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Freedman Brothers Limited v Scovell (NSWPICPD 2025)

Key Takeaways

• Surveillance evidence can be admitted before an AMS where exceptional and significant restrictions which apply under rule 109 of the Personal Injury Commission Rules 2021 (Personal Injury Rules) are properly demonstrated.
• The assessment of inconsistency between clinical findings and observed behaviors is a matter for expert evidence.

Brief Facts

The worker claimed compensation for injuries sustained in the course of his employment with Freedman Brothers Limited (the employer). Liability for the injury was accepted, and on 21 June 2024, the worker made a lump sum claim pursuant to s66 of the Workers Compensation Act 1987 for 32% whole person impairment (WPI).

The employer arranged for the worker to be assessed by Dr Rimmer, who initially assessed the worker’s WPI to be 20%, but this was reduced to 14%, following review of surveillance footage and reports conducted on 27, 28 and 29 November 2024 which indicated inconsistencies in Dr Rimmer’s assessment of the worker and what was captured.

The worker commenced proceedings in the PIC seeking a referral to a Medical Assessor (MA) for the assessment of his WPI.

The employer sought to have admitted the reports of Dr Rimmer and the surveillance recordings as part of the referral to be provided to the MA. The worker objected to the admission of the surveillance recordings.

This dispute was referred to Principal Member Harris, who determined that he was not satisfied that there were the required ’exceptional circumstances’ within the meaning of rule 109 of the Personal Injury Rules for the surveillance recording to be referred to the MA.

Principal Member Harris referred to rule 109 of the Personal Injury Rules and did not accept that the comparison of the surveillance recording with Dr Rimmer’s examination constituted ’special’ circumstances because the history disclosed to Dr Rimmer was not inconsistent with what was displayed in the surveillance recording. He said that he was not satisfied that the employer had established the necessary onus of proving that ’special’ circumstances existed.

The appeal dealt with the decision of Principal Member Harris’s determination of the surveillance recordings and supplementary report of Dr Rimmer not to be included in the referral to the MA.

Decision

On appeal, Deputy President Wood confirmed that the findings were inconsistent compared to the examination, which was a medical question and a matter for expert evidence.

In upholding the appeal concerning the admittance of the surveillance footage into evidence, Deputy President Wood accepted the employer’s submissions that an explanation as to why there were inconsistencies was not a matter for determination by the

Principal Member, but a matter for an expert to consider, in line with the decision of Principal Member Capel in Ghandi v Coles Supermarkets Australia Pty Ltd (NSWPIC 2022).

The appeal as a whole was upheld, and the matter was referred to a different MA for a further assessment, with the inclusion of the surveillance recordings undertaken and the supplementary report of Dr Rimmer.

Implications

The decision of Deputy President Wood confirms that when relying on surveillance, and especially surveillance recordings, consideration will need to be given to all relevant rules, but specifically, Rule 109 of the Personal Injury Rules, which is not an insignificant hurdle. In the present decision, it was allowable for surveillance to be put before an AMS in circumstances where findings of inconsistency when compared to an examination were a matter for expert evidence.