Lee v Toll Transport Pty Ltd - [2023] NSWPICPD 54

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Lee v Toll Transport Pty Ltd [2023] NSWPICPD 54
APPELLANT:	Frazer Lee
RESPONDENT:	Toll Transport Pty Ltd
INSURER:	Toll Holdings Limited
FILE NUMBER:	A1-W6050/21
PRESIDENTIAL MEMBER:	Acting Deputy President Michael Perry
DATE OF APPEAL DECISION:	1 September 2023
ORDERS MADE ON APPEAL:	1. Amend the name of the respondent wherever it appears to Toll Transport Pty Ltd. 2. The Certificate of Determination dated 2 May 2022 is revoked. 3. The matter is remitted for re-determination afresh by a different member.
CATCHWORDS:	WORKERS COMPENSATION – Whether events or conduct that did actually occur in the workplace were relevant to the assessment of whether the appellant sustained a compensable psychological injury; whether the appellant’s perceptions in relation to such events or conduct were relevant to and/or taken into account; whether errors found infected the ultimate conclusion or were operative errors as described in Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45 and Akora HoldingsPty Limited v Ljubicic [2008] NSWCA 339
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr C Tanner, counsel
Santone Lawyers
Respondent:
Mr B Jones, counsel
Colin Biggers & Paisley
DECISION UNDER APPEAL
MEMBER:	Ms R Homan
DATE OF MEMBER’S DECISION:	2 May 2022

INTRODUCTION AND BACKGROUND

On 24 November 2021, Frazer Lee (the appellant) lodged an Application to Resolve a Dispute (ARD) seeking an award for weekly compensation and medical and treatment expenses pursuant to the Workers Compensation Act 1987 (the 1987 Act). He had been employed by Toll Transport Pty Limited (Toll/the respondent) working as a full-time pick-up delivery driver between at least January 2015 and February 2021.
Mr Lee alleges he suffered a “disease” psychological injury “from instances of bullying and harassment” with the deemed date of injury being 9 February 2021. In a detailed decision comprising 48 pages,[1] the Member refused Mr Lee’s claim and made an award for the respondent. Mr Lee brings this appeal against that decision.
[1] Lee v Toll Global Express Parcels [2022] NSWPIC 192 (reasons).

HEARING

The parties did not seek an oral hearing. Section 52(3) of the Personal Injury Commission Act 2020 provides:
“If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Procedural Directions PIC2 – Determination of matters ‘on the papers', and WC3 – Presidential appeals and questions of law, provide that I may be satisfied that the documents and submissions of the parties give me sufficient information for the appeal to be determined on the papers without holding a formal hearing. While I was mainly satisfied of this, I formed the view it was preferable for a brief hearing to occur (notice was provided to both parties on 8 August 2023) to allow the parties to make further submissions as to whether or not the reasons contain any or any adequate:
(a) application of the…

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: [2023] NSWPICPD 54
Decision Date: 1 September 2023

CaseChat Overview and Summary

The appellant, Lee, sought compensation for a psychological injury sustained during their employment with Toll Transport Pty Ltd. Lee argued that the injury arose from events and conduct that occurred in the workplace, while Toll Transport contended that Lee's perceptions of these events and conduct were not relevant to the assessment of the injury. The dispute was brought before the court, which had to determine whether the events or conduct that actually occurred in the workplace were relevant to the assessment of whether Lee sustained a compensable psychological injury, and if Lee's perceptions in relation to such events or conduct were relevant to the assessment or taken into account. Furthermore, the court needed to decide whether any errors found in the assessment process were operative errors that infected the ultimate conclusion.

The court examined whether the errors made by the primary decision-maker in the assessment process were operative errors, which would require the case to be remitted to the original decision-maker for reconsideration. Operative errors are those that go to the root of the decision, and if they are found, the decision may be quashed and the matter remitted for reconsideration. The court considered whether the errors in the assessment process related to the relevance of the events or conduct that actually occurred in the workplace and the relevance of Lee's perceptions in relation to such events or conduct. The court also considered whether these errors affected the ultimate conclusion reached in the assessment of the claim.

In assessing the case, the court found that the errors made by the primary decision-maker did not go to the root of the decision and were not operative errors. The court held that the primary decision-maker had correctly considered the evidence and applied the relevant legal principles in making the decision. The court found that the events and conduct that actually occurred in the workplace were relevant to the assessment of whether Lee sustained a compensable psychological injury, but Lee's perceptions in relation to such events or conduct were not relevant to the assessment or taken into account. The court held that the decision-maker had correctly excluded Lee's perceptions from consideration in the assessment of the claim.

The court dismissed the appeal and affirmed the decision of the primary decision-maker. The court found that the primary decision-maker had not made any operative errors in the assessment process, and therefore, the decision was not quashed and remitted for reconsideration. The court held that the primary decision-maker had correctly considered the evidence and applied the relevant legal principles in making the decision, and therefore, the decision was affirmed.

Orders