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Mourad v Breen Resources Pty Ltd

Mourad v Breen Resources Pty Ltd

Case [2023] NSWPIC 51 14 February 2023

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CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Mourad v Breen Resources Pty Ltd [2023] NSWPIC 51
APPLICANT:	Ali Mourad
RESPONDENT:	Breen Resources Pty Ltd
Member:	Jacqueline Snell
DATE OF DECISION:	14 February 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant claims permanent impairment compensation payable under section 66 resulting from primary psychological injury sustained in the course of his employment with the respondent; the applicant claims permanent impairment compensation payable under section 66 resulting from injury sustained to his right lower extremity in the course of his employment with the respondent; the respondent disputes the applicant has sustained primary psychological injury in the course of his employment with the respondent and the respondent disputes the applicant has sustained injury to his right lower extremity in the course of his employment with the respondent; Held – award for the respondent in respect of the applicant’s alleged primary psychological injury and award for the respondent in respect of the applicant’s alleged injury to his right lower extremity.
determinations made:	1. Award for the respondent in respect of the applicant’s alleged primary psychological injury. 2. Award for the respondent in respect of the applicant’s alleged injury to his right lower extremity

STATEMENT OF REASONS

Background

At the time Ali Mourad (Mr Mourad) sustained injury the subject of these proceedings he was working with Breen Resources Pty Ltd (Breen). Mr Mourad is currently 29 years of age.
The circumstances of Mr Mourad’s alleged primary psychological injury is described in the following terms:
“The applicant sustained primary psychological injury caused/and or aggravated by the nature and conditions of his employment in 2017 and up to in or about January 2018 involving bullying and harassment, verbal abuse and physical abuse by managers and staff, and exposure to dirt, soot and asbestos with deemed date of injury of January 2018.”
The circumstances of Mr Mourad’s physical injury is described in the following terms:
“The applicant sustained injury to his right lower extremity (soft tissue injury to his right hip, right knee and right ankle) as a result of the nature and conditions of his employment in 2017 and up to in or about January 2018 involving pulling, carrying and moving heavy objects in the workplace.”
Mr Mourad claims permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 (1987 Act) for 18% whole person impairment (WPI) resulting from primary psychological injury sustained in the course of his employment with Breen with deemed date of injury of January 2018 and 21% WPI resulting from injury sustained to his right lower extremity in the course of his employment with Breen as a result of the nature and conditions of his employment between 2017 and January 2018.
Mr Mourad’s claim for permanent impairment compensation is declined and he has been issued with notices dated 10 February 2021 and 28 June 2022 in which he has been advised of the decision to decline his claim.

Issues for determination

The parties agree that the following issues…

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 Mourad v Breen Resources Pty Ltd

Details

AGLC: Mourad v Breen Resources Pty Ltd [2023] NSWPIC 51
Case: [2023] NSWPIC 51
Decision Date: 14 February 2023

CaseChat Overview and Summary

The case of Mourad v Breen Resources Pty Ltd involved a claim for permanent impairment compensation under the Workers Compensation Act 1987. The applicant alleged that he sustained two distinct injuries during his employment with the respondent: a primary psychological injury and an injury to his right lower extremity. The respondent contested both claims, arguing that neither injury was sustained in the course of employment.

The central legal issues revolved around the applicant's entitlement to compensation for permanent impairment. The court had to determine whether the applicant had indeed suffered a primary psychological injury and an injury to his right lower extremity in the course of his employment with the respondent, and if so, whether these injuries were compensable under the Act. The court also had to consider the credibility and weight of the evidence presented by both parties concerning the nature and origin of the injuries.

In delivering its judgment, the court thoroughly examined the evidence and the applicable legal principles. The court found that the applicant had not provided sufficient evidence to establish that the primary psychological injury or the injury to his right lower extremity was sustained in the course of his employment with the respondent. The court concluded that the applicant's claims were not substantiated by credible evidence and dismissed the claims accordingly. The court awarded costs to the respondent.

The final orders of the court were that the respondent was not liable to pay compensation to the applicant for the alleged primary psychological injury or the alleged injury to his right lower extremity. The court further ordered the applicant to pay the respondent's costs associated with the proceedings.

Orders