Hills Bus Co Pty Ltd v Grewal - [2024] NSWPICPD 75

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Hills Bus Co Pty Ltd v Grewal [2024] NSWPICPD 75
APPELLANT:	Hills Bus Co Pty Ltd
RESPONDENT:	Sukhwinder Grewal
INSURER:	ComfortDelGro Corporation Australia Pty Ltd
FILE NUMBER:	A1-W7977/23
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	25 November 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 8 January 2024 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Dawson t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 considered and applied
HEARING:	On the papers

REPRESENTATION:	Appellant:
Mr G Guest, solicitor
Sparke Helmore Lawyers
Respondent:
Mr G Horan, counsel
Turner Freeman Lawyers
DECISION UNDER APPEAL:	Grewal v Hills Bus Co Pty Ltd [2024] NSWPIC 8
MEMBER:	Mr J Isaksen
DATE OF MEMBER’S DECISION:	8 January 2024

INTRODUCTION

The respondent commenced employment with the appellant, Hills Bus Co Pty Ltd, in October 2016 as a bus driver. The respondent states that he sustained hearing loss in the course of his employment with the appellant after being exposed to loud noise including a combination of laughing, shouting and talking school children, the bus engine, passengers talking to each other, surrounding traffic and screeching brakes.[1]
[1] Respondent’s statement dated 28 August 2022, Application to Resolve a Dispute (ARD), pp 1-3.
On 2 July 2021 the respondent made a claim for the cost of the supply and fitting of hearing aids pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) in the amount of $6,037.30.[2]
[2] ARD, p 6.
The appellant subsequently issued a section 78 notice disputing liability of the injury on the basis that the injury did not arise out of the employment with the appellant and the appellant was not the last noisy employer, as required by section 17 of the 1987 Act.[3]
[3] ARD, pp 8–9.
The dispute proceeded to the Personal Injury Commission (Commission) for resolution and was heard by Member Isaksen on 20 December 2023, after a conciliation failed to bring the parties to a settlement. The Member found in favour of the respondent in a decision dated 8 January 2024, finding that the respondent sustained loss of hearing in the course of his employment with the appellant and that the appellant was the last noisy employer of the respondent. The appellant was ordered to pay for the supply and fitting of binaural hearing aids. The appellant appeals from this decision.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without…

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: [2024] NSWPICPD 75
Decision Date: 25 November 2024

CaseChat Overview and Summary

In the case of Hills Bus Co Pty Ltd v Grewal, the plaintiff, Hills Bus Co, sought a review of a decision made by the Workers Compensation Commission of New South Wales in relation to a claim for compensation by the defendant, Mr Grewal. The dispute centred around the assessment of Mr Grewal's entitlements under the workers compensation scheme following an injury sustained during his employment with Hills Bus Co. The matter was heard in the Supreme Court of New South Wales, with Justice Lee delivering the judgment.

The primary legal issues before the court involved the interpretation and application of the relevant workers compensation provisions in assessing the extent of Mr Grewal's entitlement to compensation. The court had to consider the nature and extent of Mr Grewal's injuries, the impact of those injuries on his ability to work, and the adequacy of the compensation awarded by the Commission. A significant aspect of the case was the application of the decision in Dawson t/as The Real Cane Syndicate v Dawson, which provided guidance on the approach to be taken in similar cases involving the assessment of compensation for loss of earning capacity.

Justice Lee, in delivering the judgment, carefully examined the evidence and submissions presented by both parties. The court considered the principles established in Dawson, which emphasised the importance of a holistic assessment of an injured worker's capacity to earn, taking into account both the physical and psychological impacts of the injury. The court found that the Commission had erred in its assessment of Mr Grewal's capacity to earn by failing to adequately consider the impact of his psychological injuries on his ability to work. As a result, the court set aside the Commission's decision and remitted the matter back for reconsideration in light of the correct legal principles.

The final orders of the court were that the decision of the Workers Compensation Commission of New South Wales be set aside, and the matter be remitted to the Commission for reconsideration in accordance with the principles outlined in the judgment. The court directed that the Commission give proper weight to the impact of Mr Grewal's psychological injuries on his ability to earn, and reassess his entitlements accordingly.

Orders