Wright v Brickworks Limited - [2021] NSWPIC 301

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Wright v Brickworks Limited [2021] NSWPIC 301
APPLICANT:	Stewart Glenn Wright
RESPONDENT:	Brickworks Limited
MEMBER:	Philip Young
DATE OF DECISION:	23 August 2021
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury; severe PTSD; prior PTSD history; separate insurer making voluntary payments regarding earlier work-related PTSD injury; applicant’s perception of events regarding safety issues; specific event where applicant threatened contractor; Held – medical evidence and applicant’s statement supports causation, corroborated by fellow worker; section 11A defence not established because respondent’s disciplinary process not reasonable; Cordina, Holmes, Doudie, K& El-Achi considered.
DETERMINATIONS MADE:	1. Award in favour of the applicant against the respondent pursuant to section 36 of the Workers Compensation Act 1987 in the sum of $1,944.22 from 23 September 2019 to 23 December 2019. 2. Award in favour of the applicant against the respondent pursuant to section 37 of the Workers Compensation Act 1987 in the sum of $1,637.24 from 24 December 2019 to date and continuing. 3. It is noted that the applicant concedes that he has received compensation from another source, namely from Employers Mutual Ltd, for various periods as identified in a schedule prepared by the applicant’s solicitor.

STATEMENT OF REASONS

BACKGROUND

Stewart Glenn Wright (the applicant) is a 45 year old man who was employed by Brickworks Ltd (the respondent) as a full time truck driver.
Although within an Application to Admit Late Documents there is mention of the applicant commencing employment on 13 March 2017, a statement from the applicant dated 24 December 2020 maintains that he commenced working for “Austral-Brickworks” on or around 13 January 2013.[1] It has been suggested during submissions that the applicant’s employment may have been formally transferred to a subsidiary company in 2017, but for present purposes it is sufficient to note that the respondent offers no evidence to cavil with the assertion that the applicant commenced employment on 13 January 2013.
[1] Applicant’s statement dated 24 December 2020 [20] at page 24
The applicant relies upon a deemed date of injury of 16 August 2019. The applicant was at that time a union delegate and says that in the time up to 16 August 2019 he raised safety and compliance issues and as a result was bullied and marginalised by the respondent. The applicant claims a deemed date of injury of 16 August 2019 and relies on section 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act). Psychological injury is alleged in the nature of severe post-traumatic stress disorder (PTSD) which had existed in the past but was aggravated, accelerated, exacerbated or deteriorated (“aggravated etc”) by his employment.
The prior PTSD, the parties appear to agree, was a result of a traumatic motor vehicle accident that the applicant sustained in the course of his employment with a prior employer in 2008.
The applicant claims weekly payments of compensation pursuant to sections 36 and 37 of the 1987 Act from 23 September 2019 and continuing.

ISSUES FOR DETERMINATION

The principal issue is whether the…

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 Wright v Brickworks Limited

Details

AGLC: Wright v Brickworks Limited [2021] NSWPIC 301
Case: [2021] NSWPIC 301
Decision Date: 23 August 2021

CaseChat Overview and Summary

In the case of Wright v Brickworks Limited, the applicant, Mr. Wright, sought compensation for psychological injury in the form of severe post-traumatic stress disorder (PTSD) following an incident at work. The dispute came before the court to determine whether the applicant's current PTSD was caused by a compensable event and if the employer had a valid defence under section 11A of the relevant Workers Compensation Act. The employer, Brickworks Limited, argued that the applicant's condition was not caused by the incident in question and that it was not reasonable for the employer to have implemented a particular disciplinary process.

The primary legal issues before the court were whether Mr. Wright's current psychological injury was caused by the work-related incident and whether the employer had a valid defence under section 11A. This section permits an employer to avoid liability if the worker's injury was caused by an unreasonable act or omission of another person, and it was not reasonable for the employer to have taken steps to prevent the injury. The court needed to consider the medical evidence, the applicant's own statements, and the employer's disciplinary process to resolve these issues.

The court found that the medical evidence and the applicant's statements were consistent and supported the causation of the current PTSD by the work-related incident. Additionally, a fellow worker corroborated the applicant's account of the specific event where he threatened a contractor. The court held that the employer's disciplinary process was not reasonable, and therefore, the section 11A defence was not available to the employer. The court referred to previous cases, including Cordina, Holmes, Doudie, and K& El-Achi, in reaching its decision.

Consequently, the court ruled in favour of Mr. Wright, granting his claim for compensation for the current psychological injury. The court ordered Brickworks Limited to compensate Mr. Wright for the damages incurred due to the work-related PTSD.

Orders