Legal Research
Cases
Eraring Energy v Graf

Eraring Energy v Graf

Case [2007] NSWWCCPD 6 9 January 2007

Res Judicata

Issue Estoppel

Apportionment of Liability

Causation

Compensatory Damages

Admissibility of Evidence

Statutory Interpretation

Workers Compensation Law

Type to search within this case.

WORKERS COMPENSATION COMMISSION

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

CITATION:Eraring Energy v Graf and anor [2007] NSWWCCPD 6
APPELLANT:  Eraring Energy
FIRST RESPONDENT:  Ferdinand Joseph Graf
SECOND RESPONDENT:  Macquarie Generation
APPELLANT’S INSURER:  Self-Insured
SECOND RESPONDENT’S INSURERS:          CGU Workers Compensation (NSW) Limited from 1 January 1996 to 29 February 2000

Allianz Australia Workers Compensation (NSW) Limited from 1 March 2000

FILE NUMBER:  WCC8390-06
DATE OF ARBITRATOR’S DECISION:          24 August 2006
DATE OF APPEAL DECISION:  9 January 2007
SUBJECT MATTER OF DECISION: Res Judicata; issue estoppel; effect of prior decision by Compensation Court of NSW; parking expenses; sections 60(2)(a) and 64 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Johnston Robinson Legal
FirstRespondent:      Slater & Gordon
Second Respondent:  Sparke Helmore

ORDERS MADE ON APPEAL: The Arbitrator’s decision of 24 August 2006 is revoked and the following orders made in its place:
1.That the First Respondent is to make weekly payments to the Applicant under section 40 of the Workers Compensation Act 1987 for the period from 24 June 2005 to date and continuing in accordance with the provisions of the Act at the rate prescribed under sections 37(1)(a) for a worker and 37(1)(c)(i) for 1 dependent child, as adjusted;
2.That the First Respondent pay the Applicant up to $23,413.24 under section 60 of the Act for the Applicant’s medical and related expenses incurred to date for:
a.physiotherapy treatment from Stephen Armstrong Physiotherapy Pty Ltd;
b.treatment from Dr Nanda of the Greta Medical Centre;
c.related travel expenses for his attendances at Stephen Armstrong Physiotherapy Pty Ltd and Greta Medical Centre consisting of his costs of travel by private motor vehicle calculated in accordance with the rate set under s64(b) and his parking fees,

upon production of accounts and receipts and other documents to verify these expenses being incurred;
3.That there be an award for the Second Respondent.
4.That the First Respondent pay the Applicant’s costs as agreed or assessed.
5.The matter is certified complex.

The Second Respondent (Macquarie) is to pay the Appellant Employer’s (Eraring) and Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 12 September 2006 Eraring Energy (‘the Appellant Employer/Eraring’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 24 August 2006.

The First Respondent to the Appeal is Ferdinand Joseph Graf (‘the Respondent Worker/Mr Graf’). The Second Respondent to the Appeal is Macquarie Generation (‘the Second Respondent/Macquarie’). Before the Arbitrator Eraring was Second Respondent and Macquarie the First Respondent.

Mr Graf was born on 2 March 1949 and started work with Eraring (then known as ‘Elcom’) as a fitter and turner in 1970. He resigned in 1971 and worked in other areas until he returned to work with Eraring in 1977 at the Lidell Power Station. He remained with Eraring until 1 March 1996 when his employment was transferred to Pacific Power, which later changed its name…

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 Eraring Energy v Graf

Details

AGLC: Eraring Energy v Graf [2007] NSWWCCPD 6
Case: [2007] NSWWCCPD 6
Decision Date: 9 January 2007

CaseChat Overview and Summary

In this case, Eraring Energy (the Appellant) sought to appeal against a decision of the Workers Compensation Commission made by an Arbitrator, in which Ferdinand Joseph Graf (the Respondent) was awarded compensation. The appeal was heard by Deputy President Bill Roche, who found that the Arbitrator had erred in several respects and revoked the Arbitrator's decision, making new orders in its place. The issues before the Deputy President were whether the Arbitrator erred in failing to find a res judicata estoppel due to the determination of issues by a prior decision, his interpretation of the law relating to issue estoppel, determining that as the prior decision did not make an express finding in respect of every fact leading to, or relevant to her final conclusion of fact he was not precluded from making findings contrary to her Honour on the same evidence, effectively overruling, reviewing and/or reconsidering the decision of the prior decision when there was no change in circumstances sufficient to support a review of that decision, and in finding that Mr Graf was entitled to recover the cost of parking expenses in addition to the claim for the 'per km' allowance for using a private motor vehicle as set out in section 64 of the Workers Compensation Act 1987.

The Deputy President found that the Arbitrator was in error in failing to uphold Eraring's argument on issue estoppel and in apportioning liability contrary to the findings made by the prior decision. The Deputy President also found that the Arbitrator made no error of fact, discretion or law in allowing the cost of parking in the present case. The Deputy President revoked paragraphs one and two of the Arbitrator's decision and made new orders in its place, including that the First Respondent is to make weekly payments to the Applicant under section 40 of the Workers Compensation Act 1987 for the period from 24 June 2005 to date and continuing in accordance with the provisions of the Act at the rate prescribed under sections 37(1)(a) for a worker and 37(1)(c)(i) for 1 dependent child, as adjusted, and that the First Respondent pay the Applicant up to $23,413.24 under section 60 of the Act for the Applicant’s medical and related expenses incurred to date for physiotherapy treatment from Stephen Armstrong Physiotherapy Pty Ltd, treatment from Dr Nanda of the Greta Medical Centre, and related travel expenses for his attendances at Stephen Armstrong Physiotherapy Pty Ltd and Greta Medical Centre consisting of his costs of travel by private motor vehicle calculated in accordance with the rate set under s64(b) and his parking fees. The Deputy President also certified the matter as complex and ordered that the Second Respondent (Macquarie) is to pay the Appellant Employer’s (Eraring) and Respondent Worker’s costs of the appeal.

Orders