BHP Billiton Ltd v Bailey - [2015] NSWWCCPD 48

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	BHP Billiton Ltd v Bailey [2015] NSWWCCPD 48
APPELLANT:	BHP Billiton Ltd
RESPONDENT:	Lyle Henry Bailey
INSURER:	Self-insured (QBE Self Insurance Services)
FILE NUMBER:	A1-1099/15
ARBITRATOR:	Mr R Bell
DATE OF ARBITRATOR’S DECISION: DATE OF APPEAL HEARING:	15 April 2015 27 July 2015
DATE OF APPEAL DECISION:	19 August 2015
SUBJECT MATTER OF DECISION:	Injury received before 1 January 2002; claim pursuant to former s 67 of the Workers Compensation Act 1987 first made in December 2014; proper construction and application of provisions of the Workers Compensation LegislationAmendment Act 2012 and of savings and transitional provisions; consideration of continued operation of cl 3 of Pt 18C of Sch 6 to the Workers Compensation Act 1987; BP Australia Ltd v Greene [2013] NSWWCCPD 60 distinguished
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr D Andersen, solicitor, HWL Ebsworth
Respondent:	Mr M Bechelli, solicitor, Whitelaw McDonald
ORDERS MADE ON APPEAL:	The order made by the Arbitrator as found in [1] of the Certification of Determination dated 15 April 2015 is revoked and the following order is made in its place: “1. Award for the respondent in respect of the claim brought pursuant to s 67 of the Workers Compensation Act 1987.”

INTRODUCTION

This appeal raises questions as to the proper construction and application of certain amendments to the Workers Compensation Act 1987 (the 1987 Act) which followed the commencement of the Workers Compensation LegislationAmendment Act 2012 (the 2012 amending Act) and of the savings and transitional provisions effected by that Act and relevant regulations.
The particular provisions presently relevant are those amendments concerning a worker’s entitlement to lump sum compensation as found in Sch 2 to the 2012 amending Act.
Those amendments provided, inter alia, that lump sum compensation (s 66 of the 1987 Act) was payable only in respect of whole person impairment which exceeded 10 per cent. The provisions of s 67 of that Act which formerly had made provision for payment, in certain circumstances, of lump sum compensation for pain and suffering, was repealed.

BACKGROUND

Mr Lyle Henry Bailey was employed by BHP Billiton Limited (the appellant) as a supervising chemist. That employment ceased on 24 June 1988. There is no dispute between the parties that Mr Bailey received injury arising out of or in the course of that employment, being boilermaker’s deafness or deafness of like origin. The deemed date of injury is 24 June 1988: s 17(1)(a)(ii) of the 1987 Act.
Mr Bailey did not make a claim in respect of that injury until 4 December 2014. Such claim had been made by his solicitors in terms that were somewhat confusing. However, it is clear that Mr Bailey asserted entitlement pursuant to ss 66 and 67 of the 1987 Act as those provisions stood prior to the passage of the Workers Compensation Legislation Amendment Act 2001 (the 2001 amending Act) which came into operation on…

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 BHP Billiton Ltd v Bailey

Details

AGLC: BHP Billiton Ltd v Bailey [2015] NSWWCCPD 48
Case: [2015] NSWWCCPD 48
Decision Date: 19 August 2015

CaseChat Overview and Summary

The case of BHP Billiton Ltd v Bailey involved a dispute over a workers' compensation claim. The respondent, Bailey, alleged injuries sustained in an incident prior to 1 January 2002. The claim was lodged in December 2014 under section 67 of the Workers Compensation Act 1987. The primary issue before the court was the proper interpretation and application of the Workers Compensation Legislation Amendment Act 2012 and its savings and transitional provisions. Specifically, the court had to determine whether clause 3 of Part 18C of Schedule 6 to the Workers Compensation Act 1987 continued to operate for claims made after the legislative amendments.

The court engaged in a detailed analysis of the relevant statutes and transitional provisions. It considered the legislative intent behind the 2012 amendments and the precedent set in BP Australia Ltd v Greene [2013] NSWWCCPD 60. The court found that the savings and transitional provisions were intended to preserve rights accrued before the legislative changes. Given the date of Bailey's claim and the timing of the legislative amendments, the court held that the savings provisions applied to Bailey's case. Consequently, the Arbitrator's decision was revoked, and the court awarded Bailey compensation for his claim under section 67 of the Workers Compensation Act 1987.

Orders

Orders of the court

The order made by the Arbitrator as found in [1] of the Certification of Determination dated 15 April 2015 is revoked and the following order is made in its place:

“1. Award for the respondent in respect of the claim brought pursuant to s 67 of the Workers Compensation Act 1987.”

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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