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Prestige Property Pty Ltd v Rafiq

Prestige Property Pty Ltd v Rafiq

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Case Copied 19 December 2006 35 min read

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WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Prestige Property Pty Ltd v Rafiq [2006] NSWWCCPD 355
APPELLANT:  Prestige Property Pty Ltd
RESPONDENT:  Suiad Rafiq
INSURER:Self Insured
FILE NUMBER:  WCC15474-05
DATE OF ARBITRATOR’S DECISION:          24 February 2006
DATE OF APPEAL DECISION:  19 December 2006
SUBJECT MATTER OF DECISION:                Weight of evidence; Arbitrator relying on his own experience.
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Turkslegal
Respondent:   Sowden Akerman

ORDERS MADE ON APPEAL: The Arbitrator’s finding that the Respondent Worker suffered personal injury to her left shoulder in her fall from a ladder at her workplace on 13 March 2002 is revoked.

Paragraphs two, three and four of the Arbitrator’s decision dated 24 February 2006 are revoked and the following order made:
“The matter is remitted to a different Arbitrator for the Respondent Worker’s outstanding rights and entitlements under the Workers Compensation Act 1987 to be redetermined in accordance with the reasons in this decision.”
Paragraph one of the Arbitrator’s decision of 24 February 2006 has already been implemented and is confirmed.
Costs of the first Arbitration hearing are to follow the event of the second Arbitration.
No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 21 March 2006 Prestige Property Pty Ltd (‘the Appellant Employer/Prestige’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 24 February 2006.

The Respondent to the Appeal is Suiad Rafiq (‘the Respondent Worker/Mrs Rafiq’).

On 17 October 2001 Mrs Rafiq sustained injury to her back and left knee when she slipped and fell in the course of her employment with the Appellant Employer. On 13 March 2002 she sustained further injuries when she fell from a ladder in the course of her employment. The exact nature and extent of the injuries sustained in the March 2002 fall is the subject of dispute. That the Respondent Worker injured her back, left knee and right shoulder is not disputed (Appellant Employer’s submissions, paragraph 17). However, the Appellant Employer contests any liability in respect of the left shoulder on the ground that it was not injured in the fall on 13 March 2002 or at all.

The matter was listed for conciliation and arbitration on 24 January 2006 when lengthy discussions took place about how the matter was to proceed. Oral evidence was taken from the Respondent Worker concerning when she first complained of pain in her left shoulder (transcript page one to six). A lengthy discussion then took place about the issues to be determined at the Arbitration hearing. Without resolving that issue, submissions were made (transcript page six to 16) as to whether the question of Mrs Rafiq’s incapacity for work should be referred to an Approved Medical Specialist (‘AMS’). The Arbitrator then gave reasons (‘the first decision’) set out at page 16 to 20 of transcript making various findings. His reasons dealt not only…

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: [2006] NSWWCCPD 355
Decision Date: 19 December 2006

CaseChat Overview and Summary

In the case of Prestige Property Pty Ltd v Rafiq, the Workers Compensation Commission reviewed an appeal against a decision made by an Arbitrator, where the primary issue was whether the Respondent Worker, Suiad Rafiq, had injured her left shoulder in a fall from a ladder on 13 March 2002. The Appeal was brought by the Appellant Employer, Prestige Property Pty Ltd, which contested the Arbitrator's finding that Ms Rafiq had injured her left shoulder in the fall. The appeal also contested the Arbitrator's decision to make a general order for the payment of section 60 expenses.

The Arbitrator had found in favour of Ms Rafiq, accepting her sworn evidence that she had injured her left shoulder in the fall. The Arbitrator relied on his personal experience in making this finding, which was one of the issues raised on appeal. The Appellant Employer argued that the Arbitrator had erred in finding that Ms Rafiq had injured her left shoulder, ignored logically probative evidence, and made a finding against the weight of the evidence. The Appeal also contested the Arbitrator's decision to make a general order for the payment of section 60 expenses, arguing that the Arbitrator failed to consider the competing evidence on this issue.

The Deputy President, Bill Roche, found that the Arbitrator had erred in taking into account irrelevant matters, namely, his personal experience, and in failing to consider all the relevant evidence. The Deputy President also found that the Arbitrator was in error in making a general order for the payment of section 60 expenses. Consequently, the Arbitrator's finding that Ms Rafiq had injured her left shoulder in the fall was revoked, and the matter was remitted to a different Arbitrator for the redetermination of Ms Rafiq's outstanding rights and entitlements under the Workers Compensation Act 1987. The general order for the payment of section 60 expenses was also revoked, and the matter was to be determined afresh along with the question of whether Ms Rafiq had injured her left shoulder in or as a result of the fall in March 2002.

Orders