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Soward v Strop Pty Ltd

Soward v Strop Pty Ltd

Case [2025] NSWPIC 90 18 March 2025

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CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Soward v Strop Pty Ltd [2025] NSWPIC 90
APPLICANT:	Kevin Soward
RESPONDENT:	Strop Pty Ltd
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	18 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; abdominal hernias; heavy nature of work; contributing causes to development of hernia included smoking and obesity; journal articles on causes of abdominal and inguinal hernia; relied upon by respondent’s qualified doctor who incorrectly quoted from the articles; articles suggested that heavy repetitive work was a contributing cause to the development of abdominal hernias; opening of abdominal wall is a definite or distinct physiological disturbance and constitutes a section 4(a) injury; Military Rehabilitation and Compensation Commission v May; causal relationship between the heavy lifting and the development of hernia; Badawi v Nexon Asia Pacific Pty Ltd; application of section 9A; other contributing causes including smoking and obesity; temporal relationship and heavy lifting sufficient to constitute a substantial contributing factor; Held – applicant entitled to costs of surgery for repair of hernias.
DETERMINATIONS MADE:	The Commission determines: Findings 1. The applicant suffered injury to the abdominal wall causing ventral hernias within the meaning of s 4(a) of the Workers Compensation Act 1987 (the 1987 Act). 2. The employment concerned was a substantial contributory factor to the injury within the meaning of s 9A of the 1987 Act. 3. The treatment proposed by Dr Das is as a result of the injury within the meaning of s 60 of the 1987 Act. Order 4. The respondent pays the costs of and incidental to the surgery proposed by Dr Das (see Application, page 29).

STATEMENT OF REASONS

BACKGROUND

Mr Kevin Soward (the applicant) was employed by the respondent from August 2021 to February 2023. He alleges that the heavy nature of the work duties caused injury to the abdominal wall and the development of a number of ventral hernias in the midline.
The applicant claims pursuant to s 60(5) of the Workers Compensation Act 1987 (the 1987 Act) the costs of and incidental to the ventral hernia surgery repair proposed by Dr Das.
The matter was listed for arbitration hearing on 5 March 2024 when Mr Bolton of counsel appeared for the applicant and Ms Goodman of counsel appeared for the respondent. The following documents were admitted by consent:
(a)    Application to Resolve a Dispute and attachments;
(b)    Reply and attachments, and
(c)    respondent’s Application to Lodge Additional Documents attaching two journal articles.
There were two other late Application to Lodge Additional Documents filed but not relied upon in the proceedings.
There was no request to call oral evidence.
Counsel were advised that I would not consider material that was not the subject of express submission. There was no objection to this course.

ISSUES/AGREEMENTS

The applicant principally relied on s 4(a) of the 1987 Act based on the allegation that the heavy nature of the work caused or contributed to a tear of the abdominal wall resulting in the umbilical hernias.
The…

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 Soward v Strop Pty Ltd

Details

AGLC: Soward v Strop Pty Ltd [2025] NSWPIC 90
Case: [2025] NSWPIC 90
Decision Date: 18 March 2025

CaseChat Overview and Summary

The applicant in this case, Soward, sought compensation from Strop Pty Ltd under the Workers Compensation Act 1987 for abdominal hernias. The primary dispute centred around whether the heavy nature of the work Soward performed at his employment constituted a substantial contributing factor to the development of the hernias, despite other contributing factors such as smoking and obesity. The court was required to determine if the injuries were within the scope of section 4(a) of the Workers Compensation Act 1987, which pertains to physiological disturbances caused by an accident arising out of or in the course of employment.

The legal issues before the court were whether the heavy lifting involved in Soward's work was a contributing cause to the development of his hernias and whether this constituted a section 4(a) injury. The respondent argued that the qualified doctor who examined Soward had relied on journal articles that incorrectly quoted the causes of abdominal and inguinal hernias, thereby misconstruing the evidence. The court needed to ascertain the correct interpretation of the journal articles and whether they supported the claim that heavy repetitive work was a contributing cause to the development of abdominal hernias. Additionally, the application of section 9A of the Act, which concerns the assessment of other contributing causes, was examined.

The court held that the opening of the abdominal wall is a definite or distinct physiological disturbance and thus constitutes a section 4(a) injury, as per the decision in Military Rehabilitation and Compensation Commission v May. The temporal relationship and the nature of the heavy lifting were sufficient to establish a causal relationship between Soward's employment and the development of the hernias. The court found that despite other contributing causes such as smoking and obesity, the heavy lifting was a substantial contributing factor. The respondent's doctor's reliance on incorrectly quoted journal articles did not undermine the evidence presented. Consequently, Soward was entitled to the costs of surgery for the repair of his hernias.

Orders