| 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…
Continue reading Scevola v Damstra Technology Pty Ltd
Sign in free to access the full text
- AGLC
- Scevola v Damstra Technology Pty Ltd [2023] NSWPICPD 3
- Case
- [2023] NSWPICPD 3
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.