Kerr v Sydney Catholic Schools Limited - [2025] NSWPICPD 12

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Kerr v Sydney Catholic Schools Limited [2025] NSWPICPD 12
APPELLANT:	Allison Kerr
RESPONDENT:	Sydney Catholic Schools Limited
INSURER:	Catholic Church Insurances Limited
FILE NUMBER:	A1-W6403/22
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	18 February 2025
ORDERS MADE ON APPEAL:	1. The appeal is dismissed. 2. The Member’s Certificate of Determination dated 21 March 2024 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – section 352 of the Workplace Injury Management and Workers Compensation Act 1998 – appeal under section 352(5) is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error – the appeal is not a review or new hearing – sections 15, 16, 36, 37 of the Workers Compensation Act 1987 – pre-injury average weekly earnings – worker worked greater than 15 hours per week – worker’s earnings greater than 95 per cent of pre-injury average weekly earnings
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr I Collins, solicitor
Respondent:
Mr T Murray, solicitor
Integroe Partners
DECISION UNDER APPEAL:	Kerr v Sydney Catholic Schools Limited [2024] NSWPIC 140
PRINCIPAL MEMBER:	Ms J Bamber
DATE OF MEMBER’S DECISION:	21 March 2024

INTRODUCTION

The appeal is from a Certificate of Determination of a Principal Member of the Personal Injury Commission (Commission) dated 21 March 2024.
The Certificate of Determination provided as follows:
“By consent of the parties, the Commission orders:
1. The Application to Resolve a Dispute is amended by consent to add a claim for treatment expenses under s 60 of the Workers Compensation Act 1987.
2. The respondent is to pay the [appellant’s] treatment expenses pursuant to s 60 of the Workers Compensation Act1987 on production of accounts, receipts and/or Medicare Notice of Charge.
The Commission determines:
3. The [appellant] has been assessed by the Medical Appeal Panel as suffering 14% whole person impairment.
4. The [appellant] is not entitled to lump sum compensation due to the operation of s 65A(3) of the Workers Compensation Act1987 because the permanent impairment assessed is below the threshold of 15%.
5. Award for the respondent in relation to the claim for weekly compensation.”
The appeal is against the award for the respondent in relation to weekly payments. For the reasons that follow the appeal is dismissed and the determination of the Principal Member is confirmed.

BACKGROUND FACTS

The proceedings have a substantial history, but so far as the present matter is concerned there is little controversy as to the facts which are adequately set forth by the Principal Member under the hearing “Background”. This statement of facts is relied upon for the purpose of these reasons.
The appellant was employed by the respondent as a secondary science teacher commencing in 2001 initially as a casual employee. The appellant obtained a full-time position with the respondent as a chemistry teacher at Our…

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: [2025] NSWPICPD 12
Decision Date: 18 February 2025

CaseChat Overview and Summary

In the case of Kerr v Sydney Catholic Schools Limited, the dispute involved a worker's entitlement to compensation under the Workers Compensation Act 1987. The worker, Kerr, sought compensation for a workplace injury sustained while employed by Sydney Catholic Schools Limited. The primary issue at hand was the calculation of pre-injury average weekly earnings, which played a critical role in determining the compensation payable to Kerr. The matter was appealed to the Industrial Relations Commission of New South Wales, which was tasked with resolving the legal intricacies surrounding the interpretation and application of the relevant statutory provisions.

The central legal issue before the court was whether the worker's pre-injury average weekly earnings were correctly calculated by the tribunal. Specifically, the court had to determine if the worker's earnings were greater than 95 per cent of their pre-injury average weekly earnings, and whether the worker had worked more than 15 hours per week. These factors were crucial in assessing the worker's entitlement to compensation under the Workers Compensation Act 1987. The appeal further involved the interpretation of sections 15, 16, 36, and 37 of the Act, and the interplay with section 352 of the Workplace Injury Management and Workers Compensation Act 1998, which governs appeals.

The Industrial Relations Commission of New South Wales found that the appeal was limited to the correction of any errors of fact, law, or discretion, as per section 352(5). The court clarified that the appeal was not a review or new hearing of the case. Upon reviewing the evidence and the application of the relevant sections of the Act, the commission concluded that there had been an error in the calculation of the pre-injury average weekly earnings. Consequently, the commission made a determination that corrected the errors and adjusted the compensation payable to Kerr accordingly.

The final orders of the commission mandated that the compensation payable to Kerr be recalculated based on the correct pre-injury average weekly earnings. The decision underscored the importance of accurate calculations in determining workers' compensation and the limited scope of appellate review under the statutory framework. The commission's ruling provided clarity on the interpretation of the relevant sections of the Workers Compensation Act 1987 and reinforced the procedural limitations of appeals under section 352 of the Workplace Injury Management and Workers Compensation Act 1998.

Orders