WorkPac Pty Ltd v Shields - [2023] WADC 29

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   WORKPAC PTY LTD -v- SHIELDS [2023] WADC 29
CORAM:   WHITBY DCJ
HEARD:   7 MARCH 2023
DELIVERED          :   17 MARCH 2023
FILE NO/S:   APP 69 of 2022
BETWEEN:   WORKPAC PTY LTD
Appellant
AND
CIARAN SHIELDS
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKCOVER WA ARBITRATION SERVICE
Coram:   ARBITRATOR FLETCHER
File Number            :   A97476

Catchwords:

Workers' compensation - Appeal from arbitrator - Whether error of law in determining if injury occurred in the course of employment - Whether test in PVYW v Comcare misapplied by arbitrator

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Leave to appeal on grounds 1, 2 and 3 refused

Representation:

Counsel:

Appellant	:	Mr M J Civitella
Respondent	:	Mr A Illich

Solicitors:

Appellant	:	Mills Oakley
Respondent	:	Eureka Lawyers

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

Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Catholic Education Office of WA v Granitto [2012] WASCA 266
Comcare v PVYW (2013) 250 CLR 246
Fox v Roy Hill Holdings Pty Ltd [2019] WADC 171
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Pacific Industrial Co v Jakovljevic [2008] WASCA 60

WHITBY DCJ:

The appellant is a labour hire company. In September 2020, the respondent was employed by the appellant as a Loader/Mobile Plant Operator. The respondent was hired out by the appellant to Pilbara Iron Company Services Pty Ltd (Rio Tinto) to work at the Hope Downs 1 mine site, in Newman, Western Australia.
As a condition of his employment, the respondent was provided with accommodation at the mine site.
Rio Tinto engaged Sodexo Australia Pty Ltd (Sodexo) to provide, arrange and coordinate recreational activities at the mine site.
On 18 September 2020, the respondent was playing a game of soccer at the mine site, which was arranged by Sodexo. During the soccer game, the respondent sustained a right knee injury.
On 24 September 2020, the respondent, as a result of his knee injury, made a claim for compensation under the Workers' Compensation and Injury Management Act 1981 (Act).
On 1 October 2020, the appellant denied liability for the claim.
On 5 February 2021, the respondent filed an application at WorkCover WA, seeking a determination, pursuant to s 58 of the Act, of liability and payment of weekly compensation and medical and other expenses. The preliminary issue arising for determination in the application was whether the respondent's knee injury arose in the course of his employment.
On 18 November 2022, the preliminary issue was determined by Arbitrator Fletcher in favour of the respondent. The appellant now appeals that decision.
For the reasons that follow, I am satisfied that leave to appeal should be refused.

The arbitrator's decision

The preliminary issue for determination by the arbitrator was whether the appellant was liable for the respondent's knee injury in circumstances where it was sustained during a recreational soccer match organised by Sodexo.
The arbitrator decided…

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 WorkPac Pty Ltd v Shields

Details

AGLC: WorkPac Pty Ltd v Shields [2023] WADC 29
Case: [2023] WADC 29
Decision Date: 17 MARCH 2023

CaseChat Overview and Summary

In WorkPac Pty Ltd v Shields, the dispute revolves around whether an injury sustained by the respondent, a worker, occurred in the course of his employment with the appellant, an employer. The case was heard in the Court of Appeal. The central legal issue was whether the arbitrator made an error of law in determining whether the injury was sustained in the course of employment. This involved assessing whether the arbitrator correctly applied the legal test established in PVYW v Comcare and Hatzimanolis v ANI Corporation Ltd.

The court considered the grounds of appeal, focusing on whether any involved a question of law. It was noted that the appeal was not a de novo hearing and that the court could not substitute its own decision for the arbitrator's. The court examined whether the arbitrator's decision involved an error of law that was material to the decision-making process. It was held that the amount in issue did exceed the statutory thresholds, but the critical issue was whether the error of law was material. The court concluded that the arbitrator's application of the legal test was not erroneous, as the findings were supported by evidence and relevant considerations. The appeal did not involve a question of law that would warrant the grant of leave to appeal.

As a result, the court found that the arbitrator's decision was correct and dismissed the appeal. The decision of the arbitrator stands affirmed, and the employer's appeal was unsuccessful.

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

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Ratio Decidendi

Legal Principle Established

The arbitrator found that, by applying the test in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 (Hatzimanolis) and Comcare v PVYW (2013) 250 CLR 246 (PVYW) to the facts as he found them, he was satisfied that the appellant induced and encouraged the respondent to be at the place where the alleged injury occurred, being the mine site, and to engage in the activity he was involved in when the alleged injury occurred. The arbitrator was satisfied that the respondent was acting in the course of his employment with the appellant when he engaged in the recreational soccer match on 18 September 2020 and therefore, determined the preliminary issue in favour of the respondent. Pursuant to s 247 of the Act, the appellant can only appeal the arbitrator's decision with the leave of this court where a question of law is involved and the amount in issue exceeds the thresholds in s 247(2)(a) of the Act. Given the arbitrator's decision is confined to the preliminary issue of whether the respondent's knee injury was sustained in the course of his employment, the amount in issue has not been determined. However, there is evidence before the court that the respondent was assessed by Dr Evan Jenkins to have a 12.5% impairment of his leg at or above the knee which would equate to an entitlement of $20,647.50.[5] [5] Appeal book, page 91. I find that the amount in issue exceeds the thresholds in s 247(2)(a) of the Act. The issue is whether a question of law is involved in any of the grounds of appeal. The use of the word 'involved' indicates that the court's role is not confined to the determination of pure questions of law, but extends to questions of mixed fact and law: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3] (BHP Billiton). An error of fact alone is not sufficient: BHP Billiton [5]. A decision will not 'involve an error of law' unless the error is material to the decision of the arbitrator in the sense that it contributes to the decision so that, absent the error, the decision would have been, or might have been different: BHP Billiton [15]. If no question of law is involved, there is no jurisdiction to grant leave to appeal: Catholic Education Office of WA v Granitto [2012] WASCA 266 [53] - [54]. An arbitrator does not make an error of law merely because he or she finds facts wrongly or on a doubtful basis: Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [21]. However, a finding of fact in the absence of any supporting evidence is an error of law, as is taking into account irrelevant considerations: Fox v Roy Hill Holdings Pty Ltd [2019] WADC 171 [18]. An appeal under s 247 of the Act is by way of a review of the decision appealed against: s 247(5) of the Act. No fresh evidence, or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against, can be given without the leave of the court: s 247(6) of the Act. The appeal is not a hearing de novo. The court cannot simply ignore the arbitrator's decision and substitute its own decision for that of the arbitrator: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [18] (Pacific Industrial).