| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | NSW Police Force v Gurnhill [2014] NSWWCCPD 12 | ||
| APPELLANT: | NSW Police Force | ||
| RESPONDENT: | Daniel Gurnhill | ||
| INSURER: | Employers Mutual Ltd NSW Treasury Managed Fund | ||
| FILE NUMBER: | A1-6872/13 | ||
| ARBITRATOR: | Mr R Foggo | ||
| DATE OF ARBITRATOR’S DECISION: | 12 December 2013 | ||
| DATE OF APPEAL DECISION: | 11 March 2014 | ||
| SUBJECT MATTER OF DECISION: | Psychological injury; post-traumatic stress disorder; claim for lump sum compensation; pleadings; exposure to multiple traumatic incidents; personal injury or disease; challenge to Arbitrator’s finding as to nature of injury; whether injury a personal injury or disease contracted in the course of employment or an aggravation of a disease; ss 4(a) and 4(b)(i) and (ii) of the Workers Compensation Act 1987; role of Treasury Managed Fund insurer; thresholds in s 352(3) Workplace Injury Management and Workers Compensation Act 1998; interlocutory orders; issues not argued at arbitration; unsatisfactory presentation of appeal; need to identify grounds of appeal in the Application – Appeal Against Decision of Arbitrator; purpose of submissions in reply on appeal | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Bartier Perry | |
| Respondent: | Harris Wheeler Lawyers | ||
ORDERS MADE ON APPEAL: | 1. Subject to amending paragraph 2 of the Certificate of Determination of 12 December 2013, and paragraphs [29] and [31] of the Arbitrator’s Reasons, to delete “11 October 2010” and to insert “11 November 2010” in its place, the Arbitrator’s determination is confirmed. 2. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST. | ||
BACKGROUND
The respondent worker, Daniel Gurnhill, joined the NSW Police Force in 2002 and worked in general duties until 2007 when he joined the Tactical Response Unit. Over the course of his career as a police officer, he has been exposed to numerous traumatic incidents involving suicides, homicides, having weapons pointed at him and colleagues, and dangerous “vehicle stops” (deliberate high speed collisions with a high risk of being run over by offenders or other police cars).
In October 2009, Mr Gurnhill attended an incident in Orange when, after protracted negotiations, a man shot and killed himself. Following this incident, Mr Gurnhill started having nightmares and difficulty sleeping. He started hearing the victim’s name everywhere he went and could not get it out of his head. Over time, his condition deteriorated and he had increasing difficulty controlling his aggression.
In the four or five months up to November 2010, things got significantly worse. In or about September 2010, Mr Gurnhill attended a job to apprehend people wanted for murder. During the course of this job, Mr Gurnhill’s car was rammed by the offender’s vehicle, causing Mr Gurnhill to be very anxious and have flashbacks of the October 2009 incident. Later, he saw a similar car to the one used by the victim in Orange and he had a flashback of that incident, which caused him to sweat and tremble. He also has flashbacks at work, especially when he puts his…
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- Case
- [2014] NSWWCCPD 12
- Decision Date
CaseChat Overview and Summary
The tribunal found that the appeal was unsatisfactory as it did not identify specific grounds in the Application – Appeal Against Decision of Arbitrator. The employer failed to argue certain issues at the arbitration stage, which were then raised in the appeal. Furthermore, the submissions in reply on appeal did not adequately address the tribunal's concerns. Despite these deficiencies, the tribunal confirmed the arbitrator's determination, subject to minor amendments in the certificate and reasons for decision. The tribunal ordered the employer to pay the worker's costs of the appeal, assessed at $2,530 plus GST.
The tribunal's decision emphasised the importance of properly identifying grounds of appeal and ensuring that all relevant issues are argued at the arbitration stage. The employer's failure to do so led to the tribunal upholding the arbitrator's determination, albeit with minor amendments. The employer was also required to bear the costs of the appeal, highlighting the consequences of an unsatisfactory presentation of an appeal.
Orders
Orders of the court
1. Subject to amending paragraph 2 of the Certificate of Determination of 12 December 2013, and paragraphs [29] and [31] of the Arbitrator’s Reasons, to delete “11 October 2010” and to insert “11 November 2010” in its place, the Arbitrator’s determination is confirmed.
2. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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