Layton v Leichhardt Municipal Council - [2006] NSWWCCPD 100

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Layton v Leichhardt Municipal Council [2006] NSWWCCPD 100
APPELLANT:  John Layton
RESPONDENT:  Leichhardt Municipal Council
INSURER:GIO Australia Limited
FILE NUMBER:  WCC737-04
DATE OF ARBITRATOR’S DECISION:          8 April 2005
DATE OF APPEAL DECISION:  30 May 2006
SUBJECT MATTER OF DECISION: Section 40 of the Workers Compensation Act 1987; rule 77 Workers Compensation Rules 2003; Extension of time in respect of the late lodgement of an Appeal Against Decision of the Commission constituted by an Arbitrator.
PRESIDENTIAL MEMBER:  Acting Deputy President Robert Harrington
HEARING:On the papers
REPRESENTATION:  Appellant:      Turner Whelan, Solicitors
Respondent:   Greylings, Attorneys

ORDERS MADE ON APPEAL: 1. Paragraph A of the Arbitrator’s decision dated 8 April 2005 is revoked and the following order is substituted:

A. The Respondent (Leichhardt Municipal Council) pay the Appellant (John Layton) weekly compensation:
(i)at the rate of $155.00 per week from 1 March 2001 to 13 April 2001; and
(ii)at the rate of $291.10 per week (being the maximum statuary rate for a worker without dependants) from 14 April 2001, as adjusted, to date and continuing under section 40 of the Workers Compensation Act 1987.

2. The Respondent is to pay the Appellant’s costs of the appeal.

BACKGROUND TO THE APPEAL
1.On 6 May 2005 John Layton (‘Mr Layton’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation (Commission) against a decision dated 6 May 2005.
2.The Respondent to the appeal is Leichhardt Municipal Council (‘the Council’).
3.Mr Layton was born on 5 May 1956 and has recently turned 50 years of age.
4.In 1989 whilst working at the Balmain Leagues Club he suffered a head injury as a result of which he suffered permanent brain damage, but notwithstanding this injury he has, by and large, managed to maintain himself in the workforce.
5.On 17 February 1981 he commenced employment with Council. He commenced as a jackhammer operator but was subsequently given the job as ‘a runner’ in ‘garbage collection’ for the Council.
6.Mr Layton, in order to carry out his duties, was required to run ‘with the garbage truck’ in order to collect garbage from residential properties in Leichhardt Municipality.
7.On 2 September 1996 Mr Layton twisted his left knee in the course of his employment with the Council when he stepped into a pothole. He suffered further injuries to his right knee on 12 or 19 May 1997 and 22 June 1998 when he, on each occasion, slipped and twisted his right knee.
8.Mr Layton continued to work up until 1998 when the Council, wishing to shed twenty-four people from their workforce, offered voluntary redundancy packages. Mr Layton accepted voluntary redundancy. Within two months of taking the redundancy package, he returned to his former employment, on a casual basis
9.In or before January 2001 Mr Layton’s solicitor made a claim on the Council for lump sum compensation in respect of the injuries to his legs. Because of this claim…

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 Layton v Leichhardt Municipal Council 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: [2006] NSWWCCPD 100
Decision Date: 30 May 2006

CaseChat Overview and Summary

In the Workers Compensation Commission, John Layton appealed against the decision of an arbitrator who found that Layton was not entitled to weekly compensation benefits following injuries he suffered in the course of his employment with the Leichhardt Municipal Council. The Arbitrator had found that Layton was fit for his pre-injury employment and therefore not entitled to weekly compensation benefits. The Arbitrator had also made an error in his application of the statutory provisions regarding weekly compensation. The Acting Deputy President found that the Arbitrator's finding that Layton was fit for his pre-injury employment was manifestly against the weight of the evidence. The Arbitrator had also erred in his application of section 40 of the Workers Compensation Act 1987. The Acting Deputy President found that Layton was entitled to weekly compensation benefits and set aside the Arbitrator's decision. Layton was entitled to weekly compensation at the rate of $155.00 per week from 1 March 2001 to 13 April 2001 and at the maximum statutory rate for a worker without dependants from 14 April 2001 to date and continuing. The Leichhardt Municipal Council was ordered to pay Layton's costs.

Orders