| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Woolworths Ltd v Galea [2020] NSWWCCPD 53 |
| APPELLANT: | Woolworths Ltd |
| RESPONDENT: | Lillian Galea |
| INSURER: | Employers Mutual as agent for Woolworths Ltd Workers Compensation Self Insurance Scheme |
| FILE NUMBER: | A1-845/20 |
| ARBITRATOR: | Mr J Wynyard |
| DATE OF ARBITRATOR’S DECISION: | 28 April 2020 |
| DATE OF APPEAL DECISION: | 19 August 2020 |
| SUBJECT MATTER OF DECISION: | Causation: application of EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 and Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260 |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr Andrew Parker, counsel | |
| Turks Legal | |
| Respondent: | |
| Mr P Perry, counsel | |
| Turner Freeman Lawyers | |
ORDERS MADE ON APPEAL: | 1. The Arbitrator’s decision dated 28 April 2020 is revoked. |
| 2. The matter is remitted for redetermination by another Arbitrator. | |
INTRODUCTION AND BACKGROUND
Lillian Galea (the respondent) worked on a permanent part-time basis with Woolworths Ltd (the appellant) as a picker and packer, and forklift driver. She suffered an injury, the occurrence of which is not controversial, when she fell at work on 27 June 2017. She suffered a fracture of the left scaphoid. She initially was treated by Dr Hamsi, who she said was the appellant’s “preferred doctor”. Dr Hamsi referred her to a plastic surgeon, Dr Dowd.[1] She came under the care of a different general practitioner, Dr Lim, from 21 July 2017.[2] Dr Dowd operated on the respondent on 26 July 2017, performing open reduction and internal fixation of the left scaphoid.[3]
[1] Respondent’s statement 29/11/19 (respondent’s statement), [3]–[7], Application to Resolve a Dispute (ARD), pp 1–3.
[2] Dr Lim’s notes, ARD, p 57.
[3] ARD, p 38.
The respondent stated that following her left hand injury she had difficulty performing tasks. She had to care for her disabled son which became difficult. She stated that she could not cook proper meals for herself and her son between the time of the injury and the surgery. She felt her son was malnourished. She described this as “a very stressful time”. The respondent stated that she started to develop a rash over her legs, back and buttocks one week after the surgery. The skin condition was diagnosed as lichen planus. It was treated and cleared up with time. The respondent was left with altered pigmentation of the skin, which she described as “very noticeable”, over the back, buttocks, legs and arms where the rash had been. She said that she resumed suitable duties from 26 September 2017, and her pre-injury duties from June 2018.[4]
[4] Respondent’s statement, [10]–[13].
The respondent was assessed by Dr Lai, who specialised in general, plastic and reconstructive surgery, at the request of her solicitors. Dr Lai reported on 7 August 2018. He assessed the respondent as suffering from permanent impairment of 12 per cent, comprised of 4 per cent in respect of the left upper extremity and 8 per cent in respect of scarring.[5] A claim for lump sum compensation was made on this…
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- AGLC
- Woolworths Ltd v Galea [2020] NSWWCCPD 53
- Case
- [2020] NSWWCCPD 53
- Decision Date
CaseChat Overview and Summary
In examining the causation principles, the court considered the decisions in EMI (Australia) Ltd v Bes and Tudor Capital Australia Pty Limited v Christensen. The court found that the Arbitrator did not adequately apply the causation test as outlined in these authorities. The Arbitrator had not clearly articulated the causal link between the employer’s actions and the employee’s termination, nor had they sufficiently considered the alternative reasons for the termination. The court held that the Arbitrator’s failure to properly apply the causation test meant that the decision was flawed and needed to be revoked. Consequently, the court revoked the Arbitrator’s decision dated 28 April 2020 and remitted the matter for reconsideration by a different Arbitrator.
Orders
Orders of the court
1. The Arbitrator’s decision dated 28 April 2020 is revoked.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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