Sullivan v ER Curtain Pty Ltd - [2025] NSWPIC 17

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sullivan v ER Curtain Pty Ltd [2025] NSWPIC 17
APPLICANT:	Karl Sullivan
RESPONDENT:	ER Curtain Pty Ltd
MEMBER:	Gaius Whiffin
DATE OF DECISION:	17 January 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for psychological injuries; claim for compensation pursuant to section 66; parties agree that all of the events that were causative of the applicant’s psychological injury occurred between 1986 and 1992; consideration of whether the applicant is able to proceed with his claim for lump sum compensation pursuant to section 66, having regard to clause 3(2) of part 18C of schedule 6 of the Act; Department of Environment, Climate Change & Water v J, SAS Trustee Corporation v Pearce, and State of New South Wales (Fire and Rescue NSW) v Dixon considered; Held – the effect of clause 3(2) of part 18C of schedule 6 of the Act is clear and the applicant in these proceedings is unable to claim lump sum compensation pursuant to section 66 as it has been agreed that all events causative of his psychological injury and impairment occurred prior to 1 July 2002; the proportion of his psychological impairment that relates to events before 1 January 2002 is 100%; there will be an award for the respondent in relation to the applicant’s claim in these proceedings pursuant to section 66.
DETERMINATIONS MADE:	The Commission determines: 1. There will be an award for the respondent in relation to the applicant’s claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Karl Sullivan (the applicant) is 54-years-of-age. He was employed by ER Curtain Pty Ltd (the respondent) between March 1986 and the end of 1992, as a boilermaker.
Due to events which occurred during this period of employment, he alleges that he sustained a psychological injury.
By a letter from his solicitors dated 28 February 2024, he claimed lump sum compensation from the respondent pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), in relation to 20% permanent impairment.
The respondent denied that claim by way of a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated
25 September 2024.
By way of an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (Commission), the applicant seeks a determination of his entitlement to lump sum compensation pursuant to s 66 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties eventually agreed that the only issue to be determined in these proceedings is:
(a) is the applicant able to proceed with a claim for lump sum compensation pursuant to s 66 of the 1987 Act, having regard to cl 3(2) of part 18C of schedule 6 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the proceedings understand the nature of the application and the legal implications of any assertion…

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: [2025] NSWPIC 17
Decision Date: 17 January 2025

CaseChat Overview and Summary

In the case of Sullivan v ER Curtain Pty Ltd, the applicant, Sullivan, sought compensation for psychological injuries sustained during his employment with the respondent, ER Curtain Pty Ltd. The dispute centred on whether Sullivan could claim lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987. Both parties agreed that all events that caused Sullivan's psychological injury occurred between 1986 and 1992, well before the relevant legislative changes on 1 July 2002. The court was tasked with determining whether Sullivan could proceed with his claim for lump sum compensation, considering clause 3(2) of part 18C of schedule 6 of the Act.

The central legal issue was the interpretation of clause 3(2) of part 18C of schedule 6 of the Act and its application to Sullivan's claim. The court had to assess whether the applicant's claim for compensation was barred by the agreed timeframe of the causative events. References were made to previous cases, including Department of Environment, Climate Change & Water v J, SAS Trustee Corporation v Pearce, and State of New South Wales (Fire and Rescue NSW) v Dixon, to assist in interpreting the relevant legislation.

The court found that the effect of clause 3(2) of part 18C of schedule 6 of the Act was clear, and Sullivan could not claim lump sum compensation under section 66 because all events that caused his psychological injury occurred before 1 July 2002. As 100% of Sullivan's psychological impairment related to events before 1 January 2002, he was ineligible for the compensation sought. Consequently, the court awarded costs to the respondent regarding Sullivan's claim in these proceedings.

Orders