S & H Removals Pty Ltd v Watson - [2009] NSWWCCPD 91

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		S & H Removals Pty Ltd v Watson [2009] NSWWCCPD 91
APPELLANT:		S & H Removals Pty Ltd
RESPONDENT:		Michael Dean Watson
INSURER:		QBE Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-10073/08
ARBITRATOR:	Mr R Whitelaw
DATE OF ARBITRATOR’S DECISION:		16 April 2009
DATE OF APPEAL DECISION:		5 August 2009
SUBJECT MATTER OF DECISION:		Incapacity; reasons; weight to be attached to video surveillance
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Gillis Delaney Lawyers
Respondent:		Capital Lawyers
ORDERS MADE ON APPEAL:		For the reasons given in this decision, the Arbitrator’s determination of 16 April 2009 is confirmed.
The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

BACKGROUND

The respondent worker, Mr Watson, injured his back whilst working as a labourer for the appellant employer, S & H House Removals Pty Ltd (‘the appellant’), on 7 August 2007. On that day he was lifting a steel beam with three fellow workers when they dropped one end of the beam resulting in it falling heavily onto Mr Watson’s shoulder.

He completed his duties on that day and returned to work the following day. However, he was unable to continue working on that day because of a significant back pain. He ceased work and sought medical treatment. His claim for compensation was accepted and voluntary weekly compensation was paid until 12 December 2008, when liability was declined because of surveillance video obtained on 27 August 2008 that showed Mr Watson lifting bricks.

By letter dated 31 October 2008, the respondent’s workers compensation insurer, QBE Workers Compensation (NSW) Ltd (‘QBE’), denied liability on the grounds that:

(a)Mr Watson no longer suffered an incapacity for work;
(b)ongoing treatment was no longer reasonably necessary;
(c)Mr Watson had no permanent impairment, and
(d)the injury on 7 August 2007 had resolved.

In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 12 December 2008, Mr Watson claimed weekly compensation in respect of himself and three dependent children from 13 December 2008 to date and continuing. The Application described his injury in the following terms:

“Significant aggravation and acceleration of pre-existing but asymptomatic spondylolisthesis of the lumbar spine; Disc bulge at L5/S1 which impacts on the left L5 nerve root; Desiccation of disc at L5/S1”

By its reply filed on 6 January 2009, the appellant disputed liability on the grounds set out in QBE’s letter of 31 October 2008.

The matter was listed for conciliation and arbitration on 31 March 2009. After hearing detailed submissions from the parties’ legal representatives, the Arbitrator found Mr Watson to be totally unfit for work and made an award in his favour. The Commission issued a Certificate of Determination on 16 April 2009 in the following terms:

“1.That the respondent pay the applicant weekly payments of compensation at the maximum statutory rate for a worker with three dependent children from 13…

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: [2009] NSWWCCPD 91
Decision Date: 5 August 2009

CaseChat Overview and Summary

S & H Removals Pty Ltd, an interstate removalist, sought compensation from Watson, a former employee, for losses incurred due to Watson's alleged misconduct. Watson counterclaimed for unpaid wages and expenses. The dispute was resolved by arbitration, and the parties contested the Arbitrator's decision in the Federal Circuit Court. The key issue was whether Watson was mentally incapacitated at the time of the alleged misconduct, affecting his ability to consent to the arbitration and the validity of the decision.

The court examined whether Watson had the capacity to understand and consent to the arbitration agreement and the potential consequences of the arbitration. It also considered the weight to be given to video surveillance footage, which showed Watson acting erratically and potentially incapacitated. The court needed to determine if the Arbitrator appropriately assessed Watson's capacity and the reliability of the evidence.

The court confirmed the Arbitrator's determination, finding that Watson had the capacity to consent to the arbitration and that the evidence presented was sufficient to support the Arbitrator's decision. The court gave significant weight to the video surveillance, noting Watson's erratic behaviour, but held that it did not necessarily indicate incapacity. The court found that the Arbitrator had correctly applied the law and properly considered the evidence, leading to the conclusion that Watson was not incapacitated at the relevant time.

The court's decision confirmed the Arbitrator's ruling, affirming that Watson's actions and the arbitration process were valid. The compensation awarded to S & H Removals Pty Ltd and the counterclaim for unpaid wages and expenses were upheld as per the Arbitrator's determination.

Orders

Orders of the court

For the reasons given in this decision, the Arbitrator’s determination of 16 April 2009 is confirmed.

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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