CITATION:Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43
APPELLANT: Sean Brines
RESPONDENT: Westgate Logistics Pty Ltd
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC4150-07
DATE OF ARBITRATOR’S DECISION: 29 October 2007
DATE OF APPEAL DECISION: 10 April 2008
SUBJECT MATTER OF DECISION: The absence of transcript of proceedings; onus of proof; weight to be attached to evidence taken by telephone, and weight to be attached to evidence of lay witnesses.
PRESIDENTIAL MEMBER: President Greg Keating, DCJ
HEARING:On the papers
REPRESENTATION: Appellant: Napier Keen
Respondent: Gillis Delaney Lawyers
ORDERS MADE ON APPEAL: The Arbitrator’s findings and determination dated 29 October 2007 are confirmed.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 23 November 2007 Mr Sean Brines (‘Mr Brine/ the Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against the decision, dated 29 October 2007.
The Respondent to the Appeal is Westgate Logistics Pty Ltd (‘Westgate’).
Mr Brines claims to have suffered an injury to the right arm when he fell from a truck at his employer’s premises on 21 November 2005.
Mr Brines sought lump sum compensation in respect of an impairment of his right arm pursuant to section 66 and compensation for pain and suffering pursuant to section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). The claim was denied.
On 6 June 2007 Mr Brines filed an Application to Resolve a Dispute in the Commission.
On 27 June 2007 Westgate filed a Reply in the Commission disputing liability. Westgate claims that the application made by Mr Brines is fraudulent. It claims that Mr Brines suffered an injury to his arm whilst at home on Saturday 19 November 2005 when, under the influence of alcohol, he fell and rolled down a driveway whilst playing a game of handball.
In due course, the Arbitrator was required to determine the dispute, as the parties were unable to reach agreement throughout the dispute resolution process prior to the arbitral hearing.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 29 October 2007 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1. Award for the Respondent.
2. As indicated at the hearing the issue of costs is reserved, and liberty is granted to both parties to make brief written submissions within 7 days.”
ISSUES IN DISPUTE
The issues in dispute are whether the Arbitrator erred in:
a) allowing a key witness (Ms Newham) to give evidence by telephone;
b) accepting Ms Newham’s evidence despite it being tainted by domestic child custody issues and separation, and despite her evidence that her initial allegation against Mr Brines was a lie;
c) her assessment of Ms Newham’s credit;
d) making incorrect use of the medical evidence;
e) not discounting the evidence of Ms Rankmore in circumstances where she could not…
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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Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43
Case
[2008] NSWWCCPD 43
Decision Date
CaseChat Overview and Summary
Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43 is an appeal against a decision of the Workers Compensation Commission by the Commission's Arbitrator, which was brought by the Appellant, Sean Brines. The Arbitrator had determined that Mr Brines did not suffer an injury in the circumstances he claimed and dismissed his claim for compensation. The issues in dispute were whether the Arbitrator erred in various ways, including allowing a key witness to give evidence by telephone and assessing the credit of witnesses. The President of the Commission reviewed the Arbitrator's decision on the papers, and while satisfied that the appeal had been lodged within the requisite time, rejected the suggestion that a rehearing was required because of the absence of a transcript of parts of the evidence. The President was satisfied that the Arbitrator had exercised her discretion properly in assessing the credit of witnesses and the weight to be attached to the evidence given by witnesses and in concluding that Mr Brines had not discharged the onus of proving his claim. The President confirmed the Arbitrator's findings and determination.