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

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Freeth v Volvo Group Australia Pty Ltd [2025] NSWPIC 153
APPLICANT:	Jayne Freeth
RESPONDENT:	Volvo Group Australia Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	16 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation; primary psychological injury; concessions made at conciliation/arbitration regarding liability and incapacity; quantification of entitlement to weekly compensation where applicant already in receipt of weekly benefits on the basis of having no current work capacity as a result of a separate physical injury; application of section 46; Held – both injuries had resulted in the applicant being incapacitated for work in her pre-injury duties and any other suitable employment; the discretion in section 46 was enlivened and ought to be exercised; orders made for the payment of weekly compensation under sections 36 and 37 and for such amounts to be reduced by the amount paid in respect of the physical injury.
DETERMINATIONS MADE:	The Commission orders: 1. Subject to Order 3 below, the respondent to pay the applicant weekly compensation pursuant to s 36(1) of the Workers Compensation Act 1987 on the basis of the agreed pre-injury average weekly earnings figure of $1,410, as periodically indexed, for 13 weeks from 20 August 2024. 2. Subject to Order 3 below, after 13 weeks, the respondent to pay the applicant weekly compensation pursuant to s 37(1) of the Workers Compensation Act 1987 on the basis of the agreed pre-injury average weekly earnings figure of $1,410, as periodically indexed, to date and continuing. 3. Pursuant to s 46 of the Workers Compensation Act 1987, the weekly compensation payable by the respondent to the applicant pursuant to ss 36(1) and 37(1) above is reduced by the amount already paid by the respondent pursuant in respect of her physical injury on 31 August 2021 (claim number 4848842). A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Ms Jayne Freeth (the applicant) was employed by Volvo Group Australia Pty Ltd (the respondent) as a storeperson.
In the course of her employment with the respondent, the applicant sustained physical injuries to her shoulders and elbows in respect of which she has been, and remains, in receipt of compensation.
The applicant subsequently claimed to have received a primary psychological injury due to differential scrutiny, treatment and bullying in the course of her employment with the respondent between 2017 and 20 August 2024, on which date her employment was terminated.
Liability to pay compensation in respect of the psychological injury was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 12 September 2024.
The respondent’s insurer disputed that the applicant had sustained an injury for the purposes of s 4 of the Workers Compensation Act 1987 (the 1987 Act). A defence under s 11A(1) of the 1987 Act was also raised on the ground that the injury was wholly or…

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: [2025] NSWPIC 153
Decision Date: 16 April 2025

CaseChat Overview and Summary

The matter of Freeth v Volvo Group Australia Pty Ltd involved a dispute regarding the calculation of weekly compensation entitlements under the Workers Compensation Act 1987. The applicant, Freeth, sought compensation for both a primary psychological injury and a physical injury. The case was heard and determined by the relevant tribunal.

The legal issues before the tribunal included whether the applicant's psychological injury was a primary injury, whether the tribunal had the discretion to quantify the weekly compensation under section 46, and how to appropriately calculate the weekly compensation where the applicant was already receiving compensation for a separate physical injury that had rendered her incapable of work. The tribunal needed to determine the extent to which the psychological injury contributed to the applicant's incapacity for work and whether the compensation for the physical injury should be deducted from the total weekly compensation.

The tribunal found that both the psychological and physical injuries had resulted in the applicant being incapacitated for work in her pre-injury duties and any other suitable employment. It was held that the tribunal's discretion under section 46 was indeed enlivened and should be exercised. The tribunal ordered that weekly compensation be paid under sections 36 and 37 of the Workers Compensation Act 1987, with the amount to be reduced by the weekly compensation already paid in respect of the physical injury. The tribunal's decision was based on the principle that the applicant's overall incapacity for work warranted a comprehensive assessment of her compensation needs.

Orders