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Hinde v Tarago Operations Pty Ltd

Hinde v Tarago Operations Pty Ltd

Case [2023] NSWPICPD 66 2 November 2023

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Hinde v Tarago Operations Pty Ltd [2023] NSWPICPD 66
APPELLANT:	Barry Hinde
RESPONDENT:	Tarago Operations Pty Ltd
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W3702/22
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	2 November 2023
ORDERS MADE ON APPEAL:	1. The appeal is dismissed. 2. The Certificate of Determination dated 7 October 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – section 4 of the Workers Compensation Act 1987 – whether the appellant sustained an injury to the cervical spine - credit and cross-examination – Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34 applied – whether Member failed to engage with the evidence and submissions made – fact finding – Nguyen v Cosmopolitan Homes [2008] NSWCA 246 applied – approach to expert evidence – Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr D Adhikary, counsel
Gerard Malouf & Partners
Respondent:
Mr P Stockley, counsel
Lee Legal Group
DECISION UNDER APPEAL
MEMBER:	Ms C McDonald
DATE OF MEMBER’S DECISION:	7 October 2022

INTRODUCTION

This is an appeal from a Certificate of Determination dated 7 October 2022 in which the Member determined that the appellant had not suffered an injury to his cervical spine on 12 November 2019.
The Certificate of Determination provided:
“1. Award for the respondent on the claim for s 60 expenses in respect of the proposed C6/7 anterior discectomy and fusion proposed by Dr Suttor.
2. No order with respect to weekly compensation.”
For the reasons that follow the appeal is dismissed and the Certificate of Determination is confirmed.

MEMBER’S STATEMENT OF REASONS

The appellant, Mr Barry Hinde, a process operator employed by the respondent, Tarago Operations Pty Ltd, at the Woodlawn Mine, fell and suffered injury on 12November 2019.
The employer paid compensation to 9 December 2021 with respect to the right shoulder claim but disputed the entitlement to the cost of a C6/7 anterior discectomy and fusion proposed by Dr Suttor, orthopaedic surgeon.
The respondent employer did not dispute that:
(a) Mr Hinde suffered an injury to the right shoulder, or
(b) the proposed cervical spine surgery was reasonably necessary treatment for the underlying pathology.
The claim to be determined was whether, in addition to the injury to the right shoulder on 12 November 2019, Mr Hinde sustained injury to the neck.
The appellant’s case was that he suffered a frank injury on 12 November 2019 which aggravated an underlying disease process. The appellant did not allege that he suffered a consequential injury of the cervical spine as a result of the injury to the right shoulder.
The brief description of injury provided by the appellant in his statement dated 24 May 2022[1] (prepared for the purpose of the proceedings) was that on 12 November 2019 he was working when he tripped and fell forwards, landing heavily on his right side and injuring his neck…

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.

Continue reading Hinde v Tarago Operations Pty Ltd

Details

AGLC: Hinde v Tarago Operations Pty Ltd [2023] NSWPICPD 66
Case: [2023] NSWPICPD 66
Decision Date: 2 November 2023

CaseChat Overview and Summary

In the case of Hinde v Tarago Operations Pty Ltd, the appellant, a worker, sought compensation for an injury sustained at work. The respondent, Tarago Operations Pty Ltd, argued that the appellant did not sustain the injury as claimed. The case was heard by the Court of Appeal of the Supreme Court of New South Wales. The appellant contended that the primary judge did not properly engage with the evidence and submissions made regarding the injury to the cervical spine. The respondent, on the other hand, argued that the primary judge correctly assessed the evidence and made findings that were not unreasonable.

The primary legal issue was whether the primary judge failed to properly engage with the evidence and submissions regarding the appellant's injury. The court considered whether the primary judge's approach to assessing the evidence, including the expert evidence, was flawed. The court also examined whether the primary judge's findings on the issue of the injury were unreasonable. The court had to determine whether the appellant sustained an injury to the cervical spine, as claimed.

In determining these issues, the court applied the principles established in Aluminium Louvres & Ceilings Pty Ltd v Zheng and Nguyen v Cosmopolitan Homes. The court held that the primary judge did not fail to engage with the evidence and submissions, as the appellant claimed. The court found that the primary judge properly assessed the evidence, including the expert evidence, and made findings that were not unreasonable. The court concluded that the primary judge's findings on the issue of the injury were supported by the evidence and were not unreasonable. Accordingly, the appeal was dismissed.

The final orders of the court were that the appeal be dismissed, and that the appellant's claim for compensation be rejected. The court held that the appellant did not sustain an injury to the cervical spine, as claimed, and that the primary judge's findings on this issue were correct. The court found that the appellant was not entitled to compensation under the Workers Compensation Act 1987.

Orders