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Section 11A

1987 Act s 11A No compensation for psychological injury caused by reasonable actions of employer >>

Hobden v South East Illawarra AHS [2010] NSWWCCPD 13. Keating P.

A Wollongong Hospital nurse administered insulin maladroitly, and came under inquiry. She claimed expedited assessment on psychological injury.

Arbitrator Cahill dismissed her claim, finding 1987 Act s 11A(1) defence of reasonable action to discipline. There was no issue to injury, or substantial contributing factor.

Keating P allowed the worker’s appeal with costs.

The Commission president said [124]: “The burden of proof of a defence under s 11A is not satisfied merely by evidence that it is possible that a causal relationship exists between the employment and the injury: Selstam PL v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 at 275.”

Later [129], “In order to establish a section 11A defence, ‘predominantly caused’ by the employer’s actions, is assessed on the basis of whether those actions are stronger than, and prevail over, any other causes of the injury: Jackson v Work Directions Aust PL [1998] NSWCC 45; (1998) 17 NSWCCR 70.”

Keating P slated antecedent process.

At [139], his Honour said: “The s 74 notice issued by the employer was defective and is unacceptable. The broad-brush assertion that the employer ‘acted reasonably in their actions’ does not comply with the requirements of s 74.

"It does not properly identify the action or actions the employer relied upon as having been the whole or predominant cause of the psychological injury. That is not sufficient,” noting RTA v Gentle [2009] NSWWCCPD 111 and Gray v Busways Gosford &c [2009] NSWWCCPD 124.

And [140], “If an insurer or employer disputes liability in respect of a claim, or any aspect of a claim, it is required to give the claimant proper notice of the dispute.

"A s 74 notice must be in plain language and clearly and succinctly state the reasons the insurer disputes liability and the issues relevant to the dispute.

“If s 11A is relied on, the insurer must state which of the various parts of s 11A(1) it relies on - transfer or demotion or promotion, etc - and the basis for that reliance. The section is not invoked merely because an injury resulted from the employer’s reasonable actions.”

Later [147], Keating P said: “The onus of establishing a defence under section 11A is on the employer: Ritchie v DoCS [1998] NSWCC40; (1998) 16 NSWCCR 727Dept of Education &c v Sinclair [2005] NSWCA 465.”

Further >>

Annotated 1987 Act annotation

[74 +] In a claim for compensation for psychological injury, the Commission has to decide whether the whole or predominant cause of the psychological injury was the employer’s action or proposed action with respect to one or more of the actions listed in s 11A(1), and, if so, whether the action or proposed action was reasonable: Manly Pacific International Hotel PL v Doyle [1999] NSWCA 465; 19 NSWCCR 181 at [4].

The onus of establishing a s 11A defence is on the employer: Ritchie v Dept of Community Services[1998] NSWCC 40; (1998) 16 NSWCCR 727Dept of Education &c v Sinclair [2005] NSWCA 465.

On the causation question, the Commission has held that “predominantly caused” means “mainly or principally caused”: Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92.

On the reasonableness question, the Court of Appeal considered the meaning of the words “reasonable action” in Commissioner of Police v Minahan [2003] NSWCA 239, where Foster AJA (with Sheller JA agreeing) cited with approval the following passage from Irwin v Director-General of School Education (unrep, Compensation Court, 18.6.98) where Geraghty J said:

“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness.”

The assessment of whether an employer has acted reasonably requires an objective assessment of the conduct involved: Jeffery v Lintipal PL [2008] NSWCA 138 at [50]. I intend to apply the above principles in Mr Chisholm’s case: Chisholm v Thakral Finance &c [2011] NSWWCCPD 39. Roche DP.


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