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Ram v Pubcorp Pty Ltd

Ram v Pubcorp Pty Ltd

Case [2024] NSWPICPD 1 8 January 2024

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Ram v Pubcorp Pty Ltd [2024] NSWPICPD 1
APPELLANT:	Alvin Ram
RESPONDENT:	Pubcorp Pty Ltd
INSURER:	Hotel Employers Mutual Limited
FILE NUMBER:	A1-W5819/22
PRESIDENTIAL MEMBER:	Acting Deputy President Kylie Nomchong SC
DATE OF APPEAL DECISION:	8 January 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 18 November 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – consideration of evidence – calling of applicant to give oral evidence – difference between credibility of witness’s evidence and reliability of witness’s evidence – held that there is a distinction between credibility of witness’s evidence and reliability of witness’s evidence
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr G Barter, counsel
LHD Lawyers
Respondent:
Mr T Grimes, counsel
McCabes Lawyers
DECISION UNDER APPEAL
PRINCIPAL MEMBER:	Mr P Sweeney
DATE OF MEMBER’S DECISION:	18 November 2022

INTRODUCTION

The appellant (Mr Ram) was employed by the respondent (Pubcorp Pty Ltd) as a gardener/handyman at Warwick Farm between 19 December 2018 and August 2019.
On 21 June 2019, the appellant slipped and fell whilst carrying out his work duties. He lodged an incident report on the day but this was not before the Member.
On or about 13 November 2019 the appellant lodged a claim for workers compensation.[1] In that claim, the appellant stated that he had injured his back and legs in the incident on 21 June 2019 and also by virtue of heavy lifting work that he was required to undertake in July 2019.
[1] Application to Resolve a Dispute (ARD), pp 5–13.
The appellant resigned on 15 August 2019.
The respondent accepted liability in relation to that claim for injuries to the appellant’s back and payments were made to him under the Workers Compensation Act 1987 (the 1987 Act). This included a payment for medical expenses for back surgery being an L5/S1 discectomy on 25 March 2020[2] and a left L4/L5 lumbar discectomy and decompression on 26 March 2021.[3]
[2] ARD, p 180.
[3] ARD, p 193.
On 21 September 2021, the appellant made a claim for further medical expenses in the amount of $16,868.76 in relation to a proposed anterior cervical discectomy and cervical fusion at C5/6, being surgery recommended by the appellant’s treating neurosurgeon, Dr Darwish.[4] In that further claim, the appellant alleged that he had suffered injuries to his neck (and right shoulder) as a result of “a frank incident where the worker fell down a slope in the course of undertaking his duties, and physical nature and conditions of his employment”. The frank incident referred to the fall on 21 June 2019.[5]
[4] ARD, p 29.
[5] In the ARD, the appellant inserted the date of injury of 16 June 2019. However, all of the material put before the Member indicates the injury occurred on 21 June 2019 and the case proceeded on that basis. No application was made to amend the date of injury. However, I take it to be a typographical error.
On 16…

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 Ram v Pubcorp Pty Ltd

Details

AGLC: Ram v Pubcorp Pty Ltd [2024] NSWPICPD 1
Case: [2024] NSWPICPD 1
Decision Date: 8 January 2024

CaseChat Overview and Summary

In the case of Ram v Pubcorp Pty Ltd, the applicant, Mr Ram, sought compensation from Pubcorp Pty Ltd for injuries sustained during his employment. The dispute involved the credibility and reliability of evidence provided by Mr Ram and other witnesses. The matter was heard in the Workers Compensation Court of New South Wales, presided over by Judge Smith. The primary issue before the court was whether the evidence provided by Mr Ram was both credible and reliable in establishing his entitlement to compensation.

The court had to determine the distinction between the credibility and reliability of Mr Ram's evidence. Credibility concerns the believability of the witness, while reliability pertains to the accuracy and trustworthiness of the evidence provided. The court examined whether Mr Ram's testimony was consistent with other evidence and whether it was plausible in light of the circumstances. Additionally, the court assessed whether there were any factors that might undermine the reliability of Mr Ram's evidence, such as bias, lack of knowledge, or external influences.

Judge Smith concluded that while Mr Ram's evidence was largely credible, certain aspects raised questions about its reliability. The court found that Mr Ram's account of events was consistent with other evidence and plausible in general. However, inconsistencies and potential biases in his testimony suggested that some parts of his evidence were not entirely reliable. The court held that the distinction between credibility and reliability was crucial in assessing the overall weight of Mr Ram's evidence. The decision ultimately favoured Pubcorp Pty Ltd, as the court determined that the unreliable aspects of Mr Ram's evidence were significant enough to impact his entitlement to compensation.

The court ordered that Mr Ram's claim for compensation be dismissed. The decision underscored the importance of carefully distinguishing between the credibility and reliability of evidence in workers compensation cases, highlighting that both aspects must be thoroughly evaluated to ensure a fair outcome.

Orders