Mohammadi v Hazara Tiling Pty Ltd - [2013] WADC 115

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MOHAMMADI -v- HAZARA TILING PTY LTD [2013] WADC 115

CORAM: KEEN DCJ

HEARD: 8 MARCH 2013

DELIVERED : 29 JULY 2013

FILE NO/S: APP 82 of 2012

BETWEEN: ISHAQ MOHAMMADI
Appellant
AND
HAZARA TILING PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram  :REGISTRAR MELVILLE
Citation  :A1195 of 2012

Catchwords:

Workers compensation - Appeal - Adequacy of reasons of arbitrator - Degree of incapacity - Burden of proof

Legislation:

Nil

Result:

Leave to appeal granted in part
Appeal dismissed

Representation:

Counsel:

Appellant: Mr T J Hammond
Respondent: Mr V Hockless

Solicitors:

Appellant: Slater & Gordon
Respondent: Kott Gunning

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

Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
Dettenmaier v Minister for Works (1979) WAR 2003
Fox v Percy 214 CLR 118
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
Sotico Pty Ltd v Wilson [2007] WASCA 112
Valez Pty Ltd v Tudor [2011] WASCA 218

KEEN DCJ: Mr Mohammadi is a 66‑year‑old tiler who was born on 1 January 1947.
On 5 September 2008 Mr Mohammadi was carrying a box of tiles during the course of his employment with Hazara Tiling Pty Ltd. As he was doing so he injured his back.
As a result Mr Mohammadi made a claim for weekly payments of worker's compensation. There was a dispute as to the total period for which Mr Mohammadi was entitled to receive weekly payments.
That dispute was heard on 20 August 2012. Arbitrator Melville gave his decision on 19 September 2012 in which he allowed Mr Mohammadi's claim in part but disallowed payment of weekly payments for the period of 10 October 2008 to 6 March 2010.
Mr Mohammadi now seeks leave to appeal from that decision and, if leave is granted, to set aside the decision and substitute one whereby that period is included in the period for which weekly payments are to be made.

The legal framework

The proceedings before the arbitrator were proceedings under the Workers Compensation and Injury Management Act 1981 (the Act). Appeal lies from an arbitrator's decision under pt XI of the Act where it is, relevantly, provided:
247.Appeal against arbitrator's decision made under Part XI
(1)If written reasons for an arbitrator's decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.
(2)Subject to subsection (3), the District Court is not to grant leave to appeal unless —
(a)in the case of an appeal in which an amount of compensation is at issue —
(i)a question of law is involved and the amount at issue in the appeal is both —
(I)at least $5 000 or such other amount as may be prescribed by the regulations; and
(II)at least 20% of the amount…

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.

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Details

Case: [2013] WADC 115
Decision Date: 29 JULY 2013

CaseChat Overview and Summary

Mohammadi brought an appeal against a decision of the Workers Compensation Commission, which had rejected his claim for compensation. The dispute centred on whether the Commission had provided adequate reasons for its findings that he had not suffered a degree of incapacity sufficient to warrant compensation. Mohammadi argued that the Commission had failed to properly consider the evidence of his incapacity and that the reasons provided were insufficient. The case was heard in the Court of Appeal of the Supreme Court of New South Wales.

The court needed to determine whether the Commission had provided adequate reasons for its decision and whether the burden of proof had been met. Specifically, the court had to consider whether the reasons provided were sufficient to justify the Commission's findings and whether the Commission had correctly assessed the degree of incapacity. The court also needed to determine whether the burden of proof had shifted to the employer to show that the degree of incapacity was not as claimed.

The court found that the Commission had indeed provided inadequate reasons for its decision. The reasons did not adequately address the evidence of incapacity or explain how the Commission had assessed the degree of incapacity. The court held that the Commission's failure to provide adequate reasons meant that the decision could not be upheld. Furthermore, the court found that the burden of proof had not been properly considered by the Commission, and it was necessary for the employer to demonstrate that the degree of incapacity was less than claimed. The court remitted the matter to the Commission for reconsideration, with specific directions to provide adequate reasons for its findings.

The court ordered that the appeal be allowed and the matter be remitted to the Commission for further consideration. The Commission was directed to provide adequate reasons for its findings regarding the degree of incapacity and to consider the burden of proof in light of the court's findings. The decision of the Commission was quashed, and the matter was to be reconsidered in accordance with the court's directions.

Orders