| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Absolute Aquarium Products Pty Ltd v Taylor [2024] NSWPICPD 61 |
APPELLANT: | Absolute Aquarium Products Pty Ltd |
RESPONDENT: | Lisa Marie Taylor |
INSURER: | AAI Limited t/as GIO |
FILE NUMBER: | A1-W4526/22 |
PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
DATE OF APPEAL DECISION: | 25 September 2024 |
ORDERS MADE ON APPEAL: | 1. Leave is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 to bring the appeal. 2. The Certificate of Determination dated 20 September 2023 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – Leave to appeal an interlocutory decision pursuant to s 352(3A) of the 1998 Act; caution in dealing with treating doctors’ notes – Mason v Demasi [2009] NSWCA 227; rule 73 of the Personal Injury Commission Rules 2021 – Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351; weight of evidence – Shellharbour City Council v Rigby [2006] NSWCA 308; drawing inferences – Fuller-Lyons v New South Wales [2015] HCA 31, Flounders v Millar [2007] NSWCA 238; appealable error –Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478, causation – Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, Tubemakers of Australia Ltd v Fernandez [1976] 50 ALJR 720, Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505; [1985] HCA 58; 62 ALR 85, Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; appeals – Kowalski v Repatriation Commission [2011] FCAFC 43, Ready Workforce (a Division of Chandler McLeod Pty Ltd) v Andronicos [2024] NSWPICPD 7; the duty to give reasons – Secretary, Department of Education v Dawking [2024] NSWCA 4, Fisher v Nonconformist Pty Ltd [2024] NSWCA 32, Roncevich v Repatriation Commission [2005] HCA 40, 222 CLR 115 |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr F Doak, counsel | |
| Hicksons Lawyers | |
| Respondent: | |
| Mr C Tanner, counsel | |
| Turner Freeman Lawyers | |
| DECISION UNDER APPEAL | |
MEMBER: | Mr M McGrowdie |
DATE OF MEMBER’S DECISION: | 20 September 2023 |
INTRODUCTION AND BACKGROUND
Lisa Marie Taylor (the worker/respondent) was employed by Absolute Aquarium Products Pty Ltd (the employer/appellant) in a clerical position from 24 October 2012. She worked five days per week, Monday to Friday. She was injured on 6 March 2013. She was working in the appellant’s warehouse premises when she states she was struck by a door, which had been removed from its hinges and was leaning against a wall. She states the door fell from its position and struck her in the head. There is an issue regarding whether she lost consciousness at the time. In her statement in these proceedings she says she “was unconscious for a couple of minutes”. She states that she completed her shift.[1] The employer’s manager states that the worker was on a six-month trial at the time of the incident and was not entitled to sick leave or…
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- Case
- [2024] NSWPICPD 61
- Decision Date
CaseChat Overview and Summary
The court held that the appeal was not on an error of law because the appellant had not established error within the meaning of s 352(5) of the 1998 Act. The court found that the appellant's argument on this issue was inconsistent with the reasoning in Hancock. The court also held that the Member's reasons were sufficient because they included findings on material questions of fact, a reference to the evidence or other material on which those findings were based, and the reasoning processes that led the Member to the conclusions made. The court found that the Member's reasons were adequate, and that the focus of attention should be on the substance of the decision and whether it has addressed the 'real issue' presented by the contest between the parties. The court also held that there was no appealable error because the appellant's argument on this issue was not supported by the evidence. The court found that the appellant had not established that the Member's decision was affected by an error of law or that it was unjust or otherwise flawed.
The final orders of the court were that the appeal be dismissed, and that the appellant pay the first respondent's costs of the appeal. The court also held that the appeal was not on an error of law, and that the Member's reasons were sufficient. The court found that there was no appealable error, and that the appellant had not established error within the meaning of s 352(5) of the 1998 Act. The court also held that the appellant's argument on this issue was inconsistent with the reasoning in Hancock.
Orders
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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