Appeal Case Summaries

Cessnock City Council v Wilson [2022] NSWPICPD 46

WORKERS COMPENSATION – injury – reliability of the evidence – reliability of a treating doctor’s clinical notes – the drawing of inferences – Jones v Dunkel [1959] HCA 8 discussed – Amaca Pty Ltd (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151 considered and applied – procedural fairness – whether there is error in not dealing with a submission concerning whether a Jones v Dunkel inference should be drawn

Nomchong SC ADP

2 December 2022

Facts

The respondent worker claimed that he suffered an injury to his right hip and right leg in the course of his employment on 17 June 2020 whilst getting out of a truck. He made a claim for weekly payments pursuant to ss 36 and 37 of the 1987 Act and medical expenses pursuant to s 60 of the 1987 Act.

The respondent relied on the clinical notes of his treating general practitioner, Dr Wang. It was those clinical records that provided the basis of the appellant’s contention that the respondent’s account of the injury should not be accepted and therefore, that it should have been found that the respondent did not suffer an injury during the course of his employment.

In Dr Wang’s clinical notes, the first time that the respondent’s complaint of pain in his right hip was recorded was from a consultation on 28 July 2020. The respondent had consulted Dr Wang on two prior occasions (after the date of the alleged accident) on 14 and 16 July 2020 but Dr Wang’s clinical notes did not contain any reference to the respondent complaining of right hip pain during those consultations. The respondent, on the other hand, gave evidence that he believed he had raised his hip pain with Dr Wang on 14 July 2020 and that Dr Wang told him it was just a pulled muscle.

Dr Wang’s clinical notes of 13 August 2020 recorded:

“further detailed tale to Troy [sic], he revealed history, this maybe work related injury, as on 29/06/2020 stepped out of the truck and twisted R hip and felt pain, couldn’t wgt bearing [sic], and took Panadol and be back to work, and felt pain always there, but didn’t take much notice, and thinks this is pulled muscle.”

The respondent was cross-examined on multiple occasions as to when he informed Dr Wang about his injury and on every occasion, the respondent gave evidence that he thought he had told Dr Wang about the injury to his right hip on or about 14 July 2020, and suggested that Dr Wang might have “got his wires crossed” about how the respondent injured himself.

The Member found the respondent to be a reliable historian and held that any inconsistencies were readily explained by the respondent’s difficulty in expressing himself and not having legal training. The Member concluded that there was a lack of precision in Dr Wang’s record keeping and held that the proposed hip replacement surgery was reasonably necessary. The Member made awards for weekly payments and medical expenses in the worker’s favour. The employer appealed.

The issues on appeal were whether the Member erred:

(a) in fact in determining that the respondent had suffered an injury during the course of his employment on 17 June 2020 (Ground 1);

(b) in fact in failing to draw an inference under Jones v Dunkel [1959] HCA 8 (Jones v Dunkel) because the respondent did not call evidence from his treating general practitioner, Dr Wang; and in law because the Member failed to consider the appellant’s argument on the Jones v Dunkel point (Ground 2), and

(c) in fact by reason of the Member’s analysis of Dr Wang’s clinical notes and because the Member did not provide the appellant with procedural fairness as to the weight the Member was going to put on an incorrect entry in those clinical notes (Ground 3).

Held: The Certificate of Determination dated 2 December 2021 was confirmed.

Consideration

1. At its heart, the contest in this matter was between the respondent’s version of the mechanism of injury (falling from truck to the ground on 17 June 2020) and the content of the clinical notes of Dr Wang, although the appellant also relied on what it said were varying accounts of the injury given by the respondent to other doctors. ([75])
2. The Member identified this contest as the focus of the case and separated it into a number of issues. After a review of the evidence, the Member made his decision predominantly on a credit finding in favour of the respondent. ([76])

Ground 1

3. The Member found that the respondent suffered injury to his right hip and right leg in the course of his employment on 17 June 2020. The Member reached this decision after he undertook a review of the evidence. The Member then made a credit finding in favour of the respondent to the effect that he was a reliable historian, but went on to acknowledge and address the difficulties with the respondent’s evidence. ([78])
4. Acting Deputy President Nomchong SC held that the finding of reliability as a witness appeared to be inconsistent with the disclaimers referred to. However, in her view, this was to be treated as no more than a misapplication of language. The Member was indicating that he believed the respondent notwithstanding the inconsistencies in the evidence and his memory problems. Inherently, it must be that the Member concluded that these matters were not of such significance as to outweigh his primary finding that the respondent’s version of events as to the date and mechanism of the injury ought be accepted. ([79])
5. The appellant contended that the credit findings in favour of the respondent were foundationally flawed and therefore this was a case where the Member’s findings meet the test in Lee v Lee [2019] HCA 28. The appellant submitted that the decision-making of the Member was attended by factual error of the kind identified in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 . The appellant contended that the matters recorded by Dr Wang in his clinical notes for the consultation on 13 August 2020 should be disregarded. ([81]–[82])
6. Acting Deputy President Nomchong SC observed that a large part of the appellant’s case was that the respondent should be disbelieved about the injury occurring during the course of employment because of the delay in reporting it to Dr Wang. However, the Acting Deputy President was of the view it was open and available to the Member to accept the respondent’s evidence that he did in fact report it to Dr Wang on an earlier occasion, even though there was some imprecision about the exact date that he did so. It was also axiomatic that a delay in reporting an injury does not necessarily mean that the injury did not occur. ([92])
7. Dr Wang’s notes on 28 July 2020 recorded the respondent as telling him that the onset of pain was six weeks prior which, though not precisely the time since 17 June 2020, was measurably close and not an unreasonable approximation. ([93])
8. Nomchong SC ADP held that the preponderance of the medical evidence was that there was a fall which rendered symptomatic the respondent’s pre-existing avascular necrosis. And even though Professor Cumming (orthopaedic and spinal surgeon qualified by the appellant) withdrew from his earlier conclusion, it is notable that he made no comment to the effect that he thought the respondent was lying or exaggerating his claim. Rather he went out of his way to say that the respondent was totally compliant. This supported the Member’s finding that the respondent was an honest witness. ([97])
9. The Acting Deputy President observed that this was a matter in which conclusions could have been drawn either way. However, she did not consider that those conclusions were equally open or finely balanced. Nomchong SC ADP concluded there was no error in the Member finding that the injury occurred on 17 June 2020 during the course of employment. There was sufficient other evidence to support the credit finding in favour of the respondent. Ground 1 failed. ([101]–[103])

(Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 applied)

Ground 2

10. The Member did not address the appellant’s submission below that a Jones v Dunkel inference should be drawn in relation to the absence of evidence from Dr Wang as to whether the respondent had advised him about the pain and dysfunction in his right hip or the fall from the truck at one of the consultations prior to 13 August 2020. ([104])
11. The appellant contended that the failure to draw that inference was an error of fact and law. Nomchong SC ADP rejected the appellant’s contention that a failure to draw an inference that if Dr Wang had been called, his evidence would not have supported the respondent’s case amounted to an error of law. ([105]–[107])

(Amaca Pty Ltd (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt[2022] NSWCA 151 discussed and applied)

12. Further, the failure to draw that inference did not, in the Acting Deputy President’s view amount to an error of fact. The Member preferred the evidence of the respondent over the inferences to be drawn from Dr Wang’s clinical notes. The Member was entitled to do so. ([108])
13. The appellant also contended in this ground that the Member erred in not determining the Jones v Dunkel issue on its merits and providing reasons to allow scrutiny of the Member’s conclusions. The Acting Deputy President agreed with the appellant that the Member was in error in failing to do so. It was one of the arguments put by the appellant below and the Member was required to engage with that argument and provide reasons for his decision on that issue. The Member was in error in failing to address this submission. ([112]–[114])

(Li v Attorney General for New South Wales [2020] NSWCA 302 applied)

14. While Acting Deputy President Nomchong SC identified error in so far as failing to engage with and address the appellant’s submission that a Jones v Dunkel inference should be drawn, the Acting Deputy President was of the view that this error could not have affected the result. ([108]–[111], [115], [127])

    (Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45; Conway v The Queen [2002] HCA 2; Walshe v Prest [2005] NSWCA 333, and Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45 applied)

Ground 3

15. The appellant contended that there had been a denial of procedural fairness which amounted to appealable error within the meaning of s 352 of the 1998 Act. This failure was said to arise from the Member’s referral to an entry in Dr Wang’s clinical notes which was clearly erroneous. ([116])
16. At [47] of the reasons, the Member referred to an entry in respect of a consultation said to have taken place on 16 December 2016. That entry pertained to a note taken in relation to the doctor recording in the respondent’s clinical notes that the doctor had had a conversation with a female patient in which he advised that if she was to do anything to improve her health, she should quit smoking and this would also help her to increase her chance of pregnancy and reduce the harmful effects to the baby. The Member relied on that entry as suggesting that Dr Wang’s notes were not always entirely accurate. ([117]–[118])
17. The appellant contended that the error lay in the failure of the Member to advise the parties of the use that he proposed to make of this clinical note. The appellant contended that it had no way of anticipating the use to which the Member would put the clinical note and described it as “a crucial factor in the final determination.” ([119])
18. Acting Deputy President Nomchong SC observed that the accuracy of Dr Wang’s clinical notes was a key feature, if not the central feature of the case below. Part of that contest was between the respondent’s evidence about what he told Dr Wang and when he told him and the content of the clinical notes themselves. Accordingly, the Acting Deputy President was of the view that the accuracy or otherwise of the clinical notes was a matter well within the appellant’s knowledge as a key feature in the litigation below. ([120])
19. Nomchong SC ADP disagreed with the appellant’s characterisation of the clinical note of 16 December 2016 as “a crucial factor in the final determination”. It was but one matter taken into account by the Member in reaching his decision. It is necessary to read the Member’s reasons as a whole. In the reasons, the Member reviewed the evidence including the respondent’s version of events, his cross-examination, Dr Wang’s clinical notes and the other medical evidence. In the Acting Deputy President’s view, the Member’s reference to the entry on 16 December 2016 was, properly characterised by the Member at [48] of the reasons, as an illustration that clinical notes are not always entirely accurate. The Member did not extrapolate that finding to hold that the entirety of Dr Wang’s clinical notes were inaccurate but rather to show that they were not infallible. ([121])

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

20. The clinical notes themselves were in the hands of both the appellant and the respondent well prior to the hearing. The appellant had the ability to read and understand the significance of the entry of 16 December 2016. It could not be said that it was evidence which took the appellant by surprise. It was clear that the appellant did read all of the notes and did have the opportunity to make submissions on the accuracy or otherwise of Dr Wang’s notes including the entry for 16 December 2016. ([122], [124])
21. Acting Deputy President Nomchong SC found that the Member did not engage in any error of law by not bringing the entry of 16 December 2016 to the attention of the parties prior to referring to it in the reasons. Ground 3 failed. ([125]–[126])

Transport Contract Services (NSW) Pty Ltd v Employers Mutual NSW Ltd [2022] NSWPICPD 47

WORKERS COMPENSATION – the requirements of s 352(3) of the 1998 Act in respect of bringing an appeal: O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1, Abu-Ali v Martin-Brower Australia Pty Ltd [2017] NSWWCCPD 25, Popovic v Liverpool City Council [2017] NSWWCCPD 49, the definition of ‘pre-injury average weekly earnings’ in clause 2(1) of Schedule 3 to the 1998 Act, the definition of ‘earnings’ in clause 6 of Schedule 3 to the 1998 Act; statutory interpretation: the term ‘gross’ in the definition in Sch 3, cl 2(1), application of Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27; the ‘objects’ in s 3 of the 1998 Act; SAS Trustee Corporation v Miles [2018] HCA 55; 361 ALR 206

Snell DP

6 December 2022

Facts

The worker was engaged by the appellant employer pursuant to an owner/driver agreement as a “freight courier and deliverer”. It was accepted that the worker was entitled to be compensated on the basis that he was a deemed worker for the purposes of the workers compensation legislation. Liability was accepted by Employers Mutual NSW Pty Ltd (EML/the insurer) as a scheme agent of the Nominal Insurer. The weekly entitlement was compensated by reference to the worker’s ‘pre-injury average weekly earnings’ (PIAWE), which EML calculated at $720.28. As at the date of the hearing at first instance weekly payments continued to be made voluntarily on that basis. The first issue involved whether s 287(1)(b) of the 1998 Act conferred jurisdiction on the Commission to deal with the dispute between the employer and the insurer. The Principal Member concluded that it did, and that aspect of the decision was not challenged on appeal.

The employer accepted that the figure of $720.28 (the PIAWE on which the payments were based) accurately described the rate at which payments were made to the worker during the period relevant to the calculation. The employer asserted that the PIAWE figure on which the payments were based should be reduced by 25% to reflect the fact that a proportion of the remuneration paid to the worker was used to cover his expenses as an owner/driver.

The matter proceeded at first instance without the worker’s participation, although he had been joined to the proceedings. The Principal Member issued a Certificate of Determination, in which he said that “the employer is entitled to litigate the dispute with the insurer about the amount of the worker’s PIAWE”. He concluded that the insurer had correctly assessed the worker’s PIAWE. The Principal Member said that “[g]iven the findings on PIAWE, it is unnecessary to consider the appropriate relief as the proceedings must be dismissed”.

The employer appealed. The worker took no role in the appeal proceedings, with the insurer being the only active respondent to the appeal proceedings.

There was a preliminary issue as to whether the monetary threshold to appeal pursuant to s 352(3A) of the 1998 Act had been met.

The issue on appeal was raised in a single ground of appeal:

“The Principal Member erred in the calculation of pre-injury average weekly earnings (PIAWE) in relation to 2nd Respondent by relying on gross payments received by a deemed worker pursuant to the contract and not making an allowance for, or deduction of expenses incurred by the 2nd Respondent in his fulfilment of the contract as an owner/driver.”

Held: The appeal could not be brought as the monetary thresholds in s 352(3) of the 1998 Act were not satisfied and there was no right of appeal.

Monetary threshold

1. In its miscellaneous application, the employer sought an order that “weekly benefits be paid on the basis of a PIAWE of no more than some $540 a week”. The order sought was expressed to date from 13 January 2021 (the date of injury). The employer stated it had not sought an order for reimbursement. The employer had “been indemnified in relation to the compensation payments due” to the worker. The employer’s counsel submitted “[i]t has an interest in all this because what’s paid, of course, affects the cost of claims and that is factored into the premium calculations eventually”. There was discussion, at the hearing before the Principal Member, going to the availability of orders for repayment if the employer’s argument regarding PIAWE were accepted. ([30]–[31])
2. The proceedings were conducted on the basis that, if the employer succeeded, reimbursement of any overpayments was not being pursued in the Commission. ([32])
3. The Principal Member accepted EML’s argument that the insurer’s calculation of PIAWE did not involve error and he dismissed the proceedings. No monetary award was made at first instance. In Grimson v Integral Energy [2003] NSWWCCPD 29 (Grimson) Fleming DP said “The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance”. In NSW Department of Education and Communities v Colefax [2012] NSWWCCPD 63, Keating P dealt with an appeal in a matter involving a workplace injury management dispute. His Honour, after referring to Grimson, said “in this case there was no amount of compensation claimed in the Application, hence there is no amount of compensation ‘at issue’ on the appeal and the thresholds in s 352 of the 1998 Act have not been met”. His Honour described this reasoning as being “consistently applied in the Commission”. ([33])
4. The employer’s submissions proceeded on the basis that, if ultimately there were moneys that it could theoretically recover, on the basis there had been an overpayment resulting from acceptance of its PIAWE argument, this would constitute an ‘amount of compensation at issue on the appeal’ for the purposes of s 352(3)(a). Deputy President Snell did not accept that submission. Under cl 11 of the statutory policy, the insurer was entitled to use the name of the employer “in respect of anything indemnified under this policy”. Clause 12 of the policy provided the insurer had “the right of subrogation in respect of all rights which the Employer may have against any person or persons who may be responsible to the Employer or otherwise in respect of any claim in respect of any injury covered by this policy”. The insurer noted at the hearing before the Principal Member that it continued to make payments and was “happy to keep paying”. It was noted at that hearing that the worker underwent back surgery in January 2022 and was, at that time, “totally incapacitated”. The employer’s submissions on this appeal stated that the worker “remains in receipt of weekly benefits”. The insurer, in accordance with the statutory policy, was paying compensation to the worker. The worker did not assert he had unsatisfied rights to compensation against the employer or the insurer. ([38])
5. The employer correctly submitted that any pursuit of reimbursement was a matter for the insurer. The worker’s entitlement to compensation from the employer, including any relevant monetary benefit, had already been paid (and continued to be paid) voluntarily by the insurer, consistent with the insurer’s rights and obligations under the policy. The insurer made no application, in these proceedings, for repayment of any overpayment that may arise if the employer succeeded in its argument based on PIAWE. The employer did not pursue such an argument at the hearing before the Principal Member. ([39])
6. The decision of O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1 made it clear that the monetary threshold in s 352(3) needed to be satisfied in respect of the “current claim”, the claim the subject of the appeal. The decision in Popovic v Liverpool City Council [2017] NSWWCCPD 49 dealt with the threshold in s 352(3)(a) on the basis that regard should be had to the basis on which the relevant claim was ultimately presented and pursued, which may differ from how it was pleaded. Snell DP agreed with that decision. It would be nonsensical if the threshold in s 352(3)(a) could be satisfied simply on the basis of a pleading that was not pursued or genuinely in dispute between the parties. ([40])
7. In the circumstances of this case, the threshold in s 352(3) of the 1998 Act was not satisfied and the appeal could not be brought. ([41])
8. It was appropriate that the Deputy President dealt with the ground of appeal raised by the employer, in the event that he was wrong in his view regarding satisfaction of the threshold in s 352(3) of the 1998 Act. ([42])

Consideration

9. No party took issue with the Principal Member’s conclusion that the Commission had jurisdiction to deal with this dispute. It is necessary to have regard to the wording of cl 2 of Sch 3 to the 1987 Act. The sums paid were “received by the worker for work in any employment in which the worker was engaged at the time of the injury” (emphasis added). The sums paid were in respect of specific services supplied by the worker, to the employer, pursuant to the contract between them. The sums did not relate to expenses incurred by the worker; provision was not made for this in the contract. The Principal Member had concluded that “the rates provided in the agreement are earnings as defined in clauses 2 and 6 of Schedule 3 of the [1987] Act”. This was consistent with the contract in place between the parties. ([63], [70])
10. The employer submitted that the icare NSW Wages Definition Manual was consistent with part of the payments to the worker comprising expenses. The insurer submitted, and the employer did not cavil with this, that the Manual was for use in the calculation of premiums, not the determination of a worker’s PIAWE. Deputy President Snell said the Manual could not assist in construction of the legislation here at issue, going to the calculation of PIAWE. ([71])
11. The term ‘pre-injury average weekly earnings’ is specifically defined in cl 2(1) of Sch 3 to the 1987 Act, as “the weekly average of the gross pre-injury earnings received by the worker for work in any employment in which the worker was engaged at the time of the injury”. This was consistent with the concept that gross earnings can be received “in any employment” within the terms of the definition. The upper limb of the s 11(1) equation, at issue in J & H Timbers Pty Ltd v Nelson [1972] HCA 12; 126 CLR 625 (Nelson) on which the employer submitted, contained no reference to gross earnings. The Deputy President accepted the insurer’s submission that the statutory test at issue in Nelson was different to that raised in the current proceedings going to the meaning of ‘pre-injury average weekly earnings’. ([74])
12. The insurer submitted that the term ‘gross’ in the definition “should not be read down to mean ‘net’”. The word ‘gross’, in the construction for which the insurer contended, was given its plain and ordinary meaning. The employer had not suggested an alternative construction that would give meaning to the word ‘gross’ in the definition of ‘pre-injury average weekly earnings’. ([75]–[76]) It was necessary, in construing this provision, that the Commission strive to give meaning to every word of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, [71].
13. The employer raised s 3 of the 1998 Act. It submitted the Principal Member’s construction of the legislation dealing with PIAWE was inconsistent with two of the objectives in s 3, to promote the return to work of injured workers as soon as possible, and to be fair, affordable and financially viable. The basis of the employer’s reliance on the stated object that the system be “fair, affordable, and financially viable” was not specifically spelled out. Snell DP inferred the basis of the submission was that weekly compensation payments, based on a higher PIAWE because it was calculated from a higher (gross) figure, was less conducive to the fairness, affordability and financial viability of the scheme. This was not self-evident. ([77]–[79])
14. The definition in its current form was introduced by the Workers Compensation Legislation Amendment Act 2018. To the extent that the test then introduced may be more beneficial to workers claiming under the legislation, one could not readily conclude that this was contrary to the objects of the legislation. At the least, the Deputy President was not persuaded that workers compensation legislation should be construed in such a way as to prefer the constructional choice that places the least financial demands on the scheme, so as to protect the system’s fairness, affordability and financial viability. This object from s 3 did not assist the employer. ([81])
15. Deputy President Snell concluded that the Principal Member had construed the definition of ‘Pre-injury average weekly earnings’ in a way consistent with the ordinary meaning and grammatical sense of the words. He did not err in doing so. ([88])
16. It followed that the appeal, if it had met the threshold requirements of s 352(3) of the 1998 Act, would have failed in any event. ([89])

Mosawi v Baron Forge (NSW) Pty Ltd [2022] NSWPICPD 48

WORKERS COMPENSATION – section 4 of the 1987 Act – nature of injury – determination of pathology – Inghams Enterprises Pty Limited v Belokoski [2017] NSWWCCPD 15 applied – weight given to expert evidence – Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 – decision maker not required to address every piece of evidence or argument in reasons – failure to address evidence or argument must be critical to case to establish error – Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209 considered

Phillips P

7 December 2022

Facts

The appellant worker was employed by the respondent as a machine operator. His duties included, in addition to operating machinery, the lifting of benchtops, slabs and other equipment. On 28 October 2016, the appellant was carrying a caesarstone benchtop with a colleague, which weighed approximately 50–60 kg. They were both carrying the benchtop on their shoulders. The appellant stated that whilst carrying the benchtop on his shoulders in this manner, he experienced immediate and severe back and chest pain. He said the pain in his back radiated up to the neck. The appellant then drove himself to hospital for treatment.

The appellant claimed injuries to his lumbar, thoracic and cervical spines, with a combined whole person impairment of 15%. The respondent denied that the appellant sustained injury to his cervical spine. Before the Member, the remaining issue was whether the appellant sustained injury to the cervical spine. The Member entered an award for the respondent with respect to the asserted injury to the cervical spine. The Member separately ordered that the injuries to the appellant’s thoracic and lumbar spines be referred to a Medical Assessor for the purposes of assessment of whole person impairment. This latter order was not the subject of any dispute on this appeal, save for the fact that the appellant asserted that his cervical spine injury should be included in the referral.

The appellant appealed against the award made in favour of the respondent with respect to the asserted injury to his cervical spine.

The issues on appeal were whether the Member erred in:

(a) mixed fact and law in failing to properly apply the correct legal test (Ground A);

(b) law in relying upon the opinion of Dr Wallace in circumstances where his opinion cannot be said to have been given in a ‘fair climate’ (Ground B);

(c) law in finding that the precise pathology in this case was very much a live issue and, thus, it is inferred that the Member considered he needed to make a finding of the precise pathology in order for the appellant to succeed under s 4 (Ground C);

(d) fact, law and discretion in rejecting the opinion of Dr Haddad regarding diagnosis or erred in failing to provide sufficient reasons in not accepting Dr Haddad (Ground D);

(e) fact, law and discretion in rejecting the opinion of Dr Papatheodorakis (Ground E);

(f) his discretion in rejecting the opinion of Dr Teychenné (Ground F);

(g) law in failing to deal with the appellant’s own evidence (Ground G);

(h) law in failing to deal with the evidence from rehabSolutionsaustralia (Ground H);

(i) fact in finding that Dr Papatheodorakis contacted Dr Haddad and they both agreed there was no cord lesion and that there was unanimous agreement between three of the four medical practitioners that the diagnosis of a partial cord lesion could be discounted (Ground I);

(j) law in failing to deal at all with the diagnosis reached by Rehabilitation Services by Altius (Ground J);

(k) fact in finding that from December 2016 onwards, the cervical spine does not appear to have attracted any attention until an MRI was taken on 5 November 2018 (Ground K);

(l) fact in finding that Dr Haddad makes no specific mention of the cervical spine in the clinical notes (Ground L);

(m) law in finding that the entry “bilateral neck pain” does not have any probative significance (Ground M), and

(n) law in finding that the appearance of “incomplet [sic] cord lesion” written in the GP records did not occur until 19 June 2017 and in finding that any inference to be drawn regarding the entry of “incomplet cord lesion” by the GP would be that it occurred to the lumbar spine and it was more likely that the entry was a repetition of Dr Teychenné’s diagnosis, which by then had been the subject of eight reports (Ground N).

Held: Leave to appeal was granted and the Certificate of Determination dated 14 January 2022 was confirmed.

Ground A

1. The President noted that there was a suggestion under this ground, although it was not argued as such, that the Member’s finding contrary to the appellant’s case was contrary to the weight of the evidence. There was a suggestion in the argument advanced under Ground A that this might be an error of fact. The President did not need to resolve this issue as it was not what had been asserted as the ground of appeal being pursued. This particular ground of appeal alleged that the Member applied the incorrect legal test with respect to the task of finding injury. ([68]–[69])
2. The President had not been taken to any passage of the Member’s decision where such error was said to have occurred. The Member at [132] and [133] of the reasons described the correct legal test before proceeding to find that this was a case where it was necessary for the precise pathology of the alleged injury to be found. This was consistent with the authorities of Dywidag Systems International Pty Ltd v Melksham [2020] NSWWCCPD 41; Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260; Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014] NSWCA 264 ; Kempsey Shire Council v Kirkman [2010] NSWWCCPD 104, and Inghams Enterprises Pty Limited v Belokoski [2017] NSWWCCPD 15 (Belokoski). ([60]–[61], [70])
3. Far from the Member incorrectly applying the relevant legal test with regards to the finding of injury, the President held that the Member had correctly identified the test and then proceeded to apply it. As no error of law in this approach had been identified, Ground A was dismissed. ([71])

Ground B

4. In this ground, the appellant challenged the Member’s reliance upon the expert medical opinion of Dr Wallace who was qualified by the respondent. The appellant asserted that there were deficiencies in Dr Wallace’s opinions, in particular referring to Dr Wallace’s failure to deal with the Liverpool Hospital notes. This, the appellant argued, meant that Dr Wallace’s opinion was not given in a “fair climate” (a reference to Paric v John Holland (Constructions) Pty Limited [1984] 2 NSWLR 505 (Paric)). ([72]–[74])
5. The President was of the view that it was a reasonable inference from Dr Wallace’s second report that he considered that there was a delay in complaint by the appellant, namely that there were no complaints regarding the appellant’s cervical spine until six weeks post injury. When one considered the passages of Paric, at 509F, it is clear from that case that a discrepancy in an expert report may or may not be fatal as to whether the expert opinion could be relied upon. ([83])
6. In this case, Dr Wallace’s opinion was not predicated upon a delay in complaint. Rather, Dr Wallace’s opinion was based upon a consideration of the investigations of the appellant’s cervical spine which had not revealed any abnormality. Dr Wallace’s ultimate opinion, that there was no objective evidence of cervical spine injury, was based upon an examination of the investigations. ([84])
7. When his Honour considered the contents of the Liverpool Hospital notes, it was difficult to discern how their absence from Dr Wallace’s opinion served to undermine that opinion in a Paric sense. The President did not consider these notes or the failure to be briefed with the notes had meant that his opinion had been given in a climate which was not fair. If it was a “discrepancy” of the type referred to in Paric, it was not of a quality to adversely affect Dr Wallace’s opinion. Ground B was dismissed. ([85]–[88])

Ground C

8. This ground was a derivation of the argument pursued by the appellant in Ground A. The appellant alleged that the Member made an error of law in deciding that “for the Appellant to succeed, he must prove to the Member’s satisfaction the precise nature of the cervical spine injury. This is consistent with the Member’s determination.” ([89]–[90])
9. The President held that the error of law asserted by the appellant had not been established. His Honour noted the appellant’s medical opinions were divergent. It was clear from a reading of the Member’s reasons that the Member was very much alive to this problem in the appellant’s case and considered that this was the kind of case as contemplated in Belokoski which required findings about pathology and whether these findings supported the asserted injury. In terms of the application of the principle, the Member was not in error. This appeal ground had not been sustained for the President’s reasons expressed under this ground and in Ground A. ([94]–[99])

(Belokoski applied)

Ground D

10. The appellant argued that the Member “never actually rejected, nor properly explained why he did not accept, Dr Haddad’s opinion that the Appellant suffered a cervical spine injury as a result of the subject incident.” The appellant argued that the Member never engaged with the actual diagnosis evidenced in the medical certificate and failed to explain why Dr Haddad’s opinion could not be accepted. The complaint with respect to Ground D asserted that Dr Haddad’s opinion was to the effect that the appellant suffered a cervical spine injury as a result of the subject incident. The appellant complained that “the Member never engaged with the actual diagnosis as evidenced in the medical certificate and failed to explain why Dr Haddad could not be accepted.” ([100]–[105])
11. The President accepted the respondent’s submission that he did not describe a neck injury. He simply referred to neck pain. The President appreciated that Dr Haddad was presented with a form in terms which were brief to the point of obscurity. His Honour did not accept the appellant’s submission that this certificate constituted an opinion that the appellant had suffered a cervical spine injury. The certificate itself was a poor basis to substantiate the submission which the appellant made on the appeal. In this regard his Honour meant no criticism of Dr Haddad, he was dealing with the certificate that he had been presented with. However, there was simply insufficient information or reasoning set out by Dr Haddad in order for the description of “neck pain” to be construed to constitute an opinion supportive of a cervical spine injury. Furthermore, the appellant’s diagnosis changed depending on the certificate, with Dr Rassam (treating general practitioner), for example, providing an early diagnosis of “upper and lower back strain”, and Dr Haddad later changing his diagnosis to reflect Dr Teychenné’s (consultant neurosurgeon) opinion of an incomplete cervical cord lesion. ([106]–[107])
12. The President found that Dr Haddad’s opinions viewed objectively did not require the Member to deal with them in the manner asserted by the appellant on the appeal.  Ground D was not established and was dismissed. ([112]–[113])

Ground E

13. The appellant alleged that the Member “rejected” the opinion of Dr Papatheodorakis (injury management consultant), and that this finding was erroneous. ([114])
14. The Member was not satisfied that there was a pathological change in the appellant’s cervical spine sufficient to establish injury, this was the substance of the issue at hand and it was clear from the Member’s reasons why he was not satisfied with the appellant’s case. The President held this did not involve the Member in any error. ([126]–[127])
15. It was also alleged that the Member failed to provide sufficient reasons as to why the diagnosis was not open on the evidence. The President held it was tolerably clear that the Member was not persuaded by Dr Papatheodorakis’s opinion based upon the clear investigatory studies which did not reveal objective signs of injury to the cervical spine. This was the basis of the Member’s decision, which was succinctly expressed. The Member was not required under the statute, the Rules or the authorities to express in any greater detail the reasons as to why he was not persuaded by the doctor’s opinion. This ground was not established and was dismissed. ([129]–[130])

(Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 applied)

Ground F

16. The appellant asserted that the Member incorrectly assessed Dr Teychenné’s evidence before rejecting it. ([131])
17. The President observed that whilst this ground of appeal asserted that the Member rejected the opinion of Dr Teychenné, his Honour did not consider that this was strictly correct. Rather, the Member reviewed Dr Teychenné’s opinions and obviously accorded them little or no weight. Whilst the Member did not refer to the authorities or the Personal Injury Commission Rules, it was clear from a reading of his decision that the Member was applying those principles to Dr Teychenné’s opinion. ([149])

(Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 applied)

18. The President concluded that no error in the Member’s approach to Dr Teychenné’s evidence had been established. Indeed to the contrary, the Member approached Dr Teychenné’s evidence in accordance with principle and the well-established approach to expert evidence in the Commission. Ground F was dismissed. ([160]–[161])

Ground G

19. The appellant asserted that he gave “entirely unchallenged evidence”. The President held there is no rule of law that requires a court to accept unchallenged or untested evidence. Ultimately, the Member decided this matter on the basis of a consideration of the expert medical evidence. It was not necessary for the Member to specifically make findings about the appellant’s evidence one way or another. It was reasonably clear that the appellant’s evidence was not rejected, rather it was not helpful in establishing the ultimate question regarding the asserted injury to the cervical spine. As a consequence, no question of a denial of procedural fairness arose. Ground G was dismissed. ([162]–[172])

(SZRTN v Minister for Immigration and Border Protection [2014] FCAFC 129, and Ashby v Slipper [2014] FCAFC 15 applied)

Ground H

20. In this ground the appellant asserted that the Member failed to deal with the report of rehabSolutionsaustralia dated 31 October 2016. The President noted that a Member is not required to deal with every piece of material that is before the Member. His Honour did not consider that it was incumbent upon the Member to deal with the rehabSolutionsaustralia report of 31 October 2016. The report on its face did not reveal that an examination of the cervical spine took place and otherwise recorded no complaints of cervical spine pain or even neck pain. By definition, the Member could not be in error by failing to refer to a piece of evidence which does not deal with the matter in issue, which was the injury or not to the appellant’s cervical spine. Ground H had not been established and was dismissed. ([173]–[182])

    (Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 applied)

Ground I

21. The President found that the Member had in error incorrectly attributed an opinion to Dr Papatheodorakis and Dr Haddad. Notwithstanding this fact, for this error to be determinative on appeal, it must have affected the result. ([183]–[192])

    (Walshe v Prest [2005] NSWCA 333, and Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339 applied)

22. His Honour held that the error made by the Member was not of such a quality to affect the result. Neither Dr Papatheodorakis’s nor Dr Haddad’s opinion supported the opinion of Dr Teychenné in terms of his diagnosis of an incomplete cervical cord lesion. The President accepted that it was not correct of the Member to state that there was “unanimous agreement” as he did at [113] of the reasons. Even though this expression “unanimous agreement” was not correct, that did not then serve to provide support for Dr Teychenné’s opinion which the Member was correct to afford little or no weight to. Ground I was not established and was dismissed. ([193]–[195])

Ground J

23. This appeal ground effectively alleged a constructive failure to exercise jurisdiction. The President noted that this issue has recently been examined by the Court of Appeal in Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209 (Ming). ([207]–[208])
24. There are a number of principles arising from Ming. They are:

(a)     it is not necessary for a decision-maker to address every argument or piece of evidence in delivering reasons;

(b)     the mere failure to consider evidence or address an argument or submission which may be contingent or otherwise insignificant is not sufficient, and

(c)     the question is whether the failure to consider or address certain issues or arguments involved a failure to address central or critical elements of the case or claim. ([209])

25. In short, not every failure to address a piece of evidence or argument will result in jurisdictional error. The President found that the Member did not have to refer to or deal with the report of 26 September 2017. His Honour concluded there was no error in the Member failing to do so and as a consequence, this ground was dismissed. ([210]–[214])

Ground K

26. This ground asserted that the Member made an error in fact finding in accordance with the terms of the ground itself. The appellant did not state in terms how any of the asserted errors at [117] of the Member’s reasons, even if established, had affected the result. The fact that the Member may not have precisely referred to the medical attendances during the stated period had not been shown to affect the result. This ground was not established and was dismissed. ([215]–[228])

Ground L

27. The appellant asserted that the Member made a finding with respect to Dr Haddad’s clinical notes which was said to be “clearly incorrect”. This particular finding about the probative value of this entry was the subject of Ground M, which the President also dismissed. The appellant had not established how any error in dealing with Dr Haddad’s notes would affect the results in this case. The President concluded that this ground had not been established and was dismissed. ([229]–[233])

Ground M

28. The President found it was within the Member’s discretion as a decision maker to find that the entry “bilateral neck pain” did not have any probative significance. It was the Member’s task to weigh the evidence and accord it the weight the Member considered warranted. No error had been established. ([234]–[241])

Ground N

29. In this ground, the appellant submitted that the “incomplet[e] cord lesion” could only have been referrable to the cervical cord lesion. The President did not accept this submission. The letter from EML clearly was referring to an “upper back injury”, not a cervical injury, and his Honour could only assume that Dr Rassam’s answers to the two questions were predicated upon the opening sentence to that letter. However, even if his Honour was wrong in that construction of the letter, and Dr Rassam was referring to an incomplete cervical cord lesion, the basis or reasoning behind this opinion was nowhere made out. The President ultimately concluded that no error in the Member’s approach had been established and this ground of appeal was dismissed. ([242]–[248])

Van Vliet v Landscape Enterprises Pty Ltd [2022] NSWPICPD 49

WORKERS COMPENSATION – psychological injury – section 11A of the 1987 Act – reasonable action taken by an employer with respect to dismissal – Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255 and Irwin v Director General of Education (Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997, unreported) considered

Phillips P

19 December 2022

Facts

The appellant worker was employed by the respondent as a landscape gardener. He subsequently became a team leader and worked at various sites undertaking gardening and landscaping at the premises of the respondent’s clients. The appellant made various criticisms of how the respondent’s business was conducted and said that this caused him psychological injury.

Whilst the appellant and a colleague, Mr Wolff, worked on a site, an altercation took place between the appellant and a person called Fia, a warehouse manager on the site. As a result of this altercation, the respondent’s principal, Mr Quin, directed the appellant and Mr Wolff to leave the site and return to the respondent’s yard. Complaints about the altercation had been made by site representatives to the respondent. On the next day, 31 January 2020, the appellant had a meeting with the respondent’s management. At this meeting the appellant’s employment with the respondent was terminated.

The appellant also recounted an incident where he said that he was lying underneath a ride on mower changing the blades of the mower and he said that he became trapped under the mower when it slipped from one of the jacks that it was on (the lawn mower incident).

The appellant had not worked since the termination of his employment on 31 January 2020. He alleged that he developed a psychological condition which was caused by bullying, harassment and exposure to unsafe work practices while in the course of his employment with the respondent. The respondent conceded that the appellant suffered a psychological injury, but said that this was as a result of his dismissal on 31 January 2020. The respondent denied that any other aspect of the appellant’s employment caused or contributed to the development of his psychological condition. The respondent maintained that the dismissal of the appellant was reasonable action within the provisions of s 11A(1) of the 1987 Act.

The Member ultimately made a finding in favour of the respondent. The Member said: “Indeed, I am inclined to the view that the evidence establishes that the actions on 30 and 31 January 2020 were the whole cause of the applicant’s psychological injury.” The worker appealed.

The issues on appeal were whether the Member erred in mixed fact and law in:

(a) that the Member failed to find that the dismissal of the appellant was procedurally and substantively unfair and unreasonable, and that a defence under s 11A(1) of the 1987 Act was not made out (Ground 1);

(b) that the Member erroneously proceeded to determine the defence pursuant to s 11A(1) on the basis that diminished standards of reasonableness apply to disciplinary action by “small” employers, thus reducing and, as occurred in the current case, extinguishing the rights of workers who suffer injury in the employ of such undefined “small” employers (Ground 2);

(c) purporting to find that the principles enunciated by Roche DP in BlueScope Steel Ltd v Markovski [2013] NSWWCCPD 69 (Markovski) were not applicable to the current case (given immaterial factual differences), and in failing to find that the conduct of the employer in the current case could not be considered reasonable having regard to those principles (Ground 3), and

(d) failing to award weekly compensation to the appellant on the basis of his incapacity for work, and in failing to make an award pursuant to s 60 in respect of the appellant’s medical expenses (Ground 4).

Held: The Certificate of Determination dated 10 January 2022 was confirmed.

Discussion

1. The President noted that before the Member, it was the appellant’s position that his psychological injury had been caused by what the appellant described as being “subject to various bullying, targeting, and harassment during my employment. Although the lawn mower incident did start my psychiatric symptoms as I felt constantly unsafe afterwards, I was further subject to various bullying and harassment which [led] to my deterioration of my psychological state.” ([153])
2. In other words, the appellant pointed to a range of matters during the course of his employment as being the cause of his psychological injury and not just his dismissal. The respondent to the contrary admitted psychological injury, stating that that injury was limited to the appellant’s dismissal. ([154])
3. On appeal, there was no challenge made by the appellant to this finding that his psychological injury was wholly in relation to his dismissal. The matter in dispute before the President related to the Member’s finding that the employer’s actions with respect to dismissal (for the purposes of s 11A(1) of the 1987 Act) were reasonable. His Honour observed that as is often the case in s 11A(1) matters, there can be a conflict in the evidence between a worker and the employer’s witnesses with respect to various events about which there is a contest. This is quite apart from any dispute on the medical evidence. This was such a case where there was a dispute particularly with respect to the lay evidence. Indeed, the Member was obliged to make a finding regarding the appellant’s credit given the divergence in the evidence between the appellant and the respondent’s witnesses. ([155])

Ground 1

4. In this ground, the appellant disputed the Member’s finding that the respondent’s actions were reasonable for s 11A(1) of the 1987 Act purposes. This finding was disputed on two grounds, namely that the decision to dismiss was not reasonable and that the process adopted by the respondent in terms of investigating the incident and effecting the termination was also not reasonable. The appellant made serious criticisms of the procedure adopted by the respondent. The respondent asserted that the appellant had a history of poor behaviour whilst working for the respondent. ([159]–[161])

   Reasonableness of outcome

5. In short, the appellant stated that his “abrasive and argumentative” conduct had previously not been considered a problem. This submission almost suggested that the conduct had been accepted or condoned by the respondent. This submission though neglected the evidence of the respondent’s lay witnesses, in particular Messrs Quin and Kells, which the Member preferred, that both had spoken to the appellant about his conduct in the past. In particular, the appellant had been seriously counselled about the obscene text message the appellant had sent to a co-worker. As a consequence, the President did not accept the appellant’s submission on this appeal that his behaviour had not been considered a problem in the past, it was clearly a problem and the appellant had been counselled about it. His Honour also remarked that the Member had made a finding, which was not challenged on appeal, which was adverse to the appellant’s credit. This finding went to the question of the prior counselling of the appellant and his knowledge that aspects of his behaviour were not acceptable to the respondent. ([168])
6. The appellant alleged that the respondent could have made other decisions, such as warning the appellant or shifting him to another worksite. This submission though, suggesting other actions short of dismissal, said nothing about the nature and quality of the behaviour exhibited by the appellant towards the female warehouse manager, Fia, on 30 January 2020. ([169])
7. The President held that, viewed objectively, as the Member did, it was certainly reasonable for the respondent, as the appellant’s employer, to summarily dismiss him from his employment. The nature and quality of his behaviour on 30 January was unacceptable. No error had been established with respect to the reasonableness of the decision to dismiss. ([170]–[171])

Reasonableness of process

8. His Honour said that, as the Member found, the meeting was not perfect, but it does not have to be. In that meeting, the appellant was both insolent and aggressive towards the respondent’s managers who were endeavouring to conduct a meeting with the respondent about what had occurred on the prior day. The President did not accept the appellant’s submission on the appeal that he was unaware as to the subject matter of that meeting. In the circumstances, the respondent had conducted an investigation, established the facts and made a decision. All relevant witnesses had been spoken to and the decision to dismiss was reasonable. ([180]–[181])
9. The Member found that the termination was imperfect, but in the circumstances reasonable. In terms of the Member’s fact finding, there was no error in this approach. The Member correctly considered all of the circumstances of the case, as the authorities require, in reaching a view about the reasonableness of the process adopted by the respondent. The Member quite correctly noted the flexibility of the content of the obligation pertaining to procedural fairness, which stood in contradistinction to the inflexible approach urged upon the Member by the appellant. In so doing the Member was involved in no error. The assertions made by the appellant had not been established. ([182]–[183])
10. The President ultimately concluded that Ground 1 had not been made out and was dismissed. ([200])

Ground 2

11. The appellant asserted that the Member had wrongly differentiated the standards applying to large as opposed to smaller employers. The respondent said that the Member did not decide the s 11A(1) issue on the basis that there were different standards for employers based upon their size. Rather, the respondent asserted that: “The Member after careful consideration of the evidence and the authorities found that reasonableness depended on the circumstances of the case and that there was accordingly a flexibility as to the content of the obligation.” ([201]–[205])
12. The President did not accept the appellant’s submission that the Member had set a lesser standard for the respondent in relation to procedural and substantive fairness expected of employers. The function that the Member was undertaking at [108] of the  reasons found that the concept of reasonableness cannot be as rigid and unvaried as has been asserted by the appellant. The Member was correct to consider the entirety of the circumstances of the case. Each case requires for the purposes of s 11A(1) a consideration of all the relevant facts. It is not a mechanical process as the appellant asserted, what may be necessary to ensure a reasonable process in one case may be totally unnecessary in another circumstance. ([206]–[207])

(Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 and Irwin v Director General of Education (Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997, unreported) (Irwin) applied)

13. However, this appeal ground challenged two aspects, namely the procedure adopted by the respondent and the substantive fairness of the decision that it reached. In terms of the substantive fairness of the respondent’s decision, it was clear once one considered what occurred on 30 and 31 January 2020, that the respondent interviewed the relevant witnesses and broadly there was no dispute as to what occurred in the lunchroom. It was established that the appellant “had spoken to Fia in a demeaning manner employing extremely offensive language.” Objectively, the decision to terminate the appellant’s employment for misconduct was a decision available to the respondent in light of all of the circumstances, and the Member so found. In terms of the procedure adopted, his Honour did not accept as the Member did not accept, that the respondent was bound to implement a very rigid process. ([208]–[211])
14. The President held that whilst the procedure was not perfect, it provided the appellant with sufficient opportunity to be heard such that it could not be said to have become unreasonable. The Member so found and this was within the Member’s decision making function. In particular the findings at [112] of the reasons regarding the decision being reasonable in the circumstances of the case was consistent with the decided authorities. His Honour also noted that on this appeal, no challenge to the facts found by the Member had been made by the appellant. The facts as found supported the argument that the respondent’s actions were reasonable. This ground of appeal had not been established and was dismissed. ([214]–[216])

Ground 3

15. The appellant submitted that the Member failed to apply the principles in Markovski. He said that he was entitled to be given notice that the meeting he was called to on 31 January 2020 was for the purpose of discussing misconduct and any appropriate sanction. The respondent submitted that Markovski could be distinguished from this case. ([217]–[218])
16. The President accepted the respondent’s submission that Markovski could be distinguished from this case. In this case, the appellant was present when the unseemly exchange took place in the lunchroom on 30 January 2020. Very soon after this exchange had completed, he was contacted by the respondent’s management and directed to immediately cease work and return to the respondent’s yard. ([219]–[220])
17. Upon his return he was questioned by the respondent’s management as to what transpired and was advised that the respondent would be speaking to the client about that issue. So concerned was the appellant, he enquired whether he should obtain legal representation. Additionally, there was no serious contest on the part of the appellant as to what occurred during the lunchroom incident. The appellant behaved in a manner towards the female on site, Fia, which was completely unacceptable in any workplace. The appellant had previously been counselled about his rough manner towards colleagues and in particular he had been advised that the terms of his text to a colleague were completely unacceptable to the respondent. ([221])
18. Whilst it would have been preferable had the appellant been formally advised that the meeting on 31 January was to discuss his ongoing employment, this imperfection in the process did not serve to undermine the reasonableness of what the employer did.
19. The Member did, consistent with decided authority (Heggie, Irwin) consider all the circumstances of the case, weighing all the evidence in assessing the reasonableness or not of the respondent’s action. The President did not read Markovski as requiring in all cases the types of matters referred to by Roche DP as constituting mandatory conduct in every case. Indeed at that part of Markovski, Roche DP was undertaking the same type of consideration that the Member undertook in this case and in the circumstances of that matter, made the findings that he did. No error had been established, Ground Three was dismissed. ([223])

Ground 4

20. The appellant asserted that the error alleged in ground four was “consequent upon the erroneous findings regarding liability”. Given that Grounds One to Three had not been established, Ground Four as a consequence was not made out and was dismissed. ([224])

Success Ventures Pty Ltd v Gacayan [2022] NSWPICPD 50

WORKERS COMPENSATION – procedural fairness – whether Member failed to engage with the evidence and submissions made – dealing with ‘uncontradicted’ evidence – section 11A of the 1987 Act

Parker SC ADP

20 December 2022

Facts

The respondent worker was employed by the appellant at the Park Royal Hotel Darling Harbour. He commenced employment on 15 August 2018 as the Assistant Chief Engineer, reporting to the Chief Engineer. The respondent was dismissed from his employment pursuant to a letter dated 10 January 2019.

The respondent said that when he engaged a contractor to perform work, the Chief Engineer disapproved and told the respondent that he was not to call any contractors or suppliers. This was in a loud screaming voice in the presence of all the engineering teams. The respondent said he was shamed and treated with disrespect and felt bullied. The respondent alleged that thereafter the Chief Engineer made public insults and humiliating actions every day making him feel “unwelcome, harassed, bullied around exerting [him] pressure not to do the work” he was employed to do. The respondent also said that the Chief Engineer excluded him from work meetings and activities. He said the Chief Engineer passed on his normal activities to less experienced personnel with no experience in engineering management.

The respondent discovered irregularities in the procurement and management systems. He wrote to head office with respect to the Chief Engineer’s activities. A subsequent audit process revealed procurement irregularities at the hotel.

The Chief Engineer resigned and left the appellant’s employment on 16 November 2018. On 12 November 2018, the respondent provided an expression of interest for the position as Chief Engineer. He was interviewed for the position on 19 November 2018 by Ms Knoetze and Mr Meijer. There were conflicting accounts of the interview.

The respondent alleged that in the interview he was victimised, ambushed and belittled by Ms Knoetze and Mr Meijer who “took revenge for [the Chief Engineer] leaving on my raising and whistleblowing”. He said that Ms Knoetze threatened him and in a loud screaming voice said he should not be in Australia and should be deported. The respondent said he felt threatened and feared for his safety and well-being. At the end of the interview, he almost called an ambulance as he was vomiting and stressed. After the interview the respondent withdrew his application for the Chief Engineer’s position.

Ultimately, the respondent’s employment was terminated on 10 January 2019 on the basis that he had misrepresented his employment with Pearl Corporation, a company in which he and his wife were directors.

In essence, the worker’s case was that he suffered a psychological injury due to the conduct of the Chief Engineer from the commencement of his employment and the further conduct of Ms Knoetze and Mr Meijer in the interview.

The Member accepted that the respondent’s employment with the appellant was the main contributing factor to the onset of his psychological condition. On the second issue with respect to the operation of s 11A of the 1987 Act, the Member rejected the appellant’s argument that it was its reasonable actions with respect to promotion and/or performance appraisal that were the whole or predominant cause of the respondent’s injuries. The employer appealed.

The issues on appeal were whether the Member:

(a) erred in law in concluding that the respondent’s evidence regarding the hostility and intimidation by the Chief Engineer should be accepted because it was uncontradicted (Ground 1);

(b) erred in failing to take into account a material and relevant consideration, namely the respondent’s failure to report the bullying of the Chief Engineer until after the November 2018 meeting (Ground 2);

(c) erred in failing to find that the respondent’s major depressive disorder was caused by a motor vehicle accident in May 2018 and further erred in rejecting the opinion of Dr Vickery (independent medical examiner for the appellant) on the basis that there was no contemporaneous diagnosis of such a disorder (Ground 3);

(d) committed a jurisdictional error or otherwise engaged in conduct constituting a constructive failure to exercise jurisdiction by failing to assess the respondent’s credibility and further erred in failing to find that the respondent had engaged in deliberate acts of dishonesty (Ground 4);

(e) erred on the test of causation pursuant to s 11A of the 1987 Act and also by failing to properly determine the s 11A defence (Ground 5), and

(f) erred in law by failing to take into account and make findings in respect of the evidence adduced by the appellant and alternatively denied the appellant procedural fairness (Ground 6).

Held: The Certificate of Determination dated 17 March 2022 was set aside and the matter remitted for re-determination.

Grounds 4 and 6

1. Grounds 4 and 6 were grounds of appeal which, if established, amount to a failure to achieve procedural fairness. In so far as either of those grounds may be established, there will of necessity be a remittal of the matter for rehearing. It was appropriate to deal with those grounds first. ([40])
2. The appellant’s complaint was that the Member failed to engage with and address a major part of its case. At the hearing before the Member, the appellant addressed arguments and submissions based on the evidence of Ms Knoetze and Mr Meijer. The Member did not in his reasons provide any analysis of the evidence or response to the submissions based on that evidence. The consequence was that the appellant submitted it was denied procedural fairness and the hearing miscarried. ([71])
3. Acting Deputy President Parker SC acknowledged that the Member was not required to refer to every piece of evidence or every contention advanced by the appellant. Nevertheless, in the Acting Deputy President’s view the absence of reasons of reference to the evidence of the appellant’s witnesses and the submissions based on their evidence indicated that the Member did not engage with and determine the case being advanced by the appellant. It followed that the hearing did not provide the appellant with procedural fairness. The matter had to be remitted for re-determination. ([75]–[81])
4. The Member did not engage with the evidence of Ms Knoetze and Mr Meijer. He could, as the respondent submitted, have found it of no relevance or of little weight. But he did not even refer to it in circumstances where the appellant made substantial submissions based on the evidence. The Member was required to engage with the statement evidence of Ms Knoetze and Mr Meijer. It was patent that substantial reliance was placed on this evidence by the appellant. There was nothing in the reasons for the determination indicative of any engagement by the Member with the evidence of these witnesses who were plainly central to the appellant’s case on the issue of injury. ([82]–[83])
5. The Member had failed to engage with the evidence and submissions made by the appellant and the appellant had made out the appeal in the basis that it was denied procedural fairness. Grounds 4 and 6 were established. ([84]–[85])

Ground 1

6. As far as Ground 1 of the appeal was concerned, the Member was entitled to accept the uncontradicted evidence of the respondent but, for the reasons provided in relation to Grounds 4 and 6 earlier in the appeal, he was required to also address the evidence of Ms Knoetze and Mr Meijer and provide cogent reasons why he could reach the conclusion he did with respect to the respondent’s evidence notwithstanding the evidence of the appellant’s witnesses.
7. The absence of any discussion of the evidence of Ms Knoetze and Mr Meijer persuaded the Acting Deputy President that the finding accepting the respondent’s evidence could not be sustained. The credit of the respondent, both as to truthfulness and reliability, was in issue. The absence of statement evidence from the Chief Engineer was not enough to overcome the failure to consider the evidence of the appellant’s witnesses. Ground 1 of the appeal was upheld. ([101]–[102])

Ground 2

8. Acting Deputy President Parker SC did not accept that the Member was in error in his assessment of the respondent’s failure to report the bullying of the Chief Engineer until after the November 2018 meeting. The delay in making a complaint was a relevant but not a determinative factor in assessing the respondent’s evidence. The Member plainly considered this issue and the appellant’s submissions with respect to it. He resolved the issue in favour of the respondent. The Member’s treatment of the reporting of the conduct was open on the material. Standing on its own no error was demonstrated and Ground 2 was dismissed. ([111]–[113])

Ground 3

9. The appellant’s argument before the Member and on appeal was that the main contributing factor to the psychiatric condition from which the respondent suffered was pre-existing and properly attributable to the motor vehicle accident of May 2018. The principal evidence for this hypothesis was contained in the reports of Dr Vickery. ([121])
10. Acting Deputy President Parker SC held that given the Member’s acceptance of the respondent’s evidence of bullying and harassment, the rejection of Dr Vickery’s opinion was inevitable. In the Acting Deputy President’s view, the appellant had not demonstrated error in the Member’s rejection of the appellant’s case based on Dr Vickery’s opinion that the main contributing factor to the respondent’s injury was the motor vehicle accident of 21 May 2028. Ground 3 was dismissed. ([126]–[128])

Ground 5

11. The appellant submitted that the Member’s criticism of Dr Vickery, particularly his report of 21 July 2019, as containing an inherent contradiction was erroneous. This aspect of Dr Vickery’s report went to the determination under s 11A. Parker SC ADP observed that the Member determined the s 11A defence on the basis that the appellant had not shown that the whole or predominant cause of the injury was reasonable action taken in relation to promotion, discipline and/or performance appraisal. This was because he found that the cause of the respondent’s psychological condition was multifactorial involving events before the interview on 19 November 2018. Furthermore, the Member rejected Dr Vickery’s opinion as being contradictory. In the Acting Deputy President’s view, Dr Vickery’s opinions in the two reports, if not strictly contradictory, were certainly inconsistent. ([129], [135]–[138])
12. In rejecting Dr Vickery’s two opinions, the Member preferred the evidence of Dr Oldtree Clark (independent medical examiner for the respondent), supported by the evidence of Dr Suleman (the respondent’s general practitioner). That evidence supported a finding that the respondent’s employment with the appellant was the main contributing factor to the onset of the psychological condition. ([140])
13. If the appeal was not otherwise successful, the Acting Deputy President would not have upheld Ground 5. But as the matter had to be re-heard, the Member’s findings with respect to s 11A and Dr Vickery’s evidence were set aside. ([141])

Conclusion

14. Acting Deputy President Parker SC held that the appellant had made out the appeal with respect to Grounds 4 and 6. In addition, the appellant had made out the challenge in Ground 1. Grounds 2, 3 and 5 had not been established but the matters outlined therein will require further examination on the re-hearing. ([142])

Chatz-Tzomma v Sarkis [2022] NSWPICPD 51

WORKERS COMPENSATION – Section 352(5) of the 1998 Act – requirement to show error – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 applied

Wood DP

20 December 2022

Facts

On 29 March 2017, the appellant worker suffered numerous injuries in the course of his employment with the respondent when he was working on a ladder and a co-worker kicked him in the head, causing him to fall to the ground. The appellant was taken to hospital and was diagnosed with fractures of both wrists, a fracture of the right elbow and right sided fractures of the pelvis. He was discharged from hospital on 26 June 2017.

The respondent accepted liability for weekly compensation. The appellant subsequently lodged a claim for lump sum compensation pursuant to s 66 of the 1987 Act in respect of 62% whole person impairment, based on the assessment of various body parts, which included the lumbar spine, cervical spine, left knee and both eyes (visual system). The respondent disputed liability for these body parts, asserting they were not injured in the pleaded incident.

The Member determined that he was satisfied that the appellant suffered injuries to his lumbar spine, left knee and eyes in the course of his employment with the respondent on 29 March 2017. He was not satisfied that the appellant suffered an injury to the cervical spine.

The appellant appealed the decision, alleging error on the part of the Member in respect of his finding that the cervical spine was not injured in the accident.

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

(a) failing to consider all of the evidence before him when deciding whether the appellant suffered an injury to the cervical spine (Ground A), and

(b) relying on the hospital records rather than “the other evidence” (Ground B).

Held: The Member’s Certificate of Determination dated 15 March 2022 was confirmed.

Ground A

1. 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. ([61])

(Waterways Authority v Fitzgibbon [2005] HCA 57 applied)

2. The issue for the Member to determine was whether the appellant suffered an injury to his cervical spine in the pleaded incident. As the Member observed, the appellant’s statement evidence did not address a critical question in the appellant’s case, which was the question of when it was that the appellant began to experience symptoms in the neck. The appellant made a mere assertion that his neck was injured in the incident. As the appellant was silent as to the date of onset of symptoms, the Member correctly looked to the contemporaneous evidence to ascertain when those symptoms may have manifested. ([62])
3. The Member gave a logical explanation as to why he considered that the tingling recorded in the appellant’s arm, the presence of a cervical collar and performance of a CT scan was not persuasive evidence that the appellant had injured his neck in the pleaded incident. He reasoned that there was no medical opinion expressing a connection between the tingling in the arm and a cervical condition and that, in the absence of some complaint of pain, the placement of a cervical collar and performance of a CT scan of the cervical spine were no more than precautionary measures. ([63])
4. The appellant submitted that the Member made no adverse finding in relation to the appellant’s credit. This was a rather curious submission in light of the total absence of any evidence from the appellant as to the time of onset of the symptoms and no evidence from him that the onset was actually prior to the first recorded complaint of neck symptoms in August 2017. The appellant made a further curious submission that he did not suffer from a pre-existing condition. The assertion was totally contrary to the findings on the radiological investigations of the cervical spine and the opinions of Dr Watson (orthopaedic surgeon qualified by the respondent), Dr Bodel (orthopaedic surgeon qualified by the appellant) and Dr Robinson (orthopaedic surgeon qualified by the respondent), who all acknowledged the presence of a pre-existing condition. ([64])
5. The appellant submitted that the Member was required to have regard to all of the available evidence. The appellant pointed to the evidence of Dr Watson, Dr Bodel and Dr Robinson, who were all of the view that the appellant suffered an aggravation injury to his cervical spine. If the appellant was asserting that the Member failed to have regard to that evidence, the assertion was wrong. The Member considered the evidence of Dr Bodel and Dr Watson but preferred the more contemporaneous evidence which weighed against the cervical spine being injured in the incident. While the Member did not specifically examine the evidence of Dr Robinson, it was implicit that Dr Robinson’s opinion fell in the same basket as those of Dr Watson and Dr Bodel in respect of their lack of contemporaneity. The decision maker is not required to deal with every piece of material that is before the Member, particularly in circumstances such as in this case where that report fell beyond the Member’s search for contemporaneous reports of cervical pain. It was explicit in the Member’s reasons that he did not draw assistance from the later reports provided on a medico-legal basis. ([65])

(Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 applied)

6. Deputy President Wood held that the Member gave logical reasons, based on the evidence before him, for rejecting the assertion of injury to the cervical spine. Those reasons included consideration of the mechanism of being kicked and the height of the fall, which he considered could have caused injury. He noted, however, that cervical symptoms were not recorded in the hospital notes, Dr Dent (medical officer employed by Royal Prince Alfred Hospital) found “no obvious injury” on examination and the first recorded complaint was some five months post-injury. He inferred that the radiological investigation and the provision of a cervical collar were precautionary measures. In addition, the Member noted that the appellant himself provided no explanation for the provision of the collar or the radiological investigation or any direct evidence as to when the symptoms manifested. In the light of the lack of evidence from the appellant, Dr Dent’s observation and the absence of complaints, the inference drawn and the conclusion reached were open to the Member. ([66])
7. The appellant had not pointed to any persuasive evidence that the Member failed to take into account in reaching his conclusion that the appellant had not established that his cervical spine was injured in the pleaded incident. This ground of appeal failed. ([67]–[68])

Ground B

8. There was a significant degree of overlap between this and the previous ground of appeal. While the authorities warn that a cautionary approach to reliance on the notes of busy practitioners should be adopted, those authorities do not extend to say that no weight should be afforded to them at all, or that the contemporaneous records cannot be accepted above other evidence. In this case, the appellant was hospitalised for three months. The plethora of records, constituting many hundreds of pages adduced into evidence, show that the appellant received extensive hands on treatment from occupational therapists, physiotherapists, orthopaedic surgeons, trainee and qualified medical officers, nursing personnel, psychologists, and social workers. None of those treatment providers made mention of cervical symptoms. The appellant provided no evidence to assist the Member in determining when the cervical symptoms manifested or to challenge the lack of contemporaneous reporting. ([69])
9. The appellant asserted that the Member ought to have accepted that the cervical spine was injured for the same reasons that the lumbar spine was accepted. The Member gave consideration to the same matters, which were identified in Ground A. There were countervailing reasons why the Member did not consider those matters sufficient to find in favour of the appellant in respect of the cervical spine. Firstly, Dr Dent specifically examined the appellant, including the appellant’s neck, on admission to hospital and no injury to the cervical spine was apparent. Secondly, the Member counted some 38 occasions over the months the appellant was in hospital when the appellant received physiotherapy. The physiotherapy included treatment to the right hand, elbow and shoulder, and involved bilateral mobilisation of both arms, and no complaint of cervical pain was recorded. Thirdly, the first recorded complaint of cervical symptoms was five months after the injury. ([70])
10. The appellant’s submission that the Member ought to have preferred the “other evidence” to that evidence contained in the hospital notes is not persuasive of error on the part of the Member and it cannot be said that other probabilities so outweighed those accepted by the Member that the Member’s conclusion was wrong. The Member’s conclusion was available to him and shows no error of the kind required to disturb the determination. Ground B was not made out and failed. ([71]–[72])

Boccalatte v Burwood Council [2022] NSWPICPD 52

WORKERS COMPENSATION – the test of ‘injury’ in the course of and arising out of employment, application of Tarry v Warringah Shire Council [1974] WCR 1, Humphrey Earl Ltd v Speechley [1951] HCA 75; 84 CLR 126; Nunan v Cockatoo Docks & Engineering Co Ltd [1941] NSWStRp 23; (1941) 41 SR (NSW) 119 and associated authorities; the drawing of inferences, application of Luxton v Vines [1952] HCA 19; 85 CLR 352 and associated authorities

Snell AP

22 December 2022

Facts

The appellant worker was employed by the respondent from 1984. As at 1 January 2017 his position was that of Team Leader for Parks. His duties mainly involved maintenance at Burwood Park. He maintained cleaning services, cleaned lawns and gardens, and maintained flower displays. He typically worked from 5.30am to 2pm, Mondays to Fridays. On 1 January 2017, the appellant had pre-approval to work overtime, commencing his shift at 4.30am (which he did) rather than his usual time of 5.30am. He was working alone. The appellant was approached by a male in the park who stabbed him four times. The male “took off” after the appellant hit him with a paper-grabber that was used for picking up garbage. The appellant placed a call to “triple 0” at about 5.15am. Police and an ambulance attended the scene. The appellant was taken to hospital with stab wounds.

Following this incident the appellant was off work for three weeks and then resumed on light duties, slowly increasing his hours. The appellant lodged claim forms dated 3 and 5 January 2017. By June 2017 he was on the verge of resuming full-time work. The respondent initially paid benefits in respect of weekly payments and treatment. It ceased the payments as at 28 June 2017, when it denied the appellant suffered injury arising out of or in the course of employment.

On 8 June 2017, the respondent wrote to the appellant advising there were allegations that on “one or more” prior occasions he had engaged in exchanging illicit and illegal drugs within Burwood Park and the local government area. The letter stated it was alleged that, at the time of the assault, the appellant was “in the process of participating/undertaking an illicit/illegal drug activity”. The appellant was suspended on full pay, pending an interview that was held on 16 June 2017. On 27 June 2017 the respondent, by letter, said the appellant had admitted participating in the exchange of cannabis to a homeless man, in Burwood Park, on at least three occasions prior to 1 January 2017. It stated the appellant had admitted that at least one of these incidents was in normal working hours, the other times being either before starting work or within a lunch break. It said that on all three occasions the appellant was wearing his council uniform. Following intervention on the appellant’s part by his union, the appellant resigned effective 28 June 2017.

The respondent issued a dispute notice, asserting the appellant did not seek approval to commence work prior to 5.30am. It denied the appellant was “acting in the course of [his] employment at the time the assault occurred”. It stated it was “not satisfied that the only reason [the appellant] arrived at Burwood Park at 4.23am was to commence [his] rostered shift, particularly as [he] moved to a part of the Park that was not covered by the CCTV cameras and this was where the assault took place”. It was described as “more likely that [he] arrived much earlier than [his] normal starting time in order to meet a person or persons in relation to [his] illegal activities”. This was described as placing the appellant “outside [his] employment” with the Council. It relied also on an allegation of ‘serious and wilful misconduct’. It disputed that s 9A of the 1987 Act was satisfied.

The appellant made a claim for lump sum compensation in respect of 21 per cent whole person impairment based on a report of Dr Ahmed, psychiatrist, who diagnosed post traumatic stress disorder and alcohol dependence. Dr Ahmed said the key contributor was the stabbing event.

The respondent issued a further dispute notice, which it said should be read in conjunction with the earlier notice. It disputed that there had been a psychological injury. It alleged a defence based on s 14(2) of the 1987 Act (‘serious and wilful misconduct’). It disputed the satisfaction of s 9A of the 1987 Act, and raised the issue of credit.

On 22 March 2022, the Member issued a Certificate of Determination and made an award in favour of the respondent. The worker appealed.

The appeal raised the following grounds:

(a) the Member erred in law in his finding that the worker was not in the course of his employment when he suffered injury on 1 January 2017 (Ground 1);

(b) the finding of the Member that the worker was not in the course of his employment at the time he suffered injury was a mixed error of fact and law being against the evidence and the weight of the evidence (Ground 2), and

(c) the Member failed to consider whether or not the worker suffered injury to which his employment was a substantial contributing factor (Ground 3).

Held: The Certificate of Determination dated 22 March 2022 was revoked. The matter was remitted for re-determination by a different member consistent with these reasons.

Grounds 1 and 2

1. Grounds 1 and 2 challenged the Member’s finding that the appellant was not in the course of his employment at the time of the relevant assault. These two grounds were dealt with together. ([44])
2. The Member, in his reasoning, quoted from the Court of Appeal decision in Nunan v Cockatoo Docks & Engineering Co Ltd [1941] NSWStRp 23; (1941) 41 SR (NSW) 119 (Nunan). The passage dealt with whether, in an assault on a worker by a “private enemy” occurring in the course of employment, with no other relevant facts, the injury arose out of employment. Jordan CJ and Roper J (Nicholas CJ in Eq agreeing) said “it is clear that the injury does not arise out of the employment”. The Member referred to the current matter as “analogous” to the decision in Nunan. The form of the statutory definition of ‘injury’ at the time Nunan was decided (contrary to the current position) required that an injury satisfy both limbs of the test (‘in the course of’ and ‘arising out of’) to be compensable. ([68])
3. The appellant’s submissions referred to Tarry v Warringah Shire Council [1974] WCR 1 (Tarry) and Weston v Great Boulder Gold Mines Ltd [1964] HCA 59; 112 CLR 30 , and to the fact that the appellant relied on an allegation of injury ‘in the course of employment’. The appellant submitted the Member’s reference to whether the attack was “connected to the drug dealing which he admitted to in the park during the year before” may be relevant to an issue going to ‘arising out of employment’ but was not relevant to injury ‘in the course of employment’. Effectively, the appellant’s argument was that the Member conflated the two tests, and consequently applied an incorrect test to the ‘course of employment’ case brought by the appellant. ([69])

The Member’s fact finding

4. The appellant submitted it was the Member’s task to “weigh all the evidence before him and decide whether or not he was satisfied that the worker was in the course of his employment at the time [he] suffered injury”. The Member said “Although the onus of proof always lies on the [appellant], the evidentiary burden of proof can lie on either party, depending on the state of the evidence.” ([70])
5. The course adopted by the Member was to make a finding on a ‘prima facie’ basis, that the appellant was in the course of employment when he was assaulted. He said the appellant was observed on CCTV arriving at Burwood Park at 4.23am on 1 January 2017, having previously obtained written permission to start early that day, he was dressed in his uniform. The attack occurred in Burwood Park, his place of employment. The appellant beat off his assailant using his “garbage collecting stick”. The Acting President noted these facts were largely confirmed by CCTV footage viewed by the police together with the written application by the appellant to commence work early on 1 January 2017. That the appellant beat of his attacker with his garbage collection stick was recorded by the interviewing police officer at hospital on the initial interview. Acting President Snell said this fact did not appear to have been doubted by the Member, who relied on it in making his ‘prima facie’ finding of injury in the course of employment at [165] of the reasons. The Member then referred to what he described as “evidentiary issues”. ([71]–[72])
6. The reasons expressed doubt regarding whether the attack was random, while acknowledging that possibility. The Member said the appellant, when initially interviewed by the police, thought he recognised his assailant, and referred to a possibility that he was “trespassing on another dealer’s turf”. The Member said the possibility that the assault was a random attack was not raised by the appellant until his statement dated 31 January 2022. ([77])
7. The discussion in the Member’s reasons directed itself to whether there was a potential causal link between the assault and the evidence of the appellant supplying cannabis during 2016 prior to the assault. It was of little relevance to the issue of whether the appellant was in the course of his employment at the time of the assault, which was the basis on which his case was conducted. At [175] of the reasons, the Member made an ultimate finding of fact: “For these reasons, I am satisfied that [the appellant] was not in the course of his employment when he was assaulted”. The Member described the case as “analogous” to Nunan. The Acting President said that the reasons and the quoted passage from Nunan were consistent with the Member conflating the “two ingredients” in the definition of ‘injury’. The Member’s reasoning directed itself to whether there was a causal relationship between the employment and the injury, or whether the causal relationship was rather between the history of dealing with cannabis in 2016 and the injury. There is not a requirement, to establish injury ‘in the course of employment’, that there be a causal connection between the employment and the injury. ([66]–[67], [78])

(Tarry and Inverell Shire Council v Lewis [1992] NSWCA 114; 8 NSWCCR 562 applied)

8. The respondent at first instance made an argument that raised issues of onus, which was also picked up in the respondent’s submissions on the appeal. The argument was essentially that, the respondent having raised the proposition that the appellant’s actions on 1 January 2017 may have taken him outside the course of his employment, the onus was on the appellant, in his own case, to disprove that proposition. The Acting President said this proposition was inconsistent with the decision of the Court of Appeal in Rantino v Collins & Moss Pty Ltd [1983] WCR 94. ([79]–[81])

The potential inferences

9. There was no direct evidence of matters occurring on 1 January 2017, in the period prior to and including the assault, which would lead to a conclusion that the appellant was not in the course of his employment when he was assaulted. The Member raised the topic of whether an inference should be drawn. He said the result “depends on whether I can legitimately draw an inference that the attack suffered by the [appellant] was connected to the drug dealing which he admitted to in the park during the year before” (emphasis added). Snell AP held the Member here asked himself the wrong question. Whether there was such a causal connection could be relevant to whether the assault arose out of the employment. It was not of assistance in considering the allegation brought, being whether the assault occurred in the course of the appellant’s employment. ([83])
10. The reasons did not indicate what factual inferences the Member drew. He did make an ultimate finding of fact. The basis of this was opaque. There was discussion in the reasons going to whether “interested parties such as rival drug dealers” might have been responsible for the attempt on the appellant’s life on 1 January 2017. This discussion did not contain any factual finding based on an inference. It expressed itself in terms of “might also have suspected him”, it did not involve, by way of inference, a positive finding on the probabilities, contrary to the decisions of Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, Luxton v Vines [1952] HCA 19; 85 CLR 352, Flounders v Miller [2007] NSWCA 238 , and Fuller-Lyons v New South Wales [2015] HCA 31. The employer, on appeal, nominated findings by way of inference that it said were properly available. These were not findings made by the Member, on the basis they were matters that could be properly inferred. In any event, the various suggested inferences went to whether there was a causal relationship between the employment and the injury. The correct question was whether the injury occurred in the course of the appellant’s employment. ([85]–[87])
11. In the Acting President’s view, the Member misapplied the test of ‘injury’ in s 4 of the 1987 Act, in that he conflated the tests governing injury arising out of the course of employment and injury in the course of employment. In considering whether the appellant suffered injury in the course of employment, the Member had regard to irrelevant matters, going to whether the appellant had established a causal connection between the employment and the injury. It followed that Grounds 1 and 2 succeeded. ([88]–[89])

Conclusion

12. As the respondent correctly submitted, Ground 3 did not arise given the Member’s findings on ‘injury’ The effect of the Acting President’s findings was that the question of ‘injury’ required re-determination. The issue regarding s 9A of the 1987 Act would require determination if the appellant succeeded on ‘injury’. The appropriate course was that the matter be re-determined afresh by a different member. ([90]–[91])