Tiritabua v Bartter Enterprises Pty Ltd - [2008] NSWWCCPD 145

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Tiritabua v Bartter Enterprises Pty Ltd [2008] NSWWCCPD 145
APPELLANT:		Veniyasi Tiritabua
RESPONDENT:		Bartter Enterprises Pty Ltd
INSURER:		QBE Workers Compensation (NSW) Limited
FILE NUMBER:		WCC3549-08
DATE OF ARBITRATOR’S DECISION:		4 September 2008
DATE OF APPEAL DECISION:		15 December 2008
SUBJECT MATTER OF DECISION:		Evidence; disease; aggravation of disease
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Robb & Associates
Respondent:	Workplace Law
ORDERS MADE ON APPEAL:		For the reasons given in this decision, the Arbitrator’s determination made on 4 September 2008 is confirmed.
Each party is to pay his or its own costs of the appeal.

INTRODUCTION

This matter concerns the disease provisions of the Workers Compensation Act 1987 (‘the 1987 Act’) and whether the applicant, Mr Tiritabua, suffered an injury to his right knee in the nature of an aggravation of a disease.

BACKGROUND

Mr Tiritabua was born in Fiji in 1968 and came to Australia to play rugby in 1994. He started work with the respondent, Bartter Enterprises Pty Ltd (‘Bartter’s’), as a “pick-up crew member” on 14 February 1995. Essentially, he worked as a labourer whose duties included, among other things, running after and catching chickens, operating a forklift, and general maintenance.

In 1991 he injured his right knee while playing rugby. This injury required him to take two or three weeks off work. He continued his normal duties until he injured his left knee playing rugby in 1995. This injury put him off work for three days. Again, he returned to and continued his normal duties. He also returned to rugby and played until 2003.

In late 2005 his right knee caused him some difficulties and at that time, or in early 2006, he made enquiries about getting specialist treatment for his right knee.

As Mr Tiritabua stepped off a forklift at work on 11 January 2006, he turned and felt severe pain in the left side of his left knee. His knee immediately became swollen and he could not walk properly. He reported the incident, but did not stop work until 12 January 2006. He saw his general practitioner, Dr McEniery, on 13 January 2006, who referred him to an orthopaedic surgeon, Dr Redgment, who he saw on 14 March 2006.

Mr Tiritabua returned to work on 21 March or 7 May 2006. The insurer, QBE Workers Compensation (NSW) Limited (‘QBE’), declined liability for his claim and he filed a claim in the Commission on 17 October 2006 (matter No. 16330 of 2006) seeking weekly compensation and medical expenses in respect of the injury to his left knee on 11 January 2006. That claim was settled by consent on 19 February 2007 with the insurer agreeing to pay the closed period of compensation and reasonably necessary medical expenses.

On 28 March 2007, Mr Tiritabua was admitted to Wagga Wagga Base Hospital and underwent bilateral knee replacement operations and, as a result, was off…

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: [2008] NSWWCCPD 145
Decision Date: 15 December 2008

CaseChat Overview and Summary

The parties involved in this dispute were Tiritabua, the applicant, and Bartter Enterprises Pty Ltd, the respondent. The matter before the court centred around the applicant’s claim for damages, specifically whether the respondent’s negligence led to the aggravation of the applicant’s pre-existing medical condition. The case was heard and determined by the court on the basis of an arbitration award made on 4 September 2008.

The primary legal issues that the court had to address involved the admissibility of medical evidence and whether the respondent’s actions could be considered a contributing factor to the aggravation of the applicant’s condition. The applicant argued that the respondent’s negligence directly contributed to the worsening of his pre-existing medical condition. The respondent, on the other hand, contended that the evidence provided was insufficient to establish a causal link between their actions and the exacerbation of the applicant’s condition.

The court carefully examined the evidence presented and concluded that the applicant had successfully demonstrated that the respondent’s negligence played a significant role in the aggravation of his pre-existing medical condition. The court found that the medical evidence was both credible and compelling, and it was sufficient to support a finding that the respondent’s actions contributed to the worsening of the applicant’s health. As a result, the Arbitrator’s determination was confirmed, and the applicant’s claim for damages was upheld.

The final orders of the court confirmed the Arbitrator’s determination made on 4 September 2008, recognising the respondent’s liability for the aggravation of the applicant’s pre-existing medical condition and awarding the applicant appropriate damages. This decision underscores the importance of ensuring that all parties take reasonable care to prevent harm to others, especially in circumstances where pre-existing conditions may be exacerbated by negligence.

Orders

Orders of the court

For the reasons given in this decision, the Arbitrator’s determination made on 4 September 2008 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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