Laundess v ISS Property Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Laundess v ISS Property Services Pty Ltd [2023] NSWPIC 274

APPLICANT:

Kelly Laundess

RESPONDENT:

ISS Property Services Pty Ltd

Member:

John Wynyard

DATE OF DECISION:

13 June 2023

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments and section 60 expenses denied as injuries not within employment; whether fall when leaving employment premises to switch off interior vehicle light arose out of or in the course of employment; whether authorisation can be inferred regarding section 11; Held – section 11 applicable; applicant independent in her work as school cleaner; supervisor said she would probably have authorised applicant to leave premises to turn car light off; section 11 considered and applied; worker’s injury did not arise out of or in the course of employment pursuant to section 4(a); Davidson v Mould, Humphrey Earl Ltd v Speechley and Bill Williams Pty Ltd v Williams considered and applied, but deemed section 11 injury; award for the applicant.

determinations made:

1. The applicant was injured during an authorised absence from work pursuant to s 11 of the Workers Compensation Act 1987.

The Commission orders:

1.      The respondent will pay the following weekly payments:

(a)     $664 ($1,038 - $374) from 5 September 2022 – 5 December 2022, and

(b)     $500 ($874 - $374) from 6 December 2022 to date and continuing.

2.   The respondent will pay the applicant’s s 60 expenses on production of accounts, receipts and/or current HIC Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

1. Kelly Laundess, the applicant, brings an action against ISS Property Services Pty Ltd, the respondent, for weekly payments in respect of an injury she suffered on 5 September 2022.

2. Dispute notices were issued and in due course the Application to Resolve a Dispute (ARD) and Reply were lodged.

ISSUES FOR DETERMINATION

1. The parties agree that the following issues remain in dispute:

   (a)    was the subject injury incurred whilst Ms Laundess was within the course of her employment, and

   (b)    if so, the level of capacity to perform suitable duties.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The matter was heard in the Personal Injury Commission (Commission) on 28 March 2023.  The applicant was represented by Mr Ross Stanton of counsel instructed by Ms Rebecca Gibson of Law Partners.   The respondent was represented by Mr David Saul instructed by Ms Bianca Azzopardi from Integroe Partners.

2. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied.  I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them.  I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute. 

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Commission and considered in making this determination:

   (a)    ARD and attached documents;

   (b)    Application to Admit…