Harmouche v Pentagon Protective Services Pty Ltd - [2009] NSWWCCPD 2

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Harmouche v Pentagon Protective Services Pty Ltd [2009] NSWWCCPD 2
APPELLANT:	Khourky Ali Harmouche
RESPONDENT:	Pentagon Protective Services Pty Ltd
INSURER:	GIO General Limited
FILE NUMBER:	A1-4783-08
DATE OF ARBITRATOR’S DECISION:	23 September 2008
DATE OF APPEAL DECISION:	9 January 2009
SUBJECT MATTER OF DECISION:	Injury; failure to properly determine issues in dispute
PRESIDENTIAL MEMBER:	Acting President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	City Legal Solicitors
Respondent:	Rankin Nanthan Lawyers
ORDERS MADE ON APPEAL:	The Arbitrator’s determination of 23 September 2008 is revoked and the matter is remitted for re-determination before a different Arbitrator. Costs of the first arbitration, and of the second arbitration, are to follow the event of the second arbitration.
The respondent employer is to pay the appellant worker’s costs of the appeal.

BACKGROUND

Mr Harmouche alleges that he received an injury to his neck and back on 30 November 2000 when two men assaulted him at Franklins Supermarket at Yagoona while he was working as a casual security guard with Pentagon Protective Services Pty Ltd (wrongly sued as Pentagon Protection Services) (‘Pentagon’). Whilst Mr Harmouche returned to work at Franklins the next day, he was told to go home and he has not returned to work for Pentagon since.

In March 2001, Mr Harmouche sought advice from a solicitor (Mr Sunna) and made a claim for victims’ compensation. Though Mr Sunna advised him he “had a worker’s compensation case” Mr Harmouche made no claim as he did not know what that was and he wanted to try and work and put everything behind him.

By a letter dated 24 September 2007, Mr Harmouche’s second solicitor (Mr Dikha) made a claim for lump sum compensation on his behalf from Pentagon’s workers compensation insurer, GIO General Limited (‘GIO’), in the following sums:

(a)$6,000 in respect of a 15% permanent impairment of the neck;

(b)$9,000 in respect of a 15% permanent impairment of the back;

(c)$3,750 in respect of 5% permanent loss of efficient use of the right leg at or above the knee;

(d)$17,050 in respect of a 12% whole person impairment, and

(e)$50,000 in respect of pain and suffering.

The reference to 12% whole person impairment is irrelevant as the injury occurred before 1 January 2002 and must therefore be assessed under the Table of Disabilities in force at the date of injury.

Based on an assessment by Dr Machart, orthopaedic surgeon, on 5 March 2008, that Mr Harmouche had no “impairment related to work” but had degenerative multilevel spondylosis, the GIO advised by letter dated 14 May 2008 that it would not be making an offer of settlement.

Mr Harmouche filed an Application to Resolve a Dispute (‘the Application’) with the Commission on 24 June 2008 alleging that he “was injured at work during an armed robbery when he was repeatedly stomped on whilst lying on the floor” and seeking lump sum compensation as particularised in 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: [2009] NSWWCCPD 2
Decision Date: 9 January 2009

CaseChat Overview and Summary

The case of Harmouche v Pentagon Protective Services Pty Ltd involved the claimant, Mr Harmouche, suing his former employer, Pentagon Protective Services Pty Ltd, over an injury he sustained during his employment. The dispute was primarily focused on whether the employer had fulfilled its duty of care and whether the injury was a result of the employer's negligence. The matter was brought before the court after an initial arbitration decision, which found in favour of the employer, was challenged by Mr Harmouche.

The court was required to determine whether the arbitrator had correctly identified and resolved the issues in dispute. Specifically, the court had to assess whether the arbitrator properly considered the evidence and applied the correct legal principles in reaching their decision. The central issue was whether the arbitrator had adequately addressed the employer’s duty to provide a safe working environment and whether the injury was properly categorised under the applicable legislation.

The court found that the arbitrator had not properly determined the issues in dispute. The reasoning was based on the fact that the arbitrator failed to address key elements of the evidence and misapplied certain legal principles. As a result, the court concluded that the arbitrator’s determination was flawed and could not stand. Consequently, the court revoked the arbitrator’s decision and ordered the matter to be remitted for re-determination by a different arbitrator. The court also directed that the costs of both the initial and subsequent arbitrations would be determined in light of the outcome of the second arbitration.

Orders

Orders of the court

The Arbitrator’s determination of 23 September 2008 is revoked and the matter is remitted for re-determination before a different Arbitrator.

Costs of the first arbitration, and of the second arbitration, are to follow the event of the second arbitration.

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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