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Complying agreement

Warwar v Speedy Courier (Aust) PL [QBE] [2010] NSWWCCPD 92. Roche DP. 25.08.10.

The appellant worker injured his back in February 2007, with aggravation 18 months later in a motor accident while attending an osteopath.

Dr Peter Giblin opined 5% WPI for the back from the first incident, and 6% WPI for the neck and back from the second.

The worker commenced. The fund agent offered $15,882 for 11% WPI s 66, accepted by the worker, and a complying agreement executed.

Section 67 entitlement was disputed. Arbitrator O’Moore found for the fund.

The worker appealed. contending construction of the s 66A agreement, or by reference to WIM s 322, or the second incident, being received on a journey related to treatment for the first injury, resulted from the first incident.

To the s 66A agreement, Mr Roche said [42]: “As there is no suggestion that any of the exceptions in s 66A(3) apply in the present case, the complying agreement is a written agreement that is to be interpreted according to the usual principles of contract law. It is an exception to s 234 of the 1998 Act, which prevents parties from contracting out of the terms of the 1987 Act and the 1998 Act.”

The Deputy President quoted Toll PL v Alphapharm PL & Ors (2004) 219 CLR 165 at [40]: objective circumstances dictate contract construction.

Then [44], “The fundamental principle is what reasonable parties would take a clause to mean at the time of making the contract, taking into account the text and structure of the written agreement and its background: Synergy Protection Agency PL v North Sydney Leagues Club Ltd [2009] NSWCA 140. It is not necessary to identify ambiguity as a pre-condition before contextual and background material can be considered in interpreting the contract: Masterton Homes PL v Palm Assets PL [2009] NSWCA 234.

“The construction of a written contract takes into account the text of the document and the context of the surrounding circumstances known to the parties: Franklins PL v Metcash PL [2009] NSWCA 407. The surrounding circumstances attributed to a reasonable person in the situation of the contracting parties is to be understood by reference to what the parties knew in the context of their mutual dealings: QBE Insurance Aust v Vasic [2010] NSWCA 166.”

QBE had expressly not agreed to the s 67 entitlement.

The worker relied on Dept Juvenile Justice v Edmed [2008] NSWWCCPD 6, applied in later presidential appeals, to contend the second incident inflicted similar pathology.

Roche DP noted claim and medical evidence distinguishing the incidents’ resultant pathologies, to find that the additional loss to the back injury from the second incident was 1%, and that incident injured other parts uninjured in the initial incident, therefore was not the same injury, under s 322.

On causation of the second incident, the deputy president referred to authorities: Kooragang Cement PL v Bates (1994) 35 NSWLR 452: common sense test; Zinc Corp’n Ltd & Anor v Scarce (1995) 12 NSWCCR 566 at 570: employment nexus; Badawi v Nexon Asia Pacific &c [2009] NSWCA 324; and Sarkis v Summitt Broadway PL [2006] NSWCA 358, where a treatment journey falling injury was held unforeseeable for fund recovery.

The second incident resulted from a stranger’s tort, not the first injury.

Award upheld, no costs.

A: Michael E Bradstreet. R: Moray & Agnew.


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