Issue 4: August 2018

The issues on appeal were whether the Acting Deputy President erred in:

(a) finding that the relevant ‘injury’ causing death was the ‘aggravation, acceleration or exacerbation of the asthma condition leading to the acute asthma attack’, rather than the aggravation, exacerbation or deterioration of the asthma attack and/or the cardiac arrest, each having been substantially contributed to by the unavailability of necessary medical treatment at the remote location where the asthma attack occurred by reason of the worker’s employment;

(b) failing to find error by the Arbitrator in misidentifying the relevant ‘injury’ as the preexisting asthma condition;

(c) failing to determine the dispute before him by failing to address the case that the injury causing death was the aggravation, exacerbation or deterioration of the asthma attack and/or the cardiac arrest, each having been substantially contributed to by the unavailability of necessary medical treatment at the remote location at which the acute asthma attack occurred by reason of the worker’s employment;

(d) failing to find error by the Arbitrator in failing to address the case that the injury causing death was the aggravation, exacerbation or deterioration of the asthma attack and/or the cardiac arrest, each having been substantially contributed to by the unavailability of necessary medical treatment at the remote location at which the acute asthma attack occurred by reason of the worker’s employment;

(e) failing to apply s 9A of the 1987 Act to the relevant ‘injury’ and failing to find that s 9A was satisfied in relation to that or those injury or injuries;

(f) failing to find that the Arbitrator erred by failing to apply s 9A to the relevant ‘injury’ and failing to find that s 9A was satisfied;

(g) failing to find that the Arbitrator erred by failing to apply s 9A in respect of the aggravation, exacerbation or deterioration of the asthma attack and/or the cardiac arrest, he having found that the ‘location of events may have been a substantial contributing factor to the worker’s death; it was not such a factor to her injury’;

(h) failing to find that the claimant was entitled to compensation pursuant to the 1987 Act in respect of the death of the worker, and

(i) failing to apply s 352(6) of the 1998 Act to a consideration of the correct injury or injuries causing death.

Held: The appeal was dismissed with costs.

Procedural history

1. Before the Arbitrator, the respondent submitted that the issue was whether or not the passing of the worker was an injury to which the worker’s employment was a substantial contributing factor. On no view can that be correct, having regard to the terms of s 25. Compensation is only payable if “death results from injury”. The death cannot be the injury. It is one thing to describe the mechanism of death; it is another thing entirely to identify the “injury” for the purposes of a claim under s 25. ([11], [33])

2. The appellant submitted that the Acting Deputy President had failed to identify error in the decision of the Arbitrator when the Arbitrator himself had failed to address whether the injury was the exacerbation of the asthma attack or the anoxia or the cardiac arrest. As the respondent submitted, that case did not form part of any of the 11 alleged errors raised before the Acting Deputy President or in the written submissions in support. Accordingly, there was no error, still less any error in point of law, in failing to make findings in accordance with a case which was not put to the Acting Deputy President. ([16])

3. The Acting Deputy President identified the 11 grounds of appeal at the outset of his reasons and that not all of them were pursued in the appellant’s extensive written submissions. Nowhere was any challenge made to the approach taken by the Arbitrator that the “injury” was the deceased’s asthma which had been aggravated or exacerbated when she suffered the asthma attack around the time her bus was leaving Nevertire. ([19])

4. The appellant failed to pay heed to the limited right conferred by s 353 of the 1998 Act. Not one of the grounds of appeal, even as amended after the hearing in the Court of Appeal, mentioned the requisite point of law on which the appeal is necessarily founded. ([23])

5. Grounds 2–7 asserted failures to identify the Arbitrator’s error in not addressing the correct injury and failures by the Acting Deputy President himself to apply a relevant provision of the Act to that correct injury. The short answer to each of those grounds was that a failure to make a finding, either at first instance or on appeal, that was not sought cannot be an error, let alone an error of law. ([24])

6. Ground 1 correctly recorded what the Acting Deputy President found as to the injury and complained that he failed to find that the acute asthma attack was the injury. In substance, that was the same as grounds 8 and 9 – it was a complaint that the Acting Deputy President failed to find something he was not asked to find. Ground 8 merely stated the ultimate conclusion for which the appellant contended without identifying any discrete error of law. Ground 9(a) concerned a failure to admit fresh evidence. However, it too resolved to the same issue. ([25]–[27])

The difficulty in establishing causation in any event

7. It should not be thought that the outcome in the Court of Appeal would be otherwise if the appeal were less narrowly confined than it was. ([34])

8. The issue of causation required a counterfactual analysis as to what could have occurred if the asthma attack had commenced while the worker was in Brewarrina. The critical matter in the present case was that, on the unchallenged findings of primary fact, the worker continued to drive the vehicle for 25‒30 minutes after the onset of the asthma attack, and only pulled over when asked to do so by one of the passengers. At that stage, there was a very short period, of a matter of a few minutes, within which her life could be saved. Throughout the previous 25‒30 minutes, the deceased had taken no steps to address her condition, and in particular, had not sought to administer Ventolin (which she had in the vehicle with her). There were also two nurses in the vehicle with her. Hence the force of the conclusion by the Arbitrator that he could not be satisfied that the assumptions that the worker immediately recognised the seriousness of the attack and would have been able, had she been in Brewarrina, to get herself to the hospital in time, could be made out. ([35])

9. On no view of the meaning of s 9A could the worker’s employment be causally connected with any formulation of the injury unless the worker would more likely have rapidly appreciated that she was suffering a severe asthmatic attack. It was plain from the reasons of the Arbitrator that he could not make any such finding. The Acting Deputy President addressed the point squarely and concluded that it was open to the Arbitrator to draw (or more precisely, fail to draw) the inference that he did. ([37])

10. There was no error, let alone error in point of law, in the reasoning of the Acting Deputy President. ([39])

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

(a) in finding that a favourable determination in respect of weekly payments, whether by operation of law or decision of an insurer, could not constitute an award within the meaning of s 53 of the 1987 Act;

(b) in the alternative, in failing to consider whether a favourable determination in respect of weekly payments, by operation of law or decision of an insurer, could constitute an award within the meaning of s 53 of the 1987 Act;

(c) in the alternative, in finding that the insurer had not raised a dispute about the worker’s entitlements to weekly compensation, and

(d) in the alternative, in finding that the Commission had no jurisdiction to resolve a dispute about weekly compensation.

Held: The Arbitrator’s Certificate of Determination was confirmed.  

Grounds (a) and (b)

1. The issue on appeal was whether the making of an “award” of compensation is within the exclusive domain of the Commission or whether it may extend to an insurer. That is, whether the making of payments after the second entitlement period could constitute an award as contemplated by s 53 of the 1987 Act, and therefore enliven the jurisdiction of the Commission or an Approved Medical Specialist to issue a determination or certification under s 53 of the 1987 Act. ([103])

2. The President observed several references to the term “award” in the context of the Commission’s power. He did not accept that a favourable determination by an insurer pursuant to s 38(2) of the 1987 Act concerning current work capacity “constituted an award” in the worker’s favour, merely because it was an assessment by the entity in which the power resided to make that decision, namely, the insurer. ([104]-[106])

3. A decision by an insurer cannot be conflated with a decision or award of the Commission for the purpose of satisfying a jurisdictional fact necessary to invoke the Commission’s jurisdiction under s 53 of the 1987 Act. ([108])

4. The text of s 53 of the 1987 Act is plain. It restricts the application of s 53 of the 1987 Act to workers who cease to reside in Australia where the worker is receiving or entitled to receive a weekly payment of compensation under an award. There was no dispute in this case that the worker was not receiving or entitled to receive compensation pursuant to an award of the Commission. He was receiving voluntary payments of weekly benefits until they were suspended by the insurer due to a purported failure to comply with s 53 of the 1987 Act. ([110])

(Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 considered and applied)

5. The use of the words in s 53 of the 1987 Act “under an award” must have meaning and must be given work to do. The preferred construction of the words “under an award” in s 53 of the 1987 Act refers to the Commission’s power to make orders or “awards” with respect to compensation benefits. It does not extend to a decision of an insurer. ([112])

(Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 considered and applied)

6. To accept the worker’s submission would impermissibly read words into s 53 of the 1987 Act so that “an award” meant “an award [or decision of an insurer (actual or deemed)]”, which would be “too much at variance with the language in fact used by the legislature” and therefore is not permitted. ([113]-[115])

(Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9 considered and applied)

7. The President rejected the submission that the making of payments after the second entitlement period could constitute an award as contemplated by s 53 of the 1987 Act which brought the worker within the purview of that section. ([118])

Ground (c)

8. The President did not accept the worker’s submission that the Arbitrator erred in finding that the insurer had not raised a dispute as to the worker’s entitlement to weekly compensation. There was no dispute that the worker was unable to undertake his pre-injury occupation as a panel beater and spray painter. In any event, had there been a dispute the Arbitrator would not have had jurisdiction to resolve it due to the restrictions on the Commission’s jurisdiction to award compensation after the expiration of the second entitlement period. ([121]-[126])

(Lee v Bunnings Group Limited [2013] NSWWCCPD 54 (Lee) applied)

Ground (d)

9. The worker submitted that the Commission has jurisdiction to make an award for weekly compensation under s 38 of the 1987 Act by operation of cl 17 of Sch 8 to the 2016 Regulation, which deems a worker to be taken (until a work capacity assessment is conducted) to have been assessed by the insurer as having no current work capacity. The President did not accept the submission. ([133])

10. Firstly, it was not open on appeal for the worker to argue the Arbitrator erred in not dealing with cl 17 as it was not raised as an argument in the proceedings. ([134])

11. Secondly, cl 17 of Sch 8 did not enliven the Commission’s jurisdiction to make an award under s 38 of the 1987 Act. That is because workers with no current work capacity have no entitlement to further weekly benefits after the expiration of the second entitlement period, unless the worker is assessed by the insurer as having no current work capacity and is likely to continue indefinitely to have no current work capacity (s 38(2) of the 1987 Act). The benefit of any deemed assessment of work capacity by operation of cl 17 of Sch 8 only has application until a work capacity assessment is undertaken by the insurer. The deeming effect of the clause is not the same as the satisfaction of the precondition to the assessment of entitlement under s 38(2) of the 1987 Act, by the Commission. It does not enliven the Commission’s jurisdiction to enter an award under s 38 of the 1987 Act and in turn does not satisfy the jurisdictional fact required to exercise power pursuant to s 53 of the 1987 Act.  ([135]-[137])

12. Even if the Commission accepted that the insurer had assessed the worker as having no current work capacity, the President was not satisfied that that the insurer made an assessment that the worker was likely to continue indefinitely to have no current work capacity. ([138])

13. An entitlement to compensation under s 38 must be assessed by an insurer, not by the Commission. While there may be a factual distinction between the present matter and Lee, the outcome is the same, namely that the Commission is precluded from making an award because the preconditions to entering an award pursuant to s 38(2) of the 1987 Act have not been satisfied. That is because the insurer has not made a work capacity assessment that deals with both limbs of s 38(2), and therefore the Commission has no jurisdiction to enter an award until the insurer assesses the worker’s ongoing entitlements. ([139]-[140])

14. As the worker was not a worker receiving or entitled to receive weekly payments of compensation under an award, s 53 of the 1987 Act had no application. It followed that the Commission lacked jurisdiction to make an award for weekly payments after the second entitlement period. ([142])

Consideration

1. A journey claim under s 10(3A) of the 1987 Act will only arise if a worker’s journey otherwise satisfies the requirements of s 10 of the 1987 Act. If those requirements are satisfied, s 10(3A) of the 1987 Act will be satisfied if it can be established that there was a real and substantial connection between the employment and the accident or incident out of which the personal injury arose. ([68])

2. The test to be applied under s 10(3A) of the 1987 Act is a different and less demanding test to that applied to establish that an injury arose out of or in the course of employment pursuant to s 4 of the 1987 Act. The test under s 4 of the 1987 Act requires a causative element which is to be inferred from the facts as a matter of commonsense.[Field] The test under s 10(3A) of the 1987 Act of a “real and substantial connection” may, but does not necessarily, convey the notion of a causal connection. It requires an association or relationship between the employment and the accident or incident, which may be provided by establishing that the employment caused the accident or incident. However, employment does not have to be the only, or even the main cause. ([69])

(Nunan v Cockatoo Island Docks & Engineering Co Ltd [1941] NSWStRp 23; 41 SR (NSW) 119; March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506; Bina v ISS Property Services Pty Ltd [2013] NSWWCCPD 72; Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden [2014] NSWWCCPD 13 considered)

3. The Arbitrator’s findings on s 10(3A) of the 1987 Act did not depend on a favourable finding that the worker discharged her onus of establishing that the injury arose out of or in the course of her employment. ([70])

4. The only factors identified from the evidence as contributing to the fall were the raised paver, and the fact that the worker was tired and hurrying. Whether any of these factors were connected to the accident or incident out of which the personal injury arose was a question of fact. ([71])

5. It was not disputed that the worker was hurrying and tired at the time of the incident. The issue in dispute was whether those factors established, as the Arbitrator found, a real and substantial connection between the employment and the injury. That required the drawing of an inference. ([72])

6. The President observed that the drawing of an inference is “an exercise of the ordinary powers of human reason in the light of human experience”.In a civil case, “you need only circumstances raising a more probable inference in favour of what is alleged”. Error is unlikely to be established where all that is shown is that the trial judge (or arbitrator) made a choice between competing inferences, being a choice that the appellate court might not have made but not a choice the trial judge (or arbitrator) should not have made. ([73])

(G v H [1994] HCA 48; 181 CLR 387; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; 35 FCR 359 considered)

7. The only evidence regarding the issue of tiredness and hurrying was found in the worker’s uncontested evidence. In assessing the weight to be attached to that evidence in drawing a factual conclusion, the President observed that while there were no contemporaneous materials of relevance there were objectively established facts and an apparent logic of events. The worker’s unchallenged evidence provided a logical explanation for the cause of the fall, namely, she was tired; it being the end of the year and the end of a day’s work in combination with the unchallenged fact that she was hurrying to get to the party on time and the presence of a raised paver on the pathway. The Arbitrator did not err in accepting that evidence. ([74]-[81])

(Fox v Percy [2003] HCA 22; 214 CLR 118; M & E M Hull Pty Ltd v Thompson [2001] NSWCA 359; Hamod v State of New South Wales [2011] NSWCA 375 considered and applied)

8. The Arbitrator’s finding that common sense suggested that fatigue reduces awareness and reaction time and therefore was a contributing factor to the worker tripping on the raised paver was an appropriate exercise in the ordinary powers of human reason in light of human experience. It was an inference that was reasonably open to be drawn, from the established facts, and did not involve error. ([82])

(G v H [1994] HCA 48; 181 CLR 387 applied)

9. The uncontested evidence was that the worker finished work at 5.15 pm. She arrived at the hotel where she was to spend the night at about 5.30 pm. To be at the Christmas party on time, that provided a window of only 30 minutes to shower and dress, meet with her colleague and proceed to the Christmas party venue. While there was no evidence that the worker was required to be at the party by 6 pm, her unchallenged evidence was that she perceived a need to be at the Christmas party on time and therefore was in a hurry to get there by 6.00 pm. It was open to the Arbitrator to accept that evidence. ([83]-[84])

10. The Arbitrator was correct to conclude that the combination of being both tired and hurrying due to employment was sufficient to satisfy the requirements of s 10(3A) of the 1987 Act, in that there was a real and substantial connection between the employment and the accident. That was a finding of fact that was open to the Arbitrator on the uncontested evidence presented. The appellant did not establish error. ([85])

(Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 considered and applied)

The issues on appeal were whether the Arbitrator erred in her construction of s 17 of the 1987 Act, by:

(a) failing to interpret s 17 according to its ordinary meaning;

(b) “conflating” the concept of “employment” with “employer”;

(c) failing to properly consider and apply the reasoning in CIC Workers’ Compensation (NSW) Ltd v Alcan Australia Ltd (1994) 35 NSWLR 169 (CIC), which dealt at length with the phrase “employment to the nature of which the disease was due”, and

(d) applying StateCover Mutual Ltd v Cameron [2014] NSWWCCPD 49 (Cameron), in which s 18 of the 1987 Act was considered, not s 17, and s 18 does not contain the phrase “employment to the nature of which the injury (or disease) is due”.

Held: The Arbitrator’s Certificate of Determination dated 26 March 2018 was confirmed.

The ordinary meaning of s 17

1. Section 17 of the 1987 Act is a specific provision confined to deeming a date of injury and to identifying the employer liable for a loss or further loss of hearing that is of such a nature as to be caused by a gradual process, often referred to as “boilermaker’s deafness” or “industrial deafness”. Subsection (1)(c) provides that in circumstances where the worker was no longer employed in noisy employment, the compensation is payable by the last employer who employed the worker “in an employment to the nature of which the injury was due”. ([74])

2. Section 15 of the 1987 Act also provides for the fixing of a deemed date of injury and identification of the employer liable, but in cases of diseases of gradual onset. The section expressly excludes injuries to which s 17 applies. In circumstances where the worker is no longer employed in employment to the nature of which the disease is due, s 15(1)(b) similarly provides that compensation is payable by the last employer who employed the worker “in an employment to the nature of which the disease was due”. ([75])

3. Section 18 is described as “Special insurance provisions relating to occupational diseases” and its purpose is to determine which insurer is liable to pay compensation for such injuries. The application of s 18 is a step to be taken after a deemed date of injury is established and the employer liable for the injury has been determined, either in accordance with ss 15, 16 or 17 of the 1987 Act. Section 18(1) provides that despite ss 15 and 16, in circumstances where the deemed date of injury established under ss 15 or 16 is after the worker ceased employment with the employer found to be liable pursuant to ss 15 or 16, the injury is taken to have arisen immediately before the worker ceased work with that employer. ([76])

4. All three sections share the same objective – that is, to avoid unnecessary litigation, simplify the assignment of liability and remove the debate about “true causation”. The Arbitrator discussed the common purpose of the three provisions. She recognised that Cameron dealt with ss 15 and 18 and not s 17, but noted that the sections were in similar terms. ([77])

5. It was clear from the Arbitrator’s decision that she gave consideration to the text of s 17. She reviewed the evidence, the worker’s submissions and she referred to Roche DP’s decision in Cameron and his consideration of StateCover’s argument in that case, which was the same argument the worker made in this case, that is that liability should fall on the date of last exposure. The Arbitrator quoted Roche DP, who said that the authorities made it crystal clear the assertion made by StateCover was not the way ss 15 and 18 worked. The Arbitrator acknowledged that Cameron did not deal with s 17, but the words of the section were in similar terms to those of ss 15 and 18. Adopting the same approach as in Cameron, the Arbitrator said she was not to look behind employment with Rural Fire Service from 1989 to 1997 to the nature of the work that was being performed in different periods within the Rural Fire Service. The Arbitrator’s reasons disclosed that she clearly turned her mind to the text of s 17(1)(a)(ii) and what was required in order to determine the issue of “last noisy employer”. ([78]–[81])

Conflation of the concept of “employment” with “employer”

6. The Arbitrator considered the context and purpose of the provision, which was consistent with a proper consideration of the statutory meaning of the text. She relied on Cameron as authority that the contention by the worker as to how the text ought to be construed was, to use the words of Roche DP, “fundamentally wrong”. ([82])

(Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 (Alcan NT) applied)

7. The Arbitrator’s approach was consistent with a long list of authorities in relation to the phrase “in employment to the nature of which the [injury or] disease is due” as it appears in s 17(1)(a)(ii) and s 15(1)(b) of the 1987 Act. ([83])

8. The worker’s employer when he ceased noisy work remained his employer beyond the period when he worked with Commonwealth Steel. The Arbitrator rejected the notion that there were two distinct “employments” with the Rural Fire Service and that finding had not been challenged on appeal. The Rural Fire Service was clearly an employer who employed the worker “in an employment to the nature of which the injury was due” and he remained in the employ of the Rural Fire Service beyond his employment with Commonwealth Steel. In line with the below authorities and for the purposes of s 17, it is not necessary or correct to identify a precise time when the injury occurred or to isolate certain duties performed during the whole period of employment with a noisy employer. ([90])

(Smith v Mann [1932] HCA 30; 47 CLR 426; Commonwealth v Bourne [1960] HCA 26; 104 CLR 32; Blaney Shire Council v Lobley (1995) 12 NSWCCR 52 applied)

9. The Arbitrator observed that the deemed employment of a volunteer within cl 13 of Sch 1 to the 1998 Act did not distinguish between someone who volunteered to fight fires and a volunteer in the control room. This was indicative of a continuing employment relationship rather than two separate employments. ([91])

10. The worker made his claim after cessation of employment with both the Rural Fire Service and Commonwealth Steel. Following the admission by the parties that the Rural Fire Service was “noisy employment”, the Arbitrator was correct in applying s 17(1)(a)(ii) and identifying the last noisy employer as the Rural Fire Service. ([93])

Failure to apply CIC

11. The worker asserted that because the phrase “employment to the nature of which the disease [or injury] was due” is in identical terms in both s 151AB and s 17(1)(a)(ii), the Arbitrator erred by not applying CIC. Deputy President Wood held the worker’s reliance on CIC was misplaced. ([94]–[95])

12. The dichotomy between damages on the one hand and statutory compensation on the other is relevant. Although the starting point of statutory construction is to look at the words themselves, in line with Alcan NT, consideration of the context and general purpose of a provision is a consideration consistent with the principles of statutory construction. Section 151AB was introduced for the purpose of identifying an insurer to meet payment of damages in respect of a claim independent of the 1987 Act. Sections 15 and 17 were introduced to create an easy pathway to enable workers to access statutory entitlements in cases where proof of an employer’s liability was difficult. ([96]–[97])

13. It was relevant that in respect of a claim for statutory entitlements, s 18 (not s 151AB) provides for identification of the relevant insurer for the purposes of ss 15 and 17. Section 151AB(1) is limited as to its application, expressed as having “effect for the purposes of any policy of insurance obtained by the employer”. ([100])

14. The current claim was a claim for statutory compensation. Adopting the views of Roche DP, it followed that CIC, a case relevant to nominating an insurer to meet a claim for damages for a negligent act, did not apply in respect of what is required to satisfy ss 15 and 17 of the 1987 Act for the purposes of determining the liability of an employer in a “no fault” statutory system. ([101])

15. In CIC, no argument was put forward that there was a distinction between what ought to be required for the purpose of establishing the liability of an insurer for damages and that which was required for fixing the liability of an employer in a statutory scheme. Nor was it put that it was relevant to look at the different purpose for which s 151AB was enacted. ([102])

16. The further difficulty the worker had in relying on CIC was that the Arbitrator did not simply determine the matter on the basis of the contractual relationship. The worker conceded that the employment with the Rural Fire Service was of a character to be classed as “noisy employment” and the Arbitrator was entitled to rely on that concession. ([104])

17. The worker, in arguing that the later particular duties should result in a finding of no liability, was in effect seeking to extend the phrase to include a requirement that the exposure to noise must have persisted while he was in employment with the Rural Fire Service beyond the time of ceasing work for Commonwealth Steel. Such an assertion is contrary to law. As Sheller JA said in Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679; 8 NSWCCR 515, “Section 17 deems the injury here suffered to have happened at a particular time for the purposes of the Act. The time the injury actually happened is irrelevant.” ([106])

Applicability of Cameron

18. The worker contended that the decision in Cameron is confined to the interpretation of s 18 and not s 17. ([107])

19. The premise upon which the Arbitrator looked at the Presidential decision in Cameron was on the basis that while Cameron dealt with ss 15 and 18, the case before her was analogous because the sections were deeming sections for the provision of a fixed date of injury and for fixing liability in a statutory scheme for workers who had contracted a disease of gradual process. As in Cameron, the Arbitrator determined that CIC did not apply as s 151AB is not relevant to the deeming provisions in a scheme of statutory entitlements. ([108])

20. Consistent with Cameron and the other authorities above, the Arbitrator concluded she was not to look behind the “employment” with the Rural Fire Service from 1989 to 1997 to investigate the nature of the work performed in different periods with the Rural Fire Service. ([109])

21. In StateCover Mutual Ltd v Cameron [2015] NSWCA 127 (Cameron No 2), Basten JA referred to the appellant’s reliance on CIC, and said that CIC was of no assistance because it dealt with s 151AB of the Act, not s 18. Deputy President Wood did not accept the submission that the Court of Appeal accepted that CIC was “good law”. Even if it did, that did not mean that it had relevance to this case. ([112])

(Cameron No 2, [14] applied)

The issues on appeal were whether the Senior Arbitrator erred:

(a) in fact, law or discretion by finding that Ms Leggett sustained a psychological injury within the meaning of s 4 of the 1987 Act (Ground 1);

(b) in law by finding that Ms Leggett discharged her onus of proof on causation in ss 4 and 9A of the 1987 Act (Ground 2);

(c) in law by misapplying the test for causation in ss 4 and 9A of the 1987 Act (Ground 3);

(d) in fact, law and discretion in failing to properly consider the inadequacy of the worker’s medical evidence (Ground 4);

(e) in fact and discretion by finding that the events raised by the worker did in fact occur as alleged (Ground 5);

(f) in finding the worker’s perception of events was sufficient to characterise the events as bullying and harassment (Ground 6);

(g) in law in determining the matter on a basis not put by or to the parties (Ground 7);

(h) by dismissing Hawkesbury’s defence under s 11A of the 1987 Act (Ground 8), and

(i) by:

(i) failing to give adequate reasons;

(ii) failing to properly consider and evaluate the evidence;

(iii) accepting and preferring the worker’s medical evidence, and

(iv) failing to assess and properly take into account Mr Rudolph’s credit (Ground 9).

Held: The application to admit new evidence was refused and the Certificate of Determination dated 7 December 2017 was confirmed.

Grounds 1–5

1. The grounds of appeal were poorly drafted and the submissions made by the employer in respect of the first seven grounds were difficult to relate to any one ground of appeal. The grounds were expressed in terms of errors as to the findings of injury within the meaning of s 4 of the 1987 Act, causation of the injury, the onus of proof and the inadequacy of the medical evidence. The employer’s submissions appeared to be founded on allegation of error in the Senior Arbitrator’s acceptance that real events occurred. It was said this acceptance led the Senior Arbitrator to determine erroneously that the worker’s medical case had been made out, and that her psychological injury was caused by events occurred therefore defeated the s 11A defence raise by the employer. ([209])

2. The Senior Arbitrator correctly identified that his first task was to determine whether the events complained of by the worker did in fact occur. In his consideration, the Senior Arbitrator noted that Mr Rudolph denied many of the worker’s allegations, but conceded that some occurred. ([210])

3. While the Deputy President accepted that Mr Rudolph disputed that he conducted himself in the manner alleged by the worker, he did not dispute the events themselves (the conversations and the emails) occurred. ([217])

4. The Senior Arbitrator took into account all of the evidence in reaching his conclusion that the events were real and not imaginary and the worker had a reaction to them. It was open to the Senior Arbitrator to make these findings of fact. Findings of fact will not normally be disturbed if they have rational support in the evidence. The Senior Arbitrator provided a rational basis, supported by the evidence, for his finding and no error was established. ([220])

(Fox v Percy [2003] HCA 22; 214 CLR 118, 125–126 applied)

5. It was incumbent on the Senior Arbitrator to consider and weigh all of the evidence, which he did. In doing so, he compared the assertions made by Mr Rudolph in his statement to the email evidence. The email evidence indicated his tone and manner were not consistent with his statement and provided a proper basis on which the Senior Arbitrator formed the view that he preferred the worker’s version of events. ([223])

6. It was open to the Senior Arbitrator to accept those medical opinions once it was established that the events occurred. As the Senior Arbitrator observed, there was no evidence that there were any external factors that caused or contributed to her condition. Given the medical evidence available, the submission made at arbitration by Hawkesbury was the only evidence based submission that could properly be made by it. The Senior Arbitrator did not accept that proposition. He rejected it after a consideration of all of the factual and medical evidence. His reasons disclose no error and the finding was open to him. Grounds 1–5 failed. ([225], [227]–[228])

Ground 6: Error in finding Ms Leggett’s perception of events was sufficient to characterise the events as bullying and harassment

7. The Senior Arbitrator correctly identified that his first task was to consider whether the events relied on by the worker occurred. The Senior Arbitrator determined that he was satisfied that the events alleged by the worker did occur and were real, rather than imaginary. ([231]–[233])

(Attorney General’s Department v K [2010] NSWWCCPD 76; 8 DDCR 120, (Attorney General’s Department v K) and State Transit Authority v Chemler [2007] NSWCA 249; 5 DDCR 287 (Chemler) applied)

8. The reasoning process of the Senior Arbitrator was consistent with the principles enunciated in Chemler and in Attorney General’s Department v K and did not disclose error. ([234])

Ground 7: The Senior Arbitrator erred in law in determining the matter on a basis not put by or to the parties

9. Seltsam v Ghaleb [2005] NSWCA 208; 3 DDCR 1 (Ghaleb) is authority for the general principle that if the judge contemplates determining the case on a basis which is different to the basis upon which the parties conducted the trial, the judge must inform the parties so that they have an opportunity to address any new or changed issues that may arise. A failure to do so will ordinarily result in a denial of procedural fairness. ([236])

(Ghaleb, [78]–[79] applied)

10. The Senior Arbitrator’s observation as to the extent of the evidence from Ms Porteous and Ms Price was simply a common sense explanation as to why the evidence was of limited assistance. Procedural fairness does not require a decision maker to give a running commentary on what he or she thinks about the evidence that is given. There is no obligation on the decision maker to invite comment on the evaluation of the evidence in a case. ([237])

(SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152; 231 ALR 592, [48] applied)

11. It is Hawkesbury’s responsibility to adduce evidence to answer the allegations made against it. It had not been denied procedural fairness in respect of the Arbitrator’s evaluation of the evidence of Ms Porteous and Mr Price. Ground 7 of the appeal failed. ([238])

Ground 8: The Senior Arbitrator erred by dismissing Hawkesbury’s defence under s 11A of the 1987 Act

12. The Senior Arbitrator did not “interfere with” the pleadings or the presentation of the worker’s case He simply clarified both the worker’s case and the thrust of Dr Smith’s opinion. Both parties proceeded to make submissions in the arbitration that accorded with the Senior Arbitrator’s summation. ([241])

13. The worker alleged she was given permission to attend the barriers. Mr Rudolph’s evidence was silent as to whether he did or did not give that permission. He merely recalled there has been a discussion about her not having been to the barriers. Without Mr Rudolph denying she was given permission, it was open to the Arbitrator to conclude that she was. ([246])

14. Irwin has been frequently referred to and endorsed in decisions of the Commission and in the Court of Appeal. The Senior Arbitrator referred to it in his reasons. He also referred to Heggie and Sinclair as authority for the proposition that in a consideration of what is reasonable, it is important to have regard to not only the end result, but to the manner in which it is effected. ([251])

(Irwin v Director General of School Education (Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997, unreported); Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95; Department of Education & Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 considered)

15. The Senior Arbitrator’s finding that the actions were unreasonable were soundly based and in accordance with the applicable principles. No error had been demonstrated and Ground 8 of the appeal failed. ([252])

Ground 9: The Senior Arbitrator erred by:

(a) failing to give adequate reasons;

(b) failing to properly consider and evaluate the evidence;

(c) accepting and preferring the worker’s medical evidence, and

(d) failing to assess and properly take into account Mr Rudolph’s credit

16. Hawkesbury made no submissions in respect of this ground of appeal and relied on its submissions generally made in respect of the other eight grounds of appeal. None of the submissions made were persuasive of error on the part of the Senior Arbitrator. An appeal pursuant to s 352(5) of the 1998 Act is limited to the identification of error of fact, law or discretion. Hawkesbury had not established error and the appeal failed. ([253]–[255])

The grounds of appeal were:

(a) the Arbitrator erred in applying the definition of ‘police officer’ in the Interpretation Act 1987, rather than a meaning of that term that includes the appellant and flows from the terms of the 1998 Act itself to the “Police (Superannuation) Act 1906” (Ground 1);

(b) the respondent is estopped, by its failure to dispute the appellant’s status as a ‘police officer’ in the original proceedings in which the appellant was awarded benefits over a decade ago, from now asserting she is not a ‘police officer’ for the purposes of the 2012 Amending Act (Ground 2);

(c) the Arbitrator erred in not following “the essence of the arguments” in State of New South Wales v Stockwell [2017] NSWCA 30 (Stockwell) and State of New South Wales v Chapman-Davis [2016] NSWCA 237 (Chapman-Davis), cases decided by the President of the Commission, in relation to the exemption of ambulance officers (Ground 3);

(d) the Arbitrator erred in applying the reasoning in Muscat v Parramatta City Council [2014] NSWWCC 406 (Muscat). The appellant was not given an opportunity to address the application of Muscat, including whether it was correctly decided (Ground 4);

(e) the decision of the Arbitrator is illogical based upon Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, a decision of the High Court, the reasoning in which is adopted in a workers compensation matter by the Court of Appeal in a comment of Sackville AJA in Jaffarie v Quality Castings Pty Ltd [2015] NSWCA 335 at [63] (Ground 5);

(f) the Arbitrator erred in denying the appellant procedural fairness, in that he denied her the opportunity to be heard when a request for an oral hearing was made (Ground 6), and

(g) the Arbitrator erred in that he accepted the respondent’s arguments going to whether the appellant was an exempt worker in an interlocutory decision on 20 February 2018 (dealing with the employer’s reliance on further submissions) before his decision on 8 March 2018 (Ground 7).

Held: The Arbitrator’s determination dated 8 March 2018 was confirmed.

Grounds 1–3

1. On any view of it, the Police Regulation (Superannuation) Act 1906 never had application to the appellant and was not relevant to her situation. The appellant’s statement indicated that her superannuation payments, associated with her employment with the respondent, were made to the “First State Super Fund”. Membership of the Fund set up pursuant to the Police Regulation (Superannuation) Act was closed to members of the Force who joined after 1 April 1988. The appellant’s employment with the Force as a parking patrol officer commenced on 13 January 1997. The appellant’s submissions, in so far as they relied on the Police Regulation (Superannuation) Act, and an assertion that the appellant was a contributor pursuant to that Act (and therefore a ‘police officer’) could not succeed. ([42])

2. The definition of ‘worker’ in s 4 of the 1998 Act is not derived from the Police Regulation (Superannuation) Act. Rather, the definition exempts, from the application of the 1987 and 1998 Acts, certain people whose rights to compensation are derived from the Police Regulation (Superannuation) Act, rather than from the workers compensation legislation which applies to most other workers. The very fact that the appellant was seeking to establish that she was a ‘police officer’, and therefore quarantined from the effect of the 2012 Amending Act, was illustrative of the fact that her rights are pursuant to the 1987 and 1998 Acts. ([43])

3. Chapman-Davis and Stockwell did not support the proposition that whether a worker falls within one of the exempt categories of worker in Sch 6, Pt 19H, cl 25 depends on an analysis of the worker’s duties from time to time. They both involved the term paramedic in cl 25. That term is not subject to any form of statutory definition. In Chapman-Davis it was said that the worker’s “conditions of employment ... were expressed (as a matter of contract) to be those embodied in the 2010 Award”. Her status as a ‘paramedic’ pursuant to her contract of employment was not altered by her secondment to the different duties of a health adviser. Chapman-Davis and Stockwell did not assist the appellant. ([47], [49], [55])

4. The evidence did not suggest that the appellant was ever classified as, or held the status of, a ‘police officer’. The Crown Employees (Parking Patrol Officers, Police Service of New South Wales) Award did not make any provision for the working conditions or remuneration of police officers. The appellant’s status was not that of a ‘police officer’, by reference to the position that she held. A ‘police officer’ was required to hold one of the ranks specified in s 12 of the Police Act 1990, the appellant did not. A police officer was required to take an oath or affirmation in compliance with s 13 of the Police Act, before exercising any of the functions of a police officer. The evidence does not indicate that the appellant did so. The appellant’s classification and status were inconsistent with her being a ‘police officer’ within the meaning of cl 25. This is consistent with application of the definition in the Interpretation Act. It also was consistent with the approach taken in the Court of Appeal decisions in Chapman-Davis and Stockwell. ([51], [58])

5. The estoppel the appellant asserted in ground 2, was one flowing from the “original proceedings” over a decade ago. There was no estoppel flowing from the “original proceedings”, that prevented the respondent from disputing the issue of whether the appellant was a ‘police officer’ within the meaning of Sch 6, Pt 19H, cl 25 of the 1987 Act. To the extent that the appellant sought to rely on an alleged acceptance by the respondent of her status as a ‘police officer’, these submissions did not assist her. Ground 2 was rejected. ([61], [66])

6. The Arbitrator’s conclusion that the definition of ‘police officer’ in the Interpretation Act applied to cl 25 was clearly correct, as was his conclusion that the appellant did not fall within that definition. Even if he was wrong on this point, and the issue fell to be determined on a basis akin to that applied by the Court of Appeal in Chapman-Davis and Stockwell, this would not affect the result. The appellant’s status and classification were not consistent with her falling within the definition of a ‘police officer’. Ground 1 was rejected. ([65])

7. If the Court of Appeal decisions in Chapman-Davis and Stockwell were applied to the appellant’s situation, the result would be the same. Ground 3 was rejected. ([67])

Grounds 4 and 6

8. The appellant lodged lengthy submissions in the arbitral proceedings, headed “Reply to Respondent’s Submissions on Exempt Status”. These submissions argued, amongst other things, that dictionary meanings of “Police force” and “officer” (the source of which was not identified) should be applied, rather than the definition in the Police Act. The appellant’s submissions in reply, before the Arbitrator, did not specifically address, or refer to, the decisions in Muscat and D’Angelo v NSW Police Force [2016] NSWWCC 54 (D’Angelo). The application of Muscat, D’Angelo and relevant legislation was squarely raised in the respondent’s submissions. The appellant had an opportunity to address these matters. ([75])

9. This was not a case where a decision maker had gone outside the submissions of the parties or had decided a matter on a basis inconsistent with indications given to counsel during the running of the matter. The argument that the appellant was not given an opportunity to address the application of Muscat was without merit and was rejected. ([76]–[78])

(Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; 3 DDCR 1; Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57; 179 ALR 238; 75 ALJR 889; Allesch v Maunz [2000] HCA 40; 203 CLR 172 referred to)

10. Nothing was put by the appellant that led the Acting President to doubt that Muscat and D’Angelo were correctly decided. Although it was Muscat that the Arbitrator quoted in his decision, both decisions were squarely raised between the parties, and the appellant had the opportunity to make such submissions as she wished, regarding their application. Ground 4 was rejected. ([86]–[87])

11. The only basis given in the submissions in reply, for requesting an oral hearing, was “to allow my counsel an oral submission in support of the merits of my case”. The short written submission on the point then referred to the request being for “the sake of procedural fairness”. The submission did not give any indication of why procedural fairness required an oral hearing in the circumstances, or of what submissions could be made orally by counsel, that had not been made in writing. It was noted that, as this request was made in the appellant’s submissions in reply, it was made at a time when the appellant’s opportunity to make further submissions in writing became exhausted in any event. ([93])

12. The appellant’s submissions on the appeal did not indicate what further submissions she sought to put, or why they were not put in her primary submissions to the Arbitrator, and her submissions in reply. The Acting President noted that the appellant was legally represented at that time. Section 354(6) of the 1998 Act clearly entitled the Arbitrator, in the exercise of his discretion, to deal with the matter in the way that he did. He afforded the appellant the opportunity to make submissions. The appellant had not identified any basis on which the Arbitrator failed to afford her procedural fairness, in determining the issue before him without an oral hearing. She had not identified any basis on which the Arbitrator erred. Ground 6 was rejected. ([100])

(House v The King [1936] HCA 40; 55 CLR 499; Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; 4 DDCR 358, [20]; Fletcher International Exports Pty Ltd v Lott [2010] NSWCA 63, [42], [66] and Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274, [45] applied)

Ground 5

13. The Acting President was unable to identify any submissions that specifically went to this ground. The appellant may not agree with the Arbitrator’s decision, but the decision was clearly one that had an evident and intelligible justification. Ground 5 was rejected. ([101]–[103])

Ground 7

14. How the appellant would have sought to articulate the basis of any allegation of bias was unknown, as no application was made before the Arbitrator. There was no suggestion that any application was made to the Arbitrator before his decision was issued, raising bias in either of its forms. The appellant should be taken to have waived any right she may have had, to object to the Arbitrator determining the matter on the basis of either actual or apprehended bias. ([110]–[112])

(Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427; Vakauta v Kelly [1989] HCA 44; 167 CLR 568; Smits v Roach [2006] HCA 36; 227 CLR 423; 228 ALR 262; 80 ALJR 1309; Brown Brothers v Pittwater Council [2015] NSWCA 215 applied)

15. If the Acting President was wrong on this point, any ground based on actual or apprehended bias could not succeed in any event, due to the lack of articulation of the basis of any objection to the Arbitrator continuing to deal with the matter. Ground 7 was rejected. ([113]–[114])

Leave to appeal

1. The appeal was lodged on 26 February 2018, one week outside the 28 days within which an appeal can be made in compliance with s 352(4) of the 1998 Act. The worker made an application for an extension of time for the making of the appeal. The worker submitted that his counsel was unavailable to act on instructions to draft appeal submissions within time due to his leave arrangements and that this constituted exceptional circumstances. The worker also submitted that the time for filing an appeal lapsed because the last date for lodging the appeal was “misdiarised”. The President found that those circumstances did not meet any of the descriptors of “exceptional circumstances” to justify an extension of time for the making of an appeal. For the reasons discussed below, the President was of the view that the appeal could not succeed and therefore there was no substantial injustice to refuse the application for leave to appeal.

(Gallo v Dawson [1990] HCA 30; 93 ALR 479; Bryce v Department of Corrective Services [2009] NSWCA 188; Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34; 72 NSWLR 160; Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 considered and applied)

Consideration 

2. The President observed that a deed must be construed according to its terms. It must be construed by reference to what a reasonable person understands by the language, the context in which the words appear, and the purpose and object of the agreement. ([68])

(Sydney Attractions Group Pty Ltd v Frederick Schulman [2013] NSWSC 858 considered)

3. The worker’s submission that the claim for hearing loss could be maintained because it was an injury deemed to have occurred on a date beyond those identified in the Schedule to the Deed was rejected. [69]

4. The President considered the information recorded in the Schedule to the Deed, in particular the information relating to the date of injury and nature of injury. The injuries referred to in the Schedule included the “nature and conditions of employment and any specific injury in the course thereof causing or aggravating injury to … all senses”. There was no dispute that the reference to “all senses” included hearing loss. The injuries referred to in the Schedule also included injuries of any kind occurring between 10 July 1972 and 23 July 2004, that is, at any time during the course of the worker’s employment. The President observed that he could not ignore the unambiguous language of the Deed, unless to do so would give the Deed an absurd operation. Reading the Deed as a whole, the President found that the objective intention of the agreement was self-evident from the plain words in the Schedule. The Deed plainly released physical and psychological injuries sustained by the worker on particular occasions or during a particular period of employment. It also released any other injury that the worker had or could potentially have had arising out of or in any way related to the injuries or “employment” referred to in the Schedule. The employment referred to in the Schedule was the whole of the employment with the respondent from 10 July 1972 to 23 July 2004. ([72]-[76])

(Wilkie v Gordian Runoff Ltd [2005] HCA 17; 221 CLR 522 considered and applied)

5. It followed that, as the worker’s employment spanned 10 July 1972 to 23 July 2004 and the injuries referred to in the Schedule included injury to “all senses” (which was accepted to included hearing loss), the worker’s accepted industrial deafness injury, which was deemed to have occurred on 23 July 2004, was released by the operation of the Deed. It followed that the respondent discharged its onus of establishing a defence under s 151A of the 1987 Act. ([77]-[78])

6. The appeal could not succeed. ([79])

The issues on appeal were whether the Arbitrator:

(a) did not identify the correct test of causation in considering the defence pursuant to s 11A(1) of the 1987 Act (Ground 1);

(b) did not apply the correct test of causation in considering the defence pursuant to s 11A(1) of the 1987 Act (Ground 2);

(c) failed to consider the opinion of Dr Allnutt, that the worker’s deteriorating psychological state, after 12 September 2014, compromised her capacity to perform adequately in a mentoring program (Ground 3);

(d) in considering the test of causation when assessing the defence pursuant to s 11A(1) of the 1987 Act, took account of the causal contribution of workplace events other than those he had found to constitute ‘injury’ within the meaning of s 4 of the 1987 Act (Ground 4);

(e) erred in determining that the requirement that the worker participate in a mentoring program constituted action in respect of ‘discipline’ for the purposes of s 11A(1) of the 1987 Act (Ground 5), and

(f) erred in finding that the actions of the Council in respect of discipline were ‘reasonable’ (Ground 6).

Held: The application to extend time pursuant to r 16.2(12) of the 2011 Rules was refused.

The application to extend time

1. The worker’s submissions did not specifically address the topic of whether ‘exceptional circumstances’ were established. Whilst the holiday period, the involvement of two counsel on the worker’s behalf, and the effluxion of time since the arbitration hearing concluded were referred to, these factors were not causative of the appeal being lodged out of time. On the basis of the submissions, the reason the appeal was not lodged within time was that the worker’s counsel inadvertently diarised an incorrect date for when the appeal needed to be lodged. ([27])

(O’Carroll Constructions Pty Ltd v Burgess [2007] NSWWCCPD 224, [22]; Department of Education & Training v Mekhail [2006] NSWWCCPD 1; Department of Corrective Services v Buxton [2007] NSWWCCPD 55 applied)

2. The merits of the appeal are important in determining whether the interests of justice favour the extension of time. For reasons outlined below, the worker’s appeal would not succeed on its merits, if time were extended. In those circumstances, there was no prejudice to her if the application to extend time was not granted. The worker’s application to extend time pursuant to r 16.2(12) of the 2011 Rules was refused. ([31])

(Gallo v Dawson [1990] HCA 30; 93 ALR 479; 64 ALJR 458; Allen v Roads and Maritime Services [2015] NSWWCCPD 39, [31]; Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34, [9]; Bryce v Department of Corrective Services [2009] NSWCA 188, [8]; Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290, [66] applied)

Grounds 1–4 – was there error in the causation finding pursuant to s 11A(1)?

3. Snell DP considered the claim that was made, the procedural history of the matter, and how the proceedings were pleaded. He concluded that the incident on 12 September 2014 was not raised on the pleadings or in the way the matter had been conducted. The finding of injury on 12 September 2014 was set aside.

(Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 and Far West Area Health Service v Radford [2003] NSWWCCPD 10 applied)

Ground 1

4. The worker argued that no test on causation (relative to the s 11A(1) defence) was identified by the Arbitrator. It would have been desirable for the Arbitrator to more fully describe the test on causation which he applied. However, it was not essential, providing he actually applied an appropriate test. The balance of these grounds essentially hinged on whether there was error in application of an appropriate test, in determining the causation test posed in s 11A(1). ([88]–[91])

(Ponan v George Weston Foods Ltd [2007] NSWWCCPD 92, [24] and Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd [2008] NSWWCCPD 96 referred to)

Grounds 2 and 4

5. Frequently resolution of the s 11A(1) causation issue will require medical evidence, as it will involve matters outsider common knowledge and experience. However, the evidence needed for an employer to discharge its onus on this issue will depend on the facts and circumstances of the individual case. The presence (or lack) of multiple potential causative factors, not all of which attract the protection of s 11A(1), is likely to be relevant. ([100])

(Hamad v Q Catering Limited [2017] NSWWCCPD 6 referred to)

6. Application of the causation test in s 11A(1) means that “the employer is not liable where, to the extent that the employment contributed to the injury, that contribution was wholly or predominantly caused by reasonable action taken with respect to… discipline” On a fair reading of the Arbitrator’s reasons as a whole, he applied the relevant causation test to the matters he found to be causative of the psychological injury. It followed that he did not commit the error alleged in ground 4, of applying the causation test in s 11A(1) to matters which were not part of the cause of injury. Ground 4 could not succeed. ([105])

(Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206, [58] applied)

7. Ground 2 challenged the Arbitrator’s approach in comparing the relative contributions of the incident on 12 September 2014, with the other workplace stressors which he identified as causative. In the absence of the incident on 12 September 2014, the other stressors found to be causative were all workplace stressors, which were found to constitute actions of the Council in respect of ‘discipline’. There were no other competing causes of the psychological injury. In these circumstances, ground 2 could not succeed. ([106])

Ground 3

8. The case presented by the worker before the Arbitrator, relevant to the causation issue pursuant to s 11A(1), did not rely on a submission that her ability to cope with the mentoring program was in some way compromised by the effects of psychological injury, already in place when the program was being carried out. It is not an error to fail to deal with a matter which was not raised. ([109])

(Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111, [30] applied)

9. Grounds 1, 2, 3 and 4 could not succeed. ([110])

Ground 5

10. The Arbitrator’s factual findings going to the process, and the associated documentary material, did not support the worker’s argument on ground 5. The investigation process extended to interviews with workers at the May Murray Centre, which dealt with the worker’s performance as director. The processes followed were consistent with formal disciplinary action. Statements were taken, resultant allegations were put to the worker, and she was given an opportunity to respond. A formal process led to a finding that the complaints were “substantiated”. The outcome of the disciplinary process was to be attached to the worker’s personal file. The resultant counselling process was described as “formal”. Implementation of the development plan was plainly a result of the outcome of the disciplinary process. The development plan, notwithstanding the use of the term ‘mentoring’, was not a voluntary process. It was an activity the employer required the worker to participate in, due to the disciplinary process and its outcome. ([132])

11. Applying the clear meaning of the text, in Acting President Snell’s view the Arbitrator did not err, in his conclusion at [95]–[96] of his reasons, that the employer’s relevant actions were “with respect to discipline”. This outcome did not depend on the term ‘discipline’ being given a broad meaning consistent with the decision in Kushwaha v Queanbeyan City Council [2002] NSWCC 25; 23 NSWCCR 339. The Arbitrator’s approach was also consistent with that in Department of Education & Training v Sinclair [2005] NSWCA 465; 4 DDCR 206, of considering the entirety of the conduct. Ground 5 could not succeed. ([135])

Ground 6

12. The worker’s “primary submission”, that there be a finding that the “injury event” on 12 September 2014 was the whole or predominant cause of the psychological injury, could not be accepted for reasons given above dealing with grounds 1, 2, 3 and 4. ([141])

13. The finding on ‘reasonableness’ involved a “broad evaluative judgment”. The factual finding on this issue involved elements of fact, degree, opinion or judgment. It would not be appealable error if the Acting President were of the view that a different outcome was preferable. Error of the type identified in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 was not identified. Acting President Snell accepted the submission of the employer, that the Arbitrator’s findings of fact relevant to ‘reasonableness’ were available on the evidence. Ground 6 could not succeed. ([142])

(Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 and St George Leagues Club Ltd v Wretowska [2013] NSWWCCPD 64 referred to)

The issues on appeal were whether the Arbitrator erred in:

(a) her analysis of the factual evidence in determining that Mr Richardson was not a worker for the purposes of the 1998 Act (Ground 1);

(b) her analysis of the factual evidence in determining that Mr Fabiano and Mr Richardson had no intention to create legal relations (Ground 2);

(c) ascribing any weight to Mr Fabiano’s evidence in respect of an intention to create legal relations (Ground 3);

(d) her formulation of the law as to the appropriate definition of a ‘worker’ for the purposes of the 1998 Act (Ground 4), and

(e) her analysis of the factual evidence “to the indicia required to be considered as to the appropriate definition of a ‘worker’” for the purposes of the 1998 Act (Ground 5).

Held: The Arbitrator’s Certificate of Determination dated 23 February 2018 was confirmed.

Discussion

1. An intention to create a legal relationship is an essential element of any contract, including an employment contract. If the claimants were able to satisfy the Arbitrator, on the balance of probabilities, that the arrangement was intended to be a contractually binding agreement, then it was incumbent upon the Arbitrator to determine whether the contract was of a character to be considered a “contract of service”. If it was found to be a contract of service, then Mr Richardson would satisfy the definition of ‘worker’ in s 4 of the 1998 Act. ([155])

2. The Arbitrator’s approach was consistent with the High Court decision in Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95 (Ermogenous) in which it was held that whether the parties intended to create legal relations required an objective assessment of the state of affairs between them. ([157])

3. It was convenient for the Deputy President to deal with the grounds in the following order. ([158])

Ground 2: The Arbitrator erred in her analysis of the factual evidence in determining that Mr Fabiano and Mr Richardson had no intention to create legal relations

4. A finding of fact will not normally be disturbed on appeal if it has rational support in the evidence. ([159])

(Fox v Percy [2003] HCA 22; 214 CLR 118, 125–126 referred to)

5. The Arbitrator preferred the more contemporaneous statements made in 2015 to the later statements, made for the purpose of litigation, in 2017. Such a preference was open to her in the context of the significant inconsistencies between the earlier and later statements of Mrs Richardson and the inconsistent statements of the various other witnesses. ([160])

6. Questions of the acceptance of evidence and the weight evidence is given are matters within the province of the trial judge, unless it can be said that a finding was so against the weight of the evidence that some error must have been involved. ([161])

(Shellharbour City Council v Rigby [2006] NSWCA 308 (Rigby), [144] referred to)

7. The friendship between Mr Fabiano and Mr Richardson and the receipt by Mr Richardson of social security benefits were factors that mitigated against an intention to enter into a legal relationship. The Arbitrator also took into account the way in which the arrangement came into existence, the parties’ previous sub-contract arrangement, Mr Richardson’s loss of his driver’s licence and his financial concerns. These were relevant factors to consider in the context of the task before her, which was to gain an impression as to what was the intention of the parties in such an informal arrangement. Her analysis of the factual evidence was an objective appraisal of all that was said and done, having regard to the circumstances in which those statements and actions occurred. That approach was consistent with Ermogenous, Ashton v Pratt [2015] NSWCA 12 and the Court of Appeal decision in Vacik Distributors v Kelly (1995) 12 NSWCCR 30, relied on by the respondent. ([172])

8. The Arbitrator’s factual finding was open to her and accorded with the above authorities. Deputy President Wood was not satisfied that the appellants had established the Arbitrator erred as alleged under Ground 2, which failed. ([173], [184])

Ground 3: The Arbitrator erred in ascribing any weight to Mr Fabiano’s evidence in respect of an intention to create legal relations

9. The appellants made no submission to support this allegation other than to say that Mr Fabiano “admitted” in his interview to police that Mr Richardson was working on the premises. The evidence could not constitute an admission that Mr Fabiano intended the arrangement to be a legally binding employment relationship. To say that someone is “working” can denote a multitude of activities, including working for oneself, working as a farmer, and working voluntarily. It was clear that Mr Richardson was washing trucks when the incident occurred. That activity could easily be described as “working” without the description indicating the agreement satisfied the concept of a contract of service for the purpose of s 4 of the 1998 Act. ([185], [188])

10. A conclusion that someone is a “worker” requires an evaluation of the real substance of the relationship in question and not the label attached by one or other of the parties. This is particularly so in respect of the language chosen by an unsophisticated witness such as Mr Fabiano. ([189])

(On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366, [189] applied)

11. The appellants submitted that Mr Fabiano’s evidence should accordingly be given no weight. The Deputy President did not accept that Mr Fabiano made any admission that advanced the appellants’ case. There was no reason to disregard the evidence of Mr Fabiano or give it any less weight. It could not be considered that the Arbitrator’s finding, which was in part based on Mr Fabiano’s evidence, was so against the weight of the evidence that some error must have been involved. It followed that Ground 3 failed. ([190]–[191])

(Rigby applied)

Grounds 1, 4 and 5

12. The remaining three grounds alleged error by the Arbitrator in respect of her determination that Mr Richardson was not a worker as defined by s 4 of the 1998 Act. ([192])

13. Under Ground 4, the appellants alleged that the Arbitrator erred in her formulation of the law as to the appropriate definition of a ‘worker’ for the purposes of the 1998 Act. The appellants made this assertion without any reference to the part of her reasoning process that might constitute the alleged error and made no submission that explained why it was that the Arbitrator erred in law. In the absence of submissions, a mere assertion that the Arbitrator had erred in the manner alleged could not succeed. ([193])

14. In any event, the Arbitrator determined the dispute on the basis that there was no intention to create a legal relationship and so a contract had not been established. In the absence of a contract (whether a contract for services or a contract of service) there was no need for the Arbitrator to consider the nature of the purported contract or apply the indicia in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 (Stevens v Brodribb). ([194])

15. The Arbitrator correctly formulated the law as to definition of “worker”. The Arbitrator also analysed cl 2 of Sch 1 of the 1998 Act and identified the criteria that must be established to satisfy that clause. Ground 4 failed. ([195]–[197])

16. Grounds 1 and 5 were essentially the same ground, that is, that the Arbitrator erred in her analysis of the factual evidence. As noted above, the Arbitrator’s decision turned on whether there was a legally binding contract. It was not incumbent upon the Arbitrator to consider whether the factual evidence was sufficient to establish a contract of service. Nor was it incumbent on her to apply the indicia in Stevens v Brodribb. Such indicia are intended to identify whether a contract was in the nature of an employment contract or more akin to that of an independent contractor. Grounds 1 and 5 failed. ([198]–[200])