Albury Real Estate Pty Ltd v Rouse and anor
[2006] NSWWCCPD 139
•6 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
Reported Decision: Albury Real Estate Pty Ltd v Rouse (2006) 6 DDCR 283
CITATION:Albury Real Estate Pty Ltd v Rouse & anor [2006] NSWWCCPD 139
APPELLANT: Albury Real Estate Pty Ltd
FIRST RESPONDENT: Alice Mary Methuen Rouse
SECOND RESPONDENT: Emily Jane Rouse
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC19226-04
DATE OF ARBITRATOR’S DECISION: 1 April 2005
DATE OF APPEAL DECISION: 6 July 2006
SUBJECT MATTER OF DECISION: Death benefits; sections 25, 26 and 65(13) Workers Compensation Act 1987; notice of claim; dependency; late statements; prejudice
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Diana Benk
FirstRespondent: Nevin Lenne & Gross
Second Respondent: Gibney & Gunson
ORDERS MADE ON APPEAL: Paragraphs 1,2,3,4,5 and 6 of the Arbitrator’s decision of 1 April 2005 are revoked and the following order is made:
“The matter is remitted to a different Arbitrator under section 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 for the Commission to redetermine pursuant to the provisions of section 9A of the Workers Compensation Act 1987 whether employment with the Appellant Employer was a substantial contributing factor to the death of Michael David Rouse on 14 September 2000 and, if so, to make orders for the payment of compensation and interest consistent with the reasons set out in this decision.”
Paragraph 7 of the Arbitrator’s decision dated 1 April 2005 is confirmed.
Costs of the first arbitration proceedings and hearing are to be determined by the Arbitrator who hears and determines the remitted proceedings.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 28 April 2005 Albury Real Estate Pty Ltd (‘the Appellant Employer/Albury Real Estate’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 1 April 2005.
This claim arose as a result of the death Michael David Rouse (date of birth 11 April 1939) (‘the deceased’) on 14 September 2000 as a result of heart failure (to use a neutral term) while he was at work for the Appellant Employer’s real estate business. The First Respondent to the appeal is his widow, Alice Mary Methuen Rouse, (date of birth 27 July 1943) (‘Mrs Rouse’) and the Second Respondent is his youngest daughter, Emily Jane Rouse (date of birth 28 April 1981) (‘Emily’). Before the Arbitrator Mrs Rouse was the applicant and Emily was the second respondent. The deceased has three other daughters who are all independent and make no claim in this matter.
The deceased was a director and manager of that business. As such he was a licensed real estate agent whose duties included sales, leasing, office management and administration. He normally worked from 9.00am until 7.00pm Monday to Friday and 9.00am to midday on Saturdays. He would sometimes work longer hours as well as take work home. Mrs Rouse was also employed by Albury Real Estate as the property manager. The business also employed between five and eight other employees as needed.
On 14 September 2000 the deceased rose at 6.00am and prepared his wife a cup of tea saying that he wished to go to work early as he had a lot to do. He arrived at work with Mrs Rouse at about 8.00am. Mrs Rouse states that the deceased “was not really well and a little tired and stressed” (Mrs Rouse’s statement 17 October 2003 paragraph seven). She added that it was a stressful time in the office “as there had been the introduction of the GST, it was the millennium as well as stress with regard to putting deals together” (Mrs Rouse’s statement 17 October 2003 at paragraph eight). In addition she stated that her husband had been involved in the leasing of an empty building in Hume Street, Albury, involving several shops and factories as well as leasing various shops in Dean Street, Albury and in Wodonga. Many landlords had been ringing the deceased for advice about the general impact of the introduction of the goods and services tax on their properties. Mrs Rouse felt that “things were building up with Michael and in the office generally” (Mrs Rouse’s statement 17 October 2003 at paragraph eight).
The deceased worked consistently throughout 14 September 2000 and stopped for a light lunch with his wife. He then returned to the office to continue his work in his office. At about 3.30pm Mrs Rouse was working in an adjacent office when she heard her husband fall to the floor in his office. She rushed to his aid but was unable to revive him and she suspected that he was probably deceased. An ambulance was called and the report from the Ambulance Service of NSW reveals that it arrived at 3.31pm. The Ambulance officers were unable to detect a pulse and immediately commenced CPR and conveyed the deceased to Albury Base Hospital where CPR was continued without success. Time of death is recorded as being 4.12pm. The hospital notes recorded that the deceased “apparently has had a history of a chest infection and collapsed suddenly at work”.
The coroner’s report of 9 September 2000 states the “Direct Cause” of death to be sudden “rupture of [sic] myocardium left ventricle with large haemopericardium”. The “Antecedent Causes” of death are stated to be “acute myocardial infarction” and “arteriosclerotic coronary artery disease”. The former was said to have been present for two to three days and the latter for three to five years.
Mrs Rouse first gave notice of her intention to claim compensation for herself and Emily in a letter from her solicitor dated 26 June 2003 addressed to QBE Workers Compensation (NSW) Ltd (‘QBE’). The claim was investigated and liability was denied by QBE in a letter dated 19 August 2003 because of “insufficient medical evidence”.
Mrs Rouse filed an Application to Resolve a Dispute (‘the Application’) in the Commission on 24 November 2004 alleging that the deceased died as a result of the “rupture of the left ventricle secondary to myocardial infarction” as a result of “substantial emotional stress in the course of and arising out of employment with the respondent” (Application Part 3). Part 4.6 of the Application claims lump sum compensation of $253,650.00 plus weekly compensation in the sum of $80.00 per week from 14 September 2000 to 27 April 2002 under section 25 and/or 26 of the Workers Compensation Act 1987 (‘the 1987 Act’) and nominates Mrs Rouse and Emily as the only dependants.
By its Reply to Application to Resolve a Dispute (‘the Reply’) filed on 7 December 2004 the Appellant Employer put injury, quantum, section 68A of the 1987 Act, dependency, nexus and section 65(13) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) in issue.
The claim was heard at Arbitration in Albury on 22 March 2005 and decided in Sydney on 31 March 2005. Mrs Rouse and Emily were successful with their claim for compensation and the Appellant Employer now seeks leave to appeal from that decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 1 April 2005 records the Arbitrator’s orders as follows:
“1.That pursuant to section 25(1) and section 26(c) of the Workers Compensation Act 1987 the First Respondent pay the Applicant and the Second Respondent the amount of $253,650.00.
2.That pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998, the First Respondent pay the Applicant and the Second Respondent interest for the amount of $253,650.00, being calculated at a rate of 6% per annum for the period 1 August 2004 to 31 March 2005.
3.The Applicant will receive 75% of the lump sum amounts referred to in orders 1 and 2; whilst the Second Respondent will receive 25% of the lump sum amounts referred to in orders 1 and 2.
4.That pursuant to section 25(1) of the Workers Compensation Act 1987, the First Respondent pay the Second Respondent the amount of $79.70 from 15 September 2000 to 30 September 2000; $80.60 from 1 October 2000 to 31 March 2001; $82.40 from 1 April 2001 to 30 September 2001; $83.90 from 1 October 2001 to 31 March 2002; and $85.30 from 1 April 2002 to 27 April 2002.
5.That the First Respondent pay the Applicant’s costs as agreed or assessed.
6.That the First Respondent pay the Second Respondent’s costs as agreed or assessed.
7.This matter is deemed for the purposes of costs to be a complex matter.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)finding that the provisions of section 65(13) of the 1998 Act applied because Mrs Rouse failed to make a claim within six months of the date of death because of ignorance or other reasonable cause (‘failure to claim within six months’);
(b)concluding that the deceased suffered an injury in the course of his employment (‘injury’);
(c)concluding that employment was a substantial contributing factor to the injury suffered by the deceased (‘substantial contributing factor’);
(d)concluding that Mrs Rouse was dependent upon the deceased (‘dependency of Mrs Rouse ’);
(e)concluding that Emily was totally dependent upon the deceased (‘dependency of Emily – lump sum compensation’);
(f)concluding that Emily was entitled to weekly benefits pursuant to section 25(2) of the 1987 Act (‘weekly compensation’), and
(g)admitting into evidence the statements from Mrs Rouse and Elizabeth Rouse both dated 18 March 2005 (‘late statements’).
LEAVE TO APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. The whole of the award of compensation is challenged on appeal therefore the threshold in section 352(2)(b) is also satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Appellant Employer submits that the appeal should proceed by way of oral argument because of its complexity and because “much will depend on the facts and circumstances surrounding the deceased’s death and the alleged dependency of his widow and one of his daughters” (Appellant Employer’s submissions at page two paragraph eight).
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by Mrs Rouse that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
SUBMISSIONS AND FINDINGS
Failure to Claim Within Six Months
This issue raises the application of subsections (7) and (13) of section 65 of the 1998 Act. These provisions provide:
“(7)Compensation may not be recovered under this Act unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months of the date of death.
(13)The failure to make a claim within the period required by subsection (7) is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either.
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.” (emphasis added)
The Appellant Employer submits that the words “or other reasonable cause” must be read ‘ejusdem generis’ with the words “ignorance, mistake, absence from the State” and the failure by the Arbitrator to apply this principle was an error of law. No authorities are cited for this proposition. The term ‘ejusdem generis’ means where particular classes are specified by name, followed by general words, the meaning of the general words is generally cut down by reference to the particular words, and the general words are to apply to those ejusdem generis with the particular classes (Appellant Employer submissions at paragraph 21).
Mrs Rouse’s evidence established that:
(a)the deceased arranged insurances for the business (transcript page 38 line 11);
(b)she helped to pay the monthly accounts (transcript page 38 line 15);
(c)within months of the death of her husband she had been advised by friends that she “may be entitled to submit a claim” (transcript page 42 line 40 to 52, and Mrs Rouse’s statement of 17 February 2005 paragraph eight);
(d)shortly after the death a friend of the deceased’s asked if the business had “Workcover insurance” and said she “may have an entitlement to workers compensation because Michael died at work” (transcript page 42 line 44 and Mrs Rouse’s statement of 17 February 2005 paragraph eight), and
(e)she knew that QBE was the workers compensation insurer for Albury Real Estate (transcript page 43 line 11).
The submission is made that Mrs Rouse was a director of Albury Real Estate, she knew that the deceased died on the business’s premises and she knew at all relevant times she may have been entitled to compensation (Appellant Employer’s submissions at paragraph 28). It is then submitted that the Arbitrator made an error of fact when he said that Mrs Rouse was “possibly ignorant of her rights to make a claim” (Reasons paragraph 31). It is said that this finding was completely contrary to the evidence and, in any event, possible ignorance is insufficient to discharge the onus (Appellant Employer’s submissions paragraph 28).
At paragraph 21 of his Reasons the Arbitrator stated that the implementation of section 65(7) has “been the exception rather than a rule” and that “that may relate to the wide ambit of discretion available under sub section 65(13) of the 1998 Act”. It is submitted that the Arbitrator’s understanding and experience are irrelevant to the question to be decided and that reference to a “wide ambit of discretion” was an error of law (Appellant Employer’s submissions at paragraphs 22 and 24).
The Appellant Employer also challenges the Arbitrator’s reference to the absence of prejudice to the Appellant Employer “if leave under sub section (13) of section 65 is granted” (Reasons paragraph 28). It is submitted that prejudice is irrelevant and that the sub section does not involve the granting of leave.
It is further submitted that the Arbitrator’s reference to an “overwhelming excuse” in paragraph 32 of his Reasons is an error of law because it is a failure to correctly interpret the operation of the sub section (Appellant Employer’s submissions at paragraph 29).
Reference is then made to the Arbitrator’s Reasons at paragraphs 33 to 36 where he deals with the consequences of the death on Mrs Rouse and other events following the death. The Arbitrator states at paragraph 33 that the possible application of section 65(7) to this case would represent a “callous, harsh and unreasonably draconian quasi-judicial determination”. It is submitted that that conclusion was an error of law and that what is required is a fair and reasoned determination of the issues.
The Arbitrator’s conclusion on this issue was that in accordance with the words “other reasonable cause” in section 65(13) of the 1998 Act and noting in particular the evidence at paragraphs eight and nine of Mrs Rouse’s statement of 17 February 2005, Mrs Rouse should be allowed to pursue her claim (Reasons paragraph 39). The Appellant Employer challenges this conclusion because it does not involve a finding that Mrs Rouse was “at any relevant time ignorant or mistaken about her entitlement to make a claim” (Appellant Employer’s submissions at paragraph 34).
The words used in section 65(13) are virtually identical to those used in section 53(1)(b) of the Workers Compensation Act 1926 (‘the 1926 Act’). Under that legislation it was accepted that ‘mistake’ included a mistake of fact, one of law, and a mixed mistake of fact and law (C P Mills Workers Compensation (New South Wales) second edition (‘C P Mills’) page 466 and Stevenson v Metropolitan Meat Industry Commissioner [1937] WCR 120 at 124-5). In G C Singleton & Co Pty Ltd v Lean (Seymour) [1970] ALR 129 (‘Seymour’) it was held that ‘ignorance’ will include the case where the worker does not know of the need to give the notice within the specified time. Seymour was applied to similar legislation by the South Australian Workers Compensation Tribunal in Zac Paul Williams v WorkCover/GIO Australia (Simar Transit Mixers) [1998] SAWCT 101 where Judge Cawthorne said:
“In my view the failure on the worker’s part to make his claim within the prescribed period should not create a bar to the making of the claim. In reaching that conclusion to my mind two factors stand out. First until the worker saw Dr. Tolis in February 1997 and was told of the seriousness of his injury he had no intention of making a claim for compensation being under the misapprehension that his problem was only one of muscular strain which would eventually resolve. In the light of all of the evidence and in particular that of Mr. McCulloch that was clearly a mistaken view on the worker’s part. Second, although I am prepared to accept that the worker had some understanding of the compensation system having made earlier claims, I accept his evidence that he was not aware that a time limit existed for the making of a claim for compensation. In those circumstances it is my view that the failure of the worker to make a claim within the prescribed period was also occasioned by ignorance (G.C. Singleton and Co. Pty. Ltd. v. Lean (Seymour) 1970 A.L.R. 129) or mistake on his part.”
The phrase ‘reasonable cause’ was considered in Garratt v Tooheys Ltd [1949] WCR 80 (‘Garratt’) at 86-7. In that case Judge Rainbow said at 86:
“The next question is whether the applicant’s failure was occasioned by some reasonable cause. In its context, cause means the grounds which led the workmen to omit to claim. And the mixture of facts, circumstances and motive which constitute the explanation of the failure must be reasonable. It is sometimes argued that the reasonableness of the cause is only to be measured and considered from the viewpoint of the worker and reference is made for example to King v Port of London Authority [1920] AC 1 where Lord Atkinson at page 24 said: ‘Of course it is reasonable cause having reference to the workman himself’. If this argument means that the inquiry is to be limited to discovering whether the worker believed himself to be acting or thinking reasonably that is not the law: cf Brown v Aveling and Porter, (22 BWCC 165 at 169). It is not the worker who is to be reasonable, it is the cause. As Lord Birkenhead said in King v Port of London Authority, ‘the general atmosphere must always be considered’. The reasonableness is to be measured objectively in the light of every circumstance in the case relevant to showing why the failure to claim occurred: cf Atherton v Chorley Colliery Co Ltd (19 BWCC 314).”
Commenting on Garratt C P Mills said at page 468:
“The mixture of facts, circumstances and motive which constitute the explanation of the omission must be reasonable, considered from the view point of the worker not in the sense that he considered his omission reasonable, but rather in the sense that the cause of the omission is reasonable in the light of all the circumstances in which the worker found himself.”
In Garratt the facts were that the worker delayed in making his claim because he did not want to prejudice any retirement benefit he might receive from his employer. It was held that such a reason for delaying was not a ‘reasonable cause’ within the terms of the Act. The word ‘ignorance’ was not in the relevant legislation at that time.
Applying the above authorities to the present case it is my view that the Arbitrator was in error in his application of section 65 in that:
(a)he took into account irrelevant considerations when he said that the implementation of the section has been “the exception rather than a rule” (Reasons paragraph 21) and when he referred to the application of the section being “callous, harsh and unreasonably draconian” (Reasons paragraph 33). What is required is that an Arbitrator consider and apply the words of the legislation rather than a subjective commentary on possible consequences of its application;
(b)he considered the application of section 65 involved a “wide ambit of discretion” (Reasons paragraph 21). There is no discretion in section 65. It does not say that the bar in section 65(7) does not apply if it is just and equitable that it does not apply. What is required is a determination of whether the words of section 65(13) apply to the facts found, and
(c)prejudice to an employer is not relevant to the application of the section.
Whilst the Arbitrator’s application of section 65 involved a number of errors, I have concluded that the correct application of the section to the facts found leads to the same conclusion, namely, that in the circumstances of this case, section 65(7) is not a bar to the recovery of compensation by Mrs Rouse or Emily.
I reject the Appellant Employer’s submission that the words ‘other reasonable cause’ must be read ejusdem generis with the words ‘mistake’ and ‘ignorance’ in the subsection. I know of no authority where such a construction has been applied to this section or its predecessor (section 53) in the 1926 Act or to any similar legislation in Australia or England. The words should be given their ordinary meaning. The word ‘other’ means “existing besides or distinct from that or those already specified or implied; further or additional” (The New Shorter Oxford Dictionary). In my view “other reasonable cause” can be any other event, situation or circumstance that resulted in a claim not being made within six months of the date of injury. I agree with the comment by C P Mills that it is the “mixture of facts, circumstances and motive which constitute the explanation of the omission” that must be reasonable. If the explanation is ‘reasonable’ and if the failure to claim within six months was occasioned by that ‘cause’, then the subsection has been satisfied.
The evidence as to why a claim was not made within six months of the date of death is set out in paragraphs eight and nine of Mrs Rouse’s statement of 17 February 2005. That evidence establishes that Mrs Rouse did not make a claim for compensation in the first six months after her husband’s death because she:
(a)was under too much pressure with the business and personal commitments arising from her husbands death;
(b)was not psychologically or emotionally in a position to consider or pursue a claim, and
(c)thought if she could submit a claim she would “not be entitled to any compensation any way”.
The statement in point (c) above indicates that Mrs Rouse was ‘ignorant’ of her rights and ‘mistaken’ in her belief that, if she could bring a claim, she would not be entitled to any compensation in any event. That mistake influenced her to not pursue a claim in the first six months. It was not until May 2003 that she sought legal advice and became aware of her right to bring a claim. In addition, applying the authority of Garratt, I believe that points (a) and (b) above provide a ‘reasonable cause’ for Mrs Rouse not claiming within six months of the date of death. The report from Dr Penny Egan, a medical doctor and grief and loss counsellor, dated 10 February 2005 corroborates Mrs Rouse’s evidence about her emotional state in the six months after the death of her husband. Dr Egan first saw Mrs Rouse on 7 March 2001, almost exactly six months after the death, and noted that she still felt “stunned, lost, confused and angry. She was finding it hard to accept the reality of Michael’s death and, preoccupied with missing Michael, Alice found it hard to sleep” (Dr Egan’s report 10 February 2005 page one). Dr Egan also noted at page one:
“Since his death in September 2000 Alice had been caught up in keeping their Real Estate Business going. She had sought to contain her distress by focusing on the business needs, of critical importance in a family business. She had felt that until the business was secure she could not take time for herself.”
Under ‘diagnosis’ Dr Egan concluded:
“I felt that Alice was experiencing an appropriated [sic] response following the sudden, unexpected death of her husband and business partner. With a sudden death in an apparently well person, those close to them can experience prolonged confusion and hyper arousal. Alice had experienced severe and prolonged diarrhoea and vomiting when she learnt of Michael’s death and she remained, not unexpectedly, in a state of disbelief for some time.”
The evidence of Dr Egan and Mrs Rouse provided a ‘reasonable cause’ for the failure to bring the claim within six months of the date of death. In addition, I find that Mrs Rouse failed to bring her claim within six months because of a combination of her ignorance about her legal rights and her mistaken belief that if she could bring a claim she would “not be entitled to any compensation any way”. Therefore, the Arbitrator’s ultimate decision on this issue is confirmed for the reasons set out above.
Injury
The Appellant Employer submits that it is not known what the deceased was doing at the time of death. The deceased collapsed in his office at about 3.30pm. That is, he died at his place of work during normal working hours. The evidence established that he had been performing his usual duties throughout the day and there was no evidence that he did anything that would have taken him outside the course of his employment at or about 3.30pm. The evidence in the coroner’s report established the immediate cause of death to be the sudden “rupture of [sic] myocardium left ventricle with large haemopericardium”. That event happened at work and was sufficient to constitute an injury in the course of employment (Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 (‘Zickar’)). The Arbitrator made that finding at paragraph 70 of his Reasons and I see no error of fact, law or discretion in that finding. I reject the Appellant Employer’s submissions on this issue and confirm the Arbitrator’s finding on injury.
Substantial Contributing Factor
A finding that an injury was sustained in the course of employment does not mean that an applicant is therefore automatically entitled to succeed. Section 9A of the 1987 Act must still be satisfied (McMahon v Lagana & anor [2004] NSWCA 164). For the reasons set out under ‘Late Statements’ below, this issue can not be determined on review because of the prejudice I have found suffered by the Appellant Employer by reason of the admission into evidence of two statements which had not been served in accordance with the Workers Compensation Commission Rules 2003 (‘the Rules’). Therefore, the case must be remitted to a different Arbitrator for redetermination of the matter in accordance with this reasons set out in this decision.
Dependency of Mrs Rouse
It is submitted that the Arbitrator made an error of law in posing this question at paragraph 134 of his Reasons:
“At the end of the day, the Commission must consider on the evidence whether, regardless of the presentation of figures, was [sic] the Applicant depended [sic] upon the support of [sic] Deceased at the time of his death?”
It is submitted that the correct “issue was whether or not the Respondent/Widow was dependant [sic] upon the deceased either totally or partially as at the date of death” (Appellant Employer’s submissions at paragraph 50). Both of these quotes are attempts to paraphrase the provisions of section 26 of the 1987 Act which provides:
“26 Death of worker leaving partial dependants
(cf former s 8 (2))
If death results from an injury and the worker does not leave any dependants wholly dependent upon the worker for support, but leaves dependants in part so dependent, the compensation payable by the employer under this Act shall be:(a) if the employer so agrees—the amount that would have been payable under section 25 if those dependants had been wholly dependent on the worker,
(b) if agreement is reached for the payment of an amount less than the amount provided by paragraph (a) and the amount agreed on is approved by the Commission as reasonable and proportionate to the injury to those dependants—the amount so approved, or
(c) in default of agreement as to the amount to be paid or in default of approval by the Commission for payment of an agreed amount under paragraph (b)—such amount (not exceeding the amount provided by paragraph (a)) as is determined by the Commission to be reasonable and proportionate to the injury to those dependants.” (emphasis added)
Given that the Arbitrator reproduces section 26 at paragraph 145 of his Reasons and then refers extensively to the relevant authorities on partial dependency at paragraphs 146 to 153, I do not agree that the Arbitrator has made an error of law in his statement of the issue at paragraph 134 of his Reasons though it could have been more accurately expressed. On reading the whole of the judgment I believe the Arbitrator did address the correct issue so far as Mrs Rouse was concerned. It was conceded that Mrs Rouse’s claim was for partial dependency (Reasons paragraph 144), therefore it was not necessary for him to determine whether she was “totally or partially” dependent. The Arbitrator’s use of the word “depended” appears throughout his Reasons and, in my opinion, is clearly a typing error for “dependent”. Nothing turns on this error.
Assessment of dependency is a question of fact for the Arbitrator (Afjies v Kearney (1976) 180 CLR 199 (‘Afjies’)). In making that assessment the Arbitrator took into account the guidance provided by the Court of Appeal in Warilla Timber & Hardware Pty Ltd v Newton (1995) 11 NSWCCR 546 (‘Newton’) and also correctly took into account “past happenings and future probabilities” (Jeffrey v Commissioner for Government Transport [1957] SR (NSW) 634 (‘Jeffrey’)). The Arbitrator noted that Mrs Rouse and the deceased owned and ran a beef farm at “Felstead”, Table Top. In her statement of 20 October 2004 Mrs Rouse stated that the deceased used to “do a fair bit of work around the farm feeding stock etc and general maintenance” (paragraph five). As a result of her husband’s death she had to pay $15.00 per hour for half a day per week from May to October for someone to cut wood on the farm. In addition she has had to pay for general maintenance work that was previously performed by her husband. In addition, the deceased did some maintenance work on an investment property he and Mrs Rouse owned. After his death, it was necessary for paid maintenance to be done.
Mrs Rouse also gave evidence that the deceased was the “major financial contributor to our relationship” (statement by Mrs Rouse 20 October 2004 paragraph 23). He bought her a lot of expensive jewellery and took the family on holidays “all the time to the beach and to the snow”. On appeal the Appellant Employer conceded that “it is possible that the Respondent/Widow had some entitlement to a lump sum benefit but this has not been established by the evidence” (Appellant Employer submissions paragraph 53).
Whilst there has been no precise calculation of the total value of the “support” provided by the deceased, it is clear from the above evidence that the support provided by the deceased was significant. The lack of exact calculations of the extent of dependency does not matter in the circumstances of this case because, as a result of the finding that Emily was totally dependent upon the decease for support, the maximum lump sum under section 25 of the 1987 Act was payable in any event. The issue of the extent of Mrs Rouse’s dependency was therefore only relevant to determining the question of apportionment between Mrs Rouse and Emily. That issue did not require determination by the Commission because the parties agreed on apportionment. What was necessary was a finding that Mrs Rouse was partially dependent upon the deceased for support at the date of death.
The Arbitrator made that finding but inaccurately expressed his conclusion at paragraph 137 where he said “as of 14 September 2000, the Applicant was depended [sic] upon the support of the deceased”. The error is clearly a typing error, and the correct finding is that as at the date of death Mrs Rouse was “partially dependent for support upon the deceased”. The evidence supports that finding and, subject to the typing error, the Arbitrator has made no error of fact, law or discretion on this issue.
It is submitted by the Appellant Employer that as Mrs Rouse’s annual income for the financial year ending 30 June 2000 ($24,000.00) was greater than that of the deceased’s ($16,000.00) that provides “a very strong suggestion that the Respondent/Widow was not financially dependent upon the deceased” (Appellant Employer’s submissions paragraph 50). I reject that submission as it is contrary to authority. The test is not whether the person is “financially dependent” on the deceased but whether he or she is dependent for “support” (Newton). There are many other factors that go to determining whether a person is partially dependent for support within the terms of section 26 of the 1987 Act. The Arbitrator considered those factors and concluded that Mrs Rouse was partially dependent for support upon her husband at the date of death and I agree with that finding.
The Appellant Employer’s submissions concede that it is “possible that the Respondent/Widow had some entitlement to a lump sum benefit in respect of a relatively minor partial dependency but this has not been established on the evidence” (Appellant Employer’s submissions at paragraph 53). In my view dependency has been established on the evidence.
Dependency of Emily – Lump Sum Compensation
It is submitted that Emily was working at the date of death and therefore can not be regarded as totally dependent (Appellant Employer’s submissions at paragraph 55). No authorities are cited in support of this submission. The evidence on this issue is at paragraph 10 of Emily’s statement dated 28 January 2005. She states that she had obtained casual work performing data entry duties about three days before 14 September 2000, but her “casual position with Drake terminated on 14 September 2002”. Emily’s tax return for 2001 records her total income for that financial year as $1,502.00 ($28.88 per week) for work done as a computer operator. No challenge was made to that evidence and Emily was not cross examined.
The fact of dependency is to be determined at the date of death (Grant v Dick Benbow & Associates (2000) 20 NSWCCR 484 and Grubisich v Broken Hill South Ltd [1932] 6 WCR (NSW) 216), but the extent of dependency is determined by looking at “past happenings and future probabilities” (Jeffrey).
The fact that a person is receiving income from another source does not prevent that person being wholly dependent for support upon the deceased. This issue was considered by the High Court in Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 where it was held that the fact that a widow had personal income of her own did not prevent a finding of total dependency. In that case the court was considering the meaning of the words “wholly dependent upon his earnings”. I do not believe that makes any difference to the force of the authority. Barwick CJ said at 181:
“In my opinion, the notion of total dependency in the case of worker’s
compensation leaves room for a wife to have personal income employed by her
for her personal purposes without trenching on that area of expenditure which
can properly be called expenditure for her maintenance and support. Total
dependency upon the earnings of the husband for support and maintenance does
not mean that the whole of the expenditure which may be made for the benefit
of the wife whether by herself or, for that matter, by her husband is
expenditure for her maintenance and support. Though maintenance and support
are not limited to bare necessities, to legal obligations or to some notional
standard of living, it yet does not extend, in my opinion, to every
expenditure which may be made by husband or wife, whether out of his income orhers.”
In the same case Gibbs J (as he then was) said at 190:
“Although there is little authority on the question that now falls for
decision, it has repeatedly been emphasized, in cases in which workers'
compensation legislation similar in effect to that of Tasmania has been
considered, that the question of dependency is governed by factual and not by
theoretical considerations. It has been held that a mother may be dependent
on a son who has no legal obligation to maintain her but who in fact
contributes to her support: Hodgson v. West Stanley Colliery (1910) AC 229 .
On the other hand, a wife would not be dependent on her husband simply because
she had a legal right to be supported by him: New Monckton Collieries Ltd. v.
Keeling (1911) AC 648 . The fact that a daughter was physically able to
support herself by her own exertions did not prevent her from being held to be
wholly dependent on her father: Simms v. Lilleshall Coal Co. (1917) 2 KB 368 .
The effect of the authorities was summed up in a sentence by Fullagar J. in
Fenton v. Batten (1948) VLR 422, at p 423 , when he said: ‘If the evidence
establishes that the alleged ‘dependant’ relied or relies on another as the
source, wholly or in part, of his or her means of subsistence, then dependency
is established.’ The principle underlying these authorities is that it is the
actual fact of dependence or reliance on the earnings of another for support
that is the test. It follows that the fact that a woman has some property and
income of her own does not prevent her from being wholly dependent on the
earnings of her husband, if in fact she wholly depends on those earnings for
her support, and does not partly support herself out of her own resources. I
do not expect that if this view is accepted there will be many claims for
workers' compensation made by wealthy widows, for in the nature of things it
is unlikely that a woman of substantial wealth would in fact wholly depend on
the earnings of her husband for her support On the other hand, it seems to
accord with the policy of the Act to hold that a woman who in fact wholly
depended on the earnings of her husband for her support should be compensatedaccordingly even if she has some property and income of her own.” (emphasis added)
On the above authorities the fact that Emily was “working” at the date of death did not prevent a finding of total dependency for support under section 25 of the 1987 Act. That is especially so when one considers that her job was casual, her income from that work was very modest, she was a part time student as at 14 September 2000, she had been a full time student up to spring 2000 and returned to being a full time student in autumn 2001, and the work was terminated on 14 September 2000.
The further evidence of Emily’s dependency is set out in paragraph 13 of her statement of 28 January 2005 where she lists the value of the weekly benefits provided to her by her parents as at 14 September 2000. The items total $299.50 per week and include the value of accommodation, meals, motor vehicle expenses, telephone, text books and entertainment. At 14 September 2000 she was living with her parents and was being supported by them. Emily’s own income for the whole of the financial year of 2001 was so modest it could hardly be described as reasonable pocket money. On this evidence it was open to the Arbitrator to find that as at 14 September 2000 Emily was totally dependent for support upon her father.
The Appellant Employer also submits that because of the relative earnings of Mrs Rouse compared to the deceased, Emily was more dependent on Mrs Rouse than on her father. I reject that submission as it is contrary to the Court of Appeal decision in So v So [2004] NSWCA 67 (‘So’) where Santow JA quoted from Gibbs J in Afjies at 208 where his Honour said:
“The question whether there is in fact dependence or reliance at the date of death is not to be answered by looking only to the circumstances as they existed at that date; ‘past events and future probabilities’ have to be considered. The fact that at the date of death a daughter was being supplied with some of the necessities of life by some third person does not necessarily mean that she was not then wholly dependent for her support upon her father. Obviously enough if the assistance provided by the third person was only intermittent or casual, and unlikely to be continued in the future, it would not prevent the daughter from being wholly dependent on her father. But even if the assistance was substantial and likely to be continued, it would not necessarily have the effect that the child had to be regarded as a partial dependent of her benefactor and therefore as not wholly dependent on her father. For example, a child whose home was in the country and who lived with her grandparents while attending a school in the city would not for that reason alone cease to be wholly dependent upon her father.”
The Arbitrator inaccurately expressed his finding on this issue at paragraph 143 of his Reasons where he said Emily “was totally depended [sic] upon her father at the time of death”. The error is clearly a typing error, and the correct finding is that as at the date of death Emily was “wholly dependent for support upon the deceased”. The evidence supports that finding and, subject to the typing error, the Arbitrator has made no error of fact, law or discretion on this issue
Weekly Compensation
This part of the award is challenged on the grounds that at the date of death Emily was over 16 years of age and was not a full time student. That is correct. The evidence is that Emily was born on 28 April 1981 and that she commenced her studies in the degree of Bachelor of Science in autumn 1999 as a full time student at Charles Sturt University and completed her studies in spring 2003. All her enrolments were as a full time student except for spring 2000 when she was enrolled as a part time student. That enrolment covered 14 September 2000 when her father died. The entitlement to receive weekly compensation is set out in section 25 of the 1987 Act which provides:
“25 Death of worker leaving dependants
(cf former s 8 (1))
(1) If death results from an injury, and the worker leaves any dependants wholly dependent for support on the worker, the amount of compensation payable by the employer under this Act shall be:
(a) the amount of $211,850, and
(b) in addition, an amount of $66.60 per week in respect of:(i) each dependent child of the worker under the age of 16 years, and
(ii) each dependent child of the worker being a student over the age of 16 years but under the age of 21 years.
(2) Payments in respect of a dependent child under subsection (1) (b) shall continue:
(a) except as provided by paragraph (b)—until the child dies or reaches the age of 16 years, whichever first occurs, or
(b) in the case of a dependent child who is a student at the time of the worker’s death or after reaching the age of 16 years—until the child dies, reaches the age of 21 years or ceases to be a student, whichever first occurs.
(3) The amount of any weekly payments, or other compensation payable under this Act, shall not be deducted from the amounts referred to in subsection (1) (a) or (b).
(4) If an amount mentioned in subsection (1) (a) at any time after the commencement of this Act:(a) is adjusted by the operation of Division 6, or
(b) is adjusted by an amendment of this section,
the compensation payable under subsection (1) (a) is to be calculated by reference to the amount in force at the date of death.
(4A) If the death of a worker results both from an injury received before the adjustment of an amount mentioned in subsection (1) (a) and an injury received after that adjustment, the worker shall, for the purposes of subsection (1) (a), be treated as having died as a result of the injury received after that adjustment.
(5) In this section:
child of the worker means a child or stepchild of the worker and includes a person to whom the worker stood in the place of a parent.
dependent child of the worker means a child of the worker who was wholly or partly dependent for support on the worker.
student means a person receiving full-time education at a school, college or university.” (emphasis added)
To be entitled to receive weekly compensation it is necessary to establish that the deceased died leaving someone “wholly dependent for support” and that the person claiming weekly compensation is under the age of 16 years or, if over that age, is a “student”. The term “student” is defined to mean “a person receiving full-time education at a school, college or university”. As at the date of death Emily did not come within the definition of a student and was therefore not entitled to receive weekly compensation. The section says that the payments of weekly compensation “shall continue” in the case of a “dependent child who is a student at the time of the worker’s death” (emphasis added). This implies that it does not matter that the child later becomes a full time student as the relevant date when the entitlement to weekly payments crystallises is the date of death.
Therefore, I believe the Arbitrator was in error in finding that Emily was entitled to receive the weekly benefits under section 25(1)(b)(ii) as she was not a full time student at the date of death. That part of his determination is revoked.
Late Statements
The Appellant Employer submits that the Arbitrator was in error in admitting into evidence the statements of Mrs Rouse and her daughter Elizabeth Rouse (‘Elizabeth’) dated Friday 18 March 2005 (‘the late statements’). The late statements were attached to an Application to Admit Late Documents also dated 18 March 2005. It is not clear when the statements were served on the Appellant Employer, but counsel for the Appellant Employer informed the Arbitrator that he did not see them until the morning of 22 March 2005. The Application to Admit Late Documents outlined that the statements were relevant to the issue of injury and whether employment was a substantial contributing factor to the injury. No proper explanation was given in accordance with the Rules as to why the statements had not been attached to the original Application as required by Rule 38. Some explanation for not having obtained a statement earlier from Elizabeth was given ‘from the bar table’ by Mr Best, counsel appearing for Mrs Rouse, but there was no explanation for the late statement from Mrs Rouse. At the hearing in Albury on Tuesday 22 March 2005 the Arbitrator allowed the statements into evidence over objection from the Appellant Employer. The Arbitrator noted from page 14 line 55 of the transcript that:
“All both statements do is to particularise what’s already been a fairly common view taken in these proceedings, and that is that the applicant worker was experiencing stress on or around the day of 14 September 2000. And, as I said, these are strictly factual matter; they’re not issues that deal with any expert opinion; and the witnesses are here to be cross examined.”
The Appellant Employer’s argument is that the admission into evidence of such statements so late in the proceedings in circumstances where the exact nature of the duties performed by the deceased on and before 14 September 2000 was of crucial importance in the proceedings amounted to an error of law or an inappropriate exercise of discretion (Appellant Employer’s submissions paragraph 40). The two grounds of complaint on this issue are that :
(a)the solicitors for Mrs Rouse had not complied with the Rules which require that statements be attached to the Application and late statements should only be allowed into evidence in “truly exceptional circumstances” (Appellant Employer’s submissions at paragraph 38), and
(b)the admission of the statements into evidence so late in the proceedings denied the Appellant Employer the opportunity of seeking an opinion on the evidence from its expert, Professor Hickie (Appellant Employer submissions paragraph 39).
It is true that the solicitors for Mrs Rouse had not complied with Rule 38, but it is not correct to say that ‘late statements’ should only be allowed into evidence in “truly exceptional circumstances”. Under Rule 38(3) the Commission may, “for the avoidance of injustice, allow an applicant to introduce evidence which an applicant would otherwise be prevented from introducing because of the operation of subrule (2)” (emphasis added). The principles to be applied in dealing with an application to admit late documents are set out in Practice Direction 9 which provides:
“In determining an application for leave to lodge late documents, the Arbitrator will take into consideration:
• the submissions of the parties, including, if any, oral or written objections to the
grant of leave,• the effect, if any, on the timely resolution of the dispute, • the extent of the prejudice to the other parties, if any, that would result from
granting leave,• the requirements of the Act and the Rules, and • the objectives of the Commission.”
Point three above is most relevant in the present case. The Appellant Employer’s case was that the “diagnosis as stated in the coroner’s report is not related to the stress at work which is said to have been present in Michael Rouse’s case” (report Professor Hickie 15 December 2004). Before preparing his report of 15 December 2003 Professor Hickie had been sent certain documents including the coroner’s report and the report of Dr McDonald, the deceased’s general practitioner, dated 1 August 2003. Dr McDonald’s report included the following history:
“He had labile blood pressure, and blood pressure was usually elevated when under stress, or when an infection was present.
He was active and carried out heavy physical work on his farm, with cattle, fencing and general maintenance without any symptoms of angina or other cardiac vascular disease. In the office, very little physical work was involved, but he was under considerable stress to arrange leases and sales. As he was the Licencee of the business, he was unable to delegate much of this work.
I am told that on [sic] day of his death, he was involved in several complex commercial leases, which were proving very stressful.”
Dr McDonald concluded his report by saying “Mr Rouse did have labile blood pressure, and at the time of his death, was under stress, which would have been responsible for a rise in blood pressure. This rise in blood pressure would have been the precipitating cause of cardiac rupture”.
In his supplementary report of 28 February 2005 Professor Hickie comments on the reports obtained on behalf on Mrs Rouse from Dr Rosenbaum of 23 November 2004 and 10 February 2005. He was not given Dr Rosenbaum’s report of 20 April 2004. His conclusion was that Dr Rosenbaum failed to differentiate between acute stress and chronic stress. In Professor Hickie’s opinion the deceased’s heart failure could have happened at about the same stage of his life whether he had been at work or not. He did concede that
“…a single, isolated, identified physical or emotional stress in an individual rendered susceptible to harm there from by reason of pre existing heart disease, whether or not previously known or symptomatic, if of sufficient intensity and duration is capable of eliciting adverse cardiac responses that in turn can trigger or hasten certain cardiac lesions such as an acute attack of angina pectoris, a myocardial infarct or sudden cardiac dysrhythmia leading to sudden death.” (emphasis added)
The late statements from Mrs Rouse and Elizabeth added significant and relevant detail to the evidence about the ‘intensity’ and ‘duration’ of the stress the deceased was under on and before 14 September 2000. The additional evidence from Mrs Rouse in her statement of 18 March 2005 that was not in her earlier statement of 8 October 2003 included the following (all references are to the statement of Mrs Rouse of 18 March 2005 unless otherwise stated):
(a)the deceased said it was “imperative that he get to work early” on 14 September 2000 (paragraph two). In her 8 October 2003 statement she said “he wished to go to work soon as he had a lot to do” (paragraph seven);
(b)the deceased said “he had to get the leases executed” (paragraph three). In the 8 October 2003 statement she said “at this time Michael was involved with the leasing of the empty Mate’s building” (paragraph eight);
(c)Mrs Rouse added in paragraph four of the March 2005 statement that “it was extremely important to get the building leased because it was costing the owner a lot of money”;
(d)whilst driving to work on 14 September 2000 the deceased said the pressure was really on at work about the leases (paragraph five);
(e)the deceased said he had an appointment with the accountant to talk about the business finances at 4.00pm on 14 September 2000 (paragraph six);
(f)the deceased mentioned that he was anxious about the new computer system he obtained for the business and about the fact that neither he nor Mrs Rouse had been trained to use it (paragraph seven);
(g)the deceased said he was not feeling well and requested Mrs Rouse to get him some antibiotics as he thought he was getting the flu (paragraph eight). In the 8 October 2003 statement Mrs Rouse said “he was not really well and a little tired and stressed” (paragraph seven);
(h)on 14 September 2000 Mrs Rouse observed her husband “rushing all over the place. He was talking to lots of clients and solicitors on the phone and in person” (paragraph nine);
(i)as 14 September 2000 wore on Mrs Rouse “could see him getting more and more anxious” (paragraph 11);
(j)the deceased had a late lunch for only 10 minutes (paragraph 13);
(k)he said that he didn’t want his daughter Elizabeth to have a long lunch as “there was too much happening” (paragraph 14);
(l)Mrs Rouse described 14 September 2000 as “an extraordinary [sic] busy day for Michael” (paragraph 16);
(m)Mrs Rouse adds that she “saw him become progressively more and more anxious and agitated” (paragraph 16), and
(n)in the morning of 14 September 2000 the deceased looked “washed out but by the afternoon he looked flushed and abnormally red in the face” (paragraph 16).
Points (a), (b) (c) and (g) above might be seen as merely clarifying matters covered in the October 2003 statement but the remaining matters were all new. The fact that this additional evidence was of considerable importance is confirmed when one goes to the Arbitrator’s Reasons at paragraphs 47, 48, 49, 50, 51, 56, 58 and 95 where he quotes extensively from the statement of Mrs Rouse of 18 March 2005 and its references to the stressful events that occurred on or about 14 September 2000 and the effect those events had on the deceased. The Arbitrator refers to Elizabeth’s evidence at paragraph 96 of his Reasons as providing corroboration of some of Mrs Rouse’s evidence. At paragraph 97 the Arbitrator states that the statements of 18 March 2005 merely clarify the earlier evidence in the statement of 8 October 2003 and in Dr McDonald’s report of 1 August 2003. In my opinion the statements of 18 March 2005 went well beyond mere clarification of the earlier statement and their contents were seriously prejudicial to the Appellant Employer because they were served so late in the proceedings giving the Appellant Employer no opportunity to meet the new allegations raised in them. That prejudice was not overcome by allowing the two witnesses to be cross examined because counsel for the Appellant Employer had no material with which he could challenge the witnesses. The fundamental issue in the case was whether the kind of stress belatedly identified in the two statements could have been a substantial contributing factor to the deceased’s death. That issue could not be resolved through cross examination. It had to be resolved through expert medical evidence. The weight to be attached to that expert opinion depended, in a case of this kind, very largely on the history given to the expert.
At paragraph 106 of his Reasons the Arbitrator found that the “highly stressful occasion visited upon the deceased on his last day, being 14 September 2000” (emphasis added) was one of two factors that led to the ruptured ventricle that caused the deceased’s death. In my opinion the evidence in the late statement played a crucial role in the Arbitrator reaching that conclusion.
Counsel for the Appellant Employer raised the issue of prejudice in submissions before the Arbitrator and identified the fact that material had previously been sent to Professor Hickie for his comment (transcript at pages four and five). In his Reasons the Arbitrator stated at paragraph 99:
“The reality is that I can not see how, allowing for an adjournment, this latter [sic] lay evidence could have in any way assisted the Respondent’s case. If anything, I would assume that it was more likely than not that, if the evidence had been presented to Professor Hickie, it may have seen the professor adopting a position less favourable to the Respondent’s case.”
The above opinion from the Arbitrator suggests that he believed the additional material was so helpful to the case for Mrs Rouse that he thought it more likely than not that Professor Hickie would adopt a position less favourable to the Appellant Employer’s case. If that was his view then the material was clearly prejudicial and should have either been excluded or the Appellant Employer should have been given an opportunity to answer it by referring it to its expert for comment.
The Arbitrator then referred to the “old procedure system” applicable in the Compensation Court of NSW where lay evidence was given orally under oath in court (Reasons paragraph 100). That was not a relevant consideration in determining the objection to the late statements. It was necessary to have regard to the Act and Rules and the objectives of the legislation. Section 367 of the 1998 Act sets out the Commission’s objectives. Those objectives include the provision of “a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts” (section 367(1)(a)) and to “provide a timely service” (section 367(1)(c)). There will often be tension between the need to be fair to both sides and the objective of providing a ‘timely’ service. However, where one party seeks to introduce evidence of a particularly prejudicial nature at the 11th hour the requirement to do justice between the parties must take priority over the desire for a timely service. In my opinion it was fundamentally unfair to allow into evidence material of an extremely prejudicial nature that had not been served in accordance with the Rules without giving the Appellant Employer an opportunity to answer it. The Arbitrator misused his discretion by referring to the “old procedure system”, by assuming that any further report from Professor Hickie would be less favourable to the Appellant Employer and by failing to take into account the prejudice the statements would cause the Appellant Employer.
In my view the late statements should either have been excluded or the Appellant Employer should have been given an opportunity to meet the new allegations. If the statements had been excluded before the Arbitrator counsel for Mrs Rouse would no doubt have sought instructions as to how to then proceed with the case. Therefore, with considerable regret, appreciating that a further hearing will course further anxiety and delay, I feel that the only fair option is for the matter to be remitted for a further hearing. At that further hearing it may be necessary for each party to adduce further evidence dealing with the section 9A issue.
It follows that the matter must be remitted to a different Arbitrator for a further hearing on whether pursuant to section 9A of the 1987 Act the deceased’s employment was a substantial contributing factor to his death. If that issue is determined in favour of Mrs Rouse and Emily, then orders for the payment of compensation and interest can be made consistent with the reasons set out in this decision.
DECISION
Paragraphs 1,2,3,4,5 and 6 of the Arbitrator’s decision of 1 April 2005 are revoked and the following order is made:
“The matter is remitted to a different Arbitrator under section 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 for the Commission to redetermine pursuant to the provisions of section 9A of the Workers Compensation Act 1987 whether employment with the Appellant Employer was a substantial contributing factor to the death of Michael David Rouse on 14 September 2000 and, if so, to make orders for the payment of compensation and interest consistent with the reasons set out in this decision.”
Paragraph 7 of the Arbitrator’s decisions of 1 April 2005 is confirmed.
COSTS
No order as to costs of the appeal.
Costs of the first Arbitration proceedings and hearing are to be determined by the Arbitrator who hears and determines the remitted proceedings.
Bill Roche
Acting Deputy President
6 July 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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