Outfoxed? Workers’ Compensation Appeals

On 11 December 2019 Quail DCJ handed down his decision in Fox v Roy Hill Holdings Pty Ltd [2019] WADC 171.

The appellant, James Fox, was employed as a truck driver by the respondent, Roy Hill Holdings Pty Ltd. On 8 October 2017 Mr Fox was injured at work. He claimed to have injured his left shoulder and neck.

Following a WorkCover arbitration it was determined however, that he had only sustained an injury to his left shoulder but not to his neck.

Mr Fox appealed the decision pursuant to Section 247 Workers’ Compensation and Injury Management Act 1981.

To proceed, Mr Fox first had to persuade the District Court to grant leave to appeal. There are a number of prerequisites for leave to be granted, but primarily the arbitrator who made the decision being appealed against, must have made an error on a question of law.

The case turns on its facts but is useful for the guidance provided by His Honour as to what constitutes a question of law.

Relevantly he held that:

a decision will not involve an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different. An appeal may involve a question of law where an error of law, or an error of mixed law and fact, is involved. An error of fact alone is insufficient. Several principles can be drawn from the authorities about what constitutes an error of law:

  1. a finding of fact in the absence of any supporting evidence is a question of law;
  2. whether there is evidence of the fact is a question of law;
  3. whether an inference can be drawn from fact is a question of law;
  4. there is no error of law simply from the making of a wrong finding of fact;
  5. want of logic is not synonymous with an error of law;
  6. whether facts as found meet a statutory definition is a question of law;
  7. taking into account irrelevant considerations is an error of law;
  8. failing to take into account a relevant consideration is an error of law;
  9. where a statute uses words according to their common understanding and the question is whether the facts found fall within these words, the question is a question of fact; and
  10. where it is necessary to engage in a process of construction of the meaning of a word or phrase in a statute, a question of law will be involved but the question may be a mixed one of law and fact.”

If no question of law can be identified arising from an arbitrator’s decision, there is no jurisdiction in the District Court to grant leave to appeal. Unfortunately for Mr Fox, His Honour dismissed the grounds of appeal and determined the Arbitrator had made no error of law in his decision, and so he refused leave to appeal.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.