Smith v Coffs Harbour City Council - [2023] NSWPIC 558

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Smith v Coffs Harbour City Council & Ors [2023] NSWPIC 558
APPLICANT:	Andrew Fraser Smith
FIRST RESPONDENT:	Acciona Ferrovial Joint Venture
SECOND RESPONDENT:	Coffs Harbour City Council
MEMBER:	Jane Peacock
DATE OF DECISION:	23 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Second respondent denied liability on the basis that the applicant was on an authorised absence and/or not on an ordinary recess; evidence weighed in the balance and on the balance of probabilities it was determined that the second respondent was liable; the liability was apportioned equally between the first and second respondents; Held – award for the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the applicant in respect of the claim for weekly compensation under s 37 of the Workers Compensation Act 1987 as follows: (a) From 28 March 2022 to 3 April 2022 at the rate of $1,928. per week. (b) From 4 April 2022 to 1 May 2022 at the rate of $1,960 per week. (c) From 2 May 2022 to 19 June 2022 at the rate of $2,327.50 per week. (d) From 20 June 2022 to 26 June 2022 at the rate of $1,960 per week. (e) From 27 June 2022 to 3 July 2022 at the rate of $2,337.50 per week. (f) From 4 July 2022 to 25 September 2022 at the rate of $1,960 per week. (g) From 26 September 2022 to date and continuing in accordance with the provisions of the Act at the rate of $2,024 per week. 2. The parties have liberty to apply within 14 days in respect of the quantum of weekly compensation. 3. Award for the applicant in respect of a general order for the payments of s 60 expenses. 4. The liability for payment of the above awards be apportioned equally between the first and second respondents. 5. The second respondent to have credit for any payments already made.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (the Application), Mr Andrew Fraser Smith (the applicant) seeks weekly compensation and compensation for medical expenses in respect of injuries to his lumbar spine that are alleged to have occurred in the course of or arising out of employment with the two respondents in these proceedings.
On 21 July 2015, when employed by Acciona Ferrovial Joint Venture (the first respondent), the applicant injured his lumbar spine. There is no dispute that the applicant injured his lumbar spine on 21 July 2015. The first respondent was insured for the purposes of workers compensation (the first insurer) and the applicant has been paid compensation in the form of weekly benefits, medical expenses and lump sum compensation.
On 23 March 2022, the applicant injured his lumbar spine when employed by Coffs Harbour City Council (the second respondent). The second respondent was insured for the purposes of workers compensation.
The second respondent disputes that it is liable to pay compensation for the injurious event that occurred on 23 March 2022. The first respondent disputes that…

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 558
Decision Date: 23 October 2023

CaseChat Overview and Summary

Smith, the applicant, pursued a claim against Coffs Harbour City Council, the second respondent, in relation to a workplace incident that occurred during what the council argued was an unauthorised absence or ordinary recess. The case was heard in the Workers Compensation Court, where the council denied liability on the grounds that Smith was not entitled to compensation as he was not on duty during the incident. The applicant contested this, asserting that he was indeed on duty and thus entitled to compensation.

The legal issues at the heart of this case revolved around whether Smith was on an authorised absence or an ordinary recess at the time of the incident, and if so, whether this precluded his right to compensation. The court had to weigh the evidence provided by both parties and determine the likelihood of the applicant’s claims being true. Specifically, it needed to ascertain whether Smith was indeed on duty or not, and if on duty, whether the second respondent was liable for the injuries sustained.

In evaluating the evidence, the court considered the balance of probabilities and concluded that it was more likely than not that Smith was on duty at the time of the incident. The court found that the council's arguments for an authorised absence or ordinary recess were not sufficiently supported by the evidence. Consequently, the court held that the second respondent was liable for the injuries sustained by Smith. The liability was apportioned equally between the first and second respondents. Given these findings, the court awarded compensation to the applicant.

The final orders included an award of compensation to Smith, with the liability for the payment apportioned equally between the first and second respondents. This decision underscored the importance of employers ensuring clear policies on authorised absences and ordinary recesses to prevent similar disputes in the future.

Orders