McCarthy v NSW Police Force

In the case of McCarthy v NSW Police Force, the applicant, McCarthy, sought to overturn a determination made by an arbitrator concerning a workers' compensation claim. The dispute involved whether the psychological injury McCarthy claimed to have suffered was predominantly caused by actions taken by his employer, the NSW Police Force, with respect to discipline. The case was heard in the Supreme Court of New South Wales. The legal issues the court was required to address centred on the arbitrator's handling of expert evidence and whether the arbitrator's failure to consider all evidence amounted to a constructive error. The court needed to decide whether the arbitrator's oversight constituted a basis for remitter, requiring a redetermination of the matter.

The court considered the inconsistent and conflicting expert evidence presented by both parties, noting that the inconsistency was not brought to the arbitrator's attention. The court examined whether the arbitrator's failure to refer to the entirety of the evidence constituted a constructive error. In reaching its decision, the court referred to the principles outlined in Waterways Authority v Fitzgibbon, considering the implications of section 11A of the Workers Compensation Act 1987. The court found that the arbitrator's oversight amounted to a constructive error, which necessitated remitter for redetermination.

The court concluded that the arbitrator's failure to consider the full extent of the evidence constituted a constructive error, warranting remitter for a redetermination by a new arbitrator. The inconsistencies in the expert evidence were significant and had not been adequately addressed by the original arbitrator, which undermined the fairness of the initial determination. Consequently, the court revoked the findings and award made in the certificate of determination and ordered the matter to be remitted to Senior Arbitrator McDonald for redetermination. The decision highlighted the importance of ensuring that all relevant evidence is considered in the context of workers' compensation claims.