CSR Building Products Limited v Delaney - [2024] NSWPICPD 44

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	CSR Building Products Limited v Delaney [2024] NSWPICPD 44
APPELLANT:	CSR Building Products Limited
RESPONDENT:	Steven Charles Delaney
INSURER:	CSR Limited
FILE NUMBER:	A1-W3425/23
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	9 August 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 31 July 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – whether the Member failed to address the appellant’s submissions – adequacy of reasons – Roncevich v Repatriation Commission [2005] HCA 40 applied – whether the medical opinion expressed was produced in a “fair climate” Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 applied – certification by legal practitioner that there are reasonable prospects of success
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr T Grimes, counsel
Hall & Wilcox
Respondent:
Mr G Young, counsel
Brazel Moore Lawyers
DECISION UNDER APPEAL:	Delaney v CSR Building Products Ltd [2023] NSWPIC 378
MEMBER:	Ms K Garner
DATE OF MEMBER’S DECISION:	31 July 2023

INTRODUCTION AND BACKGROUND

Mr Steven Charles Delaney (the respondent) was employed by CSR Building Products Limited (the appellant) as a forklift operator and subsequently as a team leader. He suffered an injury to his lower back in the course of his employment on 14 April 2010, following which he underwent surgery in the form of an anterior spinal fusion at the L5/S1 level of his spine performed by Dr Marc Coughlan, neurosurgeon. Liability for that injury was accepted and the respondent ultimately returned to his pre-injury duties.
The respondent alleged a further injury to his lower back on 8 November 2021, liability for which was initially accepted by the appellant. The injury was said to have occurred when the respondent was driving a forklift over a pothole. The respondent had time off work and gradually returned to work with physical restrictions in place.
On 2 March 2022, the respondent attended his general practitioner, Dr Gillian Moreland, complaining of an onset of severe sciatica. Dr Moreland arranged for an MRI scan of the respondent’s lumbar spine, which disclosed a disc prolapse at the L1/2 level of the lumbar spine, which was not evident in an earlier MRI scan taken following the November 2021 injury. He ceased work, returned to see Dr Coughlan and Dr Coughlan performed a microdiscectomy at that level.
The respondent lodged a workers compensation claim, alleging that the onset of the severe sciatica was referable to the injury on 8 November 2021.
On 3 May 2022, the appellant declined liability for the respondent’s injury, disputing that the respondent’s continuing incapacity for work and need for treatment resulted from the injury on 8 November 2021.
The respondent commenced proceedings in the Personal Injury Commission (the Commission) and the issue was determined by a Member of the Commission in favour of the respondent.
The appellant appeals the decision.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that…

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.

Keep reading for free

Create a free CaseChat account to read CSR Building Products Limited v Delaney 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: [2024] NSWPICPD 44
Decision Date: 9 August 2024

CaseChat Overview and Summary

CSR Building Products Limited, the appellant, contested a decision of the Personal Injury Commission of New South Wales, represented by its Member, the respondent. The primary issue was whether the respondent adequately addressed the appellant's submissions in accordance with Rule 78 of the Personal Injury Commission Rules 2021. Specifically, the appellant argued that the respondent failed to adequately address its submissions, particularly regarding the causation of the injury, which was a key issue in the case.

The legal issues before the court included whether the respondent had failed to address the appellant's submissions as required by Rule 78 and whether the medical opinion expressed was produced in a "fair climate," as discussed in Paric v John Holland (Constructions) Pty Ltd. The court had to determine if the respondent's determination was accompanied by sufficient reasons, and whether the failure to adequately address the submissions constituted a ground for appeal under the relevant legislation. Additionally, the court examined whether the certification by a legal practitioner that there were reasonable prospects of success on appeal was properly made.

The court found that while there was some overlap in the grounds of appeal, the manner in which the submissions were addressed did not comply with the Commission’s Procedural Direction No WC 3 – Presidential appeals and questions of law. The respondent's approach was not helpful and did not sufficiently address the appellant's submissions. The court also found that the medical opinion was not produced in a fair climate, as required by Paric. Consequently, the court granted the appeal, finding that the respondent had not adequately addressed the appellant's submissions, and the certification for appeal was valid. The matter was remitted to the respondent for further consideration.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Rule 78 of the Personal Injury Commission Rules 2021 (the 2021 Rules) provides:“78 Statement of reasons for decision(1) This rule applies only in relation to the following applicable proceedings—(a)Commission proceedings,(b)merit review proceedings.(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—(a)the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,(b)the appropriate decision-maker’s understanding of the applicable law,(c)the reasoning processes that led the appropriate decision-maker to the conclusions made.(3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.” Injury is defined in s 4 of the 1987 Act as follows:“4 Definition of ‘injury’ (cf former s 6 (1))In this Act—injury—(a)means personal injury arising out of or in the course of employment,(b)includes a disease injury, which means—(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and(c)does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.” In his Notice of Opposition to Appeal Against Decision of a Member, the respondent provided his submissions in respect of Ground A of the appeal and proceeded to respond to the remaining grounds under one heading, contrary to the Commission’s Procedural Direction No WC 3 – Presidential appeals and questions of law. The respondent also included reference to a “Ground 4”, when there is no such ground in this appeal. While there is a degree of overlap between the grounds of appeal, the manner in which the submissions are addressed is not helpful. The respondent generally submits that the appellant’s appeal is an attempt to classify the Member’s finding on causation as an error of law when, in reality, it is an appeal from findings of fact. The respondent asserts that the Member’s decisions should therefore not be disturbed on appeal because her conclusions were fairly open to her, and thus no error is established, referring to Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd[33] and Andersen.[33] [2001] FCA 1833 (Branir).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.