1. The respondent is to pay the applicant's reasonably necessary medical and treatment expenses pursuant to s 60.
2. The parties have liberty to apply in relation only to the calculation of the weekly payments contained in Order [5].

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

1. The applicant, Shayne Mansfield brings proceedings for the payment of weekly benefits and medical expenses as a result of a psychological injury suffered in the course of his employment with Brickworks Limited (the respondent) with a deemed date of injury of 6 February 2024.
2. There is no issue the applicant suffered a work injury. There is also no issue in relation to his pre-injury average weekly earnings (PIAWE) or that he has been totally incapacitated for the period claimed and remains so.

1. The only issue for determination is whether the applicant's injury was wholly or predominantly caused by the respondent's reasonable actions in relation to discipline.

1. 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. The matter was listed for hearing before me on 9 December 2025. At the hearing, Ms Grotte appeared for the applicant instructed by Ms Burgess. Mr Stiles appeared for the applicant instructed by Ms Sevastalis.
3. The applicant's claim was originally disputed on the basis that he had not suffered a work-related injury. That defence was abandoned at the hearing. The dispute notice also alleged the respondent's reasonable conduct in relation to performance appraisal had been the applicant's have been the whole predominant cause of the applicant's injury. However, at the hearing, the only basis on which the s 11A defence was pressed was in relation to discipline.

1. The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:

(a) Application to Resolve a Dispute (Application);

(b) Reply, and

(c) applicant's Application to Lodge Additional Documents (ALAD) dated 26 November 2025.

1. There was no oral evidence called at the hearing.

The defence pursuant to s 11A

1. An employer relying on a defence pursuant to s 11A carries the onus of proving the defence is made out. The test has two limbs, and both must be satisfied for the defence to be made out.
2. The first element of the defence is whether the conduct relied upon wholly or predominantly caused the injury. The second is that the conduct relied on must also be reasonable.
3. "Wholly" and "predominantly" are separate concepts and a finding of one or the other needs to be considered: see Smith v Rhodes and Traffic Authority of NSW [2008] NSWWCCPD 130.
4. The phrase "wholly or predominantly caused" has been held to mean "mainly or principally caused". The test of causation to be applied is that set out in the oft-cited passage of his Honour Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
5. It must be remembered, in determining whether the first limb of the s 11A defence is satisfied, that there can only be one whole or predominant cause.
6. The second limb of the defence, namely reasonableness, is a question of fact, weighing all the relevant factors apply in the matter. The test of reasonableness is less demanding than the test of necessity, but more demanding than that of convenience: Irwin v Director - General of Education NSWCC 14068/97, (18 June 1998) per Geraghty J.
7. In addition to the end result when considering reasonableness, factors such as the manner in which the conduct was carried out must also be taken into consideration, as should the time taken for the conduct: see Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998 per Truss CCJ).
8. In Commissioner of Police v Minahan (2003) NSWCA 239 (Minahan), the Court noted that in a statute dealing with workers compensation rights, the concept of reasonableness should be given a broad construction unfettered by considerations as to whether the employee can or cannot also be an action at common law against the employer, founded upon a breach of duty of care.
9. Reasonableness is judged having regard to fairness appropriate in the circumstances, including what went before or after a particular action: Melber v Ausbowl Pty Ltd [1997] 15 NSWCCR 454.
10. The conduct relied on by the respondent in this matter is said to have taken place on 6 February 2024, when the applicant's supervisor, Tony Deeb approached him and a conversation ensued about the length of time for which the applicant had been taking a smoke break. The applicant alleges Mr Deeb told him he had been on the break for around 40 minutes, Mr Deeb's version is slightly different though he accepts he told the applicant the time taken had been too long.
11. In any event, Mr Deeb referred the matter to his supervisor, Mr Youssef, who reviewed CCTV footage and stated in his evidence that the break had been for over half an hour.
12. There is some confusion as to whether the applicant's cigarette breaks are entitled to be for 10 or 15 minutes, but in any event, there is no issue they should not be as long as 30 or 45 minutes. Much was made about the actual length of break taken by the applicant in this instance, however, in my view little actually turns on it because there is no question it was longer than the mandated 10 or 15 minutes.
13. Michael Aldridge, who is the transport allocator for the respondent and senior to each of Messrs Deeb and Youssef, also provided a statement. In that document, Mr Aldridge noted a procedure was in place whereby if workers were taking too long on their smoke breaks, they could be designated as the worker's meal break, and shorter breaks would then be allowed later on any given day.
14. For the respondent, Mr Stiles noted there was no evidence of the applicant having stated he was suffering from the effects of any psychological injury before 6 February 2024. He referred to the applicant having visited his general practitioner (GP) on a number of occasions throughout 2023; however, no complaint was made in relation to any issues in the workplace.
15. The difficulty with that submission is the authorities make it clear absence of complaint to a treating practitioner is not of itself a factor in determining whether an applicant has suffered a psychological injury. In Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56, Roche DP stated:

"80. It was correct that Mr Baker did not complain to his general practitioner of bullying until 26 September 2013. However, that fact was not determinative of whether Mr Baker suffered a psychological injury as a result of events that were up to and including that date. The lack of complaint to a general practitioner is a factor an arbitrator is entitled to take into account in considering whether to accept a worker's assertion that certain events occurred and that they affected the worker in a certain way.

1. However, on its own, the absence of such a complaint to Mr Baker's general practitioner until 26 September 2013 was not decisive of whether the events complained of caused a psychological injury and the arbitrator erred in treating it as if it was. That is especially so in circumstances where there is evidence not referred to by the arbitrator, that Mr Baker had complained to the respondents representatives of bullying and harassment from as early as July 2012".
2. This passage is relevant, because contrary to Mr Deeb's assertions in his statement, Mrs Aldridge and Youssef make it clear complaints had been made by the applicant concerning Mr Deeb's treatment of him for up to eight months before 6 February 2024. Those complaints went to matters such as the applicant being allocated too much work and being treated differently or singled out by Mr Deeb.
3. Evidence in support of those prior complaints having been made is found not only in the statements of Messrs Aldridge and Youssef. Mr Youssef also recorded on 7 February 2024 in an internal email that he received a call from the applicant's partner advising he would not be in today due to stress. Mr Youssef asked if that was work-related, and the response was in the affirmative. According to Mr Youssef's note:

"Mrs Mansfield advised Shayne will go see his GP for further guidance. I advise that recent allegations brought to [me] by Shayne were investigated and dealt with accordingly. We discussed what had occurred yesterday and I advised that the leading hand took appropriate action when questioning the operator about his smoke break." (my emphasis)

1. The records of any investigation into complaints made by the applicant surrounding Mr Deeb are not contained within the documentation in evidence. Nevertheless, it is apparent such complaints were made and that they were had been drawn to the attention of management including Mr Youssef.
2. In his statement, Mr Aldridge said:

"28. I am aware of Shayne raising concerns pertaining to workload, the concerns were investigated. We have four pick and packers. The investigation showed Tony and Rob were the highest, Alex was the third and then Shayne was the fourth. Tony loads 90% of the trucks which takes more time than picking and packing. As Shayne does not load as much, he is given bigger orders as he can take his time and be more accurate.

1. I am not aware of any complaints made by other staff which may be relevant to the circumstances of Shayne's injury or claim."
2. In circumstances where a respondent relies on certain conduct in support of a s 11A defence and there is other conduct which an applicant alleges is also causative of their injury, medical evidence ought to be obtained. Mr Stiles submitted that the medical evidence of the treating GPs and psychologists would be enough, and hence the absence in this matter of independent medical examiner [IME] evidence by the respondent is not fatal to the claim pursuant to s 11A.
3. Simply, the respondent relies on a paucity of corroborative treating evidence of any earlier psychological complaint in the applicant's GP records as proof that no such condition existed. However, as the Court of Appeal noted in Chanaa v Zarour [2011] NSWCA 199 at [86], there is no requirement for corroboration in a civil case.
4. Additionally, as Beazley JA (as her Honour then was) (Campbell and Macfarlan JJA agreeing) explained in Patrech v State of New South Wales [2009] NSWCA118 at [77], [91] and [105], it is unlikely that it is necessary (or even a relevant consideration) that a person must identify themselves as psychologically ill (that is, to have understood or believed his or her symptoms to constitute a mental illness) to find a psychological illness. The true question is whether the person was suffering symptoms, which properly diagnosed, constitute an illness (quoted by Roche DP in Baker at [84]).
5. The respondent boldly offers no expert opinion on causation in circumstances where it carries the onus of proving the conduct it relies on pursuant to s 11A is the whole or predominant cause of the applicant's injury and where its own lay witnesses have stated the applicant had previously made complaints surrounding his treatment by Mr Deeb and regarding over work. That is, the respondent's own witnesses confirm the existence of the complaints regarding earlier matters which the applicant seeks to rely on in support of his case.
6. In Hamad v Q Catering Limited [2017] NSWWCC PD6 (15 March 2017) (Hamad), the respondent employer was unable, on the available evidence and in the absence of any medical evidence dealing appropriately with the topic, to discharge its onus of proving the workers psychological injury resulted wholly or predominantly from its reasonable action taken or proposed to be taken with respect to discipline.
7. The effect of the decision in Hamad is that reliance on factual material alone will not always be sufficient to make out a s 11A defence. Where factual evidence is adequate, it is often in cases where there is an allegation of a single event which has given rise to psychological injury. This is not the case in this matter, where the applicant asserts it was a build-up of many factors over time.
8. In Hamad, Snell DP said at [88]:

"There may be cases in which causation of psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A (1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the applicant's statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A (1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any cause or contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the arbitrator's common knowledge and experience." (my emphasis)

1. In my view, the facts of this matter fall squarely within those in Hamad. Both parties took the Commission to various clinical entries made by the applicant's GP, including but not limited to those on the day after the events relied on by the respondent.
2. On 7 February 2024, the applicant attended on his GP Dr Wang. The clinical entry records following:

Appetite bad eight months, wife thinks lost a bit of weight

1. On 9 February 2024, the applicant again attended on Dr Wong. That entry records the following:

"Bullied at work for eight months, under pressure from team leader.

Feeling hesitant to go to work because of team leader.

Giving him more works, work more pressure and bullying

1. This history is broadly consistent with that provided to the applicant's IME, Dr Khan and with the applicant's statement evidence. The respondent attacked Dr Khan's opinion as being unreliable owing to the history provided to him by the applicant not being consistent with the clinical material, namely an absence of complaint to the applicant's GP in the lead up to

6 February 2024. 2. However, the applicant's contemporaneous attendances upon his GP after 6 February 2024 do make reference to long-term issues in the workplace, not merely the events of

6 February 2024. In my view, this accords broadly with the submission of Ms Grotte, namely the events of 6 February 2024 were the last straw in a long line of issues which the applicant had been dealing with in the workplace. Dr Khan noted the applicant has suffered an injury in the nature of a disease of gradual process, rather than one which was caused by the incidents only on 6 February 2024. 3. Relevantly, in the face of that material, the respondent does not provide any psychiatric opinion to establish causation on its behalf. The respondent bears the onus of proving its conduct relied on was the whole or predominant cause of the applicant's accepted injury. 4. In circumstances where the applicant seeks to rely on alternative factual matters to those on which the respondent relies, the respondent cannot in my view discharge its onus of proof without a supportive expert opinion on causation. Accordingly, the defence under s 11A must fail. 5. In any event, the respondent has not satisfied the reasonableness requirements of s 11A. Having found the respondent had not discharged its onus of proof concerning whole or predominant cause, I do not propose to provide detailed reasons in relation to reasonableness. However, even if the events of 6 February 2024 were held to be the whole or predominant cause of the applicant's injury, in my view the respondent's failure to simply deescalate the situation by having the applicant's extended smoko treated as his meal break, as Mr Aldridge said was open to it, unnecessarily and unreasonably escalated the issue and compounded it. There is no explanation as to why the respodnent did not take this simple course of action, which is one clearly within its contemplation given the rule was brought in owing to past experiences of workers taking longer breaks than those to which they were entitled. 6. Accordingly, I find the applicant's injury was not wholly or predominantly caused by the respondent's reasonable actions in relation to discipline.

1. There has been no evidence offered to challenge the applicant's contention he is totally incapacitated as a result of his injury. There was also no evidence to challenge the relevant PIAWE calculations contained within the Application. Accordingly, having found in the applicant's favour in relation to liability, I propose to adopt the figures set out in that document and make the following findings.
2. The applicant's PIAWE at the time of his injury were $1,221.40.
3. In accordance with the applicant's wages schedule attached to the application, the respondent will be ordered to pay the applicant weekly compensation as follows:

(a) pursuant to s 36 of the 1987 Act:

(i) from 6 February 2024 to 7 May 2024 at the rate of $1,171.59,

(b) pursuant to s 37 of the 1987 Act:

(i) from 8 February 2024 to 30 September 2024 at the rate of $954.04 per week;

(ii) from 1 October 2024 to 31 March 2025 at the rate of $972.93 per week, and

(iii) from 1 April 2025 to date and continuing at the rate of $977.12 per week, subject to further indexation from 1 October 2025.

1. The parties will be granted liberty to apply and to make further submissions in relation to the calculation of the relevant weekly compensation amounts.

1. The applicant's claim for s 60 expenses was one seeking a general order and follows the event of the findings in relation to liability. Having found for the applicant a liability, it follows there will be a general order that the respondent pay the applicant's reasonably necessary medical and treatment expenses.

1. For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.