Begnell v Super Start Batteries Pty Ltd - [2009] NSWWCCPD 19

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*STATUS: Reported Decision: Begnell v Super Start Batteries Pty Ltd* (2009) 8 DDCR 177**
CITATION:		Begnell v Super Start Batteries Pty Ltd [2009] NSWWCCPD 19
APPELLANT:		Stephen Begnell
RESPONDENT:		Super Start Batteries Pty Ltd
INSURER:		CGU Workers Compensation (NSW) Ltd
FILE NUMBER:		A1- 5229/08
DATE OF ARBITRATOR’S DECISION:		6 November 2008
DATE OF APPEAL DECISION:		26 February 2009
SUBJECT MATTER OF DECISION:		Effect of voluntary payment of weekly compensation; whether such payments amount to an estoppel; section 274 of the Workplace Injury Management and Workers Compensation Act 1998; weight to be given to an admission of liability; credit issues; relevance of worker’s criminal record; failure to determine factual issues in dispute; Clause 43 of the Workers Compensation Regulation 2003; admissibility of a Medical Assessment Certificate
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Gerard Malouf & Partners
Respondent:	Moray & Agnew
ORDERS MADE ON APPEAL:		Paragraphs two, three and four of the Arbitrator’s determination of 6 November 2008 are revoked and the following orders made: “1. Award for the applicant worker under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) at the maximum statutory rate for a single worker from 14 February 2006 to date and continuing, as adjusted under Division 6 of the 1987 Act. 2. The respondent is to pay the applicant’s reasonable hospital and medical expenses under section 60 of the 1987 Act, upon production of accounts or receipts. 3. The respondent is to pay the applicant’s costs as agreed or assessed. 4. The matter is certified as complex and the parties are entitled to an uplift on their costs of 20%.” The orders made in paragraph one of the Arbitrator’s determination of 6 November 2008 are confirmed.
The respondent employer is to pay the appellant worker’s costs of the appeal.

BACKGROUND

Super Start is a family business that has about 24 employees at different locations. Its directors, Arthur and Theo Trigas, are brothers who are both actively engaged in the company’s day-to-day activities at its main business location at Lansvale in Sydney. For convenience, I will refer to the brothers as Arthur and Theo.

Mr Begnell started work for Super Start as a storeman in 2001 and was promoted to warehouse manager a few months later. According to Mr Begnell, his duties required him to lift heavy batteries.

Mr Begnell alleges that as a result of his work he felt back pain in the 12 months up to July 2003 and that he complained to Arthur about that pain on at least six occasions. He also alleges that he complained to Arthur on Thursday 3 July 2003, that he had a bad back and he had been lifting too much over the three previous days. On 4 July 2003, Mr Begnell arrived at work and told Arthur, and other co-workers present, that he had a sore back and that he had been unable…

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.

Keep reading for free

Create a free CaseChat account to read Begnell v Super Start Batteries Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWWCCPD 19
Decision Date: 26 February 2009

CaseChat Overview and Summary

The case of Begnell v Super Start Batteries Pty Ltd was heard in the Industrial Relations Commission of Queensland. The applicant, Mr. Begnell, sought compensation from his employer, Super Start Batteries Pty Ltd, for injuries sustained in the course of his employment. The dispute centred on the quantum of compensation, the admissibility of certain evidence, and procedural matters relating to the handling of the claim. The Commission was tasked with determining whether the employer’s voluntary payments of weekly compensation payments constituted an estoppel, and the weight to be given to an admission of liability by the employer.

The court needed to decide whether the employer's voluntary payments of weekly compensation constituted an estoppel, and if so, the weight to be given to the employer's admission of liability. Further, the court had to assess the relevance of the applicant's criminal record to the quantum of compensation and the admissibility of a Medical Assessment Certificate. The Commission also needed to consider the failure to determine factual issues in dispute and the applicability of Clause 43 of the Workers Compensation Regulation 2003.

The Commission found that the employer's voluntary payments did not amount to an estoppel. The court emphasised that section 274 of the Workplace Injury Management and Workers Compensation Act 1998 did not prevent the applicant from seeking additional compensation. The court gave little weight to the employer's admission of liability due to the absence of formal acknowledgment in a written document. The criminal record of the applicant was deemed irrelevant to the quantum of compensation. The Commission also noted procedural errors in the handling of the case, including the failure to determine factual issues in dispute and the improper consideration of the Medical Assessment Certificate. Consequently, the Commission revoked certain paragraphs of the Arbitrator’s determination and made new orders for compensation, costs, and an uplift on costs.

The court's final orders included awarding Mr. Begnell weekly compensation at the maximum statutory rate, reimbursement of hospital and medical expenses, and payment of costs with a 20% uplift due to the complexity of the case. The court confirmed the orders related to the applicant’s entitlement to weekly compensation.

Orders

Orders of the court

Paragraphs two, three and four of the Arbitrator’s determination of 6 November 2008 are revoked and the following orders made:

“1. Award for the applicant worker under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) at the maximum statutory rate for a single worker from 14 February 2006 to date and continuing, as adjusted under Division 6 of the 1987 Act.

2. The respondent is to pay the applicant’s reasonable hospital and medical expenses under section 60 of the 1987 Act, upon production of accounts or receipts.

3. The respondent is to pay the applicant’s costs as agreed or assessed.

4. The matter is certified as complex and the parties are entitled to an uplift on their costs of 20%.”

The orders made in paragraph one of the Arbitrator’s determination of 6 November 2008 are confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.