Devenish v Kizlock Pty Ltd

The applicant, Devenish, sought compensation for an injury sustained during the course of his employment. The appellant, Kizlock Pty Ltd, contested the claim. The dispute was heard in the New South Wales Civil and Administrative Tribunal (NCAT). The central issue before the court was whether Devenish’s injury, an aggravation of a pre-existing lumbar spondylolisthesis, was caused by a fall at work on or about 26 November 2017. The appellant argued that there was no evidence of a direct causal link between the fall and the injury, and that the absence of contemporaneous complaints undermined the claim. The court needed to determine if Devenish's injury was a result of the fall and if it was work-related.

The court examined the expert medical evidence provided by both parties and considered the absence of contemporaneous complaints by Devenish. It noted that the acceptance or rejection of expert evidence is not solely based on the presence of contrary expert opinion, as per Wiki v Atlantis Relocations (NSW) Pty Ltd and Hancock v East Coast Timber Products Pty Ltd. The court also assessed whether the error in the fact-finding process by the appellant, as highlighted in Raulston v Toll Pty Ltd, warranted a revision of the original decision. Additionally, the court underscored the necessity for expert medical opinion, as illustrated in Strinic v Singh, to substantiate the applicant's claim. The court found that the evidence supported the applicant's claim that the injury was work-related and caused by the fall, despite the lack of contemporaneous complaints.

Consequently, the tribunal revoked the Certificate of Determination and made new findings and orders. It determined that Devenish had suffered an injury in the form of an aggravation of a pre-existing lumbar spondylolisthesis as a result of a fall on or about 26 November 2017. The tribunal found that the fall was a consequence of the appellant’s accepted injuries to his left knee on 2 July 2010 and on 14 September 2012. Pursuant to section 60 of the Workers Compensation Act 1987, the appellant was ordered to pay the costs of and incidental to the lumbar laminectomy and L5/S1 level fusion performed by Associate Professor Mark Davies on 7 June 2018.