Purcell v Bunnings Warehouse - [2021] NSWPIC 76

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Purcell v Bunnings Warehouse [2021] NSWPIC 76
APPLICANT:	Marie Purcell
RESPONDENT:	Bunnings Warehouse
MEMBER:	Mr Cameron Burge
DATE OF DECISION:	13 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for weekly benefits; whether accepted psychological injury was predominantly caused by the reasonable actions of the respondent with respect to performance appraisal and/ or discipline; no issue as to capacity or the applicant’s preinjury earnings; section 11A of the 1987 Act discussed; meaning of “wholly or predominantly” discussed; relevant test of causation is a common-sense evaluation of the evidence; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 followed; Meaning of “reasonable” discussed; Irwin v The Director-General of Education NSWCC 14068/97, 18 June 1998 (unreported), Commissioner of Police v Minahan [2003] NSWCA 239 and Melda v Ausbowl Pty Ltd [1997] 15 NSWCCR 454 followed; Held- the cause of the applicant’s injury was multi-factorial, and the respondent had not discharged its onus of proof in establishing its actions with respect to discipline and performance appraisal were the predominant cause of it; in any event, the actions relied upon by the respondent were not reasonable in the circumstances; respondent ordered to pay the applicant weekly compensation from 28 July 2020 to date and continuing.
DETERMINATIONS MADE:	1. Leave is granted to amend the deemed date of injury to 28 July 2020 and to make a claim for medical expenses pursuant to section 60 of the Workers Compensation Act 1987. 2. The applicant suffered a psychological injury in the course of her employment with the respondent, with a deemed date of injury of 28 July 2020. 3. The injury referred to in (2) above was not wholly or predominantly caused by the reasonable actions of the respondent with regards to performance appraisal and/or discipline. 4. As a result of the subject injury, the applicant has been and remains wholly incapacitated for employment from 28 July 2020 to date and continuing. 5. The respondent is to pay the applicant weekly compensation pursuant to section 37 of the Workers Compensation Act 1987 at the rate of $492.10 per week from 28 July 2020 to date and continuing. 6. The respondent is to pay the applicant's reasonably necessary medical and treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 upon production of accounts, receipts and/or Medicare Australia Notice of Charges.

STATEMENT OF REASONS

BACKGROUND

The applicant commenced employment with the respondent in Darwin in or about 2013. She moved to the Nowra store in approximately 2017 as a store person/gatekeeper.
There is no issue the applicant suffered a psychological injury in the course of her employment with the respondent by way of adjustment disorder and anxiety. All medical experts retained in the matter agree the injury was by way of an aggravation of a pre-existing condition.
On 7 July 2020, the respondent’s insurer issued a section 78 notice in which it denied liability on the grounds the applicant's injury was wholly or predominantly caused by the respondent's reasonable…

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 Purcell v Bunnings Warehouse

Details

AGLC: Purcell v Bunnings Warehouse [2021] NSWPIC 76
Case: [2021] NSWPIC 76
Decision Date: 13 April 2021

CaseChat Overview and Summary

In the matter of Purcell v Bunnings Warehouse, the applicant sought compensation for a psychological injury sustained during employment. The dispute arose when Bunnings Warehouse contested the applicant's entitlement to weekly benefits under the Workers Compensation Act 1987 (NSW). The court was tasked with determining whether the applicant's psychological injury was predominantly caused by Bunnings Warehouse's reasonable actions during a performance appraisal and disciplinary process.

The central legal issues revolved around the interpretation of "wholly or predominantly" in section 11A of the 1987 Act, and whether the actions taken by Bunnings Warehouse were reasonable and the predominant cause of the psychological injury. The court also considered the appropriate test of causation, which required a common-sense evaluation of the evidence. The applicant's entitlement to compensation was not contested, and the only issue was the causation of the injury.

The court examined the evidence and determined that the applicant's psychological injury was multi-factorial. It held that Bunnings Warehouse had not discharged the onus of proof to establish that its actions were the predominant cause of the injury. Additionally, the court found that the actions taken by Bunnings Warehouse were not reasonable in the circumstances. As a result, the applicant was entitled to weekly compensation from 28 July 2020, to date and continuing. The court's decision was influenced by previous cases such as Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, Irwin v The Director-General of Education NSWCC 14068/97, 18 June 1998 (unreported), Commissioner of Police v Minahan [2003] NSWCA 239, and Melda v Ausbowl Pty Ltd [1997] 15 NSWCCR 454.

Orders