Issue 6: June 2016

Terrivic Pty Limited v Davis [2016] NSWWCCPD 27

Leave to cross-examine; effect of resignation without stipulated period of notice on contract of employment; injury in the course of or arising out of employment (s 4 of the 1987 Act); adequacy of reasons; alleged errors in fact finding

Snell DP

20 May 2016

Facts:

The worker was an assistant manager at KFC Broken Hill. She said that she was bullied and verbally abused by the manager of the store. The director of the appellant lived at Renmark, South Australia, a few hours’ drive away. On 7 May 2013, the manager verbally abused the worker before leaving the store for a short time. The worker wrote a resignation letter and left it and her name badge at the store. She immediately left the store and drove straight towards the director’s home. She did not call or advise that she was going to see “the owners”. About 48 km south of Broken Hill, the worker swerved to avoid hitting a kangaroo and crashed her car. She claimed weekly compensation from 7 May 2013 to 16 July 2015. The employer denied liability. On 13 January 2016, a Commission Arbitrator made an award for the worker. The employer appealed.

The issues in dispute on appeal were whether the Arbitrator:

(a) erred in the exercise of his discretion in refusing the appellant’s application to cross-examine;

(b) erred in law in failing to find that the worker’s contract of employment had not been brought to an end, prior to the occurrence of injury;

(c) erred in fact in recording the appellant’s submission as one that the worker was guilty of gross misconduct;

(d) erred in law in finding that the worker’s injury arose out of or in the course of her employment within the meaning of s 4 of the 1987 Act;

(e) failed to provide adequate reasons, going to his finding of injury within the meaning of s 4 of the 1987 Act, having regard to the legal authorities on which the appellant submitted, and

(f) erred in deciding whether the manager was present when the worker gave her written resignation and left the store. This resulted in him giving “incorrect weight” to the worker’s evidence.

Held: The Arbitrator’s determination was confirmed.  

Ground 1 – The Application to Cross-Examine

1. The employer made an unsuccessful application before the Arbitrator to cross-examine the worker. The granting of leave to cross-examine involved the exercise of discretion: Aluminium Louvres and Ceilings Pty Ltd v Zheng [2006] NSWCA 34 at [37] per Bryson JA (Handley JA and Bell J agreeing). The Deputy President accepted the worker’s submission that the appeal on this point involved application of the principles in House v The King [1936] HCA 40; 55 CLR 499 (House v The King) [57].

2. The appellant’s submissions did not seek to address the essential issue, of whether error could be demonstrated on the basis of the principles in House v The King. In the circumstances, the challenge to the exercise by the Arbitrator of his discretion, in Ground 1, failed [60].

3. The Deputy President addressed the appellant’s arguments on their merits and held that this ground of appeal would not have succeeded in any event [61].

4. Reference was made to the Commission’s Guidelines for the Practice of the Conciliation/Arbitration Process (the Guidelines) dealing with when cross-examination may be allowed. The fundamental inconsistency relied on by the appellant was largely eliminated by the worker’s second statement which was largely consistent with the appellant’s lay case [64]–[68].

5. The Arbitrator’s findings were consistent with the case made by the appellant on the particular factual issue; the manager was not present when the worker left her resignation at the store, or when she departed from the store [73].5.

6. The Arbitrator was clearly alert to the possibility of inconsistencies in the evidence being relevant to the application. He said that the proposed cross-examination would not assist him in understanding the evidence. He did not consider the cross-examination was ‘necessary to come to a decision’ (to adopt the phrase used in the Guidelines) [74].

7. Leave to cross-examine was not rendered appropriate, on the basis that the worker suffered a head injury, which was associated with post-traumatic amnesia and some cognitive impairment. There was medical evidence dealing with the topic, but only limited reference was made to this during submissions at the arbitration on this discretionary point [78].

8. Ground 1 had to fail. It did not address whether there was appealable error, applying the principles in House v The King. The Arbitrator’s decision on the leave application was, in any event, consistent with the proper exercise of his discretion pursuant to s 360 of the 1998 Act and the Guidelines [80].

Ground 2 – Was the Contract of Employment Terminated Prior to the Injury?

9. The appellant’s argument on this ground was based on two alternative propositions. The first was that the legal effect of the resignation, written by the worker and left at the store on 7 May 2013, was to terminate her employment forthwith, so that the contract was no longer on foot when she suffered injury later on the same day. The second was that the worker’s actions, in leaving the store on 7 May 2013, amounted to abandonment of her employment, the contract being ended by this breach, so that it was no longer on foot when she suffered injury [90].

The First Argument – the Effect of the Resignation

10. It was common ground that the relevant period of notice was two weeks. The resignation was signed, and in its entirety, read “I Adele Davis hereby resign my position at KFC Broken Hill”. It did not specify a period of notice [91]–[92].

11. The Arbitrator’s approach was consistent with that discussed in State of New South Wales v Paige [2002] NSWCA 235; 60 NSWLR 371 at [289], implying a term, consistent with the Award which governed the contract of employment, and also with the practice adopted by the appellant and its employees. It was not in error [102].

12. The alternative analysis was that the resignation, as it did not specify a period of notice, was invalid, and acted as a repudiation of the contract. This is consistent with a passage from G.J. McCarry in Termination of Employment Contracts by Notice (1986) 60 ALJ 78 at 79, where the author said: “Whether oral or written, notice of termination must specify when the termination is to occur, or must at least make it possible for that to be ascertained.” It was also consistent with Hill v CA Parsons & Co [1972] Ch 305 [103]–[104].

13. On either of the analyses above, the contract of employment was still on foot at the time of the accident. Either it had a further two weeks to run until the period of notice was worked out, or it was on foot pending acceptance by the appellant of the repudiation constituted by an invalid notice. If, contrary to the Deputy President’s view, the Arbitrator was in error in treating the notice as effective, the second of these analyses applied. Any such error cannot affect the result: Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at [16], Toll Pty Ltd v Morrissey [2008] NSWCA 197; 6 DDCR 561. The contract remained on foot at the time of the accident, pending the subsequent acceptance of the repudiation by the appellant, through the agency of the husband of the director of the appellant. There was no basis for concluding that the resignation was, as submitted by the appellant, “effective immediately”. The first argument in support of Ground 2 was rejected [107]–[109].

The Second Argument – Abandonment of Employment

14. The appellant’s solicitor did not make a specific submission at the arbitration hearing, that the employment contract was ended as a consequence of abandonment by the worker of her employment. The appellant ultimately conducted the matter on the basis that the worker, in leaving the store when she did, took herself out of the course of her employment. Any argument that her departure constituted a unilateral breach of the employment contract, ending it at that moment in time, was not pursued [110], [118].

15. In Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93 Simpson JA (Sackville AJA agreeing) at [98] described as “uncontentious” the proposition that “parties are bound by the conduct of their cases at trial, and that an appellate court will not ordinarily allow a new case to be made on appeal” (see also Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68). To the extent that it was relied upon, the second argument put in support of ground 2 was rejected. Ground 2 was rejected [119]–[120].

Ground 3 – The ‘Gross Misconduct’ Argument

16. The appellant’s submissions, going to how the actions of the worker, in leaving the store and (allegedly) driving towards Renmark, should be characterised, were varied. The appellant did not submit using the terms “misconduct” or “gross misconduct” [133]–[134].

17. ‘Serious and wilful misconduct’ is a specific statutory defence, pursuant to s 14(2) of the 1987 Act. As was observed by the worker’s counsel, it was unlikely to have application given the nature of the injuries suffered by the worker. That defence was not submitted on by the appellant. The Arbitrator did not approach the matter on the basis that s 14(2) was an issue [135].

18. The appellant’s argument was that the real issue which it raised, and which required determination by the Arbitrator, was whether the worker’s injury occurred in circumstances such that she was in the course of her employment. This was an issue on which the parties addressed, and which the Arbitrator decided. He specifically said, dealing with the ‘course of employment’ issue, that “the temporal nexus between employment and the journey is established”. This was, however, “[s]ubject to the question of gross misconduct, considered below” [137].

19. The Arbitrator’s reasons, read as a whole on this issue, involved him making a finding on whether the worker was in the course of her employment, and then considering whether there was conduct which took her outside the course of her employment. His discussion on this topic was based on a consideration of whether misconduct, gross misconduct or a degree of moral turpitude was present [138].

20. The appellant’s submission was that the Arbitrator misapprehended the submission made to him, and dealt with an issue different to that submitted on. There was, in the Deputy President’s view, substance to that submission. The consequences of this were further discussed below, in dealing with Ground 4 [140].

Ground 4 – The Finding of Injury in the Course of or Arising Out of Employment

21. This ground asserted error of law in a finding that the worker’s injury occurred in the course of or arising out of her employment within the meaning of s 4 of the 1987 Act, on the basis that she was not guilty of gross misconduct [141].

22. Gross misconduct is one way in which a worker may remove him or herself from the course of employment, but it is not the only way. To that extent, the Arbitrator’s consideration of whether the worker had removed herself from the course of employment was conducted on too narrow a basis [148].

The Factual Issue

23. The appellant’s submissions going to alleged factual error did little more than restate the submissions which were made at the arbitration hearing. They did not identify any alleged specific error in fact finding [153].

24. The Arbitrator’s acceptance, of the worker’s evidence on this issue, involved a finding of credit. The worker’s evidence on the topic was not “glaringly improbable”. It was not “contrary to compelling inferences”. It was not wrong by reference to “‘incontrovertible facts or uncontested’ evidence”. The appellant had not demonstrated any such error in respect of the Arbitrator’s credibility based findings (Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied) [163]–[164].

25. On the accepted evidence, the manager had been behaving in a bullying and inappropriate manner towards the worker for some time. The worker telephoned the director’s husband about 11 weeks prior to the date of injury, to complain about this. Things had not improved. On the date of the accident, there was a meeting in which the manager discussed having Ms Shipway take over the worker’s managerial position. The worker described being the subject of verbal abuse from the manager on the date of the accident, from when her shift commenced. Against this background, the worker said that she decided to drive towards Renmark “to speak with the owners”. The worker described Renmark as “a few hours’ drive from Broken Hill”. It was open to the Arbitrator to accept the worker’s evidence about where she was driving and why. He was not in error in doing so. The challenge to the Arbitrator’s fact finding, which formed part of the submissions going to Ground 4 failed [165]–[166].

The Legal Issue

26. The question of whether the worker was in the course of her employment, at the time of the accident, was approached in the context of the above factual findings [167].

27. Clearly the worker was initially in the course of her employment, from when she attended the store and commenced her shift. The issue was whether she, through her actions, then took herself outside the course of her employment. The Arbitrator referred to cases such as Schinnerl v Commissioner of Police [1995] NSWCC 12;11 NSWCCR 278, involving issues about whether ‘gross misconduct’ took a worker outside the course of employment [170].

28. ‘Gross misconduct’ is not the only way in which a worker may take him or herself outside the course of employment. The Arbitrator, in approaching the issue as he did, applied an inappropriate test. It was inconsistent with the submission which had been made by the appellant. This constituted error [179].

29. It would be difficult to characterise driving from Broken Hill towards Renmark as work which the worker was employed to do. She was employed to work at and manage the appellant’s store in Broken Hill. The issue then became whether that activity was incidental to the worker’s work. Regard should be had to the factors described by Stephen J in Bill Williams Pty Ltd v Williams [1972] HCA 23; 126 CLR 146 at [5] [180].

30. Although the phrase “arose out of” was mentioned briefly, there were no submissions in support of Ground 4 which asserted any legal error in the Arbitrator’s finding that the injury arose out of the employment. The worker submitted that, even if there was error in how the Arbitrator dealt with the issue of whether the injury occurred in the course of employment, the result could “be supported on the alternate basis set out in the written submissions before him that is that the injury arose out of the employment”. The Deputy President accepted that submission. The factual issue having been decided against the appellant, there was no argument put by the appellant submitting error in the finding that the injury arose out of the employment [184].

31. It followed that, even if the finding that the injury occurred in the course of employment involved error, the award would stand on the alternate basis found by the Arbitrator, that it arose out of the worker’s employment. Ground 4 was rejected [185].

Ground 5 – Reasons

32. The Arbitrator’s reasons on the issue of whether the worker sustained injury in the course of, or arising out of, employment were succinctly stated at [92] of his reasons. Such a finding required that “a causative connection must be established, employing a common sense approach”. He referred to the decision of Roche DP in Qantas Airways Ltd v Watson (No 2) [2010] NSWWCCPD 38. The Arbitrator found that the purpose of the journey was to complain about the manager’s conduct and negotiate a solution. The legal basis for the Arbitrator’s finding of injury arising out of the employment appeared sufficiently from the authority to which he referred [193], [195].

33. The reasons given by the Arbitrator complied with the statutory duty and the authorities. Ground 5 was rejected [201].

Ground 6 – Evidence Regarding the Manager’s Whereabouts

34. Ground 6, and the submissions in support of it, were based on a misreading of the passage of the transcript which was quoted, and the Arbitrator’s reasons [209].

35. Contrary to the appellant’s submission, the interchange the subject of this ground could not be read as an acceptance by the Arbitrator that the manager was present in the store when the worker left. It said no such thing [212].

36. The factual basis for Ground 6, and the submissions made in support of it, were totally without foundation. Ground 6 was rejected [216].

Hunter New England Local Health District v Pond [2016] NSWWCCPD 28

Interlocutory decision; s 352(3A) of the 1998 Act; forensic medical reports, application of cl 49 of the 2010 Regulation

Keating P

27 May 2016

Facts

The worker alleged that she sustained a condition known as transverse myelitis due to a H1N1 fluvax vaccination injection. It was accepted that the vaccination was administered during the course of the worker’s employment.

In support of her claim the worker relied on the medical evidence of Dr Mellick, a neurologist. In breach of cl 49 she also sought to rely upon the reports of Dr O’Sullivan, also a neurologist. On the worker’s application the Arbitrator permitted the admission of Dr O’Sullivan’s reports for the limited purpose of admitting the history he obtained in his examination findings.

On appeal the employer alleged that the Arbitrator erred by placing reliance on the opinions expressed by Dr O’Sullivan on the causation issue in contravention of his own order.

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

Discussion and Findings

1. The Arbitrator’s decision was interlocutory as it did not finally dispose of the rights of the parties (Licul v Corney [1976] HCA 6; 180 CLR 213). This was because the decision was limited to a determination of issues of injury, causation, and employment as a material contributing factor. Having determined that it was appropriate for the proper and effective determination of the dispute that leave to appeal be granted pursuant to s 352(3A) of the 1998 Act, the President proceeded to determine whether the Arbitrator erred in having any regard to any opinion expressed by Dr O’Sullivan [18], [22], [52].

2. The Arbitrator recorded Dr O’Sullivan’s initial opinion that the epidemiological evidence suggested a link between the administration of the vaccine and transverse myelitis. While it was said that that opinion was recorded by way of history of the development of the medical case and the development of the various diagnoses, the President found that it was clear that that opinion was considered and formed part of the Arbitrator’s reasoning that ultimately led to a finding in favour of the worker [53]–[54].

3. The President also found the Arbitrator analysed the worker’s forensic medical expert’s assessment of Dr O’Sullivan’s changing opinion in light of the absence of objective evidence to confirm the diagnosis of transverse myelitis. The Arbitrator identified that the question to be determine was “what, on the balance of probabilities has been the cause of” the worker’s condition, following which he referred to Dr O’Sullivan’s initial opinion on diagnosis. The Arbitrator then explained why Dr O’Sullivan “softened” his approach to diagnosis. Having noted that, the President was satisfied that the Arbitrator’s acceptance of Dr O’Sullivan’s initial diagnosis of transverse myelitis and his opinion concerning the causal relationship between the vaccination and the contraction of the condition was central to the Arbitrator’s findings on injury and causation [55]–[58].

4. It followed that the Arbitrator erred by having regard to evidence that had been excluded from consideration. The worker’s counsel conceded as much during the appeal proceedings. Accordingly, the appeal was upheld. The Arbitrator’s decision was revoked and the matter was remitted to another Arbitrator for re-determination [59]–[60]

Zurich Financial Services Australia Ltd v Dickson [2016] NSWWCCPD 25

Assessment of worker’s ability to earn in suitable employment; ss 40 and 43A of the 1987 Act, as it stood prior to the amendments introduced by the 2012 amending Act; Directions for production of documents; Pt 13 r 13.4 of the 2011 Rules

Keating P

6 May 2016

Facts

This appeal concerns the assessment of weekly compensation for a partially incapacitated worker under ss 40 and 43A of the 1987 Act, as it stood prior to the amendments introduced by the 2012 amending Act. The appeal also concerns an Arbitrator’s exercise of discretion pursuant to s 357 of the1998 Act and Pt 13 r 13.4 of the 2011 Rules, to decline to order a Direction for Production on the basis that there was no “forensic purpose”.

The respondent worker was employed by the appellant as an insurance underwriter, when he sustained a psychological injury in 2005, due to “increased workload, conflict with supervisor and harassment from Colleagues”. The worker’s employment with the appellant was terminated sometime in 2005, following which he was employed by several different employers working in varied roles for varying hours. There were also periods where the worker was unemployed.

The worker sought weekly compensation in respect of the psychological injury from 2005 up to 31 December 2012. During a telephone conference before the Senior Arbitrator, the employer made an application that a direction for production be served on the worker’s post-injury employers for the purposes of producing records relating to any workers compensation claims or sick leave records. The Senior Arbitrator determined that there was no “forensic purpose” in serving a direction for production and refused the application.

Following conciliation/arbitration proceedings, the Senior Arbitrator issued a Certificate of Determination in which, amongst other things, an order was made that the employer pay the worker weekly compensation for a closed period.

The employer appealed the Senior Arbitrator’s determination. The appeal is confined to the Senior Arbitrator’s assessment of the worker’s ability to work 10 hours per week in jobs involving minimal stress, during periods when the worker was not actually working. The Senior Arbitrator’s calculation of the quantum, based on the agreed amount the worker would have been earning during the closed period and his actual income, was not challenged.

The issues on appeal were whether the Senior Arbitrator erred in:

(a) fact by finding that the worker was only able to earn $180 per week in some suitable employment;

(b) fact by finding that the worker was only able to earn $180 per week in some suitable employment, as a result of the alleged injury;

(c) law by finding that the worker was only able to earn $180 per week in some suitable employment as a result of the alleged injury, and

(d) the exercise of his discretion in failing to allow the employer to issue notices to produce documents.

Held: The Senior Arbitrator’s determination was confirmed.    

Ability to Earn

1. The President observed that the fact that the worker had been able to maintain employment for a substantial period between August 2008 and May 2010 earning significant income was undoubtedly a relevant factor but was not in itself decisive of the ultimate question, namely, what was the worker’s ability to earn in some suitable employment from time to time after the injury. From May 2010 to December 2012 the worker’s employment history was such that in the main his employment tended to be less demanding in nature, earning him a significantly lower income. It is also relevant that those various employments were punctuated by periods when he didn’t work at all [121].

2. The Senior Arbitrator acknowledged that the calculation of the worker’s ability to earn in suitable employment required, as a consequence of s 40(3) and in turn s 43A(1), that he have regard to the “practical realities that [the worker] faced in his injured condition in getting and keeping employment”. In this regard, the Senior Arbitrator had regard to the particular symptoms the worker suffered and the evidence that revealed that the worker was unable to endure any employment in which he was placed under pressure [128]–[129].

3. It did not follow, and it was inconsistent with the evidence, that from May 2010 the worker had a capacity to earn at least $680 per week, as submitted by the employer. During the period from May 2010 until 31 December 2012, the worker’s earnings were extremely modest, and often for very short periods. In addition the worker earned nothing between July and November 2010, November 2010 and March 2011 and from April to June 2011 [131].

4. The President rejected the submission that if the worker did not have an ability to earn at least $680 per week, after the 2010 financial year, it must have been because of a change in circumstances which adversely affected his ability to earn. The assessment of the worker’s ability to earn under s 40(2) is not concerned with change in circumstances but “what is ultimately sought is a weekly average” (applying Mitchell v Central West Health Service (1997) 14 NSWCCR 526). Thus it is an error to take only the highest of a number of suitable occupations and hold that highest figure to represent the worker’s ability to earn [135]–[136].

5. The worker’s ability to earn was assessed having regard to the whole of the evidence, which included evidence of the worker’s post-injury employment between May 2010 and December 2012 which established that the worker was struggling to obtain and retain employment to any substantial degree (Ric Developments Pty Ltd t/as Lane Cove Poolmart v Muir [2008] NSWCA 155; 6 DDCR 339; 71 NSWLR 593 applied) [137], [140].

6. It followed that grounds (a), (b) and (c) failed [149].

Notices to Produce

7. The employer submitted that the Senior Arbitrator “wrongly refused” the direction for production and thus the refusal affected his analysis of “a significant factual issue” [160].

8. The President was not satisfied that the Senior Arbitrator erred in making the discretionary finding. At the time the application for directions was made, the appellant’s solicitor had submitted that there was no evidence of aggravation of the worker’s admitted injury arising from his subsequent employment after leaving the appellant. Moreover, in support of the appellant’s successful attempt to have the claim against another employer discontinued, the appellant submitted that the evidence was to the contrary. Therefore, the Senior Arbitrator was correct to find that the application lacked forensic merit and amounted to a fishing expedition. The appellant had every opportunity to prepare its case and consider whether it needed to join additional post-injury employers. It elected not to do so. The Senior Arbitrator’s decision to refuse leave for the directions to be issued was well within his discretion and involved no error (Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 and House v The King [1936] HCA 40; 55 CLR 499 applied) [162]–[163].

9. It followed that ground (d) failed [165].

Parker v Tenterfield Rural Lands Protection Board (Formerly Tenterfield Pastures Protection Board [2016] NSWWCCPD 26

Expert evidence; application of Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399; failure to address relevant evidence; procedural fairness – alleged denial of right to make submissions

Snell DP

10 May 2016

Facts:

The appellant was the widow of the deceased worker. The appellant brought a claim for the ‘lump sum death benefit’. The deceased worked for the respondent between 1975 and 1982. However, the overall period was unclear on the evidence.

It was alleged that the deceased was exposed to herbicides (chemicals including 245T, a component of Agent Orange) in the course of his employment with the respondent when he was weed spraying and that such exposure resulted in his death. The claim was disputed for reasons which included ‘injury’ pursuant to s 4 of the 1987 Act and the causal connection between any such injury and the death of the deceased.

The deceased was diagnosed with cardiomyopathy in 2000. It was the appellant’s case that exposure to chemicals with the respondent resulted in the deceased developing diabetes mellitus type 2, which was the cause of him then developing cardiomyopathy, which resulted in a myocardial infarct causing death.

On 11 November 2015, a Commission Arbitrator issued a Certificate of Determination making an award in favour of the respondent. The deceased’s widow appealed.

The issues in dispute on appeal were whether:

(a) the Arbitrator misdirected himself as to the determinations/conclusions made by Professor Keogh (the employer’s qualified doctor);

(b) the Arbitrator erred in concluding that the appellant had failed to discharge the onus of proof;

(c) the Arbitrator erred in taking into account irrelevant considerations when adjudicating factual disputes between the parties, and

(d) the appellant was denied procedural fairness by the Arbitrator.

Held: The Arbitrator’s determination was revoked and the matter was remitted for redetermination by another Arbitrator.  

Ground 1 – That the Arbitrator Misdirected Himself as to the Determinations/ Conclusions Made by Professor Keogh

1. Professor Keogh’s report referred to material made available to her to prepare her report that was not tendered in evidence at the arbitration. One document was a letter from the appellant’s solicitors. It was clearly unsatisfactory that the correspondence and material made available to doctors to provide reports for medicolegal purposes were not available with their reports. This problem was more acute in a matter such as the current one, where the medicolegal doctors did not examine the allegedly injured worker and record their history in the body of the report [55], [102].

2. Professor Keogh’s opinion, going to the presence of toxicities, appeared to be substantially based on documentation which was not in evidence, the source/s of which were unidentified, and the reliability of which could not be assessed. Her reports lacked probative weight on this issue. Professor Keogh did not make any form of binding “determinations/conclusions” going to exposure and the presence of toxicities [105], [108].

3. Professor’s Keogh’s statement, that the deceased was exposed to four specified chemicals, could only have been a matter of her assumed history, based on the material furnished to her. She described the issue, of whether exposure to these chemicals was causative of the deceased’s cardiomyopathy, as “[t]he question posed”. The issue of the deceased’s exposure to these chemicals, during the period pleaded, was a question of fact. The professor assumed certain exposures, apparently on the basis of the material furnished to her, to form her expert opinion. She could not have had independent factual knowledge of what chemicals the deceased was exposed to [109].

4. There was acceptable direct evidence, in the “Workers Compensation FIRST Medical Certificate”, of exposure to the 245T and 24D800. There was acceptable direct evidence of exposure to Esticide 80 and Garlon (together with 245T) in the statements of Messrs Hughes and Koch (who had worked with the deceased), although this related to a period after that pleaded as resulting in injury [110].

5. Professor Keogh’s opinion on the presence of toxicities associated with herbicide exposure was an expression of expert opinion. It was deprived of probative weight for the reasons set out above [111].

Ground 2 – The Arbitrator Erred in Concluding that the Appellant had Failed to Discharge the Onus of Proof

6. The Arbitrator concluded the appellant had not established, on the balance of probabilities, that the deceased was exposed to the alleged chemicals, and that they caused the symptoms discussed in the medical evidence, such as that of Dr Harper (qualified occupational and public health physician for the appellant). This analysis led to the conclusion that the report of Dr Harper was effectively deprived of all weight; it was based on an assumed history of exposure to herbicides, and resultant symptoms, which was not made out on the evidence (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 (Paric), Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita), Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399 (Hancock)) [144].

7. Dr Harper’s report was without probative weight. It was based on a document (the appellant’s letter) that was not in evidence. It was not possible, in the circumstances, to adequately judge the extent to which it complied with the requirements of expert evidence consistent with the relevant authorities [145].

8. Dr Harper made no real attempt to analyse the basis of the causal relationship which he claimed existed, between exposure and “illness”. His report did not deal with the specific issue in the case, based on how it was run: was there a causal linkage between herbicide exposure, diabetes mellitus, cardiomyopathy, and the ultimate death of the deceased? Was the deceased’s death “cardiac” in nature? The report of Dr Harper was not “material that is satisfactory, in the probative sense”, to quote from Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 (Sutton) [148]–[149].

9. Dr Cody’s (treating cardiologist) last report was entitled to weight in so far as it dealt with his treatment of the deceased up to the time of his death, and his expert opinion associated with diagnosis and treatment from time to time. It was deprived of any weight in so far as it went beyond that, to analyse issues of chemical exposure and causation, flowing from his receipt of “the information from the legal proceedings” [154].

10. The further information made available to the doctor at the time was not in evidence. The report did not comply with the requirements for expert evidence consistent with authorities such as Paric, Makita and Hancock. It did not fulfil the requirements of South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 and Sutton [155].

11. It did not explain why the doctor accepted the causal linkage between the relevant herbicide exposure and diabetes mellitus type 2, nor why the doctor had gone from regarding the deceased’s cardiomyopathy as being of unknown aetiology, to regarding it as a result of diabetes [156].

12. The Arbitrator did not address the evidence from the deceased and/or Dr Pilgrim (general practitioner) in the medical certificate. That, on its face, was direct evidence from the deceased (or recorded by Dr Pilgrim based on a history from the deceased) describing the deceased’s exposure to chemicals in his employment between 1975 and 1982. It was clearly relevant. The appellant’s submissions on appeal placed reliance on the medical certificate as evidencing when the deceased commenced work with the respondent, the period of exposure and the nature of exposure. The failure to deal with that evidence, in an analysis of whether the appellant had discharged her onus of proof, constituted error [161]–[162].

13. The Arbitrator, at [102]–[113] of his reasons, set out a summary of the deficiencies which he found existed in the evidence, and which he said supported the conclusion which he reached. The Deputy President considered these as follows:

(a)    Paragraph [102]. Whilst not specifically addressed to the onset of diabetes, it was apparent that the professor considered the lapse of time between exposure and the manifestations of the alleged injury to be a relevant factor. It was disingenuous to say that the timing of symptoms was not raised in the medical evidence. Dr Harper, Dr Cody (in his last report) and Professor Keogh all expressed their views on the basis of assumed histories which were not in evidence.

(b)    Paragraph [103]. The Deputy President accepted the appellant’s submission that the medical certificate established the period during which the deceased was employed by the respondent.

(c)    Paragraph [104]. The Deputy President accepted the appellant’s submission that the medical certificate was evidence that the deceased commenced employment with the respondent in 1975. The evidence of Messrs Koch and Hughes established he was there beyond 1982, which was the end of the pleaded period of exposure.

(d)    Paragraph [105]. In considering whether the lay evidence supported a causal connection, the timing of the onset of symptoms may well, as a matter of common sense, be relevant. This will vary depending on the nature of the injury. The presence from time to time of symptoms was raised as an issue. It was relevant to ‘injury’, which clearly remained in issue.

(e)    Paragraphs [106]–[108]. The Arbitrator’s point that there was no evidence of when the deceased first reported his symptoms, read in context, did not go to compliance with the provisions in the legislation which deal with the duty to report an injury. The Arbitrator’s reasons repeatedly made reference to the inadequacy of the evidence going to issues such as when the deceased first experienced symptoms. There was a clear issue between the parties as regards whether the deceased suffered injury as alleged. The discussion at [106]–[108] of the reasons, dealing with when symptoms were reported, and the presence (or absence) of relevant complaint in treating records, was relevant to this ‘injury’ issue. This was clearly an issue between the parties.

(f)     Paragraphs [109]–[113]. To the extent to which the Arbitrator inferred that any dealings between the deceased and Ms Moore (nurse co-ordinator for “Kimberley workers affected from the weed spraying program which took place there between 1975 and 1985”) involved more than simply making contact, in the Deputy President’s view, such an inference was not reasonably available. To draw this inference constituted error. There was no evidence that Ms Moore took a history from the deceased, recorded symptoms, was involved in his treatment, or passed on any information to Dr Harper. It was, as the appellant correctly observed, a peripheral issue. [169]

14. Ground 2 was upheld as regards the medical certificate and the failure of the Arbitrator to have regard to that evidence, in considering whether the appellant had succeeded in discharging her onus of proof in respect of exposure to herbicides. It was also upheld in respect of the inference drawn by the Arbitrator that dealings between the deceased and Ms Moore involved more than simply making contact [170].

Ground 3 – That Irrelevant Factual Considerations Were Taken Into Account

15. No separate submissions were directed to this ground. The ground was rejected [171].

Ground 4 – Procedural Fairness

16. The submission on this ground stated that the ground had essentially been referred to in those parts of the submissions dealing with ground 2, which are discussed at (d), (e) and (f) of paragraph [169] (noted at [13] above) [172].

17. The occurrence of ‘injury’, whether there was chemical exposure and to what extent, and whether symptoms resulted from this, were very much in issue. The respondent’s submissions, summarised at [60]–[68] of the Arbitrator’s reasons, made this clear. The appellant’s counsel addressed after counsel for the respondent. The appellant’s counsel was clearly aware of the arguments raised. He addressed on the issues of exposure, the presence of symptoms, the medical evidence, and the extent to which it supported findings relevant to ‘injury’ and causation. When he concluded his address, the Arbitrator specifically asked “Anything else?” He was afforded an opportunity to present his case [180].

18. The Arbitrator did not decide the matter on a basis not argued by the parties. Exposure was in issue, the presence of symptoms related to chemical exposure was in issue and the probative force of the appellant’s medical case was challenged [181]

19. Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 is not authority for the proposition that every peripheral matter, that may be referred to in the reasoning process of a finder of fact, needs to be specifically drawn to the attention of counsel, so that they can address on it. The appellant’s argument in ground 4, going to procedural fairness, was rejected [183].

The Consequence of the Found Errors

20. The inference apparently drawn by the Arbitrator, regarding the deceased’s contact with Ms Moore (see [169(f)] above), constituted error. The appellant submitted, accurately, that this issue was “peripheral”.  The Arbitrator referred to it as one additional inconsistency, in a long list of matters on which he regarded the evidence as inadequate or inconsistent. The result in the case could not have been affected by that error. If that were the only error, it would not justify remitter of the matter for redetermination [186].

21. The evidence in the medical certificate supported a finding of fact that the deceased was exposed to 245T and 245D800 during the period from 1975 to about 1982. This was contrary to the Arbitrator’s finding at [101]–[103] of his reasons that the appellant had not proved, on the balance of probabilities, that the deceased was exposed to the alleged chemicals. It was evidence that was not referred to or, so far as could be ascertained, considered [187].

22.The Arbitrator, describing the test of causation, referred to the authorities of Seltsam, Murray v Shillingsworth [2006] NSWCA 367; 4 DDCR 313 and Woolworths Limited v Christopher-Coates[2014] NSWWCCPD 14. It had not been submitted that there was any error in this regard [189].

23. It could not be concluded that, had the evidence in the medical certificate been considered, this “could not possibly have produced a different result”. It was apparently credible evidence which, if accepted, proved relevant chemical exposure [191].

24. There was medical evidence which could, if accepted, have established a causal link between the chemical exposure and diabetes mellitus type 2. Dr Cody said the deceased had “diabetes [which] had been significantly unstable” and referred to the U.S. Government practice, in relation to Vietnam veterans, as supporting the proposition that “exposure to Agent Orange 245T and 24D chemicals may have been a prominent cause of his diabetes”. Dr Cody also said there was “a significant chance” that the deceased’s “diabetes was the cause of his cardiomyopathy” [192].

25. Professor Keogh, in her first report, apparently accepted that diabetes mellitus type 2 was potentially associated with herbicide exposure. The deceased’s death certificate was admissible as evidence of “the facts recorded in the entry”: s 49(2) of the Births, Deaths and Marriages Registration Act 1995. This would be consistent with the death of the deceased resulting from “Myocardial infarct”, and with “Cardiac failure/cardiomyopathy” being an antecedent cause. The above description of a causal chain simply demonstrated that “a different result” could not be excluded. There was appealable error which justified intervention (Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at [16]; Toll Pty Ltd v Morrissey [2008] NSWCA 197; 6 DDCR 561 at [12]; Boral Besser Masonry Limited v Jabarkhill [1999] NSWCA 476; 19 NSWCCR 227 applied) [184]–[185], [193]–[195].

Conclusion

26. The matter was remitted to another Arbitrator for redetermination [196].