Dalcol v Ku-ring-gai Council

[2019] NSWWCCPD 5

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Dalcol v Ku-ring-gai Council [2019] NSWWCCPD 5
APPELLANT:	Robert Dalcol
RESPONDENT:	Ku-ring-gai Council
INSURER:	StateCover Mutual Limited
FILE NUMBER:	A1-3034/18
ARBITRATOR:	Mr N Read
DATE OF ARBITRATOR’S DECISION:	14 September 2018
DATE OF APPEAL DECISION:	20 February 2019
SUBJECT MATTER OF DECISION:	No error in exercise of discretion to exclude cross-examination; Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 4 DDCR 358 and Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 applied; consideration of objective evidence when witness evidence unreliable; Devries v Australian National Railways Commission (1992) 8 CA 41; (1993) 177 CLR 472 and Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43 considered and applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Braye Cragg Solicitors
Respondent:	Moray & Agnew
ORDERS MADE ON APPEAL:	1.   The Certificate of Determination dated 14 September 2018 is confirmed.

INTRODUCTION

1. Mr Robert Dalcol suffered an injury to his right knee on 20 October 2015 for which Ku-ring-gai Council (the Council) accepted liability. These proceedings concern a claim by Mr Dalcol that on 1 December 2016, while travelling by train to a rehabilitation assessment instituted by the Council following surgery to his right knee, Mr Dalcol suffered an injury to his right shoulder.

2. The claim was disputed and Mr Dalcol lodged an Application to Resolve a Dispute (ARD) in the Commission, seeking weekly payments pursuant to s 36 of the Workers Compensation Act 1987 (the 1987 Act) and treatment expenses pursuant to s 60 of the 1987 Act. The matter came to arbitration on 21 August 2018.

3. The Arbitrator determined that he was not satisfied that Mr Dalcol suffered an injury to his right shoulder in the manner alleged and entered an award in favour of the Council.

4. Mr Dalcol appeals the decision.

BACKGROUND

1. Mr Dalcol underwent a right total knee replacement on 3 June 2016, following which he had a period of total incapacity. He returned to work on or about 18 October 2016, performing suitable duties and undertaking rehabilitation.

2. Mr Dalcol alleged that on 1 December 2016, while travelling by train to attend the rehabilitation assessment, a heavily built woman fell on him when the train shunted several times. He alleged that this caused him to fall, landing heavily on his right shoulder.  

3. In the ARD,[1] Mr Dalcol alleged that the right shoulder injury was:

   (a)    a “consequential injury” to the right knee injury;

   (b)    in the alternative, an injury arising out of or in the course of employment;

   (c)    further in the alternative, the injury occurred on a journey to which s 10 of the 1987 Act applied.

   [1] ARD, Part 4 – Injury Details.

4. On 16 February 2017, the Council issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), declining liability for the right shoulder.[2] The Council denied that:

   (a)    Mr Dalcol had…