Star City Pty Ltd v Hudson

[2007] NSWCA 188

NEW SOUTH WALES COURT OF APPEAL

CITATION:      STAR CITY PTY LTD v HUDSON [2007]  NSWCA 188

FILE NUMBER(S):
40763/2006

HEARING DATE(S):            18 July 2007

JUDGMENT DATE: 18 July 2007

PARTIES:
Star City Pty Limited - Appellant
Liana Hudson - Respondent

JUDGMENT OF:      Beazley JA Campbell JA Handley AJA   

LOWER COURT JURISDICTION: Workers Compensation Commission

LOWER COURT FILE NUMBER(S):        WC 15875/2005

LOWER COURT JUDICIAL OFFICER:     Bill Roche ADP

COUNSEL:
A:  G. Little SC and M. Best
R:  D.R. Benson

SOLICITORS:
A:  George Mallos (Bondi Junction)
R:  Steve Masselos & Co.

CATCHWORDS:
WORKERS COMPENSATION  - Appeal – no question of principle.

LEGISLATION CITED:
Workplace Injury Management and Workers Compensation Act 1998

CASES CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40763/06

BEAZLEY JA
CAMPBELL JA
HANDLEY AJA

WEDNESDAY 18 JULY 2007

STAR CITY PTY LIMITED v LIANA HUDSON

CATCHWORDS

WORKERS COMPENSATION – Appeal – no question of principle.

HEADNOTE

A Deputy President of the Workers Compensation Commission dismissed an employer’s appeal from the decision of an Arbitrator in favour of the worker.  On a further appeal to the Court of Appeal which was limited to questions of law, the employer challenged the finding that notice had been given in respect of one of the worker’s injuries.  The Deputy President rejected the employer’s appeal on that question on three grounds.  Held: there was evidence to support the Deputy President’s decision on two of those grounds, and any error of law in his decision on the other ground could not vitiate his ultimate decision.

ORDERS

Appeal dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40763/06

BEAZLEY JA
CAMPBELL JA
HANDLEY AJA

WEDNESDAY 18 JULY 2007

STAR CITY PTY LIMITED v LIANA HUDSON

Judgment

1. HANDLEY AJA: This is an appeal by the employer from the decision of a Deputy President of the Workers Compensation Commission who dismissed an appeal by the employer from a decision by an arbitrator in favour of the worker. The appeal to this court is limited to questions of law by s 353(1) of the Workplace Injury Management and Workers Compensation Act 1998.

2. Although the employer’s notice of appeal asserts error of law on a number of grounds Mr Little SC has confined the appellant’s arguments to a challenge to the Deputy President’s findings on the question of notice of injury.  The worker was employed at Star City Casino as a croupier on the blackjack tables and as a result of her repetitive work in dealing and shuffling cards she suffered a repetitive strain injury to her left wrist.   Following this injury the worker submitted an initial claim form to the employer on 24 June 2003.  This claim form identified her injury as being to her left wrist. 

3. The employer accepted the claim and an injury management plan was put in place.  Under that plan the worker’s duties were changed and she was assigned to work on a roulette wheel table where she would have to activate the wheel with her right hand.  Following this change of duties she commenced to complain of pain in her right hand and wrist as early as September 2003 as Dr Cheiw recorded in his report of 20 November 2004.

4. Section 254(1) requires notice of injury to be given to the employer. 

   (1)        Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.

5. Section 254(2) provides that failure to give notice of injury is not a bar  to the recovery of compensation:

   “if in proceedings to recover the compensation...it is found that there are special circumstances as provided by this section”

6. Special circumstances are defined in s 254(3) and s 254(4).  The relevant provision for present purposes is s 254(3)(c) which provides that special circumstances are established if -

   “the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened”

7. Mr Little’s principal submission was that injury in these sections has its defined meaning in s 4(1) and must either arise out of or in the course of the worker’s employment or the employment must be a contributing factor.  He submitted that the injury to the worker’s right wrist following her change of duties was an independent injury, and notice of that injury had to be given. 

8. However the Deputy President confirmed the arbitrator’s finding that the worker had given oral notice of her right hand injury.  This is permitted by s 255(2).  The Deputy President also found that notice of the injury to the right hand was not required because it was a result of the left hand injury, and he also found special circumstances within s 254(3)(c). 

9. Mr Little’s principal point, if valid, would only attack the second finding by the Deputy President.  There was evidence to support the concurrent findings that the worker had given oral notice of her right hand injury and there was evidence to support the finding that there were special circumstances within s 254(3)(c). 

10. It is clear, and Mr Little frankly conceded, that the appeal could not succeed unless the appellant displaced all three findings by the Deputy President.  He made no serious attempt to establish that there was no evidence to support the findings that the worker had given oral notice of her right hand injury, and that special circumstances had been established. 

11. The second injury management plan prepared by the employer, dated 26 October 2004, referred to injuries to the worker’s left and right wrists and was signed by the worker and the employer’s rehabilitation co-ordinator.  This is practically conclusive evidence that an oral claim had been made as found by the Deputy President and that there were special circumstances. 

12. The appellant has failed to establish that the ultimate conclusions of the Deputy President were vitiated by legal error and I would propose that the appeal be dismissed with costs.

13. BEAZLEY JA:  I agree.

14. CAMPBELL JA:  I agree.

15. BEAZLEY JA:  The order of the court is that proposed by Justice Handley.

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LAST UPDATED:     3 August 2007