1. In a clinical note dated 4 April 2024, Dr El-Jaam, referred to in the applicant's statements as his doctor and his general practitioner, recorded the following history:

"he is very emotional and upset, he was told off by his supervisor and manager seperately over an issue that took place at work while driving, he feels he was humiliated by the way of questioning him and giving orders and some sort of disrespect over something he beleives did not do anything wrong Psych: Low self esteem. Depressed mood. No irrational fears. No compulsive behaviours. No panic attacks."

1. In a clinical note dated 9 April 2024, Ms Hazim, psychologist, recorded the following history:

"... He presented with an anxious and frustrated mood and affect. He advised that he has been working with Transdev Bus Company since 2018 - 3 days/week... he advised on 3.4.2024 that experienced verbal abuse from one of passengers following Georges requesting other (all) passengers for a 1 minute silence...Time was spent recapping his symptoms... He was advised to no longer to speak with passengers while driving a bus only to greet them and as such he feels being "unfairly treated" by his team leader. Medical certificate was provided."

1. Medical certificates and certificates of capacity were also provided. These will be dealt with below.

1. In evidence was CCTV or video footage of the incident on 3 April 2024. I have reviewed and considered that footage. There was no dispute as to the identity of the voices of the two persons on that footage, that is that one was the applicant, and the other was relevantly the (unidentified as to name but not as to role) male passenger.
2. In my view, that footage did show in general terms what was recounted by the applicant. There was a heated exchange between the applicant and the passenger. The applicant and the passenger both spoke with somewhat raised voices. This was described as a confrontation by the respondent. Mr Sciarrone, who had reviewed the CCTV footage described the discussion at the door of the bus between the applicant and the member of the public as "a little aggressive". A/Prof Davies described this as an interaction with an "abusive passenger".
3. I agree with these descriptions.

1. In a report dated 13 September 2024, Dr El-Jaam noted initial consultation on 4 April 2024 for work related stress initially, and for post-traumatic stress disorder on subsequent consultations. He was at the opinion that the applicant's employment was a substantial contributing factor to the aggravation of a previous post-traumatic stress disorder condition in 2015.

1. In a report dated 12 April 2024 to Dr El-Jaam, Ms Hazim noted employment with the respondent as a bus driver three days per week. She stated that "his current symptoms appear to be related to an incident on 03/04/2024 involving a passenger who allegedly became verbally abusive towards George". She recommended psychological counselling sessions focusing on education on anxiety, depression and stress as well as other strategies.

1. A/Prof Davies, consultant in general and forensic psychiatry and clinical Associate Professor, provided reports to the workers compensation insurer and its solicitors dated 26 July 2024 and 9 October 2024 respectively.
2. In his report dated 26 July 2024, A/Prof Davies recorded a history that was generally in accordance with the applicant's statement. In particular, A/Prof Davies recorded that the passenger on the bus on 3 April 2024 had become abusive over about 15 minutes and the applicant said that he had become frightened because of the look in the man's eyes. He noted that the applicant said that he had remained upset for the rest of the day and had not talked to anyone.
3. A/Prof Davies recorded the subsequent meeting the next day between the applicant and his supervisors where it had been alleged that he had made political comments and that this was not allowed and the applicant said that he had defended himself saying that he had not made any political statement and had only expressed sympathy for the death that he had noted on the bus. He said that his manager had told him that he should make no commentary at all. A/Prof Davies recorded the further meeting the following day in which he was given a written warning but the applicant refused to accept it as he believed that he had not done anything wrong. A/Prof Davies recorded that applicant said that he felt stressed and upset and he had a headache and that he had gone home and then consulted his doctor and his psychologist.
4. A/Prof Davies was of the opinion that it was difficult to be precise about whether the applicant had a formal psychiatric disorder but the most appropriate diagnosis was an adjustment disorder as the applicant manifest marked distress out of proportion to the intensity of the stressor and had significant impairment in functioning.
5. In response to a question as to whether employment was a substantial or main contributing factor to psychological injury, A/Prof Davies stated that "the primary stressor/action which was the predominate cause of his emotional reaction was the interaction with the abusive passenger on the bus and this was complicated by the actions of his employer." He stated that the main contributing factor in the applicant's presentation was the traumatising interaction which occurred in the workplace.
6. A/Prof Davies was of the opinion that the applicant was fit to return to his pre-injury duties if the workplace issues can be resolved. He further opined in this regard that the applicant was fit for duties as a bus driver.
7. In response to a question as to whether a psychological or psychiatric disorder was wholly or predominantly caused by the employer's actions in respect of matters including discipline, A/Prof Davies stated that "this is a difficult question because essentially Mr Kilzi has been accused of making an inappropriate political statement in the workplace and by his account this was not his intention".
8. He was of the opinion that the relief of the applicant's adjustment disorder will depend on a resolution of the issue by mediation.
9. In his report dated 9 October 2024, A/Prof Davies reviewed the statements noted above as well as various medical certificates and certificates of capacity, among other documents.
10. In response to a question as to whether the applicant suffers from a psychological injury, A/Prof Davies stated:

"As discussed in my earlier report, making a psychiatric diagnosis in Mr Kilzi's case is complicated. He manifested symptoms of stress secondary to both the abuse that he had received from the passenger on the bus and the subsequent disciplinary action and these would make a diagnosis of an Adjustment Disorder appropriate. The subsequent problem for Mr Kilzi is that he has essentially taken a moral position to the assessment of his actions as political, as he is a religious man, and he has acted on his belief in the appropriateness of 'remembrance for self sacrificing people'. Because of this he had been unable to have an acceptance of his employers' view of his behaviour. This moral dilemma is a matter of choice and cannot be construed as a psychiatric illness.

Given that a diagnosis of Adjustment Disorder is meant to only reflect an acute and short-lived reaction to stress I am of the opinion that this diagnosis would no longer be appropriate and at this point the documentation of any other symptoms is insufficient to meet the criteria for a current psychiatric diagnosis."

1. In response to a question as to whether the predominant cause of injury was action taken by the employer with respect to discipline, A/Prof Davies stated:

"My opinion from the information reviewed and from my interview with Mr Kilzi is that Mr Kilzi had developed symptoms in the context of the confrontation with the passenger on the bus but that the major ongoing issue had been the disciplinary process at work; particularly his anger about being accused of having acted politically."

1. In response to a further question as to his opinion on the predominant cause of injury having regard to the statement evidence, A/Prof Davies stated that:

"The statements provided by all parties are congruent and do not provide corroborated evidence of a formal mental illness apart from Mr Kilzi's refutation of the accusation that he acted politically and his distress at not being able to return to work without accepting the formal warning."

1. A/Prof Davies was of the opinion that the applicant would be able to return to work as a bus driver in a supportive environment.
2. In response to a question as to whether medical treatment was required as a result of work injury, A/Prof Davies stated that "the treatment was required because of the incidents which occurred at work, including the incident with the passenger and in relation to the disciplinary action."

1. There was no dispute that the applicant has sustained a psychological injury as a result of his employment with the respondent. A/Prof Davies diagnosed an adjustment disorder. He had regard to medical certificates provided by Dr El-Jaam and Ms Hazim that were available to him.
2. Dr El-Jaam provided a diagnosis of "PTSD", which I infer is a reference to post-traumatic stress disorder. Dr El-Jaam did not appear to make a specific comment as to reasons in his report of 13 September 2024. There was no reference before me of a specific diagnosis by Ms Hazim, and her report and certificates referred to psychological symptoms and sequelae.
3. I prefer the opinion of A/Prof Davies as to diagnosis. He provided reasons for his diagnosis, in contrast to Dr El-Jaam and Ms Hazim, whose reports and certificates were for treatment and not for forensic purposes. His qualifications are also persuasive as to diagnosis.
4. I find that the applicant sustained an adjustment disorder as a result of psychological injury sustained in the course of his employment with the respondent.
5. On my reading of the reports as a whole of A/Prof Davies, he was of the opinion that this psychological injury was sustained as a result of both the incident on the bus on 3 April 2024, and the subsequent actions taken by the employer on 4 and 5 April 2024. I will deal with this aspect further below. A/Prof Davies also did not disagree that employment with the respondent was a substantial or main contributing factor to his psychological injury. I find that the applicant's employment with the respondent was the main contributing factor to his injury.

There was no submission that the s 11A defence extended to the incident on the bus on

The respondent relied upon a defence pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act) that the applicant's psychological injury was wholly or predominantly caused by reasonable action taken by the employer in respect of discipline.

In relation to the question of causation, that is whether the applicant's psychological injury was wholly or predominantly caused by the reasonable actions of the employer in respect of discipline, it was submitted by the respondent that a finding in favour of the respondent was supported by the opinion of A/Prof Davies and the clinical record of Dr El-Jaam.

It was submitted that the second report of A/Prof Davies stated that while the applicant would have experienced some stress symptoms due to the earlier incident, the major cause of any psychological condition suffered by the applicant was the disciplinary action taken by the respondent.

It was submitted that this view of causation was supported by the clinical record of Dr El-Jaam at the consultation on 4 April 2024 which was a contemporaneous record identifying the cause of the applicant's complaints as the meeting with his supervisor and manager. It was submitted that the applicant's statement that the incident on 3 April 2024 was the cause of his psychological condition should be rejected. It was submitted that there was no medical evidence before me challenging the opinion of A/Prof Davies on causation.

1. I do not accept the respondent's submissions.
2. First, in my view, reading his reports as a whole, A/Prof Davies did provide an opinion that the applicant sustained psychological injury on 3 April 2024. A/Prof Davies took a history that the applicant was first abused by a passenger. In my view, the CCTV footage supports this proposition. It is not relevant whether or not that confrontation was instigated by the applicant, as suggested by the respondent. In his first report A/Prof Davies was of the view that the primary stressor or action which was the predominant cause of the emotional reaction was the interaction with the abusive passenger on the bus, complicated by the actions of the employer.
3. In his second report, A/Prof Davies was of the opinion that the applicant manifested symptoms of stress secondary to both the abuse that he had received from the passenger on the bus and the subsequent disciplinary action, making a diagnosis of an adjustment disorder appropriate. He was of the view that the applicant had developed symptoms in the context of the confrontation with the passenger on the bus. This of course is sufficient for a finding of injury. This is further placed in context and supported by the opinion of A/Prof Davies that medical treatment was required because of the incident which occurred at work including the incident with the passenger and in relation to the discipline reaction.
4. Second, in my view there was other medical evidence to support a finding of injury on

3 April 2024. The clinical record and report of Ms Hazim, dated 9 April 2024 and

12 April 2024 respectively, both referred to and describe psychological symptoms arising from the incident on the bus on 3 April 2024, namely anxiety, depression and stress. 5. In my view, these documents support the applicant's case that has sustained psychological symptoms and injury as a result of the incident on 3 April 2024. This is not inconsistent, in my view, with the history of symptoms recorded by Dr El-Jaam on 4 April 2024 and with the opinion of A/Prof Davies. 6. The applicant's description of both the incident on 3 April 2024 and the subsequent disciplinary action was lengthy, and the absence of a description of the incident on

3 April 2024 by Dr El-Jaam is in my view not determinative. The history recorded by

Ms Hazim was taken shortly afterwards. Busy doctors, such as Dr El-Jaam may misunderstand or mis-record such histories.[1] 7. Third, and in any event, A/Prof Davies did not address the correct test of causation in this matter. He stated that the disciplinary process at work was "the major ongoing issue". He did not address the test required by s 11A, that is whether the disciplinary process wholly or predominantly caused the applicant's psychological injury. The respondent relied upon the contention that the disciplinary action predominantly caused the applicant's psychological injury. 8. "The major ongoing issue" posited by A/Prof Davies is in my view not the predominant cause, it is something less, or it is at least vague as to the extent of the requirement of predominant cause. The meaning to be ascribed to the word "predominantly" in s 11A(1) is "mainly or principally caused".[2] 9. In any event, in his report of 26 July 2024, A/Prof Davies was of the view that it was the interaction with the abusive passenger on the bus that was "the primary stressor/action which was the predominate cause of his emotional reaction".

This in my view ensures that the view of A/Prof Davies of "the major ongoing issue", as expressed in has later report, is insufficient for the respondent to establish action taken by the employer wholly or predominantly causing the applicant's injury.

The respondent carries the onus of establishing the defence pursuant to s 11A.[3] In my view the respondent has not discharged its onus. I find that the applicant's psychological injury was not wholly or predominantly caused by reasonable action taken by the employer in respect of discipline.

It is not necessary to deal with the other matters raised in submissions in relation to s 11A.

1. The respondent did not make submissions as to capacity other than not accepting that the applicant had any incapacity for employment in the claimed period.
2. Although I have not preferred the diagnosis of post-traumatic stress disorder contained within the certificates of Dr El-Jaam, and the certificates of Ms Hazim, which refer only to "psychological symptoms", the certificates are evidence of a qualified medical and psychological practitioner opinion as to capacity for work.
3. A/Prof Davies in his report of 26 July 2024 was equivocal as to capacity, saying only that the applicant was fit for pre-injury duties "if the workplace issues can be resolved". In his report of 9 October 2024, A/Prof Davies was of the opinion that an adjustment disorder reflects an acute and short lived reaction to stress and at that time the documentation of other symptoms, including the medical certificates of Dr El-Jaam and Ms Hazim, were insufficient to meet the criteria for a current psychiatric illness.
4. However, the opinion of A/Prof Davies of 9 October 2024 was not the result of further examination of the applicant, as it was expressed as being based entirely upon review of documents available. In my view, the certificates of Dr El-Jaam and Ms Hazim carry weight, as they are based on examination of the applicant on a periodic basis. Those documents certify the applicant as having no capacity for work until 11 March 2025 due to his continuing psychological symptoms resulting from his injury at work with the respondent.
5. There was no evidence to rebut the applicant's evidence that his symptoms continue. He said that his mental health has been severely impacted and he has significant emotional distress.[4] In my view he is entitled to the benefit of the presumption that the effects of the work injury continue.[5] I accept the applicant's submissions in this regard. I find that the applicant has had no capacity for work since 5 April 2024, as it was his evidence that he stopped work on that date, as a result of his psychological injury sustained in the course of his employment with the respondent.
6. The applicant was 70 years of age at the time of injury on 3, 4 and 5 April 2024. It seems to me that s 52(2)(b) of the 1987 Act is applicable, to the effect that weekly payments are payable for a period of 12 months after the first occasion of incapacity resulting from the injury.
7. In further written submissions it was not disputed that the period of the weekly compensation claim ended on 3 April 2025.
8. Pre-injury average weekly earnings were agreed at $676. Indexation is to apply.

[1] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35].

[2] Temelkov v Kemblawarra Portugese Sports and Social Club Ltd [2008] NSWWCCPD 96; Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130 at [30-31].

[3] Pirie v Franklins Ltd [2001] NSWCC 167; (2001) 22 NSWCCR 346.

[5] Bree v IR Doyle & PA Doyle t/as Ian Doyle's Meat Service [2009] NSWWCCPD 25 at [144 -147].