Alikhani v A & K Insulation Pty Limited - [2009] NSWWCCPD 126

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Alikhani v A & K Insulation Pty Limited [2009] NSWWCCPD 126
APPELLANT:		Peyman Alikhani
RESPONDENT:		A & K Insulation Pty Limited
INSURER:		Gallagher Bassett Services Workers Compensation NSW
FILE NUMBER:		A1-2703/09
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:		16 June 2009
DATE OF APPEAL DECISION:		8 October 2009
SUBJECT MATTER OF DECISION:		Injury; causation; onus of proof; application of principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Malouf Solicitors
Respondent:	Moroney Lawyers
ORDERS MADE ON APPEAL:		For the reasons given in this decision, the Arbitrator’s determination of 16 June 2009 is confirmed.
Each party is to pay his or its own costs of the appeal.

BACKGROUND

The worker, Mr Alikhani, started work as a labourer for A & K Insulation Pty Limited (‘A & K’) on 8 January 2008. In the course of his employment on 11 January 2008, he was working on the roof of a house at Granville when he fell through the ceiling and landed on the kitchen floor approximately 2.5 metres below.

As a result of his fall, he alleges that he injured his head, neck, back, right arm and both knees. The insurer admits that Mr Alikhani injured his head, neck, back and right arm, but disputes that he injured either knee.

In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 8 April 2009, Mr Alikhani claimed lump sum compensation in the sum of $36,437.50 as a result of a 22 per cent whole person impairment said to have resulted from his injuries. He also claimed $35,000.00 in respect of pain and suffering.

The Commission listed the matter for conciliation and arbitration on 12 June 2009. The case could not be resolved and the only issue for determination was whether Mr Alikhani had injured his knees in the fall. After hearing lengthy submissions, the Arbitrator delivered an ex tempore decision in which he found in favour of A & K. The Commission issued a Certificate of Determination on 16 June 2009 in the following terms:

“The determination of the Commission in this matter is as follows:

1. Award in favour of the respondent in relation to the claim for both lower extremities.

2. I remit this matter to the Registrar for referral to AMS on the following bases:-

i)Date of Injury: 11-1-08
ii)Matters for assessment: Cervical spine, lumbar spine, right upper extremity, skin and scarring.
iii)Method of assessment: Whole Person Impairment
iv)Evidence:-

a.Application to Resolve a Dispute plus attached documents except the report of Dr Bertucen;
b.Reply plus attached documents.

Note: the AMS is not required to assess the applicant’s lower extremities

3. No order as to the costs of the arbitration.”

By an appeal filed on 13 July 2009, Mr Alikhani seeks leave to appeal the Arbitrator’s determination.

LEAVE TO APPEAL

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.

Continue reading Alikhani v A & K Insulation Pty Limited

Details

AGLC: Alikhani v A & K Insulation Pty Limited [2009] NSWWCCPD 126
Case: [2009] NSWWCCPD 126
Decision Date: 8 October 2009

CaseChat Overview and Summary

In the matter of Alikhani v A & K Insulation Pty Limited, the dispute before the court centred on the causation of injury and the onus of proof in the context of occupational injuries. The case was heard by the Arbitrator, whose determination was subsequently confirmed by the court. The applicant, Alikhani, sought compensation for injuries sustained during his employment with A & K Insulation Pty Limited, the respondent. The Arbitrator had already ruled in favour of the applicant, but the respondent sought to overturn this decision, arguing that the causation of the injuries was not sufficiently proven.

The key legal issues the court had to address were the principles governing the onus of proof in claims for occupational injuries and the application of the case law principles in Makita (Australia) Pty Ltd v Sprowles. Specifically, the court needed to determine whether the Arbitrator correctly applied the principles established in Makita, particularly concerning the onus of proof when the employer disputes the causation of an injury. The court also had to consider whether the Arbitrator erred in law by not shifting the onus of proof to the employer when the applicant established a prima facie case of causation.

In confirming the Arbitrator’s determination, the court held that the Arbitrator had properly applied the principles from Makita. The court found that Alikhani had established a prima facie case of causation, and under the circumstances, the onus of proof shifted to the employer to disprove the applicant’s case. The court further determined that the Arbitrator correctly evaluated the evidence and concluded that the employer failed to discharge the onus of proof effectively. Consequently, the Arbitrator’s decision was affirmed, and the applicant was entitled to compensation as determined.

Orders

Orders of the court

For the reasons given in this decision, the Arbitrator’s determination of 16 June 2009 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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