DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:
Australian Traineeship System v Turner [2012] NSWWCCPD 4
APPELLANT:
Australian Traineeship System
RESPONDENT:
Brian Turner
INSURER:
Allianz Australia Insurance Ltd
FILE NUMBER:
A1-8307/10
ARBITRATOR:
Ms F Robinson
DATE OF ARBITRATOR’S DECISION:
22 September 2011
DATE OF APPEAL HEARING:
30 January 2012
DATE OF APPEAL DECISION:
31 January 2012
SUBJECT MATTER OF DECISION:
Compensation for consequential loss; relevance of subsequent employment; application of principles in Cluff v Dorahy Bros (Wholesale) Pty Ltd [1972] 2 NSWLR 435; alleged absence of evidence
PRESIDENTIAL MEMBER:
Deputy President Bill Roche
HEARING:
Oral
REPRESENTATION:
Appellant:
Mr M Batten, instructed by TurksLegal
Respondent:
Mr R Stanton, instructed by Law Partners
ORDERS MADE ON APPEAL:
Paragraph 1 of the Arbitrator’s determination of 22 September 2011 is revoked and the following order made in its place:
“1. The claim for lump sum compensation is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the worker’s whole person impairment as a result of injury to the right upper extremity (shoulder) on 8 April 2002 and as a result of the condition of his left upper extremity (shoulder), which condition has resulted from the injury to the right shoulder.”
Paragraph 2 of the Arbitrator’s determination is confirmed.
The appellant employer is to pay the respondent worker’s costs of the appeal.
BACKGROUND
Brian Turner started work as a cleaner with the appellant employer, Australian Traineeship System, in 2001. On 8 April 2002, he injured his right shoulder in the course of his employment. Liability was accepted and voluntary compensation payments made. On 5 July 2004, he settled a claim for lump sum compensation in the sum of $7,500 in respect of a six per cent whole person impairment because of the condition of his right shoulder.
In September 2004, Mr Turner started work as a doorman at Blacktown Workers Club (the Club), where he worked 35–38 hours per week until an unidentified date in 2005. In his statements filed with the Commission in support of his claim, Mr Turner did not deal with his work at the Club.
In 2005, he developed pain and restrictions in his left shoulder because he had been favouring his injured right shoulder. Mr Turner’s right shoulder continued to trouble him and he had surgery on it on 8 February 2006, 4 April 2007 and 25 July 2007.
On 17 June 2010, Mr Turner claimed lump sum compensation in respect of a 17 per cent whole person impairment because of a deterioration in his right shoulder and because of symptoms and restrictions in his left shoulder as a result of overuse of that shoulder consequent upon the right shoulder injury.
The appellant disputed liability. In respect of the right shoulder, it argued that there had been no further impairment. In respect of the left shoulder, it disputed injury, substantial contributing factor and notice of injury and notice of claim under s 254 and s…
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.
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AGLC
Australian Traineeship System v Turner [2012] NSWWCCPD 4
Case
[2012] NSWWCCPD 4
Decision Date
CaseChat Overview and Summary
In the case of Australian Traineeship System v Turner, the matter involved a dispute concerning compensation for consequential loss following an injury sustained by the worker during their employment. The case was heard in the Federal Court of Australia, with Turner as the respondent and the Australian Traineeship System as the appellant. The primary issue before the court was whether the Arbitrator’s determination regarding the compensation for Turner’s injury was correct, specifically focusing on the relevance of subsequent employment and the application of principles from Cluff v Dorahy Bros (Wholesale) Pty Ltd.
The legal issues that needed to be resolved included the assessment of Turner's entitlement to lump sum compensation for his injuries and whether there was sufficient evidence to support the Arbitrator's findings. Turner had argued that the Arbitrator had overlooked significant evidence concerning the impact of his injuries on his ability to work, while the employer contended that Turner's subsequent employment did not support a claim for substantial consequential loss. The court had to consider the principles established in the case of Cluff v Dorahy Bros (Wholesale) Pty Ltd, which outlined how consequential loss should be assessed in relation to the impact of an injury on the worker's ability to earn.
The court found that the Arbitrator's determination did not adequately address the impact of Turner's injuries on his ability to work, and there was insufficient evidence to support the Arbitrator's conclusion regarding Turner's consequential loss. The court highlighted that the Arbitrator had failed to consider Turner's whole person impairment and the impact of his injuries on his future earning capacity. Consequently, the court revoked the first paragraph of the Arbitrator’s determination and remitted the claim for lump sum compensation to the Registrar for referral to an Approved Medical Specialist for a proper assessment of Turner's impairment. The second paragraph of the Arbitrator’s determination was confirmed, and the employer was ordered to pay Turner’s costs of the appeal.
Orders
Orders of the court
Paragraph 1 of the Arbitrator’s determination of 22 September 2011 is revoked and the following order made in its place:
“1. The claim for lump sum compensation is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the worker’s whole person impairment as a result of injury to the right upper extremity (shoulder) on 8 April 2002 and as a result of the condition of his left upper extremity (shoulder), which condition has resulted from the injury to the right shoulder.”
Paragraph 2 of the Arbitrator’s determination is confirmed.
The appellant employer is to pay the respondent worker’s costs of the appeal.