Freeth v Volvo Group Australia Pty Ltd

Case [2025] NSWPICPD 78

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

Freeth v Volvo Group Australia Pty Ltd [2025] NSWPICPD 78

APPELLANT:

Jayne Freeth

RESPONDENT:

Volvo Group Australia Pty Ltd

INSURER:

Employers Mutual NSW Limited

FILE NUMBER:

A1-W28517/24

PRESIDENTIAL MEMBER:

President Judge Phillips

DATE OF APPEAL DECISION:

5 November 2025

ORDERS MADE ON APPEAL:

1.    The Certificate of Determination dated 16 April 2025 is confirmed.

CATCHWORDS:

WORKERS COMPENSATION – operation of s 46 of the Workers Compensation Act 1987 – House v the King [1936] HCA 40; 55 CLR 499 considered and applied – Member not in error by exercising discretion under s 46 to prevent dual benefits of the same kind – separate injuries with different incapacities not germane to the exercise of the discretion under s 46 of the 1987 Act – consideration of requirement to give notice of a dispute under s 78 of the Workplace Injury Management and Workers Compensation Act 1998

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr B McManamey, counsel

Turner Freeman Lawyers

Respondent:

Mr P Perry, counsel

Hicksons Lawyers

DECISION UNDER APPEAL:

Freeth v Volvo Group Australia Pty Ltd [2025] NSWPIC 153

MEMBER:

Ms R Homan

DATE OF MEMBER’S DECISION:

16 April 2025

INTRODUCTION AND BACKGROUND

  1. Jayne Freeth (the appellant) was employed by Volvo Group Australia Pty Ltd (the respondent) as a store person. On 31 August 2021[1] the appellant sustained a physical injury to her bilateral shoulders and elbows for which she received and continues to receive compensation.

    [1] Date of injury recorded in the certificates of capacity, Application to Lodge Additional Documents dated 19 March 2025.

  2. The appellant subsequently made a claim for a primary psychological injury sustained during the course of her employment between 2017 to 20 August 2024, the date her employment was terminated.

  3. The respondent issued a dispute notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 12 September 2024 disputing that the appellant had sustained a primary psychological injury for the purposes of s 4 of the 1987 Act and raised a defence pursuant to s 11A(1) of the 1987 Act that the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to transfer and/or dismissal. The respondent also disputed that the appellant was totally or partially incapacitated for work as a result of the injury.

  4. The appellant commenced proceedings in the Personal Injury Commission (the Commission) on 8 November 2024 claiming weekly benefits and medical expenses.[2] The matter was listed for conciliation conference and arbitration hearing on 21 February 2025. During the conciliation conference the parties reached agreement on the majority of the issues in dispute. The respondent conceded that the appellant had sustained a primary psychological injury deemed to have occurred on 20 August 2024 and that a defence pursuant to s 11A(1) of the 1987 Act did not arise. The parties agreed that the appellant had no capacity…

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Freeth v Volvo Group Australia Pty Ltd [2025] NSWPICPD 78
Case
[2025] NSWPICPD 78
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CaseChat Overview and Summary

The case of Freeth v Volvo Group Australia Pty Ltd involved the appellant, Freeth, contesting a decision by a Member of the Workers Compensation Commission of New South Wales, which had exercised its discretion under section 46 of the Workers Compensation Act 1987. The central issue was whether the Member was correct in preventing Freeth from receiving dual benefits for separate injuries that resulted in different incapacities. The case also touched on the necessity for insurers to provide notice of disputes under sections 78 and 79 of the Workplace Injury Management and Workers Compensation Act 1998, and the limitations on referring disputes to the Commission as outlined in section 289A of the 1998 Act.

The legal issues before the court encompassed the interpretation and application of section 46 of the 1987 Act, particularly whether separate injuries with different incapacities could be grounds for the Member's exercise of discretion to prevent dual benefits. Furthermore, the court had to consider whether the Member's decision was influenced by the requirement for insurers to give notice of a dispute, as outlined in sections 78 and 79 of the 1998 Act, and whether the Commission could refer a dispute for determination if it concerned previously unnotified matters, as stipulated in section 289A of the 1998 Act. The court's task was to determine if the Member's decision was in error and whether it was appropriate to allow Freeth to receive compensation for both injuries.

The court found that the Member was not in error when exercising the discretion under section 46 to prevent Freeth from receiving dual benefits for separate injuries with different incapacities. The reasoning was grounded in the principle that the Member's decision was not influenced by the extent of the incapacities, but rather by the nature of the separate injuries. The court referred to the case of House v the King to support its finding that the Member's discretion was correctly applied. Additionally, the court examined the notice requirements under sections 78 and 79 of the 1998 Act, concluding that these provisions did not affect the Member's decision. The court also noted that while section 289A of the 1998 Act limited the referral of disputes to the Commission, it did not apply to the circumstances of this case.

The final orders of the court were that the appeal by Freeth against the Member's decision was dismissed, affirming the Member's exercise of discretion under section 46 of the Workers Compensation Act 1987. The court upheld the Member's finding that separate injuries with different incapacities did not warrant dual benefits and that the notice requirements under the 1998 Act did not influence the decision. Consequently, Freeth's claim for compensation for both injuries was denied.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Sections 78 and 79 of the 1998 Act outline the notice requirements on insurers. Relevantly:“78 Insurer to give notice of decisions(1) An insurer must give notice in accordance with this Division of any decision of the insurer—(a) to dispute liability in respect of a claim or any aspect of a claim, or(b) to discontinue payment to a worker of weekly payments of compensation, or reduce the amount of the compensation.…79 How notice of decision is given(1) A notice required by this Division must be given—(a) to the claimant or worker concerned, and(b) in the case of a notice of a decision to dispute liability—to the worker’s employer, if required by the regulations.(2) The notice must contain a concise and readily understandable statement of the reason for the insurer’s decision and of the issues relevant to the decision.(3) In addition, notice of a decision to dispute liability for a claim for compensation must identify any provision of the workers compensation legislation on which the insurer relies to dispute liability.…” Section 289A of the 1998 Act provides:“289A Further restrictions as to when a dispute can be referred to Commission(1) A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.(2) A matter is taken to have been previously notified as disputed if—(a) it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or(b) it concerns matters, raised in writing between the parties before the dispute is referred to the President for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.(3) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.(4) Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.” The appellant submits the following:“13. It is well established that a worker can be entitled to more than one award of compensation where he or she has suffered more than one injury which results in a different incapacity. 14. The cases that establish this principle all focus on the restrictions that flow from the separate injuries. Thus in [Alcan] there were two awards because the incapacities related to different body systems. In [Cordina] the opposite conclusion was reached because the two injuries caused the same restrictions. 15. The authorities do not support the proposition that the incapacity is to be identified by the extent of the incapacity. In this case there are separate restrictions as found by the Member such that section 46 does not apply.” The appellant concludes by stating that it is doubtful that s 46 applies to cases where there are two injuries, citing Miller v CSR Timber Products Pty Ltd.[28][28] (1993) 29 NSWLR 611.

Ratio Decidendi

Legal Principle Established

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