Issue 9: December 2017

Inghams Enterprises Pty Ltd v Belokoski [2017] NSWCA 313

(a) whether the Deputy President erred in declining to recuse himself;

(b) that the error in the Deputy President declining to recuse himself “was compounded by [his] subsequent conduct of the appeal.” This complaint was further articulated in terms alleging that the Deputy President:

(i) intervened to invite submissions on an authority that he ultimately held was decisive in the worker’s favour;

(ii) in the course of dealing with those subsequent submissions, restricted the employer to a narrower and more technical reading of its appeal grounds, even than the way the worker’s counsel approached them;

(iii) did not propose an oral hearing so that such matters could be ventilated in full, and

(c) that the Deputy President’s role as a conciliator, at the time of the telephone conference on 11 August 2014, was somehow relevant to (in the sense of aggravating) the expression of opinion as to whether injury was then in issue.

Appeal to this Court

1. Justice Basten observed that there was no dispute as to the relevant legal test concerning apprehended bias. The question is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.” It was not submitted that a different test should apply to the Deputy President of the Commission, although it was accepted that the application of the test must have regard to the statutory function of an arbitrator and the role played by a Deputy President on an appeal. ([15]–[18])

(Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [11]; Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288 at 294; Western Australia v Watson [1990] WAR 248 at 264; Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 352, and Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 (Michael Wilson & Partners) applied)

Ground 1 – statement at 11 August 2014 tele-conference

2. The employer’s solicitor said that, in reporting to his client about the earlier proceedings, he said that Deputy President (as a Senior Arbitrator at the time) made the comment about ‘injury’ referred to above. Justice Basten said that the solicitor did not swear an affidavit in proceedings before the Commission, nor did he give oral evidence. His Honour said that Mr Macken was and remained the solicitor for the appellant and his Honour inferred that the solicitor had no memory of the comment and was relying on a “report” to his client. Justice Basten held that if there had been a record of the report, it should have been put in evidence. His Honour observed that it had not. ([25])

3. Justice Basten observed that in these circumstances, it would have been open to Deputy President Snell to dismiss the application on the ground that there was no evidential basis for concluding that such a comment was made. His Honour noted that, in any event, that course was not taken. ([26])

(CUR24 v Director of Public Prosecutions [2012] NSWCA 65; 83 NSWLR 385 referred to)

4. His Honour held that the appellant’s difficulty was not restricted to the evidence. Basten JA added that the application provided no context for the alleged comment that was not in issue. Without the context, it would be pure speculation to draw any inference from the comment. A fair-minded observer would not do so. His Honour concluded that the application could and should have been rejected on that basis. ([27])

Ground 2 – the three compounding issues

5. Justice Basten observed that this ground was problematic. His Honour said that, as the issues raised in (b) above were said to “compound” the error in failing to recuse based on the statement, they could not compound that which was not erroneous. Secondly, none of the items identified in the written submissions involved an error of law. So much was conceded. How they could provide any basis for supporting a reasonable apprehension of bias, even if the statement carried the connotation relied on by the appellant, was obscure. ([28])

6. As regards (b)(i) above, Basten JA said that the idea that a tribunal demonstrates a possibility of prejudgment by drawing the attention of one party to an authority (being Michael Wilson & Partners) which may be against its position is hard to comprehend. ([29])

7. As regards the complaint in (b)(ii) above, that the appellant was restricted to “a narrow and technical reading of its appeal grounds” by the Deputy President, Basten JA held that this was not a narrow and technical approach: it was recognition that the appellant was seeking to substitute four separate grounds for one dealing with apprehended bias by the arbitrator in a way which was apt to cause procedural unfairness to the worker. His Honour said that how such a course could demonstrate prejudgment on the part of the Deputy President was utterly obscure. ([34])

8. The invitation to the Court of Appeal, to conclude that what happened before the Deputy President “compounded” the failure to recuse himself at the outset of the hearing, was an open invitation to the Court of Appeal to commit the very error which had been identified in Michael Wilson & Partners. What the appellant sought to do in support of this ground was to sift through the Deputy President’s reasons for decision and light upon aspects of the reasoning which, it was conceded, did not reveal any error of law, and seek to use these to demonstrate that the initial apprehension of bias was confirmed. Whether or not that was what the Court of Appeal did in Michael Wilson & Partners, it is beyond doubt that such an approach is fallacious. ([36]–[37])

9. Regarding (b)(iii), Basten JA held that the appellant could not claim it had been denied procedural fairness. The refusal of the Commission to “propose” an oral hearing could not possibly give rise to an apprehension of prejudgment. ([38])

Ground 3 – managing the conciliation hearing

10. The appellant sought to rely upon the fact that as conciliator, the Deputy President had “managed” the earlier proceedings to resolution. Justice Basten held that there was no direct evidence that he had done anything of the sort; nor was it explained what steps he had taken (if any) to achieve a consensual outcome of the earlier proceeding. How such a course, whatever it may have involved, could form the basis of a reasonable apprehension of prejudgment was not explained, no doubt because the factual basis was unknown. The matter was resolved by consent, and there was no evidence that it was resolved against the appellant’s interests. ([39])

11. Justice Basten held that the fact that an arbitrator has used his or her best endeavours to bring about a settlement will not form the basis of a challenge to an award or determination if conciliation fails and an arbitrated outcome is required. His Honour observed that if the conciliation in the earlier proceedings had not been suucesful Senior Arbitrator Snell could properly have proceeded to make an award. Why “tighter constraints of propriety” would apply to the Deputy President in determining an appeal was not explained. ([41]–[42])

Conclusion

12. The Court concluded that the recusal application was properly determined by the Deputy President in dismissing the appeal before him. ([44])

(a) applying the test under s 4(a) of the 1987 Act with respect to arising “out of” and “in” the course of employment;

(b) failing to properly apply the test under s 9A of the 1987 Act, with respect to substantial contributing factor, and

(c) determining that the worker was not on a journey from her workplace to place of abode when she was injured and whether there was a “real and substantial connection” between the employment and incident, pursuant to s 10(3) of the 1987 Act.

Held: The Arbitrator’s determination was revoked. An award was entered for the worker in respect of weekly payments of compensation and medical expenses. 

In the course of employment 

1. An injury arising in the course of employment refers to the mere temporal connection with employment, so that if a worker sustains an injury during the time constituted by the course of employment the injury will arise in the course of the employment. It is unnecessary to show some further relationship with the employment to establish “injury”, subject to satisfying the requirements of s 9A of the 1987 Act. ([47])

(Commonwealth v Oliver [1962] HCA 38; (1962) 107 CLR 353; ALR 609 considered)

2. The course of employment extends beyond the worker’s normal hours and place of work to “natural incidents connected with that class of work”. If a worker “is doing something which is part of or is incidental to his service” he or she is in the course of employment. Therefore, the service is not confined to the actual performance of the work that the worker is employed to do but includes all the things incidental to the performance of that work. ([48])

(Kavanagh v The Commonwealth [1960] HCA 25; 103 CLR 547 (Kavanagh), Charles R Davidson& Company v M Robb (1918) AC 304 and Whittingham v Commissioner of Railways (WA) (1931) HCA 49 (Whittingham) considered)

3. In considering what is incidental to service, the sufficiency of the connection between the worker’s employment and what she was doing at the time that she was injured could only be “a matter of degree in which time, place, practice and circumstances as well as the conditions of employment had to be considered.”  ([49]-[53])

(Hatzimanolis v AMI Corporation Ltd (1992) HCA 21 and Whittingham applied

Henderson v Commissioner of Railways (WA) [1937] HCA 67; (1937) 58 CLR 201 (Henderson); Humphrey Earl Ltd v Speechely; Bill Williams Pty Ltd v Williams [1972] HCA 23 considered)

4. The Arbitrator’s determination focused on his conclusion that once the worker left the Post Office on or about 3.30 pm she completed her day’s work and that the real cause of the accident was the worker’s own carelessness or the negligence of the driver of the vehicle that struck her, or both. The Arbitrator failed to consider the terms of employment, and what was reasonably required, expected or authorised by the respondent in order for the worker carry out her actual duties. ([54])

5. Consideration of whether the injury occurred whilst the worker was engaged in work which she was employed to do or something incidental to it is a concept devoid of any causal link between that which the worker is employed to do and the injury sustained. ([55])

(Kavanagh applied)

6. The President inferred from the evidence that the worker’s use of her own car to travel from her place of work to the Post Office was authorised by the respondent. He also inferred that the worker would be expected to park her car in the vicinity of the Post Office and walk between her parked car and the Post Office in order to post the daily mail. It followed that, when walking between her car and the Post Office the worker was doing something that was incidental to her employment. Therefore, the worker remained in the course of her employment while walking between her car and the Post Office. The Arbitrator’s finding to the contrary was an error. The Arbitrator’s treatment of the time of the accident and immediate cause of it as decisive factors in his determination was also an error. ([56]-[58])

7. The President inferred that there was a notional period to allow the worker to complete the posting of the mail and finish her duties at around 3.30 pm. That did not mean that if the task of posting the mail was incomplete at 3.30 pm that the employment for the day came to an end at that point in time. His honour said that it is reasonable to infer that, on occasion, the task of posting the mail would take longer than 15 minutes. It followed that whether the injury took place shortly after the scheduled end of the shift was not decisive. A worker may still be in the course of employment where the accident arises shortly before the beginning of actual work or shortly after its cessation ([59])

(Henderson applied)

8. In the alternative, the President found that not only was the worker induced or encouraged to be at the relevant place at the time of her injury, she was directed and required to be there as part of her employment duties. ([64])

(Comcare v PVYW [2013] HCA 41 and Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 applied)

9. It followed that the worker was in the course of her employment at the time of the injury. The Arbitrator’s finding to the contrary was an error. ([60], [67])

Injury “arising out of employment”

10. The requirements of the worker’s employment caused her to be in the Albury CBD, on foot and negotiating traffic when she was injured. The clear causal link to the employment was the requirement for her to use her own car to travel from the respondent’s premises to the Albury CBD, park it and then walk to and from the Post Office to attend to the task of posting the mail. That was a factor that materially contributed to the injury and was sufficient to satisfy the requirements of s 4 of the 1987 Act, in that the injury arose out of the employment. The immediate cause of the accident, although relevant, was not decisive. The President found that the injury was sustained arising out of the worker’s employment. The Arbitrator’s finding to the contrary was an error. ([81]-[84], [86])

(Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited [2009] NSWCA 324; 7 DDCR 75 applied)

Substantial contributing factor 

11. Although the Arbitrator identified relevant features of the worker’s employment, in consideration of s 9A(2)(b), which directs attention to the nature of the work performed and the particular tasks of that work, he focused only on the final aspect of his analysis of the duties. That is, that the worker attended her final duties of the day at the Post Office at about 3.30 pm or sometime later. He focused on the duties being performed at or immediately prior to the injury rather than focusing on the nature of the work performed and the particular tasks of the worker’s work. That was an error. ([100])

(Badawi applied)

12. The Arbitrator failed to consider the relevance of s 9A(2)(d), which concerns the probability that the injury or a similar injury would have happened anyway. The President found that it was unlikely that a similar injury would have happened at the same time or at the same stage of the worker’s life had it not been for the particular tasks of her employment. ([101])

13. The President was satisfied that the connection between the incident and the employment was real and of substance, therefore the provisions of s 9A were satisfied. It followed that the worker sustained an injury arising out of and in the course of her employment with the respondent, when she sustained the injury, to which her employment was a substantial contributing factor. ([102]-[103])

(Badawi applied)

The journey claim

14. Having regard to the above findings, it was unnecessary to make any findings on the journey claim.

(a) the Arbitrator failed to consider and determine the rights and obligations of the parties arising from the injury on 6 January 2006. This included whether incapacity and the need for medical treatment resulted from that injury as well as the injury on 21 June 2011, and the need to refer WPI resulting from injury on 6 January 2006 to an AMS for assessment. It was necessary to determine the relief to which the worker was entitled as against JCS, resulting from the injury on 6 January 2006 (Ground No 1), and

(b) the award of weekly compensation, save for the period from 6 to 20 October 2015, was erroneous in that, during the other periods awarded, the worker did not suffer any “economic incapacity” (Ground No 2).

Held: The Certificate of Determination dated 14 June 2017 as amended by the Certificate of Determination dated 4 July 2017 was revoked and the matter was remitted for re-determination by another Arbitrator.

Ground No 1

The lump sum claim against JCS

1. It was common ground between the parties that the injury on 6 January 2006 occurred, and that the lump sum claim in respect of it required assessment by an AMS. The position adopted by the parties was appropriate. The matters in dispute involving JCS did not involve issues of ‘liability’ for the purposes of s 321(4)(a) of the 1998 Act. ([23], [26])

2. The dispute about the permanent impairment that resulted from the conceded injury on 6 January 2006 was a ‘medical dispute’. Consistent with authority in the absence of assessment pursuant to Pt 7 of Ch 7 of the 1998 Act, the Commission could not determine that medical dispute. Deputy President Snell held that this limitation on the Commission’s jurisdiction extended to the entry of an award in favour of the relevant employer, in circumstances where the only issue in the lump sum claim against JCS was quantum. The submissions of the parties at the arbitration hearing were correct, it was necessary that the medical dispute relating to the injury of 6 January 2006 be referred to an AMS. The entry of an award in favour of JCS, including on the permanent impairment claim against it, involved jurisdictional error. ([28]–[31])

(Haroun v Rail Corporation (NSW) [2008] NSWCA 192; 7 DDCR 139 at [19]–[20]; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264; 13 DDCR 156 at [112], Abou-Haidar v Consolidated Wire Pty Ltd [2010] NSWWCCPD 128; 12 DDCR 307 at [54]; Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 at [56] and Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 at [261] referred to)

The claims against JCS for medical expenses and weekly payments

3. The worker pleaded a claim for medical expenses. At the arbitration hearing, the worker’s counsel sought to discontinue “the claim for section 60 expenses and any application for a general order”. This was acknowledged by the legal representatives for both JCS and the State, neither of whom specifically addressed the issue of expenses pursuant to s 60 of the 1987 Act. ([32])

4. The Deputy President observed that a condition can have multiple causes. ([39]–[41])

(Bushby v Morris [1980] 1 NSWLR 81 at [87]; Accident Compensation Commission v CE Heath Underwriting & Insurance (Australia) Pty Ltd [1994] HCA 68; 121 ALR 417 at [3], and Sutherland Shire Council v Baltica General Insurance Co Ltd (1995) 39 NSWLR 87 at 95B applied).

5. The Arbitrator’s reasons did not deal with whether the effects of the injury on 6 January 2006 continued, and if so, with what consequences. They did not deal with whether that injury caused or materially contributed to the periods of incapacity for which weekly compensation was ordered, or the need for medical treatment, including surgery. There was a failure to address this issue. ([42]–[44])

(Baira v RHG Mortgage Corporation Limited [2012] NSWCA 387 at [175]; Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402; 79 ALJR 1816 at [130] and Mifsud v Campbell (1991) 21 NSWLR 725 at 728C referred to)

6. The Arbitrator’s reasons, dealing with the extent to which the right knee symptoms represented a consequential condition resulting from the injury on 20 June 2011, did not decide the issue of whether the effects of the injury on 6 January 2006 continued, and the significance of that to the relief claimed. There were no other reasons given for the award in favour of JCS, and the failure of all heads of the worker’s claim against JCS. ([46])

7. It followed that the challenge in Ground No 1 of the appeal, against the awards in favour of JCS on the claims for lump sum compensation, weekly compensation and benefits under s 60 of the 1987 Act were successful. It was not, in the circumstances, necessary for the Deputy President to deal with Ground No 2. ([47])

Disposition of the appeal

8. Injury to the right knee in the incident on 6 January 2006 was not placed in issue by JCS. Deputy President Snell held that it was realistically possible that when findings on causation are made, rights of contribution may arise between JCS and the State. The parties should ventilate their positions on contribution, so that it can be dealt with on the further arbitration hearing. ([49]–[50])

9. The Arbitrator made an order for the payment of s 60 expenses, in circumstances where the worker’s counsel, during submissions, sought to withdraw that aspect of the claim. The employers’ legal representatives proceeded on the basis that the claim pursuant to s 60 was not pursued. Although no procedural fairness points were raised on appeal, Deputy President Snell observed that before the further arbitration hearing, the parties should turn their minds to (and give notice of) whether orders would be sought pursuant to s 60. ([51]–[52])

(a) the Senior Arbitrator erred in failing to make specific findings that the worker sustained injury in a performance appraisal on 9 July 2015, and that her employment was a substantial contributing factor to that injury (Ground No 1), and

(b) the Senior Arbitrator, it may be inferred, determined that any injury, and consequential entitlement to weekly payments and medical expenses, were due to the performance appraisal on 9 July 2015. She specifically found that the employer’s relevant conduct was reasonable. She then erred in finding that the defence pursuant to s 11A(1) was not made out, absent medical evidence to the effect that the injury was wholly or predominantly caused by the performance appraisal on 9 July 2015 (Ground No 2).

Held: The Certificate of Determination dated 27 July 2017 was set aside and the matter was remitted for re-determination by another Arbitrator.

1. The worker conceded that the Senior Arbitrator’s orders had been issued pursuant to an erroneous reasoning process. However, the worker submitted that the orders in the Certificate of Determination should not be disturbed as the outcome would be no different following a proper determination of the substantive issues. ([20])

Dealing with the additional issues raised by the worker on the appeal

2. The worker did not herself lodge an appeal. Deputy President Snell noted that she could not be expected to challenge the orders in her favour. He held that if the arguments of the employer on appeal were found to be correct, it would be inconsistent with s 354 of the 1998 Act if the worker was precluded from pursuing an argument that may entitle her to success. ([25]–[27])

(BlueScope Steel Ltd v Markovski [2013] NSWWCCPD 69, and Rail Corporation of New South Wales v B [2009] NSWWCCPD 81 applied)

Fresh evidence

3. The worker could not satisfy the threshold tests in s 352(6). The application to rely on fresh evidence was refused. For reasons below, Deputy President Snell concluded that the appeal succeeded and should be remitted for re-determination by a different arbitrator. He said that the admission of further evidence could be dealt with in the normal way, by the arbitrator, in the re-determination. ([38]–[46])

(CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501 and Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10 at [26] referred to)

Ground No 1 – the findings on ‘injury’ and section 9A of the 1987 Act

4. The submissions made to the Senior Arbitrator were consistent with the worker relying on an allegation of injury based on the ‘disease’ provisions in s 4(b) of the 1987 Act. Identification of the relevant ‘injury’ was important for the purposes of the issues involving both s 9A and s 11A(1) of the 1987 Act. Both s 4 and s 9A require independent satisfaction. ([60])

(Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75 at [48] and [91] applied)

5. Deputy President Snell observed that the way in which the arbitration hearing was conducted was consistent with the allegation of ‘injury’ being in issue. Notwithstanding references to s 9A, an argument based on medical evidence (advanced by the employer at the arbitration), that employment factors were not sufficient to cause a psychological injury, is an argument going to ‘injury’ rather than s 9A. ([63]–[64], [69])

6. There was a single allegation of injury, based on the ‘disease’ provisions in s 4(b) of the 1987 Act. The Senior Arbitrator’s reasons dealt seriatim with 19 individual allegations which were spelled out in the worker’s statement, and whether each of these was established. The worker argued that ‘injury’ was not placed in issue by the employer, therefore all of the 19 individual ‘allegations’, which went to make up the single allegation of a ‘disease’ injury, were conceded by the employer. ([65])

7. The Deputy President said that the Senior Arbitrator had not found that the first 18 allegations of injury (if approached individually) were made out, but that no compensation was payable as s 9A was not satisfied in respect of each of them. On a fair reading, the finding rather was that the worker had not discharged an onus of proving that the first 18 allegations, alleged to comprise the ‘disease’ injury, were made out. Although it used the terminology “substantial contributing factor”, the subject matter of the reasoning was ‘injury’, not whether s 9A was satisfied. ([73])

8. Deputy President Snell held that the Senior Arbitrator made no ultimate findings of fact about ‘injury’ or s 9A in respect of the performance appraisal on 9 July 2015. A determination of ‘injury’ was important, for consideration of whether s 9A was satisfied (this being in dispute) and also in considering whether a defence pursuant to s 11A(1) was available in respect of any found injury. The failure to make findings, on the factual issues going to the alleged injury on or around 9 July 2015, and s 9A, constituted error. It followed that Ground No 1 was made out. ([76], [82])

Ground No 2 – alleged error in the findings applying section 11A(1)

9. Because it was not appropriate to infer the factual findings for which the appellant argued, the basis on which Ground No 2 rested was not made out. ([83])

The errors alleged by the worker

10. The worker alleged error in the Senior Arbitrator’s approach that it was necessary for the worker to establish, on an objective basis, that she was ‘bullied and harassed’. The lack of “objective evidence of conduct which could be called bullying or harassment” was one of the factors relied on by the Senior Arbitrator, in rejecting the first 18 allegations going to injury. ([84], [86]–[88])

(Chemler and A-G v K referred to)

11. The Deputy President accepted the worker’s submission. The definition of “bullying” the Senior Arbitrator relied on involved “unreasonable behaviour directed towards a worker”, that is, the perpetrator was acting unreasonably. The definition of “harass” relied on involved the perpetrator persistently disturbing or tormenting the victim. These definitions are likely to involve the “motivation, intention or other mental state” of the perpetrator, something on which there should not be focus “even in a limited sense”, applying the judgment of Basten JA in Chemler. The Senior Arbitrator correctly observed that the words “bullying and harassment” were not “a term of art”. However, she then sort to define the terms, and considered whether various of the allegations fell within the definitions, in assessing whether the allegations were made out. This approach was inconsistent with what was said by Basten JA in Chemler at [69]. The correct enquiry is whether “conduct which actually occurred in the workplace was perceived as creating an offensive or hostile working environment, and a cognizable injury followed”. ([91])

Disposition of the appeal

12. The appellant had established error in the failure to make ultimate findings of fact going to ‘injury’ and s 9A, in respect of the nineteenth allegation. The Deputy President was of the view that it was not appropriate to infer findings in respect of ‘injury’ and s 9A. He noted that the worker had established error in the approach taken in dealing with the other 18 allegations. He was of the view that justice between the parties was best achieved by remitting the matter for re-determination by a different arbitrator. ([95]–[96])

Another matter

13. There was a certain level of confusion in this matter, regarding what part of the injury allegations was placed in issue, and what was conceded, by the insurer. Deputy President Snell said that it is desirable, at the commencement of an arbitration hearing, to have the parties state with precision, on transcript, what concessions are made, and what matters remain in issue and require determination. ([97])

(a) “The Arbitrator misdirected herself as to whether there needed to be a complaint of symptoms for the Appellant to establish he has suffered injury” (Ground 1);

(b) “Having found the Appellant suffers from a disease contracted in the course of his employment as a shearer which is the type of work that could cause injury to the body parts claimed and aggravation of a disease, the Arbitrator should have found in favour of the Appellant” (Ground 2), and

(c) “Misapplication of Authorities such as Department of Education & Training v Ireland [2008] NSWWCCPD 134 [Ireland]” (Ground 3).

Held: The Arbitrator’s determination was confirmed. 

Discussion and Reasons 

1. The appeal was founded on a complaint that the Arbitrator misdirected herself with respect to the proper test to determine “disease injury” pursuant to s 4(b)(i) and/or s 4(b)(ii) of the 1987 Act. It did not challenge the factual findings on the evidence before the Commission or the Arbitrator’s rejection of the evidence of the worker’s medico-legal expert, Dr Dixon. Therefore, there was no need to evaluate the Arbitrator’s acceptance or rejection of the factual assertions made by the worker or her decision as to the probative value of Dr Dixon’s report. ([66])

2. The worker’s challenge on appeal was not raised or argued before the Arbitrator at first instance. That is, no submissions were made that, in a disease case, all that is required is to establish that the employment was employment “to the nature of which the disease is due”. The Arbitrator was not directed to the authorities the worker relied on in the appeal or any other authorities relevant to burden of proof in a disease case. ([70]-[71])

3. A party may not raise a new argument on appeal unless there are exceptional circumstances, it is expedient, or it is in the interests of justice to do so. The Deputy President could not identify any exceptional circumstances as to why leave should be granted nor any basis for determining that it would be expedient or in the interests of justice to allow the point to be raised on appeal. The Deputy President was also of the view that the worker’s argument lacked merit. ([72]-[76])

(Mamo v Surace [2014] NSWCA 58; Super Retail Group Pty Ltd v Uelese [2016] NSWWCCPD 4; Scott v JR Corney and SM Morrisey t/as Digquip [2016] NSWWCCPD 11 applied)

4. The Arbitrator could not be seen to have fallen into error where the argument put forward by the worker was not the subject of submissions at arbitration. It followed that the Deputy President declined to allow the new argument to be raised on appeal. ([76], [96])

5. In the alternative, the Deputy President made the following findings. She observed that the worker conceded that the Arbitrator’s task was to determine the question of injury pursuant to s 4(b)(i) and/or s 4(b)(ii). However, the worker argued that it was not necessary to establish “actual” injury when considering the provisions of s 4(b) but that it is sufficient to show that the employment was the type of employment that could cause the contraction or aggravation etc of the disease. ([79]-[81], [90])

6. The Deputy President observed that, in boilermakers’ deafness, the Arbitrator must arrive at an “actual persuasion” that the worker has established their case on the balance of probabilities. The standard of proof required to establish entitlement to compensation is higher with respect to a s 4(b) disease injury, as the legislation requires the element of employment to be the “main contributing factor” to the disease for it to be compensable. The worker did not make any submission in that regard. ([84]-[85)

(Nguyen v Cosmopolitan Homes [2008] NSWCA 246 applied)

7. The worker misunderstood the relationship between s 4(b) and ss 15 and 16 of the 1987 Act. There was no issue as to whether the nominated employer was the “last” employer who employed the worker in employment to the nature of which the injury was due, nor was there an issue as to fixing of a date of injury. Therefore, the Arbitrator did not need to consider ss 15 or 16 of the 1987 Act. ([91]-[93])

(Blayney Shire Council v Lobley 1995] 12 NSWCCR 52; Ambulance Service of NSW v Daniel  [2000] NSWCA 116; 19 NSWCCR 697, Crisp v Chapman [1994] NSWCA 73; 10 NSWCCR 492and Kelly v Glenroc Pastoral Co Pty Ltd [1994] 10 NSWCCR 178 distinguished)

8. Ground 1 failed. ([97])

9. The worker’s submission that the Arbitrator found he suffered from a disease contracted in the course of his employment as a shearer was wrong. In any event, no relevant submissions were advanced in support of this ground.  Ground 2 failed. ([98]-[102])

10. The worker’s submission that the Arbitrator misapplied the decision in Ireland and that it should have been distinguished on the facts was wrong. The Arbitrator acknowledged the factual distinction but correctly considered that Ireland required her to take into account all of the evidence. The Arbitrator did not err in applying Ireland. Ground 3 failed. ([103]-[109])

1. The President rejected the worker’s submission that because she had pleaded $5,000 in the Application to Resolve a Dispute (the Application), as the amount sought in compensation, any threshold issue under s 352(3) was satisfied. The worker abandoned that claim on the first day of the hearing and the matter proceeded on the basis of a claim only for a general order for medical and hospital expenses. ([25])

2. The reference to a claim for “$5,000” pleaded in the Application was not decisive of whether the monetary threshold had been satisfied. What was decisive was the way in which the Application was run and decided, namely, on the basis of a claim for a general order for medical expenses rather than a claim for any quantified sum. ([26]-[28])

(Banque Commerciale SA (In Liquidation) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 and Chanaa v Zarour [2011] NSWCA 199 considered and applied)

3. The order made by the Arbitrator did not determine the entitlement of the worker to recover any specific expenses. Such expenses may potentially be recovered if there is a proper evidentiary basis to do so. Notwithstanding the Arbitrator’s award, it remained open to the respondent to dispute any claimed medical expenses on the basis of a lack of proven causation or whether such expenses were reasonably necessary.

(Inghams Enterprise Pty Ltd v Grigor [2017] NSWCCPD 23 and NSW Department of Education and Communities v Murray [2012] NSWWCCPD 76 applied

Fine Meats (Boners PM) Pty Ltd v Hart [2007] NSWWCCPD 164 distinguished)

4. It followed that the monetary threshold in 352(3) of the 1998 Act was not satisfied and there was no right of appeal. ([32]-[33])