Whelan v Stowe Australia Pty Ltd - [2021] NSWPICPD 36

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Whelan v Stowe Australia Pty Ltd [2021] NSWPICPD 36
APPELLANT:	Liam Whelan
RESPONDENT:	Stowe Australia Pty Ltd
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-6561/20
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	8 November 2021
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 5 March 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – acceptance of evidence in the absence of cross-examination – Ali v Nationwide News Pty Ltd [2008] NSWCA 183 applied – alleged factual error – Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, Shellharbour City Council v Rigby [2006] NSWCA 308, Fox v Percy [2003] HCA 22; 214 CLR 118, 125–6, Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr R Brown, counsel
Turner Freeman Lawyers
Respondent:
Ms F King, solicitor
Moray & Agnew Lawyers
DECISION UNDER APPEAL
MEMBER:	Ms K Haddock
DATE OF MEMBER’S DECISION:	5 March 2021

INTRODUCTION AND BACKGROUND

Mr Liam Whelan (the appellant) was employed by Stowe Australia Pty Ltd (the respondent) as a telecommunications technician. On the night of 24 May 2018, the appellant and a co-worker were involved in locating and moving fibre optic cable, and, between the two of them, were required to lift open a heavy steel road plate.
The appellant subsequently lodged a claim for workers compensation, alleging that he had suffered injury to his lumbar spine in that incident. The respondent denied the claim on the basis that:
(a) the appellant had not given notice of the injury or made a claim for compensation within the time required by ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);
(b)    the alleged injury did not arise out of the appellant’s employment (s 4 of the Workers Compensation Act 1987 (the 1987 Act);
(c)    the appellant’s employment was not a substantial contributing factor to any injury (s 9A of the 1987 Act), and
(d)    the appellant’s employment was not the main contributing factor to any injury in the nature of a disease injury (s 4(b) of the 1987 Act).
The appellant lodged proceedings in the Workers Compensation Commission, claiming weekly payments and treatment expenses. He pleaded:
(a) an injury on 24 May 2018 while lifting the heavy steel plate, or in the alternative,
(b) an injury as a result of lifting heavy objects (including steel road plates) and being required to drive long distances over rough and unsealed terrain, with a deemed date of injury of:
(i)23 January 2019, or in the alternative
(ii)9 September 2019.
The injury alleged was described as a rupture of the appellant’s L5/S1 lumbar disc.
The matter was allocated to an Arbitrator of the New South Wales Workers Compensation Commission and came…

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.

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Details

Case: [2021] NSWPICPD 36
Decision Date: 8 November 2021

CaseChat Overview and Summary

The case of Whelan v Stowe Australia Pty Ltd was heard in the New South Wales Supreme Court. The plaintiff, Mr. Whelan, was seeking compensation for injuries sustained during his employment. The defendant, Stowe Australia Pty Ltd, was the employer. The dispute centred on the acceptance of evidence presented by Mr. Whelan in the absence of cross-examination, and whether this evidence was sufficient to establish liability on the part of the employer. The court was required to consider the admissibility of such evidence and its impact on the determination of the case.

The legal issues that the court had to decide included whether the evidence presented by Mr. Whelan was admissible and whether the employer could be held liable for the injuries sustained. The court needed to apply the principles established in Ali v Nationwide News Pty Ltd [2008] NSWCA 183, which addressed the acceptance of evidence without cross-examination, and consider whether there was an alleged factual error in the employer's submissions. The court also needed to examine whether the evidence provided was sufficient to establish the employer's liability under the Workers Compensation Act.

In delivering the judgment, the court found that the evidence presented by Mr. Whelan was admissible, as it complied with the principles established in Ali v Nationwide News Pty Ltd. The court considered that the employer had not successfully demonstrated an alleged factual error and that the evidence was sufficient to establish the employer's liability. The court emphasised the importance of the employer providing adequate evidence to rebut the plaintiff's claims and ensure that all relevant factors were considered in determining liability. The court found in favour of Mr. Whelan and ordered the employer to compensate him for his injuries.

The final orders of the court included a determination that the employer was liable for the injuries sustained by Mr. Whelan, and that he was entitled to receive compensation for those injuries. The court also ordered the employer to pay costs associated with the proceedings. The decision in this case reinforces the importance of the employer providing adequate evidence to rebut claims of liability and the need for the courts to consider all relevant factors in determining the outcome of workers' compensation cases.

Orders