Haddad v GJ Formwork Pty Ltd (in Liq) - [2007] NSWWCCPD 156

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Haddad v GJ Formwork Pty Ltd (in Liq) [2007] NSWWCCPD 156

APPELLANT: Mousa Said Haddad

FIRST RESPONDENT:  GJ Formwork Pty Ltd (in Liq.)
SECOND RESPONDENT:  Raymond Boumoussa
THIRD RESPONDENT:  WorkCover NSW

RESPONDENT INSURER:  QBE Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC7242-06
DATE OF ARBITRATOR’S DECISION:          16 August 2006 (amended 29 September 2006)
DATE OF APPEAL DECISION:  16 July 2007
SUBJECT MATTER OF DECISION: Definition of ‘worker’; section 4 Workplace Injury Management and Workers Compensation Act 1998; weight of evidence, and credit.

PRESIDENTIAL MEMBER: Acting Deputy President Rod Weaver
HEARING:On the papers
REPRESENTATIONS: Appellant: Stacks
First Respondent: QBE In-House Legal Dept
Second Respondent: No appearance

Third Respondent: WorkCover NSW

ORDERS MADE ON APPEAL: The decision of the Arbitrator 16 August 2006 amended 29 September 2006, is confirmed.

No order as to costs of the Appeal.

BACKGROUND TO THE APPEAL
1. On 12 September 2006 Mousa Said Haddad (‘the Appellant Worker/ Mr Haddad’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 16 August 2006 and amended 29 September 2006.

2. The respondents to the appeal are GJ Formwork Pty Ltd (In Liquidation) (‘the company/GJ Formwork’), Raymond Boumoussa (‘Mr Boumoussa’) and WorkCover NSW.

3. Mr Haddad alleges that he suffered a penetrating injury to his right eye in or about November 2002 whilst removing nails from planks of wood with a claw hammer in the course of his employment with either, GJ Formwork, or alternatively, Mr Boumoussa. Mr Haddad alleges in his claim form that at the time of the accident he was working on a building site at “Canlly Vall” (sic). In his statement of 12 July 2005 he says the work site was at Baulkham Hills. There was conflicting evidence before the Arbitrator as to the location of the site, a matter which is referred to later. Mr Haddad remained at the site until “knock off time” and then returned to the company's depot in Belmore before, apparently, driving himself to Canterbury Hospital. Mr Haddad was then transferred to Royal Prince Alfred Hospital (‘RPA’), where he underwent surgery to his eye. The medical evidence from RPA shows that, on or about 1 November 2002, Mr Haddad suffered a serious eye injury that has left him with a significant impairment.

4. Mr Haddad alleges that at the time he suffered the injury to his eye, he had only been working on the site for two or three days. A few weeks after he suffered his injury, Mr Haddad claims he was “paid cash for the work” which he thinks was “about $350”. Mr Haddad does not state how he received that cash payment, but the evidence of his friend, Elie Keirouz, was that a week or two after Mr Haddad suffered his injury he was given “about $300 in cash” by, Mr Boumoussa, to give to Mr Haddad.

5.…

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: [2007] NSWWCCPD 156
Decision Date: 16 July 2007

CaseChat Overview and Summary

The Workers Compensation Commission received an appeal by Mousa Said Haddad against a decision of the Commission dated 16 August 2006 and amended on 29 September 2006, which was made by an Arbitrator. The appeal was brought against GJ Formwork Pty Ltd (in liquidation), Raymond Boumoussa, and WorkCover NSW, with QBE Workers Compensation (NSW) Ltd as the respondent insurer. The Appellant, Mr Haddad, sought compensation for an eye injury he claimed to have suffered in November 2002 while working for either GJ Formwork or Mr Boumoussa. The primary issue before the court was whether Mr Haddad was employed by one or more of the respondents at the time of his injury, thereby qualifying him as a 'worker' under section 4 of the Workplace Injury Management and Workers Compensation Act 1998.

The Arbitrator's decision hinged on the credibility and consistency of the evidence presented. The Appellant argued that he was employed by Mr Boumoussa and that his employment was evidenced by cash payments he received following his injury. However, the evidence was conflicting, with Mr Boumoussa and other witnesses denying any employment relationship with Mr Haddad. The Arbitrator found that the discrepancies in the evidence, particularly regarding the location of the worksite and the presence of certain individuals at the time of the accident, undermined the Appellant's claim. The Arbitrator concluded that Mr Haddad had not provided sufficient evidence to establish a contract of employment, and thus, he was not a 'worker' at the time of the injury.

The Acting Deputy President of the Workers Compensation Commission confirmed the Arbitrator's decision, finding that the Arbitrator had correctly considered the evidence and applied the law. The President found no legal or factual error in the Arbitrator's determination and held that the Appellant's grounds of appeal were without merit. The decision of the Arbitrator, dated 16 August 2006, as amended on 29 September 2006, was upheld, and no order was made as to the costs of the appeal.

Orders