Qube Logistics (WA) Pty Ltd v Ward - [2020] WADC 32

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   QUBE LOGISTICS (WA) PTY LTD -v- WARD [2020] WADC 32
CORAM:   VERNON DCJ
HEARD:   4 DECEMBER 2019
DELIVERED          :   17 MARCH 2020
FILE NO/S:   APP 62 of 2019
BETWEEN:   QUBE LOGISTICS (WA) PTY LTD
Appellant
AND
SAAS-FEE PETA-ANN WARD
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE
Coram:   ARBITRATOR MENGLER
File Number            :   A53412

Catchwords:

Workers' compensation - Error of law - Whether finding of fact reasonably open

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Appeal dismissed
Arbitrator's decision affirmed

Representation:

Counsel:

Appellant	:	Mr T J Hammond
Respondent	:	Mr A A Nolan

Solicitors:

Appellant	:	SRB Legal
Respondent	:	Hoffmans Lawyers

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

Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
Skippers Aviation Pty Ltd v Curtin [2015] WADC 82
Velez Pty Ltd v Tudor [2011] WASCA 218

VERNON DCJ:

By notice dated 19 August 2019, the appellant seeks leave to appeal the decision of Mr J Mengler, a WorkCover WA arbitrator, dated 9 July 2019, that the respondent (the worker) sustained a work‑related injury on 13 June 2017.
A party to an arbitration may appeal the arbitrator's decision with leave of the court: s 247(1) of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act). In order to obtain leave, the appellant must demonstrate the arbitrator made an error of law or an error of mixed law and fact: s 247(2)(b) of the Act; BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3] (Pullen JA). If leave is granted, the appeal proceeds by way of a review of the arbitrator's decision, and the court may affirm, vary or quash the decision, or make any decision that should have been made in the first instance: s 247(5) and s 247(7)(a) of the Act.
Under the Act an employer becomes liable to pay compensation to a worker if an 'injury' occurs: s 18(1). The term 'injury' includes a personal injury by accident arising out of or in the course of a worker's employment, or the aggravation of any pre‑existing disease where the employment was a contributing factor to that aggravation: s 5(1)(a) and s 5(1)(d) of the Act.
It is not in issue that the worker suffered a rotator cuff tear to her right shoulder (the injury).[1] The learned arbitrator found that the injury was either caused by an accident suffered in the course of the worker's employment on 13 June 2017, or that accident had caused an aggravation of a pre‑existing injury. Of the five grounds of appeal, the appellant principally relies on ground 1, that this finding was contrary to the compelling inferences in the case and not reasonably open, such that the arbitrator erred in law…

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: [2020] WADC 32
Decision Date: 17 MARCH 2020

CaseChat Overview and Summary

Qube Logistics (WA) Pty Ltd sought review of a decision of an arbitrator regarding a workers' compensation claim brought by Ward. The dispute centred on whether Ward's shoulder injury was caused by an incident at work. The appeal was heard in the Federal Court of Australia.

The court was required to determine whether the arbitrator erred in law by not properly considering the weight of the expert medical evidence. Specifically, the court needed to assess whether the arbitrator had applied the correct legal principles in determining causation and whether the arbitrator's findings were reasonably open on the evidence presented. The court also considered whether there was an error in the arbitrator's reference to a previous case.

The court found that the arbitrator had correctly applied the principles set out in Ansett Transport Industries (Operations) Pty Ltd v Srdic for determining causation. Although the arbitrator referred to another case, Seltsam Pty Ltd v McGuiness, this reference did not impact the decision. The court concluded that the arbitrator's findings on causation were within the scope of what was reasonably open to him based on the evidence. Therefore, the court dismissed the appeal, finding no error of law in the arbitrator's decision.

The Federal Court of Australia affirmed the arbitrator's decision, finding no error of law in the determination of causation. The appeal was dismissed with costs.

Orders

Orders of the court

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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

The appellant accepted the worker's submission that the relevant principles to be taken into account when determining whether a personal injury by accident is suffered in the course of the worker's employment were outlined by Toohey J in Ansett Transport Industries (Operations) Pty Ltd v Srdic.[46][46] Respondent's submissions, par 37; Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41. As the worker further submits the arbitrator identified those principles at pars 43, 46 and 47 of the reasons, and applied them at par 61.[47][47] Respondent's submissions, pars 38 and 39. In my view all the arbitrator seeks to do in par 54 of the reasons is to recite the uncontroversial proposition that courts must determine the existence of a causal relationship on the balance of probabilities and that any inference as to the probabilities may be drawn from a number of pieces of evidence, each of which does not rise above the level of possibility. In submitting that the arbitrator relied on Seltsam Pty Ltd v McGuiness[48] in the way alleged, the appellant relies on the arbitrator's use of the phrase 'is no more than a possibility' in par 60(14)(a) when referring to the likelihood of the cuff tear occurring or being worsened by aggravation or acceleration 'despite the employment duties': that is unrelated to those employment duties. However the arbitrator goes on, in that paragraph, to give his reasons for dismissing, as possible causes of the worker's rotator cuff tear, any cause unrelated to a work incident.[48] Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262. In addition, in considering the issue of causation in par 61 of the reasons the arbitrator specifically refers to Ansett and does not make any reference to Seltsam. Accordingly, as the worker submits, if there were an error in referring to Seltsam, it apparently played no role in the arbitrator's decision. I find that ground 4 does not disclose an error of law. Ground 5 states:[49]Did the Arbitrator err in fact and in law in failing to have regard to the weight of the expert medical evidence, which was to the effect that a causal connection between the worker shoulder injury and the incident was no more than a possibility?The Arbitrator erred in fact and in law in failing to have proper regard of the weight of the expert medical evidence, which was to the effect that a causal connection between the workers shoulder injury and the incident was no more than a possibility.[49] Combining the ground of appeal and the elaboration on the ground in Annexure A to the appeal. In submissions this ground appeared in fact to be a reworking of ground 4, that the arbitrator had misdirected himself as to the correct test for determining a causative link, and was not an invitation to analyse the medical evidence. As I have found that ground 4 does not disclose an error of law it follows that this ground does not disclose an error of law. However, if I am wrong in that, I consider that, as the worker's counsel submits, ground 5 is otherwise no more than a complaint that the arbitrator made a finding against the weight of evidence. In my view the arbitrator's finding was open to him and does not disclose an error of law.