Toll Transport Pty Ltd v Smith

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:

Toll Transport Pty Ltd v Smith [2021] NSWWCCPD 7

APPELLANT:

Toll Transport Pty Ltd

RESPONDENT:

David Smith

INSURER:

Toll Holdings Limited

FILE NUMBER:

A1-3886/20

ARBITRATOR:

Mr P Sweeney

DATE OF ARBITRATOR’S DECISION:

23 September 2020

DATE OF APPEAL DECISION:

5 February 2021

SUBJECT MATTER OF DECISION:

Whether the incapacity for work resulted from the pleaded injury – Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 considered; alleged error of fact – Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; Shellharbour City Council v Rigby [2006] NSWCA 308, Fox v Percy [2003] HCA 22; 214 CLR 118 applied

PRESIDENTIAL MEMBER:

Deputy President Elizabeth Wood

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr J Pinder, solicitor

Minter Ellison

Respondent:

Ms E Grotte, counsel

Gerard Malouf & Partners

ORDERS MADE ON APPEAL:

1.     The name of the appellant (the respondent below), wherever it appears in these proceedings and in the proceedings below, is amended to read “Toll Transport Pty Ltd.”

2.     The Certificate of Determination dated 23 September 2020 is confirmed.

INTRODUCTION AND BACKGROUND

1. Mr David Smith (the respondent) was employed by Toll Transport Pty Ltd (the appellant) as a driver. The respondent suffered a number of injuries both prior to and in the course of his employment with the respondent. Relevantly, the respondent was injured in a motor vehicle accident on 5 April 2019, in which he claimed injury to his neck, left shoulder, left thumb and low back. The appellant accepted liability for the injuries.

2. The respondent had no capacity for work for a period of time and was then certified as fit for work on suitable duties. At times, suitable duties were not made available. The respondent was then certified fit for pre-injury duties on a work trial from 17 July 2019. The respondent commenced those duties and, on 19 July 2019, suffered significant neck and left shoulder pain while attempting to tighten a ratchet on the chain around a load. The respondent was again certified as having no capacity for work.

3. The respondent returned to work on 15 August 2019 after having requested a return to truck driving duties and providing a certificate indicating that he was fit for pre-injury duties. The appellant provided the respondent with administrative/office duties as a precautionary measure. On 2 September 2019 (which was a Monday), the respondent reported that he was unable to work because of significant neck and shoulder pain which was associated with migraine headaches. The respondent did not cite a particular precipitating event, but it appears that the onset occurred when the respondent was reaching out to his grandchild.

4. The respondent was again put off work and his employment was terminated in October 2019. The appellant disputed liability from 9 November 2019, asserting that, by the time of the incident on 19 July 2019, the respondent had recovered from the effects…