Datta v Universal Consultancy Services Pty Ltd - [2006] NSWWCCPD 85

WORKERS COMPENSATION COMMISSION

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

CITATION:Datta v Universal Consultancy Services Pty Ltd [2006] NSWWCCPD 85
APPELLANT:  Mrinal Datta
RESPONDENT:  Universal Consultancy Services Pty Ltd
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:  WCC20916-04
DATE OF ARBITRATOR’S DECISION:          9 May 2005
DATE OF APPEAL DECISION:  12 May 2006
SUBJECT MATTER OF DECISION: Dependency; section 37 Workers Compensation Act 1987
PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      In person
Respondent:   Vardanega Roberts

ORDERS MADE ON APPEAL: Paragraph one of the Arbitrator's decision of 9 May 2005 is revoked and the following order is made:
Award for the Respondent.
Paragraph two of the Arbitrator's decision of 9 May 2005 is confirmed.

No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 31 May 2005 Mrinal Datta (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against decisions, dated 24 March 2004 and 31 May 2005.

The Respondent to the Appeal is Universal Consultancy Services Pty Ltd (‘the Respondent Employer’).

The Appellant Worker sustained serious injuries when he was assaulted in the course of his employment with the Respondent Employer on 3 February 2001. As a result of his injuries he brought a claim for compensation in the Compensation Court of NSW (‘the Court’) which was determined by Acting Judge Burke on 7 May 2002. His Honour made an award in favour of the Appellant Worker on the basis of total incapacity from 24 July 2001 to date and continuing at the rate applicable for a single worker with no dependents. In addition the Appellant Worker recovered lump sum compensation under section 66 of the WorkersCompensation Act 1987 (‘the 1987 Act’) in the sum of $9,000.00 in respect of 15% loss of power of speech and $4,000.00 in respect of 5% severe facial disfigurement. Compensation was also awarded in the sum of $10,000.00 under section 67 for pain and suffering. It should be noted that the first 26 weeks of compensation expired on 2 August 2001. Thereafter the Appellant Worker's award was pursuant to section 37 of the 1987 Act.

Some time after receiving his award the Appellant Worker returned to India where he now resides with his parents.

The papers before me do not include the pleadings before the Court and I have no details of claim made but it is common ground that the claim did not include a claim for any dependents.

The Appellant Worker is a single man who was born in India on 14 June 1968. He is the son of Sunil Bhusan Datta (‘Sunil’), a retired state government employee who was born on 8 March 1931, and Dipti Datta (‘Dipti’), a housewife born on 29 August 1936. Other relevant family members are his sisters Chitrita Datta (now Das) born on 9 December 1958 and Sangeeta Datta (now Mahanta) (‘Sangeeta’) born on 5 July 1969, and…

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 Datta v Universal Consultancy Services Pty Ltd

Details

AGLC: Datta v Universal Consultancy Services Pty Ltd [2006] NSWWCCPD 85
Case: [2006] NSWWCCPD 85
Decision Date: 12 May 2006

CaseChat Overview and Summary

In the matter of Datta v Universal Consultancy Services Pty Ltd, the appeal was lodged against the decisions made by an Arbitrator in the Workers Compensation Commission. The Appellant, Mr Datta, sought additional weekly compensation from the Respondent, Universal Consultancy Services Pty Ltd, on the grounds that his mother and sister were wholly or mainly dependent for support on him. The Arbitrator found against the Appellant Worker on the issue of dependency and made an award in favour of the Respondent Employer. The Appellant Worker now appeals from the orders made on 1 March 2005 and on 9 May 2005. The appeal was granted leave on both the Interlocutory and Substantive Decisions. The appeal against the Interlocutory Decision was on the grounds that the Arbitrator allowed the Respondent Employer to be legally represented at the Arbitration when the Appellant Worker was not legally represented, allowed the Appellant Worker only 10 days to provide documents sought by the Respondent Employer, and allowed the Respondent Employer to file two sets of submissions when the Appellant Worker had only filed one set of submissions. The appeal against the Substantive Decision was on the grounds that the Arbitrator found that the Appellant Worker's mother and sister were not totally or mainly dependent for support on him, applied the wrong test to determine dependency, provided a Statement of Reasons for Decision that were too long, left no opportunity for the Appellant Worker to give oral evidence or be cross examined, failed to recognise that money paid to the Appellant Worker's parents was really money for the Appellant Worker's dependent sister, relied on unqualified contributions from unidentified persons, based his decision on an 'erroneous premise', failed to make his decision on the basis of logically probative evidence, made a decision against the weight of the evidence, and allowed the Respondent Employer to file submissions three days outside the timetable set by the Arbitrator for the filing of submissions. The court found that there was no error in the Arbitrator's decision and that the appeal should be dismissed.

Orders