Workers Compensation Nominal Insurer (icare) v Kamau - [2024] NSWPICPD 51

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Workers Compensation Nominal Insurer (icare) v Kamau [2024] NSWPICPD 51
APPELLANT:	Workers Compensation Nominal Insurer (icare)
FIRST RESPONDENT:	Steven Kamau
SECOND RESPONDENT:	Chamight Pty Ltd
FILE NUMBER:	A1-W1105/23
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	20 August 2024
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 14 July 2023 is revoked. 2. The matter is remitted to a different member for re-determination.
CATCHWORDS:	WORKERS COMPENSATION – Principles applying to expert evidence; rule 73 of Personal Injury Commission Rules 2021; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 considered and applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms N Compton, counsel
Turks Legal
First respondent:
Mr L Morgan, counsel
Gerard Malouf & Partners
Second respondent:
No appearance
DECISION UNDER APPEAL:	Kamau v Workers Compensation Nominal Insurer (iCare) & Ors [2023] NSWPIC 348
MEMBER:	Ms K Garner
DATE OF MEMBER’S DECISION:	14 July 2023

INTRODUCTION AND BACKGROUND

Steven Kamau, the first respondent, was employed by Chamight Pty Ltd, the second respondent, as a labourer. The second respondent was uninsured and played no role in the proceedings below, rather the first respondent’s claim was disputed by the Workers Compensation Nominal Insurer (icare), the appellant.
On 5 September 2019, the first respondent in the course of his employment with the second respondent attended the Rouse Hill Shopping Centre. The work to be undertaken involved the first respondent and his colleagues erecting a model or display of an oversize shopping bag. During the course of erecting this model bag, a board fell striking the first respondent in the head causing him injury. The first respondent ceased work and the next day obtained medical treatment. There is no dispute about the fact that the first respondent was struck by a board and suffered injury on 5 September 2019.
The first respondent subsequently made a claim for permanent impairment compensation in relation to the injuries suffered in the subject accident. This claim was disputed by the appellant in a s 78 notice dated 11 January 2022.[1]
[1] Application to Resolve a Dispute (ARD), p 13.
The matter was listed before Member Garner of the Personal Injury Commission (the Commission), being heard on 5 June 2023, with the parties subsequently filing written submissions.
The Member was called upon to decide the following issues in relation to the dispute. Firstly, the Member had to decide whether the first respondent suffered a traumatic brain injury and/or a high cervical cord lesion in the subject accident. Secondly, depending on the answer to the first question, the extent and quantification of the first respondent’s entitlement to permanent impairment compensation.
At the hearing the Member was also called upon to decide an argument about the admission of two statements into evidence, as objections had been raised by both parties to lay evidence the other had sought to rely upon.
In a written decision dated 14 July 2023, 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.

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Details

Case: [2024] NSWPICPD 51
Decision Date: 20 August 2024

CaseChat Overview and Summary

The Workers Compensation Nominal Insurer (icare) has appealed against a decision of the Personal Injury Commission concerning a claim made by Kamau, the respondent. The central dispute pertains to the exclusion of certain statements from the proceedings and the extent to which these statements should have been considered in the adjudication of the claim. The appeal was heard and determined by the New South Wales Civil and Administrative Tribunal.

The primary legal issue before the court was whether the Personal Injury Commission erred in excluding statements from Kamau and Mr Moran, which addressed the specifics of the incident in question, including the object that struck Kamau and the circumstances surrounding it. The court had to determine if these exclusions were justified and whether the Commission's decision was in accordance with the principles governing the admissibility and weight of evidence in workers' compensation claims. Additionally, the court examined whether the Commission's approach to the evidence complied with regulation 38 of the Workers Compensation Regulation 2016 (NSW), particularly concerning the information that must accompany a notice of an insurer's decision.

The court considered the principles outlined in South Western Sydney Area Health Service v Edmonds and concluded that the Commission had not adequately justified the exclusion of the statements in question. The court held that the Commission should have admitted all evidence and then assigned the appropriate weight to each piece of evidence, rather than excluding potentially relevant statements outright. The court found that the Commission's decision did not adequately address the necessity of the excluded statements for the proper and effective determination of the dispute, as required by regulation 38. Consequently, the appeal was upheld.

The Tribunal ordered that the decision of the Personal Injury Commission be set aside and that the matter be remitted to the Commission for reconsideration in light of the Tribunal's findings. The Commission was directed to consider all relevant evidence, including the statements from Kamau and Mr Moran, and to reassess the weight to be given to each piece of evidence in accordance with the principles of admissibility and relevance.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Regulation 38 of the Workers Compensation Regulation 2016 (NSW) provides:“38 Notice of insurer decisions(1) A notice under section 78 of the 1998 Act of an insurer’s decision to dispute liability in respect of a claim or any aspect of a claim (except in connection with a work injury damages matter), or to discontinue or reduce the amount of weekly payments of compensation, is to contain the following information—(a)a statement identifying all the reports and documents submitted by the worker in making the claim for compensation, and by the employer in connection with the claim,(b)a statement identifying all the reports of the type to which clause 41 applies that are relevant to the decision, whether or not the reports support the reasons for the decision, (c)a statement advising that a copy of a report required to be provided by the insurer under clause 41(3) (except as provided by clause 41(5) or (6)) accompanies the notice, (d)details of the procedure for requesting a review of the decision,(e)a statement to the effect that the worker can seek advice or assistance from the worker’s trade union organisation, from an Australian legal practitioner, from the Independent Review Officer or from any other relevant service established by the Authority,(f)the contact details for the Independent Review Officer,(g)the street address and the email address of the President,(h)a summary, in the approved form, of the effect of the decision, the worker’s rights of review, the procedure for requesting a review and the legal and other services that may be available to the worker to provide advice or assistance in relation to the dispute.” The appellant asserts that there was a clear factual dispute about the “shape, size and weight of the object which struck the first respondent, as well as the distance from which it fell.”[122] At the hearing, the Member had excluded statements from the first respondent and Mr Moran, in circumstances where both statements dealt with these precise issues in dispute. The appellant notes that Mr Moran’s statement was before Dr Granot and was referred to in his report which was before the Member.[122] Appellant’s submissions dated 21 August 2023, [5.1]. The first respondent asserts that the appeal on this point effectively reverses the objection taken by the appellant at first instance to the statement of the first respondent. The first respondent maintains its objection to Mr Moran’s statement based on non-compliance with regulation 38 of the Workers Compensation Regulation 2016.[123] The first respondent says that other than a broad statement about the material being necessary for the proper and effective determination of the dispute, no error in the Member’s decision has been identified.[123] Respondent’s submissions dated 24 September 2023, [3.1.7]. In reply the appellant says:“With the benefit of hindsight, the Member should have admitted all evidence and then given each piece the appropriate weight.”[124][124] Appellant’s submissions dated 17 October 2023, [1.1.1].

Ratio Decidendi

Legal Principle Established

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