Issue 6: November 2018

The worker appealed to the Commission constituted by a Presidential member. The issues on appeal before Deputy President Wood 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 [Ireland]” (Ground 3).

The issues before the Court of Appeal were that the appellant:

(a) complained that “the Deputy President dismissed the appeal on the basis that the second ground of appeal had not been argued at first instance, but made no reference as to whether the First ground has been argued” (ground 2);

(b) complained that “the dismissal of the appeal (para 76) due to a failure to allow the second issue to be raised ... was therefore in error as the first issue also had been raised at first instance” (ground 3), and

(c) complained that the Deputy President erred in law by holding that “the appellant had to establish contemporaneous complaints of symptoms in order to establish ‘injury’ in the form of a disease process” (grounds 4 and 5).

Held: The appeal was allowed; the Deputy President’s order was set aside and the matter was remitted to the Commission for determination according to law.

McColl AP

1. Counsel for the appellant put to the Arbitrator that the evidence demonstrated the appellant had suffered a physiological change sufficient to constitute an “injury” for the purposes of s 4(b)(i) and (ii) of the 1987 Act. ([12])

2. There was uncontroverted medical evidence that the injuries and the degenerative conditions the appellant suffered were occupational diseases for shearers, which was supported by the appellant’s evidence of the “heavy, arduous and dangerous” work of a shearer leading to him suffering pain and discomfort in the parts of his body the subject of his nature and conditions claim. ([4]–[6])

3. It was sufficient as a matter of law for the appellant to establish “injury” of the nature of which he complained that he had suffered “a disturbance of the normal physiological state which may produce physical incapacity and suffering”, but not necessary that he had complained of that injury. ([8])

4. The appellant ran this case before the Arbitrator who gave no reasons as to why it was not accepted. ([12]–[14])

5. The Deputy President erred in failing to identify the Arbitrator’s error in misdirecting herself with respect to the proper test to determine the “disease injury”. ([15])

6. The Deputy President’s failure to identify the Arbitrator’s error meant there had been a constructive failure to exercise the jurisdiction s 352 of the 1998 Act conferred, constituting an error of law. ([17])

Simpson AJA at [100]–[108] (McColl AP and Payne JA agreeing), upholding the appeal and remitting the matter to the Commission

7. Inherent in a complaint of the application of an incorrect test is a complaint that that application has yielded a wrong result. The Deputy President failed to exercise jurisdiction by placing too narrow a construction on the argument that had been put before the Arbitrator.

8. The Deputy President failed to address the substance of whether a complaint of symptoms is necessary before disease injury can be established. Failing to deal with that argument denied the appellant procedural fairness. In adopting the Arbitrator’s approach to determining the issue, by excluding reference to medical and radiological evidence, the Deputy President failed to give adequate weight to relevant considerations.

(Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1008 cited; AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 cited; Lovell v Lovell [1950] HCA 52; 81 CLR 513 cited; Kumar v Legal Services Commissioner [2015] NSWCA 161 cited)

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

(a) by finding the worker suffered a disease injury (a consequential psychological condition) pursuant to s 4(b)(ii) of the 1987 Act, having failed to consider, apply or satisfy the conditions set out in s 4(b)(ii) (Ground 1);

(b) by finding that the worker suffered a disease injury pursuant to s 4(b)(ii) of the 1987 Act, being a consequential psychological injury, where the medical opinion relied on did not support such a finding and there was no other evidence sufficient to support such a finding (Ground 2);

(c) by finding that the worker suffered a disease injury pursuant to s 4(b)(ii) of the 1987 Act in respect of the neck and low back on 1 September 2016 and thereafter suffered the onset of a consequential psychological condition and failed to consider, apply or satisfy s 9A of the 1987 Act (Ground 3), and

(d) in applying retrospectively from 1 October 2017, Consumer Price Index increases pursuant to s 82A of the 1987 Act to the worker’s pre-injury average weekly earnings for 1 October 2016 and 1 April 2017 (Ground 4).

Held: The Certificate of Determination dated 12 January 2018 was amended in part and otherwise confirmed.

Grounds 1, 2 and 3

1. Distilling the elements of the first three grounds of appeal, Deputy President Wood identified alleged error by the Arbitrator in respect of:

(a) failing to consider and apply s 4(b)(ii) of the 1987 Act in his determination that the worker’s psychological condition was compensable;

(b) finding the worker’s psychological condition was a “disease injury”;

(c) making that determination in the absence of medical or other evidence to support the finding, and

(d) finding that the worker suffered a “disease injury” to the neck and low back within the meaning of s 4(b)(ii), thereby failing to consider and apply s 9A of the 1987 Act. ([205])

2. The appellant’s submissions disclosed a complete misunderstanding of the distinction between an injury and a consequential condition. The case brought by the worker was that his psychological condition arose as a result of the injuries he suffered on 1 September 2016, not that the psychological condition was an injury. The Arbitrator at no stage made a finding that the worker suffered a psychological injury or that such injury was a disease. ([206])

3. There are a long list of authorities that establish that it is not necessary for a worker to prove that the consequential condition from which he or she suffers satisfies the definition of a s 4 injury. It followed that s 9A does not apply to a consequential condition because the condition is not an injury. The test is one of causation, and if it is established that the condition results from the injury (that is, there is an unbroken chain of connection between the injury and the development of the condition), then the condition is compensable. ([207])

(Roads & Traffic Authority v Malcolm (1996) 13 NSWCCR 272; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4; Moon v Conmah Pty Ltd [2009] NSWWCCPD 134; Australian Traineeship System v Turner [2012] NSWWCCPD 4, and Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 applied)

4. Even if the grounds of appeal were meant to raise issues on appeal (in respect of the Arbitrator’s finding on injury to the neck and low back, or the Arbitrator’s finding that the worker’s injury had not resolved and he continued to suffer persisting pain and symptoms), the Arbitrator had not fallen into error in determining that the worker was injured and continued to suffer pain and symptoms as a result. It was open to the Arbitrator to reject Dr Walker’s view that the worker had recovered from the effects of the injury. ([209]–[210])

5. Having found injury, and that the pain and symptoms resulted from the injury, it was open to the Arbitrator to find that there was an unbroken chain of causation and the somatic symptom disorder resulted from the injury. Such a finding was supported by the expert evidence of Dr Anwar and Dr Smith, and there was no contrary evidence. ([215])

The finding that the injury was a “disease injury”

6. The appellant alleged that the Arbitrator erred in determining that the injury suffered was a “disease injury” pursuant to s 4(b)(ii), when it ought to have been determined that it was a frank injury, or personal injury, within the meaning of s 4(a) of the 1987 Act. ([216])

7. The injury sustained by the worker could fall within the definition of s 4(b)(ii), and the two subsections are not mutually exclusive. The injury should properly be considered a personal injury pursuant to s 4(a). The event satisfied the definition of injury in s 4(a) and the injury did not “consist in” the aggravation, acceleration or exacerbation of the disease. The appellant had established error by the Arbitrator and the Deputy President set aside the Arbitrator’s finding that the injury was an injury in accordance with s 4(b)(ii) of the 1987 Act. Deputy President Wood re-determined that the worker suffered a personal injury within the meaning of s 4(a) of the 1987 Act on 1 September 2016. ([217]–[223])

(Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd [1998] NSWCC 51; 17 NSWCCR 309; 45 NSWLR 606; Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310, and Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648 applied)

Section 9A

8. As Deputy President Wood determined that the worker suffered a personal injury pursuant to s 4(a), s 9A applied and required determination, which she determined in the appeal. ([226])

9. Whether the injury is regarded as a personal injury pursuant to s 4(a) or a disease injury within the meaning of s 4(b)(ii) of the 1987 Act made no difference to the outcome in this case. The Arbitrator found that the incident aggravated degenerative changes in the worker’s spine on 1 September 2016. In this incident, there was no issue in respect of fixing a date of injury or identifying the liable insurer. The same rights and entitlements flowed irrespective of whether the injury falls within s 4(a) or s 4(b). ([227])

10. The appellant made no submission on appeal (and made none to the Arbitrator) as to whether or not s 9A was satisfied in the circumstances of this case. The appellant had the opportunity to make submissions, both in its substantive submissions and in reply to the worker’s submissions that s 9A was clearly satisfied. ([230])

11. There were no external factors that contributed to the incident. The accident was an accident to which the worker was exposed in the course of his employment and to which he would not otherwise have been exposed. The appellant’s employment was a substantial contributing factor to the worker’s injury pursuant to s 9A of the 1987 Act. ([234])

(Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75 and Da Ros v Qantas Airways Ltd [2010] NSWCA 89 applied)

12. The appellant had established error on the part of the Arbitrator in his determination that the injury was a “disease injury” as defined by s 4(b)(ii) of the 1987 Act. Otherwise, grounds one to three of the appeal had not been made out and failed. ([235])

13. Deputy President Wood found that the worker suffered an injury pursuant to s 4(a) of the 1987 Act, to which employment was a substantial contributing factor in accordance with s 9A of the 1987 Act and, accordingly, amended the Certificate of Determination dated 12 January 2018 to reflect those findings. ([236]–[237])

Ground 4

14. The appellant alleged the Arbitrator erred in law in retrospectively applying the Consumer Price Index increases pursuant to s 82A of the 1987 Act to the worker’s pre-injury average weekly earnings for 1 October 2016 and 1 April 2017. ([238])

15. For the period commencing from 1 September 2016, the worker’s first 52 weeks had expired, so that overtime and penalty allowances were excluded from his pre-injury average weekly earnings. His ordinary earnings figure of $884.69 became his pre-injury average weekly earnings for the period 1 September 2016 to 30 September 2016. The Arbitrator correctly determined that the worker’s pre-injury average weekly earnings were $884.69, that was, the ordinary weekly earnings calculated as at the date of injury. The contentious finding made by the Arbitrator was that the figure of $884.69 could be indexed in April and October 2016 retrospectively on 1 October 2017 to arrive at a calculation of the pre-injury average weekly earnings of $903.75 after indexation. ([245])

16. The Arbitrator erred in retrospectively indexing the figure of $884.69. The indexation of the figure $884.69 on 1 October 2016 and 1 April 2017 was precluded by s 82A(3) because those amounts would have exceeded the worker’s ordinary earnings ($884.69), which for the purposes of s 82A did not increase until after those two review dates. The ordinary weekly earnings did not increase to $906.81 until 1 July 2017. ([251])

17. The Arbitrator was also in error in determining that the figure $884.69 could be varied on 1 October 2017 by the indexation numbers applicable to a review on 1 October 2016 and 1 April 2017 because of the operation of s 82A(1). Section 82A(1) only allows a variation of “A” in the formula. “A” is either a figure which has not been previously varied, or the figure “as last varied”. The figure that was to be reviewed on 1 October 2017 was the worker’s average weekly earnings of $884.69, which had not been previously varied. ([252])

18. The Arbitrator’s determination that the respondent is to pay $725.45 per week from 1 October 2017 to date and continuing pursuant to s 37(1)(a) and s 82A of the 1987 Act was set aside and re-determined by Deputy President Wood. ([253]–[255])

Ground one – The Arbitrator erred in law when she failed to correctly apply the law relating to the task of weighing the indicia of employment

1. The gravamen of the appellant’s complaint was that the Arbitrator failed to have regard to the existence of control over the deceased as the “prominent indicia” and failed to take it into account in her final weighing exercise. ([88]).

2. The Arbitrator identified the degree of control as a “significant factor”. She referred to Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 and the criterion by which to gauge whether a relationship is one of employment. ([89]-[91])

3. The Arbitrator was conscious that the level of control was a significant indicia in determining whether or not the deceased was a worker as defined in s 4 of the 1998 Act. Whether she described the level of control as a “significant factor” or a “prominent indicia”, as the appellant submits, was immaterial. It is the totality of the relationship that must be considered. The Arbitrator weighed the evidence concerning the level of control and correctly concluded that it was inevitable that the respondent would exercise a level of control over the work at the site at Carlton but that did not necessarily lead to the conclusion that the deceased was a worker. ([96])

4. Although the Arbitrator did not specifically refer to the control issue in her ultimate discussion, she clearly had regard to it in formulating her conclusion that the deceased was not a worker employed by the respondent at the date of his death. It followed that this ground failed. ([97]-[98])

(Australian Air Express Pty Ltd v Langford [2005] NSWCA 96, Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 (Hollis) considered and applied)

Ground two – The Arbitrator erred in her fact finding when she concluded there were “few” indicia in favour of worker and “many” in favour of independent contractor

5. The appellant’s submissions selectively summarised the Arbitrator’s reasons, ignoring the other indicia considered in determining the ultimate question. In addition to the control test, the Arbitrator considered several other indicia. However, before turning to the indicia the Arbitrator was required to resolve the conflicting evidence concerning the deceased’s employment status ([104]-[105])

6. Having heard Mr Anderson (the respondent’s director) give evidence, the Arbitrator concluded that she preferred Mr Anderson’s evidence that the deceased was not offered full-time work, over Ms Digby’s evidence (the deceased’s partner) which was to the contrary. That was a finding of fact that was open on the evidence and disclosed no error. The appellant did not advance any submission to support a finding that the Arbitrator failed to use or misused her advantage, of seeing and hearing Mr Anderson give evidence. ([106]-[109])

(Midcoast County Council t/as Midcoast Water v Reed Constructions Australia Pty Ltd [2011] NSWCA 268 considered and applied)

7. The Arbitrator considered the deceased’s deduction of income tax, past employment and remuneration, invoices in business name, GST, text and facebook messages, a pub meeting between the deceased and the respondent’s directors, and the provision of equipment and the absence of livery on the deceased’s vehicle. The Arbitrator correctly and carefully weighed a range of indicia and reached a conclusion that was open to her on the evidence, namely that the deceased was not a “worker”. It followed that the Arbitrator did not err in her fact finding when she concluded that there were “few” indicia in favour of worker and “many” in favour of independent contractor. It followed that this ground failed. ([110]-[119])

Ground three – The Arbitrator erred in law when she failed to correctly apply the law relating to the task of weighing the indicia of employment, to her apparent determined relevant indicia

8. The President did not accept the appellant’s submission that the Arbitrator should have given extra weight to the indicia of control over other indicia. No authority or reasoned argument was provided to support that submission. ([125])

9. A consideration and balancing of the indicia is critical, but the focal point around which one examines the indicia is whether the deceased was working in the business of another or in his own business. That question is not to be answered by giving “weight” to one indicia, even if it is a prominent or significant indicia. ([126])

10. It cannot be an error of law not to have given extra weight to the indicia of control. It is the totality of the relationship that must be considered. The Arbitrator weighed the indicia and concluded, correctly, that although there was a measure of control, it did not inevitably lead to the conclusion that the deceased was a worker. ([127])

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

11. The deceased’s invoicing practices immediately prior to his death was a relevant factor in determining that question but it was not determinative. In any event, there was no evidence to suggest that the Arbitrator gave more weight to the form of the prior invoices than she did to the control issue. ([128])

12. It followed that this ground failed. ([129])

Ground four – The Arbitrator erred in law when she failed to correctly apply the law relating to the task of weighing the indicia of employment by applying a numerical approach rather than a weight approach

13. For the reasons discussed above, the Arbitrator clearly took into account a range of factors which she weighed in determining the question of whether the deceased was a worker. Contrary to the appellant’s submission, the Arbitrator’s use of the words “few” and “many” did not suggest a numerical approach but simply a statement of fact after she had considered the various indicia available. In any event, the appellant’s submissions were based on a fundamental error in that the indicia of control is the prominent factor which carries more weight than other indicia. This ground failed. ([135], [137])

Ground five – The Arbitrator erred in fact and law when she proceeded on the basis that Geraghty CCJ in the first instance in the matter of WorkCover Authority of NSW v Mackley [2006] NSWCA 204; 66 NSWLR 305; 5 DDCR 41 held that someone who performed work under a casual and fleeting arrangement was not a worker

14. While the Arbitrator recorded the appellant’s submission on Mackley, albeit incorrectly, it did not form part of her analysis and did not affect her ultimate conclusion. The application before the Arbitrator failed, not because the engagement was fleeting, but because a careful weighing of the evidence favoured the conclusion that the deceased was not a “worker”. It followed that this ground failed. ([149], [150]-[153])

Ground six – The Arbitrator erred in her fact finding by failing to determine the canvassed issue that the deceased was a casual employee and hence a worker for the purposes of the legislation

15. The appellant’s submissions conflated the concept of “a casual employee” with a “worker” for the purposes of the legislation. The issue before the Arbitrator was whether the deceased was a worker under the legislation. She was not required to consider whether he was a causal employee. A “casual” employee is not a concept recognised under the legislation. Therefore, the Arbitrator did not err in not dealing with the appellant’s submission that the deceased was a casual employee. It followed that this ground failed. ([160], [165]-[166])

Ground seven – The Arbitrator made an error in the exercise of her discretion by taking into account an irrelevant matter being the business name on invoices previously sent to different organisations

16. Given the circumstances and short relationship with the respondent, it was relevant to consider the deceased’s history of employment relationships. To that limited extent, it was a relevant matter that the deceased had issued invoices in a business name, quoting an ABN, to organisations (such as Boers Construction) that he had contracted to immediately prior to his relationship with the respondent. This ground failed. ([173], [177])

Ground eight – The Arbitrator erred with respect to her further determination with respect to the alternative assertion of deemed employment by concluding that there was no evidence about the end of the deceased’s relationship with Boers Construction

17. There was no dispute that the deceased had entered into a contract to perform work exceeding $10 in value. The issue in dispute was whether the deceased was performing work that was “incidental to a trade or business regularly carried” out under his name or business. ([187])

18. The Arbitrator’s finding that there was no evidence about the end of the deceased’s relationship with Boers Construction was an error. However, it was not an error that affected the result. The evidence favoured the inference that the deceased had ended his relationship with Boers Construction. However, the evidence did not support an inference that the deceased decided to stop working as an independent contractor in favour of taking up full-time paid work as an employee of the respondent. It followed that while the Arbitrator erred in her consideration, that error did not affect the outcome. This ground failed. ([191]-[193])

Ground nine – The Arbitrator erred with respect to her further determination with respect to the alternative assertion of deemed employment by incorrectly using a discretion in failing to take into account the absence of GST charges and giving inappropriately excessive weight to the use of a business name and an ABN 

19. On a fair reading of the Arbitrator’s decision as a whole, the President did not accept that she failed to deal with the GST issue, when determining whether the deceased was a deemed worker. The Arbitrator stated that the factors which weighed against the deceased being a worker employed by the respondent also led to the conclusion that he was not a deemed worker. In dealing with whether the deceased was a worker the Arbitrator considered several indicia of employment, including the absence of GST on the deceased’s billings. ([201])

20. The “indicia of employment” are relevant to the question of whether the deceased was a worker under s 4 of the 1998 Act as distinct from the question of whether the deceased was a deemed worker pursuant to cl 2 of Sch 1. However, there will be aspects of the evidence dealing with the worker issue that are relevant to a determination of whether the deceased was engaged in work that was incidental to a trade or business regularly carried on by the deceased in his own name or a business name. ([203])

21. The use of the business name and ABN were factors the Arbitrator considered in reaching her ultimate conclusion. They were relevant factors to be weighed by the Arbitrator when considering whether the deceased was a deemed worker carrying on work incidental to a trade or business regularly carried on by him. ([204]-[205])

22. It followed that this ground failed. ([206])

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

(a) in taking into account irrelevant considerations and denying the worker procedural fairness;

(b) by failing to give adequate reasons for rejecting the worker’s argument as to causation, and

(c) by failing to apply the correct test of causation.

Held: The Arbitrator’s decision was confirmed.

Ground one – The Arbitrator erred in law when she failed to correctly apply the law relating to the task of weighing the indicia of employment

1. Whether the injuries suffered by the worker on 2 July 2017 were causally related to the accepted injury to his left shoulder and consequential condition in his right shoulder required an evaluation of the causal chain, to determine whether the latter injuries resulted from the pre-existing injury/condition. ([43])

(Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 considered and applied)

2. The application before the Arbitrator failed not because of the extent of the injuries that may or may not have unfolded in the event that the worker braced against his fall, but because there was a novus actus interveniens (new intervening act). That is, the worker’s shoe was caught between the gutter and the car he was attempting to alight from. It was that act that the Arbitrator found broke the chain of causation. The Arbitrator found that the injuries suffered by the worker would have occurred had he been in normal health prior to the incident on 2 July 2017. She rejected his claim that he would not have sustained the injuries complained of but for the pre-existing injury/condition, on the basis that it was simply too remote. They were factual findings that were clearly open on the evidence and revealed no error. ([46])

3. The President rejected the submission that the worker was denied procedural fairness because the Arbitrator failed to determine the matter on the basis of whether an inference could be drawn that the worker would not have sustained the injures had he braced for the fall. The Arbitrator made factual findings that the cause of the fall was more likely the fact that the worker got his foot caught between the gutter and the car. She was not satisfied that the evidence supported a finding that he would have had time, had his shoulders not been injured, to brace himself for the fall. She added, even if the worker had time, there was no evidence that he would have not sustained the injuries to his clavicle. It follows from those findings that the Arbitrator implicitly found that the available evidence did not enable her to draw the inference the worker suggested. ([47]-[51])

4. The Arbitrator’s factual findings (at [3] above) were relevant considerations in her ultimate decision. They were responsive to the worker’s submission that there was contemporaneous evidence of the worker not bracing against the fall as a protective mechanism. They were also ancillary findings to the primary finding that the injuries were due to the foot being wedged between the car and the gutter. ([52])

5. The worker did not demonstrate that the Arbitrator erred in declining to draw an inference that the worker would not have sustained the injuries had he braced for the fall. No error of the kind discussed in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 was established. This ground failed. ([54]-[55])

Ground two – The Arbitrator failed to give adequate reasons for rejecting the appellant’s argument as to causation

6. The obligation to give reasons must be considered in the statutory context. The statutory duty to provide reasons in the Commission is governed by s 294 of the 1998 Act and r 15.6 of the 2011 Rules. The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision maker. When considering the adequacy of reasons, a decision must be read as a whole. ([63]-[66])

7. The Arbitrator clearly articulated the path of reasoning that led to her ultimate conclusion. The Arbitrator considered the available evidence and found that the appellant failed to discharge the relevant onus of proof in support of his case. Having regard to the Arbitrator’s decision as a whole, the President was satisfied that the Arbitrator discharged the statutory obligation to provide reasons. This ground failed. ([65]-[71])

(NSW Police Force v Newby [2009] NSWWCCPD 75; Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6; Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 considered and applied)

Ground three – The Arbitrator failed to apply the correct test of causation

8. The complaint that the Arbitrator erred in her findings in relation to there being a novus actus interveniens was not developed. The Arbitrator found the failure to brace for the fall was not the cause of the injuries sustained or even a contributing factor. For the reasons discussed above, the Arbitrator’s factual finding that there was a novus actus interveniens was open on the evidence and revealed no error. ([83]-[85], [89])

9. In a consequential condition claim, causation is established if the alleged consequential condition results from the accepted compensable injury/condition. Contrary to the worker’s submissions, the consequential condition did not result from the injury to the left shoulder and/or the consequential condition in the right shoulder, it resulted from the worker’s foot being caught while he was attempting to get out of the car causing him to fall. Those findings were open to the Arbitrator on the evidence and did not reveal error. ([87], [89])

10. This ground of appeal failed. ([90])

The issues in this application to the Deputy President were:

(d) whether the Deputy President should recuse himself from determining the worker’s reconsideration application, and

(e) whether the worker was a ‘police officer’ within the meaning of Sch 6, Pt 19H, cl 25 of the 1987 Act.

The recusal application

9. The matter was, in accordance with the Commission’s usual practice dealing with applications for reconsideration, assigned to Deputy President Snell as the original decision maker. ([8]).

10. Regarding the first step, the basis on which it was submitted that a fair-minded lay observer might have a reasonable apprehension, that the Deputy President would not bring an unprejudiced and impartial mind to the matter, was that he dealt with the appeal in Mahal No 3 without taking account of the appellant’s submissions in reply. Deputy President Snell could see no basis on which the sequence of events could give rise to a reasonable apprehension, on the part of a fair-minded lay observer, that he would not bring an impartial and unprejudiced mind to the reconsideration application. He obviously expressed views on the subject matter of the appeal in the earlier decision. Such views were expressed with no knowledge that the appellant had sought to lodge submissions in reply, and without considering the content of those submissions, which he did not know existed. There was no reason why those submissions could not be appropriately taken into account on a reconsideration application, which was the course the appellant sought. Even if the first step in the test of apprehended bias was taken to be present, the appellant could not make out the second step identified in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; 176 ALR 644; 75 ALJR 277 (Ebner), articulation of the connection between those events and the possibility of departure from impartial decision making. ([17])

(Ebner; Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427; Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342, and Minister for Immigration v Jia Legeng [2001] HCA 17; 205 CLR 507; 75 ALJR 679 referred to)

11. There was no evidence that would suggest such a state of mind existed. No viable argument was made by the appellant, that the Deputy President should recuse himself in the circumstances. The recusal application was refused. ([20])

The reconsideration application

12. The worker’s request to reconsider pursuant to s 378 of the 1998 Act was misconceived. That provision provides for review of decisions of the Registrar or of a Medical Appeal Panel. The Mahal appeal decision was one pursuant to s 352 of the 1998 Act, and was a decision of the Commission. The relevant reconsideration power is found in s 350(3) of the 1998 Act. The Deputy President dealt with the application as if it were one pursuant to s 350(3). ([28]–[29])

(Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141; 5 DDCR 482 applied)

13. As a general proposition, it would not be an appropriate basis for reconsideration, if a party’s submissions were not considered because the party failed to lodge them with the Registry in accordance with the 2011 Rules and practice of the Commission. In the circumstances of the current matter, the submissions of a self-represented party were not considered, when she had served them in time, and sought to lodge them in time, electronically, at an email address of the Commission, albeit an inappropriate one. The relief which she sought was simply that the matter be reconsidered, taking account of her submissions in reply, as if they had been lodged correctly in the first place. In the Deputy President’s view, the interests of justice favoured reconsidering the decision in Mahal No 3, so the appellant’s submissions in reply could be considered. ([33]–[34])

Section 354 of the 1998 Act and issues not previously raised

14. The sections of the appellant’s submissions in reply, headed “Presumption Against Invasion of Significant Rights” and “Constitutional Invalidity”, raised issues that were not part of the case presented at first instance before the Arbitrator (when the appellant was legally represented). They were not raised in the appellant’s grounds of appeal. The appellant’s “Constitutional Invalidity” argument led it to a submission that s 39 and Sch 6, Pt 19H, cl 25 of the 1987 Act “are constitutionally invalid and of no force or effect”. The arguments were first raised in the appellant’s submissions in reply on the appeal, which in the circumstances were being considered as part of this reconsideration application. No application had been made to amend the grounds of appeal. ([61])

15. The Presidential member’s role on an appeal pursuant to s 352 of the 1998 Act is to determine “whether that determination was or was not affected by any error of fact, law or discretion, and to the correction of any such error”. The submissions relating to the “Constitutional Invalidity” argument fell outside that scope, and the respondent’s submission that they were not relevant to the issue in dispute was correct. ([68])

16. Section 3(d) of the 1998 Act includes a ‘system objective’ “to be fair, affordable and financially viable”. Section 3(f) includes a ‘system objective’ that the other objectives of that section are to be delivered “efficiently and effectively”. These objectives are not assisted by permitting a party to raise matters late in the course of an appeal, which were not raised at an appropriate time. It is necessary to have regard to the system objectives in s 3 of the 1998 Act, in construing the Workers Compensation Acts. It is clear that s 354 does not “exonerate” the Commission from an obligation to apply rules of law, including those related to procedural fairness. It would be inappropriate, and contrary to authority, to permit the appellant to raise these arguments for the first time, at this stage of the proceedings. ([59]–[60], [65]–[70])

(South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421; Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351; University of Wollongong v Metwally (No. 2) [1985] HCA 28; 59 ALJR 4801; Coulton v Holcombe [1986] HCA 33; 162 CLR 1; Scott v JR Corney and SM Morrisey t/as Digquip [2016] NSWWCCPD 11; Mamo v Surace [2014] NSWCA 58; Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279; Mascaro v Inner West Council [2018] NSWWCCPD 29, and Hunter Quarries Pty Ltd v Mexon as Administrator for the Estate of the Late Ryan Messenger [2018] NSWCA 178 applied)

Procedural fairness

17. The argument that the Arbitrator denied the appellant procedural fairness, in not warning her that he was considering deciding the issue before him (whether she was a ‘police officer’) by reference to Muscat v Parramatta City Council [2014] NSWWCC 406 (Muscat), was dealt with sufficiently at [72]–[87] of the Mahal appeal decision. The decision of Kanda v Government of Malaya [1962] UKPC 2; [1962] AC 322, referred to in the appellant’s submissions in reply, did not assist her. ([73])

18. Whatever the appellant sought to draw from any failure by the Arbitrator to specifically deal, in writing, with the request for an oral hearing, it was a matter which was not raised until her submissions in reply. It was a matter which she should not be permitted to raise now. It may have been that the intention was to raise a complaint that the Arbitrator should have given reasons for not holding an oral hearing. If this was the intention, the adequacy of the Arbitrator’s reasons was not the subject of any of the appellant’s grounds of appeal. ([75])

The term ‘police officer’

19. The appellant sought to distinguish D’Angelo v NSW Police Force [2016] NSWWCC 54 (D’Angelo), on the basis that a different statutory regime applied to Mr D’Angelo. The appellant submitted that the Police Legislation Amendment (Special Constables) Act 2013 amended the position in relation to special constables in D’Angelo, whereas the appellant retired in 2002, and was not governed by those amendments. The appellant made no submission about how this could affect the reasoning in D’Angelo, such that it did not apply to the appellant’s situation. The fundamental reasoning in D’Angelo was not dependent on the application of the Police Legislation Amendment (Special Constables) Act 2013, which commenced from 1 December 2014. ([80])

20. The appellant submitted that the Arbitrator was not bound by the decisions in Muscat and D’Angelo, and that such decisions could be distinguished on the facts. This was clearly true. The Arbitrator’s reasons did not suggest that he regarded himself as bound by those decisions. Most of the Arbitrator’s reasoning proceeded by reference to the legislation. At [36] and [38] of his reasons he quoted and adopted a passage from Muscat. This did not involve error. ([81])

21. For the reasons in the Mahal appeal decision and the reasons in this reconsideration application, the worker’s appeal failed. Having reconsidered Mahal No 3, that decision was confirmed. ([82]–[83])

The issues on appeal were whether:

(a) the Senior Arbitrator erred in finding that the worker did not suffer injury on 9 January 2015. Included under this ground was a complaint that the Senior Arbitrator did not accept that the worker attended Dr Kumar on 9 January 2015, and found Dr Kumar’s evidence inconsistent and unreliable, and

(b) error was occasioned by the Senior Arbitrator not having before him the documents now sought to be adduced in the appeal.

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

Discussion

1. The worker sought leave to file his appeal out of time. In order to grant leave, a Presidential member must be satisfied that the failure to grant leave would work a substantial injustice. The appellant must show that there is merit to his appeal. In order to do so, he is required to establish that the Senior Arbitrator erred in fact or law, or in the exercise of his discretion, as required by s 352(5) of the 1998 Act. Section 352(5) also provides that an appeal is not a review or a re-hearing. ([205])

2. The worker challenged the Senior Arbitrator’s factual determination that he was not satisfied that the worker suffered injury as alleged. The challenge was limited to submissions that there was vital and compelling evidence that was not before the Senior Arbitrator, and that those documents ought to be admitted into evidence in this appeal. The worker made extensive submissions that re-iterated the submissions made by his counsel at the arbitration. There was nothing in those submissions that pointed to error on the part of the Arbitrator. The worker was simply asserting (without foundation) that the Arbitrator ought to have arrived at a different decision. ([206])

3. Arbitrations are not a trial run, and the parties must live with the consequences of the forensic choices they make at first instance, including those of their legal representatives. The Arbitrator considered the submissions of the parties and made an evidence based decision in favour of the respondent. ([207])

(Super Retail Group Services Pty Ltd v Uelese [2016] NSWWCCPD 4, [92] and D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 applied)

4. The onus is on the person who seeks to overturn the decision to establish there are sufficient grounds to do so. It is not sufficient that a different result might have been preferred. What is required to demonstrate error on the part of the Arbitrator, is to establish that other probabilities so outweigh the Arbitrator’s conclusion that it can be said his conclusion was wrong. ([211]–[213])

(Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, [31]; Henderson v Foxworth Investments Ltd [2014] UKSC 41; SLT 775; 1 WLR 2600, [67] and Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 applied)

5. The only manner in which it was alleged the Senior Arbitrator erred was in not having before him, the documents the worker was seeking to rely on in this appeal. Some of the documents were before him and were considered. The Senior Arbitrator particularly considered all of the evidence that pointed to whether the worker attended Dr Kumar on 9 January 2015 as alleged. ([214]–[215])

6. The Deputy President held that the worker’s attempt to change his own statement evidence, apart from being entirely inappropriate, was an attempt to have a re-trial of the matter in contravention of s 352(5) and raised more questions than answers. ([217])

7. Deputy President Wood determined that the incomplete WorkCover Certificate dated 9 January 2015 carried no weight and that the telephone records (sought to be admitted on the appeal) added nothing to the assertion that in one or more of those calls, the worker reported his injury as alleged. ([218])

8. The worker had not pointed to any material facts that were ignored by the Senior Arbitrator, or any finding by the Senior Arbitrator that did not have a basis in the evidence. The Senior Arbitrator carefully considered all of the evidence relied on by the worker and analysed the facts and opinions contained therein. The worker had not made out either of his grounds of appeal. He failed to establish error on the part of the Senior Arbitrator. ([220]–[221])

9. The role of a Presidential member does not extend beyond setting aside the decision in the limited circumstances permitted by s 352(5). Deputy President Wood was not satisfied that the worker had established error on the part of the Senior Arbitrator. If leave to appeal were granted, a determination of the appeal would not result in a different outcome to that arrived at by the Senior Arbitrator. The worker was unable to establish that a failure to extend time pursuant to r 16.2(12) of the 2011 Rules would result in a substantial injustice to him. Accordingly, his application to extend time was refused. ([222]–[224])

Claims were made by the deceased’s:

(a) father who resided in Lebanon (Mr Ali Jamal, the appellant);

(b) sister with whom he resided with in Australia (Ms Mayssoun Ali Kanj);

(c) mother who resided in Lebanon (Mrs Fatme Obeid), and

(d) sister who resided with Mrs Obeid in Lebanon (Ms Sari Jamal),

The Arbitrator found that he was not satisfied that Mr Jamal was dependent on the deceased. He apportioned the lump sum death benefit as follows:

(a) Ms Ali Kanj – $229,695.00;

(b) Mrs Obeid – $459,390.00, and

(c) Ms Jamal – $76,565.00.

Ms Ali Kanj appealed the Arbitrator’s determination. In a second appeal, Mr Ali Jamal also appealed the Arbitrator’s determination, which was determined in Jamal v Nonabel Concrete Pty Ltd [2018] NSWWCCPD 42, on the issue whether he was dependent on the deceased.

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

(a) fact in determining that the relationship between the deceased and Ms Ali Kanj was one of co-dependency as opposed to her being dependent on the deceased (Ground 1);

(b) fact in determining that Mrs Obeid was dependent on the deceased for financial support where there was no evidence to support that determination (Ground 2);

(c) fact in determining that Ms Jamal received support from the deceased and had an expectation of support where there was no evidence to support that determination (Ground 3), and

(d) the exercise of his discretion in calculating the apportionment by having regard to the reasonable expectation of support held by Mrs Obeid, Ms Jamal and Ms Ali Kanj (Ground 4).

Held: The Certificate of Determination dated 22 May 2018 was confirmed.

Ground 1

1. Ms Ali Kanj complained that the Arbitrator erred in determining that the relationship between her and the deceased was one of co-dependency. The Arbitrator’s decision as to whether each of the respondents was dependent is a factual decision based on inferences drawn from the evidence. ([132]–[133])

2. The Arbitrator’s acknowledgment of “to some extent” a co-dependency was founded on the evidence that Ms Ali Kanj provided accommodation to the deceased and performed domestic duties to his benefit. That acknowledgment was immaterial to the Arbitrator’s finding that Ms Ali Kanj had a future expectation of support from the deceased. There was no material error of fact on the part of the Arbitrator in his determination that Ms Ali Kanj was dependent upon the deceased. ([136])

(Henderson v Foxworth Investments Ltd [2014] UKSC 41; SLT 775; 1 WLR 2600, [67] and Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 applied)

3. The Arbitrator did take into account the co-dependent nature of the relationship between the deceased and Ms Ali Kanj when determining the degree of dependency for the purposes of apportionment. How the lump sum benefit was to be apportioned was an exercise of the Arbitrator’s discretion. A decision arising from the exercise of discretion is an evaluative judgment involving an individual choice, to which there may well be differences of opinion. Such a finding will not be lightly reviewed and the appellate tribunal is bound to exercise restraint in its approach to an appeal from a discretionary decision. ([137])

(Tarabay v Leite [2008] NSWCA 259, [29] applied)

4. In the exercise of his discretion in apportioning the lump sum benefit, the Arbitrator was essentially evaluating the extent to which each dependant relied on support from the deceased. The deceased undoubtedly depended on Ms Ali Kanj for accommodation and domestic support, particularly so when he was unable to work in Australia. Ms Ali Kanj also received benefit from the deceased during that time. Their relationship (however described) was readily distinguishable from that between Mrs Obeid and the deceased. Factors such as the nature of the relationship are very relevant to the discretionary exercise the Arbitrator was required to perform. ([139])

(Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 applied)

5. Ms Ali Kanj had not identified any error of legal principle, material error of fact or that the Arbitrator has taken into account an irrelevant matter or failed to take into account or give insufficient weight to a relevant matter. The decision the Arbitrator arrived at was not unreasonable or unjust. There was therefore no basis upon which to disturb the Arbitrator’s finding in respect of a “co-dependent” relationship between the deceased and Ms Ali Kanj. Ground 1 of the appeal was rejected. ([140]–[141])

Ground 2

6. This ground of appeal challenged the Arbitrator’s finding that Mrs Obeid was dependent on the deceased. The challenge was based on the assertions that Mrs Obeid’s evidence was inconsistent with the deceased’s employment history and was uncorroborated. ([142])

7. The Arbitrator took into account the absence of documentary evidence to support Mrs Obeid’s evidence, but regarded the evidence of both Ms Ali Kanj and Ms Jamal to be consistent with Mrs Obeid having received some financial assistance (albeit in modest amounts and at infrequent times). He accepted that the deceased sent Mrs Obeid money when he was in a position to do so, and that Mrs Obeid had a reasonable expectation of future support once he had obtained employment in Australia. Ms Ali Kanj’s submission that Mrs Obeid’s assertions were not corroborated by other evidence was incorrect. ([144]–[145])

8. The Arbitrator clearly turned his mind to the lack of documentary evidence. None of the parties produced any documentary evidence of money transfers to support their claims, including Ms Ali Kanj. It was on the basis of the vague nature of the evidence that the Arbitrator adopted the approach of considering what reasonable expectation of future support each dependant would have, in order to apportion the lump sum benefit. The Arbitrator’s approach was consistent with the approach in TNT Group 4 Pty Ltd v Halioris (1987) 8 NSWLR 486 and was founded on the available evidence. Ms Ali Kanj had provided no basis upon which to find error on the part of the Arbitrator and this ground of appeal failed. ([150]–[151])

Ground 3

9. Ms Ali Kanj further complained that the Arbitrator erred in determining that Ms Jamal was dependent upon the deceased. Deputy President Wood found that the Arbitrator was correct in his determination that Mrs Obeid had an expectation of future support from the deceased. Ms Jamal resided with her mother, Mrs Obeid, had the benefit of the financial support afforded to Mrs Obeid, and her evidence was corroborated by Mrs Obeid. It followed that Ms Jamal was also dependent, through her mother, on the deceased. The Arbitrator’s decision was based on the evidence and available to him. Ms Ali Kanj had not identified any error on the part of the Arbitrator and this ground of appeal failed. ([152]–[154])

Ground 4

10. Ms Ali Kanj submitted that the Arbitrator had erred in the exercise of his discretion in apportioning 60% of the lump sum benefit to Mrs Obeid. She said that the error was occasioned by the Arbitrator placing too much weight on the history of the marriage between Mr Jamal and Mrs Obeid. She submitted that the circumstances flowing from the lack of support after the marriage failed should not have been a factor. She also submitted that Mrs Obeid received no money from the deceased for the three years while he was in Dubai, and so there could be no expectation of future support ([155]–[156])

11. Deputy President Wood reiterated that the Arbitrator’s finding on apportionment is a discretionary exercise, requiring the appellant tribunal to be satisfied of the type of error identified in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 before the finding can be disturbed. ([157])

12. Ms Ali Kanj had not expressed any assertion that the Arbitrator made an error of legal principle. Even if the Deputy President had a preference for a conclusion different to that arrived at by the Arbitrator (which she did not), this would not represent a basis for overturning the decision. It followed that this ground of appeal was rejected. ([158], [163])