Issue 4: April 2020

COURT OF APPEAL DECISIONS

Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57
APPEAL – further evidence – special grounds – whether further evidence relevant to appeal confined to question of law – whether further evidence not obtainable with reasonable diligence – Supreme Court Act 1970, s 75A(8)
WORKERS COMPENSATION – appeal from Workers Compensation Commission constituted by President – appeal confined to question of law – whether President erred in disregarding evidence of psychiatrist – distinction between identifying meaning of expert report and evaluating evidence – whether predisposition to bipolar disorder itself a disease which could be aggravated, accelerated, exacerbated or deteriorated during employment – definition of injury in (former) s 4(b)(ii) of the 1987 Act, considered

Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54
WORKERS COMPENSATION – determination of arbitrator – appeal to Deputy President – appeal limited to error of fact, law or discretion – whether Deputy President misunderstood scope of her jurisdiction – 1998 Act, s 352
WORKERS COMPENSATION – entitlement to compensation – deceased worker employed to work at home – deceased killed by co-worker and de-facto partner – attack inspired by his paranoid delusions – delusions related to work and personal relationship – whether evidence of causal link between worker’s employment and harm suffered – evidence of substantial contributing factor – whether Deputy President erred in finding as to evidence – 1998 Act, ss 4 and 9A

PRESIDENTIAL DECISIONS

Theoret v Aces Incorporated [2020] NSWWCCPD 18
Section 82A of the 1987 Act – indexation of pre-injury average weekly earnings prior to 1 April 2013 where injury received before the enactment of s 82A

Toll Holdings Limited v McCaw [2020] NSWWCCPD 14
Whether a fight at work arose out of or in the course of employment, s 4 of the 1987 Act considered; whether the employment concerned was a substantial contributing factor to the injury, s 9A of the 1987 Act considered

Guettaf v Spotless Services Australia Pty Limited [2020] NSWWCCPD 13
Fact finding and drawing inferences from the available evidence – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 considered and applied; determination of incapacity – error where incapacity not disputed – Department of Corrective Services v Bowditch [2007] NSWWCCPD 244; 6 DDCR 174, University of New South Wales v Kurup [2014] NSWWCCPD 19, Whaley v Upper Hunter Shire Council [2016] NSWWCCPD 32 considered

Guilbert v Glenworth Valley Horse Riding Pty Ltd [2020] NSWWCCPD 10 
Worker; intention to enter legal relations

Dawson v Secretary, Ministry of Health [2020] NSWWCCPD 16
Deemed worker – Clause 16 of Schedule 1 of the 1998 Act – whether evidence of “co-operation;” weight to be given to oral evidence – Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472; Shellharbour City Council v Rigby [2006] NSWCA 308 applied

Blount v Penrith City Council [2020] NSWWCCPD 15
Application of State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 and associated authorities –  alleged errors in fact finding regarding a psychological injury, procedural fairness

Duck v EB and DE Bunt Pty Limited [2020] NSWWCCPD 11
Extension of time; medical expenses pursuant to s 60 of the 1987 Act

Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57

NB: This headnote substantially follows the headnote issued by the Court of Appeal with this decision.

APPEAL – further evidence – special grounds – whether further evidence relevant to appeal confined to question of law – whether further evidence not obtainable with reasonable diligence – Supreme Court Act 1970, s 75A(8)

WORKERS COMPENSATION – appeal from Workers Compensation Commission constituted by President – appeal confined to question of law – whether President erred in disregarding evidence of psychiatrist – distinction between identifying meaning of expert report and evaluating evidence – whether predisposition to bipolar disorder itself a disease which could be aggravated, accelerated, exacerbated or deteriorated during employment – definition of injury in (former) s 4(b)(ii) of the 1987 Act, considered

Bell P, Leeming and White JJA

2 April 2020

Facts

The appellant worked as a bar attendant at the respondent’s hotel. On 7 November 2002, the appellant was working at the hotel when one of the hotel patrons, who had been in an argument, smashed a glass on his head and tried to slash his throat. The appellant attempted to intervene and in doing so some of the patron’s blood got on her body. She became concerned that she might have contracted an infectious disease. The appellant returned to work two days after this incident, and a few days later she witnessed another fight between different patrons at the hotel. Following this incident, she was unable to continue working at the hotel. She ceased working on 19 November 2002.

It was undisputed that the appellant suffered a primary psychological injury, manifesting itself as Post Traumatic Stress Disorder (PTSD), as a result of the 7 November 2002 incident. In 2005 the appellant was diagnosed with Bipolar Disorder. In dispute was whether the appellant’s bipolar condition, which first manifested itself some two years after the incident, was one which engaged the definition of “injury” in s 4 of the 1987 Act, in the form it took prior to 2012 (being preserved in relation to injuries received before 19 June 2012 by cl 20 of Pt 19H of Sch 6 of the 1987 Act). It was not disputed that the appellant had a genetic predisposition to Bipolar Disorder.

Following numerous sets of proceedings, the appellant ultimately brought a claim for lump sum compensation. The Arbitrator determined the application in the worker’s favour, finding that the appellant’s Bipolar Disorder was a “disease” and that her employment contributed to the disease’s “aggravation, acceleration, exacerbation or deterioration” within the meaning of s 4(b)(ii) of the 1987 Act. The employer appealed to the Commission constituted by a Presidential member.

The President, Phillips P, allowed the employer’s appeal, holding that it was not open to the Arbitrator to make the finding that the appellant suffered a disease within the meaning of s 4(b)(ii) of the 1987 Act. The worker appealed from Phillips P’s decision to the New South Wales Court of Appeal.

The issues on the appeal were whether:

(i)      there were “special grounds” for receiving further evidence on appeal as required by s 75A(8) of the Supreme Court Act 1970;

(ii)     the President erred in point of law in failing to give effect to the expert opinion in the second report of the consultant psychiatrist that the appellant suffered an “underlying disease condition” for the purposes of s 4(b)(ii) of the 1987 Act, and

(iii)     the President erred in point of law in finding that the appellant’s genetic predisposition to Bipolar Disorder was not a “disease” such as to engage the definition of “injury” in s 4(b)(ii) of the 1987 Act.

Held: The appeal was dismissed with costs.

Leeming JA (Bell P and White JA agreeing)

Issue (i)

1. The principles governing the discretion to receive further evidence on appeal are not formulated as crisply dispositive rules. However, there are two generally applicable preconditions to the exercise of the power, namely, that the evidence could not have been obtained without reasonable diligence at trial and must be such that there is a high degree of probability that there would be a different outcome. ([25])

   (Akins v National Australia Bank (1994) 34 NSWLR 155; Searle v Commonwealth of Australia [2019] NSWCA 127; 100 NSWLR 55 referred to and applied)

2. The appellant had not established that the evidence in respect of the understanding of genetic predispositions to disease could not have been obtained with reasonable diligence for use in the proceedings in the Workers Compensation Commission, in circumstances where the insurer had maintained prior to commencement of those proceedings that a mere predisposition could not be aggravated, accelerated, exacerbated or deteriorated in the requisite sense. ([26]–[27])
3. The appellant had not established that the further expert evidence would assist in identifying that the decision of the President made in the absence of that evidence was wrong in point of law. ([28]–[30])

(Pacific National Pty Ltd v Baldacchino [2018] NSWCA 281 referred to)

Issue (ii)

4. The President correctly construed the report of the consultant psychiatrist, and no error in point of law was made out. Nothing in the report suggested any process of reasoning in support of the conclusion that a genetic predisposition was a disease; rather, the report was directed to the possibility that the work incident or its consequences led to the development of Bipolar Disorder in circumstances where the appellant was genetically predisposed to that condition. ([46]–[48])
5. In construing the report, the President had not discounted unchallenged expert evidence but rather identified what that evidence was. ([44])

(Rodriguez v Telstra Corp Ltd [2002] FCA 30; 66 ALD 579 referred to)

Issue (iii)

6. The two limbs in the definition of “injury” in s 4(b) of the 1987 Act are distinct. Where the first limb applies, the worker will not previously have had the relevant disease; where the second limb applies, the worker will previously have had the disease, but there will have been an aggravation, acceleration, exacerbation or deterioration of the disease to which the employment contributed. ([52]–[53])

   (Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; 167 CLR 533 applied)

7. Predisposition to a disease is a term used in contradistinction to having a disease. A predisposition means merely that there is potential for future morbidity and the fact that a person is more likely eventually to suffer from a disease does not mean that the person has the disease. A genetic predisposition is not an abnormal physical or mental condition such as to constitute a “disease”. ([51], [54], [57])

(Commissioner for Railways v Bain [1965] HCA 5; 112 CLR 246 applied)

Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54

NB: This headnote substantially follows the headnote issued by the Court of Appeal with this decision.

WORKERS COMPENSATION – determination of arbitrator – appeal to Deputy President – appeal limited to error of fact, law or discretion – whether Deputy President misunderstood scope of her jurisdiction – 1998 Act, s 352

WORKERS COMPENSATION – entitlement to compensation – deceased worker employed to work at home – deceased killed by co-worker and de-facto partner – attack inspired by his paranoid delusions – delusions related to work and personal relationship – whether evidence of causal link between worker’s employment and harm suffered – evidence of substantial contributing factor – whether Deputy President erred in finding as to evidence – 1998 Act, ss 4 and 9A

Basten, Payne JJA and Simpson AJA

31 March 2020

Facts

On 16 June 2010, Ms Carroll was killed by her de facto partner, Mr Hill (the first respondent). They were both employed by a family company, S L Hill & Associates Pty Ltd, a financial advising business, which operated from the family home.

The attack by Mr Hill was inspired by paranoid delusions and, having been charged with murder, he was found not guilty on the ground of mental illness.

At the time of her death, Ms Carroll had two dependent children, a teenager and a baby aged about 6 weeks old.

The Arbitrator found that Ms Carroll died as a result of injury arising out of and in the course of her employment and ordered payments in favour of the two children. The Nominal Insurer (acting for the employer, which had since been deregistered) appealed to a Presidential member. Deputy President Wood confirmed the Arbitrator’s determination. The Nominal Insurer then appealed against Deputy President Wood’s determination to the New South Wales Court of Appeal.

The issues on appeal were:

(a) the scope of an appeal from a decision of a Deputy President;

(b) the scope of an appeal from an arbitrator to a Deputy President;

(c) whether the Deputy President erred in holding that there was evidence to support the arbitrator’s findings as to the elements of the claim, and

(d) whether the Deputy President failed to hold that Mr Hill’s assault, being inspired by delusions, was causally connected to Ms Carroll’s employment.

Held: Appeal dismissed, and the appellant ordered to pay the second and third respondents’ costs.

As to issue (i)

1. The right of appeal to the Court extends to any decision in point of law, whether express or implicit, made in the course of the hearing before the Deputy President. It can extend to a “no evidence” ground because any finding of fact necessarily depends upon first accepting that there was material capable of supporting the finding; what amounts to such material is a question of law. ([7], [9], [61], [65])

   (Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390, and Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 applied)

2. The Deputy President not being satisfied that there was error on the part of the arbitrator, who was required to be affirmatively satisfied as to the elements of the claim, must have been satisfied that there was evidence capable of supporting each of the findings. She did not err in point of law in so finding. ([9], [61])

   As to issue (ii)

3. The Deputy President was not entitled to uphold an appeal from an arbitrator unless satisfied as to any error of fact, law or discretion: s 352(5). Articulating that appellate function in language taken from Whiteley Muir and Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (Whiteley Muir) did not involve error. ([17], [61], [91])

   (Inghams Enterprises Pty Ltd v Sok [2014] NSWCA 217 applied; Whiteley Muir and Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 discussed)

   As to issue (iii)

4. Ground one did not raise any point of law. There was evidence to support the arbitrator’s findings that Ms Carroll’s death (i) occurred in the course of her employment; (ii) arose out of her employment and (iii) was a substantial contributing factor to her death. ([13], [44], [49], [56], [61], [84])

   As to issue (iv)

5. The Deputy President considered in detail whether Mr Hill’s assault was causally connected with Ms Carroll’s employment. The material before the Arbitrator demonstrated a palpable and direct connection between Mr Hill’s delusions, Ms Carroll’s employment and her death. The Deputy President did not err in concluding that there was material before the arbitrator rationally probative of that causal connection. The fact that the connection involved a delusion did not prevent it being a causal connection. ([29], [37]–[39], [61], [93])

(Kelly v Secretary, Department of Family and Community Services [2014] NSWCA 102 discussed)

Theoret v Aces Incorporated [2020] NSWWCCPD 18

Section 82A of the 1987 Act – indexation of pre-injury average weekly earnings prior to 1 April 2013 where injury received before the enactment of s 82A

Wood DP

25 March 2020

Facts

This appeal concerned the indexation of the appellant’s pre-injury-average weekly earnings (PIAWE) and s 82A of the 1987 Act.

The appellant worker was employed by the respondent employer as a disability support worker. She suffered several injuries in the course of her employment. On 23 December 2002, the appellant was struck on the face by a client and suffered facial, dental and neck injuries.

Liability was accepted and the appellant received weekly payments from June 2004. Although the appellant’s injury occurred in 2002, her compensation entitlements were affected by the 2012 Amendment Act. The appellant’s entitlements were subject to those amendments as they stood from 1 October 2012. The legislation was again amended by the 2018 Amendment Act which took effect from 1 January 2019. The dispute which arose between the parties occurred in the context of the provisions of the 1987 Act as they stood after 1 October 2012 but prior to the 2018 amendments.

On 1 April 2018, the insurer made a work capacity decision finding that the appellant’s PIAWE at that date was $407.42. The insurer confirmed that decision on internal review. The appellant applied to the State Insurance Regulatory Authority (the Authority) for a “merit review” of the work capacity decision in accordance with s 44BB of the 1987 Act. On 14 August 2018, the Authority confirmed that the appellant’s PIAWE was $407.42, which was indexed pursuant to s 82A of the 1987 Act. The Authority applied the indexation from 1 April 2013 to arrive at a figure of $458.00 for the PIAWE as at 1 April 2018.

On 3 April 2019, the insurer issued a s 78 notice, advising the appellant that it had assessed the appellant as having no capacity for work and that there would be no change in the appellant’s weekly payments. It also advised that it had decided that the appellant’s PIAWE, as indexed in accordance with s 82A of the 1987 Act, was $466.00, which entitled her to weekly payments pursuant to s 37 of the 1987 Act at the rate of $372.80 per week.

The appellant challenged the insurer’s calculation of her PIAWE, asserting that in accordance with s 82A of the 1987 Act, the indexation of her PIAWE should commence from the date that the appellant first received compensation, which was assumed to be 2002. The respondent disputed that the appellant’s PIAWE should have been indexed from 2002.

The Arbitrator issued a Certificate of Determination on 6 November 2019, in which he declined to index the appellant’s weekly payments of compensation prior to 1 April 2013. The worker appealed.

The issue on appeal was whether the “Arbitrator erred in law when he concluded that indexation only commenced from April 2013 and did not apply from the date when the appellant first suffered incapacity.”

Held: The Arbitrator’s Certificate of Determination dated 6 November 2019 was confirmed.

Discussion

1. The appellant’s submissions complained that the Arbitrator erred in not accepting her assertions that s 82A of the 1987 Act was retrospective in the sense identified by the High Court in Adco Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1; 88 ALJR 624. The appellant maintained that s 82A operates retrospectively because cl 3 of Part 19H of Sch 6 to the 1987 Act applies to an injury received before the commencement of the amendment, and it therefore changes the appellant’s rights which vested when the injury occurred. ([77], [81])
2. Clause 3 of Part 19H relevantly provides that the 2012 amendments apply to an injury received and a claim for compensation made before the commencement of the amendment. ([82])
3. On the appellant’s own submission, up until the 2012 amendments, the appellant’s weekly entitlements were determined by the application of the former ss 35, 37 and 40 of the 1987 Act, and were calculated by reference to comparable earnings. The appellant’s rights and entitlements for any period prior to 1 January 2013 remain unaffected by the 2012 amendments. The appellant’s argument was that her PIAWE, which is calculated according to her earnings during the 52 weeks prior to the injury in 2002, should be adjusted twice each year so that her rights and entitlements to weekly compensation from 1 January 2013 would be greater because her PIAWE was higher. That cannot be said to have an effect on the appellant’s past rights or entitlements. The appellant’s reliance on cl 13 of Part 19H of Sch 6 to the 1987 Act was of no assistance. The fact that the amendments encapsulated in s 39 of the 1987 Act are not to be applied retrospectively to the receipt of weekly payments prior to the 2012 amendments does not mean that because there is no such clause in relation to s 82A, s 82A is to be read retrospectively. The presumption is that an enactment has prospective operation. ([83])

(Fisher v Hebburn Ltd [1960] HCA 80; 105 CLR 188, at [9] applied)

4. The matter proceeded on the basis that by operation of cl 3, the amount of compensation received by the appellant prior to the amendments was not affected by the amendments, which was clearly correct. ([84])
5. It was noted by Deputy President Wood that while cl 3 applies to the amendments to the appellant’s “injury,” neither cl 3 of Part 19H of Sch 6 nor s 82A of the 1987 Act express any date upon which the amendments commence to apply to the appellant’s injury. Clause 3 does not say that the amendments apply to the appellant’s injury from when the injury occurred. There is a distinction between an enactment having a prior effect on past events and one that bases future action on a past event.  In the absence of the provision of a date earlier than the commencement date of the amendments, the Arbitrator was correct to conclude that s 82A “clearly operates from 1 October 2012.” ([85])
6. The appellant complained that the Arbitrator erred by finding that the PIAWE could not be indexed each April and October commencing from 1 April 2002. Apart from the “retrospectivity” argument, the appellant relied on s 82A(1), which expresses that a worker is entitled to an indexation on the first review date after the entitlement to weekly payments arose. The appellant effectively argued that s 82A(1) stands alone and can operate without recourse to subss (4) and (5). ([86])
7. The Arbitrator rejected the appellant’s argument on the basis that, although the calculation put forward by the appellant was in accordance with s 82A(1), it did not comply with s 82A(4). The Arbitrator took into account the words “on each review date on which the worker became entitled to weekly payments” contained in s 82A(1), which he described as “critical.” The Arbitrator determined that the appellant’s approach was to consider the words “review date” in isolation and ignored the clear words and the context of the section. ([87]–[88])

(Alphapharm Pty Ltd v Lundbeck A-S [2014] HCA 42; 254 CLR 247; 89 ALJR 1; 314 ALR 182 considered and applied)

8. Deputy President Wood held the Arbitrator’s approach and reasoning process was correct. It is important that the subsection is read in the context of the section as a whole. The task of ascertaining the meaning of a statute is not to pull apart a provision into its constituent words and select one meaning in isolation from the context of the provision in which it appears. The context in which the phrase is used must be considered as a whole. ([90])

   (Lorimer v Smail [1911] HCA 44; 12 CLR 504, and XYZ v Commonwealth[2006] HCA 25; 227 ALR 495; 80 ALJR 1036, at [102] applied)

9. Section 82A(1) provides a formula for the calculation of the indexation of the worker’s weekly payment, where “A” is the worker’s PIAWE or if the amount was varied “in accordance with this section, that amount as last so varied”. Subsection (4) provides that the Authority (formerly the Minister) is to declare the number that equates to the factor B/C which is done “for the purposes of the variation required for that review date under this section.” That is, the subsection requires the Authority to publish the declaration for the purpose of implementing the indexation of benefits. Reading the text of the provision as a whole, it is clear that the declaration made by order is a requisite element in the indexation of weekly benefits. ([91])
10. The appellant’s submission that subs (1) was the “dominant” provision was not accepted. There is no conflict between subs (1) and subs (4) of s 82A. Subsection (4) simply requires the Authority to perform an act that enables a review and indexation of a worker’s weekly payments in accordance with subs (1) and in accordance with the section as a whole. If it is possible for both provisions to operate together, there is no requirement to determine a leading provision and a subordinate provision. Such an exercise was not required in this case. ([93])

(Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841 applied)

11. The appellant contended that the Arbitrator erred in his determination of the effect of subs (5), because subs (5) does not deem the numbers that make up the formula. ([96])
12. The Arbitrator considered that the word “equate” was a clear expression of meaning and that the words “has effect as if” in s 82A(5) were words similar to having a deeming effect. The Arbitrator’s conclusion that the words “has effect as if” constituted a deeming effect was logical and it followed that the figure declared in accordance with subs (5) is deemed to be the number that makes up the factor B/C. It was patently clear when reading the section as a whole, and in particular subs (4), that the number declared, whether it is made before or on the review date or declared historically, is the number that “equates to the factor B/C” and “for the purpose of the variation”(subs (4)). The appellant’s submission was misguided and did not disclose any error on the part of the Arbitrator in dealing with s 82A(5). ([97]–[99])
13. This appeal was limited to the identification of error and the rectification of that error. It was not necessary for the Deputy President to address the appellant’s further submission that s 82A is beneficial in nature, and that any ambiguity should be resolved in the appellant’s favour. In any event, there was no ambiguity in the section so that it was not necessary to give consideration to whether s 82A is beneficial in nature. ([101])

(Khoury v Government Insurance Office (NSW) [1984] HCA 55; 165 CLR 622 applied)

Conclusion

14. The Arbitrator’s reasons and conclusions were logical and soundly based on accepted authority. The appellant had not established error on the part of the Arbitrator as required by s 352(5) of the 1998 Act and the appeal failed. ([102])

Toll Holdings Limited v McCaw [2020] NSWWCCPD 14

Whether a fight at work arose out of or in the course of employment, s 4 of the 1987 Act considered; whether the employment concerned was a substantial contributing factor to the injury, s 9A of the 1987 Act considered

Phillips P

10 March 2020

Facts

The respondent was employed by the appellant as a freight handler at its premises. On 16 August 2018, he finished his shift at 10.00 pm. Shortly after he bundied off he was assaulted in the work carpark by a fellow employee, referred to here as JH.

The genesis of the conflict which culminated in the assault arose from the respondent’s admiration of a female employee (referred to here as SB), who was JH’s fiancé. It is not disputed that in or around March 2018 the respondent had made comments about SB to co-workers and had interactions with SB at work which were unwelcome and unwanted, which SB had reported to the appellant in April 2018. There is no evidence of any unwelcome or unwanted conduct by the respondent, in respect of SB or otherwise, on the day of the assault, or in the days preceding the assault.

The respondent sustained facial injuries in the assault. He developed a psychological condition as a reaction to the assault and its aftermath.

On 26 September 2018, the respondent filed a claim for psychological injury, broken nose and sore jaw arising from the assault. On 7 November 2018, the appellant issued a notice pursuant to s 74 of the 1998 Act, denying that the injuries arose out of or in the course of the respondent’s employment. It also denied that the respondent’s employment was a substantial contributing factor to the injuries.

The respondent filed an Application to Resolve a Dispute (ARD) on 23 May 2019, seeking weekly compensation and medical expenses.

The Arbitrator found that the respondent was in the course of his employment at the time he was assaulted by JH. The Arbitrator considered that the principle arising from the relevant case law is that a worker may interrupt the course of his employment by misconduct or by pursuing some private purpose. Conversely, he returns to the course of his employment when his private pursuit or misconduct ceases and he recommences the activities associated with his work.

(Grierson v Poels & Co [1943] 17 WCR (NSW) 90; Pensiero v Farthing [1981] 55 WCR (NSW) 197; Stojkovic vTelford Management Pty Ltd [1998] NSWCC 8; 16 NSWCCR 165 (Stojkovic); per Neilson J considered and applied)

The Arbitrator then considered whether the respondent’s employment was a substantial contributing factor to his injury. The Arbitrator found that whilst the evidence in this case did not all go one way, that on balance there was a causal connection between the employment and the respondent’s injury.

(Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited [2009] NSWCA 324; Kelly v Secretary, Department of Family and Community Services [2014] NSWCA 102; 13 DDCR 111 (Kelly) per Basten JA applied)

The employer appealed the Arbitrator’s decision on the grounds that the Arbitrator erred in:

(a) finding the respondent had satisfied s 4 of the 1987 Act (Ground One); and

(b) finding that the respondent had satisfied s 9A of the 1987 Act (Ground Two);

The appeal considered whether or not a physical altercation which occurred at the appellant’s premises on 16 August 2018 in which the respondent worker was injured, occurred in the course of his employment, and if so, whether the employment was a substantial contributing factor to his injuries.

Held: The Arbitrator’s Certificate of Determination dated 5 August 2019 was confirmed

1. Before turning to a consideration of the two appeal points, the President noted the following factual matters which were not controversial between the parties, and upon which the Arbitrator relied in making his findings:

   (a) no issue was taken that the respondent, JH and SB were all employed by the appellant at the appellant’s Eastern Creek establishment;

   (b) the assault of the respondent by JH on 16 August 2018 occurred on the appellant’s premises;

   (c) the respondent had, in conversations with other employees of the appellant, described his attraction towards SB;

   (d) SB, as she was quite entitled, was not impressed by and did not seek any attention whatsoever from the respondent;

   (e) at the relevant time JH and SB were engaged;

   (f) the respondent’s duties with the appellant did not require him to work with either SB or JH;

   (g) prior to the assault, JH and the respondent had had no cause to speak with or work with each other;

   (h) the behaviour of the respondent took place in March and April 2018 on SB’s unchallenged evidence;

   (i) there is little, if any, evidence about what transpired between April and 16 August 2018. SB gave the post assault investigation an account that she had heard talk on the floor about little things the respondent had said. But this evidence goes no higher than this broad statement. The appellant received an email complaint from SB dated 5 April 2018 entitled “Work Incident” wherein SB describes the respondent’s behaviour. This email was not apparently acted upon by the appellant until after the assault on 16 August 2018, and

   (j) the respondent’s stated views about SB were common knowledge at the appellant’s factory.

   Ground One

2. The appellant’s complaint with respect to Ground One was that the respondent’s behaviour, unwanted and unwelcome as it was, was so far removed from his employment duties that it cannot be considered to have arisen out of or in the course of his employment. The respondent states that this reasoning fails to reveal an error of law and the findings made by the Arbitrator were, consistent with authority and the facts, available to him.
3. The President noted and concurred with the Arbitrator’s reasoning at [37]–[38]:

   “Irrespective of whether [the respondent’s] activities in talking about SB, and on one or two occasions approaching her, were outside the course of his employment, the evidence does not suggest that in the period leading up to the assault [the respondent] was performing other than his ordinary work or activities incidental to that work. If his words and actions in respect of SB were private concerns, which interrupted the course of the employment, he had resumed his employment, when he returned to the activities of his employment. Equally, if they are construed as misconduct, it ends when he returns to those activities.

   There is nothing in the evidence to suggest that during the shift, which he worked on the day of the assault, [the respondent] was doing other than performing the lawful commands of his employer. Up until the time of the assault, he was ‘engaged in his work or something incidental to it’ to use the language of Stephen J in in Williams. It is not suggested that he had any contact with SB or JH on this day.” (emphasis added) ([49])

4. The President identified no error in this reasoning. The President further noted that in the current matter it could not be the case that the subjective intention of JH, absent any conduct on 16 August 2018 on the part of the respondent, operated automatically to remove the respondent from the course of his employment. No error in the Arbitrator’s reasoning was identified. ([50]–[54])

   (Bill Williams Pty Ltd v Williams [1972] HCA 23; 126 CLR 146 and Stojkovic applied)

   Ground Two

5. The appellant’s argument in Ground Two was that the assault was a private quarrel between the respondent and JH and was thus unrelated to the respondent’s employment. The respondent states that this submission fails to demonstrate the type of error that is required under s 352 of the 1998 Act such as to enliven appellate intervention.

   (Raulstonv Toll Pty Limited [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston) applied)

6. The President noted the relevant passages of the Arbitrator’s decision with regards to s 9A of the 1987 Act commence at [45] and conclude at [63]. Tellingly at Reasons [59]–[61], the Arbitrator recounted the key factual findings which support the finding that he ultimately made at [62] and [63] that the respondent’s employment was a substantial contributing factor to the injury. The President found that these factual findings were available to the Arbitrator and were not in contest. ([46], [56])
7. The President found the Arbitrator’s finding that the workers in the factory had “possibly unwittingly, fanned the flames of discord by repeating to SB comments made about her by [the respondent]” compelling, and agreed that it was not possible to sever these comments from the ‘employment’. ([57]–[58])
8. The President further found that whilst the allegation that the respondent was JH’s private enemy, was superficially attractive, it did not serve to displace the undisputed facts in this matter, particularly given the respondent and JH were not known to each other outside of their common employment with the appellant. The President found the Arbitrator properly assessed the facts, noting the “evidence in this case is not all one way.” Notwithstanding this remark, the Arbitrator accepted that the respondent had established his case on the probabilities under s 9A of the 1987 Act. No error in the Arbitrator’s approach was made out and therefore Ground Two was dismissed. ([59]–[60])

(Raulston, Kelly per Basten JA, Bevan v Howard Smith Ltd [1945] 19 WCR (NSW) 81, [82] applied)

Guettaf v Spotless Services Australia Pty Limited [2020] NSWWCCPD 13

Fact finding and drawing inferences from the available evidence – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 considered and applied; determination of incapacity – error where incapacity not disputed – Department of Corrective Services v Bowditch [2007] NSWWCCPD 244; 6 DDCR 174, University of New South Wales v Kurup [2014] NSWWCCPD 19, Whaley v Upper Hunter Shire Council [2016] NSWWCCPD 32 considered

Wood DP

9 March 2020

Facts

The appellant worker was employed by the respondent employer as a head chef. He alleged that on 3 May 2014, he injured his right hip and suffered an inguinal hernia when he was lifting a bucket of chicken weighing 45 kg.

The respondent initially accepted the claim and paid weekly compensation from 7 May 2014 to 3 March 2015, together with associated treatment expenses. On 13 February 2015, the respondent issued a s 74 notice, disputing that: the appellant suffered injury within the meaning of s 4 of the 1987 Act; ongoing treatment was reasonably necessary, and the appellant’s employment was a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act.

In disputing liability, the respondent asserted that the appellant’s injury had resolved; he no longer suffered any incapacity, and he no longer required any treatment.

In the Commission, the appellant sought weekly payments from 4 March 2015 and ongoing treatment expenses. He also sought the difference between what he was paid by the respondent in the period 7 May 2014 to 3 March 2015 and the amount he alleged ought to have been paid.

The Senior Arbitrator entered an award in favour of the appellant. The worker appealed the following Senior Arbitrator’s determinations:

(a)     the appellant’s PIAWE as at 7 May 2014 was $1,548.23;

(b)     the appellant had no capacity to work from 7 May 2014 to 17 June 2014 and from 4 July 2014 to 8 October 2014, but otherwise had some capacity for work from 18 June 2014 to 3 July 2014 and from 9 October 2014, and

(c)     the respondent was to have credit for payments made during that period.

The issues on appeal were whether the Arbitrator erred in:

(a) law in;

(i) assessing the appellant’s capacity during the period from 7 May 2014 to 3 March 2015;

(ii)      denying the appellant procedural fairness and disregarding the way the case was run in relation to the period from 7 May 2014 to 3 March 2015, and

(iii)     failing to correctly apply the law (s 32A of the 1987 Act) to the facts of the case (Ground 1);

(b) fact and law in drawing inferences from the economic loss evidence when assessing the pre-injury average weekly earnings (Ground 2), and

(c) law by ordering the respondent to have credit for payments made during the period from 7 May 2014 to 3 March 2015 (Ground 3).

Held: The Amended Certificate of Determination was revoked in part and the matter was remitted to a different arbitrator for determination of the appellant’s weekly entitlements for a closed period.

Discussion

1. There was some force to the respondent’s submission regarding the appellant’s failure to comply with Practice Direction No 6. In his written submissions, the appellant largely provided no reference to the legislation or the authorities that may support his propositions and in his written submissions did not identify the inferences which he said were not available to the Senior Arbitrator. ([107])

   Ground 2

2. It was convenient for the Deputy President to deal with Ground 2 first. The appellant took issue with the Senior Arbitrator’s observation that the appellant did not address the commencement date of his employment. The appellant said that he addressed the commencement date in submissions and referred to the evidence. ([110])
3. The finding by the Senior Arbitrator was a finding of fact. In order for the appellant to succeed on this point, it is necessary to establish that material facts were overlooked or given too little weight, or that the available opposite inference is so preponderant that the decision must be wrong. These principles are relevant to appellate review in the Commission where the appeal is not a review and there is a requirement to show error (s 352(5) of the 1998 Act). ([113])

(Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, at [19]–[20] applied)

4. Deputy President Wood did not accept that the inference drawn by the Senior Arbitrator was not available to him. On the contrary, the finding was consistent with the evidence and was not only logical but compelling. The Arbitrator was not bound to accept one submission over another. His only obligation was to give reasons why he departed from the parties’ submissions, which he did. ([125])
5. Having made the necessary factual findings, the Senior Arbitrator was required to apply the mathematical formula provided, in accordance with ss 44C and 44D of the 1987 Act, in order to calculate the appellant’s PIAWE. There was no error disclosed in that process, and in any event, the figure arrived at by the Senior Arbitrator was within the ambit of the submissions made by the parties. ([130])
6. It followed that the appellant had failed to establish error on the part of the Senior Arbitrator in respect of his determination that the appellant’s PIAWE from 7 May 2014 was $1,548.23 and indexed thereafter. Having failed to establish the error complained of, Ground 2 of the appeal failed. ([131])

Ground 1

7. The first limb of Ground 1 raised the question of whether the Senior Arbitrator erred by assessing the appellant’s incapacity when it was not a matter that was identified as an issue in dispute. ([132])
8. The appellant submitted that there was no dispute raised by the respondent in respect of the extent of the appellant’s incapacity, and therefore, the Senior Arbitrator had no jurisdiction to determine the appellant’s capacity during the relevant period. The respondent properly conceded that it could point to no evidence that it had disputed the appellant’s incapacity during that period, but argued that the Senior Arbitrator was entitled to determine the degree of the appellant’s capacity for work when he was asked to make a finding in respect of the appellant’s entitlement to weekly payments.  ([138])
9. Deputy President Wood held the Commission does not possess an inherent jurisdiction, but only those powers which are incidental and necessary to the exercise of its statutory jurisdiction. Section 105 of the 1998 Act provides that the Commission has exclusive jurisdiction to determine all matters arising under the 1987 and 1998 Acts, but the jurisdiction is subject to the provisions of the 1998 Act. That is, the “exclusive jurisdiction” is qualified by express prohibitions and restrictions within the Act. The jurisdiction is contingent upon there being a dispute in existence and the nature of the dispute must be clearly identified. ([143])

(Raniere Nominees Pty Limited trading as Horizon Motor Lodge v Daley [2006] NSWCA 235; 67 NSWLR 417; 5 DDCR 61, per Santow JA, at [66] applied)

10. The dispute notices issued by the respondent preceded the dispute arising about the calculation of the appellant’s PIAWE and, as a consequence, they made no reference to that dispute. Prior to the issue about the appellant’s PIAWE arising, the dispute about the weekly payment was limited to the appellant’s entitlement from 14 May 2015. ([145])
11. Importantly, in this case there was no evidence that the respondent could point to that indicated that the respondent had resiled from its earlier acceptance that during the relevant period, when it paid the appellant weekly compensation, it did so on the basis that the appellant had no capacity. ([154])
12. Deputy President Wood was not satisfied that there was a dispute between the parties which was properly before the Commission as to the extent of the appellant’s incapacity between 7 May 2014 and 4 March 2015. ([155])

(Department of Corrective Services v Bowditch [2007] NSWWCCPD 244; 6 DDCR 174; University of New South Wales v Kurup [2014] NSWWCCPD 19; Whaley v Upper Hunter Shire Council [2016] NSWWCCPD 32, and Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227; 6 DDCR 488 applied)

It followed that the Senior Arbitrator erred in determining the appellant’s incapacity during the period 7 May 2014 to 4 March 2015 and Ground 1 of the appeal succeeded on that basis. Consequently, it was not necessary to determine the complaints the appellant raised in respect of a failure to be afforded procedural fairness or that the Arbitrator failed to apply the correct law. Additionally, as the award of weekly payments during the relevant period is to be revoked, then it followed that the order for credit to be given to the respondent for payments made was also revoked. It also was not necessary to determine Ground 3 of the appeal. In the circumstances, it was appropriate to remit the matter for re-determination by another arbitrator. ([156]–[157])

Guilbert v Glenworth Valley Horse Riding Pty Ltd [2020] NSWWCCPD 10

Worker; intention to enter legal relations

Snell DP

4 March 2020

Facts

The respondent ran a business that offered recreational and adventure activities including horse riding. The appellant went horse riding there as a customer from her early high school years. From the age of 13, the appellant carried out activities there from time to time as a volunteer. Volunteers were not paid. They cared for horses and carried out more general duties such as cleaning, helping in the café and helping staff or the yard manager. They participated from time to time in trail rides and riding lessons.

The appellant, whilst engaged as a ‘volunteer’, suffered injury to her thoracic spine on 9 April 2010 (she was aged 18 at the time) when she was thrown from a horse while helping on a trail ride. The respondent denied the appellant was a ‘worker’. Amongst other things, it relied on an ‘Information for Volunteers’ document (the disclaimer form) which set out daily and other tasks for volunteers. It also included a disclaimer, that horse riding was a dangerous activity and volunteers did so at their own risk. It stated the respondent was not able to supervise volunteers and anyone who decided to volunteer, or allowed their child to volunteer, fully accepted this.

Mr Lawler, the general manager of the respondent, gave evidence that on the first occasion a volunteer came to the respondent, they were required to fill out a horse riding disclaimer. Amongst other evidence given, he said that the appellant and her parent/guardian would have been required to sign one of the disclaimer forms prior to commencing as a volunteer. He noted that the respondent had not been able to locate hers. Other staff gave evidence that the respondent’s practice was not to permit volunteers to ride horses until the disclaimer had been signed and returned.

The appellant sought lump compensation. The Arbitrator entered an award for the respondent on the basis that the appellant was not a ‘worker’ in the respondent’s employ. This appeal was brought against that decision.

The issues on appeal were whether the Arbitrator erred:

(a) in law in making material findings contrary to the evidence (Ground No 1);

(b) in failing to make a material finding that the admission of ‘consideration’ by the respondent’s general manager established an intention to create a legal relationship (Ground No 2), and

(c) in law by applying material findings which should not have been made to the test in Secretary, Department of Family and Community Services v Bee [2014] NSWWCCPD 66 (Bee) (sic) (Ground No 3).

Held: The Senior Arbitrator’s decision dated 6 August 2019 was confirmed.

Ground No 1

1. There was no direct evidence that the disclaimer had been signed by the appellant or her parents. There was evidence from which it was possible to infer that the disclaimer had been signed. There was evidence that the respondent’s practice was to require provision of a signed disclaimer before a person was taken on as a volunteer or allowed on a horse. If the volunteer was under 18 years old, the respondent required a “signed parental/guardian consent”. There was evidence that the appellant worked as a volunteer from when she was 13 years old and that she rode horses. The evidence of these matters was not challenged. The Arbitrator clearly accepted it. Deputy President Snell held that the Arbitrator’s finding was properly available on the evidence, as an inference. ([76]–[77])
2. The appellant also challenged the evidentiary significance of the disclaimer, given that there was no evidence of the appellant signing a fresh disclaimer when she turned 18. There was direct evidence from the appellant that she did not, herself, execute such a document after turning 18. The nature of this challenge was not clear from how it was expressed; whether it was to the weight given to the disclaimer, or whether the document was asserted to be without legal validity as the appellant was a minor and turned 18 after it was executed. ([78])
3. The appellant submitted the Senior Arbitrator erred in “assuming the terms of the unsigned and undated disclaimer were relevant to determining intention to form a legal relationship”. The respondent submitted it was appropriate to have regard to all of the available evidence, including the disclaimer, in determining, on an objective basis, whether the parties intended to form a legal relationship. It, correctly, submitted that the disclaimer was only one aspect of the evidence that demonstrated the roles of the volunteers. The Senior Arbitrator made a factual finding regarding whether the disclaimer was furnished to the appellant’s parents and signed by them. The existence and contents of the disclaimer were part of the circumstances surrounding the alleged formation of the contract which the appellant sought to prove. The disclaimer was objective evidence relevant to the intention of the parties. It was clearly relevant. ([79])
4. The appellant submitted that there was no evidence that the form of the disclaimer in evidence was the same as that in use when the appellant first became a volunteer. This issue was not raised previously before the Senior Arbitrator and was not permitted to be raised on appeal. ([80])

(Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481 applied)

5. The appellant argued the disclaimer carried little or no weight, compared with the evidence of the appellant and Mr Lawler. The weight afforded to the disclaimer, together with other evidence was dealt with below as part of the discussion on Grounds 2 and 3. For the reasons under those grounds, the argument about the weight to be given to the disclaimer failed. The balance of the arguments raised by the appellant under Ground No 1 failed. Ground No 1 failed. ([81])

   Grounds Nos 2 and 3

6. The appellant’s argument that the enquiry should not focus on the time before the appellant was “appointed”, but rather on the parties’ obligations after the appointment was made, rather missed the point. The term “appointment” is vague. The prime argument, which was decided contrary to the appellant’s position, went to whether there was an intention to enter legal relations at all. If there was not, then there was never a contract in place, there was no point in time “after the appointment” to focus on. The submission that the focus should have been on the parties’ obligations after the “appointment” additionally begs the question. If there was no intention to enter legal relations then there was no contract. If there was no contract there were no contractual obligations. The way in which an agreement came into existence is one of the factors that the passage from [4] of South Australia v Commonwealth [1962] HCA 10; 108 CLR 130 states may be relevant to whether an intention to enter into legal relations is present. The appellant’s submission that it involved error for the Senior Arbitrator to have regard to the way in which the alleged contract came into existence was rejected. ([96])
7. One of the points raised in these grounds was that the evidence did not establish that the ‘Information for Volunteers’ document applied to the appellant. Deputy President Snell held that the material in that document was properly before the Senior Arbitrator and considered in determining whether there was an intention to enter into legal relations. The Deputy President did not accept the appellant’s submission that the document had no application to the appellant. He held the Senior Arbitrator’s conclusion that the repeated use of the term “volunteer” in the “Information for Volunteers” document as demonstrating that the respondent did not have an intention to create a legal relationship was properly available. The subject matter, the appointment of volunteers, including children, was not reflective of an intention to enter into a legal relationship. ([97]–[98])
8. Deputy President Snell held that riding horses was regarded, by volunteers, as one of the “good bits” of a volunteer’s activities, and morning saddle up was regarded as one of the less “good bits”. Mr Lawler regarded each of these as “parts of what volunteers are asked to do”. That is, each formed part of the duties of volunteers. The riding part of the activities was not in some way a separate benefit, which was made available in exchange for performing the duties of a volunteer. When Mr Lawler’s statements were read together, it was apparent that he was not, when he referred to “consideration”, using the term in its technical sense as the consideration that flows from one party to another pursuant to a contract. This was also consistent with part of the appellant’s evidence. ([101]–[102])
9. Deputy President Snell concluded that the horse rides and lessons did not represent some additional activity that was outside the activities performed by a volunteer, which was provided to the appellant as consideration. Grounds Nos 2 and 3 failed. ([107]–[108])

Dawson v Secretary, Ministry of Health [2020] NSWWCCPD 16

Deemed worker – Clause 16 of Schedule 1 of the 1998 Act – whether evidence of “co-operation;” weight to be given to oral evidence – Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472; Shellharbour City Council v Rigby [2006] NSWCA 308 applied

Wood DP

19 March 2020

Facts

The appellant claimant was working as a volunteer for St John Ambulance Australia (NSW) (St John) in the Hamilton Division on 18 September 2015, when she suffered a right ankle injury. The injury occurred when she was assisting the Divisional Superintendent to erect a shade at an event at the Broadmeadow Racecourse. St John were providing first aid services for the event at the request of the Newcastle Jockey Club.

The appellant claimed treatment expenses and lump sum compensation, relying on cl 16 of Sch 1 to the 1998 Act. The clause provides that in some circumstances, voluntary ambulance workers are deemed workers and entitled to compensation in accordance with the 1987 Act. The clause relevantly provides:

“(1)    A person who (without remuneration or reward) voluntarily and without obligation engages in any ambulance work with the consent of or under the authority and supervision of or in co-operation with the Health Administration Corporation constituted by the Health Administration Act 1982 is, for the purposes of this Act, taken to be a worker employed by that Corporation.

…

(3)     In this clause, ambulance work means work in or in connection with the rendering of first aid to, or the transport of, sick or injured persons.”

This matter had been the subject of a previous appeal in Secretary, Ministry of Health v Dawson [2019] NSWWCCPD 30 (Dawson) before Snell DP. Deputy President Snell revoked the Arbitrator’s decision and remitted the matter to another arbitrator for re-determination. The matter was heard before another Arbitrator on 5 September 2019. A Certificate of Determination was issued on 13 September 2019, in which the Arbitrator found that the appellant was not a deemed worker within the meaning of cl 16 of Sch 1 and entered an award in favour of the respondent. The appellant appealed that decision.

The issues on appeal were expressed as the following grounds:

(a) Ground One: the Arbitrator erred in determining that in Dawson, Deputy President Snell made findings as to what was required to prove “co-operation”;

(b) Ground Two: the Arbitrator erred in determining that it was necessary for the appellant to prove that at the time of the injury, she was co-operating with the Health Administration Corporation;

(c) Ground Three: the Arbitrator erred in law by confusing the test for “injury” within the meaning of s 4 of the 1987 Act with the necessary element of “co-operation” in applying the standard of proof;

(d) Ground Four: the Arbitrator erred in law by confusing the test for “injury” within the meaning of s 4 of the 1987 Act with the necessary element of “co-operation” in assessing whether the appellant was a deemed worker within cl 16 of Sch 1 of the 1998 Act;

(e) Ground Five: the Arbitrator erred in fact and law by finding that the appellant’s evidence, which was uncontested, did not prove that there was the necessary “co-operation” so that the deeming provision in cl 16 of Sch 1 applied;

(f) Ground Six: the Arbitrator erred in law by concluding that the appellant had not discharged the onus of proof in circumstances where the Arbitrator made specific findings in relation to s 67B of the Health Services Act 1997 and a factual finding in relation to the transfer of the patient’s care;

(g) Ground Seven: the Arbitrator erred in fact, law and discretion by finding Ms Murphy’s evidence persuasive, when Ms Murphy’s role was that of Health Manager – Insurance and Risk, and

(h) Ground Eight: the Arbitrator erred in law by failing to take into account the appellant’s submission that consent was evidence of co-operation.

Held: The Arbitrator’s Certificate of Determination dated 13 September 2019 was confirmed.

Ground 1

1. In Dawson, Deputy President Snell discussed the meaning of “co-operation” in response to a challenge made by the then appellant (the respondent in this appeal). The then appellant referred the Deputy President to two authorities dealing with the word “co-operation” without referring to any specific assistance that might be provided by those authorities. The Deputy President noted that neither party pointed to any authority in which the word had been dealt with in the context of cl 16 of Sch 1 and that he also was unable to find any such authority. ([117])
2. The Deputy President set about to interpret cl 16 of Sch 1 and found that for the purpose of the third alternative within the clause, the clause directs attention to the relationship between the alleged deemed worker and the Health Administration Corporation. Further the word “co-operation” meant “working or acting together or jointly.” Deputy President Wood agreed that this was a proper construction of the third alternative provided for in cl 16 of Sch 1, and the statutory meaning of the word “co-operation”. ([122]–[123])
3. The appellant’s submission relevant to this ground of appeal was that Snell DP’s consideration of the word “co-operation” was merely in the nature of an observation rather than a conclusive determination, so that the Arbitrator was not bound to adopt it. Deputy President Wood did not accept this submission. It was apparent that in determining the meaning of the word “co-operation,” which was a finding of fact, Snell DP embarked upon a process of statutory construction. The process of construction commences with the construction of the ordinary or grammatical meaning of the word in its context, having regard to the purpose of the legislation. Such an exercise is part of the functions of the Commission and is, at the Presidential level, in the nature of a judicial exercise which is authoritative in respect of the Commission’s primary decision makers, the arbitrators. The Arbitrator applied that interpretation as he was required to do. It followed that the Arbitrator did not err in adopting the construction of cl 16 of Sch 1 as determined by Snell DP in Dawson and Ground 1 failed. ([124]–[126])

(Rail Corporation New South Wales v Brown [2012] NSWCA 296; 82 NSWLR 318 and Wilson v Anderson [2002] HCA 29 applied)

Ground 2

4. Ground 2 took issue with the Arbitrator’s consideration that it was necessary for the appellant to prove that at the time of the injury, she was required to have been co-operating with the Health Administration Corporation. She did not explain why she considered the Arbitrator was wrong. The appellant’s complaint seemed to be that the Arbitrator was wrong to consider that the appellant needed to establish that the actual work she was doing was in co-operation with the Health Administration Corporation. ([127]–[128])
5. The Arbitrator’s approach was consistent with the explicit requirement to establish the element of co-operation in accordance with cl 16 of Sch 1 and was consistent with the approach taken by Snell DP in Dawson. That is, what is required is that the ambulance services provided by the appellant through St John in conjunction with an event at Broadmeadow Racecourse were provided in co-operation with the Health Administration Corporation. The appellant had failed to identify any error in that approach and Ground 2 failed. ([131]–[132])

Ground 3

6. The appellant complained that the Arbitrator applied a higher standard of proof to that of the civil standard. That is, a satisfaction that the evidence, on the balance of probabilities, was sufficient to establish her case. ([133])
7. Deputy President Wood held the Arbitrator considered the evidence that was before him and the legislative framework. There was nothing in his reasons that would indicate that he applied a greater burden of proof than that of the balance of probabilities. The acceptance of evidence and the weight it is given are peculiarly 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. The appellant had failed to identify any probative evidence that supported her case and more particularly, had not identified error on the part of the Arbitrator in his consideration of the evidence before him. This ground failed. ([137])

(Shellharbour City Council v Rigby [2006] NSWCA 308 (Rigby) applied)

Ground 4

8. This ground alleged “the Arbitrator erred in enlarging and including the issue of ‘injury’ with ‘co-operation’”. The appellant’s submissions in relation to this ground were simply an allegation that the Arbitrator erred. There was no issue of “injury” pursuant to s 4 of the 1987 Act and the Arbitrator did not embark on a consideration of the appellant’s occurrence of injury. The ground of appeal was incomprehensible and the absence of any cogent submission to explain or support the ground was fatal. ([138]–[139])
9. 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 to merely assert error without identifying why and how the conclusion reached by the Arbitrator was wrong. It followed that Ground 4 failed. ([140]–[141])

(Singh v Ginelle Pty Ltd [2010] NSWCA 310 applied)

Ground 5

10. Ground 5 asserted the Arbitrator erred in failing to accept that the appellant’s “uncontested” evidence was sufficient proof that there was the necessary “co-operation” between the Health Administration Corporation and St John. ([142])
11. Deputy President Wood held that the appellant’s assertion that her evidence was “uncontested” was patently incorrect. As observed by Snell DP in Dawson, there was a clear conflict in the evidence between the appellant’s evidence and that of Ms Murphy, and it was necessary to consider the evidence of Ms Murphy, which was material evidence. ([146])

Ground 6

12. This ground asserted that the Arbitrator made specific findings in relation to s 67B of the Health Services Act, and a factual finding in relation to the transfer of the patient care which weighed against the Arbitrator’s determination that the appellant had not discharged the onus of proof. Inconsistently, the appellant submitted that all the Arbitrator did in respect of s 67B was to read the provision onto the record. She submitted that the Arbitrator refused to properly consider the effect of the section, which she said created a statutory obligation on the Health Administration Corporation to co-operate with St John in order to discharge the obligations of the Minister of Health. ([147]–[148])
13. The assertion that the Arbitrator merely read the provision onto the record was patently incorrect. The appellant identified no part of the transcript or the Arbitrator’s reasons where the Arbitrator “refused to properly consider” the effect of s 67B, and the Arbitrator gave due consideration to the effect of the section. The appellant had put forward no persuasive argument as to how the Arbitrator erred as alleged and this ground failed. ([152]–[153])

Ground 7

14. Ground 7 complained that the Arbitrator erred in finding Ms Murphy’s evidence persuasive. ([154])
15. The Arbitrator had the opportunity to hear and observe Ms Murphy give evidence. Questions of the acceptance of evidence and the weight it is given are peculiarly 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. ([158])

(Rigby applied)

16. The appellant had not pointed to any incontrovertible facts that were inconsistent with the evidence of Ms Murphy and did not assert that the Arbitrator palpably misused his advantage in his assessment of Ms Murphy’s credibility. The Arbitrator formed the view that Ms Murphy, as a Risk Manager for the respondent, was in a position to have knowledge of the responsibilities that fell upon the shoulders of NSW Ambulance paramedics. That conclusion was open to him. The Arbitrator also had the opportunity to observe the witness, and, contrary to the appellant’s submission that Ms Murphy’s evidence should not be accepted because she was an interested party, concluded that she was thoughtful in giving evidence, taking care to provide accurate and truthful answers and was a truthful witness. ([160])

    (Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 (Devries) applied)

17. The Arbitrator’s reasons for accepting Ms Murphy’s evidence took into account the submissions of the appellant as to Ms Murphy’s capacity to give that evidence, the plausibility of her evidence, as well as her presentation. The Arbitrator’s conclusions were open to him. There was no basis upon which to disturb the Arbitrator’s finding and this ground failed. ([161)

    (Devries and Rigby applied)

    Ground 8

18. The appellant asserted the Arbitrator erred by failing to take into account her submission that consent was evidence of co-operation. The appellant said that this submission was not addressed at all by the Arbitrator. The appellant’s submission at arbitration was that the Order published in the Government Gazette amounted to “consent” between the Health Administration Corporation and St John, and that it could be inferred from that consent that there was co-operation between the two bodies. ([162])
19. The Arbitrator dealt with the submissions in relation to the Order and concluded that it was “fanciful” to suggest that an inference could be drawn that it was evidence of co-operation between Health Administration Corporation and St John. ([163])
20. The appellant also complained that the Arbitrator failed to take into account her submission regarding the relationship between the Health Administration Corporation, the employees of the local health network and NSW Ambulance as set out in the Health Services Act. That relationship was not in issue. ([165])
21. It was also apparent that the Arbitrator considered the local area health network to be part of that relationship. There was no basis for the appellant’s complaint that the Arbitrator failed to deal with this submission, when the submission was made about a fact not in issue. Ground 8 failed. ([166]–[168])

Blount v Penrith City Council [2020] NSWWCCPD 15

Application of State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 and associated authorities –  alleged errors in fact finding regarding a psychological injury, procedural fairness

Snell DP

13 March 2020

Facts

The appellant worker was employed by the respondent as a full-time carpenter for a period of approximately 18 years. He performed maintenance on council facilities. He allegedly developed a psychological injury “due to various incidents relating to asbestos, public health and safety issues (i.e. erecting goal posts)”. He also complained that these issues “re-emerged” in a subsequent period due to his concern regarding public health and safety issues, which he said were mismanaged by the respondent.

The Arbitrator was not satisfied the appellant had suffered a psychiatric or psychological injury. He found that, if he was wrong in this first finding, the respondent had established a defence pursuant to s 11A of the 1987 Act. The Arbitrator entered an award in favour of the respondent. The worker appealed.

The issues on appeal were whether the Arbitrator erred in:

(a) fact and/or law by failing to find that the appellant’s injury arose out of or in the course of his employment by impermissibly scrutinising the appellant’s perception of events (Ground No 1);

(b) law by failing to provide the appellant with procedural fairness by making adverse credibility findings about him and Dr Chew, in circumstances where: their credibility was not challenged by the respondent and they were not provided with an opportunity to respond to the adverse finding made (Ground No 2);

(c) fact and/or law by placing impermissible reliance upon extracts from the clinical records of Dr Chew and by then making findings that were not supported by the evidence (Ground No 3);

(d) fact by not considering whether the whole or predominant cause of the appellant’s psychological injury was the respondent’s actions with respect to discipline and/or performance appraisal (Ground No 4);

(e) law by reversing the onus of proof from the respondent onto the appellant when determining whether the respondent’s actions were reasonable for the purposes of s 11A (Ground No 5), and

(f) law by finding the respondent’s actions with respect to discipline and/or performance appraisal were reasonable (Ground No 6).

Held: The Certificate of Determination dated 4 September 2017 was revoked and the matter was remitted for re-determination by another Arbitrator.

Ground No 1

1. The appellant submitted that the Arbitrator had “impermissibly placed the [a]ppellant’s perception of events in issue”. The appellant referred to four specific “examples” in which the Arbitrator was submitted to have erred in this way. ([51])
2. It was necessary, for the appellant to succeed, that he establish the occurrence of ‘injury’. The Arbitrator’s discussion in the reasons at [209] went to the question of whether the appellant had done so. The Arbitrator observed, in the reasons at [208], that having regard to the reports of both Dr Teoh and Associate Professor Robertson, the finding of a psychological condition was dependent on the appellant’s version of events being accepted. One part of that version was a history recorded by Dr Reutens that the appellant felt unsupported by management. Whether the evidence supported that history was one small part of the enquiry. The Arbitrator identified the respondent’s actions in respect of the goalpost issue, where the respondent ultimately accepted the position the appellant had adopted, and management apologised to him. The Arbitrator considered this was consistent with the appellant being supported by management. This view was reasonably open on the evidence. ([67])
3. The generally expressed history of feeling “unsupported by management” was a summation, by Dr Reutens, of multiple matters identified in her history, the vast majority of which were not alleged to constitute ‘injury’ in the current claim. One aspect of the history, raised as part of that background, was the respondent’s handling of asbestos dating back to 2004. This was rejected by the Arbitrator on the basis it was not supported by the evidence. A finding of ‘injury’ on the basis of the other allegations referred to in Dr Reutens’ background history was not available on the claim as brought and pleaded. The appellant did not argue, before the Arbitrator, that an ‘injury’ finding should be made on such a basis. ([68])
4. The reference in the reasons at [209] to whether the matter was a “case involving perception” was also consistent with the Arbitrator being alive to the principles in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 (Chemler) and Attorney General’s Department v K [2010] NSWWCCPD 76; 8 DDCR 120, and reasoning in the light of those principles. The first example relied on by the appellant did not assist. ([69])
5. The second example relied on by the appellant was the Arbitrator’s rejection of the appellant’s history to Dr Chew, that the appellant was “instructed to perform duties which clearly broke the law”. The appellant did not argue on appeal that he was instructed to perform duties of such a nature. The appellant argued it was his perception that he was instructed to perform such duties. ([70]–[71])
6. Contrary to the appellant’s submissions, this did not involve the Arbitrator assessing the appellant’s perceptions of real events by reference to a “reasonable, rational and proportional” standard. It involved the Arbitrator assessing the credibility of what the appellant said on the issue by reference to the appellant’s state of knowledge (the problem was in the course of being solved) and the appellant’s level of experience (a qualified carpenter of 18 years’ experience, with a builder’s licence, leading a team). The effect of decisions such as Chemler is not that a decision maker is obliged to accept everything that is said by a worker in a psychological injury case, on the basis that it represents ‘perception’. ([72])
7. The Arbitrator’s discussion of the notes of Dr Chew (and Dr Bosanquet) plainly went to whether events at work associated with the disciplinary proceedings caused a psychological injury. It was relevant to whether events were causative of the alleged injury, bearing in mind the absence of relevant recorded contemporaneous complaint. It was relevant to the weight that could be given to the opinion of Dr Chew, having regard to the nature and extent of the complaints recorded in Dr Chew’s material. The Arbitrator ultimately concluded that he found the evidence of both Dr Chew and Dr Bosanquet “unhelpful”. ([76])

(Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 399, at [82]–[83] applied)

8. In respect of the third example referred to by the appellant, the Arbitrator was not impermissibly scrutinising the appellant’s evidence of perception. He was assessing the medical evidence, including the lay material on which it was based, to determine the weight (if any) to be ascribed to such evidence in considering whether the appellant had established ‘injury’. The third example did not assist the appellant. ([79])
9. The matters raised by the appellant in the fourth example were dealt with in the discussion in the second example. Ground No 1 failed. ([81]–[82])

Ground No 2

10. There was nothing in the transcript of the arbitration hearing that reflected any attack on the credit of the appellant or Dr Chew. Deputy President Snell accepted that the Arbitrator made findings going to the credit of the appellant and Dr Chew. The appellant did not make submissions before the Arbitrator going to the credit of either himself or Dr Chew, understandably given that these matters were not raised. ([96]–[99])
11. Findings adverse to the credit of the appellant and Dr Chew were made by the Arbitrator, in circumstances where there was no cross-examination on the issue, the issue was not the subject of submissions, and it was not raised with the parties. ([104])
12. In the circumstances of this matter, there was a denial of procedural fairness. Ground No 2 was upheld. It could not be concluded that, if the credit issue was raised with the appellant appropriately at the arbitration hearing, and there was an opportunity to deal with it, either through submissions or oral evidence, this could not possibly have affected the result. It followed that the appeal was allowed. It was unnecessary to deal with the other grounds. ([105]–[108])

(Stead v State Government Insurance Commission[1986] HCA 54; 161 CLR 141; Toll Pty Ltd v Morrissey [2008] NSWCA 197; 6 DDCR 561; Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 applied)

Duck v EB and DE Bunt Pty Limited [2020] NSWWCCPD 11

Extension of time; medical expenses pursuant to s 60 of the 1987 Act

Parker SC ADP

9 March 2020

Facts

The appellant worker sustained injuries in August 2017 when he fell in the course of his employment with the respondent employer. It was common ground that the appellant sustained some injury on that day.

The appellant sought an award of compensation pursuant to s 60 of the 1987 Act for surgery in relation to his bilateral carpal tunnel syndrome. The Arbitrator entered orders for the respondent, firstly, in respect of the worker’s claim of bilateral carpal tunnel syndrome in both wrists and secondly, with respect to the claim for the proposed bilateral carpal tunnel release. The worker appealed, seeking revocation of the second order. He sought a further order that the surgical treatment sought by the appellant, the bilateral carpal tunnel surgery, was reasonably necessary as a result of the injury sustained to his right forearm and elbow in August 2017.

The issues on appeal were whether the Arbitrator:

(a) erred at law and misdirected himself when he found that a claim for the cost of carpal tunnel syndrome to the wrists is not reasonably necessary, by requiring that such need must be a “result” of personal injury (s 4(a) of the 1987 Act) to the worker’s wrists (Ground 1);

(b) erred at law by rejecting the evidence of Dr Marshall as “mere conjecture” (Ground 2);

(c) erred in law by failing to provide adequate reasons or adequately deal with the issue of whether the surgery to the wrists was reasonably necessary as a result of the injury to the elbow and forearm (Ground 3);

(d) erred by not properly considering the accepted test for determining the need for medical treatment pursuant to s 60 of the 1987 Act (Ground 4), and

(e) erred at law by failing to determine whether the accepted elbow injury provided a material contribution to the need for wrist surgery (Ground 5).

Held: Leave to extend time to appeal was granted and the Certificate of Determination dated 21 August 2019 was confirmed.

Ground One

1. Ground 1 of the appeal sought to make a case different from that advanced before the Arbitrator. The ground asserted error of law and misdirection leading to an erroneous conclusion of fact, being that the claim for the cost of the surgery should not be allowed. However, neither the text of the ground, nor the submissions, formulated in a precise manner the legal challenge made by the appellant. ([48], [51])
2. The appellant complained that the Arbitrator adopted an incorrect statutory test (“requiring that (the need for surgery) must be a ‘result’ of personal injury (s 4(a) of the 1987 Act) to the worker’s wrists”). ([52])
3. Acting Deputy President Parker SC observed that the Arbitrator found that the appellant had not discharged the onus of proof on this issue. The determination in Order 1 of the Certificate of Determination reflected this conclusion. Because the appellant did not challenge the first determination in the Certificate of Determination, Ground 1 of the appeal had to fail. ([57])
4. Whether a tribunal tasked with finding facts is “satisfied” or persuaded by the evidence is a question of fact, which if erroneous, is an error of fact not law. The appellant did not challenge the finding at paragraph [60] of the statement of reasons as an error of fact. Understood in the context of the Arbitrator’s decision, Ground 1 of the appeal did not raise an error of law or misdirection. ([58])

(Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, at 156A applied)

5. In the Acting Deputy President’s view, the Arbitrator’s decision against the appellant was based on his rejection, as a matter of fact, of the evidence as to causation of Dr Marshall. The Arbitrator did not get to the stage of applying the legal test to the facts because he rejected the central hypothesis of fact supporting the appellant’s claim. Acting Deputy President Parker SC concluded that the factual underpinning of Dr Marshall’s hypothesis on causation was not supported by the evidence and that Dr Marshall’s theory on causation should be rejected. Ground 1 of the appeal was dismissed. ([61]–[62], [81]–[82])

   Ground Two and Ground Three

6. These two grounds were related and were dealt with together. The Acting Deputy President emphasised that the complaint was that the Arbitrator’s decision was flawed by legal error. ([83])
7. Acting Deputy President Parker SC held the Arbitrator did not reject Dr Marshall’s evidence. Dr Marshall’s reports were admitted into evidence. The Arbitrator did not accept the accuracy of the history contained in the reports. It was misleading to describe this as “rejecting the evidence of Dr Marshall”. ([84])
8. It is difficult to establish legal error where the fact finder has not rejected the evidence, but has declined to accept the opinion contained in the report. Dr Marshall’s report and opinion were before the Arbitrator. What the appellant really complained about was that the Arbitrator did not accept the opinion. ([85])
9. Ground 2 mis-stated the Arbitrator’s reasons. It was advanced as an error of law, but as formulated, this ground could only be an error of fact. But, in any event, there was no error of law or fact. Ground 2 of the appeal was not made out and was dismissed. ([86], [91]–[92])
10. The appellant’s submissions in support of Ground 3 complained that the Arbitrator did not deal with the factual legal question of diagnosis and did not “properly consider alternative bases” for an award in the worker’s favour. ([93])
11. Section 294(2) of the 1998 Act requires the Arbitrator to provide a “brief” statement of reasons. There is no further guidance provided by the legislation as to the appropriate content. ([95])
12. The principles relevant to an assessment of the adequacy of the reasons for a decision by a judicial officer are discussed in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 (Beale), at 443 where Meagher JA said there are three fundamental elements:

(a) refer to the relevant evidence;

(b) set out the material findings of fact or ultimate findings of fact, and

(c) provide reasons for making the relevant findings of fact and in applying the law to the facts as found.

Importantly, where reasons are shown to be inadequate, the court will not necessarily intervene. ([96]–[97])

13. The appellant’s complaint was that the reasons were not sufficient to explain the rejection of Dr Marshall’s evidence as “mere conjecture”. However, for the reasons given in Ground 2, the Acting Deputy President found the Arbitrator’s reasons reflected a speculative view of the proposed remedy’s efficacy that was justified by Dr Marshall’s report. ([98])
14. Acting Deputy President Parker SC held the statement of reasons fulfilled the requirements of s 294(2) of the 1998 Act and satisfied the fundamental essentials for judicial exposition of reasons. In the Acting Deputy President’s view, no inadequacy of reasons was demonstrated. Ground 3 of the appeal was not made out and was dismissed. ([100]–[101])

Ground Four

15. The Arbitrator rejected the appellant’s case regarding whether he suffered injury/ies to the left or right wrist and/or median nerve carpal tunnel syndrome and this led to order one in the certificate of determination. There was no application to appeal from that order. ([104])
16. The Arbitrator, adversely to the appellant’s case, accepted the respondent’s contention that, while the wrist surgery might be reasonably necessary, it was not the result of the elbow injury in August 2017. The appellant’s case on this issue before the Arbitrator was not rejected because the claim did not satisfy the statutory test for an award of s 60 expenses. It was rejected because the Arbitrator did not accept Dr Marshall’s hypothesis as to causation, that is, the need for surgery being due to the injury to the elbow. The Arbitrator did not misapply the statutory test for an award of s 60 expenses. That was sufficient to dispose of Ground 4. ([11]–[12], [105]–[111], [113])

Ground Five

17. Ground 5 was expressed as an error of law, namely that the Arbitrator failed to determine whether the accepted elbow injury provided a material contribution to the need for wrist surgery. ([114])
18. The only evidence to support the proposition that the fall of 17 August 2017 made a material contribution to the need for wrist surgery was that of Dr Marshall. That evidence was rejected. It was not correct to say the Arbitrator failed to make a determination. It followed that the issue was determined adversely to the appellant. Ground 5 of the appeal was not made out and was dismissed. ([116]–[118])