Mission Australia v Eves - [2020] NSWWCCPD 49

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Mission Australia v Eves [2020] NSWWCCPD 49
APPELLANT:	Mission Australia
RESPONDENT:	Alexandria Kate Eves
INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A1-3209/19
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:	30 January 2020, amended on 3 March 2020
DATE OF APPEAL DECISION:	31 July 2020
SUBJECT MATTER OF DECISION:	Whether error on the part of the Arbitrator in determining that the respondent was on a journey to which s 10 of the Workers Compensation Act 1987 (the 1987 Act) applied – Vetter v Lake Macquarie CityCouncil [2001] HCA 12; 202 CLR 439, Hook v Rolfe (1996) 2 NSWCCR 81 discussed; s 10(3A) of the 1987 Act – whether error on the part of the Arbitrator in determining that there was a real and substantial connection between the respondent’s employment and the injury – Bina v ISS Property Services Pty Ltd [2013] NSWWCCPD 72, Australia and New Zealand Banking Group Limited v Khullar [2020] NSWWCCPD 3 discussed
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers

REPRESENTATION:	Appellant:
Ms K Hogan, counsel
Barker Henley
Respondent:
Mr B McManamey, counsel
Slater & Gordon Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s amended Certificate of Determination dated 3 March 2020 is confirmed.

INTRODUCTION AND BACKGROUND

Ms Alexandria Kate Eves (the respondent) was employed by Mission Australia (the appellant) as a community support worker in Bourke, New South Wales. The respondent commenced that employment on 2 March 2015.
During the course of her employment, the respondent experienced a number of stressors. As a result of those workplace stressors, the respondent consulted a general practitioner, Dr Heather Dalgety, who certified that the respondent had no capacity for work from 11 February 2016 as a result of a psychological condition.[1] On 18 February 2016, Dr Chris Gora, general practitioner, certified the respondent as fit for normal duties from 19 February 2016, with the proviso that the work environment was conducive and free from workplace bullying.[2]
[1] WorkCover certificate of capacity, Application to Resolve a Dispute (ARD), pp 1229–1231.
[2] Certificate of capacity, ARD, pp 1238–1239.
The respondent returned to work on 19 February 2016. The return to work arrangements included a requirement that the respondent have no face to face interaction with a superior, Ms Karen Howarth. Unfortunately, Ms Howarth spoke directly to the respondent. As a result, Mr Richard Jobson, the appellant’s injury management adviser, directed the respondent to cease work for two weeks from 19 February 2016 to 4 March 2016, so that the appellant could put in place a return to work plan.
The respondent left work in a distressed and shocked state at approximately 10 am or 10.30 am on 19 February 2016.[3] The respondent formed the intention that she would travel to Cobar that day to stay at her mother’s home. She spent the day attending to various matters, including packing her bags, arranging her medications and attempting to pay her…

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 Mission Australia v Eves

Details

AGLC: Mission Australia v Eves [2020] NSWWCCPD 49
Case: [2020] NSWWCCPD 49
Decision Date: 31 July 2020

CaseChat Overview and Summary

Mission Australia sought review of an amended certificate of determination issued by an Arbitrator, concerning a dispute over workers' compensation. The respondent, Eves, claimed compensation under the Workers Compensation Act 1987 for injuries sustained during an incident on a journey, which the Arbitrator had deemed compensable under section 10 of the Act. Mission Australia contested this decision, arguing that the Arbitrator had erred in applying section 10 to the respondent's journey and in determining that there was a real and substantial connection between the respondent's employment and the injury.

The court was tasked with determining whether the Arbitrator had erred in his application of section 10 of the 1987 Act to the respondent's journey, considering the relevant legal principles and authorities. The court also needed to decide if the Arbitrator had correctly assessed the connection between the respondent's employment and the injury. Relevant cases such as Vetter v Lake Macquarie City Council, Hook v Rolfe, Bina v ISS Property Services Pty Ltd, and Australia and New Zealand Banking Group Limited v Khullar were considered in the analysis. The court's reasoning involved a detailed examination of the facts and the legal framework, focusing on the application of section 10(3A) of the 1987 Act.

The court found that the Arbitrator had correctly applied the law and made no error in determining that the respondent's journey was covered under section 10 of the Act, nor in establishing a real and substantial connection between the employment and the injury. The court held that the Arbitrator's decision was consistent with the relevant authorities and appropriately applied to the facts of the case. The application for review was dismissed, and the Arbitrator's amended certificate of determination was confirmed.

No further orders were made by the court.

Orders

Orders of the court

1. The Arbitrator’s amended Certificate of Determination dated 3 March 2020 is confirmed.

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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