New South Wales Police Force v Winter [2011] NSWCA 330

Workers Compensation – Appeal from Arbitrator to Presidential member – whether arbitrator denied procedural fairness - content of obligations of procedural fairness in Workers Compensation Commission - where adverse credit finding made, whether party was given reasonable opportunity to answer the case against that party - rule in Browne v Dunn - where cross-examination terminated following objection by counsel of party claiming denial of procedural fairness - whether exchange of documentation before hearing gave party notice of the case that is put against that party - whether arbitrator failed to give adequate reasons - task of Presidential member is to decide whether the arbitrator has reached the correct view of the question that has been decided by the arbitrator - allegation of "inadequacy of reasons" identifies decision as flawed because it has been arrived at without observing the legal requirements governing the manner in which the decision is arrived at, not because decision is in substance wrong - decision by Presidential member that arbitrator has not given adequate reasons is not sufficient to justify Presidential member revoking or altering decision of arbitrator unless Presidential member also decides that decision of arbitrator is not the true and correct decision - nature of power to "review" - whether necessary for Presidential member to find error in decision of arbitrator before setting aside - EVIDENCE - witnesses - Cross-examination - rule in Browne v Dunn - where cross-examination terminated following objection by counsel of party claiming denial of procedural fairness

Giles JA, Campbell JA and Handley AJA

28 October 2011

Facts:

Mr Winter was a police officer who sought compensation for psychological injury that he alleged he had received in the course of his employment with the Police Force. He claimed weekly payments of compensation from 8 September 2008 onwards. He also claimed an award for medical and related expenses.

On 8 September 2008, Mr Winter saw Dr Gordon. The doctor’s notes of that day stated “Still not happy at work. Trying to get out of patrol work. Stress has led to rash on body. Feels is being badly treated.  Needs certificate stating too stressed to work”.  Dr Gordon’s notes of 12 September 2008 recorded “Has spoken to union and they suggest he apply for PTSD for some of the episodes that have happened to him – violent episodes”.

Mr Winter was cross-examined on these entries in Dr Gordon’s notes. Following Mr Winter’s counsel’s objection, the Arbitrator stopped the cross-examination because the doctor’s notes were in evidence and it was, in the Arbitrator’s view, only a matter for submissions.

The Arbitrator held that Mr Winter had not suffered a psychological injury arising out of, or in the course of, his employment as defined in ss 4 and 11A(3) of the 1987 Act.  The Arbitrator also found that there was insufficient evidence that Mr Winter had suffered an ongoing incapacity arising from any psychological injury he suffered at work on 8 September 2008.  The Arbitrator made an award for the Police Force (see Winter v NSW Police Force [2010] NSWWCC 211).

Mr Winter appealed to a Presidential member of the Commission. The Deputy President identified two grounds of appeal:

(a) the Arbitrator denied Mr Winter procedural fairness, and

(b) the Arbitrator failed to give adequate reasons.

The Deputy President held that:

(a) the Arbitrator denied Mr Winter procedural fairness by making an adverse credit finding on an issue that he did not have a reasonable opportunity to answer because she prematurely terminated cross-examination, and

(b) the Arbitrator failed to give adequate reasons as she failed to expose her reasoning on critical issues and did not analyse the medical evidence (see Winter v NSW Police Force [2010] NSWWCCPD 121).

The Police Force sought leave to appeal the decision to the Court of Appeal.

Held:  Leave to appeal granted – appeal upheld – orders of the Commission made on 16 November 2010 were set aside, order that the appeal to the Commission constituted by a Presidential member be dismissed and the decision of the Arbitrator confirmed

Campbell JA (Giles JA and Handley AJA agreeing)

The issues on appeal were the Presidential member erred in:

(a)  holding that there was a denial of procedural fairness in the decision of the Arbitrator;

(b)  holding that the Arbitrator’s view about the credibility of Mr Winter was relevant to the Arbitrator’s conclusion dismissing the employee’s claim;

(c) holding that the Arbitrator had failed to give adequate reasons for her decision, and

(d)  remitting the matter for re-determination where there was no error identified in, or disagreement with, the Arbitrator’s conclusion that Mr Winter had failed to prove that he suffered incapacity as a result of the alleged workplace injury.

Was there a breach of procedural fairness?

1. The exchange of documents between the parties prior to the oral hearing was sufficient to notify Mr Winter that there was a live dispute about whether he suffered from a mental condition of sufficient seriousness to warrant classification as a “psychological injury”. It was sufficient to notify him that there was a live issue about whether the reason for his absence from work was a psychological injury, rather than that he had undergone difficulties at work that he found disagreeable, even intolerable, but that had not precipitated a psychological injury. It would also have been sufficient to notify him that there was a live dispute about whether he was suffering any ongoing incapacity. [82]

2. The exchange of documents before the hearing was sufficient to inform Mr Winter the submission was to be made that as at 8 September 2008 no diagnosis of PTSD had been made, the theory that he was suffering from PTSD had its origin in his union, or that his statement incorrectly created the impression that Dr Gordon had diagnosed him with PTSD on 8 September 2008.  At the hearing, the Police Force’s counsel made it clear that he would make submissions attacking Mr Winter’s credit.  Mr Winter’s counsel objected to the cross-examination which provided the substantial reason why Mr Winter did not give his account of the complaints he made to Dr Gordon on 8 September 2008, of when and from what source the notion of him suffering from PTSD arose, and of why his statement indicated he had told Dr Gordon of what had been happening at work and the symptoms he had been suffering. [83]

3. The obligation to accord procedural fairness requires that a party be given notice of the case that is put against him or her, and a reasonable opportunity to put evidence and submissions before a tribunal concerning the case.  Mr Winter had the opportunity, until his counsel took objection.  When it was Mr Winter’s counsel who took objection to the question being opened up, the present case was quite different to what it would have been if the Arbitrator, unprompted, had refused to permit the Police Force’s counsel to explore the topics he wished to raise. [84] Therefore, the Deputy President was in error in holding there had been a denial of procedural fairness. [85]

The Arbitrator’s reasons

4. The task of a Presidential member in conducting a review under s 352(5) (before the amendments by the Workers Compensation Legislation Amendment Act 2010) was to decide whether the Arbitrator had reached the correct view and, if the Presidential Member came to a different view, to resolve that question in the way that the Presidential member decided was correct. While there was a power to remit, that power was to be exercised bearing in mind the importance of the parties having available to them the skill and judgment of the Presidential member (see Sapina v Coles Myer Ltd [2009] NSWCA 71). [88]

5. An allegation of “inadequacy of reasons” identifies a decision as flawed because it was arrived at without observing the legal requirements governing the manner in which a decision was arrived at, not because the decision was wrong in substance. [89]

6. Where the task of an appellant tribunal is to decide whether the primary decision-maker had given the right answer, for the appellate tribunal to ask whether the primary decision-maker had given adequate reasons does not in itself carry out the appellate tribunal’s task. A decision by a Presidential member that an arbitrator has not given adequate reasons was not sufficient to justify the Presidential member revoking or altering the decision of an arbitrator unless the Presidential member also decided that the decision of the Arbitrator was not the true and correct decision. [90] The finding that the decision of the Arbitrator was not a true and correct decision required the Presidential member to consider the substance of the decision, not merely the procedure by which it had been arrived at. [91]

7. As the allegation that there was a failure to accord procedural fairness failed, the argument concerning inadequacy of reasons was insufficient, by itself, to warrant a conclusion that the Arbitrator’s decision was not the true and correct decision. If there had been some additional ground of appeal, relating to the substance of the Arbitrator’s decision, that the Deputy President had upheld and on the basis of which he concluded that the Arbitrator’s decision was not the true and correct decision, it might have been open to him to remit the matter. But without such an additional ground, inadequacy of reasons did not suffice. [95]

Zheng v Xie [2011] NSWWCCPD 58

Whether contract of employment formed; ostensible authority of wife; additional evidence on appeal; Arbitrator’s reasons; notice of injury; notice of claim; procedural fairness.

Roche DP

27 October 2011

Facts:

Sheng Li Xie (the respondent on appeal) came to Australia from China in September 2001. He alleged that, on coming to Australia, he lived with the appellant, Mr Zheng, at Mr Zheng’s home at 9 Butterfield Street, Thornleigh (the Thornleigh premises) and continued to live there until about June 2008. He says he paid board of $100 per week until about the middle of 2003. Mr Xie claimed that, following this time, he received accommodation and food at no cost in return for working for Mr Zheng at 3 Ronald Avenue, Wahroonga (the Wahroonga premises). The Wahroonga premises are an investment property owned by Mr Zheng and his wife.

Mr Xie’s case was that, in the course of his employment with Mr Zheng, on 5 September 2006, he was cutting a tile on outdoor steps at the Wahroonga premises when a piece of tile entered his right eye causing him serious injury and loss of vision. Following the accident Mr Xie contacted Mr Zheng, who picked him up from the Wahroonga premises and drove him to Hornsby Hospital.

Mr Zheng’s case was that Mr Xie visited but was never a resident at the Thornleigh premises.  That there was never any agreement for Mr Xie to work at the Wahroonga premises. And further, that any and all renovations undertaken at the Wahroonga premises were completed by tradespersons, not Mr Xie. Following Mr Xie’s accident, Mr Xie contacted Mr Zheng, who picked him up at a location near Mr Xie’s home on the Pacific Highway and that he drove him to Hornsby Hospital.

Both sides agreed that after the accident, Mr Zheng agreed to meet, and did meet, Mr Xie’s hospital and medical expenses until mid-2008.  However, Mr Zheng maintained that such payments were only made as a loan.

As Mr Zheng was uninsured, Mr Xie submitted a claim for compensation on the WorkCover Authority of New South Wales on 24 February 2009.

The Arbitration:

The matter proceeded with cross-examination of Mr Xie through a Mandarin interpreter. Before cross-examination was completed, and because of the volume of evidence and the large number of witnesses who provided statements (22, excluding expert witnesses), the parties agreed that statements would be admitted without further cross-examination and that they would not take any “Browne v Dunn” ((1894) 6 R 67, 7 C & P 408) points because of a failure to cross-examine all witnesses.

The evidence produced by the respondent raised several credit issues for Mr Xie, including evidence of Mr Xie providing false addresses and names to various government departments whilst declaring such information to be true.

Arbitrator’s Decision – Award for the applicant:

The Arbitrator concluded that there was a relationship between Mr Xie and Mr Zheng that required Mr Xie to work for Mr Zheng at the Wahroonga premises (that is, at all relevant times Mr Xie was a worker as defined, engaged as an employee by Mr Zheng). He based his conclusion on a conversation between Mr Xie and Mr Zheng’s wife, Jie Wang (Mrs Zheng), a person he said had “at least ostensible authority to speak on behalf of her husband” and an inference that Mr Zheng “would also have known about this arrangement and adopted it”.

Appeal:

The issues in dispute in the appeal were whether the Arbitrator erred in:

(a) determining that Mrs Zheng had ostensible authority to conclude a contract with Mr Xie on behalf of her husband (ostensible authority);

(b) failing to determine properly and/or give reasons or adequate reasons as to why he preferred one witness to another and why he rejected Mr Zheng’s defence as to Mr Xie’s failure to give notice of injury or notice of claim ((in)adequate reasons/notice)

(c) determining that Mr Xie was:

(i) illiterate;

(ii) an unskilled labourer, and/or

(iii) unable to understand English

(d) denying Mr Zheng procedural fairness and/or incorrectly exercising his discretion in drawing a Jones v Dunkel [1959] HCA 8; 101 CLR 298 inference against Mr Zheng because of an absence of evidence from his son, Jiefu (James) Zheng (procedural fairness).

Held: The Arbitrator’s decision of 10 May 2011 was revoked and the matter remitted to a different Arbitrator for re-determination.

Ostensible Authority

1. In his first witness statement, Mr Xie said that the conversation where he was offered free food and board in return for his labour at the Wahroonga premises was with Mr Zheng.  In his oral evidence Mr Xie said that the conversation was with Mrs Zheng, but that Mr Zheng knew of the arrangement.  In determining that a contract of employment had been created between Mr Xie and Mr Zheng the Arbitrator stated that Mrs Zheng “would have at least ostensible authority to speak on behalf of her husband”.

2. The appellant submitted that there was no representation made by Mr Zheng to Mr Xie regarding Mrs Zheng’s authority to act on behalf of her husband (Freeman & Lockyer (A Firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 503).  As such, Mr Zheng could not have intended for Mr Xie to rely upon any representation, and neither did Mr Xie in fact rely on any representation.

3. The respondent conceded that the Arbitrator had erred in finding that Mrs Zheng had ostensible authority to bind her husband.  However, he maintained that in additional conversations a separate agreement was made between Mr Zheng and Mr Xie in respect of employment. This however, was not an argument relied upon by the Arbitrator in finding that there was a contract.

4. Roche DP determined that there was no evidence that supported a representation being made by Mr Zheng as to Mrs Zheng’s authority to act on his behalf, nor any evidence of the contract of employment being adopted by Mr Zheng. The Married Persons (Equality of Status) Act 1996 (NSW) abolished any presumption of ostensible authority based on marital status. In respect of the respondent’s argument of a separate contract, such a finding would require a re-determination of the main issue in dispute: whether Mr Xie had entered a contract of employment with Mr Zheng and, if so, the terms of that contract [171].

5. Whether a contract of employment existed depended upon the assessment of the reliability of the evidence submitted by Mr Xie, Mr Zheng and Mrs Zheng. Any test of credibility was curtailed, by agreement of the parties, in the arbitration. As Mr Zheng did not consent to the same course being adopted on appeal, fairness and justice required that the question of what, if any, agreement Mr Xie made with Mr Zheng about working at the Wahroonga premises must be remitted to another Arbitrator for re-determination [176].

(In)adequate reasons/Notice

6. The appellant submitted that the Arbitrator had failed to provide reasons in respect of the weight and preference he accorded to the evidence of various witnesses, and in particular, to the evidence of Mr Xie over Mr Zheng (Soulemezis v Dudley (Holdings) Pty Ltd(1987) 10 NSWLR 247 (Soulemezis)). The appellant also argued that the Arbitrator had erred by drawing an inference from the absence of evidence from James Zheng (Mr Zheng’s son) and in concluding that the actions of Mr Zheng following the accident were extraordinary given Mr Zheng’s description of his “remote” relationship to Mr Xie.  Additionally, the appellant submitted that the Arbitrator had failed to consider or give appropriate weight to evidence which the appellant claimed undermined Mr Xie’s credit.

7. Roche DP found that while the Arbitrator’s reasons could have provided a more detailed analysis of the evidence and the issues, on balance, he did not accept that the Arbitrator breached the principles discussed in Soulemezis.  He noted that, given that there were 22 witnesses, it was not necessary for the Arbitrator to indicate, with respect to each witness, which he accepted and which he rejected. However, it would have been appropriate for the Arbitrator to have made an express finding about which parts of Mr Xie’s evidence he accepted and why, rather than leaving it to be implied from his conclusion. [181]

8. In respect of the Arbitrator being influenced by the absence of evidence from James Zheng, Roche DP agreed that the Arbitrator had drawn such an inference and relied upon it as one of the reasons for finding in favour of Mr Xie.  Whether he used the absence of evidence from James to establish a prima facie case or merely to draw an inference in favour of Mr Xie was unclear from the Arbitrator’s reasons and should have been explained.  In any case, the absence of evidence from James was not critical to the determination. [184]

9. Roche DP agreed that the Arbitrator had erred in his conclusion that Mr Zheng had described the relationship between himself and Mr Xie as “remote”. The evidence of Mr Zheng described a reasonably close friendship, a description which was supported in Mr Xie’s evidence.

10. The Arbitrator erred in not referring to evidence that went directly to Mr Xie’s veracity, such as evidence that Mr Xie had produced a forged licence and provided a false name to police.

Notice

11. The appellant submitted that the Arbitrator’s reasons for rejecting the notice of injury (s 254 of the 1998 Act) and notice of claim (s 261 of the 1998 Act) defences were inadequate.

12. Roche DP noted ss 261 and 254 of the 1998 Act are separate and distinct provisions and the Arbitrator erred in not dealing with them separately and in not referring to the terms of the legislation.

Notice of Injury

13. The appellant argued that Mr Xie gave no notice of injury, and no explanation for failing to provide such notice. Further, it was submitted that whilst Mr Zheng was aware that Mr Xie had injured his eye, he was not advised that the injury allegedly arose out of or in the course of employment; and that the failure to provide such notice had prejudiced Mr Zheng.

14. Roche DP found that if a contract of employment was found to exist, then notice of injury was provided on 5 September 2006 when Mr Xie called Mr Zheng to advise him of the accident. The appellant’s argument, that the notice of injury had to note that the injury was sustained in the course of, or arising out of, employment was unsupported by legislation or precedent.

15. In respect of the allegation of prejudice to Mr Zheng it was noted that failure to give notice of injury is not a bar to the recovery of compensation or work injury damages if it is found that there are special circumstances as provided by the section. The special circumstances are:

“(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,

(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,

(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,

(d) the injury has been reported by the employer to the Authority in accordance with this Act.” [195]

16. The section does not stipulate that prejudice to the employer is a defence against a late claim. It states that one of the special circumstances in which the failure to give notice of injury is not a bar to the recovery of compensation or work injury damages is where the person against whom the proceedings are taken has not been prejudiced. [196]

17. If, contrary to the evidence, Mr Xie had not given notice of injury as soon as possible after his injury happened, and if Mr Zheng was prejudiced by that fact, Mr Xie could not rely on the absence of prejudice as a special circumstance to prevent s 254 creating a bar to the recovery of compensation, but could rely on one of the circumstances in either sub-ss (b), (c) or (d). [197]

Notice of Claim

18. The appellant argued that Mr Xie had made no claim for compensation until he submitted a claim form on 24 February 2009 and had given no explanation for his delay. The evidence submitted (such as documents which Mr Xie had signed noting that he had completed the forms himself) proved that Mr Xie was not illiterate in English, and had prior access to a solicitor on a separate and unrelated workers compensation matter created the presumption that Mr Xie had some knowledge of workers compensation law, or access to persons who did.

19. The respondent argued that notice of claim was provided when Mr Xie approached Mr Zheng to cover his hospital and medical expenses.  In the alternative, if it was found that Mr Xie had not provided notice of claim, that Mr Xie’s illiteracy and ignorance constituted reasonable cause as to why the claim had not been made within the time limits identified by the legislation.

20. Roche DP observed that a failure to make a claim within the period required by s 261 is not a bar to the recovery of compensation if it is found that the failure was occasioned by “ignorance, mistake, absence from the State or other reasonable cause” (s 261(4)) [204].  The Arbitrator erred in concluding that the appellant’s attempt to enlist a technical defence under s 261 “might be suggestive of the sort of sophistry which modern courts decry”. The section serves the legitimate purpose of ensuring that claims for compensation are promptly made so they can be investigated and either paid or disputed. Provided the section has been properly pleaded, an employer is entitled to rely on it and to have the issue determined according to the terms of the legislation. [206]

21. Statutory provisions should be given effect according to their terms and the context in which they appear. It must always be kept in mind however, that workers compensation legislation is beneficial legislation. He rejected the presumption that Mr Xie’s previous workers compensation claim, or his access to legal professionals should have informed Mr Xie’s knowledge of his need to claim within six months of the date of the accident.  It was noted that the assertion that Mr Xie completed documents in English on his own was open to doubt, but, in any event, was of little relevance to the issue of ignorance. [211]

22. Whether Mr Xie made a claim for compensation at the time he claimed the cost of his medical expenses from Mr Zheng had to be determined at the next arbitration. [210]

23. The argument that Mr Xie failed to claim because of his illiteracy and/or ignorance was unsupported by any evidence to that effect. [209]

Evidence

24. The appellant challenged the Arbitrator’s findings that Mr Xie is illiterate, that he is an unskilled labourer and that he is unable to understand English [212].  The respondent denied the appellant’s arguments and noted that given the time constraints, the matter of Mr Xie’s command of English was not raised at the arbitration as it was not considered to be seriously in issue that Mr Xie did not have real skills in English, written or oral, and submissions were put accordingly [216].

25. As the hospital notes were full of references to Mr Xie’s being unable to speak English, Roche DP accepted that Mr Xie’s English was “terrible”, and that the appellant’s submissions were unsupported by evidence. [217]

Procedural fairness

26. The appellant submitted that the inference the Arbitrator drew from the absence of evidence from James Zheng, when the respondent made no specific submissions on this point, amounted to a failure to provide procedural fairness

27. Roche DP noted that the respondent’s submissions before the Arbitrator made it clear that “one would have thought that [Mr Zheng] could have called evidence from any number of sources, be they close friends, relatives or others who were regular visitors to his home”. This submission clearly raised the spectre of a Jones v Dunkel [1959] HCA 8; 101 CLR 298 inference from a failure to call evidence from a family member such as James. In these circumstances, the allegation that the Arbitrator denied Mr Zheng procedural fairness by drawing such an inference was difficult to sustain. [220]

Cummings v Melville [2011] NSWWCCPD 59

Arbitrator’s discretion to permit cross-examination of witness; standard of proof; challenge to Arbitrator’s finding, based in part, upon a finding as to credit

O’Grady DP

27 October 2011

Facts:

Mr Cummings was employed as a station hand/shearer and also undertook “all round work”.  He commenced employment with the late Mr Clive Melville from “about 1980” and worked on and off until either 1994 or 1995.  Mr Cummings alleges that he injured his left eye on or about 30 June 1993 when he was kicked “in the left side of the head and face” by a ram which he was shearing in the course of his employment with Mr Melville.  He was assisted by Mr Glenn Colwell at the time of the injury, and Mr Colwell confirmed the event. Mr Cummings said that he reported the injury to the respondent, but no written report was made.  He did not seek any medical treatment for his eye until a few years later when he noticed his eye sight degrading.  Over an interval of years, despite several medical interventions, Mr Cummings lost all vision in his left eye.

On 20 April 2010 Mr Cummings’s solicitors made a claim for workers compensation.

It was not disputed that Mr Cummings had, as a result of an injury, lost all sight in his left eye.  The dispute centered on whether the injury occurred in the course of his employment with Mr Melville.

The medical evidence referred to conflicting dates of injury, and linked causation to either an injury occurring in 1993 or 1997. To test these inconsistencies, the respondent made an application at the arbitration to cross-examine Mr Cummings, which was granted by the Arbitrator. Under cross-examination Mr Cummings explained that the inconsistencies arose due to a misunderstanding by the doctor about the history he provided. He maintained that he had only ever been hit on the eye once and that was the event in 1993.  He denied that he ever said he was butted by a ram in 1997, but did note that he was in a great deal of pain at the time and on a lot of pain killers.

The Arbitrator concluded that there had been a number of “discrepancies” in Mr Cummings’s evidence and that he was, at best, “an unreliable historian”. As such he had “significant reservations” concerning Mr Cummings’s evidence, and found that “certain matters of his evidence cast doubt on [Mr Cummings’s] credit”. He was not satisfied that there had been a “consistent history of the alleged cause of [Mr Cummings’s] left eye injury”. He was not satisfied that “the incident in 1993 was the cause of [Mr Cummings] eye injury”. [74] He made an award in favour of the respondent.

Mr Cummings appealed on the grounds that the Arbitrator erred in allowing cross-examination, had failed to properly consider relevant authority concerning the granting of leave to cross-examine and that the Arbitrator made an error of fact in finding that he had failed to prove that his left eye injury was caused by the 1993 incident.

Held: the determination made by the Arbitrator be revoked and orders made in favour of the appellant.

Cross-Examination

1. The appellant argued that the application to cross-examine should have been refused as no notice had been provided, that Practice Direction No 1 of the Commission does not support cross-examination and that it was unfair to ask Mr Cummings about other witnesses’ versions of events when those witnesses were not similarly called to give oral evidence, or were deceased.

2. O’Grady DP found that notice of cross-examination is not strictly necessary, and that the Workers Compensation Commission guidelines do support cross-examination of witnesses in very limited circumstances, and only if an arbitrator is of the view that it is necessary to come to a decision. Situations where contradictory evidence requires clarification, or where the witness ought to be allowed to respond to adverse evidence where there has been no previous opportunity to do so (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399), as per the evidence in this matter, are situations where cross-examination will be justified.

3. Additionally, the Arbitrator, who was aware of all the documentary evidence at the time of his ruling, held the view that Mr Cummings’s credit was a significant matter to be assessed when determining the facts and, further, that he would be assisted by hearing his evidence. Such course afforded Mr Cummings an opportunity to explain or clarify matters relevant to a determination of those issues. A refusal to permit cross-examination would have deprived Mr Cummings of that opportunity. Of equal importance was that the requirements of procedural fairness be met with respect to the respondent’s application. The approach adopted by the Arbitrator was, in my view, in accordance with those matters as stated by Bryson JA, (Handley JA and Bell J agreeing) in Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 4 DDCR 358 (at [37]). [90]

4. The argument in respect of unavailable witnesses was rejected as Mr Cummings had relied on those witnesses in his own case.

5. On these grounds the Arbitrator did not err in the exercise of his discretion to permit cross-examination.

Finding of fact

6. Mr Cummings argued that the Arbitrator erred in finding that he had failed to prove that the condition of his left eye had been caused by the 1993 injury.  It was argued that the error arose as the Arbitrator virtually applied a ‘beyond reasonable doubt’ standard of proof. This submission relied upon Palmer v Dolman [2005] NSWCA 361 and Nguyen v Cosmopolitan Homes [2008] NSWCA 246.  It was further argued that the evidence before the Arbitrator, strengthened by the additional evidence tendered on appeal, was sufficient to meet the standard of proof required for a finding that an accident occurred in 1993 as alleged and there was a causal relationship between that injury and the state of Mr Cummings’s left eye. [94 – 95]

7. The respondent argued that the Arbitrator had applied the correct standard of proof in assessing the evidence and making his findings, that the additional evidence tendered on appeal did not advance Mr Cummings case, and that having regard to the evidence, “it could not be said with any certainty when the incident that caused the subject injuries occurred”. The general thrust of submissions was that, having regard to the shortcomings in the evidence and the Arbitrator’s conclusions as to the credit of Mr Cummings, the findings made demonstrated no error. [97]

8. The Arbitrator stated in his reasons that he had reservations about “the applicant’s evidence, both as to its reliability and, so far as certain matters are concerned, its credibility” (Arbitrator’s reasons at [102]). These reservations were not dispelled by Mr Cummings’s responses to questions put in cross-examination about histories he had supplied to medical professionals, nor by his attempts to find corroboration for Mr Cummings’s account in the evidence supplied.

9. O’Grady DP observed that the evidence put before the Arbitrator was contradictory and confusing, and that some clarification had been derived from the additional evidence supplied on appeal.

10. Any appeal against the Arbitrator’s findings of fact, determined in part, upon an assessment of Mr Cummings’s credibility, must be guided by, and conform with, the principles stated by the High Court in Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR  472. Namely that such a finding could properly be overturned “only if it was vitiated by some error of principle or mistake or misapprehension of fact or if the affect of the overall evidence was such that it was not reasonably open to the trial judge to accept [the plaintiff] as a witness of truth” (per Deane J and Dawson J at 483). [107]

11. To succeed in his claim, Mr Cummings was required to satisfy the Commission, on the balance of probabilities, that:

(a) an incident occurred in 1993 in the course of his employment with the respondent;

(b) the incident involved injury to his left eye in the manner alleged, and

(c) the loss claimed was caused by that incident. [108]

12. O’Grady DP found that the Arbitrator’s conclusion that an incident occurred in 1993 but that he was not satisfied that this incident caused Mr Cummings’s left eye injury did not address the primary allegation of injury made in the proceedings. As such he found that the Arbitrator erred in failing to determine the issue before him namely whether injury occurred as alleged. [110]

14. The correct standard of proof to apply was whether on the balance of probabilities the events alleged had been proven by Mr Cummings. As per Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, “it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal” at 362. [111]

15. In application of this standard, O’Grady DP was satisfied that Mr Cummings’s account, corroborated by Mr Colwell’s evidence, and the additional evidence of Dr Lui admitted on appeal, supported the finding that Mr Cummings was kicked by a ram in the course of his employment with Mr Melville, and that this incident involved an injury to Mr Cummings’s left eye.  The inconsistencies in Mr Cummings’s evidence were explained by his being a poor historian. The evidence established that Mr Cummings was a poor historian in respect of many matters including non-contentious matters.

16. The date of that injury had been determined by Mr Cummings by reference to the year of the birth of his son and his moving residence. Such manner of estimating a date was found to be both reasonable and reliable. A finding was made that the injury had occurred in 1993.

17. In respect of causation, O’Grady DP referred to the evidence of Dr Delaney and Dr Duke which established the causal nexus between the traumatic injury and the loss of vision and noted that there was no contrary expert evidence.[119]

Balfours NSW Pty Ltd v Karam [2011] NSWWCCPD 56

Claim for consequential loss as a result of injuries sustained while participating in a rehabilitation program

Keating P

18 October 2011

Facts:

Mr Karam was employed by the appellant, Balfours NSW Pty Ltd (Balfours), as a labourer.

Mr Karam alleged that he suffered a consequential loss as a result of an injury to his left shoulder and neck sustained while he was participating in an exercise/gym program undertaken in 2006 as part of his rehabilitation and treatment program for a back injury sustained at work on 29 January 2005. He received lump sum compensation for the back injury in accordance with a MAC dated 3 November 2006 which certified him as suffering a seven per cent whole person impairment.

On 8 November 2010, Mr Karam claimed a lump sum of $116,000 in respect of a combined whole person impairment of 51 per cent, which comprised the cervical spine, thoracic spine, lumbosacral spine and traumatic capsulitis of the left shoulder.

The claims in respect of the cervical spine and the left shoulder were claimed as consequential losses arising from the treatment undertaken in respect of the accepted back injury. The claim in respect of the thoracic spine injury was not pressed. The claim in respect of the lumbosacral spine was based on a deterioration of Mr Karam’s condition after the MAC dated 3 November 2006.

CGU disputed that Mr Karam suffered any injury to the cervical spine or left shoulder and it denied that there had been any deterioration of the injury to his lumbar spine.

On 18 January 2011, Mr Karam lodged an Application to Resolve a Dispute with the Commission. The Arbitrator made orders remitting the matter to the Registrar for referral to an AMS to assess any impairment in relation to the cervical spine and the left upper extremity, and any deterioration with respect to the lumbar spine as a result of injury suffered by Mr Karam arising out of or in the course of his employment with the employer on 29 January 2005.

Balfours appealed and submitted that the Arbitrator erred:

(a) in finding that Mr Karam undertook a gym program in 2006;

(b) by failing to provide reasons for preferring “the report of the GP”, Dr Latif, over the report of the AMS, Dr Bye;

(c) by failing to address inconsistencies in the evidence regarding the circumstances of the alleged injuries to the neck and shoulder, and

(d) by failing to consider the application of s 254 of the 1998 Act.

Held: Arbitrator’s decision confirmed

1. The weight of the evidence supported the finding that Mr Karam participated in a gymnasium program as part of a rehabilitation program in 2006 [60] – [63]. It did not matter whether his participation in the gymnasium program was at the request of the insurer or his treating doctor [61].

2. Arbitrators have a statutory and common law obligation to provide adequate reasons for their decisions (s 294(2) of the 1998 Act; Pt 15 r 6 of the Workers Compensation Rules 2011 (the Rules); Absolon v NSW TAFE [1999] NSWCA 311) and failure to do so constitutes an error of law [57]. For an arbitrator’s decision to be set aside, the inadequacy of reasons must disclose that the Arbitrator failed to exercise his or her statutory duty to fairly and lawfully determine the matter [58] and [59].

3. The Arbitrator gave clear, logical and compelling reasons for attaching significant weight to Dr Latif’s opinion. The reasons were:

(a) he had treated Mr Karam for over 20 years;

(b) he had treated Mr Karam for his lumbar spine injury since the first injury in 2005;

(c) he had contemporaneous history of the injury to the neck and shoulder, and

(d) having regard to the radiological evidence, he excluded any other potential causes of the neck and shoulder injury [71].

4. The submission that Dr Latif’s reports were inconsistent was not accepted, as Dr Latif only addressed, in each report, issues that had been put to him [78]. Dr Latif’s report of 25 June 2007 was written in response to a letter from CGU requesting answers to a series of questions [75]. The questions did not differentiate between the lower back injury and the consequential injury to his neck and shoulder [76]. Dr Latif responded to the request in so far as it concerned Mr Karam’s lower back condition. Dr Latif’s report to Mr Karam’s solicitors in September 2010 specifically addressed the causation of the injuries to his neck and left shoulder [77].

5. Balfours submitted that there were further inconsistencies in the evidence in relation to the shoulder and neck injury that were not considered by the Arbitrator. These alleged inconsistencies were not raised before the Arbitrator and therefore could not be matters in respect of which an error in point of law could be identified (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111) [80]. It had not been put to Mr Karam that he provided a history to Peak Conditioning that the injuries to his shoulder and neck were suffered at the same time as the injury on 29 January 2005. He was not given the opportunity to answer that allegation.

6. Dr Bye’s failure to record complaints of neck or shoulder pain did not constitute a case of inconsistent medical evidence, as Dr Bye was responsible for the assessment of Mr Karam’s back and not the neck or shoulder [82].

7. An arbitrator is not required to refer to every piece of evidence when deciding which evidence is accepted or rejected [82].

8. Dr Bencsik’s report (orthopaedic surgeon) was concerned entirely with the back injury and provided no assistance on the question of causation of the neck and shoulder injury [83]. The Arbitrator did not err in his assessment of Dr Bencsik’s evidence.

9. Balfours submitted that the Arbitrator failed to consider the application of ss 254 and 261 of the 1998 Act. The Arbitrator noted at [8] of Reasons that this issue “was not relied upon at the arbitration hearing” and when the Arbitrator outlined the issues for determ

Hua v Freedman Electronics Pty Ltd[2011] NSWWCCPD 60

Partial incapacity; assessment where worker is working; s 40 of 1897 Act; application of principles in Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20

Roche DP

28 October 2011

Facts:

Ms Hua commenced work for Freedman Electronics as an assembler in January 1999.  She alleged she injured her neck, shoulders, arms, back and legs as a result of the heavy duties she performed in the course of her employment from 1999 to 3 or 4 December 2009.

Ms Hua stopped work on 4 December 2009.  Following an assessment by RehabDynamics in April 2010, she commenced on suitable duties and a proposed graded return to work plan on 14 April 2010, working four hours per day for three days per week, but did not progress beyond those hours.

The insurer initially accepted her claim, but denied compensation following a report from Dr Bornstein, orthopaedic surgeon, which stated that Ms Hua had no objective evidence of disability or impairment and was fit for the duties she performed before the alleged incident.

Ms Hua claimed weekly compensation from 24 July 2010 to date and continuing, lump sum compensation in the sum of $9,625 in respect of a seven per cent whole person impairment as a result of injury to her cervical spine, and hospital and medical expenses.

The Arbitrator found that, as a result of performing duties which required her to sit for prolonged periods and lean forward toward her workbench, with her neck bent constantly, she suffered a muscular strain to her back, neck, shoulders and arms.  Ms Hua’s claim for lump sum compensation was remitted to an AMS for assessment. The AMS was requested to provide an opinion on whether any restrictions or limitations should apply to her duties.

The Arbitrator also found that although Ms Hua was on suitable duties of 12 hours per week, the return to work plan prepared by RehabDynamics envisaged a gradual upgrading of her hours to her pre-injury level of 40 hours per week by 16 July 2010. However, Ms Hua had not attempted an upgrade and there was no evidence of the effect of such an upgrade.  He allowed for two hours per week to accommodate Ms Hua’s needs for time off on an ad hoc basis for rest and treatment. Probable weekly earnings were agreed at $640 per week. After allowing a loss of two hours per week at $16 per hour, the Arbitrator assessed Ms Hua’s ability to earn to be $608. The difference was $32 per week, which he awarded under s 40.

The AMS assessed Ms Hua to have a whole person impairment of six per cent as a result of the injury to her cervical spine on 4 December 2009.

Ms Hua appealed the Arbitrator’s finding that she was only entitled to an award under s 40 of $32 per week.

Held:  paragraph 6 of the Arbitrator’s determination revoked and the assessment of the worker’s entitlement to weekly compensation remitted to another arbitrator.

The issues on appeal were the Arbitrator erred in:

(a) failing to accept the opinions of Drs Lam, Tan, Woo and Sun regarding Ms Hua’s fitness for work, and

(b) failing to give adequate reasons for finding on an “ad hoc basis” that two hours per week accommodated Ms Hua’s need for time off.

Following a telephone conference on 7 October 2011, Ms Hua further submitted:

(c) that the Arbitrator erred in not applying the principles in Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20 (Aitkin). Those principles are that, when a worker is currently working, his or her earnings are prima facie evidence of ability to earn unless it is proved that the worker’s actual earnings are not a proper test.

Aitkin

1. At the time of the arbitration, Ms Hua was still working for the respondent employer on suitable duties for restricted hours. It was therefore incumbent on the Arbitrator to apply the principles in Aitkin. His failure to do so was an error. [47]

2. There was no evidence that, while on suitable duties with the respondent, Ms Hua was “deliberately taking lower-paid work” or was “idling” or that her earnings had been reduced by something unconnected with her injury.  The last report from RehabDynamics dated 14 April 2010 stated that Ms Hua was able to perform light assembling, soldering and making boxes in a seated position.  The return to work plan was explained to Ms Hua and she understood her medical restrictions and obligations. The anticipated completion of the rehabilitation plan was 31 July 2010. There was no indication that Ms Hua was avoiding work or idling. [49]-[50]

3. Whilst the Arbitrator reviewed the medical evidence, he did not do so in the context of the principles discussed in Aitkin. [55]The proper application of Aitkin required a consideration of whether Ms Hua’s actual earnings were a proper measure of her earning capacity and whether she was deliberately avoiding work or idling. The Arbitrator did not consider Ms Hua’s entitlement to weekly compensation in that context. [57]

Quantification of incapacity

4. The Arbitrator noted that Freedman Electronics provided suitable duties for 12 hours per week since mid-April 2010 and that RehabDynamics envisaged an upgrading of Ms Hua’s hours to five per day on four days per week by 14 June 2010. The Arbitrator stated:

That 20-hour week was to last until 14 June 2010. A continuing gradual upgrade to 30 hours per week from 15 June to 15 July 2010, would have been reasonable, if not generous to the applicant, allowing for restoration of her pre-injury 40-hour week with effect from 16 July 2010.

There was no evidence that RehabDynamcis planned to increase Ms Hua’s hours to 30 hours per week and the basis of the Arbitrator’s comment was unclear.  While the return to work plan may have envisaged a gradual upgrading of hours over time, that did not happen.  [60]-[61]

5. There was no basis in the evidence for the Arbitrator making a finding of two hours per week to accommodate Ms Hua’s need for time off “on an ad hoc basis” for rest and treatment of her condition.  The evidence was that Ms Hua was either fit for part-time work for 12 or 15 hours per week, or fit without restriction. Further, Ms Hua was working and her actual earnings provided prima facie evidence of her ability to earn. [63]

New South Wales Police Service v Shelley [2011] NSWWCCPD 57

Application to extend time to appeal; failure to provide reasons; cause of injury; no reasonable prospects of success if time to appeal extended

Roche DP

18 October 2011

Facts:

The respondent worker, Candida Shelley, is a police officer.  On 12 May 2008, she was stationed at Auburn and was rostered to attend a training course at the New South Wales Fire Brigade Headquarters at Homebush Bay. She attended the training day with other officers who were also based at Auburn. At the end of the course at about 2.00 or 3.00 pm, Sergeant Coluccio drove Ms Shelley and three other officers back to Auburn Police Station in his private car.

During the return journey Ms Shelley suffered a fit. Sergeant Coluccio drove to Auburn Police station where he yelled for someone to get help.  He then, with the aid of another officer, attempted to remove Ms Shelley from the vehicle.  In doing so Seargeant Coluccio noted that they had to use a “fair amount of force”. The officers did manage to remove Ms Shelley’s jacket, but abandoned their attempts to remove her from the car. Ms Shelley then said that her arm and shoulder were hurting.

Ms Shelley was taken to hospital where it was discovered that her left shoulder had been dislocated. It was conceded by the appellant that an injury (the left shoulder dislocation) had occurred, and that this injury was received in the course of the worker’s employment.

The Arbitrator found in favour of Ms Shelley in an extempore decision delivered on 6 May 2011.

On 15 August 2011, the Police Service made an application to extend the time to appeal and if extended, to appeal the Arbitrator’s decision.

Three key arguments (in summary) were submitted on appeal by the Police Service:

(a) the appeal “was not completed in time due to an administrative oversight”; and strict compliance with the time limits may work a substantial injustice as the appellant will lose the opportunity of having the matter determined according to its substantial merit;

(b) the Arbitrator failed to provide a statement of reasons, and

(c) “injury is in dispute in this matter due to the peculiar circumstances surrounding same”. A failure to allow the right to appeal will result in a demonstrable and substantial injustice.

Held: The application to extend time to appeal was refused and the Arbitrator’s decision dated 9 May 2011 confirmed.

1. Whether losing the right to appeal would result in a demonstrable and substantial injustice required a consideration of the merits of the appeal.

Alleged failure to provide reasons

2. The submission that the Arbitrator failed to give reasons was rejected. The Arbitrator delivered an extempore decision, providing detailed reasons, before the appellant’s counsel.  That decision was recorded and made available to the parties upon request.  In addition, a Certificate of Determination and a Statement of Reasons – Extempore Orders (which complied with s 294(2) of the 1998 Act (Thompson v Expamet Pty Ltd t/as T & G Sheetmetal Services [2005] NSWWCCPD 14)) was issued to the parties on 6 May 2011.

Injury

3. The Police Service submitted that the Arbitrator had overlooked material facts, namely, that the seizure had not concluded prior to the worker’s fellow officers attempting to remove the jacket; and that it was possible that the seizure was (or part of) the cause of the injury.

4. However, during the arbitration it was conceded by the appellant’s counsel that the injury (the dislocation of the shoulder) was incurred when Ms Shelley’s colleagues removed her jacket. The argument sought to be put on appeal was against the proposition the appellant conceded at the arbitration. A party is normally bound by the conduct of his or her case at trial (University of Wollongong v Metwally (No. 2)(1985) 60 ALR 68 at 71). The appellant advanced no reason why that principle should not apply in this matter. [24]

5. If the injury sustained was as a result of both the fit and the removal of the jacket, that does not prevent the worker from succeeding as an injury can have more than one cause (ACQ Pty Ltd v Cook; Aircair Moree Pty Limited v Cook [2009] HCA 28; 237 CLR 656 at [25] and [27]). [27]

6. The Police Service further submitted that the Arbitrator disregarded s 9A(3)(a) which provides that employment is not to be regarded as a substantial contributing factor to the worker’s injury merely because the injury arose out of or in the course of the worker’s employment, and that the Arbitrator applied “an inappropriate test” of whether the injury was “a consequence of employment”.

7. This argument was unsuccessful.  Though the receipt of an injury in the course of employment is not, on its own, sufficient to satisfy s 9A, that does not mean it is irrelevant to that determination (Supair Pty Ltd v Sweeney [2000] NSWCA 319; 20 NSWCCR 314). [30]

8. In respect of an application of an inappropriate test, it was confirmed that the Arbitrator’s reasons made clear reference to the subsections in s 9A(2). These reasons confirmed that the injury was caused by the direct actions of co-workers (acting in the course of their employment) giving Ms Shelley assistance at her place of employment during working hours. [31] In these circumstances, the connection between the employment and the injury was “real and of substance” (Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; 22 NSWCCR 46). It did not matter that the original cause of the need for assistance (the seizure) was unrelated to employment. [32]

9. The Police Services’ submission that the appeal was not lodged in time due to an “administrative oversight” was inadequate and unsatisfactory [15].

10. As the prospects of success on appeal were poor, losing the right to appeal involved no injustice [34].