Howard v Bede Murray Racing Stables - [2023] NSWPIC 410

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Howard v Bede Murray Racing Stables [2023] NSWPIC 410
APPLICANT:	Joanne Howard
RESPONDENT:	E B Murray Family Investments Pty Limited t/as Bede Murray Racing Stables
MEMBER:	Paul Sweeney
DATE OF DECISION:	15 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation from 21 July 2022 as a result of proven injuries to the neck and shoulders 16 May 2009; worker also alleges that as a consequence of the respondent’s failure to provide domestic assistance she sustained further injury; employers case primarily based on credit and surveillance; consideration of inconsistencies in worker’s evidence; finding that the worker had no current earning capacity after 21 July 2022; worker had not proven that she had sustained further injury as a result of the injury of 16 May 2009 or the respondent’s failure to provide domestic assistance; Held – award for worker for weekly compensation on the basis of total incapacity.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury to her neck and both shoulders arising out of and in the course of her employment on 16 January 2009. 2. As a result of these injuries the applicant has had no current earning capacity since 21 July 2022. 3. The applicant has not proven the injuries she sustained in falls in April 2018 and April 2020 resulted from the injury on 16 January 2009 or from the respondent’s failure to provide domestic assistance consequent upon that injury. 4. Respondent to pay the applicant weekly compensation on the basis that she has no current earning capacity as follows: (a) $731.20 per week from 21 July 2022 to 30 September 2022: (b) $738.68 per week from 1 October 2022 to 31 March 2023, and (c) $755.58 per week from 1 April 2023 to date and continuing. 5. Liberty to apply in respect of the above calculations. 6. Respondent to pay the applicant’s medical and hospital expenses in respect of the injuries found in [1] above pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Following an earlier arbitration hearing in these proceedings, I issued a Certificate of Determination (COD) dated 2 December 2022 by which I found that E.B. Murray Family Investments Pty Limited t/as Bede Murray Racing Stables (the respondent) was estopped from denying that Joanne Howard (the applicant) suffered injury to her neck and both shoulders as a result of an incident in the course of her employment on 16 January 2009. These reasons are to be read in conjunction with those reasons. By that COD, I gave the parties liberty to apply in respect of any outstanding issue.
At a further telephone conference on 13 February 2023, I was informed by the solicitors for the parties that there were two outstanding issues on which they could not reach agreement. First, the issue of the applicant’s capacity for work and entitlement to compensation after 21 July 2022. Secondly, whether injuries sustained by the applicant in April 2018 and April…

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 Howard v Bede Murray Racing Stables

Details

AGLC: Howard v Bede Murray Racing Stables [2023] NSWPIC 410
Case: [2023] NSWPIC 410
Decision Date: 15 August 2023

CaseChat Overview and Summary

The dispute in Howard v Bede Murray Racing Stables was between the worker, Howard, and the employer, Bede Murray Racing Stables. The worker claimed ongoing weekly compensation for injuries sustained on 16 May 2009, which affected her neck and shoulders, as well as for additional injuries she alleged resulted from the employer's failure to provide domestic assistance. The case was heard in a relevant tribunal, which was tasked with determining the merits of the worker's claims and the employer's defence.

The primary legal issues for the tribunal to decide were whether the worker had sustained ongoing injuries from the initial incident, and if the employer's failure to provide domestic assistance led to further injuries. The tribunal had to consider the credibility of the worker's evidence, the employer's arguments based on credit and surveillance, and the extent to which these factors impacted the worker's ability to earn an income. The tribunal also needed to assess whether the worker had any earning capacity after 21 July 2022.

In its decision, the tribunal found that the worker had indeed sustained injuries from the incident on 16 May 2009, but these injuries did not result in ongoing weekly compensation after 21 July 2022, as the worker had no current earning capacity. The tribunal determined that the worker had not provided sufficient evidence to prove that she had sustained further injury due to the employer's failure to provide domestic assistance. Consequently, the tribunal awarded the worker weekly compensation on the basis of total incapacity. The tribunal's decision took into account the inconsistencies in the worker's evidence and the employer's arguments, leading to the conclusion that the worker was not entitled to compensation beyond the initial injury period.

Orders