1. The respondent's request made under Notice for Production that the applicant produce copies of holiday photographs is set aside.
2. That the applicant sustained psychological injury on 8 July 2022 whilst in the course of his employment with the respondent.
3. That the applicant's employment was a substantial contributing factor to the injury.
4. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:

(a) Date of injury: 8 July 2022 - Personal Injury.

(b) Body systems / parts: Primary psychological/psychiatric disorder

(c) Method of Assessment: Whole person impairment

1. The documents to be reviewed by the Medical Assessor are:

(a) Application and attached documents;

(b) Reply and attached documents;

(c) Application to Lodge Additional Documents lodged on behalf of the applicant dated 11 September 2025 with attachments;

(d) Application to Lodge Additional Documents lodged on behalf of the respondent dated 18 September 2025 with attachments, and

(e) this Certificate of Determination and Statement of Reasons.

A brief statement is attached setting out the Commission's reasons for the determination.

1. Jackson Lang (the applicant) has brought proceedings in the Personal Injury Commission (the Commission) in which he pleads that he sustained psychological injury on 8 July 2022 as a result of discovering during the course of his employment with Ballina Shire Council (the respondent) the body of a co-worker who had committed suicide (the deceased).
2. The applicant claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) for psychiatric and psychological disorders.

1. The parties agree that the following issues remain in dispute:

(a) whether the applicant suffered injury arising out of or in the course of his employment with the respondent: s 4(a) of the 1987 Act, and if he did;

(b) whether his employment was a substantial contributing factor to his injury: s 9A of the 1987 Act.

1. In the event that liability is determined in the applicant's favour the applicant is to be remitted to the President for referral to a Medical Assessor for assessment of impairment.
2. It is not in dispute that the applicant sustained a psychological injury when he discovered the body of the deceased on 8 July 2022.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The matter was listed for conciliation conference/arbitration hearing before me on

24 September 2025. Mr Josh Beran, counsel, instructed by Mr Timothy Gauci of Carroll & O'Dea Lawyers, appeared for the applicant, who was present. Mr Graham Barter, counsel, instructed by Mr Andrew Kemp of Kemp & Co, appeared for the respondent. The proceedings were conducted on MS Teams. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute. 2. Oral evidence was taken from the applicant at the arbitration hearing with a timetable then being set for written submissions. Written submissions were subsequently provided by the parties.

1. The following documents were before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute and attached documents (ARD);

(b) Reply and attached documents (Reply);

(c) Application to Lodge Additional Documents lodged on behalf of the applicant dated 11 September 2025 with attachments (AALAD);

(d) Application to Lodge Additional Documents lodged on behalf of the respondent dated 18 September 2025 with attachments (RALAD); and

(e) the parties written submissions.

1. Oral evidence was adduced from the applicant at the arbitration hearing.

1. This is a brief summary of the evidence. Further evidence will be referred to as required.
2. It is the applicant's evidence that he had known the deceased for around four or five years through work.[1] He had become closer friends with the deceased outside of work in about the two-year period prior to the deceased going missing. This was largely due to the deceased's partner and the applicant's partner at the time also being good friends and living next door to each other. The applicant and the deceased would socialise together outside of work with their respective partners.[2]
3. The deceased went missing on Wednesday 6 July 2022.
4. It is the applicant's evidence that collectively, the respondent's staff members knew that the deceased was missing. The deceased's father also worked for the respondent. Colleagues were concerned for the deceased's whereabouts and regularly asked each other if "we had checked here or there."[3]
5. It is not in dispute that the applicant arrived at the respondent's Ballina Depot at 6.00am on 8 July 2022 and commenced organising and packing his work vehicle.
6. It is the evidence of Mr Fleming that on the morning of 8 July 2022 he assigned a few jobs to the applicant. It is the evidence of Mr Fleming that the applicant did not appear "focused or present at work" and that he asked the applicant if he was okay to which he responded that he was worried about the deceased whom he had still not been able to contact.[4]
7. It is the evidence of Aaron Keen that on 7 July 2022 he asked the deceased's father whether anyone had checked Smith Drive as part of the search. The deceased's father had advised Mr Keen that Smith Drive had been checked.[5]
8. It is the evidence of Mr Keen that on the morning of 8 July 2022 he asked the applicant if anyone had looked down the end of Smith Drive to which the applicant responded with words to the following effect "Let's go look."[6]
9. Consistent with the evidence of Mr Keen it is the applicant's evidence that whilst he was in the course of packing his work vehicle, he had the following conversation with Mr Keen:

Keen: "Have you checked the end of Smith Drive, because I know Dan has gone down there before to chill out when he has been stressed out and had things go wrong in his life."

Applicant: "No, I haven't looked there. Do you think it would be worth looking?"

Applicant: "Ok I will go down there; I'll meet you there."[7]

1. It is the evidence of Mr Keen that he asked the applicant to wait 5 or 10 minutes so that he could sort out a few matters at work and so that he could also check with his "boss", Paul Crozier, to see if it was okay for him drive out to Smith Drive with the applicant. However, within a few minutes, the applicant had left the depot and gone out on his own.[8]
2. The applicant in his statement made 20 June 2025 at [10] confirmed that the contents of Mr Keen's statement were true. It is however the applicant's evidence at [20] of his statement dated 9 September 2025 that he did not specifically recall Mr Keen telling him to wait so that he could sort out a few matters and check with Mr Crozier.
3. The applicant under cross-examination denied that Mr Keen told him to wait. It is the applicant' evidence at T26.31-27.6:

"Q. Or are you saying now you just can't remember one way or another?

1. No, no, I'm saying he's wrong and I'm saying he was covering his own arse by saying I'm going into check with Paul, I think it's a load of shit.
2. So now Mr Keen's statement is actually wrong? What, it's a lie?
3. That paragraph or the wording of our conversation, yeah, I believe it's wrong, yeah."

1. I am of the view that Mr Keen did ask the applicant to wait whilst he went to check with Mr Crozier. I do not accept the applicant's evidence on cross-examination. I found the applicant to be evasive in his answering of the questions which were subsequently put to him by Mr Barter under cross-examination. Under cross-examination the applicant conceded that it made sense for Mr Keen to check with Mr Crozier whilst at the same time stating it was "not realistic",[9] and denying that he left his place of work stating:

"A. My place of work is - my place of work is anywhere in the Ballina Shire Council, mate."

1. That the applicant's place of work is anywhere within the Ballina Shire Council is clearly absurd.
2. The evidence of Mr Keen that he told the applicant to wait is consistent with the evidence of Mr Keen that he was in the presence of Mr Crozier when the applicant subsequently telephoned Mr Crozier from Smith Drive. Mr Keen's evidence that he was in the presence of Mr Crozier when the applicant called is in turn supported by the evidence of Mr Crozier that the police arrived at Smith Drive shortly after he did. It is the evidence of Mr Keen that he called the police.
3. It is the applicant's evidence that following the conversation with Mr Keen he then finished packing the work vehicle for the day's work and left the depot.[10] It is the applicant's evidence that he and Mr Keen were never going to leave the depot together in the same vehicle to go to Smith Drive.[11] It is the applicant's evidence that it was his intention that after checking down the end of Smith Drive, and, assuming he did not find anything, he would then drive off and continue with his workday. He had a job to do that day operating a camera on Bentinck Street.[12]
4. It is the applicant's evidence that after he left the depot and before he arrived at the end of Smith Drive he called Mr Crozier, who he knew to be concerned about the deceased's whereabouts, to inform him of the conversation he had with Mr Keen and where he was heading.[13] It is the applicant's evidence that he told Mr Crozier that he would call him again if he found anything.[14]
5. Consistent with the applicant's evidence it is the evidence of Mr Crozier that on the morning of 8 July 2022, the applicant called him and mentioned to him that he had received some information about a potential location that he thought he may be able to find the deceased. It is the evidence of Mr Crozier that the applicant mentioned that this was a location that may not have been checked. Mr Crozier also recalled that a team member from the Maintenance Team made reference to this location and it prompted the applicant to look into whether the deceased might be at that location. It is the evidence of Mr Crozier that the applicant told him that the location was along the end of Smith Drive in West Ballina which is a closed off part of the road. The applicant also told him that he was worried about the deceased and so he was going to head out to Smith Drive to look for him.[15]
6. It is the applicant's evidence that he called Mr Crozier again when he arrived at the end of Smith Drive and saw tyre marks in the area beyond the slide rail. It is the applicant's evidence that at the time of making the call he had already started moving into the bush area beyond the slide rail to see whether he could find the deceased.[16] It is the applicant's evidence that he then walked into the bush area beyond the rail for about 500 metres and discovered the deceased's body.[17]
7. Consistent with the applicant's evidence, it is the evidence of Mr Crozier, that the applicant called him again shortly after and told him that he had driven towards the end of Smith Drive, that he had reached the slide rail at the end of that roadway and that he observed some fresh tyre marks in that area, beyond the slide rail. It is the evidence of Mr Crozier that at this point he was very concerned and that he told the applicant to wait for him and that he would head right over to him. It is the evidence of Mr Crozier that team leader, Robert Hunter, was standing nearby at the time of the phone call and that he asked Mr Hunter to get one of the cars and drive him to the applicant which he did. It was about a 5 or 10 minute drive from work to the end of Smith Drive.[18]
8. It is the applicant's evidence that he has no recollection of Mr Crozier asking him to wait for him at this point in time. It is the applicant's evidence that he was already extremely conscious of attempting to locate the deceased due to seeing the tyre marks and that was not really listening to Mr Crozier on the phone and was more just talking to Mr Crozier about what he had seen, and that he had started calling out the deceased's name.[19] It is the applicant's evidence that he then walked into the bush area beyond the rail for about 500 metres and discovered the deceased's body.[20]
9. It is the evidence of Mr Hunter that he observed Mr Crozier on the phone call. Mr Hunter didn't know who Mr Crozier was on the phone to however based on the comments that Mr Crozier was making on the phone call as well as his demeanour during the phone call, it is the evidence of Mr Hunter that he could "tell that something was not right and that Paul seemed very worried about something." Mr Hunter recalled hearing Mr Crozier making comments to the following effect "Where are you mate?" and "Are you okay?" and "Wait there. I will come to you." They then got into a vehicle together which Mr Hunter drove.[21]
10. It is the evidence of Mr Keen that he was also near Mr Crozier when Mr Crozier received the call from the applicant saying that he had been out to the end of Smith Drive. Mr Keen's evidence does diverge in that Mr Keen states that it was at this point that the applicant had told Mr Crozier that he had found the deceased's vehicle. It is the evidence of Mr Keen that he suggested that the applicant should keep some distance, just in case it was a crime scene. It is the evidence of Mr Keen that he then contacted a friend of his who was a police officer and arranged for police to attend the scene.[22]
11. It is the evidence of Mr Crozier that whilst driving towards the end of Smith Drive, he received another phone call from the applicant who told him that he had found the deceased's vehicle. That he asked the applicant to wait for him as he was on his way and only a few minutes away. It is the evidence of Mr Crozier that within a few minutes, the applicant called him again and told him that he had found the deceased's body.[23]
12. There is some inconsistency in the evidence as to whether Mr Crozier received one or two phone calls from the applicant whilst in transit to Smith Drive. There is the evidence of Mr Keen that the applicant reported that he had found the deceased's vehicle to Mr Crozier whilst he was still at the depot and the evidence of Mr Hunter only refers to one call whilst on the drive.
13. It is the evidence of Mr Hunter that whilst he and Mr Crozier were in the vehicle together, Mr Crozier received another phone call and once that call ended, Mr Crozier told him that he had been speaking to the applicant and that the applicant had found the deceased along Smith Drive in West Ballina.[24]
14. It is the evidence of Mr Crozier that he and Mr Hunter arrived at the end of Smith Drive and parked near the slide rail before they exited the vehicle. Mr Crozier then ran down the tracks beyond the slide rail to find the applicant. Once he found the applicant, he consoled him before they walked back up the track towards the slide rail on Smith Drive together. At around the time as they walked back up the track, some police officers and other people including the deceased's girlfriend had arrived at the site.[25]
15. It is the evidence of Crozier that he drove the applicant home in the applicant's work vehicle before returning to the depot in the applicant's work vehicle.[26]

1. It is not disputed that the applicant sustained a psychological injury on the morning of

8 July 2022 when he discovered the body of the deceased who had committed suicide. 2. Mr Barter submitted on behalf of the respondent that:

(a) the applicant suffered injury whilst engaged in a personal activity that did not arise out of or in the course of his employment as required by s 4(a) of the 1987 Act, and

(b) that if he did suffer injury arising out of or in the course of employment then employment was not a substantial contributing factor to his injury as required by s 9A of the 1987 Act.

Injury arising out of or in the course of employment

1. Section 4(a) of the 1987 Act defines "injury" to mean "personal injury arising out of or in the course of employment".
2. It is not in dispute that at the time that the applicant discovered the body of the deceased and sustained injury he was not undertaking the work duties which had been allocated to him for that day by his supervisor, Mark Fleming, or any of the other usual duties of his role as an Asset Investigation Operator.
3. It is also not in dispute that the applicant and the deceased were friends outside of the workplace.
4. I am of the view that the evidence supports that the applicant had commenced employment on the morning of 8 July 2022 prior to going to search for the deceased. There is no dispute that the applicant attended the respondent's premises at about 6.00am. It is the evidence of Mr Fleming that he spoke to the applicant and that he provided the applicant with work tasks for that day and it is the applicant's evidence that he packed a work vehicle for the day's work duties.
5. In the respondent's submission the applicant abandoned his employment to search for the deceased for personal reasons and without the authority or approval or encouragement of the respondent.
6. In the respondent's submission there is no evidence that the applicant completed packing his vehicle prior to setting out for Smith Drive with the sole aim of searching for the deceased.[27]
7. It is incorrect that there is no evidence that the applicant completed packing the vehicle. It is the applicant's evidence at [19] of his statement dated 9 September 2025 that after speaking to Mr Keen he finished packing the work vehicle for the day's work and then left the depot.[28] Furthermore, it is the applicant's evidence that it was his intention that after checking for the deceased down the end of Smith Drive, and assuming he did not find anything, he would then drive off and continue with his workday.[29]
8. I accept the applicant's evidence that he did intend to continue with his allocated work duties after he had looked down the end of Smith Drive assuming nothing was found. The applicant had attended work that morning with the respondent, had packed his work vehicle to perform his allocated work duties. There is no evidence that the applicant had any intention of searching for the deceased prior to talking to Mr Keen and there is no evidence that the applicant had any intention of searching any other location after Smith Drive
9. In the respondent's submission such was the applicant's sense of urgency to search for the deceased that he did not even wait five or ten minutes while Mr Keen sought appropriate authority or approval. In the respondent's submission Mr Keen, being a Team Leader in Road Maintenance, was not in a position of authority over the applicant.
10. I accept that Mr Keen was not in the general course of the conduct of the applicant's duties in a position of authority over the applicant. Whilst it is the applicant's evidence, which does not appear to be challenged, that Mr Keen as a Team Leader was senior to both the applicant and to the applicant's supervisor at the time, Mr Fleming,[30] Mr Keen was in a different area, and the applicant did not report to Mr Keen. There is no evidence that Mr Keen had any authority to direct the applicant other than to make requests for the performance of works within the duties of the applicant's role.
11. It is the applicant's evidence that he and Mr Keen were never going to leave the depot together in the same vehicle to go to Smith Drive[31] as the applicant was going to continue on to perform his allocated work duties if they found nothing.
12. I accept the respondent's submission that the applicant felt a sense of urgency to find the applicant. It is clear from the evidence that the applicant was concerned to find the deceased. Whilst the applicant may not have expected the deceased to have committed suicide[32] I do not accept the applicant's evidence that he did not "have a fear for the applicant's safety"[33] and that he thought that the deceased "...might've just been hiding somewhere..."[34]
13. Dr Karthik Modem, psychiatrist, provided a forensic report to the respondent dated

12 January 2025 in which the doctor took a detailed history from the applicant that the day before the applicant found the deceased, both the deceased's partner and the applicant's partner were both concerned and were discussing the situation when the applicant arrived. They feared that the deceased might have taken his own life. The applicant recalled how he cried on his way to work the following morning. 14. The clinical note of the applicant's consultation with Gerry Bronn, the applicant's treating psychologist, on 28 July 2022 records a history that the deceased had gone missing on a Wednesday, that on Thursday the applicant had driven around looking for the deceased without finding him and that on Friday morning the applicant had been crying in the shower.[35] 15. The evidence in my view is consistent with the applicant being concerned with the welfare and life of the applicant given that the applicant was aware that the applicant's partner was concerned and his crying in the shower before work being a reaction beyond what would be expected if it was thought that someone, although distressed, was not at risk of harm. I do not accept that the crying in the shower is explained by the applicant's evidence that he is an emotional guy. 16. I also accept and, in the circumstances, it was understandable that the applicant was prepared to prioritise the search for the deceased. The clinical record of Mr Bronn supports that the applicant had searched for the applicant the previous day and the evidence in my view supports that the applicant's concerns for the deceased were significant. 17. Whilst I accept that Mr Keen did not have the authority to direct the applicant and also accept the respondent's submission that the applicant did not consult his direct manager Mr Fleming. The applicant did shortly after leaving the depot and before arriving at Smith Street telephone Mr Crozier whom he knew to be concerned about the deceased's whereabouts, to inform him of the conversation he had with Mr Keen and where he was heading.[36] It is the applicant's evidence that he told Mr Crozier that he would call him again if he found anything.[37] 18. It is the evidence of Mr Crozier that he was aware that the applicant was a friend of the deceased[38] and that he and the applicant were also friends outside of work having met through the local rugby union club about 11 or 12 years prior.[39] 19. Mr Crozier was the "boss" who Mr Keen had told the applicant that he was going to get approval off. The evidence of Mr Crozier confirms the applicant's evidence as to the telephone call. There is no evidence that Mr Crozier told the applicant at that time to not proceed or to wait for him. 20. In the respondent's submission the applicant was neither authorised nor encouraged nor induced to carry out the search for the deceased by the respondent. Rather it was the sense of urgency based on his personal relationships that caused him to carry out the search rather than attend to his allotted duties.[40] 21. The respondent submits that the applicant says that he was not only encouraged but told by a fellow employee in a supervisory position, Mr Keen, to search for the deceased. In the respondent's submission that is not consistent with what Mr Keen said and the circumstances in which he said it. 22. It is the applicant's evidence that he was not only encouraged by Mr Keen but instructed to search for the deceased. It is the applicant's evidence at [11] of his statement made 20 June 2025 in respect to his conversation with Mr Keen that:

"A reasonable person with fears for their colleagues well-being would interpret the conversations as an instruction to go check in the specified locations..."

"As mentioned above, had I not been instructed by Aaron Keen I would not have gone looking for Daniel in that specific location on that specific day."

1. It was also the applicant's evidence on cross-examination that he was directed by Mr Keen to head to Smith Street.[41]
2. I accept the respondent's submission that the applicant was not instructed by Mr Keen to search for the deceased. In my view it was nothing more than a suggestion. The language of the conversation as recalled by the applicant indicates that it was a suggestion. At no point did Mr Keen tell the applicant to go and search at the end of Smith Street. I also accept that Mr Keen, not being in the applicant's team, had no authority to direct or instruct the applicant to do so.
3. I do not however accept the respondent's submission "that what Aaron Keen instructed the Applicant to do was the opposite of encouraging and/or inducing him to drive out to Smith Drive for the purpose of searching for Daniel. It was an instruction to 'wait 5 or 10 minutes' before doing anything - so that Aaron could ascertain whether or not his boss approved Aaron driving with the applicant to Smith Drive for that purpose."[42]
4. I have previously found that Mr Keen did not have the authority to instruct the applicant. It is the evidence of Mr Keen that he asked the applicant to wait not that he instructed him to wait.[43]
5. In my view the evidence clearly supports that the conversation with Mr Keen did however encourage the applicant to go searching for the deceased. The actions of the applicant confirms this with the applicant shortly following the conversation proceeding to the area suggested by Mr Keen. The fact that Mr Keen wished to first seek approval for him going to search for the deceased is in my view irrelevant. It is not the evidence and not suggested that Mr Keen was also to seek approval for the applicant.
6. In the respondent's submission Mr Keen had not conveyed a sense of urgency to the applicant. I do not accept this submission. In my view the completion of some minor tasks and the seeking of approval from Mr Crozier does not signify a lack of a sense of urgency.
7. In my view a strong sense of urgency can exist without there being a need for immediate action. The circumstances in this matter are not such that the applicant and/or Mr Keen were confronted with a known obvious and immediate threat to the deceased that they needed to immediately react to. Whilst they were concerned for the deceased, they had only a thought that he may be in a particular location and were not aware of any particular immediate danger to the deceased that could be averted by their immediate action.
8. In the respondent's submission the applicant abandoned his employment to go searching for the deceased. I do not accept this submission. The applicant did not simply disappear to search for the deceased. Whilst the applicant did not contact his immediate superior, Mr Fleming, he did telephone Mr Crozier.
9. Whilst Mr Crozier was not in the applicant's team and the applicant did not report to Mr Crozier, and whilst Mr Crozier was a friend of the applicant, significantly the deceased and of less significance Mr Keen were part of Mr Crozier's team, and the applicant was aware that Mr Crozier was concerned about the deceased.
10. On the applicant's evidence Mr Crozier was considerably more senior than the applicant and Mr Fleming with Mr Keen being senior to Mr Fleming and Mr Crozier being senior to Mr Keen. The activity of searching for the deceased did not fall within the applicant's usual duties. The circumstances that lead to the search were unusual and were not within the norm. There is no indication that Mr Fleming had any particular connection to the deceased through his work with the respondent.
11. In the circumstances it is understandable that the applicant reported his activity to Mr Crozier. The applicant may not have believed that he needed to obtain permission to go and search for the deceased, which would be consistent with his evidence that:

"With multiple site supervisors liaising with each other on whether we had checked in certain areas of the bushland, it became apparent that looking for Daniel was also a priority during our work hours."[44]

As well as his actions in not reporting his intentions to Mr Crozier at the same time that Mr Keen went to do so and not calling Mr Crozier until after he had left the depot and was in transit to the search site.

1. However, significantly there is no evidence that during that initial telephone call whilst the applicant was travelling to Smith Street that Mr Crozier told the applicant to stop what he was doing or even to wait for him. Rather it is the applicant's evidence that he told Mr Crozier that he would call him again if he found anything.
2. In my view, given the unusual circumstances, the applicant was given tacit approval by a more senior member of the respondent's staff to continue with the search. This approval was given prior to the applicant reaching the intended area to be searched and prior to the applicant sustaining injury.
3. The applicant did call Mr Crozier again when he arrived at the end of Smith Drive and saw tyre marks in the area beyond the slide rail. It is the applicant's evidence that at the time of making the call he had already started moving into the bush area beyond the slide rail to see whether he could find the deceased.[45]
4. Mr Crozier confirms that he received a second call from the applicant advising that he had reached the slide rail at the end of the roadway and that he had observed some fresh tyre marks in that area, beyond the slide rail.
5. It is the evidence of Mr Crozier that at this point he was very concerned and that he told the applicant to wait for him and that he would head right over to him. On the evidence there is no dispute that Mr Crozier and Mr Hunter then got into a work vehicle and travelled to the end of Smith Drive which took five to ten minutes.[46]
6. In my view at this point, prior to the applicant sustaining injury, Mr Crozier has effectively joined in the search for the deceased. He has not instructed the applicant to cease the search and return to his usual duties, rather he instructed the applicant to wait for him.
7. It is the applicant's evidence that he has no recollection of Mr Crozier asking him to wait for him at this point in time, that he was already extremely conscious of attempting to locate the deceased due to seeing the tyre marks and that he was not really listening to Mr Crozier on the phone and was more just talking to Mr Crozier about what he had seen, and that he had started calling out the deceased's name.[47] It is the applicant's evidence that he then walked into the bush area beyond the rail for about 500 metres and discovered the deceased's body.[48]
8. I accept the evidence of Mr Crozier that he did tell the applicant to wait. This is consistent with the evidence of Mr Hunter that he recalled hearing Mr Crozier making comments to the following effect "Where are you mate?", "Are you okay?" and "Wait there. I will come to you."
9. It is the evidence of Mr Crozier that whilst driving towards the end of Smith Drive, he received another phone call from the applicant who told him that he had found the deceased's vehicle. That he asked the applicant to wait for him as he was on his way and only a few minutes away. It is the evidence of Mr Crozier that within a few minutes, the applicant called him again and told him that he had found the deceased's body.[49]
10. There is some inconsistency in the evidence as to whether Mr Crozier received one or two phone calls from the applicant whilst in transit to Smith Drive. There is the evidence of Mr Keen that the applicant reported that he had found the deceased's vehicle to Mr Crozier whilst he was still at the depot and the evidence of Mr Hunter only refers to one call whilst on the drive.
11. It is the evidence of Mr Hunter that whilst he and Mr Crozier were in the vehicle together, Mr Crozier received another phone call and once that call ended, Mr Crozier told him that he had been speaking to the applicant and that the applicant had found the deceased along Smith Drive in West Ballina.[50]
12. In any event I accept that Mr Crozier instructed the applicant to wait for him on at least one occasion prior to the applicant finding the deceased and sustaining injury.
13. Whilst the applicant may not have been performing his usual work duties or the duties which had been allocated to him for that day by Mr Fleming, I am of the view that the applicant was in the course of his employment whilst searching for the deceased and at the time of finding the deceased's body and sustaining injury on 8 July 2022.
14. It is the applicant's evidence that whilst there were no express instructions for any of the respondent's staff to be looking for the deceased, there were conversations to the effect of "Have you checked here", "Maybe you should check there".[51] It is also the evidence of Mr Crozier that there was "a high level of concern across" the respondent about the deceased's whereabouts.[52]
15. I am of the view that the applicant was granted tacit approval by Mr Crozier to search for the deceased at the end of Smith Street.
16. If I am wrong and the applicant was not engaged in actual work in conducting the search having absented himself from work, I am still of the view that the applicant was in the course of his employment when performing the search.
17. In Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 (Hatzimanolis), Mason CJ, Deane, Dawson and McHugh JJ said at [16]:

"Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment." [Emphasis added]

1. In Comcare v PVYW [2013] HCA 41; 303 ALR 1(PVYW) the majority (French CJ, Hayne, Crennan and Kiefel JJ) said:

"[38] The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next enquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential enquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.

[39] It follows that where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at a place. An employer's inducement or encouragement to be present at a place is not relevant in such a case." [Emphasis added]

1. I accept the submission of Mr Beran on behalf of the applicant that the respondent encouraged the applicant to be at that particular place and was therefore in the course of his employment.
2. In my view the applicant was encouraged by the respondent with the applicant being aware that there were concerns for the deceased within the respondent, with there being discussions as to potential places that the deceased could be located, with Mr Crozier providing tacit approval to the applicant when not instructing him to cease the search and return to his usual duties when advised by the applicant what he was doing at the time of the initial telephone call and then being subsequently instructed to remain at the area of the search and to wait for Mr Crozier who was going to join him at the search site. I am of the view that the applicant was encouraged to engage in the activity of the search and to be at the end of Smith Street.
3. I am not of the view that the applicant's actions in not waiting for Mr Crozier as instructed took him outside the course of his employment. I am also not of the view the failure of the applicant to wait was gross misconduct.[53] The conduct of the applicant was not in my view in some way improper or wrongful other than that he had been instructed to wait for Mr Crozier and was not unlawful.[54]
4. It is not as the respondent submitted at [12] of its submissions in reply a question as to whether the applicant was encouraged or induced to proceed further beyond the slide rail to the tune of traversing approximately 500 additional metres through bush terrain to the site of the deceased's body which was the moment and location at which the injury occurred. The question is whether the applicant having received tacit approval for the search and having been encouraged to engage in the search and be at the search site then ceased to be in the course of his employment by failing to follow the direction of Mr Crozier to wait for him. As previously discussed, I am not of the view that it took him outside the course of his employment.
5. In Karim v Poche Engineering Services Pty Ltd [2013] NSWWCCPD 24 Deputy President Roche observed when considering the concept of "serious and wilful misconduct" that:

"the phrase...comprehends more than negligence, carelessness, or the mere disregard of orders

1. It is the applicant's evidence that he did not hear the instruction of Mr Crozier to wait for him. The applicant's actions were simply to continue searching for the deceased in circumstances where there were concerns for the deceased's welfare and there was no obvious risk to the applicant and the actions being taken by the applicant were not illegal of otherwise inappropriate or reprehensible.
2. Whilst performing an activity which one is not reasonably required, expected or authorised to do in order to carry out one's duties can take one outside the course of employment,[55] the applicant was not instructed to discontinue the search but rather to simply wait for Mr Crozier to arrive.
3. For the above reasons I find that the applicant sustained psychological injury on 8 July 2022 whilst in the course of his employment with the respondent.

"9A No compensation payable unless employment substantial contributing factor to injury

(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.

Note. in the case of a disease injury, the worker's employment must be the main contributing factor. See section 4.

(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination) -

(a) the time and place of the injury,

(b) the nature of the work performed and the particular tasks of that work,

(c) the duration of the employment,

(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment,

(e) the worker's state of health before the injury and the existence of any hereditary risks,

(f) the worker's lifestyle and his or her activities outside the workplace.

(3) A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following -

(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment,

(b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury.

(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies."

1. I accept the respondent's submission that the applicant's usual work tasks neither caused nor contributed to the injury and that the discovery of the deceased's body was not incidental to the applicant's usual work tasks. However, whilst the applicant was not performing his usual work tasks for the respondent at the time that the injury was sustained, he was still in the course of his employment.
2. Having found that the applicant was in the course of his employment at the time of sustaining injury there is in my view no issue that the applicant's employment was a substantial contributing factor as there is no dispute that the psychological injury was caused by the applicant finding the deceased's body. The finding of the deceased's body was the only cause of injury. The respondent concedes at [1] of its submissions in reply that the medicolegal evidence is in agreement that the applicant's psychological injury was caused by the applicant discovering the body of the deceased.
3. I therefore find that the applicant's employment was a substantial contributing factor to the injury.

1. The respondent issued a Notice for Production which called on the applicant to produce:

"Copies of all holiday photographs, whether retained on computer, mobile phone or other device, USBs or by way of printed copies, in respect of all holidays taken by you, either by yourself, with your partner, family members, friends and/or other persons, for the period since 1 July 2022 - including holidays within New South Wales, interstate and/or outside of Australia."

1. Mr Beran submits on behalf of the applicant that the request for photographs is impermissible and should be rejected.
2. In the respondent's submission the applicant failed to raise a formal objection to the request for the photos in the Notice for Production in accordance with r 41 of the Personal Injury Commission Rules 2021 (the Rules) and during the required timeframe of seven days and therefore the applicant's objection should be rejected.
3. The applicant responded to the Notice for Production on 1 September 2025 objecting to the production of the requested photographs. Whilst the objection has been made outside the seven days prescribed by r 41 the respondent has not raised the issue of compliance with r 41 until its submissions in reply. The submission does not appear to be in response to any submission made on behalf of the applicant.
4. Given the circumstances and the way that the dispute about the photographs has been approached by the parties prior to the respondent's submissions in reply, I am of the view that it is appropriate to deal with the matter on the basis of the substantive issues in respect to the appropriateness of the request rather than on a technical basis in respect to the compliance with r 41. Therefore, pursuant to r 6 of the Rules I dispense with the requirement to comply with r 41.
5. In Mr Beran's submission a Medical Assessor is required to assess an injured worker as they appear on the date of assessment. To request the applicant's holiday photographs from 1 July 2022 cannot have any bearing on a medical assessment that would likely take place in 2026. In the applicant's submission, it is a fishing expedition.
6. In the respondent's submission the late admission by the applicant that he travelled to the Whitsundays (in addition to his previous disclosure to Dr Smith that he travelled to Dubai alone in December 2023 to see his sister for 10 days) has prompted the respondent to seek access to any photos taken on those trips.
7. In the respondent's submission it is "on the cards" that the photos will be of assistance to the respondent's case and to a Medical Assessor when considering the class ratings in their PIRS calculations, particularly in relation to the two PIRS categories of travel and social and recreational activities.
8. The photographs which the respondent is seeking production of need to have a legitimate forensic purpose and be likely to materially assist. The test was enunciated in R v Saleam [1999] NSWCCA 86 (Saleam) at [11] as follows:

"Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case."

1. That there is an intrinsic difficulty in establishing that the documents sought are likely to materially assist without having first seen the documents was recognised in O'Shane v Harbour Radio Pty Ltd [2014] NSWSC 93 (O'Shane).
2. The applicant in this matter is seeking permanent impairment compensation pursuant to s 66 of the 1987 Act. The only relevant use for the photographs which the respondent is seeking access to is for them to be considered by a Medical Assessor in respect to the assessment of the applicant's impairment.
3. Impairment caused by psychological injuries is assessed pursuant to the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (the Guidelines) which utilises the Psychiatric Impairment Rating Scale (PIRS). In the respondent's submission the photos are particularly relevant to the two PIRS categories of travel and social and recreational activities.
4. Table 11.2 of the Guidelines is the PIRS for social and recreational activities and states:

"Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.

Class 2 Mild impairment: Occasionally goes to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).

Class 3 Moderate impairment: Rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.

Class 4 Severe impairment: Never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.

Class 5 Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member."

1. Table 11.3 of the Guidelines is the PIRS for travel and states:

"Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.

Class 2 Mild impairment: Can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.

Class 3 Moderate impairment: Cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.

Class 4 Severe impairment: Finds it extremely uncomfortable to leave own residence even with trusted person.

Class 5 Totally impaired: May require two or more persons to supervise when travelling."

1. I am not of the view that the respondent has established that it is "on the cards" that the documents will materially assist. The applicant admits that he went on holidays to Dubai alone and to the Whitsundays. The photos will not disclose whether the applicant travelled with a support person or whether the locations travelled to were new to him. Similarly, holiday photographs are not going to show whether the applicant attends occasional social events or rarely goes to social events with or without a support person or his level of participation at those events. Whilst a photograph may depict a person cheering or dancing it does not convey whether that is an isolated event or the circumstances in which it occurred.
2. For the above reasons the respondent's request made under Notice for Production that the applicant produce copies of holiday photographs is set aside.

1. As I have determined liability in favour of the applicant the matter will be remitted to the President for referral to a Medical Assessor for assessment of impairment.

[1] Applicant's statement made 20 June 2025 at [3].

[2] Applicant's statement made 9 September 2025 at [3].

[3] Applicant's statement made 20 June 2025 at [4].

[4] Statement of Mr Fleming made 15 January 2025 at [25].

[5] Statement of Mr Keen made 12 March 2025 at [6].

[6] Statement of Mr Keen made 12 March 2025 at [7].

[7] Applicant's statement made 9 September 2025 at [13]-[18].

[8] Statement of Mr Keen made 12 March 2025 at [7].

[10] Applicant's statement made 9 September 2025 at [19].

[11] Applicant's statement made 9 September 2025 at [21].

[12] Applicant's statement made 9 September 2025 at [22].

[13] Applicant's statement made 9 September 2025 at [25].

[14] Applicant's statement made 9 September 2025 at [26].

[15] Statement of Mr Crozier made 18 February 2025 at [7].

[16] Applicant's statement made 9 September 2025 at [27].

[17] Applicant's statement made 9 September 2025 at [28].

[18] Statement of Mr Crozier made 18 February 2025 at [8].

[19] Applicant's statement made 9 September 2025 at [27].

[20] Applicant's statement made 9 September 2025 at [28].

[21] Statement of Mr Hunter made 25 February 2025 at [9].

[22] Statement of Mr Keen made 12 March 2025 at [8].

[23] Statement of Mr Crozier made 18 February 2025 at [9].

[24] Statement of Mr Hunter made 25 February 2025 at [10].

[25] Statement of Mr Crozier made 18 February 2025 at [10].

[26] Statement of Mr Crozier made 18 February 2025 at [12].

[27] Respondent's submissions dated 24 October 2025 at [13].

[28] Applicant statement made 9 September 2025 at [19].

[29] Applicant's statement made 9 September 2025 at [22].

[31] Applicant's statement made 9 September 2025 at [21].

[32] Applicant's statement made 20 June 2025 at [3].

[36] Applicant's statement made 9 September 2025 at [25].

[37] Applicant's statement made 9 September 2025 at [26].

[38] Statement of Mr Crozier made 18 February 2025 at [6].

[39] Statement of Mr Crozier made 18 February 2025 at [4].

[40] Respondent's submissions at [22].

[43] Statement of Mr Keen made 12 March 2025 at [7].

[44] Applicant's statement made 20 June 2025 at [12].

[45] Applicant's statement made 9 September 2025 at [28].

[46] Statement of Mr Crozier made 18 February 2025 at [8].

[47] Applicant's statement made 9 September 2025 at [27].

[48] Applicant's statement made 9 September 2025 at [28].

[49] Statement of Mr Crozier made 18 February 2025 at [9].

[50] Statement of Mr Hunter made 25 February 2025 at [10].

[51] [10] statement made 20 June 2025.

[52] [6] Crozier statement made 18 February 2025.

[54] Walling v Mitchell Drilling Contractors Pty Ltd [1997] NSWCC 22; (1997) 14 NSWCCR 536 Truss CCJ said (at 543)

[55] Schinnerl v Commissioner of Police [1995] NSWCC 12; (1995) 11 NSWCCR 278 (Schinnerl) at 285.