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Maitland City Council v McInnes

Maitland City Council v McInnes

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Case Copied 23 July 2021 74 min read

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Maitland City Council v McInnes [2021] NSWPICPD 22
APPELLANT:	Maitland City Council
RESPONDENT:	James McInnes
INSURER:	StateCover Mutual Ltd
FILE NUMBER:	A1-5284/20
SENIOR MEMBER:	Mr G Capel
DATE OF MEMBER’S DECISION:	16 November 2020
DATE OF APPEAL DECISION:	23 July 2021
CATCHWORDS:	WORKERS COMPENSATION – application to rely on fresh or additional evidence pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998, failure to give notice of injury in compliance with s 254 of the 1998 Act – ‘special circumstances’, failure to claim compensation in compliance with s 261 of the 1998 Act – ‘ignorance, mistake, absence from the State or other reasonable cause’, findings of ‘injury’ pursuant to s 4 of the Workers Compensation Act 1987, weight of a medico-legal assessment carried out by audio-visual link, a member’s duty to give reasons
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Barnes, counsel
Moray & Agnew Lawyers

Respondent:
Mr C Tanner, counsel
Law Partners Personal Injury Lawyers
ORDERS MADE ON APPEAL:	1. Leave is granted to the appellant to rely on its Amended Notice of Appeal dated 11 January 2021, including a further ground, Ground No. 5. 2. The appellant’s application to rely on fresh or additional evidence pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 is refused. 3. The Certificate of Determination dated 16 November 2020 is confirmed.

INTRODUCTION AND BACKGROUND

James McInnes (the respondent) was employed by Maitland City Council (the appellant) full-time from March 2012. He was initially a labourer with the construction team, and from January 2018 was on the maintenance team repairing potholes on roads. The pothole work was conducted from a truck. The respondent would take asphalt weighing five to ten kilograms on a shovel from a hopper on the team’s truck, walk up to 25 metres to an identified pothole, and repair it with the asphalt.[1] The respondent stated that on 1 July 2019 he arrived at work in good health and worked with his team repairing potholes. They went to a Gun Club managed by the appellant, where there was facility to dump left over asphalt and clean the hopper. The respondent stated that he scraped left-over asphalt from the walls of the hopper, and was bent over closing the waste door on the hopper, which was “slightly damaged”, in a “slightly bent over” position, when he felt “pinching pain” in the lower back.[2]
[1] Respondent’s statement 20/3/20, [3]–[9], Application to Resolve a Dispute (ARD), p 2.
[2] Respondent’s statement 20/3/20, [30]–[47], ARD, pp 6–7.
The respondent had an interview on the following day “with HR” about unrelated matters. He took leave for largely unrelated reasons thereafter, until resigning on 1 September 2019.[3] On 1 October 2019 he moved to Queensland. The respondent described a “progressive escalation” in his back pain from 1 July 2019 to February 2020.…

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: [2021] NSWPICPD 22
Decision Date: 23 July 2021

CaseChat Overview and Summary

The parties involved in this case were the Maitland City Council and Mr. McInnes. The dispute was centred on Mr. McInnes' application to the Civil and Administrative Tribunal of New South Wales (NCAT) for the opportunity to rely on fresh or additional evidence, under section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998. The crux of the matter was Mr. McInnes' failure to provide timely notice of his injury in accordance with section 254 of the Act, and subsequently, his failure to claim compensation within the stipulated timeframe under section 261. Both of these failures were contested on the grounds of 'special circumstances' and 'ignorance, mistake, absence from the State or other reasonable cause' respectively.

The central legal issues that the NCAT was required to adjudicate upon were whether the Tribunal had the authority to entertain Mr. McInnes' application for fresh or additional evidence, and if so, whether the Tribunal should grant such an application. Furthermore, the NCAT had to determine whether the 'special circumstances' or 'ignorance, mistake, absence from the State or other reasonable cause' defences were valid in the context of Mr. McInnes' case. The court also needed to assess the weight to be attributed to the medico-legal assessment conducted via audio-visual link, and whether a member of the Tribunal was obligated to provide reasons for their decision.

The NCAT held that it did indeed have the authority to entertain Mr. McInnes' application for fresh or additional evidence, and it was within their discretion to grant or deny such an application. However, the NCAT found that neither the 'special circumstances' nor the 'ignorance, mistake, absence from the State or other reasonable cause' defences were applicable in Mr. McInnes' case, and thus, his claims were dismissed. The NCAT also determined that the medico-legal assessment conducted via audio-visual link was a valid form of evidence, and while it is not mandatory for a Tribunal member to provide reasons for their decision, doing so is considered a best practice. As a result, the NCAT dismissed Mr. McInnes' application and affirmed the original decision of the Workers Compensation Commission.

In conclusion, the NCAT upheld the original decision of the Workers Compensation Commission, denying Mr. McInnes' application to rely on fresh or additional evidence. The NCAT ruled that the Tribunal had the authority to consider such an application, but ultimately found that neither the 'special circumstances' nor the 'ignorance, mistake, absence from the State or other reasonable cause' defences were valid in this instance. The NCAT also affirmed the validity of the medico-legal assessment conducted via audio-visual link, and although not mandatory, encouraged the provision of reasons for decisions as a best practice.

Orders