Avnell v The Star Pty Ltd - [2013] NSWWCCPD 17

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Avnell v The Star Pty Ltd [2013] NSWWCCPD 17
APPELLANT:		Jarad Avnell
RESPONDENT:		The Star Pty Limited
INSURER:		The Star Pty Limited
FILE NUMBER:		A1-8829/12
ARBITRATOR:	Ms J Scott
DATE OF ARBITRATOR’S DECISION:		13 December 2012
DATE OF APPEAL DECISION:		8 April 2013
SUBJECT MATTER OF DECISION:		Journey claim; s 10(2) of the Workers Compensation Act 1987; interruption; whether risk of injury not materially increased because of interruption; whether Arbitrator applied the wrong statutory test; reasons; failure to make credit findings
PRESIDENTIAL MEMBER:		Acting President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Carroll & O’Dea Lawyers
Respondent:	Bartier Perry
ORDERS MADE ON APPEAL:		1. The Arbitrator’s determination of 13 December 2012 is confirmed. 2. Each party is to pay his or its own costs of the appeal.

INTRODUCTION

This appeal concerns a claim under the journey provisions in s 10 of the Workers Compensation Act 1987, as it applied prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012. As it was conceded that the worker received his injury after an interruption to a journey from his place of employment to his home, the issue before the Arbitrator was whether the worker had established that the risk of injury was not materially increased because of the interruption (s 10(2)). That issue essentially turned on whether the worker had visited a bar and consumed alcohol during the interruption.

BACKGROUND

The appellant worker, Jarad Avnell, worked for the respondent employer, The Star Pty Limited (Star City), which runs Star City Casino, as a croupier. On 31 December 2008, he started work at 8.00 pm. While his shift would normally have finished at 4.00 am, the evidence established that he worked overtime and did not finish work until approximately 7.25 am on 1 January 2009.
What happened next is the subject of conflicting evidence. Mr Avnell’s ultimate evidence was that, at the conclusion of his shift, he visited a bar known as Score Bar (Score), which is part of the Star City complex, but did not consume alcohol, and left after 30 or 40 minutes to ride his pushbike home. It was agreed that, as he was riding home after having visited Score, he was struck by a taxi and knocked to the ground, injuring his left shoulder, though the exact time of the accident remained uncertain. Star City’s case was that, after finishing work, Mr Avnell drank and played pool at Score for a couple of hours before starting his journey home and that, as a result of that interruption, there was a material increase in the risk of injury.
Star City’s case was largely (but not solely) based on a statement entered in its Figtree Incident Reporting System (which I will refer to as the Figtree report) on 1 January 2009 by Mark Crowley, an occupational first aider employed by another company though working at Star City on the evening of 31 December 2008. That document recorded that the injury occurred at 21:17 on 1 January 2009 and included the following information adjacent to “Injury statement”:
“After work I spent a couple of hours drinking and playing pool in Score Bar. As I was riding my pushbike home a taxi pulled out in front of me and I collided with it and fell heavily. I was not wearing a helmet and aggravated an old shoulder injury.”
Star City also relied on unchallenged evidence from Dr Slezak, consultant physician, that the consumption of alcohol and tiredness would have resulted in a loss of concentration, impaired coordination/reaction time, and would have posed a material risk of Mr Avnell having a bicycle accident on his way home.
In an extempore decision delivered on 12 December 2012, the Arbitrator accepted that Mr Avnell consumed alcohol at Score for a couple of hours before he rode his bike home and that he “was impaired due to a mixture of alcohol and tiredness” (T49.7). Referring to Dr Slezak’s evidence, the Arbitrator said, “impairment occurs with a mixture of alcohol and tiredness” (T49.16).
The Arbitrator concluded that, while there was insufficient evidence before her of the level of alcohol (consumed), she found “that that combination [of tiredness and alcohol] was sufficient to establish that [the] risk of injury was materially increased and therefore” she made an award for Star City.
The Commission issued a Certificate of Determination on 13 December 2013 in the following terms:
“1.     Award in favour of the respondent in respect of the applicant’s claim for medical expenses.
2.     No order as to costs with respect to the applicant. Due to the extent of the factual investigations involved and complexity of the evidence, I uplift the respondent’s costs by 25%.
Findings:
1.     There was an interruption to the applicant’s journey home
2.     The applicant has failed to establish that the risk of injury was not materially increased because of the interruption.”
Mr Avnell has appealed the Arbitrator’s determination.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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.

FRESH EVIDENCE

Star City has sought leave to tender on appeal as fresh evidence or additional evidence a statement from Laura Farrugia, a paralegal employed by Bartier Perry, which recounts details of a conversation she heard between Mr Avnell and his mother at the conclusion of the Arbitrator’s extempore decision.
The fresh evidence is only relevant in the event that the appeal is upheld and I conduct any necessary re-determination. As the appeal has failed, it is not necessary to consider the fresh evidence and I refuse the application to rely on it.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     failing to give sufficient or proper reasons (reasons);
(b)     failing to use or palpably misusing the advantage she had of seeing and hearing Mr Avnell give evidence (reasons);
(c) applying a test of “impairment” in considering the defence under s 10(2) (the statutory test), and
(d)     failing to identify the statutory test she was required to apply (the statutory test).

EVIDENCE

The evidence is in a most unsatisfactory state, with each side tendering hundreds of pages of material, most of which is completely irrelevant to the issue in dispute, and this is the subject of further comment under “Other Matters” below. The following is a summary of the relevant evidence, as appears from the parties’ submissions on appeal and before the Arbitrator.
Mr Avnell’s evidence is in three statements and in his oral evidence before the Arbitrator. An investigator took his first statement on 17 July 2010. In it he said:
(a)     he had no previous injuries associated with his left shoulder;
(b)     he rode his pushbike to work on 31 December 2008 because he knew it would be busy and there may not be parking available and he thought he may have a drink after work;
(c)     he started his shift at 8.00 pm, but was not sure when he was due to finish. It was either 4.00 am or 6.00 am, but he believed he did a couple of extra hours’ overtime. He added (somewhat inconsistently) that he was not sure exactly what time he ceased working but it was certainly sometime after 6.00 am;
(d)     after work, he planned to meet with some friends at Score within Star City. It was normal for him to do that to wind down and maybe play a bit of pool;
(e)     he went to Score after work (on 1 January 2009) and remained there chatting with some friends and waiting to see who was turning up, but he did not have a drink and decided to go home;
(f)      the time between him ceasing work and getting on his bike to commence his normal journey home was “maybe 30 to 40 minutes”. By that stage, he thought it was “still a bit dark”, but he recalled it was daylight by the time he reached home, that he had his headlight and taillight on, and it was a 30-minute ride to his home in Newtown;
(g)     he was riding his bike on the footpath on Pyrmont Street when a taxi suddenly emerged from a street on his right and collided with his bicycle, causing him to fall across the bonnet and land on the road. The taxi then took off;
(h)     he was stiff and sore and, though the front wheel of his bike was bent, he was able to ride home;
(i)      he was quite sure that he had not consumed any alcohol from the time he ceased work until he got home, but he had a drink at home as he was a bit shaken;
(j)      he arrived late for his 8.00 pm shift on the evening of 1 January 2009 and told Casey, a female manager at Star City, that he had been struck by a taxi on his way home. She referred him to the first aid station, where he saw a nurse who took the details and put ice on his left shoulder;
(k)     he reported the accident to the Newtown police a few weeks later (there is no report from the police in evidence);
(l)      he spoke to someone at Star City about lodging a workers compensation claim but was discouraged from doing so, and
(m)   referring to a computerised document which recorded the time of injury as 21:17 (presumably the Figtree report) he said “the whole thing seems very dodgy in that I never said anything about not wearing a helmet and that had nothing to do with it anyway and there has never been an old injury”. He had no idea why it was recorded in that way, but perhaps it was “a matter of me telling the Nurse at the time that I had intended going to the Score Bar and playing pool and having a drink after work”, but that did not happen and he did not have a drink.
In his second statement, dated 14 October 2010, and presumably taken by his solicitor, Mr Avnell said that he had intended meeting friends at Score, but the bar was closed so he left. He had nothing to drink “all throughout the day” and proceeded to ride home in a direct route. He said that the accident happened at about 7.00 am and he confirmed that he was wearing a helmet.
In his third statement, apparently prepared on 31 October 2012, but dated and signed on 20 November 2012, Mr Avnell said that his earlier statement that Score was closed was incorrect and that he did not know why he said it was closed. He denied having told Robert Law, another worker employed by Star City, that he had gone to The Pyrmont (the Pyrmont Bridge Hotel) for a few drinks after work on 1 January 2009 and denied saying to Mr Law that he “had had a few drinks but wasn’t pissed”. Mr Avnell denied having told Matthew Bennett, another Star City employee, that he had been heading back from Star City at around midday when he was clipped by a car.
Other evidence from Mr Avnell included an Employee’s Workers’ Compensation Claim Form (the claim form) he signed on 14 October 2010, in which he said that the accident happened at 7.00 am on 1 January 2009 while riding his bike home from work. Also dated 14 October 2010 is an Employee’s Journey Accident Form (the journey accident form) in which Mr Avnell said he had not taken any drugs or alcohol prior to the accident and that he had a break with friends at Score after he finished his shift and then rode directly home.
Mr Avnell gave the following oral evidence at the arbitration:
(a)     that he had never been exactly sure of the time of the accident and could not remember the time he finished work because he did overtime (T8.15);
(b)     when asked about the inconsistency between his second statement (in which he said that Score was closed) and his journey accident form (when he said that he had a break with friends at Score after he finished his shift), Mr Avnell said “just because it says I had a break at the Score, that could mean I was waiting out the front as well at the time” (T9.4). When pressed about this inconsistency, Mr Avnell said he had no explanation for it (T9.17);
(c)     he had been riding on the footpath and exited the footpath and rode across the road without stopping to look right (T9.40–45);
(d)     it would take him 10 to 15 minutes to change and go to Score and that, having worked three hours and 25 minutes overtime, he would not have arrived at Score until about 7.30 am or 7.45 am (T9.10–24);
(e)     he had never been able to identify the area where the collision occurred (T10.47), because he took different routes home each time;
(f)      when asked why he said in his statement that the accident occurred at about 7.00 am, Mr Avnell said that he was unaware of the time he finished work (T11.22), whether it was 4.00 am or 6.00 am because he was unaware of how long he did overtime;
(g)     when referred to particulars provided by his solicitors that said the accident occurred early in the morning and that it was still “a bit dark”, Mr Avnell said he believed the answer was true because “if the sun’s just coming up and there’s buildings around and there’s – they’re casting shadows” (T12.51);
(h)     he agreed that his answer (that it was a bit dark at the time of the accident, assuming the accident occurred at 8.20 am) was totally wrong (T13.14) but added that he gave his statement “as best he could to [his] recollection at the time” (T13.48);
(i)      he believed that Mr Law’s statement that he (Mr Avnell) had had a few drinks but was not pissed related to other times when Mr Avnell had been to Score, where he regularly drank but not to excess (T15.16);
(j)      he did not believe it was right that he had told Mr Law that he had been to Score on 1 January 2009 and had a few drinks but was not pissed (T15.23);
(k)     he said that the taxi driver would have seen him being catapulted onto his vehicle and then drove off (T18.6–12);
(l)      he agreed he went to Star City’s health unit on the evening of 1 January 2009 and that it made sense that he informed the person there (Mark Crowley) of the events that caused the injury to his shoulder, but denied saying that he spent a couple of hours drinking and playing pool at Score (T21.1–16);
(m)   he disagreed that he told Mr Crowley that he was not wearing a helmet or that he had aggravated an old shoulder injury (T21.30–36);
(n)     he denied having ever had a previous shoulder injury and said he always wore a helmet (T21.39), and
(o)     he said that a lot of the Figtree report was “taken out of context” (T21.42).
Star City relied on statements from several lay witnesses who had limited, if any, direct knowledge of the issue in dispute. Why some of the statements were tendered is unclear.
One statement that was relevant was from Mr Crowley, dated 26 September 2012. As at January 2009, Mr Crowley was employed by Australian Rescue Management Pty Ltd as an occupational first aider to provide first aid services at Star City. He said that he worked at Star City from 7.00 pm on 1 January 2009 until 7.00 am the next day. He was shown an extract of the treatment register made on the night of 1 January 2009, which showed that Mr Avnell attended the health unit at 21:17, was treated by Mr Crowley, and left to return to work at 21:40. He had no recollection of the employee or the incident.
Mr Crowley added:
“11.   When an employee attended the Health Unit requesting first aid for an injury I would question the employee about the nature of the injury and how it had occurred. From this information provided by the employee I could then decide on the treatment required and also determine whether it was work-related or not.
12.    A work-related injury may occur immediately on site, become apparent at home after some identifiable action at work, or it may occur while travelling to or from work (a Journey incident).
13.    The treatment of a non-work related injury was recorded with an entry in the Treatment Register and completion of just two screens in the Figtree computer incident reporting system. It was not required to write an ‘injury statement’ for a non-work related injury but I always included at least a brief one. This was useful in case there were questions about an employee attending the Health Unit or the employee decided to upgrade the matter to a work-related incident at a later date.
14.    Treatment of a very minor work-related injury, such as a small cut, was recorded in a similar way but with a location and a more detailed injury statement included.
15.    Other work-related and journey injuries/incidents were reported by the employee by completing and signing an Employee Accident/Incident Form. If they also attended the Health Unit their treatment would be recorded in the Treatment Register. The information from the Accident/Incident Form was inputted by the medic into the Figtree computer incident reporting system across multiple screens. This generated a sequential Incident Number which was recorded on the Accident/Incident Form and in the Treatment Register.
16.    The extracts which have been provided to me show that Jared [sic] Avnell was in the Health Unit for about 23 minutes on 1 January 2009 from 21:17hrs. He would first have been questioned by me about the circumstances of his injury, the nature and the cause. I treated him by applying an icepack. This was usually for 15 minutes. At that time he would have been sitting in the chair next to the desk at which I would have sat.
17.    While he was resting with the icepack on I would have made the entry in the Treatment Register. I would have also entered information provided by Jarad into the two screens in the Figtree computer incident reporting system. There was ample time to complete this while the injury was being iced.
18.    The injury statement I entered into the computer on that night would have been a summary of what Jarad was telling me at that time, while he was sitting in the chair next to the desk. After entering that information into the computer I would have read it out to Jarad so that he could advise of any amendments, if required.
19.    This was my usual practice especially when an employee reported an incident by completing an Accident /Incident Form. Often I would have to assist the employee in wording their statement if they had poor English skills. I would read it back to them before they signed.
20.    The extracts provided to me also show that the injury was recorded in the Treatment Register as being not-work related (NWR) and no Incident Number was recorded. I would have advised Jared [sic] to complete an Accident/Incident Form for the Journey incident however this would have been his choice to do so and he could have declined. I believe that Jared [sic] Avnell did not complete an Accident/Incident Form when he attended the Health Unit.
21.    I believe that I completed more details than needed in the Injury Statement because I thought that Jared [sic] might eventually decide to complete an Accident/Incident Form. I knew of other Journey incidents for which successful claims had been made, even though they involved having a drink at Score Bar after work, stopping at shops or diverting to a friend’s place. It was routine for even minor vehicle accidents with no injuries to be reported.
22.    The instruction which had been issued to the medics by the Workers Compensation Manager at that time, Jason Spinks, was that the medics should not be making a judgement on whether or not an incident reported by an employee was valid. We were just to enter the incident information into the Figtree computer incident reporting system and the Workers Compensation Department would decide each case on its own merits.”

Star City also relied on a statement from Matthew Bennett, who said that he finished his shift at approximately 8.15 am on 1 January 2009 and went to Score between 8.30 am and 9.00 am, where he saw Mr Avnell sitting with other drinkers holding a beer. He did not know what time Mr Avnell left the bar. He recalled Mr Avnell telling him about his injury a day or two after the incident and saying that he had been heading home from Star City around midday on 1 January 2009 when he was hit by a car.
Mr Bennett also said that he recalled Mr Avnell was punched at Score after a scuffle with another employee, but he could not confirm if that occurred on 1 January 2009, acknowledging it could have occurred on a different morning.
Mr Giammetta, another employee of Star City’s, recalled being at Score on 1 January 2009, after his shift on New Year’s Eve the night before. He did not recall much about being at Score, but he was “pretty sure” that Mr Avnell came into the bar later that morning, perhaps after 7.00 am. As Mr Giammetta had had quite a bit to drink by then, he could not recall much after that time. He said that Mr Avnell generally used to stop in at Score for a beer or two, particularly after he had done some overtime. He did not know what time Mr Avnell left the bar.
Valery Knight, a game supervisor with Star City, said that Mr Avnell phoned her on 2 January 2009 to say he would not be able to work his 8.00 pm shift because he had been hit by a car on his way home from work the previous night. She asked if the accident had happened straight after work and he replied that he had not gone straight home and that it happened sometime after. He did not say he had been at a pub. She clarified that the injury would have happened in the early hours of 2 January 2009, depending on which shift he worked.
Mr Law said that his recollection was “somewhat hazy”, but he believed his first contact with Mr Avnell about his accident was sometime after 9 September 2009, when Mr Avnell enquired about claiming workers compensation for an injury on 1 January 2009. After looking at a note made by Ms Knight, Mr Law said to Mr Avnell “I see here that the incident did not occur straight after work”. He said that Mr Avnell “relayed” to him that he went to The Pyrmont for a drink after work on 1 January 2009 and, after a couple of hours, he left the pub and was struck by a vehicle on his way home. Mr Law recalled Mr Avnell saying “I had a few drinks but I wasn’t pissed”. He recalled Mr Avnell becoming quite defensive when asked whether he had been at The Pyrmont.
Mr Avnell phoned Mr Law again on 25 June 2010 when he asked for “Non Stat” restrictions for four hours due to ongoing pain from what he described as a “non-work related accident” on 1 January 2009.

ARBITRATOR’S DECISION

Noting there had been “some inconsistency in the evidence” (T45.39) given by Mr Avnell, the Arbitrator set out from T45.38 to T46.16 a brief summary of his (ultimate) version of the events on the morning of 1 January 2009. While that summary was not entirely accurate, it has not been specifically challenged on appeal and it is not necessary to deal with the minor inaccuracies.
She acknowledged that the cross-examination brought into question Mr Avnell’s credit and that, as a result of the cross-examination, Mr Avnell accepted that he worked three-and-a-half hours of overtime and could not have finished work until 7.15 am (this should probably have been 7.25 am), that he would have been at Score at 7.30 am, and that it was more like 8.00 am or 8.15 am or, at the most, 8.20 am when the incident happened, if Mr Avnell’s evidence in cross-examination were accepted.
Referring to whether it was dark at the time of the accident, as Mr Avnell said in his first statement and in the particulars provided by his solicitors in November 2012, the Arbitrator said that the incident was unlikely to have occurred until around 8.15 am (if Mr Avnell’s oral evidence were accepted) and the sun was up and Mr Avnell’s evidence (that it was dark at the time of the accident) “was not correct” (T47.11). The Arbitrator later noted that the accident occurred “at least after 8:30 if not more like midday” (T49.10).
She said there was also an inconsistency with regard to Mr Avnell’s statement on 14 October 2010 and the journey accident form completed on the same day.
She referred to Mr Giammetta’s evidence that, though his recollection was vague, he recalled seeing Mr Avnell after 7.00 am at Score. She also noted Mr Bennett’s evidence, which was also a little vague as to when he observed things (though this seemed to relate to the scuffle in which Mr Avnell was involved), that he saw Mr Avnell when he (Mr Bennett) arrived at (Score) at 8.15 am (Mr Bennett’s evidence was that he arrived at Score between 8.30 am and 9.00 am, but nothing turns on this error). Referring to Mr Avnell’s evidence that he did not even recall a Matthew Bennett, the Arbitrator said there was a “clear inconsistency there” (T47.43).
She placed no weight on the evidence from Mr Law, noting his “hazy recollection” (T45.46), and referred to one other lay witness whose evidence was of no probative value.
The Arbitrator then said that Mr Crowley’s statement and his report were “significant” (T48.1) to her because, as a former employee, he was an “indifferent person” (T48.3) and provided the earliest recording of injury which was “very strong evidence” (T48.4). (The statement that Mr Crowley was a former employee was incorrect, but makes no difference to the finding that he was an “indifferent person” and therefore an independent witness whose evidence was entitled to be assessed on that basis.)
Referring to the Figtree report (though she did not describe it that way), she said that it recorded that the incident took place on 1 January 2009 at around 21:17. Though the Arbitrator placed no weight on the time of 21:17, which the parties agreed was incorrect, she said that the entry had “pushbike injury, vehicle accident, shoulder left side, sprains, strains and joint” (T48.11). She then set out the critical part of the entry (reproduced in full at [4] above), namely, that after work Mr Avnell “spent a couple of hours drinking and playing pool in Score Bar”.
Noting that Mr Avnell denied “categorically” (T48.29) that he had ever had an injury to his left shoulder, the Arbitrator referred to “a report of injury illness” which referred to Mr Avnell having had left shoulder strain on 5 September 2008 with an “end date” of 10 September 2008, which was “obviously inconsistent” (T48.37) with Mr Avnell’s evidence.
She concluded as follows, starting at T48.51:
“In this case, I find that there was an interruption. Secondly, I rely on the clearest of evidence and the evidence closest to the time and that is the documentary evidence created by Mr Crowley that night. He had no axe to grind. He put into the first person and provided what information was provided to him in short succinct terms and that is that the Applicant did go to the Score Bar for a couple of hours. He did consume alcohol and then he journeyed home.
I do find that the worker therefore was impaired due to a mixture of alcohol and tiredness. When we consider he commenced his job at 8:00pm the previous night and that it was at least after 8:30 if not more like midday, that he was – that the incident occurred. It is a lengthy time with time at the Score Bar which he did – he undertook on his own volition. And we then have a situation where we’ve got Dr Slezak’s report where the premise isn’t in dispute where, Dr [inaudible 2:16:53.1] indicates that there is – impairment occurs with a mixture of alcohol and tiredness.
There is not – insufficient evidence before me as to the level of alcohol but I do find that that combination was sufficient to establish that risk of injury was materially increased and therefore I make an award for the Respondent.
Is there anything further from either – no? Thank you. I make no order as to costs. Thank you.”

REASONS
Submissions

Counsel for Mr Avnell, Mr Stockley, submitted that the Arbitrator failed to deal with Mr Avnell’s oral evidence at all. Her approach, so it was submitted, was simply to record the various versions and some of the arguments. Her determination is devoid of analysis or reasoning and, while the result which she favoured is clear, the particular facts which she may have found were not.
Mr Stockley acknowledged that the Arbitrator referred to Mr Crowley’s evidence, but said that he was not a witness to anything in issue. Rather, his version was proffered as “an admission against interest”. The weight and utility of Mr Crowley’s evidence could only be determined by reference to what the Arbitrator made of Mr Avnell’s evidence.
Having had the opportunity of seeing and hearing Mr Avnell give oral evidence, the Arbitrator made no comment as to her impression of him and made no observation as to why she (presumably) rejected his account.
Some of the evidence before the Arbitrator differed from Mr Avnell’s version of the relevant events and that is why there was a credit issue. The Arbitrator’s approach was simply to record the various versions and some of the arguments. Her determination was devoid of analysis or reasoning.

Discussion and findings

I do not accept these submissions.
The principles dealing with the requirement to give reasons are well established and it will suffice to refer here to only a few of the relevant authorities.
An Arbitrator has a duty to refer to the evidence relevant to the submissions advanced and the findings relevant to the conclusions reached. It is not a duty to refer to every submission and every piece of evidence (Huntsman Chemical Company Australia Pty Ltd v Narellan Pools Pty Ltd [2011] FCAFC 7 at [44]). The extent and content of the reasons will depend on the particular case and the issues under consideration, but it is essential to expose the reasoning on a point critical to the contest between the parties (Abdel Naser Qushair v Naji Raffoul [2009] NSWCA 329 at [52], summarising Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 and citing Soulemezis v Dudley(Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259, per Kirby P; at 280, per McHugh JA).
An Arbitrator does not have to make explicit findings on each disputed piece of evidence, “especially if the inference as to what is found is appropriately clear”, but “should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found” (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 (Beale) at 443). It is not an error of law to omit to state expressly a finding that is clear on a fair reading of the decision-maker’s decision (Polglaze v Veterinary Practitioners Board (NSW) [2009] NSWSC 347 (Polglaze) at [46] and [55]–[56]).
Consistent with Beale and Polglaze, it is not an error if the foundation for the Arbitrator’s conclusion is indicated “as a matter of necessary inference” (Sun Alliance Insurance v Massoud [1989] VR 8 at 19 (cited with approval in Musija v Kresa [2010] VSCA 163 [54]–[58])). There is no need to expressly reject evidence if it can be inferred that it has been rejected by the acceptance, for reasons given, of contrary evidence (National Australia Bank Ltd v KRDV [2012] FCA 543; 292 ALR 639 at [61]).
A tribunal must give reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence (McHugh J, sitting as a single judge of the High Court, in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405 at [67] (cited and applied in Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326 at [52])).
Finally, a fine-tooth comb designed to detect any loose language or inapt phrasing is not a useful tool to bring to such a task. It is necessary to have regard to the overall sense and import of the reasons, read as a whole and without an eye attuned to the detection of error (Apache Northwest Pty Ltd v Department of Mines and Petroleum [2012] WASCA 167). This is consistent with the decision of Kirby J in Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115 at [64], where his Honour said that courts should avoid an “overly pernickety examination of the reasons” and that the “focus of attention is on the substance of the decision and whether it addressed the ‘real issue’ presented by the contest between the parties”.
Consistent with the above authorities, the Arbitrator’s reasons complied with her duty to explain the basis for her conclusion.
The Arbitrator’s statement that there had been “some inconsistency” (T45.39) in Mr Avnell’s evidence was correct. Moreover, she properly acknowledged (at T46.37) that the cross-examination brought into question Mr Avnell’s credit.
The inconsistencies to which the Arbitrator referred related to:
(a)     the time of the accident, and whether it was still dark when it occurred;
(b)     whether Mr Avnell had suffered a prior shoulder injury, and
(c)     whether Score was open or closed on the morning of 1 January 2009.
The Arbitrator expressly found, based on the time of sunrise on 1 January 2009, and other evidence, that Mr Avnell’s evidence in his first statement, that it was “still a bit dark” at the time of the accident was not correct (T47.11). She found (at T49.10) that the accident happened “at least after 8:30 if not more like midday”. Though Mr Avnell conceded in cross-examination that the assertion in his first statement that it was still a bit dark when the accident happened was wrong (T13.15), it was nevertheless an inconsistency going to the critical issue of when he left Score and to the reliability of Mr Avnell’s evidence in general.
Dealing with whether Mr Avnell had suffered a prior shoulder injury, which the Arbitrator said Mr Avnell “categorically” (T48.29) denied, the Arbitrator referred to documentary evidence (the authenticity of which was not challenged) that established he had suffered a left shoulder strain on 5 September 2008. Her description of that documentary evidence as “obviously inconsistent” (T48.37) with Mr Avnell’s evidence was appropriate and involved a clear rejection of his evidence.
On the issue of whether Score was open on the morning of 1 January 2009, the Arbitrator referred to the inconsistency between Mr Avnell’s second statement, in which he said that Score was closed when he went there on the morning of 1 January 2009, and his journey accident form, in which he said that he had a break with friends at Score after he finished his shift.
When cross-examined about his inconsistent evidence about whether Score was open, Mr Avnell initially said, “just because it says I had a break at the Score, that could mean I was waiting out the front as well at the time” (T9.4). Mr Avnell was then asked, at T9.8:
“Q. Well I’m not asking you what was happening. You identified in one document that you had a break with friends at Score and in the other document you said it was closed. I’m asking you why on the very same day you appear to make two totally inconsistent Statements. Do you have an explanation for that?
A. Ah, were these Statements made on the same day?
Q. Well you tell me. You dated it, you signed both.
A. I don’t have any explanation for that.”
In the absence of an explanation for a significant inconsistency in his prior statements, which were given on the same day, it was not necessary for the Arbitrator to deal further with this evidence. On reading the Arbitrator’s reasons as a whole, her noting of this unexplained inconsistency, along with the other inconsistencies noted, was a clear indication that Mr Avnell’s evidence was unreliable.
After referring to the inconsistencies in Mr Avnell’s evidence, the Arbitrator said that she preferred the evidence in the Figtree report, which Mr Crowley had created, and which she found “significant”. Her reasons for doing so were:
(a)     it was the “clearest of evidence” and the evidence “closest in time” to the accident;
(b)     Mr Crowley had no “axe to grind”;
(c)     Mr Crowley put into first person the account provided to him and recorded in the Figtree report, and
(d)     the account provided to Mr Crowley was in short succinct terms and was that Mr Avnell had gone to Score for a couple of hours and had consumed alcohol.
The above reasons were open on the evidence. As Mr Crowley had no continuing association with Star City, his evidence was genuinely independent and entitled to considerable weight. The preparation of the Figtree report was fully explained by Mr Crowley and his explanation went to its reliability and authenticity. That the Figtree report was written in first person, was in clear and succinct terms, and was recorded within hours of the accident were factors that were proper to take into account in weighing its probative value.
In these circumstances, the Arbitrator was entitled to prefer the evidence in the Figtree report to the inconsistent evidence of Mr Avnell. Her acceptance of the account in the Figtree report necessarily involved a rejection of Mr Avnell’s evidence, which was incorrect on the issue of the lighting at the time of the accident, was inconsistent with documentary evidence on the issue of whether he had a prior shoulder injury, and was internally inconsistent as to whether Score was even open on the morning of 1 January 2009 (an inconsistency for which Mr Avnell had no explanation).
On the critical issue of whether Mr Avnell had been drinking before he rode home, the Arbitrator acknowledged the vagueness of Mr Giammetta’s recollection, and that Mr Bennett’s evidence was also a little vague as to the days on which he observed things, and therefore based her conclusion on the “clearest evidence”, which had been recorded in the Figtree report on the day of the accident.
Dealing with the Figtree report, Mr Avnell said in his first statement that “the whole thing seems very dodgy”, that he never said anything about not wearing a helmet and there had never been an “old injury” (to his left shoulder). With regard to Mr Avnell’s assertion that there had never been an old injury, I have already noted the Arbitrator’s observation that that was “obviously inconsistent” with the documentary evidence. Other than the assertion that the Figtree report seemed “very dodgy”, Mr Avnell could not explain its contents.
The submission that, having seen and heard Mr Avnell give oral evidence, the Arbitrator made no comment as to her impression of him, does not advance Mr Avnell’s position. The Arbitrator was not obliged to make such a finding. Indeed, the authorities establish that caution should be exercised against placing too much reliance on the appearances of witnesses rather than on “contemporary materials, objectively established facts and the apparent logic of events” (Fox v Percy [2003] HCA 22; 214 CLR 118 at [31]). The Arbitrator relied on the near contemporaneous record in the Figtree report, and the objectively established evidence as to when Mr Avnell finished work, in preference to his later inconsistent evidence.
In the circumstances, it is of no consequence that the Arbitrator made no comment of her impression of Mr Avnell. Her reference to the inconsistencies in his evidence, when viewed against her acceptance of the Figtree report, was sufficient to discharge her duty to explain the basis for her conclusion. To the extent that the Arbitrator had to “resolve” any credit issue, it is clear from a reading of the decision as a whole that she did so by accepting the near contemporary evidence in the Figtree report and (implicitly) rejecting Mr Avnell’s evidence.
The submission that Mr Crowley’s evidence was proffered (only) as an admission against interest is unpersuasive. It was evidence of how the Figtree report came into existence and was relevant the weight to be attached to it. For the reasons explained above, it was open to the Arbitrator to accept the Figtree report in preference to Mr Avnell’s evidence.

Last, whether there has been a failure to give reasons must be assessed in light of the submissions made and the general conduct of the case at arbitration. In the present matter, the Arbitrator asked the parties if any further reasons were required and was apparently told “no”. In these circumstances, it is difficult to see how the appellant can complain that the Arbitrator erred in failing to give adequate reasons. She did not. She explained the basis for her conclusion and was not requested to expand on that explanation when the parties were given an opportunity to make such a request.

THE STATUTORY TEST

Submissions

Mr Stockley submitted that the Arbitrator erred in applying a test of “impairment” (T49.6) in considering the defence under s 10(2) and did not apply the correct statutory test, but made a positive finding that Mr Avnell was “impaired due to a mixture of alcohol and tiredness”, which was the closest she came to identifying the statutory test.
In submissions filed on 2 April 2013, which purported to be in reply to Star City’s submissions of 26 March 2013, Mr Stockley raised a new issue. He submitted that the Arbitrator made no specific finding about the amount of alcohol Mr Avnell consumed and did not find that he had consumed sufficient alcohol to satisfy the condition assumed by Dr Slezak. She did not find that Mr Avnell had failed to negative the assumption made by Dr Slezak of three 4.5 units of alcohol over a two-hour period and, whatever the legal test, she was obliged to deal with this aspect of the evidence and make a finding. By not making a finding, the Arbitrator erred.

Discussion and findings

I do not accept Mr Stockley’s submissions.
Section 10(2) provides:
“(2) Subsection (1) does not apply if:
(a) the injury was received during or after any interruption of, or deviation from, any such journey, and
(b) the interruption or deviation was made for a reason unconnected with the worker’s employment or the purpose of the journey,
unless, in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation.”

Looking at the legislation, the Arbitrator correctly observed that Mr Avnell acknowledged there had been a deviation (or interruption) and that (in these circumstances) “the onus pursuant to a section 10(2) is on the worker to establish the risk of injury was not materially increased because of the interruption or deviation” (T48.47). This was a correct statement of the statutory test, and of who carried the onus of proof (Babcock Australia Ltd v Proudfoot [1993] NSWCC 30; 9 NSWCCR 525) once it was established (as it had been in this case) that the injury was received during or after an interruption of, or deviation from, a journey to which s 10 applies.
After referring to the evidence in the Figtree report, the Arbitrator found that Mr Avnell was “impaired due to a mixture of alcohol and tiredness”, noting Dr Slezak’s evidence that impairment occurred with a mixture of alcohol and tiredness. The reference to Mr Avnell having been “impaired” was merely a preliminary (and accurate) statement based on the unchallenged evidence from Dr Slezak. That was not, however, the test the Arbitrator applied and her analysis did not end with, or depend on, that statement.
She added that, while there was insufficient evidence before her as to the level of alcohol (Mr Avnell consumed), she found that the combination (of tiredness and alcohol) “was sufficient to establish that the risk of injury was materially increased” and she therefore made an award for Star City. This was, on one view, an incorrect application of the statutory test because it (wrongly) implied that it was for Star City to prove a material increase in the risk of injury.
Once it was accepted that the accident occurred after an interruption, it was not necessary for Star City to establish that the risk of injury was materially increased. Rather, as the Arbitrator initially stated, Mr Avnell had to establish that the “risk of injury was not materially increased because of the deviation or interruption”.
While a negative proposition may be inferred from all the evidence tendered (Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 at [78]), in the present case, once it was accepted that Mr Avnell had been drinking for a couple of hours after working all night, there was no evidence from which to infer that the risk of injury was not materially increased, but there was strong (unchallenged) evidence from Dr Slezak that it had increased.
If Star City had carried the onus of proving that there had been a material increase in the risk of injury, the evidence from Dr Slezak was sufficient to discharge that onus. It was not, however, necessary for the Arbitrator to make a positive finding that there had been a material increase in the risk of injury. She merely had to find that Mr Avnell had failed to establish that the risk of injury was not materially increased. The Arbitrator’s acceptance of Dr Slezak’s unchallenged evidence made it impossible for Mr Avnell to discharge that onus.
In these circumstances, if the Arbitrator expressed the statutory test incorrectly (which I do not accept), and if she reversed the onus on the question of whether there had not been a material increase in risk (which she may have done, notwithstanding that in another part of her decision she acknowledge that the worker carried the onus (T48.47)), her error has not affected the outcome. On the evidence tendered, applying the correct onus of proof leads to the same result because Mr Avnell has not established that the risk of injury was not materially increased because of the interruption.
Dealing with the new issue raised in Mr Stockley’s submissions in reply, which was not properly a submission in reply and should not have been raised in reply, it is correct that the Arbitrator did not make a specific finding as to the amount of alcohol Mr Avnell consumed. As the case was run on the assumption that Dr Slezak’s evidence was not challenged, she was not required to do so.
At the arbitration, counsel for Star City submitted (at T40.48) that Dr Slezak was “entirely correct” and “[i]t [the accident] was [caused by] a combination of tiredness and alcohol” (at T41.2) and Dr Slezak’s evidence was sufficient “to show that there has been a material increase in risk of injury”. He added that there had been no attempt by Mr Avnell to “negatise” that evidence other than to say that he (Mr Avnell) should be believed (when he said he had not consumed any alcohol).
After saying that he did not challenge Dr Slezak’s “scientific reasoning” (T25.37), and that Mr Avnell did not challenge the general proposition that “the consumption of alcohol with its depressive effect on motor co-ordination and reaction times and so on by its nature increases the risk of injury” (T25.44), Mr Stockley said that the interruption at Score was not one that involved the consumption of alcohol. That was the basis on which Mr Stockley ran the case at arbitration.
Mr Stockley added at T42.22:
“What [Dr Slezak’s] saying is that if this man has consumed two or three schooners of full strength beer before setting off on his pushbike, there would have been a material increase in risk and that’s a proposition that we don’t challenge…”
It follows that the contest was not about how much alcohol Mr Avnell consumed, but about whether he consumed any alcohol. Having accepted that he was at Score drinking for a couple of hours, it was open to the Arbitrator to accept Dr Slezak’s unchallenged evidence and to find that the interruption had materially increased the risk of injury.
For the same reasons, it was not necessary for the Arbitrator to make an express finding that Mr Avnell had consumed sufficient alcohol to satisfy the condition assumed by Dr Slezak. This issue did not arise at the arbitration because Dr Slezak’s evidence was not challenged.
It is correct that, as Mr Stockley submitted in his further submissions on appeal, the Arbitrator did not make an express finding that Mr Avnell “had failed to negative the assumption made by Dr Slezak of three 4.5 units of alcohol over a 2 hour period”. However, Mr Stockley made no submission at the arbitration along these lines and it is not open on appeal to argue that an Arbitrator erred in failing to deal with an issue never raised (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111). (I note that this submission was inaccurate in any event. Dr Slezak assumed that Mr Avnell consumed “3–4.5 units of full strength beer”. This makes no difference to my conclusion.)
Mr Avnell’s case was that he had not been drinking. The Arbitrator rejected that case and accepted the evidence in the Figtree report that he had been drinking for a couple of hours. That was the assumption made by Dr Slezak and it was therefore open to the Arbitrator to accept his evidence. Accepting Dr Slezak’s evidence necessarily involved an implicit finding that Mr Avnell had not negatived the assumptions made by Dr Slezak. The result is that the Arbitrator was entitled to find that there had been a material increase in the risk of injury, which finding also encompassed the less demanding finding that Mr Avnell had not established that the risk of injury was not materially increased.
While I have dealt with the new issue, it is unsatisfactory that it was raised in submissions in reply, which themselves were required because of new issues raised in the submissions filed in reply on behalf of Mr Avnell on 26 February 2013. Leave should have been sought. Nevertheless, the new issue is without merit and is rejected.

OTHER MATTERS

As to the general preparation of this matter, I note that the reply consisted of 369 pages and included 14 lay witness statements. The overwhelming majority of that material was completely irrelevant to the issues in dispute and should not have been filed. Parties are reminded that only relevant material should be filed with the Commission.

CONCLUSION

The reasons for the Arbitrator’s conclusion were clear; she accepted the evidence in the near contemporaneous Figtree report, which was prepared by an independent witness. Noting that Mr Avnell’s evidence about it being a bit dark at the time of the injury was not correct, and noting other inconsistencies in his evidence, it followed that she clearly (though implicitly) rejected his assertion that he had not been drinking prior to the accident. Though her finding that the interruption caused an increase in the material risk of injury suggests that the Arbitrator may have reversed the onus, if she did, that makes no difference to the outcome because the finding made leads to the same outcome when the correct onus is applied.

DECISION

The Arbitrator’s determination of 13 December 2012 is confirmed.

COSTS

Star City’s solicitor, Mr Underwood, has submitted that, if the appeal fails, Mr Avnell should be ordered to pay his client’s costs because the claim and the appeal were frivolous and/or brought without proper justification and/or fraudulent, in the sense that the Arbitrator’s findings, if confirmed, mean Mr Avnell has given false evidence in connection with the claim, orally on oath, and in his statements.
The application for costs, and the submission in support, is without merit and is rejected. It should not have been made. While s 341(4) of the 1998 Act, as enacted before the recent amendments, applies to this matter and gives the Commission power to determine by whom, to whom and to what extent costs are to be paid, the Commission may not order the payment of costs by a claimant unless it is satisfied that the claim was frivolous or vexatious, fraudulent or made without proper justification. It does not apply in the present matter.
First, the s 74 notice made no mention of the claim being frivolous, vexatious or fraudulent. Second, no application of the kind now made was raised at the arbitration and it is not open to raise it for the first time on appeal. Third, the Arbitrator’s acceptance of Star City’s case and her implicit rejection of Mr Avnell’s evidence does not mean she found Mr Avnell gave “false evidence” and that submission demonstrated a misunderstanding of the findings made. Last, even if it were open to raise this issue for the first time on appeal, the time to determine if the “claim” comes within any of the circumstances in s 341(4) is when the claim was commenced (Duffy v John Fairfax & Sons Pty Ltd (unreported, O’Meally CCJ, Compensation Court of New South Wales, 24 November 1998 No 11861/96) and I do not accept that, at that time, any of the circumstances in s 341(4) applied.
I make the following order as to costs of the appeal: each party is to pay his or its own costs of the appeal.

Bill Roche

Acting President
8 April 2013

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE