Latest case updates for self-insurers – December 2025

Ambitions alone are not enough: lessons from the County Court in pecuniary loss applications

Background

The worker, Mr Tarryn Young, began working with the employer, Pro Circuit Group Pty Ltd  as an apprentice electrician in July 2019. He alleged he sustained an injury on 17 November 2020 when moving a heavy switchboard on a trolley with wheels. One of the wheels came loose and the switchboard fell from the trolley and crushed his left leg (the incident). Mr Young was 21 at the time of the injury. 

Mr Young sought leave to sue his employer for both pain and suffering and loss of earning capacity. The key issue at the hearing was what Mr Young would have earned, but for his injury. He submitted that that if not for his injury, he would have worked as a fly in / fly out (FIFO) electrician in the Western Australian mining sector and eventually started his own business.

FIFO evidence 

Mr Young relied on affidavits from his father and a former employer. His father confirmed Mr Young had spoken to him about his desire to work in the mines and run his own business. The former employer stated Mr Young’s ambition was to run and operate his own electrical and contracting business, where he could have realistically earnt between $180,000 and $200,000 a year. A report from Flexi Personnel was also submitted in support, which stated that the average wage for an electrician working in a fixed plant maintenance role within the mining sector in Western Australia was $175,000. 

Findings 

Mr Young’s evidence was that he continues to suffer pain, particularly in his leg and requires ongoing painkilling medication. Although he can work full time, his employment functionality was compromised given his difficulties kneeling and working in confined spaces. The medical opinion was that Mr Young was unlikely to return to any of his previous sporting activities. Based on this evidence, Her Honour granted leave for Mr Young to bring proceedings for damages for pain and suffering. 

However, Her Honour was not satisfied that Mr Young established a loss of earning capacity of 40 per cent for the foreseeable future and dismissed the pecuniary loss application. Her Honour was not satisfied with the evidence provided by Mr Young in this regard, noting there was no expert evidence on what FIFO work involves. At best, Mr Young relied upon hearsay evidence about what he had been told about FIFO work. This meant that there was no medical opinion on his capacity to undertake FIFO work. Additionally, Mr Young had not applied for any FIFO work. His ability to undertake the duties involved had therefore not been tested.  

In relation to running his own business, Her Honour also stated that the available evidence, which was limited to lay witness affidavits with no description of the expenses involved in running a business, was inadequate. 

Key takeaways 

This case highlights that the onus is on the worker to show they meet the economic loss test, and specific evidence must be provided to establish this. It is not merely enough for the worker to provide affidavits in support of their vocational goals and give their own evidence to what duties that might involve. The worker must do more to establish their claim. They must provide expert evidence on what the duties involve, and medical evidence supporting that they cannot perform those duties anymore due to the injuries.

Tribunal dismisses claim on the basis that injury not sustained during a journey nor connected to duties/employment. 

Alicia Kras had been working as a bus driver for Torrens Transit Services Pty Ltd at the Torrens Transit St Agnes Depot since December 2017.

On 11 July 2024 and after she had finished her shift, Ms Kras walked along a public footpath towards her personal vehicle which was parked at the St Agnes Park ‘n’ Ride Carpark (carpark). The carpark was leased by Torrens Transit and was located outside the external boundaries of the main depot. 

While walking on the footpath, Ms Kras suffered a fall and fractured her right wrist. Ms Kras subsequently submitted a claim for compensation under the Return to Work Act 2014 (SA). The compensating authority rejected the claim.

The issue at trial was whether Ms Kras’s right wrist injury was compensable on the basis:

• she was attending her place of employment, but after work ended for the day, while she was preparing to leave or was in the process of leaving the place in accordance with section 7(5)(c) of the Act; or
• it arose in accordance with the ‘journey’ provisions in section 7(8) of the Act.

Findings

Deputy President Judge Gilchrist found that when Ms Kras injured herself, she had left the place where she carried out the duties of her employment and had passed beyond the external boundaries of the depot on which the main building was situated. 

Further, although the evidence did not clearly establish that she had arrived at the carpark when she fell, it was held that even if it had, that carpark was not a place where she was required to carry out duties of employment. Therefore, His Honour found that Ms Kras’s injury did not satisfy the requirements of section 7(5)(c) of the Act.

The Tribunal cited the decision of Vickers v Jarrett Industries Pty Ltd (1975) 15 SASR 525, where it was found that the Court’s approach as to whether a worker was on the journey between work and place of residence should have regard to the location of the boundaries of their destination.

Deputy President Judge Gilchrist found that Ms Kras was not directed to, nor was she required to, park in the carpark. Further, Torrens Transit had no right to exercise any control over how Ms Kras conducted her journey home. Having made these findings, His Honour held there was not a real and substantial connection between Ms Kras’s employment and the journey being undertaken at the time of her accident, nor a sufficient connection between the accident and her employment. On this basis, Ms Kras’s injury did not occur in compensable circumstances in accordance with section 7(8). 

Key takeaways

This case highlights that when assessing whether an injury occurs during an employee’s journey from their place of employment to their residence, it is important to consider the boundary limits of the place of employment, what directions have been provider by the employer (if any), and the extent of any connection between the duties/employment and the journey. 

The District Court of Western Australia has dismissed complaints made by a worker of denial of natural justice, lack of procedural fairness and bias on the part of a WorkCover WA Arbitrator. 

Background 

Mr Stephane Armet sustained injury to his lumbar spine in his employment on 18 March 2015 and aggravation of that injury on 4 September 2025. Mr Armet’s employer, CFC Consolidated Pty Ltd , accepted liability for both the lumbar spine injury and aggravation under the Workers’ Compensation and Injury Management Act 1981 (WA) (former Act). 

Mr Armet remained in receipt of weekly payments of income compensation until the funds available under the former Act were exhausted in September 2019. 

Mr Armet sought an extension to the prescribed amount for weekly payments under the former Act on the basis that he had suffered a permanent incapacity for work due to his lumbar spine injury and various secondary conditions to his right foot, plantar fasciitis, tinnitus, psychiatric ill health and alopecia (the application). 

Arbitrator Wallbridge of the WorkCover WA Arbitration Service dismissed the application on the basis that, on the evidence filed, Mr Armet had no work-related incapacity for work. Arbitrator Wallbridge instead found that Mr Armet was unreasonably focused on his frustration and grievances with the workers’ compensation system and a preoccupation with legal processes.

Mr Armet lodged an appeal with the District Court of WA on the grounds that ‘WorkCover WA, its arbitration services and CEO failed to afford procedural fairness, natural justice, violating right to non-discrimination and right of equality and equal protection of the law to a self‑represented French National with disabilities.’

Findings 

The Court found that while Mr Armet’s frustrations with the system were not without justification, his grounds of appeal disclosed no arguable errors of law, and therefore the appeal was dismissed. 

Of interest is that, in coming to this view, the Court found the conduct of the hearing by telephone was not a breach of procedural fairness in circumstances where both parties presented as content to have the matters dealt with on the papers but with short oral submissions. 

Key takeaways 

This decision makes it clear that, for a worker to bring a complaint of denial of procedural fairness or bias, the grounds of appeal must disclose an error of law capable of being decided as per section 391 of the Workers’ Compensation and Injury Management Act 2023 (WA). 

While worker frustrations are understandable, this decision confirms claims of bias lacking proper foundation do not constitute a basis on which to overturn a decision validly made by an Arbitrator. 

The Supreme Court of WA has upheld a subpoena issued to WorkCover WA seeking documents showing how premiums were calculated, notwithstanding the objection of WorkCover WA on grounds of concern of public harm. 

Background

• This case concerned QBE Insurance (Australia) Ltd as the plaintiff seeking approximately $3.5 million in unpaid workers’ compensation premiums under policies issued between 2017 and 2022 from the defendant, Sure People Solutions Pty Ltd (SPS).
• SPS argued the premiums were excessive and subpoenaed WorkCover for documents showing how premiums were calculated, including actuarial models and spreadsheets. SPS argued these were necessary to assess whether premiums were unfair and to support its counterclaim of unconscionable conduct.
• WorkCover objected to handing over 18 of the 22 documents produced in response to the subpoena on the basis that:
  1. the remaining documents did not serve a legitimate forensic purpose;
  2. if relevant, disclosure should be denied under public interest immunity; and
  3. if disclosure was allowed, it should be under a strict confidentiality scheme.
• WorkCover submitted several concerns about the public harm that may arise if the subpoena documents were issued including:
  • a risk for reverse-engineering of the actuarial model, enabling the involved parties to potentially manipulate future dealings;
  • QBE may develop a competitive advantage over the other insurers;
  • even if all insurers had access to the subpoena documents, there could be an inflationary effect on premiums and negotiations; and
  • in response to the above risks, the WorkCover Board would need to have a new actuarial model built, incurring additional costs and timing implications for upcoming reviews and the system more widely. 

Findings

Supreme Court Justice Seawood concluded the overarching principle for the threshold of a legitimate forensic purpose was that it was a low one. Having regard to that principle, Justice Seawood found there was a reasonable possibility the subpoenaed documents sought were relevant to an issue in the proceedings, being aspects of the defendant’s counterclaim. 

The crucial part of the case was the balancing of public interest and the legal rights of SPS as the defendant to the proceedings. 

Justice Seawood found that unrestricted disclosure of the subpoena was inappropriate, having regard to WorkCover’s concerns. A restricted form of inspection of the subpoenaed documents was permitted with only identified counsel, solicitors, and expert witnesses allowed to attend the offices of the Supreme Court registry at pre-arranged times to inspect the spreadsheets and input data. Confidentiality orders were also to be enforced for these individuals.

Key takeaways

While access will be under strict conditions, this marks the first time an insurer or employer has been permitted to inspect WorkCover’s highly restricted models and spreadsheets.

This demonstrates the low bar for the requirement for there to be a legitimate forensic interest for documents to be inspected under subpoena and that inspection may well be allowed even if there are competing issues of public interest. 

The WA District Court has dismissed an appeal by a self-represented litigant of a decision of the Arbitration Service of WorkCover WA in favour of an employer in relation to a disputed workers’ compensation claim for psychiatric injury. 

Background 

• The applicant, Mr Moinul Chowdhury was employed by the respondent, ISS Facility Services Australia Pty Ltd, as an ‘activation protection officer’ at Perth Airport.

• Mr Chowdury allegedly suffered a physical and stress-related mental disorder and lodged a claim on 6 May 2022 seeking weekly payments of compensation (as they were then known) under the Workers’ Compensation and Injury Management Act 1981 (WA) from 29 April 2022. The claim was disputed through to arbitration, with Mr Chowdury representing himself, and an arbitrator finding in favour of ISS. 

• Medical evidence led at arbitration included a medico-legal report from consultant psychiatrist Dr Victor Cheng, who considered that Mr Chowdury had sustained an adjustment disorder on or about 21 March 2022, as a result of his perception that ISS had not investigated his claims of bullying, harassment, and rumour spreading adequately or in a timely manner. 

• The arbitrator found that:

  • Mr Chowdury had sustained a psychiatric disorder or disease, and that it was a new condition;

  • Mr Chowdury was not a credible witness, and the factual foundation of his claim was not made out, specifically no bullying, harassment, or rumour spreading; and

  • therefore, Mr Chowdury’s claim failed as he was unable to prove a causative link between the psychiatric disorder and his employment with ISS. 

• Mr Chowdury appealed the decision to the District Court of Western Australia. In doing so, Mr Chowdury raised 14 separate grounds of appeal, the majority of which challenged factual findings rather than questions of law. Ground 2 did argue an error of law, being that the arbitrator failed to consider Dr Cheng’s finding that the appellant’s condition was significantly contributed to by his employment. 

Findings 

On appeal, District Court Justice Curwood cited the principles in the case of Skinner v Broadbent [2006] WASCA, which requires a decision maker to explain why they have preferred one narrative or piece of evidence over another. 

Justice Curwood also noted the principles in Wiegand v Comcare [2002] FCA 1464, specifically that so long as an incident or state of affairs is found to have taken place, the worker’s subjective response, no matter how idiosyncratic, is sufficient to say the event was something to which the ‘employment contributed’. 

Having regard to those principles, Justice Curwood found the arbitrator failed to explain why they did not refer to Dr Cheng’s finding on causation, which was supportive of the appellant’s claim. Justice Curwood further found the arbitrator should have assessed Dr Cheng’s evidence in the context of the appellant’s subjective response to factual events. 

While Justice Curwood found the arbitrator had erred in this manner, he nevertheless dismissed the appeal on the grounds that:

• for Dr Cheng’s conclusions to carry weight, it requires a cumulative factual foundation, being:

  • that rumours were being spread about the appellant; and

  • this resulted in the appellant notifying the respondent and requesting an investigation; and 

  • that investigation was unreasonably delayed. 

As the arbitrator found the above narrative did not occur, little to no weight could be placed on Dr Cheng’s report and conclusions, as it was predicated on this narrative being factual and correct. 

Key takeaways 

This case highlights the important and complex fact finding that needs to be undertaken within workers’ compensation claims and particularly claims of bullying and harassment. 

The case is a salient reminder that:

• no matter how outlandish or perplexing a claimant’s perspective of an event (or series of events) may appear to an outsider, if they can establish the events took place, this will be sufficient to prove a causative link to their employment.
• when assessing the factual basis of a claimant’s claim, it is important to pay attention to the cumulative effect of alleged events as, if some events are not substantiated, it may result in the entirety of the factual basis being brought into question. 

The Workers Compensation Legislation Amendment Bill was recently passed into law. The amendment modifies the legislation around liability and entitlements for psychological injuries, as well as amending other provisions. 

Background

The changes tighten the framework surrounding psychological claims. This effectively makes compensation for minor to moderate psychological injury now harder to claim for and easier for employers and insurers to defend than under previous iterations of the Workers Compensation Act 1987 (the 1987 Act), Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and associated legislation

Primary psychological injury

The amendment introduces a new defined term, ‘primary psychological injury’, as a distinct concept from a secondary psychological injury. Previously these terms were only found in relation to compensation for impairment in s 65A of the Workers Compensation Act 1987 (the 1987 Act). 

Under the new rules and pursuant to section 8O(a)-(c), primary psychological injuries are only compensable if the injury was caused by a relevant event or a series of relevant events. There must be a real and direct connection between the relevant event and the worker’s employment, and the worker’s employment must be the main contributing factor to the primary psychological injury.   

Section 8G of the amendment also sets out the meaning of ‘relevant event’. Examples include, but are not limited to:

• threats of violence, 

• actual physical violence, 

• criminal activity, 

• the witnessing of traumatic events,

• discrimination (sexual and racial), and 

• bullying and harassment.

Division 3A of the amendment provides special provisions for primary psychological injuries caused by bullying, excessive work demands and harassment by amending the 1998 Act. Pursuant to section 280AC, under Division 3A, liability is to be determined by the insurer within 42 days after a claim for a relevant injury is made.       

This means on expiry of the 42-day period, liability for the claim must have been accepted or disputed. Under section 280AC(3) of the 1998 Act, should a decision not be made within the required timeframe, then the insurer will be deemed to have made a decision to accept the claim.   

Under section 36(1) of the Interpretation Act 1987, day one (of 42) will be the day that immediately follows the notice of the claim. Pursuant to section 36(2), where the final day (day 42) falls on a public holiday, Saturday or Sunday, then deadline moves to the next business day (that is not a public holiday, Saturday or Sunday).         

Forum to hear dispute

Under section 280AE (4) of the 1998 Act, Division 3A, a request for a review of a claim (or review of any aspect of a claim) must be made before the dispute may be referred for determination. Determination may be made by the Personal Injury Commission or the Industrial Relations Commission. 

Under section 280AE(5), the insurer must complete a review and notify the worker of the outcome within 14 days after the review is requested.  Pursuant to section 280AE(6), that decision will replace the previous decision of the insurer in relation to the claim. Further guidance is set out within the Regulations. 

Updated Defences to Primary Psychological Injury 

Employers now have access to more robust statutory defences to claims for primary psychological injury. The amendment specifically carves out the statutory defence of reasonable management action, as set out in Subdivision 2 ‘Definitions’, section 8F of the Amendment.

Under the amendment, a reasonable management action means management action taken by an employer in a way that is reasonable in all the circumstances. 

Section 8F(2) provides a non-exhaustive list of examples of what may constitute reasonable management action. The examples provided are specifically stated to not in any way restrict the operation of section 8F.   

Importantly, the amended legislative framework reflects a shift in how psychological injury claims are assessed. The assessment will be increasingly more objective, as opposed to the previous subjective approach. The assessment of liability, for the action causing injury, is less about the workers view, experience or perception and is instead weighted more heavily on what would have been reasonable in the circumstances. 

Permanent impairment assessment process

Under section 153K(3) of the amendment, the following must be agreed between the insurer and the worker:

• the body system, body structure or disorder to be assessed;

• all medical and allied health information, including results of clinical investigations, relevant to the assessment of the injury; and

• other matters specified in the Workers Compensation Guidelines. 

Where two or more body systems are to be assessed and this requires two or more different assessors, such as the instance where different medical specialties are required, then the assessment must be conducted by two or more permanent impairment assessors. In these circumstances, one assessor must be appointed (by the Authority, being SIRA) as the lead-assessor who will determine the final impairment resulting from the assessments. 

Limitations on WPI assessment 

Pursuant to section 153L of the amendment, only one principal assessment may be made of an injured worker in relation to the injury, or a matter where more than one injury has arisen out of the same incident. Limited exceptions to this are set out in section 153Q, where further principal assessments are permissible. 

Section 153Q allows a further principal assessment of an injured worker to be undertaken where the worker and insurer agree that there has been an unexpected and material deterioration of the worker’s condition since the last assessment. The deterioration cannot have been contemplated in the principal assessment and must have resulted in an impairment increase of 10 percentage points. 

Further changes to WPI assessments 

Under section 153A of the amendment, an injured worker must obtain independent legal advice about the full legal implications of a permanent impairment assessment. This must include the following:

• implications in relation to any entitlement of the injured worker to compensation under the Worker Compensation Act, or other benefits as may exist under law (including Commonwealth), and 

• the desirability of the worker obtaining independent financial advice about the financial consequences of the assessment. 

In short, this will mean that a worker cannot progress to a permanent impairment assessment without confirmation that they have sought appropriate independent legal advice. The legislation requires that independent advice be fulsome, and the advising solicitor is required to capture implications of all benefits the worker is entitled to under law.   

Weekly compensation 

The amendment changes the compensation payable to a worker suffering from primary psychological injury. The introduction of section 39A into section 39 of the 1987 Act sets out that a worker generally has no entitlement to payment of weekly compensation for a primary psychological injury after an aggregate period of 130 weeks (roughly 2.5 years), unless an exception to the general rule applies. 

An exception to the 130-week limit exists where a worker has been assessed to suffer an impairment of 25% or higher. 

The general position is that weekly entitlements will cease at the expiry of the second entitlement period, being an aggregate 130-week period, unless the compensable psychological injury was debilitating enough to warrant an impairment of 25% or higher. 

Conclusions 

Overall, the amendment aims to improve efficiency and streamline the claims pathway, while improving the informed consent process for claimants. In particular, there has been a focus on changing the manner in which primary psychological claims are handled. 

The amendment also places further obligations on insurers to ensure that appropriate certifications and agreements are reached prior to having workers assessed. 

In summary, primary psychological claims must now meet the new criteria established under the amendment.