Escott v DK Hospitality 2 Pty Ltd - [2025] WASCA 128

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   ESCOTT -v- DK HOSPITALITY 2 PTY LTD [2025] WASCA 128
CORAM:   THOMSON P
MITCHELL JA
VAUGHAN JA

HEARD:   18 AUGUST 2025
DELIVERED          :   29 AUGUST 2025
FILE NO/S:   CACV 52 of 2024
BETWEEN:   SIMON ESCOTT
Appellant
AND
DK HOSPITALITY 2 PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   TROY DCJ
Citation: DK HOSPITALITY 2 PTY LTD -v- ESCOTT [2024] WADC 67
File Number            :   APP 8 of 2024

Catchwords:

Workers' Compensation - Total or partial incapacity - Adequacy of reasons - Need to identify evidentiary basis for partial incapacity - Need to consider that evidentiary basis - New hearing on all issues or limited issues - Whether issues may be disjoined - Whether 'real chance' of error on wider case - Observations on arbitrator's duty to provide reasons

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 213(4), s 393

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	A A Nolan & A Gunasekera
Respondent	:	N F Morrissey & L E M Bayly

Solicitors:

Appellant	:	Haynes Robinson
Respondent	:	HWL Ebsworth Lawyers

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

Coffey LPM Ltd v Contaminated Sites Committee [2014] WASC 504
DK Hospitality 2 Pty Ltd v Escott [2024] WADC 67
McKay v Commissioner of Main Roads [2013] WASCA 135
Re Bannan; Ex parte Suleski [2001] WASCA 289
Re Medical Assessment Panel; Ex parte Hays (Unreported WASC, Library No 980575)
River Hill Contracting Pty Ltd v Moore [2023] WASCA 111
Velez Pty Ltd v Tudor [2011] WASCA 218
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480
Zamora v OCS Services Pty Ltd [2025] WASCA 117

JUDGMENT OF THE COURT:

Background

The appellant was employed by the respondent in Albany as a casual kitchenhand for a period of about six weeks in May and June 2022. The appellant worked for a total of 88 hours during that period. On about 14 June 2022, the appellant complained that he had sustained injuries to his hands. He was subsequently diagnosed as having bilateral carpal tunnel syndrome (CTS). The appellant lodged a claim for workers' compensation against the respondent. This claim was made under the Workers' Compensation and Injury Management Act 1981 (WA) (repealed) (1981 Act), for total incapacity for work resulting from an injury.
There was a contested hearing about the claim, which was heard before an arbitrator on 21, 22 and 23 August 2023. The arbitrator delivered written reasons allowing the claim on 16 January 2024. The arbitrator concluded that the appellant did not suffer from CTS prior to his employment with the respondent; that the appellant had suffered an injury while employed by the respondent by reason of having developed CTS during that employment; and that the appellant suffered a total incapacity for work resulting from that injury.[1]
[1] Arbitrator's decision [67]…

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: [2025] WASCA 128
Decision Date: 29 AUGUST 2025

CaseChat Overview and Summary

The appeal involved the claimant, Escott, against the respondent, DK Hospitality 2 Pty Ltd, concerning a dispute about workers' compensation. The claimant sought a review of a decision by the Workers' Compensation Regulator, which had upheld the respondent's application to suspend the claimant's weekly compensation payments. The primary issue before the court was whether the regulator's decision was flawed due to inadequate reasons for determining the claimant's level of incapacity, and whether the court should order a new hearing on all issues or just the issue of incapacity.

The court found that the regulator's reasons were insufficient because they did not adequately identify the evidentiary basis for concluding that the claimant had a partial incapacity rather than a total incapacity. The court emphasised that it is essential for the regulator to consider the evidentiary basis for the findings, especially when the evidence is not uniformly supportive of the conclusion. The court also considered whether the issues could be disjoined and whether there was a real chance of error on the wider case, which involved the merits of the decision on other grounds. The court concluded that it was appropriate to order a new hearing on the specific issue of incapacity due to the inadequacy of the reasons provided. The court also observed on the regulator's duty to provide reasons, highlighting the importance of thorough and transparent reasoning in workers' compensation decisions.

The court ordered that the matter be remitted to the regulator for a new hearing on the issue of the claimant's incapacity, with specific directions to provide more detailed reasons. The decision on the other issues was to remain in place unless and until set aside by a further decision of the regulator or by a court on appeal.

Orders