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
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 This claim was made under the Workers' Compensation and Injury Management Act 1981 (WA) (repealed) (1981 Act), for total incapacity for work resulting from an injury.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]…
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- Case
- [2025] WASCA 128
- Decision Date
CaseChat Overview and Summary
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
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
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Ratio Decidendi
Legal Principle Established
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