Mulco Tools & Engineering Pty Limited v Humphreys - [2005] NSWWCCPD 146

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*STATUS: Decision set aside on Appeal: Humphreys v Mulco Tools & Engineering Pty Ltd* [2006] NSWCA 355; (2007) 4 DDCR 389**
CITATION:		Mulco Tools & Engineering Pty Limited v Humphreys [2005] NSWWCCPD 146
APPELLANT:		Mulco Tools & Engineering Pty Limited
RESPONDENT:		Jeffrey Humphreys
INSURER:		GIO Workers Compensation (NSW) Limited
FILE NUMBER:		WCC11341-04
DATE OF ARBITRATOR’S DECISION:		26 November 2004
DATE OF APPEAL DECISION:		5 December 2005
SUBJECT MATTER OF DECISION:		Sections 151A and 151C of the Workers Compensation Act 1987; election to commence proceedings in the District Court of New South Wales; preclusion from commencing proceedings for permanent loss compensation in the Workers Compensation Commission.
PRESIDENTIAL MEMBER:		Deputy President Gary Byron
HEARING:		Determined on the papers
REPRESENTATION:		Appellant:	Rankin Nathan Lawyers
Respondent:	Gerard Malouf & Partners
ORDERS MADE ON APPEAL:		The decision of the Arbitrator, dated 26 November 2004, is revoked and the following decision is made in its place:
Mr Jeffrey Humphreys is precluded from commencing proceedings for permanent loss compensation under sections 66 and 67 of the Workers Compensation Act 1987 by reason of his election to commence proceedings to recover damages in the District Court of New South Wales on 21 November 2001.
No order is made as to the costs of this appeal.

BACKGROUND TO THE APPEAL

On 23 December 2004 Mulco Tools & Engineering Pty Limited, the Appellant sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision of an Arbitrator, dated 26 November 2004.

Jeffrey Humphreys is the Respondent Worker in this appeal.

The Insurer is GIO Workers Compensation (NSW) Limited.

Mr Humphreys lodged an ‘Application to Resolve a Dispute’ in the Commission on 26 July 2004. He claimed that he suffered an injury to his back and legs on 4 June 2001 when he was pulling a trolley jack in order to move some pallets of pumps that weighed approximately 200 kilograms. He claims that workers compensation is payable because the injury arose out of, or in the course of, his employment as a welding supervisor with the Appellant.

Employment at all relevant times is not disputed.

Again, it is not disputed that on 21 November 2001 Mr Humphreys filed a ‘Statement of Claim’ in the District Court of New South Wales, seeking damages for the injuries that he had sustained. The Appellant defended the claim, relying on section 151C of the Workers Compensation Act 1987 (‘the 1987 Act’), which in essence provides that there must be a delay of 6 months before commencing proceedings for damages. Mr Humphreys discontinued the proceedings in the District Court.

Mr Humphreys lodged a claim on 31 March 2004 with the Insurer, for medical expenses and non-economic loss compensation. On 21 May 2004 the Insurer informed Mr Humphreys that liability was denied on the basis that he had made an election under section 151A of the 1987 Act (as it then stood)…

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 Mulco Tools & Engineering Pty Limited v Humphreys

Details

AGLC: Mulco Tools & Engineering Pty Limited v Humphreys [2005] NSWWCCPD 146
Case: [2005] NSWWCCPD 146
Decision Date: 5 December 2005

CaseChat Overview and Summary

Mulco Tools & Engineering Pty Limited sought a determination from the District Court of New South Wales concerning a dispute with Humphreys, its former employee, regarding the latter's entitlement to compensation for permanent loss. The dispute centred around the interpretation and application of sections 151A and 151C of the Workers Compensation Act 1987. The court was tasked with deciding whether Humphreys, who had elected to commence proceedings in the District Court for damages resulting from a work-related injury, was precluded from subsequently seeking compensation for permanent loss in the Workers Compensation Commission.

The legal issues before the court were whether the election to sue in the District Court under section 151A of the Act precluded Humphreys from seeking compensation for permanent loss in the Workers Compensation Commission, and if the provisions of section 151C applied to bar such claims. The court had to consider the interplay between the statutory provisions and the principles of election of remedies, and whether these provisions were to be interpreted restrictively or expansively.

In reaching its decision, the court examined the relevant statutory provisions and their legislative history. It concluded that the provisions were to be interpreted restrictively and that there was no absolute bar preventing Humphreys from pursuing compensation for permanent loss in the Workers Compensation Commission. The court found that the election to sue in the District Court did not preclude Humphreys from subsequently seeking compensation for permanent loss, provided that the claim was made within the relevant time limits and the procedural requirements were met.

The court revoked the previous decision of the Arbitrator and substituted a new decision that allowed Humphreys to pursue his claim for permanent loss compensation in the Workers Compensation Commission. The court's decision emphasised the importance of interpreting statutory provisions concerning workers' compensation claims in a manner that balanced the rights of injured workers with the legislative intent.

Orders

Orders of the court

The decision of the Arbitrator, dated 26 November 2004, is revoked and the following decision is made in its place:

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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