C. Reagh Pty Ltd v Gaydon

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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…

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Details
Case
[2020] NSWWCCPD 63
Decision Date

CaseChat Overview and Summary

The dispute in C. Reagh Pty Ltd v Gaydon involved C. Reagh Pty Ltd, the appellant, and Gaydon, the respondent, with the matter being heard in the Australian Safety and Compensation Commission. The primary focus of the litigation was the weight of medical evidence presented in the Commission, particularly concerning expert opinions on stress and the determination of causation in relation to the appellant's claim. The appellant sought to overturn the Certificates of Determination issued by an Arbitrator, which had dismissed their claims. The court had to consider the application of established legal principles, specifically the Kooragang Cement case, to determine the validity of the evidence and the appropriate application of the 'but for' test in causation.

The central legal issues before the court were the evaluation of the medical evidence, particularly regarding stress, and the application of causation principles in determining liability. The court had to assess whether the Arbitrator had correctly interpreted and applied the medical evidence and whether the 'but for' test for causation was appropriately employed. This required a detailed examination of the medical reports and expert testimonies, as well as an analysis of the Arbitrator's decision-making process. The court's task was to ensure that the Arbitrator had not erred in law or made findings that were unsupported by the evidence.

The court found that the Arbitrator had not adequately considered the weight of the medical evidence, particularly the expert opinions on stress, and had misapplied the 'but for' test in causation. The court held that the Arbitrator's approach was inconsistent with the principles set out in Kooragang Cement, leading to a flawed determination of the appellant's claims. Consequently, the Arbitrator's Certificates of Determination were revoked, and the matter was remitted for re-determination by a different Arbitrator. This decision underscores the importance of proper application of medical evidence and causation tests in workers' compensation matters.

Orders

Orders of the court

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.

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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