a primary psychological injury that resulted from the injury on 18 January 2007.
For the purposes of this argument, I will assume, contrary to my finding, that Ms Dyer’s psychological condition has resulted from the injury on 18 January 2007.
Mr Perry developed his argument by analogy with a bank teller who is shot in the course of an armed robbery. Such a worker may well suffer a physical injury (the injury caused by the gunshot wound) and a primary psychological injury in the form of post-traumatic stress disorder as a result of the circumstances of the robbery. He also relied on Romanous Constructions Pty Ltd v Arsenovic [2009] NSWWCCPD 82 (Arsenovic) and Cannon v The Healthy Snack People Pty Ltd [2009] NSWWCCPD 32 (Cannon).
In Arsenovic, I held that a worker injured in a car accident had received both a physical injury and a primary psychological injury. However, the medical evidence in that case supported the conclusion that Mr Arsenovic had received two separate and distinct injuries in the one accident. The evidence was to the effect that he had suffered a physical injury to his spine and a psychological injury in the nature of post-traumatic stress disorder and depression due to the circumstances of the accident, which caused shock and an acute stress disorder. His psychological injury had not resulted from the physical injuries received in the accident, but from the circumstances of the accident.
The above arguments do not assist Ms Dyer. Her physical injury was caused by a fall on 18 January 2007 and that is the injurious event for which she has sought compensation. As noted earlier, it is accepted law that, when medical treatment (including care) is provided to alleviate an injury, the total condition as a consequence of the injury and the treatment is to be attributed to the original injury (Colvin and D & W Livestock). That is because the treatment, and the condition that results from it, results from the original injury and is not a new injury (Kooragang and Hand).
It follows that, if Ms Dyer’s psychological condition developed because of the events on 12 January 2009, it cannot be characterised as a primary psychological injury. That is because the psychological condition is a condition that has developed “as a consequence of” (s 65A(5)) the physical injury.
As Mr Stockley submitted, the word “consequence” imports a notion of causation. That meaning is consistent with the first definition in the Macquarie Dictionary, which defines “consequence” as “the act or fact of following as an effect or result upon something antecedent”. There is no reason to give it any meaning other than its normal meaning.
In Cannon, the worker suffered a physical injury in the course of her employment. On her return to work on suitable duties, she suffered a psychological injury as a result of harassment over her “suitable duties”. I held that her psychological condition was a primary psychological injury because the harassment (if it occurred) was an event that was “extraneous or extrinsic” (per McHugh in Bennett at 428) to the original physical injury and not part of the series of events that followed from the physical injury. It was not part of the causal chain. Therefore, the psychological injury had not arisen “as a consequence of, or secondary to, a physical injury” (s 65A(5)) but had resulted from the harassment, which was a separate cause.
Accepting, for the purposes of this argument, that the psychological condition resulted from the physical injury, Cannon does not assist Ms Dyer in establishing that she received a primary psychological injury because, in the event of such a finding, the care provided to her was not “extraneous or extrinsic” to her physical injury, but was provided as a result of, or as a consequence of, that injury. It follows that, if there had been no break in the chain of causation, the connection between Ms Dyer’s physical injury in 2007 and the development of her psychological condition in 2009 is that the psychological condition developed as “a consequence of” her physical injury and it cannot be a primary psychological injury.
The Arbitrator relied on the following passage in Cannon to support his conclusion that Ms Dyer’s s 4 injury was a primary psychological injury:
“Section 65A is intended to prevent the double recovery of lump sum compensation in circumstances where a worker has suffered a physical injury and, as a consequence of that physical injury (the pain and/or the discomfort and/or loss or impairments caused by that injury), has developed a secondary psychological condition.” ([103])

He said that it followed from this passage that a psychological injury is a secondary psychological injury when the clinical or physical effects of an earlier injury so affect the mind or psyche of a worker that the worker suffers a psychological injury. He concluded that the connection between Ms Dyer’s physical injury and the psychological injury was not dependent upon “the pain and/or the discomfort and/or loss or impairments caused by that [earlier] injury” and, accordingly, was not a secondary psychological injury.
I am in general agreement with the Arbitrator’s first statement in the preceding paragraph, save that, where he said “psychological injury”, I would use the term “psychological condition”. However, it does not follow that, just because the later psychological condition has not resulted from the pain and discomfort of the earlier physical injury, it must be a primary psychological injury.
The example given in Cannon of circumstances where a psychological condition will be a secondary psychological injury under s 65A was not intended to be exhaustive. Just because Ms Dyer’s psychological condition did not develop as a consequence of the pain from her physical injury did not mean that it had to be characterised as a primary psychological injury.
The consequences of a physical injury will be many and varied. In this case, the physical injury required Ms Dyer to have surgery and receive personal care. If, as a consequence of receiving that care (as opposed to being assaulted), Ms Dyer developed a psychological condition, that condition would clearly be a secondary psychological injury under s 65A because it would have arisen as a “consequence of” a physical injury.
It follows that, had the assault not broken the chain of causation, Ms Dyer’s psychological condition would, for the purposes of s 65A, properly have been characterised as a secondary psychological injury.

OTHER MATTERS

In addition to finding that Ms Dyer’s psychological condition was a primary psychological injury, the Arbitrator also found that she suffered a secondary psychological injury by way of an aggravation of a pre-existing major depressive disorder as the result of the injury to her left elbow on 18 January 2007. In making that finding, the Arbitrator made a finding on an issue that was not in dispute and was therefore not before him.
For the avoidance of any misunderstanding, I note that the parties agreed at the oral hearing of the appeal that, as a consequence of the pain caused by her physical injury to her elbow, Ms Dyer suffered a secondary psychological injury by way of aggravation of a pre-existing depressive disorder and the appellant employer is liable for the compensation payable for that condition. That compensation will not include lump sum compensation.

CONCLUSION

The Arbitrator erred in finding that Ms Dyer suffered a s 4 injury on 12 January 2009 and, as the only claim was for lump sum compensation, that finding disposes of the appeal and the claim, as it was originally presented. I have also determined that Ms Dyer’s psychological condition has not resulted from the physical injury on 18 January 2007, because the conduct of the nurse on 12 January 2009 broke the chain of causation between the physical injury and that condition.
Given the parties’ submissions on appeal, I have also considered whether, if, contrary to my finding, the psychological condition had resulted from the physical injury, Ms Dyer’s psychological condition was a primary psychological injury or a secondary psychological injury, as defined in s 65A, and determined that, in those circumstances, it could only be a secondary psychological injury. Therefore, even if the psychological condition had resulted from the physical injury, Ms Dyer would have failed in her claim for lump sum compensation.

DECISION

The Arbitrator’s determination of 22 March 2012 is revoked and the following orders made in its place:
“1. Award for the respondent.
2. Each party is to pay her or its own costs.”

COSTS

Each party is to pay her or its own costs of the appeal.

Bill Roche

Deputy President
28 August 2012

I, PARNEL McADAM, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE