Irvin v LA Logistics Pty Ltd - [2011] NSWWCCPD 23

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Irvin v LA Logistics Pty Ltd [2011] NSWWCCPD 23
APPELLANT:		Phillip Irvin
FIRST RESPONDENT:		LA Logistics Pty Ltd
SECOND RESPONDENT:		Cemex Group Ltd
FIRST RESPONDENT’S INSURER:		CGU Insurance Limited
SECOND RESPONDENT’S INSURER:		Rinker Group Limited
FILE NUMBER:		A2-7113/09
ARBITRATOR:	Mr Jeffrey Phillips SC
DATE OF ARBITRATOR’S DECISION:		10 January 2011
DATE OF APPEAL DECISION:		12 April 2011
SUBJECT MATTER OF DECISION:		Admission of fresh or additional evidence: s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; Notice of claim: s 261(1) of the Workplace Injury Management and Workers Compensation Act 1998; failure to make a claim by reason of ignorance: s 261(4) of the Workplace Injury Management and Workers Compensation Act 1998; first awareness of receipt of injury: s 261(6) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Maurice Blackburn Lawyers
First Respondent:	Turks Legal
Second Respondent:	Leigh Virtue & Associates
ORDERS MADE ON APPEAL:		For the reasons given in this decision, the Arbitrator’s determination of 10 January 2011 is confirmed. No order as to costs.

BACKGROUND TO THE APPEAL

Mr Phillip Irvin, the appellant, commenced proceedings on 3 September 2009 against LA Logistics Pty Ltd (LAL), the first respondent, and Cemex Group Ltd (Cemex), the second respondent, seeking orders from the Commission in respect of lump sum entitlement. Mr Irvin had been employed by Cemex between September 2002 and September 2005, and by LAL between September 2005 and June 2008. He alleged that he had received injury in the course of his employment with each of those employers, being hearing loss resulting from noise exposure.
Mr Irvin’s claim was a modest one. His allegation was that, as a result of injury, he had suffered permanent damage to his hearing, which had been assessed as being a whole person impairment of four per cent. His claim sought an order for the payment of the sum of $5,500. It seems that both employers were joined to the proceedings, given the existence of doubt as to the identity of the employer who last employed Mr Irvin in an employment to the nature of which the injury was due in terms of s 17 of the Workers Compensation Act 1987 (the 1987 Act).
It must be stated at the outset that the history of this litigation since commencement in 2009 is most unsatisfactory. The matter came before Arbitrator Adelstein for arbitration on 26 November 2009, following which an award was entered in favour of each of the employers. That determination was the subject of an appeal (the first appeal) which was heard on the papers by the President, Judge Keating. On 16 April 2010, his Honour ordered that the decision of Arbitrator Adelstein be revoked and the matter was remitted to a different arbitrator for determination afresh (Irvin v LA Logistics Pty Ltd [2010] NSWWCCPD 40).
Following…

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.

Continue reading Irvin v LA Logistics Pty Ltd

Details

AGLC: Irvin v La Logistics Pty Ltd [2011] NSWWCCPD 23
Case: [2011] NSWWCCPD 23
Decision Date: 12 April 2011

CaseChat Overview and Summary

The dispute in Irvin v LA Logistics Pty Ltd involved the claimant's attempt to introduce fresh evidence after the conclusion of the hearing, which the respondent objected to. The case was heard by the Industrial Relations Commission of New South Wales, presided over by the Arbitrator, who issued a determination on 10 January 2011. The claimant sought to rely on this fresh evidence to support their claim for workers' compensation under the provisions of the Workplace Injury Management and Workers Compensation Act 1998.

The central legal issue before the Commission was whether the fresh evidence introduced by the claimant was admissible under section 352(6) of the Act. Additionally, the court had to consider whether the claimant's failure to make a claim within the statutory period could be excused due to ignorance of the injury, pursuant to section 261(4) of the Act, and whether the first awareness of the receipt of the injury could be deemed to have occurred within the statutory period, as per section 261(6) of the Act.

The Commission reviewed the evidence and the applicable statutory provisions, concluding that the fresh evidence did not meet the criteria for admission under section 352(6). Furthermore, the Commission found that the claimant's ignorance of the injury did not provide a sufficient basis to excuse the failure to make a timely claim under section 261(4). The Commission also determined that the claimant's first awareness of the injury did not occur within the statutory period as required by section 261(6).

Given these findings, the Industrial Relations Commission of New South Wales upheld the Arbitrator's determination of 10 January 2011. The court confirmed the decision, and no order was made regarding costs.

Orders

Orders of the court

For the reasons given in this decision, the Arbitrator’s determination of 10 January 2011 is confirmed.

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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