Absolute Aquarium Products Pty Ltd v Taylor

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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

  1. 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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Details
Case
[2024] NSWPICPD 61
Decision Date

CaseChat Overview and Summary

Absolute Aquarium Products Pty Ltd has appealed an interlocutory decision made by the first respondent, which was challenged by the second respondent. The dispute revolves around the first respondent's refusal to grant leave to appeal a decision made by a Member of the Commission, which was the subject of a review by the first respondent. The matter was heard in the Supreme Court of New South Wales. The legal issues the court was required to decide included whether the appeal was on an error of law, whether the Member's reasons were sufficient, and whether there was an appealable error. The court found that the appeal was not on an error of law, and that the Member's reasons were sufficient. The court also found that there was no appealable error.

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

Orders of the court

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Background

Background to the litigation

The argument pursued by the appellant is similar to an approach rejected by the Court of Appeal in Hancock. Beazley JA in Hancock said:“It is necessary at this point to return to his Honour’s reasons (at [154]). It is convenient to set out the relevant part of that passage again. His Honour said:‘[Dr Summersell’s opinion] is also based on his acceptance of continuing symptoms since [the 2005 work incident], which I do not accept. Furthermore he has failed to explain or even consider the effect of the intervening events occurring on or about 22 January 2008 (lifting bearers and joists), late March 2008, (moving furniture and appliances), a second fall in late March or early April 2008, and in late April 2008 (two days sanding on knees), indeed he offered no explanation for [the appellant] ceasing work in March 2008. Therefore, the facts on which the opinion is based do not form a proper foundation for it.’ (emphasis in original)With respect to his Honour, this reasoning is the same reasoning as that rejected by this Court in ASIC v Rich. Dr Summersell’s opinion did not have to expressly refer to the subsequent non-work related incidents in order for there to be a proper foundation for the opinion expressed in his reports. Rather, what was required for satisfactory compliance with the principles governing expert evidence was for his reports to set out the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests.”[120][120] Hancock, [84]–[85]. The causation issue posed in the current matter did not involve comparison between various competing incidents or circumstances, that were potentially contributors to the condition of epilepsy from which the respondent undoubtedly suffers. There was no medical opinion from any source that attributed causation, to any degree, to the domestic violence incident or the fall in the bathroom. In those circumstances it was essentially fruitless for the appellant’s defence to focus on a possibility that the condition of epilepsy resulted from the domestic violence incident or the fall in the bathroom. There was no medical opinion to support such a finding. Such a finding could not properly have been made on the basis of common knowledge and experience, in the absence of expert opinion. The only issue which the respondent’s medical evidence needed to address was the issue identified by the Member, whether the injury on 6 March 2013 resulted in the respondent developing focal epilepsy. The failure of the reports from Drs Borire and Mellick to deal with the other incidents did not, in the circumstances, deprive the reports from these doctors of all weight. This submission is inconsistent with the reasoning in Hancock. I do not accept the appellant’s argument on this issue. The appellant has not established error within the meaning of s 352(5) of the 1998 Act. I note the Member’s reasons at [8] to [9] specifically referred to the domestic violence incident and the fall in a bathroom, together with matters of family history. This was on the basis that such a history provided “background” to the causation issue regarding the relevant work injury. Ground No. 6 fails.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

His Honour referred to r 78 of the Rules which provides:“78 Statement of reasons for decision(1) This rule applies only in relation to the following applicable proceedings—(a) Commission proceedings,(b) merit review proceedings.(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—(a) the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,(b) the appropriate decision-maker’s understanding of the applicable law,(c)the reasoning processes that led the appropriate decision-maker to the conclusions made.(3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.” His Honour did not decide whether the obligation of a Member to give reasons was “to the same standard expected of a judge”. His Honour said that if it were, the standard was summarised in the following passage from the decision of the Court of Appeal in Ming v Director of Public Prosecutions:“What can be seen is that the judicial duty to give reasons does not extend to referring to every argument or piece of evidence. Relevantly for current purposes, what is required is that the judge expose the reasons for resolving a point critical to the contest between the parties, do justice to the issues posed by the parties’ cases, refer to evidence that is important or critical to the proper determination of the matter, and generally explain any conclusion on a significant factual or evidential dispute that is a necessary step to the final decision.”[136] [136] [2022] NSWCA 209, [43]. Section 294(2) of the 1998 Act and r 78 of the Rules refer to a “brief statement”. It is necessary that these words be given meaning. The appellant’s submissions on this topic do not engage with the duty by reference to the provisions in the legislation and the Rules. Some assistance may be gained from the decision of the High Court in Roncevich v Repatriation Commission.[137] In that matter the relevant statutory obligation of the Tribunal, in providing written reasons, was described as including “findings on material questions of fact and a reference to the evidence or other material on which those findings were based”. The plurality (applying Minister for Immigration and Multicultural Affairs v Yusuf[138]) said this “required the decision-maker only to set out findings on those questions of fact which the decision-maker considered material to the decision”. Their Honours described the Tribunal’s reasons as adequate, saying: “… the reasons of the Tribunal were brief. However, that is not necessarily a flaw in the context of such a busy administrative tribunal. Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons. The focus of attention is on the substance of the decision and whether it has addressed the ‘real issue’ presented by the contest between the parties. The primary judge defined this at [70]:‘The real issue was whether the relevant factor, namely the fall, was in fact related to the [appellant's] defence service. That issue was identified and addressed by the Tribunal.’"[139][137] [2005] HCA 40; 222 CLR 115 (Roncevich)[138] [2001] HCA 30; 206 CLR 323.[139] Roncevich, [62]–[64].

Ratio Decidendi

Legal Principle Established

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