Nizamdeen v University of New South Wales (NSWPIC 2022)

Link to Decision

Key Takeaways

This case discusses what constitutes a personal injury as distinct to a disease injury in psychological injury cases, as well as the causal nexus required to establish when an injury is related to the worker’s employment.

In proving the relevant causal connection, an evaluative process must be undertaken, considering all of the evidence in the case.

Brief Facts

The worker was employed as a business systems analyst for the University of New South Wales (UNSW).

He was arrested at work on terrorism charges and was remanded in custody for a month before it was found that a co-worker set him up. The charges against the worker were subsequently dropped. During the time that the worker was in custody, he claims that he was placed in solitary confinement and subjected to long hours of interrogation.

The worker claimed a psychological injury. He claimed weekly payments of compensation as well as a lump sum payment for 19% whole person impairment.

Judgment

The worker submitted that he had sustained a personal injury rather than a disease injury. He argued that his employment was a substantial contributing factor to the injury because it was a co-worker who framed him, the false arrest occurred during work hours, and he suffered humiliation and disgrace at his place of employment.

UNSW disputed that the worker sustained a psychological injury arising out of or in the course of his employment. It contended that the causes of the worker’s psychological injury were due to factors that had no connection or relationship to his employment with UNSW.

UNSW further submitted that the worker’s injury was a disease and that employment was not the main contributing factor to this disease. UNSW submitted that the worker’s psychological condition developed while he was in custody for a month, was subjected to interrogation, and became aware that he was the subject of acute media attention.

The primary issues for determination were therefore:

1. whether the worker sustained an injury arising out of or in the course of his employment (s4(a) of the Workers Compensation Act 1987 (the 1987 Act)) and, or in the alternative, whether the worker sustained a disease injury in the course of his employment (s4(b) (i) of the 1987 Act); and
2. whether the worker’s employment was a substantial contributing factor to a personal injury or, if the worker was found to have sustained a disease injury, whether the worker’s employment was the main contributing factor to a disease injury (pursuant to s9A and s4 of the 1987 Act, respectively).

Member Isaksen was not satisfied the worker sustained a personal injury in the course of employment. In this regard, the member was not satisfied that the worker suffered a ‘sudden physiological change or disturbance of his normal physiological state’ when he was arrested at work such as to cause a psychological injury immediately. The Member instead found that the available evidence supported a finding that the worker sustained a disease injury over the month following his arrest.

The issue for determination was then whether the worker’s employment was the main contributing factor to the contracting of the disease. Member Isaksen noted the requirements of s4(b)(ii) of the 1987 Act as follows:

The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.¹

The Member determined that the evidence did not support a finding that the worker’s employment was the main contributing factor to the contraction of a disease injury. There were several causal factors identified by the worker and in the medical evidence which were not related to the worker’s employment. These included his imprisonment for a month in a maximum-security prison, lengthy interrogations while in prison, the attitude of the police in response to his protests of innocence, attacks by the media, and his allegations of racial profiling.

The Member went on to say that even if he was wrong about the type of injury sustained by the worker (that is, a disease injury rather than a personal injury), he was not satisfied that the worker’s injury arose out of or in the course of his employment with UNSW, or that employment was a substantial contributing factor to the injury.

The Member held that the fact that the worker and co-worker merely happened to work for the same employer did not establish that the worker’s employment was a substantial contributing factor to his injury. This was because there was no evidence to connect the worker’s work duties with the actions by his co-worker to frame him.

Implications

This case confirms the importance of not taking a broad approach to the issue of causation of injury. Rather, an insurer should clearly make a distinction between an injury being caused by a particular event or incident (s4(a) of the 1987 Act), and an injury caused by cumulative events or factors (s4(b) of the 1987 Act), and establishing the relevant causal connection – this is done by closely evaluating the evidence, both medical and factual.

¹ AV v AW (NSWWCCPD 2020)