Issue 9: December 2017
On Appeal Issue 9 - December 2017 includes a summary of the November 2017 decisions
On Appeal
Welcome to the 9th issue of ‘On Appeal’ for 2017.
Issue 9 – December 2017 includes a summary of the November 2017 decisions.
These summaries are prepared by the Presidential Unit and are designed to provide an overview of, and introduction to, the most recent Presidential and Court of Appeal decisions. They are not intended to be a substitute for reading the decisions in full, nor are they a substitute for a decision maker’s independent research.
Please note that the following abbreviations are used throughout these summaries:
ADP | Acting Deputy President |
AMS | Approved Medical Specialist |
Commission | Workers Compensation Commission |
DP | Deputy President |
MAC | Medical Assessment Certificate |
Reply | Reply to Application to Resolve a Dispute |
1987 Act | Workers Compensation Act 1987 |
1998 Act | Workplace Injury Management and Workers Compensation Act 1998 |
2003 Regulation | Workers Compensation Regulation 2003 |
2010 Regulation | Workers Compensation Regulation 2010 |
2010 Rules | Workers Compensation Rules 2010 |
2011 Rules | Workers Compensation Rules 2011 |
Table of Contents
Court of Appeal Decision:
Inghams Enterprises Pty Ltd v Belokoski [2017] NSWCA 313
CIVIL PROCEDURE – apprehended bias – recusal application to Deputy President hearing appeal refused – Deputy President involved as arbitrator in earlier proceeding between same parties – earlier proceeding discontinued by consent – whether comment in course of telephone directions hearing that there was “no real issue regarding injury” gave rise to reasonable apprehension of bias in later proceeding where injury was in issue – no context for earlier comment – no finding made on evidence – further evidence filed in later proceeding
WORKERS COMPENSATION – appeal on point of law from decision of Deputy President confirming determination of arbitrator in favour of worker – 1998 Act, s 353 – reasonable apprehension of bias on part of Deputy President
Presidential Decisions:
Ryan v Regional Imaging Pty Ltd [2017] NSWWCCPD 48
Section 4 of the 1987 Act; arising out of or in the course of employment; s 9A of the 1987 Act; whether employment a substantial contributing factor to injury; Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited [2009] NSWCA 324; 7 DDCR 75 applied
State of New South Wales v Butler [2017] NSWWCCPD 47
Section 65(3) of the 1998 Act: the Commission’s jurisdiction and application of Haroun v Rail Corporation (NSW) [2008] NSWCA 192; 7 DDCR 139 and associated authorities, multiple causes of injury and incapacity: Sutherland Shire Council v Baltica General Insurance Co Ltd (1995) 39 NSWLR 87, error in fact finding: Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402; 79 ALJR 1816
Navitas English Pty Ltd v Trinh [2017] NSWWCCPD 52
Ability of the respondent to raise grounds in opposition, akin to a cross-appeal – BlueScope Steel Ltd v Markovski [2013] NSWWCCPD 69 and Rail Corporation of New South Wales v B [2009] NSWWCCPD 81 applied, s 352(6) of the 1998 Act – fresh evidence on appeal – CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501 applied, duty to make findings, the test to be applied in establishing psychological injury – State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 applied
Taylor v J & D Stephens Pty Ltd [2017] NSWWCCPD 50
Submission not argued at arbitration; parties bound by own conduct; Mamo v Surace [2014] NSWCA 58 applied; matters required to be established for the purpose of ss 4(b)(i) and 4(b)(ii)of the 1987 Act; distinction between what is required for the purposes of s 4(b) and ss 15 and 16 of the 1987 Act; principles in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 discussed
Popovic v Liverpool City Council [2017] NSWWCCPD 49
Whether a ‘general order’ pursuant to s 60 of the 1987 Act satisfies the monetary threshold for an appeal; 352(3) of the 1998 Act
NSW Police Force v Hahn [2017] NSWWCCPD 51
Whether the Arbitrator was correct to find that the respondent worker had suffered incapacitating injury in the form of a psychological condition arising out of or in the course of his employment; whether the Arbitrator was correct to find that s 9A of the 1987 Act had been satisfied upon the evidence
Decision Summaries
Inghams Enterprises Pty Ltd v Belokoski [2017] NSWCA 313 external site
CIVIL PROCEDURE – apprehended bias – recusal application to Deputy President hearing appeal refused – Deputy President involved as arbitrator in earlier proceeding between same parties – earlier proceeding discontinued by consent – whether comment in course of telephone directions hearing that there was “no real issue regarding injury” gave rise to reasonable apprehension of bias in later proceeding where injury was in issue – no context for earlier comment – no finding made on evidence – further evidence filed in later proceeding
WORKERS COMPENSATION – appeal on point of law from decision of Deputy President confirming determination of arbitrator in favour of worker – 1998 Act external site , s 353 external site – reasonable apprehension of bias on part of Deputy President
McColl JA, Basten JA and Bellew J
7 December 2017
Facts
The worker claimed he suffered injury in 2009 to his cervical spine and right shoulder. He made a claim and earlier proceedings were commenced in the Commission. Those proceedings came before Senior Arbitrator Snell (as he then was) for a telephone conference on 11 August 2014. The Commission files revealed that he made some procedural orders in those proceedings. The proceedings were listed for conciliation conference/arbitration hearing in September 2014, where they resolved, and were discontinued, with some associated consent orders for weekly payments. The current proceedings, involving the same injury, were commenced in 2015.
The current proceedings were decided by an Arbitrator, in the worker’s favour, and an appeal by the employer came before Deputy President Snell. The Deputy President issued a Direction inquiring whether either party objected to his involvement in determining the appeal, given his involvement in the previous proceedings. He noted that he had “no recollection of the earlier proceedings.”
Deputy President Snell declined to recuse himself and dismissed the employer’s appeal. The employer appealed to the Court of Appeal.
The employer, in its submissions, said that the Deputy President, in the telephone conference relating to the earlier proceedings, had made a statement that there was no real issue as regards ‘injury’.
The issues on appeal were:
(a) whether the Deputy President erred in declining to recuse himself;
(b) that the error in the Deputy President declining to recuse himself “was compounded by [his] subsequent conduct of the appeal.” This complaint was further articulated in terms alleging that the Deputy President:
(i) intervened to invite submissions on an authority that he ultimately held was decisive in the worker’s favour;
(ii) in the course of dealing with those subsequent submissions, restricted the employer to a narrower and more technical reading of its appeal grounds, even than the way the worker’s counsel approached them;
(iii) did not propose an oral hearing so that such matters could be ventilated in full, and
(c) that the Deputy President’s role as a conciliator, at the time of the telephone conference on 11 August 2014, was somehow relevant to (in the sense of aggravating) the expression of opinion as to whether injury was then in issue.
Held: Leave to appeal was granted and the appeal was dismissed.
Basten JA (McColl JA and Bellew J agreeing)
Appeal to this Court
1. Justice Basten observed that there was no dispute as to the relevant legal test concerning apprehended bias. The question is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.” It was not submitted that a different test should apply to the Deputy President of the Commission, although it was accepted that the application of the test must have regard to the statutory function of an arbitrator and the role played by a Deputy President on an appeal. ([15]–[18])
(Johnson v Johnson [2000] HCA 48 external site ; 201 CLR 488 at [11]; Livesey v New South Wales Bar Association [1983] HCA 17 external site ; 151 CLR 288 external site at 294; Western Australia v Watson [1990] WAR 248 external site at 264; Re JRL; Ex parte CJL [1986] HCA 39 external site ; 161 CLR 342 external site at 352, and Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 external site ; 244 CLR 427 external site (Michael Wilson & Partners) applied)
Ground 1 – statement at 11 August 2014 tele-conference
2. The employer’s solicitor said that, in reporting to his client about the earlier proceedings, he said that Deputy President (as a Senior Arbitrator at the time) made the comment about ‘injury’ referred to above. Justice Basten said that the solicitor did not swear an affidavit in proceedings before the Commission, nor did he give oral evidence. His Honour said that Mr Macken was and remained the solicitor for the appellant and his Honour inferred that the solicitor had no memory of the comment and was relying on a “report” to his client. Justice Basten held that if there had been a record of the report, it should have been put in evidence. His Honour observed that it had not. ([25])
3. Justice Basten observed that in these circumstances, it would have been open to Deputy President Snell to dismiss the application on the ground that there was no evidential basis for concluding that such a comment was made. His Honour noted that, in any event, that course was not taken. ([26])
(CUR24 v Director of Public Prosecutions [2012] NSWCA 65 external site ; 83 NSWLR 385 external site referred to)
4. His Honour held that the appellant’s difficulty was not restricted to the evidence. Basten JA added that the application provided no context for the alleged comment that was not in issue. Without the context, it would be pure speculation to draw any inference from the comment. A fair-minded observer would not do so. His Honour concluded that the application could and should have been rejected on that basis. ([27])
Ground 2 – the three compounding issues
5. Justice Basten observed that this ground was problematic. His Honour said that, as the issues raised in (b) above were said to “compound” the error in failing to recuse based on the statement, they could not compound that which was not erroneous. Secondly, none of the items identified in the written submissions involved an error of law. So much was conceded. How they could provide any basis for supporting a reasonable apprehension of bias, even if the statement carried the connotation relied on by the appellant, was obscure. ([28])
6. As regards (b)(i) above, Basten JA said that the idea that a tribunal demonstrates a possibility of prejudgment by drawing the attention of one party to an authority (being Michael Wilson & Partners) which may be against its position is hard to comprehend. ([29])
7. As regards the complaint in (b)(ii) above, that the appellant was restricted to “a narrow and technical reading of its appeal grounds” by the Deputy President, Basten JA held that this was not a narrow and technical approach: it was recognition that the appellant was seeking to substitute four separate grounds for one dealing with apprehended bias by the arbitrator in a way which was apt to cause procedural unfairness to the worker. His Honour said that how such a course could demonstrate prejudgment on the part of the Deputy President was utterly obscure. ([34])
8. The invitation to the Court of Appeal, to conclude that what happened before the Deputy President “compounded” the failure to recuse himself at the outset of the hearing, was an open invitation to the Court of Appeal to commit the very error which had been identified in Michael Wilson & Partners. What the appellant sought to do in support of this ground was to sift through the Deputy President’s reasons for decision and light upon aspects of the reasoning which, it was conceded, did not reveal any error of law, and seek to use these to demonstrate that the initial apprehension of bias was confirmed. Whether or not that was what the Court of Appeal did in Michael Wilson & Partners, it is beyond doubt that such an approach is fallacious. ([36]–[37])
9. Regarding (b)(iii), Basten JA held that the appellant could not claim it had been denied procedural fairness. The refusal of the Commission to “propose” an oral hearing could not possibly give rise to an apprehension of prejudgment. ([38])
Ground 3 – managing the conciliation hearing
10. The appellant sought to rely upon the fact that as conciliator, the Deputy President had “managed” the earlier proceedings to resolution. Justice Basten held that there was no direct evidence that he had done anything of the sort; nor was it explained what steps he had taken (if any) to achieve a consensual outcome of the earlier proceeding. How such a course, whatever it may have involved, could form the basis of a reasonable apprehension of prejudgment was not explained, no doubt because the factual basis was unknown. The matter was resolved by consent, and there was no evidence that it was resolved against the appellant’s interests. ([39])
11. Justice Basten held that the fact that an arbitrator has used his or her best endeavours to bring about a settlement will not form the basis of a challenge to an award or determination if conciliation fails and an arbitrated outcome is required. His Honour observed that if the conciliation in the earlier proceedings had not been suucesful Senior Arbitrator Snell could properly have proceeded to make an award. Why “tighter constraints of propriety” would apply to the Deputy President in determining an appeal was not explained. ([41]–[42])
Conclusion
12. The Court concluded that the recusal application was properly determined by the Deputy President in dismissing the appeal before him. ([44])
Ryan v Regional Imaging Pty Ltd [2017] NSWWCCPD 48 external site
Section 4 external site of the 1987 Act external site ; arising out of or in the course of employment; s 9A external site of the 1987 Act external site ; whether employment a substantial contributing factor to injury; Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited [2009] NSWCA 324 external site ; 7 DDCR 75 external site applied
Keating P
10 November 2017
Facts
The worker was employed as a receptionist. Shortly prior to the end of her shift at 3.30 pm, she was required to attend the local Post Office in Albury to post the daily mail. To do this, she left work shortly prior to the end of her shift and drove her own car to the vicinity of the Post Office where she parked and proceeded on foot. After posting the mail, she went to cross the street to return to her vehicle when she was struck by a passing vehicle and was injured.
The worker claimed that she injured her right leg and left elbow, when she was “hit by a car, at work, after dropping off mail at the Post Office”. She sought weekly compensation for a closed period, of approximately six weeks, and medical expenses. The respondent disputed liability.
The matter came before a Commission Arbitrator. The Arbitrator found in favour of the respondent. The Arbitrator found that the injury did not arise out of or in the course of the worker’s employment pursuant to s 4(a) external site of the 1987 Act external site . The Arbitrator also found that employment was not a substantial contributing factor to the injury and the injury did not fall within the journey provisions pursuant to s 10 external site of the 1987 Act external site .
The worker appealed. The issues on appeal concerned whether the Arbitrator erred in:
(a) applying the test under s 4(a) external site of the 1987 Act external site with respect to arising “out of” and “in” the course of employment;
(b) failing to properly apply the test under s 9A external site of the 1987 Act external site , with respect to substantial contributing factor, and
(c) determining that the worker was not on a journey from her workplace to place of abode when she was injured and whether there was a “real and substantial connection” between the employment and incident, pursuant to s 10(3) external site of the 1987 Act external site .
Held: The Arbitrator’s determination was revoked. An award was entered for the worker in respect of weekly payments of compensation and medical expenses.
In the course of employment
1. An injury arising in the course of employment refers to the mere temporal connection with employment, so that if a worker sustains an injury during the time constituted by the course of employment the injury will arise in the course of the employment. It is unnecessary to show some further relationship with the employment to establish “injury”, subject to satisfying the requirements of s 9A external site of the 1987 Act external site . ([47])
(Commonwealth v Oliver [1962] HCA 38 external site ; (1962) 107 CLR 353 external site ; ALR 609 considered)
2. The course of employment extends beyond the worker’s normal hours and place of work to “natural incidents connected with that class of work”. If a worker “is doing something which is part of or is incidental to his service” he or she is in the course of employment. Therefore, the service is not confined to the actual performance of the work that the worker is employed to do but includes all the things incidental to the performance of that work. ([48])
(Kavanagh v The Commonwealth [1960] HCA 25 external site ; 103 CLR 547 external site (Kavanagh), Charles R Davidson& Company v M Robb (1918) AC 304 external site and Whittingham v Commissioner of Railways (WA) (1931) HCA 49 external site (Whittingham) considered)
3. In considering what is incidental to service, the sufficiency of the connection between the worker’s employment and what she was doing at the time that she was injured could only be “a matter of degree in which time, place, practice and circumstances as well as the conditions of employment had to be considered.” ([49]-[53])
(Hatzimanolis v AMI Corporation Ltd (1992) HCA 21 external site and Whittingham applied
Henderson v Commissioner of Railways (WA) [1937] HCA 67 external site ; (1937) 58 CLR 201 (Henderson); Humphrey Earl Ltd v Speechely; Bill Williams Pty Ltd v Williams [1972] HCA 23 external site considered)
4. The Arbitrator’s determination focused on his conclusion that once the worker left the Post Office on or about 3.30 pm she completed her day’s work and that the real cause of the accident was the worker’s own carelessness or the negligence of the driver of the vehicle that struck her, or both. The Arbitrator failed to consider the terms of employment, and what was reasonably required, expected or authorised by the respondent in order for the worker carry out her actual duties. ([54])
5. Consideration of whether the injury occurred whilst the worker was engaged in work which she was employed to do or something incidental to it is a concept devoid of any causal link between that which the worker is employed to do and the injury sustained. ([55])
(Kavanagh applied)
6. The President inferred from the evidence that the worker’s use of her own car to travel from her place of work to the Post Office was authorised by the respondent. He also inferred that the worker would be expected to park her car in the vicinity of the Post Office and walk between her parked car and the Post Office in order to post the daily mail. It followed that, when walking between her car and the Post Office the worker was doing something that was incidental to her employment. Therefore, the worker remained in the course of her employment while walking between her car and the Post Office. The Arbitrator’s finding to the contrary was an error. The Arbitrator’s treatment of the time of the accident and immediate cause of it as decisive factors in his determination was also an error. ([56]-[58])
7. The President inferred that there was a notional period to allow the worker to complete the posting of the mail and finish her duties at around 3.30 pm. That did not mean that if the task of posting the mail was incomplete at 3.30 pm that the employment for the day came to an end at that point in time. His honour said that it is reasonable to infer that, on occasion, the task of posting the mail would take longer than 15 minutes. It followed that whether the injury took place shortly after the scheduled end of the shift was not decisive. A worker may still be in the course of employment where the accident arises shortly before the beginning of actual work or shortly after its cessation ([59])
(Henderson applied)
8. In the alternative, the President found that not only was the worker induced or encouraged to be at the relevant place at the time of her injury, she was directed and required to be there as part of her employment duties. ([64])
(Comcare v PVYW [2013] HCA 41 external site and Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 external site applied)
9. It followed that the worker was in the course of her employment at the time of the injury. The Arbitrator’s finding to the contrary was an error. ([60], [67])
Injury “arising out of employment”
10. The requirements of the worker’s employment caused her to be in the Albury CBD, on foot and negotiating traffic when she was injured. The clear causal link to the employment was the requirement for her to use her own car to travel from the respondent’s premises to the Albury CBD, park it and then walk to and from the Post Office to attend to the task of posting the mail. That was a factor that materially contributed to the injury and was sufficient to satisfy the requirements of s 4 of the 1987 Act, in that the injury arose out of the employment. The immediate cause of the accident, although relevant, was not decisive. The President found that the injury was sustained arising out of the worker’s employment. The Arbitrator’s finding to the contrary was an error. ([81]-[84], [86])
(Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited [2009] NSWCA 324 external site ; 7 DDCR 75 external site applied)
Substantial contributing factor
11. Although the Arbitrator identified relevant features of the worker’s employment, in consideration of s 9A(2)(b) external site , which directs attention to the nature of the work performed and the particular tasks of that work, he focused only on the final aspect of his analysis of the duties. That is, that the worker attended her final duties of the day at the Post Office at about 3.30 pm or sometime later. He focused on the duties being performed at or immediately prior to the injury rather than focusing on the nature of the work performed and the particular tasks of the worker’s work. That was an error. ([100])
(Badawi applied)
12. The Arbitrator failed to consider the relevance of s 9A(2)(d) external site , which concerns the probability that the injury or a similar injury would have happened anyway. The President found that it was unlikely that a similar injury would have happened at the same time or at the same stage of the worker’s life had it not been for the particular tasks of her employment. ([101])
13. The President was satisfied that the connection between the incident and the employment was real and of substance, therefore the provisions of s 9A were satisfied. It followed that the worker sustained an injury arising out of and in the course of her employment with the respondent, when she sustained the injury, to which her employment was a substantial contributing factor. ([102]-[103])
(Badawi applied)
The journey claim
14. Having regard to the above findings, it was unnecessary to make any findings on the journey claim.
State of New South Wales v Butler [2017] NSWWCCPD 47 external site
Section 65(3) external site of the 1998 Act external site : the Commission’s jurisdiction and application of Haroun v Rail Corporation (NSW) [2008] NSWCA 192 external site ; 7 DDCR 139 external site and associated authorities, multiple causes of injury and incapacity: Sutherland Shire Council v Baltica General Insurance Co Ltd (1995) 39 NSWLR 87 external site , error in fact finding: Waterways Authority v Fitzgibbon [2005] HCA 57 external site ; 221 ALR 402 external site ; 79 ALJR 1816 external site
Snell DP
3 November 2017
Facts
The worker suffered employment injuries while employed by JCS Big Country Services Pty Ltd (JCS) on 6 January 2006 and by the State of New South Wales (the State) in the operations of the Hunter New England Area Health Service on 20 June 2011. The worker underwent left total knee replacement surgery on 13 February 2012 and right total knee replacement surgery on 6 October 2015. In 2008, the worker recovered lump sum compensation from JCS for 2% whole person impairment (WPI) in respect of the right knee pursuant to s 66A external site of the 1987 Act external site .
In these proceedings, as against JCS, the worker alleged the injury to the right knee on 6 January 2006, and claimed lump sum compensation for 20% WPI. As against the State, the worker pleaded the injury on 20 June 2011 when he was kicked by a patient, injuring his left knee. He also alleged injury to the right knee as “a result of favouring the left”. He claimed lump sum compensation in respect of 32% WPI resulting from injury to the right and left lower extremities on 20 June 2011.
The worker claimed weekly payments and medical expenses in respect of both injuries, although he discontinued his claim for s 60 external site expenses at the arbitration hearing. The Arbitrator made awards for weekly compensation and medical expenses, both only against the State. In a second Certificate of Determination the Arbitrator amended the first, to order referral of the lump sum claim against the State to an AMS. He rejected an application that the lump sum claim against JCS also should be referred. There was an award in favour of JCS on all heads of claim against it. The State appealed.
The issues on appeal were whether:
(a) the Arbitrator failed to consider and determine the rights and obligations of the parties arising from the injury on 6 January 2006. This included whether incapacity and the need for medical treatment resulted from that injury as well as the injury on 21 June 2011, and the need to refer WPI resulting from injury on 6 January 2006 to an AMS for assessment. It was necessary to determine the relief to which the worker was entitled as against JCS, resulting from the injury on 6 January 2006 (Ground No 1), and
(b) the award of weekly compensation, save for the period from 6 to 20 October 2015, was erroneous in that, during the other periods awarded, the worker did not suffer any “economic incapacity” (Ground No 2).
Held: The Certificate of Determination dated 14 June 2017 as amended by the Certificate of Determination dated 4 July 2017 was revoked and the matter was remitted for re-determination by another Arbitrator.
Ground No 1
The lump sum claim against JCS
1. It was common ground between the parties that the injury on 6 January 2006 occurred, and that the lump sum claim in respect of it required assessment by an AMS. The position adopted by the parties was appropriate. The matters in dispute involving JCS did not involve issues of ‘liability’ for the purposes of s 321(4)(a) external site of the 1998 Act external site . ([23], [26])
2. The dispute about the permanent impairment that resulted from the conceded injury on 6 January 2006 was a ‘medical dispute’. Consistent with authority in the absence of assessment pursuant to Pt 7 external site of Ch 7 external site of the 1998 Act external site , the Commission could not determine that medical dispute. Deputy President Snell held that this limitation on the Commission’s jurisdiction extended to the entry of an award in favour of the relevant employer, in circumstances where the only issue in the lump sum claim against JCS was quantum. The submissions of the parties at the arbitration hearing were correct, it was necessary that the medical dispute relating to the injury of 6 January 2006 be referred to an AMS. The entry of an award in favour of JCS, including on the permanent impairment claim against it, involved jurisdictional error. ([28]–[31])
(Haroun v Rail Corporation (NSW) [2008] NSWCA 192 external site ; 7 DDCR 139 external site at [19]–[20]; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 external site ; 13 DDCR 156 external site at [112], Abou-Haidar v Consolidated Wire Pty Ltd [2010] NSWWCCPD 128 external site ; 12 DDCR 307 external site at [54]; Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 external site at [56] and Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 external site at [261] referred to)
The claims against JCS for medical expenses and weekly payments
3. The worker pleaded a claim for medical expenses. At the arbitration hearing, the worker’s counsel sought to discontinue “the claim for section 60 expenses and any application for a general order”. This was acknowledged by the legal representatives for both JCS and the State, neither of whom specifically addressed the issue of expenses pursuant to s 60 external site of the 1987 Act external site . ([32])
4. The Deputy President observed that a condition can have multiple causes. ([39]–[41])
(Bushby v Morris [1980] 1 NSWLR 81 external site at [87]; Accident Compensation Commission v CE Heath Underwriting & Insurance (Australia) Pty Ltd [1994] HCA 68 external site ; 121 ALR 417 external site at [3], and Sutherland Shire Council v Baltica General Insurance Co Ltd (1995) 39 NSWLR 87 external site at 95B applied).
5. The Arbitrator’s reasons did not deal with whether the effects of the injury on 6 January 2006 continued, and if so, with what consequences. They did not deal with whether that injury caused or materially contributed to the periods of incapacity for which weekly compensation was ordered, or the need for medical treatment, including surgery. There was a failure to address this issue. ([42]–[44])
(Baira v RHG Mortgage Corporation Limited [2012] NSWCA 387 external site at [175]; Waterways Authority v Fitzgibbon [2005] HCA 57 external site ; 221 ALR 402 external site ; 79 ALJR 1816 external site at [130] and Mifsud v Campbell (1991) 21 NSWLR 725 external site at 728C referred to)
6. The Arbitrator’s reasons, dealing with the extent to which the right knee symptoms represented a consequential condition resulting from the injury on 20 June 2011, did not decide the issue of whether the effects of the injury on 6 January 2006 continued, and the significance of that to the relief claimed. There were no other reasons given for the award in favour of JCS, and the failure of all heads of the worker’s claim against JCS. ([46])
7. It followed that the challenge in Ground No 1 of the appeal, against the awards in favour of JCS on the claims for lump sum compensation, weekly compensation and benefits under s 60 external site of the 1987 Act external site were successful. It was not, in the circumstances, necessary for the Deputy President to deal with Ground No 2. ([47])
Disposition of the appeal
8. Injury to the right knee in the incident on 6 January 2006 was not placed in issue by JCS. Deputy President Snell held that it was realistically possible that when findings on causation are made, rights of contribution may arise between JCS and the State. The parties should ventilate their positions on contribution, so that it can be dealt with on the further arbitration hearing. ([49]–[50])
9. The Arbitrator made an order for the payment of s 60 external site expenses, in circumstances where the worker’s counsel, during submissions, sought to withdraw that aspect of the claim. The employers’ legal representatives proceeded on the basis that the claim pursuant to s 60 external site was not pursued. Although no procedural fairness points were raised on appeal, Deputy President Snell observed that before the further arbitration hearing, the parties should turn their minds to (and give notice of) whether orders would be sought pursuant to s 60 external site . ([51]–[52])
Navitas English Pty Ltd v Trinh [2017] NSWWCCPD 52 external site
Ability of the respondent to raise grounds in opposition, akin to a cross-appeal – BlueScope Steel Ltd v Markovski [2013] NSWWCCPD 69 external site and Rail Corporation of New South Wales v B [2009] NSWWCCPD 81 external site applied, s 352(6) external site of the 1998 Act external site – fresh evidence on appeal – CHEP Australia Ltd v Strickland [2013] NSWCA 351 external site ; 12 DDCR 501 external site applied, duty to make findings, the test to be applied in establishing psychological injury – State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 external site ; 5 DDCR 286 external site applied
Snell DP
29 November 2017
Facts
The worker was employed as a work experience placement officer. On 31 July 2015, she claimed that she had suffered a psychological injury due to ongoing harassment and bullying over the past years. She identified 19 allegations of specific matters that were allegedly causative of her psychological injury. The appellant employer initially made voluntary payments of compensation before denying liability on the basis that she had not satisfied the requirements of s 9A external site of the 1987 Act external site (‘substantial contributing factor’). It also asserted that it had a defence based on s 11A external site of the 1987 Act external site , as the injury resulted wholly or predominantly from reasonable action taken or proposed to be taken by the employer, with respect to performance appraisal. The s 74 external site notice also placed incapacity and the need for treatment in issue, on the basis that the worker had not sustained a compensable injury. The notice did not specifically raise the occurrence of ‘injury’ as an issue.
In a Certificate of Determination dated 27 July 2017, the Senior Arbitrator referred to a number of authorities including State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 external site ; 5 DDCR 286 external site (Chemler), Attorney General’s Department v K [2010] NSWWCCPD 76 external site ; 8 DDCR 120 external site (A-G v K), Wiegand v Comcare Australia [2002] FCA 1464 external site , Gibbs v Trustees of the Roman Catholic Church of the Diocese of Lismore [2012] NSWWCCPD 30 external site , Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56 external site and Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 external site .
The Senior Arbitrator noted the prevalence of Applications in the Commission pleading ‘bullying and harassment’. She said that she must determine what those words meant in the context of the worker’s claim. The Senior Arbitrator considered the definitions on the SafeWork NSW website and the definitions in the online Macquarie Dictionary. The Senior Arbitrator rejected the first 18 of the worker’s allegations, finding that each allegation was not made out.
In relation to the nineteenth allegation (which dealt with a performance review on 9 July 2015), the Senior Arbitrator concluded that the review was reasonable action with respect to performance appraisal. However, the Senior Arbitrator determined that the employer had not made out its defence under s 11A external site because it had not led medical evidence that the worker’s injury was wholly or predominantly caused by the performance appraisal on 9 July 2015.
The Senior Arbitrator made an award for the worker with respect to weekly compensation and s 60 external site expenses. The employer appealed.
The appellant’s grounds of appeal raised the following:
(a) the Senior Arbitrator erred in failing to make specific findings that the worker sustained injury in a performance appraisal on 9 July 2015, and that her employment was a substantial contributing factor to that injury (Ground No 1), and
(b) the Senior Arbitrator, it may be inferred, determined that any injury, and consequential entitlement to weekly payments and medical expenses, were due to the performance appraisal on 9 July 2015. She specifically found that the employer’s relevant conduct was reasonable. She then erred in finding that the defence pursuant to s 11A(1) external site was not made out, absent medical evidence to the effect that the injury was wholly or predominantly caused by the performance appraisal on 9 July 2015 (Ground No 2).
Held: The Certificate of Determination dated 27 July 2017 was set aside and the matter was remitted for re-determination by another Arbitrator.
1. The worker conceded that the Senior Arbitrator’s orders had been issued pursuant to an erroneous reasoning process. However, the worker submitted that the orders in the Certificate of Determination should not be disturbed as the outcome would be no different following a proper determination of the substantive issues. ([20])
Dealing with the additional issues raised by the worker on the appeal
2. The worker did not herself lodge an appeal. Deputy President Snell noted that she could not be expected to challenge the orders in her favour. He held that if the arguments of the employer on appeal were found to be correct, it would be inconsistent with s 354 external site of the 1998 Act external site if the worker was precluded from pursuing an argument that may entitle her to success. ([25]–[27])
(BlueScope Steel Ltd v Markovski [2013] NSWWCCPD 69 external site , and Rail Corporation of New South Wales v B [2009] NSWWCCPD 81 external site applied)
Fresh evidence
3. The worker could not satisfy the threshold tests in s 352(6). The application to rely on fresh evidence was refused. For reasons below, Deputy President Snell concluded that the appeal succeeded and should be remitted for re-determination by a different arbitrator. He said that the admission of further evidence could be dealt with in the normal way, by the arbitrator, in the re-determination. ([38]–[46])
(CHEP Australia Ltd v Strickland [2013] NSWCA 351 external site ; 12 DDCR 501 external site and Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10 external site at [26] referred to)
Ground No 1 – the findings on ‘injury’ and section 9A of the 1987 Act
4. The submissions made to the Senior Arbitrator were consistent with the worker relying on an allegation of injury based on the ‘disease’ provisions in s 4(b) external site of the 1987 Act external site . Identification of the relevant ‘injury’ was important for the purposes of the issues involving both s 9A external site and s 11A(1) external site of the 1987 Act external site . Both s 4 external site and s 9A external site require independent satisfaction. ([60])
(Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324 external site ; 75 NSWLR 503 external site ; 7 DDCR 75 external site at [48] and [91] applied)
5. Deputy President Snell observed that the way in which the arbitration hearing was conducted was consistent with the allegation of ‘injury’ being in issue. Notwithstanding references to s 9A external site , an argument based on medical evidence (advanced by the employer at the arbitration), that employment factors were not sufficient to cause a psychological injury, is an argument going to ‘injury’ rather than s 9A external site . ([63]–[64], [69])
6. There was a single allegation of injury, based on the ‘disease’ provisions in s 4(b) external site of the 1987 Act external site . The Senior Arbitrator’s reasons dealt seriatim with 19 individual allegations which were spelled out in the worker’s statement, and whether each of these was established. The worker argued that ‘injury’ was not placed in issue by the employer, therefore all of the 19 individual ‘allegations’, which went to make up the single allegation of a ‘disease’ injury, were conceded by the employer. ([65])
7. The Deputy President said that the Senior Arbitrator had not found that the first 18 allegations of injury (if approached individually) were made out, but that no compensation was payable as s 9A external site was not satisfied in respect of each of them. On a fair reading, the finding rather was that the worker had not discharged an onus of proving that the first 18 allegations, alleged to comprise the ‘disease’ injury, were made out. Although it used the terminology “substantial contributing factor”, the subject matter of the reasoning was ‘injury’, not whether s 9A external site was satisfied. ([73])
8. Deputy President Snell held that the Senior Arbitrator made no ultimate findings of fact about ‘injury’ or s 9A external site in respect of the performance appraisal on 9 July 2015. A determination of ‘injury’ was important, for consideration of whether s 9A external site was satisfied (this being in dispute) and also in considering whether a defence pursuant to s 11A(1) external site was available in respect of any found injury. The failure to make findings, on the factual issues going to the alleged injury on or around 9 July 2015, and s 9A external site , constituted error. It followed that Ground No 1 was made out. ([76], [82])
Ground No 2 – alleged error in the findings applying section 11A(1)
9. Because it was not appropriate to infer the factual findings for which the appellant argued, the basis on which Ground No 2 rested was not made out. ([83])
The errors alleged by the worker
10. The worker alleged error in the Senior Arbitrator’s approach that it was necessary for the worker to establish, on an objective basis, that she was ‘bullied and harassed’. The lack of “objective evidence of conduct which could be called bullying or harassment” was one of the factors relied on by the Senior Arbitrator, in rejecting the first 18 allegations going to injury. ([84], [86]–[88])
(Chemler and A-G v K referred to)
11. The Deputy President accepted the worker’s submission. The definition of “bullying” the Senior Arbitrator relied on involved “unreasonable behaviour directed towards a worker”, that is, the perpetrator was acting unreasonably. The definition of “harass” relied on involved the perpetrator persistently disturbing or tormenting the victim. These definitions are likely to involve the “motivation, intention or other mental state” of the perpetrator, something on which there should not be focus “even in a limited sense”, applying the judgment of Basten JA in Chemler. The Senior Arbitrator correctly observed that the words “bullying and harassment” were not “a term of art”. However, she then sort to define the terms, and considered whether various of the allegations fell within the definitions, in assessing whether the allegations were made out. This approach was inconsistent with what was said by Basten JA in Chemler at [69]. The correct enquiry is whether “conduct which actually occurred in the workplace was perceived as creating an offensive or hostile working environment, and a cognizable injury followed”. ([91])
Disposition of the appeal
12. The appellant had established error in the failure to make ultimate findings of fact going to ‘injury’ and s 9A external site , in respect of the nineteenth allegation. The Deputy President was of the view that it was not appropriate to infer findings in respect of ‘injury’ and s 9A external site . He noted that the worker had established error in the approach taken in dealing with the other 18 allegations. He was of the view that justice between the parties was best achieved by remitting the matter for re-determination by a different arbitrator. ([95]–[96])
Another matter
13. There was a certain level of confusion in this matter, regarding what part of the injury allegations was placed in issue, and what was conceded, by the insurer. Deputy President Snell said that it is desirable, at the commencement of an arbitration hearing, to have the parties state with precision, on transcript, what concessions are made, and what matters remain in issue and require determination. ([97])
Taylor v J & D Stephens Pty Ltd [2017] NSWWCCPD 50 external site
Submission not argued at arbitration; parties bound by own conduct; Mamo v Surace [2014] NSWCA 58 external site applied; matters required to be established for the purpose of ss 4(b)(i) external site and 4(b)(ii) external site of the 1987 Act external site ; distinction between what is required for the purposes of s 4(b) external site and ss 15 external site and 16 external site of the 1987 Act external site ; principles in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 external site discussed
Wood DP
14 November 2017
Facts
The worker brought proceedings in respect of alleged injuries that included a frank injury on 24 June 2015 to the right forearm and injury to the neck, left shoulder and elbow, right shoulder, lumbar spine, left knee and right knee. He claimed that this injury arose as a result of the “nature and conditions” of his employment with the respondent, as a shearer. In the alternative, the worker claimed a disease injury or aggravation thereof pursuant to s 4(b)(i) external site and/or s 4(b)(ii) external site of the 1987 Act external site . The claim was disputed.
The matter proceeded before a Commission Arbitrator. The Arbitrator found in favour of the respondent. The worker failed to discharge the onus of proof in respect of the alleged injury. The Arbitrator found that there was a complete lack of contemporaneous complaints, inconsistencies in the evidence, and scant evidence from the worker as to the onset of symptoms and its connection with work as a shearer.
The worker appealed. The issues on appeal concerned whether:
(a) “The Arbitrator misdirected herself as to whether there needed to be a complaint of symptoms for the Appellant to establish he has suffered injury” (Ground 1);
(b) “Having found the Appellant suffers from a disease contracted in the course of his employment as a shearer which is the type of work that could cause injury to the body parts claimed and aggravation of a disease, the Arbitrator should have found in favour of the Appellant” (Ground 2), and
(c) “Misapplication of Authorities such as Department of Education & Training v Ireland [2008] NSWWCCPD 134 external site [Ireland]” (Ground 3).
Held: The Arbitrator’s determination was confirmed.
Discussion and Reasons
1. The appeal was founded on a complaint that the Arbitrator misdirected herself with respect to the proper test to determine “disease injury” pursuant to s 4(b)(i) external site and/or s 4(b)(ii) external site of the 1987 Act external site . It did not challenge the factual findings on the evidence before the Commission or the Arbitrator’s rejection of the evidence of the worker’s medico-legal expert, Dr Dixon. Therefore, there was no need to evaluate the Arbitrator’s acceptance or rejection of the factual assertions made by the worker or her decision as to the probative value of Dr Dixon’s report. ([66])
2. The worker’s challenge on appeal was not raised or argued before the Arbitrator at first instance. That is, no submissions were made that, in a disease case, all that is required is to establish that the employment was employment “to the nature of which the disease is due”. The Arbitrator was not directed to the authorities the worker relied on in the appeal or any other authorities relevant to burden of proof in a disease case. ([70]-[71])
3. A party may not raise a new argument on appeal unless there are exceptional circumstances, it is expedient, or it is in the interests of justice to do so. The Deputy President could not identify any exceptional circumstances as to why leave should be granted nor any basis for determining that it would be expedient or in the interests of justice to allow the point to be raised on appeal. The Deputy President was also of the view that the worker’s argument lacked merit. ([72]-[76])
(Mamo v Surace [2014] NSWCA 58 external site ; Super Retail Group Pty Ltd v Uelese [2016] NSWWCCPD 4 external site ; Scott v JR Corney and SM Morrisey t/as Digquip [2016] NSWWCCPD 11 external site applied)
4. The Arbitrator could not be seen to have fallen into error where the argument put forward by the worker was not the subject of submissions at arbitration. It followed that the Deputy President declined to allow the new argument to be raised on appeal. ([76], [96])
5. In the alternative, the Deputy President made the following findings. She observed that the worker conceded that the Arbitrator’s task was to determine the question of injury pursuant to s 4(b)(i) external site and/or s 4(b)(ii) external site . However, the worker argued that it was not necessary to establish “actual” injury when considering the provisions of s 4(b) external site but that it is sufficient to show that the employment was the type of employment that could cause the contraction or aggravation etc of the disease. ([79]-[81], [90])
6. The Deputy President observed that, in boilermakers’ deafness, the Arbitrator must arrive at an “actual persuasion” that the worker has established their case on the balance of probabilities. The standard of proof required to establish entitlement to compensation is higher with respect to a s 4(b) external site disease injury, as the legislation requires the element of employment to be the “main contributing factor” to the disease for it to be compensable. The worker did not make any submission in that regard. ([84]-[85)
(Nguyen v Cosmopolitan Homes [2008] NSWCA 246 external site applied)
7. The worker misunderstood the relationship between s 4(b) external site and ss 15 external site and 16 external site of the 1987 Act external site . There was no issue as to whether the nominated employer was the “last” employer who employed the worker in employment to the nature of which the injury was due, nor was there an issue as to fixing of a date of injury. Therefore, the Arbitrator did not need to consider ss 15 or 16 of the 1987 Act external site . ([91]-[93])
(Blayney Shire Council v Lobley 1995] 12 NSWCCR 52 external site ; Ambulance Service of NSW v Daniel [2000] NSWCA 116 external site ; 19 NSWCCR 697 external site , Crisp v Chapman [1994] NSWCA 73 external site ; 10 NSWCCR 492 external site and Kelly v Glenroc Pastoral Co Pty Ltd [1994] 10 NSWCCR 178 external site distinguished)
8. Ground 1 failed. ([97])
9. The worker’s submission that the Arbitrator found he suffered from a disease contracted in the course of his employment as a shearer was wrong. In any event, no relevant submissions were advanced in support of this ground. Ground 2 failed. ([98]-[102])
10. The worker’s submission that the Arbitrator misapplied the decision in Ireland and that it should have been distinguished on the facts was wrong. The Arbitrator acknowledged the factual distinction but correctly considered that Ireland required her to take into account all of the evidence. The Arbitrator did not err in applying Ireland. Ground 3 failed. ([103]-[109])
Popovic v Liverpool City Council [2017] NSWWCCPD 49 external site
Whether a ‘general order’ pursuant to s 60 external site of the 1987 Act external site satisfies the monetary threshold for an appeal; 352(3) external site of the 1998 Act external site
Keating P
10 November 2017
Facts
The worker was employed as an early childhood education officer. Her duties required her to use her hands repetitively which, she alleged, caused a physical injury or an aggravation of a pre-existing disease condition. It is also alleged that she suffered a secondary psychological injury. The Arbitrator found that the worker had suffered such injuries but that the effects of both injuries ceased on 10 May 2017. The employer was ordered to pay the worker’s hospital and medical expenses in respect of the injury as found.
This appeal challenged the Arbitrator’s findings that the effects of the injuries ceased on 10 May 2017. As the case unfolded before the Arbitrator, the claim for weekly compensation was abandoned and the matter proceeded only in respect of the hospital and medical treatment. The worker sought a general order for the payment of her hospital and medical expenses, without particularisation and clarification of the amount of compensation sought.
This appeal concerned whether the amount of compensation at issue on the appeal satisfied the monetary threshold required by s 352(3) external site of the 1998 Act external site . Section 352(3) external site provides that there is no right of appeal unless the amount of compensation at issue on appeal is both at least $5,000 and 20% of the amount awarded in the decision appealed against.
Held: The monetary thresholds in s 352(3) external site of the 1998 Act external site were not met and there was no right of appeal.
Consideration
1. The President rejected the worker’s submission that because she had pleaded $5,000 in the Application to Resolve a Dispute (the Application), as the amount sought in compensation, any threshold issue under s 352(3) external site was satisfied. The worker abandoned that claim on the first day of the hearing and the matter proceeded on the basis of a claim only for a general order for medical and hospital expenses. ([25])
2. The reference to a claim for “$5,000” pleaded in the Application was not decisive of whether the monetary threshold had been satisfied. What was decisive was the way in which the Application was run and decided, namely, on the basis of a claim for a general order for medical expenses rather than a claim for any quantified sum. ([26]-[28])
(Banque Commerciale SA (In Liquidation) v Akhil Holdings Ltd [1990] HCA 11 external site ; 169 CLR 279 external site and Chanaa v Zarour [2011] NSWCA 199 external site considered and applied)
3. The order made by the Arbitrator did not determine the entitlement of the worker to recover any specific expenses. Such expenses may potentially be recovered if there is a proper evidentiary basis to do so. Notwithstanding the Arbitrator’s award, it remained open to the respondent to dispute any claimed medical expenses on the basis of a lack of proven causation or whether such expenses were reasonably necessary.
(Inghams Enterprise Pty Ltd v Grigor [2017] NSWCCPD 23 and NSW Department of Education and Communities v Murray [2012] external site NSWWCCPD 76 external site applied
Fine Meats (Boners PM) Pty Ltd v Hart [2007] NSWWCCPD 164 external site distinguished)
4. It followed that the monetary threshold in 352(3) external site of the 1998 Act external site was not satisfied and there was no right of appeal. ([32]-[33])
NSW Police Force v Hahn [2017] NSWWCCPD 51 external site
Whether the Arbitrator was correct to find that the respondent worker had suffered incapacitating injury in the form of a psychological condition arising out of or in the course of his employment; whether the Arbitrator was correct to find that s 9A external site of the 1987 Act external site had been satisfied upon the evidence
King ADP
29 November 2017
Facts
The respondent worker was a police officer who had undertaken general duties prior to being a police prosecutor and teacher at the Police Academy. He alleged that he suffered post-traumatic stress disorder and/or major depressive disorder. He made a claim for compensation alleging injury suffered in the course of his employment as a police officer where he was exposed to traumatic incidents resulting in psychological injury deemed to have occurred on 9 August 2012.
The appellant employer denied liability on the basis that the worker had not suffered injury. It also denied liability on another two alternative bases. The first was that if the worker suffered a psychological injury, it was caused by events unrelated in any relevant fashion to his employment. The second was that, if there were any employment connection, the whole or predominant cause was reasonable action taken or proposed to be taken by the appellant with respect to performance appraisal and discipline pursuant to s 11A external site of the 1987 Act external site .
The worker said that in his duties as a general duties police officer, he was exposed to a number of unpleasant and stressful events. He said that his stress at work had built up and became intolerable. In 2008, he transferred to the prosecution branch where he undertook duties as a police prosecutor. The worker coped with the workload initially; however, he became stressed when his workload became heavier. In 2011 he sought, and was granted, the opportunity to undertake a secondment to the Goulburn Police Academy as a teacher. Following the conclusion of the secondment, the worker returned to his duties as a prosecutor.
The worker said that he was exposed to additional stress in his day to day dealings with several superiors and was bullied and harassed. During this time, the worker’s partner was charged with criminal offences, which were ultimately dismissed. The employer asserted that the criminal charging of the worker’s partner contributed to any psychological injury suffered by the worker. In 2013, the worker was charged with a number of criminal offences that he said was frivolous and precipitated by his former partner. The worker said that a number of complaints were made against him, including that he was taking drugs and destroying computer hard drives that contained illicit images. In a statement, the worker said that these complaints were vexatious. The worker conceded that he had taken a holiday to Thailand while on sick leave, for which he was issued with a formal warning.
The Arbitrator found that the worker suffered psychological injury arising out of or in the course of employment for which employment was a substantial contributing factor. He ordered that the employer pay the worker weekly compensation and his s 60 external site expenses. The employer appealed.
The issues on appeal were whether the Arbitrator:
(a) “erred in law or otherwise denied the appellant procedural fairness by failing to provide adequate reasons in determining that the respondent was injured arising out of or in the course of employment and that such injury was caused pursuant to s 9A external site by employment alternatively committed a jurisdictional error in so doing” (Ground No 1);
(b) “denied the appellant procedural fairness by failing to give adequate reasons as to why he accepted Dr Smith [treating psychiatrist] and Dr Selevstratan [qualified by the insurer] over Dr Roberts [qualified psychiatrist for the appellant]” (Ground No 2), and
(c) “erred in his determination of whether or not the worker had discharged his onus of proof and causation pursuant to s 9A external site of the 1987 Act external site ” (Ground No 3).
Held: The Amended Certificate of Determination dated 10 May 2017 was confirmed.
Disposition
1. Acting Deputy President King dealt with all three grounds of appeal together. ([50])
2. He held that the onus in the appeal lies upon the appellant to show that the findings upon which the learned Arbitrator’s decision depended were not open to him. That is, that they were not fairly supported by the evidence, and/or the evidence, properly evaluated, demonstrated a contrary view which ousted the view taken by the Arbitrator. ([57])
(Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 external site ; 10 DDCR 156 external site at [19]; Whiteley Muir and Zwanenberg Ltd v Kerr (1996) 39 ALJR 505 external site at 506 per Barwick CJ, and Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30 external site ; 140 ALR 227 external site ; 71 ALJR 29 applied).
3. In relation to Ground No 3, Acting Deputy President King held that the appellant’s reliance on Roser v State of NSW [2016] NSWWCC 267 external site (Roser) was misplaced. He distinguished Roser as it was a factual decision, not a legal one. He observed that it did not, and did not purport to, state or restate by way of alteration or modification any principle of law. Whilst like cases should be decided alike, only legal principles have binding precedential value. ([58])
4. The Acting Deputy President was of the view that the whole tenor of the Arbitrator’s reasons was that he accepted that the respondent’s condition had multiple causes, one of which was an aggravation from non-work related factors, but that the overall condition would not have existed in its incapacitating totality without the contribution of work related stressors. ([58])
(Calman v Commissioner of Police [1999] HCA 60 external site ; 73 ALJR 1609 external site ; 167 ALR 91 and Conkey and Sons Ltd v Miller (1977) 51 ALJR 583 external site ; 16 ALR 479 applied)
5. In relation to Ground 1 and 2, Acting Deputy President King held that the reasons given by the Arbitrator amply showed that he determined the case by preferring the evidence of Dr Smith in particular, but also the evidence of other expert witnesses which supported the worker, and by rejecting the evidence of Dr Roberts in his second report. ([62])
6. He observed that the essential propositions were uncontroversial and the important thing is that the reasons should give assistance to any appellate court called upon to consider them by indicating how the case was decided, and should explain to the parties, especially the losing party, how the result was arrived at and why the losing party lost. If they meet that standard, they need not be lengthy, elaborate or exhaustive and they need not deal with every feature of the case. ([61])
7. The Acting Deputy President thought that it was clear enough that the Arbitrator, in the reasons he gave, concluded that the answer to both those questions favoured the respondent. Acting Deputy President King held that it was clear enough that the Arbitrator conformed to the essential requirements of giving judicial reasons. ([60]–[62])
(Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, at 443–444; Mifsud v Campbell (1991) 21 NSWLR 725 external site , at 728 (Samuels JA (Clarke JA and Hope AJA agreeing)); Roncevich v Repatriation Commission [2005] HCA 40 external site , at [64] (Kirby J); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 external site , at 280 (McHugh JA) applied
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 external site ; 59 ALJR 844 external site ; 62 ALR 85; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 external site ; 52 NSWLR 705 external site ; 25 NSWCCR 218; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 207 external site ; 234 FCR 549 external site , and Dasreef Pty Ltd v Hawchar [2011] HCA 21 external site ; 243 CLR 588, at 604 referred to)
8. The Acting Deputy President concluded that the Arbitrator did not fall into error in concluding that the worker’s incapacity and need for medical treatment were causally related to stressors in the course of his employment with the appellant and that both s 4 external site and s 9A external site were satisfied. He held that the appellant’s three grounds of appeal had not been made out and the appeal should be dismissed. ([63]–[64])