Trigg v K.D. Concepts Pty Ltd - [2006] NSWWCCPD 178

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Trigg v K. D. Concepts Pty Ltd [2006] NSWWCCPD 178
APPELLANT:  Tyrone Leonard Trigg
RESPONDENT:  K. D. Concepts Pty Limited
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC181-06
DATE OF ARBITRATOR’S DECISION:          17 May 2006
DATE OF APPEAL DECISION:  7 August 2006
SUBJECT MATTER OF DECISION: ‘Injury’; ‘substantial contributing factor’; ‘psychiatric injury’; ‘intentional self-inflicted injury’; Sections 4, 9A and 14(3) of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION:  Appellant:      P K Simpson & Co Solicitors
Respondent:   Moray and Agnew, Solicitors

ORDERS MADE ON APPEAL: 1. Leave to appeal is granted.

2. The decision of the Arbitrator dated 17 May 2006 is confirmed.
3. No order as to costs.

BACKGROUND TO THE APPLICATION TO APPEAL

On 2 June 2006 Tyrone Leonard Trigg (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 17 May 2006.

The Respondent to the Appeal is K. D. Concepts Pty Ltd (‘the Respondent’), which employed Mr Trigg as a process worker from 1998 to 2001. GIO Workers Compensation (NSW) Limited (‘the Insurer’) acted for and on behalf of the Respondent in the Commission proceedings.

Mr Trigg has claimed lump sum compensation for permanent impairment arising from three injuries that he claims arose out of or in the course of his employment. The alleged injuries are:
·     2 October 1998, when Mr Trigg was cutting panels and an off cut was caught in the machine causing injury to the Applicant’s right hand.
·     30 April 2000 when he was hit in the face by an off cut.
·     4 April 2001 when he was putting timber into a machine and injured his right arm and shoulder.

The Arbitrator’s decision under appeal concerns a claim for lump sum compensation for the injury of 4 April 2001 to his right shoulder, for which the Respondent denies liability. Mr Trigg has admitted that he injured his shoulder at work on 4 April 2001 “on purpose”. However, he argues that he was suffering from a psychological injury at the time, which itself was caused by his employment. Section 14(3) of the Workers Compensation Act 1987 (‘the 1987 Act’) is critical to the determination of Mr Trigg’s claim. It provides that:
“Compensation is not payable in respect of any injury to or death of a worker caused by an intentional self-inflicted injury”.

Mr Trigg has been in receipt of weekly benefits compensation in relation to these injuries, however this forms no part of the current claim, before the Arbitrator or on appeal.

The matter proceeded to arbitration before a Commission Arbitrator on 5 April 2006 and a decision was issued on 17 May 2006.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 17 May 2006 (matter number 181-05) records the Arbitrator’s orders and attaches reasons. The Arbitrator issued a second Certificate of Determination…

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.

Continue reading Trigg v K.D. Concepts Pty Ltd

Details

AGLC: Trigg v K.D. Concepts Pty Ltd [2006] NSWWCCPD 178
Case: [2006] NSWWCCPD 178
Decision Date: 7 August 2006

CaseChat Overview and Summary

In Trigg v K.D. Concepts Pty Ltd, the applicant, Mr Trigg, sought to appeal a decision made by an arbitrator regarding a claim for compensation. The dispute centred on the lump sum compensation for an injury to Mr Trigg’s right arm, which he claimed occurred as a result of an assault by a co-worker during his employment with the respondent. The primary legal issue before the court was whether Mr Trigg's self-inflicted injury, which he claimed was a result of the assault, was sustained during the course of his employment. The court had to determine if the injury arose out of or in the course of Mr Trigg's employment with the respondent and if it was a substantial contributing factor to his condition.

The court examined the Arbitrator's findings, which concluded that Mr Trigg suffered from psychiatric injuries due to the assault but found that the physical injury to his right arm did not arise out of or in the course of his employment. The Arbitrator determined that Mr Trigg's act of injuring his arm was deliberate and not incidental to his employment duties. The Arbitrator found that Mr Trigg's actions were premeditated, intended to cause a minor injury that would result in a short period of incapacity. The court considered whether the self-inflicted injury was a novus actus interueniens that broke the causal chain between the employment and the injury. The Arbitrator’s decision was upheld as Mr Trigg's actions were not a reasonable consequence of his employment and did not arise out of the employment relationship.

The court upheld the Arbitrator's decision and refused leave to appeal, finding that the appeal did not meet the threshold criteria set out in section 352(2) of the 1998 Act. The compensation sought for the injury to the right arm did not meet the required 20% of the amount awarded because no amount was awarded for this injury. The court concluded that the appeal did not have sufficient grounds and did not meet the statutory requirements for leave to appeal. The decision of the Arbitrator was affirmed, and the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which provides:“352 Appeal against decision of Commission constituted by Arbitrator(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both: (a)at least $5,000 (or such other amount as may be prescribed by the regulations), and(b)at least 20% of the amount awarded in the decision appealed against.(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.(4)An appeal can only be made within 28 days after the making of the decision appealed against.(5)An appeal under this section is to be by way of review of the decision appealed against.(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.” The appeal was lodged within 28 days of the Arbitrator’s decision, in compliance with section 352(4) of the 1998 Act. The threshold criteria in section 352(2) are met. The dispute concerns the lump sum compensation sought in relation to the injury to Mr Trigg’s right arm. This is in excess of $5,000. As no amount was awarded by the Arbitrator, section 352(2)(b) has no application (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5). Mr Trigg claimed to have been assaulted at work by a co-worker in September 1998 and again in March 2001. In a separate decision (WCC 21827-05) the Arbitrator found that Mr Trigg “sustained a psychiatric injury as a result of the assault on him by Mr Garcia [a co-worker] during the incident on 23 March 2001 and that this injury arose out of or in the course of his employment with the Respondent”. She found there was “both a causal and temporal relationship between the injury and the employment” and that Mr Trigg’s employment was a ‘substantial contributing factor’ to his injury. In this matter the Arbitrator expressed satisfaction that Mr Trigg:“…suffered from Panic Attacks, Post Traumatic Stress Disorder, Major Depression and Dissociative Disorder as a consequence of the assault on 23 March 2001. I accept Dr Quinn’s opinion that the Applicant’s condition had been present and caused him to cease work in July 2001 and that the Applicant’s symptoms dated before that and were as far as Dr Quinn could ascertain present for a year.…The Applicant’s act in putting his gloved hand into a machine, which occurred not as part of his ordinary work but in order to cause an injury which would enable him to cease work for a period, was a deliberate and wilful act, and not part of, or reasonably incidental to, the Applicant’s work duties with the Respondent.The injury to the right shoulder did not arise out of his employment, as the Applicant’s wilful, deliberate and knowing act of self-injury was a novus actus, which broke any causal nexus between his employment and the injury.Further, the Applicant stepped outside the course of his employment by engaging in an activity which was designed to cause an injury whereby he would cease work, and which was not related to the performance of his duties as an employee of the Respondent.The evidence as to the Applicant’s mental state at the time does not establish that the Applicant was unable to control his behaviour, or that he was unaware of what he was doing, or did not apply his mind rationally to the question of whether or not he should injure himself.Indeed the Applicant’s evidence that he intended, as he had done on another occasion, to cause a minor injury to his fingers which would cause only a short period of incapacity, demonstrated that what occurred was planned by the Applicant with some degree of consideration as to what consequences he wished to create but with an intention to limit the physical and economic consequences of self-injury to those which suited his immediate purposes.Accordingly the injury to the right shoulder did not arise out of or in the course of his employment with the Respondent.”

Ratio Decidendi

Legal Principle Established

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