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Matar and anor v Zeineddine

Matar and anor v Zeineddine

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Case Copied 19 May 2008 43 min read

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WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Matar and anor v Zeineddine [2008] NSWWCCPD 51
APPELLANT:  Mohamad Matar and Barinhan Matar
RESPONDENT:  Jawdat Zeineddine
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER:  WCC6379-07
DATE OF ARBITRATOR’S DECISION:          20 November 2007
DATE OF APPEAL HEARING:  17 April 2008
DATE OF APPEAL DECISION:  19 May 2008
SUBJECT MATTER OF DECISION:                Loss of use of sexual organs as a result of a psychological injury; whether employment must be a substantial contributing factor to a consequential loss; assessment of credit; weight to be attached to medical reports containing inaccurate histories; application of Paric v John Holland (Constructions) Pty Ltd [1985] 59 ALJR 844 and Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:Oral
REPRESENTATION:  Appellant:      Bartier Perry
Respondent:   Carroll & O’Dea

ORDERS MADE ON APPEAL: Paragraphs one, two and five of the Arbitrator’s determination of 20 November 2007 are revoked and the following orders made in their place:

“1. As a result of an assault received in the course of his employment with the Respondent on 9 December 1999 and to which his employment was a substantial contributing factor, the Applicant sustained a psychological injury.
2. As a result of the psychological injury referred to in paragraph one above, the Applicant has suffered a loss of use of his sexual organs.
5. The Approved Medical Specialist is, for the purpose of assessing whether any deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 is appropriate, referred to the entry of 20 October 1999 in the clinical notes produced by NAS Advanced Medical Centre.”
Paragraphs three, four and six of the Arbitrator’s determination, and the Arbitrator’s certification regarding costs, are confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND

Jawdat Zeineddine (‘the Respondent Worker’) was born in Lebanon in 1967 and is currently 41 years of age. He came to Australia in about 1994 and started work as a taxi driver, having worked as an electrician in Lebanon. At about 9pm on 9 December 1999 he was working as a taxi driver for Mohamad and Barinhan Matar (‘the Appellant Employer’, wrongly sued as “M & B Mattar”) at the Warrawong taxi rank when a man approached his taxi and held a knife to his neck and said, “I want to kill you”. After a struggle that lasted about 30 or 40 seconds, the assailant ran off. At about 10pm Mr Zeineddine attended at Port Kembla Hospital where he was treated for a “small scratch to [his] neck”. The incident was reported to the Port Kembla police later that night.

Mr Zeineddine continued working but found it increasingly difficult to deal with members of the public. He feared he would be assaulted again and was shaky, frightened and extremely agitated (Mr Zeineddine’s statement 1 August 2007, paragraph nine).

On 16 February 2000, Mr Zeineddine took an…

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: [2008] NSWWCCPD 51
Decision Date: 19 May 2008

CaseChat Overview and Summary

This appeal concerns a claim for compensation by Jawdat Zeineddine for loss of use of his sexual organs as a result of a psychological injury sustained in the course of his employment as a taxi driver. The case revolves around the issue of whether the Arbitrator properly considered the evidence and the weight of the evidence, and whether the Arbitrator erred in accepting expert medical opinions based on important alleged facts that were proved to be false by other admissible evidence. The appeal also raises the issue of the extent to which the Arbitrator should have considered the credit of Mr Zeineddine.

In the decision, the court held that the Arbitrator did not err in his determination. The Arbitrator had assessed all of the evidence and accepted that Mr Zeineddine suffers from sexual dysfunction as a result of his accepted work injury and consequential PTSD. The evidence from Mr Zeineddine and Drs Lowy and McMahon provided ample support for that finding. The Arbitrator had also properly considered the evidence and the weight of the evidence, including the credit of Mr Zeineddine. The Arbitrator was entitled to place weight on the logical and probative evidence that supports a connection between Mr Zeineddine’s undoubted PTSD and his sexual dysfunction. The Arbitrator’s assessment of the evidence discloses no appealable error.

The court also held that the Arbitrator’s error in finding that employment was a substantial contributing factor to the loss of use of sexual organs did not affect the end result, as the Arbitrator had applied, and found Mr Zeineddine to have satisfied, the more demanding test of “substantial contributing factor” instead of the “results from” test.

The court confirmed paragraphs three, four and six of the Arbitrator’s determination, and the Arbitrator’s certification regarding costs. The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

Orders