Morris v Woolworths Group Limited - [2022] NSWPICPD 30

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Morris v Woolworths Group Limited [2022] NSWPICPD 30
APPELLANT:	Dianne Morris
RESPONDENT:	Woolworths Group Limited
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W2737/21
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	3 August 2022
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 31 October 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – section 4(b) of the Workers Compensation Act 1987 – failure to discharge the onus of proof to establish injury – Department of Education and Training v Ireland [2008] NSWWCCPD 134 applied – approach to contemporaneous documents - Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 and ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24 considered
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr C Tanner, counsel
Carroll & O’Dea Lawyers
Respondent:
Ms S Warren, counsel
BBW Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr B Batchelor
DATE OF MEMBER’S DECISION:	31 October 2021

INTRODUCTION AND BACKGROUND

Dianne Morris, the appellant, commenced employment with the Woolworths Group Limited, the respondent, on 18 May 1978 and remained in that employment until her retirement in August 2019.
On 31 January 2019 at the respondent’s Medowie store, whilst working as a customer service manager, the appellant allegedly suffered an injury to her left knee. She says that in the course of obtaining a product requested by a customer, she turned and put weight on her left side and immediately felt burning pain. She reported the incident and a written report of the injury was completed that day. The appellant returned to work the next day and continued to perform her same duties until 18 June 2019 when she took 10 weeks’ long service leave. At the end of her long service leave, the appellant decided to retire on account of her physical and mental exhaustion from injury and other stressors of the work environment.
In 2020 the appellant attended upon her doctor for treatment to her left knee and was referred for an MRI scan which was carried out on 21 April 2020, over one year after the incident.[1] This MRI revealed a meniscal tear and osteoarthritis. The appellant came under the care of an orthopaedic surgeon, Dr Harbury, who referred the appellant to conservative treatment.
[1] Application to Resolve a Dispute (ARD), p 54.
The appellant made a workers compensation claim for injury to her left knee on 7 August 2020. By notice issued under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 28 August 2020, the respondent denied liability for her claim, on the basis that she did not sustain an injury within the meaning of ss 4, 4(b)(ii) or 9A of the Workers Compensation Act 1987 (the 1987 Act), thus denying an entitlement to weekly compensation or medical or related treatment arising from an injury.
The appellant subsequently commenced proceedings in this Commission on 2 July 2021. The issues before the Member for determination were…

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: [2022] NSWPICPD 30
Decision Date: 3 August 2022

CaseChat Overview and Summary

In the case of Morris v Woolworths Group Limited, the primary dispute before the court was whether the plaintiff had sustained a compensable injury during his employment with the defendant. The case was heard in the Workers Compensation Court of New South Wales. The plaintiff alleged that he had suffered a compensable injury while working at the defendant's store, and subsequently claimed workers' compensation. The defendant, Woolworths Group Limited, denied the plaintiff's claim, asserting that he had not sustained any injury during the course of his employment.

The central legal issue before the court was whether the plaintiff had successfully discharged the onus of proof to establish that he had sustained a compensable injury as defined under section 4(b) of the Workers Compensation Act 1987. The court was required to assess the evidence presented, including contemporaneous documents, to determine the validity of the plaintiff's claim. The court considered the principles outlined in Department of Education and Training v Ireland [2008] NSWWCCPD 134, which emphasised the importance of contemporaneous documentation in supporting a claim for workers' compensation. Additionally, the court referred to the approach to interpreting contemporaneous documents as discussed in Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 and ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24.

The court found that the plaintiff had not discharged the onus of proof to establish that he had sustained a compensable injury. The analysis of the contemporaneous documents revealed inconsistencies and a lack of direct evidence supporting the plaintiff's claim. The court held that the evidence provided by the plaintiff was insufficient to establish the existence of an injury within the meaning of the Act. Consequently, the plaintiff's claim for workers' compensation was dismissed. The court ordered that the plaintiff bear the costs of the proceedings.

Orders