Ekes v EDS Australia Pty Ltd - [2006] NSWWCCPD 120

WORKERS COMPENSATION COMMISSION

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

CITATION:Ekes v EDS Australia Pty Ltd [2006] NSWWCCPD 120
APPELLANT:  Paul Ekes
RESPONDENT:  EDS Australia Pty Ltd
INSURER:Vero Workers Compensation (NSW) Limited
FILE NUMBER:  WCC4754-05
DATE OF ARBITRATOR’S DECISION:          9 August 2005
DATE OF APPEAL DECISION:  15 June 2006
SUBJECT MATTER OF DECISION: Sections 9A and 11 Workers Compensation Act 1987; place of employment; abnormal risk of injury; adequacy of reasons
PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Buttar Caldwell & Co
Respondent:   Vandervords

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 9 August 2005 is confirmed.

No order is made as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 5 September 2005 Paul Ekes (‘the Appellant Worker/Mr Ekes’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 9 August 2005.

The Respondent to the Appeal is EDS Australia Pty Ltd (‘the Respondent Employer/EDS’).

Mr Ekes started work for the Commonwealth Bank in 1993 as a computer operator and was transferred to EDS in October 1997 where he continued work in that capacity. On 12 November 2001 he was taking his usual afternoon coffee break when he engaged in a foot race with a work colleague on the balcony of the Respondent Employer’s premises. In the course of that race he fell heavily and sustained injury to his head, neck, left knee and left shoulder, and abrasions to his left elbow, and hands.

On 29 March 2005 he filed an Application to Resolve a Dispute (‘the Application’) in the Commission claiming weekly compensation from 1 March 2003 to date and continuing plus lump sum compensation under sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).

The claim was heard and determined against Mr Ekes in Arbitration on 8 August 2005.

Essentially the Arbitrator found that the provisions of section 11 of the 1987 Act did not apply because the injury was sustained at the Appellant Worker’s ‘place of employment’. In the alternative, Mr Ekes had subjected himself to an ‘abnormal risk of injury’ by participating in a running race on a balcony which was “narrow, obstructed and two storeys above the ground” (see transcript page 24 line 9).

In the alternative, whilst the Appellant Worker had sustained his injury in the course of his employment, his employment was not a substantial contributing factor to the injury under section 9A of the 1987 Act.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 9 August 2005 records the Arbitrator’s orders as follows:

“1.That, by consent, the Application to Resolve a Dispute be amended in Part 3 as follows:
(a) The ‘Date of Injury’ be changed to “on or about 12.11.2001”; and
(b) The following be inserted in ‘Injury Description’, “Head, neck, left shoulder and arm, and left knee”.

2.The Application to admit late documents, namely a further…

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: [2006] NSWWCCPD 120
Decision Date: 15 June 2006

CaseChat Overview and Summary

In the case of Ekes v EDS Australia Pty Ltd, the Appellant, Paul Ekes, sought to appeal against a decision of the Arbitrator in the Workers Compensation Commission, which dismissed his claim for compensation. The Respondent, EDS Australia Pty Ltd, was the employer of Mr Ekes at the time of his injury. The appeal was heard by Acting Deputy President Bill Roche on the papers. The primary issues in the appeal were whether the Arbitrator erred in determining that the injury was sustained at the Appellant's place of employment, that the Appellant subjected himself to an abnormal risk of injury, that employment was not a substantial contributing factor to the injury, and whether the Arbitrator gave adequate reasons for his decision.

The Acting Deputy President found that the Arbitrator was correct in his determination that the injury occurred at the Appellant's place of employment, as the balcony where the injury took place was considered part of the employer's premises. The Acting Deputy President also found that the Arbitrator's conclusion that the Appellant subjected himself to an abnormal risk of injury by engaging in a foot race on the balcony was justified. In addition, the Acting Deputy President held that the Arbitrator was correct in finding that employment was not a substantial contributing factor to the injury, as the injury was caused by the unauthorised foot race, which was not related to the Appellant's employment.

Finally, the Acting Deputy President found that the Arbitrator's reasons were adequate and sufficient, and that they demonstrated the Arbitrator's proper exercise of his statutory duty in determining the application. Therefore, the decision of the Arbitrator was confirmed, and no order was made as to the costs of the appeal.

Orders