Fox v Roy Hill Holdings Pty Ltd - [2019] WADC 171

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   FOX -v- ROY HILL HOLDINGS PTY LTD [2019] WADC 171
CORAM:   QUAIL DCJ
HEARD:   18 NOVEMBER 2019
DELIVERED          :   11 DECEMBER 2019
FILE NO/S:   APP 48 of 2019
BETWEEN:   JAMES DAWSON FOX
Appellant
AND
ROY HILL HOLDINGS PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE WA
Coram:   ARBITRATOR MENGLER
File Number            :   A53483

Catchwords:

Workers' compensation - Appeal from arbitration - Section 247 of the Workers'Compensation and Injury Management Act 1981 (WA) - Question of law - Whether arbitrator erred in law in considering whether injury proved - Whether arbitrator erred in relation to causation of injury- Whether arbitrator made a finding of fact in the absence of evidence supporting such finding

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Leave to appeal denied

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr G R Hancy

Solicitors:

Appellant	:	Not applicable
Respondent	:	Hall & Wilcox (Perth)

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

Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
BHP Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60
Catholic Education Office of WA v Granitto [2012] WASCA 266
Erceg v Galati Nominees Pty Ltd [2016] WASCA 112
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Hawker Pacific Pty Ltd v Lang [2015] WASCA 256
Konings v Commonwealth Bank of Australia [2016] WASCA 122
Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744
Mokta v Metro Meat International Ltd [2005] WASCA 143
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
MTI v SUL [No 2] [2010] WASCA 58
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550
Smart v Prisoner Review Board (WA) [2012] WASC 48
Suleski v Pilbara Iron Company (Services) Pty Ltd [2018] WASCA 147
Van Der Feltz v Legal Practice Board of Western Australia [2017] WASCA 113
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

QUAIL DCJ:

Introduction

The appellant, James Fox, was employed as a truck driver with the respondent, Roy Hill Holdings Pty Ltd (Roy Hill). As an employee Mr Fox was part of an emergency response team (ERT) and required to participate in training and gym based fitness work. On 8 October 2017 Mr Fox was injured during boxing training when he mishit a punching bag.
On 19 June 2018 Mr Fox filed an application for arbitration (Application) in relation to a claim for workers' compensation for his injuries pursuant to the Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA). In written reasons for decision, delivered and published on 16 May 2019, a…

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 171
Decision Date: 11 DECEMBER 2019

CaseChat Overview and Summary

In the case of Fox v Roy Hill Holdings Pty Ltd, the appellant, Mr Fox, sought to appeal a decision made by an arbitrator regarding his workers' compensation claim. The primary issues in the appeal were whether the arbitrator erred in law in considering the proof of injury and the causation of the injury, and whether the arbitrator made a finding of fact without supporting evidence. The dispute centred on whether Mr Fox's symptoms, including pins and needles, were experienced at the time of the accident and whether these symptoms were causally related to the incident.

The court examined the arbitrator's decision and found that the arbitrator correctly summarised the relevant legal principles regarding causation, including the requirement to prove a causal link between the symptoms and the accident. The court noted that the arbitrator did not require a temporal link between the symptomology and the accident, as long as a causal link was established. The court also found that the arbitrator's statement that Mr Fox needed to be satisfied that the symptoms were experienced at the time of the accident was a statement about the evidence required to establish factual causation and did not imply any assumption or pre-determination by the arbitrator. The court held that the arbitrator's decision did not disclose any error of law.

The court also addressed the second ground of appeal, which was abandoned by Mr Fox during the hearing. Even if the court had found an error of law in the second ground, the outcome of the hearing and any review on appeal would not have been different. The court explained that the witness, Mr Owens, had not mentioned any injury to the neck or pins and needles symptoms in his statements and evidence. The arbitrator found that Mr Owens was an honest witness but that his second statement was more favourable to Mr Fox and indicated a more serious or higher level of hurt or concern expressed by Mr Fox after the gym work on 8 October 2017 than his earlier statement.

The court dismissed the appeal, finding no error of law in the arbitrator's decision. The final orders of the court were to affirm the decision of the arbitrator and to dismiss the appeal with costs to be paid by the appellant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Before making his factual findings, the Arbitrator correctly summarised the law concerning causation of injury[35] and quoted the well-established principles from Ansett Transport Industries (Operations) Pty Ltd v Srdic.[36] He went on to say that Mr Fox 'must identify the pain and/or other relevant symptoms experienced by him during, immediately following or which were causally related to the accident'[37] (emphasis added). The use of the word 'or' after the words 'immediately following' shows that the Arbitrator correctly understood the law and knew that Mr Fox did not need to prove a temporal link between his symptomology and the accident, so long as a causal link was proved.[35] Arbitrator's decision [42] ‑ [57].[36] Ansett Transport Industries (Operations) Pty Ltd v Srdic (1983) 66 FLR 41.[37] Arbitrator's decision [46]. The sentence in the Arbitrator's decision that is complained of commences with the words: 'To be persuaded that the accident caused such an injury, I would require …'. Clearly, thereby the Arbitrator was referring specifically to Mr Fox's 'accident' and his resulting 'injury' and not stating a general proposition or making an assumption that symptomology must coincide with injury.[38] [38] Arbitrator's decision [70]. What the Arbitrator found was that he needed to be satisfied the pins and needles symptoms which Mr Fox had reported to medical practitioners were in fact experienced at the time of the accident. As the Arbitrator explained in some detail, he rejected Mr Fox's evidence that those symptoms had been experienced by him then, notwithstanding that Mr Fox told various medical practitioners they had been. Read properly, the sentence complained of is a statement about the evidence required to establish factual causation of injury. It does not imply any assumption or pre‑determination by the Arbitrator and discloses no error of law. Ground one of the appeal fails. At the hearing of the appeal Mr Fox abandoned ground two of his appeal. That was a proper concession given that, even if I were satisfied that ground two disclosed an error of law by the Arbitrator, the outcome of the hearing before the Arbitrator and any review on appeal would be no different. Notwithstanding the concession I will explain briefly why ground two does not involve any error of law and must fail. In his statement dated 21 November 2017, Mr Owens said that 'after the training James was saying that his arm/shoulder was very sore'.[39] In his second statement dated 23 May 2018, Mr Owens stated that 'at the end of the session James Fox said to me that he had really hurt his left arm and shoulder during the session'.[40] In his statements and evidence, Mr Owens said nothing about Mr Fox having complained about an injury to his neck or experiencing pins and needles symptoms.[39] Arbitrator's decision [16].[40] Arbitrator's decision [17]. The Arbitrator found that Mr Owens was an honest witness but that his second statement was more favourable to Mr Fox and 'indicated a more serious or higher level of hurt or concern expressed by the applicant (Mr Fox) after the gym work on 8 October 2017 than did his earlier statement of 21 November 2017'.[41] [41] Arbitrator's decision [18].