Cummings v Melville - [2011] NSWWCCPD 59

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Cummings v Melville [2011] NSWWCCPD 59
APPELLANT:		Thomas Cummings
RESPONDENT:		Clive Melville
INSURER:		CGU Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-9855/10
ARBITRATOR:	Mr Brett Batchelor
DATE OF ARBITRATOR’S DECISION:		9 May 2011
DATE OF APPEAL HEARING:		18 October 2011
DATE OF APPEAL DECISION:		27 October 2011
SUBJECT MATTER OF DECISION:		Arbitrator’s discretion to permit cross-examination of witness; proof of injury; standard of proof and challenge to Arbitrator’s finding founded, in part, upon a finding as to credit
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		Oral
REPRESENTATION:		Appellant:	Mr Robison, instructed by Leitch Hasson & Dent
Respondent:	Mr Odling, instructed by Sparke Helmore
ORDERS MADE ON APPEAL:		The determination of the Arbitrator dated 9 May 2011 is revoked and the following orders are made in its place: “1. The matter is remitted to the Registrar for referral to an Approved Medical Specialist to assess the percentage permanent loss of sight of the left eye suffered as a result of injury received in or about June 1993. 2. The evidence to be referred to the Approved Medical Specialist is to include all that documentary evidence that was before the Arbitrator and the additional evidence, being the records of Dr Wright’s practice concerning treatment of the applicant, admitted on appeal.” The respondent is to pay Mr Cummings’s costs of the appeal.

BACKGROUND TO THE APPEAL

Mr Thomas Cummings of Narromine, New South Wales, is the appellant in these proceedings. He alleges injury to his left eye in the course of his employment with the late Mr Clive Melville (the respondent), the proprietor of a property known as “Wooringa” located in the Narromine district. Mr Cummings stated in evidence that he commenced that employment in “about 1980” as a station hand/shearer and that he “also did all round work”. That employment was not continuous however he worked “on and off up until either 1994 or 1995”. The availability of work varied and he was engaged between two and seven days a week.
Mr Cummings has experienced medical problems concerning his left eye over a period of many years. He has received treatment from a number of specialist practitioners both in rural New South Wales and in Sydney. There is no dispute concerning the complete loss of vision in his left eye.
Mr Cummings alleges that the injury to his left eye occurred on 30 June 1993 when he was kicked “in the left side of the head and face” by a ram which he was shearing. On 20 April 2010 Mr Cummings’s solicitors made a claim against the respondent’s workers compensation insurer, CGU Workers Compensation (NSW) Ltd (CGU), in respect of lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act). That claim was accompanied by a report from Dr Michael R Delaney dated 29 July 2008 which quantified Mr Cummings’s loss as being 100 per cent impairment of…

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.

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Details

Case: [2011] NSWWCCPD 59
Decision Date: 27 October 2011

CaseChat Overview and Summary

Cummings, an applicant, appealed against a decision of an Arbitrator who dismissed his claim for compensation for a work-related injury. The Arbitrator had found that the applicant had failed to prove the extent of his injury and had rejected his evidence as to the extent of his disability. The applicant contended that the Arbitrator had erred in law and fact and should not have exercised his discretion to permit cross-examination of the applicant’s expert witness. The respondent, Melville, argued that the Arbitrator’s findings were correct and should be upheld.

The court considered the Arbitrator’s exercise of discretion to permit cross-examination of the applicant’s expert witness and whether this was an error of law. The court found that the Arbitrator had exercised his discretion correctly and that there was no error of law in the exercise of that discretion. The court also considered whether the Arbitrator had erred in finding that the applicant had failed to prove the extent of his injury. The court found that the Arbitrator had not erred in finding that the applicant had failed to prove the extent of his injury but that the matter should be remitted to an Approved Medical Specialist to assess the percentage permanent loss of sight of the left eye suffered by the applicant.

The court remitted the matter to the Registrar for referral to an Approved Medical Specialist to assess the percentage permanent loss of sight of the left eye suffered by the applicant. The court also ordered that the evidence to be referred to the Approved Medical Specialist was to include all documentary evidence that was before the Arbitrator and the additional evidence, being the records of Dr Wright’s practice concerning treatment of the applicant, admitted on appeal. The court ordered that the respondent was to pay the applicant’s costs of the appeal.

Orders

Orders of the court

The determination of the Arbitrator dated 9 May 2011 is revoked and the following orders are made in its place:

“1. The matter is remitted to the Registrar for referral to an Approved Medical Specialist to assess the percentage permanent loss of sight of the left eye suffered as a result of injury received in or about June 1993.

2. The evidence to be referred to the Approved Medical Specialist is to include all that documentary evidence that was before the Arbitrator and the additional evidence, being the records of Dr Wright’s practice concerning treatment of the applicant, admitted on appeal.”

The respondent is to pay Mr Cummings’s costs of the appeal.

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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