Dodson v Woolworths Group Limited

Case [2022] WASCA 22

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   DODSON -v- WOOLWORTHS GROUP LIMITED [2022] WASCA 22

CORAM:   QUINLAN CJ

BUSS P

BEECH JA

HEARD:   13 JANUARY 2022

DELIVERED          :   22 FEBRUARY 2022

FILE NO/S:   CACV 1 of 2021

BETWEEN:   TRACEY DODSON

Appellant

AND

WOOLWORTHS GROUP LIMITED

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   LONSDALE DCJ

Citation: DODSON -v- WOOLWORTHS GROUP LIMITED [2020] WADC 157

File Number            :   APP 97 of 2019


Catchwords:

Workers' compensation - Appeal under s 254 of the Workers' Compensation and Injury Management Act 1981 (WA) - Appellant claimed recurrence of an injury sustained at work - Appellant based her claim on her alleged ongoing pain - Whether the primary judge wrongfully rejected the appellant's evidence of ongoing pain - Whether the wrongful rejection of evidence amounts to an error of law - Whether the rejection of evidence in circumstances where the appellant was not cross–examined on that evidence amounts to an error of law

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant : B L Nugawela & A G Illich
Respondent : A P Hershowitz

Solicitors:

Appellant : Eureka Lawyers
Respondent : McCabe Curwood

Case(s) referred to in decision(s):

The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239

Browne v Dunn (1893) 6 R 67 (HL)

Burke v Corruption and Crime Commission [2012] WASCA 49; (2012) 289 ALR 150

Cole v P & O Ports Ltd [2002] WASCA 157

Dodson v Woolworths Group Limited [2020] WADC 157

Johnson v Denwest Nominees Pty Ltd [2017] WASCA 200

Kuhl v Zurich Financial Insurance Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361

Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182

Nankivell v Insurance Commission of WA [2017] WASCA 143

Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230; (2015) 49 WAR 243

Tracey Dodson v Woolworths Group Limited (Unreported, A49673 (Moss V) 3 December 2019)

JUDGMENT OF THE COURT:

  1. The appellant seeks leave to appeal against a decision of the District Court, dismissing her appeal from a decision of an arbitrator under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act).

  2. The appellant injured her back at work, while working for the respondent, on 6 April 2010.  The respondent accepted liability to pay workers' compensation for the appellant's back injuries and paid compensation until a final medical certificate was issued on 19 October 2011.

  3. In 2017, the appellant sought medical treatment for the back pain she was suffering.  She lodged a further claim for workers' compensation, claiming that her symptoms were a recurrence of the injury she had sustained on 6 April 2010.

  4. The appellant's application was heard before an arbitrator on 6 December 2018.  That arbitrator did not deliver a decision.  At a directions hearing on 19 September 2019, the parties agreed…

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AGLC
Dodson v Woolworths Group Limited [2022] WASCA 22
Case
[2022] WASCA 22
Decision Date

CaseChat Overview and Summary

Dodson v Woolworths Group Limited involved a dispute between the appellant and the respondent regarding the appellant's injury sustained in April 2010 and its subsequent impact. The matter was heard in the District Court of Western Australia, where the appellant sought leave to appeal against an arbitrator's decision.

The central legal issues for the court to address were whether the arbitrator had erred in her interpretation of the law and in her handling of evidence, specifically concerning the nature of the appellant's injury, the evaluation of medical opinions, and the findings regarding the appellant's symptoms and pain levels. The court also needed to determine if the matter met the threshold requirements for an appeal under section 247.

The court found that the appellant had not satisfied the criteria for leave to appeal as outlined in section 247. The appellant's arguments did not establish any error of law on the part of the arbitrator that warranted a review by the District Court. The court held that the appellant's grievances did not reach the threshold for an appeal under the statute because the issues raised did not involve significant legal questions or substantial amounts of compensation. Consequently, the appeal was dismissed.

The District Court ordered that the appellant pay the respondent's costs of the appeal, which were assessed at $13,450. This order underscored the court's view that the appeal lacked merit and did not meet the statutory criteria for review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 247 provides, relevantly, as follows:247. Appeal against arbitrator's decision made under Part XI(1)If written reasons for an arbitrator's decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.(2)Subject to subsection (3), the District Court is not to grant leave to appeal unless -(a)in the case of an appeal in which an amount of compensation is at issue -(i)a question of law is involved and the amount at issue in the appeal is both -(I)at least $5 000 or such other amount as may be prescribed by the regulations; and(II)at least 20% of the amount awarded in the decision appealed against;or(ii)a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;and(b)in any other case, a question of law is involved.…(5)An appeal under this section is to be by way of review of the decision appealed against and, except as provided by this Part or section 267, is to be conducted in accordance with the rules of court of the District Court. The appellant sought leave to appeal to the District Court on four grounds:1.The learned Arbitrator erred in law in misdirecting herself and construing that she was required to determine the nature of the appellant[']s April 20l0 injury.2.The learned Arbitrator erred in law by failing to discharge the obligation to act judicially to:(a)Consider relevant evidence and to make proper findings; and(b)Give adequate reasons for decision.3.The learned Arbitrator erred in law in discounting and/or rejecting the relevant opinion evidence of the neurologist Dr Goodheart, the orthopaedic surgeon Mr Skinner and general practitioner Dr Jenkins, without herself carrying out the necessary foundational fact finding analysis/evaluation required by law (see Beer v Duracraft Pty Ltd [2004] WASCA 192).4.The learned Arbitrator erred in law:(a)In only accepting the appellant[']s evidence that she was in pain when that evidence is corroborated by medical and physiotherapy evidence (at [29]). This error also infected the learned Arbitrators conclusions relating to whether the appellant has suffered a recurrence of the April 2010 injury;(b)In making the finding (at [27]) that the most reliable evidence of the appellant[']s symptoms was contemporaneous evidence;(c)In making the finding (at [36]) that the appellant was not experiencing any pain between 14 December 2011 and 18 February 2014, in the absence of any evidence to support that finding and/or without giving any or any adequate reasons;(d)In making the finding (at [38]) that the appellant was not experiencing any pain between February 2014 and April 2017, in the absence of any evidence to support that finding and/or without giving adequate reasons. The primary judge summarised the basis of the appellant's claim:The basis of the appellant's present claim is that she had never fully recovered from the injury in 2010 and the symptoms reported in 2017 were a recurrence or aggravation of the earlier injury.

Ratio Decidendi

Legal Principle Established

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