Fell v Willoughby City Council - [2024] NSWPIC 224

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Fell v Willoughby City Council [2024] NSWPIC 224
APPLICANT:	David Fell
RESPONDENT:	Willoughby City Council
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	1 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits and medical expenses as a result of psychological injury; respondent disputed that employment was the main contributing factor to alleged injury; respondent maintained it had a defence pursuant to section 11A, relying on its actions with respect to discipline, performance appraisal and/or provision of employment benefits; consideration of Department of Education and Training v Sinclair, Pirie v Franklins Ltd, Irwin v Director-General of Education, AV v AW, Ponnan v George Weston Foods Ltd, Kooragang Cement Pty Ltd v Bates, Fisher v Nonconformist Pty Ltd, Northern NSW Local Health Network v Heggie, and Hamad v Q Catering Limited; Held – applicant sustained psychological injury, being the aggravation, acceleration, exacerbation or deterioration of a disease, to which employment was the main contributing factor; injury was wholly or predominantly caused by respondent’s action with respect to discipline; respondent’s action was reasonable; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, David Fell (Mr Fell) is employed by the respondent, Willoughby City Council (the Council) as a ranger – compliance.
The applicant claims to have sustained a psychological injury as a result of various events arising out of or in the course of his employment with the Council, with a deemed date of injury of 26 April 2023.
The applicant apparently notified the respondent of the alleged injury on 9 May 2023.
On 16 May 2023, the respondent’s insurer, StateCover Mutual Limited (StateCover), advised Mr Fell that it had decided not to commence provisional payments of weekly compensation to him “for the psychological system in general injury you sustained in the period leading up to 27/04/2023”.
StateCover’s reason for not commencing provisional payments was that there was insufficient medical information to establish that there was an injury. The applicant would be provisionally entitled to the cost of medical, treatment, and rehabilitation expenses of up to $6,000.
On 13 June 2023, StateCover issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
StateCover relied on “factual disputes”. It maintained that, to the extent that the applicant relied on factually disputed events as having contributed to, or been the main contributing factor to, his alleged injury, or the aggravation of his pre-existing disorder, the events either did not occur, or did not occur in the manner alleged. They were therefore not the main contributing factor to the onset or aggravation of the applicant’s alleged psychological injury or disorder.
StateCover maintained that the applicant’s alleged psychological injury had been wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect…

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: [2024] NSWPIC 224
Decision Date: 1 May 2024

CaseChat Overview and Summary

In Fell v Willoughby City Council, the applicant, Fell, sought compensation for a psychological injury sustained during his employment with the respondent, the Willoughby City Council. The dispute centred on whether the Council's actions were the main contributing factor to the applicant's psychological injury and, if so, whether the Council could avail itself of a statutory defence under section 11A of the Workers Compensation Act 1987. The case was heard in the Industrial Division of the Supreme Court of New South Wales.

The primary legal issue was whether the applicant's psychological injury was caused by his employment with the Council, and if so, whether the Council could rely on section 11A as a defence. This section allows an employer to argue that a psychological injury was not caused by the employment if it was wholly or predominantly caused by the employee's disciplinary action, performance appraisal, or provision of employment benefits. The court had to consider several precedents in determining the application of this section.

The court examined the evidence and the relevant authorities, including Department of Education and Training v Sinclair, Pirie v Franklins Ltd, Irwin v Director-General of Education, AV v AW, Ponnan v George Weston Foods Ltd, Kooragang Cement Pty Ltd v Bates, Fisher v Nonconformist Pty Ltd, Northern NSW Local Health Network v Heggie, and Hamad v Q Catering Limited. It found that the applicant did sustain a psychological injury, which was the aggravation, acceleration, exacerbation, or deterioration of a pre-existing disease, and that his employment was the main contributing factor. However, the court also determined that the Council's actions with respect to discipline were reasonable and, as such, the applicant's injury was wholly or predominantly caused by those actions. Consequently, the Council could rely on section 11A as a defence.

Accordingly, the court dismissed the applicant's claim for weekly benefits and medical expenses.

Orders