Margetts v Bunnings Group Limited - [2021] NSWPIC 410

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Margetts v Bunnings Group Limited [2021] NSWPIC 410
APPLICANT:	Lisa Margetts
RESPONDENT:	Bunnings Group Limited
MEMBER:	John Wynyard
DATE OF DECISION:	5 October 2021 (amended 18 October 2021)
CATCHWORDS:	WORKERS COMPENSATION - Psychiatric injury accepted and section 11A of the Workers Compensation Act 1987 defence alleged re disciplinary action only; section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) named only discipline but quoted insurer medico-legal expert that other actions also nominated re promotion, employee benefits and transfer; evidence closed and written submissions ordered to complete oral submissions; respondent then sought leave under section 289A(4) of the 1998 Act to introduce the other named actions; Held - respondent application dismissed; authorities regarding re-opening after evidence closed considered; Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services distinguished, although probably unhelpful to section 289A of the 1998 Act application in any case; on substantive case respondent unable to prove its actions regarding discipline were wholly or predominantly the cause of injury; respondent actions not found to be unreasonable; award applicant.
FINDINGS MADE:	1. The applicant suffered a psychological condition, namely a Persistent Depressive Disorder which occurred on a deemed date of 2 June 2020. 2. The respondent has not met its onus to prove that the applicant’s condition had been caused wholly or predominantly by its action taken or proposed to be taken with respect to discipline. 3. There will accordingly be an award in favour of the applicant.
ORDERS MADE:	1. I remit this matter to the President for referral to a Medical Assessor for an assessment of whole person impairment on the following bases: (a) Date of injury: 2 June 2020 (deemed). (b) Matter for assessment: psychological or psychiatric injury. (c) Evidence: (i) Application to Resolve a Dispute and attached documents, and (ii) Reply and attached documents. (d) The assessment is suitable for video link.

STATEMENT OF REASONS

BACKGROUND

Lisa Margetts, the applicant, brings an action for weekly payments and lump sum compensation against Bunnings Group Limited, the respondent, with regard to a psychological injury sustained on a deemed date of 2 June 2020.
At the commencement of the hearing, by consent the application for weekly payments was discontinued.
Dispute notices were issued on 3 July 2020 and 16 December 2020. The Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) has the respondent satisfied the provisions of s 11A of the Workers Compensation Act 1987 (the 1987 Act) to prove that the applicant’s psychological injury was wholly and predominantly caused by its reasonable actions taken or proposed to be taken with respect to discipline?

PROCEDURE BEFORE THE COMMISSION

This matter was heard by way of video conciliation and arbitration conference on 30 June 2021. Mr Paul Stockley of counsel appeared for the applicant, instructed by Mr Matthew Forshaw from Messrs Carroll & O’Dea lawyers. Mr Dewashish Adhikary of counsel appeared…

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: [2021] NSWPIC 410
Decision Date: 5 October 2021 (amended 18 October 2021)

CaseChat Overview and Summary

The case of Margetts v Bunnings Group Limited involved a dispute between an employee and their employer over workers compensation for psychiatric injury. The dispute was heard in the Workers Compensation Court of Victoria. The applicant, Margetts, sought compensation for psychiatric injury following disciplinary action taken against them by the respondent, Bunnings Group Limited. The respondent attempted to rely on a defence under section 11A of the Workers Compensation Act 1987, arguing that the disciplinary action was the sole cause of the injury. The respondent also argued that other actions, such as promotion, employee benefits and transfer, were also nominated as causes of the injury, as per section 78 of the Workplace Injury Management and Workers Compensation Act 1998.

The court was required to determine whether the respondent could introduce evidence of the other actions after the evidence had closed and written submissions had been ordered. The respondent sought leave under section 289A(4) of the 1998 Act to introduce the other named actions. The court considered the authorities regarding re-opening after evidence closed and distinguished Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services, although it was noted that this case was probably unhelpful to the section 289A of the 1998 Act application in any case. The court found that the respondent was unable to prove that its actions regarding discipline were wholly or predominantly the cause of the injury, and that the respondent's actions were not unreasonable. The court awarded compensation to the applicant.

The court's decision was based on the evidence presented and the relevant legislation. The court found that the respondent's attempt to introduce evidence of other actions after the evidence had closed was not permissible, and that the respondent was unable to prove that disciplinary action was the predominant cause of the applicant's injury. The court awarded compensation to the applicant, recognising the impact of the respondent's actions on the applicant's mental health.

Orders