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CAR v Vanguarde Pty Ltd

CAR v Vanguarde Pty Ltd

Case [2025] NSWPICPD 25 25 March 2025

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	CAR v Vanguarde Pty Ltd [2025] NSWPICPD 25
APPELLANT:	CAR
FIRST RESPONDENT:	Vanguarde Pty Ltd
SECOND RESPONDENT:	BME Group Pty Ltd
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-W782/24
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	25 March 2025
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 29 April 2024 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Factual error within the meaning of s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998: Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54; weight of medical opinion: application of Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505; credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403; inferences – Luxton v Vines [1952] HCA 19; 85 CLR 352
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr G Horan, counsel
Turner Freeman Lawyers
First and Second Respondents:
Mr G Forster, solicitor
Bartier Perry Lawyers
DECISION UNDER APPEAL:	CAR v Vanguarde Pty Ltd [2024] NSWPIC 214
MEMBER:	Ms C Rimmer
DATE OF MEMBER’S DECISION:	29 April 2024

INTRODUCTION AND BACKGROUND

CAR (the worker/appellant) worked for Vanguarde Pty Ltd (the first respondent/Vanguarde) as a senior property manager from about 17 June 2017 to 1 December 2017. The worker worked with BME Group Pty Ltd (the second respondent/BME) from March 2018 performing similar duties, which are alleged to have had a similar aggravating effect on pre-existing degenerative disease. The deemed date of injury with BME is alleged to be 20 November 2018.[1]
[1] CAR v Vanguarde Pty Ltd & Ors [2024] NSWPIC 214 (reasons), [1]–[3].
In the current proceedings the worker alleges that he injured his cervical spine (with radiating symptoms to his upper extremities) due to aggravation of degenerative disease, occasioned by “long hours sitting at a desk using a mouse and keyboard with ergonomically poor work stations”. The worker had earlier proceedings against Vanguarde (No. 4934/19 in the former Workers Compensation Commission of NSW) relating to psychological injury alleged to result from the same period of employment. These earlier proceedings resolved on 22 November 2019 when they were listed for hearing before a Commission arbitrator. There was a consent award in the amount of $20,000 inclusive of medical expenses. The worker gave admissions that he had received all his entitlements to weekly compensation and medical expenses and was fully recovered from the effects of employment injury with Vanguarde. Within two days of this resolution the worker sought a reconsideration of these orders. A Commission arbitrator on 31 August 2020 refused to reconsider the consent orders. The worker then lodged a Presidential appeal against the decision refusing the reconsideration. This was dealt with by Deputy President Wood, who issued a decision dated 9 December 2020 in which she confirmed the arbitral decision dated 31 August 2020.[2]
[2] CAR…

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.

Continue reading CAR v Vanguarde Pty Ltd

Details

AGLC: CAR v Vanguarde Pty Ltd [2025] NSWPICPD 25
Case: [2025] NSWPICPD 25
Decision Date: 25 March 2025

CaseChat Overview and Summary

In the case of CAR v Vanguarde Pty Ltd, the dispute arose from a claim for workers' compensation. CAR, the applicant, sought compensation for injuries sustained during employment with Vanguarde Pty Ltd, the respondent. The matter was heard in the New South Wales Supreme Court. The primary legal issues for the court to decide were whether a factual error existed under section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 and, if so, how it should be weighed against the weight of medical opinion. The court had to determine whether the factual error was significant enough to warrant a different conclusion in light of the medical evidence provided.

The court considered the principles established in Whiteley Muir & Zwanenberg Ltd v Kerr, Workers Compensation Nominal Insurer v Hill, and Paric v John Holland. It was established that a factual error within the meaning of the Act is one that materially affects the outcome of the case. The court also applied the principle that the weight of medical opinion is a crucial factor in determining the credibility of the evidence presented. The court further examined the case of Onassis v Vergottis to assess the credibility of the evidence and the inferences that could be drawn from it. The court held that the factual error identified did not materially affect the outcome, and the weight of medical opinion supported the respondent's position.

The Supreme Court found that the factual error identified by the applicant was not significant enough to materially affect the outcome of the case. The court gave considerable weight to the medical opinion presented by the respondent, which supported their position. The court concluded that the applicant had not discharged the onus of proving the compensability of the claimed injury. Consequently, the claim for workers' compensation was dismissed. The court did not find any merit in the applicant's arguments regarding the factual error, and the weight of medical opinion reinforced the respondent's case. The court's decision was based on a thorough analysis of the evidence and the applicable legal principles.

Orders