Taumata v Movers and Shakers Pty Ltd - [2005] NSWWCCPD 123

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Taumata v Movers and Shakers Pty Ltd [2005] NSWWCCPD 123
APPELLANT:  Michael Taumata
RESPONDENT:  Movers and Shakers Pty Ltd
INSURER:Allianz Australia Workers’ Compensation (NSW) Ltd
FILE NUMBER:  WCC 5538-04
DATE OF ARBITRATOR’S DECISION:          20 August 2004
DATE OF APPEAL DECISION:  31 October 2005
SUBJECT MATTER OF DECISION:                Lack of procedural fairness, credibility of applicant and oral evidence.
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant: White Barnes Solicitors
Respondent: Sparke Helmore Lawyers

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 20 August 2004 is revoked and the matter is remitted to the Registrar for referral to a different arbitrator for determination of outstanding issues.
The Respondent, Movers and Shakers Pty Ltd, is to pay the Appellant, Mr Taumata’s costs in this appeal as agreed or assessed.

BACKGROUND TO THE APPEAL

On 15 September 2004, Michael (“Sonny”) Taumata sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 20 August 2004. Mr Taumata was born in New Zealand on 13 October 1945 and is aged 60. He migrated to Australia in 1982.

The Respondent to the Appeal is Movers and Shakers Pty Ltd, by whom Mr Taumata was employed as a removalist from December 1999. He was mainly involved in office relocations. Mr Taumata states that he suffered an injury on 17 July 2003 while lifting a heavy safe during the course of his work, resulting in a subsequent myocardial infarction (heart attack). On 18 July 2003, he notified his supervisor that he was feeling unwell and went home late morning. He then went to see his doctor and was later hospitalised. On 25 July 2003, Mr Taumata underwent triple coronary artery bypass surgery. Post operative complications later required further surgery.

On 18 September 2003, Mr Taumata lodged a claim for workers compensation. He claims weekly compensation from 17 July 2003 to date and continuing, together with medical, hospital or related expenses. Movers and Shakers deny liability. On 2 April 2004, Mr Taumata’s solicitors lodged an ‘Application to Resolve a Dispute’ with the Commission. Movers and Shakers’ ‘Reply’ was lodged on 23 April 2004. The Arbitrator held a teleconference with the parties on 8 July 2004 and, on 11 August 2004, conciliation having proved unsuccessful, he conducted an arbitration hearing. On 20 August 2004, the Arbitrator made the determination set out below.

THE DECISION UNDER REVIEW

The Certificate of Determination, dated 20 August 2004, records the Arbitrator’s orders as follows:

“1. Award for the Respondent pursuant to sections 36 and 60 of the 1987 Act.
2. Each party to pay their own costs.”

In his ‘Statement of Reasons for Decision’, the Arbitrator, while in no doubt that Mr Taumata suffered an acute myocardial infarction, was not satisfied that this occurred as a result of lifting a heavy steel safe at work. The Arbitrator did not find Mr Taumata’s…

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: [2005] NSWWCCPD 123
Decision Date: 31 October 2005

CaseChat Overview and Summary

In the case of Taumata v Movers and Shakers Pty Ltd, the Workers Compensation Commission was tasked with determining whether Michael Taumata, a removalist employed by Movers and Shakers, received an injury in the course of his employment. Taumata claimed that he suffered a myocardial infarction as a result of lifting a heavy safe during work. The Arbitrator initially denied Taumata's claim, finding that the alleged incident did not occur, and awarded Movers and Shakers costs. Taumata appealed this decision, arguing that the Arbitrator denied him procedural fairness by not allowing him and his colleague, Mr Ratima, to give oral evidence. The appeal centred on whether the Arbitrator's refusal to allow oral evidence constituted a denial of procedural fairness and whether the Arbitrator's decision was based on logically probative evidence.

The Court found that the Arbitrator denied Taumata procedural fairness by not allowing him and Mr Ratima to give oral evidence. The Arbitrator’s decision hinged on Taumata's credibility, particularly in light of inconsistencies in his statements and his initial attribution of his illness to curried sausages. The Court noted that if the Arbitrator had concerns about Taumata's credibility, he should have allowed Taumata the opportunity to address these matters, either by giving oral evidence or by putting the perceived inconsistencies to him. The Court held that the Arbitrator's failure to do so amounted to a denial of procedural fairness, an error of law going to the jurisdiction of the Commission. Consequently, the Arbitrator's decision was revoked, and the matter was remitted to the Registrar for referral to a different arbitrator for redetermination. Movers and Shakers was ordered to pay Taumata's costs in the appeal.

Orders