Dent v Coles Group Supply Chain Pty Ltd

Case [2024] NSWPICPD 81

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

Dent v Coles Group Supply Chain Pty Ltd [2024] NSWPICPD 81

APPELLANT:

Dean Jonathan Dent

RESPONDENT:

Coles Group Supply Chain Pty Ltd

INSURER:

Coles Group Limited

FILE NUMBER:

A1-W8542/23

PRESIDENTIAL MEMBER:

President Judge Phillips

DATE OF APPEAL DECISION:

11 December 2024

ORDERS MADE ON APPEAL:

1. The appellant’s application to adduce fresh evidence on appeal pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 is rejected.

2.    The Certificate of Determination dated 20 February 2024 is confirmed.

CATCHWORDS:

WORKERS COMPENSATION – Fresh evidence – s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 - CHEP Australia Ltd v Strickland [2013] NSWCA 351 considered and applied – jurisdiction of Personal Injury Commission dependant upon existence of a dispute – Skates v Hills Industries Ltd [2021] NSWCA 142 applied

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr C Tanner, counsel

Walker Law Group

Respondent:

Mr T Grimes, counsel

DECISION UNDER APPEAL:

Dent v Coles Group Supply Chain Pty Ltd [2024] NSWPIC 68

MEMBER:

Mr P Sweeney

DATE OF MEMBER’S DECISION:

20 February 2024

INTRODUCTION

  1. Dean Dent (the appellant) was employed by Coles Group Supply Chain Pty Limited (the respondent) and worked as an order selector from 11 November 1999 until 22 March 2005. He was made redundant from his employment in 2007.[1]

    [1] Application to Resolve a Dispute (ARD), pp 1–3.

  2. In 2002 and 2004, during the course of his employment, the appellant suffered injuries to his left shoulder. The respondent accepted liability for both injuries.

  3. On 5 May 2023, the appellant made a claim pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 32% whole person impairment (WPI) for the injury sustained to his left shoulder and also an injury to his right shoulder. The respondent issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 10 October 2023 denying liability for both the left and right shoulder.[2]

    [2] ARD, p 32.

  4. On 14 November 2023 the appellant filed an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (the Commission) claiming lump sum compensation for the bilateral shoulder injuries, or in the alternative, the right shoulder condition as consequential to the left shoulder.

  5. The matter was listed before Member Sweeney (as he then was), being heard on 1 February 2024, with both parties making oral submissions. The respondent accepted liability for the left shoulder injury however maintained its dispute in respect of the right shoulder. In a written decision dated 20 February 2024,[3] the Member found in favour of the respondent that there was no injury to the right shoulder or a consequential medical condition of the right shoulder.

  6. The appellant appeals from that decision.

ON THE PAPERS

  1. Section 52(3) of the Personal Injury Commission…

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Dent v Coles Group Supply Chain Pty Ltd [2024] NSWPICPD 81
Case
[2024] NSWPICPD 81
Decision Date

CaseChat Overview and Summary

The appeal in Dent v Coles Group Supply Chain Pty Ltd was brought by the appellant, who sought to overturn a decision made by the Personal Injury Commission. The appellant contested the Commission's determination regarding his right shoulder injury, which he claimed occurred either directly from his employment or as a consequence of a previously accepted left shoulder injury. The respondent opposed the appellant's claims and argued that the Commission's decision was correct.

The central legal issue the court had to address was whether the appellant could rely on fresh evidence to support his claim that the Commission's understanding of events at a preliminary conference was incorrect. The appellant sought to introduce statements from his representatives to contradict the Commission's version of events. The respondent argued against the acceptance of this fresh evidence, citing relevant sections of the Workplace Injury Management and Workers Compensation Act 1998. The court needed to determine if the fresh evidence could be admitted under s 352(6) of the Act and whether the Commission's jurisdiction to hear the appeal was valid.

The court examined the provisions of s 352(6) of the 1998 Act, which outlines the conditions for the Commission to accept fresh evidence on appeal. The court found that the appellant's statements did not meet the criteria for fresh evidence as they did not provide a substantial reason for their non-submission at the original hearing. The court also considered the implications of Skates v Hills Industries Ltd [2021] NSWCA 142, which reinforced the necessity of a dispute for the Commission's jurisdiction to be invoked. Given these considerations, the court dismissed the appellant's application for fresh evidence and upheld the Commission's decision. The appeal was therefore unsuccessful.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I would note that the appellant seeks to rely on two statements which go to what transpired in the preliminary conference. At paragraph 2.5 of the appellant’s submissions the following is put:“NEW EVIDENCE The worker relies on the statements of Steve Walker and Ivica Covic, in order to address the Member’s version of the matters discussed at the preliminary conference.” This application for fresh evidence is then developed in the following manner:“20. Moreover, and regrettably, the Member’s version as to what occurred at the preliminary conference is improbable and at odds with the recollection, and record, of the worker’s representatives, Mr Walker and Mr Covic. 21. It will be noted that Mr Walker and Mr Covic confirm that Mr Walker did not proceed ‘on the basis both injury and consequential medical condition of the right shoulder were issues that required resolution or determination by the Commission at an arbitration hearing’.22. As Mr Walker and Mr Covic confirm, the issue of whether the worker had developed a consequential medical condition of the right shoulder as a result of the left shoulder injury was not mentioned or considered. As Mr Walker notes further, he would have contested any suggestion that there was a dispute before the Commission regarding the consequential of the 1998 Act [sic], would have stated that the respondent would need to make an application pursuant to section 289A of the 1998 Act if it wished to raise a dispute as to the development of a consequential condition, and would recall discussion regarding such adversarial discussion had it occurred.” The appellant in his submissions in reply dated 17 May 2024 at paragraphs [1]–[8], sets out in more detail why he says that the Member was wrong in his finding at reasons [40], which the appellant alleges misrepresents what occurred at the preliminary conference. I have read these paragraphs but do not repeat them. The respondent opposes the appellant’s reliance on additional or fresh evidence, citing the provisions of s 352(7) of the 1998 Act. This reference I take to be to s 352(6) of the 1998 Act, which sets out the requirements to be satisfied for the Commission to receive fresh evidence on appeal. I will deal with this application for fresh evidence below. The appellant’s case was that the right shoulder injury occurred directly as a result of the nature and conditions of his employment with the respondent, or in the alternative, was consequential to the accepted left shoulder injury. As part of his submissions, the appellant argued that the respondent was precluded from denying he developed a consequential condition in the right shoulder resulting from the left shoulder injury, as there was no explicit denial of it in the s 78 notice.[4] [4] Reasons, [10]. The appellant also argued that the arduous physical nature of the appellant’s employment with the respondent should be accepted as to cause the right shoulder injury, and any treating doctors’ notes suggesting the contrary should be treated with caution as provided in Davis v Council of the City of Wagga Wagga and other authorities.[5][5] Reasons, [12].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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