West v BGC Australia Pty Ltd

Case [2019] WADC 20

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   WEST -v- BGC AUSTRALIA PTY LTD [2019] WADC 20

CORAM:   SWEENEY DCJ

HEARD:   3 NOVEMBER 2017

DELIVERED          :   20 FEBRUARY 2019

FILE NO/S:   APP 45 of 2016

BETWEEN:   MARK RAYMOND WEST

Appellant

AND

BGC AUSTRALIA PTY LTD

Respondent


Catchwords:

Worker's compensation - Weekly payments - Return to work - Briginshaw v Briginshaw - Standard of proof - Able to earn - Workers' Compensation and Injury Management Act 1981 - Schedule 1 clause 7(2)

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 61, sch 1 cl 7(2)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant : Mr M J Lourey
Respondent : Mr B L Nugawela

Solicitors:

Appellant : Chapmans Barristers & Solicitors
Respondent : Greenland Legal

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

Aitkin v Goodyear Tyre & Rubber Co (Aust) (1945) 46 SR NSW 20

Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1985) 155 CLR 171

Ball v William Hunt & Sons Ltd [1912] AC 496

Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580

Briginshaw v Briginshaw (1938) 60 CLR 336

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

George v Qube Ports Pty Ltd [2017] WADC 97

Integrated Fuel Services Pty Ltd v Wilkinson [2015] WADC 140

Kotua v Leighton Contractors Pty Ltd (unreported CM‑45/02, delivered 17 October 2002)

Massih v Electricity Networks Corporation t/as Western Power [2016] WADC 146

Minister for Education v Shire of Northam [2016] WADC 42

Mitchell v Canal Rocks Beach Resort [2002] WASCA 331

Mohammadi v Hazara Tiling Pty Ltd [2013] WADC 115

Novello v Zinc Corporation Ltd (1988) 14 NSWLR 25

Pacific Industrial Co v Jakovljevic [2008] WASCA 60

Pedley v West Coast College of TAFE [2006] WACC C21‑2006

Philmac Pty Ltd v Asti (1980) 26 SASR 213

Ross v Corruption and Crime Commission [2008] WACC C15-2008

Smith v Ranger Camping & Outdoors Pty Ltd [2014] WADC 40

Sotico Pty Ltd v Wilson [2007] WASCA 112

Thomas v Chandler MacLeod [2015] WADC 78

Westralian Farmers Cooperative Ltd v Bunce (Unreported, WASC, Library No 7691, 31 May 1989)

SWEENEY DCJ:

Introduction

  1. This is an appeal from a decision of an arbitrator dismissing the appellant's application for weekly compensation payments pursuant to the Workers' Compensation and Injury Management Act 1981 (the Act).  Leave is required to appeal, and the appeal and the question of leave have been left to be determined together, as is usual.

  2. Mr Mark West (the appellant) was employed by BGC Australia Pty Ltd, the respondent (BGC), at its Koolyanobbing Mine Site.  As appears from the arbitrator's decision, and this was uncontroversial, on 11 December 2010 the dump truck the appellant was driving was struck by an excavator and, as a result, he was thrown about in the cabin and suffered an injury to his lower thoracic spine at T10/11.  Then, as part of his treatment, he was given a corticosteroid injection into his spine and suffered serious complications, resulting…

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AGLC
West v BGC Australia Pty Ltd [2019] WADC 20
Case
[2019] WADC 20
Decision Date

CaseChat Overview and Summary

The appeal in West v BGC Australia Pty Ltd concerns a dispute regarding workers' compensation and the ongoing entitlement of the claimant to weekly payments following a return to work. The dispute was initially decided by an arbitrator and subsequently brought before the District Court of Western Australia for appeal. The claimant, who had suffered injuries in the course of employment, sought continued weekly compensation payments, while the respondent, the employer, argued that the claimant had returned to work and was thus no longer entitled to such payments.

The central legal issues in the case revolve around the interpretation of the Workers' Compensation and Injury Management Act 1981, particularly Schedule 1 clause 7(2), which governs the cessation of weekly compensation payments upon a claimant's return to work. The court was required to determine whether the claimant's return to work was genuine and whether the claimant was genuinely able to earn the income they were previously earning. Additionally, the court had to consider the appropriate standard of proof, specifically whether the burden of proof lay with the claimant to demonstrate that they were unable to earn their previous income due to their injuries.

The District Court examined the arbitrator's decision in light of the Briginshaw v Briginshaw principle, which sets out the standard of proof for civil cases. The court determined that the arbitrator had erred in the standard of proof applied, requiring a higher threshold for the claimant to prove they were unable to earn their previous income. The court held that the arbitrator's decision did not sufficiently consider the Briginshaw standard and that the claimant's return to work and ability to earn income were not conclusively established. Consequently, the court found that the appeal involved a question of law and granted leave to appeal. The District Court then conducted a review of the matter, ultimately determining that the claimant's entitlement to weekly compensation payments should be reinstated pending a proper assessment of their ability to earn their previous income.

The final orders of the court were that the appeal was allowed, and the decision of the arbitrator was set aside. The matter was remitted to the original arbitrator for a fresh assessment of the claimant's ability to earn their previous income, with appropriate regard to the Briginshaw standard of proof. The claimant's entitlement to weekly compensation payments was reinstated pending the outcome of this reassessment.

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

An appeal from an arbitrator to this court is made pursuant to s 247(1) of the Act, which requires the leave of this court to be obtained. Section 247 provides:247.Appeal against arbitrator's decision made under Part XI(1)If written reasons for an arbitrator’s decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.(2)Subject to subsection (3), the District Court is not to grant leave to appeal unless —(a)in the case of an appeal in which an amount of compensation is at issue —(i)a question of law is involved and the amount at issue in the appeal is both —(I)at least $5 000 or such other amount as may be prescribed by the regulations; and(II)at least 20% of the amount awarded in the decision appealed against;or(ii)a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;and(b)in any other case, a question of law is involved.[(3)deleted] I gratefully adopt the summary of the general principles provided by O'Neal DCJ in Thomas v Chandler MacLeod [2015] WADC 78 [26] – [30] as follows:On whatever basis an appeal is brought pursuant to s 247(2), a question of law must be 'involved'. An appeal 'involves a question of law where either an error of law, or an error of mixed law and fact is involved': BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3].A decision does not involve an error of law unless the error is material to the decision, in the sense that it contributes to the result so that, but for the error, the decision may have been different: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353; BHP Billiton Iron Ore Pty Ltd v Brady [15]. Ignoring for now the limiting provisions of s 247(2)(a), in order to obtain a grant of leave all that the appellant has to show is that there is a real or significant argument to be put which involves a question of law: Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331.Once it has been established that a ground involves a question of law, the whole decision of the arbitrator, and not merely the identified question of law is open to review: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [20].If the court decides that a question of law is involved and leave to appeal has been granted, then the District Court is required to undertake a 'real review' of the matter. That review however is based upon the materials that were before the arbitrator, and is not conducted by way of a hearing de novo: PacificIndustrial Co v Jakovljevic [20], [26].Where leave is granted and a review is undertaken, the appellant must still, for the purposes of the review, provide a proper basis for disturbing the arbitrator's decision by pointing to some error in it. The appellant may not simply invite the court to just ignore the arbitrator's decision and start again with a view to having the court substitute his or her own decision for that of the arbitrator: PacificIndustrial Co v Jakovljevic [20], [26], cited in Catholic Education Office of WA v Granitto [2012] WASCA 266.

Ratio Decidendi

Legal Principle Established

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