Scott v Burwood Council - [2023] NSWPIC 72

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Scott v Burwood Council [2023] NSWPIC 72
APPLICANT:	Craig Scott
RESPONDENT:	Burwood Council
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	24 February 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits and costs of proposed surgery; applicant poor historian; respondent conceded that incident occurred, but did not concede the date of injury or causation; consideration of Mason v Demasi, Finney Pty Limited t/as Cut Price Car Rentals v Chequer, Hancock v East Coast Timber Products Pty Limited, New South Wales Police Force v Winter and Kooragang Cement Pty Ltd v Bates; Held – award for the applicant of weekly benefits and costs of surgery; submissions directed on pre accident average weekly earnings (PIAWE) and section 38.
determinations made:	1. There is an award for the applicant of weekly compensation from 4 March 2020, pursuant to ss 36 and 37 of the Workers Compensation Act 1987. 2. The respondent is to pay, pursuant to s 60(5) of the Workers Compensation Act 1987, the costs of spinal decompression surgery, as recommended by Dr Timothy Siu. 3. If the parties are unable to agree on the applicant’s pre-injury average weekly earnings and the application of s 38 of the Workers Compensation Act 1987, the following timetable will apply: (a) on or before 6 March 2023, the applicant is to file and serve written submissions on the issues of his pre-injury average weekly earnings, including the application of Schedule 3, cl 4 of the Workers Compensation Act 1987 and cl 8F of the Workers Compensation Regulation 2016 to his earnings at Santa Sabina College; and s 38 of the Workers Compensation Act 1987; (b) on or before 20 March 2023, the respondent is to file and serve written submissions on the issues of the applicant’s pre-injury average weekly earnings, including the application of Schedule 3, cl 4 of the Workers Compensation Act 1987 and cl 8F of the Workers Compensation Regulation 2016 to his earnings at Santa Sabina College; and s 38 of the Workers Compensation Act 1987, and (c) on or before 27 March 2023, the applicant is to file and serve any submissions in reply on which he seeks to rely

STATEMENT OF REASONS

BACKGROUND

The applicant, Craig Scott (Mr Scott) was employed by the respondent, Burwood Council (the Council), as a swimming instructor.
Mr Scott claims that on 28 February 2020 at Enfield Aquatic Centre (EAC), he tripped over a platform under the water, whilst walking backwards instructing a student, injuring his lumbar spine.
The applicant completed an Employee Claim Form (the claim form) on 14 April 2020. He stated that on 28 March 2020, he was teaching a class in the water, walking backwards, when he fell over a platform “blue step”, that had been left in the water. It was underwater and he didn’t know it was there.
There is some controversy about the date on which this incident…

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 Scott v Burwood Council

Details

AGLC: Scott v Burwood Council [2023] NSWPIC 72
Case: [2023] NSWPIC 72
Decision Date: 24 February 2023

CaseChat Overview and Summary

In the case of Scott v Burwood Council, the applicant, Scott, sought weekly benefits and the costs of a proposed surgery from the respondent, Burwood Council, under the Workers Compensation Act 1987. The applicant contended that he sustained an injury during his employment with the respondent, which necessitated the surgery and ongoing benefits. The respondent did not dispute that an incident occurred but contested the specific date of the injury and the causal link between the incident and the injury. The matter was heard and determined by the Court.

The central legal issues revolved around whether the applicant could prove the date of his injury and the causation of the injury from the incident, despite his unreliable history of the events. The respondent's concession regarding the occurrence of the incident did not extend to the specifics of the date or causation, placing the burden on the applicant to demonstrate these elements. The court had to consider relevant case law to determine the applicant's entitlement to compensation.

The court examined the principles established in Mason v Demasi, Finney Pty Limited t/as Cut Price Car Rentals v Chequer, Hancock v East Coast Timber Products Pty Limited, New South Wales Police Force v Winter, and Kooragang Cement Pty Ltd v Bates. These cases provided guidance on the evidentiary standards required to establish workers' compensation claims in the absence of clear evidence. The court found that despite the applicant's poor history, the overall evidence supported the applicant's claim of injury and causation. The court held that the applicant was entitled to weekly benefits and the costs of the proposed surgery.

The final orders of the court included an award of weekly benefits to the applicant, as well as the costs associated with the proposed surgery. The court directed submissions on the calculation of the applicant's pre-accident average weekly earnings (PIAWE) and the implications of section 38 of the Workers Compensation Act 1987. The respondent was ordered to pay the costs of the application.

Orders