Issue 2: February 2013

(a) consider that Mr Shore relied upon events other than the meeting of 8 July 2010 as being causative of his injury;

(b) consider relevant evidence from Mr Shore and his wife;

(c) consider the evidence of Ms Clarke that the decision to transfer Mr Shore was made prior to the meeting of 8 July 2010 and without prior consultation with him, and

(d) properly consider the evidence of Dr Westmore, a psychiatrist qualified by Mr Shore.

Causation

1. The terms of s 11A require a consideration of the causes of an injury and, to attract the provisions of the section, it is necessary to show that the psychological injury was wholly or predominantly caused by reasonable action taken with respect to certain specific matters (in this case, transfer). There is a distinction between the cause or causes of an injury and the date on which the injury occurred. The Arbitrator failed to consider whether any of the events prior to 8 July 2010 contributed to the psychological injury described by Dr Westmore as an adjustment disorder with depressed and anxious mood [23].

2. The Council carried the onus of establishing that the injury was wholly or predominantly caused by reasonable action with respect to transfer and the only (medical) opinion before the Arbitrator was from Dr Westmore, who attributed the injury to all of the incidents at work. While the doctor attributed Mr Shore’s decompensation to difficulties with a co-worker and a subsequent move to another area of employment, he did not address the question of whether the events of 8 July 2010 were the whole or predominant cause of the overall condition [26].

3. The Arbitrator appeared to have considered that the finding on injury and substantial contributing factor satisfied the causation requirements in s 11A because “the claim as defined by the Application relates to 8 July 2010 and the meeting on that day”. That was an error. That Mr Shore suffered a s 4 injury as a result of the events on 8 July 2010 and that employment was a substantial contributing factor to that injury was never disputed and did not require a finding [41].

4. To succeed with its defence under s 11A, the Council had to prove that Mr Shore’s injury had been wholly or predominantly caused by reasonable action by it with respect to transfer. While the Arbitrator referred to part of Dr Westmore’s evidence, and acknowledged that there had been some prior problems, and that “perhaps” Mr Shore was psychologically fragile and more vulnerable, he failed to do so in the terms required by s 11A [43].

5. The fact that Mr Shore had not formally pleaded the grave re-opening incident did not relieve the Council of its obligation to prove the elements required to establish a defence under s 11A (Jetstar Airways Pty Ltd v Canterbury [2011] NSWWCCPD 54) [45].

6. Given Dr Westmore’s history as to the importance of the grave re-opening incident (which he recorded as the start of Mr Shore’s problems), and his clear opinion on causation, that is, that Mr Shore’s psychological injury was due to his “workplace difficulties” (which included but were not limited to the transfer), it was impossible to conclude that the transfer (or action with respect to it) was the whole or predominant cause of Mr Shore’s psychological injury. That was especially so in circumstances where Dr Westmore was the only medical expert in the case who expressed an opinion on causation and his evidence was unchallenged [48].

7. The s 11A defence did not succeed because, regardless of whether the Council’s actions were reasonable, the Council had not discharged its onus of establishing that those actions were the whole or predominant cause of Mr Shore’s psychological injury [53].

Reasonableness 

8. The Arbitrator had to consider if the events of 8 July 2010 and the decision to transfer Mr Shore was carried out in a reasonable manner [56].

9. The Arbitrator failed to consider the following matters: that there was no evidence that any inquiries had been made to verify any of the matters raised by Ms Staunton; that there was no evidence to associate Ms Staunton’s car accident with any action of Mr Shore; that, prior to making the decision (to transfer Mr Shore), there was no attempt to consult with Mr Shore, an employee of 34 years standing; and that there was no evidence that the Council considered any other option for facilitating a return to work by Ms Staunton other than transferring Mr Shore [58].

10. The often-quoted statements by Geraghty CCJ in Irwin v Director-General of School Education (unreported, 18 June 1998) (Irwin) and Truss CCJ in Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998) (Ivanisevic) remain the best guide to determining reasonableness (see also Commissioner of Police v Minahan [2003] NSWCA 239; 1 DDCR 57). In Irwin, Geraghty CCJ said:

“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness.” [64]

11. In Ivanisevic, Truss CCJ said:

“In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected.” [65]

12. Spigelman CJ (Hodgson and Bryson JJA agreeing) observed in Department of Education & Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 that one must look at the entire process to see if it was reasonable action within s 11A. That includes looking at the circumstances surrounding the action, both before and after the action (Buxton v Bi-Lo Pty Ltd [1998] NSWCC 13; 16 NSWCCR 234; Melder v Ausbowl Pty Ltd (1997) 15 NSWCCR 454) [67].

13. Determining if an employer’s actions were reasonable requires an objective assessment of those actions (Jeffery v Lintipal Pty Ltd [2008] NSWCA 138). It is not enough that the employer has complied with its own protocols; those protocols must be objectively reasonable (Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v Broad [2008] NSWWCCPD 139; 7 DDCR 193) [68].

(a) finding that Mr Saab had on 22 July 2009 (the date Mr Saab was advised by Dr Scoppa about the injury) first become aware, within the meaning of s 261(6) of the 1998 Act, that he had received an injury;

(b) finding that Mr Saab had proven that he had made a claim (on 7 August 2009) for the relevant compensation within six months after the injury happened in terms of ss 261(1) and 261(6) of the 1998 Act, and

(c) failing to give adequate reasons for her decision.

Interlocutory matter

1. The decision of the Arbitrator challenged on this appeal did not, adopting the words of Gibbs J as stated in Licul v Corney [1976] HCA 6; 180 CLR 213; “finally dispose of the rights of the parties”. It was held that, it was both necessary and desirable for the proper determination of the dispute, in terms of s 352(3A), that leave be granted to appeal [11], [13].

Section 261

2. The Arbitrator correctly set out the reasoning, expressed in dicta found in Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17 at [86]-[92], with respect to the issue of when a worker first becomes aware that he or she has received an injury pursuant to s 261(6) of the 1998 Act [34].

3. For the appellant to succeed in its challenge to the Arbitrator’s factual findings, it had to demonstrate that the Arbitrator was wrong. Such error may be established by showing, as stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (at 506):

“Material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge was so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.” [38]

4. The Arbitrator did not overlook evidence of facts which, by inference, the appellant argued were material. This conclusion was reached having regard to the Arbitrator’s statement at [46] of Reasons:

“Even if I make factual findings (that Mr Saab felt his hearing was getting worse after 1990 before 1998, he believed his employment with Unilever was noisy, and he thought in his own mind his worsening hearing loss was due to work at Unilever) this does not necessarily mean he had awareness that he suffered from further injury. It is highly relevant to note that in this matter both Dr Scoppa and Dr Niall have found that Mr Saab suffers from some loss of hearing that cannot be attributed to industrial deafness. In this circumstance I find Mr Saab could not have been aware as to whether he had suffered a further injury without audiometric testing.” [41]

Onus of proof

5. The appellant correctly stated that “it is not necessary for the appellant to point to when [Mr Saab] first became aware of injury. It is for [Mr Saab] to prove that he was first aware of his injury no more than six months before he made his claim” [43].

6. The thrust of the appellant’s argument concerning suggested error in the Arbitrator’s determination that Mr Saab had discharged the onus of proof upon him concerning the date of first awareness, was that his evidence “in his three statements and under cross-examination was contradictory, inconsistent and vague, such that the Arbitrator could not have been satisfied [that such onus had been discharged]” [45].

7. The Arbitrator had accepted that Mr Saab’s oral evidence was “very confusing”. In the course of her Reasons, both that evidence and the written statements of Mr Saab were carefully considered. The Arbitrator had also considered the appellant’s submission that portions of the written statements were of no probative value [46].

8. It may be seen that, for the reasons stated by her, the Arbitrator had disregarded that evidence. However, the appellant’s submissions on appeal included a complaint that the Arbitrator should have “dealt with this evidence in terms of [Mr Saab’s] credit”. Such an argument had not been elucidated before the Arbitrator, but no objection to the raising of this point on appeal was made. It was Mr Saab’s submission that the Commission would be “reluctant to overturn” a finding founded upon the credit of a witness. The Arbitrator did not err in her manner of dealing with that evidence [47].

9. It was clear that Mr Saab’s statement, made on 13 January 2010, that the referral by the family doctor was made “recently” was accepted by her and was crucial to her conclusion that it (the referral) was “unlikely to have been before Dr Scoppa’s examination and that Mr Saab’s first awareness of injury arose when advised by Dr Scoppa on 22 July 2009”. That finding was open to the Arbitrator on the evidence and the appellant failed to establish any relevant error [51].

10. The argument that the Arbitrator erred in her reliance upon matters stated in Dawson t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 (Dawson) was rejected. It was acknowledged by the Arbitrator that the decision in Dawson was not concerned with the proper construction and application of s 261. Her reference to that decision was held to have been made with the purpose of illustrating the peculiar features of a s 17 injury which must be taken into account when the question of awareness is being considered. On the facts, the relevance to the question of first awareness of expert opinion concerning causal nexus between hearing loss and noise exposure was self-evident having regard to the experts’ opinions that Mr Saab’s loss arose, in part, by reason of factors other than such exposure. In such circumstances requisite “awareness” was unlikely to arise in the absence of such expert opinion [52].

Adequacy of reasons

11. It was the appellant’s contention that the Arbitrator “has failed to address the obvious and many inconsistencies in [Mr Saab’s] evidence”. It was suggested that no reasons had been advanced for the Arbitrator’s acceptance of that part of the evidence. It was also suggested that the Arbitrator had, for no stated reason, “ignored that evidence which is inconsistent or contradictory” [53].

12. The Arbitrator’s conclusion as to awareness was held to be reached notwithstanding the unsatisfactory state, as found by her, of the evidence. Such reasoning was adequate and met the requirements concerning the adequacy and sufficiency of reasons required by law (see Beale v GIO (NSW) (1997) 48 NSWLR 430 per Meagher J at 443) [54].