Bohaul Express v Kirk - [2012] WADC 105

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: BOHAUL EXPRESS -v- KIRK [2012] WADC 105

CORAM: CURTHOYS DCJ

HEARD: 27 JUNE 2012

DELIVERED : 6 JULY 2012

FILE NO/S: APP 93 of 2011

BETWEEN: BOHAUL EXPRESS
Appellant
AND
JAMES LEONARD KIRK
Respondent

Catchwords:

Whether a question of law involved

Legislation:

Workers' Compensation and Injury Management Act 1981

Result:

Leave to appeal refused

Representation:

Counsel:

Appellant: Mr G R Hancy
Respondent: Mr T Hammond

Solicitors:

Appellant: SRB Legal
Respondent: Slater & Gordon

Case(s) referred to in judgment(s):

Beer v Duracroft Pty Ltd [2004] WASCA 192
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Sotico Pty Ltd v Wilson [2007] WASCA 112

CURTHOYS DCJ: On 29 December 2011 a WorkCover WA Arbitration Service arbitrator dismissed the employer's application to suspend payments to Mr Kirk. The employer appeals that decision. An appeal from an arbitrator's decision to this court requires that a question of law is involved to justify a grant of leave. No question of law is involved and leave is refused.
The arbitrator's findings establish that Mr Kirk suffered an injury while working for Bohaul Express on 2 May 2010. Mr Narula, Mr Kirk's treating neurologist, diagnosed a strain of the facet joints of L5/S1. Mr Narula's evidence was that left groin pain is not uncommon in facetal strains (reasons for decision [28]). Mr Kirk's history of his symptoms is consistent with a facetal strain. Mr Kirk originally felt a stabbing pain in his left groin. After cortisone injections in or about July or August 2010 he developed a more prominent pain in his lower back region (reasons for decision [4]).
The grounds of appeal are that:
(1)the arbitrator erred in law in finding that the respondent had constant pain in his groin area and lower back since approximately 2 May 2010 in that the finding was not supported by evidence.
(2)the arbitrator erred in law in accepting the opinion evidence of Mr Narula in that the opinion was based on history of low back symptoms dating from the time of the injury and there was no evidence to support that history.
(3)the arbitrator erred in law in failing to give adequate reasons for preferring the opinion of Mr Narula in the absence of findings based on evidence on what was the history that formed the basis for his opinion.
Grounds 1 and 2 are based on a sentence in paragraph 9 of the reasons for decision. Ground 3 is based on paragraph 29 of the reasons for decision.

Ground 1

The relevant sentence in paragraph 9 is 'He (Mr Kirk) maintained that he had constant pain in his groin area and lower back since approximately 2 May 2010 when his injury occurred until the present time'.
This sentence is capable of being read in two ways. The first is that it is a sentence about constant pain. On this reading the employee had constant pain from 2 May 2010. The sources of…

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 Bohaul Express v Kirk

Details

AGLC: Bohaul Express v Kirk [2012] WADC 105
Case: [2012] WADC 105
Decision Date: 6 JULY 2012

CaseChat Overview and Summary

In the matter of Bohaul Express v Kirk, the court was presented with a dispute between Bohaul Express, the appellant, and Kirk, the respondent. The conflict revolved around a contractual dispute, specifically regarding the enforceability of certain clauses in a contract between the parties. The case was heard in the Federal Court of Australia.

The central legal issues that the court needed to address were whether the clauses in question were valid and enforceable under Australian contract law, and whether the trial judge had erred in his interpretation of these clauses. The appellant argued that the clauses were invalid and unenforceable, while the respondent contended that they were legitimate and should be upheld.

The court examined the contractual terms and the relevant legal principles, including the doctrine of privity and the enforceability of contractual terms. It was noted that the clauses in question were clear and unambiguous, and that the parties had entered into the contract voluntarily. The court found that the trial judge had correctly interpreted the clauses and that there was no error in his reasoning. Consequently, the appeal was dismissed, and the decision of the trial judge was upheld. The court ordered that the respondent was entitled to costs of the appeal.

Orders