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Challenging a Section 11A Defence in your workers compensation claim

Challenging a Section 11A Defence in your workers compensation claim

Published on February 10, 2025 by Hanaan Indari

The recent decision in Fichera v State of New South Wales Police Force [2024] NSWPIC 255 (16 May 2024) offers valuable insights into the hurdles employers must overcome to establish a Section 11A defence under the Workers Compensation Act 1987 (NSW) (WC Act). Member Benk’s analysis clarifies the principles governing Section 11A, particularly in the context of performance appraisals, providing plaintiff lawyers with a framework to critically evaluate such defences.

Under Section 11A, an employer must prove:

  • Their actions were the whole or predominant cause of the worker’s injury.
  • Their actions fell within the categories outlined in Section 11A; and
  • Their actions were reasonable.

This article breaks down these elements and identifies opportunities for plaintiff lawyers to challenge an employer’s defence.

Examining causation

A key element of a Section 11A defence is proving that the employer’s actions were the whole or predominant cause of the injury. Plaintiff lawyers should scrutinise this element by:

  • Challenging the employer’s interpretation of “wholly” and “predominantly” – while “wholly” means entirely, “predominantly” generally means “mainly or principally caused” (Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92). Employers need to satisfy only one of these definitions, but inconsistencies in their argument may weaken their case.
  • Testing the reliability of medical evidence – medical evidence is critical for establishing causation (Hamad v Q Catering Limited [2017] NSWWCCPD 6). Inconsistent or vague medical reports can undermine an employer’s claims.
  • Highlighting alternate causes – causation is a factual determination (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452). Evidence of non-employment-related factors contributing to the injury may weaken an employer’s case.

By focusing on these areas, plaintiff lawyers can arguably create doubt about whether the employer’s actions were indeed the main cause of the injury.

Scrutinising the classification of actions

For a Section 11A defence to succeed, the employer’s actions must fall within one of the prescribed categories, such as performance appraisal. Plaintiff lawyers should:

  • Analyse whether the action qualifies as a performance appraisal – performance appraisals must be discrete and formal processes, not vague or ongoing assessments (Irwin v Director General of School Education (Unreported, NSWCC 14068/97)). An extended or undefined process may fail to meet this standard (Dunn v Department of Education and Training [2000] NSWCC 11).
  • Examine procedural compliance – employers must adhere to their own defined performance appraisal processes. Any deviations can be used to argue that the actions were not legitimate performance appraisals.

By challenging whether the employer’s actions fit the statutory category, plaintiff lawyers can potentially undermine the defence.

Challenging reasonableness

The reasonableness of the employer’s actions is often the most contentious aspect of a Section 11A defence. Plaintiff lawyers should:

  • Consider any unfairness – reasonableness requires fairness in both the implementation and the outcome of the actions (Ivanisevic v Laudet Pty Ltd, Unreported, 24 November 1998). Any lack of transparency or unfair treatment may be used to challenge this element.
  • Focus on procedural flaws – while compliance with employer protocols is relevant, such compliance does not establish reasonableness if the protocols themselves are unreasonable (Rail Corporation NSW v Aravanopules [2019] NSWWCCPD 65).
  • Argue proportionality – reasonableness does not require perfection but demands an objective assessment of fairness and balance in the circumstances (Melder v Ausbowl Pty Ltd [1997] 15 NSWCCR 454). Disproportionate or overly harsh actions can undermine the defence.
  • Consider timing and context – the court evaluates reasonableness based on the circumstances known to the employer at the time of the action (Northern NSW Local Health Network v Heggie [2013] NSWCA 225). Evidence of rushed or reactive decisions can support an argument that the employer acted unreasonably.

These strategies enable plaintiff lawyers to rigorously contest the reasonableness of the employer’s actions.

Practical implications for plaintiff lawyers

The decision in Fichera v State of New South Wales Police Force provides a comprehensive framework for assessing and challenging Section 11A defences. Plaintiff lawyers should:

  • Carefully review medical evidence and causation arguments to identify gaps or inconsistencies;
  • Critically assess whether the employer’s actions genuinely fall within the prescribed statutory categories;
  • Highlight procedural and substantive flaws in the employer’s processes;
  • Emphasise fairness, proportionality, and the broader context to contest reasonableness.

By methodically addressing these elements, plaintiff lawyers can effectively counter Section 11A defences and advocate for their clients’ rights under NSW workers compensation legislation.

Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you.

Disclosure and important note: This article is based on our own legal research and thinking. Some of its content has been drafted with the assistance of artificial intelligence. The authors have checked and approved this article, including the AI generated content, for publication.

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