Issue 7: October 2017

Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260

(a) Whether the Arbitrator and the Deputy President failed to identify an “injury” for the purposes of ss 9 and 25 of the 1987 Act within the meaning of that term in s 4, leading to confusion in the application of s 9A.

(b) Whether there was insufficient proof to support the Arbitrator’s finding of a causal connection between psychological stress and an increased susceptibility to viral illness on the basis of a commonsense evaluation of the causal chain and that medical science did not deny a possible connection and whether, in making that finding, the Arbitrator overlooked material medical evidence.

(c) Whether the Deputy President’s reasoning processes were inadequate, in particular, whether there was no sufficient analysis of the medical evidence.

(d) Whether Mrs Christensen was denied procedural fairness because she did not have the opportunity to call evidence to meet Tudor Capital’s contention that the opinion of Associate Professor Richards (that death was caused by viral myocarditis) was based on the absence of evidence of a relevant pre-existing condition, the existence of which was confirmed by Professor Keogh’s and Dr Rainer’s evidence that the cause of death was HCM.

Held: Appeal allowed. Matter remitted to the Commission for redetermination.

As to issue (a), per McColl JA (Macfarlan and Payne JJA agreeing)

1. Mrs Christensen was required to identify an “injury” within the meaning of s 4 of the 1987 Act for the purposes of ss 9 and 25 and also establish that Mr Christensen’s employment with Tudor Capital was “a substantial contributing factor to the injury” within the meaning of s 9A(1), taking into account the matters specified in s 9A(2) to the extent that they were relevant. Failure to consider such factors by reference to the underlying facts involved a misconstruction of the provision and an error in point of law. ([301], [329], [335])

Badawi v Nexon Asia Pacific Pty Limited (t/as Commander Australia Pty Limited) [2009] NSWCA 324; 75 NSWLR 503; applied.

Bill Williams Pty Ltd v Williams [1972] HCA 23; 126 CLR 146 referred to.

2. The Deputy President erred in finding that the “injury” for the purposes of s 9 was Mr Christensen’s “experience of stress ... [making] him susceptible to the contraction of an infective virus.” In so finding, the Deputy President:

(a) made a finding of “injury” which differed from the “injury” the Arbitrator identified, being the “entry of the T cell lymphocytes into the myocardium”, and implicitly identified an operative error of fact on the Arbitrator’s part which, once recognised, should have been corrected; ([337], [338], [346]) and

(b) failed to undertake the precise consideration of the evidence, on a fact by fact basis, to determine whether Mr Christensen’s “experience of stress” or susceptibility to the contraction of an infective virus, could constitute an “injury” within the meaning of that term in s 4, and what, if any, physiological change or disturbance of Mr Christensen’s normal physiological state caused the “experience of stress”. This failure to engage with the statutory test in s 4 constituted an error in point of law and a constructive failure to exercise jurisdiction. ([339], [341], [345])

Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286; [2000] HCA 45; Military Rehabilitation & Compensation Commission v May [2016] HCA 19; 257 CLR 468 applied.

3. Once the Deputy President identified “the relevant injury” as Mr Christensen’s “experience of stress”, it was incumbent upon the Deputy President to determine whether the “experience of stress” was a “psychological injury” within the meaning of s 11A(3). Failure to consider this question was a constructive failure on the part of the Deputy President to exercise his jurisdiction to correct the Arbitrator’s errors. ([342], [344])

4. Alternatively, the Deputy President should have held that the Arbitrator had erred in law in failing to consider on a step by step basis which aspect of the process to which he referred in making his “injury” finding was the relevant “injury” for the purposes of s 4 of the 1987 Act and in what respect it was a consequence of a physiological change. ([345])

5. Absent isolation of the relevant “injury”, the Arbitrator could not properly undertake the evaluative process s 9A required of determining whether the employment concerned was a substantial contributing factor to the injury. The Deputy President, in turn, failed to recognise that was an operative error of law on the Arbitrator’s part and correct it. ([338], [346]–[359])

6. The Deputy President erred in failing to hold that the Arbitrator’s failure to consider for the purposes of s 9A, Mr Christensen’s pre-existing cardiac condition as being a factor that “played any part in his death” without considering the evidence of Tudor Capital’s experts and Associate Professor Richards as to the relevance of the underlying cardiac pathology, revealed he misunderstood Tudor Capital’s case such as to undermine the lawfulness of his decision in a fundamental way, such as to constitute an error in point of law. ([348]–[352])

7. The Deputy President also misapprehended Tudor Capital’s case in his reliance on Department of Education & Training v Sinclair [2005] NSWCA 465; 4 DDCR 206. ([353]–[359])

Department of Education & Training v Sinclair [2005] NSWCA 465; 4 DDCR 206; Department of Education & Training v Jeffrey Sinclair [2004] NSWWCPD 90 discussed.

As to issues (b) and (c), per McColl JA (Macfarlan JA agreeing)

8. While an unproven connection between psychological stress and an increased susceptibility to viral illness does not amount to positive knowledge, supplying some adequate ground for believing that the events are naturally associated. If medical science is prepared to say that something is possible, a judge, after examining the lay evidence, may decide that it is probable. However, a judge must not undertake the temporal inquiry in isolation from the medical evidence. ([369]–[383])

Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; 64 CLR 538; Ramsay v Watson [1961] HCA 65; 108 CLR 642; EMI (Aust) Ltd v Bes [1970] 2 NSWR 238; Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 discussed.

9. In examining the medical evidence, the Arbitrator overlooked material facts, or gave material facts undue or too little weight in deciding the inference to be drawn from the evidence as to the cause of Mr Christensen’s death. Such material facts included uncontested contemporaneous records, such as the autopsy slides, and the evidence of Professor Keogh and Dr Rainer. This constituted an error of law which the Deputy President failed to identify, resulting in a constructive failure on his part to exercise jurisdiction. ([384], [396])

EMI (Aust) Ltd v Bes [1970] 2 NSWR 238 applied.

10. There will be a failure to give adequate reasons amounting to a constructive failure to exercise jurisdiction where a decision-maker ignores evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker. ([387]–[388])

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 applied.

11. As there was starkly contrasting medical evidence, both the Arbitrator and the Deputy President were obliged to consider the evidence in a manner which entailed a rational analysis of the issues. ([389])

Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127 applied.

12. The Arbitrator failed adequately to have regard to significant aspects of Tudor Capital’s experts’ evidence in reaching his decision contrary to that evidence, and made errors of fact in the course of reaching his conclusion. The Deputy President ought to have held the Arbitrator had erred in law in failing to give adequate reasons. ([392]–[394])

13. In concluding that the Arbitrator adequately analysed the medical evidence, and in failing himself adequately to analyse that evidence, there was a constructive failure of jurisdiction on the Deputy President’s part. ([391]–[419])

As to issue (d), per McColl JA (Macfarlan JA agreeing, Payne JA dissenting)

14. Tudor Capital was not raising a new issue on appeal. ([303]) Alternatively, even if it was, it was not precluded from doing so as Coulton v Holcombe [1986] HCA 33; 162 CLR 1 applied. ([303])

15. Mrs Christensen was aware, or at least should have been aware, of the evidence and the arguments in Tudor Capital’s favour based on its experts’ evidence. ([302], [304]–[307]) She had an opportunity to respond to the evidence and arguments before the Arbitrator such that there was no denial of procedural fairness. ([427], [443])

1. The decisions under appeal did not satisfy s 352(3) of the 1998 Act. The appellant had no right of appeal under s 352. ([31])

2. Section 352(1) of the 1998 Act provides that a Presidential member may determine an appeal against a decision of the Commission constituted by a Commission Arbitrator. The decisions of the Registrar and his delegate were not decisions of the Commission constituted by an Arbitrator. The Acting Deputy President accepted the respondent’s submissions, that the appellant’s right of review of the decisions may more properly be exercised by seeking judicial review and declaration in the Supreme Court. The s 352 appeal was incompetent. ([32]-[35])

3. The appellant’s alternative appeal was pursuant to cl 125 of the 2016 Regulation, which provides that a party to an application who is dissatisfied with a decision of the Registrar as to a matter of law arising in the proceedings to determine the application may appeal to a Presidential member. ([36]-[37])

4. The absence in the 1998 Act of a right of appeal to the Presidential level from the Registrar’s decision under s 327(4) is consistent with the Legislature’s intention that review of the Registrar’s decision under s 327(4) should be by application to the Supreme Court in its Administrative Law Division pursuant to s 69 of the Supreme Court Act 1970. ([44])

5. The Acting Deputy President observed that headings to Parts and Divisions are regarded as part of the Act. The headings of the Part, the Divisions and Subdivisions in which cl 125 appears direct attention to the conclusion that the draftsman’s intention was that the appeals with which cl 125 is concerned are from matters the subject of Pt 17. Part 17 provides for costs to be assessed on application to the Registrar. The matters with which the reasons of the Registrar are to be concerned are matters arising out of the cost assessments the subject matter of Pt 17. (Silk Brothers Pty Limited v State Electricity Com (Vic) [1943] HCA 2; 67 CLR 1 and s 35(1)(a) of the Interpretation Act 1987 considered) ([45]-[52])

6. The application(s) the subject of cl 125 are those that derive from the decisions made under Pt 17. When cl 125 is read consistently with the scheme and provisions of the 1998 Act the right of appeal is confined to decisions of the Registrar concerning assessments of cost. That is the intention of the 1998 Act. ([55], [58]-[60])

7. Clause 125 is not a general right of appeal from decisions of the Registrar or his delegate. It did not authorise the present appeal from a decision by the delegate of the Registrar. ([61]-[62])

8. The decision by the Registrar to refer the application for reconsideration to be determined by the original decision maker is administrative in nature. Such a decision is not amenable to appeal under either s 352(1), because it is not an appeal from an Arbitrator, or cl 125, because it is not an appeal from a Registrar’s decision on a matter of costs. ([63])

9. There is no jurisdiction in a Presidential member of the Commission to review the decision of the Registrar or his delegate under s 327(4). ([64])

10. The appeal was misconceived and dismissed pursuant to s 354(7A)(b) of the 1998 Act. ([65])

1. The President considered the principles in respect of establishing factual errors (Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (Whiteley Muir); Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; 140 ALR 227; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 considered).  ([89]-[93])

2. The President rejected the appellant’s submission that the Arbitrator failed to consider evidence that the worker had no carer at the time of his injury and therefore dismissed the possibility that the injury to the right arm was sustained through overuse. As the appellant made no submissions to the Arbitrator regarding the absence of a carer, in the initial stages after his injury, as a factor contributing to the alleged overuse of his right arm, the Arbitrator could not have erred in failing to address it: Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111. ([94]-[95])

3. The President also rejected the submission that the Arbitrator placed “undue reliance” on the absence of a complete history as a basis for not accepting Dr Giblin’s opinion. The President found that the Arbitrator correctly placed little weight on Dr Giblin’s evidence for a number of reasons. Dr Giblin did not offer any opinion concerning causation of the consequential condition through overuse. Dr Giblin made no reference to the relevant history in his first report of March 1999, which only dealt with injury to the left wrist. In addition, there was a complex history of medical treatment concerning the right shoulder, including the consequences of a steroid injection. The Arbitrator’s findings were open and did not reveal error (Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 considered and applied). ([96]-[98])

4. Contrary to the appellant’s submission, the Arbitrator did not misdirect himself by referring to a complex medical condition surrounding the right shoulder. It was undeniable that there was a complex medical history spanning many years. Whether those conditions were constitutional or caused by treatment from the accepted injury were not dealt with by either party. ([100])

5. The appellant’s submission that by reason of the serious nature of the injury to the left shoulder “overloading” of the right shoulder was “obvious and compelling” was rejected. The President observed that it does not necessarily follow that because of a serious injury to the left limb that there must be a resulting overuse of the right limb. It was the lack of such evidence which caused the Arbitrator to conclude that he could not be satisfied on the balance of probabilities of a causal connection between the right shoulder condition and the accepted injury. The Arbitrator did not err in making the factual finding (Whiteley Muir applied). ([101])

6. The appellant’s submission that the Arbitrator failed to consider Dr Skapinker’s evidence which supported the back injury was also rejected. Dr Skapinker made no reference to any alleged injury to the back or complaints relating to the back. It followed that the Arbitrator did not fail to make any reference to Dr Skapinker’s evidence. ([102]-[103])

7. Contrary to the appellant’s submission, the President found that Dr Parameswaran did not record back pain radiating into the left leg some eight months after the accident. ([104])

8. There was no evidence to support the appellant’s submission that a severe injury to the left shoulder requiring medication and intensive treatment masked the injuries to the neck and back. The objective evidence clearly showed that for at least fifteen months after the injury the worker made no complaint of pain to the neck, right arm, and back. ([105]-[106])

9. The worker submitted that the Arbitrator erred by placing reliance on evidence relating to a psychological overlay. The Arbitrator noted Dr Neophyton’s diagnosis and Judge Burke’s comments in this regard. Dr Neophyton diagnosed the worker with hysterical conversion reaction. Judge Burke commented that the worker seemed to have an awful lot of complaints that did not appear to have a physiological basis. The Arbitrator noted that the Judge’s comments were made after a contested hearing in which he had the opportunity to see and hear the worker and consider the medical evidence. ([107]-[108])

10. However, the Arbitrator concluded that the most important reason for his concerns in respect of the worker’s reliability was simply the length of time between the injury and the arbitration hearing (Effem Foods Pty Ltd v Lake Cumbeline Pty Limited [1999] HCA 15; 161 ALR 599). Therefore, it was appropriate for the Arbitrator to give weight to the contemporaneous material before the Commission in reaching a conclusion as to the injuries suffered by the worker at the time of his fall in 1999. ([108])

11. The President rejected the submission that the Arbitrator’s approach to the assessment of the worker’s reliability resulted in any “misdirection”. The President observed that such a finding would only be disturbed on appeal if it were found to be contrary to incontrovertible facts or other uncontested testimony or was glaringly improbable or contrary to compelling inferences. The Arbitrator did not err in his approach to the assessment of the evidence (Fox v Percy [2003] HCA 22; 214 CLR 118). ([109])

12. It was open to the Arbitrator to conclude that the worker failed to discharge the onus of establishing that he had any relevant injury to his back or neck or any relevant injury that could conceivably give rise to a loss of use of his legs. Further, on the evidence presented it was open to the Arbitrator to conclude that the worker failed to establish that he suffered a consequential injury to his right arm by way of overuse. No error was demonstrated. ([110])

(a) law in failing to correctly apply the decision in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141; 5 DDCR 482 (Samuel) (Ground No 1);

(b) discretion by assuming that the removal of Schizophrenia would not have an effect on the amount of impairment (Ground No 2);

(c) fact by accusing the appellant of making petty or unnecessary objections against a proven misdiagnosis of Schizophrenia (Ground No 3);

(d) fact and discretion by determining that the appellant delayed in requesting a reconsideration of the Panel decision two years after the decision was made and that the time required to gather evidence to prove misdiagnosis by the Panel was excessive delay (Ground No 4);

(e) fact and discretion in deciding that the further relevant information that was not reasonably available at the time of the original assessment, would not aid in the interpretation of the appellant’s presentation and that the AMS or the Panel would be unlikely to change their decision (Ground No 5), and

(f) fact by assuming that the appellant was suggesting that her former legal representatives were incompetent and not sufficiently diligent to progress the matter in the Commission or Supreme Court (Ground No 6).

Held: The Arbitrator’s decision dated 2 May 2017 was confirmed.

Ground No 1

1. Although it was pleaded as a separate ground, this ground relied on the errors identified in the other grounds. The Acting President noted that Grounds Nos 2–6 were rejected, and it followed that Ground No 1 was also rejected. ([36])

Ground No 2 – the effect of Schizophrenia on impairment

2. Acting President Snell held that the Arbitrator was clearly aware of the assessment process, including the effect of applying a 50 per cent deduction. ([41])

3. The Arbitrator (at [72] of his reasons) said that, if Dr Akkerman’s (psychiatrist) findings on examination were accepted, the absence of such symptoms established either:

(a) the absence of schizophrenic symptoms, or

(b) remission of such symptoms compared with how they were before the AMS. ([45])

4. The Acting President held that when the passage at [72] was read in context, it did not support an argument that the Arbitrator “erred in discretion by assuming that the removal of Schizophrenia would not have an effect on the amount of impairment”. It was quite apparent that the Arbitrator was well aware of the findings made by the AMS and the Panel, and the effect of these on the appellant’s entitlement to permanent impairment compensation. He described them in his reasons. Ground No 2 described the alleged error, in general terms, as both discretionary, and a failure to do justice according to the substantial merits of the case. However the alleged error was described, it was not made out. ([48])

5. The Acting President further observed that the Arbitrator’s decision under challenge was a discretionary one pursuant to s 350(3) of the 1998 Act. He noted that the appellant’s submissions did not specifically address the principles in House v The King [1936] HCA 40; 55 CLR 499 (Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45], and Atomic Steel Constructions Pty Ltd v Tedeschi [2013] NSWWCCPD 33 at [58] referred to). ([49])

Ground No 3 – petty or unnecessary objections

6. The appellant took issue with the Arbitrator’s use of the word “cavil”, where he held that the “application is an attempt to cavil with the clinical determination of the AMS and the Medical Appeal Panel based on differing opinions by other examiners.” The Acting President rejected this ground, noting that the submissions were argumentative, rather than going to whether appealable error could be identified, within the meaning of s 352(5) of the 1998 Act. ([60]–[61])

Ground No 4 – delay

The submissions argument

7. The appellant advanced an argument concerning the Arbitrator’s regard to delay in determining the matter. Acting President Snell held that there was nothing in how the case was run, which suggested that the appellant was denied procedural fairness, by the Arbitrator having regard to ‘delay’, as a factor relevant to the exercise of his discretion pursuant to s 350(3) of the 1998 Act (Samuel; Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; 3 DDCR 1, and Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 applied). ([87])

8. Acting President Snell held that the way in which the Arbitrator dealt with the submission that was actually made to him was open to him, and appropriate. The explanation for the ‘delay’, given to the Arbitrator in the appellant’s original submission, was not realistically available, given the argument the appellant pursued that there was a misdiagnosis, and she had never suffered from Schizophrenia. The Acting President was of the view that there was no error in the Arbitrator’s rejection of the explanation for ‘delay’ proffered in the submission made to him. ([91])

Was the claim met by the respondent?

9. The appellant took issue with the Arbitrator’s reasons where he said that “the respondent has met the [appellant’s] claim”. Acting President Snell held that this submission was pedantic and it was clear in context that the Arbitrator was not saying that the respondent had met the claim in terms of paying it. He held that the submission could not reasonably have been in support of any ground of appeal, and was simply argumentative. ([92])

The presence of delay

10. The appellant challenged the proposition that there was “unreasonable delay” by her or her solicitors. In her submissions, the worker set out a chronology of the two year period where there was delay. After setting out the appellant’s chronology and submissions, the Acting President held that the chronology and list of events did not show much activity relevant to the claim until 5 November 2015, when Dr Subhas (treating psychiatrist) provided a certificate stating that the worker “has not displayed any schizophrenia” (emphasis in original). Acting President Snell held that the Arbitrator’s conclusion regarding ‘delay’ was open on the evidence, as was his conclusion regarding the failure to put further evidence to the Panel at the time of the reconsideration dated 24 December 2014. He held that the Arbitrator’s factual conclusions in this regard did not disclose error. ([99], [111])

11. Ground No 4 was rejected. ([113])

Ground No 5 – would the fresh evidence be likely to affect the outcome?

The interpreter argument and re-examination

12. The appellant argued that she was denied procedural fairness, as an interpreter was not arranged for her examination with the AMS. The Acting President held that there was no indication that the absence of an interpreter was raised as an issue on the appeal to the Panel, noting that the decision of the Panel and the reconsideration did not suggest that the absence of an interpreter at the AMS examination was raised as an issue. Acting President Snell held that given it was not raised before the Panel or on the reconsideration application, it was inappropriate to raise it on the appeal (Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481 at [7]; Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at [9], and Inghams Enterprises Pty Ltd v Hickey [2017] NSWWCCPD 36 at [113]–[114] applied). ([134], [136]–[138])

13. The Acting President also noted that the appellant’s further argument that she was denied procedural fairness by not being examined by the Panel was not made on the reconsideration application. He noted that the issue of whether to conduct a re-examination would remain a discretionary matter for the Panel that is only available once the Panel finds error (Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [22] and New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33] applied). ([139]–[144])

Would the fresh evidence have affected the outcome of the proceedings?

14. The appellant submitted that it was clear from the additional relevant information, that she did not have Schizophrenia. The Acting President held that it was not the duty of the AMS to perform a decision making role which involved choosing between competing arguments, or the medical opinions relied on by the parties. His function was to apply his own medical experience and medical expertise, in forming and giving his opinion, on the matter referred to him. He was not obliged to choose between the competing diagnoses of others who had previously assessed the appellant. He did not err, simply because he arrived at a diagnosis different to other medical practitioners (Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 at [47] and State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [26] applied). ([161], [164])

15. The appellant submitted that in considering her application, “caution is paramount to ensure that a medical opinion is left in the medical profession”. Acting President Snell held that the application, at its first step, was one to set aside the COD dated 18 January 2016. That involves the exercise of the discretionary power in s 350(3) of the 1998 Act. The power is exercised by the Commission, not by an AMS or a Medical Appeal Panel, neither of which comprises the Commission: s 368 of the 1998 Act. The persuasive onus rests on the moving party, the appellant (Commonwealth v Muratore [1978] HCA 47; 141 CLR 296 at [11]). Whether that onus is discharged was not affected by the suggested need for “caution”. ([171], [173])

16. The Arbitrator concluded that the additional material relied on by the appellant was not likely to lead to a different result before either the AMS or the Panel. This was because the substance of the different diagnoses and various clinical presentations were before the AMS and the Panel in any event. The Acting President, adopting the language of O’Meally J in Galea v Ralph Symonds Pty Ltd [1989] NSWCC 4; 5 NSWCCR 192 said the further evidence “can not accurately be described as fresh evidence; it is more evidence”. ([182])

17. It followed that the Arbitrator’s conclusion, that it was unlikely that the additional evidence would lead to the AMS or the Panel taking a different approach, was well open to him on the evidence. He took appropriate matters into account. There was no error in the conclusion which he reached on this issue. ([183])

The combination of diagnoses by the Medical Appeal Panel

18. The appellant asserted that the diagnoses of adjustment disorder and Schizophrenia cannot be made together under DSM IV and DSM V. Acting President Snell held that the Arbitrator correctly observed in his reasons that the third and fourth editions of the WorkCover Guides for the Evaluation of Permanent Impairment require an AMS to make a diagnosis “based upon a psychiatric diagnosis (according to a recognised diagnostic system) and the report must specify the diagnostic criteria upon which the diagnosis is based”. No recognised psychiatric system is mandated in the Guides. It followed that the submission that the diagnosis “must be in line with the relevant DSM criteria” was incorrect. Ground No 5 was rejected ([184]–[186])

Ground No 6 – was an allegation about former legal representatives relied upon?

19. Acting President Snell held that the Arbitrator made no finding in the passage at [79] of reasons, about the diligence or competence of the appellant’s solicitors. The Arbitrator observed that such a complaint, if made, would not constitute a basis for reconsideration consistent with Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd [1953] WCR 29. The Acting President held that Ground No 6 simply involved a misreading of this passage of the Arbitrator’s reasons, and was rejected. ([191])

(a) the Arbitrator gave undue weight to the fact that the incident was not mentioned in the notes of Canterbury Hospital (reasons at [59]–[65]) (Ground No 1);

(b) the finding that there was an attempt to alter the claim form (reasons at [78]) was not open on the evidence, and should not have caused the Arbitrator “some concern” (Ground No 2);

(c) the Arbitrator failed to give adequate reasons for not accepting the veracity of the history in the certificate and report of Dr Qidwai (reasons at [81]–[91]) (Ground No 3), and

(d) the Arbitrator gave undue weight to a hearsay statement by the first respondent, referred to in a s 74 notice (dated 6 July 2012), dealing with the report of the incident to the first respondent (Ground No 4).

Held: The Certificate of Determination as against the first and second respondents was revoked and the matter was remitted for re-determination by another Arbitrator. The Certificate of Determination was confirmed as regards the award in favour of the third respondent.

The recusal application

13. Earlier proceedings between the same parties were discontinued at a telephone conference before the Acting President in his then capacity as Senior Arbitrator. Acting President Snell declined the second and third respondents’ application that he recuse himself on the basis that he had convened the earlier telephone conference (Inghams Enterprises Pty Limited v Belokoski [2017] NSWWCCPD 15 at [32]–[48] applied. Passages at [36]–[37] referred to). ([33]–[37])

Ground No 1 – Canterbury Hospital notes

14. The Arbitrator’s reasons made two specific points about perceived inconsistency between the hospital notes and the worker’s statement. The first point was that the denial of “recent injury, trauma, falls, heavy lifting” was inconsistent with the worker’s allegation of a frank injury on 3 November 2010. The second was that “if he had an acute episode of back pain” on 6 November 2010, as he stated, the Arbitrator “would have expected such a history to be provided to the hospital”. ([46])

15. When married up with the material in the supplementary statement, that the appellant used his private car to drive to the taxi base, the appellant submitted that the notes (at least this part of them) were consistent with the appellant’s statement. Acting President Snell held that this submission was correct. The Arbitrator did not refer to this part of the notes and this amounted to a factual error. The Acting President was of the view that the material not referred to was potentially corroborative of the worker’s evidence in his statement. He held that this should have been dealt with by the Arbitrator. ([47]–[48])

Ground No 2 – the finding of an attempt to alter the claim form

16. The claim form gave a date of injury of 3 November 2010. The numeral 3 was inserted for the time of injury and both the “AM” and “PM” options on the form had been circled. It was unclear as to whether the injury as marked on the claim form occurred at 3 am or 3 pm. The time alleged had an effect of whether the claim form and the note of Dr Houfani (the GP) were consistent. The worker had seen Dr Houfani at 10.21 on 3 November 2010 and the doctor did not note that the worker had been injured. If the injury had occurred at 3 am, the claim form and Dr Houfani’s notes would be inconsistent. ([55]–[58])

17. Acting President Snell held that an inference that the worker had behaved, in relation to alteration of the claim form, in a fashion which impacted adversely on his credit, was not squarely raised before the Arbitrator. With a submission to that effect not having been clearly made, procedural fairness required that the Arbitrator inform the worker if she was considering such a course. This was consistent with Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at [6]–[7] and [11], and Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; 3 DDCR 1 (Ghaleb) at [78]. The Acting President held that the treatment of such evidence by the Arbitrator, where she said “the fact that the form has clearly been amended is of some concern, particularly when he had already sought the advice of his solicitor” constituted error (Gardiner v Oxford Art Supplies and Books Pty Ltd [2007] NSWWCCPD 210 at [47] and Bale v Mills [2011] NSWCA 226 at [79] applied) ([63]–[65]).

Ground No 3 – the evidence of Dr Qidwai

18. This ground argued that the Arbitrator failed to give adequate reasons for not accepting the veracity of the history in the certificates and report of Dr Qidwai. ([66])

19. Acting President Snell observed that the worker’s argument seemed to go to the Arbitrator’s failure to accept the version of the worker’s injury contained in his statement which was generally consistent with the history recorded by Dr Qidwai. ([84])

20. Acting President Snell held that the fundamental reason why Dr Qidwai’s opinion was deprived of weight was that the Arbitrator did not accept the worker’s evidence of sustaining an injury on 3 November 2010 (Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844 at [9]; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [64]; Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 80 NSWLR 43 at [82]–[83] applied). The denial of injury was clearly made (with associated reasons) in the second respondent’s s 74 notice dated 6 July 2012. An argument based on the rule in Browne v Dunn (1893) 6 R 67 did not succeed: Quadi v The Reject Shop (Aust) Pty Ltd [2008] NSWWCCPD 3 Roche DP at [56] applied. For these reasons, Ground No 3 failed. ([104]–[105])

Ground No 4 – the hearsay statement in the section 74 notice

21. There was an issue identified in the s 74 notice, regarding whether the worker made a contemporaneous report of his injury to the first respondent. This was relevant to whether the injury occurred as alleged. The Acting President held that the Arbitrator’s reasons demonstrated that she was aware of the conflict between the worker’s statement, his claim form, and what the first respondent was said to have told the author of the s 74 notice of the second respondent. ([112]–[113])

22. Acting President Snell observed that the hearsay material from the first respondent, the subject of this ground, was contained in a s 74 notice. The Acting President held that the provisions do not provide for the inclusion of evidence as part of the text of a s 74 notice. He observed that as a matter of practice, it is not unusual for such notices to recite passages of evidence, for example from a medical report relied on. This is not in substitution for copies of the source documentation; cl 41 of the 2016 Regulation required that reports falling within its ambit be provided as an attachment to the s 74 notice. One would not anticipate that evidence on which an employer or insurer relied would be recited as part of the text of the notice, and not appear also as a relevant attachment. He added that the inclusion of hearsay material in the s 74 notice, such material not appearing elsewhere in attachments, was unusual and inappropriate. ([122])

23. Acting President Snell said that neither party addressed on the hearsay material, and there was not an indication that the Arbitrator proposed relying on such material. In those circumstances, the worker did not, at the arbitration hearing, address on the weight of that material, or why it should not be accepted. The Arbitrator’s reliance on the hearsay evidence in those circumstances constituted error of the sort identified in Ghaleb at [78]–[79]. Ground No 4 was upheld. ([125]–[126])