COA v BPI [2025] NSWPIC 272

COA v BPI [2025] NSWPIC 272 | Case summary | Zoe

[14]

The applicant relies on his statements signed on 29 November 2024 and 6 February 2025.
The applicant commenced with the respondent as an unpaid marketing intern in November 2022, he was employed as a part time marketing officer from February 2023 and as a full time permanent finance/student support coordinator from November 2023.
After work on Friday 25 October 2024 the applicant called his sister, who was also employed by the respondent, to check how she was going as she was on a work trip in Perth. She mentioned she was having dinner with the CEO and co-worker. She passed the phone to the CEO so the applicant could talk to him. They talked about the trip to Perth and the applicant's work until he arrived at his girlfriend's home at about 8.00pm or 8.30pm.
When the applicant woke the next morning he saw messages on his phone from his sister including a message saying 'Help'. He was unable to contact her by phone but she texted him back saying she was terrified and that the CEO 'touched me in private parts'.
The applicant could not believe what he was reading and was in an utter shock. He felt completely lost. As a 22-year-old he had never dealt with anything like this before.
He was beyond anxious about his sister and although he does not have much money he booked the first flight he could to Perth. He regularly checked his phone for messages from his sister before his flight as he was constantly worried for her wellbeing, and he texted her as soon as he arrived in Perth.
When he saw his sister at the hotel she was crying on her bed in a state that he had almost never seen her in before. He could not bear to see the state she was in and wanted to keep her away from being totally consumed by it.
They discussed what had occurred. The applicant could still not begin to digest the gravity of the situation he and his sister were facing. They had idolised the CEO not just as a mentor but almost as a father figure. They tried to understand how their lives would now change, possibly for the worse as they were both very happy working for the respondent.
[COB] one of the owners of the respondent arrived in Perth that night and the applicant told him everything that his sister had told him. [COB] was shocked. He suggested they both continue working for the respondent but for a separate college.
The applicant wanted to report the matter to the police but [COB] insisted he wait until the next day when another part owner [COS] was arriving, although he also said the applicant was free to do whatever he wanted. The applicant called 1800RESPECT for advice. He lay on the hotel floor to sleep that night as the sofa in his sister's room was where the assault took place and he felt disgusted and could not even think of touching it.
The next morning he became angry and enquired on the company messaging app Slack what the numbers of the CEO's father and wife were. He received multiple phone calls from the CEO and [COB]. The applicant, his sister and a co-worker sat outside the hotel waiting for [COS] to arrive when the applicant saw the CEO talking to [COB]. He told his sister and she started getting flashbacks and became severely terrified.
[COS] arrived from Sydney and the applicant, his sister and the co-worker began discussing the incident with him. The applicant was asked to consider the CEO innocent until proven guilty and was told the CEO did not remember anything. The applicant was told he was free to do anything but he was asked not to hurt the respondent in the process as it would affect multiple lives and not just their lives.
The applicant's sister then spoke with the CEO although the applicant was worried for her safety. At one point the applicant entered the room where they were talking and started taking a video. The CEO saw him, rushed out of the room, accused the applicant of framing him and told [COS] they were planning a conspiracy against him. He and the applicant's sister then left the building to continue talking in private.
Another employee of the respondent called the applicant and he briefly explained the situation to him. When his sister had finished talking with the CEO she and the applicant returned to Sydney.
The applicant says the CEO was a person he looked up to as a mentor but more so as a father figure, and his actions of sexually assaulting his sister and subsequent false claims that he does not remember anything caused the applicant significant distress.
He found how easily his trust was betrayed terrifying, he questioned his own judgement and was left feeling vulnerable and isolated. He now wonders what others might be capable of doing. He found the lack of consideration of the owners for their well-being, in addition to failing to meaningfully address the incident, compounded his feelings of helplessness and hurt.
The applicant describes what occurred after his return to Sydney including frequent emails demanding they return to work without acknowledging the trauma they are enduring, which caused even more frustration. He felt unsupported and undervalued. His access to work email was removed on his return to Sydney with no notice, and the same happened to his sister. He felt his career had come to an end.
The applicant has not returned to work with the respondent since, and was also unable to attend his casual job at Woolworths. The applicant had worked as a casual employee of Woolworths from March 2022. He used to love working for the respondent but feels embarrassed and ashamed.
He describes relying on therapy and details the symptoms of his psychological condition.

[21]

The applicant made oral submissions which have been recorded and form part of the Commission's record. These are set out below.
It is uncontroversial that the applicant suffers from a psychological condition that has caused a period of total incapacity of 14 weeks the subject of this claim.
It is also uncontroversial that the cause of the applicant's psychological condition is a reaction to events that occurred on 26 October 2024 and following.
The issue is whether those events are such that the injury is arising out of the employment and whether the employment is a substantial contributing factor.
The applicant says the injury can be categorised in two ways; as a personal injury because it arises out of a discrete series of events over a short period of time, or as a disease of gradual onset. If it does fall within s 4(a) then that is where it sits and it would be immaterial if it also could be categorised as an injury under s 4(b). Employment is the main contributing factor in any event.
The series of events described are the sole cause of the injury and the question ultimately is do they have the requisite employment characteristic.
Essential features are found in the applicant's statements. Relevantly the applicant first started working for the respondent in November 2022 and up until the time of the injury. The applicant's sister also worked for that company, as did the applicant's brother-in-law, the husband of his sister.
The background to the events is again not controversial.
The applicant's sister reported she had been the subject of a sexual assault whilst on a business trip to Perth and she claimed that the assault was carried out by the CEO of the respondent. They had been together on a business trip.
The applicant says that is important because the whole setting of the event occurring is a business setting, which is the first step of there being a work characteristic about this injury.
The applicant accepts he was not in the course of his employment when receiving the phone call from his sister.
The identity of the assailant and the relationship with the applicant was important in causation as that is what contributes to what the applicant describes as having utter shock at the event.
The applicant describes soon realising what the assailant had done and its consequences, and again the association with that person is purely through employment.
The applicant made his way to Perth and met his sister and a co-worker.
The relationship between the applicant, his sister and the assailant is important. The applicant describes he and his sister idolising the assailant as a mentor and father figure.
Other people from the employer then start to make their way to Perth. The applicant decided to wait until the arrival of [COB] as not only was he much older than the applicant, but as an employer he thought [COB] would guide him as to what to do next. He was looking to his employer, a co-owner of the company, to provide guidance on dealing with the situation.
The applicant also notes [COB]'s close relationship with the assailant and the applicant's concern not to aggravate his sister's anxiety, again a mixing together of the circumstances.
[COB] arrives, he was shocked and claimed how unexpected it was from the assailant. Again it is not a random person who attacks the applicant's sister, it is a special relationship and the idea of trust is very significant in the causation of the injury.
When it comes to dealing with the whole situation, [COB] suggests the applicant and his sister should continue working but for another college.
Weaving its way all through the events the applicant describes its the employment. It is significant the applicant begins to record a conversation with [COB] because he felt his resistance towards taking any legal action or solving the issue as being pushback to protect the company, hoping it would all go away. The applicant is put under that kind of pressure, and it only matters that this is his perception of what is going on.
There is a feeling of uncertainty and stress because of the way in which the matter was being handled by those other people arriving in Perth. The applicant describes staying back to see whether [COB] and the assailant were doing anything, so there is distrust.
Another part owner of the business arrives in Perth referred to as [COS], and what is said to the applicant is 'we should try not to hurt the business, in the process it would affect multiple lives and not just ours', again related to the employment.
There is an exchange from the assailant who accused the applicant of framing him and told [COS] they were planning a conspiracy against him.
People make their way back to Sydney. All the people involved are employers and employees of the respondent with the exception of the applicant's girlfriend, and they are all acting in the interests of the respondent.
The applicant describes another conversation with [COS] which he felt was an indirect threat.
He also gives more detail about his relationship with the assailant who he looked up to not only as a mentor but more as a father figure, and he was very close to this person which is all through work. He feels a betrayal of trust.
The applicant felt the support from the employer was generic and perfunctory and lacking in genuine care, trust and effort that he expected in such a critical situation. This compounded his feelings of helplessness and hurt.
To make matters worse the applicant and his sister received frequent emails demanding they return to work with no acknowledgment of the trauma, which caused more frustration.
The applicant on returning to Sydney finds his access to email was removed with no notice, explained as a routine reset which had not been experienced previously, and from a WhatsApp group. The respondent's actions left the applicant feeling targeted and isolated.
The positive image he had of the respondent was completely shattered. He felt he had been manipulated to not report the assault in the interests of the respondent.
In his second statement the applicant provides more detail of his specific relationship with the assailant, and the way in which the event occurred was even more distressing in the context of a workplace he felt had always been safe and positive.
They are the factual matters.
They are reported as being causative in the report of Dr Kumagaya whose opinion is not controverted by any other evidence.
In Dr Kumagaya's opinion the applicant's post-traumatic stress disorder was caused by his employment, by being exposed to vicarious trauma involving his sister (also an employee of the same organisation) as perpetrated by the CEO, and the inadequate support following the incident including accusations by the CEO and discouragement by the owners of the respondent towards reporting the incident.
This matter is so interwoven with the applicant's employment that there can be no other cause, and Dr Kumagaya is of the view that employment was the main contributing factor to the post-traumatic stress disorder.
Post-traumatic stress disorder can be caused in two ways. It can occur through a series of events or from exposure to a single event. This case is the former, with a series of events leading up to the injury and not a single discrete event.
This condition arose out of employment and the employment is a substantial contributing factor.
For an injury to arise out of employment one is of course looking for a causal connection. It does not have to be the sole cause so long as there are factors of work.
Kitto J in Semlitch[1] talks about a contributing factor; was the applicant exposed to something in employment to which he would not otherwise have been exposed.
One could start at the beginning; but for the employment relationship there would not have been the assault, but everything that follows thereafter is occurring because of the employment relationship, because the applicant is there, because of the cover up, because they do not provide support, because they cut the emails, it all relates to the employment relationship and taking the pressure off the company. If the applicant had not been an employee of the company there would not have been concern for those matters, and they create that connection with employment.
In terms of substantial contributing factor, one asks are these factors real and of substance, and the answer is they are the factors, the main and probably the sole contributing factor.
The psychologist Ms Al Zabin sets out the history and that the applicant was present during multiple interactions with his sister and his employer, his employer failed to adequately address the severity of the incident and the applicant felt the employer had a dismissive attitude about the incident so that he felt increasingly frustrated and emotionally burdened by the situation.
Right from the outset those aspects were front and centre in the applicant's perception of what it was that caused the injury, and that is adopted by the psychologist. That opinion is reinforced in her notes.
At every step of this bad scenario employment is involved. The characters, the applicant's association and knowledge of the employment and everything that happens thereafter, the lack of support, taking away email, the pressure not to report and the general sense of a cover up, are all significant factors.

[23]

7 November. What has transpired in the applicant's submission between those dates which is so injurious so as to form an additional element has already at this point transpired. 6. The applicant reports significant distress since learning about the sexual assault of his sister by the CEO of their company. Upon being notified he arranged a flight to Perth to support his sister, ultimately bringing her back to Sydney, and he became very distressed and unable to focus on doing anything. 7. That document in the respondent's submission stands rather in stark contrast to the way the applicant presents his case now in May 2025. That is the most contemporaneous record of what was said to whom and when, and it is buttressed by the general practitioner's referral to Ms Al Zabin. 8. What is absent is any reference to the way in which the employer had dealt with the applicant either on the night or in the absence from work that follows, and more importantly the applicant did not go back to work after that night or return to work at all. 9. The respondent's attitude in this case is not one of a lack of empathy or sympathy but simply the application of the law relating to injuries arising out of employment. If the injury was received in relation to that event the respondent says the applicant cannot succeed. 10. The applicant submits that there would not have been this assault if the conference had not taken place, that was the association the Commission is asked to accept with employment. That is to misunderstand whose association with employment is relevant to this case. In this case the test relates to the applicant's employment. 11. The applicant was not required to be at the conference. The injurious event was receipt of the text message while he slept at home, out of the course of employment, certainly not in it, and travelling to Perth not at the direction of the employer or at their behest, but on a personal basis to render aid and pastoral care to his sister, very appropriately and commendably, but again not out of the employment. 12. To suggest that because the CEO and some other staff were at another state at a work conference might place them when they suffer injuries there in or out of the course of their employment, does not bear upon the applicant's employment status in this case at the time the injury is received. 13. Dr Kumagaya gives some assistance to the respondent in making its argument. 14. It is necessary at the outset to make a finding as to the nature of the injury sustained more broadly than simply psychiatric injury, as well as to make a finding as to when the injury was received, because the respondent's case is that when is important. 15. There are three options on diagnosis; the pleading of injury is major depressive disorder with anxious distress, Dr Kumagaya diagnoses post-traumatic stress disorder and Ms Al Zabin's diagnosis is of an adjustment disorder. The applicant presents a moveable feast of possible diagnoses and it is important it nails its colours to the mast and says which injury it relies upon because it has implications for the date the injury must have been received. 16. If it is post-traumatic stress disorder it is not plausibly explained by emails being removed but by what as Dr Kumagaya says is the vicarious trauma of learning what happened to his sister, and again as the respondent says with no tether or relationship to the employment. 17. Dr Kumagaya says, consistent with what the general practitioner was told and found, that the injury occurred on 26 October 2024, and again the injury in Dr Kumagaya's mind has been received before anything occurs that involves the employment in a direct sense from the applicant's perspective. It appears Dr Kumagaya found the applicant's injury was on

[24]

26 October 2024. The applicant ceases work and has not worked since. 18. In Dr Kumagaya's report he notes the applicant describes upon his return to Sydney that he reported the matter to the police. His psychological symptoms were such, at that moment the respondent says on his return to Sydney, that he was unable to persist with his work for the respondent or since, and also with Woolworths. 19. The respondent says the evidence is in conformity on this point that the injury is received the night the event is reported and the applicant travels to Perth. The respondent urges that finding and the only thing that needs to be decided is whether that is an injury out of employment, because that is the applicant's case, the text messages and travel to Perth is out of the course of employment. 20. Semlitch and Badawi[2] are relevant cases. In Smith v Australian Woollen Mills Ltd Starke J said the expression 'arising out of' imports some kind of causal relation with the employment, but it does not necessitate direct or physical causation; "[w]as it a 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."[3] 21. Starke J also said 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. The causality is a causality as to the indicia of the characteristics of employment. 22. Turning to what the applicant was doing when he received the messages and travelled to Perth the question is not whether what was happening in Perth was related to some feature of employment, but what was the applicant doing and what service to the employer did he have to give that required that. 23. The respondent says none. There was no connection whatsoever. He travelled there commendably, appropriately and honourably as a good brother but not as an employee of the respondent. 24. On arriving there the evidence discloses that his psychiatric injury was received. If that finding is made then the respondent must succeed. 25. The applicant bears the onus in the case, as it always does, of establishing what it seeks to be found and the basis on which he may receive compensation. This is a persuasion point; are you satisfied with three different opinions on diagnosis, with one date of injury given by Dr Cai and corroborated by Dr Kumagaya, and no date of injury specifically given by Ms Al Zabin. What precisely is the date of injury and the injury the applicant runs on? 26. Ms Al Zabin's report in the first paragraph conforms with the respondent's case. The injury was received following the disclosure of a traumatic event involving his sister on

[25]

26 October 2024 and the receipt of distressing messages from her, and at the time the applicant had difficulty processing the situation and felt overwhelmed and uncertain about what actions to take. 27. It may be, and the respondent has no evidence at its call, that the treatment he was exposed to with removal of his access to emails and comments made cannot be controverted, but it says it does not need to address that because once the findings urged by the respondent are made there is no need to consider them, the injury is received and the applicant has with respect lost. 28. The applicant in submissions relies on a specific paragraph in his evidence, however the full reading of the paragraph does not greatly assist the applicant. It is not stated in paragraph 23 that it is because he is the CEO but because they had met on a personal level, and that is not of substantial assistance for the applicant. 29. In paragraph 41 there is mention of idolising the CEO not just as a mentor but almost as a father figure, again there is the personal nature of the relationship. 30. The respondent referred to Nguyen v Cosmopolitan Homes and how the Commission must be persuaded about when the injury is received, what the injury is and its cause. 31. The respondent says the Commission would be satisfied on the evidence, particularly given that the general practitioner at the first consultation says what was described as being causative, that the injury was received on the evening at about the time of going to Perth, and there is no room in the case to consider what comes after. 32. The applicant has left it for the Commission to pick the injury, which is an inadequate basis to prosecute a case for compensation; whether a personal injury is caused by a series of events that causes a disease is to miss the point. 33. The point is if the injury was a personal injury received upon being told 'my sister is in great danger' then it is very germane to the fact finding and decision making to determine whether it is a post-traumatic stress disorder injury. Leaving it open to pick from three diagnoses and the passage of time that might have contributed to them is, the respondent submits, the basis to not be persuaded by any of them. 34. It is unfortunate, and the respondent joins with the applicant in saying, this is clearly a tragic case but the law is what it is, and in the respondent's submission the proper application of it here is a finding for the respondent.

[26]

A point was sought to be made on the date of incapacity on the first Certificate of Capacity. It does not actually identify when the injury occurs but when the incident occurs. Secondly it is not a diagnosis, and on the facts of this case it was not 25 October 2024 because the applicant does not receive the phone call on 25 October 2024, so that date cannot be the date and is completely meaningless.
The history the general practitioner takes in that certificate is of distress and includes bringing his sister back to Sydney, so this goes beyond only receiving the phone call. The doctor does not say the cause of the injury was the phone call and there is a whole series of events.
The respondent's submission is it is confined to the receipt of the phone call, but Ms Al Zabin or Dr Kumagaya both refer to the other events as being causative.
If one adopts for a moment that it is only the events of 26 October 2024 that are causative, the applicant's evidence is he arrives in Perth on 26 October 2024 and he describes a whole series of events which all occur on that date, so all of those events are in; the confrontation and the others arriving and the exchanges, the applicant is told he should continue working and there is the recording of conversations. There is a lot more than simply receiving the phone that occurs on 26 October 2024.
In any event the medical opinion of Dr Kumagaya describes as causative not simply receiving the phone call but other events; inadequate support, accusations by the CEO, discouragement by the owners of the company to report the incident.
Ms Al Zabin's opinion is similar. She outlines the history of those incidents and she comes back to again talking about restrictions on capacity to work and specifically notes the applicant perceives the employer was dismissive and failed to adequately address the severity of the incident.
As happens with psychological injuries, no one quite agrees exactly which label out of DSM 6 is going to be put on the condition, but post-traumatic stress disorder and adjustment disorder are essentially the same kind of condition. They are reactions to traumatic events and it is a question of degree that separates them.
It is not a case of choosing one diagnosis, there are different views about it, but the applicant does not have to prove a diagnosis, he only has to prove there is an injury despite what label an expert puts on it.
The opinion of Dr Kumagaya as the only psychiatrist should ultimately prevail. What the general practitioner thinks is of a lesser scale. The applicant sits down and explains what actually happens when he consults Ms Al Zabin.

[28]

Under s 9 of the 1987 Act the applicant will be entitled to compensation from the respondent if he has received an injury in accordance with the legislation.
'Injury' means a personal injury arising out of or in the course of employment in accordance with s 4(a) of the 1987 Act.
The applicant accepts his psychological injury did not arise in the course of his employment, but claims it arose out of his employment.
In dispute is whether the applicant's psychological condition injury arose out of his employment, and whether the employment was a substantial contributing factor to his injury.
The applicant bears the onus of proof on the balance of probabilities.
Employment is a wide concept which includes its nature, conditions, obligations and incidents, and extends to matters naturally incidental to the employment contract.[4]
Kitto J in Semlitch describes employment as encompassing "some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed."[5]
The applicant's injury may arise out of the employment even though he is not in the course of his employment at the time is it sustained.[6]
To arise out of the employment however there must be a causal connection between the employment and the injury.
The Court of Appeal discussed the phrase 'arising out of' in Badawi. It is sufficient to establish that an injury arose out of the employment if it appears that the fact of the applicant being employed in the particular job caused, or to some material extent contributed to, the injury, and it is not necessary that there is direct or physical causation.[7]
In Badawi the Court approved a passage in Nunan v Cockatoo Island Docks & Engineering Co Ltd;[8] if the fact of the applicant being employed in the particular job caused or to some material extent contributed to the injury, and the injury was sustained while he was doing the job he was employed to do or something incidental to it, the applicant is prima facie entitled to compensation.
The disclosure of the incident by the applicant's sister and his witnessing of her trauma on

[29]

26 October 2024 were clearly causative factors to his injury, however an injury or incapacity may be attributable to more than one cause operating concurrently.[9] 13. The first proposition Starke J discusses in Smith v Australian Woollen Mills Limited, "[w]as 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,"[10] is in my view answered in the affirmative in this case. 14. Service is not confined to the actual performance of the work that the applicant is employed to do, it includes all things incidental to the performance of his work. 15. I accept the applicant's submission that the events of 26 October 2024 and thereafter are interwoven with the applicant's employment. 16. The respondent submits the injury was received on 26 October 2024 when the applicant is significantly distressed on learning of the incident and witnesses his sister's distress on arriving in Perth, factors outside the applicant's employment, and these are the only causative factors of his psychological injury. I do not accept that submission. 17. Dr Cai records the date of injury as 25 October 2024, presumably being the evening the incident took place. As the applicant notes in submissions that cannot be the date of the applicant's injury as he was not aware of the incident until the following morning. 18. Dr Cai includes in the Certificate of Capacity of 7 November 2024 when the applicant first consults him that the adjustment disorders injury is related to work because of the applicant's significant emotional distress since learning about the sexual assault of his sister by the CEO of the respondent, and upon being notified he arranged a flight to Perth to support his sister ultimately bringing her back to Sydney. Later certificates simply record "sexual assault victim, causing distress emotionally".[11] 19. Dr Cai does not provide a medico legal report and I do not place more weight on the doctor's certificates or his referral letter to Ms Al Zabin than on the reports of Dr Kumagaya and Ms Al Zabin. 20. I prefer the opinion of Dr Kumagaya who provides a detailed expert report and of Ms Al Zabin as his treating psychologist who takes a full history of the relevant events. 21. The evidence establishes the injurious events were not confined to learning of the incident and witnessing the applicant's sister's distress on arriving in Perth as the respondent submits. 22. The evidence is that the fact the applicant was employed by the respondent contributed to his injury to a material extent. 23. The employment-related causative factors include;

[30]

(a) the applicant and his sister worked for the respondent;

(b) the applicant knew the CEO through his employment and saw him as a mentor;

(c) he realised on 26 October 2024 that he and his sister's lives would change possibly for the worse as they were both happy working for the respondent;

(d) his sister received multiple calls from [COS] on 26 October 2024 while the applicant was with her, [COS] told her [COB] was arriving in Perth that night and the applicant waited for [COB];

(e) the applicant decided not to make a police report until [COB] arrived as not only was [COB] much older than him but as an employer the applicant thought he would guide him as to what to do next;

(f) he was conscious that [COB], [COS] and the CEO are best friends from a long time ago;

(g) when [COB] arrived the applicant explained what had happened and [COB] was shocked;

(h) the applicant said it would be difficult for his sister to work until further notice and [COB] suggested the applicant and his sister continue working at another college;

(i) [COB] insisted and kept on requesting that the applicant not make a police report until the next morning when [COS] was arriving in Perth;

(j) [COB] and the CEO called the applicant many times the next morning after the applicant enquired in the respondent's messaging app Slack for the CEO's father's and wife's numbers;

(k) the applicant and his sister waited for [COS] to arrive in Perth on 27 October 2024;

(l) [COS] told the applicant and his sister that although they were free to do anything they wanted they should try not to hurt the respondent in the process as it would affect multiple lives and not just theirs;

(m) the CEO accused the applicant of framing him and told [COS] that the applicant and his sister were planning a conspiracy against him;

(n) the applicant and his sister were terrified of the three bosses being together and they could not trust them;

(o) the day after the incident the applicant's access to a work email account was removed without prior notice, described as part of a routine reset, and he was removed from a Whatsapp group, and access to a Google account with administrative access to the respondent's college was disabled without notice to him, and

(p) the applicant received an email one week after the incident requesting he return to work with no further support provided to him by the respondent as a result of the incident.

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