Camden Council v Victory - [2014] NSWWCCPD 60

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Camden Council v Victory [2014] NSWWCCPD 60
APPELLANT:	Camden Council
RESPONDENT:	Bradley Victory
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-887/13
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	4 June 2014
DATE OF APPEAL DECISION:	15 September 2014
SUBJECT MATTER OF DECISION:	Weekly compensation; challenge to finding of total incapacity; self-employed worker; approach to determining actual earnings while self-employed; approach to assessment of ability to earn after self-employment ceases; s 37 of the Workers Compensation Act 1987 (as it stood prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012); relevance of alleged supervening incapacity; non-compliance with Practice Direction No 6
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Goldbergs Lawyers
Respondent:	Firths – The Compensation Lawyers
ORDERS MADE ON APPEAL:	1. Paragraphs 1 and 2 of the Arbitrator’s amended determination of 4 June 2014 are revoked and the following order is made in their place: “1. The respondent employer is to pay to the applicant worker weekly compensation at the appropriate statutory rate for a worker with a dependent wife and three dependent children from 28 March 2013 to date and continuing under s 37 of the Workers Compensation Act 1987 (the 1987 Act), as in force prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012.” 2. The applicant worker’s entitlement to weekly compensation for the period from 28 December 2012 to 27 March 2013 is remitted to another Arbitrator for re-determination. 3. Paragraph 3 of the Arbitrator’s amended determination of 4 June 2014 is confirmed. 4. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST. 5. Costs of the second arbitration are to follow the outcome of that arbitration.

INTRODUCTION

This appeal concerns an Arbitrator’s findings in respect of an award for weekly compensation for total incapacity under s 37 of the Workers Compensation Act 1987 (the 1987 Act), as it stood prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act).
The amendments introduced by the 2012 amending Act do not apply to the worker because he was an “existing recipient” of weekly compensation immediately before 1 October 2012 and, as no work capacity assessment has been conducted (see cl 9 of Pt 19H of Sch 6 to the 1987 Act), the worker remains entitled to compensation under Div 2 of Pt 3 of the 1987 Act “as if the weekly payments amendments had not been made” (cl 6 of Pt 19H). Therefore, all references in this decision to the 1987 Act are to the terms of that Act as they stood prior to the amendments introduced by the 2012 amending Act.

BACKGROUND

The respondent worker, Bradley Victory, started work for the appellant, Camden Council (the Council), in 1992 as a garbage collector/truck driver. At that time, he was 17 years…

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 Camden Council v Victory

Details

AGLC: Camden Council v Victory [2014] NSWWCCPD 60
Case: [2014] NSWWCCPD 60
Decision Date: 15 September 2014

CaseChat Overview and Summary

Camden Council was the appellant and Victory the respondent in a dispute concerning the assessment of weekly compensation under the Workers Compensation Act 1987 (NSW). The case involved a self-employed worker who had sustained injuries that led to a total incapacity for work. The primary legal issues the court had to address included the determination of actual earnings while the worker was self-employed, the assessment of the worker's ability to earn after self-employment ceased, and the relevance of a supervening incapacity in calculating compensation. The court also had to consider the non-compliance with Practice Direction No 6 in the context of the appeal.

The court examined the statutory provisions and relevant case law to determine the correct approach to assessing earnings and capacity to earn in the context of self-employment. It concluded that the Arbitrator's assessment of the worker's actual earnings while self-employed was incorrect and that the assessment of the worker's ability to earn after self-employment ceased should take into account the supervening incapacity. The court found that the Arbitrator had failed to properly consider the statutory provisions and the evidence presented regarding the worker's capacity to earn. The court also noted that the employer's non-compliance with Practice Direction No 6 did not affect the outcome of the appeal as the error was not material to the decision.

The court revoked certain paragraphs of the Arbitrator's amended determination and substituted its own orders for the calculation of weekly compensation. It remitted the worker's entitlement to weekly compensation for a specific period to another Arbitrator for re-determination and confirmed other parts of the Arbitrator's determination. The court also ordered the employer to pay the worker's costs of the appeal and directed that the costs of the second arbitration would depend on the outcome of that arbitration.

Orders

Orders of the court

1. Paragraphs 1 and 2 of the Arbitrator’s amended determination of 4 June 2014 are revoked and the following order is made in their place:

“1. The respondent employer is to pay to the applicant worker weekly compensation at the appropriate statutory rate for a worker with a dependent wife and three dependent children from 28 March 2013 to date and continuing under s 37 of the Workers Compensation Act 1987 (the 1987 Act), as in force prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012.”

2. The applicant worker’s entitlement to weekly compensation for the period from 28 December 2012 to 27 March 2013 is remitted to another Arbitrator for re-determination.

3. Paragraph 3 of the Arbitrator’s amended determination of 4 June 2014 is confirmed.

4. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST.

5. Costs of the second arbitration are to follow the outcome of that arbitration.

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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