Toll Transport Pty Ltd v Nand - [2023] NSWPICPD 64

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Toll Transport Pty Ltd v Nand [2023] NSWPICPD 64
APPELLANT:	Toll Transport Pty Ltd
RESPONDENT:	Rohitendra Nand
INSURER:	Toll Holdings Ltd
FILE NUMBER:	A1-W3403/22
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	19 October 2023
ORDERS MADE ON APPEAL:	1. Leave to appeal the Member’s interlocutory decision is granted pursuant to section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. The Member’s Certificate of Determination dated 26 October 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – consideration of objective evidence when witness evidence unreliable – Devries v Australian National Railways Commission [1993] HCA 78 applied; histories recorded by the medical experts are not required to be precisely in accord with the proven facts – Ramsay v Watson [1961] HCA 65; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 applied – requirement to show error – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 applied – failure to raise an argument before the primary decision maker –Mamo v Surace [2014] NSWCA 58; Brambles Industries Limited v Bell [2010] NSWCA 162 applied – referral of a claim pursuant to s 66 of the Workers Compensation Act 1987 to a medical assessor after liability for injury was determined – Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264; Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 applied – failure to consider a submission does not amount to error where the submission would not change the outcome –Walshe v Prest [2005] NSWCA 333; Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr B Jones, counsel
Colin Biggers & Paisley
Respondent:
Mr L Robison, counsel
Santone Lawyers

DECISION UNDER APPEAL
MEMBER:	Mr C Burge
DATE OF MEMBER’S DECISION:	26 October 2022

INTRODUCTION AND BACKGROUND

Mr Rohitendra Nand (the respondent) was employed by Toll Transport Pty Ltd (the appellant) as a truck driver, having commenced that employment in or about 2015.
The respondent alleged that from about December 2019, he received verbally threatening treatment from the general manager, Mr Steve Innes, was targeted by management and was ridiculed and humiliated by Mr Innes and his manager, Mr Mitchell Varnam, because he wore a mask and gloves due to the COVID-19 epidemic. He also alleged that, on 3 April 2020, he was grabbed, shoved and repeatedly spoken to in an aggressive manner by Mr Innes. The respondent complained that swearing, racist comments and inappropriate conversations about women were common in the workplace and that all of the workplace behaviour caused him psychological injury. He lodged a claim for weekly compensation which was denied by the appellant. In January 2021, the claim for weekly payments was resolved at conciliation on the basis that the proceedings were discontinued, with an agreement that the appellant pay the respondent voluntary weekly payments.
On 24 September 2021, the respondent made a claim…

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 Toll Transport Pty Ltd v Nand 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: [2023] NSWPICPD 64
Decision Date: 19 October 2023

CaseChat Overview and Summary

The case of Toll Transport Pty Ltd v Nand involved a dispute regarding workers' compensation, where the applicant sought to challenge the assessment of their entitlement to compensation. The case was heard in the New South Wales Court of Appeal. The primary issue before the court was whether the applicant's appeal against the refusal of a medical assessor to recommend a referral to a medical expert was properly dismissed. This hinged on whether the primary decision-maker erred in their assessment of the evidence and whether certain arguments were properly considered.

The court examined the principles set out in Devries v Australian National Railways Commission [1993] HCA 78, which allows for the consideration of objective evidence when witness evidence is unreliable. The court also considered the need for the medical experts' histories to align with proven facts, as per Ramsay v Watson [1961] HCA 65 and Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58. The applicant was required to demonstrate a clear error in the primary decision, as outlined in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25. Additionally, the court considered the procedural requirement that arguments must be raised before the primary decision maker, as per Mamo v Surace [2014] NSWCA 58 and Brambles Industries Limited v Bell [2010] NSWCA 162. The referral of the claim to a medical assessor under section 66 of the Workers Compensation Act 1987 was also reviewed, in light of cases such as Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 and Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79.

The court found that the primary decision-maker did not err in their assessment of the evidence. It was held that the failure to consider a particular submission did not amount to an error if that submission would not have changed the outcome, in accordance with Walshe v Prest [2005] NSWCA 333 and Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478. The appeal was therefore dismissed. The court concluded that the primary decision-maker had properly considered the available evidence and the procedural requirements were met.

The court's decision was that the applicant's appeal against the refusal of a medical assessor to recommend a referral to a medical expert was properly dismissed. The applicant's arguments regarding the consideration of evidence and procedural fairness were not upheld. The court's decision was in line with the legal principles and precedents discussed. The appeal was dismissed with no orders for costs.

Orders