Dredge v Marco Polo Aged Care Services Ltd - [2021] NSWPIC 10

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dredge v Marco Polo Aged Care Services Ltd [2021] NSWPIC 10
APPLICANT:	Carron Marie Dredge
RESPONDENT:	Marco Polo Aged Care Services Ltd
MEMBER:	Kerry Haddock
DATE OF DECISION:	8 March 2021
CATCHWORDS:	WORKERS COMPENSATION- claim for weekly benefits and medical expenses as a result of psychological injury; it was conceded that the applicant has no work capacity; section 289A(4) of the 1998 Act; respondent sought leave to rely on novus actus interveniens, including a straight litigation neurosis; Karathanos v Industrial Welding Co Ltd considered; Held- leave granted to the respondent to rely on novus actus interveniens; in light of Kooragang Cement Pty Ltd v Bates, it is doubtful that Karathanos is still good law; the applicant’s incapacity for work was not the result of novus actus interveniens; Kooragang considered; the effects of the injury continued and the chain of causation was not cut; award for the applicant of weekly benefits and section 60 expenses.
DETERMINATIONS MADE:	1. That there is an award for the applicant pursuant to section 37 of the Workers Compensation Act 1987 at the rate of $842.63 per week from 6 January 2020 to date and continuing. 2. That there is an award for the applicant pursuant to section 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant, Carron Marie Dredge (Ms Dredge), was employed by the respondent, Marco Polo Aged Care Services Ltd (Marco Polo) as Care Staff (Assistant in Nursing - AIN).
Ms Dredge sustained a psychological injury, the deemed date of which is accepted to be 20 June 2019, arising out of or in the course of her employment.
The applicant claims weekly benefits compensation from 6 January 2020 to date and continuing, pursuant to section 37 of the Workers Compensation Act 1987 (the 1987 Act); and medical expenses pursuant to section 60 of the 1987 Act of $2,463.69.
The respondent’s insurer, iCare Workers Insurance (iCare), issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management andWorkers Compensation Act 1998 (the 1998 Act) on 12 December 2019. It disputed liability for ongoing payment of weekly benefits for the injury on 20 June 2019. The reason for the decision was that the applicant did not have a total or partial incapacity for work resulting from an injury. iCare therefore disputed liability for the payment of weekly benefits and medical expenses.
The dispute notice stated that iCare had previously accepted liability for psychological injury sustained on 20 June 2019 but had received medical evidence that the applicant’s condition had resolved; and she was fit to return to work as an AIN.
On 3 January 2020, the applicant requested a review of the decision to dispute liability.

The decision was maintained by notice issued on 16 January 2020. The notice referred to the applicant having presented to her treating psychologist on 18 December 2019 as teary and emotional in the context of her claim being denied.
The notice stated…

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: [2021] NSWPIC 10
Decision Date: 8 March 2021

CaseChat Overview and Summary

In the case of Dredge v Marco Polo Aged Care Services Ltd, the applicant sought weekly benefits and medical expenses due to a psychological injury sustained during employment. The applicant conceded they had no work capacity. The respondent sought leave to rely on the concept of novus actus interveniens, including the development of a straight litigation neurosis. The matter was heard in the Court of Appeal.

The legal issues before the court were whether the applicant's incapacity for work was a result of the original injury or whether a new act had intervened, such as the development of a litigation neurosis. The court considered the relevant case law, including Karathanos v Industrial Welding Co Ltd, and the implications of Kooragang Cement Pty Ltd v Bates. The court needed to determine whether the novus actus interveniens doctrine applied and, if so, whether it broke the chain of causation.

The court found that leave should be granted to the respondent to rely on novus actus interveniens. However, in light of the more recent decision in Kooragang, the court doubted the continued validity of Karathanos. The court held that the effects of the injury continued, and the chain of causation was not broken. Consequently, the applicant was awarded weekly benefits and section 60 expenses.

The court's final orders included the awarding of weekly benefits and section 60 expenses to the applicant. The court determined that the respondent's claim of novus actus interveniens did not succeed, as the chain of causation was not broken.

Orders