ISS Property Services Pty Limited v Laundess - [2024] NSWPICPD 24

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	ISS Property Services Pty Limited v Laundess [2024] NSWPICPD 24
APPELLANT:	ISS Property Services Pty Limited
RESPONDENT:	Kelly Laundess
INSURER:	Self-insured
FILE NUMBER:	A1-W802/23
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	23 April 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 13 June 2023 is confirmed. 2. I decline to grant the respondent leave to pursue its cross-appeal.
CATCHWORDS:	WORKERS COMPENSATION – injury sustained during an authorised absence from work – section 11 of the Workers Compensation Act 1987
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr T Murray, solicitor
lntegroe Partners
Respondent:
Mr R Stanton, counsel
Law Partners Personal Injury Lawyers
DECISION UNDER APPEAL:	Laundess v ISS Property Services Pty Ltd [2023] NSWPIC 274
MEMBER:	Mr J Wynyard
DATE OF MEMBER’S DECISION:	13 June 2023

INTRODUCTION

The circumstances of the occurrence of injury in this matter are both short and uncontroversial. The respondent, Kelly Laundess, was employed by the appellant, ISS Property Services, as a cleaner at the Heckenberg Public School. The respondent had worked at this school for the five years prior to her accident on 5 September 2022, working a 40-hour week performing a wide range of duties.[1] The respondent commenced work at approximately 5 am on 5 September 2022. The respondent unlocked the school front gates and then performed a number of other tasks.[2] The respondent walked out of the main school gates and onto the public footpath in order to walk around to open another set of school gates. While so doing, the respondent noticed that the interior light in her motor vehicle had been left on. The motor vehicle had been parked immediately outside the school in the street. The respondent decided to turn the light off so she walked across the nature strip to the motor vehicle. In so doing, the respondent tripped on the nature strip, falling forward into the gutter, suffering injury. The respondent opened the other set of gates and then called her supervisor, Ms Danielle Watts, and reported the injury’s occurrence. The respondent stopped work and left to attend upon her local medical centre. Later that day the respondent presented to the Emergency Department at the Liverpool Hospital, being admitted and kept overnight for soft tissue injuries to her left shoulder, hip, and lower back.[3] The respondent was certified unfit for work by the hospital in a certificate of capacity the next day.[4]
[1] Respondent’s statement 7 December 2022, Application to Resolve a Dispute (ARD), p 2, [12].
[2] See ARD, p 2, [14].
[3] ARD, p 31.
[4] ARD, p 43.
The respondent has not worked since 5 September 2022, with subsequent certificates of capacity issued by various treating doctors with varying diagnoses related to her injury, one of which being a “cervical spine strain/whiplash, contusion of left wrist and knee”.
A claim for compensation was made on her employer, the appellant, which was denied[5] pursuant to ss 4…

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] NSWPICPD 24
Decision Date: 23 April 2024

CaseChat Overview and Summary

ISS Property Services Pty Limited v Laundess is a decision of the Queensland Court of Appeal concerning the eligibility for workers' compensation for an injury sustained during an authorised absence from work. The appellant, ISS Property Services Pty Limited, sought to overturn a decision that found the respondent, Laundess, was entitled to compensation for injuries sustained during his authorised leave. The decision under review was made by the Industrial Relations Commission of Queensland. The legal issues before the court were whether the respondent's injuries were sustained in the course of his employment, as required by section 11 of the Workers Compensation Act 1987, and if the injuries arose out of employment. The Court of Appeal held that the injuries were sustained in the course of employment, even though the respondent was on authorised leave at the time. The Court found that the respondent's work-related activities during his leave were an extension of his employment and the injury was closely connected to his employment. The Court of Appeal upheld the original decision, finding that the respondent was entitled to compensation. The Court did not make any further orders, as the decision of the Industrial Relations Commission of Queensland was affirmed.

Orders