Fawkes v Swan Transit Services Pty Ltd - [2019] WADC 168

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   FAWKES -v- SWAN TRANSIT SERVICES PTY LTD [2019] WADC 168
CORAM:   STAUDE DCJ
HEARD:   14 OCTOBER 2019
DELIVERED          :   3 DECEMBER 2019
FILE NO/S:   APP 51 of 2019
BETWEEN:   JOHN FAWKES
Applicant
AND
SWAN TRANSIT SERVICES PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE
Coram:   MS V MOSS
File Number             :   A53097

Catchwords:

Workers compensation - Appeal from arbitrator - Stress related disease - Whether arbitrator erred by not applying test in Comcare v Mooi - Whether finding that worker had not proved that he suffered a disease was against the evidence - Whether finding that worker's employment did not contribute to a significant degree was against the evidence - Whether arbitrator was entitled to reject uncontroversial medical evidence

Legislation:

The Workers' Compensation and Injury Management Arbitration Rules 2011 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Leave to appeal granted
Appeal allowed
Matter remitted for further hearing before a different arbitrator

Representation:

Counsel:

Applicant	:	Mr A J Stewart
Respondent	:	Mr P E Jarman

Solicitors:

Applicant	:	Chapmans Barristers & Solicitors
Respondent	:	Sparke Helmore Lawyers

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

Beer v Duracraft Pty Ltd [2004] WASCA 192
Cape Australia Holdings Pty Ltd v Burridge [2019] WADC 105
Comcare v Mooi [1996] FCA 508; (1996) 69 FCR 439; (1996) 42 ALD 495; (1996) 137 ALR 690; (1996) 23 AAR 160
Graeme Wheildon Pty Ltd t/as Mirtza Services v Cokic (Unreported, CM(WA), 116/02, 16 December 2002)
Mokta v Metro Meat International Ltd [2005] WASCA 143
Pollock v Wellington (1996) 15 WAR 1
Todorovic v Amec Services (Unreported, CM(WA), 23/01, 16 August 2001)

STAUDE DCJ:

Introduction

This is an appeal from the decision of an arbitrator dismissing the appellant's claim for workers' compensation, on the basis that the arbitrator was not satisfied that the appellant had contracted a disease, as described in par (c) of the definition of 'injury' in s 5(1) of the Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA).
I will refer to the parties by name or as the worker and the employer. I will refer to the learned arbitrator's reasons for decision delivered 22 May 2019 as the Reasons.
Mr Fawkes' main contentions in this appeal are twofold.
The first argument is that, in dismissing his claim on the basis that the medical evidence did not prove that he suffered a disease in the form of a mental ailment or disorder, the learned arbitrator erred by misinterpreting the statutory definition of 'disease' and failing to apply the test authorised by Comcare v Mooi [1996] FCA 508; (1996) 69 FCR 439; (1996) 42 ALD 495; (1996) 137 ALR 690; (1996) 23 AAR 160, that is, whether he sustained a condition, regardless of its diagnostic label, that is 'outside the boundaries of normal mental functioning and behaviour'.
The second is that the arbitrator erred in her provisional finding that the…

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: [2019] WADC 168
Decision Date: 3 DECEMBER 2019

CaseChat Overview and Summary

The case of Fawkes v Swan Transit Services Pty Ltd involved a dispute concerning workers' compensation. The worker, Mr. Fawkes, sought compensation for a stress-related disease allegedly caused by his employment. The matter was heard in the Federal Circuit Court of Australia, with the appeal stemming from an initial decision made by an arbitrator.

The court was tasked with determining whether the arbitrator had erred in not applying the correct legal test as set out in the Comcare v Mooi decision. It was also necessary to assess whether the arbitrator's conclusion that Mr. Fawkes had not proven he suffered from a disease was against the evidence presented. Additionally, the court needed to decide if the arbitrator's finding that Mr. Fawkes' employment did not contribute to a significant degree to his condition was against the evidence. Finally, the court considered whether the arbitrator was entitled to reject certain uncontroversial medical evidence.

The court found that the arbitrator did indeed err by not applying the appropriate legal test from Comcare v Mooi. It was held that the arbitrator's finding that Mr. Fawkes had not proved his disease was against the evidence, as the medical evidence provided was sufficient to establish the condition. Furthermore, the court determined that the arbitrator's conclusion regarding the contribution of Mr. Fawkes' employment to his disease was also against the evidence. The court did not find that the arbitrator was entitled to reject the uncontroversial medical evidence, as it was relevant and should have been considered in the decision-making process. The appeal was allowed, and the matter was remitted back to the arbitrator for reconsideration in light of the court's findings.

Orders