C. Reagh Pty Ltd v Gaydon

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:

C. Reagh Pty Ltd v Gaydon [2020] NSWWCCPD 63

APPELLANT:

C. Reagh Pty Ltd

FIRST RESPONDENT:

John Gaydon

SECOND RESPONDENT:

Tara Mooney

THIRD RESPONDENT:

David Mooney

INSURER:

Hotel Employers Mutual Ltd

FILE NUMBER:

A1-6800/19

ARBITRATOR:

Mr C Burge

DATE OF ARBITRATOR’S DECISION:

6 May 2020, amended 11 May 2020

DATE OF APPEAL DECISION:

20 October 2020

SUBJECT MATTER OF DECISION:

Weight of medical evidence in the Commission; expert evidence regarding ‘stress’; issues of causation in the Commission: application of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796, the ‘but for’ test in causation

PRESIDENTIAL MEMBER:

Deputy President Michael Snell

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr B McManamey, counsel

Hicksons Lawyers

First Respondent:

Mr R Hanrahan, counsel

LHD Lawyers

Second Respondent:

Mr G Young, counsel

Law Partners Personal Injury Lawyers

Third Respondent:

Mr A B Parker, counsel

Carroll & O’Dea Lawyers

ORDERS MADE ON APPEAL:

1.   The appellant’s identity is amended to “C. Reagh Pty Ltd”.

2.   The Certificates of Determination dated 6 May 2020 and 11 May 2020 are revoked.

3.   The matter is remitted for re-determination by a different Arbitrator.

INTRODUCTION AND BACKGROUND

1. Deanna Mooney (the deceased) was employed as a casual cook at the Castlereagh Hotel at Dubbo.[1] The correct identity of the entity that employed her was C. Reagh Pty Ltd (the appellant). Leave is given to the appellant to amend its identity accordingly. The deceased suffered injury to her back on 5 March 2012 when lifting 20 kilogram drums of cooking oil, in the course of cleaning the fryer in the hotel kitchen.[2] She ceased work on the following day.[3] Her claim for compensation was denied by the respondent’s insurer and was the subject of proceedings in the Commission (No. 5077/12, ‘the original proceedings’).

   [1] Deceased’s statement 23/4/12, [8], Application to Resolve a Dispute (ARD), p 4.

   [2] Deceased’s statement 23/4/12, [10], ARD, p 4.

   [3] Deceased’s statement 23/4/12, [15]–[18], ARD, p 5.

2. The original proceedings were listed for an arbitration hearing in Sydney on 7 November 2012. The deceased, in the company of her mother, travelled from Dubbo to attend. The parties were represented by counsel. The deceased gave evidence and was cross-examined.[4] A lay witness, the manager of the Castlereagh Hotel, gave evidence in the appellant’s case.[5] Counsel addressed and the Arbitrator who heard the matter reserved his decision.

   [4] Transcript, 7/11/12 (T1), T1 33.12–68.6.

   [5] T1 71.28–98.5.

3. In the early evening on the date of the arbitration hearing, the deceased and her mother boarded a flight in Sydney to return to Dubbo. The flight was delayed. The deceased was observed to be anxious. After boarding she was sweating and said she felt like vomiting. She then appeared to sleep, following which her breathing became shallow and she was unresponsive. She ceased breathing and had an absent carotid pulse. Attempts to revive her were unsuccessful. The plane returned to Sydney where an…