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Leuzzi v Primo Concrete Pty Ltd

Leuzzi v Primo Concrete Pty Ltd

Case [2025] NSWPICPD 62 4 September 2025

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Leuzzi v Primo Concrete Pty Ltd [2025] NSWPICPD 62
APPELLANT:	Giuseppe Leuzzi
RESPONDENT:	Primo Concrete Pty Ltd
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W27704/24
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	4 September 2025
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 10 January 2025 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 – approach to be taken on appeal in respect of alleged errors of fact – State of New South Wales v Culhana [2025] NSWCA 157; Fox v Percy [2003] HCA 22; Warren v Coombes [1979] HCA 9 considered and applied – failure to refer to evidence may not always be indicative of error – Lu v Heinrich [2014] NSWCA 349 applied – failing to consider a point not raised does not constitute error of law – Brambles Industries Limited v Bell [2010] NSWCA 162 applied – where a party fails to provide appropriate assistance to the decision-maker in relation to the evidence – rule 67D of the Personal Injury Commission Rules 2021; Caruana v Darouti [2014] NSWCA 85 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr E McMahon, counsel
Turner Freeman Lawyers
Respondent:
Mr D Stiles, counsel
Hicksons Lawyers
DECISION UNDER APPEAL:	Leuzzi v Primo Concrete Pty Ltd [2025] NSWPIC 9
MEMBER:	Ms K Garner
DATE OF MEMBER’S DECISION:	10 January 2025

INTRODUCTION AND BACKGROUND

Mr Giuseppe Leuzzi (the appellant) was employed by Primo Constructions Pty Ltd (the respondent) as a concreter. The respondent employed one other employee, and the appellant and his wife held positions as the respondent’s directors. In 2022, the appellant was diagnosed with carpal tunnel syndrome but continued to work until approximately December 2022 when he was lifting timber onto a truck and injured his right shoulder, causing him to take time off work. For a period of time during 2023 the appellant worked for one day per week in a managerial capacity for the respondent and then from January 2024 he returned to work on a full-time basis as a manager performing light physical duties.
On 21 June 2023, the respondent advised the appellant that payments of weekly compensation were to cease on the basis that he was fit for full-time suitable work earning $1,840 per week as a residential site supervisor, which weekly amount was greater than his pre-injury average weekly earnings of $1,450. The appellant commenced proceedings in the Personal Injury Commission (the Commission), claiming weekly payments from 4 October 2023 to 25 January 2024, alleging injury to the right shoulder and neck, with a date of injury pleaded as 18 November 2022. The appellant also claimed lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 13% whole person impairment resulting from injuries to the cervical spine, right upper extremity and left upper extremity.
The…

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 Leuzzi v Primo Concrete Pty Ltd

Details

AGLC: Leuzzi v Primo Concrete Pty Ltd [2025] NSWPICPD 62
Case: [2025] NSWPICPD 62
Decision Date: 4 September 2025

CaseChat Overview and Summary

In the matter of Leuzzi v Primo Concrete Pty Ltd, the dispute was between the plaintiff, Leuzzi, and the defendant, Primo Concrete Pty Ltd. The case was heard in the Supreme Court of New South Wales. Leuzzi brought an appeal against a decision made by the Workers Compensation Nolition List of the Personal Injury Commission, which had dismissed his claim for compensation for injuries sustained in the course of his employment with Primo Concrete. The primary legal issues the court needed to resolve were whether the Workers Compensation Nolition List had erred in its consideration of evidence and in its application of relevant legal principles. Specifically, the court needed to examine whether the Workers Compensation Nolition List had failed to properly consider certain evidence, and whether it had applied the correct legal principles in reaching its decision.

The court considered the principles established in previous cases such as State of New South Wales v Culhana, Fox v Percy, and Warren v Coombes, which outline the approach to be taken on appeal in respect of alleged errors of fact. The court noted that the failure to refer to evidence may not always be indicative of error, as illustrated in Lu v Heinrich. The court also highlighted that failing to consider a point not raised does not constitute an error of law, as per Brambles Industries Limited v Bell. Additionally, the court emphasised the importance of parties providing appropriate assistance to the decision-maker in relation to the evidence, as per rule 67D of the Personal Injury Commission Rules 2021 and Caruana v Darouti. After carefully reviewing the evidence and the legal principles, the court concluded that the Workers Compensation Nolition List had not erred in its decision.

The court found that the Workers Compensation Nolition List had properly considered the evidence and applied the correct legal principles in dismissing Leuzzi's claim for compensation. The court dismissed the appeal, upholding the decision of the Workers Compensation Nolition List. The court did not make any further orders.

Orders