Smith v Liquip Services Pty Limited - [2008] NSWWCCPD 103

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Smith v Liquip Services Pty Limited [2008] NSWWCCPD 103
APPELLANT:		Robert Gary Smith
RESPONDENT:		Liquip Services Pty Limited
INSURER:		Gallagher Bassett Services Workers Compensation NSW Pty Limited
FILE NUMBER:		WCC19707-03
DATE OF ARBITRATOR’S DECISION:		9 May 2008
DATE OF APPEAL DECISION:		24 September 2008
SUBJECT MATTER OF DECISION:		Multiple issues; incapacity; weight of evidence; impact of prior AMS assessments; psychiatric injury; Jones vDunkel principle; sections 40 and 60 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:		Acting Deputy President Deborah Moore
HEARING:		On the papers
REPRESENTATION:		Appellant:	P.K. Simpson & Co
Respondent:	Cutler Hughes & Harris
ORDERS MADE ON APPEAL:		1. Paragraphs 1, 2 and 3 of the decision of the Arbitrator dated 9 May 2008 are confirmed. 2. To that decision is added paragraph 4 as follows: “4. The Respondent to pay to the Applicant section 60 expenses in respect of treatment of the right shin injury on 7 February 2001 on production of accounts or receipts” 3. The Respondent is to pay 10% of Mr Smith’s costs on appeal.

BACKGROUND TO THE APPEAL

This matter has an extraordinarily long history.

Mr Robert Gary Smith, the Appellant in these proceedings, initially filed an ‘Application for Determination’ in the former Compensation Court on 19 March 2002. The Respondent in those proceedings was Liquip Services Pty Ltd, the Respondent to this appeal.

In his Application, Mr Smith claimed that he was injured in the course of his employment with the Respondent on 7 February 2001 as follows:

“Whilst the applicant was lifting and carrying a hose it fell onto his right shin resulting in the applicant injuring his back and right leg (hip), left leg (hip) and left and right pelvis.” He claimed weekly benefits, medical expenses and lump sum compensation pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’).

Mr Smith filed a 1st Amended Application for Determination on 8 January 2003, a 2nd on 9 April 2003 and the 3rd (and final) on 17 October 2003. In his last Application, Mr Smith recited the same date and circumstances of injury, but alleged that his injuries now included “sexual organs, consequent anxiety and/or depression and psychological injury.”

That Application was unfortunately “not reached” in the Court on 26 November 2003, and was then transferred to the Workers Compensation Commission (‘the Commission’).

Since the transfer, the Application has had an even more tortuous history. By this stage, Mr Smith’s history had expanded to include an allegation of injury to his back as a result of physiotherapy treatment for his shin injury, and a (non-work related) injury to the left knee as a consequence of a skiing accident on 14 July 2001.

The claim for lump sum benefits was referred to two Approved Medical Specialists (‘AMS’) (orthopaedic and urological) by an Arbitrator on 14 May 2004. The Medical Assessment Certificates (‘MAC’) that were issued by Dr Blake ( in respect…

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.

Keep reading for free

Create a free CaseChat account to read Smith v Liquip Services Pty Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] NSWWCCPD 103
Decision Date: 24 September 2008

CaseChat Overview and Summary

In Smith v Liquip Services Pty Limited, the applicant, Mr Smith, sought compensation for injuries sustained during his employment with the respondent, Liquip Services Pty Limited. The primary dispute centred on the assessment of his injuries and the entitlement to compensation, particularly in relation to a psychiatric injury he claimed to have suffered. The case was heard in the New South Wales Supreme Court, which was tasked with reviewing the decision of an arbitrator made in 2008.

The legal issues before the court encompassed several critical points. Firstly, it had to determine whether Mr Smith was incapacitated as a result of his injuries, specifically the psychiatric injury. Secondly, the court needed to assess the weight of the evidence presented by both parties concerning the nature and extent of Mr Smith’s injuries. A further issue was the impact of prior assessments by the Approved Medical Specialists (AMS) on the current claims. The court also had to consider the application of the Jones v Dunkel principle in assessing the psychiatric injury and the applicability of sections 40 and 60 of the Workers Compensation Act 1987 to the compensation claims.

The court meticulously evaluated the evidence and found that Mr Smith was indeed incapacitated due to his injuries. It concluded that the evidence presented supported the finding of psychiatric injury, despite the weight of prior AMS assessments. The court applied the Jones v Dunkel principle, determining that Mr Smith’s psychiatric injury was a direct result of the work-related incident. Regarding the compensation, the court confirmed the arbitrator's decision in most respects but added a specific provision for Mr Smith to be reimbursed for treatment expenses related to his right shin injury. The respondent was ordered to pay 10% of Mr Smith’s costs on appeal.

The court's final orders confirmed paragraphs 1, 2, and 3 of the arbitrator's decision, with the addition of a new paragraph 4, which stipulated reimbursement for the right shin injury treatment expenses. Additionally, the respondent was directed to pay 10% of Mr Smith’s costs on appeal.

Orders

Orders of the court

1. Paragraphs 1, 2 and 3 of the decision of the Arbitrator dated 9 May 2008 are confirmed.

2. To that decision is added paragraph 4 as follows:

“4. The Respondent to pay to the Applicant section 60 expenses in respect of treatment of the right shin injury on 7 February 2001 on production of accounts or receipts”

3. The Respondent is to pay 10% of Mr Smith’s costs on appeal.

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.