| 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
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.
Dispute notices were issued and in due course the Application to Resolve a Dispute (ARD) and Reply were lodged.
ISSUES FOR DETERMINATION
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
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.
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
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Application to Admit…
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- Case
- [2023] NSWPIC 274
- Decision Date
CaseChat Overview and Summary
The court considered the nature of Laundess' employment, her level of independence, and the circumstances surrounding the incident. It examined whether her actions were authorised by her employer or if authorisation could be inferred. The supervisor testified that Laundess would likely have been authorised to leave the premises for the purpose of turning off the car light, which suggested authorisation under section 11 of the Act. However, the court found that the injury did not arise out of or in the course of employment under section 4(a) of the Act. It relied on previous cases such as Davidson v Mould, Humphrey Earl Ltd v Speechley, and Bill Williams Pty Ltd v Williams to support its decision. Ultimately, the court ruled that section 11 applied, and Laundess' injury was deemed an injury within the meaning of section 11.
The court ordered that Laundess' claim for weekly payments and section 60 expenses was denied as the injuries were not in the course of employment. However, because the injury was deemed an injury under section 11 of the Act, the court awarded her compensation. The final orders reflected these determinations, providing compensation for Laundess while concluding that the injuries did not qualify for compensation under the employment context.
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
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Ratio Decidendi
Legal Principle Established
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