Appeal Case Summaries

Gundelj v Brighton Australia Pty Limited [2021] NSWPICPD 28

WORKERS COMPENSATION – prior deed of release entered into between the parties – later claim for further loss of hearing – construction of deed of release – Arbitrator’s construction of the deed unchallenged on the appeal – held the deed of release extended to the further loss of hearing injury

Parker SC ADP

17 September 2021

Facts

In 2007, the appellant worker recovered compensation for 3% hearing loss from a previous employer. He worked for the respondent as a gyprocker. On 31 July 2012, the appellant suffered injury to his low back, neck and shoulders as a result of his employment with the respondent and developed a consequential condition of depression and anxiety. His whole person impairment was certified to be 15% and the appellant gave notice under s 281 of the 1998 Act that he would be bringing a work injury damages claim against the respondent.

On 30 January 2017, the appellant and respondent executed a Deed of release, settling the work injury damages claim. As at 30 January 2017, the respondent had not paid permanent impairment compensation to the appellant for his injury of further hearing loss, the subject of this dispute.

On 25 June 2020, the appellant made a claim for permanent impairment compensation in respect of a 12% permanent impairment ($17,050) and for s 60 expenses in respect of hearing aids ($6,203.80). The respondent resisted the claim on the basis that the appellant was not entitled to further compensation by virtue of s 151A(1) of the 1987 Act. The respondent relied on the Deed made between the parties on 30 January 2017.

The Arbitrator made an award for the respondent on the basis that under the Deed of release, the appellant had received work injury damages in respect of hearing loss suffered during the course of his employment with the respondent, notwithstanding that the requirements for the making of a work injury damages claim had not been complied with. The worker appealed.

The issues on appeal were whether the Arbitrator erred in:

(a) law in finding that pursuant to the Deed entered into between the parties dated 30 January 2017, the appellant had received work injury damages in respect of a hearing loss suffered during the course of his employment with the respondent notwithstanding that the requirements for the making of a work injury damages claim had not been complied with;

(In the original submissions, the issue was described as whether the Arbitrator erred in determining that the decision of the Court of Appeal in Wattyl Australia Pty Limited v McArthur [2008] NSWCA 326 (Wattyl) supported the conclusion that the requirements for the making of a work injury damages claim are all procedural in nature the non-compliance of which are capable of being waived) (Ground 1);

(b) law in determining that the requirements pursuant to s 280A of the 1998 Act and the other processes stipulated by the 1998 Act and the 1987 Act relating to a claim for work injury damages were of a procedural nature and that the worker’s failure to comply with those requirements did not prevent the worker from recovering those damages in circumstances where the employer did not take issue with that failure (Ground 2);

(c) not determining the Deed was in breach of s 234 of the 1998 Act;

(This was further particularised as “As a result of the finding that the requirements for the making of a work injury damages claim in respect of any injury relating to hearing loss had not been complied with, the Arbitrator should have found that the appellant had not received damages in respect of any injury relating to hearing loss”) (Ground 3);

(d) not finding that the Deed in so far as it referred to injury to the low back, neck and shoulders was in breach of s 234 of the 1998 Act, regardless of whether the requirements relating to a claim for work injury damages are of a procedural nature and the fact that the employer did not take issue with the appellant’s failure to comply with those requirements (Ground 4), and

(e) failing to consider the provisions of s 151H of the 1987 Act (Ground 5).

Held: The Certificate of Determination dated 21 January 2021 was confirmed.

Ground 1

1. Acting Deputy President Parker SC held it was not apparent that Wattyl controlled the outcome in this matter because:

   (a)     Wattyl is authority for the proposition that a worker cannot waive compliance with the requirements of s 280A of the 1998 Act where the employer insists on compliance;

   (b)     Wattyl is not concerned with the interpretation of s 151A of the 1987 Act, and

   (c)     Wattyl did not involve construction of a Deed of Release. ([60])

2. It was unclear from the appellant’s submissions what flowed from the conclusion that the Arbitrator misunderstood the dicta in Wattyl. This was apparent from the conclusion at [15] of the appellant’s submissions. The Acting Deputy President did not accept that the Arbitrator did misunderstand the import of Wattyl, much less was the Acting Deputy President persuaded that it led the Arbitrator to a misdirection as to the operation of the 1987 Act and the 1998 Act. ([61]–[62])
3. It was necessary to consider the decision of Wattyl in the context of Ground 2 of the appeal. So far as Ground 1 of the appeal was concerned, the Acting Deputy President was not satisfied that the Arbitrator misunderstood the effect of Wattyl or that it led him into error. Ground 1 of the appeal was dismissed. ([63])

Grounds 2 and 3

4. The appellant relied upon Wattyl for the conclusion that non-compliance with the procedural requirements relating to a claim for work injury damages meant that the Deed and payment made in 2017 could not have been in respect of the further loss of hearing. The Acting Deputy President observed that Wattyl was not a decision on s 151A of the 1987 Act. The Court there did not consider the interaction of s 151A with a resolution of a dispute between the parties embodied in a Deed of release. The nature of the issue being considered by the Court of Appeal in that case is set out at [2] and [3] of the judgment, namely, the proper construction of s 280A of the 1998 Act and whether noncompliance with s 280A can be overcome by the worker abandoning the claim for lump sum compensation. ([75]–[76])
5. In the Acting Deputy President’s view, the conclusions expressed by Beazley JA (as her Honour then was) at [86]–[89] were against the appellant’s contentions and supported the Arbitrator’s view that non-compliance with the procedural requirements of the workers compensation legislation is not fatal to a work injury damages claim. The effect of non-compliance with the procedural obligations depends on whether the employer makes the forensic choice to insist on compliance. Parker SC ADP held it is not necessary to comply with each of the procedural obligations with respect to every body part the subject of a claim for work injury damages. ([77], [79])
6. The evidence before the Arbitrator did not extend to evidence as to how the further loss of hearing may have been sustained other than evidence that the worker was exposed to noise. But the essence of the compromise of litigation is that each party assesses the risks of success. Not everything that motivates the settlement is necessarily disclosed. ([86])

Construction of the Deed

7. In Acting Deputy President Parker’s view, the disposition of the appeal depended on the construction of the Deed and the interpretation of s 151A of the 1987 Act. ([87])
8. A similar argument to what was presented in this appeal was presented to the Court of Appeal in Adams v Fletcher International Exports Pty Limited [2008] NSWCA 238 (Adams), which was rejected by the Court of Appeal. The Arbitrator also cited Heidtmann v Rail Corporation NSW [2018] NSWWCCPD 23 (Heidtmann), which used an identical Deed to the one in the present matter. ([88]–[102])
9. The appellant did not challenge the Arbitrator’s construction of the Deed. In the absence of any, much less a successful challenge to the construction of the Deed, the Deed applied to the injuries specified therein. The Deed provided for payment of monetary compensation for the specified injuries. It followed the appellant had received damages and the claim for compensation for a further loss of hearing was precluded by s 151A of the 1987 Act. ([110])
10. The Deed of release considered by the Workers Compensation Commission in Heidtmann was in the same form as that under consideration in this matter. Although in Heidtmann there were no documents relating to the work injury damages claim in evidence, that was not sufficient to distinguish this matter. The critical consideration was the construction to be given to the Deed. In Heidtmann and Adams the Deed as a matter of construction applied to the worker’s injury. In the Acting Deputy President’s view the Deed in this matter applied to the injury sustained by the appellant on 31 December 2014 in the form of a further loss of hearing. Grounds 2 and 3 of the appeal were not made out and were dismissed. ([111]–[113])

(Adams and Heidtmann applied)

Ground 4

11. Section 234 of the 1998 Act provides: “This Act and the 1987 Act apply despite any contract to the contrary.” It did not make the contract void. Acting Deputy President Parker did not understand the provision to prevent the worker and the employer from resolving by agreement a dispute as to entitlement once the dispute has eventuated. ([121]–[122])

    (Qantas Airways Limited v Gubbins & Ors (1992) 28 NSWLR 26 applied)

12. The Acting Deputy President held there is no prohibition against compromising accrued rights. Section 234 does not prevent parties compromising a claim for compensation or a claim for work injury damages. Furthermore, it was not the contract embodied in the Deed that presented as a problem to the worker, but the receipt of monetary compensation. ([123]–[124])

    (Adams applied)

13. There was no evidence that the Deed of release objectively was intended by the parties to be a commutation agreement. There was no evidence that the agreement was a “sham”. The appellant did not challenge the construction of the Deed. The agreement was plainly a compromise of the appellant’s claims for injury whilst employed by the respondent. The Acting Deputy President rejected Ground 4 so far as it related to s 234 of the 1998 Act and additionally in so far as it related to the commutation provisions of the 1987 Act. ([125]–[126])

Ground 5

14. It is possible to comply with s 151H if the person on whom the claim is made has accepted that the degree of permanent impairment of the injured worker is at least 15%. It is a reasonable inference in this matter that the person to whom the claim was made in 2017 accepted that the permanent impairment was at least 15%. Further, there was a Medical Assessment Certificate for 15%. The Acting Deputy President did not accept that s 151H requires an assessment of 15% for each body part. Ground 5 was rejected. ([132]–[136])

Miller v Secretary, Department of Communities and Justice (No 9) [2021] NSWPICPD 29

WORKERS COMPENSATION – Extension of time pursuant to Part 16.2 of the 2011 Rules; application of estoppel on the basis of Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589

Snell DP

23 September 2021

Facts

This matter had a lengthy history. The deceased worker, Ms Miller, was employed by the respondent who provided community transport for clients to attend medical appointments in north western NSW. Her duties were largely administrative, but she was also required to carry out driving duties when other drivers were not available.

On 14 April 2011, on the return drive from Brewarrina to Dubbo, Ms Miller experienced a severe asthma attack, and despite receiving CPR, passed away. The proceedings were brought by the deceased’s surviving husband and also nominated the deceased’s son as a dependant.

In Miller v The State of New South Wales [2017] NSWWCC 66 (Miller No. 1), Arbitrator Batchelor made an award for the respondent employer. The liability issue before him was whether the deceased’s employment was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease of asthma from which the deceased suffered, in accordance with s 4(b)(ii) of the 1987 Act prior to its amendment by the 2012 Amendment Act.

Miller No. 1 was confirmed on appeal by Parker SC ADP, and also by the Court of Appeal.

Fresh proceedings (Miller No. 4) were commenced, in which injury was instead pleaded under s 4(a) of the 1987 Act. The pleaded injuries were anoxia and cardiac arrest (the direct causes of death) which were pleaded as injuries simpliciter. Both the deceased’s husband (Mr Miller) and her son (Mr Tuhi) were nominated as applicants in these proceedings. Arbitrator Wynyard rejected arguments that these proceedings were prevented by the doctrines of res judicata, issue estoppel and estoppel on the basis of Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 (Anshun estoppel). He made findings of injury in the dependents’ favour. That decision was overturned on appeal by the President (Miller No. 5), and the matter was remitted to Arbitrator Harris. The matter was subsequently reconsidered by the President due to disagreement between the parties regarding the scope of the remitter (Miller No. 7). It was returned to Arbitrator Harris to deal with the issues of issue estoppel and Anshun estoppel, the other issues by that point having been resolved in the claimants’ favour. Arbitrator Harris dealt with those issues in Miller No. 8. The Arbitrator decided the issue of issue estoppel in the claimants’ favour. The employer’s argument based on Anshun estoppel succeeded. There was an award in favour of the employer.

The claimants appealed.

The issues on appeal were whether the Arbitrator erred in:

(a) finding that the appellants did not provide any evidence as to why they chose to argue injury in the manner they did in Miller No. 1 and raise a different injury in Miller No. 4 (Ground 1);

(b) finding that there was no evidence advanced by the appellants as to why the course was taken not to argue the s 4(a) injury in the prior proceedings (Ground 2);

(c) finding that the explanation that the appellants were not aware of the s 4(a) injury and that the further evidence was relevant to that decision did not stand up to any proper analysis (Ground 3);

(d) finding that the respondent could not file evidence explaining as why the appellants were unable to provide evidence in the earlier proceedings, and that it was unreasonable not to do so (Ground 4);

(e) rejecting the appellants’ submissions that the “rules of evidence are not as strictly applied” in the Commission as relevant to the consideration of the Anshun principle (Ground 5);

(f) rejecting the appellants’ submission that the “legislation is considered to be beneficial” to the consideration of the Anshun principle (Ground 6);

(g) deciding that both proceedings relate to the same factual circumstances involving similar causes of action (Ground 7);

(h) finding that the appellants knew at the time of Miller No. 1 that the deceased suffered both an asthma attack (s 4(b)(ii)) and a s 4(a) injury described as anoxia and cardiac arrest (Ground 8);

(i) finding that the factual matrix showed that the subject matter was relevant to the subject matter of the prior proceedings as discussed in Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33 (Ground 9), and

(j) failing to take into account and refer to the obligation to conduct proceedings according to law, with due regard to equity, good conscience, and the substantial merits of the case (Ground 10).

Held: The decision of Arbitrator Harris dated 8 January 2021 was confirmed.

Grounds 2, 3 and 8

1. It was common ground that the respondent carried the onus of establishing a defence on the basis of Anshun estoppel. ([93])
2. The appellants submitted that the s 4(a) injury was not argued in Miller No. 1, as the appellants were unaware of that injury and that the further evidence relied on in Miller No. 4 was relevant to that decision. Snell DP held this essentially restated submissions made before, and rejected by, Arbitrator Harris in Miller No. 8. The Arbitrator rejected the appellants’ submission that they were “unaware at the time of Miller No. 1 of the s 4(a) injury as pleaded in Miller No. 4”. The Deputy President referred to the President’s findings in Miller No. 5 regarding the state of the claimants’ knowledge at the time Miller No. 1 proceeded. Arbitrator Harris rejected the claimants’ submission that, at the time Miller No. 1 proceeded, the claimants were unaware of the injury ultimately pleaded in Miller No. 4. This was based, in part, upon submissions made on the claimants’ behalf when Miller No. 1 was conducted. The Arbitrator’s finding on the appellants’ state of knowledge at that time was based, in addition to the submission in Miller No. 1, on the evidence then available to the appellants and those advising them. ([101]–[102])
3. Snell DP observed that the Arbitrator dealt with the probative force of the additional evidence that was relied on in Miller No. 4. He said that it “almost, if not exclusively, addressed the medical treatment that was available if [Ms Miller] was in Brewarrina at the time of suffering an asthma attack and what may have happened if [Ms Miller] had then sought medical treatment”. The Arbitrator concluded that portions of the additional evidence addressed the nature of Ms Miller’s cardiac arrest and death, but that these matters were already known to the appellants. The Deputy President said this factual finding by the Arbitrator was inconsistent with the appellants’ argument that the additional evidence, postdating Miller No. 1, informed a state of knowledge that ‘injury’ could be established on the basis of s 4(a). Arbitrator Harris made a specific factual finding that, at the time Miller No. 1 was conducted, the claimants were aware of the s 4(a) injury later pleaded and argued in Miller No. 4. ([105]–[106])
4. In Ground 8, error was alleged in the finding that the appellants “knew at the time of Miller No. 1 that [Ms Miller] suffered both an asthma attack (s 4(b)(ii)) and a s 4(a) injury described as anoxia and cardiac arrest”. The appellants made a general submission that the causes of action in s 4(a) and s 4(b)(ii) are “different” and therefore considerations of remoteness and any “fact or conclusions drawn give rise to different considerations because there are different injuries pleaded”. This general submission was not further developed. The arguments made by the appellants, going to the alleged error in the factual finding that they were aware of the availability of the s 4(a) injury at the time of Miller No. 1, raised the following:

(a) The further evidence from Dr Jennings, Professor Fulde and Ms Finlayson’s statement go to the fact that Ms Miller was driving in a remote location and this was a substantial contributory factor to the cardio-pulmonary arrest.

(b) There was an absence of such evidence in Miller No. 1 to support the claim in respect of cardio-pulmonary arrest, an injury within the meaning of s 4(a). ([107]–[108])

5. Snell DP concluded that the Arbitrator in Miller No. 8 addressed these propositions. The Arbitrator’s finding at [112] of his reasons was inconsistent with the appellants’ submissions going to the state of their knowledge at the time of Miller No. 1. This appeal was brought pursuant to s 352 of the 1998 Act and was subject to s 352(5). It is necessary that an appellant establish error of fact, law or discretion. The appellants on this point restated the position they adopted at the arbitration, which was decided against them. Their submissions dealing with Ground 8 made no meaningful attempt to identify relevant error. Ground 8, to the extent to which it involved a challenge to the factual finding regarding the state of the appellants’ knowledge at the time of Miller No. 1, could not succeed. ([80]–[85], [109])
6. Ground 2 also could not succeed. The appellants’ stated reason for not arguing the s 4(a) injury in Miller No. 1 was that they were not aware of the s 4(a) injury and that the further evidence was relevant to that decision. This was contrary to the Arbitrator’s factual finding. Ground 3 similarly could not succeed. Ground 3 challenged the Arbitrator’s rejection of the appellants’ submission that they were not aware of the s 4(a) injury and that such an explanation did not stand up to any proper analysis. This ground was inconsistent with the Arbitrator’s finding, which had not been disturbed, regarding the state of knowledge of the appellants at the time of Miller No. 1. ([110])

Grounds 5 and 10

7. That the rules of evidence do not apply in the Commission is not controversial. Ground 5 sought to identify error in that the Arbitrator “erred in rejecting the [appellants’] submissions that the rules of evidence are not as strictly applied in the Commission as relevant to the consideration of the Anshun principle”. It is not that the rules of evidence are applied in the Commission in a more relaxed fashion than in courts, they do not apply. Procedural provisions such as r 73 of the 2021 Rules do apply, but do not represent a reintroduction of the rules of evidence. Rules of law and principles of procedural fairness also apply. The Arbitrator dealt with the appellants’ submission on this point in his reasons at [141]. ([119]–[120])

   (South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 applied)

8. Snell DP found the Arbitrator observed, correctly, that it was “unclear how that submission [regarding the rules of evidence] explains the failure to raise the s 4(a) allegation in the prior case.” He rejected the appellants’ submission on the point as being irrelevant to the Anshun argument, again in the Deputy President’s view correctly. The appellants, both on this appeal and before the Arbitrator, made no specific argument and cited no authority regarding how the non-application of the rules of evidence affects the operation of Anshun in the Commission. They made no specific argument regarding how, in the circumstances of the case, the non-application of the rules of evidence would affect the result. Ground 5 was without merit and failed. ([122])
9. The submissions in support of Ground 10 were expressed in the most general of terms and essentially expressed dissatisfaction with the result. Section 352(5) of the 1998 Act requires the identification of error of fact, law or discretion. It is not an error that an arbitrator does not explicitly refer to the former s 354 of the 1998 Act (now in s 43 of the 2020 Act). The appellants did not identify how the matters raised in Ground 10 would affect the result. Snell DP noted for completeness that the reconsideration power is now contained in s 57(1) of the 2020 Act. Ground 10 did not identify appealable error and failed. ([123]–[124])

Ground 6

10. The Arbitrator dealt with a submission that the relevant workers compensation legislation is ‘beneficial’ in his reasons at [142]. The appellants sought to distinguish the authorities cited by the Arbitrator on the basis that they involved “individual factual circumstances”, as opposed to “rebutting the principle” of the legislation being beneficial. ([128]–[130])
11. Snell DP held that the authorities of Hunter Quarries Pty Ltd v Mexon [2018] NSWCA 178 and ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1 are binding authorities and he did not accept the proposition that their effect is restricted (as the appellant submitted) to the specific factual circumstances with which they deal. As a general proposition, the legislation is of a remedial nature which requires a beneficial construction, if open. It is necessary that the purpose of the provision being construed be considered. ([131]–[135])

(Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 applied)

12. Snell DP accepted the respondent’s submission that the principle in Anshun “sits comfortably” with the system objectives in s 3 of the 1998 Act. It is also consistent with the President’s statement in Miller No. 5 that Anshun has application in the Commission. ([136])
13. The Arbitrator put the state of the authorities too broadly in simply rejecting the proposition that the “legislation is considered to be beneficial”. The Arbitrator was correct in his comment that it “is otherwise unclear and was not explained by the [appellants] how a beneficial approach to construction of the legislation assists the [appellants] on this issue”. The appellants had not made a submission demonstrating, on the basis of authority or reasoned argument, that acceptance of their argument, that the legislation in a general sense is beneficial, would change the result. Ground 6 failed. ([137])

Grounds 1, 4, 7 and 9

14. The appellants’ reliance on the WIRO funding regime as a matter relevant to why the s 4(a) allegation was not brought in the initial proceedings was, as the Arbitrator correctly observed, unsupported by evidence. The reference to the funding of the legal aid system was unsupported by evidence. Snell DP held that Grounds 1 and 4 did not succeed. ([155]–[156])
15. The appellants, dealing with Ground 7, submitted that the Arbitrator should not have accepted that the appellants “knew at the time of Miller No. 1 that [Ms Miller] suffered both an asthma attack (s 4(b)(ii)) and a s 4(a) injury described as anoxia and cardiac arrest”. This was inconsistent with the Arbitrator’s findings, which were undisturbed, regarding the state of the appellants’ knowledge at the time of Miller No. 1. ([159])
16. The decision in Anshun specifically notes that “contradictory judgments” may come about if they “declare rights which are inconsistent in respect of the same transaction”, though they “may not be pronounced on the same cause of action”. If one assumes the correctness of the proposition that Miller No. 1 and Miller No. 4 involved two different causes of action, this is not inconsistent with the application of Anshun if appropriate, on the facts and circumstances overall. The submission that the proceedings involved two different causes of action would not, if accepted, change the result. Ground 7 did not succeed. ([160]–[162])
17. The appellants submitted it was wrong to hold that because a matter could have been raised in earlier proceedings it should have been. This was the predominant issue raised in Ground 9, that the Arbitrator failed to engage in an assessment of the “evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings”. ([163])
18. The Arbitrator relied in part on the failure of the appellants to put forward any persuasive evidence regarding why they proceeded as they did. This was a factor that was referred to in the reasons of the plurality in Anshun, in which the failure to include the relevant pleading in the original litigation was found to be unreasonable. By bringing the s 4(a) case in the current proceedings, the appellants produced a situation where, on the Arbitrator’s findings, there was inconsistency between the judgment obtained in Miller No. 1 and the findings in Miller No. 4. This was a factor that the plurality in Anshun described as one “of importance”. The fashion in which the Arbitrator dealt with the issue of unreasonableness was consistent with the approach (which the Arbitrator referred to) of the plurality in Anshun. Snell DP could not see that the Arbitrator erred in adopting an approach consistent with that of the High Court in Anshun. Ground 9 failed. ([182]–[183])