Adhering to the terms of a complying agreement is the same as in any contractual relationship. In the context workers compensation in NSW, decisions such as Hall v Mars Australia Pty Ltd [2020] NSWWCC 385 provide interesting insights into the importance of understanding exactly what you are agreeing to and what you are signing away.
Background
In Hall v Mars Australia Pty Ltd, Mr Hall executed and entered into a complying agreement with the respondent, in June 2015. This complying agreement confirmed Mr Hall’s agreement to accept compensation in respect of a 20% whole person impairment (‘WPI’) for injuries to his lumbar spine and scarring.
In 2018, Mr Hall’s solicitors lodged a work injury damages (‘WID’) claim in accordance with his instructions. Davies J ultimately dismissed the proceedings as the pre-filing statement was materially different from the statement of claim. The difference is the alleged cause of Mr Hall’s injuries.
In the pre-filing statement, Mr Hall said that he was:
“required to lift the plank of wood and twist his body in the direction of where the planks were to be transported, thereby causing him to suffer severe loss and damage.”
In the statement of claim, Mr Hall said:
“On 6 November 2009, the Plaintiff was participating in a (sic) activity designed and maintained by the Second Defendant, at the direction of the Second Defendant, when he was required to manoeuvre and/or lift and/or twist a plank of wood to transport himself from tree to tree, when he lost his footing, causing him to suffer severe, loss and damage.”
In April 2019, Mr Hall’s solicitors reported on the respondent stating that Mr Hall had suffered a 27% whole person impairment (WPI) as a result of his lumbar spine injury and consequential gastrointestinal injuries and sought a concession from the respondent that Mr Hall had suffered a permanent injury resulting in impairment of more than 20% WPI. The report recorded that the cause of injury was a fall, which differed from the cause of injury that formed the basis of the 20% WPI complying agreement.
Issue before the Commission
Counsel for the respondent confirmed that the injury to Mr Hall’s lumbar spine was not disputed but argued that the complying agreement entered into in 2015 created an “estoppel by agreement/convention”, which prevented Mr Hall from abandoning the recitals of facts upon which the agreement was based. In particular, the cause of and mechanism of injury. The respondent argued that the complying agreement was to be read in accordance with the general principles of contract law.
Furthermore, the respondent sought a specific determination that the mechanism of injury was not “a fall”.
Outcome
Arbitrator McDonald noted that the respondent sought a determination on the precise mechanism of injury prior to remitting the matter for a further assessment of WPI. Specifically, the respondent sought a determination that the mechanism of injury was not a fall. Arbitrator McDonald commented that such a finding may have been in the respondent’s interests if a further claim for damages was contemplated. Ultimately, Arbitrator McDonald determined that that particular negative finding was not relevant to the matter before the commission at the time.
Arbitrator McDonald referred to CSR Limited v Gonzales [2010] NSWWCCPD 118 (‘Gonzales ’) and stated that the form and construction of the complying agreement in Gonzales contained a detailed statement of the agreed facts, including the express provision that the worker had been paid the extent of his entitlement to lump sum. It was this particular feature of that agreement which gave rise to an “estoppel by agreement”.
This was not the case in the agreement between Mr Hall and the respondent/insurer. Arbitrator McDonald determined in favour of Mr Hall, and remitted the matter for a further assessment of WPI.
DISCLAIMER
This article reflects the current law at the time of publication. It is intended for informational purposes only and does not constitute legal advice. The actual decisions in each case are summarised for general understanding. For specific legal guidance in relation to your situation, please consult with a qualified legal professional.
