Tupaea v Coles Liquor

Case [2020] WADC 83

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   TUPAEA -v- COLES LIQUOR [2020] WADC 83

CORAM:   TROY DCJ

HEARD:   6 MAY 2020

DELIVERED          :   12 JUNE 2020

FILE NO/S:   APP 99 of 2019

BETWEEN:   NATHAN TUPAEA

Appellant

AND

COLES LIQUOR

Respondent

ON APPEAL FROM:

Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE (WA)

Coram:   ARBITRATOR FLETCHER

File Number            :   A60170


Catchwords:

Workers' compensation - Appeal from arbitrator - Whether error of law - Failing to determine existence of alternative s 5(1)(d) injury - Reversal of onus of proof - Whether grounds of appeal challenging factual findings involved errors of law

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 3, s 5, s 32, s 44, s 188, s 213, s 247 and sch 3

Result:

Leave to appeal refused
Appeal dismissed

Representation:

Counsel:

Appellant : Mr A G Illich
Respondent : Mr A A Nolan

Solicitors:

Appellant : Eureka Lawyers
Respondent : Kott Gunning

Case(s) referred to in decision(s):

A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491

Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Beer v Duracraft Pty Ltd [2004] WASCA 192

BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250

BHP Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60

Carlson v Princess Margaret Hospital (Unreported, WASCA, Library No 930008, 12 January 1993)

Erceg v Galati Nominees Pty Ltd [2016] WASCA 112

Glenister v NMAHS-Mental Health (Graylands Hospital) [2017] WADC 14

International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319

MacMahon Holdings Ltd v Mckenzie [2018] WADC 28

Marks v Coles Supermarkets [2020] WADC 36

Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32

Pacific Industrial Co v Jakovljevic [2008] WASCA 60

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

Pollock v Wellington (1996) 15 WAR 1

Suleski v Pilbara Iron Co (Services) Pty Ltd [2018] WASCA 147

TROY DCJ:

Introduction

  1. Coles Liquor employed Mr Tupaea at its Liquorland drive-through bottle shop in Woodvale.  On 8 February 2019 Mr Tupaea was operating cash register number 3.  He alleges that he received an electric shock when his right hand made contact firstly with the cash register draw as he was closing it, and then with the bench top upon which the register was located.  He spent the next five days in hospital.

  2. Mr Tupaea contends that the electric shock caused him injury in the form of left facial nerve palsy and right hand hemiparesis within the meaning of compensable 'injury' as defined in s 5(1)(a) of the Workers' Compensation and Injury Management Act1981 (WA) (the Act).[1]  The certificate of outcome on conciliation[2] confined the dispute to s 5(1)(a). The written submissions on behalf of Mr Tupaea prior to arbitration however, alleged in the alternative, a recurrence, aggravation or acceleration of a pre-existing…

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AGLC
Tupaea v Coles Liquor [2020] WADC 83
Case
[2020] WADC 83
Decision Date

CaseChat Overview and Summary

Tupaea v Coles Liquor was a workers' compensation matter heard in the District Court of Western Australia. The dispute arose from an incident where Mr Tupaea, an employee of Coles Liquor, claimed to have suffered an electric shock while working. He sought compensation for the alleged injury, which he claimed resulted in incapacity and additional expenses. The case was appealed from an arbitrator's decision, with Mr Tupaea challenging the arbitrator's findings on various grounds.

The primary legal issues before the court were whether the arbitrator had erred in law by failing to determine the existence of an alternative injury under s 5(1)(d) of the relevant Act, and whether the grounds of appeal challenging the factual findings involved errors of law. Specifically, the court needed to determine if the arbitrator had correctly applied the principles of equity, good conscience, and the substantial merits of the case, as mandated by s 188(2)(b) of the Act.

The court examined the arbitrator's decision and found that the arbitrator had indeed considered the fundamental issues but had not explicitly addressed the alternative injury under s 5(1)(d). The court concluded that this omission constituted an error of law. Additionally, the court found that some of the grounds of appeal did involve errors of law, particularly in how the arbitrator had assessed the evidence and made factual findings. The court noted that while the arbitrator was not bound by the rules of evidence, the principles underpinning those rules, such as fairness and the proper proof of contentious facts, should still be adhered to.

The final orders of the court reversed the arbitrator's decision and remitted the matter back for reconsideration in light of the court's findings. The court emphasised the need for the arbitrator to explicitly address all relevant legal issues and to apply the principles of equity, good conscience, and the substantial merits of the case in a manner consistent with the statutory framework.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As has been pointed out on many occasions, pt XI of the Act established a system of dispute resolution intended to be simpler, quicker, and cheaper than traditional litigation. Fundamental to that process is the way that s 188 provides that an arbitrator is to conduct hearings and receive evidence: Section 188 Practice and procedure, generally(1)An arbitrator is bound by rules of natural justice except to the extent that this Act authorises, whether expressly or by implication, a departure from those rules.(2)The Evidence Act (WA) 1906 does not apply to proceedings before an arbitrator and an arbitrator -(a)is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the arbitration rules make them apply; and(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.(c)An arbitrator may inform himself on any matter as the arbitrator thinks fit.(3)An arbitrator may -(a)receive in evidence any transcript of evidence in proceedings before a court or other person or body acting judicially and draw any conclusion of fact from the transcript; and(b)adopt, as the arbitrator thinks fit, any finding, decision, or judgment of a court or other person or body acting judicially that is relevant to the proceeding.(4)To the extent that the practice and procedure of an arbitrator are not prescribed under this Act, they are to be as the arbitrator determines. Part of the purposes of the Act, by s 3(d), is to:make provision for the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick. Similarly, s 177(1)(e) of the Act states that adherence to the objects of pt XI:in the case of arbitration, enables disputes not resolved by conciliation to be determined according to their substantial merits with as little formality and technicality as practicable. As O'Neal DCJ dryly noted in MacMahon Holdings Ltd v Mckenzie,[16] 'that statutory provision (s 188) is one which parties seem content to abide by in arbitration proceedings, right up to the point that they receive an adverse decision'.[16] MacMahon Holdings Ltd v Mckenzie [2018] WADC 28 [39]. His Honour also observed at [40]:The fact that an arbitrator is not bound by the rules of evidence does not of course mean that the principles underpinning those rules should therefore simply be ignored. The historical common sense as to what makes particular evidence persuasive or gives it value for a decision maker, and how contentious facts should be proved to ensure fairness to all concerned, are not to be discarded lightly. Section 188(2)(b) of the Act itself expressly requires that hearings before arbitrators be conducted, 'according to equity, good conscience and the substantial merits of the case …'. The arbitrator considered[17] that the fundamental issues were: (a)Whether Mr Tupaea suffered an electric shock; and if so(b)Whether he suffered the alleged 'injury'; and if so(c)Whether incapacity results from the injury; and if so (d)Whether the resulting incapacity is total and/or partial and the period(s) of total and/or partial incapacity; and (e)Whether the statutory expenses claimed are 'reasonable'.[17] At [10] of his reasons, AB 9.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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