WorkCover New South Wales v Beaton - [2009] NSWWCCPD 118

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		WorkCover New South Wales v Beaton & Anor [2009] NSWWCCPD 118
APPELLANT:		WorkCover New South Wales
FIRST RESPONDENT: SECOND RESPONDENT:		Harold Beaton Pinners Transport Pty Ltd
INSURER:		WorkCover New South Wales: Uninsured Liability Scheme
FILE NUMBER:		A1 –1000/09
ARBITRATOR:	Mr J Ireland
DATE OF ARBITRATOR’S DECISION:		28 May 2009
DATE OF APPEAL DECISION:		23 September 2009
SUBJECT MATTER OF DECISION:		Jurisdiction of the Commission; worker and employer resident in Victoria; injury in New South Wales; whether the connection with that State was sufficient to enliven the jurisdiction of the Commission.
PRESIDENTIAL MEMBER:		Acting Deputy President Deborah Moore
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sparke Helmore Lawyers
First Respondent:	Adams Leyland Solicitors
Second Respondent:	No appearance
ORDERS MADE ON APPEAL:		1. The decision of the Arbitrator dated 28 May 2009 is confirmed. 2. The Appellant is to pay the costs of the appeal.

BACKGROUND TO THE APPEAL

On 24 June 2009 WorkCover New South Wales (WorkCover/the Appellant’) sought leave to appeal a decision of a Commission Arbitrator dated 28 May 2009.

The First Respondent to the appeal is Harold Beaton (‘the Worker/Mr Beaton’).

The Second Respondent to the appeal is Pinners Transport Pty Ltd (‘Pinners’).

This case concerns the territorial operation of the New South Wales Workers CompensationAct 1987 (‘the 1987 Act’).

Mr Beaton was (and remains) a resident of Shepparton in Victoria. He commenced work with Pinners in about July 2000. Pinners’ registered office was also in Shepparton, and it conducted its business there.

Mr Beaton was initially employed as a storeman, although he had worked as a truck driver since he was eighteen. A few weeks before his accident on 15 June 2001 he was asked to perform truck driving duties because the company was short-staffed. He was required to drive three times a week to Newcastle and back.

This he did, and on 15 June 2001 whilst driving his truck along the Hume Highway towards Sydney approximately halfway between Holbrook and Tarcutta in New South Wales he struck a truck in front of him and suffered injuries principally to his head, neck and back.

He was treated at Wagga Base Hospital and eventually resumed work a week later in his normal position as a storeman/forklift driver and remained there until Pinners ceased trading approximately four months later. Thereafter, he has had various truck driving jobs.

He made a claim on Pinners Victorian insurer, QBE Workers Compensation (Victoria) Pty Ltd (‘QBE’) and received weekly benefits payments for various periods and medical expenses, which as at 11 May 2009 totalled $61,001.42.

On 15 October 2007 he made a claim on the Appellant’s Uninsured Liability Scheme which was denied. By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 11 February 2009, he sought weekly benefits, medical expenses and lump sum compensation.

The parties attended a hearing before the Arbitrator on 12 May 2009 where it was agreed that…

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.

Continue reading WorkCover New South Wales v Beaton

Details

AGLC: WorkCover New South Wales v Beaton [2009] NSWWCCPD 118
Case: [2009] NSWWCCPD 118
Decision Date: 23 September 2009

CaseChat Overview and Summary

WorkCover New South Wales sought to appeal a decision of an arbitrator that determined the Commission did not have jurisdiction to hear a claim made by Mr. Beaton, an employee injured in New South Wales. Mr. Beaton was employed by a company based in Victoria and resided there, but his injury occurred in New South Wales. The central issue before the court was whether the connection with New South Wales was sufficient to invoke the jurisdiction of the Commission.

The court was required to determine if the injury occurring in New South Wales was enough to establish jurisdiction, despite the employer and employee both being residents of Victoria. The argument presented by WorkCover was that the injury itself, taking place in New South Wales, was the determining factor. Conversely, it was argued that the employer's and employee's residence in Victoria was the more significant connection.

The court examined the relevant legislative provisions and case law to assess the sufficiency of the connection to New South Wales. It found that the mere occurrence of the injury in New South Wales was not enough to establish jurisdiction when both the employer and the employee were based in Victoria. The court confirmed the decision of the arbitrator, holding that the Commission did not have jurisdiction over the claim. It also ordered that WorkCover New South Wales pay the costs of the appeal.

Orders

Orders of the court

1. The decision of the Arbitrator dated 28 May 2009 is confirmed.

2. The Appellant is to pay the costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.