Sydney Community College Inc v Mudie - [2014] NSWWCCPD 62

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Sydney Community College Inc v Mudie [2014] NSWWCCPD 62
APPELLANT:	Sydney Community College Inc
RESPONDENT:	Natalie Jannine Mudie
INSURER:	GIO General Ltd
FILE NUMBER:	A1-3480/13
ARBITRATOR:	Ms D Moore
DATE OF ARBITRATOR’S DECISION:	27 June 2014
DATE OF APPEAL DECISION:	2 October 2014
SUBJECT MATTER OF DECISION:	Challenge to factual finding of injury; alleged failure to consider general practitioner’s clinical notes; relevance of absence of contemporaneous evidence of complaint of injury; issues not argued at the arbitration; application of the principles in University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481 and Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111; failure to comply with Practice Direction No 6
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	TurksLegal
Respondent:	Firths – The Compensation Lawyers
ORDERS MADE ON APPEAL:	1. Leave to appeal is granted. 2. The Senior Arbitrator’s determination of 27 June 2014 is confirmed. 3. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

INTRODUCTION

In this matter, the worker injured her knees and right shoulder when she fell in the course of her employment in May 2009. The issue on appeal is whether the Senior Arbitrator erred in finding that, in addition to those injuries, the worker also injured her left shoulder. For the reasons explained below, the Senior Arbitrator did not err and her decision is confirmed.

BACKGROUND

The respondent worker, Natalie Mudie, worked for the appellant employer, Sydney Community College Inc (the College), as a part-time singing tutor. In the course of her employment on 5 May 2009, she tripped while stepping over a keyboard cord and fell, sustaining injury.
Ms Mudie alleged that she injured her arms, shoulders, legs, knees and back. With regard to her left shoulder, which is the only part of the body with which the appeal is concerned, Ms Mudie’s case was that she injured that shoulder because she landed on her knees and then on her “outstretched” hands. Her medical evidence was that the fall caused a capsular shrinkage in her left shoulder (which was a pre-existing condition) to be stretched.
Ms Mudie claimed lump sum compensation in respect of a 20 per cent whole person impairment as a result of her injuries together with compensation for pain and suffering, plus $7,501 for hospital and medical expenses.
The College did not dispute that the fall occurred at work or that Ms Mudie injured her knees and her right shoulder. It disputed that she injured her back and left shoulder. Essentially, counsel for the College, Mr Hammond, argued that Ms Mudie had not suffered any injury to her left shoulder because her initial complaint (to her treating general practitioner, Dr Matthews) was only of the right shoulder and she only fell on that shoulder.
In an extempore decision delivered on 25 June 2014, 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.

Keep reading for free

Create a free CaseChat account to read Sydney Community College Inc v Mudie 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: [2014] NSWWCCPD 62
Decision Date: 2 October 2014

CaseChat Overview and Summary

In the case of Sydney Community College Inc v Mudie, the appellant, Sydney Community College Inc, sought to appeal against a decision that upheld a worker’s compensation claim brought by the respondent, Mr Mudie. The dispute centred on whether Mr Mudie had suffered an injury as a result of a workplace incident and if the college was liable for his injuries. The case was heard in the NSW Civil and Administrative Tribunal (NCAT).

The central legal issues in the appeal were whether the Senior Arbitrator had erred in making factual findings concerning the injury, specifically whether the Arbitrator had failed to consider the clinical notes of Mr Mudie’s general practitioner, and whether the absence of contemporaneous evidence of Mr Mudie complaining of the injury was relevant to the finding of the injury. Additionally, the court had to consider whether certain issues were properly before it since they were not argued at the arbitration. The appeal also raised questions about the application of principles from University of Wollongong v Metwally and Brambles Industries Ltd v Bell in the context of the NCAT’s jurisdiction and the relevance of non-compliance with Practice Direction No 6.

The court found that the Senior Arbitrator had not erred in his consideration of the general practitioner’s clinical notes, as these were not determinative of the injury in question. The court also held that the absence of contemporaneous evidence of a complaint of injury did not undermine the factual findings made by the Arbitrator. Furthermore, the court determined that the issues not argued at the arbitration were properly before it as they related to jurisdictional errors. In applying the principles from the Metwally and Bell cases, the court found that the Arbitrator had not failed to observe a relevant constraint on his or her jurisdictional power. The court further noted that the appellant’s failure to comply with Practice Direction No 6 did not prejudice the respondent.

The court granted leave to appeal, confirmed the Senior Arbitrator’s determination, and ordered the appellant to pay the respondent’s costs of the appeal.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The Senior Arbitrator’s determination of 27 June 2014 is confirmed.

3. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

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.