BOH v Engineering Solutions and Services Pty Ltd
[2025] NSWPIC 283
•19 June 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | BOH v Engineering Solutions and Services Pty Ltd [2025] NSWPIC 283 |
| APPLICANT: | BOH |
| RESPONDENT: | Engineering Solutions and Services Pty Ltd |
| MEMBER: | John Harris |
| DATE OF DECISION: | 19 June 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987 (WCA Act); Personal Injury Act 2020 (PIC Act); Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (MHCIFP Act); worker suffered injury when he fell from a ladder; claim for medical expenses and weekly compensation pursuant to section 38 of the WCA Act; orders previously made in favour of applicant for payment of section 60 of the WCA Act expenses for ongoing psychiatric condition; applicant unsuccessful in claim pursuant to section 38 of the WCA Act; application for reconsideration pursuant to section 57 of the PIC Act; applicant self-represented; allegations of lack of procedural fairness including not being advised that he could discontinue the original proceedings, imbalance in legal representation, and being found to be psychiatrically incompetent; criminal charges against applicant relating to threats against insurer previously dismissed under the MHCIFP Act suggesting that applicant was psychiatrically incompetent during hearing rejected on the facts; other allegations factually incorrect; allegations rejected but more appropriately should be considered by way of an appeal; Held – application for reconsideration rejected. |
| DETERMINATIONS MADE: | The Commission determines: Order 1. The application to reconsider the decision in BOH v Engineering Solutions and Services Pty Ltd [2025] NSWPIC 34 is rejected. |
STATEMENT OF REASONS
BACKGROUND
[BOH] (the applicant) was employed by Engineering Solutions and Services Pty Ltd (the respondent) and sustained injury in the course of his employment on 24 December 2020 when he fell off a ladder.
This is an Application by BOH pursuant to s 57 of the Personal Injury Commission Act, 2020 (PIC Act) to reconsider the orders and reasons delivered on 5 February 2025.[1] These reasons are to be read with the original decision.
[1] BOH v Engineering Solutions and Services Pty Ltd [2025] NSWPIC 34 (the Decision).
The applicant was de-identified in the original decision. These reasons are also de-identified.
The applicant alleges, for a number of reasons, that the original orders should be set aside and requests either a new hearing or that he discontinue these proceedings “without prejudice”.
Directions were made for the filing of submissions by the respondent and for the applicant to file any submissions in reply. The applicant did not file any submissions in reply.
REASONS
The applicant makes a series of allegations which raise issues of lack of procedural fairness, denial of natural justice and errors of fact and/or law. The submissions are repetitive in part but fall within the following areas.
Psychiatrically incompetent
The applicant alleged that he was declared “psychiatrically incompetent”. There was no submission or reference to the evidence as to when this occurred.
In the Decision the applicant was found to suffer from an ongoing psychological condition. The preponderance of the medical evidence described the condition as a somatic symptom disorder or similar psychological condition.
The reasons show that the applicant had previously been sectioned under the Mental Health Act, 2007 following threats made by him against the insurer’s representatives. It also appeared that criminal charges brought against the applicant were dealt with under the provisions of that Mental Health and Cognitive Impairment Forensic Provisions Act 2020. I was aware of this and noted the following at paragraph 167 of the decision.
“In a letter dated 4 June 2024 the insurer asserted that [BOH] made physical threats of violence against doctors and employees of the insurer.[2] These threats resulted in [BOH]’s involuntary admissions to hospital.[3] During a previous recorded conference it appears that [BOH]’s conduct was dealt with under the provisions of the Mental Health Act.”[4]
[2] Reply, p 91, p 95.
[3] Reply, p 93.
[4] The reference to the Mental Health Act in this paragraph is incorrect and should be to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. Persons can be involuntarily sectioned under the Mental Health Act but the relevant provisions concerning criminal responsibility is determined under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
It is unclear but the applicant may be referring to the fact that the criminal charges in relation to the threats made by him against various persons including insurer representatives were dismissed due to his mental health. The evidence supportive this finding by the Local Court were not referenced in the original submissions and/or the submissions in support of the application for reconsideration.
During the hearing I raised a question concerning the applicant’s competence and whether the respondent alleged that the applicant was incompetent. The respondent’s solicitor stated that it did not.
There were detailed clinical records in mid-2024 related to the applicant’s admission on two occasions when he was sectioned under the provisions of the Mental Health Act. These records were discussed in the decision and formed a basis for the conclusion as to the applicant’s condition.[5] However, the applicant had obviously been discharged from hospital and pursued his claim from late 2024.
[5] Decision at [123]-[134].
Whilst I accepted that the applicant had a psychiatric condition and was aware of the serious threats made in 2024 and that these were probably dismissed due to the applicant’s mental illness, that does not mean that the applicant was incompetent at the time of the hearing.
I raised the issue, but did not form the view that the applicant was incompetent and did not make a finding that the applicant was “psychiatrically incompetent”. The issue was raised out of fairness to the applicant.
The transcript shows that the applicant made detailed submissions and referred to various evidence. He gave oral evidence and responded to questions from the respondent. His evidence was coherent and did not, in my view, show a person who was incompetent. At one point I warned the applicant against answering questions due to potential self-incrimination and, upon being warned, he declined to answer some questions concerning his taxation returns. This is an example of the applicant’s understanding of what occurred in the proceedings.
Recent medical evidence, such as the opinion of Dr Gorman provided in August 2024, did not raise issues of the applicant’s competency.
I was and remain satisfied that, despite the difficulties that occurred during the hearing, the applicant was competent to pursue and argue the claim for any workers compensation entitlements.
Failure to advise applicant to discontinue the proceedings
The applicant alleges a lack of procedural fairness through a failure to advise the applicant that he could discontinue the proceedings. This submission is incorrect.
I do not intend to refer to the various portions of the transcript at the preliminary conferences and the lengthy hearing when this right was discussed with the applicant. The respondent in its submissions has referenced the transcript when the applicant was advised of the right to discontinue the proceedings. Those transcript references show that this submission is without merit.
I also note that there was an adjournment during the hearing when the applicant was requested to consider his position about discontinuing the Application to Resolve a Dispute. The applicant returned following the adjournment and continued to pursue his case. At paragraph 20 of the Decision I stated:
“There was an attempt to explain the operation of s 38 of the 1987 Act to the applicant, specifically the pre-conditions in s 38(3).[6] The applicant was advised that his medical evidence did not address s 38(3)(c) of the 1987 Act and that he could discontinue the proceedings and obtain further evidence. The applicant declined that invitation.”
[6] This occurred at approximately the three-hour mark of the hearing on 14 January 2025.
The suggestion that the applicant was unaware that he could discontinue the proceedings is otherwise inconsistent with the fact that he previously discontinued earlier proceedings, refiled and pursued the application.
The applicant also alleged that the hearing was “effectively terminated’. The transcript is inconsistent with this assertion and showed that the applicant was allowed to make submissions in reply, had nothing further to submit and the post hearing process was explained to him.
Imbalance of legal representation
The applicant alleges that there was a gross imbalance in legal representation, and this was a violation of the Personal Injury Commission’s (Commission) duty to ensure a fair hearing.
It is common ground that the applicant was unrepresented during the hearing and the respondent was represented by a legal practitioner.
The respondent in its written submissions[7] have referenced the various occasions when the applicant was advised to obtain legal advice.
[7] Respondent’s written submissions, pars 37-39.
The applicant had previously been represented by Carroll & O’Dea solicitors who qualified Dr Gorman who provided a report dated 22 August 2024.[8]
[8] Applicant’s Application to Admit late Documents, p 146.
The circumstances concerning the lack of representation are obliquely referenced at paragraph 123 of the Decision concerning threats of violence made by the applicant against third parties.
I do not intend to provide detailed transcription references of efforts made throughout the hearing of my attempts to assist the applicant. However, I mention the following matters:
(a) the applicant was led in chief by me to address various aspects of the recently disclosed employment and proposed areas of cross-examination;
(b) I repeatedly questioned the respondent on its submissions and the scope of its questioning on cross-examination;
(c) the pre-conditions to s 38 of the Workers Compensation Act 1987 (1987 Act) were explained to the applicant including the deficiencies in the evidence and he was invited to consider discontinuing the proceedings to obtain further evidence;
(d) the respondent was warned that I expected proper assistance, and they would lose the right to representation if I considered their conduct less than satisfactory, and
(e) the respondent was not allowed to brief counsel.
The reasons show that the respondent’s submissions were critiqued, and large portions of its submissions rejected. In particular, the applicant established that he had an ongoing psychiatric condition caused by the injury.
The applicant previously had the benefit of legal assistance because solicitors qualified and obtained the report from Dr Gorman. The applicant chose to pursue the matter in the absence of legal representation. Why this occurred is not disclosed by the applicant. However, the record shows that the applicant was entitled to free legal representation and pursued the matter without legally aided representatives.
The transcript otherwise shows that the applicant repeatedly interrupted the respondent when they made their submissions whilst he was given freedom to make his submissions.
Section 48 of the PIC Act provides a discretion to allow the insurer to be represented when the applicant is unrepresented. The applicant did not object during the hearing to the respondent being legally represented.
Had objection been taken I would have referred to the provisions of s 48(4) of the PIC Act and allowed the insurer to be represented. I have referenced above that care was taken to ensure that the insurer did not overwhelm the applicant and, as far as practicable, provide the applicant with appropriate assistance. Having noted this, I also stated at paragraphs 13-14 of the Decision that the conduct of the hearing was “disordered and stressful”. I stated:
“The transcript shows the hearing ran in a disordered and stressful way for everyone concerned. This was unfortunate as the issues were complicated, the applicant was unrepresented and, as the reasons disclose, obviously suffering from a psychiatric condition associated with his chronic pain.
The hearing was further complicated by the applicant’s admission that he recently commenced employment over recent months. This admission raised the need for questioning related to the undisclosed employment.”
The matter was complex and complicated further by the late information provided by the applicant that he recently commenced paid employment. The matter was otherwise significantly affected because the applicant had a history of threats directed to the insurer which made the presentation of the matter of some concern.
Furthermore, the applicant repeatedly disrupted the respondent’s presentation of its defence which meant that effective presentation by a non-lawyer on behalf of the respondent would have been extremely difficult.
I otherwise adopt paragraph 44 of the respondent’s written submissions.
For these reasons I reject the submission that the imbalance in representation resulted in procedural unfairness to the applicant.
Errors of law and fact
The applicant alleges that there were several errors in the decision. There was an absence of submission by the applicant of the evidence which was inconsistent with the findings.
The applicant asserted that there was error in the finding that his psychological condition pre-dated the injury.
That submission misrepresents the findings in the decision concerning the ongoing nature of the psychological condition caused by the work injury.
The submission otherwise ignores the fact that the applicant established that he suffered a psychological injury caused by the work event and any suggested error is of no relevant consequence.
The applicant alleges that there was no dispute as the nature of the physical injuries caused by the work event. That statement misconstrues what was accepted by the respondent and what was in dispute. There was no dispute that the applicant suffered some physical injuries. There was a dispute as to the extent of the physical injuries caused by the work event and whether the effects of the physical injuries were continuing. These matters are addressed in the Decision.
The applicant otherwise submitted that he was denied an order pursuant to s 60 of the 1987 Act.
An order was made pursuant to s 60 of the 1987 Act which reflected the findings made in the Decision that the applicant’s psychological condition caused by the work event continued after 10 April 2024. The parties had liberty to apply in respect of any s 60 dispute. That liberty has not been exercised.
The applicant otherwise suggested that he had an entitlement to weekly compensation under s 37 of the 1987 Act. This submission is inconsistent with the evidence that the applicant was paid over 130 weeks of weekly compensation for the work injury and his entitlements to weekly compensation arose under s 38 of the 1987 Act. As I noted, the statutory pre-conditions[9] to obtaining an order pursuant to s 38(3) of the 1987 Act were explained to the applicant during the hearing.
[9] Sabanayagam v St George Bank Ltd [2016] NSWCA 145 at [127].
Exercise of discretion
I accept that the exercise of the discretion under s 57 of the PIC Act is unfettered. The predecessor to s 57 has been described by the Court of Appeal as a “a discretion virtually without limit”.[10]
[10] Hatfield Engineering Pty Ltd vFitzgerald [2003] NSWCA 345 at [36].
I do not intend to exercise the discretion to reconsider the Decision and orders. The matter was heard over an extended period and extensive reasons have been provided. The applicant has an entitlement to appeal the decision. This will allow a further examination of the evidence, submissions and the reasons provided in the decision and this determination.
I agree with the respondent that the applicant can pursue an appeal and submit that he was denied procedural fairness. In my view, it is more appropriate that these allegations should be considered by a Presidential member.
Leave by insurer to be legally represented on this application
I do not consider that the respondent requires leave to be represented in this application as it is an essential element of the leave granted to participate in the proceedings. However, if leave is required, then it is granted.
The respondent’s submissions show that the applicant has incorrectly made assertions as to the events at the hearing and the preliminary conferences. The respondent’s legal representative who appeared on this application, also appeared at the hearing. They have actual knowledge of what occurred and were able to assist the Commission on this application with detailed references to the transcript which contradicted the applicant’s submissions.
FINDINGS AND ORDERS
The applicant’s substantive allegations are rejected. The application to reconsider the Decision and the orders is rejected.
The order is set out in the Certificate of Determination.
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