Bunce v Sydney Traffic Control - [2022] NSWPIC 66

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bunce v Sydney Traffic Control [2022] NSWPIC 66
APPLICANT:	David Paul Bunce
RESPONDENT:	Sydney Traffic Control
MEMBER:	Michael Wright
DATE OF DECISION:	14 February 2022
CATCHWORDS:	WORKERS COMPENSATION – Claim for permanent impairment compensation for primary psychological injury; respondent disputed claim on the basis of dispute as to the degree of permanent impairment and also that there was a secondary psychological condition or injury; considered whether section 65A(1) of the Workers Compensation Act 1987 (1987 Act) is in the nature of a defence and whether respondent has the onus; Parker v City of Rockingham with reference to Currie v Dempsey, and The Australian Special Opportunity Fund LP v Equity Trustees Wealth Services Ltd with reference to Vines v Djordjevitch, Ritchie v Department of Community Services, State of New South Wales (NSW Department of Education) v Kaur ; whether section 4 of the 1987 Act injury must be established; State of New South Wales (NSW Department of Education) v Kaur considered; not secondary psychological condition; Held- section 65A(1) of the 1987 Act is a disentitlement provision in the nature of a defence and the onus is on the respondent to prove injury within the meaning of section 4 of the 1987 Act, not a consequential condition; found applicant had not sustained secondary psychological injury; mattered referred to a Medical Assessor for assessment.
DETERMINATIONS MADE:	1. The applicant has not suffered a secondary psychological injury as a result of injury on 15 September 2017. 2. Matter remitted to the President for referral to a Medical Assessor for the assessment of the degree of permanent impairment in respect of primary psychological injury as a result of injury on 15 September 2017. Documents to be referred to the Medical Assessor are the Application and attached documents, the Reply and attached documents and an Application to Admit Late Documents dated 8 November 2021 and attached documents.

STATEMENT OF REASONS

BACKGROUND

This is an application by David Bunce (the applicant) for permanent impairment compensation pursuant to section 66 of the Workers Compensation Act 1987 (the Act) for primary psychological injury as a result of injury on 15 September 2017 in the course of his employment with Sydney Traffic Control (the respondent).
In a section 78 notice dated 3 August 2021, the respondent disputed the applicant’s claim pursuant to section 66 of the Act for primary psychological injury. Relevantly, the respondent asserted that pursuant to section 66 of the Act the applicant’s degree of permanent impairment was not at least a 15% because pursuant to section 65A(1) of the Act, no compensation was payable because they believed that the applicant’s permanent impairment resulted from a secondary psychological injury. In the same correspondence, the respondent asserted that as Dr Bisht had apportioned half of his assessment of permanent impairment as a result of a psychological condition “consequential or secondary” to the applicant’s physical injuries on 15 September 2017, section 65A(1) of the Act applies.

PROCEDURE BEFORE THE COMMISSION

At the conciliation/arbitration…

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

Case: [2022] NSWPIC 66
Decision Date: 14 February 2022

CaseChat Overview and Summary

In Bunce v Sydney Traffic Control, the primary issue before the court was whether the applicant was entitled to compensation for a primary psychological injury under the Workers Compensation Act 1987. The respondent disputed the claim on the grounds that the applicant had a secondary psychological condition or injury, and also contested the degree of permanent impairment. The matter was heard in the NSW Civil and Administrative Tribunal.

The legal issues that the court was required to decide were whether section 65A(1) of the 1987 Act is a defence in the nature of disentitlement, and if so, whether the onus is on the respondent to prove the injury within the meaning of section 4 of the 1987 Act. The court considered Parker v City of Rockingham, Currie v Dempsey, The Australian Special Opportunity Fund LP v Equity Trustees Wealth Services Ltd, Vines v Djordjevitch, Ritchie v Department of Community Services, State of New South Wales (NSW Department of Education) v Kaur to determine the correct interpretation of section 65A(1) of the 1987 Act.

The court found that section 65A(1) of the 1987 Act is a disentitlement provision in the nature of a defence and the onus is on the respondent to prove injury within the meaning of section 4 of the 1987 Act, not a consequential condition. The court also found that the applicant had not sustained a secondary psychological injury. The matter was referred to a Medical Assessor for assessment of the applicant’s degree of permanent impairment. No final orders were made in this summary, but the matter was referred for further assessment.

Orders