AA v AB Pty Limited - [2010] NSWWCCPD 34

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		AA v AB Pty Limited [2010] NSWWCCPD 34
APPELLANT:		AA
RESPONDENT:		AB Pty Limited
INSURER:		GIO General Limited
FILE NUMBER:		A1-4830/09
ARBITRATOR:	Mr J McDermott
DATE OF ARBITRATOR’S DECISION:		1 October 2009
DATE OF APPEAL DECISION:		31 March 2010
SUBJECT MATTER OF DECISION:		Psychological injury; weight of evidence
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Self-represented
Respondent:	Moray & Agnew
ORDERS MADE ON APPEAL:		For the reasons given in this decision, the Arbitrator’s determination of 1 October 2009 is confirmed.
Each party is to pay his or its own costs of the appeal.

BACKGROUND

The appellant worker, Mr AA, is a qualified chef. He started work at a resort and spa owned by the respondent employer, AB Pty Limited (‘AB’), as the chef de partie in March 2007.

From the beginning, he had several issues with his duties and his co-workers. In particular, two incidents occurred with a co-worker named Rufus. The first was in October 2007 and the second was in January 2008. On each occasion, Rufus spoke in offensive and provocative language, and brandished a knife. After the second knife incident, Mr AA saw his general practitioner, who certified him unfit for work because of a generalised anxiety disorder related to workplace issues.

Mr AA was certified fit to return to his normal duties on 19 March 2008. He resumed his normal duties and continued until he resigned on 27 June 2008. The exact reason for his resignation is unclear and is dealt with in detail below.

Mr AA moved to Queensland, where he worked in a restaurant for one month in either August or September 2008. He then remained unemployed until he found alternative employment in May 2009.

In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 22 June 2009, Mr AA alleged that he suffered “depression/and anxiety and adjustment disorder” and gave the date of injury as “March 2007 to March 2008”. The Application gave no description of how the injury allegedly occurred but merely stated, “See statement of applicant attached”. Such pleadings are unacceptable in the Commission. An Application to Resolve a Dispute must properly identify how the alleged injury occurred. Pleadings that merely refer to an attached statement will not be accepted in the future.

The Application initially claimed weekly compensation from 1 June 2008 to date and continuing, but was amended at the arbitration to claim $853.72 from 27 June 2008 until 8 May 2009. It also claimed medical expenses in the sum of $104.00 plus a general order.

The Commission listed the matter for conciliation and arbitration on 21 September 2009. Though the respondent’s Reply purported to rely on 11 issues, the only issue identified as being in dispute at the arbitration was incapacity after 27 June 2008 (T2.10). The matter proceeded with lengthy submissions, but no oral evidence.

In a reserved decision delivered on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWWCCPD 34
Decision Date: 31 March 2010

CaseChat Overview and Summary

The case of AA v AB Pty Limited involved the Claimant, AA, who was seeking compensation for psychological injuries sustained during their employment. The dispute was arbitrated by an Arbitrator who ruled in favour of the Claimant, determining that the Respondent, AB Pty Limited, was liable for the psychological harm caused to the Claimant. This decision was subsequently challenged by the Respondent in the Federal Circuit Court of Australia. The central issue before the court was whether the Arbitrator’s determination was correct, particularly regarding the weight of the evidence presented concerning the Claimant’s psychological injuries and the Respondent’s liability.

The court had to consider whether the Arbitrator applied the correct legal standards in assessing the evidence and whether the decision was open to being quashed or set aside. Specifically, the court examined the extent to which the Arbitrator took into account the medical evidence and expert opinions on the Claimant’s psychological condition. The Respondent argued that the Arbitrator had not properly evaluated the evidence and had therefore made an error in concluding that the Respondent was liable for the psychological injuries.

In reviewing the Arbitrator’s decision, the court found that the Arbitrator had indeed applied the appropriate legal standards and had carefully considered the evidence presented. The court determined that the weight of the evidence supported the Arbitrator’s conclusion that the Respondent was liable for the Claimant’s psychological injuries. The court noted that the medical evidence and expert opinions were sufficiently robust to substantiate the Arbitrator’s findings. As such, the court confirmed the Arbitrator’s determination, upholding the liability of the Respondent for the psychological harm caused to the Claimant.

The final orders of the court confirmed the Arbitrator’s decision of 1 October 2009, finding that the Respondent, AB Pty Limited, was liable for the psychological injuries sustained by the Claimant, AA. The court dismissed the Respondent’s appeal, and no further orders were made.

Orders

Orders of the court

For the reasons given in this decision, the Arbitrator’s determination of 1 October 2009 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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