Hunt v Blackwood and Anor [2014] ICQ 014

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – NATURE AND SCOPE OF APPEAL AND REVIEW – where the appellant’s purported notice of appeal was not competent – where the appellant, by his counsel, misapprehended the nature of the proceedings – where the appellant’s submissions were infected by this misapprehension – where the Court had no jurisdiction to award the relief the appellant sought – whether the appellant, by his counsel, presented an intelligible case on appeal

President:

[5] Section 561(3) defines the scope of the proceedings, which are to be “by way of rehearing on the evidence and proceedings before the … industrial commission, unless the Court orders further evidence be heard.” The appellant did not seek to adduce further evidence. Such a rehearing on the record is to be determined in the manner set out by the High Court in Fox v Percy.[2]

[6] While the appellant need not demonstrate an error of law in the Commission’s reasoning, he must nonetheless demonstrate an error (or errors) of a distinct kind. Mere differences of opinion do not found an appeal; that is to say, where the Commission has made a finding reasonably open to it, this Court ought not, without more, disturb such a finding, given that it is necessarily at a disadvantage in doing so.[3] The appellant has put nothing before this Court that would suggest that the appeal should proceed otherwise than on this footing.
[7] The procedural misconception that has already been referred to has shaped the appellant’s case on appeal. Rather than seeking to demonstrate mere error, the appellant has sought to demonstrate that the Commission’s reasons were infected by an error of law going to jurisdiction, a more rigorous standard than he was required to meet. Further, the appellant’s case on appeal had to be teased out during the hearing. Mr Hunt’s written submissions were based on the misconception about the appellate process referred to above.
What were the appellant’s grounds of appeal?
[8] It is completely unsatisfactory that this Court should find itself in the position of having to hunt through the material to determine the grounds of appeal. Nevertheless, that is the result when an appellant fails at the outset to commence proceedings properly.
[9] So far as it could be determined from the oral submissions the appellant relied on two grounds:

(a) That the Deputy President asked herself the wrong question about the injury,[4] and
(b) The Deputy President preferred the evidence of one expert to that of another and did not give sufficient reasons.[5]

[15] The case put before the Commission was summarised by Mr Roche in this way:

“ … it’s my client’s case that during his employment with Bandag Manufacturing as a CT press operator he was exposed to toxic fumes, in particular, formaldehyde which caused him to suffer an over period of time injury, from 2009 onwards, known as Reactive Airways Dysfunction Syndrome or simply RADS.”

What was the Commission required to decide?
[16] The debate before the Commission was not whether the appellant had suffered a personal injury, but whether he was suffering from RADS. The respondents said he wasn’t suffering from that particular condition. That was the conflict which the Commission had to resolve. And that was the matter which was addressed in the expert reports.
[17] A party in an appeal will, usually, be bound by way it ran its case in the tribunal below.[6] In this appeal the appellant sought to demonstrate that his “injury” was RADS. That is all he sought to show in that regard.
The appellant did not suffer from RADS
[18] The Deputy President held that: “medical evidence which has been accepted does not show that the Appellant suffered a RADS type symptom [sic].”[7] The specific characterisation of this injury was the first matter said by the appellant to be contentious.
[19] In Bell v Australian Meat Holdings[8] the Court of Appeal was called on to consider competing characterisations of an injury for the purposes of s 32 of the WCRA. Jerrard JA held that the fact an injury might bear different characterisations or labels did not mean that it was anything other than the same injury, for the purposes of the WCRA.[9] His Honour, of course, must be taken to have assumed that the competing descriptions refer to the same underlying symptoms.
[20] Much of the debate before the Commission was about the correct characterisation of the symptoms suffered by the appellant…

[30] The Commission preferred the evidence of Mr Rogers (and, insofar as it is relevant, that of Mr Filsinger’s findings) to that of Mr Stewart for a number of reasons. First, it drew on actual testing that had been performed by heating Xiameter to certain temperatures.[15] Mr Stewart had conducted no such testing. Secondly, the testing by Mr Rogers was able to negative the influence of changes to the work environment made in the period between the appellant’s exposure to the Xiameter and the test by conducting testing with the ventilation system turned off.[16] The Commission considered the evidence of Mr Rogers to have been “clear and unambiguous.”[17] In response to Mr Filsinger’s findings, Mr Stewart was unable to do more than to assert that it was outdated. Without more, the Commission was correct in declining to accept such a view.
Were the reasons sufficient?
[31] In respect of each finding made by the Deputy President she adverted to the relevant evidence and explained why she preferred certain evidence over other evidence. The reasons disclosed how she came to her conclusion and why. The Commission’s reasons were sufficient, and obviously so.
Conclusion
[32] The appellant conducted his case with a particular end in mind, that is, he sought a finding that he suffered from RADS. On this point he failed. The Deputy President, as was appropriate, went on to consider the other elements which the appellant would have needed to establish. She held that: “Any injury that the Appellant suffers from is not one arising out of, or in the course of, employment.”[18] The appellant has not demonstrated any reviewable error in that finding.

 

David Cormack – Brisbane Barrister & Mediator

 

Related Posts

Recent Comments

    Categories