BlueScope Steel Limited v Pitaroska - [2014] NSWWCCPD 21

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	BlueScope Steel Limited v Pitaroska [2014] NSWWCCPD 21
APPELLANT:	BlueScope Steel Limited
RESPONDENT:	Velika Pitaroska
INSURER:	Self-insured
FILE NUMBER:	A1-9858/12
ARBITRATOR:	Ms A Nicholl
DATE OF ARBITRATOR’S DECISION:	11 December 2013
DATE OF APPEAL HEARING:	3 April 2014
DATE OF APPEAL DECISION: SUBJECT MATTER OF DECISION:	17 April 2014 Section 25 of the Workers Compensation Act 1987; dependant’s claim for lump sum upon death of worker; s 14(3) of the Workers Compensation Act 1987; whether death caused by an intentional self-inflicted injury; onus of proof upon employer; standard of proof concerning alleged suicide
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr L King SC, instructed by Sparke Helmore Lawyers
Respondent:	Mr B McManamey, instructed by Slater & Gordon Lawyers
ORDERS MADE ON APPEAL:	1. The findings and orders made by the Arbitrator as found in Certificate of Determination dated 11 December 2013 are confirmed. 2. The appellant is to pay Mrs Pitaroska’s costs of the appeal.

BACKGROUND

The late Kire Pitaroski (the deceased) died at approximately 5.45 pm on 1 January 2007 when his body became immersed in molten metal contained in a large container known as a Treadwell at the Port Kembla premises of his employer, BlueScope Steel Limited (the appellant). The deceased had attended work on that day and performed his duties as a process worker commencing at 6.00 am. His shift was to conclude at 6.00 pm.
Mr Pitaroski’s widow, Mrs Velika Pitaroska, made a claim against the appellant seeking payment of lump sum compensation as is provided by s 25 of the Workers Compensation Act 1987 (the 1987 Act). That claim was declined by the appellant. A number of written notices concerning the rejection of Mrs Pitaroska’s claim, issued pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), were forwarded to her by the appellant. A notice, dated 18 April 2008, followed a review of an earlier decision to decline liability which had been notified in October 2007 and was comprehensive in its terms.
At the hearing before the Arbitrator, the appellant made clear that it did not dispute the place and occasion of the deceased’s death, that is, at his place of employment during his normal shift. However the appellant asserted that the evidence established that the death was one of suicide and reliance was placed by the appellant upon the provisions of s 14(3) of the 1987 Act which provides:
“Compensation is not payable in respect of any injury to or death of a worker caused by an intentional self-inflicted injury.”
Mrs Pitaroska’s application seeking orders concerning payment of compensation came before Arbitrator Annemarie Nicholl and was heard on 10 May 2013 and 5 July 2013. Following submissions put on behalf of the parties by their legal representatives, the Arbitrator reserved her decision. A Certificate of Determination, accompanied by a Statement of Reasons, was issued on 11 December 2013. That certificate recorded the following findings and orders which are challenged on this appeal:
“1.On 1 January 2007 Kire Pitaroski died as a result of injury arising out of his employment with BlueScope Steel Limited for the purposes of section 4 of the Workers Compensation Act 1987. His employment was a substantial contributing factor to that injury for the purposes of section 9A of the Workers Compensation Act 1987.
2. Section 14(3) of the Workers Compensation Act 1987 has no application in the circumstances of this case and the respondent’s defence based on that provision fails.
3. As at 1 January 2007 Velika Pitaroska was wholly dependent for support on Kire Pitaroski and she satisfies the requirements of section 25(1) of the Workers Compensation Act 1987. I am satisfied no other persons were dependent for support on Kire Pitaroski.
4. The compensation payable on the death of Kire Pitaroski from injury on 1 January 2007 in accordance with section 25(1)(a) of the Workers Compensation Act 1987 is $319,250.
5. Pursuant to sections 25 and 29 of the Workers Compensation Act 1987 I order that the whole of the amount of compensation of $319,250 be paid to Velika Pitaroska. In accordance with section 85A of the Workers Compensation Act 1987 I authorise and direct that the whole of that sum be paid directly to Velika Pitaroska by the respondent.
6. Pursuant to section 26 of the Workers Compensation Act 1987 the respondent is to pay reasonable funeral expenses in respect of the death.
7. The respondent is to pay the applicant’s costs as agreed or assessed. I am satisfied this matter was complex medically, legally and factually. Pursuant to Schedule 6 Part 2 Table 4 Item 4 of the Workers Compensation Regulation 2010 I certify this matter as complex with 30 per cent increase in the costs otherwise available to both parties.
A statement is attached to this determination setting out the Commission’s reasons for the determination.”

PRELIMINARY MATTERS

Thresholds

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

Hearing

Mrs Pitaroska consents to this appeal being heard “on the papers” without the need for conduct of a conference or formal hearing as is permitted by the provisions of s 354(6) of the 1998 Act. The appellant submits that, having regard to the state of the evidence concerning the physical features and relevant distances at the scene of the death, a formal hearing should be conducted.
Having regard to the nature of the challenges raised by the appellant on this appeal and the appellant’s submissions put concerning relevant authority, I reached the conclusion that the written material concerning the appeal was not sufficient to enable the matter to be dealt with on the papers. In the circumstances a hearing was appointed and conducted on 3 April 2014. The appellant was represented by Mr King of senior counsel. Mrs Pitaroska was represented by Mr McManamey of counsel. Neither counsel had appeared before the Arbitrator. The hearing was recorded and a transcript (TA) has been produced.

ISSUES IN DISPUTE

The grounds upon which the appellant relies suggest that the Arbitrator erred in the following respects:
(a)     misdirecting herself as to the issues to be considered and considering false issues or questions;
(b)     making a factual finding which was unsupported by evidence, contrary to the only material expert evidence, and not open as a matter of judicial knowledge;
(c)     directing herself concerning particular matters of fact in terms that there was a need for such matters to be established with certainty or definitely;
(d)     failing to give adequate reasons;
(e)     failing to find that there was only one explanation of how the deceased’s body entered the opening in the Treadwell, that is, that he deliberately propelled himself, and
(f)      failing to find that it had been established by the appellant on the balance of probabilities that the deceased died of self-inflicted injuries resulting from his intentional jump into the opening in the Treadwell.

THE ARBITRAL PROCEEDINGS

The proceedings before the Arbitrator were recorded. A transcript of each day’s proceedings (T1 and T2) has been produced and made available to the parties. The documentary evidence before the Arbitrator was noted by her at [9] of her Reasons. No oral evidence was adduced at the hearing. The appellant did not dispute that Mrs Pitaroska was at relevant times totally dependent upon the deceased for support.

The Evidence

There are two written statements made by Mrs Pitaroska in evidence. Those statements, in general terms, address the circumstances prevailing before her husband’s death. Mrs Pitaroska and the deceased were married in Macedonia on a date not specified in the evidence. The deceased came to Australia in 1976 following which Mrs Pitaroska joined him with their two eldest children in 1978. A third child was born in 1981. The deceased was described as being “always cheerful and never upset”. He was “well liked” and had many friends. He had a passion for fishing and often went on weekend fishing trips with friends to rural destinations.
In 2003 the deceased “underwent a successful heart bypass operation” at the hands of Dr Con Manganas at Royal Prince Alfred Hospital. He had three months off work following that procedure and underwent rehabilitation. He returned to work on full duty and returned to his fishing and gardening activities. Following that surgery the deceased “started looking after his health”. Mrs Pitaroska stated that she “cooked and provided healthier and less fatty meals” and that they walked together daily for 30 minutes and worked in his vegetable garden. That change of lifestyle lead to the deceased losing 20 kilograms in body weight.
In late 2006, it was stated, the deceased suffered from chest pains and was taken to Wollongong hospital at which time stomach ulcers were diagnosed. The deceased made a full recovery following treatment.
Before the death of the deceased, plans had been made with two other families to holiday in Macedonia between June and August 2008.
The deceased, it was stated, was “in very good spirits during the week prior to his death”. He was then excited and had prepared for the Australian Christmas, Macedonian Christmas and New Year’s Eve. His son, Milco, and his family, including grandchildren, had visited from Melbourne. Friends and family attended the Pitaroski household on New Year’s Eve for a barbecue. Mr Pitaroski went to bed at 10.30 pm after a “good evening”. He was “in great spirits and looking forward to spending time with [the grandchildren]”. At midnight the deceased got out of bed and walked to the dining room to wish everyone a happy new year following which he went back to bed. He was rostered to work the following day.
On 1 January 2007 the deceased left for work at 5.30 am as was usual. Mrs Pitaroska stated that “there was no indication to me that anything was wrong with [the deceased] or that he was upset about anything”. The deceased telephoned Mrs Pitaroska during that day, as was usual, at which time he enquired as to what the family was doing. He stated that he had just finished lunch and was returning to work. The deceased sounded “excited to see his family and friends but especially Milco and his family”. There was “no change in his voice” and nothing appeared to be wrong. Mrs Pitaroska proceeded to describe circumstances when she was informed of the death of her late husband.
There are statements in evidence made by the children of the deceased Violetta, Suzanna and Milco. Those statements confirm the description of the deceased’s disposition immediately before his death as described by Mrs Pitaroska. The daughter Violetta stated that she visited the scene of her father’s death “about one week after his death with family”. Her description of the scene suggests that there were “rails”, the top rail being waist high and “the second rail was about knee high”. That description is not elaborated. The daughter Suzanna described her father “as a gentle giant”. Suzanna states that “after the injury the Steelworks took us on a view. According to them [my father] must have climbed the fence and jumped into the furnace. However, there was no fence when I viewed it”. It was further stated “there was a platform with a Treadwell which looked like a big barrel. In my view my father could have slipped down the hole and did not have to climb up and jump”. Suzanna stated that her father was a happy man with a happy disposition and that there was “absolutely no reason as far as [she] was aware why he would commit suicide”.
The son of the deceased, Milco, confirmed the matters stated by his sisters concerning his father’s disposition immediately before his death. Milco had visited his parents in Sydney during the Christmas/New Year period. He had not noticed any change in his father’s personality, nor did he notice any depression. There was a New Year’s Eve party during which his father was “fine”.
A second statement made by Violetta included the following (at [23]):
“The allegations of suicide by Bluscope Steel is [sic] absurd. My father was so happy with his life; he had many good friends, his children and grandchildren were all celebrating over Christmas together and he was looking forward to the 9^th of January to celebrate the Macedonian Christmas. He was enjoying good health and his change in life style after losing 20 plus kilograms. He had future plans in process [sic] including the 16 week holiday to Macedonia with friends. He loved socialising in his beloved garden and fishing and most of all he was happily married and very much in love with Mum.”
There is in evidence a written statement made by Mr Donco Sarafinoski, a close friend of the deceased. Mr Sarafinoski was a fellow worker of the deceased and lived not far from the Pitaroski home. Mr Pitaroski and Mr Sarafinoski had made plans to holiday in Macedonia during the summer months of June to August 2008. Mr Pitaroski was described as a man who was a hard working family man with a happy and outgoing personality. It is stated that the deceased was well liked and that he had many friends. Mr Sarafinoski saw the deceased two days before his death at which time the deceased appeared to be in high spirits. After repairing a door handle for the deceased, Mr Sarafinoski drank a few beers with the deceased during which time the deceased said that he would see his friend on New Year’s Day “for a few drinks to celebrate the new year”. Mr Sarafinoski visited the deceased’s home on 1 January 2007 with his wife and daughter. It was whilst waiting for the deceased to arrive home that news of his death was received at the family home. In his statement, Mr Sarafinoski rejected the suggestion that his friend had committed suicide, stating that “he had too much to live for. He was happily married with three beautiful children, he loved his job, he had many friends, he was in good health, he had future holiday plans and his entire family were waiting at his home to celebrate the new year”.
An Interim Post Mortem Report addressed to the Coroner, prepared by Dr Grant McBride, records that an autopsy had been conducted on 3 January 2007 and “Direct Cause” of death was stated to be “self-cremation by immersion into molten steel”. That report also records “Antecedent Causes” of death as “Depression”.
Records produced by the Coroner’s Court, Wollongong, are in evidence. Included in the “brief of evidence” are statements made by police officers who attended the scene of death and statements made by Mr Christopher Johnson, relief team foreman, and Mr Kiro Filipovski, crane driver. Detail of these statements is addressed below.
The Coroner had before him a statement by Mrs Pitaroska made on 9 January 2007. Mrs Pitaroska stated that her late husband had “phoned three times [on the date of death] as normal. Kire seemed fine”. Mrs Pitaroska also stated, “Kire wouldn’t have killed himself, he had no reason to”.
The brief also included a short statement by Dr Sharma, the deceased’s general practitioner, dated 31 January 2007. Dr Sharma last treated the deceased on 12 December 2006 “for a standard blood pressure check and weight reduction advice”. A blood pressure chart “showed his blood pressure was fine”. The deceased “was recovering from heart problems, but that was under control”.
A case report prepared by Constable Wright, dated 8 January 2007, included the following: “Police belive [sic] it is very unlikely the deceased would have fallen into the Treadwell by accident and that the deceased most likely jumped into the Treadwell”.
A document signed by Christopher Wayne McRobert, Coroner, Wollongong, appears as follows:
“Matter No: 2/07
CORONER DISPENSING WITH AN INQUEST.
INQUIRY INTO THE DEATH OF THE LATE: Kire PITAROSKI
THE CIRCUMSTANCES SURROUNDING THE DEATH HAVE BEEN INVESTIGATED BY POLICE, AND APPARENTLY THERE ARE NO SUSPICIOUS CIRCUMSTANCES.
I AM SATISFIED AS TO THE DATE, PLACE, MANNER AND CAUSE OF DEATH.
THE RELATIVES OF THE DECEASED HAVE NOT ASKED FOR AN INQUEST TO BE HELD.
HAVING CONSIDERED ALL OF THE MATERIAL BEFORE ME IN RELATION TO THIS INQUIRY, I AM SATISFIED THAT PUBLIC INQUEST WOULD NOT TAKE THE MATTER ANY FURTHER AND THE INQUEST IS DISPENSED WITH.
TYPE OF DEATH SUGGESTED BY THE EVIDENCE – 1. Suicide
MANNER OF DEATH – 09 Burns from Fire
[signed]
Christopher Wayne McRobert
CORONER
WOLLONGONG.”
Documents provided to Mrs Pitaroska’s solicitors by WorkCover New South Wales under cover of letter date 15 January 2008 are in evidence. A site inspection of the appellant’s Port Kembla premises was conducted on 12 January 2007. It is recorded that “the heat shield deflector plate/combined guard rail system conformed to AS 1657”. An improvement notice was issued by WorkCover. It is there recorded that no further action was taken by WorkCover.
A report prepared by Mr David Dubos of David Dubos Consulting Pty Ltd was tendered by Mrs Pitaroska. That report recorded incorrect measurements of the “guard rail”. Little reliance was placed on this report by Mrs Pitaroska.
Each party tendered a number of photographs of the deceased’s workstation. The appellant relied upon a number of documents that had been tendered on behalf of Mrs Pitaroska. A report of Simpson Associates Forensic Engineering Pty Ltd prepared by Mr Colin Simpson, dated 2 December 2011, is in evidence and is addressed below.
A report prepared by Dr Peter Marantos, respiratory and sleep disorders physician, dated 5 November 2001, is in evidence. That report confirms that the deceased consulted Dr Marantos in 2001 concerning a snoring problem and “slowly deteriorating daytime somnolence”. Dr Marantos expressed his suspicion that the deceased “has significant sleep apnoea” and suggested further investigation.
The appellant tendered a copy of the clinical notes of Dr J C Ford, consultant physician and cardiologist. A copy of a report, dated 30 June 2004, addressed to Dr Sharma states that the deceased had presented “with an anterior myocardial infarction and triple vessel disease”. The deceased had undergone coronary artery surgery conducted by Dr Con Manganas following which he “has done well since”. Those notes record Dr Ford’s view that the deceased could return, at first, to restricted duties and a return to 12 hour shifts in August 2004. The deceased required further investigation later in 2004.
Dr Ford’s correspondence to Dr Sharma, dated 14 September 2006, included the following further history:
“The discomfort in the chest is associated with perhaps some palpitation and certainly is associated with a feeling of dizziness. He tends to spin and that suggests that there is some cerebral or vertebrobasilar cause or perhaps a problem with the middle ear itself.”
Dr Ford again wrote to Dr Sharma, on 17 October 2006, when the following was recorded:
“Kire is pretty depressed. I think he is finally aware that he is mortal. He has always been a bit strange and never looked you in the eye but he is quite down with very little in the way of a smile and his family say he just mopes around and is genuinely quite afraid now.”
In correspondence, dated 21 November 2006, to Dr Sharma, Dr Ford stated: “Kire is a lot better now his haemoglobin has come up and he feels stronger. He has lost weight, he looks better and he is back at work. I will keep my fingers crossed for him.”
Dr Ford’s notes include discharge summaries concerning the deceased’s admission to Wollongong hospital between 21 and 23 August 2006, and between 28 August 2006 and 4 September 2006. Primary diagnosis is recorded as “chest pain”. I note that a pathology test addressed to Dr Ford, dated 15 September 2006, records the deceased as being 182 cm in height.

Correspondence from Dr Sharma to the Coroner states that the deceased’s records cannot be located.

Submissions before the Arbitrator

Before an attempt is made to summarise matters put on behalf of the parties before the Arbitrator, it is convenient to note certain undisputed features of the physical layout at the scene of the deceased’s death. It is common ground that the death occurred in the vicinity of the deceased’s workstation. His duties involved cleaning the nozzle of an overhead ladel which was used in handling molten metal. Little else is revealed on the evidence concerning this task. The deceased worked upon an elevated platform. At the edge of the platform is a barrier which in part comprises metal hand rails agreed to be at a height of 900 mm from the platform. A section of the barrier is a metal plate fence or barrier described in evidence and by the Arbitrator as a heat shield. The height of that shield at the relevant time was agreed as being 900 mm from the platform either side of a higher section of the heat shield which was 1,490 mm in height. The higher section had an area cut out at the upper border measuring 228 mm in width and 600 mm in height, which was said in evidence to serve the purpose of permitting observation beyond the heat shield.
The platform was elevated somewhere, on the evidence, between five and seven metres above the floor of the premises. Beyond the edge of the platform on the floor below were tracks similar to a rail track. That track carried a large container known as a Treadwell which transported molten metal. The top of the Treadwell was level with the platform. There was an opening in the upper surface or top of the Treadwell which measured approximately 1.8 m in diameter. It was in that opening that the deceased met his death. The distance between the edge of that opening and the heat shield was one metre. There was a clearance between the Treadwell and the edge of the platform. There is no direct evidence of the distance between the platform and the Treadwell at that point.
The appellant’s primary submission (found at T1 14.30) was that “the accident could not have occurred without intent because it could not have happened without somebody climbing over a barrier and, as it were, jumping forward rather than any other suggestion such as leaning over and falling…”. It was accepted that the death occurred just prior to “the deceased completing his shift”. Reliance was placed upon the report of Mr Simpson and his expert opinion expressed therein.
Counsel noted in submissions (at T1 28.15) that Mr Simpson assumed that the Treadwell was in the same position on the day of the death as it was on the day of his view of the factory premises, that is, immediately adjacent to the heat shield, the opening of the Treadwell being in line with the higher part of that heat shield. Reliance was placed upon the opinion of Mr Simpson (found at p 18 of his report) that should a person fall from the top of the hand railing, by which Mr Simpson was referring to the heat shield, “under the forces of gravity, the distance of the closest section of the opening of the Treadwell at approximately one metre (1 m) from the guard railing physically precludes a person falling into the opening in the Treadwell”. Counsel relied upon Mr Simpson’s opinion that should a person fall over the top of the hand rail, meaning the heat shield, “they would fall into the opening between the side of the Treadwell and the platform and then fall to the ground…”.
Counsel submitted that the measurements taken by Mr Simpson and the “measurements taken by the police at the scene shortly [after the death]” are “consistent with the Treadwell being in front of the heat shield, roughly centre of it” (at T1 42.10).
Counsel made reference to Mr Simpson’s report at page 20. It is there stated:
“In the opinion of the writer there can be only one feasible means whereby Mr Pitaroski entered the opening in the top of the Treadwell, in the absence of any other personnel. For the head of Mr Pitaroski to be located furthest from the guard rail, the feet closest and with the body facing upwards, it would appear to the writer that the only feasible means for the body to end up in that position was for Mr Pitaroski to, for whatever reason, stand on top of the hand rail and jump backwards into the opening.”
Counsel placed reliance upon the evidence of Dr Ford where reference was made to that practitioner’s view that Mr Pitaroski in October 2006 was “pretty depressed”. It was accepted by counsel that the evidence indicated that improvement had been recorded in November 2006.
On the second day of hearing counsel for the appellant reiterated his primary submission that the only manner in which the deceased could get physically within the Treadwell “was by jumping and climbing” (at T2 24.13). It was further put (at T2 24.17–24) that:
“the nearest point to the Treadwell is through the gap. Even if you are against me on that point and you say that for some reason it wasn’t centred, you still have the situation where at the lower part of the heat guard there was no ledge on the other side of it. You’d still have to climb on that perch on that and jump to get into the Treadwell because it would be further away.”
It was submitted on behalf of Mrs Pitaroska that the initial assumption of suicide was made by Mr Johnson as recorded by the police on the day of the death. Reference was also made to the Narrative of Circumstances under which the death took place, which appeared in the Police Report to the Coroner which stated “it appears from talking with family of the deceased that the [sic, the deceased] had been depressed over the past 3 weeks about his health. The deceased did not keep a diary”.
Following reference to the Police report noted immediately above, it was put that “there is no evidence anywhere in the police documentation, in the evidence given to the coroner’s court, that [sic, of that] allegation” (at T2 29.5).
Mrs Pitaroska’s solicitor proceeded to address an “alternate explanation as to how the injury occurred”. It was put that at common law there is “a presumption against suicide” and that the onus of proving suicide was upon the appellant, the standard of proof being on the balance of probabilities. It was not in dispute that the deceased’s gloves were found on a ledge upon the platform and that his hard hat had been found on the factory floor below the platform at a point beyond the heat shield.
The transcript records the following submissions and exchanges (at T2 34–36):
“Mr Foster: …I would suggest to you the more likely scenario in the situation was that [the deceased] looked up at the overhead crane to see his mate who had worked with him for many years. That as a consequence of that he dislodged his hat. The hat fell between the heat shield and the Treadwell, landing on the ground below. The applicant [sic, deceased] then took his gloves off because he was concerned about having to hold onto the barrier and there’d be no other reason for him to take his gloves off, puts his foot on the support to the raised section of the heat shield which is in photograph one.
Arbitrator: The raised section of the heat shield?
Mr Foster: Yes, heat shield. Puts his other foot on the 900 section of the heat shield or the lower section of the heat shield to look to see where the hat has gone. Remember he has only got ten minutes of his shift left. He gets up to see where the hat’s gone, he loses his footing at that height and on both the respondent’s expert evidence and on the applicant’s expert evidence, that would be sufficient for him to fall, remember 900mm less than a metre, into the, well the evidence is, Arbitrator, that the entrance to the Treadwell, the beginning of the Treadwell is 900mm from the side where the….
Arbitrator: can you take me to photograph two?
Mr Foster: Photograph two. From the side where that man’s standing, the lower part of the heat shield.
Arbitrator: yes.
Mr Foster: to the entrance to that Treadwell is 900mm [sic].
Arbitrator: to the edge of the …
Mr Foster: yeah, where the entrance is where the material goes into and that is supported both by the diagrams relied on by Mr Simpson and diagrams supplied by Bluescope in respect of it. The other telling factor in relation to it is, Arbitrator, having slipped he’s fallen backwards and if we go to the statements of the police, the police who attended immediately on the accident, who looked at the positioning of the deceased, indicated that it appeared to them and to the best that they could see because obviously there were very little remains left, that the applicant appeared to be on his back and that is supported certainly by Mr Simpson and what he says in his report. So, Arbitrator, we’ve got a situation where I would suggest that that is as equally as plausible explanation as to how this injury occurred as a suggestion that suicide took place…”
Counsel for the appellant in reply submitted that the hypothesis put on behalf of Mrs Pitaroska “would not work because of the distance involved of getting into the Treadwell” (T2 61.10).
It was made clear by counsel, appearing on behalf of the appellant during exchanges with the Arbitrator, that Mr Simpson’s hypothesis which was relied upon involved the deceased ascending from the platform to the top of the lower section of the heat shield, positioning himself to jump backwards into the opening in the Treadwell.

The Arbitrator’s decision

The following was stated by the Arbitrator at the outset of her Reasons (at [4]):
“At hearing the respondent did not dispute the applicant [sic, the deceased] suffered injury for the purposes of section 4 of the 1987 Act and did not dispute the employment was a substantial contributing factor to that injury. Nor was it argued that the death did not result from the work injury. The respondent’s case was based on section 14(3) of the 1987 Act to the effect that no compensation was payable because the death was as a result of intentional self-inflicted injury, being suicide.”
Submissions put on behalf of each party were summarised in detail by the Arbitrator at [10] and [11] of her Reasons. There followed a detailed summary of the documentary evidence which had been tendered by the parties.
The Arbitrator proceeded to make findings concerning measurement of relevant distances including the height of the heat shield (including both higher and lower sections), the guard railing and an area which had been cut out of the heat shield. It was noted that agreement had been reached with respect to those particular matters. A finding was made that “the top of the Treadwell… was about level with the platform itself” (at [63(f)] of Reasons). It was stated “the distance from the platform (top of the gate) to the edge of the opening in the top of the Treadwell was measured by Mr Simpson as about two metres” (at [63(f)] of Reasons). I note in passing that, whilst no specific finding was made as to the distance between the heat shield and the closest edge of the opening in the Treadwell, a plan produced by the appellant to Mr Simpson, which is in evidence, demonstrates that distance to be 950 mm.
Other relevant findings recorded at [63(h)] of Reasons were that “the deceased’s hard hat was found at ground level near the Treadwell. His set of work gloves was found on a ledge near the platform.”
The Arbitrator noted at [65] of Reasons:
“The central issue before me is whether the deceased died as a result of the intentional [sic] act of suicide or died as a result of an accident, by either slipping or falling into the Treadwell.”
The Arbitrator proceeded to consider the evidence of Mr Filipovski and Mr Johnson, the appellant’s employees each of whom had been interviewed by the police. At [73] of Reasons the Arbitrator addressed certain aspects of Mr Johnson’s evidence and concluded:
“In my view Mr Johnson does not explain why he was so sure from the beginning that it must have been suicide, and it appears the possibility that the deceased might have fallen accidentally was never properly considered.”
The Arbitrator proceeded to address the evidence of the investigating police (between [75] and [86] of Reasons). It was noted that there was “very little evidence…as to the deceased’s height and build”. The Arbitrator expressed “surprise” that there is no reference in the police reports of the deceased’s height. That observation followed a statement that the evidence of the deceased’s daughter Suzanna was that he was “a large six foot plus man” and a “gentle giant”.
At [79] of Reasons the Arbitrator noted that the police report included the “very significant and contentious paragraph to the effect that the police spoke to the family of the deceased and that members of the family indicated [the deceased] had been recently unwell and depressed about his health over the previous three weeks”. The Arbitrator proceeded to state (between [80] and [86] of Reasons):
“80. I find this aspect of the police report of real concern, since there is no factual foundation for these very significant assertions. Moreover in my view these unsubstantiated and unfounded comments have, most unfortunately, found their way into the subsequent official documentation in respect of the investigation. Indeed they seem to have been given significant weight.

81. All three adult children of the deceased deny giving statements to the police or being interviewed by them, and there are no such statements in evidence. Most importantly, they all deny vehemently that such an assertion is factually correct. They gave a very different picture of the deceased, as discussed below.

82. The only family member formally interviewed by the police was the applicant. I was not taken specifically to her statement to the police, but it forms part of the Brief of Evidence. It is dated 9 January 2007 and her daughter acted as interpreter and translator. There is absolutely nothing in that statement that lends any foundation to Constable Wright’s concluding comments in his police report to the effect family members told the police the deceased was depressed about his health over the previous three weeks.

83. These comments in the police report are entirely unsourced and do not appear in any witness statements. They amount to entirely unreliable evidence and I find they are of no probative value in respect of the assertions made by the police.

84. As raised in submissions for the respondent, Constable Wright refers in his statement to a conversation he says he had with the deceased’s team leader, Jay Ferguson. Constable Wright attributes to Jay Ferguson a statement to the effect that the deceased ‘has been a bit quiet lately, some of the guys have said he’s been a bit down’. However there is no statement from Jay Ferguson before me and there is no reference in the formal police report to that alleged comment. In the circumstances I similarly find that comment by Constable Wright to be unreliable and of no probative value.

85. Moreover the police report itself is absolutely silent as to how the police believed the deceased had died. The report recounts the facts as told to the police by Mr Filipovski and Mr Johnson, but there is no reference whatsoever to any conclusion(s) as to how the death occurred. As noted above, the opinion that it could not have been an accident and that the circumstances and positioning of the body suggest suicide came initially from Constable Wright, who had spoken to Mr Johnson. His opinion appears in his statement of 8 January 2007, but is not included in the formal police report to the Coroner. Constable Wright concludes, as did Mr Johnson, that if the deceased had fallen over the safety rail he would have fallen to the ground through the gap between the platform and the Treadwell.

86. While it is possible Constable Wright may have attended many accidents and even death scenes, there is no evidence that he is an expert witness in assessing how the death occurred and whether it is more likely to have been a suicide or an accidental death. His statement and his report are both lacking in detail as to how the police believed the suicide must have occurred.”

The Arbitrator proceeded to address the documentary evidence that had been produced by the Coroner. It was stated that it was “difficult to understand” how the pathologist formed the opinion that the cause of death was “self-cremation by immersion into molten steel”. The Arbitrator stated that she did not “entirely understand why there was no inquest into the death”.
The evidence of Dr Ford and Dr Sharma was considered by the Arbitrator and a conclusion was reached by her that “the evidence of Dr Ford does not lend any support to the possibility that the deceased was so seriously depressed that he decided to end his life”. The Arbitrator further observed that “the last comments from Dr Ford, being only about five weeks before the death, are entirely to the contrary” (at [92] of Reasons).
The Arbitrator observed that “there is simply no evidence from the general practitioner, Dr Sharma, that the deceased was suffering from any psychological condition or problems immediately prior to his death”. The Arbitrator stated that “…there is no material support in the medical evidence before me for a conclusion that the deceased ended his life by way of suicide” (at [95] of Reasons).
The evidence of the deceased’s family members which suggested that the deceased was “a very happily married man who loved and enjoyed his family very much” was accepted by the Arbitrator. The evidence of Mr Maleski, Mr Sarafinoski and Mr Filipovski was noted in the course of her Reasons and it was observed by the Arbitrator that in all the statements in evidence “…no-one close to the deceased noticed anything unusual or odd about [the deceased], his behaviour or his emotional state. Everything was simply normal. There is no evidence from any witness to the contrary” (at [102] of Reasons).
The Arbitrator stated that the onus of proving that “it is more likely than not that the deceased died by the intentional act of suicide rather than as a result of an accidental fall” was upon the appellant. The conclusion was expressed that the Arbitrator was “not satisfied [the appellant] has made out its case on the balance of probabilities” (at [104] of Reasons).
The Arbitrator proceeded to consider the evidence concerning the physical circumstances at the scene of the deceased’s death and the expert evidence of Mr Simpson. The Arbitrator accepted Mr Simpson’s evidence that “the position of the opening in the Treadwell relative to the higher part of the heat shield is critical to [the Arbitrator’s] consideration of what could have occurred” (at [107] of Reasons). The Arbitrator (at [108] of Reasons) accepted the “threshold submission” put on behalf of Mrs Pitaroska that:
“…there is no certainty as to where the Treadwell was positioned on that day in respect of the higher part of the heat shield or in respect of either side of that part of the heat shield. It is apparent that any shift in the positioning of the Treadwell to one side or the other on that day would change all the measurements on which [the appellant’s] submissions rely.”
The Arbitrator proceeded to state that she “must accept it is possible that on the day in question the alignment was not as assumed by [the appellant] in all its scenarios” (at [108] of Reasons).
Following a consideration of submissions put relating to the expert evidence of Mr Simpson concerning the probable circumstances of the deceased’s death, the Arbitrator stated (at [115] of Reasons):
“… I am not satisfied that [the appellant’s] final position and its explanations for how the deceased ended up in the Treadwell are sufficiently clear, definite or unequivocal to form the basis for a finding that it is more likely than not the deceased committed suicide.”
The Arbitrator (at [118] of Reasons) accepted Mrs Pitaroska’s submission that “the possibility put forward on her behalf is an equally plausible explanation for how this injury occurred as [sic, as is] a suggestion that a suicide took place”. The hypothesis put on behalf of Mrs Pitaroska had been described at [117] of Reasons.

Reference was made by the Arbitrator to the decision of the Court of Appeal in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 in which matter consideration was given by the Court to the proper approach to the evaluation of circumstantial evidence (at [55] per McDougall J, with whom McColl and Bell JJA agreed). Reference to that authority followed a reiteration of the Arbitrator’s finding that the appellant had not discharged the burden of proof upon it concerning death as a result of an intentional self-inflicted injury, being suicide (at [119] of Reasons).
The Arbitrator proceeded to make findings and orders as noted at [4] above.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The appellant in its written submissions argues that the reasons as expressed by the Arbitrator demonstrate that she had misunderstood the legal issues before her and had misstated the appellant’s position. Particular reference is made to the matters stated by her which are noted at [50] above, as well as other matters appearing at paragraphs [6] and [11(18)] of her Reasons relating to the burden upon the appellant concerning proof of suicide. Those submissions appear to address the complaint noted at [8(a)] above.
At the hearing of the appeal, Mr King SC submitted with respect to these matters that “the Arbitrator seemed to approach the case on the basis that it was accepted that there was injury arising out of or in the course of employment, within the meaning of section 4, section 9A was satisfied and so forth” (TA 11). It was noted by senior counsel that there was no such concession recorded in the s 74 notice, nor in the Reply filed by the appellant. It was further put that there had been no formal concession recorded in the transcript. Senior counsel suggested that the Arbitrator in her Reasons “said that there is a presumption against suicide” and that the case had been “conducted on the basis that the only question before her was whether the [appellant] had discharged an onus of proving suicide”.
The argument suggesting error was developed by counsel and reliance was placed upon the decision of the High Court in Clark v Flanagan (1934) 52 CLR 416 (Clark). Counsel’s argument, considered with the written submissions, suggests error, being misdirection, in taking as the first issue for determination the question whether the appellant had discharged the onus upon it that the death was one of suicide. It was further suggested in written submissions that “on one reading of her reasons” the Arbitrator considered that the last mentioned issue was the only issue for determination.
The appellant argued that, having regard to what was said in Clark, it was necessary that “ingredients of [Mrs Pitaroska’s] case were made out” (TA 11). It was put that the evidence that the deceased’s gloves were found on the platform and that his hard hat had been found on the level below the platform, supports:
“…the inference that [the deceased] stopped working. He had broken the course of the employment and presumably it would be agreed that the hard hat and the gloves were necessary for his employment. So to remove them …that would ground the inference that he wasn’t doing something that was actual work or incidental to work.” (TA 11–12)
The “causal limb” arising out of employment, it was argued, was not satisfied.
The transcript reveals, as was emphasised by counsel appearing on behalf of Mrs Pitaroska, that the Arbitrator, soon after commencement of proceedings on the first day, stated her understanding of the matter in issue, to which there was no demur by either party, as follows:
“….the essential issue in the case is the Application, relevance of Section 14(3) in these proceedings and otherwise it’s accepted that the applicant effectively, Sections 4 and 9A are really, I think, sustained and the important issue is whether or not the facts support the conclusion that the respondent wishes me to make which is that the death was by way of suicide which by definition I think is an intention [sic, intentional] act for the purposes of Section 14.” (T1 4)
It is clear that the Arbitrator has relied upon the matters noted immediately above as being a basis for her statement noted at [50] above, which is the subject of this complaint.
The appellant is correct to argue that Clark is authority for the proposition that a claimant in the present circumstances must establish those matters which give rise to liability. As Dixon J (as his Honour then was) said in that matter (at 429):
“the existence in the Act of an express proviso that no compensation shall be payable for self-inflicted injury (s 73(c)) does not make it less necessary that the applicant [for compensation] should affirmatively establish the conditions of liability, one of which is that the injury arose out of the employment.”
It is also correct, as put by Mr King SC, that “…the Arbitrator was bound to apply the law even if it wasn’t adverted to and before you get to the defence by way of statutory proviso, it has to appear that the ingredients of [Mrs Pitaroska’s] case were made out”.

The circumstances of the present case were such that there was no dispute as to the place and occasion of the deceased death, that is, that it occurred during his shift at his workplace. Counsel appearing before the Arbitrator on behalf of the appellant fairly stated that it was “common ground that [the death] occurred just shortly prior to the deceased ceasing his, finishing his shift…”( at T1 15.5). In such circumstances it is instructive in my view to consider the following further observations made by Dixon J in Clark (at 429):
“It may be that, if [a claimant] proves that while actually at his work he received such an injury as that now in question, this onus must as a matter of law be treated as sufficiently discharged, unless and until the employer shows that the injury was intentionally inflicted.”
I am of the view that, whilst the Arbitrator may have erred in the manner in which she articulated the matter in issue at [4] of her Reasons, such error has not relevantly affected her decision. Leaving aside the fact that no objection was raised to the Arbitrator’s preliminary statement of the issue at the hearing, I reach this view for the following reasons:
(a)there being no dispute as to the place and occasion of the deceased’s death, there arose prima facie proof of the “conditions of liability”;
(b)Mr King’s argument that the employment was interrupted may be accepted only upon proof by the appellant of self-inflicted injury causing death;
(c)the appellant’s liability arises unless the onus of proof upon the appellant concerning suicide is discharged;
(d)the Arbitrator made it clear that the only matter in issue concerned the question as to whether proof of suicide was made out. Proof of such fact would necessarily lead to a conclusion that the injury did not arise in the course or out of the employment, and
(e)nothing stated by the Arbitrator at [4] of her Reasons affected the manner in which the questions raised by s 14(3) were addressed.
I note that the relevance of the Arbitrator’s reference to a “presumption against suicide” is addressed below.
The appellant raises two further matters which address the suggested misdirections. Firstly, it seems to be argued in written submissions that error is demonstrated given that the Arbitrator took into account evidence of “lack of motive for suicide”. It is put that such matter “could not negative a conclusion of suicide if the evidence of the physical features of the location and what was necessary by way of human conduct for the deceased’s body to enter the Treadwell, showed suicide on the balance of probabilities” (at [3] of submissions).
This argument has as its premise the assumption that the hypothesis founded upon the physical circumstances advanced by the appellant must inevitably have been accepted by the Arbitrator and that an inference of suicide must have been drawn. In the absence of direct evidence as to the actual events at the time of death, there was a need in my view to consider all circumstantial evidence, including any evidence as to the deceased’s state of mind. This submission must be rejected.
Secondly, at the hearing senior counsel argued that the Arbitrator had misdirected herself in that she had accepted Mrs Pitaroska’s submission that there was “a presumption against suicide”. That suggestion is challenged by Mr McManamey who argued that the only mention of the suggested “presumption” appears where submissions are “recounted” by the Arbitrator. I accept that submission which is borne out by that which appears at [34] of the Arbitrator’s Reasons. However the difficulty is that the Arbitrator does not expressly deal with the suggestion put in argument that such a presumption prevails and should be taken into account.
The question as to the existence of such a presumption was the subject of careful consideration by Thomas J. in Clark v NZI Life Limited [1991] 2 Qd R 11 (Clark v NZI). His Honour made reference to a number of authorities in which the subject of the existence of such a presumption was touched upon (at 16) and his Honour proceeded to state:
“I do not pause to discuss this matter further, because the language of presumption and counter-presumption has been largely supplanted by the language of proper inference upon the whole of the evidence.”
The views expressed by Thomas J were considered by Stein JA (with whom Handley and Beazley JJA (as her Honour then was) agreed) in American Home Assurance Company v King(as Executrix of the Late Frederick King) [2001] NSWCA 201(29 June 2001) (American Home) in which matter an insurer sought to rely upon a clause excluding liability under a policy of insurance in respect of any event which resulted from a “deliberately self-inflicted injury”. The late Mr King had died following a fall from a balcony whilst a voluntary patient at a psychiatric hospital. As is recorded in the head note to that matter “a number of hypothesis were presented at trial with respect to the reason for Mr King’s fall…”. His Honour said between [10] and [12]:
“10.   In Clark, an analogous situation, Thomas J said that the standard of satisfaction required for proof of the issue (of suicide) was upon the balance of probabilities, citing Rejfek v McElroy [1965] HCA46; (1965) 112 CLR 517 and two Canadian authorities. However, the essential question was whether it was upon a mere balance of probabilities or whether some greater degree of satisfaction should be required along the lines recognised in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 per Dixon J at 362.
11.    Thomas J said:
Applying Dixon J’s words above in the context of the present civil litigation I can say that the particular finding is not one to be made lightly, but neither is it one of such inherent unlikelihood or gravity as to bring it toward the top of the range of what is sometimes called the Briginshaw test. I do not think it profitable to try to be more precise about the necessary level of satisfaction. [at 16]
12.    Reference was made by Thomas J to earlier decisions concerning the ‘presumption’ against suicide. He held that there was no longer any such presumption, suicide no longer being a crime. Thomas J did not refer to the discussion of the High Court about the presumption in Spiratos v Australasian United Steam Navigation Co Ltd [1955] HCA 39; (1955) 93 CLR 317 at 320. Whether Thomas J was correct that there is no longer any general presumption matters not in this case, because, as his Honour observed, the language of presumption (and counter presumption) has largely been supplanted by the language of the proper inference to draw on the whole of the evidence.”
The Arbitrator made it clear that her approach to determining the proper inference to be drawn upon the evidence was that “the [appellant] bears the onus of proving it is more likely than not that the deceased died by [suicide] rather than as a result of an accidental fall” (at [103] of Reasons). The Arbitrator’s conclusion, as stated at [104] of her Reasons, was that she was “not satisfied [the appellant] had made out its case on the balance of probabilities”. Nowhere in her reasons, as was submitted on behalf of Mrs Pitaroska, is there any suggestion that the submission concerning the suggested “presumption” had been taken into account in her reasoning process.
I am of the opinion that no error is made out concerning the Arbitrator’s approach to the matter of onus of proof. The Arbitrator’s attention had not been drawn to Clark v NZI and it is certainly clear that the Arbitrator had not adopted the view of Thomas J, which appears to have been tacitly approved by the Court of Appeal in American Home, where his Honour stated (at page 17) that suicide is a sufficiently serious issue “to attract the Briginshaw test, but it is not to be regarded as requiring a degree of satisfaction at the top end of the range”. That being so, the Arbitrator’s approach to the standard of proof may be seen as, to a degree, more favourable to the appellant than that outlined by Thomas J. That fact gives rise to no foundation for complaint by the appellant.
The appellant’s written submissions make complaint, and suggest misdirection, concerning the Arbitrator’s manner of evaluation of the evidence of Mr Johnson and the investigating police. Particular reference is made to the Arbitrator’s Reasons at [73] concerning Mr Johnson’s evidence, which recounted his immediate conclusion that the deceased had taken his own life. Senior counsel summarised the essence of these submissions when it was put that the Arbitrator had emphatically criticised the evidence of Mr Johnson and that of the police concerning their opinion as to the commission of suicide, but that nothing raised by the Arbitrator “gainsays the sheer physical implications” being that the deceased must have flung himself into the Treadwell (at TA 21.16).
The Arbitrator’s evaluation of the police evidence, as clearly stated by her, was founded in part upon an assumption of the absence of evidence to substantiate the recorded reports concerning the deceased’s state of mind as noted at [57] above. That evaluation is challenged and senior counsel identified evidence he described (at TA 22.34) as “some scratchy police handwriting in a notebook” which records:
“Triple bypass 2 years ago. Three weeks ago spent 2 weeks in hospital for stomach ulcers. Depressed about health for past few weeks (family [indecipherable]) Saying very worried about health. Doesn’t keep a diary.”
Whilst the Arbitrator’s attention had not been drawn to the entry noted immediately above, it is clear that, contrary to her statement (at [80] of Reasons) that “there is no factual foundation for these significant assertions”, there is evidence of an abbreviated record of such matters. Notwithstanding the fact that the content of the notebook had not been taken into account, I am not persuaded that the Arbitrator’s approach to the evaluation of the police evidence, and that of Mr Johnson, demonstrates misdirection constituting relevant error. That entry in the notebook fails to identify that person or those persons who reported the matters recorded; and the suggestion of depression and worry contrasts with the evidence of all family members whose evidence was before the Arbitrator. Those were the principal matters which were treated as significant by the Arbitrator when assessing the weight of the police summary forwarded to the Coroner concerning the likelihood of suicide. So far as Mr Johnson’s opinion concerning suicide is concerned, I consider that the Arbitrator’s assessment, as appears at [73] of her Reasons, discloses no error. Her conclusions as to the weight of the evidence of the police and Mr Johnson concerning the probability of suicide is adequately explained and were open to her on the evidence.
When dealing with the complaint made on appeal, noted at [8(c)] above, senior counsel drew attention to that statement made by the Arbitrator found at [115] of her Reasons (which is noted at [65] above). It was argued that the reasoning there expressed demonstrates that the Arbitrator considered that there was a need to establish “certainty” rather than “probability” of relevant facts.
I do not accept the appellant’s contention that the matters stated at [115] of Reasons demonstrate error as to the appropriate standard of proof. The Arbitrator was clearly addressing the evidence of Mr Simpson, in particular his statement that:
“There can be only one feasible means whereby [the deceased] entered the opening in the top of the Treadwell, in the absence of other personnel. For the head of [the deceased] to be located furthest from the guard rail, the feet closest and with the body facing upwards, it would appear to the writer that the only feasible means for the body to end up in that position was for [the deceased] to, for whatever reason, stand on top of the hand rail and jump backwards into the opening” (at page 20 of Mr Simpson’s report dated 2 December 2011).
The Arbitrator did not state that there was a necessity to establish the certainty of Mr Simpson’s hypothesis. I accept Mr McManamey’s submission that the Arbitrator was not speaking in terms of “absolutes”. Her statement that the evidence was not “sufficiently clear, definite or unequivocal”, demonstrates, in my view, that the Arbitrator was addressing the question of the weight of the evidence to determine whether it was of such character as to permit a finding, on the probabilities, that the deceased had taken his own life.
I note that immediately before making those observations of which the appellant complains, the Arbitrator had given close attention to the evidence of Mr Simpson. The following consideration of that witness’s evidence appears between [110] and [114] of her Reasons as follows:
“110. Turning to Mr Simpson’s expert opinion, it was conceded that in his conclusion he does not specify from which point or position on the platform the deceased must have jumped off. He is emphatic and unequivocal in his conclusion that the only feasible way the deceased could have ended up in the Treadwell with his head furthest away and face-up is for him to have stood on top of the ‘hand rail’ and jumped backwards into the opening.
111.     The use of the term ‘hand rail’ is in my view most unfortunate and quite imprecise. Mr Simpson earlier made it clear that the heat-shield was at various heights. I consider this to be a significant limitation in Mr Simpson’s explanation of what he thinks is the ‘only one feasible means’ for the deceased to have entered the opening of the Treadwell. I put that limitation to counsel for the respondent for further explanation and comment. Counsel could not take me to any more precise description by Mr Simpson of the position on the platform from where the deceased is said to have jumped backwards. It was suggested initially that Mr Simpson might have been referring to a jump from the top of the higher part of the heat-shield and that would seem to follow from Mr Simpson’s earlier comment that the height of the ‘hand-railing’ was not 600 mm but actually 1,490 mm (at page 237 of the Application). I agree with counsel that, on the assumption the Treadwell was directly in front of the higher part of the heat-shield, that would have been the closest point to the Treadwell. However in my view that scenario does not sit well with the respondent’s earlier submission and concession, and it is difficult to understand how the deceased would have climbed to that height and managed to turn around or jump backwards. It is reasonably likely, although again not certain, that the heat shield would have been very hot and the deceased had taken off his work gloves. Most importantly, even at that height the metal plating of the heat-shield was very thin. While there is no measurement in evidence, from the photographs I agree that width would not be more the two centimetres.
112.     A variation on this scenario was proposed in final submissions for the respondent to the effect the ‘most likely explanation’ is that the deceased somehow climbed through the gap (the cut-out) in the higher part of the heat-shield, stood on the base of that gap in the heat-shield, and from there jumped into the Treadwell. However that was not the conclusion reached by Mr Simpson.
113.     In the alternative it was submitted that in referring to the deceased’s standing on top of the hand-rail and jumping backwards with the application of lateral force Mr Simpson could have been referring to the lower level of 900 mm high. Consistent with its earlier submissions, the respondent conceded that would require a longer and more sideways jump than a jump from the higher part of the heat-shield. As put to counsel at hearing, it is very difficult to understand how the deceased would have managed to climb up even to this lower level, balance sufficiently to turn around, and then jump backwards while still balancing on the very thin edge of the heat-shield. It seems an even more unlikely scenario given I have accepted the deceased was about six feet in height.
114.     Counsel for the respondent conceded the deceased climbed up somewhere and he could not have jumped from the floor level. In the end it was submitted that whether the deceased climbed up to the higher part of the heat-shield, the lower part of the heat-shield, or to the gap in the higher part of the heat-shield the evidence is clear that he must have jumped from that point into the Treadwell and could not have simply fallen in. It was accepted that requires a backwards jump, with a twisting action.”

The Arbitrator’s Reasons noted immediately above make it clear why she was not prepared to place reliance upon the evidence found in Mr Simpson’s report to support a finding of suicide. That evidence was found wanting in certain respects and its weight, a matter for the Arbitrator to determine, was not such, as stated by her, to persuade her on the probabilities.
The principal challenge to the Arbitrator’s decision concerns those matters noted at [8(b)] above being suggested error by reason of there being “a factual finding which was unsupported by evidence, contrary to the only material expert evidence, and not open as a matter of judicial knowledge”. The relevant matter of fact concerned the Arbitrator’s failure to find that the deceased had died as a result of self-inflicted injury.
The Arbitrator’s finding that the appellant had not established on the probabilities that the deceased had committed suicide followed her rejection of the evidence of Mr Simpson which has been addressed earlier in these reasons. It is argued that Mr Simpson’s opinion, being the only expert opinion before the Commission and being evidence which had not been challenged, should have been accepted by the Arbitrator. It is correct, having regard to the false basis of Mr Dubos’ opinion, that Mr Simpson’s expert opinion, in practical terms, was the only such evidence before the Arbitrator. It is also correct that the evidence was not challenged in cross-examination. Those facts did not, in my view, require that the evidence of Mr Simpson must have been accepted by the Arbitrator. There is no requirement in law that unchallenged evidence be accepted by a court or tribunal. There must, I acknowledge, be a reasonable basis upon which such evidence is rejected (see discussion in Taupau v HVAC Constructions (Queensland) Pty Limited [2012] NSWCA 293 (18 September 2012) per Beazley JA (as her Honour then was) between [130] and [135]). I have earlier addressed the basis upon which the Arbitrator assessed the weight of Mr Simpson’s evidence. That assessment, in my opinion, constitutes a reasonable basis upon which the Arbitrator relied when rejecting the hypothesis and declining to draw the inference of suicide.
Senior counsel placed very considerable emphasis upon the physical circumstances of the location of Mr Pitaroski’s death, in particular the lateral distance between the edge of the heat guard and the opening in the surface of the Treadwell. It was put that the deceased could not have entered the opening without there being lateral force. Such lateral force was, on the probabilities, a deliberate jump, as hypothesised by Mr Simpson. It was suggested that, upon an assumption that a person fell from the platform over the heat guard, it would be concluded as a matter of judicial knowledge, that the person would fall in a directly vertical direction to the floor below, passing through the gap between the Treadwell and the platform.
Whilst I accept that judicial knowledge would embrace the fact of gravitational force, I do not accept that such knowledge compels, as seems to be argued, a conclusion that on the probabilities a deliberate jump must in the present circumstances have been made by the deceased.
The hypothesis put on behalf of Mrs Pitaroska, which was accepted by the Arbitrator as being “an equally plausible explanation for how this injury occurred as [sic, as is] a suggestion that a suicide took place” (at [118] of Reasons) involved the proposition that the deceased had lost his hard hat over the side of the platform. The deceased, in an attempt to pinpoint its location below, stepped up on the bollard which rises from the platform floor immediately next to the heat shield, placed his other foot on the 900 mm high section of the heatshield, leaned forward and, on losing balance fell into the Treadwell. Mrs Pitaroska’s solicitor elaborated (at T2 41) the hypothesis as follows:
“…you’d have to reach over a fair distance to see if you could see where [the hat] was and that’s what [the deceased has] done. Remember, this is at the end of a 12 hour shift. The [deceased is] probably in a fatigued state, he’s anxious to get home, he’s dropped his hat down there, he’s put his foot up there, he’s lost his footing, he’s twisted around, fallen backwards into it, at a height heading directly into the treadwell, remember 900mm on BHP’s records from the entrance, to substantiate [sic, sustain] the injury.”
The precise dynamics of the deceased’s fall cannot be known. The parties have each suggested what they argued were reasonable hypotheses. The Arbitrator had rejected the evidence of Mr Simpson which suggested suicide and she has, in my opinion, sufficiently revealed her process of reasoning as is required by law (see Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 per Meagher JA at 443).
Insofar as factual error is asserted by the appellant, I am not persuaded that it has been established, as stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (at 506) 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 trial judge is so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”

CONCLUSION

I am not persuaded that the appellant has established relevant error on the part of the Arbitrator and the findings and orders should not be disturbed. Appropriate orders appear below.

ORDERS

The findings and orders made by the Arbitrator as found in Certificate of Determination dated 11 December 2013 are confirmed.

COSTS

The appellant is to pay Mrs Pitaroska’s costs of the appeal.

Kevin O'Grady
Deputy President

17 April 2014

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE