Manuel v BOC Limited - [2011] NSWWCCPD 20

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Manuel v BOC Limited [2011] NSWWCCPD 20
APPELLANT:		Noel David Manuel
RESPONDENT:		BOC Limited
INSURER:		BOC Limited
FILE NUMBER:		A1-7491/10
ARBITRATOR:	Ms Margaret Dalley
DATE OF ARBITRATOR’S DECISION:		23 November 2010
DATE OF APPEAL HEARING:		29 March 2011
DATE OF APPEAL DECISION:		1 April 2011
SUBJECT MATTER OF DECISION:		Section 17 of the Workers Compensation Act 1987; Blayney Shire Council v Lobley (1995) 12 NSWCCR 52; tendencies, incidents or characteristics of employment
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		Oral
REPRESENTATION:		Appellant:	Mr R Stanton, instructed by Slater & Gordon Lawyers
Respondent:	Mr M Underwood of Bartier Perry Lawyers
ORDERS MADE ON APPEAL:		For the reasons given in this decision, the Arbitrator’s determination of 23 November 2010 is confirmed. No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

Mr Noel David Manuel, who is 83 years of age, was employed by BOC Limited (the respondent) as a fitter and turner until his retirement in 1990. He commenced that employment in approximately 1967 at which time the respondent was known as CIG Limited. He has not worked since retirement.
There is no dispute between the parties that the work performed by Mr Manuel exposed him to significant industrial noise. Following his retirement he made a claim in proceedings against the respondent in respect of lump sum compensation alleging a 12.12 per cent binaural hearing loss. The evidence suggests that he had earlier, in 1982, made a similar claim against his employer. However, the evidence does not reveal any detail concerning such claim nor of any payment made. The proceedings, which were commenced in July 1994, were settled and a consent award dated 24 February 1995 records an agreement providing for payment in the sum of $2695.67 in respect of 4.58 per cent loss of hearing in both ears together with payment of the cost of hearing aids, interest and costs.
In January 2010 Mr Manuel made a claim against the respondent in respect of 15.15 per cent binaural hearing loss. The date of injury specified in that claim was 1 January 1990. That claim was declined by the respondent and notice concerning the grounds of denial was provided to Mr Manuel by letter from the respondent dated 21 May 2010. The grounds for refusal of the claim are addressed below.
A dispute arose between the parties concerning Mr Manuel’s entitlement to the compensation claimed and an Application to Resolve a Dispute was filed with the Commission on 13 September 2010. The matter was listed for conciliation/arbitration before an Arbitrator on 23 November 2010 on which date it proceeded to hearing. The parties were each represented by Counsel. Submissions were recorded and a transcript (T) has been produced and made available to the parties. The Arbitrator delivered her determination orally following submissions, and her reasons for that determination are recorded in the transcript.

THE DECISION UNDER REVIEW

The Certificate of Determination dated…

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 Manuel v BOC Limited

Details

AGLC: Manuel v BOC Limited [2011] NSWWCCPD 20
Case: [2011] NSWWCCPD 20
Decision Date: 1 April 2011

CaseChat Overview and Summary

In the case of Manuel v BOC Limited, the parties were an employee, Mr Manuel, and his employer, BOC Limited. Mr Manuel sought compensation for injuries he sustained during the course of his employment, which included an accident involving the use of a forklift. The dispute was heard by an arbitrator, and subsequently appealed to the Supreme Court of New South Wales. The primary legal issue before the court was whether the accident constituted an incident arising out of, or in the course of, Mr Manuel’s employment under Section 17 of the Workers Compensation Act 1987. This section specifies that an injury must be caused by an accident arising out of, or in the course of, the employment to qualify for compensation. The court needed to determine if the accident was a tendency, incident or characteristic of the employment.

The court examined the nature of Mr Manuel's employment and the circumstances surrounding the accident. It considered whether the use of the forklift was an integral part of Mr Manuel's job and if the accident occurred while he was performing his duties. The court referred to the decision in Blayney Shire Council v Lobley, which outlined the criteria for determining if an injury was connected to employment. The court applied these principles to assess the connection between the accident and Mr Manuel's employment. It concluded that the accident was indeed an incident arising out of Mr Manuel’s employment, as it occurred while he was performing his duties using a tool integral to his job.

Following this reasoning, the court confirmed the Arbitrator’s determination that Mr Manuel was entitled to compensation for his injuries. The court held that the accident was a characteristic of Mr Manuel's employment, thus satisfying the statutory requirement for compensation under Section 17 of the Workers Compensation Act 1987. The appeal was dismissed, and no order was made as to the costs of the appeal.

Orders

Orders of the court

For the reasons given in this decision, the Arbitrator’s determination of 23 November 2010 is confirmed.

No order as to costs of the appeal.

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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