Council of the City of Sydney v Estate of Belinda Jane Griffey (No 2)

[2008] NSWWCCPD 115

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Council of the City of Sydney v Estate of Belinda Jane Griffey and Anor (No 2) [2008] NSWWCCPD 115
APPELLANT:		Council of the City of Sydney
FIRST RESPONDENT: SECOND RESPONDENT:		Christine Griffey and Kevin John Griffey as Executors of the Estate of the late Belinda Jane Griffey Sydney West Area Health Service
INSURER:		Self Insured
FILE NUMBER:		WCC18397-06
DATE OF ARBITRATOR’S DECISION:		12 March 2008
DATE OF APPEAL DECISION:		15 October 2008
SUBJECT MATTER OF DECISION:		Causation; novus actus interveniens; permanent impairment and pain and suffering; sections 66 and 67 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:		Deputy President Gary Byron
HEARING:		Determined on the papers
REPRESENTATION:		Appellant:		Home Wilkinson Lowry Lawyers
First Respondent:		Burston Cole & Mulock Pty Ltd
Second Respondent:			GIO General Insurance Law Department
ORDERS MADE ON APPEAL:		Paragraphs (i) and (ii) of the decision of the Arbitrator dated 12 March 2008 are revoked.  Paragraph (iii) is confirmed.
The Second Respondent is to pay the Appellant’s costs of this appeal.

THE BACKGROUND

1. On 9 April 2008 the Council of the City of Sydney sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 12 March 2008.

1. The First Respondent to the Appeal was the late Belinda Jane Griffey, but is now Christine Griffey and Kevin John Griffey as Executors of the Estate of the late Belinda Jane Griffey, pursuant to an order made under Rule 18.4(2) and 18.4(3) of the Workers Compensation Commission Rules 2006, on 17 September 2008.

1. The Second Respondent is the Sydney West Area Health Service (‘the Hospital’).

1. All of the relevant background information and details as to: the decision under review (at [40]), the issues in dispute, determination on the papers, grant of leave to appeal, admission of fresh evidence as to the death of Ms Griffey and the details of the grant of probate, evidence in this matter, submissions on appeal, and discussion and findings are set out in the Reasons for decision in Council of the City of Sydney v Estate of Belinda Jane Griffey (No 1) [2008] NSWWCCPD 114.

DECISION

1. The appeal is successful.  Paragraphs (i) and (ii) of the Arbitrator’s decision dated 12 March 2008 are revoked.  Paragraph (iii) is confirmed.

COSTS

1. The Hospital, the Second Respondent, is to pay the Appellant’s costs of this appeal.

1. No further order is made as to costs.

Gary Byron

Deputy President  

15 October 2008.

I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEPUTY PRESIDENT GARY BYRON OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE