Chattha v Malik t/as Malik Cabs

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Chattha v Malik t/as Malik Cabs [2017] NSWWCCPD 42
APPELLANT:	Ishtiaq Chattha
FIRST RESPONDENT:	Anwar Malik t/as Malik Cabs
SECOND RESPONDENT:	Workers Compensation Nominal Insurer
THIRD RESPONDENT:	Shaukat Rana t/as Rana Spare Parts
INSURER:	First Respondent: Uninsured
Second Respondent: Insurance & Care NSW
Third Respondent: Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-5156/16
ARBITRATOR:	Ms D Moore
DATE OF ARBITRATOR’S DECISION:	7 December 2016
DATE OF APPEAL DECISION:	26 September 2017
DATE OF APPEAL HEARING:	6 September 2017
SUBJECT MATTER OF DECISION:	Alleged factual error in dealing with medical evidence; procedural fairness: application of Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 and Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; 3 DDCR 1; the rule in Browne v Dunn (1893) 6 R 67 in the Commission; hearsay evidence in the Commission: Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351
PRESIDENTIAL MEMBER:	Acting President Michael Snell
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr A Campbell, instructed by Buttar, Caldwell & Company
First Respondent:	Unrepresented, no appearance
Second and Third Respondents:	Mr J Dodd, instructed by HWL Ebsworth
ORDERS MADE ON APPEAL:	1.       The Certificate of Determination dated 7 December 2016 is revoked, as regards the awards in favour of the first and second respondents. The Certificate of Determination is confirmed as regards the award in favour of the third respondent. 2.       The matter, as regards the proceedings by the appellant against the first and second respondents, is remitted for re-determination by another Arbitrator.

INTRODUCTION

1. Ishtiaq Chattha (the appellant) was a deemed worker in the employ of Anwar Malik t/as Malik Cabs (the first respondent) and Shaulkalt Rana t/as Rana Spare Parts (the third respondent), pursuant to cl 10 of Sch 1 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The appellant was a bailee taxi driver. He alleges that he suffered injury in an incident in his deemed employment with the first respondent on 3 November 2010, lifting luggage into the boot of a taxi. He alleges injury due to the ‘nature and conditions’ of his deemed employment thereafter, with each of the first and third respondents. The Workers Compensation Nominal Insurer (the second respondent) is a party to the proceedings as the first respondent was uninsured for the purposes of the Workers Compensation Legislation.

2. The appeal is against an arbitral decision that there be awards in favour of all of the respondents, on the basis that the appellant had not established that he suffered injury as alleged. The appeal relates essentially to alleged errors in the fact finding process.

BACKGROUND

1. The appellant states that he was injured on 3 November 2010 at approximately 5 pm, whilst picking up a passenger at Sydney International Airport. The appellant was in the deemed employ of the first respondent at the time. He said that he “had three or four heavy…