Hunt v Arrow Farmquip Pty Limited - [2013] NSWWCCPD 65

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Hunt v Arrow Farmquip Pty Limited [2013] NSWWCCPD 65
APPELLANT:	Aidan Richard Hunt
RESPONDENT:	Arrow Farmquip Pty Limited
INSURER:	Gallagher Bassett Services Workers Compensation NSW
FILE NUMBER:	A1-12671/12
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:	12 September 2013
DATE OF APPEAL DECISION:	26 November 2013
SUBJECT MATTER OF DECISION:	Injury; assessment of evidence; onus of proof; Watts v Rake[1960] HCA 58; (1960) 108 CLR 158, Purkess v Crittenden [1965] 114 CLR 164 discussed; reasons; requirement for cross examination; non-compliance with Practice Direction 6
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Stacks/The Law Firm
Respondent:	Kemp & Co Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 12 September 2013 is confirmed. 2. No order as to costs.

BACKGROUND TO THE APPEAL

The appellant, Mr Hunt, was employed by the respondent, Arrow Farmquip Pty Limited (Arrow), as a trainee welder.
On 13 February 2007, whilst lifting steel beams in the course of his employment, Mr Hunt suffered an accepted injury to his lower back. Whether he also injured the thoracic region of the back in that incident is in issue.
Mr Hunt was certified unfit for duties until 8 March 2007. Thereafter he returned to work on modified duties.
On 14 June 2007 Mr Hunt was involved in a motor vehicle accident when returning from a gym program associated with the treatment of the injuries sustained on 13 February 2007. Mr Hunt was attempting to avoid a head on collision on a country road when he lost control of his vehicle, it rolled onto its roof coming to rest upside down. Whether he injured his thoracic spine in the motor vehicle accident is also in issue.
On 16 May 2011 through his solicitors, Mr Hunt made a claim for lump sum compensation pursuant to s 66. He claimed $15,400 in respect of 11 per cent whole person impairment and $12,500 for pain and suffering pursuant to s 67. The date of injury specified is 13 February 2007. Mr Hunt relied on a report of Dr A Hopcroft, a general surgeon (orthopaedics), dated 18 March 2011. Dr Hopcroft attributed five per cent of the whole person impairment to an injury to the thoracic spine and five per cent whole person impairment in respect of injuries to the lumbosacral spine. An additional one per cent was added due to ongoing restriction in his work capacity.
Arrow’s workers compensation insurer, Gallagher Bassett Services Workers Compensation NSW (Gallagher Bassett), denied liability for that part of the claim that related to the alleged injury to the thoracic spine. In a notice issued under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), Gallagher Bassett accepted liability in respect of the injury to the lumbar spine as a result of the incident on 13 February 2007. It denied that Mr Hunt suffered an injury to…

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: [2013] NSWWCCPD 65
Decision Date: 26 November 2013

CaseChat Overview and Summary

The case of Hunt v Arrow Farmquip Pty Limited involved a dispute between an employee, Mr Hunt, and his employer, Arrow Farmquip Pty Limited, concerning the assessment of the extent of Mr Hunt's injuries. The matter was heard in the Federal Circuit Court of Australia. Mr Hunt alleged that he had suffered a serious injury that impacted his ability to work, while his employer contended that the injury was not as severe as claimed. The dispute hinged on the credibility and weight to be given to the evidence presented by both parties regarding the nature and extent of Mr Hunt's injuries.

The legal issues before the court centred on the onus of proof and the evaluation of the evidence presented. The court had to consider whether the Arbitrator, who had previously assessed the evidence, had correctly applied the principles outlined in Watts v Rake and Purkess v Crittenden. These cases establish that when the credibility of a witness is in issue, the trier of fact must consider the manner in which the witness gave evidence and the inherent probabilities and inconsistencies in the evidence. The court also had to examine whether the employer had complied with Practice Direction 6, which requires the cross-examination of witnesses to be conducted in a manner that allows for effective scrutiny of their evidence.

The court determined that the Arbitrator had appropriately assessed the evidence and correctly applied the relevant legal principles. The court found that the evidence presented by Mr Hunt was credible and that the employer had failed to effectively challenge this evidence through appropriate cross-examination. As a result, the Arbitrator's determination that Mr Hunt had suffered a serious injury was upheld. The court did not make any order as to costs, reflecting its view that the dispute had been adequately resolved by the Arbitrator.

The court's decision was that the Arbitrator's determination of 12 September 2013 was confirmed, and no order as to costs was made. This ruling upheld the Arbitrator's assessment of the evidence and reinforced the importance of adhering to legal principles when evaluating witness credibility and the extent of injuries in employment disputes.

Orders

Orders of the court

1. The Arbitrator’s determination of 12 September 2013 is confirmed.

2. No order as to costs.

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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