Gray v Barry Bros Specialised Services Pty Ltd - [2023] NSWPIC 364

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Gray v Barry Bros Specialised Services Pty Ltd [2023] NSWPIC 364
APPLICANT:	Denis James Gray
RESPONDENT:	Barry Bros Specialised Services Pty Limited
Member:	Gaius Whiffin
DATE OF DECISION:	24 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for neck and back injuries; claim for compensation pursuant to section 66; parties reach agreement in relation to claim for further permanent impairment of the back; consideration of applicant’s statements, other statements and factual material, claim correspondence, as well as medical reports and other treatment records; consideration of whether the applicant sustained an injury to his neck arising out of or in the course of his employment with the respondent on 17 November 1997; and to which his employment with the respondent was a substantial contributing factor; consideration of the rule in Jones v Dunkel; consideration of the persuasion required for the applicant to overcome his burden of proof; consideration of the caution to be given when reviewing clinical records; Jones v Dunke, Manly Council v Byrne, State Bank of NSW v Brown, Drca v KAB Seating Systems Pty Ltd, Davis v Council of the City of Wagga Wagga, and Mason v Demasi considered; Held – the applicant did not sustain an injury to his neck arising out of or in the course of his employment with the respondent on 17 November 1997, and to which his employment was a substantial contributing factor; there will be an award in favour of the respondent with respect to the applicant’s claim pursuant to section 66 for any permanent impairment of the neck; in accordance with the parties’ agreement, there will however also be an award in favour of the applicant with respect to his claim pursuant to section 66 for further permanent impairment of the back; declaration pursuant to section 162(1) also made.
determinations made:	The Commission determines: 1. The applicant did not sustain an injury to his neck arising out of or in the course of his employment with the respondent on 17 November 1997, and to which his employment was a substantial contributing factor. The Commission orders: 1. I declare, pursuant to s 162(1) of the Workers Compensation Act 1987 (the 1987 Act), that Barry Bros Specialised Services Pty Limited entered into a contract with an insurer now known as AAI Limited t/as GIO in respect of its liabilities under the 1987 Act to the applicant, and that Barry Bros Specialised Services Pty Limited (being a corporation) has now ceased to exist. 2. In accordance with the agreement of the parties, there will be an award in favour of the applicant pursuant to s 66 of the 1987 Act in the amount of $2,100, representing 3.5% further permanent impairment of the back. 3. There will be an award in favour of the respondent with respect to the applicant’s claim pursuant to s 66 of the 1987 Act for any permanent impairment of the neck.

STATEMENT 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] NSWPIC 364
Decision Date: 24 July 2023

CaseChat Overview and Summary

In the case of Gray v Barry Bros Specialised Services Pty Ltd, the applicant, Gray, pursued a claim for workers' compensation against the respondent, Barry Bros Specialised Services Pty Ltd. The claim pertained to injuries to his neck and back, which Gray alleged occurred during the course of his employment with the respondent on 17 November 1997. The dispute involved whether Gray's employment was a substantial contributing factor to the injuries and, if so, the extent of the permanent impairment.

The court had to decide whether Gray had sustained an injury to his neck during his employment with the respondent on the specified date and whether this employment was a substantial contributing factor. The court needed to weigh the evidence presented, including the applicant’s statements, other statements, factual material, claim correspondence, medical reports, and other treatment records. The court also had to consider the legal principles applicable to workers' compensation claims, particularly the rule in Jones v Dunkel, and the burden of proof required to establish causation.

After reviewing the evidence, the court concluded that Gray did not sustain an injury to his neck arising out of or in the course of his employment on 17 November 1997, and his employment was not a substantial contributing factor to any injury. Consequently, the court found in favour of the respondent with respect to Gray's claim for any permanent impairment of the neck. However, in accordance with an agreement between the parties, the court also found in favour of Gray with respect to his claim for further permanent impairment of the back. The court further made a declaration pursuant to section 162(1) of the Workers Compensation Act 1987.

Orders