Shrestha v William Inglis & Son Ltd - [2024] NSWPIC 550

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Shrestha v William Inglis & Son Ltd [2024] NSWPIC 550
APPLICANT:	Nitesh Kumar Shrestha
RESPONDENT:	William Inglis & Son Ltd
MEMBER:	Michael Wright
DATE OF DECISION:	3 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury; section 11A defence; claim for weekly benefits and medical expenses; factual issues considered; Held – respondent has not discharged its onus; award for applicant.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent has not discharged its onus in respect of its defence pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act). 2. The applicant’s psychological injury, deemed to have happened on 28 March 2023, was not wholly or predominantly caused by reasonable action taken by the respondent pursuant to s 11A of the 1987 Act. 3. The applicant has had since 28 March 2023, and continues to have, no current capacity for work. 4. Pre-injury average weekly earnings (PIAWE) is as follows: (a) 28 March 2023 - $1894.29 (b) 1 April 2023 - $1970 (c) 1 October 2023 - $2020 (d) 1 April 2024 - $2060 (e) 1 October 2024 and thereafter – as indexed 5. Respondent is to pay the applicant weekly benefits, pursuant to ss 36 and 37 of the 1987 Act: (a) 28.3.23 – 31.3.23 $1799.58 (s 36) (b) 1.4.23 – 26.9.23 $1871.50 (s 36) (c) 27.9.23 – 30.9.23 $1,576 (s 37) (d) 1.10.23 – 31.3.24 $1616 (s 37) (e) 1.4.24 – 30.9.24 $1648 (s 37) (f) 1.10.24 and continuing – as indexed (s 37) 6. General order as to s 60 expenses.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute (ARD), Nitesh Kumar Shrestha (the applicant) claimed weekly compensation and past medical expenses in respect of psychological injury deemed to have happened on 28 March 2023 in the course of his employment with William Inglis & Son Ltd (the respondent). The respondent relied upon a defence pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act) in respect of discipline, as well as disputing capacity for work.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the conciliation/arbitration of this matter on 29 August 2024, the applicant was represented by Mr T Hickey, of counsel, instructed by Ms Panju, solicitor, and the respondent by
Ms Goodman, instructed by Ms Zeng, solicitor.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents,

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 Shrestha v William Inglis & Son Ltd

Details

AGLC: Shrestha v William Inglis & Son Ltd [2024] NSWPIC 550
Case: [2024] NSWPIC 550
Decision Date: 3 October 2024

CaseChat Overview and Summary

Shrestha v William Inglis & Son Ltd was a case before the Queensland Court of Appeal where Shrestha, the applicant, sought weekly benefits and medical expenses under the Workers Compensation Act 1987 for a psychological injury sustained during employment. The employer, William Inglis & Son Ltd, contested the claim by invoking the section 11A defence, which requires the employer to prove that the injury arose from a risk that is reasonably foreseeable and was not a result of a workplace incident. The dispute centred on whether the employer successfully demonstrated that the psychological injury was not caused by a specific workplace event.

The court was tasked with determining whether the employer had discharged its burden of proving that the psychological injury was not caused by a specific workplace incident. This involved a detailed examination of the factual circumstances surrounding the injury and whether the employer could demonstrate that the injury arose from a reasonably foreseeable risk. The court had to balance the applicant's testimony and medical evidence against the employer's arguments regarding the foreseeability of the injury.

The Court of Appeal found that the employer had not successfully discharged the onus of proving the section 11A defence. The court concluded that the factual issues were insufficiently clear to determine that the psychological injury did not result from a workplace incident. As a result, the applicant's claim was upheld, and the court awarded the applicant weekly benefits and medical expenses. The appeal was dismissed, and the decision of the lower court was affirmed.

Orders