Appeal Case Summaries

Mooney v White [2022] NSWPICPD 13

WORKERS COMPENSATION – Injury in the course of or arising out of employment – failure to respond to a substantial, clearly articulated argument relying upon established facts – application of Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26

Snell DP

7 April 2022

Facts

The appellant was in receipt of a service pension from the Department of Veterans Affairs from 1995. He was not permitted, due to the nature of his pension entitlements, to earn monetary income. In January 2007, he resided at a Veterans Centre at Forster.

Through a mutual friend, the appellant was introduced to Mr White, the respondent. The respondent lived in Bourke where he had an agricultural business, he also had a property at Rainbow Flat near Forster. The Rainbow Flat property was about 100–150 acres and included a house. Cattle were grazed on the property.

The appellant and the respondent entered into an agreement whereby the appellant would live rent-free on the Rainbow Flat property and carry out certain duties. The appellant described his role as that of a live-in caretaker. He nominated multiple other duties he was also expected to carry out, including house and land maintenance. The date from which this arrangement commenced was unclear.

The appellant suffered injury in an incident, the occurrence of which was undisputed, on the night of 10 January 2007. The appellant was visited by his brother and two other friends. They had dinner at a local bowling club before returning to the Rainbow Flat property. It was not suggested that the appellant had consumed alcohol. The others went to bed. The appellant had no recollection of what happened to him. He recalled waking in Manning Base Hospital on 13 January 2007 and was told he was admitted at 2.25am on 11 January 2007. He had multiple injuries including a fractured left femur, fractured ribs and a fractured eye socket. There were difficulties with non-union of the leg fracture. The appellant eventually moved from the Rainbow Flat property in October 2008.

The appellant’s brother and others visiting the property deduced that the appellant was injured when an upper railing on the first-floor veranda of the house collapsed, causing the appellant to fall to the ground. The section of railing that broke was on the veranda outside the appellant’s bedroom. The appellant surmised that the reason he would have been on the balcony was to check on the cattle if they were disturbed.

The appellant made a claim for compensation for his injuries, but it was disputed that he was employed by the respondent as a “worker” or that he sustained an ‘injury’ arising out of or in the course of his employment within the meaning of s 4 of the Workers Compensation Act 1987. In a Certificate of Determination dated 17 August 2021, the Member found that the appellant was a ‘worker’ having entered into a contract of service with the respondent prior to 10 January 2007. However, the Member found that the appellant did not suffer injury arising out of or in the course of employment with the respondent on 10 January 2007 and entered an award for the respondent. The appellant appealed.

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

(a) in determining the issue of whether the injury arose out of or in the course of employment without firstly determining the cause of the injury and secondly determining the scope of the employment contract (Ground 1);

(b) by failing to determine that as a live-in caretaker the appellant was in the course of his employment while ever he was present on the property (Ground 2);

(c) in finding that at the time of sustaining the injury the appellant was not engaged in an activity incidental to the course of his employment (Ground 3), and

(d) by failing to draw an inference in accordance with Jones v Dunkel [1959] HCA 8; 101 CLR 298 and also by drawing an impermissible inference (Ground 4).

Held: The Member’s decision that the worker entered into a contract of service in the Certificate of Determination dated 17 August 2021 was confirmed. The balance of the Member’s decision that the appellant did not suffer an injury arising out of or in the course of his employment and the award for the respondent was revoked, and the matter was remitted to a different Member for re-determination.

Ground 1

1. The Member found in the appellant’s favour on the ‘worker’ issue and that finding was not challenged on the appeal. ([37])
2. The matters raised in Ground 1 related to an alleged failure by the Member to make findings regarding the cause of the accident and scope of the contract of employment. Snell DP noted that the submissions for this ground went beyond this, dealing with the findings on whether the injury occurred in the course of or arising out of employment, and how these findings would be changed depending on the factual findings it was argued that should have been made. ([38])
3. The initial matter raised in Ground 1 was an alleged failure by the Member to make a finding of the cause of the fall. The appellant submitted he argued before the Member that the defective state of the balcony was the cause of his injury. He submitted the Member did not make any finding regarding this argument. He submitted that if this argument were accepted, it would have supported a finding that the injury was suffered either in the course of, or arising out of, the employment. ([39])
4. Snell DP observed that it was common ground that the appellant fell. It was not common ground that the cause of this was the failure of the railing. The respondent made no such concession. The reasons at [42] noted the submission by the appellant’s counsel that the “cause of the [appellant’s] injury was the defective state of the railing which broke and allowed him to fall to the ground”. The appellant’s counsel submitted at the arbitration hearing that this factual background gave rise to a causal connection between employment and injury that was sufficient to lead to a finding that the injury arose out of the employment. ([42])
5. The appellant postulated two possible reasons for his presence on the veranda before his fall. The first of these was to observe cattle on the property, the second was to smoke. The Member rejected the proposition that smoking (if that was the relevant activity) would place the appellant in the course of his employment. The Member made a finding going to what the appellant was doing before he fell at [72] of the reasons. The Member made a finding that he did not accept the appellant had discharged his onus to prove the reason he was on the veranda “was to do with cattle on the property”. The Member rejected the proposition that smoking, if that was the activity being performed prior to the fall, would place the appellant in the course of his employment on the veranda. He rejected the argument that the appellant’s activities were “to do with cattle”. ([43]–[44])
6. The Member’s findings regarding what the appellant was doing before the fall were restricted given the appellant’s lack of recall. The appellant had no recollection from the time when his brother and his friends retired to their rooms, until he regained consciousness in Manning Base Hospital on 13 January 2007. He did not know why he was on the balcony prior to his fall. There was no direct evidence on this topic. ([45])
7. The appellant’s brother gave evidence that the railings on the balcony were intact when the appellant gave him a tour of the house, but he paid no particular attention to the condition of the railings or how they were attached. He stated that one of his friends woke him during the night of 10 January 2007 to say that the appellant was gone. The sliding door to the balcony, in the appellant’s room, was open. The top railing was missing from the balcony. The appellant was lying on his back on the ground. The appellant’s brother thought that the appellant had fallen off the top floor of the veranda. ([46])
8. The appellant’s brother said that the following morning he and his friends re-examined the accident scene. He stated that there were pieces of railing, consistent with that from the upper balcony, on the ground. He said the posts, from the balcony adjacent to the room where the appellant had been sleeping, were missing their top rail. He could see remnants of brackets on the posts, in “an advanced state of disrepair as they were rusted”. The piece of railing lying on the ground had fractured. ([47])
9. Snell DP observed that in the absence of direct evidence of the circumstances of the fall, a finding on the cause of that event would likely involve the drawing of inferences, for example, from evidence such as the damaged woodwork at the scene and the appellant’s location on the ground following his fall. An event can, of course, have multiple causes. ([48])

(Bradshaw v McEwans Pty Ltd [1951] HCA 480; 217 ALR 1; Fuller-Lyons v New South Wales [2015] HCA 31; March v E & MH Stramare Pty Ltd [1991] HCA 12 ; 171 CLR 506, and ACQ Pty Ltd v Cook [2009] HCA 28 applied)

10. Deputy President Snell held that the Member did not deal with the appellant’s submissions in relation to the possible reason that the appellant was on the veranda at the time of the fall. He made a finding that the appellant had not proved he was on the balcony for a reason connected with cattle. He did not deal with the other arguments made by the appellant regarding his presence on the property. The relevant submission went to the fundamental issue of whether the appellant could establish injury in the course of or arising out of employment. This was in circumstances where proof of such matters was made more than usually difficult by the appellant’s lack of recollection and the lack of direct evidence dealing with how the appellant came to fall. The submission had the capacity, if accepted, to change the result. The principles in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 (Dranichnikov) were engaged. There was error in the Member’s failure to deal with the submission. Such a failure raised principles of natural justice and should be corrected unless it could not have affected the result. The Deputy President held that the identified failure had the capacity to affect the result. It followed that this was appealable error. ([49]–[50])

    (Dranichnikov; Wang v State of New South Wales [2019] NSWCA 263; Stead v State Government Insurance Commission [1986] HCA 54, and Toll Pty Limited v Morrissey [2008] NSWCA 197 applied)

11. It was noted that the Member made findings about the contract of service and its terms in the reasons. He did not deal with the appellant’s argument that, in the overall circumstances, the appellant was employed “24/7”, such that he was effectively in the course of his employment whenever he was present at the property. ([51])

Other grounds of appeal

12. The appellant additionally pursued an argument that his contract of employment placed him in the course of employment “24/7” in Grounds 1 and 2. The alleged consequence of this argument was that whatever the appellant was doing at the time of his fall, he was in the course of his employment and the fall was compensable. The appellant further argued in Ground 3 that he was injured during an interval between periods of employment. He submitted that occupying the house was something the appellant was reasonably required, authorised or expected to do. It was something that he needed to do to perform his duties. ([52]–[53])
13. The Deputy President noted there can be circumstances where a worker’s employment can place him or her in the course of employment on a ‘round the clock’ basis (see for example Favelle Mort Ltd v Murray [1976] HCA 13; 133 CLR 580). It was arguable the appellant fell into that category. ([55])
14. The appellant submitted that, as a live-in caretaker, his duties involved residing on the property and keeping an eye on it, he was effectively in the course of his employment “24/7”. It was to the respondent’s advantage to have the appellant living on the property full-time. The finding at [72] of the reasons was that the appellant could not discharge his onus, to show that his presence on the veranda when he fell was “to do with cattle on the property”. It was submitted this failed to address the appellant’s duties as a live-in caretaker. ([56])
15. The appellant’s statement dated 5 May 2010 indicated a broad range of tasks that he was obliged to attend to. This included the respondent suggesting to the appellant that he should occupy a specific bedroom, as the respondent “and his family would also be there from time to time”. The Member found that the contract permitted the appellant to live on the property rent free. The Member inferred that it was to the respondent’s advantage “to have someone residing permanently on the property to keep an eye on it, look after the stock and maintain the grounds and fences thereon.” The Member made a finding that the contract required the appellant “to live full time on the property and to carry out those allotted tasks”. ([57])
16. The appellant submitted that the finding at [72] of the reasons dealt with the scope of his duties on the basis they were limited to “chores pertaining to cattle”. He submitted the Member failed to address the scope of the appellant’s duties as a live-in caretaker. Deputy President Snell accepted that the Member failed to address the submission that the course of the appellant’s employment, while he was present on the relevant property, potentially ran over 24 hours per day, and included the time when the appellant fell from the veranda. The submission was referred to in the reasons at [41], but the Member did not give reasons for its rejection or otherwise deal with its substance. This also constituted error on the basis of the decision in Dranichnikov. It was unnecessary for the Deputy President to deal with Ground 4. ([58])

Disposition of the appeal

17. The Member decided the issue regarding ‘worker’. The correctness of that finding had not been challenged on this appeal and was allowed to stand. There was identified error in how the issue of ‘injury’ arising out of or in the course of employment was dealt with. That issue was run on various alternative bases. It was appropriate that the matter be remitted for re-determination by a different Member. ([59])

Toll Transport Pty Ltd v Eftimovski [2022] NSWPICPD 14

WORKERS COMPENSATION – Calculation of the respondent’s pre-injury average weekly earnings as defined by cl 2 of Sch 3 to the 1987 Act – factual findings – Najdovski v Crnojlovic [2008] NSWCA 175; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 applied

Wood DP

11 April 2022

Facts

The respondent, Mr Eftimovski, performed courier work for Toll Global Express Courier, a business unit of the appellant, Toll Transport Pty Ltd. The arrangement between the respondent and the appellant was that the respondent would work as a “contract delivery driver” and payment for this work was made by direct deposit into a bank account on a weekly basis. The respondent was in a partnership with his wife, Mrs Eftimovski, and after business expenses were deducted, half of the partnership net profits were paid to Mrs Eftimovski in accordance with the partnership agreement.

The respondent injured his left shoulder on 21 May 2020 when he slipped from the back of his van. Proceedings were commenced in the former Workers Compensation Commission, whereby an Arbitrator found the appellant liable for the injury and ordered the appellant to pay the respondent’s treatment expenses pursuant to s 60 of the 1987 Act.

On 15 March 2021, the appellant issued a Work Capacity Decision pursuant to s 43 of the 1987 Act, in which it was determined that the respondent’s pre-injury average weekly earnings were $457.15 per week. The respondent commenced these proceedings, asserting that his pre-injury average weekly earnings were $2,224.00 per week.

The Member issued a Certificate of Determination in which she determined that, for the purposes of s 36 and s 37 of the 1987 Act, the respondent’s pre-injury average weekly earnings were $1,803.00. She noted that the figure was subject to indexation in accordance with s 82A of the 1987 Act and applied the relevant indexation number to that amount. She ordered the appellant to pay the respondent weekly payments at various rates in accordance with ss 36 and 37 of the 1987 Act, and consistent with her findings as to the respondent’s capacity for work. The appellant appealed the determination in respect of the calculation of the respondent’s pre-injury average weekly earnings, but not the determination as to the respondent’s capacity for work. The appeal was limited to the Member’s determination that the respondent’s pre-injury average weekly earnings figure was $1,803.

The issues on appeal were whether the Member made:

(a) a legal error in ascribing an evidentiary onus upon the appellant with respect to the respondent’s wife’s (Mrs Eftimovski’s) earnings and activities (Ground 1), and

(b) legal and factual errors in calculating the respondent’s pre-injury average weekly earnings (Ground 2).

Held: The Member’s Certificate of Determination dated 12 August 2021 was confirmed.

Ground 1

1. The appellant asserted that the pre-injury average weekly earnings figure should have been $457.15. The Member rejected that submission because firstly, the calculation was made using the amounts referred to in the 2018/19 financial year, which did not relate to the 52‑week period immediately prior to the injury. Wood DP found that the Member was correct in that regard. The Member then turned to consider whether the manner in which the figure was determined was affected by the partnership agreement between the respondent and Mrs Eftimovski. ([51])
2. The appellant referred to the “lack of evidence” adduced by the respondent to support his case. The Member noted that she was not required to determine the issue of “worker” within the meaning of s 4 of the 1998 Act and “deemed worker” as provided by cl 2 of Sch 1 to the 1998 Act as it was conceded by the appellant that the respondent was a worker in accordance with s 4 of the 1998 Act. The Member noted that, in accordance with s 4, a worker was a person who works under a contract of service with an employer. Thus, there was no issue that the respondent was working under a contract of service with the appellant. ([52])
3. The Member’s observations in relation to the lack of evidence further pertained to the consideration of whether the moneys paid on a weekly basis by the appellant to the respondent were in part a payment of income referrable to the work performed by Mrs Eftimovski. That proposition was essentially the appellant’s case. In the context of the evidence adduced in the Pay Advice Summary, which identified the driver as Mr Eftimovski, it was up to the appellant to adduce sufficient evidence to establish the fact that that income was also referrable to the work performed by Mrs Eftimovski. For instance, the appellant might have adduced evidence of the appellant having entered into an agreement between itself and both the respondent and Mrs Eftimovski. ([53])
4. As the respondent correctly pointed out, the appellant’s argument related to the arrangements between the respondent and Mrs Eftimovski, rather than the rights and obligations of the parties to the contract of service and the payments made by the appellant as remuneration for the work done. There was no evidence in the financial records of Mrs Eftimovski receiving any income other than the partnership dividend which the Member considered did not reflect payment of income for work performed. That conclusion was open to her. The Member therefore did not reverse the onus of proof and this ground of appeal failed. ([54]–[55])

Ground 2

5. The appellant submitted that the evidence established that Mrs Eftimovski worked for the partnership and the partnership contracted to the appellant. Wood DP held that on the contrary, there was no evidence that the partnership contracted to the appellant and the respondent’s statement suggested that the interactions with the appellant were conducted by the respondent alone. The fact that Mrs Eftimovski drew a dividend from the business partnership established only that Mrs Eftimovski was party to an agreement (the partnership agreement) with the respondent. There was no evidence of Mrs Eftimovski being a party to any arrangement with the appellant. Such evidence would be inconsistent with the concept of the respondent being in a contract of service with the appellant, who made weekly payments for the work done by Mr Eftimovski. The Deputy President further held that the appellant had not provided any basis upon which it can be established that the Member committed legal error, either in her consideration of the authorities referred to (Gerob Investments Ballina Pty Limited t/as Beach Life Homes v Compton [2007] NSWWCCPD 180 and Mortimer v JFTA Pty Limited [2015] NSWWCC 303), or in her application of the relevant legislation. ([56]–[58])
6. Deputy President Wood concluded that the appellant had not established that material facts had been overlooked or given undue or too little weight in deciding the inference to be drawn, or that the available inference in the opposite sense to that chosen by the Member was so preponderant that the Member’s decision was wrong. Nor could it be said that there were other probabilities that outweighed those chosen by the Member sufficient to show that the Member was wrong. Ground 2 of the appeal failed. ([62]–[64])

(Najdovski v Crnojlovic [2008] NSWCA 175; Raulston v Toll Pty Ltd[2011] NSWWCCPD 25; 10 DDCR 156, and Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 applied)

Fairfield City Council v McCall [2022] NSWPICPD 15

WORKERS COMPENSATION – procedural fairness – onus of proof – inferences drawn – discussion of Jones v Dunkel [1959] HCA 8; 101 CLR 298 – adequacy of reasons – Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 applied

Parker SC ADP

29 April 2022

Facts

The respondent worker, Mr McCall, was a long time employee of the appellant, working as a garbage bin collector. He alleged that his injury was the result of the nature and conditions of his employment including, in particular, the operation of a one man garbage truck with associated jolting and jarring. He further alleged the necessity to regularly climb in and out of the vehicle with associated twisting and turning placed stress and strain on the back.

The respondent sought payment of weekly compensation and medical and treatment expenses, relying on s 4(b)(ii) of the 1987 Act. The claim was disputed by the employer.

In the proceedings before the Commission, the Member recorded that the respondent said that he experienced episodes of low back pain and he was involved in a motor vehicle accident in 1994. This accident resulted in a number of months off work. The Member said the respondent did not recall suffering much, if any, ongoing pain in relation to his lower back, but did experience post-traumatic stress disorder. The respondent recalled further episodes of lower back pain, including in about 1995 in the course of driving his truck and being jolted and jarred. He stated this was not a single event but took place over a period of time.

Dr Poplawski (orthopaedic surgeon qualified by Mr McCall) and Dr Edwards (surgeon qualified by the appellant) were in agreement and the Member found that the worker had a pre-existing lumbar spondylosis. The issue between the parties was whether the pre-existing lumbar spondylosis had been aggravated by the nature and conditions of employment as a garbage truck driver whilst employed by the appellant.

The appellant relied on Dr Edwards’ opinion that the respondent had not suffered any injury at work and that his symptoms were due to the underlying degenerative changes in the lumbar spine as reported on MRI.

The Member accepted the opinion of Dr Poplawski that the nature and conditions of the respondent’s employment as a one man garbage truck driver, and the associated jolting and jarring, resulted in a cumulative injury to the lumbar spine starting on 12 March 2018 and continuing thereafter at a lesser level with further specific aggravation on 24 September 2019. The Member found that the respondent sustained an aggravation of the underlying lumbar spondylosis as a result of the nature and conditions of his employment and the associated jolting and jarring in the truck from 12 March 2018 to 24 September 2019.

The Member was of the view that there were no competing causative factors in relation to the aggravation of the underlying condition of lumbar spondylosis.

The Member found in favour of Mr McCall in a Certificate of Determination dated 14 July 2021, relying on s 4(b)(ii), to establish injury to the back. The Member found the deemed dated of injury to be 24 September 2019. The employer appealed.

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

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

(b) reversing the onus of proof or failing to properly consider it (Ground B);

(c) incorrectly drawing an adverse inference against the appellant (Ground C), and

(d) failing to give adequate reasons (Ground D).

Held: The Member’s Certificate of Determination dated 14 July 2021 was confirmed.

Ground A

1. The appellant submitted that the Member’s reasoning in paragraphs [99], [103], [126], [128], and [144] and elsewhere were not matters which were put by or to the parties. It was submitted that determination of a matter on a basis which was not put by or to the parties constituted a denial of procedural fairness. ([31])
2. Acting Deputy President Parker SC noted a difficulty with the appeal was precisely what procedural fairness in this matter was required. Procedural fairness as a generality requires that the case against the appellant should be known and the appellant be given an opportunity to respond to the case advanced by the respondent. However, the general statement is to be applied in the context of the procedure established by the legislation for dealing with compensation matters. It is important to have regard to Pt 5 of the 2020 Act, in particular s 42(1) directing that the guiding principle be to facilitate the just, quick and cost effective resolution of the real issues in the proceedings. Furthermore, s 43 directs the Commission to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. ([45]–[47])

(Kioa v West [1985] HCA 81; 159 CLR 550 applied)

3. An important issue between the parties was whether the deemed date of injury was 1994 as contended for by the appellant or 24 September 2019 as the respondent submitted. Paragraphs [99]–[103] of the reasons were directed to resolution of this issue. If the appellant’s submission had been accepted, the respondent’s claim would have been paid by a previous insurer of the appellant. The Member rejected the submission as “misconceived at the level of first principles”. ([48]–[49])
4. The complaint made by the appellant was that the Member’s conclusion was based on considerations other than those advanced by the respondent worker or put to the appellant employer. But, the issue was live as recorded by the Member at [96]–[97] of the reasons and the Member was required to determine the issue in accordance with the evidence, the parties’ submissions and legal principle. ([50])
5. Parker SC ADP further held that it was up to the parties to advance such authorities as were relevant to that issue in support of their arguments. He concluded that there was no denial of procedural fairness because the appellant was given proper opportunity to ventilate and advance submissions in support of its contentions. ([52]–[54])
6. The appellant submitted that Dr Loefler’s (treating doctor’s) view was not clarified by a further report, notwithstanding the respondent’s solicitor had requested a further report and the Member should have inferred from that that Dr Loefler’s further evidence would not assist the respondent. The Acting Deputy President observed that the Member was required to determine whether the submission should be accepted. The appellant was given the opportunity of responding to and making submissions. The Member, having addressed the submission, found against the appellant. There was no denial of procedural fairness. ([60]–[61])
7. The appellant also alleged there was a denial of procedural fairness in the rejection of Dr Edwards’ opinion. Acting Deputy President Parker SC held that there is no denial of procedural fairness merely because the Member rejected the evidence of a witness (Dr Edwards) on the basis that the findings of fact as ultimately found by the Member did not accord with the assumptions made by the witness for the purpose of the report. It is trite that if the history assumed by the expert is not made out the report is of no value. The Acting Deputy President concluded that the appellant had not been denied procedural fairness and Ground A was dismissed. ([68], [75], [76])

Ground B

8. The appellant did not isolate any issue with respect to which the onus of proof lay on Mr McCall where the Member was said to have reversed the onus. The appellant’s submissions appeared to proceed on the premise that where in submissions it had asserted the respondent failed to satisfy the onus of proof and the Member found against the appellant’s submission, that must have been the result of the Member having reversed the onus of proof. ([84])
9. The Acting Deputy President found, after examining the matters specifically referred to by the appellant, that on the occasions identified by the appellant, the onus of proof was not in issue and was not reversed. Further, Parker SC ADP held that he was unable to see how [106] of the reasons, or the final sentence thereof, had any bearing on the onus of proof. It was simply a statement by the Member that a particular piece of evidence was not accepted as relevant and the reasons for that conclusion. In the Deputy President’s view, nothing in [113] of the reasons supported the appellant’s proposition that the Member reversed the onus of proof. Likewise, [119] of the reasons did not suggest, much less require, the respondent to carry any onus of proof. ([85]–[88])
10. Parker SC ADP concluded that there was no evidence in any of the paragraphs or passages identified by the appellant that demonstrated that the Member reversed the onus of proof or was unaware of where the onus of proof lay or failed to apply and require Mr McCall to establish and carry the onus of proof. Ground B was not made out and was dismissed. ([93]–[94])

Ground C

11. This ground of appeal was directed to the inference adverse to the appellant derived from the appellant’s failure to adduce evidence in the form of a report from Dr Foo (a ‘company doctor’ who Mr McCall saw at the request of the appellant). It was not disputed that the appellant did not attempt to explain why a report from Dr Foo was not forthcoming. The ground of appeal was not directed to the inference not drawn by the Member with respect to the absent report of Dr Loefler. ([105])
12. The Acting Deputy President observed that Dr Foo’s evidence was available to the appellant. The appellant commissioned the examination by Dr Foo for the purpose of causing the worker to return to work. The appellant was presumed to know what the evidence of Dr Foo would have established. Parker SC ADP held that the available inference was Dr Foo’s evidence would not have assisted the appellant’s case. The inference was available in the absence of an explanation for why the evidence was not before the Commission. No error by the Member was established. Nor was the appellant’s complaint that the drawing of the inference by the Member denied it procedural fairness. ([113]–[115])
13. Acting Deputy President Parker SC concluded that the obvious piece of evidence which could have been offered was that no report was available. The appellant offered no explanation for why there was no evidence from Dr Foo. The respondent submitted that an inference adverse to the appellant’s case should be drawn. It was a matter for the Member whether or not such an inference was drawn, having concluded that it was appropriate to draw the inference, no error was demonstrated in the circumstances. Ground C of the appeal failed. ([116]–[117])

Ground D

14. The appellant submitted that the reasoning at paragraphs [106] and from [146]–[155] was inadequate. The appellant submitted that a simple statement of conclusion or a statement of acceptance of certain evidence did not constitute the giving of adequate reasons because it did not set out the process by which any such conclusion or acceptance was reached. Further, the appellant asserted there were errors in the reasoning process as the result of incorrectly weighing and considering the competing evidence including that of Dr Edwards. ([118]–[119])
15. The Acting Deputy President observed there was a lack of specificity as to what conclusions on the part of the Member were complained of as having been reached without adequate reasons in support. It is important to keep in mind that the focus of a complaint with respect to “reasons” is on the adequacy of the reasons given or not given by the Member in support of the conclusion, not the conclusion itself. ([125]–[126])
16. Acting Deputy President Parker SC held that the appellant’s complaint with respect to the adequacy of reasons was not established. He rejected the appellant’s complaint that the reasons were inadequate or not given at all. In the Acting Deputy President’s view, the reasons fulfilled the essential requirements of judicial reasons and no error was demonstrated. Ground D failed. ([135]–[138])

(Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, and Mifsud v Campbell (1991) 21 NSWLR 725 discussed and applied)