Coates Hire Operations Pty Ltd v Geddes

Link copied
Case Copied 30 min read
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION: Coates Hire Operations Pty Ltd v Geddes [2008] NSWWCCPD 120
APPELLANT: Coates Hire Operations Pty Ltd
RESPONDENT: Todd Geddes
INSURER: QBE Workers Compensation (NSW) Limited as Agent for the NSW WorkCover Scheme
FILE NUMBER: WCC1858-08
DATE OF ARBITRATOR’S DECISION: 30 May 2008
DATE OF APPEAL DECISION: 21 October 2008
SUBJECT MATTER OF DECISION: Injury; neck complaints arising after back injury; sufficiency of evidence for finding of causal connection by Arbitrator; medical opinion; Makita (Australia) Pty Limited v Sproules (2001) 52 NSWLR 705
PRESIDENTIAL MEMBER: Acting Deputy President Anthony Candy
HEARING: On the papers
REPRESENTATION: Appellant: Sparke Helmore, Lawyers
Respondent: Bullivants Legal
ORDERS MADE ON APPEAL:

The decision of the Arbitrator dated 30 May 2008 is revoked and the following decision is made in its place:

“(1)  The permanent impairment dispute is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of permanent impairment in respect of the lumbar spine, the date of injury being 10 October 2002.

Each party is to bear its or his own costs of the appeal.

BACKGROUND TO THE APPEAL

  1. Todd Geddes (‘the worker’) was employed by Coates Hire Operations Pty Ltd (‘the employer’) at its Muswellbrook premises as an assistant manager and suffered injury to his low back on 10 October 2002 on two occasions, the first when he was lifting a jackhammer and felt a slight twinge and then when he was lifting and twisting while carrying a pump. He was away from work for two and a half working days, resuming on 15 October 2002. This appeal concerns neck pain which came on four years later.

  2. A claim for workers compensation was made to QBE Workers Compensation (NSW) Limited (‘the insurer’) which was accepted and compensation was paid.

  3. The worker on the day of the injury consulted a general practitioner in Muswellbrook, Dr Rikard-Bell, who certified an acute back spasm.  After this, however, the worker consulted a general practitioner, Dr Ford, who practised in Singleton where the worker then lived.  The worker attended Dr Ford for treatment although he continued working. The latest certificate of Dr Ford is of 21 April 2005 and refers to the diagnosis as being:  “Thoracic lumbar spine dysfunction”.

  4. Dr Ford wrote to the insurer on 21 July 2004.  He advised that continued physiotherapy and strengthening treatment would only have marginal benefit. The worker had been complaining of his condition for at least two and a half years (this period appears incorrect) and had rehabilitation both from Hunter Rehabilitation as well as a rehabilitation program instigated by Dr Russo but neither had made a significant difference to his complaint.  The driving of a 2-tonne truck was identified as an aggravation of the worker’s thoraco-lumbar back pain.

  5. On 18 August 2005 the insurer wrote to the worker advising that it was unable to offer a settlement of a claims made under sections 66 and 67 of the Workers Compensation…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Coates Hire Operations Pty Ltd v Geddes and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2008] NSWWCCPD 120
Decision Date

CaseChat Overview and Summary

Coates Hire Operations Pty Ltd sought review of a decision by an Arbitrator, who determined that the respondent, Mr Geddes, was not entitled to compensation for a neck injury that arose following a prior back injury. The dispute was heard in the Federal Circuit Court of Australia. The key issue before the court was whether the Arbitrator erred in finding that there was insufficient evidence to establish a causal connection between the back injury and the subsequent neck complaints. This required the court to examine the standard of proof required in such cases and whether the Arbitrator's findings were supported by the evidence.

The court examined the Arbitrator's reliance on the decision in Makita (Australia) Pty Limited v Sproules, which set out the principles for determining causation in workers' compensation cases. The court noted that while medical evidence may not establish causation with absolute certainty, it need only show that it is more probable than not that the injury arose from the employment. The court also considered other authorities, including EMI (Australia) Ltd v Bes and St George Club Ltd v Hines, which reinforced the principle that a claimant need not prove causation to a scientific certainty, but rather on the balance of probabilities. The court found that the Arbitrator had applied an incorrect standard of proof, requiring certainty rather than a balance of probabilities. Consequently, the Arbitrator's decision was set aside, and the matter was remitted for reassessment by an Approved Medical Specialist.

The court's final orders revoked the Arbitrator's decision and directed that the dispute over permanent impairment be referred to a medical specialist for reassessment, specifically concerning the lumbar spine injury. Each party was ordered to bear their own costs associated with the appeal.

Orders

Orders of the court

The decision of the Arbitrator dated 30 May 2008 is revoked and the following decision is made in its place:

“(1) The permanent impairment dispute is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of permanent impairment in respect of the lumbar spine, the date of injury being 10 October 2002.

Each party is to bear its or his own costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I turn to the authorities relied on by the Arbitrator. EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 (‘Bes’) was a decision of the Court of Appeal (Herron CJ, Asprey JA and Holmes J). In that case, the claim in respect of a worker who died in a motor car accident 12 days after suffering a head injury succeeded in the Workers’ Compensation Commission when the trial judge accepted that the car accident was caused by syncope largely as the result of the intake of large doses of analgesic following the head injury. Although the Arbitrator does not refer to a particular passage, it seems to me that the passage of particular relevance appears at 242 being part of the judgment of the Chief Justice. It is as follows:“Much the same thesis is to be found in Ramsay v Watson in the High Court, ([1961] NSWR p619; 108 CLR p642) and I particularly refer to the passage in the joint judgment of their Honours at the foot of 108 CLR at p645. It seems to me that that bears out what I have concluded is the correct principle to apply, namely, that it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical evidence states with certainty the very issue on which the judge himself has to try.” (Emphasis added.) His Honour in his reasons referred to the High Court decision in St George Club Ltd v Hines (1961-62) 35 ALJR 106. That Court in a joint judgment said this at 107:“In an action at law a plaintiff does not prove his case merely by showing that it was possible that his injury was caused by the defendant’s default. Bonnington Casting Ltd v Wardlaw ((1956) AC 613); nor does proof of default followed by injury show that the default caused the injury, for as Viscount Simonds said in Quinn v Cameron and Roberton Ltd ((1958) AC 9, at p23), ‘ “Post hoc ergo propter hoc” is a fallacy in respect of a breach of a statutory regulation as it is in respect of any other event in life.’ Similar principles apply to a claim for compensation where it is necessary to show that the employment contributed to the injury. In this case, however, we consider that there was evidence which, if accepted, could be regarded as making it appear that on the balance of probabilities the heavy lifting contributed to the happening of an occlusion which resulted in the worker’s death. The correctness of the medical evidence supporting this conclusion and the inference that ought to be drawn from the evidence as a whole were questions for the Commission but they are not questions for us.” (Emphasis added.)

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.