Issue 6: June 2013
On Appeal
Welcome to the 6th issue of ‘On Appeal’ for 2013.
Issue 6 – June 2013 includes a summary of the May 2013 decisions.
These summaries are prepared by the Presidential Unit and are designed to provide
a brief overview of, and introduction to, the most recent Presidential and Court of
Appeal decisions. They are not intended to be a substitute for reading the
decisions in full, nor are they a substitute for a decision maker’s independent
research.
Please note that the following abbreviations are used throughout these summaries:
ADP
AMS
Commission
DP
MAC
Reply
1987 Act
1998 Act
2003
Regulation
2010
Regulation
2010 Rules
2011 Rules
Acting Deputy President
Approved Medical Specialist
Workers Compensation Commission
Deputy President
Medical Assessment Certificate
Reply to Application to Resolve a Dispute
Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998
Workers Compensation Regulation 2003
Workers Compensation Regulation 2010
Workers Compensation Commission Rules 2010
Workers Compensation Commission Rules 2011
Level 21 1 Oxford Street Darlinghurst NSW 2010 PO Box 594 Darlinghurst 1300 Australia
Ph 1300 368018 TTY 02 9261 3334 www.wcc.nsw.gov.au
1
Table of Contents
Presidential Decisions:
Di Matteo v RDM Ceramics Pty Limited [2013] NSWWCCPD 27 ...................................................... 3
Question of Law; s 351 of the 1998 Act; application of savings and transitional provisions of the
Workers Compensation Legislation Amendment Act 2012 with respect to claims for lump sum
compensation...................................................................................................................................... 3
Spinelli v Integrated Labour Network Pty Limited [2013] NSWWCCPD 31 ..................................... 6
Question of Law; s 351 of the 1998 Act; application of savings and transitional provisions of the
Workers Compensation Legislation Amendment Act 2012 with respect to claims for lump sum
compensation...................................................................................................................................... 6
Inghams Enterprises Pty Ltd v Thoroughgood [2013] NSWWCCPD 29 .......................................... 9
Aggravation of disease of varicose veins; meaning of incapacity in s 16 of the 1987 Act; application
of principles in P & O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214; 49 NSWLR 481
and Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701; notice
of injury; notice of claim; WorkCover Provisional Liability and Claims Guidelines issued December
2001; whether Arbitrator entitled to refer to findings by Delegate of the Registrar in an Application
for Expedited Assessment; procedural fairness; ss 74, 254, 255, 260 and 261 of the 1998 Act; cl 46
of the 2010 Regulations ...................................................................................................................... 9
Grasa v Roads & Maritime Services [2013] NSWWCCPD 30 .......................................................... 16
Psychological injury; relevance and effect of consent orders; application of principles in Rail
Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648; failure to consider relevant
medical evidence; findings based on information not in evidence; application of principles in Strinic
v Singh [2009] NSWCA 15; 74 NSWLR 419; alleged bullying and harassment; perception of real
events; application of principles in State Transit Authority (NSW) v Chemler [2007] NSWCA 249; 5
DDCR 286 and Attorney General’s Department v K [2010] NSWWCCPD 76 ................................. 16
Shoalhaven City Council v Stevenson [2013] NSWWCCPD 28 ...................................................... 20
Challenge to factual findings; ss 61 and 261 of the 1998 Act; requirements as to giving notice of
injury and making of a claim; obligation to state reasons for decision. ............................................ 20
Drive Recruit Pty Ltd v Back [2013] NSWWCCPD 32 ...................................................................... 23
Concurrent employment; casual employment; essential features of a contract of employment;
calculation of current weekly wage rate, average weekly earnings, and probable earnings; ss 42(7),
43(1)(e) and (f) of the 1987 Act; ability to earn; entitlement to weekly compensation; assessment of
evidence; partial incapacity; orders inconsistent with the findings made; non-compliance with
Practice Direction No 6; unsatisfactory written submissions by appellant; appeal unnecessarily
protracted by appellant’s conduct; costs on appeal.......................................................................... 23
Karim v Poche Engineering Services Pty Ltd [2013] NSWWCCPD 24 .......................................... 29
Journey claim; s 10(1A) of the 1987 Act; whether personal injury (resulting in death) attributable to
the serious and wilful misconduct of the worker; excessive speed; riding motor bike at double the
speed limit in a suburban area; meaning of serious and wilful misconduct; failure to comply with
Practice Direction No 6 ..................................................................................................................... 29
MacLeod v John Radcliffe and Andrew Lye t/as Dripping Wet Surf Company [2013]
NSWWCCPD 26 ................................................................................................................................... 33
Whether injury received in the course of employment; application of the principles in Hatzimanolis v
ANI Corporation Ltd (1992) 173 CLR 473 ........................................................................................ 33
AHG Services (NSW) Pty Ltd v Milojkovic [2013] NSWWCCPD 25 ................................................ 37
Section 4 of the 1987 Act; personal injury; disease which is contracted in the course of
employment; obligation to state adequate/sufficient reasons for decision. ...................................... 37
2
Di Matteo v RDM Ceramics Pty Limited [2013] NSWWCCPD 27
Question of Law; s 351 of the 1998 Act; application of savings and transitional provisions of
the Workers Compensation Legislation Amendment Act 2012 with respect to claims for lump
sum compensation
Keating P
20 May 2013
Facts:
Mr Di Matteo injured his back and left leg in the course of his employment with the
respondent on 31 May 1994.
On 5 September 1996, Mr Di Matteo claimed permanent impairment compensation pursuant
to s 66 of the 1987 Act.
In June 2001 and October 2008 he entered into complying agreements under s 66A of the
1987 Act for the payment of lump sum compensation in respect of impairment to his back
and left leg.
On 20 June 2012, Mr Di Matteo made a further claim for lump sum compensation as a result
of sexual dysfunction associated with his accepted back injury. He claimed 12 per cent
permanent loss of his sexual organs.
Entitlements to lump sum compensation pursuant to s 66 were amended by Sch 2 of the
Workers Compensation Legislation Amendment Act 2012 (the Amending Act). The amended
s 66 provides:
“66 Entitlement to compensation for permanent impairment
(1)
A worker who receives an injury that results in a degree of permanent
impairment greater than 10% is entitled to receive from the worker’s employer
compensation for that permanent impairment as provided by this section.
Permanent impairment compensation is in addition to any other compensation
under this Act.
Note: No permanent impairment compensation is payable for a degree of permanent
impairment of 10% or less.
(1A) Only one claim can be made under this Act for permanent impairment
compensation in respect of the permanent impairment that results from an injury.
…”
Mr Di Matteo’s claim for additional compensation was rejected by his employer’s workers
compensation insurer on the basis that pursuant to s 66(1A) he had no further entitlement to
permanent impairment compensation having previously claimed and recovered permanent
impairment compensation in respect to his injures.
On 3 July 2012, Mr Di Matteo lodged an Application in the Commission claiming $5,640
pursuant to s 66 for 12 per cent permanent impairment loss of use of the sexual organs plus
an additional sum pursuant to s 67.
3
In Goudappel v ADCO Constructions Pty Limited & anor [2012] NSWWCCPD 60
(Goudappel) the Question of Law referred by an Arbitrator concerning the interpretation of
the savings and transitional provisions of the Amending Act was determined. The question
concerned whether the amended lump sum compensation provisions applied where a
worker had made a claim for any form of compensation prior to 19 June 2012 as opposed to
a claim for lump sum compensation. It was determined that the amendments introduced by
Sch 2 of the Amending Act applied to claims pursuant to s 66 made on or after 19 June 2012
in circumstances where a worker has made a claim for another type of compensation (not
being a claim for lump sum compensation) in respect of the same injury prior to 19 June
2012. Mr Goudappel filed an appeal to the Court of Appeal.
As a consequence of the decision in Goudappel, issues were raised in these proceedings
concerning whether a worker who had made a claim for permanent impairment
compensation prior to 19 June 2012 (unlike Goudappel where no claim had been made
before that date) was disallowed from making a further claim in respect of the same injury for
permanent impairment compensation on or after 19 June 2012. The amendments also
raised a question in relation to the application of the amendments introduced by Sch 2 in
respect of injuries occurring before 1 January 2002 where the entitlements to compensation
are based on the Table of Disabilities as opposed to permanent impairment compensation.
In the course of proceedings, at the request of the parties, the Arbitrator referred two
Questions of Law pursuant to s 351 of the 1998 Act.
The Question of Law application was listed for hearing on 18 February 2013. The
WorkCover Authority (WorkCover) intervened (s 106 of the 1998 Act). The decision was
reserved.
On 29 April 2013, following an expedited hearing, the Court of Appeal delivered judgment in
Goudappel v ADCO Constructions Pty Limited [2013] NSWCA 94 (Goudappel No 2). Basten
JA, (Bathurst CJ and Beazley P agreeing), allowed the appeal from the decision in
Goudappel and set aside the answer given in the Commission on 22 October 2012.
The Court of Appeal stated:
“The amendments to Division 4 of Part 3 of the Workers Compensation Act 1987
introduced by Schedule 2 of the Workers Compensation Legislation Amendment Act
2012 do not apply to claims for compensation pursuant to s 66 which are made before
19 June 2012 in respect of an injury that results in permanent impairment whether or
not the claim specifically sought compensation under s 66 or s 67 of the 1987 Act.”
The Court also held that to the extent that reg 11 of the Workers Compensation Amendment
(Transitional) Regulation 2012 sought to prejudicially affect a right to obtain a benefit under
s 66, which accrued at the date of injury, the regulation was beyond power and invalid.
Further submissions were sought from the parties to indicate whether the Application to
Refer the Question of Law was pressed and if so why leave should be given to deal with the
questions, having regard to the decision in Goudappel No 2.
The legal principles
1.
Do the amendments to Division 4 of Part 3 of the Workers Compensation Act 1987
introduced by Schedule 2 of the Workers Compensation Legislation Amendment Act
2012 disallow a worker who has made a claim for permanent impairment
compensation prior to 19 June 2012 from making a further claim, in respect of the
same injury for permanent impairment on or after 19 June 2012?
4
A.
No.
2.
Do the amendments to Division 4 of Part 3 of the Workers Compensation Act 1987
introduced by Schedule 2 of the Workers Compensation Legislation Amendment Act
2012 apply to claims for permanent impairment where the injury occurred before 1
January 2002?
A.
Having regard to the answer to question one, it is unnecessary to answer question
two.
1.
Judge Keating accepted the applicant’s submission that the decision of the Court of
Appeal in Goudappel No 2 answered question one raised in these proceedings. The
decision was clearly binding on the Commission. It followed that the answer to
question one must be answered in the negative.
2.
Having regard to the answer to question one, it was unnecessary to answer question
two.
5
Spinelli v Integrated Labour Network Pty Limited [2013] NSWWCCPD 31
Question of Law; s 351 of the 1998 Act; application of savings and transitional provisions of
the Workers Compensation Legislation Amendment Act 2012 with respect to claims for lump
sum compensation
Keating P
28 May 2013
Facts:
Mr Spinelli suffered injury to his lower back on 31 October 2007 whilst in the course of his
employment.
On 30 September 2008, an Arbitrator made an award by consent in favour of Mr Spinelli for
lump sum compensation pursuant to s 66 of the 1987 Act in respect of 14 per cent whole
person impairment and an amount of $19,000 pursuant to s 67.
By the time the AMS issued his Certificate, Mr Spinelli had undergone a microdiscectomy at
L4/5. He underwent further microdiscectomies and rhizolysis from L4 to S1 in February 2009
and a revision of his lumbar decompression rhizolysis in May 2010. On 21 May 2011, the
applicant underwent lumbar decompression and interbody fusion from L4 to S1.
In May 2012, Mr Spinelli was reassessed by Dr Peter Conrad following his surgery. Dr
Conrad assessed that Mr Spinelli suffered a 29 per cent whole person impairment by reason
of the subject injury. It was accepted that on or after 19 June 2012, Mr Spinelli’s solicitors
made a further claim on his behalf for $40,382.50 in respect of a further 15 per cent whole
person impairment pursuant to s 66 and a further $26,000 for pain and suffering pursuant to
s 67.
Entitlements to lump sum compensation pursuant to s 66 were amended by Sch 2 of the
Amending Act and s 67 was repealed. The amendments were said to apply to claims made
on or after 19 June 2012. Relevantly, the amended form of s 66 provides:
“66 Entitlement to compensation for permanent impairment
(1)
A worker who receives an injury that results in a degree of permanent
impairment greater than 10% is entitled to receive from the worker’s employer
compensation for that permanent impairment as provided by this section.
Permanent impairment compensation is in addition to any other compensation
under this Act.
Note: No permanent impairment compensation is payable for a degree of permanent
impairment of 10% or less.
(1A) Only one claim can be made under this Act for permanent impairment
compensation in respect of the permanent impairment that results from an injury.
...”
Mr Spinelli’s claim for additional compensation was rejected by his employer’s workers
compensation insurer on the basis that the additional compensation was no longer payable
6
pursuant to s 66 in circumstances where a claim for permanent impairment had previously
been made.
On 31 July 2012, Mr Spinelli lodged an Application in the Commission making a claim for
lump sum compensation. On 9 July 2012, the respondent lodged a Reply indicating that the
claim would be resisted by reason of the amendments made by Sch 2 of the Amending Act
and in particular the introduction of s 66(1A) and the repeal of s 67.
In the course of proceedings, at the request of the parties, the Arbitrator referred two
Questions of Law pursuant to s 351 of the 1998 Act.
Held: leave refused
The questions of law
1.
1.
The questions of law referred for determination were:
(a)
Is cl 11 of Sch 1 of the Workers Compensation Amendment (Transitional)
Regulation 2012 invalid?
(b)
Do the amendments to Div 4 of Pt 3 of the Workers Compensation Act 1987
introduced by Sch 2 of the Workers Compensation Legislation Amendment Act
2012 apply to a worker injured on or after 1 January 2002, who has made a
claim for lump sum compensation pursuant to ss 66 and 67 of the 1987 Act prior
to 19 June 2012, so as to disentitle them from making a further claim for lump
sum compensation pursuant to s 66 of the 1987 Act on or after 19 June 2012 in
respect of additional permanent impairment resulting from the same injury?
(c)
Do the amendments to Div 4 of Pt 3 of the Workers Compensation Act 1987
introduced by Sch 2 of the Workers Compensation Legislation Amendment Act
2012 apply to a worker injured on or after 1 January 2002, who has made a
claim for lump sum compensation pursuant to ss 66 and 67 of the 1987 Act prior
to 19 June 2012, so as to disentitle them from making a further claim for lump
sum compensation pursuant to s 67 of the 1987 Act on or after 19 June 2012 in
respect of additional permanent impairment resulting from the same injury?
(d)
Does s 322A of the Workplace Injury Management and Workers Compensation
Act 1998 prevent a worker injured on or after 1 January 2002 and whose injury is
the subject of a Medical Assessment Certificate in respect of the degree of
permanent impairment in respect of a claim for lump sum compensation made
prior to 19 June 2012 from having a further medical dispute in relation to the
degree of permanent impairment of the worker as a result of the same injury
referred for medical assessment by an Approved Medical Specialist on or after
19 June 2012 for the purpose of a claim for:
(i)
lump sum compensation pursuant to s 66 of the 1987 Act;
(ii)
lump sum compensation pursuant to s 67 of the 1987 Act, or
(iii)
work injury damages?
Leave is required for a Question of Law referral to proceed under s 351(1) of the 1998
Act and leave is not to be granted unless the Commission is satisfied that the question
involved novel and complex questions of law [14]-[15].
7
2.
At the time the Application was lodged, the questions referred by the Arbitrator
concerned complex and novel questions regarding the interaction between the
amendments introduced by the 2012 Amending Act and the savings and transitional
provisions found in Pt 19H, and the validity and effect of various regulations that had
been promulgated since the 2012 Amending Act was passed [16].
3.
On 29 April 2013, following an expedited hearing, the Court of Appeal delivered
judgment in Goudappel v ADCO Constructions Pty Limited [2013] NSWCA 94
(Goudappel No 2). Basten JA, (Bathurst CJ and Beazley P agreeing), allowed the
appeal from the decision in Goudappel v ADCO Constructions Pty Limited & anor
[2012] NSWWCCPD 60 (Goudappel No 1) and set aside the answer given in the
Commission on 22 October 2012.
4.
The Court of Appeal stated:
“The amendments to Division 4 of Part 3 of the Workers Compensation Act 1987
introduced by Schedule 2 of the Workers Compensation Legislation Amendment
Act 2012 do not apply to claims for compensation pursuant to s 66 which are
made before 19 June 2012 in respect of an injury that results in permanent
impairment whether or not the claim specifically sought compensation under s 66
or s 67 of the 1987 Act.”
5.
The Court also held that to the extent that reg 11 of the Workers Compensation
Amendment (Transitional) Regulation 2012 sought to prejudicially affect a right to
obtain a benefit under s 66, which accrued at the date of injury, the regulation was
beyond power and invalid [21].
6.
On 27 May 2013, Judge Keating held a telephone conference between the parties. At
that conference, there was general acceptance among the parties that the questions of
law raised for determination had been answered in Goudappel No 2 [23].
7.
The parties no longer required the Commission to determine the questions referred in
this application. In the circumstances, leave was refused [25].
8
Inghams Enterprises Pty Ltd v Thoroughgood [2013] NSWWCCPD 29
Aggravation of disease of varicose veins; meaning of incapacity in s 16 of the 1987 Act;
application of principles in P & O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214;
49 NSWLR 481 and Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA
277; 1 DDCR 701; notice of injury; notice of claim; WorkCover Provisional Liability and
Claims Guidelines issued December 2001; whether Arbitrator entitled to refer to findings by
Delegate of the Registrar in an Application for Expedited Assessment; procedural fairness;
ss 74, 254, 255, 260 and 261 of the 1998 Act; cl 46 of the 2010 Regulations
Roche DP
27 May 2013
Facts:
The respondent worker, Brett Thoroughgood, worked for the appellant employer, Inghams
Enterprises Pty Ltd (Inghams) between 2003 and 10 October 2006. His duties required him
to stand (essentially in the one spot) for eight hours a day, five days a week, on a wet
concrete floor to hang chickens. Water would get into his boots and his feet would sweat.
In mid-2006, he noticed swelling in his left foot, his “veins were popping out” and his legs
were painful. He saw his general practitioner, Dr Walter, who gave him a certificate stating
that he needed proper comfortable waterproof boots to protect his feet. Mr Thoroughgood
spoke to Cindy Holloway, the return to work coordinator at Inghams, and told her he had
swollen feet from standing all day and that his doctor suggested that Inghams provide him
with proper boots. She replied that the gumboots provided were good enough.
On 10 October 2006, Mr Thoroughgood stopped work after Inghams refused to provide
proper footwear. He started work on 12 October 2006 for H L Mullane & Sons (Mullane) as a
plumber’s labourer and trades assistant. He said this work did not aggravate his leg
condition.
Mr Thoroughgood alleged that, because of prolonged standing in the course of his work for
Inghams, he suffered an injury arising out of his employment in the form of an aggravation of
varicose veins in his left leg, and that his employment with Inghams was a substantial
contributing factor to that aggravation (s 4(b)(ii) of the 1987 Act).
In 2008, Mr Thoroughgood made an Application for Expedited Assessment against Inghams
for past weekly payments and medical expenses, which was later discontinued.
Mr Thoroughgood filed a second Application for Expedited Assessment in 2009. The claim
for weekly compensation, in that appeal, was discontinued and, in a decision delivered on 25
March 2006, a Delegate of Registrar, Eleanor Lynch, declined to make an Interim Payment
Direction for the medical expense claimed.
On 18 January 2012, Mr Thoroughgood’s solicitors claimed $7,500 lump sum compensation
in respect of a six per cent whole person impairment said to have resulted from the
aggravation injury. He made no claim for weekly compensation. Inghams disputed liability on
several grounds.
On 18 January 2013, the Commission issued a Certificate of Determination that the matter
be remitted to the Registrar for referral to an AMS to assess the medical dispute regarding
9
the degree of permanent impairment of the applicant resulting from an injury of “aggravation
and deterioration of varicose veins in the left lower extremity deemed to have happened on 8
September 2006”.
The issues in dispute on appeal were whether the Arbitrator erred in:
(a) determining that Mr Thoroughgood was relevantly incapacitated in accordance with
s 16 of the 1987 Act, when he changed jobs in 2006;
(b) his consideration and determination of the issue of whether Mr Thoroughgood had
given notice of injury and made a claim for compensation in accordance with the
requirements of the Act;
(c) considering as evidence a statement of the Delegate of the Registrar;
(d) denying Inghams procedural fairness, by refusing to admit three articles referred to by
its medical expert and refusing to allow that doctor to give oral evidence, and
(e) determining the matter on a basis different to that put on behalf of Mr Thoroughgood.
Inghams did not challenge the Arbitrator’s findings on injury, substantial contributing factor
and last relevant employer, though those issues were very much in dispute and were the
subject of evidence and lengthy submissions.
Held: The Arbitrator’s determination was revoked and the matter remitted to a
different Arbitrator for re-determination of the deemed date of injury.
Incapacity
1.
The pleading of a deemed date of injury of 10 October 2006, and the concession by
the respondent’s counsel at the arbitration that he could not win if there was no
incapacity, strongly suggested that the Arbitrator was invited to find a deemed date by
reference to the date of incapacity - the date on which Mr Thoroughgood stopped work
for Inghams [23]. The worker’s counsel agreed that he relied on no other deemed
dated of injury, such as the date of claim on 18 January 2012, or the date on which Mr
Thoroughgood requested proper footwear in September 2006 [24].
2.
The Arbitrator found that Mr Thoroughgood’s injury caused an incapacity for work
between 8 September 2006 and 11 September 2006, and from 10 October 2006,
when he ceased employment because Inghams had not provided him with appropriate
footwear [26]. The Arbitrator found Mr Thoroughgood to have a partial incapacity for
work during those periods.
3.
It was accepted that the appellant did not argue the incapacity issue in the way it was
presented by counsel on appeal. However, incapacity was in issue at the arbitration
because, on the approach taken by the worker’s counsel, it was necessary to
determine that issue to decide the deemed date of injury. In that context, the
appellant’s solicitor submitted that there was no evidence of incapacity. Thus, the
issues of incapacity and the correct deemed date of injury were raised at the
arbitration and Inghams was entitled to challenge the Arbitrator’s finding on appeal,
albeit on the basis of authorities that were not cited to the Arbitrator [36].
4.
The reference to “incapacity” in s 16 is a reference to the incapacity for which
compensation is claimed. Accepting that Mr Thoroughgood had an incapacity in the
Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; 155 CLR 171 sense, he had no
economic loss from his incapacity and had not claimed weekly compensation [55]. As
10
he made no claim for weekly compensation (Stone v Stannard Brothers Launch
Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701), it followed that the incapacity
found by the Arbitrator could not support a deemed date of injury of 10 October 2006.
(GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187;
Alto Ford Pty Ltd v Antaw [1999] NSWCA 234; 18 NSWCCR 246; Moran Health Care
Services v Woods [1997] NSWSC 147; (1997) 14 NSWCCR 499; P & O Berkeley
Challenge Pty Ltd v Alfonzo [2000] NSWCA; 49 NSWLR 481) [73]. It followed that the
first ground of appeal succeeded [74].
5.
The concession by Mr Thoroughgood’s counsel that he would not win if there was no
incapacity was based on an incorrect view of the authorities. It is clear without doubt
that a claim for lump sum compensation can succeed if there is no relevant incapacity.
To determine the deemed date of injury in such a case one merely looks to the date of
claim. As there were several claims for compensation in this matter, it was necessary
that the matter be remitted to a different Arbitrator for that question to be re-determined
[76].
Notice of Injury and Notice of Claim
6.
The Arbitrator was satisfied that Mr Thoroughgood provided notice of injury in
accordance with s 254(1) of the 1998 Act. He said that Mr Thoroughgood gave notice
of injury to Inghams when he told Ms Holloway that he had swollen feet from standing
up all day. As Ms Holloway knew Mr Thoroughgood, by notifying her, he was in effect
giving notice of his name and address. His statement also apprised her of the method
by which his injury occurred and, because his injury occurred from the type of work he
did over a period of time, he provided notice of the date on which his injury occurred
[81]-[82].
7.
The Arbitrator found that, when Mr Thoroughgood requested Inghams in September
2006 to provide him with appropriate footwear, which he made on the recommendation
of his general practitioner Dr Walter, he was making a claim for compensation under
s 60 for proposed treatment for his injury in the form of therapeutic treatment given at
the direction of his general practitioner [83]. Therefore, in accordance with s 261(3) of
the 1998 Act, Mr Thoroughgood had made a claim for compensation under s 66 at that
time [84].
Notice of Injury
8.
The evidence on notice of injury was in Mr Thoroughgood’s statement of 13 February
2009, where he said that he told Ms Holloway (presumably in or about September
2006) that he had swollen feet from standing up all day. That conversation occurred at
work before Mr Thoroughgood stopped working for Inghams and had not been
challenged by Ms Holloway. As Ms Holloway knew Mr Thoroughgood, it was not
necessary for him to formally give her his name and address. As the legislation
expressly provides that notice of injury may be given orally (s 255(2) of the 1998 Act),
it was of no consequence that Mr Thoroughgood did not complete a claim form [93].
9.
If Inghams felt that the information provided in the verbal notice of injury (the initial
notification) was defective, and the missing information was “materially necessary” for
it to decide about Mr Thoroughgood’s entitlement to provisional liability, it was under
an obligation, within three working days, to inform Mr Thoroughgood that the
notification had not been made (Pt 1 r 7.2 of the WorkCover Guidelines issued in
December of 2001). There was no evidence that Inghams did that and it was not open
to Inghams to claim that Mr Thoroughgood did not give notice of injury [94].
11
10.
The Arbitrator’s conclusion on notice of injury was open and disclosed no error [95].
Notice of Claim
11.
Advising Inghams that he had swollen feet from standing up all day, and armed with a
certificate from his treating general practitioner that he needed “proper comfo[r]table
water proof boots to protect his [f]eet”, as gumboots were unacceptable, and a second
certificate from the same doctor stating that working on concrete and in a wet
environment makes varicose veins worse, Mr Thoroughgood asked Inghams to
provide him with “proper boots”. That was clearly a claim for “medical or related
treatment”, namely, therapeutic treatment, at the direction of a medical practitioner
under s 59(b) and s 60 of the 1987 Act [104].
12.
The fact that Mr Thoroughgood did not make a claim for lump sum compensation
within six months of September 2006 was of no consequence. Section 261(3) of the
1998 Act provides that, for the purposes of s 261, a person is considered to have
made a claim for compensation when the person makes any claim for compensation in
respect of the injury concerned, “even if the person’s claim did not relate to the
particular compensation in question”. Therefore, though the claim for medical or
related treatment did not relate to the claim for lump sum compensation that was the
subject of the current dispute, it was nevertheless sufficient compliance with s 261
[105].
13.
The fact that Mr Thoroughgood had not completed a claim form was of no
consequence. Though there was no evidence of the cost of the boots sought, it was
clear beyond doubt that they would have been less than $5,000. In that situation, a
worker “may make the claim verbally” (Pt 2 r 5.7 of the Guidelines) and it does not
matter that the claim is not in writing. In any event, the claim was substantially in
writing in Dr Walter’s two medical certificates [106].
14.
If the claim was defective, because it was not made as required by the Guidelines, it
was, in the circumstances, a minor defect in form or style and not a bar to the recovery
of compensation (s 260(5); Tan v National Australia Bank Ltd [2008] NSWCA 198; 6
DDCR 363) [107].
15.
The wording of Pt 2 r 5.7 of the Guidelines was considered. In addition to allowing a
claim to be made verbally (where the claim is only for medical expenses up to $5,000),
the Guidelines only require supporting documentation of the amount claimed “for the
payment to be made”. It does not require supporting documentation for a claim to be
made. Thus, Inghams would have been entitled to require supporting documentation of
the amount claimed before it paid the claim. However, that did not arise because it
disputed liability for the boots in any event [109].
Statement of the delegate of the Registrar (Ms Lynch)
16.
The Arbitrator referred to the decision by Ms Lynch delivered on 25 March 2009.
Noting that Ms Lynch’s reasons recounted evidence that was before her, but not
before him, the Arbitrator said that that evidence was evidence of the facts to which it
related and that he was able to take into account in the proceedings before him
because “the rules of evidence do not apply” and he was satisfied that Ms Lynch’s
recount of that evidence was “reliable” [110].
17.
The appellant submitted that the Arbitrator erred in stating that the rules of evidence do
not apply. Relying on s 91 of the Evidence Act 1995, he said that the Arbitrator erred in
finding that Ms Lynch’s reasons constituted evidence.
12
18.
Where the rules of evidence do not apply, fairness must guide the weight to be given
to evidence (Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSWWCCPD 26
cited in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4
DDCR 42 (Edmonds) at [93]). The Arbitrator’s statement that the rules of evidence do
not apply in the Commission was perfectly consistent with s 354(2) of the 1998 Act and
with appellate authority. Section 354(2) states that the Commission “is not bound by
the rules of evidence”. In Edmonds, McColl JA expressed it as an “absence of an
obligation to abide by the rules of evidence”. It follows that s 91 of the Evidence Act
1995 does not apply to proceedings in the Commission [122].
19.
There was no unfairness in the Arbitrator referring to Ms Lynch’s reasons. Those
reasons were admitted into evidence without objection and, once admitted, were
admitted for all purposes (Walker v Walker [1937] HCA 44; (1937) 57 CLR 630; Jones
v Sutherland Shire Council [1979] 2 NSWLR 206, and Albrighton v Royal Prince Alfred
Hospital [1980] 2 NSWLR 542). That Mr Thoroughgood intended to rely on them was
obvious from the fact that they were attached to the Application. If they contained
matters that were seriously in issue, it was open to Inghams to put on evidence in
response. It did not do so [124].
20.
The only possibly relevant matter in Ms Lynch’s decision that the Arbitrator relied on
was the reference to Inghams having Mr Thoroughgood almost immediately
investigated by a doctor of its choice, Dr Beiers. As that evidence was not relied upon
in upholding the Arbitrator’s finding on notice of injury, it was of no consequence to the
outcome of the appeal [127].
21.
However, as the Commission is not bound by rules of evidence and, as there was
clearly no unfairness to Inghams in the Arbitrator referring to Ms Lynch’s decision, the
Arbitrator did not err in referring to the fact that Inghams had sent Mr Thoroughgood to
Dr Beiers when he considered the issue of notice of injury [128].
Procedural fairness
22.
This ground of appeal originally concerned the refusal to admit into evidence three
articles referred to by Dr Potter, qualified by the appellant, in his reports. In the
submissions that were ultimately filed, the ground was expanded to include a
complaint about the refusal to allow Dr Potter to give oral evidence, after a request
was made by the appellant at arbitration [130].
23.
The matter was first listed for conciliation and arbitration on 16 August 2012, when the
respondent’s counsel sought and was granted leave, over objection, to amend the
Application to change the date of injury, the particulars for injury description, and the
particulars for how the injury occurred. The Arbitrator then adjourned the matter until 1
November 2012 “to provide Inghams with the opportunity to obtain further medical
evidence” [131].
24.
The appellant did not comply with the 2011 Rules or Practice Direction No 3 with
regard to calling expert evidence and was not entitled to call Dr Potter to give oral
evidence without leave. All that happened on 16 August 2012 was that the appellant’s
solicitor indicated that he would be “seeking” to call Dr Potter. That did not remove the
obligation to comply with the Commission’s Rules [157].
25.
Allowing Dr Potter to give oral evidence without the appellant having complied with the
Commission’s Rules would have been prejudicial to Mr Thoroughgood (because he
would not have known what evidence the doctor was going to give and would not have
been in a position to effectively cross-examine the doctor) and the Arbitrator was right
13
to refuse to allow oral evidence from Dr Potter. The Arbitrator addressed any potential
prejudice to Inghams from that ruling by allowing an adjournment for a further report to
be obtained from Dr Potter, which was done, though outside the time limit the
Arbitrator set [158].
26.
Dealing with the rejection of the three articles referred to in Dr Potter’s reports, it was
not accepted that the rejection involved any procedural unfairness or denial of natural
justice to Inghams [160].
27.
In exercising discretion on the application to tender the articles referred to in Dr
Potter’s report, the Arbitrator had regard to the lateness of the application, which was
made during addresses on the third occasion on which the matter had been listed for
arbitration, and the prejudice to Mr Thoroughgood, because it would be impossible for
him to respond to them [165].
28.
The Arbitrator did not err in taking these matters into account. The appellant had every
opportunity to serve the articles in time under the Commission’s Rules. No explanation
had been offered, either at the arbitration or on appeal, for why the articles were not
served in time [166].
29.
Given the late attempt to rely on the previously unserved articles, Mr Thoroughgood
was clearly prejudiced, as he had no opportunity to have his experts address the full
articles, rather than just Dr Potter’s summary of them in his report. To obtain that
evidence would have required yet another adjournment in circumstances where the
matter had already been adjourned twice [167].
30.
Taking all matters into account, in particular the non-compliance with the
Commission’s Rules, the lack of explanation for the non-compliance with the
Commission’s Rules, the extreme lateness of the attempt to tender the articles, the
prejudice to Mr Thoroughgood, the modest amount of compensation involved, and the
fact that the missing articles were not the only reason the Arbitrator preferred Mr
Thoroughgood’s medical evidence, the Arbitrator did not err in the exercise of his
discretion in refusing to admit the articles on 7 December 2012, and that refusal
caused no procedural unfairness to Inghams [173].
Determining the matter on a different basis to that put by Mr Thoroughgood
31.
Counsel for the appellant submitted that the Arbitrator found “an alternate date [of
injury] that was not submitted by” Mr Thoroughgood. Mr Thoroughgood only relied on
an injury in or about September 2006, on the basis of “incapacity”, and his counsel’s
submissions were confined to that alone. To the extent that the Arbitrator decided the
case on an alternative basis to that articulated by the respondent’s counsel, he denied
Inghams natural justice and procedural fairness (Inghams Enterprises Pty Ltd v Jones
[2012] NSWWCCPD 17) [175].
32.
The respondent’s counsel agreed that he did not rely on the date of claim for lump sum
compensation (18 January 2012) as the deemed date of injury, and conceded that it
was therefore not open to the Arbitrator to make the alternative finding. It followed that,
given the way the respondent presented the case, it was not open to the Arbitrator to
make an alternative finding for the deemed date of injury [176].
Conclusion
33.
Inghams succeeded on only one of its several grounds of appeal, namely, the meaning
of incapacity in s 16, and, as a result, the question of deemed date of injury had to be
14
re-determined before a different Arbitrator in light of the reasons in this decision. As
the issues of notice of injury and notice of claim have been determined on appeal, they
were considered no longer in dispute. The Arbitrator’s findings on injury, substantial
contributing factor and last relevant employer had not been challenged on appeal and
had not been disturbed. They remained binding according to the usual principles of
issue estoppel [185].
34.
It was difficult to see how a different deemed date of injury could, in the circumstances
of the matter, “change entirely the nature of this case”, as counsel for the appellant
submitted at the appeal hearing. However, if the deemed date of injury is amended at
the next arbitration, the question of whether there is a need for further evidence to
meet that amendment will be a matter for the next Arbitrator [186].
35.
While the appellant submitted at the arbitration that there was no evidence of
incapacity, it did not do so on basis of the arguments and authorities its counsel relied
on in the appeal. That being so, and given that the appeal was otherwise
unsuccessful, it was appropriate that Inghams pay part of Mr Thoroughgood’s costs of
the appeal [188]-[189].
15
Grasa v Roads & Maritime Services [2013] NSWWCCPD 30
Psychological injury; relevance and effect of consent orders; application of principles in Rail
Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648; failure to consider relevant
medical evidence; findings based on information not in evidence; application of principles in
Strinic v Singh [2009] NSWCA 15; 74 NSWLR 419; alleged bullying and harassment;
perception of real events; application of principles in State Transit Authority (NSW) v
Chemler [2007] NSWCA 249; 5 DDCR 286 and Attorney General’s Department v K [2010]
NSWWCCPD 76
Roche DP
27 May 2013
Facts:
Due to various events at work between 2007 and 2009, the appellant worker, Marion Grasa,
alleged that he suffered an Adjustment Disorder and Depressed Mood. He stopped work
because of his condition on 27 November 2009 and claimed compensation against the
respondent employer, Roads & Maritime Services. The respondent’s insurer disputed liability
for Mr Grasa’s condition and he commenced proceedings in the Commission seeking weekly
and other compensation.
The Commission listed his claim for conciliation and arbitration on 24 August 2011. On that
day, the parties agreed to settle the claim on condition that Mr Grasa discontinue his claim
and the respondent pay his costs.
As per the settlement, Mr Grasa returned to work as a mechanic at Bomaderry at 6.30 am
on 12 September 2011. He alleged that, on his return to work, he was bullied, harassed and
isolated and, as a result, suffered an “aggravation of the earlier injury”, which caused him to
cease work at 1.30 pm the same day. Mr Grasa did not return to work after that date and
claimed weekly compensation from 12 September 2011 to date and continuing, together with
medical and related expenses. The respondent’s insurer disputed liability.
The Arbitrator found that Mr Grasa had recovered from “any original injury” and the consent
orders confirmed that he acknowledged that he had no further entitlement to compensation.
The Arbitrator said there were no instances of bullying and harassment by Mr Grasa’s
superiors or co-workers at work. She said that Mr Grasa’s (medical) reports did not explain
the mechanism of the injury or its progression and that most “definitions [of Adjustment
Disorder] include[d] the proviso that the symptoms do not persist for more than six months
after the stressor has ended”.
If Mr Grasa suffered an aggravation of his psychological condition, the Arbitrator could find
no evidence that his work was a substantial contributing factor to his distress or impairment,
which appeared to be “due to his own inner conflicts, attitudes and unreasonable
expectations rather than the effect of any external workplace incidents or factors”.
The issues in dispute on appeal were whether the Arbitrator erred in:
(a) misinterpreting the consent orders;
(b) finding that Mr Grasa had recovered from his original injury by 25 August 2011;
(c) considering the evidence from Mr Orme (psychologist qualified by the respondent);
(d) failing to base her findings on the evidence;
16
(e) failing to properly consider the evidence, and
(f) applying the incorrect legal test in determining whether isolation, harassment and
bullying occurred at work on 12 September 2011.
Held: The Arbitrator’s determination was revoked and the matter was remitted to a
different Arbitrator for re-determination.
The consent orders
1.
The consent orders provided for Mr Grasa to return to his pre-injury duties as a
mechanic but at a different location. There was no concession that Mr Grasa was fit to
resume his “previous employment” with everything that entailed and the Arbitrator
erred in making that statement [20].
2.
The Arbitrator’s statement that the agreement for the return to work was “predicated”
on the basis that Mr Grasa had suffered an Adjustment Disorder but was now fit to
return to work was also incorrect. The respondent never conceded that Mr Grasa had
suffered an Adjustment Disorder [21].
3.
The consent orders did not confirm that Mr Grasa had recovered from his “original
injury”, but merely provided for a return to work at a different location. The
acknowledgment in the consent orders that Mr Grasa had no other entitlement to
weekly compensation up to 25 August 2011 was only relevant to his entitlements up to
that date and, contrary to the Arbitrator’s statement, did not indicate a full recovery
from his previous condition [22].
4.
Exactly what weight the Arbitrator placed on her finding that Mr Grasa had recovered
from his original injury was unclear. However, as the case was based on an
aggravation of a pre-existing condition, it was reasonable to conclude that it played
some role in her final determination, because it would not have been possible to
establish an aggravation injury if there was no pre-existing condition to aggravate.
Therefore, if she erred in her understanding of the consent orders, as she did, and if
that was a factor in her finding that Mr Grasa had recovered by 25 August 2011, it
affected the outcome [23].
Whether Mr Grasa had recovered from his original injury
5.
Even if the consent orders provided support for the Arbitrator’s finding that Mr Grasa
had recovered by 25 August 2011, which was not accepted, they did not support a
finding that he was in the same condition on 12 September 2011. An issue estoppel
only speaks at the date of the order made and only binds the parties as to the issues
actually determined; it does not bind them on different issues, such as fitness at a later
date (Dimovski) [33].
6.
The Arbitrator’s finding that Mr Grasa had recovered by 25 August 2011 was
inconsistent with the weight of the evidence. Moreover, by determining that Mr Grasa
had recovered by 25 August 2011, the Arbitrator determined an issue never argued by
the respondent. Its case was that Mr Grasa had never suffered an injury at any time,
not that he had recovered from a previous injury [34].
7.
The fact that Mr Grasa had been able to travel regularly to his (holiday) property and
do the other things listed by the Arbitrator may well have been relevant to the level of
his incapacity, but did not provide a sound basis for concluding that he had made a full
recovery [39].
17
8.
It followed that the Arbitrator erred on this issue [40].
Mr Orme’s evidence
9.
After referring to the evidence from Mr Orme, psychologist, the Arbitrator said that she
found it difficult to accept that Mr Grasa’s condition was an Adjustment Disorder
because of its longevity and the apparent increase after leaving work. This conclusion
was inconsistent with Mr Orme’s evidence (which was nothing like the passage
attributed to him by the Arbitrator) and appeared to have been based (in part) on an
incorrect reading of his evidence [45].
Findings not based on evidence
10.
There was no evidence that the symptoms of an Adjustment Disorder do not “persist
for more than six months after the stressor has ended”, as the Arbitrator stated. To the
extent that she used that statement as a reason for rejecting Mr Grasa’s medical case,
she erred. Her approach was inconsistent with the principles in Strinic v Singh [2009]
NSWCA 15; 74 NSWLR 419 [55].
11.
The circumstances in which the Commission’s members may rely on general
knowledge acquired in their capacity as members of the Commission are quite limited
and do not extend to determining issues of “injury” and “causation” in the absence of
appropriate expert evidence (Combined Civil Pty Ltd v Rikaloski [2007] NSWWCCPD
181). In Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271, it was held
that a judge of the Compensation Court was not entitled to rely upon general
knowledge of back impairments derived from his experience in the Compensation
Court to infer how, in the absence of any identified factual basis, a specialist formed
his opinion so as to conclude the Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA
305; 52 NSWLR 705 test was satisfied [62].
12.
The Arbitrator erred in relying on her own opinion about Adjustment Disorders [63],
and it was not open to her to reject Mr Grasa’s medical case because of her own
opinion [67].
13.
The Arbitrator’s approach involved a breach of the rules of procedural fairness and,
though she gave other reasons for rejecting Mr Grasa’s medical case, the Deputy
President was not satisfied that her error made “no possible difference to the result”
(Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141) [69].
Failing to consider the evidence
14.
Failing to refer to an important and supportive report, which was inconsistent with the
medical opinion of the doctor, qualified by the employer (Dr Roberts) and had been
referred to in submissions at the arbitration, was an error that demonstrated that the
Arbitrator failed to properly consider the evidence and failed to exercise her statutory
duty to fairly and lawfully determine the application (YG & GG v Minister for
Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311)
[79].
Incorrect legal test
15.
The Arbitrator seemed to have approached the events on 12 September 2011 as if it
was necessary to determine who caused the obvious friction at work on that day. This
followed from her statement that it was “difficult to find any incident which was not in
some way provoked by Mr Grasa”. Even if that were so, and no finding on that issue
18
was made on appeal, that would not have prevented a finding that employment was a
substantial contributing factor to the injury alleged [87].
16.
The issue before the Arbitrator required an objective assessment of the evidence to
determine if real events occurred (either in the course of or arising out of the
employment) that Mr Grasa perceived as creating a hostile environment, even if his
view of those events was not rational and reasonable. Employers take their employees
as they find them (Chemler) [88].
17.
The Arbitrator’s conclusion that, though Mr Paulisson (Mr Grasa’s work colleague) did
seem to stay out of Mr Grasa’s way, that did not “constitute isolation” appeared to have
been made on the basis of some kind of objective test of isolation. The correct test is
whether Mr Grasa perceived, on the basis of real events, that he had been isolated or
treated unfairly. The fact that Mr Paulisson stayed out of his way and Mr Grasa had
lunch on his own provided sound basis for Mr Grasa’s perception that he had been
isolated [96].
18.
Other (contemporaneous) evidence strongly supported Mr Grasa’s complaints that (a
number of) real events occurred at work on 12 September 2011 that he perceived as
creating a hostile environment and were capable of supporting a finding that he
received a psychological injury on that day [98].
19
Shoalhaven City Council v Stevenson [2013] NSWWCCPD 28
Challenge to factual findings; ss 61 and 261 of the 1998 Act; requirements as to giving
notice of injury and making of a claim; obligation to state reasons for decision.
O’Grady DP
23 May 2013
Facts:
Mr Samuel Stevenson alleged that he injured his right knee on 25 May 2000 whilst in the
course of his employment performing parks and garden maintenance duties with
Shoalhaven City Council (the appellant). A rung on a ladder had broken as he climbed into a
tractor causing him to fall heavily on his right foot. Mr Stevenson alleged that he immediately
reported the injury to his then supervisor and an incident report was later completed.
Mr Stevenson continued working with ongoing right knee symptoms. His employment with
the appellant came to an end in February 2009. After which he worked in various capacities,
with intervening periods of unemployment.
On 28 March 2012, Mr Stevenson claimed lump sum compensation of $7,500 in respect of
10 per cent permanent loss of efficient use of his right leg. Liability was declined by the
appellant.
On 17 November 2012, the matter came before the Commission. On 14 January 2013, a
Certificate of Determination was issued finding that Mr Stevenson suffered an injury to his
right knee on 25 May 2000 in accordance with ss 4 and 9A of the 1987 Act and that he had
provided the appellant with proper notice of his injury. The matter was remitted to the
Registrar for referral to an AMS for assessment of impairment arising from the injury and it
was found that Mr Stevenson had a total 10 per cent permanent impairment to his right leg.
The issues in dispute on appeal were whether the Arbitrator erred in:
(a) her “consideration and determination” of maters in dispute identified as “injury,
causation and substantial contributing factor” and “whether [Mr Stevenson] has made
a claim for compensation in accordance with the requirements of the Act”;
(b) her factual finding concerning the occurrence of relevant injury on 25 May 2000 and
suggested a reversal of the burden of proof, and
(c) her failing to consider “whether the injury was in the nature of a disease process and
if so whether the appellant was not the last [relevant] employer”.
Held: The Arbitrator’s determination was revoked in part. It was held that the applicant
had complied with the requirements of giving notice of injury and concerning the
making of a claim as prescribed by ss 61 and 261 of the 1998 Act.
Preliminary matter
1.
On 13 March 2013, the appellant registered an appeal with the Commission against
the medical assessment. Commission records indicated that no determination had
been made as to whether that appeal should proceed. This was relevant to the order
made on appeal confirming the Arbitrator’s order of remitter.
20
Fresh or additional evidence
2.
Mr Stevenson sought to adduce documentary evidence as fresh or additional evidence
on appeal, which he unsuccessfully sought to admit during the Arbitration. That
evidence was a letter, dated 11 December 2000, sent by the appellant to Mr
Stevenson. The letter stated that “Council has accepted liability for this claim”. The
appellant opposed the admission of this evidence.
3.
No explanation was given on the latest application for Mr Stevenson’s failure to
adduce the evidence earlier, nor was there such an explanation provided to the
Arbitrator when he sought to admit the evidence. In those circumstances, the
Commission was not satisfied that the document was not available to Mr Stevenson,
and could not reasonably have been obtained by him, before the proceedings
conducted before the Arbitrator as is required by the terms of s 352(6) of the 1998 Act
[20].
4.
Bearing in mind that the party seeking leave on appeal was the successful party at first
instance, and having regard to the Deputy President’s conclusions with respect to the
merits of the appeal generally, it was concluded that the interest of justice did not
require that leave be granted to allow the evidence to be admitted (CDJ v VAJ [1998]
HCA 67; 197 CLR 172) [23]-[24].
The Arbitrator’s finding as to injury
5.
The appellant correctly stated that proof of the occurrence of injury depended upon
acceptance by the Arbitrator of the evidence of Mr Stevenson. The Arbitrator dealt with
the question of “injury” and the question of Mr Stevenson’s credit as a witness.
Following a consideration of Mr Stevenson’s evidence, including his responses in
cross-examination, the Arbitrator concluded that he was a witness of truth. The
Arbitrator reached that conclusion notwithstanding matters raised on behalf of the
appellant concerning apparent inconsistencies as to dates and description of the
occurrence of injury. The Arbitrator addressed the evidence and arguments raised on
behalf of the appellant and had stated reasons for her acceptance of Mr Stevenson’s
evidence concerning the occurrence of injury [49]. (Whiteley Muir & Zwanenberg Ltd v
Kerr (1966) 39 ALJR 505)
6.
The Arbitrator’s rejection of orthopaedic surgeon, Dr Smith’s opinion, that Mr
Stevenson’s degenerate right knee was “non-work related”, was founded, in part, upon
her conclusion that Dr Smith did not have a “thorough history”. The Arbitrator also
rejected Dr Smith’s view that the “aggravation” of his right knee arthritis which occurred
in 2000 had “resolved”. The Arbitrator’s reasoning demonstrated no relevant error and
the appellant’s argument that her finding concerning the occurrence of injury was
rejected [50].
Notice of injury and making of a claim
7.
The relevant injury occurred, as found by the Arbitrator, on 25 May 2000. In those
circumstances, requirements as to notice of injury are prescribed by s 61 of the 1998
Act [52]. The Arbitrator, following an assessment of the evidence and a determination
as to the credibility of Mr Stevenson’s evidence, accepted that Mr Stevenson had
made a report to his then supervisor regarding the injury. That conclusion was one
open to the Arbitrator on the evidence. It was suggested by the appellant that the
Arbitrator’s reasons demonstrated that she had in some way reversed the onus
concerning this matter; that submission was rejected. It was appropriate that the
Arbitrator, when evaluating the evidence concerning the matter in dispute, made the
21
observation that there was an absence of evidence concerning the issue presented on
behalf of the appellant [54].
8.
The evidence established that Mr Stevenson was referred by her general practitioner,
Dr Shaw, for conduct of an x-ray, which took place on 1 September 2000. It was open
to inference, and on this appeal it was concluded, that the commencement of
treatment concerning Mr Stevenson’s right knee injury received in May 2000, occurred
on a date prior to the conduct of the x-ray examination. It was Mr Stevenson’s
evidence that he had, before pursuing treatment, arranged to lodge a claim through his
supervisor for the purpose of obtaining a claim number. Having regard to the date of
the x-ray examination it was clear that, should Mr Stevenson’s evidence be accepted,
notice of that claim had been made within six months of the occurrence of injury [56].
9.
The state of that evidence, together with Mr Stevenson’s evidence, permitted the
conclusion that a claim had been made as required by the statute shortly following the
subject injury. In those circumstances, Mr Stevenson, having made a claim in 2000,
was entitled to the benefit of the provisions of s 261(3) and was thus taken to have
complied with his obligations as to making a claim [58].
Causation and employment as a substantial contributing factor
10.
The present facts concerned injury occurring to a worker at his place of work, during
working hours whilst performing duties. The injury came about, as accepted by the
Arbitrator, by reason of the failure of a ladder causing Mr Stevenson to fall. Those facts
established beyond doubt that employment was a substantial contributing factor to
injury. The Arbitrator’s conclusion concerning the requirements of s 9A was correct
and was not disturbed on appeal [63]. (Van Wessem v Entertainment Outlet Pty Ltd
[2010] NSWWCCPD 97; 9 DDCR 351)
Disease
11.
No argument concerning the “disease” provisions of the legislation was advanced at
the hearing. In the circumstances, the appellant could not raise the issue, with respect
to whether the Arbitrator was required to determine whether injury was in the nature of
a disease process and, if so, whether the appellant was not the last employer for
whom the worker carried out work to the nature of which any such disease is due, on
appeal given that it was bound by the manner in which argument was presented
before the Arbitrator (Metwally v University of Wollongong (No 2) [1985] HCA 28; 59
ALJR 481). In those circumstances, the arguments advanced concerning this question
were rejected [64].
22
Drive Recruit Pty Ltd v Back [2013] NSWWCCPD 32
Concurrent employment; casual employment; essential features of a contract of
employment; calculation of current weekly wage rate, average weekly earnings, and
probable earnings; ss 42(7), 43(1)(e) and (f) of the 1987 Act; ability to earn; entitlement to
weekly compensation; assessment of evidence; partial incapacity; orders inconsistent with
the findings made; non-compliance with Practice Direction No 6; unsatisfactory written
submissions by appellant; appeal unnecessarily protracted by appellant’s conduct; costs on
appeal
Roche DP
31 May 2013
Facts:
The respondent worker, who had an intellectual disability, Wayne Back, registered with two
employment agencies, Select Australia Pty Ltd (Select) and the appellant employer, Drive
Recruit Pty Ltd (Drive).
He first worked for Select as a labourer/driver on 2 November 2008 doing furniture removals,
work he continued on a casual basis for two or three days per week until sometime in the
week ending 12 December 2008. Though it was not known exactly how many hours or days
he worked for Select, it was agreed that he earned $2,642 between 2 November 2008 and
12 December 2008. Because he wanted to work five days per week, he started similar work
with Drive on 15 December 2008, with the intention of continuing to work for Select.
On 16 December 2008, his second day with Drive, Mr Back injured his non-dominant right
shoulder while lifting a washing machine. He reported the injury, was certified unfit, and did
not return to work. It was agreed that he earned $371 for his two days’ work with Drive.
Mr Back’s shoulder symptoms did not resolve and he had surgery on 22 September 2010.
He was certified fit for suitable duties on 3 March 2009.
Drive’s insurer, CGU Workers Compensation (NSW) Ltd, accepted liability for the injury and
paid voluntary weekly compensation at the rate of $336 per week until 15 July 2011. It
stopped payments on the ground that Mr Back had a capacity to earn more than his preinjury earnings with Drive.
Mr Back alleged that, at the time of his injury, he was engaged in concurrent contracts of
employment with Drive and Select, and that his earnings were his combined earnings with
both employers (ss 42(7) and 43(1)(b) of the 1987 Act). This gave a figure of $811 per week,
which was arrived at by adding his average weekly wage with Select ($440) (calculated by
using an estimate of the hours worked multiplied by an hourly rate of $20) added to his $371
for two days’ work with Drive. It was argued that $811 was his current weekly wage rate,
average weekly earnings and his probable earnings but for injury.
The matter came before the Commission and a Certificate of Determination was issued on
23 November 2012. The Arbitrator found that:
(a)
as at 16 December 2008, Mr Back had concurrent employment with Select and
Drive;
(b)
but for his injury, Mr Back would have continued to work for Drive and Select
whenever he was offered work;
23
(c)
Mr Back sometimes worked 11.5 hours per day with Select and sometimes 10
hours per day. Taking an average of 10.75 hours at $20 per hour gave average
earnings of $215 per day or $430 per week (for a two day week) with Select;
(d)
Mr Back’s “total average weekly earnings” with both employers was $747 per
week, which figure was also his probable earnings but for the injury, and
(e)
Mr Back’s ability to earn was nil, and he was entitled to the maximum statutory
rate payable to an injured worker with no dependants, which amount was proper
in the circumstances, and there was no reason to exercise her discretion.
The issues in dispute on appeal were whether the Arbitrator erred in:
(a)
finding that Mr Back was engaged in concurrent employment with Select and
Drive at the time of the injury;
(b)
her calculation of probable earnings but for injury;
(c)
determining that Mr Back had no ability to earn;
(d)
her assessment of the medical and vocational evidence;
(e)
determining Mr Back to be entitled to compensation of $381.40 per week from
3 March 2009 to 31 March 2009 and 1 April 2009 to 21 September 2009, and
(f)
determining Mr Back to be entitled to compensation of $747 per week from
22 September 2009 to 14 December 2010.
Held: The Arbitrator’s determination was revoked and the matter was remitted to a
different Arbitrator for re-determination.
Concurrent Employment
1.
There are four essential features of a contract of employment (The Modern Contract of
Employment, Ian Neil SC and David Chin, 2012, Lawbook Co, (Neil and Chin)). Those
features are discussed in detail at pages 1–3 in Neil and Chin and may be summarised
as follows:
(a)
there can be no employment without a contract (Lister v Romford Ice & Cold
Storage Co Ltd [1956] UKHL 6; [1957] AC 555 at 587);
(b)
the contract must involve work done by a person in performance of a contractual
obligation to a second person (Abdalla v Viewdaze (2003) 122 IR 215 at [23]).
That is because the essence of a contract of service is the supply of the work
and skill of the worker (Humberstone v Northern Timber Mills [1949] HCA 49;
(1949) 79 CLR 389 at 404–405);
(c)
there must be a wage or other remuneration, otherwise there will be no
consideration (Ready Mixed Concrete (South East) Ltd v Minister of Pensions
and National Insurance [1968] 2 QB 497 at 515), and
(d)
there must be an obligation on one party to provide, and on the other party to
undertake, work. The obligation required to constitute a contract of employment
is that:
“the putative employer be obliged to pay the putative employee in
accordance with the terms of the contract for services reasonably
demanded under it, and that the putative employee be obliged to perform
such services. That is as much so where the service consists of standing
and waiting as where it is active” (Forstaff Pty Ltd v Chief Commissioner of
24
State Revenue (2004) 144 IR 1 at [91]; see also Wilton v Coal & Allied
Operations Pty Ltd [2007] FCA 725; (2007) 161 FCR 300 at [162]). [24]
2.
Without more, the mere act of “registering” for work with two labour hire companies, as
Mr Back did, did not create concurrent contracts of employment with those companies.
It merely meant that Mr Back was available to accept such offers of work as those
companies may have made. Select regularly offered Mr Back work between
2 November 2008 and (about) 10 December 2008. He accepted those offers by
attending at the time and place directed. On each occasion he attended, a contract of
employment was created and he was paid for the work done. Drive offered him no
work until 15 December 2008 [30].
3.
The only conclusion open on the evidence was that, as at 16 December 2008, Mr Back
was employed under a contract of service with Drive but had no contract of service
with Select. This was confirmed by Mr Back’s evidence that, if Select required him, he
would receive a text message to ring in to get the details about the job. When he did
that, he could either accept it or reject it. The text message was effectively an offer of
work [34]. It followed that the Arbitrator erred in finding that Mr Back was employed
under concurrent contracts of service at the time of his injury [35].
4.
Mr Back was clearly a casual worker within the terms of s 43(1)(e). He was a worker
whose contracts of service were mainly for separate periods, each of which was of not
more than five days in the same industry. He had several serial or successive shortterm contracts of employment rather than two concurrent contracts [36].
Earnings
5.
The Arbitrator’s finding that the current weekly wage rate, average weekly earnings
and probable earnings but for the injury were $747 was not properly explained and
was wrong. The only way she could have arrived at that figure was by adding $430 to
$317. That result was not supported by the evidence and was not a figure urged by
either party. While it may well be that the error resulted from a “slip”, it was not open to
correct that error on appeal under the slip rule. The matter had to be properly
considered in light of the submissions made on appeal [46].
6.
In any event, even if $747 (or $811) was the correct figure for probable earnings but
for injury and for average weekly earnings, it was not the correct figure for the current
weekly wage rate because it had failed to calculate the “prescribed proportion”, as
required by s 42(1)(d) in circumstances where (as in this case) there is no evidence of
the award rate. The prescribed proportion is 80 per cent of the average weekly
earnings. It followed that Mr Back’s earnings must be re-determined [47].
Ability to earn
7.
The employer’s medical evidence (from Dr Blue) was that Mr Back was not
significantly incapacitated for work. Dr Blue based his opinion on his assessment that
Mr Back presented with contrivance, particularly in view of his hands being calloused.
He thought Mr Back was fit to work as a general farm-hand, avoiding excessive lifting,
as a retail assistant without restriction, and as a general labourer and a truck driver. He
was unable to work as a heavy furniture removalist [77].
8.
The Arbitrator gave Dr Blue’s evidence less weight than the medical evidence
tendered by the worker because she did not think that the state of the worker’s hands
was an indication that he had been involved in activities outside his restrictions. She
25
also noted that there was no evidence that the worker was doing more than he had
disclosed [78]. These findings were open and disclosed no error [79].
9.
The Arbitrator was perfectly entitled to take into account the fact that Dr Blue had not
discussed with the worker the tasks required in the alternative jobs identified as being
suitable. Whether the job options identified were suitable required consideration of the
physical and intellectual requirements for those jobs. Dr Blue’s failure to discuss those
matters with Mr Back was directly relevant to the weight to be given to his report [80].
10.
The Arbitrator was well aware that Mr Back had been performing unpaid work on his
father’s farm and referred to that fact in her decision. Counsel made no submission at
the arbitration in this regard and it is not an error to fail to deal with an issue never put
(Brambles Industries Ltd v Bell [2010] NSWCA 162 (Bell)) [81], [100].
11.
The submission that the Arbitrator erred in accepting Mr Back’s evidence at “face
value” was baseless and was rejected. The Arbitrator had the opportunity of hearing
and seeing Mr Back give oral evidence and she accepted him to be a “truthful”,
“honest” and “forthcoming witness”. In light of those findings, it was open to her to
accept his evidence [83].
12.
Whether the vocational assessor consulted Mr Back’s nominated treating doctor, Dr
Perera, was not determinative. The fact remained that, as the Arbitrator noted, Dr
Perera did not provide a detailed report in which he discussed the physical and
intellectual requirements of the various job options suggested, but merely expressed
his approval in a summary “tick box” faxed to the insurer that included no examination
of the issues. In addition, as the Arbitrator further noted, his opinion pre-dated the
opinion from Dr Roberts, orthopaedic surgeon, that Mr Back’s progress was slow and
that he should seek alternative careers. These factors entitled the Arbitrator to give his
opinion “very little weight” and her conclusion disclosed no error [85].
13.
The Arbitrator was not obliged to “adopt” Dr Perera’s evidence as to the suitability of
the light duties recommended. Even if she had, that would not have resolved the case
because she was required to determine the availability of that work and Mr Back’s
prospects of obtaining and retaining such work (Summerson v Alcan Australia Ltd
[1994] NSWCC 24; 10 NSWCCR 571; Akawa Australia Pty Ltd v Cassells (2003) 25
NSWCCR 385; Mangion v Visy Board Pty Ltd [1991] NSWCC 1; 8 NSWCCR 175;
Cowra Shire Council v Quinn (1996) 13 NSWCCR 175; Nominal Defendant v Livaja
[2011] NSWCA 121). She assessed Mr Back’s prospects of obtaining and retaining
such work as “virtually nil” [86].
14.
The submission that the Arbitrator erred in failing to take into account Mr Back’s
employment history was not sustainable. First, counsel for the appellant made no
submission at the arbitration about Mr Back’s employment history in the retail industry
and the Arbitrator did not err in not referring to a matter that was not put (Bell) [87].
Second, the submission was completely without merit in any event. The evidence
dealing with Mr Back’s retail experience was found in two reports, neither of which
indicated why he had ceased work in the retail industry as an assistant butcher after
one month [88]-[89]. Mr Back did not deal with it in his statement and he was not
cross-examined about it. In these circumstances, it was difficult to see what useful
submission might have been made about Mr Back’s “retail experience”. Mr Back’s
other “employment history” was with Select and Drive in jobs that he was unfit to
perform [89].
15.
With respect to the position of customer service assistant, which the rehabilitation
provider had also assessed as suitable for Mr Back, the Arbitrator accepted Mr Back’s
26
evidence that, as a result of his (intellectual) disability, he would have difficulties using
a computer, with customer service, and with handling cash. These reasons provided a
valid basis for the Arbitrator’s conclusion [90].
16.
The Arbitrator was satisfied that Mr Back could not realistically work in the positions
identified by the vocational assessors for any length of time and that he had very little
chance of securing employment in those areas given his limitations with driving and
steering, and his lack of customer service experience. That finding was also open and
disclosed no error [94].
17.
Alleged inconsistencies in Mr Back’s evidence were not identified in Drive’s
submissions, and the submission that the Arbitrator erred by failing to take them into
account was therefore unpersuasive and unhelpful [95].
18.
The fact that Mr Back is left-hand dominant was of limited relevance to his capacity to
earn and, though counsel did refer to it at the arbitration, as no particular submission
was made about it, the Arbitrator did not err in not dealing with it [96].
19.
The Arbitrator referred to and considered the evidence of the physiotherapist. As the
Arbitrator accepted Mr Back as a truthful witness, it was not necessary for her to say
more about that evidence. As there was no evidence of “abnormal illness behaviour”,
Drive’s submission that the Arbitrator failed to have regard to this was misleading and
false [97]-[98].
20.
The submission that the Arbitrator failed to take into account “the absence of evidence
in relation to [Mr Back] job seeking” was based on a false assumption that there was
no evidence on that point. That submission was incorrect and misleading [99].
21.
The absence of a record in Dr Ting’s (Mr Back’s current treating doctor) clinical notes
that he complained about his right shoulder since he moved to Queensland in
November 2011 was not the subject of submissions at the arbitration and could not be
the subject of complaint on appeal (Bell) [101].
22.
The submission that Mr Back’s evidence was “unreliable and insufficient” to support a
finding that he had no ability to earn ignored the fact that the Arbitrator accepted Mr
Back’s evidence as to the restrictions caused by his injury, which made him unfit for
his pre-injury employment, and accepted the difficulties he experienced in obtaining
employment because of his intellectual disability, difficulties that had not prevented him
from obtaining employment with Select and Drive [102].
23.
While the Arbitrator erred in making an award of partial incapacity in circumstances
where she found Mr Back had no capacity to earn, it was not open on appeal to
substitute a finding of total incapacity because such a finding in the present case,
where Mr Back had a theoretical capacity to perform some activities, depended on an
assessment of his ability to earn in the labour market reasonably accessible to him and
an application of the principles in Lawarra Nominees Pty Ltd v Wilson [1996] NSWSC
584; (1996) 25 NSWCCR 206. It was not possible to conduct that assessment on
appeal because there was very limited evidence of Mr Back’s attempts to obtain
employment in Queensland [106].
Calculation of weekly compensation
24.
As the matter had to be re-determined, it was not necessary to deal with the
submissions on the calculation of weekly compensation in any detail. However, it was
noted that the Arbitrator erred in making an award under s 36, between 22 September
27
2009 and 14 December 2010, because it exceeded 26 weeks. As Mr Back had been
awarded compensation under s 36 for the 11 weeks from 16 December 2008 to 2
March 2009, he was only entitled to compensation under that section for a further 15
weeks [109].
Conclusion
25.
The general conduct of the appeal and, in particular, the failure to comply with Practice
Direction No 6, was unsatisfactory [112]. The disposition of the appeal was
unnecessarily protracted because of the appellant’s conduct. Though the appellant
succeeded on the concurrent employment issue, it was ordered to pay the respondent
worker’s costs of the appeal [117].
28
Karim v Poche Engineering Services Pty Ltd [2013] NSWWCCPD 24
Journey claim; s 10(1A) of the 1987 Act; whether personal injury (resulting in death)
attributable to the serious and wilful misconduct of the worker; excessive speed; riding motor
bike at double the speed limit in a suburban area; meaning of serious and wilful misconduct;
failure to comply with Practice Direction No 6
Roche DP
8 May 2013
Facts:
On 24 May 2008, the worker, Angel Amado, was riding his Suzuki GSX R1000 motor bike
from his place of employment to his home. The worker’s best friend and colleague, Mr Alan
Bluont, had left work just ahead of him on that same day. As a provisional licence-holder, the
worker was not licensed to ride a bike of that engine capacity. After he crested a hill in
Stennett Road, Ingelburn (a suburban road with a speed limit of 60 km per hour) at a speed
found to be between 120 and 130 km per hour, he collided with a Holden Commodore (that
Mr Lynton was driving) that was making a legal U-turn in Stennett Road.
Mr Amado died from his injuries and his de facto partner, Joanne Karim, claimed
compensation under Pt 3 of Div 1 of the 1987 Act on behalf of herself and their daughter.
Accepting the evidence from the senior attending police officer, Sergeant Linda Bradbury,
the Arbitrator determined that the deceased caused the accident by virtue of his excessive
speed on a motor bike that he was too inexperienced to ride and which he was prohibited
from riding because of the status of his licence. The Arbitrator was satisfied that the high
speed at which the deceased rode his bike “was of such a character as to place the
deceased well within the exception to liability – in this case, the category of serious and wilful
misconduct”.
The Arbitrator did not accept that the respondent employer bore a “higher onus” to
demonstrate that “the deceased was aware of the actual risk of death in driving at such high
speed, and with such reckless disregard for his own safety”, but held that such awareness
was “intrinsic in the fact that [the deceased] chose to ride such a powerful machine at such
high speed”. The Arbitrator made an award for the respondent employer.
The issues in dispute on appeal were whether the Arbitrator erred in:
(a)
(b)
concluding that the deceased worker “was engaged in serious and wilful
misconduct which was the cause of his” death, and
giving insufficient weight to evidence in a later statement from Mr Alan Blount.
Held: The Arbitrator’s determination was confirmed.
Serious and wilful misconduct
1.
The Deputy President noted the following general principles at [12]-[16]:
(a)
the employer carries the onus of proof of establishing serious and wilful
misconduct (Johnson v Marshall Sons & Co Ltd [1906] AC 409 (Johnson);
Higgins v Galibal Pty Ltd t/as Hotel Nikko Darling Harbour (1998) 45 NSWLR 45
(Higgins));
29
(b)
The phrase “serious and wilful misconduct” comprehends more than negligence,
carelessness, or the mere disregard of orders (Johnson; Higgins). Breach of a
traffic regulation may or may not be sufficient: a carrier who was injured while
alighting from his truck, while it was double-parked on a public street, was found
not guilty of serious and wilful misconduct (Thomas v Shelley & Sons Cordial
Factory Pty Ltd [1965] WCR 104), but a worker who, having the opportunity to
stop, deliberately drove through a red traffic light at high speed was (Levin v
Moulhis [1965] WCR 177);
(c)
In Johnson, Lord Atkinson observed (at 416–17) that not every violation by a
worker of a rule would be regarded as necessarily amounting to serious
misconduct. For “serious” to have any force, it must mean:
“at least that where the risk of loss or injury resulting to any person or thing
from the doing of any particular act is very remote, or where that loss or
injury, even if probable, would be trivial in its nature and character, the doing
of that act, however wilful, would not amount to ‘serious misconduct’ within
the meaning of this statute, unless indeed the indirect influence of the act
done on the discipline of the factory is to make every transgression serious.”
(d)
The word “wilful” imports that the misconduct was deliberate, not merely a
thoughtless act on the spur of the moment (Johnson), or something done “with
the intention of being guilty of misconduct” (Bist v London & South Western
Railway Co [1907] AC 209). The worker must have had knowledge of the risk of
injury and, in light of that knowledge, proceeded without regard to the risk (Sawle
v Macadamia Processing Co Pty Ltd [1999] NSWCC 26; 18 NSWCCR 109
(Sawle); Whittingham v Ascott Air Conditioning Pty Ltd [2010] NSWWCCPD 36);
(e)
The gravity of the conduct is not to be judged from the consequences of the act.
As Lord James of Hereford explained in Johnson at 414:
“A man may be told not to walk on the grass, he does so, he slips up, and
breaks his leg. The consequences are serious, but the conduct is not so.”
2.
The position is summarised in the following statement by O’Meally CCJ in Sawle at
[24]:
“Serious and wilful misconduct is conduct beyond negligence, even beyond
culpable or gross negligence. In order to establish serious and wilful misconduct,
it must be demonstrated that the person performing an act or suffering an
omission knows it will cause risk of injury, or acts in disregard of consideration
whether it will cause injury. The word ‘wilful’ connotes that the applicant must
have acted deliberately. As it seems to me, in order to establish serious and
wilful misconduct, a person accused of it must be shown to have knowledge of
the risk of injury and, in the light of that knowledge, proceeded without regard to
the risk.” [17]
3.
The Arbitrator’s reference to the “higher onus” was a reference to a submission made
by the appellant’s counsel at the arbitration that the respondent had to prove that the
deceased was aware not just of the risk of injury, but the risk of death from riding in the
manner in which he chose to do and, as the respondent failed to prove that matter, its
s 10(1A) defence failed [19].
4.
Section 10(1A) states that sub-s (1) does not apply if the “personal injury” is
attributable to the serious and wilful misconduct of the worker. The provision requires
30
that the worker be aware of the risk of injury, not the ultimate sequelae of the injury
[20].
5.
In any event, the Arbitrator found that “such awareness” (that is, the awareness of the
risk of death) was “intrinsic in the fact that [the deceased] chose to ride such a
powerful machine at such high speed”. It was nonsense to suggest that a motorcyclist,
whether experienced or inexperienced, would not be aware of the risk of serious injury
(or death) from riding a high-powered bike at double the speed limit on a suburban
street [21].
6.
It was open to the Arbitrator to find that it was the deceased’s actions (in riding at high
speed), not Mr Lynton’s driving, that caused the accident. In any event, as the
Arbitrator noted, even if Mr Lynton’s conduct contributed to the accident, that would not
have prevented a finding that the personal injury (that caused the death) was
attributable to the deceased’s serious and wilful misconduct. That was because, unlike
s 14, s 10(1A) does not require that the injury is “solely attributable” to the worker’s
serious and wilful misconduct and an accident can be attributable to more than one
cause [27].
7.
The Arbitrator’s conclusion that the deceased “was well aware of the danger he was in,
but chose to ignore it” was open on the evidence and disclosed no error [28].
8.
The conduct was serious because the deceased was riding at about double the legal
speed limit on a suburban road on a high-powered bike that he was not licensed to
ride. Leaving aside that the deceased was not permitted to ride the bike, which, on its
own may or may not have amounted to serious misconduct, the speed at which he
rode the bike, and the area in which he rode it, carried a substantial risk of serious
injury (or death) to himself and others [34].
9.
The conduct was wilful in that the deceased deliberately rode at high speed in
circumstances where he was riding home via his usual route and was therefore
familiar with the road and the speed limit. It followed that it was unlikely in the extreme
that he had inadvertently or accidently exceeded the speed limit. The compelling
inference was that he deliberately and knowingly road his bike at high speed in
circumstances where the “clear inference” was that he was well aware of the risks
involved, but chose to ignore those risks [35].
10.
The Arbitrator’s conclusions were open and disclosed no error [37].
Mr Blount’s Evidence
11.
The appellant submitted that Mr Blount’s evidence (in his latest statement of three)
was that the deceased was not travelling in excess of 120 km per hour and was not
engaged in a race with Mr Blount at the time of the accident (which was inconsistent
with his earlier statements). It was submitted that this evidence was not challenged in
cross-examination. It was also argued that these factors militated against the
deceased having the requisite intent and knowledge of the risk of injury and that the
Arbitrator did not take this into account [40].
12.
There is no rule of law requiring that evidence not challenged in cross-examination
must be accepted – a judge (or arbitrator) can reject evidence that has not been crossexamined on if, for example, it was inconsistent with other evidence that he or she
accepted, or if it was inherently incredible (Spencer v Bamber [2012] NSWCA 274).
That principle is especially applicable in the Commission, where cross-examination is
only allowed by leave (Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA
31
34) and where all evidence must be filed in advance of the hearing (see generally
NSW Police Force v Winter [2011] NSWCA 330; Quadi v The Reject Shop (Aust) Pty
Ltd [2008] NSWWCCPD 3) [46].
13.
There was no basis for an adverse inference to be drawn from Mr Blount not having
been summoned for cross-examination. That was especially so where Mr Blount’s
statements were inconsistent with each other. In these circumstances, it was for the
party seeking to rely on his later version of events to call him to explain the
inconsistencies. Moreover, it was wrong to assert that the respondent had not
challenged the assertions in Mr Blount’s latest statement [47].
14.
The submission that the concession (by counsel for the applicant at the arbitration)
that the deceased was travelling too fast “in the circumstances” depended on an
acceptance of the assertion that Mr Lynton drove dangerously. The Arbitrator did not
make that finding. Moreover, such a finding was not open and would have been
contrary to the accepted evidence [57].
15.
While it was correct that, after noting the content of Mr Blount’s third statement, the
Arbitrator did not refer to it again, he did consider the thrust of the allegation in that
statement, namely, that Mr Lynton made his U-turn east of Inglis Road and, therefore,
in a dangerous position relative to the hill crest. After a detailed analysis of the
evidence, he concluded that Mr Lynton made his U-turn “in the vicinity of the
intersection [of Stennett Road] with Inglis Road”. While this was slightly further east
than Mr Lynton said in his statement, it was still well clear of the hill crest and was a
reasonable and safe position at which to make the turn. Other than the challenge
based on Mr Blount’s third statement, the Arbitrator’s analysis and conclusion as to
where Mr Lynton made his U-turn had not been attacked [58].
Conclusion
16.
The Arbitrator’s conclusions were open on the evidence and were correct. It was clear
beyond doubt that the deceased’s personal injury (and death) was attributable to his
serious and wilful misconduct in riding his bike at about double the speed limit in a
suburban area [59].
32
MacLeod v John Radcliffe and Andrew Lye t/as Dripping Wet Surf Company [2013]
NSWWCCPD 26
Whether injury received in the course of employment; application of the principles in
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Keating P
16 May 2013
Facts:
The appellant, Mr MacLeod, was employed by the respondent as a casual shop assistant,
for a period of six weeks over the 2010/2011 Christmas/New Year period. It was agreed he
would work six days per week commencing work at 9am and finishing at 6pm.
On 28 January 2011, at approximately 7.30am, Mr MacLeod was surfing with a friend, Todd
Baker, at Manly beach when he fell from a stand up paddleboard (SUP), which belonged to
his employer. He suffered a blow to the head which resulted in a fracture of the C6 vertebral
body and fracture subluxation of the right C6-C7 posterior intervertebral joint. He underwent
a spinal fusion on 30 January 2011.
On 14 February 2011, Mr MacLeod completed a WorkCover claim form claiming weekly
compensation from 31 January 2011. He claimed that his employer had directed him to gain
experience with SUPs by using rental or demonstration SUPs before work. The employer
denied it had directed Mr MacLeod to trial SUPs. On 21 March 2011, the respondent’s
insurer issued a s 74 notice denying liability as the injuries suffered did not arise out of or in
the course of employment within the meaning of s 4 of the 1987 Act. It also alleged that the
requirements of s 9A of the 1987 were not satisfied.
On 10 November 2011, Mr MacLeod’s solicitors made a claim on his behalf in respect of the
injuries sustained on 28 January 2011, for weekly payments of compensation from 28
January 2011 to 28 July 2011 and lump sum compensation in respect of 29 per cent whole
person impairment concerning the injury to the cervical spine pursuant to ss 66 and 67 of the
1987 Act. On 27 July 2012, Mr MacLeod lodged an Application in the Commission.
The Arbitrator found that Mr MacLeod had not discharged the onus of proving that his injury
was sustained in the course of his employment and entered an award for the respondent.
The appellant alleged that the Arbitrator:
(a) made an error of fact in determining that the injury was a leisure activity prior to work;
(b) made an error of law in deciding the question of whether the applicant was directed
to trial the SUP, and
(c) made an error of law in deciding that the injury did not arise out of or in the course of
employment.
Held: Arbitrator’s determination confirmed
Ground one
1.
The submission that the Arbitrator erred by failing to attach sufficient weight to the
certificate of Dr Gray (actually signed by Dr Daskopoulos) or by accepting the
certificate as decisive in resolving the factual dispute between the parties, particularly
33
as it was accepted as a contemporaneous document, was rejected [83].
2.
The most immediate contemporaneous records were the notes of Manly Hospital
where the worker was taken immediate after the accident. Those notes recorded the
circumstances of the accident but made no reference to the accident being work
related or any use of the SUPs as directed by the employer. It was accepted there
were reasons for not drawing any adverse inference in relation to such omission as the
worker had been in a serious accident and was no doubt more concerned with
treatment than a detailed account of any discussions with his employer. He had also
received a blow to the head resulting in some degree of amnesia [84]-[85].
3.
It was reasonably inferred from the medical certificate that within a matter of days after
the accident Mr MacLeod had given a history which was consistent with his evidence.
However, the notation recorded was merely Mr MacLeod’s belief that he had been
directed to trial the employer’s SUPs. Whether or not that belief was an accurate
statement of the fact was for the Arbitrator to determine [86].
4.
The Arbitrator described the notation contained in the medical certificate as “the
strongest evidence in favour of Mr MacLeod’s case”. However, it was inferred from the
Arbitrator’s decision that he concluded that the certificate alone was not of sufficient
weight to tip the balance in Mr MacLeod’s favour in terms of resolving the factual
dispute [87].
5.
There was no substance to the submission that the Arbitrator incorrectly interpreted
Ms Judd’s evidence. Ms Judd stated that she was a friend of Mr MacLeod. On the
occasions that she went surfing with him it was at Mr MacLeod’s invitation. She had
not previously expressed any interest in purchasing a SUP prior to Mr MacLeod’s
invitations. Her evidence could not possibly have led to a conclusion that there was
any legitimate expectation that she was a potential purchaser [88].
6.
Mr MacLeod submitted that the store manager, Mr Plim’s, evidence (which directly
contradicted Mr MacLeod’s evidence) was contradictory and should not have been
preferred to Mr MacLeod’s evidence on the critical issue, because on the one hand Mr
Plim said that he had dismissed the idea of using trials as a means of enhancing the
sale of SUPs, yet on the other hand he provided a trial on one occasion [89].
7.
It was not accepted that Mr Plim’s evidence on the issue was contradictory. The
Arbitrator correctly concluded that Mr Plim’s use of the SUPs on the occasion referred
to was not undertaken with the prospect of a purchase. Firstly, the gentlemen owned
their own SUPs. Secondly, the surf was before working hours. Thirdly, they were
members of a South Australian paddleboard club. Fourthly, they had free time whilst in
Sydney and wished to see parts of Manly by paddleboard. Last, Mr Plim regarded it as
a social occasion and has remained friends with one of the gentlemen [90].
8.
Mr MacLeod submitted there was another reason for preferring his evidence to Mr
Plim’s due to a credit issue in relation to Mr Plim’s evidence. In oral evidence, Mr Plim
denied that he was aware that Mr MacLeod had been using the respondent’s SUPs
with his friends. However, in his written statement he confirmed that he was aware that
the practice had taken place. When the discrepancy was drawn to his attention he
readily conceded that he had made an error when giving evidence and agreed that his
earlier written statement on the issue was correct, namely, that he was aware that the
worker had been using the respondent’s SUPs in the company of his friends. After
hearing and seeing Mr Plim give evidence, it was open to the Arbitrator to conclude on
balance that the discrepancy did not seriously diminish the weight to be attached to Mr
Plim’s evidence [91].
34
9.
It was open to the Arbitrator to find that the party on whom the burden of proof lies in
relation to any averment made by him has failed to discharge that burden: Suvaal v
Cessnock City Council [2003] HCA 41; 77 ALJR 1449, Rhesa Shipping Co SA v
Edmunds (“The Popi M”) [1985] 1 WLR 948 [92].
10.
The Arbitrator was correct to conclude that the principles in Hatzimanolis v ANI
Corporation Ltd [1992] HCA 21; 173 CLR 473, in the circumstance of this case, did not
assist in resolving the critical question concerning any directions given to Mr MacLeod
and the trialling of the SUPs [94].
11.
In Hatzimanolis, the High Court was concerned with the principles to be applied in
circumstances where the worker was injured during an interval occurring within an
overall period of work and with activities that were engaged in with the employer’s
inducement or encouragement [95].
12.
The evidence established that Mr MacLeod was engaged to work six days per week
between 9am and 6pm. The accident occurred before normal working hours. The
Arbitrator was correct to reject Mr MacLeod’s Hatzimanolis submission on that basis
alone. Even if the injury was sustained in an interval between two discrete periods of
work it was still necessary for the worker to establish that he was encouraged or
induced to engage in that activity by his employer at the time of the accident [96].
13.
The evidence relied on by the worker to establish an implied term was the concession
by Mr Plim that the use of equipment would be of benefit, Mr Plim’s use of the SUPs
with the South Australian gentlemen and the discussions in relation to the
demonstration method of selling SUPs [97]. This evidence did not support a
conclusion that Mr MacLeod was encouraged or induced to trial SUPs. Although Mr
Plim agreed that trialling the equipment would be of benefit there was no evidence that
he communicated that to the worker. The evidence was contrary. The Arbitrator’s
conclusion that the episode involving the South Australian gentlemen was
predominantly a social occasion was open on the evidence [98].
14.
The Arbitrator correctly observed that whether the activity engaged in by the worker at
the time of the accident was at the direction of his employer, involved an acceptance of
the worker’s evidence. It was inferred from the decision that the Arbitrator did not
accept the worker’s evidence on this point for two reasons. First, he concluded that the
worker only used the SUPs when he was in the company of friends and he was
socialising. And second, he concluded that Mr MacLeod had misconstrued his
conversation with Mr Plim concerning the use of the SUPs [99].
15.
The Arbitrator considered the circumstances which Mr MacLeod alleged supported his
evidence. This included the Arbitrator’s acceptance that Mr MacLeod had used the
SUPs before his accident but determined that those occasions were socialising. He did
not accept that there was any expectation of Ms Judd purchasing an SUP. He
acknowledged the significance of the contemporaneous hospital records but was not
satisfied that the medical certificate issued at the hospital was decisive in resolving the
conflicting version of events. There was no other evidence to support the claim that
trialling the SUPs was an express or implied term of employment [100].
16.
In circumstances where the Arbitrator had the advantage of seeing and hearing the
witnesses give evidence, respect and weight should be given to his to his conclusions;
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531. See also Abalos v Australian
Postal Commission [1990] HCA 47; (1988) 171 CLR 167; Devries v Australian National
Railways Commission (1993] 177 CLR 472.
35
Ground three
17.
Ground three did not add any additional issues for determination on appeal [104].
36
AHG Services (NSW) Pty Ltd v Milojkovic [2013] NSWWCCPD 25
Section 4 of the 1987 Act; personal injury; disease which is contracted in the course of
employment; obligation to state adequate/sufficient reasons for decision.
O’Grady DP
9 May 2013
Facts:
The appellant, AHG Services (NSW) Pty Ltd, was one of three employers of Mr Nenad
Milojkovic (the worker) between 2002 and 2010. The worker commenced employment with
Automotive Training Group (ATG), as an apprentice motor mechanic in 2002. Upon
completion of his apprenticeship in 2006 his services were transferred to an associated
company, Kumar Motors (Bankstown) Pty t/as Peninsular Holden (Peninsular Holden). That
employment ceased in 2008. The worker then discontinued his employment as a tradesman
and, for a number of months in 2008, underwent training with the New South Wales Police
Force at Goulburn. He resigned from that traineeship in September 2008. He was then
unemployed until he returned to his trade and commenced employment with the appellant on
12 January 2009. He remained in that employment until March 2010. He has not worked
since.
The worker alleged that, as a result of his employment duties with each of the three
employers, he had received injury to his back. The date of injury was particularised against
each employer as being “the period 2002 to 2006”. The evidence indicated that the worker
first began to notice problems with his back in or about 2006, as a result of lifting heavy
objects. It was not disputed that the worker had received a back disability, but each
employer denied liability.
The claim against the employers was defended on their behalf by the one solicitor. It
appeared that the insurers were of different identities and as a result a “lead” insurer was
appointed by agreement to conduct the defence. It appeared that, in the absence of relevant
agreement, no thought had been given to the likelihood of a conflict of interest. In the course
of submissions on this appeal, reference was made to the question of “apportionment”. That
subject, which necessarily raises conflict in the absence of agreement, was not touched
upon during proceedings before the Arbitrator. Another difficulty appeared to have arisen
given that the first and third respondents to the worker’s application had, without explanation,
not participated in the appeal. Nor had any submission been put on their behalf concerning
the failure of the Arbitrator to enter an award in favour of each of those respondents given
her ultimate finding that the appellant alone was to meet the terms of the award in favour of
the worker.
The matter came before the Commission and a Certificate of Determination was issued by
the Arbitrator on 22 January 2013. The Arbitrator made an award against the appellant for
payment of weekly benefits for total incapacity of the worker.
The issues in dispute on appeal were whether the Arbitrator erred in:
(a)
failing to provide adequate reasons for her finding that the worker suffered from
an injury of the nature of a disease of gradual process;
(b)
failing to provide a clear finding on the issue of injury generally;
37
(c)
failing to provide adequate reasons for her finding that the respondent was
effectively totally incapacitated as a result of his injury, and
(d)
failing to provide adequate reasons linking the worker’s injury to his subsequent
deterioration after ceasing employment.
Having regard to the submissions in support of the appeal, it was noted that the real
argument advanced was a suggestion that, not only were the Arbitrator’s reasons
“inadequate”, but that the evidence did not support the conclusions which she reached in the
course of that reasoning. The appellant also suggested error of law in the manner in which
the Arbitrator construed and applied s 4 of the 1987 Act, as it was prior to the 2012
amendments.
Held: The Arbitrator’s determination was revoked and the matter was remitted to a
different Arbitrator for re-hearing.
The Arbitrator’s findings as to “disease”
1.
The Reasons given by the Arbitrator for her finding concerning the occurrence of a
“personal injury namely a disease of gradual onset” were stated briefly and without
reference to the entirety of the evidence of orthopaedic surgeon, Dr Powell which, the
appellant argued, required consideration by the Arbitrator and an expression by her of
her evaluation of that evidence as a whole [40].
2.
The arguments advanced by the appellant concerning alleged deficiencies found in the
Arbitrator’s reasoning constituted an attack upon the sufficiency of those Reasons, a
concept which was addressed by Santow JA in Haris v Bulldog’s Rugby League Club
[2006] NSWCA 53 [41].
3.
The finding that the worker suffered “a personal injury namely a disease of gradual
onset” suggested the occurrence of a frank or discrete injury which had given rise to a
disease which had gradually progressed. That suggested that the Arbitrator’s
conclusion had been reached by reference to s 4(a) and (b)(i). The “personal injury”
was not identified by the Arbitrator other than, as stated by her: “[t]here was no frank
injury but the back would have been subjected to micro traumata” [45]. No relevant
disease that was said to be causally related to the “micro traumata” was identified by
the Arbitrator [46].
4.
The Arbitrator had found, as a fact, that employment related disease existed in
circumstances where Dr Powell expressly eschewed existence of any relevant
disease. His evidence did suggest a relationship between work duties and the
appearance of symptoms [47].
5.
The Arbitrator’s failure to make reference to the entirety of Dr Powell’s evidence was
misleading in respect of the general tenor of his evidence and its relevance to the
Arbitrator’s conclusion as to injury. Whilst an Arbitrator is not bound to accept all of the
evidence of a witness, but may accept part and reject other aspects of such evidence
(Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167), the present
circumstances presented two difficulties. First, the opinion of Dr Powell concerning the
limited relevance of work activity to the manifestation of symptoms was not addressed
by the Arbitrator. Secondly, a clear opinion expressed by Dr Powell was that existence
of the discal damage may not be explained by any relevant disease process. It was
thus clear that nothing stated in evidence by Dr Powell supported either the existence
of work caused disease (as found) nor any relevant aggravation other than that
concerning temporary provocation of symptoms [48].
38
6.
The Arbitrator failed to sufficiently state her Reasons for her finding that the worker
suffered an injury “being of the nature of a disease of gradual process” [49].
The Arbitrator’s “alternative finding”
7.
The Arbitrator expressed an “alternative finding” that “the injury was due to the nature
and conditions of employment with [the appellant]”. That finding was said to be
founded upon the evidence of Dr Giblin, orthopaedic surgeon, and Associate Professor
Sheridan, neurosurgeon. No further reasons were stated for reaching that “alternative”
finding [50].
8.
The Arbitrator’s statement that Associate Professor Sheridan’s evidence
“unequivocally” supported the worker’s claim that the “back condition is due to the
nature and conditions of his employment” plainly misstated the evidence. The only
observations found in that evidence concerning causation of injury was the statement
“as you know [the worker] injured his back during the course of his work as a motor
mechanic”, and later, where it was stated that the CT scan findings were “entirely
consistent with his symptoms and his work injury” [52].
9.
The appellant’s argument that Dr Giblin’s evidence should not be accepted because
the history relied upon was wrong, was rejected by the Arbitrator without there being
any reasons stated [53].
10.
The Arbitrator’s failure to address the matters raised by the appellant concerning the
probable inaccuracy in Dr Giblin’s history and those matters concerning Associate
Professor Sheridan’s evidence, lead to the conclusion that insufficient reasons were
expressed by the Arbitrator concerning the “alternative” finding that “the back condition
is due to the nature and conditions of [the worker’s] employment” [54].
Other matters
11.
A suggestion was made by the appellant in submissions that the Arbitrator, given a
particular finding that was the subject of challenge, should have “considered
apportionment”. That was clearly a reference to the Commission’s power to order
apportionment of liability in circumstances addressed by s 22 of the 1987 Act. Whilst
there was nothing before the Commission which indicated the existence or otherwise
of agreement among the employers concerning liability, it was clear that there existed
a real prospect that the terms of Rule 9 of the Revised Professional Conduct and
Practice Rules 1995 made by the Council of the Law Society of NSW may require that
the solicitors cease to act for all parties [56].
39