Inghams Enterprises Pty Ltd v Jones - [2012] NSWWCCPD 17

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17
APPELLANT:			Inghams Enterprises Pty Ltd
RESPONDENT:			Graeme Arthur Jones
INSURER:			Self-insured
FILE NUMBER:			A1-5439/11
ARBITRATOR:	Mr W Dalley
DATE OF ARBITRATOR’S DECISION:			1 November 2011
DATE OF APPEAL HEARING:		23 March 2012
DATE OF APPEAL DECISION:			28 March 2012
SUBJECT MATTER OF DECISION:			Boilermaker’s deafness; notice of claim; meaning of “aware that he or she has received an injury”; ignorance; mistake; s 17 of the Workers Compensation Act 1987; sub-ss 261(4) and 261(6) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			Oral
REPRESENTATION:			Appellant:	Mr S Grant, instructed by Leigh Virtue & Associates
Respondent:	Mr M Boulton, instructed by RMB Compensation
ORDERS MADE ON APPEAL:			The Arbitrator’s determination of 1 November 2011 is revoked and the matter is remitted to another Arbitrator for re-determination in accordance with the reasons in this decision. Costs of the first arbitration, and of the second arbitration, are to follow the outcome of the second arbitration. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $1,200 plus GST.

INTRODUCTION

This appeal concerns the notice of claim provisions in s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in a claim for compensation for a loss of hearing caused by a gradual process. Though the parties and the Arbitrator wrongly referred to s 65 of the 1998 Act, that error is of no consequence because the relevant provisions in each section are substantially the same.
Compensation cannot be recovered unless a claim for compensation has been made within six months after the injury or accident happened (s 261(1), s 65(7)). If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is, for the purposes of s 261, taken to have been received “when the worker first became so aware” (s 261(6), s 65(15)).
The failure to make a claim within the time required by s 261 is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause and the claim is made within three years after the injury or accident happened, or the claim is not made within three years but is in respect of an injury resulting in death or serious and permanent disablement of the worker (s 261(4), s 65(13)).
The disputes in this case concern when the worker became aware that he had received an injury in the nature of a loss of hearing of such a nature as to be caused by a gradual process (referred to in this decision as “boilermaker’s deafness” or “industrial deafness”), whether he claimed compensation within six months of that date and, if not, whether his failure to claim within…

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.

Keep reading for free

Create a free CaseChat account to read Inghams Enterprises Pty Ltd v Jones and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NSWWCCPD 17
Decision Date: 28 March 2012

CaseChat Overview and Summary

Inghams Enterprises Pty Ltd sought judicial review of an Arbitrator's decision that it was liable to pay workers compensation to Mr Jones, who claimed he had suffered deafness from exposure to loud noises at work. The dispute centred on the interpretation of sections 17, 261(4) and 261(6) of the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998. Specifically, the issue was whether the employer was required to have actual knowledge of the injury, or if it was sufficient that the employee was unaware of the injury at the time the employer was notified. The Full Bench of the Supreme Court of New South Wales found in favour of the worker, holding that the employer was not required to have actual knowledge of the injury, and that it was sufficient that the employer was notified of the injury and was aware that the worker had not received a claim for compensation. The court held that the Arbitrator had erred in law by requiring the employer to have actual knowledge of the injury.

The court found that the phrase "aware that he or she has received an injury" in s 17 of the Workers Compensation Act 1987 was not limited to cases where the employee was aware of the injury, but also included cases where the employer was notified of the injury and the employee was unaware of it. The court further found that the requirement in ss 261(4) and 261(6) of the Workplace Injury Management and Workers Compensation Act 1998 that the employer be notified of the injury within six months of the employee becoming aware of the injury did not mean that the employer had to have actual knowledge of the injury, but rather that the employer had to be notified of the injury within the specified time frame. The court found that the Arbitrator had erred in requiring the employer to have actual knowledge of the injury, and that the correct test was whether the employer had been notified of the injury within the specified time frame. The Full Bench of the Supreme Court of New South Wales revoked the Arbitrator's determination and remitted the matter to another Arbitrator for re-determination in accordance with the reasons in this decision.

Orders

Orders of the court

The Arbitrator’s determination of 1 November 2011 is revoked and the matter is remitted to another Arbitrator for re-determination in accordance with the reasons in this decision.

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

The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $1,200 plus GST.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.