Warren Lang v Drury
[2004] NSWWCCPD 92
•21 December 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Warren Lang v Drury [2004] NSW WCC PD 92
APPELLANT: Warren Lang
RESPONDENT: Henry McFadden Drury
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC6655-2003
DATE OF ARBITRATOR’S DECISION: 24 December 2003
DATE OF APPEAL DECISION: 21 December 2004
SUBJECT MATTER OF DECISION: Inadequacy of Reasons; ‘deemed worker’; Clause 2 of Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:20 December 2004
REPRESENTATION: Appellant: QBE Workers Compensation (NSW) Limited In-House Legal
Respondent: Higgins & Higgins Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is revoked.
If the proceedings before the Arbitrator are not discontinued, the matter is remitted to the Arbitrator to be determined in accordance with these reasons.
Background
On 27 January 2004 Warren Lang filed an appeal in the Commission against the decision of an Arbitrator, made on 24 December 2003. The Respondent to the appeal is Henry Drury. The relevant insurer is QBE Workers Compensation (NSW) Limited.
On 11 June 1997 Mr Drury was working as a tree lopper on Mr Lang’s property when he fell from a ladder some twenty five to thirty feet to the ground. He injured his ankle and heel. The Arbitrator decided that Mr Drury was a ‘deemed worker’ and awarded him payment of weekly compensation, medical expenses and compensation for pain and suffering.
Leave to appeal was granted on 20 September 2004. The appeal has been expedited because Mr Drury is elderly.
Despite written submissions by Mr Lang’s legal representative that the decision was correct and should be confirmed, submissions were made at the hearing of the appeal that the Arbitrator’s decision should be revoked on the basis of the inadequacy of reasons.
QBE also submits that the Arbitrator has failed to provide adequate reasons and that this amounts to an error of law that should result in the Arbitrator’s decision being revoked. QBE also argued, in written submissions, that the Arbitrator’s decision is wrong because Mr Drury was a contractor, not his employee, and therefore he is not liable to pay him workers compensation benefits.
The Appeal
The parties have come to an agreement as to the appropriate outcome of the dispute and indicated at the hearing of the appeal that they wish to file an agreement pursuant to section 66A of the Workers Compensation Act 1987 (the 1987 Act). They have otherwise agreed as to costs and any ongoing entitlements to Mr Drury as a result of the injury.
However jurisdiction cannot be conferred upon a Presidential Member by consent. Nor is it possible for an Arbitrator or a Presidential Member to make an order for permanent impairment compensation that has not been the subject of, or is not consistent with, an assessment by an Approved Medical Specialist.
Appeal proceedings differ significantly from proceedings at first instance before an Arbitrator. On appeal there already exists a binding determination as to the rights and liabilities of the parties. An Arbitrator’s decision should not be revoked unless it is based upon a demonstrable error of law, fact or discretion and, but for the error, a different decision would have been made (Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSW WCC PD 6; YG & GG v Minister for Community Services [2002] NSWCA 247). I have proceeded to consider the appeal on that basis. At the same time I am cognisant of the agreement of the parties as to the settlement of their current, and potentially ongoing, dispute.
Did The Arbitrator Fail to Give Adequate Reasons for Finding Mr Drury was a ‘Deemed Worker’?
QBE argues that the Arbitrator failed to give adequate reasons for finding that Mr Drury was a ‘deemed worker’ pursuant to Clause 2 of Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998.
The Arbitrator’s reasons for finding that Mr Drury was a ‘deemed’ worker are found at paragraph 31 of the reasons, which is as follows:
“The Applicant is however deemed to be a ‘worker’ pursuant to s2 of Schedule 1 to the 1998 Act and is therefore entitled to recover compensation, and s60 medical expenses. I have considered s3 of that Schedule as well, however Laurieton, where the work was performed, is ‘more town than country’ and the work therefore may not be characterised as ‘rural work’”. I have determined the Applicant to be a deemed worker pursuant to s2 of that Schedule. I am satisfied that a contract existed between the Applicant and the Respondent, albeit an oral contract”.
The Court of Appeal in Scerri v Cahill (1995) 14 NSWCCR 389 (Bainton A-JA with whom Kirby A-CJ and Rolfe A-JA agreed), found (at 399) that:
“On its proper construction, clause 2 of Schedule 1 requires an applicant who relies on it to establish each of the ingredients, both positive and negative, which identify the relevant “work”. What he must establish is:
1.that he was a party to a contract with the respondent to perform work;
2.that work exceeds $10 in value;
3.that the work is not incidental to a trade or business regularly carried on by the applicant in his/her own name or under a business or firm name; and
4.that the applicant has neither sublet the contract nor employed workers in the performance of it”.
The Arbitrator’s reasons do not indicate whether any express consideration was given to whether Mr Drury was carrying on work that was incidental to a trade or business in his own name or a business name, nor to the exact nature of the relationship between Mr Drury and Mr Hicks.
The Arbitrator also made an award of weekly compensation of $120 per week pursuant to section 36 of the 1987 Act and $90 per week pursuant to section 40 of the 1987 Act. However these awards were made notwithstanding that the Arbitrator stated he was “not provided with any particular information which assist[ed him] in relation to relevant awards or earning history of the Applicant” (at paragraph 34 of the reasons).
In Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Mahony JA observed, at 271, that "the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion." The Workers Compensation Commission Rules 2003 (Rule 73) sets out the matters that must be addressed by the Arbitrator in the reasons.
In my view the reasons given by the Arbitrator do not set out the evidence upon which his findings of fact were made, his understanding of the applicable law and the reasoning process that led to his conclusions that Mr Drury was a ‘deemed worker’ (as required by Rule 73) and as to the amount of weekly benefits compensation that Mr Drury was entitled to.
The failure to provide adequate reasons for a decision that a worker is a ‘deemed worker’ is an error of law (McIlvain v The Council of the Shire of Gunnedah Unreported, NSWCA No. 40555/97 (2.10.98)). The reasons are not sufficient to disclose that the Arbitrator has made the decision fairly and lawfully (YG & GG v Minister for Community Services [2002] NSWCA 247).
The decision should be revoked and the matter remitted to the Arbitrator. At the appeal hearing Mr Drury’s legal representative stated his intention to immediately discontinue the proceedings before the Arbitrator.
DECISION
The decision of the Arbitrator is revoked. If the proceedings before the Arbitrator are not discontinued, the matter is remitted to the Arbitrator to be determined in accordance with these reasons.
Dr Gabriel Fleming
Deputy President
21 December 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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