Taylor v J and D Stephens Pty Ltd - [2017] NSWWCCPD 50

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*STATUS: Appeal to the Court of Appeal allowed – Taylor v J & D Stephens Pty Ltd* [2018] NSWCA 267**
CITATION:	Taylor v J & D Stephens Pty Ltd [2017] NSWWCCPD 50
APPELLANT:	Matthew Taylor
RESPONDENT:	J & D Stephens Pty Ltd
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-72/17
ARBITRATOR:	Ms J Bamber
DATE OF ARBITRATOR’S DECISION:	20 June 2017
DATE OF APPEAL DECISION:	14 November 2017
SUBJECT MATTER OF DECISION:	Submission not argued at arbitration; parties bound by own conduct; Mamo v Surace [2014] NSWCA 58 applied; matters required to be established for the purpose of ss 4(b)(i) and 4(b)(ii) of the Workers Compensation Act 1987; distinction between what is required for the purposes of s 4(b) and ss 15 and 16 of the Workers Compensation Act 1987; principles in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 discussed
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	McCabe Partners Lawyers
Respondent:	Lee Legal Group
ORDERS MADE ON APPEAL:	1. The Certificate of Determination of the Arbitrator dated 20 June 2017 is confirmed.

INTRODUCTION

Matthew Taylor, the appellant, brought proceedings in respect of alleged injuries that included a frank injury on 24 June 2015 to the right forearm and injury to the neck, left shoulder and elbow, right shoulder, lumbar spine, left knee and right knee said to have arisen as a result of the “nature and conditions” of his employment with J & D Stephens Pty Ltd (J & D Stephens), the respondent, as a shearer. In the alternative, Mr Taylor claimed a disease injury or aggravation thereof pursuant to s 4(b)(i) and/or s 4(b)(ii) of the Workers Compensation Act1987 (the 1987 Act). Mr Taylor also claimed lump sum entitlements pursuant to s 66 of the 1987 Act in respect of each of those body parts totalling 49% whole person impairment. Mr Taylor further claimed future medical expenses pursuant to s 60 of the 1987 Act.
In the proceedings before the Arbitrator, Mr Taylor discontinued the lump sum claim in respect of the frank injury on 24 June 2015 as that injury had been accepted by the insurer and the whole person impairment assessment did not reach the threshold of entitlement pursuant to s 66(1) of the 1987 Act. The claim for future medical expenses was also discontinued. The issues that remained to be determined were whether Mr Taylor suffered injury as a result of the nature and conditions of his employment or in the alternative whether he suffered a disease injury pursuant to s 4(b)(i) and/or s 4(b)(ii) of the 1987 Act.

BACKGROUND

Mr Taylor’s work history was primarily that of a wool presser, shed hand and shearer. He had previously worked for a number of shearing contractors, including J & D Stephens Pty Ltd, over the years. He recommenced with J & D Stephens as a shearer approximately 2 to 3 years prior to…

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: [2017] NSWWCCPD 50
Decision Date: 14 November 2017

CaseChat Overview and Summary

In the matter of Taylor v J and D Stephens Pty Ltd, the dispute arose from the decision of an arbitrator who made a certificate of determination in favour of the claimant, Taylor. Taylor, a former employee, sought compensation for injuries sustained during his employment. The respondent, J and D Stephens Pty Ltd, contested the award and sought to have it overturned. The case was heard in the District Court of New South Wales. The central legal issues in this case revolved around the scope of arguments that could be submitted at an arbitration hearing and the extent to which parties are bound by their conduct during such hearings. Specifically, the court needed to determine whether certain submissions made by Taylor at the arbitration were binding on him, and whether the arbitrator's decision could be overturned based on these submissions.

The court examined the principles set out in Mamo v Surace, focusing on the concept that parties are generally bound by their own conduct during arbitration proceedings. The court also considered the distinctions between the requirements for establishing certain conditions under sections 4(b)(i) and 4(b)(ii) of the Workers Compensation Act 1987, as well as the differences with sections 15 and 16 of the same Act. Furthermore, the court discussed the principles articulated in Nguyen v Cosmopolitan Homes, which pertain to the enforcement of conduct during arbitration. The court concluded that Taylor's submissions, although not explicitly argued at the arbitration, were effectively made and thus binding. The court confirmed that the Certificate of Determination issued by the arbitrator was valid and could not be overturned on the grounds presented by the respondent.

The court found in favour of Taylor, confirming the Certificate of Determination issued by the arbitrator. This decision underscores the importance of clarity and precision in submissions during arbitration, as parties are bound by their conduct, even if certain arguments were not explicitly articulated at the hearing. The court's ruling reinforces the principle that parties must be mindful of their obligations and the potential consequences of their conduct during arbitration proceedings. The final order of the court was to confirm the Certificate of Determination of the Arbitrator dated 20 June 2017, leaving the respondent with no grounds for further appeal on the issues raised in this case.

Orders

Orders of the court

1. The Certificate of Determination of the Arbitrator dated 20 June 2017 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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