Sydney Catholic Schools Limited v Bridgefoot - [2021] NSWPICPD 17

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Sydney Catholic Schools Limited v Bridgefoot [2021] NSWPICPD 17
APPELLANT:	Sydney Catholic Schools Limited
RESPONDENT:	Gelsomina Bridgefoot
INSURER:	Catholic Church Insurances Limited
FILE NUMBER:	A1-5317/20
MEMBER:	Mr P Young
DATE OF MEMBER’S DECISION:	12 November 2020
DATE OF APPEAL DECISION:	8 June 2021
CATCHWORDS:	WORKERS COMPENSATION – Section 294 of the Workplace Injury Management and Workers Compensation Act 1998 – adequacy of reasons – ex tempore decisions – addendum to oral reasons added at the end of their delivery
PRESIDENTIAL MEMBER:	President Judge Phillips
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr T Murray, solicitor
Astridge and Murray Solicitors
Respondent:
Ms L Goodman, counsel
Carroll & O’Dea Lawyers
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 12 November 2020 is revoked.
2. The matter is remitted to another member to be dealt with in accordance with these reasons.

INTRODUCTION AND BACKGROUND

The respondent worker, Ms Gelsomina Bridgefoot has been a school teacher in the Catholic Education system for approximately 39 years.[1] She was employed as a teacher at Villa Maria Catholic Primary School in Hunters Hill.
[1] Respondent’s statement, 31 July 2019, Application to Resolve a Dispute (ARD), p 1.
The respondent alleged she sustained injury to her right knee in the course of her employment on 30 January 2008, when bending down to the floor teaching year 1 students (the first incident).
On 30 November 2018, the respondent alleges that whilst she was on a bus accompanying students leaving the Ryde Aquatic Centre, the bus driver pulled out from the kerb, struck a brick wall before reversing at speed and then striking a road sign. She was taken by ambulance to hospital, with alleged injury to her right shoulder, neck, back and body, fractured ribs, and left shoulder[2] (the second incident).
[2] Transcript of oral reasons of 11 November 2020 (reasons), 1.30.
On 6 December 2019, whilst travelling on a bus to Ryde Aquatic Centre with students, the respondent alleges that the drive braked, and her feet slid forward, causing her to strike her right knee on the seat in front of her (the third incident).
Ultimately, on 1 June 2020, the respondent underwent a total right knee replacement.[3] She claimed the cost of the surgery, asserting that it was reasonably necessary as a result of the injury sustained in the third incident.
[3] Respondent’s statement 31 July 2020, ARD, p 5.
The dispute before the Arbitrator essentially centred around the acceptance and rejection of the medicolegal opinions, principally of Drs Broe (the treating surgeon) and Wallace, qualified by the insurer, (whose evidence is considered in detail below). Dr Broe supported the respondent’s position that the surgery was reasonably necessary. After having initially agreed, Dr Wallace ultimately changed his opinion and performed a ‘backflip’ in his view. Dr Wallace concluded that there was no right knee injury before 6 December 2019, so surgery was not reasonably necessary as a result of the 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.

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Details

Case: [2021] NSWPICPD 17
Decision Date: 8 June 2021

CaseChat Overview and Summary

Sydney Catholic Schools Limited contested a decision by a Workers’ Compensation Authority of NSW member concerning a claim made by one of their employees, Bridgefoot. The matter was heard by the NSW Civil and Administrative Tribunal (NCAT), which has jurisdiction under the Administrative Decisions Tribunal Act 1997. The central issue before the tribunal was whether the member's reasons for the decision were adequate and whether there was any procedural unfairness. Specifically, the tribunal had to determine if the member's ex tempore decisions and the addendum added to the oral reasons at the end of their delivery were sufficient to meet the legal standards.

In its reasoning, the tribunal held that the member’s reasons did not adequately address the issues in the decision, nor did they provide sufficient detail to demonstrate a logical connection between the findings of fact and the conclusion reached. The tribunal found that the reasons did not sufficiently explain how the evidence led to the decision, nor did they outline the reasoning process. The tribunal further concluded that the ex tempore decisions and the addendum were not properly integrated into the decision-making process and thus did not remedy the deficiencies in the initial reasons. The tribunal found that the decision was procedurally unfair because it did not provide adequate reasons for the decision.

As a result, the tribunal revoked the Certificate of Determination dated 12 November 2020 and remitted the matter to another member to be dealt with in accordance with the tribunal's reasons. This ensures that the decision will be properly reasoned and that the principles of natural justice and procedural fairness are upheld.

Orders

Orders of the court

1. The Certificate of Determination dated 12 November 2020 is revoked.

2. The matter is remitted to another member to be dealt with in accordance with these reasons.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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