Toll Holdings Ltd v Diomidhous

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Toll Holdings Ltd v Diomidhous [2023] NSWPICPD 26
APPELLANT:	Toll Holdings Ltd
RESPONDENT:	Andromides Diomidhous
INSURER:	Self insured
FILE NUMBER:	A1-W828/22
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	9 May 2023
ORDERS MADE ON APPEAL:	1.     The Member’s Certificate of Determination dated 27 July 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – psychological injury – section 11A of the Workers Compensation Act 1987 - approach to expert evidence – Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 and Paric v John Holland Constructions Pty Ltd [1984] NSWLR 505 considered and applied – parties are bound by the way a case is conducted below - Brambles Industries Ltd v Bell [2010] NSWCA 162
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr B Jones, counsel
Colin Biggers & Paisley Lawyers
Respondent:
Ms L Goodman, counsel
Santone Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr J Isaksen
DATE OF Member’s DECISION:	27 July 2022

INTRODUCTION AND BACKGROUND

1. The respondent, Andromides Diomidhous, was engaged as a courier driver by the appellant, Toll Holdings Ltd, from 1997 until he ceased work on 2 February 2021. The respondent alleged that during the course of his employment with the appellant, he was subjected to various incidents of bullying and harassment which caused him to sustain a psychological injury, in particular an adjustment disorder. The respondent complained that the appellant did not pay him his correct entitlements and treated other drivers more favourably. Additionally, the respondent complained that notwithstanding his vehicle being of a two-tonne classification, he was only paid the rate applicable to a one-tonne classification.

2. The appellant denied all of the respondent’s allegations and stated that any psychological condition that the respondent may have suffered arising out of his employment was as a result of reasonable actions taken by the appellant or on its behalf. Additionally, the appellant denied that the respondent had ever been an employee, and also asserted the respondent was out of time to make a claim, pursuant to the statutory time limitations within ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[1]

   [1] See notice issued by the appellant pursuant to s 78 of 1998 Act, Application to Resolve a Dispute (ARD), p 79.

3. The Member rejected the appellant’s arguments, finding that the respondent was indeed an employee.[2] The Member also considered whether the respondent was a deemed worker, as provided for in cl 2 of Sch 1 of the 1998 Act. The Member found that the respondent could also be regarded as a deemed worker in accordance with that provision. Once finding that the respondent was an employee, the Member also found that he had sustained a psychological injury within the meaning of s 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act) as a result of real events within the workplace. The defence raised by the appellant pursuant to s 11A of the 1987 Act and…