Legal Research
Cases
BGV v Waverley Council

BGV v Waverley Council

Link copied

Case Copied 11 January 2024 62 min read

Contents

On this page

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	BGV v Waverley Council [2024] NSWPICPD 2
APPELLANT:	BGV
RESPONDENT:	Waverley Council
INSURER:	StateCover Mutual Ltd
FILE NUMBER:	A1-W3344/22
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	11 January 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 10 January 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – The test of ‘main contributing factor’ to establish ‘injury’ pursuant to section 4(b)(ii) of the Workers Compensation Act 1987 – application of AV v AW [2020] NSWWCCPD 9; meaning of ‘acceleration’ in s 4(b)(ii) – application of Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626, 634; whether Watts v Rake [1960] HCA 58; 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; 114 CLR 164 can be applied to the construction of s 4(b)(ii); onus of proof of ‘injury’ pursuant to s 4(b)(ii) where multifactorial causation – Commonwealth v Muratore [1978] HCA 47; 141 CLR 296; extent to which expert medical evidence is required in assessing causation of psychological injury – discussion of Hamad v Q Catering Ltd [2017] NSWWCCPD 6; allegation of appealable error where issue not raised at first instance – application of Brambles Industries Ltd v Bell [2010] NSWCA 162; weight of medical evidence – application of Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr L Robison, counsel
Coutts Lawyers & Representatives
Respondent:
Mr A Coombes, counsel
Bartier Perry Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr C Burge
DATE OF MEMBER’S DECISION:	10 January 2023

INTRODUCTION AND BACKGROUND

BGV (the appellant) worked with Waverley Council (the respondent) from November 1997. She had undertaken certificate courses at TAFE, in greenkeeping, turf management and horticulture, whilst on day release from Silverwater Women's Correctional Centre where she was an inmate for a number of years. She obtained full-time work as an “Open Spaces Team Member” and worked in this role for about 22 years. At different times she performed gardening work in the nursery, outdoor duties at Waverley Cemetery and the cleaning of amenities, public spaces and work depots. She worked at Bondi Beach from 1998 and at Syd Einfeld depot from June 2019.[1]
[1] Appellant’s statement 4/5/22, [8]–[13], Application to Resolve a Dispute (ARD), pp 1–2.
In her statement the appellant describes various occasions where she was “bullied and harassed” by work colleagues. She refers to abuse based on her gender and sexual orientation. She refers to an issue regarding the availability of toilet facilities for female employees leading to a complaint to the Anti-Discrimination Board. The appellant states that “around 2000” she found a deceased woman on the grassed area of North Bondi Beach, which she found “extremely confronting”. She states she did not receive counselling or emotional support and felt “completely lost and abandoned”. The appellant states that she was not given the same…

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.

Keep reading for free

Create a free CaseChat account to read BGV v Waverley Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NSWPICPD 2
Decision Date: 11 January 2024

CaseChat Overview and Summary

The matter before the court was a dispute between BGV and Waverley Council, regarding the interpretation and application of the Workers Compensation Act 1987 in the context of a workers' compensation claim. Specifically, the issue was whether BGV's psychological injury was caused by the council's failure to provide a safe working environment, and if so, whether the council could be held liable for compensation. The case was heard in the NSW Civil and Administrative Tribunal.

The primary legal issue before the court was the interpretation of section 4(b)(ii) of the Workers Compensation Act 1987, which deals with the definition of 'injury' and the concept of 'acceleration'. The court was required to determine whether the council's actions constituted a'main contributing factor' in causing BGV's psychological injury, and whether the concept of 'acceleration' applied to psychological injuries. The court also needed to consider the onus of proof in cases of multifactorial causation, and the extent to which expert medical evidence is required in assessing causation of psychological injury.

The court found that the council's actions did not constitute a 'main contributing factor' in causing BGV's psychological injury, and that the concept of 'acceleration' did not apply to psychological injuries. The court held that the onus of proof in cases of multifactorial causation lies with the claimant, and that expert medical evidence is required to establish causation of psychological injury. The court also found that the issue of appealable error had not been raised at first instance, and therefore could not be considered on appeal. Ultimately, the court dismissed BGV's claim for workers' compensation.

The court's final orders were that BGV's claim for workers' compensation be dismissed, and that Waverley Council be entitled to its costs of the proceeding. The court held that the council was not liable for compensation for BGV's psychological injury, as it had not been established that the council's actions constituted a 'main contributing factor' in causing the injury. The court also found that the concept of 'acceleration' did not apply to psychological injuries, and that the onus of proof in cases of multifactorial causation lies with the claimant. Finally, the court held that expert medical evidence is required to establish causation of psychological injury, and that the issue of appealable error had not been properly raised.

Orders