Bi-Lo Pty Ltd v Burns

Bi-Lo Pty Ltd appealed against a decision of an arbitrator who had awarded damages to the respondent, Mr. Burns, for psychological injury sustained in the course of employment. The dispute was heard by the Industrial Relations Commission of New South Wales. The central legal issue before the Commission was how to assess the degree of incapacity of a worker who had sustained psychological injury, and in particular, whether the work performed on a rehabilitation program was to be taken into account in assessing the worker’s incapacity. The principles relevant to this issue had been set out in Lawarra Nominees Pty Ltd v Wilson and Steggles v Aguirre.

The Commission confirmed the Arbitrator’s approach to assessing the degree of incapacity. The Arbitrator had concluded that the work performed on the rehabilitation program was to be disregarded in assessing incapacity. The Commission found that this approach was consistent with the relevant authorities and was therefore correct. The Arbitrator’s assessment of the degree of incapacity was not challenged on appeal. The appeal was dismissed with costs.