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Inghams Enterprises Pty Ltd v Smith

Inghams Enterprises Pty Ltd v Smith

Case [2023] NSWPICPD 9 28 February 2023

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Inghams Enterprises Pty Ltd v Smith [2023] NSWPICPD 9
APPELLANT:	Inghams Enterprises Pty Ltd
RESPONDENT:	Julie Smith
INSURER:	Self-insured
FILE NUMBER:	A1-W1225/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	28 February 2023
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 5 April 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Clause 44 of the Workers Compensation Regulation 2016 – restrictions on reliance on forensic medical reports – s 43 of the Personal Injury Commission Act 2020 – the Personal Injury Commission (the Commission) may inform itself of any matter – alleged denial of procedural fairness – Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; Chanaa v Zarour [2011] NSWCA 199 applied – acceptance of evidence – Shellharbour City Council v Rigby [2006] NSWCA 308 applied – the Commission may have regard to evidence that would not be admissible in a court – Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSWWCCPD 26 applied – section 32A of the Workers Compensation Act 1987 – Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Macken, solicitor
Leigh Virtue & Associates
Respondent:
Mr T Hickey, counsel
Turner Freeman Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr M Wright
DATE OF Member’s DECISION:	5 April 2022

INTRODUCTION AND BACKGROUND

Ms Julie Smith (the respondent) was employed as a process worker and leading hand by Inghams Enterprises Pty Ltd (the appellant) from 1989. She ceased work on 20 May 2019 at the direction of the appellant. At the time the respondent was stood down, she was working normal hours but with restrictions. During the period of her employment and thereafter, she lodged several notices of injury and made claims for compensation as a result of those injuries. She alleged an injury to her back in the form of an aggravation, acceleration, exacerbation or deterioration of a disease in accordance with s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act) resulting from her duties during her entire period of employment, with a deemed date of injury of 23 October 2018. She also asserted injury to the right knee on 7 February 2019 when (she alleged) a co-worker pushed a steel processing tub at her. She further alleged a psychological injury which she said she incurred as a result of bullying in the workplace over the period of her employment and as a result of the incident on 7 February 2019. She claimed weekly compensation, treatment expenses and a lump sum in respect of 16% whole person impairment resulting from the psychological injury.
The appellant issued notices pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 20 May 2019[1] and 31 March 2020,[2] in which it denied that:
(a) the respondent suffered any of the injuries alleged;
(b) the respondent’s employment was a substantial…

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 Inghams Enterprises Pty Ltd v Smith

Details

AGLC: Inghams Enterprises Pty Ltd v Smith [2023] NSWPICPD 9
Case: [2023] NSWPICPD 9
Decision Date: 28 February 2023

CaseChat Overview and Summary

In the matter of Inghams Enterprises Pty Ltd versus Smith, the dispute arose in the Personal Injury Commission. Smith, a former employee of Inghams Enterprises, sought workers' compensation for injuries sustained during his employment. The company contested the claim, particularly regarding the admissibility and reliance on certain forensic medical reports. The legal issues the court had to address involved the interpretation and application of Clause 44 of the Workers Compensation Regulation 2016 and Section 43 of the Personal Injury Commission Act 2020. These sections pertain to the restrictions on the reliance on forensic medical reports and the extent to which the Commission can inform itself of any matter, respectively.

The court examined whether the Commission's acceptance of evidence without following prescribed procedures constituted a denial of procedural fairness. It referred to the precedents set in Ucar v Nylex Industrial Products Pty Ltd and Chanaa v Zarour, which discuss the principles of procedural fairness in administrative law contexts. Additionally, the court considered whether the Commission could validly accept evidence that would not be admissible in a court, as outlined in Shellharbour City Council v Rigby. The court referenced Aluminium Louvres & Ceilings Pty Ltd v Zheng and Wollongong Nursing Home Pty Ltd v Dewar to assess the applicability of Section 32A of the Workers Compensation Act 1987.

In its reasoning, the court determined that the Commission was entitled to inform itself of any matter pursuant to Section 43 of the Personal Injury Commission Act 2020. It concluded that the Commission did not deny procedural fairness by accepting the forensic medical reports in question. The court found that the Commission could consider evidence that would not be admissible in a court, provided that it did not act unreasonably or unfairly. The Commission's decision was thus upheld, and Smith's claim for workers' compensation was dismissed.

Orders