WA insurance update

Workers’ compensation

No request for written reasons? No appeal

The WA Court of Appeal has found that there is no right to appeal an arbitrators decisions where no written reasons were requested.

Section 247 of the Workers’ Compensation and Injury Management Act 1981 (WA) (Act) provides that, if written reasons for an arbitrator’s decision are given to a party, the party may with leave, appeal to the District Court against the decision within 28 days after the day on which the written reasons are given to the party.

On 16 May 2012 an arbitrator provided oral reasons for dismissing an application by Mustafa Kanar for a determination of liability arising out of an alleged workplace accident and provided oral reasons. Mr Kanar did not request that the reasons be given in writing.

The employer applied for costs, and the arbitrator published reasons on 21 January 2013 dismissing that application. The arbitrator, in providing written reasons his decision not to award costs, referred to his decision of 16 May 2012.

The worker then appealed the arbitrator’s original decision of 16 May 2012 to the District Court, relying on the written reasons given on 21 January 2013 in relation to the costs application. The primary judge found that he did not have jurisdiction to hear the appeal as no written reasons were provided for the decision of 16 May 2012.

The worker then appealed to the Court of Appeal, contending that he was denied procedural fairness in not being given an opportunity to provide a transcript of the hearing on 16 May 2012 and that the written reasons dated 21 January 2013 were reasons for the decision made on 16 May 2012.

Section 213 of the Act provides that a written transcript of the proceedings in which a decision is given orally is sufficient compliance of reasons to be in writing.

The Court of Appeal unanimously dismissed the worker’s appeal. Their Honours found that the clear effect of section 247 of the Act is that an appeal  from an arbitrator's decision can be commenced only once  written reasons have been given. At the time of the hearing before the primary judge, there were no written reasons in existence of the decision made on 16 May 2012. Their Honours upheld the primary judge’s finding that the written reasons of 21 January 2013 were  merely reasons for his decision to dismiss the employer’s costs application.

The written transcript of the proceeding came into existence after the District Court appeal. Their Honours found that the absence of reasons could not be cured after the application for leave had been made and therefore the contention that the worker was denied procedural fairness in not being given an opportunity to obtain written reasons for the decision must be rejected.

This decision highlights the importance of requesting written reasons for all arbitrators decisions delivered orally, where there is any prospect of an appeal. This is particularly the case given the strict time limits for lodging appeals.

Anton Vucak, partner, appeared as counsel for the employer.

Kanar v A & S Sadak Pty Ltd [2016] WASCA 109

No compensation for worker who resigned before alleged accident

The WA Court of Appeal has dismissed a worker’s appeal arising out of a finding that his employment had already concluded at the time of an alleged workplace accident.

George Erceg was employed as a team leader in a market gardening business operated by Galati Nominees Pty Ltd. On 6 June 2013, a telephone conversation took place between Mr Erceg and Tony Galati, Galati Nominees’ managing director. The content of the telephone conversation was disputed. An arbitrator found at first instance that Mr Erceg had resigned his employment in the conversation.

On 10 June 2013, Mr Erceg consulted his general practitioner after allegedly injuring his lower back working for Galati Nominees that morning. That same day, Mr Erceg lodged a workers' compensation claim, under cover of a letter stating that, if Galati Nominees did not 'put this workers comp through', he would become a whistleblower and report various alleged incidents to Worksafe and the Department of Immigration. Mr Erceg demanded payment of $10,000 for his 'loyalty (silence)'.

Galati Nominees denied the workers’ compensation claim and reported the threat to the police. Mr Erceg was subsequently charged with demanding property by written threats and was fined $3,500. Mr Erceg nonetheless persued a determination of liability for his workers’ compensation claim. Fatally to Mr Erceg’s claim that the arbitrator found that he had resigned four days before the alleged accident. However, Mr Erceg’s claim hit a further hurdle - the arbitrator also found that, if this finding was wrong, she was not persuaded that Mr Erceg was at work at all on 10 June 2013.

Mr Erceg’s appeal to the District Court failed on the grounds that all of the material findings of the arbitrator were findings of fact only and that there was evidence to support those findings of fact. His Honour said that the arbitrator had provided ‘a very detailed and careful analysis of the evidence and observed that her findings of fact were strongly supported by the evidence’. Complaints regarding the admission of Galati Nominee’s computer and business records were dismissed.

On appeal to the Court of Appeal, Mr Erceg recast his complaints regarding the documents of Galati Nominees, saying that there should have been a finding that the documents were forgeries. However, the Court of Appeal found that ‘there was not a scintilla of evidence before the arbitrator that the documents were forged’.

Mr Erceg also complained that Mr Galati’s evidence of him resigning was accepted when there were inconsistencies between two statements filed on behalf of Mr Galati. The Court of Appeal found that this ground had no prospect of success as it did not involve a question of law and that it was a question of fact for the arbitrator that was clearly open to the arbitrator in light of the other evidence.

Mr Erceg’s third ground of appeal related to Mr Galati and a witness called on behalf of Galati Nominees, Ms Goodhew, allegedly failing to disclose a personal relationship, which Mr Erceg contended only emerged upon his cross-examination of Ms Goodhew. The Court of Appeal found that this issue had not been raised during the proceedings before the arbitrator nor was it the subject of a ground of appeal before the primary judge and any event identified no error of law by the primary judge.

This unanimous and pointed decision of the Court of Appeal once again reaffirms established principles that findings of facts by an arbitrator will not be overturned unless there is no evidence to support those findings, as well as highlighting the difficulties faced in raising arguments on appeal (particularly on a second appeal) that were not raised at first instance.

Erceg v Galati Nominees Pty Ltd [2016] WASCA 112

Occupiers Liability

No damages for slip and fall on yellow kerb

A District Court judge has found that a motel proprietor did not breach its duty of care to a guest, Terence Carter, who suffered injuries when he slipped on a kerb at the motel.

The accident occurred when Mr Carter was walking to his room after checking into the Railway Motel in Kalgoorlie in the afternoon. The kerb was painted yellow, was slanting and ran up the side of the motel’s driveway.

Mr Carter claimed that the kerb was wet at the time of the accident. His allegations of negligence included an alleged lack of slip resistance on the kerb and a failure to erect signs warning of the risks of walking on a slippery path. Mr Carter also relied on the paint manufacturer’s specifications which advised for grit to be added to the paint when used in pedestrian areas.

The motel proprietor alleged that Mr Carter failed to keep a proper lookout or take care for his own safety.

The expert evidence given at trial was criticised to a large degree for the instructions given and the methodology used to obtain the results. The end result was that District Court Judge Braddock was unable to make a finding that the kerb was more slippery when painted than the bare concrete - however, she did accept that it was slippery when wet.

Her Honour considered that it was obvious that stepping onto an incline of any significance entailed a greater risk than stepping onto level ground. Her Honour further found that the precise mechanism of any and every fall was not foreseeable.

Further, her Honour considered that the likelihood of an accident at the kerb was very small, for reasons including that there had been no similar incident in 10 years, this was one of the many kerbs on the premises and that the kerbs were generally commonplace. The risk therefore was considered to be of low probability and the painting of the kerb was considered to be a reasonable response to warn visitors of the presence of the kerb so they could safely negotiate it.

Her Honour went further to say that in the event she was wrong about liability, she was persuaded that Mr Carter failed to take care for his own safety when mounting the kerb.

This case confirms that the burden of establishing that an occupier has breached its duty of care remains quite high, and that there is an expectation on persons entering onto premises to take reasonable care for their own safety. It also highlights the importance of proper briefing of experts and ensuring that the factual basis for expert opinions is established and that the reasoning process is exposed.

Carter v Railway Motel Pty Ltd [2016] WADC 102