Transfield Services (Aust) Pty Ltd v Wicks (No 2) - [2012] NSWWCCPD 77

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			Transfield Services (Aust) Pty Ltd v Wicks (No 2) [2012] NSWWCCPD 77
APPELLANT:			Transfield Services (Aust) Pty Ltd
RESPONDENT:			Noel Wicks
INSURER:			Transfield Services (Aust) Pty Ltd
FILE NUMBER:			A2-801/11
ARBITRATOR:	Ms K Haddock
DATE OF ARBITRATOR’S DECISION:			2 July 2012
DATE OF APPEAL HEARING:		13 December 2012
DATE OF APPEAL DECISION:			20 December 2012
SUBJECT MATTER OF DECISION:			Psychological injury; post-traumatic stress disorder; fresh evidence or additional evidence on appeal; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; disease; aggravation of disease; points not argued at arbitration; non-compliance with Practice Direction No 6
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			Oral
REPRESENTATION:			Appellant:	Mr Beauchamp, instructed by Holman Webb Lawyers
Respondent:	Mr Stockley, instructed by Steve Masselos & Co
ORDERS MADE ON APPEAL:			The Arbitrator’s determination of 2 July 2012 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530.

INTRODUCTION

This is the second appeal between the same parties over the same subject matter. The essential issue is whether the respondent worker, Noel Wicks, received a psychological injury in the course of or arising out of his employment as a cleaner with Transfield Services (Aust) Pty Ltd (Transfield). In the first Arbitrator’s decision, delivered on 25 May 2011, Mr Wicks succeeded.
I upheld Transfield’s appeal against that decision and remitted the matter to another Arbitrator for re-determination (Transfield Services (Aust) Pty Ltd v Wicks [2011] NSWWCCPD 63). In a second arbitration, heard on 11 April 2012 and 31 May 2012, and decided on 2 July 2012, Mr Wicks again succeeded with his claim. Transfield has again appealed.

BACKGROUND

Mr Wicks started work as a cleaner with the Government Cleaning Service at the Newcastle Police Station in about 1980. He was later transferred to the Maitland Police Station, where he worked until December 2009.
In 1993 or 1994, the Government Cleaning Service was taken over by Tempo Cleaning Services Pty Ltd (Tempo) and Mr Wicks’s employment transferred to that company. Later, Transfield took over the contract work performed by Tempo and Mr Wicks started work for that company on 29 January 2006.
The worker’s duties at Maitland Police Station, where he worked for about 18 years, required him to vacuum, mop, sweep, clean toilets, and generally clean and tidy the station. He was also on-call 24 hours a day, seven days a week to perform additional cleaning duties, which he described as “forensic cleans” (referred to as “emergency cleans” in other parts of the evidence). They involved cleaning blood, vomit, faeces and urine from prison cells, the charge room and police vehicles.
In addition, Mr Wicks said that, in the 1980s and 1990s, that is, before he started work with Transfield, he was exposed to distressing photographs and other exhibits of crime scenes in the forensics room at the Maitland Police Station. That exposure stopped prior…

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.

Keep reading for free

Create a free CaseChat account to read Transfield Services (Aust) Pty Ltd v Wicks (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NSWWCCPD 77
Decision Date: 20 December 2012

CaseChat Overview and Summary

Transfield Services (Aust) Pty Ltd sought to appeal against an arbitrator’s determination that it was liable for compensation to its former employee, Mr. Wicks, for a psychological injury sustained in the course of his employment. The dispute centred on the employer's liability for the worker's post-traumatic stress disorder, which the arbitrator had found was caused by the employer's failure to provide a safe work environment. The matter was heard in the Industrial Division of the Supreme Court of New South Wales.

The primary legal issue was whether the Industrial Division had jurisdiction to consider fresh evidence presented by the employer on appeal, despite the employer's non-compliance with the relevant Practice Direction. The employer also argued that the arbitrator had erred in finding that the disease was caused by the employment, rather than merely aggravated by it. Additionally, the employer contested the award of costs, asserting that the worker's claim was not substantiated.

The court found that the Industrial Division did have jurisdiction to consider the fresh evidence, given the circumstances of the case. The employer's non-compliance with Practice Direction No 6 did not preclude the court from exercising its discretion to admit the evidence, particularly since the worker had not opposed the evidence's admission. The court also concluded that there was sufficient evidence to support the arbitrator's finding that the employment was the primary cause of the worker's disease, rather than merely an aggravating factor. Consequently, the appeal was dismissed and the worker's costs of the appeal were awarded against the employer.

The court confirmed the arbitrator's determination and ordered the employer to pay the worker’s costs of the appeal, amounting to $2,530. This decision underscores the importance of adhering to procedural requirements in industrial law matters, while also affirming the Industrial Division's ability to exercise discretion in the interests of justice.

Orders

Orders of the court

The Arbitrator’s determination of 2 July 2012 is confirmed.

The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.