Appeal Case Summaries

Ram v Pubcorp Pty Ltd [2024] NSWPICPD 1

WORKERS COMPENSATION – consideration of evidence – calling of applicant to give oral evidence – difference between credibility of witness’s evidence and reliability of witness’s evidence – held that there is a distinction between credibility of witness’s evidence and reliability of witness’s evidence

Nomchong SC ADP

8 January 2024

Facts

The appellant was employed by the respondent as a gardener/handyman. On 21 June 2019, the appellant slipped and fell whilst carrying out his work duties. On or about 13 November 2019, the appellant lodged a claim for workers compensation, claiming that he had injured his back and legs in the incident on 21 June 2019 and also by virtue of heavy lifting work that he was required to undertake in July 2019.

The respondent accepted liability in relation to that claim for injuries to the appellant’s back and payments were made to him under the 1987 Act. This included a payment for medical expenses for back surgery being an L5/S1 discectomy on 25 March 2020 and a left L4/L5 lumbar discectomy and decompression on 26 March 2021.

On 21 September 2021, the appellant made a claim for further medical expenses in the amount of $16,868.76 in relation to a proposed anterior cervical discectomy and cervical fusion at C5/6, being surgery recommended by the appellant’s treating neurosurgeon, Dr Darwish. In that further claim, the appellant alleged that he had suffered injuries to his neck (and right shoulder) as a result of “a frank incident where the worker fell down a slope in the course of undertaking his duties, and physical nature and conditions of his employment”. The frank incident referred to the fall on 21 June 2019.

The respondent disputed that the appellant had suffered any injury to his neck during the course of his employment. The respondent denied that the appellant’s employment was the main contributing factor to any aggravation, acceleration, exacerbation or deterioration of any disease injury in the appellant’s cervical spine or right shoulder. Finally, the respondent stated that if there was any compensable injury, the claimed medical or related treatment was not reasonably necessary.

During the hearing before the Member, the parties agreed that the application should be amended to delete reference to the appellant’s upper extremities as no relief was sought in respect of those body parts during the proceedings. Counsel for the appellant sought leave for the appellant to give oral evidence. The Member refused that application on the grounds that there was no contention that the appellant needed to address any omission or ambiguity in his written statement.

The Member entered an award for the respondent. The worker appealed.

The issues on appeal were whether the Member erred in:

(a) failing to exercise his discretion in favour of allowing the appellant to give oral evidence (Ground 1);

(b) law by rejecting the written evidence of the appellant without the reasons for rejecting that evidence being put to him (Ground 2);

(c) conflating the absence of recorded complaints with the absence of complaints (Ground 3), and

(d) fact by concluding that there was a significant lapse of time between the claimed date of injury and the appellant’s first complaints of neck pain (Ground 4).

Held: The Certificate of Determination dated 18 November 2022 was confirmed.

Ground 1

1. Acting Deputy President Nomchong SC found no error in the decision of the Member to decline the application to call the appellant to give oral evidence. When asked, counsel for the appellant advised that the oral evidence of the appellant would be as to the existence or otherwise of neck problems prior to the accepted injury, and the continuity of neck problems following that injury. The Member advised that unless there was something truly specific that had been overlooked or that the appellant needed to elaborate on something, the Member would not grant leave to allow the oral evidence. Counsel for the appellant made no such submission. The refusal of the Member to allow oral evidence was made on the ground that there was no contention put forward by counsel for the appellant, that the additional oral evidence was required to address any omission or ambiguity in his written statement. In the circumstances, that was a proper reason open and available to the Member and the decision did not engage in any error of law or fact. ([86]–[88])
2. The appellant’s argument was based on the contention that the appellant’s credit was called into question and accordingly, the appellant was entitled to be given the opportunity to be cross examined on his credit. This followed from the exchange during the hearing when counsel for the respondent was questioned by the Member as to whether he could accept his submissions that the appellant’s evidence was completely unreliable in circumstances where the respondent had opposed the application to call the appellant to be cross examined. ([89]–[90])
3. The Acting Deputy President stated that during the hearing, although counsel for the respondent argued that the appellant’s credit was in issue, when considered objectively, the argument being propounded by the respondent during the hearing was, in reality, that the preponderance of the documentary and medical evidence was contrary to the appellant’s assertion that he suffered an injury to his neck in 2019 as a result of his employment with the respondent. The respondent argued that the appellant ought not be accepted because of the lack of any corroborative evidence to support his claim and that the weight of the evidence was such that the Commission would not accept the appellant. There was no allegation that the appellant was being untruthful. In that circumstance Nomchong SC ADP took the view that the respondent’s argument was directed to the reliability of the appellant’s statement, not his credit as a witness. ([91]–[92])
4. Acting Deputy President Nomchong SC rejected the appellant’s contention that credibility and reliability are synonymous. They are not the same. Credibility is directed to a person’s truthfulness, including whether that person believes that they are telling the truth. On the other hand, the reliability of evidence is directed to the accuracy of the witness’s evidence. In that regard, the determination of whether evidence is accurate involves a consideration of a number of factors including whether the witness accurately observed or recalled the matter in issue, it follows therefore that a person, against whom an adverse credit finding had been made cannot give reliable evidence on the point on which he/she is found to lack credit (or sometimes generally). However, it does not follow that the absence of an adverse credit finding means that the Commission is bound to accept that witness’s evidence. Put simply, a credible witness may give unreliable evidence. Further, some parts of a witness’s evidence can be rejected and other parts accepted, depending on the nature of the reliability finding. ([93])
5. As it was, there was no finding made by the Member that the appellant lacked credit. The Member adopted the approach that it was not the truthfulness of the appellant but the reliability of his recollection that was at issue. Ground 1 was not made out. ([94]–[96])

Ground 2

6. The appellant’s submissions in relation to this ground bore much similarity with those made in respect of Ground 1. The Acting Deputy President rejected the submission that there was no difference between the concepts of credibility and reliability. She further rejected the contention that the Member engaged in an error of law by finding that the appellant’s version of events ought not be accepted without reasons being put to him. The exercise in which the Member was engaged was not attended by any error. The Member considered all of the material he had before him and weighed that against the appellant’s statement that he injured his neck during the course of his employment with the respondent and that he made contemporaneous complaints to that effect. ([102])
7. When the Member concluded that he preferred the evidence of Dr Powell (because it was more consistent with the entirety of the medical record) over that of the appellant’s recollection, that was a conclusion that was open and available to the Member. There was no error of fact or law in the Member’s analysis, consideration or reasoning which would engage appellate intervention. ([104])
8. The Acting Deputy President rejected the appellant’s submission that there was no contradictory evidence of any alternative injury, incident or event that would account for the cervical spine pathology. Ground 2 had not been made out. ([105]–[108])

Ground 3

9. This ground was again directed to an alleged error on the part of the Member in not accepting the unchallenged evidence of the appellant. The appellant contended that the Member should have accepted the appellant’s evidence that he told his manager about neck pain on 21 June 2019. However, the appellant’s statement did not say that in terms. The appellant’s contention was that the Member should have accepted the appellant’s evidence that he told his doctors about his neck injury. ([109]–[110])
10. Nomchong SC ADP observed the appellant’s statement was prepared for the purposes of an application where the issue in dispute was the causal link between the appellant’s employment with the respondent and the onset of his neck symptomatology. Accordingly, in respect of the statements about what the appellant told Dr Gounder (general practitioner) and Dr Darwish (treating neurosurgeon), the appellant saying that he told them “exactly what happened” did not of itself convey that he explicitly told them of his neck injury and/or neck pain. In relation to the appellant’s statement as to what he told Dr Powell (orthopaedic surgeon qualified by the insurer), he did say that he told him about an injury to his neck but did not say in which of the consultations he said this. The Member balanced the appellant’s statement against what those medical practitioners recorded in their clinical notes and reports, in his reasoning. ([114])
11. The Member carefully considered the content of the clinical records of the appellant’s GP in respect of those consultations where complaints of pain were made. That analysis commenced with the consultation with Dr Gounder on 20 May 2019 in which she recorded the appellant’s complaint of pains in his lower back after lifting heavy weights for more than a week. The Member then went through the clinical records through to 2 September 2020 in which there were no complaints of neck pain. The Member set out that there were no complaints of neck pain until 10 August 2021. Similarly, the Member did a thorough analysis of the reports of Dr Darwish and Dr Powell. ([116]–[117])
12. The Member referred to the principles in Fitzgibbon v The Waterways Authority [2003] NSWCA 294 and Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 about treating medical records with caution. He also referred to Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 for the proposition that the presence or absence of a relatively contemporaneous complaint of symptoms has generally been regarded as an important measure of the occurrence and the nature of the injury. Further, the Member referred to Coote v Kelly; Northam v Kelly [2016] NSWSC 1447 to the effect that there is a logical underpinning for the reluctance to accept the evidence of a witness where there is inconsistency between that evidence and contemporaneous documentary records, even if the witness’s evidence is not otherwise impugned. ([118])
13. Nomchong SC ADP found that the Member correctly informed himself of the appropriate legal principles and tests; that he conducted a proper analysis of the contemporaneous records. She found no error in fact or law in the Member not accepting the appellant’s evidence but instead preferring the version of events laid out in the contemporaneous documentation. The Acting Deputy President rejected the appellant’s submission that the Member should not have found that there was no competing or alternative cause of injury. Ground 3 was not made out. ([119]–[121])

Ground 4

14. The appellant alleged that the Member was in error in the findings he made in paragraph [88] of the reasons, and in particular, the finding that there was an absence of a complaint over a period of almost two years. The appellant alleged that the Member erred in not accepting the unchallenged evidence of the appellant that he complained of neck pain to his manager in June 2019 and that the Member ought to have also taken into account the fact that the appellant was referred for a cervical X-ray and cervical CT scan in August 2019, as this was corroborative of the appellant making a complaint of neck pain at or about that time. ([122]–[123])
15. The Acting Deputy President stated that in relation to the radiological investigations of the cervical spine undertaken in August 2019 the Member did take them into account but noted that there was no evidence as to why the chiropractor had referred the appellant for these radiological images, and also noted that there was no reference at all in the clinical notes of the appellant’s treating doctor which referred to any neck symptoms prior to that referral nor were there any complaints of neck pain recorded over the next two years. ([125])
16. Acting Deputy President Nomchong SC found the Member engaged in the consideration of the Worker’s Injury Claim Form and all of the contemporaneous clinical notes and reports. The factual finding that there had been an absence of a complaint of neck pain over a period of almost two years was one which was available on the materials and indeed, she found that the preponderance of the evidence supported the Member’s finding in this regard. This ground was not made out. ([126])

BGV v Waverley Council [2024] NSWPICPD 2

WORKERS COMPENSATION – The test of ‘main contributing factor’ to establish ‘injury’ pursuant to section 4(b)(ii) of the 1987 Act – application of AV v AW [2020] NSWWCCPD 9; meaning of ‘acceleration’ in s 4(b)(ii) – application of Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626, 634; whether Watts v Rake [1960] HCA 58; 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; 114 CLR 164 can be applied to the construction of s 4(b)(ii); onus of proof of ‘injury’ pursuant to s 4(b)(ii) where multifactorial causation – Commonwealth v Muratore [1978] HCA 47; 141 CLR 296; extent to which expert medical evidence is required in assessing causation of psychological injury – discussion of Hamad v Q Catering Ltd [2017] NSWWCCPD 6; allegation of appealable error where issue not raised at first instance – application of Brambles Industries Ltd v Bell [2010] NSWCA 162; weight of medical evidence – application of Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844

Snell DP

11 January 2024

Facts

The appellant worked with the respondent from November 1997. She had undertaken certificate courses at TAFE, in greenkeeping, turf management and horticulture before obtaining full-time work as an “Open Spaces Team Member” with the respondent, where she worked for about 22 years. At different times she performed gardening work in the nursery, outdoor duties at Waverley Cemetery and the cleaning of amenities, public spaces and work depots.

In her statement, the appellant described various occasions where she was “bullied and harassed” by work colleagues. She referred to abuse based on her gender and sexual orientation. She referred to an issue regarding the availability of toilet facilities for female employees leading to a complaint to the Anti-Discrimination Board. The appellant stated that “around 2000”, she found a deceased woman on the grassed area of North Bondi Beach, which she found “extremely confronting”. She stated that she did not receive counselling or emotional support and felt lost and abandoned. The appellant stated that she was not given the same opportunities for overtime as male employees. The appellant stated that she performed unpaid voluntary work for NSW Police and Corrective Services in relation to domestic violence for about two to three hours per week. The appellant stated that the respondent wrote to her on 2 April 2020, incorrectly saying that she had not sought approval for this work. She said that she had to constantly defend herself, she felt “bullied and harassed” and stated that she was treated unfairly when the respondent investigated the allegations.

The respondent stated that when she was scheduled to undergo surgery for cancer in December 2019, she was not sufficiently comfortable to report the upcoming procedure to her superior, leading to her rescheduling the procedure to January 2020. The appellant stated that she was “significantly underpaid by approximately $1,000” in December 2019, which she regarded as a “deliberate act to provoke or gaslight me”. The appellant stated that she was suspended by way of a letter from the respondent dated 1 April 2020. The appellant stated that in the early hours of the following day she took an overdose of pills. She described regaining consciousness on 3 April 2020. The appellant stated that she was then placed on special paid leave until 19 June 2020. She was involved in a further suicide attempt on 26 January 2021. She remained off work.

The Member stated that the causes of the deterioration in the appellant’s condition were “complex and multifactorial”. The Member was not satisfied employment was the main contributing factor to the aggravation of the appellant’s underlying condition. There was an award for the respondent. The Member said that, if the appellant had succeeded on the ‘injury’ issue, the respondent’s defence under s 11A of the 1987 Act would not have succeeded. The Member “would not have found the [appellant’s] injury to have been wholly or predominantly caused by the allegedly reasonable actions of the respondent with regard to performance appraisal and/or discipline”. The worker appealed.

The issues on appeal were whether the Member:

(a) misdirected himself regarding the test for causation of injury pursuant to s 4 of the 1987 Act (Ground 1);

(b) erred in finding that the evidence did not demonstrate that work was the main contributing factor to injury (Ground 2), and

(c) failed to give adequate reasons (Ground 3).

Held: The Certificate of Determination dated 10 January 2023 was confirmed.

Ground 1

The alleged failure to deal with ‘acceleration’ in s 4(b)(ii)

1. The appellant argued that the Member erred in not specifically dealing with whether there had been an ‘acceleration’ of the appellant’s disease process (as opposed to the three other processes identified in s 4(b)(ii)). The respondent submitted the appellant did not, at first instance, raise the issue of whether there had been an acceleration of the disease process which would constitute ‘injury’ within the meaning of s 4(b)(ii). The appellant did not, in its submissions in reply on appeal, suggest that it did so. ([54])
2. Deputy President Snell found that in view of the issue of ‘acceleration’ not having been raised at first instance, the Member did not err in failing to deal with it. The Deputy President stated that the arguments dealing with ‘acceleration’ would have failed in any event. ([55]–[61])

(Brambles Industries Ltd v Bell [2010] NSWCA 162 applied)

Application of the test of ‘injury’ pursuant to s 4(b)(ii) of the 1987 Act

3. The appellant was critical of how the Member dealt with the ‘injury’ issue pursuant to s 4(b)(ii). The appellant submitted the Member “regarded the totality of [the appellant’s] life and the difficulties in same as overwhelming the question of work-causation”. The appellant submitted the Member erred in focussing on “the totality of the present clinical picture”. ([62])
4. Snell DP found that the Member was clearly well aware of the statutory test which he was required to apply. He referred to the statutory provision and to settled authority on the topic. The submission that the Member erroneously saw the necessary approach as requiring “main contribution by work to the condition as opposed to the aggravation or exacerbation” is not tenable on a fair reading of the reasons. ([63]–[66])
5. The appellant referred to the principle that “employers take their employees as they find them”, described by Spigelman CJ, in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286. The correctness of this was undoubted. The appellant made no meaningful argument that the Member failed to apply the principle and thereby erred. ([67])

Application of the test where there is multifactorial causation

6. The appellant argued it was sufficient if there was, even in small part, an aggravation mainly caused by work. It submitted the totality of the pathology does not need to be mainly caused by work. ([68])
7. Deputy President Snell stated that the decision of Hamad v Q Catering Ltd [2017] NSWWCCPD 6 (Hamad) involved proof by an employer (which carried the onus) of its defence pursuant to s 11A of the 1987 Act – whether a psychiatric injury resulted ‘wholly or predominantly’ from actions of the employer that fell within the scope of s 11A(1) of the 1987 Act. Satisfaction of that test has been described as “a different, and more difficult, test to satisfy” than the test on causation applied in dealing with ss 4 and 9A of the 1987 Act. There were competing factual circumstances that were arguably causative of the relevant psychological injury, only some of which potentially attracted the application of s 11A(1) of the 1987 Act. There was discussion in the decision of findings on causation which are available on the basis of “common knowledge and experience”, contrasted with findings that require expert medical evidence. Snell DP noted that in Hamad, he formed the view in that case that “[causation] of the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence” (emphasis added). It was specifically said that “[t]he need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case”. ([70])
8. The Deputy President held that the Member’s reasons at [24] consisted of the Member’s brief summary of the respondent’s submissions on a matter in issue. There was no basis on which that brief summary could be validly described as the Member taking an “erroneous course”. The various arguments raised by the appellant under the umbrella of Ground 1 were rejected. Ground 1 failed. ([75]–[76])

Ground 2

9. An initial argument was that the respondent carried the onus of “disentangling” the work injury as a cause. The Deputy President noted that the test of ‘main contributing factor’ in s 4(b)(ii) does not relate to pre-existing conditions. The causation issue in the current proceedings is different, it involves satisfaction of the statutory test of ‘injury’ in s 4(b)(ii) of the 1987 Act where causation of an ‘aggravation, etc’ is multifactorial. Authorities such as Watts v Rake [1960] HCA 58; 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; 114 CLR 164 cannot, in the Deputy President’s view, be appropriately applied in determining whether the appellant had discharged her onus of proving ‘injury’ within the meaning of s 4(b)(ii). Deputy President Snell accepted the respondent’s submission that the appellant carried the onus of proving ‘injury’ within the meaning of the subsection: “he who asserts must prove”. ([98]–[99])

   The appellant’s failure to discharge its onus

10. The fundamental reason why the appellant failed to establish ‘injury’ was because of her failure to prove that the work-related matters were the ‘main contributing factor’ to the relevant ‘aggravation, etc’. The Member concluded that “pre-2018 matters” were not causally relevant, none of the doctors retained to report in the proceedings made “any mention of them”. ([100])
11. The respondent’s submissions referred to the well-known authority of Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844 (Paric), at [9]. Deputy President Snell held that the Member’s reasoning was consistent with [9] of Paric. It was also consistent with the decision of the New South Wales Court of Appeal in Paric. The effect of Paric in the circumstances was that the appellant’s medical case on causation was deprived of probative force, with the consequence that the Member was not satisfied the appellant’s employment was the main contributing factor to the aggravation. ([104])
12. The Deputy President noted the appellant referred to no authority in support of the submission that the Member was required to describe each of the instances and “[attribute] causation to each of them”. The reasons at [26] made it clear that the Member had read and considered the instances referred to. It is not necessary to refer to every piece of evidence. The necessary extent and content of reasons will depend on the particular case and the matters in issue. It is necessary that the reasons be read as a whole. In the current circumstances, the difficulty was that the evidence overall, but particularly the medical evidence, was not adequate to support a finding of ‘main contributing factor’. The reason was the found inadequacies in the appellant’s medical case, due to the failure to comply with the principles in Paric. ([108])

(Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, and Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 applied)

13. The appellant made various submissions in support of Ground 2, in which she sought to argue about the probative force of the evidence relied on by the parties. The appellant disputed the causal significance of the evidence dealing with her cancer diagnosis and her separation from her partner. Snell DP noted that the appeal is governed by s 352(5) of the 1998 Act and is limited by the matters identified by Roche DP in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25. ([109]–[111])
14. Deputy President Snell accepted that the appellant’s submissions went to the appellant’s preference for a different result more than the identification of error. To this extent, they did not assist. The appellant’s complaints about the fact finding were essentially futile. The Member’s reasons made it clear that the case failed due to the lack of probative force of the appellant’s medical evidence, due to the application of Paric. The appellant’s other points, if accepted, would not affect the final result. Ground 2 failed. ([112]–[113])

Ground 3

15. The parties in this appeal did not challenge the correctness of the reasoning in AV v AW [2020] NSWWCCPD 9, dealing with the requirement in s 4(b)(ii) of the 1987 Act, that employment be ‘the main contributing factor’ to the ‘aggravation, etc.’. Snell DP noted the Commission is bound by the decision of the High Court in Paric. The appellant’s case did not fail due to a preference on the Member’s part for the respondent’s lay case on ‘injury’. There was no serious challenge to how the Member, dealing with the requirement that employment be the ‘main contributing factor’, described the test. The Member made a number of findings consistent with acceptance (at least in part) of the appellant’s lay case. The Member was not satisfied employment was the main contributing factor to the aggravation, with the consequence that the case failed on ‘injury’. The Member gave a clear explanation for this in the reasons at [105] to [111]. ([127]–[129])
16. The Deputy President further stated that the reasons which are required will depend on the circumstances of the particular case. They are to be read as a whole. It is not necessary to refer to every piece of evidence. The Member’s reasons referred to the evidence that was considered. The reasons stated the basis on which the Member arrived at the decision and why. The reasons stated why the respondent’s case was accepted over that of the appellant. The reasons were adequate for the conduct of the appeal. The reasons informed the losing party why she lost. The factual contest, underlying the matters, was not ultimately central to resolution of the issues. This was in part due to the various factual findings made by the Member. More significantly, resolution of the ‘injury’ issue turned on the probative force of the appellant’s medical case, which was undercut by deficiencies in the histories relied on. The Deputy President concluded the Member’s reasons were adequate and Ground 3 failed. ([131]–[132])

Gleeson v Health Services Union NSW [2024] NSWPICPD 3

WORKERS COMPENSATION – Whether the appellant’s late claim for compensation was occasioned by ignorance, mistake or other reasonable cause – factual findings – application of principles in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156

Perry ADP

25 January 2024

Facts

The appellant worker was employed as a union organiser by the respondent between March 2017 and 12 December 2019. She alleged that she was exposed to bullying, harassment, excessive workloads, and unwarranted actions from other employees, which caused her to sustain a psychological injury in the course of that employment.

The appellant claimed various compensation payments under the 1987 Act. Liability was disputed on the grounds that the appellant did not sustain injury in the course of her employment, the employment was not the main contributing factor to any disease injury, and that she had not given notice of injury or made a claim for compensation within the time prescribed under ss 254 and 261 of the 1998 Act.

The issues on appeal were raised in the following ground of appeal: “Error of fact and law in finding the appellant did not discharge her onus in proving either ‘ignorance’ (or ‘mistake’) of the timeframes in which to make a workers compensation claim in New South Wales”.

The Member firstly dealt with the notice of injury and claim questions, and found that although the appellant did not give notice of injury as soon as possible after the injury happened, the respondent was not prejudiced, and the appellant therefore satisfied the special circumstances in s 254(3)(a) of the 1998 Act.

The Member then determined the s 261 issue – whether the appellant could recover compensation despite not making a claim for compensation within six months after the injury happened. He determined she did not make a claim within six months after the injury happened, and that she had not been able to obtain the benefit of the exceptions provided by s 261(4) of the 1998 Act. She brought this appeal against that decision.

Held: The Certificate of Determination dated 13 January 2023 was confirmed.

Discussion

1. Acting Deputy President Perry stated that the appeal ground framed the issue requiring resolution firstly by acknowledging that the appellant bore and needed to discharge the onus in proving either ‘ignorance’ (or ‘mistake’), and secondly by identifying the relevant subject matter, namely, “the timeframes in which to make a workers compensation claim in [NSW]”. This was consistent with the Member’s statement that he did not accept the appellant was ignorant of her obligations to make a claim for compensation, and she “did not seek to argue otherwise”. He then noted the appellant’s reliance was thus “limited to the quite narrow and very specific claim that [she] did not know the time limit on making a claim”. ([66])
2. The Acting Deputy President stated that the Member took into account the proposition (in Albury Real Estate Pty Ltd v Rouse [2006] NSWWCCPD 139) that ‘ignorance’ includes cases where a worker is unaware of the timeframes to make a claim, but added that “each case depends on its own facts and the worker bears the onus”, and “on my review of the evidence ... I cannot accept the very limited and specific claim of ignorance made by [the appellant] in her effort to overcome s 261(1)”. In the Acting Deputy President’s opinion, this finding was open to the Member. One of the appellant’s main points appeared in the paragraph immediately following (at [65] of the reasons). At first blush, the 21 July 2020 record of Dr Brittain (general practitioner) appeared to fall short of providing “compelling” evidence that the appellant “would have had knowledge” of “the requirements for making” a workers compensation claim. But when the Member’s decision was read in context and as a whole, this was not necessarily so. ([67]–[68])

(Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 and Northern NSW Local Health Network v Heggie[2013] NSWCA 255; 12 DDCR 95 applied)

3. Acting Deputy President Perry held that the Member considered, but did not totally accept, the appellant’s argument that although she worked as a union organiser, she did not provide advice in regard to workers compensation claims, and she had been directed by the respondent to refer a member with such an enquiry to a different section of the union. He was only prepared to say that, while this may have been the case while she was employed by the respondent, by the time of Dr Brittain’s entry, she had a particular expertise in advocating for clients who had been exposed to psychological harm from bullying and harassment in the workplace, and this provided evidence that the appellant would have had relevant knowledge at least by that time. He also clearly enough, by multiple references to there being no other evidence about this advocacy business and/or the pink-collar workers business, stated that he was concerned about there being no other evidence to contradict the content of the relevant records of Ms Knox-Haly (psychologist) and Dr Brittain on 30 March 2020, 20 July 2020 and 21 July 2020. ([71])
4. In the Acting Deputy President’s opinion, this was reasonably open to the Member, not erroneous, and not a situation where an available inference in the opposite sense to that chosen by him was so preponderant as to make his decision wrong. Just because the appellant did not provide advice in relation to workers compensation claims in the NSW system as part of her work duties, and even if she had been directed to refer members with such an enquiry to a different section of the union, it did not at all necessarily follow that she did not have knowledge, at least to some extent, of aspects of that system, in particular, important or major aspects such as limitation periods for making claims. All relevant circumstances need to be taken into account in deciding whether or not a worker has proved that the failure to make a timely claim was occasioned by ignorance. Perry ADP held that the Member did take all circumstances into account and did not err in doing so. ([72])
5. Acting Deputy President Perry found that the Member was entitled to take into account the appellant’s claims management work from late February 2020 for about one and a half months. In the Acting Deputy President’s opinion, the Member would have fallen into error if he had refused to do so on the basis that Procare is not a scheme agent for the workers compensation system in NSW. ([77])
6. In the Acting Deputy President’s opinion, the finding that the appellant did not discharge her onus “on this quite specific excuse for the delay” was reasonably open to the Member in all the circumstances and the evidence. His lack of satisfaction that Dr Brittain’s and Ms Knox-Haly’s records relating to the appellant’s “particular expertise” were adequately addressed appeared important in this regard. This was at least an adequate basis to support the ultimate findings. Clearly enough, he was saying that these records made between about 30 March 2020 and 21 July 2020 strongly point to, in concert with other evidence including the appellant’s education and work history, it being likely that the appellant was aware of the relevant timeframes – and that there was no other evidence addressing or traversing this. ([81])
7. Perry ADP stated that even if the Member did err at [65] of the reasons, it would have made no difference to the result. It was not necessary for the Member to identify “compelling” evidence that the appellant knew the relevant timeframes given the onus borne by her. It was only necessary for him to find he did not have a sufficient level of actual persuasion or satisfaction to find that the failure to make a claim within six months was occasioned by ignorance (or mistake). However, it was clear enough that he disposed of the case at least on this basis. ([83])
8. The Acting Deputy President also did not accept the appellant’s argument that the Member failed to consider the appellant’s evidence of her work experience and studies being limited to employment and equal opportunity laws, and there being no basis to reject her evidence without a challenge to her credit under cross examination regarding “ignorance” or “mistake”. ([84])

(JB Metropolitan Distributors Pty Ltd v Kitanoski [2016] NSWWCCPD 17 applied)

9. The exchange of documents prior to the hearing in the appellant’s case was clearly sufficient to have notified her of a dispute about whether indeed her failure to make a claim within the required period was occasioned by ignorance. The Member did find, at [64] of the reasons, that he could not accept the appellant’s evidence on “the very limited and specific claim of ignorance”. Perry ADP held this finding was open to the Member, and he did not err in doing so. ([85])
10. It was noted that the appellant had not made any complaint about, or directed any submissions to the Member’s reasons at [75]–[93] where he did not accept the appellant’s argument of there being “reasonable cause” in s 261(4) on the basis of advice given by Dr Brittain that she should not pursue a workers compensation claim but try and move on with her life. Similarly, the Member’s finding that the injury “happened in the period up until 11 December 2019” was not the subject of an appeal ground or submission. In the result, the Certificate of Determination was confirmed. ([88]–[89])

Peter John Mann and Christine Violet Seymour t/as Nimbin Crystal Tourist Park v Workers Compensation Nominal Insurer [2024] NSWPICPD 4

WORKERS COMPENSATION – Employment – intention to create a legal relationship – Secretary, Department of Family and Community Services v Bee [2014] NSWWCCPD 66 applied – substantial contributing factor – s 9A of the 1987 Act – Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324 applied – calculation of pre-injury average weekly earnings for “short term” workers – clauses 4, 6 and 7 of Schedule 3 to the 1987 Act and reg 8F of the 2016 Regulation – s 145 of the 1987 Act – onus of proof in respect of an employer’s liability to reimburse the Workers Compensation Nominal Insurer – Raniere Holdings Pty Ltd v Daley [2005] NSWCA 121 – acceptance and rejection of evidence – Devries v Australian National Railways Commission [1993] HCA 78; Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 applied

Wood DP

29 January 2024

Facts

The second respondent, Mr Brittliff, suffered an injury on 23 October 2020 when he was bitten on the nose by a dog at a caravan park which was owned and operated by the appellants. The second respondent alleged that he was employed by the appellants as a caretaker of the park. The appellants did not hold a workers compensation policy at that time. The second respondent therefore lodged a claim for workers compensation with the Nominal Insurer, the first respondent, alleging physical and psychological injuries as a result of the incident. The Nominal Insurer accepted liability for the injury and paid weekly compensation and treatment expenses to the second respondent.

The Nominal Insurer served on the appellants a notice issued pursuant to s 145 of the 1987 Act seeking reimbursement of compensation paid in respect of the second respondent’s claim in the amount of $62,315.61. The appellants commenced proceedings in the Commission pursuant to s 145(3) of the 1987 Act, seeking a determination as to their liability for the payments made. The appellants denied employing the second respondent; denied that he was injured in the course of employment; denied that any employment was a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act; disputed the extent of the second respondent’s incapacity for work, and disputed the quantum of the weekly payments made.

The Principal Member determined that: the second respondent was employed by the appellants; the second respondent suffered injury to his nose and a psychological injury in the course of his employment; the second respondent’s employment was a substantial contributing factor to the employment pursuant to s 9A of the 1987 Act, and the second respondent had no capacity for work and was entitled to weekly payments of compensation.

The Principal Member ordered that the appellants reimburse to the Nominal Insurer compensation which was slightly less than the amount paid by the Nominal Insurer to and on behalf of the second respondent. The appellants appealed.

The issues on appeal were whether the Member erred in:

(a) fact and law in determining the issue of the employment of the second respondent (Ground A);

(b) fact in determining that the second respondent was injured in the course of his employment (Ground B);

(c) fact and law in determining that the employment was a substantial contributing factor to the injury (Ground C);

(d) fact and law in determining the second respondent’s pre-injury average weekly earnings (Ground D);

(e) law in determining the matter on a basis not put by or to the parties (Ground E), and

(f) law in considering that the appellants bore the onus of proof in respect of the application (Ground F).

Held: The Principal Member’s Certificate of Determination dated 22 December 2022 was confirmed.

Ground A

1. The appellants contended that the Principal Member erred in respect of her finding that the second respondent was employed by the appellants. The error was said to be that the evidence was against the finding that there was an intention to create legal relationships, which is an essential element of an employment relationship. The appellants submitted that, in this case, the evidence was against the Principal Member’s finding in that: the only conversation in relation to any agreement to do the work was between Mr Mann and Ms Crossey (the second respondent’s partner); no payment was made to the second respondent; the second respondent was not seen to do any work in the park; the provision of accommodation was for the benefit of Ms Crossey, and the second respondent was not given any induction in relation to the work to be done. ([123]–[124])
2. Deputy President Wood stated that the Principal Member determined the matter on the basis of the objective and more contemporaneous evidence from Mr Gibson, solicitor, as to the arrangements made, together with the evidence in the Lismore Base Hospital notes and the Police Facts Sheet. It was clearly apparent from the evidence from Mr Gibson, which was not addressed by the appellants, that there was an arrangement with both Ms Crossey and the second respondent to undertake care-taking tasks in the park as arranged by Mr Mann. That evidence was sufficient to establish that there was a contractual arrangement in place between the appellants and the second respondent to perform tasks around the park. The Principal Member was entitled, in the exercise of her evaluative judgment, to accept that that evidence established an intention to create a legal relationship. In the context of the objective evidence of an arrangement being put in place that involved the second respondent performing tasks in and around the park, it was immaterial that the second respondent was not present when the first conversation took place between Mr Mann and Ms Crossey. ([127])
3. It was clear from Mr Gibson’s letter alone that, contrary to the appellants’ submissions, payments were made, and accommodation was provided to both Ms Crossey and the second respondent, in exchange for work performed by both of them. It followed that Ground A failed. ([128]–[129])

Ground B

4. The appellants asserted that even if the second respondent was in an employment relationship with the appellants, his injury, which happened at around 4 pm, did not occur in the course of his employment because his working hours were from 8 am to midday. The appellants said that the second respondent was not performing a work task but was on his way to pick mulberries. ([130])
5. The Deputy President stated that the Principal Member made a finding of fact that the second respondent approached Mr Ducat’s vehicle for the purpose of informing Mr Ducat that his dog was not allowed on the premises, which was clearly an employment related task. The appellants did not challenge that finding. In any event, the Principal Member determined that the injury arose out of the second respondent’s employment because the reason the second respondent approached the vehicle was solely to inform Mr Ducat that the dog was not allowed on the park’s premises. The Principal Member also determined that the second respondent worked on an “on call” basis, so that the time of the injury was not relevant to a determination that the injury occurred either in the course of his employment or that it arose out of the employment. The appellants did not challenge the conclusion that the second respondent was “on call”. ([131])
6. The appellants did not make any persuasive submission that indicates that the Principal Member erred in concluding that the injury occurred in the course of the second respondent’s employment, but even if that conclusion was wrong, there is no challenge to the Principal Member’s conclusion that the injury arose out of the employment. It was open to the Principal Member to determine that the injury arose out of the second respondent’s employment because the second respondent was dealing with matters arising from the management of the park. ([132])
7. A statutory right of appeal under s 352 of the 1998 Act requires a demonstration that the decision appealed against was affected by error. As the Nominal Insurer submitted, any error in the Principal Member’s factual conclusions must affect the outcome. Even if the finding that the second respondent’s injury occurred in the course of his employment was wrong, having come to the conclusion that the injury arose out of the employment, the asserted wrong finding cannot have affected the outcome. The appellants had failed to establish error on the part of the Principal Member and this ground of appeal failed. ([133])

Ground C

8. The appellants asserted that the injury would have occurred whether or not the second respondent was in an employment relationship. The time that the injury occurred was not relevant to the question of whether the injury was work related. It was also not a material consideration to a determination of whether the second respondent’s employment was a substantial contributing factor to the injury, in the context of the Principal Member’s determinations that the second respondent worked on an “on call” basis and there was a causal connection between the employment and the injury. Deputy President Wood found that it was clear that the Principal Member considered the factors set out. ([134]–[137])

   (Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324 applied)

9. The work performed by the second respondent was that of a care-taker in the park which involved ensuring that the park was safely maintained. The particular task that the second respondent undertook was to ensure that a dog which was known to be aggressive did not enter the park. There was no other fact-based reason as to why the second respondent was performing the task of approaching Mr Ducat’s car other than to convey the instruction to Mr Ducat that the dog was not permitted in the park. The second respondent’s employment was clearly a substantial contributing factor (if not the only factor) to the injury. This ground failed. ([138]–[139])

Ground D

10. The appellants submitted that the Principal Member erred in determining the second respondent’s pre-injury average weekly earnings on the basis of the second respondent having worked 28 hours per week and having been provided with accommodation. The appellant submitted that the proper figure should have been half of the amount of $500 that Ms Crossey was paid and either no allowance should be made for the provision of accommodation because that was provided to Ms Crossey or, in the alternative, half of the accommodation because that was provided to Ms Crossey or, in the alternative, half of the accommodation allowance should be calculated because the second respondent shared the accommodation. ([140])
11. Deputy President Wood held that the Principal Member’s conclusion that the second respondent worked 28 hours per week was not “glaringly improbable” nor was there “incontrovertible evidence” contrary to the Principal Member’s finding that was so compelling that it showed the Principal Member was wrong. ([141])

(Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied)

12. The appellants did not point to any legislative provision or any authority contrary to the Principal Member’s determination, thus there was no error of law identified by the appellants. The second respondent had been in the employment for less than 4 weeks when the injury occurred. The Principal Member was therefore required to apply cl 4 of Sch 3 to the 1987 Act. The second respondent had the benefit of the provision of accommodation, so that the Principal Member was required by cl 6 to Sch 3 to assess the monetary value of that non-pecuniary benefit, which was to be assessed in accordance with cl 7 of Sch 3 to the 1987 Act and reg 8F of the 2016 Regulation. The Industrial Award identified by the second respondent and adopted by the Principal Member was said to be the Award identified by the Fair Work Commission and the appellants had not challenged that submission. ([142])
13. It was plainly obvious that the Principal Member determined the issue of the second respondent’s pre-injury average weekly earnings in accordance with law. The appellants had failed to point to any fact accepted by the Principal Member that was erroneous. In the circumstances, the appellants’ challenge to the Principal Member’s determination of the second respondent’s pre-injury average weekly earnings failed. ([143]–[144])

Ground E

14. The appellants asserted that the parties did not submit that the lay witnesses’ evidence, other than that of Mr Anderson, should be treated with caution and that the Principal Member did not raise with the parties her concerns about that evidence. The appellant said that they ought to have been provided with the opportunity to make submissions about the Principal Member’s concerns and those submissions may have changed the outcome of the case. ([145])
15. At the arbitration, the appellants made submissions that Mr Teniswood (current caretaker of the park), Ms Benfell (Mr Mann’s partner), Ms Ducat (Mr Ducat’s mother), Mr Anderson (a resident of the Park) and Mr Mann gave statement evidence that the second respondent was not seen doing any work in or around the park. The Principal Member was required to determine whether any of that evidence was reliable. She considered that the evidence was of little assistance to her and determined the matter on the basis of other objective evidence. The appellants clearly had the opportunity and did avail themselves of the opportunity to make submissions as to whether that evidence should or should not be accepted. Once raised by the appellants, it was a matter for the Principal Member to deal with those submissions. Where evidence is unreliable, it is open for a tribunal to look for assistance from other evidence and evidence may be rejected if it is inconsistent with other, accepted evidence. ([146])
16. The appellants further complained that the Principal Member’s consideration of the parenting payment was not the subject of submissions by the parties. It was clear that the receipt of the parenting payment was a matter raised in submissions by the appellants and thus it was a matter that required consideration by the Principal Member.
17. Deputy President Wood noted that in an appeal from a decision of a member of the Commission, the appellants’ legal representatives are required to endorse that the appeal grounds have reasonable prospects of success. In the circumstances, it was difficult to see how that would be the case in respect of this ground of appeal. The appellants’ assertion that the Principal Member erred by determining the matter on the basis of matters not put in submissions or by failing to provide the appellants with the opportunity to make submissions was not made out. This ground of appeal failed. ([148])

Ground F

18. The appellants submitted that neither party bears the onus of proof in matters pertaining to s 145(3) of the 1987 Act. The second respondent submitted that the weight of the evidence was against the appellants so that the onus shifted to the appellants to prove they were not liable to reimburse the Nominal Insurer. ([149])
19. Deputy President Wood stated that the appellants’ assertion that they did not bear the onus of proving that they were not liable was contrary to the observations made by Tobias JA in Raniere Holdings Pty Ltd v Daley [2005] NSWCA 121, at [46]. The appellants did not point to any contrary authority or any legislative basis to assist in respect of this ground of appeal. The appellants’ allegation of error on the part of the Principal Member was not made out and the ground of appeal failed. ([150]–[151])