Hancock v Holman Industries Pty Ltd

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Hancock v Holman Industries Pty Ltd [2019] NSWWCCPD 16
APPELLANT:	Robert Hancock
RESPONDENT:	Holman Industries Pty Ltd
INSURER:	GIO Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-3995/18
ARBITRATOR:	Ms J Toohey
DATE OF ARBITRATOR’S DECISION:	15 November 2018
DATE OF APPEAL DECISION:	24 April 2019
SUBJECT MATTER OF DECISION:	Breach of procedural fairness: application of Muin v Refugee Review Tribunal [2002] HCA 30; 190 ALR 601; 76 ALJR 966; error in fact-finding
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Brydens Lawyers Pty Ltd
Respondent:	Hunt & Hunt Lawyers
ORDERS MADE ON APPEAL:	1.     The Certificate of Determination dated 15 November 2018 is revoked. 2.     The matter is remitted for re-determination by another Arbitrator.

INTRODUCTION AND BACKGROUND

1. Robert Hancock (the appellant) was employed by Holman Industries Pty Ltd (the respondent) as a sales representative and merchandiser. His duties largely involved dealing with Bunnings stores, through which much of the product of the respondent (which was based in Western Australia) was marketed. The appellant’s pleaded injuries were to the left knee (in an incident at a Bunnings store on 18 May 2015) and the lumbar spine (in the incident on 18 May 2015, and as a consequential condition resulting from altered gait associated with the left knee injury).[1] The appellant underwent surgery to the left knee (arthroscopic partial meniscectomy) on 13 October 2015, and fusion at L4/5 in July 2017. The appellant also developed a deep vein thrombosis and pulmonary embolism following the knee surgery.

   [1] Application to Resolve a Dispute registered 3 August 2018 (ARD), p 5.

2. There were prior proceedings (No 2374 of 2018), involving the same subject matter, that were discontinued on 15 June 2018, following a telephone conference on 14 June 2018 between the parties. The notes of Dr Ong (the appellant’s general practitioner) showed imaging of the lumbosacral spine and left knee dating from prior to the injury of 18 May 2015. It appears that the appellant advised at that point that there was a prior injury relating to the same body parts, which was not reported. This was not addressed in the medical evidence. Those proceedings were discontinued so any impact of the earlier incident could be addressed. The parties (and their solicitors) were the same in these earlier proceedings as in the current proceedings.

3. The ARD in the current proceedings claimed medical expenses (including the cost of the surgical procedures) and weekly compensation. As the matter was ultimately contested, the respondent disputed the occurrence of the alleged injuries and consequential condition, but said that, if the appellant succeeded on these issues, “it’s conceded that the compensation claim is payable”.[2]

   [2] Transcript of Proceedings, Hancock v Holman Industries Pty Limited (WCC, [2018] NSWWCC 279, Arbitrator Toohey, 17 October 2018) (T), T 1.37–2.31.

4. The matter proceeded to an arbitration hearing on 17 October 2018. Both parties were represented by counsel. There were no applications to…