Patrick Operations Pty Ltd v Watson - [2013] NSWWCCPD 18

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Patrick Operations Pty Ltd v Watson & anor [2013] NSWWCCPD 18
APPELLANT:			Patrick Operations Pty Limited
FIRST RESPONDENT:			John Arthur Watson
SECOND RESPONDENT:			West Sydney Basketball Management Pty Limited t/as West Sydney Razorbacks
APPELLANT’S INSURER:			QBE Workers Compensation (NSW) Limited
SECOND RESPONDENT’S INSURER:			Employers Mutual NSW Limited
FILE NUMBER:			A1-6451/12
ARBITRATOR:	Mr C Tanner
DATE OF ARBITRATOR’S DECISION:			6 December 2012
DATE OF APPEAL DECISION:			8 April 2013
SUBJECT MATTER OF DECISION:			Section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; admission of fresh or additional evidence on appeal; refusal of arbitrator to grant adjournment; s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998; availability of appeal against order refusing adjournment which constitutes relevant error; s 16(1)(b) of the Workers Compensation Act 1987; employer who last employed worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease.
PRESIDENTIAL MEMBER:			Deputy President Kevin O'Grady
HEARING:			On the papers
REPRESENTATION:			Appellant:	McCulloch & Buggy
First Respondent:	Turner Freeman Lawyers
Second Respondent: Edward Michael Lawyers
ORDERS MADE ON APPEAL:			1. The findings and orders made by the Arbitrator as found in the Certificate of Determination dated 6 December 2012 are confirmed. 2. The appellant is to pay the costs of the appeal incurred by Mr Watson and by the second respondent.

BACKGROUND

Mr John Arthur Watson has developed a skin condition variously described as involving sun spots, skin cancers, solar keratoses and hyperkeratoses. He alleged that his skin condition had been aggravated by his employment with Patrick Operations Pty Limited (the appellant) and with West Sydney Basketball Management Pty Limited trading as West Sydney Razorbacks (the second respondent).
Mr Watson had been employed by the appellant as a waterside worker between 1965 and 1976. Thereafter he was self-employed, as a bookmaker and subsequently as a butcher, until 1985. He was then employed in sales work with two separate employers until 1998. From 1998 until 2007 he was employed by the second respondent as a salesman and was engaged in business development. He has since retired from the workforce. The nature of Mr Watson’s duties with the second respondent assumed significance both before the Arbitrator and on this appeal.
Claims were made by Mr Watson against the appellant and the second respondent in respect of lump sum compensation and for medical expenses. Each of the employers denied liability in respect of the claim.
Proceedings were commenced in the Commission by Mr Watson in April 2012 against both the appellant and the second respondent, seeking orders concerning his entitlement to the compensation earlier claimed. Those proceedings were discontinued by Mr Watson on 18 June 2012.
The present proceedings were commenced by Mr Watson in June 2012. The matter came before Arbitrator Tanner for conciliation and arbitration on 30 October 2012. An application seeking adjournment of the proceedings was made by the appellant. That…

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 Patrick Operations Pty Ltd v Watson

Details

AGLC: Patrick Operations Pty Ltd v Watson [2013] NSWWCCPD 18
Case: [2013] NSWWCCPD 18
Decision Date: 8 April 2013

CaseChat Overview and Summary

In the case of Patrick Operations Pty Ltd v Watson, the employer, Patrick Operations Pty Ltd, appealed against the decision of an arbitrator who found that the employer was the party who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease, within the meaning of section 16(1)(b) of the Workers Compensation Act 1987. The appellant contested the arbitrator's refusal to grant an adjournment, which was necessary for the appellant to adduce fresh or additional evidence. The primary legal issues were whether the refusal of the arbitrator to grant an adjournment constituted a relevant error and if so, whether the appellant could appeal against that order. The court also considered whether fresh or additional evidence could be admitted on appeal.

The court found that the refusal of the arbitrator to grant an adjournment was a relevant error. However, the court noted that the appeal was not limited to this error and that the appellant could appeal against the order refusing the adjournment if it constituted a relevant error. The court found that the refusal to grant an adjournment did constitute a relevant error, and the appellant could appeal against that order. However, the court noted that the appellant's application to adduce fresh or additional evidence on appeal was not successful, as it was not possible to adduce such evidence on appeal. The court found that the arbitrator's decision was correct, and the findings and orders made by the arbitrator were confirmed.

The court ordered that the findings and orders made by the arbitrator as found in the Certificate of Determination dated 6 December 2012 are confirmed. The appellant is to pay the costs of the appeal incurred by Mr Watson and by the second respondent. The appeal was dismissed, and the decision of the arbitrator was upheld.

Orders

Orders of the court

1. The findings and orders made by the Arbitrator as found in the Certificate of Determination dated 6 December 2012 are confirmed.

2. The appellant is to pay the costs of the appeal incurred by Mr Watson and by the second respondent.

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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