Sheridan v Clarke
[2002] NSWWCCPD 3
•20 September 2002
REFERRAL OF A QUESTION OF LAW
CITATION:Sheridan v Clarke
[2002] NSWWCCPD 3
APPLICANT: Ian John Sheridan
RESPONDENT: David Anthony Clarke T/as Freestyle Marine Sports
SECOND RESPONDENT: WorkCover Authority of NSW
INSURER:Uninsured Liability and Indemnity Scheme
FILE NO:WCC251-2002
DATE OF DECISION: 20 September 2002
PRESIDENTIAL MEMBER: Justice Terry Sheahan
President
QUESTION OF LAW: Which of the Compensation Court and the Workers Compensation Commission has jurisdiction to deal with the finger injury claim of Ian John Sheridan referred to in the Application filed in the Commission WCC251-2002.
HEARING: On the Papers
REPRESENTATION: Applicant:
Walker Gibbs & King, Cooma Respondent:
Kennedy & Cooke, Cooma
Second Respondent:
WorkCover NSW
ORDERS MADE: Leave to refer the Question of Law is refused.
THE QUESTION OF LAW
The Applicant has sought the leave of the President of the Commission to raise a question of law, namely:
“Which of the Compensation Court and the Workers Compensation Commission has jurisdiction to deal with the finger injury claim of Ian John Sheridan referred to in the Application filed in the Commission WCC251-2002?”.
THE APPLICANT’S INJURIES
These proceedings were commenced in the Commission on 22 May 2002, and concern, as the question indicates, alleged incapacity resulting from an injury to a finger. They are currently in the hands of Arbitrator Dally, but Mr Sheridan is apparently also the Applicant in proceedings pending before the Compensation Court (Matter No. 31411 of 1998) concerning an alleged incapacity in respect of his back.
It is alleged on behalf of Mr Sheridan that he worked for the First Respondent “David Anthony Clarke t/as Freestyle Marine Sports” between 22 April 1996 and November 1996. Clarke is relevantly uninsured, and the WorkCover Authority appears as the Second Respondent.
The proceedings in the Court allege that a back injury was sustained, and/or aggravated, in incidents which occurred on or about 4 and/or 29 October 1996. The earlier of these two incidents involved a fall.
In respect of the alleged finger injury, it is alleged that a non-employment-related incident in April 1997 resulted in the onset of symptoms, which, the applicant learned only in July or September 1999, may be able to be traced back to an earlier infection, which “was the result of a penetrating injury” caused by exposure to “slivers of fibreglass” during his term of employment with Clarke. Such incapacity as is alleged to be caused by the finger does not appear to have existed prior to the domestic incident in April 1997.
In his application for leave to refer the question of law, the Applicant acknowledges that he:
“recalls no specific penetrating injury, but does recall frequent tenderness in his fingers from fibreglass shards penetrating his skin in his work with fibreglass in the First Respondent’s business”.
It is to be noted that the Applicant alleges incapacity as a result of both the back injury and the finger injury. In Blayney Abattoirs Pty Ltd v McConnell (1998) 16 NSWCCR 205, the Court of Appeal made clear that a worker can have two incapacities, each one sounding in economic loss and compensation.
The compensation claim in respect of the finger injury was not made until on or about 5 and/or 16, March 2001, but the “validity” of such “claim” on or about that date remains disputed by WorkCover NSW.
It further appears from the papers that the Compensation Court has declined to associate the dispute about alleged incapacity resulting from the finger injury, with the current dispute before the Court concerning Mr Sheridan’s alleged incapacity resulting from the back injury.
THE LEGAL ISSUES
10. The applicant submits that there is no authority directly on point, but I do not agree, and I believe that I have before me sufficient material to enable me to determine the question of leave “on the papers”.
11. Section 250 of the Workplace Injury Management and Workers Compensation Act 1998 includes the following relevant definitions:
“existing claim means a claim for compensation that is made before the commencement of this section or a related claim that is made or entitled to be made (whether before or after the commencement of this section).
…
new claim means any claim (made or entitled to be made) that is not an existing claim.
…
related claims are claims or further claims for compensation in respect of the same injury, whether or not the claims are in respect of the same kind of compensation.”
12. The definitions in s 250 were recently considered by Neilson J in Coleman v Dennison Hydraulics Australia Pty Ltd [2002] NSWCC 14, where His Honour held, in accordance with well established authority, that “related claims” must be “in respect of the same injury”, in the sense of “the pathological change in the person’s mind or body”, as distinct from the “incident” in which the “injury” may have been sustained.
13. Mr Coleman had sought to associate later-manifesting symptoms with his original back injury, but Mr Sheridan appears to acknowledge that it is probably impossible for him to link his alleged finger injury with either back-injuring incident during October 1996. Neilson J clearly rejected the notion that a “related claim” could be unrelated to the original injury.
DISCUSSION
14. The question of jurisdiction posed in this matter is not a “novel or complex question of law” as required by s 351(3) of the 1998 Act. Such questions arise frequently in the ordinary course of dispute resolution by courts and tribunals. Jurisdiction cannot be conferred on a court or tribunal simply by agreement or disagreement between disputing parties – it requires the satisfaction, on the facts, of particular tests.
15. In these proceedings the Applicant will apparently be put to his proof of a range of matters unless a settlement is reached. One matter which seems from the papers to remain in dispute is the question of whether there was a “valid” claim made in March 2001 for compensation in respect of his finger injury.
16. The factual issues in dispute are for the Arbitrator to determine, if the case does not settle. If the Arbitrator is satisfied of the validity of such a claim for compensation, at around that time (March 2001), then it was indeed made before the commencement of s 250, and, it being an “existing claim”, the Court has jurisdiction, rather than the Commission, and the Applicant may well fail in these proceedings.
17. If the Arbitrator finds, as a matter of fact, that the claim for compensation was not validly made before 1 April 2002 then the question becomes whether or not the claim is a ‘related claim’ to an ‘existing claim’. It is not entirely clear what the Applicant alleges is the status of the claim in this instance. The Applicant submitted, on the assumption that it was made after the relevant date, that…”[N]o causal relationship is alleged between the finger injury and the back injury. No other kind of connection is alleged. The change in status of the applicant’s finger has no connection with the change in status of his back, other than it is alleged to have risen through the same employment. It is therefore not a related claim and no[t] an existing claim”. In this case, on the Applicant’s own submission the claim, is a new claim in accordance with the law as it currently stands.
18. While it is undesirable for proceedings to be on foot between the same parties in both the Court and in the Commission this may be the outcome in this matter,pending the determination of certain factual matters by the Arbitrator. During the transitional period of the establishment of the Commission and the closure of the Court it is inevitable that instances such as this will arise.
DECISION
19. Leave to raise the stated “question of law” should be, and is, refused.
COSTS
20. In all the circumstances there should be no order as to costs.
Justice Terry Sheahan
President
I certify that this is a true and accurate record of the reasons for decision of Justice Terry Sheahan, President, Workers Compensation Commission
Registrar
Date: 20 September 2002
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