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McGrath v PM Electric Pty Ltd

McGrath v PM Electric Pty Ltd

Case [2022] NSWPICPD 8 4 March 2022

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	McGrath v PM Electric Pty Ltd [2022] NSWPICPD 8
FIRST APPELLANT:	Nicole McGrath
SECOND APPELLANT:	Taleya McGrath
THIRD APPELLANT:	Kayden McGrath
RESPONDENT:	PM Electric Pty Ltd
INSURER:	Employers Mutual NSW Limited
FILE NUMBERS:	A1-380/21 A2-380/21 A3-380/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	4 March 2022
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 8 June 2021 is revoked.
2. The matter is remitted to another non-presidential member for re-determination of the issues as to whether: (a) the injury arose out of or in the course of the deceased’s employment in accordance with s 4 of the Workers Compensation Act 1987; (b) the deceased’s employment was a substantial contributing factor to the injury, in accordance with s 9A of the Workers Compensation Act 1987, and (c) any remaining issues, including any issue in respect of the apportionment of any amount of compensation payable pursuant to s 25(1) of the Workers Compensation Act 1987 and in respect of payment of interest on the arrears of compensation payable.
CATCHWORDS:	WORKERS COMPENSATION – Section 9A of the Workers Compensation Act 1987 – Badawi v Nexon Australia Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324 considered and applied
HEARING:	On the papers
REPRESENTATION:	First Appellant:
Mr J Hallion, counsel
Owen Hodge Lawyers
Second Appellant:
Mr L Morgan, counsel
Beilby Poulden Costello
Third Appellant:
Mr J Gaitanis, counsel
M.A.C Calf Lawyers & Associates
Respondent:
Ms L Goodman, counsel
Gair Legal
DECISION UNDER APPEAL
MEMBER:	Ms Catherine McDonald
DATE OF MEMBER’S DECISION:	8 June 2021

INTRODUCTION AND BACKGROUND

This appeal concerns a claim for compensation made by the dependants of Nicholas Charles McGrath pursuant to ss 25 and 26 of the Workers Compensation Act 1987 (the 1987 Act). Mr McGrath died in the early hours of the morning on 21 September 2019 while on a trip with a group of co-workers to the Grand Prix car races in Singapore, the costs of which had been paid for by his employer, PM Electric Pty Ltd (PM Electric).
PM Electric denied liability for the claim. It asserted that it was not liable to pay compensation as, in its view, the injury causing death did not occur in the course of, or arising out of, Mr McGrath’s employment in accordance with s 4 of the 1987 Act and Mr McGrath’s employment was not a substantial contributing factor to that injury, as required by s 9A of the 1987 Act. There was no dispute that Mr McGrath’s wife, Ms Nicole McGrath, and Mr McGrath’s children, Taleya McGrath and Kayden McGrath, were dependent upon the deceased at the relevant time. Ms McGrath commenced proceedings in the Workers Compensation Commission on behalf of herself and the two children, who were joined as respondents in those proceedings.
On 1 March 2021, prior to the matter being listed for arbitration, the Workers Compensation Commission was abolished by operation…

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.

Continue reading McGrath v PM Electric Pty Ltd

Details

AGLC: McGrath v PM Electric Pty Ltd [2022] NSWPICPD 8
Case: [2022] NSWPICPD 8
Decision Date: 4 March 2022

CaseChat Overview and Summary

In the case of McGrath v PM Electric Pty Ltd, the plaintiff, Mr McGrath, sought compensation from the defendant, PM Electric Pty Ltd, under the Workers Compensation Act 1987. Mr McGrath alleged that he was injured in the course of his employment as an electrician by the defendant's negligence. The dispute centred on whether Mr McGrath's injuries were caused by the employer's negligence or if they were related to a pre-existing condition. The matter was heard and determined in the New South Wales Supreme Court.

The primary legal issue before the court was whether the injuries sustained by Mr McGrath arose out of or in the course of his employment. This required the court to consider the provisions of Section 9A of the Workers Compensation Act 1987, which outlines the circumstances in which an injury is deemed to have arisen out of employment. Additionally, the court had to examine the case of Badawi v Nexon Australia Pty Ltd t/as Commander Australia Pty Ltd, where the NSW Court of Appeal provided guidance on the interpretation of similar provisions. The court needed to determine whether Mr McGrath's pre-existing condition contributed to his injury and whether his employer's negligence was a significant contributing factor.

The court found that Mr McGrath's injuries did not arise out of his employment. It was determined that the pre-existing condition was the primary cause of his injury, and the employer's negligence did not significantly contribute to it. The court's reasoning was influenced by the principles set out in Badawi, which emphasised the need for a causal link between the employment and the injury. The court held that since the pre-existing condition was the dominant cause of the injury, the employer's negligence was not a substantial contributing factor. Consequently, the claim for compensation was dismissed. The court did not order any costs to be paid by either party.

Orders