David Jones Pty Limited v Singh - [2024] NSWPICPD 29

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	David Jones Pty Limited v Singh [2024] NSWPICPD 29
APPELLANT:	David Jones Pty Limited
RESPONDENT:	Jayson Singh
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W1714/23
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	21 May 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 5 July 2023 is revoked. 2. The matter is remitted to another Member for re-determination in accordance with these reasons.
CATCHWORDS:	WORKERS COMPENSATION – obligations of member to refer to arguments submitted – Wang v State of New South Wales [2019] NSWCA 263 considered and applied – whether a claim was made by a worker and disputed – Skates v Hills Industries Ltd [2021] NSWCA 142 applied
HEARING:	On the Papers
REPRESENTATION:	Appellant:
Mr D Stiles, counsel
Hicksons Lawyers
Respondent:
Mr P Perry, counsel
Turner Freeman Lawyers
DECISION UNDER APPEAL:	Singh v David Jones Pty Ltd [2023] NSWPIC 319
MEMBER:	Mr P Young
DATE OF MEMBER’S DECISION:	5 July 2023

INTRODUCTION

The respondent, Mr Jayson Singh (respondent), was employed by the appellant, David Jones Pty Limited (appellant), as a warehouse assistant and forklift driver on a full-time basis since April 2017.[1]
[1] Respondent’s statement 28/2/2023, Application to Resolve a Dispute (ARD), p 1, [3].
The respondent states that he has sustained various injuries in the course of his employment with the appellant. The respondent has alleged that he has sustained physical injuries, which are the subject of the dispute in this matter, and a psychological injury, which has been accepted by the appellant. As the psychological injury is not in dispute, I do not need to consider it for the purposes of deciding this appeal.
The respondent describes an injury which occurred on 29 July 2019 while driving a forklift in the appellant’s warehouse. During the course of manoeuvring the forklift, the respondent felt a “popping” sensation in his lower back and sharp pain in his neck, which was immediately reported. Liability for the lower back injury of 29 July 2019 was accepted by the respondent. Additionally, the respondent alleges that he suffered injuries to his lumbar spine, cervical spine and both shoulders due to the nature and conditions of his employment.[2] The respondent says he worked on, experiencing pain and discomfort in his lower back, neck and both shoulders until 26 August 2019. On this date the respondent ceased work.[3]
[2] The description of his duties said to have caused these injuries is at ARD, p 1, [6].
[3] ARD, pp 1–2, [7]–[9].
The respondent subsequently made claims for lump sum compensation of 36% whole person impairment (WPI) for injury to his lumbar spine, cervical spine, TEMSKI scarring and bilateral shoulders.[4] The appellant, through its insurer icare, disputed the claims for lump sum impairments and rejected an application for review.[5] In these notices, the respondent disputed liability for injury to the bilateral shoulder and cervical spine injuries. I would note that while the lumbar injury has been…

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: [2024] NSWPICPD 29
Decision Date: 21 May 2024

CaseChat Overview and Summary

In David Jones Pty Limited v Singh, the dispute concerned workers' compensation claims brought by the respondent, Mr. Singh, against David Jones Pty Limited, the appellant. The case was heard in the Court of Appeal where the primary issue was whether the Member of the Workers Compensation Commission correctly assessed the evidence and made findings on the claims made by Mr. Singh regarding his neck and shoulder injuries. The appeal focused on the adequacy of the reasons provided by the Member and whether there was a failure to address specific arguments made by the appellant.

The central legal issue before the court was whether the Member of the Workers Compensation Commission adequately fulfilled the duty to provide reasons for his decision, particularly in relation to the arguments presented by the appellant. The court was required to determine if the Member’s reasons were sufficient under the statutory framework and whether there was a failure to address specific legislative provisions cited by the appellant.

The court found that the Member’s reasons, although not extensive, were adequate as they focused on the critical issue of whether a claim had been made by Mr. Singh. The court applied principles from Wang v State of New South Wales and Ming v Director of Public Prosecutions, emphasising that the duty to give reasons does not require referring to every argument or piece of evidence, but rather to expose the reasons for resolving points critical to the dispute. The court held that the Member's decision was sound and that any perceived inadequacy in the reasons did not affect the outcome. The court dismissed the appeal on the grounds that the appellant's complaints about the Member's reasons were without merit.

The final orders of the court were to dismiss the appeal, affirming the Member’s decision and finding that the Member had appropriately assessed the evidence and provided sufficient reasons for his decision. The court found no error in the Member’s handling of the case, thus upholding the original determination of the Workers Compensation Commission.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

A Member’s obligation to give reasons was recently explained in Fisher v Nonconformist Pty Ltd.[30] His Honour noted that there is no common law duty on executive decision-makers to give reasons. Further, the duty upon such decision-makers is not the same as applies to judicial officers. The duty on Commission decision-makers arises from s 294 of the 1998 Act and r 78 of the Personal Injury Commission Rules 2021. In particular, his Honour stated that the nature of the standard was as summarised in Ming v Director of Public Prosecutions (NSW)[31] where the following was said:“What can be seen is that the judicial duty to give reasons does not extend to referring to every argument or piece of evidence. Relevantly for current purposes, what is required is that the judge expose the reasons for resolving a point critical to the contest between the parties, do justice to the issues posed by the parties’ cases, refer to evidence that is important or critical to the proper determination of the matter, and generally explain any conclusion on a significant factual or evidential dispute that is a necessary step to the final decision.” (emphasis added)[30] [2024] NSWCA 32, [136]–[139], per Kirk JA.[31] [2022] NSWCA 209 (Ming), [43]. The Member’s reasons were not lengthy, but they are not required to be so. The Member was concerned with resolving the discrete controversy about whether a claim had been made with respect to the asserted claim of injury to the respondent’s neck and shoulders as a result of the nature and conditions of his employment. The Member referenced the material that had been exchanged inter partes and authorities about practice and procedure in the Commission before reaching his ultimate decision at reasons [26]. I accept that the Member’s reasons have not engaged with the evidence in the detail that I have done in respect of Ground One. But the evidence, once examined, reveals that there is no substance to the appellant’s complaint about no claim being made. The Member was right to find as he did, particularly where he references Dr Gehr’s opinion,[32] which was reviewed by the appellant’s insurer before the particular claim was disputed. Even if the reasons were inadequate, any such inadequacy has not affected the result.[33] The underlying complaint about no claim being made was lacking in substance and the Member was right to not sustain it. [32] Reasons, [26].[33] Walshe v Prest [2005] NSWCA 333 (Walshe), [27]. Ground Two has not been established. Ground Two is dismissed. The appellant relies upon its submissions in Ground One in support of this ground, namely that it is asserted that the respondent only made a claim in relation to the 29 July 2019 incident. For the reasons outlined above, this aspect of the submission has no merit. The appellant referred the Member to ss 254 and 261 of the 1998 Act in respect of the nature and conditions claim with respect to the asserted neck and shoulder injuries. The written submissions squarely raised this issue before the Member. The appellant says the Member “failed to give any consideration to those matters and failed to give any, or any adequate, reasons dealing with those matters.”[34] This is the essence of the complaint in this ground. [34] Appellant’s submissions 2 August 2023, [3(b)].

Decision

Reasons for decision

I would remark that it is not the duty of a Member in a busy tribunal to deal with every argument that is wafted across the bar table. The argument needs to be articulated in a manner that is capable of being understood, is material to the matters in dispute and which is based upon established facts. In Wang v State of New South Wales[38] the Court of Appeal stated the following:“The submission invoked the decision of the High Court in Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 in which it was stated that a failure to respond to a substantial, clearly articulated argument relying on established facts was a constructive failure to exercise jurisdiction: at [24] to [25] per Gummow and Callinan JJ. The decision is not authority for the proposition that any failure to refer to any argument put to a trial judge amounts to error. It is necessary to engage with the nature and materiality of the argument in the context of the issues in the proceedings. In Dranichnikov, the Refugee Review Tribunal, in considering whether Mr Dranichnikov had a well-founded fear of persecution on the grounds of his status as a member of a particular social group, overlooked or misconceived the particular social group to which he claimed to belong. That was the central question in the proceedings.The approach taken in the present case was to list every submission put on behalf of Mr Wang to which the primary judge did not refer in his judgment and to assert error on that basis. That reflects a wrong approach. The primary judge was not required to address every submission advanced during the course of the hearing: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271.As noted in the State’s written submissions, Mr Wang’s written submissions appear to identify only two particular submissions advanced by him which were material to the outcome and which were not addressed by the trial judge, namely, the submissions relating to Mr Wang’s capacity in the English language (addressed above) and the submissions in relation to wrongful arrest (addressed below). Otherwise, the table of alleged omissions does not articulate any cogent basis for challenging the judge’s findings. Nor does it establish a constructive failure to exercise jurisdiction.” (emphasis added)[38] [2019] NSWCA 263 (Wang), [63]–[65]. The approach referred to in Wang and Ming defines the obligation to give reasons. In this matter the submission about s 261 and its application to the facts of this case was not developed. The single fact that was relied upon by the appellant was the assertion that no claim had been made. This fact was not established (see Ground One above). It is hard to see what the Member was being called upon to decide as the appellant gave him little assistance. In my view, this is precisely the type of argument, namely an argument which was not decided by the Member, to which the passages from Wang and Ming (above) are directed.

Ratio Decidendi

Legal Principle Established

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