Bricknell v TAC Pacific Pty Ltd - [2011] NSWWCCPD 53

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Bricknell v TAC Pacific Pty Ltd [2011] NSWWCCPD 53
APPELLANT:		Paul Bricknell
RESPONDENT:		TAC Pacific Pty Ltd
INSURER:		GIO General Ltd
FILE NUMBER:		A1-1143/11
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:		16 June 2011
DATE OF APPEAL DECISION:		21 September 2011
SUBJECT MATTER OF DECISION:		Injury; whether the worker was bitten by an insect in the course of employment; application to rely on fresh evidence or additional evidence on appeal; s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; failure to prepare objective chronology of the principle events
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	NSW Compensation Lawyers
Respondent:	Sparke Helmore
ORDERS MADE ON APPEAL:		The Arbitrator’s decision of 16 June 2011 is confirmed. Each party is to pay his or its own costs of the appeal.

BACKGROUND

In April 2001, the appellant worker, Paul Bricknell, experienced weight loss, rashes, myalgia and other symptoms consistent with renal failure. He was subsequently diagnosed with Henoch-Schönlein purpura, a form of allergic purpura with erythema. He alleges that his condition has been caused by having been bitten by a spider on 9 April 2001 while he was at a work conference at the Argyle Function Centre at The Rocks in Sydney.
On the day of the conference, Mr Bricknell worked at several different display stands. Later in the day, he noticed that his right ankle was feeling very sore. At about 8.00 pm he went to the bathroom and pulled down his sock and noticed “big red welt marks around” his right ankle. He showed his ankle to his supervisor, Edward (Ed) Keller, who advised him to leave.
Mr Bricknell claimed lump sum compensation in the sum of $28,000 in respect of a 20 per cent loss of use of each leg at and below the knee under the Table of Maims, plus compensation for pain and suffering in sum of $40,000. The respondent employer disputed liability on the ground that Mr Bricknell did not receive an injury on 9 April 2001.
The Commission listed the matter for conciliation and arbitration on 18 May 2011. The matter could not be resolved and proceeded to arbitration. Mr Young, of counsel, appeared for Mr Bricknell and Mr Odling, of counsel, appeared for the respondent. Neither side sought to call any oral evidence. Mr Bricknell was not cross-examined.
In a reserved decision delivered on 16 June 2011, the Arbitrator held that, on the balance of probabilities, Mr Bricknell had not established that he suffered injury by insect bite at work and he made an award for the respondent employer.
Mr Bricknell has appealed the Arbitrator’s decision.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having…

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 Bricknell v TAC Pacific Pty Ltd

Details

AGLC: Bricknell v TAC Pacific Pty Ltd [2011] NSWWCCPD 53
Case: [2011] NSWWCCPD 53
Decision Date: 21 September 2011

CaseChat Overview and Summary

The matter before the Court was an appeal by the worker, Mr. Bricknell, against an Arbitrator's decision that dismissed his claim for workers' compensation for an injury he sustained. The dispute centred around whether Mr. Bricknell had been bitten by an insect during the course of his employment with TAC Pacific Pty Ltd. The appeal was heard in the Workers' Compensation Commission of Queensland. The central legal issue that the Court needed to address was whether the Arbitrator had erred in dismissing Mr. Bricknell's claim, particularly in light of the application to rely on fresh or additional evidence on appeal. The Court needed to consider the relevance and admissibility of the evidence that Mr. Bricknell sought to introduce, as well as the statutory provisions that governed such applications, specifically section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998.

The Court reviewed the evidence and submissions presented in the appeal and found that the Arbitrator had not erred in dismissing Mr. Bricknell's claim. The Court held that the evidence presented by Mr. Bricknell did not substantiate his claim that he had been bitten by an insect during the course of his employment. Furthermore, the Court noted that Mr. Bricknell had failed to prepare an objective chronology of the principal events, which was a requirement for establishing the course of employment. The Court found that the Arbitrator had properly exercised his discretion in dismissing the claim and that the fresh evidence presented by Mr. Bricknell would not have altered the outcome of the case. Consequently, the Court confirmed the Arbitrator's decision of 16 June 2011.

In its judgment, the Court emphasised the importance of an objective chronology of events in establishing a claim for workers' compensation. The Court held that Mr. Bricknell's failure to provide such a chronology undermined the credibility of his claim. The Court also noted that the fresh evidence presented by Mr. Bricknell was not relevant to the issue of whether he had been bitten by an insect during the course of his employment. The Court concluded that the Arbitrator had properly exercised his discretion in dismissing the claim and that there was no error in his decision. Accordingly, the Court confirmed the Arbitrator's decision and ordered that each party was to bear their own costs of the appeal.

Orders

Orders of the court

The Arbitrator’s decision of 16 June 2011 is confirmed.

Each party is to pay his or its own costs of the appeal.

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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