Opera Services Pty Ltd v Williams - [2023] NSWPICPD 25

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Opera Services Pty Ltd v Williams [2023] NSWPICPD 25
APPELLANT:	Opera Services Pty Ltd
RESPONDENT:	Christopher Williams
INSURER:	Hotel Employers Mutual Limited
FILE NUMBER:	A1-W1186/22
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	4 May 2023
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 19 May 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Consideration of expert evidence – Member applying judicial notice to reasoning process – section 43(2) of the Personal Injury Commission Act 2020 and rule 73 of the Personal Injury Commission Rules 2021
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr M van der Hout, solicitor
BBW Lawyers
Respondent:
Mr R Hanrahan, counsel
AJB Stevens Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr P Sweeney
DATE OF Member’s DECISION:	19 May 2022

INTRODUCTION AND BACKGROUND

This is an appeal from the Certificate of Determination dated 19 May 2022.
The respondent, Christopher Williams, was employed by the appellant, Opera Services Pty Limited, as a cellar man at the Opera Bar, Lower Concourse, Bennelong Point, Sydney.
On 19 January 2016, he was transferring stock using a walk behind electric pallet jack. As he was doing so, he slipped and fell backwards landing heavily on his buttocks sustaining injury to the lower back.
The appellant accepted that the respondent had suffered injury to the cervical and lumbar spines but disputed that he had sustained a consequential medical condition of the digestive system.
In the Application to Resolve a Dispute, the respondent claimed lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), alleging a whole person impairment (WPI) of 22%.
The Member found in favour of the respondent. He determined that as a result of the injury of 19 January 2016, Mr Williams suffered a consequential medical condition of his upper and lower digestive tracts. In the circumstances, the Member remitted the matter to the President for referral to a Medical Assessor to certify the degree, if any, of whole person impairment as a result of the injuries to the respondent’s cervical spine, lumbar spine and upper and lower digestive tract on 19 January 2016.
The appeal challenges the determination that the respondent sustained consequential gastrointestinal injuries.

STATEMENT OF REASONS AND FINDINGS

The Member received submissions on 9 May 2022 and delivered oral reasons for determination on 17 May 2022. The Certificate of Determination is dated 19 May 2022. (The references are to the oral reasons for determination. The pagination is by reference to the pagination in the transcript (T) of the oral reasons, which has been provided to both parties.)
The Member defined the task before him in the following terms:
“As this is only a claim pursuant to section 66, the role of the Commission is simply to find that there is or is not a consequential medical condition which results from a compensable injury. Whether a consequential medical condition is transitory or permanent, and…

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 Opera Services Pty Ltd v Williams

Details

AGLC: Opera Services Pty Ltd v Williams [2023] NSWPICPD 25
Case: [2023] NSWPICPD 25
Decision Date: 4 May 2023

CaseChat Overview and Summary

Opera Services Pty Ltd appealed a decision of a Member of the Personal Injury Commission who had issued a certificate of determination in relation to a workers compensation claim. The determination had been made by the Member after a review of the evidence, including expert evidence, and was to the effect that the applicant was not entitled to the compensation claimed. The court was required to decide whether the Member had erred in taking judicial notice of the reasoning process that was applied in assessing the evidence, and whether this was inconsistent with section 43(2) of the Personal Injury Commission Act 2020 and rule 73 of the Personal Injury Commission Rules 2021.

The court found that the Member was entitled to take judicial notice of the reasoning process, and that there was no error in the Member's approach. The court held that section 43(2) of the Act and rule 73 of the Rules did not prohibit a Member from taking judicial notice of the reasoning process. The court further found that the Member's assessment of the evidence, including the expert evidence, was not unreasonable and that there was no error in the determination.

The appeal was dismissed and the certificate of determination dated 19 May 2022 was confirmed.

Orders

Orders of the court

ORDERS MADE ON APPEAL:

1. The Certificate of Determination dated 19 May 2022 is confirmed.

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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