Ensign Services (Aust) Pty Ltd v Pine - [2011] NSWWCCPD 42

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Ensign Services (Aust) Pty Ltd v Pine [2011] NSWWCCPD 42
APPELLANT:		Ensign Services (Aust) Pty Ltd
RESPONDENT:		Sa Pine
INSURER:		QBE Insurance (Australia) Ltd
FILE NUMBER:		A1-9214/10
ARBITRATOR:	Ms Jennifer Scott
DATE OF ARBITRATOR’S DECISION:		5 April 2011
DATE OF APPEAL DECISION:		11 August 2011
SUBJECT MATTER OF DECISION:		Sufficiency of reasons for decision; s 17(1)(a)(ii) of the Workers Compensation Act 1987; employment to the nature of which the injury was due
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Astridge & Murray
Respondent:	Peter Erman Solicitors
ORDERS MADE ON APPEAL:		Paragraph one of the Arbitrator’s decision made in Certificate of Determination dated 5 April 2011 is revoked and the following determination is made in its place: “1. The applicant received injury being loss of hearing which is of such a nature as to be caused by a gradual process, and the applicant’s employment with the respondent was the last employment to the nature of which the injury was due before he gave notice of injury. The deemed date of injury is 8 November 2004, the last day on which the applicant was so employed.” Paragraphs two and three of the determination in Certificate of Determination dated 5 April 2011 are confirmed. The appellant is to pay Mr Pine’s costs of this appeal.

BACKGROUND

Mr Sa Pine was employed by Ensign Services (Aust) Pty Ltd (the appellant) as a labourer/washer between 7 February 2001 and 8 November 2004. The appellant conducted the business of a commercial laundry in Punchbowl, New South Wales. In June 2010, Mr Pine claimed from the appellant lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of alleged hearing loss. It was Mr Pine’s allegation that the appellant was the last employer to employ him in employment to the nature of which the alleged hearing loss was due within the meaning of s 17 of the 1987 Act.
The appellant’s insurer, by letter dated 4 August 2010, gave notice to Mr Pine of its decision to decline liability in respect of his claim. That notice was given pursuant to the provisions of s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Particulars concerning the reason for rejection of the claim were provided in that notice which included a denial of injury within the meaning of s 4 of the 1987 Act. It was also asserted in that notice that the appellant was “not the last noisy employer with whom [Mr Pine was] employed”. The notice expressly stated that the appellant “is not a noisy employer as required by Section 17 of [the 1987 Act]”. Other grounds for rejection of the claim were particularised, which are not relevant to the matters raised on this appeal.
Mr Pine filed an Application to Resolve a Dispute with the Commission on 11 November 2010.…

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 Ensign Services (Aust) Pty Ltd v Pine

Details

AGLC: Ensign Services (Aust) Pty Ltd v Pine [2011] NSWWCCPD 42
Case: [2011] NSWWCCPD 42
Decision Date: 11 August 2011

CaseChat Overview and Summary

Ensign Services (Aust) Pty Ltd sought to appeal a decision made by an Arbitrator regarding the determination of the date of an injury sustained by Mr Pine during his employment. The injury in question was a loss of hearing caused by a gradual process. The dispute centred on whether the Arbitrator's determination was correct in identifying the last employment to the nature of which the injury was due and setting the deemed date of injury as 8 November 2004. The Court of Appeal was tasked with reviewing the sufficiency of reasons provided for the Arbitrator’s decision under section 17(1)(a)(ii) of the Workers Compensation Act 1987.

The primary legal issue was whether the Arbitrator provided adequate reasons for determining the deemed date of injury, specifically if the injury was indeed caused by a gradual process and if Mr Pine’s employment with Ensign Services (Aust) Pty Ltd was the last employment to the nature of which the injury was due before he gave notice of injury. The Court had to assess if the reasons were clear and sufficient, allowing for a proper understanding of the decision-making process.

The Court found that the Arbitrator’s decision lacked sufficient reasoning to justify the determination of the deemed date of injury. The reasons provided did not adequately explain the process by which the Arbitrator reached the conclusion that the injury was caused by a gradual process and that Mr Pine’s employment with Ensign Services (Aust) Pty Ltd was the last employment to the nature of which the injury was due. Consequently, the Court revoked the first paragraph of the Arbitrator’s decision and substituted it with a new determination, setting the deemed date of injury as 8 November 2004, the last day on which Mr Pine was employed by the respondent. The remaining paragraphs of the Arbitrator’s decision were confirmed. Additionally, the appellant was ordered to pay Mr Pine’s costs of this appeal.

Orders

Orders of the court

Paragraph one of the Arbitrator’s decision made in Certificate of Determination dated 5 April 2011 is revoked and the following determination is made in its place:

“1. The applicant received injury being loss of hearing which is of such a nature as to be caused by a gradual process, and the applicant’s employment with the respondent was the last employment to the nature of which the injury was due before he gave notice of injury. The deemed date of injury is 8 November 2004, the last day on which the applicant was so employed.”

Paragraphs two and three of the determination in Certificate of Determination dated 5 April 2011 are confirmed.

The appellant is to pay Mr Pine’s costs of this 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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