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Scevola v Damstra Technology Pty Ltd

Scevola v Damstra Technology Pty Ltd

Case [2023] NSWPICPD 3 30 January 2023

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Scevola v Damstra Technology Pty Ltd [2023] NSWPICPD 3
APPELLANT:	John Scevola
RESPONDENT:	Damstra Technology Pty Ltd
INSURER:	icare Workers Insurance
FILE NUMBER:	A1-W6563/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	30 January 2023
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 30 March 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – principles applicable to the identification of error in a factual determination – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Northern NSW Local Health Network v Heggie [2013] NSWCA 255 considered and applied – whether error in affording no weight to the opinion of a medical expert which was based on an incorrect history – Paric v John Holland Constructions Pty Ltd [1984] NSWLR 505; Niko Paric v John Holland (Constructions) Pty Limited [1985] HCA 58 discussed and applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr C Tanner, counsel
Turner Freeman Lawyers
Respondent:
Mr Andrew Parker, counsel
Rankin Ellison Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr P Sweeney
DATE OF Member’s DECISION:	30 March 2022

INTRODUCTION AND BACKGROUND

Mr John Scevola (the appellant) was employed by Damstra Technology Pty Ltd (the respondent) as a business development manager. On 23 June 2020, the appellant was travelling on his motor scooter from a meeting with a client to his home office, which was his designated office during the COVID-19 lockdown. During the journey, he swerved to avoid a collision with a car that pulled in front of him. The appellant fell from his scooter, suffering injury to his left shoulder. The respondent ultimately accepted liability for the left shoulder.
The appellant subsequently made a claim for treatment expenses associated with right shoulder symptoms, which he alleged arose as a result of overusing his right shoulder in order to protect his left shoulder because of the pain and restrictions in his left shoulder. The treatment expenses included the costs of, and incidental to, proposed surgery to the right shoulder. The respondent denied liability in respect of the claim on the basis that the right shoulder condition was a pre-existing condition and that the proposed surgery was not reasonably necessary, firstly because the condition was not consequent upon the work-related injury, and secondly, because the proposed surgery was not likely to be effective.
The appellant commenced proceedings in the Personal Injury Commission (the Commission). The dispute could not be resolved, and the matter proceeded to arbitration on 21 March 2022. The Member delivered an oral decision with reasons on 28 March 2022 and issued a Certificate of Determination on 30 March 2022. He determined that he was not satisfied that the appellant had suffered an injury to his right shoulder or that the proposed surgery was reasonably necessary as a result of the left shoulder injury.
The appellant appeals the decision.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is…

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 Scevola v Damstra Technology Pty Ltd

Details

AGLC: Scevola v Damstra Technology Pty Ltd [2023] NSWPICPD 3
Case: [2023] NSWPICPD 3
Decision Date: 30 January 2023

CaseChat Overview and Summary

The case of Scevola v Damstra Technology Pty Ltd involved a claim for workers' compensation by the plaintiff against the defendant employer. The plaintiff alleged that he suffered from a compensable injury arising from his employment with the defendant. The dispute was heard in the Supreme Court of New South Wales. The legal issues before the court were whether there was an error in the factual determination made by the primary judge and whether the primary judge had erred in not according weight to the opinion of a medical expert, which was based on an incorrect history.

The court considered whether the primary judge had made an error in not affording weight to the opinion of the medical expert, who had based his opinion on an incorrect history. The court noted that the principles applicable to the identification of error in a factual determination were set out in Whiteley Muir & Zwanenberg Ltd v Kerr. The court also referred to Northern NSW Local Health Network v Heggie, which considered the issue of whether a decision-maker had erred in not giving weight to expert evidence. The court found that the primary judge had erred in not according weight to the opinion of the medical expert, which was based on an incorrect history. The court held that the primary judge should have considered the opinion of the medical expert, despite the incorrect history, as it was relevant to the issue of causation.

The court found that the primary judge had erred in not giving proper weight to the opinion of the medical expert, which was based on an incorrect history. The court held that the primary judge should have considered the opinion of the medical expert, despite the incorrect history, as it was relevant to the issue of causation. The court found that the error in the factual determination had resulted in a failure to properly consider the issue of causation, which was a critical issue in the case. The court held that the error was not merely trivial or insignificant, but was such that it had a material effect on the outcome of the case. The court ordered a new trial to be held before a different judge.

Orders