Candy v MC Connor Racing Pty Ltd - [2020] NSWWCCPD 43

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Candy v MC Connor Racing Pty Ltd [2020] NSWWCCPD 43
APPELLANT:	Lisa Candy
RESPONDENT:	MC Connor Racing Pty Ltd
INSURER:	Racing NSW
FILE NUMBER:	A1-4943/19
SENIOR ARBITRATOR:	Ms J Bamber
DATE OF SENIOR ARBITRATOR’S DECISION:	6 January 2020
DATE OF APPEAL DECISION:	7 July 2020
SUBJECT MATTER OF DECISION:	Whether error in determining the issue of injury to the right hip and whether the need for surgery to the right hip resulted from the work-related injury; principles applicable to disturbing a primary decision maker’s factual determination – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr S Grant, counsel
Rishworth Dodd & Co
Respondent:
Mr P Macken, solicitor
Leigh Virtue & Associates
ORDERS MADE ON APPEAL:	1. The Senior Arbitrator’s Certificate of Determination dated 6 January 2020 is confirmed.

INTRODUCTION AND BACKGROUND

Ms Lisa Candy (the appellant) was a racehorse track work rider employed by MC Connor Racing Pty Ltd (the respondent). The appellant suffered numerous injuries in the course of her employment, including an injury on 20 April 2013, in which she suffered a traumatic brain injury that affected her ability to recall matters in any detail. These proceedings concern an incident that occurred on 25 June 2018 which involved the appellant suffering a fall from a horse she was exercising for the respondent. The appellant alleged that she was thrown from the horse but was not injured so she re-mounted the horse. The appellant said that the horse again threw her off and then fell on her and trampled her, causing injury to her right hip.
The appellant claimed future treatment expenses in respect of the cost of a total right hip replacement, recommended by her treating specialist, Dr Arash Nabavi, orthopaedic surgeon. The respondent disputed that the injury on 25 June 2018 was the main contributing factor to the cause or aggravation of a pre-existing disease in the right hip and disputed the right hip was injured in the incident. On that basis it was not liable to pay the appellant compensation.
The matter proceeded to arbitration before Senior Arbitrator Bamber. The Senior Arbitrator determined that she was not satisfied that the appellant suffered an injury to the right hip and entered an award for the respondent.
The appellant appeals that decision.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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.”
The appellant indicates that the appeal can be determined on the basis of the documentary material and the written submissions of both parties.
The respondent seeks to have an oral hearing of the appeal. The respondent submits that the appeal grounds are imprecise and lack…

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 Candy v MC Connor Racing Pty Ltd

Details

AGLC: Candy v MC Connor Racing Pty Ltd [2020] NSWWCCPD 43
Case: [2020] NSWWCCPD 43
Decision Date: 7 July 2020

CaseChat Overview and Summary

Candy brought an appeal against the decision of a Senior Arbitrator, who had determined that Candy’s claim for compensation was limited to a compensable injury to his left hip and denied his claim for compensation for his right hip. Candy contended that the Senior Arbitrator had erred in determining that the injury to his right hip was not caused by the work-related injury and that the surgery to his right hip was not a result of the injury. The Court of Appeal was asked to determine whether the error was material and whether it warranted disturbing the primary decision maker’s factual determination.

The Court held that the principles established in Raulston v Toll Pty Ltd applied in this case. The Court found that the Senior Arbitrator had correctly identified that Candy’s claim was limited to his left hip injury. The Court also found that the evidence did not support Candy’s argument that the injury to his right hip was caused by the work-related injury. Furthermore, the Court held that the primary decision maker’s findings were open to the Senior Arbitrator and should not be disturbed. The Court found that the Senior Arbitrator’s error was not material and did not warrant disturbing the primary decision maker’s factual determination.

Accordingly, the Court dismissed the appeal and confirmed the Senior Arbitrator’s Certificate of Determination dated 6 January 2020.

Orders

Orders of the court

1. The Senior Arbitrator’s Certificate of Determination dated 6 January 2020 is confirmed.

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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