Temple v AllStaff Australia Pty Ltd - [2022] NSWPIC 432

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Temple v AllStaff Australia Pty Ltd & others [2022] NSWPIC 432
APPLICANT:	Rebeccah Temple
RESPONDENT:	Woolworths Group Limited
MEMBER:	Jill Toohey
DATE OF DECISION:	3 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments and section 60 of the Workers Compensation Act 1987 (1987 Act); worker sustained frank injury to lumbar spine on 9 November 2017 while employed by the second respondent, a labour hire firm from June 2019; the worker was employed directly by the first respondent; her hours and duties remained the same; worker alleged injury to her lumbar spine while employed by the first respondent as a result of the nature and conditions of her duties; alternatively aggravation of her lumbar spine condition; whether the effects of the first injury had resolve; whether further injury as a result of employment with the first respondent; whether worker had any incapacity for employment; whether either or both injuries made a material contribution to incapacity; application of section 22 of the 1987 Act; Held — finding that worker had reduced capacity for employment; finding that employment with both respondents made a material contribution to her in capacity; liability apportioned equally between the respondents.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained an injury to her lumbar spine on 9 November 2017 arising out of or in the course of her employment with the second respondent. 2. The applicant sustained a disease injury arising out of or in the course of her employment with the first respondent with deemed date 21 July 2020. 3. The effects of the applicant’s injury on 9 November 2017 had not resolved before she commenced employment with the first respondent. 4. Both injuries made a material contribution to the applicant’s partial incapacity for employment from 21 July 2019. 5. At all material times the applicant has had capacity to earn $500 per week in suitable employment and is entitled to weekly payments from 22 July 2021 pursuant to section 37 of the Workers Compensation Act 1987 based on a PIAWE of $975 being her PIAWE while employed by the first respondent. 6. The applicant is entitled to payment of reasonably necessary treatment and medical expenses as a result of her injuries. 7. Liability is apportioned pursuant to section 22 of the Workers Compensation Act 1987 equally between the first and second respondents respectively. 8. Liberty to apply with respect to the calculation of weekly payments.

STATEMENT OF REASONS

BACKGROUND

Rebeccah Temple, the applicant, was employed as a store person/picker/packer by Allstaff Australia Pty Limited (Allstaff), a labour hire service which contracted with Woolworths Group Limited (Woolworths). Up until 3 June 2019, she was employed by Allstaff; from that date she was employed directly by Woolworths. Her workplace and duties remained the same throughout her employment with both.
On 9 November 2017, Ms Temple was struck by a forklift/pallet truck at work and sustained injury to her lumbar spine. She also suffered injury to her left shoulder, right thumb,…

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] NSWPIC 432
Decision Date: 3 August 2022

CaseChat Overview and Summary

In the case of Temple v AllStaff Australia Pty Ltd, the worker, Temple, brought a claim for weekly payments and a declaration pursuant to section 60 of the Workers Compensation Act 1987. Temple had sustained an injury to her lumbar spine on 9 November 2017 while employed by AllStaff Australia Pty Ltd, a labour hire firm. Temple's employment continued with AllStaff Australia Pty Ltd from June 2019, while she was directly employed by the first respondent. Temple alleged that her injury to the lumbar spine was caused by the nature and conditions of her duties with the first respondent, or alternatively, that her injury was aggravated by such employment. The issues before the court were whether the effects of the first injury had resolved, whether there was a further injury due to employment with the first respondent, whether Temple had any incapacity for employment, and whether either or both injuries materially contributed to her incapacity. The court had to apply section 22 of the 1987 Act to determine these issues.

The court found that Temple had a reduced capacity for employment, which was a result of both her employment with AllStaff Australia Pty Ltd and the first respondent. The court determined that both injuries made a material contribution to her incapacity. The court apportioned liability equally between the two respondents, finding that neither respondent could be held solely responsible for the injury or the incapacity. The court's reasoning was based on the evidence presented, which showed that Temple's work with both respondents contributed to her condition.

The court's decision was based on the evidence presented regarding Temple's injuries and their impact on her capacity for employment. The court found that the injuries sustained by Temple during her employment with both respondents were significant enough to reduce her capacity for employment. The court held that the injuries were not independent and that both respondents were liable for the injuries and incapacity. The court's decision was a result of a careful consideration of the evidence and the application of the relevant provisions of the 1987 Act.

The court ordered that the liability for Temple's claim be apportioned equally between the two respondents. This decision meant that both respondents were responsible for compensating Temple for her injuries and incapacity. The court's decision provided clarity on the respective responsibilities of the two respondents in relation to Temple's claim.

Orders