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Evidence, admissions and agreed facts

Shea v RTA [2011] NSWWCC 95.  Mr P. Sweeney, Arb.

[20] While the law generally enforces contracts for which there is consideration, in the context of workers compensation, contractual  relations must be considered in the light of s 234 of the 1998 Act which states: “This Act and the 1987 Act apply despite any contract to the contrary.”

[21] As Mr Wynard submitted, the admissions made by the applicant are merely “evidentiary of the  facts”, to use the language of  Burke J in Almario v Carrington Constructions Pty Ltd (1996) NSWCCR 739, and must be given their  appropriate weight in  the matrix of the evidence. In considering a document in similar form to that in this case, his Honour [Burke J] stated:

"The representations of the worker in the documents exhibited before Geraghty J are representations voluntarily made. They speak as at the time at which they were made.

"They are evidentiary of the facts stated therein but not conclusive that such remain the relevant facts. Such representations are to be accorded proper weight when considering the issues now posed.

"Prima facie those representations are that, at the particular time, the worker was not incapacitated as the result of injury and had not been so for some antecedent period.

...

[85] In my opinion every such admission must be considered according to its terms and context. The admissions in this  case are inconsistent with the award of weekly compensation in favour of the applicant incorporated in the Certificate of Determination dated 12 September 2006.

By that document the respondent is to pay the applicant weekly compensation in respect of the period 1 January 2006 to 18 August 2006.

That is clearly inconsistent with the first two admissions referred to above as they contemplated that the applicant had recovered from the effects of injury and was able to perform his pre-injury work.

The fact that the respondent acted on the assumption that the admissions did not preclude an award of weekly payments in 2006 undermines its position that they operate to prevent such an entitlement after 18 August 2006.

[86] The other matter that arises from the admissions is that they are couched in the language of the jurisdiction. The applicant has “recovered from effects”; has no “economic incapacity”;or has no “permanent impairment”.

While he may be able to make admissions in respect of these matters the applicant’s evidence is only one factor to be considered in determining these issues.

The medical evidence also has to be considered and may be of primary, or, in some circumstances, overwhelming significance.

Ultimately, in my opinion these admissions are of little weight.

Please refer also:

 

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