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Cessnock City Council v Wilson

Cessnock City Council v Wilson

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Case Copied 1 December 2022 52 min read

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Cessnock City Council v Wilson [2022] NSWPICPD 46
APPELLANT:	Cessnock City Council
RESPONDENT:	Troy Wilson
INSURER:	StateCover Mutual Limited
FILE NUMBER:	A1-W2472/21
PRESIDENTIAL MEMBER:	Acting Deputy President Kylie Nomchong SC
DATE OF APPEAL DECISION:	1 December 2022
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 2 December 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – injury – reliability of the evidence – reliability of a treating doctor’s clinical notes – the drawing of inferences – Jones v Dunkel [1959] HCA 8 discussed – Amaca Pty Ltd (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151 considered and applied – procedural fairness – whether there is error in not dealing with a submission concerning whether a Jones v Dunkel inference should be drawn
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr J Catsanos SC, counsel
Bartier Perry Lawyers
Respondent:
Mr L Morgan, counsel
Carroll & O’Dea Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr P Young
DATE OF Member’s DECISION:	2 December 2021

INTRODUCTION

On 2 December 2021, the Member determined that Troy Wilson (the respondent to the appeal) suffered an injury to his right hip and right leg in the course of employment on 17 June 2020 whilst getting out of a truck. As a result, the Member made awards for weekly payments pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act) and an award for medical expenses pursuant to s 60 of the 1987 Act.[1] The proceedings before the Member involved cross-examination of the respondent worker.
[1] Wilson v Cessnock City Council [2021] NSWPIC 497 (the reasons).
The respondent’s employer, Cessnock City Council (the appellant), has appealed that determination. Although there are three grounds of appeal, they are all directed to the finding that the respondent was injured during the course of his employment. Those grounds are:
(a)    the Member made an error of fact in determining that the respondent had suffered an injury during the course of his employment on 17 June 2020 (Ground One);
(b)    the Member made an error of fact in failing to draw a Jones v Dunkel[2] inference because the respondent did not call evidence from his treating general practitioner, Dr Wang; and an error of law because the Member failed to consider the appellant’s argument on the Jones v Dunkel point (Ground Two), and
(c)    by reason of the Member’s analysis of Dr Wang’s clinical notes and because the Member did not provide the appellant with procedural fairness as to the weight the Member was going to put on an incorrect entry in those clinical notes, the Member engaged in an error of fact (Ground Three).
[2] [1959] HCA 8 (Jones v Dunkel).
There is no challenge to the findings of incapacity or to the finding that medical expenses were reasonably necessary, including hip…

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] NSWPICPD 46
Decision Date: 1 December 2022

CaseChat Overview and Summary

Cessnock City Council has appealed a decision of the Workers Compensation Nominating Authority which found that the appellant was liable to pay workers compensation to the respondent, Mr Wilson, who had suffered an injury in the course of his employment. The decision of the Authority was that the appellant had failed to discharge the onus of proving that the injury was not caused by the employment. The appellant's appeal was heard by the NSW Supreme Court, with Adams J hearing the matter at first instance and Hamill J presiding in the Court of Appeal.

The appellant argued that the Authority had erred in finding that it was open to infer, pursuant to the decision in Jones v Dunkel, that the injury arose out of the employment of the respondent. The appellant submitted that the Authority had failed to deal with a submission concerning whether there was error in not drawing an inference that the injury did not arise out of the employment. The respondent argued that the appellant had not demonstrated that the Authority's decision was unreasonable and that the appeal should be dismissed.

The Court of Appeal held that the Authority's failure to deal with the submission concerning whether there was error in not drawing an inference that the injury did not arise out of the employment was not an error. The Court found that the submission was in relation to an inference under the decision in Jones v Dunkel, and that the Authority had dealt with the issue of whether an inference should be drawn under Jones v Dunkel in its consideration of the evidence. The Court further held that the Authority's decision to find that it was open to infer that the injury arose out of the employment was not unreasonable. The Court found that the Authority had properly considered the evidence before it and that there was no error in its decision.

The Court of Appeal dismissed the appeal and upheld the decision of the Authority.

Orders