Woolworths Limited v Van Der Mast - [2005] NSWWCCPD 108

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Woolworths Limited v Van Der Mast [2005]
NSWWCCPD 108

APPELLANT:  Woolworths Limited
RESPONDENT:  Dennis Cornelius Van Der Mast
INSURER:Woolworths Limited
FILE NUMBER:  WCC11255-04
DATE OF ARBITRATOR’S DECISION:          15 March 2005
DATE OF APPEAL DECISION:  12 September 2005
SUBJECT MATTER OF DECISION:                Res Judicata & estoppel – relevance of “admissions” in prior proceedings.
PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION:  Appellant: Bartier Perry
Respondent: PK Simpson & Co

ORDERS MADE ON APPEAL: The decision of the Arbitrator is
revoked and the following decision substituted:
(1)Award in favour of the Appellant in respect of the claim by the Respondent for loss of use of sexual organs.
(2)No order as to costs of the original proceedings and no order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 22 December 2003, Dennis Cornelius Van Der Mast (“the Respondent”) filed an Application to Resolve a Dispute in the Workers Compensation Commission in Matter No. WCC19931–03 seeking weekly compensation and medical expenses as a result of injuries allegedly sustained to his back, left leg and sexual organs in a fall at work on 5 August 2001 whilst employed by Woolworths Limited (“the Appellant”).

That claim, WCC19931–03, proceeded to conciliation/arbitration hearing on 24 May 2004. The matter resolved on that day, with the Respondent agreeing to discontinue proceedings on terms, and a section 66A Agreement reflecting an award in favour of the Respondent in respect of 25% permanent impairment of the back ($15,000.00), 10% permanent loss of efficient use of the left leg at or above the knee ($7,500.00) and section 67 pain and suffering totalling $15,000.00.

The claim for lump sum compensation in respect of the back and left leg, whilst not included in the Application, had been made by letter dated 13 October 2003.

On 24 February 2004, the Respondent made a claim for lump sum compensation in respect of 20% permanent loss of efficient use of sexual organs.

The terms upon which the Respondent resolved his dispute with the Appellant on 24 May 2004 included the following admissions:-

“1.The Applicant [Respondent to the Appeal] admits that the compensation paid to him as settlement of these proceedings represents the extent of his entitlement to compensation as against the First Respondent [the Appellant to the Appeal] to date.
3.The Applicant admits that other than the injuries, the subject of these proceedings, he sustained no other injuries of which he is aware whilst in the employ of the First Respondent.”

On 23 July 2004, the Respondent filed an Application to Resolve a Dispute seeking permanent impairment compensation pursuant to section 66 of the Workers Compensation Act, 1987 (“the 1987 Act”) in respect of 20% permanent loss of use of sexual organs ($9,400.00) and further pain and suffering compensation pursuant to section 67 in the sum of $10,000.00.

On 13 August 2004, the Appellant filed a reply with lengthy submissions. Briefly, the Appellant claimed…

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: [2005] NSWWCCPD 108
Decision Date: 12 September 2005

CaseChat Overview and Summary

Woolworths Limited appealed against a decision of the Workers Compensation Commission, which had allowed Dennis Cornelius Van Der Mast to proceed with a claim for loss of use of sexual organs. The claim arose from an incident on 5 August 2001, where Van Der Mast fell at work while employed by Woolworths. The case involved two sets of proceedings: WCC19931–03, which was settled on 24 May 2004, and WCC11255–04, where the Appellant contested the claim for loss of use of sexual organs. Woolworths argued that the Respondent’s admissions in the prior proceedings precluded him from pursuing the current claim. Van Der Mast, on the other hand, argued that his admissions did not prevent him from making the current claim, as there was no specific mention of the sexual organs loss in the section 66A Agreement or the Agreement to Discontinue Proceedings.

The legal issues in this appeal were whether the admissions made by Van Der Mast in the prior proceedings precluded him from proceeding with his claim for loss of use of sexual organs and whether the Arbitrator erred in finding that the loss of sexual organs did not form part of the settlement in the prior proceedings. The appeal hinged on the interpretation of the admissions made by Van Der Mast in the prior proceedings. Woolworths argued that the admissions were broad enough to cover all claims to that date, including loss of sexual organs, and therefore precluded Van Der Mast from proceeding with his current claim. The Arbitrator, however, found that the loss of sexual organs was not intended to form part of the prior proceedings, despite the broad wording of the admissions. The Arbitrator applied an “objective bystander test” to interpret the admissions, which Woolworths argued was flawed because it did not provide sufficient reasons for the interpretation.

In reviewing the Arbitrator’s decision, the Acting Deputy President found that the Arbitrator had erred in law. The Acting Deputy President concluded that the admissions were prima facie evidence of the facts stated therein and that Van Der Mast was bound by these admissions. The Acting Deputy President held that the omission of any reference to the loss of use of sexual organs in the section 66A Agreement did not imply that it was not intended to form part of the proceedings. The Acting Deputy President also noted that there was no evidence to support the Arbitrator’s finding that the loss of sexual organs was not intended to form part of the prior proceedings. The Acting Deputy President revoked the Arbitrator’s decision and substituted a new decision in favour of Woolworths, disallowing Van Der Mast’s claim for loss of use of sexual organs. No order was made as to the costs of the original proceedings or the appeal.

Orders