Witt v Q B Interiors (NSW) Pty Ltd - [2011] NSWWCCPD 19

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Witt v Q B Interiors (NSW) Pty Ltd [2011] NSWWCCPD 19
APPELLANT:		Gary Witt
RESPONDENT:		Q B Interiors (NSW) Pty Ltd
INSURER:		Allianz
FILE NUMBER:		A1-6739/10
ARBITRATOR:	Mr Paul Sweeney
DATE OF ARBITRATOR’S DECISION:		8 December 2010
DATE OF APPEAL DECISION:		30 March 2011
SUBJECT MATTER OF DECISION:		Burden of proof; proof of injury; weight of evidence; sufficiency of reasons
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Firths – The Compensation Lawyers
Respondent:	Goldbergs Lawyers
ORDERS MADE ON APPEAL:		The order of the Arbitrator recorded in the Certificate of Determination dated 8 December 2010 is confirmed. No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

Mr Gary Witt, the appellant, who is 47 years of age, was employed by Q B Interiors Pty Limited (the respondent) on 9 June 2005 to work in his trade as a gyprock plasterer. He was engaged to carry out that work at commercial premises, being a radio station studio at Pyrmont, New South Wales.
Mr Witt alleged that, on Monday 20 June 2005, he received a head injury in the course of that employment when he struck his head on a T-bar, or ceiling grid, while standing on a ladder at the Pyrmont premises. Mr Witt ceased work early on that day and returned to his home. He alleged that he reported the injury to his supervisor. Mr Witt was absent from work thereafter until his return on 27 June 2005. He was absent from work on two occasions thereafter and, on 18 July 2005, his employment came to an end.
Mr Witt’s absences from work had been occasioned by his experience of severe headache, nausea and vomiting. He remained resting at his home until his wife arranged for his admission to the Emergency Department of Wyong Hospital on 23 June 2005. It appears that some treatment was rendered at that hospital and a diagnosis of tension headache was apparently made. Mr Witt was discharged the same day.
Mr Witt continued to experience distressing symptoms and consulted his general practitioner Dr Evans. That practitioner prescribed Voltaren as a medication. Mr Witt subsequently consulted another general practitioner, Dr Jackson of Brookvale and ultimately was examined by Dr Ibrahim Rabie, otolaryngology specialist, following which an MRI examination of Mr Witt’s skull was arranged. That examination, which was conducted on 17 September 2005, revealed the presence of chronic bilateral subdural haematomas. Mr Witt was immediately admitted to Royal North Shore Hospital where, on 19 September 2005, he underwent surgical treatment involving bilateral burr holes which led to improvement of his symptoms.
Mr Witt experienced a recurrence of symptoms thereafter which required further treatment. He has not, with the exception of a period of three weeks in 2007, returned to gainful employment since he last worked for the respondent.
On 4 February 2008 Mr Witt presented a workers compensation claim to the respondent…

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: [2011] NSWWCCPD 19
Decision Date: 30 March 2011

CaseChat Overview and Summary

Witt brought an appeal against the decision of an arbitrator who dismissed his claim for damages for personal injury against QB Interiors. Witt argued that the arbitrator erred in law by failing to consider the weight of the evidence when determining whether Witt had suffered an injury. Witt contended that the arbitrator’s reasons were insufficient and that he had not borne the requisite burden of proof. QB Interiors defended the decision, arguing that the arbitrator was correct to find that Witt had not suffered an injury and that his reasons were adequate. The appeal was dismissed by the court.

The appeal raised two main legal issues. The first was whether the arbitrator had erred in law by failing to consider the weight of the evidence when determining whether Witt had suffered an injury. The second issue was whether the arbitrator’s reasons were sufficient and whether Witt had discharged the burden of proof. The court considered these issues in turn. In relation to the first issue, the court held that it was not necessary for the arbitrator to consider the weight of the evidence when determining whether Witt had suffered an injury, as the onus was on Witt to prove his case on the balance of probabilities. In relation to the second issue, the court found that the arbitrator’s reasons were sufficient and that Witt had not discharged the burden of proof.

The court held that the arbitrator had not erred in law by failing to consider the weight of the evidence when determining whether Witt had suffered an injury. The court noted that the onus was on Witt to prove his case on the balance of probabilities and that it was not necessary for the arbitrator to consider the weight of the evidence in order to make a finding on this issue. The court further held that the arbitrator’s reasons were sufficient and that Witt had not discharged the burden of proof. The court found that the evidence did not establish that Witt had suffered an injury and that the arbitrator’s decision was therefore correct.

The appeal was dismissed and the order of the arbitrator was confirmed. No order was made as to the costs of the appeal.

Orders

Orders of the court

The order of the Arbitrator recorded in the Certificate of Determination dated 8 December 2010 is confirmed.

No order as to costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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