Kamoun v Pipeline Plumbing Developments Pty Ltd - [2021] NSWPIC 285

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kamoun v Pipeline Plumbing Developments Pty Ltd [2021] NSWPIC 285
APPLICANT:	Taha Kamoun
RESPONDENT:	Pipeline Plumbing Developments Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	10 August 2021
CATCHWORDS:	WORKERS COMPENSATION- Permanent impairment compensation; whether applicant suffered consequential condition to left knee as a result of accepted right knee injury; Evidence; applicant cross-examined on credit and as to history of left knee issues relating to post-work injury motor accident; Held- applicant suffered a consequential condition to left knee as a result of right knee giving way and causing a fall at home; the applicant’s left knee may have been symptomatic after the unrelated, post-work injury motor accident, however, that knee was plainly functional before the right knee gave way, as evidenced by the applicant having returned to playing competitive sport before the right knee gave way; although it is not a requirement for an injured worker to demonstrate pathological change in an affected body part to establish a consequential condition, in this matter the changes in the applicant’s left knee after the fall caused by the right knee giving way are supportive of the presence of such a consequential condition; Kumar v Royal Comfort Bedding Pty Ltd and Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan discussed and followed; the applicant has established on a common-sense basis a causal link between the right knee injury and left knee condition; Kooragang Cement Pty Ltd v Bates; both the right lower extremity (knee) and left lower extremity (knee) are referred for medical assessment.
DETERMINATIONS MADE:	1. The applicant suffered an injury to his right lower extremity (knee) in the course of his employment with the respondent on 18 December 2015. 2. As a result of the injury referred to in (1) above, the applicant suffered a consequential condition to his left knee. 3. The matter is remitted to the President for referral to a Medical Assessor to determine the degree of permanent impairment arising from the following: Date of Injury: 18 December 2015 Body Systems Referred: Right lower extremity (knee), left lower extremity (knee) (consequential condition) Method of Assessment: Whole person impairment 4. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments, and (c) Reply and attachments.

STATEMENT OF REASONS

BACKGROUND

Taha Kamoun (the applicant) brings proceedings seeking payment of permanent impairment compensation in respect of an accepted right knee injury suffered in the course of his employment with Pipeline Plumbing Developments Pty Ltd (the respondent) on 18 December 2015, and a disputed consequential condition to his left knee.

There is no issue that on 18 December 2015, the applicant suffered an injury to his right knee when, in the course of his employment as an apprentice plumber, he was walking on a wooden plank which was broken, causing him to stumble and suffer…

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.

Keep reading for free

Create a free CaseChat account to read Kamoun v Pipeline Plumbing Developments Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWPIC 285
Decision Date: 10 August 2021

CaseChat Overview and Summary

The applicant, Kamoun, sought compensation for a permanent impairment due to a consequential condition in his left knee, which he claimed arose from an accepted injury to his right knee. The matter was heard in the Court of Appeal. The primary dispute was whether the left knee condition was a consequential condition of the right knee injury or if it was exacerbated by a separate motor accident that occurred after the workplace injury.

The legal issues revolved around establishing whether the left knee condition was a direct consequence of the right knee injury, and if so, to what extent. The Court had to assess the evidence presented, particularly focusing on the applicant's credibility and the history of his left knee issues. This included evaluating the applicant’s return to competitive sport before the right knee injury caused a fall, and the subsequent functional changes in his left knee.

The Court concluded that the applicant did suffer a consequential condition in his left knee as a result of the right knee injury, which led to a fall at home. Although the left knee may have been symptomatic after a separate motor accident, it was functional before the right knee injury caused the fall. The changes in the left knee after the fall were indicative of a consequential condition. The Court found that the applicant had established a causal link between the right knee injury and the left knee condition, applying the principles discussed in Kumar v Royal Comfort Bedding Pty Ltd and Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan. Both lower extremities were referred for further medical assessment.

The Court ordered that both the right and left lower extremities be assessed by medical professionals to determine the extent of the impairment and the appropriate compensation for the consequential condition.

Orders