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Wholly or predominantly caused

Carroll v Department of Corrective Services [2010] NSW WCC 256. Bell, Arb. 15.6.10.

21. I propose to deal first with the issue of whether the actions of the employer relied on by the Respondent under section 11A of the 1987 Act were wholly or predominantly the cause of Mr Carroll’s condition.

22. In Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd [2008] NSWWCCPD 96, Deputy President Roche said at paragraph 79:

“... Acting Deputy President Handley considered the phrase 'predominantly caused' in Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92 and applied the dictionary meaning (at [24]) of 'mainly or principally caused'. I agree with that definition and intend to apply it in the present matter.”

23. This same approach was followed by Acting Deputy President Snell in Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130.

24. In arriving at findings as to causation for Mr Carroll’s injury in terms of section 11A it is necessary to look at the particular circumstances: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, as observed by Deputy President Roche in Temelkov.

25. The undisputed psychological injury here is Adjustment Disorder with Anxiety and Depressed Mood. The opinions of the practitioners as to the cause of the injury are only one part of the evidence to be considered as to whether the 11A defence is made out. However, it is clear from the evidence overall that there is more than one material element.


38. I find that that the actions of the employer relied on by the Respondent were not ‘wholly or predominantly’ the cause of the psychological injury on approximately 3 September 2008.

Having made that finding it is not necessary to deal with the remaining elements, concerning whether the actions of the employer fall into the categories of discipline and transfer; or whether they were reasonable.

Section 11A of the 1987 Act is not applicable, and the Respondent’s defence claimed under that section fails.

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