Fairfield City Council v Comlekci - [2023] NSWPICPD 45

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Fairfield City Council v Comlekci [2023] NSWPICPD 45
APPELLANT:	Fairfield City Council
RESPONDENT:	Naciye Comlekci
INSURER:	Self-insured
FILE NUMBER:	A2-W6635/21
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	8 August 2023
ORDERS MADE ON APPEAL:	1. The Certificates of Determination dated 21 April 2022 and 6 April 2023 are confirmed.
CATCHWORDS:	WORKERS COMPENSATION – sections 3 and 42 of the Personal Injury Commission Act 2020 – object and guiding principle of the Act to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible – the duty to co-operate with the Commission to give effect to the guiding principle to participate in the processes of the Commission and to comply with directions and orders of the Commission – assessment of earnings in the absence of precise evidence - New South Wales v Moss [2000] NSWCA 133 considered
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Macken, solicitor
Leigh Virtue & Associates
Respondent:
Mr A J Parker, counsel
Carroll & O'Dea Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr G Whiffin
DATE OF MEMBER’S DECISION:	6 April 2023

INTRODUCTION AND BACKGROUND

The respondent, Naciye Comlekci, was employed by the appellant as a full-time early childhood educator. On 10 September 2020, whilst working at the appellant’s Wetherill Park Early Learning Centre, the respondent’s right wrist was injured in the following manner. The respondent and another staff member were attempting to stop a child from climbing over a fence. The child approached the respondent and head butted her. In the process, the respondent put up her hands to protect herself and felt her right hand being suddenly forced downwards. The respondent reports that she was immediately in pain and attended her GP. The respondent was off work for a short period of time and then performed restricted duties until 5 August 2021. On that date the respondent was informed that unless she was cleared to return to her full pre-injury duties, she would not be permitted to work.
The appellant issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying liability for the respondent’s injuries to her right hand/wrist on 13 April 2021.[1] The notice denied injury or that employment was a substantial or main contributing factor, and in the alternative, denied there to be a continuing causal connection between any injury or employment. Sections 4(b), 9A, 33 and 60 of the Workers Compensation Act 1987 (the 1987 Act) were relied on. An Application to Resolve a Dispute (ARD) was then filed in the Personal Injury Commission (the Commission) by the respondent on 21 December 2021 claiming both weekly compensation and medical expenses. The matter proceeded to arbitration before the Member and concluded by way of written submissions. The issues to be determined by the Member were clarified to include whether the respondent had sustained injury as defined by s 4(a) of…

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: [2023] NSWPICPD 45
Decision Date: 8 August 2023

CaseChat Overview and Summary

The case of Fairfield City Council versus Comlekci involved a dispute concerning workers' compensation claims. The plaintiff, Comlekci, sought compensation from the defendant, Fairfield City Council, following an injury sustained during employment. The matter was heard in the Personal Injury Commission, an institution established under the Personal Injury Commission Act 2020. The central issues before the court were the assessment of Comlekci's earnings for the purposes of calculating compensation and the extent to which the parties were required to cooperate with the Commission to facilitate a just, efficient resolution of the dispute.

The court examined the statutory framework of the Personal Injury Commission Act 2020, focusing on sections 3 and 42, which outline the objectives and guiding principles of the Commission. The court noted that the guiding principle is to resolve real issues in proceedings justly, quickly, cost-effectively, and with as little formality as possible. This principle necessitated a cooperative approach from both parties, requiring them to participate in the Commission's processes and comply with its directions and orders. The court also considered the case of New South Wales v Moss, which provided guidance on assessing earnings in the absence of precise evidence. Based on these considerations, the court found that Comlekci had not fully cooperated with the Commission's processes, and the Council had not provided sufficient evidence to support its claim for a reduced compensation amount.

The court ruled in favour of Comlekci, ordering the Council to pay compensation based on the assessment of earnings provided by Comlekci, as the Council had not presented sufficient evidence to support its claim for a reduced amount. The decision underscored the importance of cooperation and compliance with the Commission's processes to ensure the objectives of the Personal Injury Commission Act 2020 are met. The court's decision highlighted that while the guiding principle of the Act is to resolve disputes efficiently, parties must still provide evidence to support their claims and cooperate with the Commission to achieve this goal.

Orders