Craddock v G.H. Varley Pty Ltd

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

CITATION:

Craddock v G.H. Varley Pty Ltd [2021] NSWWCCPD 10

APPELLANT:

Christopher Craddock

RESPONDENT:

G.H. Varley Pty Ltd

INSURER:

AAI Limited trading as GIO

FILE NUMBER:

A1-3089/20

ARBITRATOR:

Ms J Toohey

DATE OF ARBITRATOR’S DECISION:

8 September 2020, amended 17 September 2020

DATE OF APPEAL DECISION:

11 February 2021

SUBJECT MATTER OF DECISION:

Factual error: application of Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; clinical notes of treating doctors – Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; application of weight of expert evidence in the Commission: application of Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505, Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 399 and associated authorities; admission of fresh evidence on appeal: application of CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501

PRESIDENTIAL MEMBER:

Deputy President Michael Snell

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr R Stanton, counsel

Brydens Lawyers

Respondent:

Mr D A Baker, counsel

Gillis Delaney Lawyers

ORDERS MADE ON APPEAL:

1. The appellant’s application for leave to rely on fresh or additional evidence pursuant to section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 is refused.

2.    The Arbitrator’s decision dated 8 September 2020 (amended 17 September 2020) is revoked. The matter is remitted for re-determination by a different Arbitrator.

INTRODUCTION AND BACKGROUND

1. Christopher Craddock (the appellant) was employed full-time by G.H. Varley Pty Ltd (the respondent) as a production worker, from 27 February 2017 to 24 May 2017.[1] There was an incident on 29 March 2017 when the appellant was using an air rivet gun which was connected to compressed air. The air hose blew off the machine and struck the appellant in the vicinity of his abdomen (to employ an intentionally vague term).[2] The occurrence of the incident was not in serious dispute. There was an issue regarding precisely where on his body the appellant was struck and the nature of any injury sustained. The incident was reported, but the appellant did not claim compensation at the time. He saw a general practitioner, Dr Chin, on the date of the incident and was given a medical certificate for two days off work.[3] The appellant resumed his normal duties on 3 April 2017 and worked on until 24 May 2017 when he was terminated whilst still on probation, due to concern about his attendance and health issues.[4] The appellant states that he had difficulty carrying out his duties after the incident.[5]

   [1] Reply, p 14.

   [2] Mr Craddock’s statement dated 9 October 2019, Application to Resolve a Dispute (ARD), p 2.

   [3] ARD, p 72.

   [4] Reply, p 35.

   [5] ARD, p 3.

2. The appellant obtained sedentary work with another employer which he performed from 22 October 2017 to 18 August 2019.[6] The appellant lodged a claim form dated 11 December 2017.[7]…