Gardener v Sauer's Bakehouse Pty Ltd - [2018] NSWWCCPD 49

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Gardener v Sauer’s Bakehouse Pty Ltd [2018] NSWWCCPD 49
APPELLANT:	Anthony Gardener
RESPONDENT:	Sauer’s Bakehouse Pty Ltd
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-2404/18
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	28 June 2018
DATE OF APPEAL DECISION:	14 November 2018
SUBJECT MATTER OF DECISION:	Challenge to an arbitrator’s factual findings; application of the principles in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Law Partners Personal Injury Lawyers
Respondent:	Hicksons
ORDERS MADE ON APPEAL:	1. The Arbitrator’s decision dated 28 June 2018 is confirmed.

INTRODUCTION AND BACKGROUND

Anthony Gardener (the appellant) was employed by Sauer’s Bakehouse Pty Ltd (the respondent) as a co-ordination officer/manager, when he fell from a ladder on 29 July 2016. The respondent accepted liability for injury to the lumbar spine in the incident. Professor van Gelder performed a right L4/5 discectomy on 3 April 2017, and a right L4/5 decompression and discectomy on 20 September 2017.[1] An MRI scan on 12 August 2017 demonstrated bilateral femoral head avascular necrosis. Dr Chin, orthopaedic surgeon, sought approval from the respondent’s insurer to carry out a right total hip replacement. The insurer declined liability for injury to the hips in a s 74 notice dated 6 December 2017. It denied that the appellant injured his hips on 29 July 2016, and that the treatment was reasonably necessary as a result of the workplace injury.[2] This appeal is against an award entered by the Arbitrator in favour of the respondent, on the basis that the condition of the hips did not result from the incident on 29 July 2016. The appeal fails for reasons which follow.
[1] Professor van Gelder’s reports, 31 August 2017 and 25 September 2017, at Application to Resolve a Dispute (ARD), pp 22 and 23.
[2] ARD, p 217.

THE ARBITRAL PROCEEDINGS AND DECISION

The Application to Resolve a Dispute was registered on 10 May 2018. The alleged injury was the fall on 29 July 2016. The claim was one pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), involving $3,546.25 for past treatment, and $40,000 (pursuant to s 60(5) of the 1987 Act) for future treatment for a “total right hip replacement recommended by treating specialist Dr Chin”.
The matter was listed for arbitration hearing on 20 June 2018. Both parties were represented by counsel, Mr Morgan for the appellant and Mr Halligan for the respondent. There were no applications to adduce oral evidence. Both counsel made submissions, and the Arbitrator reserved his decision. The Arbitrator delivered his decision orally on 26 June 2018. The Certificate of Determination dated 28 June 2018 recorded that “[t]here be an award for the respondent”. The Arbitrator’s reasons were transcribed.[3]
[3] Transcript 26.6.18 (T2).
The Arbitrator briefly described the issues. He noted it was “common ground that the proposed surgery of 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: [2018] NSWWCCPD 49
Decision Date: 14 November 2018

CaseChat Overview and Summary

The applicant, Mr. Gardener, filed an application to challenge the decision of an arbitrator who had resolved a dispute between him and Sauer’s Bakehouse Pty Ltd, the respondent. The arbitrator had awarded Mr. Gardener a sum of money based on findings of fact and law, which Mr. Gardener contested. The case was heard in the Industrial Court of New South Wales. The primary issue before the court was whether the arbitrator’s findings of fact were so unreasonable as to justify the court intervening. This was assessed against the principles established in the case of Raulston v Toll Pty Ltd, where it was held that an arbitrator’s factual findings should not be set aside lightly.

The court considered the arbitrator’s decision in light of the Raulston principles, which require that the court should only intervene if the arbitrator’s findings are palpably wrong or cannot be supported by the evidence. The court scrutinised the evidence presented before the arbitrator and the conclusions drawn from that evidence. It found that the arbitrator’s findings were supported by the evidence and that there was no basis to conclude that they were palpably wrong. The court further noted that the arbitrator had carefully considered the evidence and had applied the relevant legal principles correctly. As a result, the court confirmed the arbitrator’s decision.

Orders

Orders of the court

1. The Arbitrator’s decision dated 28 June 2018 is confirmed.

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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