Andersen v J & M Predl Pty Limited - [2018] NSWWCCPD 40

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Andersen v J & M Predl Pty Limited [2018] NSWWCCPD 40
APPELLANT:	Shane Lee Andersen
RESPONDENT:	J & M Predl Pty Limited
INSURER:	Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:	A1-845/18
ARBITRATOR:	Ms J Bamber
DATE OF ARBITRATOR’S DECISION:	29 May 2018
DATE OF APPEAL DECISION:	20 September 2018
SUBJECT MATTER OF DECISION:	Causation; application of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796; procedural fairness; adequacy of reasons; test of causation; disturbing findings of fact on appeal
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Carroll & O’Dea Lawyers
Respondent:	McCabe Curwood
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 29 May 2018 is confirmed.

INTRODUCTION

This appeal concerns a claim that the worker sustained injuries in a fall as a result of an accepted pre-existing injury to the left shoulder and a consequential condition in the right shoulder. In particular, the issues on appeal concern whether the Arbitrator took into account irrelevant considerations and denied the appellant procedural fairness, because the Arbitrator failed to determine the matter on the basis of whether an inference could be drawn that the worker would not have sustained the injuries had he braced for the fall. It also concerns whether the Arbitrator provided adequate reasons for rejecting the worker’s argument as to causation and whether the Arbitrator applied the correct test of causation.

BACKGROUND

The appellant, Mr Andersen, was employed by the respondent, J & M Predl Pty Limited, as a tyre fitter and a wheel aligner. On 13 July 2010, Mr Andersen sustained an accepted injury to his left shoulder when a car on which he was working rolled causing a dislocation injury to his left shoulder.
Thereafter Mr Andersen suffered a series of dislocations of his left shoulder. This resulted in surgery to the left shoulder on 11 August 2016.
Mr Andersen alleged that following the surgery he became solely reliant on the use of his right shoulder and began to experience right shoulder dislocations with increasing frequency and severity. On 16 February 2017, Mr Andersen submitted to surgery on the right shoulder.
On 2 July 2017, when alighting from a car, Mr Andersen fell and suffered a fractured right clavicle and other associated injuries. There is some confusion about the date the injuries were sustained, namely 2 or 3 July 2017. As nothing turns on the precise date and as the majority of the evidence refers to the injuries being sustained on 2 July 2017, for the purpose of this decision, that is the date I will refer to throughout this decision.
Mr Andersen alleges that the condition of his right shoulder and the injuries sustained in the fall on 2 July 2017 are consequential conditions on the accepted left shoulder injury sustained on 13 July 2010.
The respondent’s workers compensation insurer, Allianz Australia Workers Compensation (NSW) Limited, issued a series of notices under s 74 and s 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Those notices that related to the consequential condition in the right shoulder are dated 3 August 2016, 17 May 2017 and 31 October 2017. Allianz also denied liability for the injury sustained in the fall on 2 July 2017 on the basis that the injuries sustained in the fall were not consequential to or as a result of the accepted left shoulder injury.
On 19 February 2018, Mr Andersen filed an Application to Resolve a Dispute in the Commission. He sought compensation pursuant to s 60 of the Workers Compensation Act 1987 for treatment of the various injuries that he sustained.
The parties attended an arbitration hearing on 19 April 2018. Both parties were legally represented. No oral evidence was called. The Arbitrator reserved her decision.
On 29 May 2018, the Commission issued a Certificate of Determination and a Statement of Reasons. The Arbitrator noted that the disputed treatment costs associated with the left shoulder injury were resolved between the parties by consent. The Arbitrator found in favour of Mr Andersen in respect of the disputed treatment to the right shoulder. The Arbitrator entered an award for the respondent in relation to the injuries Mr Andersen sustained on 2 July 2017, concluding that they were not caused by or consequential to the injury to his left shoulder on 13 July 2010.
The appellant appeals the Arbitrator’s determination in so far as it relates to the treatment costs associated with the injuries sustained in the fall on 2 July 2017.

ON THE PAPERS

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.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties 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.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

Mr Andersen

Mr Andersen provided two statements. The first statement concerns matters which are not relevant on the appeal. The supplementary statement, dated 20 October 2017, is as follows:
“1.     I refer to my earlier statements and wish to add to it in relation to a fall that I had on 2 July 2017.
2.      On that occasion, at approximately 9.00 pm, I remember driving down to Kurnell with my girlfriend, Bonita.
3.      We go down there quite a lot together to get away and spend some time talking.
4.      My girlfriend was driving as I cannot really drive anymore because of the condition of my shoulders, particularly after my most recent surgery.
5.      My girlfriend drives a Civic Type R. lt is a two door car and the doors are slightly longer than usual doors as a consequence. They are also quite heavy, and need a fair amount of force to be pushed fully opened.
6.      I recall Bonita pulled up at the kerb with my door nearest to the kerb. I opened the door with my left hand and as has become my usual practice I pushed the door completely open with my left foot. I have developed this habit while protecting my left shoulder previously.
7.      I remember stepping out of the car and then became aware that my foot was caught and I was falling. I became aware that my left foot had become caught between the body of the car and the kerb itself and was almost perfectly captured on the front and back of my shoe.
8.      As I went to walk forward, I felt my leg was trapped and I was being pulled back. My memory of the actual fall is hazy and I do not have precise recollections of what occurred at that time.
9.      I remember a feeling of panic as I was falling and then a feeling of ‘protect’, to protect my arms and shoulders. That has become my natural feeling because of the number of surgeries I have had on my shoulders and the problems I have had with dislocations, that I have to actively try to protect myself.
10.    I do not precisely remember my fall.
11.    My next memory is of waking up on the concrete footpath.
12.    I recall I was being rolled over by my girlfriend, Bonita, to see if I was okay. I was on my face when I awoke with my right arm wedged under my chest and my left arm away from my body next to me.
13.    I remember reaching out to find my bearings because I did not know why I was lying on the ground.
14.    As I reached out, I became aware that I had fractured my clavicle as I could feel it moving in my upper chest.
15.    I also recalled that there were two guys passing by who were next to me. As I had no recollection of what happened, I thought they had beaten me up but then I heard them asking if I was okay and I realised they had just come to my aid.
16.    I managed to slowly get up and I was in a lot of pain. I was incredibly worried about my shoulder as I had just had a surgery on it and I was terrified that I had done something to damage the work the surgeon had done.
17.    Bonita took me to Sutherland Hospital.
18.    I have since undergone a repair of my clavicle with the insertion of a metal plate and nine screws. I was lucky I did not have any damage to my shoulder.
19.    I have also sustained a fracture of the temporal bone of my skull which I believe, based on what Bonita has told me about my fall, was likely caused by falling on the point of the corner of the car door. This is a bone near my ear.
20.    I ruptured my ear drum and I am unsure whether that was from striking the car door, although this seems likely given the location of the broken bone to my ear, or from striking the concrete.”

Ms Fragiadakis

Bonita Fragiadakis provided a statement, dated 19 October 2017, as follows:
“1.     I was present on 2 July 2017 when my boyfriend, Shane Andersen, fell and sustained injury.
2.      On the day, it was around 9.00 pm, and we were about 10 minutes from Cronulla at Kurnell.
3.      I had driven Shane and I down to a park in Kurnell where we spend time and we pulled up adjacent to the gutter. Shane was closest to the gutter.
4.      I recall getting out of the car and beginning to walk around the front end of the car when I saw Shane getting out. I saw Shane move awkwardly and begin to spin strangely. He suddenly struck the side of his head on the corner of the car door.
5.      He fell straight down then. lt was an uncontrolled sort of fall onto his right arm.
6.      His right arm appeared to be pinned below him.
7.      I ran around to him and he was face down unconscious with his right arm pinned under his body across his chest like a mummy.
8.      I began to roll him over and he was unconscious for a few minutes.
9.      There was blood coming from his right ear.
10.    As Shane became aware he moved a little and then began saying ‘my collar bone, my collar bone’. He told me he had broken his collar bone.
11.    I took him to Sutherland Hospital and we presented to the hospital at around 9.30 pm.
…
16.    Shane's fall was very awkward and he appeared to drop like a sack of potatoes once he hit the door.
…
27.    Shane has told me a number of times over the years that as his right shoulder has gotten worse he has developed ways of protecting it if he ever trips, falls or stumbles. He told me that one time he tripped on the bed post in our bedroom and instead of falling to the floor he managed to spin and roll his way onto the bed, landing on his back on the soft mattress rather than landing on his shoulder on the floor.
28.    Shane said from the minute we started discussing this fall that he was trying to protect his right shoulder (as he had just had another surgery, and did not want to be set back further).”

Sutherland Hospital notes

The discharge referral notes from Sutherland Hospital, dated 3 July 2017, record a history obtained on admission. It states:
“Fell out of a car this evening
Didn’t use arms to brace his fall as he has had previous shoulder operations and was concerned about injuring them further
Landed on right side of head and tip of right shoulder”

THE ARBITRATOR’S REASONS

The Application – Appeal Against Decision of Arbitrator succinctly sets out the issues that required the Arbitrator’s determination, that is, following the employer’s acceptance of liability in relation to certain medical expenses associated with the left shoulder injury. The issues were:
(a) liability in respect of the right shoulder consequential condition (resulting from the left shoulder injury on 13 July 2010), and
(b) liability in relation to the incident on 2 July 2017. That is, whether the injuries sustained were a consequence of the left shoulder injury and/or the right shoulder consequential condition and/or both.
Having considered the evidence, the Arbitrator found that Mr Andersen sustained a consequential condition in his right shoulder from his accepted left shoulder injury on 13 July 2010. This finding is not in dispute on appeal.
With respect to the fall on 2 July 2017, the Arbitrator noted submissions from the appellant’s counsel that he had developed ways of protecting his right shoulder over the years. Nevertheless, the Arbitrator approached the matter on the basis of what actually occurred on the day of the fall. The Arbitrator referred to Mr Andersen’s and Ms Fragiadakis’s accounts of the accident. She concluded that Ms Fragiadakis could not have seen that Mr Andersen’s foot was caught from her vantage point in the front of the car. The Arbitrator concluded that it was more probable than not that what she saw coincided with Mr Andersen’s account of being pulled back because his shoe was caught. She further concluded that it was more likely than not, on the balance of probabilities, that it was that action that caused Mr Andersen’s head to hit the car door. The Arbitrator stated:
“Ms Fragiadakis then says she saw him suddenly hit his head on the car door and fall straight down. She describes the fall as ‘uncontrolled’.”[1]
[1]Andersen v J & M Predl Pty Limited [2018] NSWWCC 141 (Reasons), [121].
The Arbitrator considered the nature of the injuries sustained, namely a blow to the right side of the head including a minimally displaced fracture to the right temple bone and symptoms of eustachian tube dysfunction. There was also evidence of blood in the right ear and Mr Andersen sustained a fracture of his right clavicle. However, the Arbitrator concluded:
“I have no evidence that those injuries would not have occurred had Mr Andersen used his arms to brace his fall.”[2]
[2] Reasons, [123].
Mr Andersen’s recollection of the events is hazy but Ms Fragiadakis says that Mr Andersen fell straight down after he struck his head on the car door in an “uncontrolled” fall. Therefore the Arbitrator concluded that she was not persuaded that Mr Andersen would have had time to use his arms to brace his fall had he wished to do so.
The Arbitrator found:
“The reason his head struck the car door was because he was pulled back when he tried to walk because he had placed his foot between the car and the kerb, and as he says it was captured on the front and back of his shoe. This had nothing to do with his shoulders. His memory is hazy and while he remembers the feeling of trying to protect his shoulders I am not convinced the evidence supports a finding that he would have had time, had his shoulders not been injured to put his hands out in front of him. Even if he had, there is no evidence that he would not have in any event sustained the fracture to his clavicle.”[3]
[3] Reasons, [125].
The Arbitrator found that it was not clear when Mr Andersen sustained the fracture to his head as Ms Fragiadakis stated that Mr Andersen suddenly struck his head on the car door and fell straight down. This, the Arbitrator concluded, implies some force was involved. The Arbitrator noted some inconsistencies with Ms Fragiadakis’s evidence and the description of the fall in the hospital notes. However, the Arbitrator concluded that it did not matter whether Mr Andersen hit his head on the ground as well as on the car door, because the injury to the head could also have occurred whether or not Mr Andersen braced against the fall.
The Arbitrator applied the principles discussed in Kooragang.[4] She concluded that the chain of causation had been broken “from the disability in both shoulders and a need to protect them”. She further found that the causative chain was broken because the cause of Mr Andersen’s fall was the way he placed his foot, and that he had failed to establish that had he used his arms he would not have sustained the injuries complained of.
[4]Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
The Arbitrator considered the appellant’s submission that he merely has to show that the injury to the left shoulder and consequential condition to the right shoulder materially contributed to the injuries he sustained in the fall. The Arbitrator concluded, “I find that the facts in this case do not support such a conclusion.”
The Arbitrator rejected a submission that this was not a case of a novus actus.[5] The Arbitrator found that the injuries to the clavicle, head and eustachian tube resulted from a subsequent accident on 2 July 2017 which would have occurred had Mr Andersen been in normal health. She found that he fell because his shoe got caught. She considered it too remote, and not supported by any medical or expert evidence, that had he been able to put his arms out he would have avoided the further injuries. Further, the Arbitrator did not accept, on the facts put forward by Ms Fragiadakis, that Mr Andersen would have had time to put his arms out, as the fall was sudden after he hit his head.
[5]State Government Insurance Commission v Oakley (1990) Aust Torts Rep 81-003, 67,577.
The Arbitrator found:
“As stated in Oakley the damage sustained included no element of aggravation of the earlier injury to the shoulders and so the subsequent accident and the further injury should be causally regarded as independent of the first.”[6]
[6] Reasons, [130].
For those reasons, the Arbitrator found in favour of the respondent in relation to the allegation that the injuries sustained by Mr Andersen on 2 July 2017 were caused by or consequential to, the injury to his left shoulder on 13 July 2010 and the right shoulder condition.

GROUNDS OF APPEAL

The grounds of appeal are confined to the Arbitrator’s findings with respect to whether the fall on 2 July 2017 was caused by or consequential to the accepted injury to the left shoulder on 13 July 2010 and/or the right shoulder condition. The appellant alleges that the Arbitrator erred:
(a)    in taking into account irrelevant considerations and denied the appellant procedural fairness;
(b)    by failing to give adequate reasons for rejecting the appellant’s argument as to causation, and
(c)    by failing to apply the correct test of causation.

SUBMISSIONS AND CONSIDERATION

Ground one – The Arbitrator took into account irrelevant considerations and denied procedural fairness

The appellant’s submissions

The appellant submits that the irrelevant considerations were, firstly the Arbitrator’s finding that there was no evidence that Mr Andersen’s injuries would not have occurred if he had used his arms to brace his fall, and, secondly, the finding that Mr Andersen would not have had sufficient time to put his hands up in order to brace his fall.
The appellant submits that “[t]he case was run on the basis of an inference”. The appellant asked the Arbitrator to infer that he would not have sustained the injuries had he braced for the fall.
Further, the appellant submits that the Arbitrator’s findings are not consistent with the way the case was argued at arbitration. He submits that the Arbitrator did not alert the worker’s counsel that she was going to decide the case on the basis she did. It submitted that given that these matters were important to the Arbitrator’s determination, she ought to have brought it specifically to the attention of the appellant’s counsel, and at the very least invited submissions.[7]
[7] Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR, 178–79; Minister for Immigration & Multicultural Affairs, Re; Ex parte Lam [2003] HCA 6; 214 CLR 1, [37].

The respondent’s submissions

The respondent submits that there was an exchange between the Arbitrator and the appellant’s counsel concerning whether the appellant had been injured before he had any opportunity to brace against the fall.

It is not clear that the purported irrelevant considerations played a significant part in the reasoning of the Arbitrator. What is clear is that the Arbitrator found what actually occurred, namely that the appellant struck his head on the car door because his foot was wedged between the car and the kerb.
In terms of the alleged second irrelevant consideration, namely whether Mr Andersen would have sustained the fracture to the clavicle had he been able to brace against the fall, the respondent submits that even if that was deemed to be an irrelevant consideration, it was not material to the fact-finding which formed the basis of the Arbitrator’s decision. That is because the Arbitrator clearly reasoned on a commonsense view of the evidence that it was Mr Andersen’s foot being wedged which caused the fall. That was consistent, so it is submitted, with Kooragang. The Arbitrator’s principal finding was that the injury was caused by the way in which Mr Andersen placed his foot. The Arbitrator added that it had further not been established that had he been able to use his arms, he would not have been injured in any event.
In so far as the appellant submits that the Arbitrator was asked to infer that Mr Andersen would not have sustained his injuries had he braced for the fall, the respondent submits that the relevant consideration is that contained in Raulston v Toll Pty Ltd[8] where there are a number of relevant propositions advanced. First, an Arbitrator may prefer one view of the facts over another, such that a finding may only be disturbed on appeal if “other probabilities so outweigh that chosen … that it can be said that [the] conclusion was wrong”.
[8] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
Second, and significantly, it is submitted that it is not sufficient that a different inference would have been drawn by a Presidential member. The Arbitrator must be shown to have been wrong.
Finally, it is submitted “the available inference in the opposite sense to that chosen … [must be] so preponderant in the opinion of the appellate court that the … decision is wrong”. The respondent submits that the appellant has not overcome this authority.

Consideration

It is important to bear in mind that this is an appeal pursuant to s 352 of the 1998 Act. Appeals under s 352 are characterised by the identification and correction of error.
As the appellant has submitted, the Arbitrator was invited to draw an inference favourable to him. Whether the objective facts supported the drawing of an inference was a question of fact. In determining whether an Arbitrator has erred in a finding of fact, the principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr[9] have been consistently applied in the Commission. Those principles were cited by Deputy President Roche in Raulston:
[9](1966) 39 ALJR 505 (Whiteley Muir).
“19 …
(a)An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.’
20 The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”[10]
[10]Raulston, [19]-[20].
These observations were considered with approval by the Court of Appeal in Northern NSW Local Health Network v Heggie.[11] I intend to apply these principles in the resolution of the appeal.
[11] [2013] NSWCA 255; 12 DDCR 95, [71].
Whether the injuries suffered by Mr Andersen on 2 July 2017 were causally related to the accepted injury to his left shoulder and the consequential condition in his right shoulder required an evaluation of the causal chain, to determine whether the latter injuries resulted from the pre-existing injury/condition.
In Kooragang, Kirby P (as his Honour then was) said that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate.”[12] After referring to earlier English authorities, his Honour added:
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”[13]
[12]Kooragang (Sheller and Powell JJA agreeing), 416G.
[13]Kooragang, 462E.
His Honour said:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”[14]
[14]Kooragang, 463-464.
The application before the Arbitrator failed not because of the extent of the injuries that may or may not have unfolded in the event that Mr Andersen braced against his fall, but because there was a novus actus interveniens (new intervening act). That is, Mr Andersen’s shoe was caught between the gutter and the car he was attempting to alight from. It was that act that the Arbitrator found broke the chain of causation. As the Arbitrator made clear, she found that the injuries suffered by Mr Andersen would have occurred had he been in normal health prior to the incident on 2 July 2017.[15] She rejected his claim that he would not have sustained the injuries complained of but for the pre-existing injury/condition, on the basis that it was simply too remote. They were factual findings that were clearly open on the evidence and reveal no error.
[15] See Reasons, [129].
I reject the submission that the appellant was denied procedural fairness because the Arbitrator failed to determine the matter on the basis of whether an inference could be drawn that the appellant would not have sustained the injuries had he braced for the fall. In submissions before the Arbitrator, the appellant’s counsel stated the following principle applies to the drawing of inferences:
“In Caswell v Powell Duffryn Associated Collieries Limited (1940) AC 152 [Caswell v Powell Duffryn], Lord Wright said, ‘Inference must be carefully distinguished from conjecture or speculation, and there can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases, the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases, the inference does not go beyond reasonable probability, but if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.’”[16]
[16] Transcript of Proceedings, Andersen v J & M Predl Pty Limited (WCC, [2018] NSWWCC 141, Arbitrator Bamber, 19 April 2018) (T), T 26.5
Therefore, applying Caswell v Powell Duffryn, the drawing of an inference required an assessment of the available evidence. That was necessary to determine proved facts from which an inference could be drawn as distinct from mere speculation or conjecture. The Arbitrator considered the available evidence.
The Arbitrator found that the following evidence favoured the conclusion that the injuries complained of resulted from the appellant getting his foot caught between the car and the gutter:
·         Mr Andersen’s evidence that he was being pulled back because his shoe was caught.
·         Mr Andersen’s evidence that his memory of the actual fall was hazy. He did not have a precise recollection of what occurred at the time.
·         Ms Fragiadakis’s evidence that Mr Andersen moved awkwardly, began to spin strangely, struck his head on the corner of the car door and fell straight down.
·         Ms Fragiadakis’s evidence that after Mr Andersen hit his head on the car door he fell straight down in an “uncontrolled” manner.
·         The absence of evidence that the injury suffered by Mr Andersen would not have occurred had he braced against the fall.
I would add that in addition, Ms Fragiadakis’s evidence that Mr Andersen “appeared to drop like a sack of potatoes once he hit the door” favoured the Arbitrator’s conclusion that the injury resulted from Mr Andersen’s foot becoming wedged between the car and the gutter.
The Arbitrator found that the cause of the fall was more likely the fact that the appellant got his foot caught between the gutter and the car. She found that Mr Andersen struck his head on the car because he was “pulled back when he tried to walk because he had placed his foot between the car and the kerb”, which “had nothing to do with his shoulders.”[17] The Arbitrator was correct to find that that had nothing to do with the appellant’s pre-existing injury/consequential condition. Having made that finding, the Arbitrator noted that the appellant’s memory is hazy and while he remembers the feeling of trying to protect his shoulders she was not satisfied that the evidence supported a finding that he would have had time, had his shoulders not been injured, to brace himself for the fall. She added that, even if he had had time, there is no evidence that he would not have sustained the injuries to his clavicle in any event. Those were factual findings that were available on the evidence and disclose no error. It follows from those findings that the Arbitrator implicitly found that the available evidence did not enable her to draw the inference the appellant suggested.
[17] Reasons, [125].
I do not accept that the Arbitrator’s findings in relation to there being no evidence that Mr Andersen’s injuries would not have occurred if he had used his arms to brace his fall, and, that he would not have had sufficient time to put his hands up to brace his falI were irrelevant considerations. Firstly, it was necessary for the Arbitrator to deal with them as they were responsive to the appellant’s submission that there was contemporaneous evidence of Mr Andersen not bracing against the fall as a protective mechanism. Secondly, they were ancillary findings to the primary finding that the injuries were due to the foot being wedged between the car and the gutter.
I reject the submission that the Arbitrator determined the matter on a different basis to that argued by the appellant. The appellant’s complaint is that the Arbitrator did not restrict herself to resolving the dispute by drawing the inferences as the appellant submitted. The submission ignores that the Arbitrator is required to find the objective facts before any resort to inferences may be made.
For these reasons, the appellant has not demonstrated that the Arbitrator erred in declining to draw an inference that Mr Andersen would not have sustained the injuries had he braced for the fall. No error of the kind discussed in Whiteley Muir has been established.
For these reasons, ground one fails.

Ground two – The Arbitrator failed to give adequate reasons for rejecting the appellant’s argument as to causation

The appellant’s submissions

The appellant submits that the worker’s case concerning the fall was about the proper inference to draw in the circumstances.
Before the Arbitrator, the appellant submitted that the inference that should have been drawn was that the appellant did not brace for the fall given the treatment he had had in the past, his habit of protecting his shoulder/shoulders, his recollection of “panic” during the fall and the way he fell (falling in an uncontrolled way). These inferences were consistent with the contemporaneous record of the fall.
Whilst it is clear the Arbitrator rejected the inference sought to be drawn, she did not sufficiently expose her reasoning in doing so.[18]
[18]Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402.

The respondent’s submissions

The alleged inadequacy in the Arbitrator’s reasons is an alleged failure to draw what the appellant considers to be the proper inference, namely that the fall was caused by the original and consequential conditions to the left and right shoulders.
The respondent submits that the Arbitrator exposed her reasons for the conclusions reached. Firstly, the Arbitrator considered the evidence contained in the hospital notes. Secondly, the Arbitrator considered that caution should be exercised when considering the hospital notes as the entirety of the notes was not before her. Thirdly, she noted that Mr Andersen was an unreliable historian. In addition, the Arbitrator stated in her reasons that Mr Andersen’s memory of the actual fall was hazy and that he lacked a precise recollection of what occurred at the time.
The Arbitrator recorded Ms Fragiadakis’s evidence, namely that Mr Andersen suddenly struck the side of his head on the corner of the car door and fell straight down.
These were the reasons the Arbitrator exposed for rejecting the inference that the appellant asked her to draw.

Consideration

The obligation to give reasons must be considered in the statutory context. The statutory duty to provide reasons in the Commission is governed by s 294 of the 1998 Act and r 15.6 of the Workers Compensation Commission Rules 2011 (the 2011 Rules). Section 294(2) of the 1998 Act provides:
“A brief statement is to be attached to the certificate [of determination] setting out the Commission’s reasons for the determination.”
Rule 15.6 of the 2011 Rules provides:
“15.6 Certificates of determination
(1) A statement of the Commission's reasons referred to in section 294 (2) of the 1998 Act is to include:
(a)the Commission's findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b)the Commission's understanding of the applicable law, and
(c)the reasoning processes that led the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission's view of the case made by each of them.”
In NSW Police Force v Newby[19] I considered the nature of an Arbitrator’s duty to give reasons. I said:
“To succeed in having the Arbitrator’s decision set aside on this ground, the Police Force must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator failed to exercise his statutory duty to fairly and lawfully to determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247).”[20]
[19] [2009] NSWWCCPD 75 (Newby).
[20]Newby, [149].
The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision maker.[21] When considering the adequacy of reasons, a decision must be read as a whole.[22]
[21]Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6.
[22]Beale v Government Insurance Office(NSW) (1997) 48 NSWLR 430, [443]–[444].
The Arbitrator clearly articulated the path of reasoning that led to her ultimate conclusion. A summary of the objective facts the Arbitrator exposed in reaching her ultimate conclusion are referred to at [49]. The Arbitrator concluded that notwithstanding Mr Andersen’s accepted injury/condition, the cause of the injuries on 2 July 2017 was a novus actus interveniens. That is, Mr Andersen got his foot wedged between the car and the gutter causing him to strike his head and fall in an uncontrolled manner, or as Ms Fragiadakis said “like a sack of potatoes”. It followed, so the Arbitrator concluded, that because of the circumstances of the fall, the injuries sustained by Mr Andersen would have occurred irrespective of any previous injury or condition.
The Arbitrator considered the available evidence and found that the appellant failed to discharge the relevant onus of proof in support of his case. The Arbitrator considered Mr Andersen’s evidence regarding the circumstances of the fall, together with Ms Fragiadakis’ evidence and the medical evidence, including the Sutherland Hospital notes. As I have said, the Arbitrator found the reason Mr Andersen struck his head was because he was pulled back when he tried to walk due to his foot being caught between the car and the kerb. That had nothing to do with his shoulders. She also found that, even if Mr Andersen had time to brace his fall, there was no evidence that he would not have in any event sustained the facture to the clavicle.
The Arbitrator analysed the significance of the contemporaneous records, namely the Sutherland Hospital notes. She identified inconsistencies between that recorded in the notes and Ms Fragiadakis’s evidence. She concluded that it was not clear when Mr Andersen sustained a fracture to his head because of Ms Fragiadakis’ evidence that he had suddenly struck his head on the car door and fell straight down on to his right arm, and the hospital notes which recorded that Mr Andersen landed on the right side of his head and tip of his right shoulder. The Arbitrator’s reasons reflect that she did not regard the evidence as critical because it did not matter whether Mr Andersen hit his head on the ground or the car door. That was because he could have sustained the injury to his head even if he had been uninjured and able to use his arms to brace his fall.

The Arbitrator considered it too remote and not supported by any medical or expert evidence that had Mr Andersen been able to put his arms out he would have avoided the injuries sustained on 2 July 2017. The injuries sustained included no element of aggravation of the earlier injuries to the shoulders. Therefore, the incident on 2 July 2017 was found to be causally independent of the earlier injury. In other words, the Arbitrator found that the appellant failed to establish a satisfactory factual foundation from which to draw the inference suggested.
For these reasons, having regard to the Arbitrator’s decision as a whole, I am satisfied that the Arbitrator has discharged the statutory obligation to provide reasons. It follows that ground two fails.

Ground three – The Arbitrator failed to apply the correct test of causation

The appellant’s submissions

The appellant submits that the Arbitrator erred in finding that there was a novus actus interveniens event.
The appellant submits that this occurred due to the errors identified above, and in part it occurred as the Arbitrator was too narrowly focussed on the initial cause of the accident, rather than the injuries sustained.
Whether the appellant would have had sufficient time to put his arms out to brace for impact was not relevant. It was enough, so it is submitted, for him to satisfy the tribunal that he simply did not put his arms up, as he believed he was protecting them. Whether the injuries would or would not have occurred by the appellant having his arms out was irrelevant. The appellant submits that he did not put his arms out because he was trying to protect his shoulders. Further, the Arbitrator erroneously narrowed her focus to the proximate cause of the fall rather than the cause/causes of the injuries.[23]
[23] Citing Reasons, [125], [127] and [129].
The appellant submits that it is trite that an injury can have more than one cause.[24]
[24] Citing Cluff v Dorahy Bros (Wholesale) Pty Ltd [1979] 2 NSWLR 435 (Cluff); Conkey & Sons Ltd v Miller (1977) 51 ALJR 585 (Miller); Calman v Commissioner of Police [1999] HCA 60 (Calman); Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy).
The appellant further submits:
“Whilst it may be the case that the fall was caused by the worker's shoe being caught in the gutter, the injuries/consequential conditions, were caused at least in part by the worker's belief that he was protecting his shoulders from the fall - in accordance with his habit and the panic that he experienced - on the day.”
It is submitted that so much is made clear by the contemporaneous record made at the hospital, which, given the Arbitrator’s acceptance as to the reliability of the contemporaneous evidence, had to be accepted. It was never suggested that the appellant lied to medical officers at the hospital.
That being the case, the Arbitrator approaching the case on a commonsense basis, should have found that the worker believed he was protecting his shoulders and therefore fell without seeking to brace the fall.

The respondent’s submissions

The appellant alleges that the Arbitrator erred in finding that there was a novus actus interveniens. However, the submission was not further elucidated by the appellant. The submissions that the Arbitrator took into account irrelevant considerations have been previously dealt with. The Arbitrator did not accept the appellant’s submission that his injuries were caused at least in part by his belief that he was protecting his shoulders from the fall. The Arbitrator clearly reasoned that the cause of the fall was the position of the foot and that this caused the appellant’s head to strike the car door.[25]
[25] Citing Reasons, [120].
The criticism against the Arbitrator pertains to the drawing of an inference unfavourable to the appellant. However, the appellant has simply not established that the preference for the unfavourable inference was fundamentally wrong.
The Arbitrator clearly approached the question of causation on a commonsense basis as required by Kooragang.
The respondent submits that the appellant has not discharged the onus of establishing any errors in the decision of the Arbitrator. On the whole, so it is submitted, the appellant’s case rests on the desire for an inference to be drawn in his favour but he has not established that the Arbitrator was fundamentally wrong in reaching her preferred view of the evidence.

Consideration

The complaint that the Arbitrator erred in her findings in relation to there being a novus actus interveniens was not further developed.
As the appellant correctly identified in his submissions in reply before the Arbitrator, a novus actus interveniens occurs:
“Where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, and the damage sustained include no element of aggravation of the earlier injury, the subsequent accident and the further injury should be regarded as causally independent of the first.”[26]
[26] T 49.4–10.
That is precisely what the Arbitrator found. Namely, the injuries sustained on 2 July 2017 resulted from Mr Andersen getting his foot wedged as he was getting out of a car. The injuries did not result in whole or in part from the pre-existing injury/condition. For the reasons referred to above, that was a factual finding that was open on the evidence and revealed no error.
Further, I do not accept the submission that the Arbitrator erred by focussing on the cause of Mr Andersen’s fall rather than focussing on the injuries that he sustained. Nor do I accept that whether Mr Andersen would have had sufficient time to put his arms out to brace for impact was an irrelevant consideration. The appellant submits that it was sufficient to satisfy the causal connection that the appellant did not put his arms up to brace against the fall because he believed he was protecting them. In other words, the appellant submits that that was because of a conscious protective mechanism. I do not accept that submission. Firstly, the appellant states that his recollection of the events was imprecise and “hazy”. Secondly, the incident unfolded in a matter of moments. I do not accept that Mr Andersen would have had time to consciously analyse what was happening. Thirdly, Mr Andersen suffered a significant blow to his head when his head struck the car door, after which he fell “like a sack of potatoes”. It follows that he fell in a manner beyond his conscious control. I accept that the hospital notes were corroborative of Mr Andersen’s claim that he failed to brace in a protective instinct, however, notwithstanding the content of the hospital notes the objective facts overwhelmingly supported the contrary conclusion.
The appellant’s concept of causation is misconceived. In a consequential condition claim, causation is established if the alleged consequential condition results from the accepted compensable injury/condition. In this case the consequential condition did not result from the injury to the left shoulder and/or the consequential condition in the right shoulder, it resulted from Mr Andersen’s foot being caught while he was attempting to get out of the car.
The appellant submits that although the fall may have been caused by his foot getting caught, it was due in part to his belief that he was protecting his shoulders from the fall. I do not accept that submission. First, the case was not run on the basis that the injuries resulted from more than one cause. The case that was run before the Arbitrator was that the cause of the injury had only one cause, namely Mr Andersen’s failure to brace against impact after getting his foot wedged because of his pre-existing injury/consequential condition. It follows that the Arbitrator cannot have erred in failing to deal with a submission that was not put during the course of argument.[27]
[27]Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111.
Second, although it may be accepted that an injury may have more than one cause, the Arbitrator did not accept, as a question of fact, Mr Andersen’s contention that the injuries were suffered by him because he did not brace against the fall. The Arbitrator correctly found that that was not the case. Mr Andersen suffered a significant blow to the head when he struck the car door and then fell in an uncontrolled manner. Therefore, as the Arbitrator found, the failure to brace was not the cause of the injuries sustained or even a contributing factor. As I have said, that finding was open on the evidence and did not reveal error.
For these reasons, ground three fails.

ORDER

The Certificate of Determination dated 29 May 2018 is confirmed.

Judge Keating

President

20 September 2018