Raulston v Toll Pty Limited [2011] NSWWCCPD 25

Failure to give adequate reasons; unsatisfactory pleadings; inappropriate use of the expression “nature and conditions” of employment; approach to appeals from decisions after 1 February 2011; s 352 of the 1998 Act

Roche DP

17 May 2011

Facts:

Mr Raulston worked for Toll as a truck driver from about 1997 driving a car carrier.  He was required to load, unload and transport cars between Melbourne and Wagga Wagga. He alleged that he injured his neck in the course of or arising out of his employment with Toll.  Because of the unsatisfactory pleadings, the exact nature of the claim was unclear.

Mr Raulston submitted a claim form on 6 November 2006 alleging he injured his neck and shoulder in the course of his employment on 30 October 2006 while pulling a winch bar to tighten a chain to secure a car.  Following the incident his doctor certified him unfit for two days because of a sprained right shoulder.  A second certificate certified him fit for suitable duties from 4 November 2006 until 7 November 2006 because of a sprained right shoulder and neck pain. Mr Raulston returned to normal duties on 8 November 2007.

In the course of unloading his trailer at Melbourne on 17 September 2007, Mr Raulston was struck on the bridge of his nose by a car door.  He continued working and returned to Wagga Wagga.  Mr Raulston stated that over the next few weeks, he had headaches, pain in his nose and difficulty breathing.  He also had pain when he sneezed, which he did a lot more after the accident.  He further stated that in the weeks up to 20 November 2007, there had been a “build up” of pain in his neck and shoulders which increased over time with normal work and movement.

On 20 November 2007, whilst at home, Mr Raulston sneezed and felt extreme pain in the region of his neck and shoulders and under his armpits.  He said he also felt a crack somewhere in his neck. The pain caused him to fall to the ground and he felt paralysed and remained on the ground for approximately 20 to 30 minutes.

Mr Raulston did not return to work on 21 November 2007.  An MRI scan on 11 March 2008 showed a disc prolapse at C5/6. On 23 October 2008, Mr Raulston underwent a C5/6 discectomy and fusion.

Mr Raulston’s Application alleged an injury due to the “nature and conditions” of employment and as a result of the incident on 17 September 2007. He claimed weekly compensation from 21 November 2007 to 1 March 2009, lump sum compensation in respect of a 25 per cent whole person impairment, and a general order for the payment of hospital and medical expenses.

Toll conceded Mr Raulston suffered an injury to his nose on 17 September 2007. It alleged that the sneezing episode at home on 20 November 2007 had not resulted in an injury arising out of or in the course of his employment and that employment had not been a substantial contributing factor to Mr Raulston’s injuries.

The Arbitrator held that Mr Raulston had not established any connection between the earlier work injuries and the clear incapacity that followed immediately after the sneezing event and fall at home.  He found the injury received on 17 September 2007 was a soft tissue injury to Mr Raulston’s nose and face.  The Arbitrator did not think there was any reliable evidence of any substantial injury having occurred in September 2007 or before that date.

Held:  Arbitrator’s determination revoked and the matter remitted to a different Arbitrator for re-determination.

Issues on appeal

The issues on appeal were whether the Arbitrator erred in:

(a) determining that Mr Raulston had not given any reliable evidence of any substantial injury having occurred in September 2007, nor before that date;

(b) failing to give any, or any adequate, reasons as to the basis for his determination that there was inadequate reliable evidence of any substantial injury having occurred in September 2007, or before that date;

(c) preferring the evidence of Dr Krishnan having regard to there being no evidence from Mr Raulston with respect to any history of hay fever, and

(d) preferring the evidence of Drs Smith and Krishnan to that of Dr Evans without giving adequate reasons for doing so.

“Nature and conditions” of employment

1. The Commission has repeatedly held that the expression “nature and conditions” is meaningless and should not be used (Toplis v Coles Group Ltd t/as Coles Logistics [2009] NSWWCCPD 70). Practitioners are directed to cease using the expression without properly explaining the nature of the claim and the cause of the injury.  Pleadings must properly identify the cause of injury, the nature of injury, and whether it is alleged that the worker received a personal injury, under s 4(a) of the 1987 Act, or a disease injury under either s 4(b)(i) or s 4(b)(ii). [10]

Appeals from decisions after 1 February 2011 – the effect of s 352 of the 1998 Act

There are number of points to note about the new s 352:

(a) determining that Mr Raulston had not given any reliable evidence of any substantial injury having occurred in September 2007, nor before that date;

(b) failing to give any, or any adequate, reasons as to the basis for his determination that there was inadequate reliable evidence of any substantial injury having occurred in September 2007, or before that date;

(c) preferring the evidence of Dr Krishnan having regard to there being no evidence from Mr Raulston with respect to any history of hay fever, and

(d) preferring the evidence of Drs Smith and Krishnan to that of Dr Evans without giving adequate reasons for doing so.

“Nature and conditions” of employment

1. The Commission has repeatedly held that the expression “nature and conditions” is meaningless and should not be used (Toplis v Coles Group Ltd t/as Coles Logistics [2009] NSWWCCPD 70). Practitioners are directed to cease using the expression without properly explaining the nature of the claim and the cause of the injury.  Pleadings must properly identify the cause of injury, the nature of injury, and whether it is alleged that the worker received a personal injury, under s 4(a) of the 1987 Act, or a disease injury under either s 4(b)(i) or s 4(b)(ii). [10]

Appeals from decisions after 1 February 2011 – the effect of s 352 of the 1998 Act

2. There are number of points to note about the new s 352:

(a) an appeal from an Arbitrator to a Presidential member is no longer a “review” and is not a hearing de novo. It is an appeal limited to the determination of whether the decision appealed against was or was not affected by an error of fact, law or discretion, and to the correction of any such error;

(b) save for interlocutory decisions, it is not necessary to seek leave to appeal;

(c) leave to appeal interlocutory decisions may only be granted if the Commission is of the opinion that determining such an appeal is necessary or desirable for the proper and effective determination of the dispute;

(d) fresh evidence or additional evidence or evidence in substitution for the evidence received in relation to a decision appealed against may not be given on an appeal except with leave.  The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case;

(e) the lodging of an appeal does not operate as a stay or otherwise affect the operation of a decision as to weekly payments of compensation. However, the appeal stays the operation of other orders pending the appeal determination, and

(f) on appeal, the decision appealed against may be revoked and a new decision made in its place, or the matter may be remitted to an Arbitrator for determination in accordance with any decisions or directions of the Commission. [17]

3. On appeal, the Commission will have regard to the principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; 140 ALR 227):

(a) an Arbitrator’s finding on the primary facts may only be disturbed on appeal by a Presidential member if “other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong”;

(b) an Arbitrator may draw a particular inference from the primary facts and these will only be displaced if it is shown that the Arbitrator was wrong, and

(c) an Arbitrator may be shown to be wrong by showing that material facts have been overlooked, or that he or she gave undue or too little weight in deciding the inference to be drawn, or that another inference is so preponderant that the Arbitrator’s decision is wrong. [19]

4. The appeal will be conducted on the transcript of the evidence presented at arbitration unless leave is given to tender fresh or additional evidence. [22]

5. Parties will usually be bound by the presentation of their case at the arbitration and neither party will be permitted to raise new issues on appeal where those issues could have affected the outcome or course of the arbitration and been met with additional evidence in response: see Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7; University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481; Water Board v Moustakas [1988] HCA 12; 180 CLR 491; Suttor v Gundowda (1950) 81 CLR 418 at 438. This principle is subject to the Commission’s power to allow (with leave) fresh evidence or additional evidence in s 352(6) of the 1998 Act. [23]

6. What constitutes an appealable error of fact, law or discretion will be determined on a case-by-case basis (see Fox v Percy [2003] HCA 22; 214 CLR 118 at [22] to [31]). [25]

7. Credibility based findings may be overturned if “incontrovertible facts or uncontested” evidence establish they were wrong (Fox v Percy at [28]). In rare cases, although the facts fall short of being “incontrovertible” such findings may be overturned if they are “glaringly improbable” or “contrary to compelling inferences” in the case (Fox v Percy at [29] citing Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; 59 ALJR 842 at 844 and Chambers v Jobling (1986) 7 NSWLR 1 at 10. [26]

8. Challenges to an Arbitrator’s exercise of discretion will be in accordance with the principles in House v The King [1936] HCA 40; 55 CLR 499 at 504-5 as articulated by Heydon JA (as his Honour then was) (Sheller JA and Studdert AJA agreeing) in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 [at 45].  To succeed with an appeal against an Arbitrator’s exercise of discretion, the appellant must demonstrate that the Arbitrator:

(a) made an error of legal principle;

(b) made a material error of fact;

(c) took into account some irrelevant matter;

(d) failed to take into account, or gave insufficient weight to, some relevant matter, or

(e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning. [27]

9. A Presidential member will not overturn a discretionary decision because he or she “might have reached a different conclusion or because intuitive feelings suggest to them a different outcome in the particular case” (The Queen v Taufahema [2007] HCA 11; 234 ALR 1). [28]

10. A Presidential member will not disturb an award of compensation for pain and suffering, or a decision analogous to a decision involving the exercise of discretion as to be assimilated to a discretionary judgement, unless the Arbitrator has acted on a wrong principle of law or has misinterpreted the facts or made a wholly erroneous estimate of the damage suffered (Moran v McMahon (1985) 3 NSWLR 700 at 702E, 722G, 726F; Wilson v Peisley (1975) 7 ALR 571 at 585, and Costa v The Public Trustee of NSW [2008] NSWCA 223 at [105]). [29]

11. In relation to an error involving a departure from the rules of natural justice or procedural fairness, an appellant must show that the departure deprived him/her of the possibility of a successful outcome (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147). [30]

Failure to give adequate reasons

12. To succeed on this ground it was necessary for the appellant to demonstrate not only that the reasons were inadequate, but that their inadequacy disclosed that the Arbitrator had failed to exercise his statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21). [44]

13. The Arbitrator did not explain why he did not think there was any reliable evidence of any “substantial injury” having occurred in September 2007 or before that date.  If Mr Raulston’s evidence had been accepted, it supported his claim. The Arbitrator did not say if he accepted or rejected Mr Raulston’s evidence. [51]

14. The statements by the Arbitrator that there was “no evidence of any significant period of incapacity flowing from the September incident” and that the clinical records did not disclose any treatment “in respect of the September accident” did not provide adequate reasons for the conclusion that there was “no reliable evidence of any substantial injury having occurred in September 2007 nor before that date”.  The statement that there was “no evidence of any significant period of incapacity flowing from the September incident” was incorrect as Dr Evans provided evidence on the causation issue. Although the clinical records did not disclose treatment in relation to the September incident, the Arbitrator did not say what weight he placed on those notes, he merely observed that they were a factor to be considered. [52].

15. The Arbitrator’s finding that the only injury suffered on 17 September 2007 was to Mr Raulston’s nose and face was inconsistent with the Arbitrator’s comment that Mr Raulston’s statement noted “some neck and shoulder symptoms” which were not substantial. Symptoms do not have to be “substantial” to constitute an injury or for an incapacity to result from them. The statement relating to the neck and shoulder symptoms implied, contrary to his statement that Mr Raulston only injured his nose and face, an acceptance of Mr Raulston’s case that he had injured his neck on 17 September 2007. [53]

16. Although the Arbitrator concluded that Mr Raulston’s incapacity and impairments resulted from the non-work incident on 20 November 2007, he did not properly explain how he reached that conclusion and did not properly deal with the issues or the parties’ submissions.  He did not say why he rejected the worker’s submission that the incapacity was the inevitable result of the September 2007 injury. [54]

17.An Arbitrator is required to engage with expert evidence and explain why one expert’s evidence is preferred over that of another (Sant v Tsoutsas [2009] NSWCA 3 at [77]).  The Arbitrator stated he preferred the opinions of Drs Smith and Krishnan to those of Dr Evans. Other than saying that Dr Evans was “far from definitive in his view”, the Arbitrator erred in not giving reasons for preferring the other doctors’ opinions. [55]

18. The Arbitrator’s reference to “earlier injuries” was (presumably) a reference to the injuries to Mr Raulston’s neck and shoulder on 30 October 2006 and 23 March 2007.  Whilst it was open to conclude that those incidents did not render Mr Raulston “susceptible” to further injury by way of predisposition or vulnerability, that was not Mr Raulston’s case.  His case was that, based on the evidence from Dr Evans, one fifth of his disability resulted from his duties as a truck driver, including the incidents on 30 October 2006 and 23 March 2007. The Arbitrator’s only reference to those injuries was when he said none of the “prior injuries” appeared “to be significant to this claim”, yet Dr Evans said they contributed to the impairment.  The Arbitrator did not deal properly or fairly with the allegations about the “earlier injuries”. [57]

Woolworths Limited v Geammal [2011] NSWWCCPD 24

Section 4(b)(ii) of the Workers Compensation Act 1987; aggravation of disease; s 16(1)(a)(i) of the Workers Compensation Act 1987; deemed date of injury; s 16(1)(b) of the Workers Compensation Act 1987; employer liable to pay compensation

O’Grady DP

3 May 2011

Facts:

Ms Geammal commenced employment with Woolworths Limited, the appellant, in 1992.  She ceased duties on 18 May 2009 due to incapacity alleged to have resulted from a back injury received on 29 July 1998; the nature and conditions of employment between 29 July 1998 and 18 May 2009, and/or as a result of aggravation of a disease.  She had at least three surgical procedures to her back, the last being lumbar spinal fusion, and she had ongoing incapacity.

Ms Geammal’s claim in respect of workers compensation benefits was denied by the appellant and by its earlier insurers, CGU and QBE.

The Arbitrator found in favour of Ms Geammal and made a finding concerning the date of Ms Geammal’s injury which resulted in Woolworths, as self insurer, being solely liable to pay the award made by the Arbitrator.  Woolworths, in its interests as self insurer, challenged this finding.

Ms Geammal’s entitlement to weekly payments and medical expenses as quantified by the Arbitrator was not challenged.

The only issue in dispute in the appeal was whether the Arbitrator erred in determining that the deemed date of the injury received by Ms Geammal was 18 May 2009.

Woolworths contended that the Arbitrator erred in his application of s 16 of the 1987 Act.  At the arbitration hearing, Woolworths’ fundamental proposition was that, on the evidence, Ms Geammal’s incapacity in and after May 2009 was causally related to a frank injury which had occurred on 29 July 1998 and a finding “ought” to have been made that the deemed date of injury was 29 July 1998 under s 16(1)(a)(i). Woolworths conceded that a finding of frank injury in 1998 and subsequent injury by way of aggravation up to 2009 could give rise to a need to apportion liability.

Ms Geammal and the earlier insurers accepted the correctness of the Arbitrator’s application of s 16 to the facts as found and each argued that the decision of the Court of Appeal in P & O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214; 49 NSWLR 481 (Alfonzo) provided guidance as to the proper construction of that section, in particular as to the meaning of the term “incapacity” as it appears in s 16(1)(a)(i).

Held: Arbitrator’s decision confirmed.

1. Priestley JA (with whom Clarke JA agreed) in Alfonzo expressed the view that the “kind of incapacity” which is addressed by s 34 as found in Div 2 of the 1987 Act “is the kind for which a worker establishes entitlement to weekly payments of compensation”. He proceeded to state (at [29]):

As the particular purpose of both s 15 and s 16 is to assist in some aspects of making orders for weekly payments of compensation under Div 2 of Pt 3, it seems clear that incapacity has the same meaning in the two sections as it does in Div 2.

2. The incapacity for which compensation was claimed by Ms Geammal concerned entitlement to weekly compensation commencing on 19 May 2009. That incapacity commenced on 18 May 2009. Upon application of s 16(1)(a)(i), the injury is deemed to have happened on that date.  [62]

3. The Arbitrator’s conclusion concerning the deemed date of injury was correct as was the Arbitrator’s finding that the liability to satisfy the award was that of Woolworths as self insurer.  [63]

4. Compensation is payable by the employer in whose employment the worker is or who last employed the worker in employment that was a substantial contributing factor to the aggravation: s 16(1)(b) (at [63]) (See GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187 at 196).

5. Woolworths, in submissions, failed to have regard to the Arbitrator’s acceptance of evidence concerning aggravation of a disease process continuing up until Ms Geammal’s cessation of work in 2009.

Klemke v Grenfell Commodities Pty Ltd [2011] NSWWCCPD 27

Whether employment connected with NSW; s 9AA of the 1987 Act; meaning of “temporary arrangement”

Keating P

23 May 2011

Facts:

Mr Klemke commenced employment with Grenfell on or about 24 November 2009. Subject to a trial or probationary period of three weeks, he was employed to work as a site manager at the employer’s premises at Kwinana Beach, Western Australia.  He alleged that during the trial or probationary period, on or about 10 December 2009, he injured his left ankle when he twisted it after stepping on a piece of timber.

Mr Klemke continued to work for Grenfell in Western Australia for the duration of the trial or probationary period which ended on 16 December 2009, when he returned to New South Wales. He did not return to duties in Western Australia on 4 January 2010 (the date agreed between Mr Klemke and Grenfell), and has not worked since. He alleged he was incapacitated due to the injury on 10 December 2009.

Mr Klemke received voluntary payments of weekly compensation to 16 June 2010.

On 3 June 2010, Allianz issued notices under s 74 of the 1998 Act and s 54 of the 1987 Act denying liability for weekly payments after 17 June 2010 on the basis that:

(a) Mr Klemke’s employment was not connected with New South Wales, and

(b) that he was not injured in the course of employment, and if he was, his employment was not a contributing factor to his injuries.

Mr Klemke lodged an application in the Commission on 24 August 2010 claiming weekly payments of compensation from 17 June 2010 and s 60 medical expenses.

Grenfell denied liability for the weekly payments and medical expenses and disputed the quantum of any entitlement to weekly payments under ss 36 and 37.

Arbitrator’s Decision

The Arbitrator found that pursuant to s 9AA(3)(a) of the 1987 Act, Mr Klemke was not entitled to recover compensation as a result of his alleged injury on 10 December 2009 because his employment was connected with Western Australia and not connected with New South Wales.  The Arbitrator was not satisfied that the trial or probationary period was a “temporary arrangement” under s 9AA(6). The Arbitrator made an award for the respondent.

Appeal

Mr Klemke submitted on appeal that:

(a) the contract of employment was entered into in Grenfell, New South Wales for the purpose of Mr Klemke attending Western Australia on a three-week temporary basis.  It was therefore excluded, by the operation of s 9AA(6), for the purpose of determining where the worker “usually works”;

(b) the parties intended that the three-week trial period was a “temporary arrangement”;

(c) the three-week trial was a separate contract of employment to a permanent contract of employment that would be separately offered to the worker if both parties were in agreement. There was no agreement that Mr Klemke would work more than a three-week trial period;

(d) it was the intention of the parties that, if Mr Klemke did not complete the trial period or made an election not to work in Western Australia, he would return to New South Wales; however, he would not continue his employment with the employer, and

(e) the Commission should give effect to the words in the section and not import a narrow interpretation on the word “temporary” in s 9AA(6).

Held: Arbitrator’s decision confirmed

1. Whether an arrangement is a “temporary arrangement” depends on the parties’ intentions, which are ascertained by looking at the worker’s work history and the terms of the contract. A short-term contract of less than six months that is not part of a longer or indefinite period of employment will not usually be a “temporary arrangement”. (Martin v R J Hibbens Pty Ltd [2010] NSWWCCPD 83).  The parties never intended that Mr Klemke would work anywhere other than in the State of Western Australia.  The parties contemplated that, following completion of the trial or probationary period, if both parties were content to proceed with the contract, Mr Klemke would continue to work for Grenfell in Western Australia. There was no evidence that Mr Klemke’s employment in Western Australia was a “temporary arrangement”. [75]-[78]

2. Section 9AA(6) is intended to operate where a worker usually works under a contract of employment with an employer in one State and works under a “temporary arrangement” with that employer in another State for a period of not longer than six months.  For s 9AA(6) to operate, any temporary arrangement contemplated by that provision must be seen as part of a longer or indefinite period of employment.  The purpose of the section is to cover an employee who is normally based in one State and who, on a temporary basis, not longer than six months, is required to work in another State. [79]-[80]

3. The evidence favoured the conclusion that Mr Klemke and Grenfell made a contract of indefinite duration that included a term that the first three weeks were to be a probationary period during which either party could terminate the agreement without penalty. That term did not make the contract a “temporary arrangement” within the meaning of s 9AA(6) such that a second contract would be entered into at the end of the probationary period.  The contract commenced on 24 November 2009 and continued according to its original terms at the conclusion of the probationary period. [83]

4. His Honour held that s 9AA(3)(a) identified Western Australia as the state where the worker usually worked.  Relevant factors included:

(a) he was employed at a managerial level, responsible for the day-to-day running of the site in Western Australia;

(b) an annual salary had been agreed upon;

(c) he received pro-rata holiday pay;

(d) senior management travelled to Western Australia to familiarise Mr Klemke with the company’s operations, and

(e) he discussed with his wife moving there permanently and had been given time off work to inspect a residential property. [84]

5. Mr Klemke’s submission that the totality of s 9AA envisages that the worker is in permanent employment that is not temporary and that to interpret s 9AA(6) to refer to workers in permanent employment but consigned to work in another State is to put too narrow a meaning on the provision was rejected.  The qualification concerning temporary arrangements in sub-s (6) is only relevant to a consideration of the “usually works” test in s 9AA(3)(a). The qualification is not relevant to the application of sub-ss (b) or (c). [88]

6. In the alternative, if the “usually works” test did not provide an answer to determine if the worker’s employment is connected with the State, then, in the cascading sequences of test, it would be necessary to consider if the State in which the worker is “usually based” for the purposes of that employment under s 9AA(3)(b) identifies a connection with the State.  The “usually based” test identified Western Australia because the evidence unequivocally established that “for the purpose of” Mr Klemke’s employment (whether temporary or long term) he was “usually based” in Western Australia. [90]-[91]

McKay v Hyrock Pty Limited [2011] NSWWCCPD 26

Absence of transcript of arbitral proceedings; appeal is not a new hearing: s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998

O’Grady DP

17 May 2011

Facts:

Mr McKay, the appellant, commenced employment with Hyrock Pty Ltd in 2004 as a boilermaker. He claimed that he received injury to his neck, left shoulder and left arm in the course of that employment on 6 November 2004. No formal report of injury was made, he continued with his duties and had no time off work.

Mr McKay subsequently experienced pain and discomfort in his neck and shoulder and, in January 2005, underwent massage therapy and commenced consultation with various doctors.

In August 2008 an MRI examination demonstrated a significant disc prolapse at C6/C7 and a minimal disc bulge at C5/C6.

On or about 25 August 2008 Mr McKay presented a workers compensation claim form to Hyrock.  Hyrock’s Injury Claim Report recorded that the date of injury alleged in Mr McKay’s claim form was 12 January 2005.

In October 2008 Mr McKay underwent a cervical decompression and fusion, performed by Dr Casikar, and was absent from his employment until 24 November 2008.

In November 2008 Hyrock’s insurer issued a s 74 notice denying liability on the basis that “employment was not a substantial contributing factor to [Mr McKay’s] injury within the meaning of Section 9A” of the 1987 Act. Mr McKay received a similar notice from the insurer in November 2009, following receipt by the insurer of a claim for lump sum entitlement.

Each s 74 notice referred to a report of Dr Casikar dated 27 September 2008 which stated that Mr McKay’s neck condition was attributable to “football activities”.

In September 2010 the dispute was referred to the Commission. The Arbitrator made an award in favour of Hyrock in relation to Mr McKay’s claim for weekly payments and lump sum compensation.

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

(a) failing to give proper reasons for her determination;

(b) finding that Mr McKay had failed to discharge the onus upon him to prove the occurrence of injury as alleged, and

(c) rejecting Mr McKay as a witness of credit concerning matters which had not been put to him in cross-examination.

The arbitration hearing was recorded onto a sound card but the sound card was lost and consequently a transcript of the proceedings was not available.  No oral evidence was given before the Arbitrator.

The preliminary issue to be addressed was whether the absence of a transcript of proceedings so impeded the conduct of the appeal that a new hearing was required.

Mr McKay submitted that the matter should be remitted to a different Arbitrator for rehearing or alternatively an oral hearing on the appeal be held.  Hyrock submitted that the matter could be dealt with on the papers despite the absence of the transcript.

Held: Arbitrator’s decision revoked and matter remitted to another Arbitrator for determination afresh. Costs to follow the final costs order.

1. The absence of a transcript has the practical consequence that the Commission, on appeal, does not have the benefit of a record of those submissions put on behalf of each party. There can be no certainty as to the approach adopted by each party to those issues raised on the evidence. [17]

2. In Aluminium Louvres and Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 4 DDCR 358 (Zheng) it was stated by Bryson JA (with whom Handley JA and Bell J agreed) (at [32]) that, as decisions of an Arbitrator are subject to appeal to a Presidential member under s 352, an arbitrator is “under a duty to make a record of the evidence during the arbitration hearing”. His Honour proceeded to state that the absence of a transcript:

…is a serious shortcoming, because it greatly impedes the right of appeal and the due exercise of powers of the Presidential member under s 352; and also impedes the conduct of a further appeal under s 353.  According to circumstances, the absence of a sound recording could fairly readily lead a Presidential member to a decision to require a rehearing; although that result would not be automatic.

3. Given the absence of the transcript, there was insufficient information before the Commission to properly enable a hearing ‘on the papers’. Mr McKay’s assertions in argument could not be scrutinised with reference to the manner in which argument was advanced at the hearing.

4. The conduct of a hearing on this appeal was considered to be inappropriate.

5. Mr McKay’s failure to make out his case before the Arbitrator turned on the rejection of his and his wife’s evidence concerning the occurrence of an injurious event in the course of employment on 6 November 2004. This rejection was said to be founded upon matters that had not been raised by Hyrock or that had not been raised by the Arbitrator as being relevant to her determination concerning a credit issue.

6. A hearing on the appeal to ventilate those matters would constitute a new hearing. Conduct of such a new hearing is expressly excluded by the terms of s 352(5).

7. However, the Commission may, in an appropriate case, conduct an oral hearing on appeal which might include further oral evidence including cross-examination. Circumstances giving rise to the need for such an oral hearing were addressed by the Court of Appeal in Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 (Hancock) (per Tobias JA between [125] and [134]).

8. The Arbitrator failed in her duty to make a record of the proceedings and such failure constituted an error of law.