Riddett v Manpower Services (Australia) Pty Ltd - [2023] NSWPIC 22

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Riddett v Manpower Services (Australia) Pty Ltd [2023] NSWPIC 22
APPLICANT:	Gavin James Riddett
RESPONDENT:	Manpower Services (Australia) Pty Ltd
Member:	John Wynyard
DATE OF DECISION:	18 January 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation for onset of gallstones; whether expert opinion based on correct assumptions; Held – applicant’s expert relied on statements by applicant as to relevant matters occurring since 2005 which were largely unsupported, vague and inconsistent both internally and with contemporaneous evidence; Cruceanu v Vix Technology (Australia) Limited and ACW v ACX considered; award for the respondent.
determinations made:	1. There is an award in favour of the respondent in respect of the claim for a consequential condition affecting the biliary tract, being cholecystitis and gallstones. 2. I remit this matter to the President for referral to a Medical Assessor for a whole person impairment assessment on the following bases: (a) Date of injury: 21 May 2005. (b) Matter for assessment: lumbar spine. (c) Evidence: Application to Resolve a Dispute and attached documents; Reply and attached documents, and respondent’s Application to Admit Late Documents dated 29 November 2022.

STATEMENT OF REASONS

BACKGROUND

Gavin James Riddett, the applicant, seeks lump sum compensation for impairment caused by injury to his back on 21 May 2005. The impairment claimed was to his lumbar spine and, as a consequential condition, his digestive system.
Dispute notices were issued by the insurer, and the Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) did the ingestion of analgesic medication cause the applicant’s gallbladder condition?

PROCEDURE BEFORE THE COMMISSION

This matter was heard by video link on 29 November 2022. The applicant was represented by Mr Simon Hunt of counsel, instructed by Mr Paul Mantach of Messrs MRM Lawyers.
Mr Paul Stockley of counsel appeared for the respondent, instructed by Mr Christopher Michael of Messrs Moray & Agnew, lawyers. Mr Tom Bradford appeared for the insurer.
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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    email dated 27 September 2022 of instructions to Dr Sethi, clinical notes and report of Dr Garvey (Admitted during the proceedings);
(c)    email dated 29 November 2022 containing the journal articles referred to by
Dr Sethi – lodged pursuant to the applicant’s undertaking during the hearing;
(d)    Reply and attached documents, and
(e)    respondent Application to Admit Late Documents dated 16 November…

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: [2023] NSWPIC 22
Decision Date: 18 January 2023

CaseChat Overview and Summary

Riddett brought a claim against Manpower Services (Australia) Pty Ltd for a lump sum compensation relating to the onset of gallstones. The case was heard in the relevant tribunal. The central issue before the tribunal was whether the expert opinion relied upon by Riddett was based on assumptions that were both correct and supported by evidence. Specifically, the tribunal had to determine whether the expert's reliance on Riddett’s statements about events and conditions since 2005 was justified, given that these statements were largely unsupported, vague, and inconsistent both internally and with other contemporaneous evidence.

The tribunal considered the principles articulated in Cruceanu v Vix Technology (Australia) Limited and ACW v ACX, which emphasise the importance of expert evidence being founded on reliable and verifiable assumptions. The tribunal found that Riddett's expert had not adequately substantiated the claims made by Riddett, which undermined the reliability of the expert's opinion. Consequently, the tribunal concluded that the assumptions underpinning the expert's analysis were not sufficiently supported and, as a result, the expert's opinion could not be relied upon. Given these findings, the tribunal dismissed Riddett's claim and awarded costs to the respondent.

Orders