CJD v BQH [2026] NSWPICPD 8;

WORKERS COMPENSATION - alleged factual error on appeal: State of New South Wales v Culhana [2025] NSWCA 157; the onus of proof in applications pursuant to s 145(3) of the Workers Compensation Act 1987: Raniere Nominees Pty Ltd v Daley [2005] NSWCA 121; 66 NSWLR 594; consideration of CCTV footage: QBE Insurance (Australia) Ltd v Orcher [2013] NSWCA 478

CJD v Workers Compensation Nominal Insurer (icare) & Anor [2025] NSWPIC 362

1. CJD (the employer/appellant) employed BQH (the worker/respondent) over a period of three days prior to an incident on 26 August 2022. On that day the worker attended the employer's warehouse at Penrith. It was the first time she had been to that warehouse; on her previous workdays with the employer she attended its warehouse at Blacktown. The only other person at the Penrith warehouse on 26 August 2022 was the appellant's director.[1] The worker and the director chatted for some time, each drank a beer from the work refrigerator and they shared a cigarette. There was an incident involving alleged unwelcome sexual touching of the worker. The worker attended a police station and subsequently the director was charged. Following a contested hearing in the Local Court, the director was found not guilty of the relevant offences.
2. The employer was not insured in respect of its liabilities to pay workers compensation. The worker made a claim for compensation on the State Insurance Regulatory Authority (SIRA) dated 2 September 2022, alleging psychological injury,[2] liability for which was accepted. icare Workers Insurance (icare) subsequently issued a Notice to Reimburse to the employer, pursuant to s 145(1) of the Workers Compensation Act 1987 (the 1987 Act) dated 13 October 2023. The Notice sought reimbursement of $59,004.58 in respect of weekly compensation payments and medical expenses which had been paid to the worker. The injury was described as "Anxiety and psychological trauma".[3] The employer commenced the current proceedings, which seek determination of the employer's liability in respect of the relevant payment pursuant to s 145(3) of the 1987 Act, by way of a Miscellaneous Application lodged on 14 October 2023.
3. The Application was listed for hearing before Senior Member Beilby on 15 May 2025. Mr Stanton appeared for the applicant employer, Ms Balendra appeared for icare and Ms Magee appeared for the worker. The material before the Commission included CCTV which was recorded at the Penrith warehouse on 26 August 2022 and documents from the criminal proceedings. Mr Stanton, when asked to articulate the basis on which the employer challenged its liability to pay the sum described in the s 145 Notice, said:

"The primary basis is that it's asserted that the events that the worker says occurred in the warehouse that day in terms of sexual touching simply did not occur ... If that part of the application was unsuccessful there would be secondary arguments in relation to the quantum of the benefits paid over that period ... it could affect the quantum of the payments. There may also be an issue in relation to pre-injury average weekly earnings".[4]

1. There was extensive discussion between the Senior Member and counsel regarding whether oral evidence, in particular cross-examination, would be necessary.[5] This led to the following agreement of the parties on evidentiary issues:

"[Senior Member]: ... as I understand, the way this matter will progress will be Mr Stanton will be taking me to statements and the transcript and telling me why it's unreliable or I shouldn't put any weight on it. Is that what I understand? Do we all agree that's a fair way to proceed? No one's going to complain about it later? Does anyone want to take a moment to get instructions? No, everyone agrees? Certainly."[6]

"Ms Magee has just recently come back into the room and indicated that she has instructions similar to those that the [employer] and [icare] have and that is that there will be no submissions made in relation to the failure to cross-examine any witness in relation to this matter."[7]

1. All counsel addressed and the Senior Member reserved her decision.
2. The Commission issued a decision dated 28 July 2025, which was amended on 31 July 2025, in that it was de-identified.[8]

1. The Senior Member set out the background facts in a fashion generally consistent with paragraphs [1] to [2] above.[9] She described the issue:

"The applicant [employer] challenges the statutory demand in circumstances where they say the asserted episodes of sexual touching did not occur and also that the payments should be reduced to reflect the [worker's] capacity to work."[10]

1. The Senior Member quoted from the worker's statement, dated 25 October 2022, which was recorded by an investigator. The worker described commencing with the employer on 24 August 2022. She said she was required to report to the director, she was to work a 40‑hour week, her duties involved computer work, organising the warehouse, processing orders, preparing business reports, social media and liaising with customers. She said she did not require training as she was already experienced in the industry.
2. The worker described the events of Friday, 26 August 2022. She discovered from other employees that the director had gone to the Penrith warehouse. She messaged him and suggested that she "come to the Penrith warehouse to have a look". The director agreed and sent her the address. She said she arrived there at 3.05 pm and parked in the main carpark. After the director got off the phone he gave her a tour of the warehouse and they discussed future plans for the warehouse. The director invited the worker to have a beer, they each drank a beer in the office, when asked the director showed the worker where the bathroom was. They then went outside where they stood in a doorway and shared a cigarette, talking about work and the warehouse. The worker said they returned into the warehouse and she waited while the director took a phone call.[11]
3. The worker stated the director then came up beside her on her left, placed his right hand on her lower back, and said "I'm glad I found you, I'm glad you're here." The worker said "she froze and felt very scared as he was very close to her". She said he attempted to kiss her and she tried to block his attempts. She said "no, I have a boyfriend" but he was very forceful and kept asking for a kiss. He then suggested they "go back to the office, it is warmer in there". They returned to the office, the worker said "she was in an awkward situation and didn't know what to do ... [s]he felt shocked and confused". The worker said she put her beer back on the table and sat down. She said the director "walked up behind her and began kissing the right side of her neck. He put one of his hands down her jumper on to her breast." She said she "just froze".[12]
4. The worker said she had to go. She said when she stood up the director withdrew his hands. She said when she started to walk out the director opened another door for her to use and as she tried to walk past him quickly he grabbed her and kept saying "kiss me", to which she said "no, I have to go". As she moved away from him he released her. She said she went to her car, burst into tears and then rang her partner who advised her to go straight to the police station. She attended Parramatta Police Station later that night and gave a sworn statement on 30 August 2022.[13]
5. The Senior Member referred to statements given by the director dated 26 July 2024 and 25 March 2025. The Senior Member said the second of these confirmed the original one with "a few small differences". The Senior Member summarised the statement evidence from the director. There were difficulties in obtaining references for the worker from her previous employment; a positive reference ultimately came from her father's business.
6. The director said that on both the first and second days of her employment, the worker shared personal information about her partner. The worker said her partner was not emotionally or financially supportive and she hugged the director before leaving. On the third day she repeatedly asked if the director wanted her to come to Penrith, knowing he would be there alone. He said that on the same day the worker asked whether she could work on a weekend and suggested they have after hours drinks together.[14]
7. The director confirmed the two of them each drank a beer at Penrith. He said he was hesitant about sharing confidential and personally sensitive information with the worker. He stated the worker said she wanted extra hours including on the weekend. He said he felt she needed money desperately and said to her that he would be happy to give her extra hours including on the weekends. The director agreed he had his hand on the worker's lower back, which he regarded as "a friendly and appropriate gesture". The Senior Member said the director denied a kiss or attempted kiss, although in his second statement said he tried to kiss the worker on the cheek. He said he had formed the view she was comfortable with "casual physical contact in a professional setting", given she had hugged him on the first two days of her employment. He did not think his actions would make her uncomfortable. His intention was to be friendly and supportive. He said that when he tried to hug the worker she "leaned into him and put her head on his shoulder".[15]
8. The Senior Member referred to the video evidence. She said there were "five short videos" of the events in the warehouse at Penrith, there was "no evidence of anything that took place in the office". The Senior Member noted the parties' agreement that the events in the videos took place one hour earlier than the time stamp in the video, which had not been adjusted to reflect daylight saving time. The Senior Member said the third video, time stamped 14.52, was the important one and she spent a "significant amount of time" watching it. The Senior Member's description of what is shown was described in her reasons at [64] to [65]:

"64. The video commences with [the director's] arm around the [worker's] shoulder, and he moves his face towards the [worker]. [The worker] slightly moves her face so that the kiss or contact occurs between [the director] and [the worker] on her right hand cheek.

1. [The director] then has his right hand near or touching [the worker's] lower back. His hand later in the video, is near [the worker's] buttock or lower back. Both [the director] and [the worker] then move to the office, with the office door being shut by [the director]."
2. The Senior Member referred to "the relevant evidence" in the proceedings in the Local Court of New South Wales, in her reasons at [67] to [71]:

'I stood in the middle of the warehouse and just staring at like the layout and stuff asking him was there going to be more racking put up. He came up behind me and then to my left and placed his hand on my lower back and he said, 'I'm happy you're here, I'm glad I found you.' From there I just kind of froze. He tried to kiss my neck, I told him I can't, I don't want to do this.'

'He was standing to my left, he just, yeah, he came up beside me and tried to just kiss my neck on the left hand side.'

'I just froze and told him, 'no, I can't do this'. I put my hands up and said, 'no I can't do this'.'

'Your Honour, I believe both hands were in front of her about the middle of her sternum and pointed upwards slightly apart.'"

1. The Senior Member referred to the submissions on the director's part, that his interactions with the worker were "appropriate and considerate at all times", he was "extending sympathy and understanding", the worker appeared to be "perfectly comfortable with what was occurring". It was submitted on the director's part that his account was probably correct. The respondents submitted to the contrary. The worker was 26 years of age at the time, the director was her manager, 10 years older and in a position of power. The incident was reported to the police at 6 pm on the evening it occurred. When the director was arrested, he declined to be interviewed.[16] (The Senior Member declined to draw any adverse conclusion on this basis as the director was well within his legal rights in making no comment on the pending charges.[17])
2. The worker's counsel submitted the video in the warehouse showed the director touching the worker's bottom for an extended period of time, "in no way a comforting gesture". She submitted the worker and the director were in the room together for 30 to 60 seconds, "more than enough time for the offence to have occurred". The worker submitted it was conceded by the director that he had kissed the worker and he had his hand on the small of the worker's back. The worker referred to State Transit Authority of NSW v Chemler and the worker's perception of real events.[18]
3. The Senior Member's reasons referred to her feeling uncomfortable when watching the video, which she said she had watched repetitively as she thought it "very important in relation to this case". She did not accept that the worker looked "comfortable in the circumstances". She did not accept that the worker's credibility was successfully challenged by what the video showed. She noted there was no video of what occurred in the office. She said the video showed the director "trying to kiss [the worker] though it is very quick. It does show him have his right arm touch her lower back over her jumper." The Senior Member said the short period during which the worker and the director were in the office did not create a conflict in the evidence, the alleged events were "not lengthy".[19]
4. The Senior Member referred to Briginshaw v Briginshaw[20] in which Dixon J explained the appropriate standard of proof as one of 'reasonable satisfaction'. She referred to the submissions on the director's behalf that, given the seriousness of the allegation, "one must be very careful of exercising the standard of proof effectively". She said the Briginshaw principle must work both ways; it is a serious allegation to allege the worker dishonestly alleged sexual assault.[21]
5. The Senior Member referred to A1 Granny Flats v Workers Compensation Nominal Insurer (icare)[22] in support of the proposition that the employer bears the onus where it seeks to challenge its liability under a s 145 Notice.[23]
6. The Senior Member said the video made her feel uncomfortable "with a young woman being physically touched, though not apparently sexually at that stage, by her employer of some significant age difference and in a powerful position". The Senior Member said she took account of the reporting of the sexual touching very shortly after the relevant event. She said the medical evidence and reporting were consistent with the evidence in the worker's statements.[24] The Senior Member concluded there was no evidence before her that disputed the worker's evidence of what happened in the office. She said the worker's credit had not been impugned. She concluded the employer had not discharged its burden of proof in the proceedings.[25]
7. The Senior Member turned to deal with the issue of the worker's capacity. She said the employer's submission was that she should not be satisfied there was an incapacity resulting from the injury. She referred to the worker's statement in which the worker said, "I rarely leave the house".[26] The worker's bank records for 26 August 2022 (the date of injury) showed a debit at Hungry Jacks, Woolloomooloo, some distance from where she lived at Blacktown. On 1 September 2022 there were "minor shopping debits" and on 6 September 2022 debits for Uber Eats and 7-Eleven. On 7 September 2022 there was a debit for SMB Nails, Wentworthville. The employer submitted this was inconsistent with the worker being a recluse who required psychological support. On 17 September 2022 there was a debit for $300 for a salon in Leichhardt. The employer submitted the worker was not a recluse, in the few weeks after the alleged assault she was "active and mobile". It was submitted this weighed against the worker's credit, including in relation to the sexual touching. It was submitted that medical evidence that the worker had no work capacity should be rejected.[27]
8. The Senior Member said there was no medical evidence that self-care (such as the nail salon and hairdresser) militated against the worker's case. She concluded the food purchases similarly were not inconsistent with the worker's case. The worker had a serious medical diagnosis of acute stress disorder from Dr Biswas, general practitioner, on 10 May 2023. The Senior Member referred to medical evidence from Dr Malik, psychiatrist, and Dr Smith, consultant psychiatrist qualified by the worker. She said there was a paucity of evidence that the worker had any capacity to work. She noted the period relevant to the s 145 application was that up to 29 August 2023.[28]
9. The Senior Member found the employer had not discharged its onus to reduce the sum recoverable under the s 145 Notice. She made an order for de-identification pursuant to r 132 of the Personal Injury Commission Rules 2021.

1. Section 52(3) of the Personal Injury Commission Act 2020 provides:

"(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing."

1. Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed 'on the papers' without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

1. There is no dispute between the parties that the threshold requirement as to quantum pursuant to s 352(3) of 1998 Act has been met. Section 352(4) of the 1998 Act provides:

(a) 28 days after the decision appealed against is made, or

(b) a longer period determined or allowed, whether generally or for the kind of proceedings, in accordance with the Commission rules."

1. The appellant employer submits its appeal application was brought within time.[29] icare concedes the employer's appeal was brought within time.[30]
2. The worker submits that the appellant employer attempted to file its appeal within the 28-day period but the appeal was defective, as excessive documentation was lodged and the appeal did not comply with Procedural Direction WC 3. It submits that consequently the "compliant appeal annexures" were not filed within 28 days. It acknowledges that directions were made by the President's Delegate on 1 and 5 September 2025. It submits leave was not granted for the appeal to proceed out of time. It submits the appellant's submissions did not address the principles in Gallo v Dawson,[31] which are frequently applied in applications to extend time in the Commission. It submits that in the absence of an extension application being granted the appeal cannot proceed.[32]
3. The appeal was filed on 1 September 2025, which was within time. The Direction of the President's delegate dated 1 September 2025 did not involve rejection of the appeal. It identified certain procedural deficiencies and made orders relevant to rectifying these. This was consistent with Paragraph [10] of Procedural Direction WC3 which provides:

"If there are procedural deficiencies in the appeal application, the President may issue a direction to rectify those deficiencies as an alternative to refusing to accept, seal, issue or register the application. In these circumstances, the appeal application will not proceed further until the President is satisfied that the appeal is procedurally compliant."

1. It is apparent the President's delegate was satisfied any deficiencies had been rectified prior to issue of the Direction dated 5 September 2025, which made multiple procedural orders permitting the matter to proceed further. I am satisfied the procedural requirements as to time have been met.

1. The appellant raises the following grounds of appeal:

(a) The Senior Member erred in fact when she found that the video evidence did not cause her to doubt the evidence of the worker in any way. (Ground No. 1)

(b) The Senior Member erred in fact and law when she failed to properly consider the evidence of the proceedings in the Local Court. (Ground No. 2)

(c) The Senior Member erred in law when she considered that the appellant had the onus to prove that it was not liable to pay compensation to the worker. (Ground No. 3)

1. The grounds of appeal include allegations of factual error. This raises the decision of the Court of Appeal in State of New South Wales v Culhana[33] which is the subject of submissions by the parties. In Culhana No. 3 Leeming JA (Bell CJ, Kirk, McHugh and Free JJA agreeing) quoted the following well known passage from Fox v Percy:

"Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect'. In Warren v Coombes, the majority of this Court reiterated the rule that:

'[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.'

As this Court there said, that approach was 'not only sound in law, but beneficial in ... operation'. (citations omitted)."[34]

1. His Honour also quoted a passage from Lee v Lee which included the following:

"A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, 'in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge'."[35] (emphasis by Leeming JA)

1. In Culhana No. 4 (on remitter from the Court of Appeal) Phillips P quoted from the reasons of Leeming JA in the Court of Appeal together with the passage from Lee at [55]. The President said:

"25. In terms of this appeal, which returns to me on remitter from the Court of Appeal, I would make the following remarks. No viva voce evidence was heard by the Member in this matter. Rather, the hearing proceeded by way of oral submissions before the Member by counsel for all parties. The Member then reserved her decision. This is a very common occurrence in matters before the Commission given the way the rules and procedural directions govern the way disputes are framed and heard. There is no presumptive right for a party to call oral evidence, leave must be sought and granted by the presiding Member.[36] No such application was made in this matter and as a consequence, any advantage that a first instance decision maker would have over an appellate body, having heard such evidence, has limited application in this appeal. The evidence that is germane to the issues on appeal are the various lay statements and in particular, the expert opinions on causation which were before the Member. What this means is that I am in as good a position as the Member to consider the evidence and to draw what I consider are the correct inferences or conclusions should I decide that the Member was in error. In other words, consistent with Culhana No 3 at [91], I will not perpetuate a demonstrated error as referred to in Warren v Coombes.

1. What this does not mean is that I would merely substitute my preferred view of a particular outcome; error must still be established for the appeal to succeed."[37]
2. There was no oral evidence given by the worker or any other party or lay witness. Consistent with the decision of the Court of Appeal in Culhana No. 3, and the discussion of that decision by Phillips P in Culhana No. 4, I am in as good a position as the Senior Member to consider credit issues, and the correct inferences or conclusions which should be drawn. In dealing with this appeal I have sought to apply the principles outlined by the Court of Appeal in _Culhana No. 3 a_t [91].

1. It is convenient to deal initially with Ground No. 3, which raises the issue of which party bears the onus.

Appellant employer's submissions on Ground No. 3

1. The appellant states the Senior Member cited paragraphs [104] and [107] from the decision of Phillips P in A1 Granny Flats. Those paragraphs read:

"104. Properly characterised, the appellant's claim seeks to disturb or change the situation in terms of the payments made to the second respondent. It has long been the case that the party asserting a change must prove it.[38] The appellant is clearly the moving party in this dispute who is seeking to disturb a situation where no dispute exists between the respondents."

"107. The appellant was the moving party in the proceedings. It was seeking to dispute a series of payments made by the first respondent to the second respondent in circumstances where there was no dispute between these two parties. In practical terms, the onus of proof, whether legal or tactical, resided with the appellant."

1. The appellant sets out s 145 of the 1987 Act. The appellant refers to Raniere Nominees Pty Ltd v Daley[39] and Raniere Nominees Pty Ltd t/as Horizon Motor Lodge v Daley.[40] The appellant submits the "essential nature of the proceedings" is a claim by icare for reimbursement of moneys paid to the worker, which will only occur when the Commission is satisfied the worker was entitled to the payments made. It submits icare has no entitlement to recovery of the moneys until such a determination is made. icare makes the claim and bears the onus. It submits that, to the extent to which A1 Granny Flats decided otherwise, that case was wrongly decided. It submits it was error to consider the matter on the basis that the appellant bore the onus.

1. icare refers to the scheme under ss 140, 142A and 145(5) of the 1987 Act. The persons named in a certificate under s 145(5)(b) are liable to pay the injured workers compensation under the 1987 Act. The certificate is admissible as evidence of the matters stated in the certificate. Proceedings under s 145 are an attempt by the employer to refute the matters in s 145(5).[41]
2. icare quotes from the reasons of President Phillips in A1 Granny Flats:

"In [Raniere No. 1], Tobias JA reviewed the s 145 scheme with particular regard to how an employer could challenge an amount claimed from it in a s 145 notice. His Honour noted that the certificate issued which sets out the amount paid to the worker and sought to be recovered from the employer 'becomes evidence of the matters stated in it. However, it is not conclusive and it is open to the employer to prove that at the relevant time it was not liable to pay compensation to the injured worker under the Act.'"

1. icare submits the employer bears the onus and Ground No. 3 is not made out.[42]

1. The worker also quotes from A1 Granny Flats. The worker submits the appellant has not engaged with the President's detailed review of the authorities on this point, and quotes from the same passage of Raniere No. 1.

1. In Raniere No. 1 Tobias JA discussed the scheme in s 145 of the 1987 Act and said:

"That the employer's liability to reimburse the Fund in respect of the amount of any payment made to the injured worker under the Scheme is a reference to its liability to pay the injured worker compensation under the Act is, in my opinion, confirmed by the terms of s 145(5). That subsection provides for the admissibility of a certificate executed by the Authority certifying firstly, the amount of any payment made to the injured worker and, secondly, that the person named in the certificate (the employer) was in the opinion of the Authority

'liable at the relevant time to pay to or in respect of the injured worker compensation under [the] Act.'

Such a certificate becomes evidence of the matters stated in it. However, it is not conclusive and it is open to the employer to prove that at the relevant time it was not liable to pay compensation to the injured worker under the Act."[43] (emphasis added)

1. President Phillips quoted the above passage in A1 Granny Flats and said:

"In short, it is the employer who bears the onus of proof in such circumstances as present in this matter."[44]

1. Consistent with Raniere No. 1 the employer carries the onus in the current proceedings. Ground No. 3 fails.

Appellant employer's submissions on Ground No. 1

1. The appellant summarises the effect of the decision of the Court of Appeal in Culhana. The appellant quotes from the decision of Phillips P in Ferguson v Connemara Jack Pty Ltd[45] in which the President made remarks consistent with those in the passage from Culhana No. 4, which is quoted above. The appellant submits there was no oral evidence before the Senior Member in the current matter. It submits a Presidential Member on appeal "is in as good a position as the Member to determine the correct outcome". The appellant describes the "central issue" as the "competing versions of events" described by the worker and the director. The appellant notes there was "video of the events in the warehouse but not in the office". It states the video produced in the current proceedings was all that had been provided to the appellant.[46]
2. The appellant refers to multiple specific facts which the Senior Member is said to have not referred to in her description of the video, these being that:

(a) the video does not depict the director being pushed away as would be the case if the worker had put her hands up;

(b) the Senior Member does not refer to the worker's facial expression while the hug occurred or to the fact that the worker and the director continued their conversation about work in a relaxed manner before entering the office;

(c) the Senior Member does not compare the worker's evidence with what is depicted in the video. Had she done so she would have noted the worker's evidence that the director tried to kiss her on the left of her neck when he was "only ever on her right side";

(d) the worker stated that the director came up beside her on her left and placed his right hand on her lower back, contrary to the video which showed the director was on her right; the director's right hand could not have been on the worker's lower back because it was over her shoulder;

(e) the worker said she had her arms up towards her face - it does not appear that she did this;

(f) in the Local Court the worker demonstrated she had her hands pointed upwards and slightly apart, inconsistent with the video where she has a beer in her hands at all times;

(g) the hug happens very quickly, inconsistent with the worker's evidence that there were multiple attempts to kiss her. Her face is fully visible in the video and she is not talking, and

(h) the worker was wearing a top with a T-shirt neck which would have made it extremely difficult for the director to put his arm down her jumper.

1. The appellant submits the Senior Member should have concluded the worker's evidence was unreliable and the evidence of the director (which was entirely consistent with the video) should be preferred. The appellant submits that, if the Senior Member did not accept the worker's evidence that an assault occurred in the office, there would have been an award for the employer.[47]
2. The employer submits this is not a case where it could be concluded there was a misperception of what happened in the warehouse.[48]
3. The appellant refers to Dr Smith's report dated 27 November 2023,[49] in the worker's case. It submits Dr Smith's conclusion on the 'injury' issue was based on an acceptance of the worker's evidence regarding what happened in the office (which was not the subject of video). The doctor had not been provided with the video, the Local Court transcript or the director's statements. Dr Smith did not have a proper history and unsurprisingly he dealt with the matter on the basis of the complete acceptance of the worker's statements.[50]
4. The appellant refers to Dr Kaplan's report dated 2 August 2024.[51] The appellant notes Dr Kaplan's view that "if the interaction was restricted to what was shown on the video then this was not relevant".[52]

1. icare submits the Senior Member's reasons at [84] to [90] made a detailed examination of what the CCTV footage depicted. It submits any inconsistency between the worker's evidence and the CCTV footage was not the subject of cross-examination and in any event was addressed in the reasons at [91]-[92]. It submits the submission going to the worker's clothing (the top with a 'T-shirt' neck) was not raised at the hearing and cannot be raised now.[53]
2. icare refers to the appellant's submission that the video was consistent with the director's evidence. icare refers to the Senior Member's reasons at [101] where the Senior Member said there was no evidence before her that caused her to dispute the worker's version.[54]

1. The worker's submissions refer in a general fashion to the decision of the Court of Appeal in Culhana. It submits there was no oral evidence adduced and the appellant did not cross-examine the worker on credit.[55]
2. The worker submits the appellant acknowledged the video was limited to events in the warehouse, not in the office. It submits the appellant conceded the video in the warehouse showed the director kissing the worker's right cheek and touching her "buttock or lower back" before they moved to the office and the director shut the door. The worker submits even the touching conceded by the appellant constituted 'assault' and the video did not deal with what happened in the office.[56]
3. The worker submits the appellant had the opportunity to cross-examine the worker on alleged inconsistencies and did not do so, again referring to Winter.
4. The worker submits there was no error in the Senior Member's failure to find the video undermined and discredited the worker's evidence of assault.[57]

1. The submissions by the worker and icare refer to the absence of cross-examination by the employer on some issues. This is of little force given the manner in which all parties agreed to conduct the proceedings. The passage from the transcript quoted at [4] above confirms the matter proceeded on the basis of agreement between the parties that "there will be no submissions made in relation to the failure to cross-examine any witness in relation to this matter". Against that background, in a matter which plainly raised credit issues, no party sought to cross-examine or to adduce oral evidence. It would be procedurally unfair, on appeal, to draw any adverse inference on the basis of a failure to cross-examine.

1. The appellant's submissions are critical of the Senior Member's description of various matters that are depicted, by and large, in the CCTV coverage. It is appropriate to note the remarks of Tobias AJA (McColl and Macfarlan JJA agreeing) in QBE Insurance (Australia) Ltd v Orcher,[58] where his Honour said:

"The problem of a judge 'construing' photographs has been the subject of comment in this court: Blacktown City Council v Hocking [2008] NSWCA 144 at [7]-[13] per Spigelman CJ and at [167]-[171] per Tobias JA; Angel v Hawkesbury City Council [2008] NSWCA 130 at [71]-[72] per Beazley and Tobias JJA. Of course photographs, if otherwise relevant, are admissible but the weight to be attached to them and, in my view, the CCTV footage, is very much dependant on the quality and clarity of the images they depict as well as the context in which they are taken. In my view they can be quite misleading particularly as in the present case where the situation the subject of the footage was very dynamic."

1. Some of the criticism of the Senior Member's reasons dealing with the CCTV is based on alleged inconsistency between what is depicted and how it is described by the Senior Member. Some of it is based on criticism of the worker and her descriptions of what happened.
2. The appellant refers to the video which shows the director briefly kissing the worker.[59] The Senior Member described this passage of the CCTV as the "important video". The appellant submits on this topic at [19] to [28] of its submissions. The Senior Member's description of this passage of the CCTV is found in her reasons at [64] to [65], quoted at [15] above. I agree with that description. The passage from the transcript of the cross-examination of the worker in the Local Court, dealing with these events, is quoted above at [16].
3. What is depicted in this passage of the CCTV commences with the director placing his right arm around the worker's left shoulder and neck and moving his face towards hers to kiss her. She appears to turn her face and to raise her left hand so that the kiss is placed on her right cheek. The worker and the director are each holding a small, partially consumed beer bottle, she in her right hand and he in his left hand. Following the kiss the two of them stand talking, she predominantly holds her hands on her beer bottle. He holds his beer bottle in his left hand; his right hand, which is closest to the worker, hovers (at the least, very close) to the worker's lower back and left buttock. It is difficult to tell whether the director actually touches her buttock at this time. In discussion at the hearing involving the Senior Member and the employer's counsel the following was said:

"MR STANTON: Now, then true it is at this point his right hand is extended out towards her lower back, it may very well be touching the lower back but how he describes that is that - - -

1. The interaction between the worker and the director, depicted in this passage of the CCTV, commences with the worker and the director standing in the warehouse, facing each other, with the director about to put his right arm around the worker's shoulder. The entirety of this interaction is not fully depicted in the passage of the CCTV coverage. There must have been other events in the lead up to what is shown in this part of the CCTV.
2. Mr Stanton, the employer's counsel, discussed the CCTV evidence before the Senior Member, saying:

"I think by common concurrence he - you get some odd freezing of the images in these videos but it was certainly discussed before the Magistrate that this was occurring because of the motion sensitive nature of these camera [sic] and, of course, microphones. There is some speech can be discerned so it's useful to have the volume turned up when one plays these sequences."[61]

1. The director's statement dated 26 July 2024 includes the following relevant to the CCTV:

"66. The CCTV footage that I have relied upon was extracted by police. It was seized from my premises when they arrived. There are some pauses in the footage. As can be seen on the local court transcript, the Police were asked about this and they arrived at the view that the footage cuts out depending on movement, motion and how many cameras are recording the same angle simultaneously.

1. The cameras in the warehouse are motion detection cameras, and they record when they detect movement, otherwise we have issues with the storage requirements."[62]
2. The material produced from the Local Court proceedings includes a transcript of what was said by the worker and the director at this time, following the (alleged) kiss before they went into the office:

The [director] at 00:16 - Um, probably, I Dunno. Okay. Um, yeah. Do you want to come tomorrow?

[Worker] at 00:22 - yeah, I need to come in the morning to work on a lot of things.

The [director] at 00:24 - You can come for a couple of hours?

[Worker] at 00:29: Yeah ... inaudible".[63]

1. The appellant refers to multiple alleged discrepancies in what is depicted in the CCTV, which are submitted to have the consequence that the worker's evidence should not be accepted.

(a) The appellant submits the video does not show the worker pushing the director away consistent with having her hands up. I have repeatedly viewed the video. It shows the worker raising her left hand which she places against the director's right shoulder when he attempts to kiss her near the start of this passage of the video.

(b) The appellant refers to the absence of a reference to the worker's facial expression "while the hug occurred". This is a reference to what I have described as an attempt to kiss the worker; it is unclear what alleged error this involved. If I were obliged to describe the worker's facial expression I would use the term "nonplussed". The worker's face is clearly shown. Why it is erroneous that the Senior Member did not describe the worker's facial expression in unclear.

(c) The appellant submits that the Senior Member said the director tried to kiss the worker on the left side of her neck, when the director was "only ever on her right side". The video evidence shows the worker being kissed on her right cheek, having turned her head during this event. I cannot see this involves appealable error.

(d) The appellant submits the Senior Member referred to the director placing his right hand on the worker's lower back, contrary to the video, which showed the director was on the worker's right side. The video clearly shows the director standing on the worker's left, partially facing her, with his right hand in the immediate vicinity of, and probably touching, the worker's lower back and left buttock, consistent with the worker's evidence (see the reasons at [30]).

(e) The appellant submits that, contrary to the worker's evidence, it does "not appear" that she had her arms up towards her face. The Senior Member referred to this submission in the reasons at [91]. She said "at one stage [the worker] has both arms up in front of her. It is difficult to see exactly where her arms are due to the angle of the video". The appellant's submissions do not identify error in how the Senior Member dealt with this submission. Consistent with the passage from Orcher quoted above, the probative value of CCTV evidence is "very much dependant on the quality and clarity of the images they depict". The Senior Member specifically found the CCTV image did not permit her to identify the location of the worker's arms with greater precision.

(f) The appellant submits the worker was wearing a "t shirt neck" which would have made it extremely difficult for the director to put his arm down the worker's jumper in the short time available. I accept icare's submission that, this not having been raised at first instance, it cannot now be raised on appeal.[64] It is not an error for the Senior Member to fail to address a matter that was not raised.[65] If I am wrong in this, the submission in any event does not purport to identify error on the Senior Member's part, nor does it purport to identify unreliability on the part of the worker as a witness. To the extent that it goes to the likelihood of the worker's evidence of what happened in the office being true, it calls for conjecture.

1. The appellant submits a proper consideration of the video should have led to a rejection of the worker's evidence and a finding in favour of the employer.[66]
2. I am not persuaded that the appellant has identified error in connection with the various points it seeks to make above in respect of Ground No. 1. I am not persuaded that the above sequence of events and associated matters has an adverse effect on the worker's credibility. To the extent that there are discrepancies, these are relatively trivial and do not go to the fundamental issue in the case, which is whether the sexual assault was established. Whilst this does involve issues of credit, of both the worker and the director, resolution of that issue is not assisted by identifying relatively minor discrepancies which are the subject of Ground No. 1.
3. The appellant makes a further submission that arises from the reasons of Basten JA in Chemler, where his Honour said:

"Nor is it necessary to determine whether the Respondent's response was a misperception as to the intention or attitudes of his fellow workers. In contrast to discrimination law, the proper focus in this context is the consequence of conduct on the claimant and not, even in a limited sense, the motivation, intention or other mental state of the co-worker or supervisor: cf Purvis v New State Wales (Department of Education and Training) [2003] HCA 62; 217 CLR 92 at [166] (McHugh and Kirby JJ); and [234]-[236] (Gummow, Hayne and Heydon JJ). If conduct which actually occurred in the workplace was perceived as creating an offensive or hostile working environment, and a cognizable injury followed, it was open to the Commission to conclude that causation was established."[67]

1. The appellant submits this was not a case where there could be a finding of 'injury' on the basis of "a misperception of what occurred in the warehouse". Dr Smith supported the worker's case on the basis of a complete acceptance of the worker's statement. Dr Kaplan did not support the worker's case.[68]
2. The Senior Member did not make a finding that the psychological injury resulted from a "misperception" on the worker's part. The predominant allegation of assault was that which occurred in the office, unwitnessed and not the subject of CCTV coverage, in which the director is alleged to have put his hand inside the worker's top to grope her breast. This had nothing to do with misperception. The principles in Chemler are not relevant to resolution of the issues in the case.
3. Ground No. 1 fails.

1. The appellant submits the transcript of the prosecution in the Local Court was before the Commission, and demonstrated the worker was not a reliable witness. The appellant submits the Senior Member's reasons make no reference to the evidence in the Local Court. It submits this failure is sufficient to vitiate the Senior Member's decision.[69] The appellant raises specific matters that follow.
2. The appellant refers to the worker's evidence that she froze after the director tried to kiss her in the warehouse, but she was not "physically frozen", talked in a normal tone and conversed about work. The appellant submits the worker conceded that when the director hugged her she "moved towards him".[70]
3. The appellant refers to the evidence of Ms C, who gave evidence in the prosecution case. It submits this evidence contradicted the worker in two aspects. The worker said the director had invited her to the warehouse, which was accepted as not being true by reference to the text messages. Ms C said the worker told her that the director groped her breasts when the two of them were "walking back in from the car park". This was contrary to the version that this occurred in the office. The appellant submits Ms C's version was "the most contemporaneous" and "had to be seriously considered".[71]
4. The appellant submits the worker gave clear evidence that the director tried to kiss her on the left side of her neck. The video showed the director's head on her right side. The appellant submits that based on the video it would not be possible for the director to kiss the left side of her neck. (This repeats a submission made in support of Ground No. 1).
5. The appellant states the worker "[gave] evidence the assault in the office had occurred within 5 minutes". The appellant submits that the video evidence shows the worker and the director "were only back in the office for a period of about 30 seconds". It submits "time was an important part of the [worker's] case". The appellant submits the worker under cross-examination in the Local Court conceded, only after being shown the first part of the video, that her evidence that the director touched her lower back as soon as he got near her in the warehouse was incorrect.[72]
6. The appellant submits the Senior Member did not refer to the "significant evidence of [Ms C]" or the worker's concessions in cross-examination after being shown the video. The appellant submits the entire transcript from the Local Court is relevant. It submits there was no reference to the evidence in the Local Court. It submits this is enough to vitiate the decision.[73]

1. icare submits the Senior Member did examine the evidence from the Local Court proceedings. It refers to the Senior Member's reasons at [66] to [71] where reference is made to evidence going to the circumstances in which the director tried to kiss the worker's neck. icare submits the Senior Member did consider this evidence but only included the matters she considered relevant. icare submits Ground No. 2 is not made out.[74]

1. The worker submits this ground is misconceived; the standard of proof and elements of criminal sexual assault are fundamentally different to the matters at issue in the current proceedings. It was sufficient in the current proceedings for the Senior Member to be satisfied the worker was subject to unwanted touching by the director which caused injury. The worker submits the Local Court evidence was adequately considered.[75]

1. The submission that the Senior Member made no reference to the evidence in the Local Court is simply wrong. She referred to it in her reasons at [66] to [71]. The footnote to paragraph [66] of the reasons indicates the material she focussed on from the Local Court material was "references referred to in submissions". During discussion before the Senior Member on procedural matters, counsel for the employer said:

"Given that, as I understand it, my friends are not prepared to raise any Browne v Dunn point and so there's completely transparency about this what I will be doing is actually using the transcript of evidence before the Magistrate, I will be referring to that and then making submissions in relation to what I say are inconsistencies between that evidence and in particular what's shown on the video evidence ... I just want everyone to be fully aware in advance that in the absence of the cross-examination on that topic and evidence being adduced before you that way I'll be doing it this other way."[76]

1. Following some discussion the parties reached the agreement described at [4] above, which avoided cross-examination of both the worker and the director.[77] Counsel for the employer made it clear that his "primary case" was that "the asserted episodes of sexual touching did not occur".[78]
2. The employer makes a point regarding the worker's description of having "frozen" after the director tried to kiss her, yet she conversed in a normal tone about work. The worker's use of the term was consistent with normal colloquial use. One of the definitions of 'frozen' in the Macquarie Dictionary, 9th edition, is: "chilly or cold in manner; unfeeling: a frozen stare". I cannot see any inconsistency in the worker's ability to carry on a conversation notwithstanding her description of having 'frozen'. This is consistent with a passage of cross-examination in the Local Court on the worker's use of the term:

"Q. Do you agree that unlike what you told us earlier, while you were there the two of you were talking for some time, you were not frozen?

A. At that point in time where he touched my back I was frightened.

Q. What you told us earlier was that after he kissed you on the neck you were frozen until you walked into the office.

Q. Do you agree now that in fact that's not correct?

Q. I'm sorry, I missed that. What was it before 'frozen', what did you say?

A. I said, like, physically I was still moving, correct.

Q. Not only were you not physically frozen, but you were talking to him in a normal tone. Do you agree with that?

1. The appellant's counsel addressed the Senior Member for some time on the impressions conveyed by the passage of the CCTV described at [63] to [65] of my reasons above. The appellant's counsel submitted before the Senior Member on this passage:

"... I've already referred to sort of the arm sort of around and then he does approach her right cheek. Maybe he's kissed it, maybe it's one of those unsuccessful dinner party kisses sort of where it doesn't sort of quite land but that - that's the - that's the gesture, that's the closest sort of, you know, that comes to anything you sort of might think, you know, involves physical touching other than what we're talking about with the hand on the lower back or the backside, whatever it was.

Now, remember the - [worker's] account of what happened that she gave before the Magistrate that I've read you to she describes that she said, 'No, I can't do this', she put both hands up around her sternum, he didn't get very far. None of that is depicted on this video. That's in context for the timing and the event shown on the video that is the occurrence or, rather, the point in time at which is something like that occurred it would've been shown on the video."[80]

1. The Senior Member found the video at one stage showed the worker having "both arms up in front of her", consistent with her demonstration in the Local Court of both hands "in front of her, about the middle of her sternum, and pointed upwards, slightly". [81] The Senior Member said it was "difficult to see exactly where her arms are due to the angle of the video".[82] The Senior Member was correct to treat the video evidence with care in circumstances where she was asked to make credit findings on the basis of it. This approach is consistent with the remarks of Tobias AJA in Orcher, referred to above
2. There is the issue regarding the evidence in the Local Court of Ms C, the girlfriend of the worker's partner's brother. The worker and her partner shared a house with them. Ms C gave evidence that on 26 August 2022 the worker "came home very emotional, very, like, distraught, emotional, shaking, very upset." She said the worker "was hysterical, shaking and just crying. When I got to the point of calming her down I calmly talked to her and she told me that she'd been assaulted at work." Ms C described the worker saying "that she'd been sexually assaulted, that her boss has gone in and went and touched her breasts and, and she started getting a bit upset again." This was "around 5 o'clock". Ms C gave evidence that the worker was "hysterical".[83] Ms C also gave evidence that the worker told her that "the owner of the business had invited her to the warehouse", and that he groped her breast when they were "walking back in" after having a cigarette.[84]
3. The video is consistent with the worker sitting alone in her car for some time, in the carpark at Penrith, before she drove away from the premises. That time, sitting in her car, is consistent with worker's evidence that she "bursted (as said) into tears, sat in [her] car and straight away called [her] partner. And yeah, that's when [she] left."[85] The evidence of Ms C is clearly consistent with the worker being very emotionally upset by the time she got home, around 5 pm.
4. The appellant's submissions refer to two aspects of Ms C's evidence that are inconsistent with the worker's version of events. The first is that the worker told Ms C the director had invited her to the Penrith warehouse. The evidence is consistent with the worker suggesting that she come to the Penrith warehouse and the director acquiescing in this. The second matter is Ms C's evidence that she was told by the worker that the incident in which her breast was groped occurred as she was walking back in after having a cigarette. The worker's evidence is that that incident occurred in the office.
5. The first of these matters does not cause me great concern. It may be readily envisaged that the worker could regard the director giving her permission to attend at the Penrith warehouse to be shown around, as an invitation.
6. The second matter, which goes to where the incident took place, is more troubling. This inconsistency is not found in the worker's evidence, in either the documents lodged in the current proceedings or in her evidence in the Local Court. Ms C stated the worker's state when the worker arrived home, was "very emotional, very, like, distraught, emotional, shaking, very upset". Ms C described the worker: "She couldn't really talk at that point when she come [sic] home, she was just very - she was hysterical, shaking and just crying".
7. Ms C's evidence (understandably) does not purport to provide a word-for-word description of what the worker said to her. It gives Ms C's impression of the general meaning of what was said. There was no re-examination by the Prosecutor. There was clearly some scope for misunderstanding in the specifics of what was said, as recounted by Ms C. There is no persuasive basis to reject Ms C's evidence regarding the worker's emotional state when the worker arrived home on the evening of 26 August 2022. That evidence is consistent with the worker being seriously emotionally upset by something that had happened before she came home. The worker identified the assault in which her breast was groped as what had upset her.[86]
8. The Senior Member's reasons clearly stated that she had "considered the relevant evidence before the Local Court". She described it as "not inconsistent" with the worker's evidence in the current proceedings.[87] The Senior Member dealt with the challenge to the worker's credit:

"92. The challenge to the [worker's] credibility as sought by the [employer] in respect of what is depicted on the video therefore fails.

1. There is no video of what occurred in the office. So far as it was sought to impugn the credibility of the [worker] with the video that is in existence, I decline to do so."
2. The appellant's submission that the Senior Member made no reference to matters in the Local Court is simply wrong. The evidence in the Local Court does not assist the appellant. It is generally supportive of the case icare and the worker make. The appellant has not, in Ground No. 2, established appealable error.
3. Ground No. 2 fails.

1. The various grounds of appeal have failed. The appeal is dismissed.

1. Pursuant to rule 132 of the Personal Injury Commission Rules 2021 this decision is to be de‑identified consistent with the approach taken at first instance.
2. The Appeal is dismissed.
3. The Certificate of Determination dated 31 July 2025 is confirmed.

[1] In light of the earlier de-identification order, which I continue in respect of this decision, I will refer to the director of the appellant, who figures in these reasons, as 'the director'.

[2] Worker's Reply to Miscellaneous Application (Reply), pp 1-8.

[3] Nominal Insurer's Reply, pp 133-141.

[4] Transcript of hearing 15/5/25 (T), T 8.21-9.3.

[8] CJD v Workers Compensation Nominal Insurer (icare) & Anor [2025] NSWPIC 362 (the reasons).

[18] [2007] NSWCA 249; 5 DDCR 286 (Chemler).

[20] [1938] HCA 34; 60 CLR 336 (Briginshaw).

[22] [2023] NSWPICPD 69 (A1 Granny Flats).

[31] [1990] HCA 30; 93 ALR 479; 64 ALJR 458 (Gallo).

[33] [2025] NSWCA 157 (Culhana No. 3).

[34] [2003] HCA 22; 214 CLR 118, [25].

[35] [2019] HCA 28; 266 CLR 129 (Lee), [55].

[36] Rule 34 of the Personal Injury Commission Rules 2021; Procedural Direction PIC1, [38].

[38] The Commonwealth v Muratore [1978] HCA 47; 141 CLR 296, 302-3; Whittaker v State Forests of NSW [2008] NSWWCCPD 136, [49].

[39] [2005] NSWCA 121; 66 NSWLR 594 (Raniere No. 1), [44], [45] and [50].

[40] [2006] NSWCA 235 (Raniere No. 2).

[41] icare's submissions, [12]-[13].

[42] icare's submissions, [15]-[16].

[45] [2025] NSWPICPD 55.

[46] Appellant's submissions, [13]-[18].

[47] Appellant's submissions, [20]-[31].

[51] Application to Admit Late Documents (AALD) 19/8/24, pp 97-107.

[55] Worker's submissions, Part B. The worker cites New South Police Force v Winter [2011] NSWCA 330 (Winter), from [82].

[56] Worker's submissions, [2]-[7].

[57] Worker's submissions, [8]-[9].

[58] [2013] NSWCA 478 (Orcher), [23].

[59] Appellant's submissions, [19]-[28].

[65] Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111, per McColl JA, [30].

[66] Appellant's submissions, [30]-[32].

[68] Appellant's submissions, [32]-[34].

[69] Appellant's submissions, [35]-[36], [47]-[48].

[70] Appellant's submissions, [37]-[38].

[71] Appellant's submissions, [40]-[41].

[72] Appellant's submissions, [42]-[44].

[73] Appellant's submissions, [45]-[48].

[74] icare's submissions, [8]-[10].

[75] Worker's submissions, [10]-[14].

[83] Local Court transcript, 30.26-31.21.

[84] Local Court transcript, 31.37-32.9.

[86] Local Court transcript, 5.44-6.32.