Marks v Coles Supermarkets

Case [2021] WASCA 176

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   MARKS -v- COLES SUPERMARKETS [2021] WASCA 176

CORAM:   QUINLAN CJ

BUSS P

MAZZA JA

MITCHELL JA

BEECH JA

HEARD:   19 AUGUST 2021

DELIVERED          :   8 OCTOBER 2021

FILE NO/S:   CACV 41 of 2020

BETWEEN:   SHARON CHRISTINE MARKS

Appellant

AND

COLES SUPERMARKETS

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   GETHING DCJ

Citation: MARKS -v- COLES SUPERMARKETS [2020] WADC 36

File Number            :   APP 58 of 2019


Catchwords:

Workers' compensation - Nature of the review required in an appeal from the Workers' Compensation Arbitration Service to the District Court of Western Australia - Whether primary judge misapprehended the nature of the review - Whether material error was established requiring remittal of the proceedings for determination by a different arbitrator

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 247

Result:

Leave to appeal granted
Appeal allowed
Arbitrator's decision set aside and matter remitted for determination by a different arbitrator

Category:    B

Representation:

Counsel:

Appellant : B L Nugawela
Respondent : R D McCabe

Solicitors:

Appellant : Eureka Lawyers
Respondent : Kott Gunning

Case(s) referred to in decision(s):

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250

Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580

Catholic Education Office of WA v Granitto [2012] WASCA 266

Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55

Erceg v Galati Nominees Pty Ltd [2016] WASCA 112

Jones v Dunkel (1959) 101 CLR 298

Pacific Industrial Co v Jakovljevic [2008] WASCA 60

Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679

Sapina v Coles Myer Ltd [2009] NSWCA 71

Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45

Contents

Summary

Legislation

Liability to pay compensation for injury to worker

Jurisdiction of arbitrators

Rules as to medical evidence in arbitrations

The arbitrator's decision

Dispute identified by the arbitrator

Evidence before the arbitrator

Primary facts

Personal injury by accident arising out of the course of employment

Recurrence, aggravation, or acceleration of degenerative spinal disease

The primary judge's decision

Errors of law identified by the primary judge

Grant of leave to appeal

Nature of the review

Issues for determination in the review

Primary facts

Medical opinions

Primary judge's disposition of appeal

Primary judge's orders

The appeal to this court

Nature of appellate review under the Act

Statutory text

Legislative history

Decision in Pacific Industrial Co v Jakovljevic

New South Wales decisions

Nature of the review on appeal to the District Court under the Act

Correctness of the primary judge's approach

Challenges relating to factual findings

Relationship between gardening and disc protrusions

Inconsistent findings as to the onset of symptoms

Evidence of radiculopathy in August 2017

Factual foundation for Mr Kern's evidence

Disposition of appeal

Orders

JUDGMENT OF THE COURT:

Summary

  1. In September 2017, the appellant, a worker in one of the respondent's supermarkets, reported experiencing…

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Marks v Coles Supermarkets [2021] WASCA 176
Case
[2021] WASCA 176
Decision Date

CaseChat Overview and Summary

In the matter of Marks v Coles Supermarkets, the appellant, Marks, appealed against the decision of the arbitrator who dismissed her application for the respondent, Coles Supermarkets, to be liable for weekly payments and medical expenses following an alleged injury to her cervical spine. The dispute was determined by the District Court of Western Australia. The central legal issues before the court were whether the primary judge had misapprehended the nature of the review required in an appeal from the Workers' Compensation Arbitration Service to the District Court, and whether a material error was established that necessitated remittal of the proceedings for determination by a different arbitrator.

The court examined the applicable provisions of the Workers' Compensation and Injury Management Arbitration Rules 2011 (WA) and the statutory framework governing workers' compensation. It focused on the rules concerning medical evidence and reports, as these were central to the appellant's case. The court found that the primary judge had correctly understood the limited scope of review in appeals from the Workers' Compensation Arbitration Service. The court emphasised that the function of the District Court in such appeals is not to conduct a full re-hearing of the case, but rather to determine whether the arbitrator made an error of law or a significant error in the exercise of discretion. The court concluded that the primary judge had appropriately confined the review to the identification of any material errors made by the arbitrator.

Ultimately, the court determined that no material error was established that would require remittal of the proceedings. The court upheld the primary judge's decision and dismissed the appeal. The orders of the District Court confirmed the dismissal of the appellant's application and maintained the arbitrator's decision that Coles Supermarkets was not liable for weekly payments and medical expenses arising from the alleged injury.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The following provisions of the Workers' Compensation and Injury Management Arbitration Rules 2011 (WA) may also be noted:58.Medical evidence(1)Except with the leave of an arbitrator, any medical evidence of a medical practitioner must be given in writing and a medical practitioner may not be called to give oral medical evidence at a hearing before an arbitrator.(2)An application for leave to call oral evidence from a medical practitioner must — (a)be made not less than 14 days prior to the date set for the hearing; and(b)state the grounds on which the leave is sought.(3)An arbitrator must not give leave to call oral medical evidence unless the arbitrator is satisfied that the giving of the evidence will assist in the determination of a dispute in a manner that is fair, just, economical, informal and quick.59.Medical reports(1)Except with the leave of an arbitrator, in any proceeding — (a)a medical report by a medical practitioner in a particular area of medical practice may not be lodged or admitted in evidence on behalf of a party to a proceeding if another medical report by another medical practitioner in that area of medical practice has been lodged or admitted in evidence on behalf of that party; and(b)a medical report by a medical practitioner in a particular area of medical practice may not be lodged or admitted in evidence on behalf of a party to the proceeding if medical reports in 3 areas of medical practice have been lodged or admitted in evidence on behalf of that party.(2)For the purposes of this rule, a medical report in more than one area of medical practice is to be taken to be a medical report in each of those areas of medical practice.… By application received by WorkCover WA on 23 April 2018 (Application), the appellant applied to have a dispute as to the respondent's liability to pay weekly payments and medical expenses arising out of an alleged injury to her cervical spine on 12 September 2017 determined by arbitration.[6][6] Blue AB 185. On 18 June 2019, the arbitrator dismissed the Application, on the ground that she was not persuaded that the appellant suffered an 'injury' for the purposes of par (a) or par (d) of the definition of that term in s 5(1) of the Act.[7] The arbitrator described the case advanced by the appellant in the following terms:[8][The appellant] contends that on 12 September 2017 she suffered an injury that had caused pain in her right wrist, elbow and shoulder and her neck, which pain was becoming bilateral and constituted an 'injury' for the purposes of s 5(1) of the Act because:(a)the task of lifting crates of chickens and/or the task of sealing bags containing chickens caused sudden disc prolapses that constituted a personal injury by accident within the meaning of paragraph (a) of [the definition of 'injury' in] s 5(1) of the Act; and/or(b) her work for the Respondent aggravated her pre-existing spondylosis, disc bulges (or protrusions) and/or disc prolapses in her cervical spine to a significant degree so as to constitute an injury within the meaning of paragraph (d) of [the definition of 'injury' in] s 5(1) of the Act.[8] Arbitrator's Decision [8].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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