ACW (the appellant) was employed by a New South Wales Government Department (the Department/the respondent) in a senior role as from February 2015.[1] He injured his back and neck in a motor vehicle accident in the Australian Capital Territory on 25 February 2014.[2] This was the subject of a third party claim that was resolved by way of a deed of release dated 3 February 2017.[3] The appellant was involved in a further accident on 28 October 2014 when he was a passenger in a bus that collided with a car. The bus company paid a small amount to cover the cost of the appellant’s general practitioner and physiotherapy treatment after this incident.[4] This incident was not suggested to have been of any long-term significance.
[1] Application to Resolve a Dispute (ARD), p 13.
[2] ARD, pp 168–175, 191–200.
[3] ARD, pp 201–203.
[4] ARD, pp 10–11.
The appellant suffered injury in his job with the Department on 6 June 2016. He sat on an office chair from which some screws were missing, causing him to fall backwards. He stated that his head initially struck the floor, and as he fell he twisted and jarred and compressed his spine. He said that he felt immediate pain in his neck and lower back. He saw a nearby general practitioner, Dr Carr, and was referred for physiotherapy. He said that he took painkilling medications and carried on at work, he had other staff that could cover for him. The appellant stated that he deteriorated with time, and in “around August/September 2016 [he] started to notice … pins and needles in [his] legs and bladder leakage”.[5] The appellant continued under the care of Dr Carr and had physiotherapy treatment. He stated that he continued at work with increasing difficulties.
[5] ARD, pp 15–18.
On 7 May 2017, the appellant attended an Ikea store with his family. He described severe lower…
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.
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Details
AGLC
ACW v ACX [2022] NSWPICPD 19
Case
[2022] NSWPICPD 19
Decision Date
CaseChat Overview and Summary
In the matter of ACW v ACX, the dispute before the court was centered on workers compensation, specifically questioning the medical evidence presented and the alleged factual errors within it. The application of the principles established in Paric v John Holland Constructions Pty Ltd, Paric v John Holland (Constructions) Pty Ltd, Hancock v East Coast Timber Products Pty Ltd, and New South Wales Police Force v Winter was integral to the court's consideration. The primary legal issues revolved around the interpretation and application of the common-sense approach to factual findings based on common knowledge or experience, and the procedural fairness in the context of the evidence presented.
The court examined the necessity of making factual findings grounded in common sense and experience, as opposed to requiring expert evidence, particularly in light of the precedent set by Paric v John Holland Constructions Pty Ltd. It considered whether the tribunal had erred in its application of this principle, and if so, whether such an error warranted overturning the Certificate of Determination issued on 16 July 2021. Additionally, the court assessed whether the process followed by the tribunal complied with the requirements of procedural fairness, as outlined in New South Wales Police Force v Winter.
Upon reviewing the evidence and arguments, the court determined that the tribunal had correctly applied the principles of making common-sense factual findings and had not erred in its assessment of the medical evidence. The tribunal's process was found to be procedurally fair, and thus, no grounds existed for overturning the Certificate of Determination. Consequently, the court confirmed the Certificate of Determination dated 16 July 2021, upholding the tribunal's decision.
Orders
Orders of the court
1. The Certificate of Determination dated 16 July 2021 is confirmed.