Appeal Case Summaries

Ferro v Mercon Group Pty Ltd [2023] NSWPICPD 4

WORKERS COMPENSATION – section 38 of the 1987 Act – member’s obligation to give reasons – failure to give reasons – Sydney Catholic Schools Limited v Bridgefoot [2021] NSWPICPD 17 and Wang v State of New South Wales [2019] NSWCA 263 considered

Parker SC ADP

1 February 2023

Facts

The appellant worker suffered a fall in the workplace of approximately 3 metres when he was standing on a slab which gave way. The appellant suffered a severe injury to the left ankle. The respondent employer accepted liability for the ankle injury. The respondent did not accept liability for alleged injuries to the cervical spine, lumbar spine, laceration to the head, impairment of the visual system and a psychological injury in the form of Post-Traumatic Stress Disorder and depression.

The Member found that the appellant had suffered an injury to the left lower extremity (leg and ankle) and a psychological injury. He found for the respondent (against the appellant) with respect to the injuries of the laceration to the head, the lumbar spine, cervical spine and visual system. There was no appeal from the findings with respect to these injuries.

The only controversial factual issues related to whether the insurer had made an assessment of the appellant as to his “current work capacity” and whether s 38(2) or (3) of the 1987 Act applied. This issue was of importance to the appeal because it was critical to the operation of s 38. The Member made no finding with respect to this issue.

The worker appealed against Order 6 of the Certificate of Determination, which held:

“6. The [appellant] has not satisfied the requirements for an award for weekly compensation pursuant to section 38. Award for the respondent on the claim for weekly compensation pursuant to section 38 from 3 August 2019 to date and continuing.”

The issues on appeal were raised in the following grounds:

(a) the Member erred in law when he failed to give any or any adequate reasons for making an award for the respondent in respect of the claim for weekly compensation on or from 3 August 2019 (Ground 1);

(b) the Member erred in fact or law when he made an award for the respondent in respect of the claim from 3 August 2019 and continuing (Ground 2), and

(c) such other grounds as become apparent when the transcript is available (Ground 3).

No additional grounds of appeal were submitted.

Held: Order 6 in the Certificate of Determination in respect of the entitlement pursuant to s 38 of the 1987 Act was set aside. The matter was remitted for re-determination by a different member in respect of the claim made pursuant to s 38 of the 1987 Act.

Ground 1

1. The appellant submitted the Member found that the appellant had no current work capacity up to 2 August 2019, but gave no consideration as to whether the appellant continued to have no “current work capacity” after 2 August 2019. The Member accepted the opinions of Drs Carran and Poplawski given in 2021 when concluding that there was no current work capacity up to 2 August 2019. The appellant submitted the Member must have assumed there had been an application under s 38(3) by the worker and an assessment by the insurer, otherwise the Member would not have had jurisdiction to determine the s 38 issue. ([20]–[21])
2. Acting Deputy President Parker SC held that Ground 1 of the appeal was made out and Order 6 of the Certificate of Determination had to be set aside. ([24])
3. In the transcript, counsel for the appellant directed the Member’s attention to the opinions of Drs Carran and Poplawski to support the submission that the appellant had no current work capacity. It was ultimately submitted before the Member:

“That’s a clear opinion as to there being no current work capacity. That’s consistent with there being no current work capacity during the period with which these proceedings can be concerned, which, with being the period of the first 260 weeks following the injury. And there is, there is no reason on the material before you, to conclude that the [appellant’s] capacity was any greater at any stage since the subject accident.” ([31])

4. The Acting Deputy President observed that the submission was fundamental to and involved a substantial part of the appellant’s case for weekly payments of compensation. The Member found the appellant had established that he had been totally incapacitated for 130 weeks. Contrary to the appellant’s submissions, the Member did not expressly find that the appellant had “no current work capacity”. He found “total incapacity”, but this is not the same as a finding of “no current work capacity”. Furthermore, the Member had no authority to make findings with respect to current work capacity for the purpose of s 38 of the 1987 Act. Section 38 requires the insurer to make a work capacity assessment. Therefore the Member’s function in the event of a contest is to determine whether the insurer has made an assessment and what is the assessment. ([32]–[34])
5. Acting Deputy President Parker SC found that a claim under s 38 was clearly raised in the Application to Resolve a Dispute. The appellant’s counsel made a clear submission that the appellant’s entitlement to compensation was not limited to the 130 week period which expired on 2 August 2019 but extended for a further 130 week period. Counsel did not expressly direct attention to s 38 in terms, but as the only circumstance in which compensation could be payable after 130 weeks was pursuant to s 38, it was not essential to raise the submission. In any event, it was plain from the terms of order 6 that the Member recognised he was dealing with s 38. The Acting Deputy President held that s 38 required the insurer to make an assessment as to whether the appellant had a current work capacity or no current work capacity. The Member did not make a finding with respect to whether or not the insurer had made any such assessment. ([35]–[37])
6. To support order 6, the Member was required by s 294(2) of the 1998 Act to:

(a) Make findings and provide reasons as to whether the insurer had made an assessment of the appellant’s current work capacity.

(b) If so, determine what assessment the insurer had made for the purpose of s 38(2) and (3) of the 1987 Act.

(c) If s 38(2) applied, make findings as to whether the insurer had concluded that the worker was likely to indefinitely have no current work capacity.

(d) If s 38(3) applied, make factual findings with respect to s 38(3)(a) to (c). ([38])

7. The disposition of the appellant’s claim for weekly compensation after 3 August 2019 required the Member to provide reasons sufficient to satisfy s 294(2) of the 1998 Act and r 78 of the 2021 Rules. The absence of reasons was an error of law and the order had to be set aside. Parker SC ADP was not persuaded that he should exercise the power under s 352(6A) of the 1998 Act to determine the matter. ([39]–[43])

Ground 2

8. The appellant submitted that the matter proceeded on the basis that only the first and second entitlement periods were in dispute. The appellant submitted that neither party made submissions about s 38 and that in the circumstances the Member should have raised the matter with the parties if he proposed to make a determination. ([45])
9. The Acting Deputy President stated that Ground 2 of the appeal did not satisfy the Procedural Direction WC3 – Presidential appeals and questions of law with respect to specificity of the error alleged. The ground amounted to a global complaint that the appellant should not have lost. That did not satisfy the requirements of r 123 of the 2021 Rules, nor did it meet the requirements of Procedural Direction WC3 at paragraphs [24]–[25]. ([48]–[50])
10. In the Acting Deputy President’s view, the issue of the appellant’s entitlement under s 38 was before the Member. The Member’s decision adverse to the appellant was vitiated by the absence of reasons. ([51])
11. The complaint in relation to Ground 2 was in the nature of a complaint by the appellant that his counsel was not informed of the likelihood of an adverse result under s 38. But the appellant’s counsel made submissions with respect to this issue. The appellant included both medical and lay evidence in relation to this issue. The Member was not required to inform the appellant in advance of his proposed determination. Ground 2 was defective as to form and substance as it covered the same error the subject of Ground 1. Ground 2 of the appeal was dismissed. ([54]–[55])

Proposed Ground 3

12. The appellant asserted a right to file further grounds of appeal after the transcript had been considered. No submissions were made to support this ground, nor was legislative authority cited for the asserted right to proceed in this manner. ([56])
13. Ground 3 did not comply with the requirements of Procedural Direction WC3. Furthermore, so far as the Acting Deputy President could see, there is no right to make such a reservation as claimed by the appellant. ([57])
14. It may well be that in any particular matter the transcript is unavailable when the initial appeal papers are prepared. A note in the submissions to this effect may be appropriate. Doubtless the Commission is sufficiently flexible to accommodate matters arising from the delayed receipt of the transcript, and in this case, a Direction was issued by the President’s Delegate on 13 May 2022 attaching the transcript and inviting the appellant to make any supplementary submissions it wished to in respect of the transcript by 27 May 2022. Nothing further was submitted by the appellant and it needed to be said that Ground 3 as expressed in the present matter did not constitute a ground of appeal and should not be included as a ground of appeal. ([58])

Conway v Campbelltown Catholic Club Limited [2023] NSWPICPD 5

WORKERS COMPENSATION – section 151Z(1)(c) of the 1987 Act – Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; 156 CLR 522 and Lindeman Limited v Colvin [1946] HCA 35; (1947) 74 CLR 313 discussed

Parker SC ADP

1 February 2023

Facts

The appellant worker alleged that he sustained multiple hernias as a result of lifting bags of rubbish and placing them in a dumpster bin. He claimed lump sum compensation against the respondent employer. The respondent disputed the allegation of injury and denied that the appellant sustained the hernias as alleged or in the course of employment with the respondent.

The appellant had surgical treatment for the hernias performed by Dr Fedorine. As a result of the surgery, the appellant suffered severe complications including an orchidectomy. The appellant alleged that the surgery and medical treatment were performed negligently.

On 7 May 2019, the appellant commenced proceedings in the Supreme Court against Dr Fedorine. On 2 November 2020, the appellant and Dr Fedorine executed a Deed of Release and Indemnity (the Deed), whereby Dr Fedorine agreed to pay the appellant the sum of $650,000, inclusive of costs, in full and final settlement of the claim. Dr Fedorine did not admit negligence. As a condition of the settlement, the appellant agreed to discontinue the Supreme Court proceedings.

The Member made an award in the respondent employer’s favour. The worker appealed.

The issue on appeal was whether the Member erred in “law when he found the damages paid in the medical negligence settlement gave rise to a bar to the appellant recovering workers compensation benefits under s 151Z(c) [sic] of the [1987 Act]”.

Held: The Member’s Certificate of Determination dated 23 March 2022 was confirmed.

Consideration

1. The appellant challenged the Member’s determination by submitting that s 151Z(1) of the 1987 Act referred to facts (the circumstances) which gave rise to the “other cause of action”. It requires those same facts or circumstances to give rise to the compensation payable in respect of the injury. ([27])
2. Acting Deputy President Parker SC was of the view that the Member found against the appellant on two bases, namely:
   (a) section 151Z(1)(c) applied and the appellant had recovered damages from a person other than his employer, namely, Dr Fedorine, and
   
   (b) the residual right inguinal hernia as assessed by Dr Endrey-Walder presented a 9% whole person impairment which did not reach the threshold required pursuant to s 66 of the 1987 Act. ([39])

3. There was no appeal against the second basis upon which the Member determined the case adverse to the appellant. The only challenge was to the determination at [42] of the reasons. It followed that even if the appeal succeeded, there would not be a different award. ([40])
4. The appeal from the award based on the Member’s determination that s 151Z(1)(c) of the 1987 Act was a bar to the appellant’s claim for compensation failed and was dismissed. ([41])
5. Parker SC ADP held it is established learning in workers compensation law that when a surgical procedure has been carried out to remedy or alleviate an injury compensable under the workers compensation legislation, the total condition resulting from the injury and the surgery is to be attributed to the original injury, so long as the worker reasonably agreed to the operation. ([43]–[44])

(Migge v Wormald Brothers Industries Limited [1972] 2 NSWLR 29, 44–46, per Mason JA in dissent expressly approved on appeal in the High Court, (1973) 47 ALJR 236 and Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; 156 CLR 522 (Mahony) applied)

6. The appellant’s claim, as brought in the Application to Resolve a Dispute was for 21% whole person impairment. The impairment was the result of the original hernia injury enlarged by the surgical treatment. It followed that the “total condition” including that which resulted from the surgery is attributed to the initial injury on 15 June 2016. It was for this “total condition” that the appellant was compensated under the Deed. ([48])
7. The appellant relied on Kornjaca v Steel Mains Pty Limited [1974] 1 NSWLR 343 (Kornjaca) as authority for the proposition that a tortious act which exacerbates the effects of an injury is not recoverable under s 151Z of the 1987 Act and that in the appellant’s case, the negligence of the surgeon and the subsequent loss of the right testicle is a tortious act which exacerbates the effects of the injury. Acting Deputy President Parker SC was not entirely clear as to what the appellant intended by the submission, but took the appellant’s submission to imply that the payment of damages for the tortious act is therefore separate from the claim for compensation with respect to the original injury. ([49])
8. The Acting Deputy President did not accept this submission. He observed that the respondent’s submission that Kornjaca concerned a claim for contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 was correct. Furthermore, Kornjaca was reversed in the High Court. The High Court decision was distinguished in Mahony as being premised on having taken the facts to be that the second accident was not a foreseeable consequence of the first employer’s negligence notwithstanding the first employer’s concession to the contrary. The decision in Kornjaca dealing with s 64 of the Workers’ Compensation Act 1926, a provision which was the 1926 Act’s equivalent to s 151Z, turned on the fact that the plaintiff had obtained a judgment by consent against Steel Mains. That part of the decision did not assist the appellant in this matter. ([50])
9. The appellant had received monetary compensation pursuant to the Deed of 2 November 2020 from Dr Fedorine. The money paid under the Deed was “damages in respect of the injury”. As the appellant first recovered damages from Dr Fedorine, he was not entitled to recover compensation under the 1987 Act from the employer, the present respondent: s 151Z(1)(c). Parker SC ADP held that the Member was correct to apply s 151Z(1)(c) in answer to the appellant’s claim to compensation. ([51])

Conclusion

10. There was no challenge to the finding adverse to the appellant that because the initial injury resulted in a whole person impairment less than 10%, the appellant’s claim under s 66 could not be sustained in any event. The challenge to the Member’s determination to apply s 151Z(1)(c) of the 1987 Act failed and the appeal was dismissed. ([52]–[53])

Fairfield City Council v Comlekci [2023] NSWPICPD 6

WORKERS COMPENSATION – application for leave to appeal an interlocutory decision pursuant to s 352(3A) of the 1998 Act

Wood DP

8 February 2023

Facts

The respondent worker was employed by the appellant as a childcare worker at one of the respondent’s early learning centres. On 25 October 2019, she tripped and fell onto her knees and both hands, suffering an injury to her right hand, which caused her to go off work. She then returned to work, performing administrative duties for a period before she returned to her pre-injury duties. Her claim for workers compensation was accepted.

At the beginning of 2020, the respondent was transferred to another early learning centre. On 10 September 2020, the respondent was minding a child with high needs who was attempting to get over a low height fence which separated the Early Learning Centre from an occasional care facility. The child, who had been trying to get hold of a bicycle that was in the adjoining property, eventually gave up and turned to the respondent and “head butted” her. In the process of defending herself, the respondent put her hands up, but her right hand was suddenly pushed downwards, causing her pain. The respondent ceased work and sought medical treatment.

The respondent had a short period off work, before returning two days per week for several months, until she returned to full time hours performing her role with children for half of those hours and spending the other half of her hours doing administrative duties. The respondent continued to experience symptoms in her right hand, was unable to perform some tasks such as chopping food and was certified by her medical practitioner to have a lifting limit of 5 kilograms.

On 13 April 2021, the appellant denied ongoing liability for workers compensation payments on the basis that the respondent had not suffered an injury, or, if she had suffered an injury, her employment was not the main contributing factor to the injury. In the alternative, the appellant asserted that the effects of the injury had ceased. The appellant further asserted that the respondent was able to earn in suitable employment as much or more than her pre-injury earnings and was thus not entitled to weekly payments of compensation.

On 5 August 2021, the appellant contacted the respondent and advised that unless she provided a medical clearance to return to full duties, she was not to attend for work. The respondent ceased work and lodged a claim for weekly payments of compensation and treatment expenses, which the appellant denied. The respondent sought weekly payments in the Commission, as well as treatment expenses.

On the day that the matter was listed for conciliation and arbitration, the respondent sought to have admitted financial documents which she had emailed to the Commission that day. The documents included the respondent’s income statements for the years 2019, 2020, 2021 and 2022, issued by the Australian Taxation Office, and the respondent’s payslip dated 3 February 2022. The Member admitted the 2022 income statement and the payslip, but declined to admit the remaining income statements. The respondent made further oral applications, firstly seeking an order that the appellant produce the material the appellant relied upon to calculate the respondent’s pre-injury average weekly earnings and secondly, asking the Member to defer his consideration of the weekly payments claim until after the liability issues had been determined. The Member declined both applications.

On 21 April 2022, the Member issued a Certificate of Determination. Amongst other things, he determined that the respondent sustained injury arising out of or in the course of her employment with the appellant. The appellant was ordered to pay the respondent’s treatment expenses and to file a wages schedule by 6 May 2022, with the respondent’s payslips and other wage material annexed covering the period from 10 September 2019 to 10 September 2020. The respondent was ordered to lodge her wages schedule by 13 May 2022, and both parties were given a timeframe within which to file written submissions in relation to the wages schedules. The time for filing the submissions expired on 25 May 2022.

The appellant lodged the appeal from the Member’s decision on 16 May 2022, prior to the expiration of the above timetable.

It was conceded that the appeal was against an interlocutory decision. It was necessary for the Deputy President to deal with the preliminary issue of whether leave to appeal should be granted.

The issues on appeal were based on the following four grounds of appeal:

(a) error of law in determining the matter on a basis not put by or to the parties (Ground A);

(b) error of fact in relation to current work capacity and ability to earn (Ground B);

(c) denial of procedural fairness (Ground C), and

(d) error of discretion in relation to the admission of evidence (Ground D).

Held: The application for leave to appeal pursuant to s 352(3A) of the 1998 Act was refused. The matter was remitted to the same non-Presidential Member for determination of the remaining issues in dispute.

Whether leave should be granted to bring the appeal

1. The granting of leave under s 352(3A) of the 1998 Act requires that the Presidential Member be satisfied that it is “necessary or desirable for the proper and effective determination of the dispute”. The respondent contended that leave should not be granted because the monetary threshold required by s 352(3) of the 1998 Act had not been met because no amount of compensation had been awarded. Deputy President Wood did not accept that submission. The pleadings disclosed that the respondent sought weekly payments of compensation from 5 August 2021 at a rate of $1,282.50 on an ongoing basis. The amount claimed of arrears alone clearly met the required monetary threshold. ([21]–[24])

   (O’Callaghan v Energy World Corporation Limited [2016] NSWWCCPD 1 applied)

2. The appellant asserted that Grounds A and C, which raised issues of procedural fairness, raised important issues of principle. The Deputy President accepted the respondent’s submission that the appeal did not raise any important issue or any outstanding issue of principle. The appellant did not allude to any characteristic of the principles of procedural fairness that establishes that it would be of greater benefit if the issues raised were determined at this stage. ([25])
3. Section 42 of the 2020 Act provides that the Commission’s objective is the timely disposition of disputes. The lodgment of this appeal at the interlocutory stage had already caused a significant delay in the resolution of the dispute. Wood DP considered that it would be no more efficient to determine the issues raised in the appeal now than it would be when the proceedings have concluded. ([26])
4. The appellant asserted that if a more appropriate assessment was made of the respondent’s ability to earn, the matter would resolve. That would indicate that on the contrary, if the question of the respondent’s capacity to earn was determined with a result that was more favourable to the respondent, then that would not assist in the resolution of the matter. The Deputy President did not accept that the appellant’s submission was a proper basis upon which to grant leave to appeal. The potential consequence of not granting leave was not significant. The appellant retained the right to lodge an appeal at the conclusion of the proceedings before the non-Presidential Member. In those circumstances, Wood DP did not consider it appropriate to comment upon the merits, if any, of the appeal. ([27]–[28])
5. The proceedings before the Member had not concluded. The Member was part way through a determination of the respondent’s entitlement to weekly compensation. At the end of the day, one or the other party may be aggrieved or satisfied with the result. The Deputy President did not consider that it was in the interests of justice that the appeal process intervenes at this interlocutory stage. For that reason, it was not considered that it was necessary or desirable for the proper determination of the dispute to grant leave to appeal the interlocutory decision. ([29])

K & W Haulage Pty Ltd v BCL [2023] NSWPICPD 7

WORKERS COMPENSATION – Extension of time to appeal – Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 applied; Ho v Professional Services Review Committee No. 295 [2007] FCA 388; Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34; Gallo v Dawson [1990] HCA 30 – discussed and applied – perception of events – Attorney General’s Department v K [2010] NSWWCCPD 76 applied – duty to give reasons – Waterways Authority v Fitzgibbon [2005] HCA 57 applied – Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 considered and applied – failure to consider evidence State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; 160 ALR 588 – applied

Wood DP

8 February 2023

Facts

The respondent worker, BCL, commenced employment with the appellant as a truck driver in March 2020. His employment was terminated on 5 November 2020. The letter of termination cited the respondent’s involvement in road accidents, failure to enter weigh bridges, failure to give notice of annual leave days and being involved in altercations with other workers on various sites while the respondent’s employment was still probationary.

The respondent lodged a workers compensation claim alleging that he had suffered a psychological injury as a result of being bullied and harassed on the basis of his sexual orientation and his HIV status over the period of his employment with the appellant.

The Member found that the respondent suffered a psychological injury as a result of his perception of other employees’ conduct in the workplace, and the respondent’s employment was a substantial contributing factor to the injury. The Member further found that although the respondent’s dismissal was a contributing factor to the injury, it was not the whole or predominant cause of the condition so that s 11A of the 1987 Act did not apply, and the respondent was unfit for work and required ongoing treatment as a result of the injury.

The employer appealed the decision. The appeal was lodged outside of the 28 day timeframe prescribed by s 352(4)(a) of the 1998 Act. The appellant sought an extension of the time within which an appeal must be lodged, in accordance with s 352(4)(b).

The issues on appeal were whether the Member erred in law by:

(a) failing to have regard to all of the evidence when determining that the respondent suffered an injury within the meaning of s 4 of the 1987 Act (Ground 1);

(b) failing to provide any, or adequate reasons for determining that the respondent suffered an injury within the meaning of s 4 of the 1987 Act (Ground 2);

(c) failing to give proper regard to the appellant’s defence pursuant to s 11A of the 1987 Act (Ground 3);

(d) failing to provide adequate reasons for finding that the respondent’s dismissal from his employment was not the whole or predominant cause of the psychological injury (Ground 4), and

(e) characterising the date of injury as a “deemed” date of injury and/or applying the incorrect test for determining the relevant connection between employment and the injury (Ground 5).

Held: Time to appeal the Member’s decision of 6 July 2022 was extended to 5 August 2022. The Certificate of Determination dated 6 July 2022 was revoked and the matter was remitted to another non-presidential member for re-determination.

The application for extension of time

Consideration of whether there were exceptional circumstances

1. Rule 133A(5) of the 2021 Rules requires the Presidential Member to consider whether “exceptional circumstances” exist and whether a failure to grant leave would result in a “demonstrable or substantial injustice”. Whether there are exceptional circumstances and whether the party seeking an extension can show demonstrable or substantial injustice would occur if leave were not granted is “a composite expression in the rule to be dealt with within jurisdiction.” Exceptional circumstances are circumstances that are out of the ordinary course or unusual, special, or uncommon. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. The authorities applicable to the former rule 16.2(12) (which was amended on 3 October 2019 to become rr 16.2(5) and 16.2(6)) of the former Workers Compensation Commission Rules 2011 are equally applicable to a consideration of the phrase “exceptional circumstances” in r 133A(5) of the 2021 Rules. ([36]–[38])

   (Bryce v Department of Corrective Services [2009] NSWCA 188; Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290, and Ho v Professional Services Review Committee No. 295 [2007] FCA 388 applied)

2. Wood DP observed that the appeal was lodged out of time because the appellant’s solicitor had miscalculated the date. There was no evidence to suggest that counsel’s submissions were not provided by the actual due date of 3 August 2022 or that the appeal could not be lodged by that date, had the solicitor correctly calculated that date. As the respondent submitted, it would have been expected that a legal firm would arrange for another employee to oversee the solicitor’s legal practice in his or her absence from work from 2 August 2022 to 4 August 2022. ([43])
3. The former Commission has held in a number of cases that administrative errors by a legal practitioner are not a valid ground for extending the time to appeal. Failure to comply with the legislative requirements for filing an appeal is not uncommon or rare, and somewhat regularly occurs. The failure to comply with those requirements because of administrative error on the part of the solicitor did not constitute exceptional circumstances. As the reasons for failing to lodge the appeal within time did not constitute exceptional circumstances, the appellant had to show that demonstrable or substantial injustice would occur if leave to extend time for the making of the appeal was not granted. ([44]–[45])

(Department of Education & Training v Mekhail[2006] NSWWCCPD 1; Department of Corrective Services v Buxton [2007] NSWWCCPD 55; Tokich v Tokich Holdings Pty Ltd [2015] NSWWCCPD 72 ; Webb v Penrith Rugby Leagues Club Ltd [2016] NSWWCCPD 16 applied)

Consideration of whether a failure to grant leave would cause substantial injustice

4. For reasons that she gave later on in the appeal, Deputy President Wood concluded that the appeal had merit and should be allowed. She found that the failure to extend time would cause a substantial injustice to the appellant. Time to appeal was extended until 5 August 2022. ([46]–[47])

   (Gallo v Dawson [1990] HCA 30 applied)

Ground 1

5. Deputy President Wood held that the Member failed to refer at all to the clinical notes from the Menai Medical Centre. The appellant’s submissions made at the arbitration included an analysis of the clinical notes showing that the respondent attended for medical treatment on numerous occasions. The appellant’s submission was that the notes contained no reference to workplace bullying as it was described by the respondent in his statement. The Deputy President held that the clinical notes were relevant to the question of whether the respondent suffered an injury as alleged and if he did not, whether the opinions provided by the medical specialists who considered the alleged bullying was causative of any injury could be accepted. ([134]–[136])
6. The appellant also complained that, while the Member noted there was a factual dispute about whether the respondent was bullied as alleged, the Member failed to provide any reasons as to why he preferred that evidence over the evidence of the appellant’s employees, who denied the alleged bullying occurred. ([137])
7. The Deputy President stated that the relevance of the appellant’s lay evidence was plainly obvious. The appellant’s case was that the respondent did not suffer injury as alleged because those events did not occur. The respondent’s perception of events must be in respect of events that have actually occurred. It was therefore incumbent upon the Member to consider the evidence from the appellant’s witnesses and to reconcile that evidence against the evidence of the respondent and his brother. He did not do so and did not provide any reasons why he accepted the respondent’s evidence that those events occurred in the workplace. Reasons should be given for preferring one version to another, after an analysis of the competing evidence. A failure to consider all of the material relevant to a particular issue is an error in the process of fact finding and itself amounts to an error of law. ([140]–[142])

(Attorney General’s Department v K [2010] NSWWCCPD 76 and Waterways Authority v Fitzgibbon [2005] HCA 57 applied)

8. Deputy President Wood held that the Member failed to consider and take into account the evidence in the form of the clinical notes of the Menai Medical Centre and the lay evidence provided by the appellant’s employees, all of which was relied on by the appellant in respect of the dispute pertaining to the respondent’s allegation of injury. That failure constituted error and had infected the Member’s conclusion that the respondent suffered injury as a consequence of the respondent “perceiv[ing] he was made the subject of comments and questions with regard to his sexuality”. It followed that this ground of appeal had merit. ([145]–[146])

Ground 2

9. The appellant referred to the Member’s reasons for finding that the respondent suffered an injury pursuant to s 4 of the 1987 Act. The appellant submitted that the reasons were not sufficient in that the Member did not deal with the absence of complaints of bullying with respect to the respondent’s sexuality and HIV status in the treating practitioners’ notes during the period of the respondent’s employment with the appellant. Additionally, it was submitted that the Member did not deal with the appellant’s submissions as to that evidence. The appellant asserted that the Member failed to give any reasons why he preferred the respondent’s evidence over that of the appellant. ([147]–[149])
10. Section 294 of the 1998 Act imposes a statutory obligation on a Member to give reasons for the decision. In accordance with r 78 of the 2021 Rules, the Member is required to express the reasoning process that led to the conclusions made in order to make the parties to the proceedings aware of the Member’s view of the case made by each party. Rule 78 is consonant with the common law authorities as to the sufficiency of reasons. ([152]–[155])

(Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187, and Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 discussed and applied)

11. Wood DP held that it was apparent from the Member’s reasons that he did not sufficiently engage with the evidence relied upon by the appellant. It was further apparent that the Member did not provide a logical reasoning process for his acceptance of the respondent’s evidence that he was subjected to comments and questions with regard to his sexuality, which precipitated his symptoms, thereby suffering an injury pursuant to s 4. The respondent did not dispute the appellant’s assertion that the Member failed to provide any, or any sufficient, reasons for his conclusion in respect of the respondent having suffered an injury pursuant to s 4 as a consequence of being bullied at work in respect of his sexuality and HIV status. The respondent asserted that such error did not matter because it was clear that he suffered an injury because of other work-related stressors. ([156]–[157])
12. The attack on the Member’s conclusion that the respondent was injured by his perception of work events was very relevant to the Member’s conclusions that followed. The Member’s finding was erroneous because it was not supported by any proper reasoning. The Member subsequently determined that the respondent’s dismissal was not the whole or predominant cause of the injury. The Member’s finding that the dismissal was not the whole or predominant cause of the injury was the subject of Grounds 3 and 4 of the appeal. The error established under this ground had infected the Member’s subsequent finding that the dismissal was not the whole or predominant cause of the injury. It was thus very relevant that the Member erred in respect of his conclusion that the respondent suffered injury as a result of his perception of events in the workplace. It followed that this ground had merit. ([158]–[159])

Ground 3

13. The appellant asserted that the Member failed to have regard to the appellant’s defence under s 11A of the 1987 Act. ([160])
14. The Deputy President found that the respondent was correct in his submission that, as the Member concluded that the dismissal was not the whole or predominant cause of the injury, the Member was not required to assess whether the appellant’s actions were reasonable. However, the respondent asserted that in any event, he suffered injury as a result of the dismissal, which constitutes any injury within the meaning of s 4. If that injury was the only injury established (as the respondent appeared to have suggested), the Member was required to determine whether the actions taken by the appellant were reasonable, which he did not do. ([166])
15. Wood DP held that the Member did not identify or explain what the “other” causes of injury were. The only other finding as to the cause of injury identified by the Member was that the respondent was injured as a result of his perception of workplace events of bullying about his sexuality and HIV status, which finding was erroneous. Assuming that, in the Member’s mind, that constituted “other causes,” his erroneous finding infected his conclusion reached about the whole and predominant cause of injury. If that was not what the Member was referring to, it could not be gleaned from the reasons as to what the other causes were. It followed that the Member was erroneous in his conclusion reached in respect of the appellant’s defence pursuant to s 11A of the 1987 Act. ([170]–[171])

Conclusion

16. As the appellant had succeeded in establishing error on the part of the Member, it was not necessary for the remainder of the grounds to be considered. The appeal had merit and leave was granted for an extension of the time to file the appeal to 5 August 2022. ([172])
17. Grounds 1, 2 and 3 disclosed error on the part of the Member in respect of his determination that the respondent’s dismissal was not the whole or predominant cause of the injury in accordance with s 11A of the 1987 Act. The appeal succeeded. ([173]–[174])

Couch v Electus Distribution Pty Limited [2023] NSWPICPD 8

WORKERS COMPENSATION – section 60 of the 1987 Act – whether treatment by way of medicinal cannabis is reasonably necessary – cost of treatment considered – criteria in Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 and Diab v NRMA Ltd [2014] NSWWCCPD 72 considered and applied – Diab criteria is not exhaustive – whether treatment is reasonably necessary depends on the facts of each case

Phillips P

10 February 2023

Facts

On 5 January 2016, the appellant worker was required to lift a heavy battery in the course of his employment with the respondent. He suffered a significant injury to multiple levels of his lumbar spine. The respondent accepted the appellant’s lumbar spine injury.

The appellant brought a claim pursuant to s 60 of the 1987 Act with respect to proposed treatment relating to the provision to the appellant of medicinal cannabis and the medical monitoring of that treatment. This claim was disputed on the basis that it was not reasonably necessary as a result of his injury pursuant to s 60.

The Member held that the claimed treatment was not reasonably necessary, primarily on the basis of its cost, being part of the criteria set out in Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) as to whether treatment is reasonably necessary.

The Member having extensively reviewed the evidence then sought to apply decided authority (Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 (Rose) and Diab) to the circumstances of this case. After a review of the evidence, the Member found that the appellant had succeeded in establishing all of what he described as “the Diab criteria” with the exception of the third criterion, namely the proposed cost of the treatment. As a consequence, the Member entered an award in favour of the respondent.

The worker appealed.

The issues on appeal were whether the Member:

(a) failed to provide adequate reasons in finding that the proposed treatment of the administration of medicinal cannabis to treat an injury sustained on 5 January 2016 was not reasonably necessary and in doing so made an error of law (Ground 1);

(b) erred in fact and law in finding that there was no reliable evidence as to when, if ever, the appellant will recover from his condition (Ground 2);

(c) erred in law in finding that the appellant was catastrophising his injury and that he is fearful of re-injury (Ground 3);

(d) erred in fact and law in finding that as the treatment was open-ended, the cost had the potential to be unreasonable notwithstanding that the appellant was under regular medical supervision (Ground 4), and

(e) erred in fact and law in finding that there was no certainty as to the precise cost and even the precise product (Ground 5).

Held: The Member’s Certificate of Determination dated 11 April 2022 was revoked and the matter was remitted for re-determination by another Member.

Ground 1

1. The appellant submitted that whilst the Member had dealt with all the ‘Diab’ criteria and found in the appellant’s favour in respect of all of them except costs, he had not made it clear why his findings as to costs made it necessary for him to find the treatment was not reasonably necessary. ([70])
2. The President described that the Member had proceeded to apply “the Diab criteria” to the facts of this case. This process commenced at [200] of the reasons and following, and involved the Member evaluating each of the five criteria ultimately finding that the appellant had established all of the criteria save and except for the cost of the proposed treatment. His Honour thought it was a fair reading of the Member’s decision that he had treated the criterion of cost as being determinative of the overall outcome. The Member, with some justification, criticised the appellant’s actual claim for costs as there was a divergence between the evidence actually before the Member and the claim that appeared in the Application to Resolve a Dispute. The appellant complained that consistent with the decision in Pelama Pty Limited v Blake [1988] NSWCC 6; (1988) 4 NSWCCR 264, there had been no cost benefit analysis undertaken by the Member. In some respects this was not a fair assertion in that before the Member, there was no comparison between the cost of the significant other medications that had been taken by the appellant apparently for little relief over the years and comparing that to the proposed costs of medicinal cannabis, which was particularised in an unhelpful manner. Even if for the purposes of this appeal the President was to accept the Member’s finding that the cost would not be reasonable, nowhere did the Member explain why this criterion alone should be determinative, consistent with the authority of Diab, such as to enter an award in favour of the respondent. ([73])
3. The President noted that the Member had only assessed the five Diab criteria as against the evidence and made findings accordingly. Nowhere had the Member explained why the appellant’s failure to succeed on the criterion of cost automatically resulted in the rejection of the application. The reasoning in this regard was inadequate. There may be a circumstance where the cost is so high and the potential outcome marginal, that cost could be determinative having regard to all of the facts of the particular case. But that was not the circumstance in this matter. The Member had found that the treatment was appropriate, and the evidence was persuasive that it was. The Member had found that the appellant had undertaken a wide variety of alternative treatments which had not been effective. Indeed, he found that the appellant’s use of medicinal cannabis had been effective and had the potential to continue to do so. This was a powerful finding. Nowhere had the Member explained why a finding of unreasonableness with regards to the proposed cost of the treatment was to prevail or be preferred to the Member’s finding about the effectiveness of the appellant’s usage of medicinal cannabis which appears at [214] of the reasons. ([76])

(Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 applied)

4. As his Honour set out from Diab at [90], the criteria are merely “useful heads for consideration” and the essential question was whether the treatment was reasonably necessary. The Member had approached the criteria not as useful heads for consideration but rather as a confined list of matters that an appellant is required to establish in order to gain an award under s 60 of the 1987 Act. A fair reading of the Member’s decision other than with respect to cost would suggest that the proposed treatment, namely the essential question to be asked, was reasonably necessary. In misapplying the authority of Diab, the Member had erred in law. Further, the Member in deciding that the criterion of cost was determinative, did not adequately express his reasons for this finding. Ground 1 was established. ([77]–[79])

Ground 2

5. The appellant alleged that the sentence at [221] of the reasons: “The providers of the medicinal cannabis were quite unambiguous as to the duration of any treatment and on one view the treatment was to be provided as long as [the appellant] required it” constituted an error of both fact and law. The appellant said that there was a factual error in that it was not for the appellant to decide how long he needed medicinal cannabis as the plan was that he would remain under medical supervision at all times. As far as the error of law was concerned, the appellant submitted that whether the appellant would ever recover from his chronic pain was an irrelevant consideration to the provision of medicinal cannabis and it was not one of the Diab criteria. ([80]–[82])
6. The President held that this ground was without merit. With regards to the alleged factual error, his Honour accepted the respondent’s submission that the decision had to be read as a whole. The Member reviewed the lengthy history of medical treatment which had been undertaken by the appellant and which had led to temporary improvements in his experience of pain from time to time. As the respondent stated, the Member accepted that the appellant had a chronic condition and that he suffered from chronic pain. His Honour did not read the offending section of paragraph [221] as stating that the duration of the medicinal cannabis treatment would be, as the appellant alleged, “at the whim of the appellant”. The President did not think that that was an accurate or fair reading of the Member’s reasons. His Honour did not accept that the error of fact as alleged had been carried out. ([84])
7. In terms of the error of law asserted by the appellant, the appellant had fallen into the same error as the Member as the President discussed with respect to Ground 1. The appellant alleged that whether the appellant would recover was an irrelevant consideration and that it was not part of the Diab criteria. As his Honour found in relation to Ground 1, the Diab criteria are not exhaustive. They are useful heads for consideration. As Roche DP said in Diab, each case will depend on its facts, meaning that matters wider than the five criteria identified in Diab can be considered. In this case, there was an issue about the appellant’s chronic pain and hence the likely duration of any treatment. The Member was not in error to take these matters into account. No error was established. Ground 2 was dismissed. ([85])

Ground 3

8. The appellant alleged that the Member erred in finding that the appellant was “catastrophising his injury, and that he is fearful of reinjury” and that this constituted an error of law. This, the appellant argued, was irrelevant given the Member’s finding that the treatment was appropriate and effective. ([86])
9. Unhelpfully, the appellant had not stated how the error of law arose under this ground. The task the Member was engaged in was construing the medical evidence and endeavouring to ascertain its proper meaning. Clearly there was support in the evidence of Drs Russo, Ho and Nazha, treating pain specialists, with respect to what was said to be the appellant’s catastrophising of his injury. The Member had accurately construed those reports. The real complaint from the appellant appeared to be not that the Member was incorrect, but rather “he has exaggerated its importance”. Intervention on appeal requires the identification of relevant error. With respect to the issue of catastrophising, no error had been identified. This aspect of Ground Three had not been made out. ([87])
10. The appellant argued that the Member’s finding regarding the appellant being fearful of re-injury had wrongly been attributed to three doctors when in fact only Dr Russo stated that the appellant was fearful of re-injury. Accepting as a statement of fact that this was correct, namely that the other two doctors did not record or posit a view that the appellant was fearful of re-injury, it was hard to see how this minor error had affected the result. Not every error leads to intervention on appeal. This minor mistake had not affected the result. Ground 3 had not been established and was dismissed. ([88]–[89])

(Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45 applied)

Grounds 4 and 5

11. Both of these appeal grounds related to the cost of the potential treatment. Given what his Honour had found in relation to Ground 1, there was no need for either of these grounds to be dealt with. ([90])

Inghams Enterprises Pty Ltd v Smith [2023] NSWPICPD 9

WORKERS COMPENSATION – Clause 44 of the 2016 Regulation – restrictions on reliance on forensic medical reports – s 43 of the 2020 Act – the Personal Injury Commission (the Commission) may inform itself of any matter – alleged denial of procedural fairness – Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; Chanaa v Zarour [2011] NSWCA 199 applied – acceptance of evidence – Shellharbour City Council v Rigby [2006] NSWCA 308 applied – the Commission may have regard to evidence that would not be admissible in a court – Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSWWCCPD 26 applied – section 32A of the 1987 Act – Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 applied

Wood DP

28 February 2023

Facts

The respondent worker was employed as a process worker and leading hand by the appellant from 1989.

The respondent ceased work on 20 May 2019 at the direction of the appellant. At the time the respondent was stood down, she was working normal hours but with restrictions. During the period of her employment and thereafter, she lodged several notices of injury and made claims for compensation as a result of those injuries. She alleged an injury to her back in the form of an aggravation, acceleration, exacerbation or deterioration of a disease in accordance with s 4(b)(ii) of the 1987 Act resulting from her duties during her entire period of employment, with a deemed date of injury of 23 October 2018. She also asserted injury to the right knee on 7 February 2019 when (she alleged) a co-worker pushed a steel processing tub at her. She further alleged a psychological injury which she said she incurred as a result of bullying in the workplace over the period of her employment and as a result of the incident on 7 February 2019. She claimed weekly compensation, treatment expenses and a lump sum in respect of 16% whole person impairment resulting from the psychological injury.

The appellant denied that the respondent suffered any of the injuries alleged. It also denied that the respondent’s employment was a substantial contributing factor to any injury sustained. The appellant asserted that if the injury was a disease injury within the meaning of s 4(b) of the 1987 Act, then the respondent’s employment was not the main contributing factor to her disease injury.

The appellant also asserted that the respondent had suffered no impairment, was not incapacitated for work, and did not require medical treatment.

The Member accepted that the respondent suffered a psychological injury as pleaded, a right knee injury and an aggravation of a pre-existing disease condition in the lumbar spine. He found that the respondent had no capacity for work from 20 May 2019. The employer appealed.

The issues on appeal were whether the Member erred on the following grounds:

(a) Ground A: determining the matter on a basis not put by, or to, the parties;

(b) Ground B: making a determination about the CCTV footage which was not based on any evidence or was against the weight of the evidence;

(c) Ground C:

(i)  excluding the evidence of Dr Roberts, and

(ii) accepting the evidence of lay witnesses, despite the appellant objecting to that evidence, and

(d) Ground D: failing to give reasons “in respect of the evidentiary matters referred to in [G]round C”.

Held: The Member’s Certificate of Determination dated 5 April 2022 was confirmed.

Grounds of appeal

1. The appellant indicated in the appeal that it may bring a further ground of appeal after the transcript was issued. Following receipt of the complete transcript, the appellant lodged further submissions, said to be in relation to the transcript. In those submissions, the appellant agitated a further ground of appeal in respect of the Member’s finding of the deemed dates of injury. ([100])
2. Deputy President Wood noted that the appellant did not formally seek leave to raise a new ground of appeal and did not provide reasons why this ground could not have been included at the outset. The appellant had in its possession the Certificate of Determination in which the findings were recorded, as well as the Member’s attached statement of reasons at the time it lodged the appeal. In the absence of any particular reference to the transcript, it was difficult to comprehend why the ground could not have been relied upon at the outset. ([102])
3. The opportunity given to an appellant to lodge supplementary submissions following receipt of the transcript is not one to raise fresh grounds of appeal. ([103])

(Handley v Canterbury City Council [2020] NSWWCCPD 59, at [87] and Ferro v Mercon Group Pty Ltd [2023] NSWPICPD 4, at [56]–[58] applied)

4. In the absence of an application for leave to raise a new ground, accompanied by reasons as to why the ground could not have been raised at the outset, the Deputy President declined to grant leave to the appellant to raise the further ground of appeal. ([105])

Ground A

5. The appellant asserted a denial of procedural fairness in that the reasons given by the Member in relation to the CCTV footage and the surveillance were not based upon matters that were the subject of submissions by the parties or raised by the Member. ([140])
6. After reviewing the transcript of the proceedings, Wood DP found that the transcript disclosed that:

(a)     the appellant tendered the CCTV footage, which included footage taken by camera 7 and camera 8;

(b)     both parties made submissions about that footage;

(c)     the appellant had the opportunity to reply to submissions by the respondent about both camera angles, and

(d)     the appellant invited the Member to view the footage from both cameras and form a view about that evidence. ([152])

7. The issue raised by what could be seen in the CCTV footage (both camera 7 and camera 8) was clearly inherent to the issues requiring determination. It was apparent that the appellant not only had the opportunity, but took it, to address on that material that had been tendered in the appellant’s case. The appellant’s allegation that it had been denied procedural fairness in that the Member made findings about which it was denied the opportunity to address was baseless. This ground of appeal failed. ([153])

Ground B

8. The appellant disagreed with the Member’s observations and finding as to what the footage disclosed. The appellant said that the evidence of “multiple witnesses” contradicts those observations, nominating the evidence of Dr Edwards and Dr Roberts (doctor appointed by the appellant to examine the respondent in respect of her psychological injury). In respect of Dr Edwards (doctor appointed by the appellant to examine the respondent in respect of her physical injuries), the Member gave reasons for rejecting the evidence of Dr Edwards and his observation of the footage. ([154])
9. Dr Roberts’ report was admitted only in respect of the history recorded. Wood DP noted that for her reasons under Ground C, Dr Roberts’ opinion and observations were quite properly excluded. ([155])
10. The appellant did not otherwise identify the “multiple witnesses” referred to by it. The Member noted his own observations of what was recorded in the footage, referred to the evidence of Mr Chuter and formed the view that Mr Chuter’s evidence about what was seen in the footage was not available on the evidence. ([156])
11. The appellant’s argument put to the Member was that there was no incident captured on the footage and maintained that position on the appeal. Contrary to the appellant’s position, the evidence of Mr Chuter (plant manager) and Ms Wood (supervisor), as well as Ms Wood’s recollection of Ms Allen’s (union delegate) observation, all points to an event involving a steel tub taking place. In any event, the manner in which the case was run allowed the Member to reach his own conclusion as to what he observed. It could not be argued that the Member’s conclusion about the footage was not an evidence-based conclusion or was against the weight of the evidence. ([158]–[159])
12. In submissions, the appellant also asserted that the Member’s conclusion about the respondent’s capacity for work was against the weight of the evidence. The assertion went beyond the pleaded ground of appeal. The respondent responded to this in submissions, which were dealt with by the Deputy President. She found that the Member dealt with the opinions as to the respondent’s physical capacity and noted that the respondent’s capacity was also affected by her psychological state. He determined that, on the basis of all of the respondent’s limitations, and in accordance with the requirements of s 32A of the 1987 Act as discussed in Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar), the duties the respondent was performing prior to being stood down were not a “real job.” Further, on the basis of the respondent’s age and work experience, which was entirely limited to process work, there was no real work that she could do. The Member correctly applied s 32A and the authority of Dewar, took into account all of the evidence as to the respondent’s capacity and provided sound reasons for rejecting or accepting that evidence. ([160]–[163])
13. The appellant had failed to show error on the part of the Member in finding that the respondent had no capacity for work. Ground B failed. ([164]–[165])

Ground C

14. The appellant asserted that these proceedings were in respect of more than one claim. It submitted that Dr Roberts assessed the respondent in respect of her claim for weekly payments and treatment expenses, whereas Dr Samuell assessed the respondent in respect of her lump sum claim, so that both reports should have been admitted. The appellant added that, in any event, the Member ought to have considered Dr Roberts’ evidence about what he viewed in the CCTV footage. ([166])
15. It appeared that the appellant relied on cl 44(4)(c) of the 2016 Regulation, which excludes a report from a medical practitioner from the definition of a forensic report if it has been obtained in order to prove or disprove an entitlement in respect of another claim or dispute. The appellant’s allegation that the reports were commissioned for different claims was not born out by the evidence. It was readily apparent that both doctors were retained to assess the appellant’s liability in respect of the same psychological injury and the respondent’s entitlement to compensation in respect of that claim. The appellant disputed liability for the claim and the respondent brought proceedings in the Commission in order to have the dispute determined. The report of Dr Roberts was not obtained for the purpose of proving or disproving an entitlement in respect of another claim or dispute. ([167]–[168])
16. The appellant submitted that, if the report of Dr Roberts was admitted on the basis of the history taken, then his views as to what was evident on the CCTV footage ought to have been taken into account by the Member. The Member rejected submissions about what Dr Roberts had observed on the CCTV footage because his observations were “commentary” rather than history. The Member was correct. Dr Roberts’ assessment of the evidence in the footage did not fall within the limited purpose for which the report was admitted. In any event, the probative value of Dr Roberts’ observation was questionable. His opinion was not an expert opinion. His conclusion was that the footage did not show that a tub had been thrown at the respondent. He did not comment on whether there was an incident where the tub hit the respondent’s knees. The Member was in just as good a position to observe the footage and form his own view of what he had seen, especially as he was invited to do so by the parties. ([169])
17. The appellant further asserted error on the part of the Member by accepting the evidence of Mr Lakis (former employee of the appellant) and Ms Allen over the appellant’s objection. The appellant said that the statements were of no evidentiary value because they lacked specificity. The Deputy President noted that the rules of evidence do not apply in the Commission so that the question is not one of admissibility of the statements but is of their probative value. Questions of the acceptance of evidence and the weight it is given are peculiarly matters within the province of the primary decision-maker, unless it can be said that a finding was so against the weight of the evidence that some error must have been involved. ([170]–[171])

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

18. Deputy President Wood held that the Member found that the statement of Mr Lakis was supportive of the evidence that there were arguments between the respondent and Ms Gibbons (process worker) over the years and Ms Allen’s evidence was supportive of the respondent having complained that she had been harassed and unsupported. The acceptance of that evidence was not so against the weight of the evidence that it constituted error. The evidence of Mr Chuter, Ms Wood, Ms Gibbons and the respondent herself was that, wherever the fault lay, there was a long history of conflict between Ms Gibbons and the respondent, and the respondent was aggrieved by that conflict. The appellant had failed to show error on the part of the Member in respect of any of the matters referred to in this ground of appeal, and Ground C failed. ([172]–[173])

Ground D

19. The appellant submitted that the Member failed to give any reasons in respect of his determinations to exclude the evidence of Dr Roberts (except the Member’s reliance on cl 44), and in rejecting Dr Roberts’ evidence as to what he observed on the CCTV footage. ([174])
20. After reviewing the transcript of the proceedings, Wood DP stated that it could be seen that the appellant did not maintain its position that the statements should not be admitted and was content for the documents to go into evidence, subject to the appellant having the opportunity to make submissions as to the lack of probative value. Thus, the Member was not required to provide reasons for admitting them. ([177]–[178])
21. Applying s 43 of the 2020 Act and Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSWWCCPD 26, cited by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, the Deputy President found that it was open to the Member to admit the statements and give consideration to the weight to be afforded to that evidence. He was not in error in doing so and the appellant’s assertion that the Member erred by failing to give reasons for admitting the documents was not made out. The appellant’s assertion that the Member failed to give reasons for excluding the evidence of Dr Roberts was also not made out. It followed that Ground D of the appeal failed. ([179]–[182])