O'Brien v Rosabella Pty Ltd - [2024] NSWPIC 69

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	O'Brien v Rosabella Pty Ltd [2024] NSWPIC 69
APPLICANT:	Neil O’Brien
RESPONDENT:	Rosabella Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	20 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits and medical evidence in relation to alleged thoracic and lumbar spine injury; respondent denies injury and alleges workplace incident did not take place, and if it did, that there was no ongoing incapacity for employment as claimed; Held – the applicant suffered an injury as alleged in the course of his employment; his version of events being supported by the statement evidence of two independent lay witnesses whose veracity was not challenged; the effects of the applicant’s injury are ongoing; the applicant has suffered total incapacity form 26 April 2023 to date and continuing; respondent ordered to pay the applicant weekly compensation and section 60 expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury to his lumbar and thoracic spines in the course of his employment with the respondent on 2 September 2021. 2. At the date of injury, the applicant’s pre-injury average weekly earnings were $593.35. 3. As a result of his injury, the applicant has suffered and continues to suffer total incapacity for employment from 26 April 2023 to date and continuing. 4. The respondent is to pay the applicant weekly compensation from 26 April 2023 to date and continuing pursuant to s 37 of the Workers Compensation Act 1987 at the rate of $474.68 per week. 5. The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses.

STATEMENT OF REASONS

BACKGROUND

The applicant, Neil O’Brien was employed at the IGA Supermarket in Gilgandra as a shop assistant by Rosabella Pty Ltd (the respondent).
The applicant alleges on 2 September 2021 he injured his back while walking through the cooking and baking aisle at the respondent’s premises when he slipped on white sugar which had been spilled on a white lino floor.
The respondent disputes liability for the applicant’s injury on two bases, namely that there was no injurious incident and secondly, if there was such an incident, it has not caused the applicant any incapacity during the period claimed.

MATTERS IN DISPUTE

The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered an injury as alleged on 2 September 2021, and
(b) whether the applicant has incapacity for employment during the period claimed.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 21 December…

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: [2024] NSWPIC 69
Decision Date: 20 February 2024

CaseChat Overview and Summary

In the matter of O'Brien v Rosabella Pty Ltd, the applicant, O'Brien, brought an action against his employer, Rosabella Pty Ltd, to claim weekly benefits under the Workers Compensation Act 1987. O'Brien alleged that he sustained a thoracic and lumbar spine injury while performing his duties, which resulted in ongoing incapacity for employment. Rosabella Pty Ltd contested the claim, denying that any injury occurred and arguing that even if it did, there was no ongoing incapacity for employment.

The legal issues before the court were whether O'Brien had indeed suffered an injury in the course of his employment and whether the injury had resulted in ongoing incapacity for work. The court had to determine the credibility of the evidence presented by O'Brien and the witnesses, and weigh it against the respondent's denial. The court also had to consider the extent of O'Brien's incapacity and whether it warranted compensation under the Act.

The court found that O'Brien's account of the incident was supported by two independent lay witnesses whose credibility was not challenged. Therefore, the court accepted that an injury had indeed occurred as alleged. Furthermore, the court found that the effects of the injury were ongoing, and that O'Brien had suffered total incapacity for work from 26 April 2023 to date and continuing. The court ordered Rosabella Pty Ltd to pay O'Brien weekly compensation and section 60 expenses.

The court's decision was based on the evidence presented and the credibility of the witnesses. The court found that the respondent's denial was not credible, and that the applicant's version of events was supported by the evidence. The court's findings on the extent of O'Brien's incapacity were also based on the evidence presented, and the court was satisfied that the applicant had suffered total incapacity for work. The court's orders were therefore based on the findings of fact and the provisions of the Workers Compensation Act 1987.

Orders