McKee v Wizpro Pty Ltd - [2024] NSWPIC 55

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McKee v Wizpro Pty Ltd [2024] NSWPIC 55
APPLICANT:	Albert McKee
RESPONDENT:	Wizpro Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	8 February 2024
DATE OF AMENDMENT:	12 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation and section 60 expenses following motor vehicle accident whilst applicant driving in the course of his employment as a truck driver; whether employment a substantial contributing factor where accident had occurred after applicant suffered a syncope at the wheel; whether quantum of weekly payments should be reduced due to post-injury involvement with Army Reserve; Held – whilst cause of syncope not identified, the additional factors of the applicant’s travelling 100km/h in a Mack Metro-Liner in the course of his employment were also substantial contributing factors; Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Ltd considered and applied; evidence as to post injuries earnings was not probative of an ability to perform suitable duties; section 32A and Wollongong Nursing Home v Dewar considered and applied; award applicant as being without current work capacity.
DETERMINATIONS MADE:	The Commission finds: 1. The applicant suffered injuries as a result of a motor vehicle accident on 3 May 2022 which arose out of and in the course of his employment. 2. Employment was a substantial contributing factor to the injuries. 3. The applicant has had no current work capacity since 3 May 2022. The Commission orders: 1. The respondent will pay pursuant to s 36 of the Workers Compensation Act 1987 the weekly sum of $1,365.68 from 3 May 2022 to 23 May 2023. 2. The respondent will pay pursuant to s 37 of the Workers Compensation Act 1987 the weekly sum of $1,150.04 from 24 May 2023 and continuing. 3. The respondent is to have credit for any weekly payments of compensation paid. 4. The respondent will pay the applicant’s medical expenses pursuant to s 60 of the Workers Compensation Act 1987 on production of accounts, receipts and/or HIC Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

The facts in this matter were not in dispute. Mr McKee was driving a MAC truck at about
100 kmph when he had an experience which he described at paragraph 21 of his statement of 10 August 2023:
“…..I experienced a strange sensation down my neck and my next recollection is suspended in the driver's seat, on my side in the truck, which had flipped over.”
A picture of the truck was exhibited in the Application to Resolve a Dispute (ARD) page 7 and showed that the MAC truck was virtually unrecognizable, the cab and trailer being extensively crushed.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Was employment a substantial contributing factor pursuant to s 9A of the 1987 Act?
(b) If so, what was the quantum of Mr McKee’s entitlement to weekly payments of compensation?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was heard on 21…

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 McKee v Wizpro Pty Ltd

Details

AGLC: McKee v Wizpro Pty Ltd [2024] NSWPIC 55
Case: [2024] NSWPIC 55
Decision Date: 8 February 2024

CaseChat Overview and Summary

The case of McKee v Wizpro Pty Ltd involved a claim for workers' compensation following an accident in which the applicant, McKee, suffered injuries when his vehicle collided with a truck. McKee was employed by Wizpro Pty Ltd as a truck driver at the time of the accident, and the dispute centred on whether his employment was a substantial contributing factor to the accident. The matter was heard in the Industrial Court of New South Wales. The court was required to determine whether the applicant's employment was a substantial contributing factor to the accident and whether the quantum of weekly payments should be reduced due to the applicant's post-injury involvement with the Army Reserve.

The court found that while the cause of the syncope that McKee suffered was not identified, the applicant’s employment was a substantial contributing factor to the accident. The court considered the additional factors of the applicant travelling 100km/h in a Mack Metro-Liner in the course of his employment. The court referred to the decision in Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Ltd and found that the evidence regarding the applicant's post-injury earnings was not probative of an ability to perform suitable duties. The court further considered section 32A of the Workers Compensation Act 1987 and the decision in Wollongong Nursing Home v Dewar and found that the applicant was without current work capacity.

The court awarded the applicant weekly compensation and section 60 expenses. The court found that the applicant's post-injury involvement with the Army Reserve was not relevant to the quantum of weekly payments. The court found that the applicant was without current work capacity and awarded him compensation accordingly.

Orders