| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BOBIC -v- CITY OF ARMADALE [2013] WADC 126 CORAM : HERRON DCJ HEARD : 15 JULY 2013 DELIVERED : 9 AUGUST 2013 FILE NO/S : APP 13 of 2013 BETWEEN : VASELE BOBIC Plaintiff
AND
CITY OF ARMADALE
Defendant
Catchwords: Appeal - Workers' compensation - Duty to provide adequate reasons - Remitting application to arbitrator for further determination Legislation: Workers' Compensation and Injury Management Act 1981 Result: Appeal allowed
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Representation: Counsel:
Plaintiff : Mr B L Nugawela
Defendant : Ms L G Rafferty
Solicitors:
Plaintiff : Friedman Lurie Singh & D'Angelo
Defendant : SRB Legal
Case(s) referred to in judgment(s):
Ausden Joinery v PJ [2011] WACC C4-2011
Ausden Joinery v PJ [2011] WACC C8-2011
Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
McKay v Commissioner of Main Roads [2013] WASCA 135
Sotico Pty Ltd v Wilson [2007] WASCA 112
Summit Homes v Lucev (1996) 16 WAR 566
Velez Pty Ltd v Tudor [2011] WASCA 218
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1 HERRON DCJ: This is an application for leave to appeal and an appeal from a decision of Arbitrator Rutherford in the Worker's Compensation Arbitration Service. The arbitrator published written reasons for decision on 18 January 2013 following a five-day hearing in June and July 2012 in which he dismissed the appellant worker's (Mr Bobic) application pursuant to s 58 Workers Compensation Injury & Management Act 1981 (the Act) seeking an order for commencement of weekly payments of compensation from 1 September 2011.
2 The application for leave to appeal and the appeal were heard together. In my view the grounds of appeal involve questions of law and I grant leave to appeal. The reasons which follow are concerned with the appeal. 3 In his s 58 application Mr Bobic claimed he suffered 'soft tissue injuries to face, neck, back, left thigh and psychological injury' on 31 August 2011 after he was assaulted by another employee at the Armadale Landfill and Recycling Centre yard of the respondent (City of Armadale). The 'psychological injury' was later, in particulars filed on 23 April 2012, particularised as: 4 At the time Mr Bobic alleged he was injured he was employed as a landfill attendant. 5 Although the notice of appeal contains five grounds of appeal, in substance Mr Bobic contends the arbitrator: Background 6 At the hearing before the arbitrator, Mr Bobic gave evidence that during 2011 he was the subject of bullying by a supervisor and also by a leading hand, Patrick Jolliffe. A few days immediately prior to (Page 4)
31 August 2011 Mr Bobic had a disagreement with Mr Jolliffe about which he made a written complaint to the supervisor. 7 On 31 August 2011, towards the end of his shift at about 5.30 pm, Mr Bobic noticed his car, which was parked inside the City of Armadale's yard, had a flat tyre. While Mr Bobic was attempting to change the flat tyre, he was approached by Mr Jolliffe and told to move his car outside the yard to enable the security gates to be shut. Mr Bobic told Mr Jolliffe he could not move his car until he changed the tyre. Thereafter an argument between the two developed. 8 There was a significant conflict between the two as to what occurred. Mr Bobic said he was punched and kicked a number of times on his face and body. The arbitrator characterised Mr Bobic's description, if accepted, as a beating or a severe assault. Mr Jolliffe on the other hand denied he assaulted Mr Bobic. Mr Jolliffe said he walked towards Mr Bobic requesting he move his car. Mr Bobic became agitated and Mr Jolliffe put his hands on Mr Bobic's shoulders to try to calm him down. 9 Mr Jolliffe was described as a big man. 10 A few hours after the incident Mr Bobic attended the emergency department of the Armadale Hospital and was seen by a nurse who recorded Mr Bobic's allegation that he had been assaulted at work and that he complained of general soreness and tenderness. The medical records noted Mr Bobic had reddened areas to his cheekbones. 11 Mr Bobic also reported the alleged assault to the police but it seems no action was taken, or at least no charges were laid. 12 Mr Bobic attended his general practitioner, Dr Thonell, the following day, 1 September 2011. Dr Thonell issued a first medical certificate which recorded Mr Bobic alleged he was bashed by a co-worker and was suffering 'pain spots'. The first medical certificate also recorded: No bruising/lacerations. No obvious injury visible. No …. c-spine tenderness … muscle pain. No obvious abnormality found. 13 Mr Bobic reported the alleged assault to the City of Armadale and made an application for worker's compensation payments. The first medical certificate was served on the City of Armadale. 14 Save for a brief attempt, Mr Bobic has not returned to work since 31 August 2011. (Page 5)
The course of the WorkCover proceedings 15 Mr Bobic, through his solicitors, filed a pt XI application on 10 October 2011 pursuant to s 58 seeking an order for commencement of weekly payments of compensation from 1 September 2011 at a rate of $1,400 gross per week. By reply filed 27 October 2011, the City of Armadale opposed the application. 16 The application presumably proceeded to conciliation but was unable to be resolved and an application for arbitration was commenced. Pursuant to an order of another arbitrator on 10 April 2012 Mr Bobic filed particulars of the injuries he alleged he suffered in the incident on 31 August 2011, including particularisation of the psychological injuries as set out above [3]. Mr Bobic also claimed that the injuries alleged constituted a personal injury by accident pursuant to par (a) of the definition of 'injury' in s 5 of the Act, alternatively, a disease contracted at his place of employment and to which the employment (the assault) contributed to a significant degree for the purposes of par (c). 17 Each of the parties also filed detailed written submissions and witness statements and medical and associated reports. Mr Bobic relied upon the medical certificates of his general practitioners, Dr Thonell and Dr Di Camillo, a psychiatrist, Dr Hoffman and a clinical psychologist, Mr Guest. The City of Armadale relied upon the reports of a psychiatrist, Dr Terace. 18 The arbitration hearing commenced on 6 June 2012. Although the particulars filed by Mr Bobic also alleged in the alternative that the psychological injuries were significantly contributed to by bullying he suffered at work during 2011 leading up to the assault, that particular was withdrawn at the commencement of the arbitration hearing. However, during the course of the hearing an issue arose as to whether evidence of Mr Bobic being bullied during 2011 was relevant as giving background to the relationship between Mr Bobic and Mr Jolliffe and providing a motive or the reason for the alleged assault. Despite objection from the City of Armadale, the arbitrator ruled Mr Bobic was allowed to lead evidence of bullying and the hearing was adjourned part-heard until July 2012 when it was concluded after three further days of hearing. 19 The evidence in relation to the bullying was described by the parties and the arbitrator as 'antecedent conduct'. (Page 6)
The arbitrator's reasons for decision 20 At [10] of his reasons, the arbitrator defined the issues in dispute as follows: (a) Whether the worker was assaulted; (b) Whether the assault arose out of or in the course of employment; (c) Whether the worker has suffered a psychiatric condition arising from the assault; (d) Whether the psychiatric condition wholly or predominantly arises from an injury listed in s 5(4) of the Workers' Compensation and Injury Management Act 1981 (the Act); (e) Whether it was unreasonable or harsh for the worker to be assaulted or bullied; (f) Whether the worker has been unfit for work. 21 Although in his application Mr Bobic claimed he had suffered both physical and psychological injuries as a result of the alleged assault, the application proceeded on the basis that any incapacity suffered by Mr Bobic was only due to the particularised psychological injuries. At [15] of his reasons, the arbitrator noted various issues were raised by the parties. However, at [16] he observed that in his view the primary and central issue for him to determine was whether the worker was assaulted as alleged by the worker, emphasising 'as alleged by the worker'. He went on to say [18]: If the assault did not occur as alleged, or I find there is insufficient evidence to enable me to make such a finding, in my view the worker's application fails in its entirety, as all else flows or follows from that finding. 22 Further, the arbitrator said [21]: For the worker to succeed on the evidence, I consider the worker will need to prove that his psychiatric condition which causes his claimed incapacity was caused by the 'beating' as alleged. 23 Earlier in his reasons the arbitrator considered the legal definition of 'assault', including as defined in the Criminal Code. Having identified the issues requiring his determination and the need for Mr Bobic to prove he (Page 7)
had been severely assaulted or beaten as alleged by Mr Bobic, the arbitrator then summarised the evidence of Mr Bobic, Mr Jolliffe, and another lay witness, who was present in the yard at the time but did not witness any interaction between Mr Bobic and Mr Jolliffe. He also referred to the medical and psychological evidence in the form of reports and certificates. 24 He highlighted the starkly differing accounts of Mr Bobic and Mr Jolliffe as to what occurred between them on 31 August 2011. Although there was no medical evidence as to whether, if Mr Bobic was so severely assaulted as described by him, bruising or lacerations would have been caused, the arbitrator concluded the absence of any bruising or laceration in the medical records was inconsistent with Mr Bobic being forcefully assaulted as alleged by him. 25 Having summarised the evidence, the arbitrator asked himself at [72] - [74] whether Mr Bobic had proved he was assaulted as alleged and concluded he had not. At [75] in a conclusion very briefly stated, the arbitrator found that as Mr Bobic failed to prove he was assaulted as alleged, he therefore failed to establish the diagnosed psychiatric condition of the PTSD, which was based on the allegation of the alleged assault, was an injury as defined in s 5, that is, a personal injury by accident in par (a) or a disease to which the employment contributed to a significant degree for the purposes of par (c) of the definition of injury 26 Although from the very brief statement [75] it is not possible to discern the reasoning process followed by the arbitrator, nor the findings made by him, it seems he accepts Mr Bobic was suffering from PTSD which caused Mr Bobic to be incapacitated for work, but was not satisfied the PTSD or the incapacity was caused by an 'injury' because Mr Bobic was not beaten or severely assaulted by Mr Jolliffe.
Issues on appeal 27 I identified the two issues raised by the grounds of appeal above [5] which involve questions of law. The two issues are more fully particularised as follows. 28 The first issue raised by the notice of appeal is whether the arbitrator erred in law by misdirecting himself when determining: (a) that Mr Bobic's application failed in its entirety if he failed to prove he was severely assaulted or beaten; and (Page 8)
(b) that Mr Bobic had to prove his psychiatric condition was caused by a beating as alleged. 29 Secondly, whether in his reasons for decision [72] – [76] the arbitrator has failed to provide adequate reasons for concluding the application ought to be dismissed.
Did the arbitrator misdirect himself? 30 The issues in dispute identified by the arbitrator [10] in his reasons as requiring his determination which was further explained [18] and [21] too narrowly focused on the nature of the assault Mr Bobic alleged. In my respectful view, the arbitrator was required to consider a wider issue as to whether Mr Bobic had suffered an injury as defined (relevantly a personal injury by accident in par (a)) and if Mr Bobic had suffered a personal injury by accident, what was the nature and extent of that injury, and whether the worker was incapacitated for work as a result of the injury. In determining those issues, and particularly given the contrasting accounts of Mr Bobic and Mr Jolliffe as to what occurred between them on 31 August 2011, the arbitrator was required to make findings of fact as to what occurred on 31 August 2011, rather than what did not occur, that is, that Mr Bobic was not severally assaulted or beaten. 31 To be fair to the arbitrator, the written outline of submissions and closing submissions filed by both parties only focused on whether Mr Bobic had been assaulted by Mr Jolliffe and did not address what findings the arbitrator should make as to what occurred in the incident on 31 August 2011 if he disbelieved Mr Bobic. Indeed, Mr Bobic's written closing submissions expressly submit the arbitrator should accept Mr Bobic told the truth and the assault occurred. Although the submissions also referred to Mr Jolliffe's evidence (that he took or grabbed Mr Bobic by the shoulders), the submissions are to the effect that Mr Joliffe should not be believed when he denied punching and kicking Mr Bobic. Therefore Mr Bobic's submissions filed in this appeal at pars 1 to 6, that even accepting the finding of the arbitrator that Mr Bobic was not beaten by Mr Jolliffe, the arbitrator should still have evaluated all of the evidence and determined that an assault of some kind took place, is inconsistent with how Mr Bobic presented his case to the arbitrator. Despite this the arbitrator was required in my view to assess and analyse all of the evidence and make findings as to what occurred in the incident on 31 August 2011 and then consider the relevance and significance of those findings in relation to the medical and other evidence regarding Mr Bobic's symptoms and his claimed psychiatric condition. (Page 9)
32 Although the arbitrator has set out the evidence which was adduced at the hearing, he has not made, other than the finding Mr Bobic was not assaulted, any findings about the evidence or explained what evidence he accepted and what he rejected and why. 33 Having summarised the medical and psychological evidence and the evidence of Mr Bobic regarding his condition and symptoms, the arbitrator was required to analyse that evidence and make findings as to whether Mr Bobic was suffering from a psychiatric condition or conditions and if so what was the nature and extent of that condition or those conditions. 34 Further, once he made findings of fact as to what occurred on 31 August 2011 (as I have found he was required to), the arbitrator was required to assess and determine whether on those facts Mr Bobic's psychiatric condition was caused by what occurred on 31 August 2011. It was not, with respect, sufficient for the arbitrator simply to find that because the medical diagnosis of Mr Bobic's psychiatric condition was based upon a report of a severe assault (which he found did not occur), the medical and psychological opinions regarding Mr Bobic's psychiatric condition, and the cause of it, could not be relied on. 35 I uphold this ground of appeal.
Adequacy of arbitrator's reasons – principles 36 By s 185(1) of the Act an arbitrator is under a duty to determine a matter in dispute in accordance with the Act. Part XI div 4(3) sets out the powers and obligations of an arbitrator in determining a matter in dispute. By s 188 an arbitrator is bound by rules of natural justice and is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. 37 Section 213(4) of the Act provides: (4) The reasons for an arbitrator’s decision — (Page 10)
(d) need not canvass all the factual and legal arguments or issues arising in the case. 38 Arbitrators are therefore bound to act judicially in the discharge of their duties which includes the provision of properly reasoned decisions in which full and detailed factual findings are set out: see Summit Homes v Lucev (1996) 16 WAR 566, 569 - 571, where Ipp J (Kennedy & Rowland JJ concurring) considered similar provisions concerning the powers and duties of review officers under a former statutory regime. 39 In Velez Pty Ltd v Tudor [2011] WASCA 218 [57] Murphy JA (Pullin & Newnes JJA) referred to the common law obligation to provide adequate reasons for decision and what that required. At [61] he referred to Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, in which Meagher JA explained that where one set of evidence is accepted over a conflicting set of significant evidence, a trial judge should set out his findings as to how he came to accept the one over the other. 40 Murphy JA also referred to Sotico Pty Ltd v Wilson [2007] WASCA 112 [68] and Wheeler JA's observation [23] - [24] that where medical opinions are rejected which attack the reasoning process of the opinion which is accepted or based upon a clinical examination which has a different result from that which is accepted, an arbitrator in explaining why he accepts the facts which he does should explain why he accepts the history he has found as being correct rather than the history as accepted by the opinions which are rejected. 41 Finally, with reference to the obligation to give adequate reasons imposed by s 213(4)(a), Murphy JA said [70]: In identifying the facts accepted and the reasons for doing so (s 213(4)(a)) and the law applied and the reasons for doing so (s 213(4)(b)), the arbitrator will in my view still be obliged to expose the reasoning process linking them, and justifying the ultimate result. 42 In assessing the adequacy of reasons the reasons must be read as a whole, which means they include findings which can be inferred from the reasons: Beale (443) (Meagher JA). 43 In my view, having identified the conflicting accounts given by Mr Bobic and Mr Jolliffe on the significant issue as to whether Mr Bobic had been assaulted by Mr Jolliffe on 31 August 2011 and what occurred between them, the obligation to provide adequate reasons for decision required the arbitrator to make findings as to what happened. (Page 11)
The arbitrator has, in my respectful view, adequately explained why he rejects the evidence of Mr Bobic and finds that Mr Bobic was not severely assaulted or beaten by Mr Jolliffe. Indeed, Mr Bobic accepts and does not challenge that finding in this appeal. However, given the evidence that there was at least some sort of an incident (putting it neutrally), between Mr Bobic and Mr Jolliffe the arbitrator was required to make findings as to what occurred between them. 44 Further, given Mr Bobic's evidence he reported an allegation of assault to his employer, the City of Armadale, the police, the Armadale hospital on 31 August 2011, and to his general practitioner the following day, and was apparently in some distress and ultimately diagnosed as suffering a psychiatric condition, it was in my respectful view incumbent upon the arbitrator to make factual findings in relation to that reported history including Mr Bobic's reaction and his report of symptoms apparently consistent with a diagnosis of a psychiatric condition. 45 I have earlier referred to [75] of the arbitrator's reasons and the difficulty in discerning what findings, if any, he has made regarding whether Mr Bobic was suffering from a psychiatric condition and if so, the nature and extent of it and, importantly, the cause of it. It seems the arbitrator may have accepted Mr Bobic suffered from PTSD which caused him to be incapacitated for work. However, there is no explanation or reasoning as to what is PTSD, what causes it and why, and what are the diagnostic criteria for PTSD, particularly given the condition was apparently diagnosed after an incident between Mr Bobic and Mr Jolliffe on 31 August 2011. Earlier in his reasons at [46] the arbitrator notes the reference of the clinical psychologist Mr Guest to Mr Bobic's belief that his life was being threatened and that he had suffered a traumatic event. However, the arbitrator does not make any findings as to whether Mr Bobic felt his life had been threatened or he had suffered a traumatic event in the interaction between Mr Bobic and Mr Jolliffe on 31 August 2011. Having rejected Mr Bobic's evidence that he was beaten by Mr Jolliffe, the arbitrator should have considered whether there was anything else which occurred in the incident which met the diagnostic criteria for PTSD, or any other psychiatric condition suffered by Mr Bobic, and which explained such a condition. 46 Although the arbitrator has not made any adverse credibility findings against Mr Bobic he has clearly rejected Mr Bobic's evidence that he was beaten. However given he apparently accepts Mr Bobic suffers from PTSD, it is unclear how or why he accepts that diagnosis if the diagnosis depends upon diagnostic criteria being established, such that Mr Bobic (Page 12)
felt his life was being threatened or he had suffered a traumatic event. Even though Mr Bobic does not challenge the finding that he was not beaten, did the interaction between Mr Bobic and Mr Jolliffe cause Mr Bobic to feel as though his life was being threatened or as though he had experienced a traumatic event? Was Mr Bobic's explanation that he was beaten because he felt traumatised by the interaction with Mr Jolliffe which caused him to exaggerate what occurred? Did Mr Bobic genuinely believe he had been beaten or did he deliberately misrepresent or exaggerate what occurred? 47 In the absence of the arbitrator adequately explaining his reasoning process, the apparent acceptance by him that Mr Bobic suffered from PTSD is on one view inconsistent with his rejection of Mr Bobic's evidence that he was beaten. Although in considering whether adequate reasons for decision have been given, any findings which can be inferred must be taken into account, I am unable to infer that because the arbitrator found Mr Bobic was not beaten, he also found Mr Bobic did not feel his life was threatened or that he had experienced a traumatic event. It is unclear, because of the apparent finding that Mr Bobic suffered from PTSD, whether the arbitrator determined that a diagnosis of PTSD did not depend upon findings that Mr Bobic felt his life was threatened or that he had not experienced a traumatic event. Did the arbitrator find that because Mr Bobic was not beaten he did not feel his life was threatened or that he had experienced a traumatic event? 48 As I have earlier observed, Mr Bobic particularised his psychiatric condition as: 49 In my view, in discharging his obligation to provide adequate reasons for decision, as explained in Velez Pty Ltd v Tudor & Sotico Pty Ltd v Wilson,the arbitrator was required to make findings as to whether Mr Bobic was suffering all or any of those conditions and generally, what was the nature and extent of Mr Bobic's medical condition, and explain how he made those findings. The arbitrator was then required to consider and make findings (having regard to his findings as to what occurred on 31 August 2011 between Mr Bobic and Mr Jolliffe) as to whether that incident was, or was not, relevant to any psychiatric condition suffered by Mr Bobic. (Page 13)
50 At [76] of his reasons, the arbitrator determined it was unnecessary for him to make any reference to the reports of Dr Terace. The relevance and significance of Dr Terace's reports is that Dr Terace provides a different diagnosis of Mr Bobic's psychiatric condition to that diagnosed by Mr Bobic's psychiatrist and psychologist, and as particularised by Mr Bobic. Specifically, Dr Terace does not agree Mr Bobic suffers from PTSD. Dr Terace expressed the view Mr Bobic was a psychologically vulnerable individual with a previous psychiatric history and queries whether Mr Bobic's condition, which Dr Terace diagnosed as adjustment disorder with anxious mood, was provoked by what occurred on 31 August 2011. Given my view the arbitrator has failed to provide adequate reasons as to why he apparently accepts Mr Bobic was suffering from PTSD, and also that such a finding is, in the absence of reasons, arguably inconsistent with the rejections of Mr Bobic's evidence that he was beaten and the diagnosis of Dr Hoffman and Mr Guest of PTSD based on an account of being beaten, the conflict between that evidence and Dr Terace's evidence, and the arbitrator's apparent acceptance Mr Bobic was suffering PTSD, needed to be resolved. 51 I uphold the ground of appeal the arbitrator erred in failing to provide adequate reasons for decision.
Orders 52 By s 247(7)(a) of the Act: (7) On hearing an appeal made under this section, the District Court may — (a) affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and … 53 Counsel for Mr Bobic submits that if the appeal is granted the application for an order for commencement of workers compensation payments should be referred back to the arbitrator to finally determine the application in accordance with these reasons or any order I might make. He does not seek an order the matter be remitted to a different arbitrator to finally determine. Counsel for the City of Armadale accepts that if the appeal is granted the application should be remitted to the same arbitrator to finally determine. (Page 14)
54 In McKay v Commissioner of Main Roads [2013] WASCA 135 Murphy JA (Martin CJ and Buss JA agreeing) [353] - [357], [362] considered the principles regarding whether a retrial should be ordered, whether a new trial can be limited to defined issues and whether if issues can be defined they should be remitted to the same judge or a different judge for determination or rehearing. He observed that a retrial is a remedy which inflicts a great hardship on parties and witnesses and whether a retrial should be ordered, and if so, whether it be limited to certain issues depends upon the demands of justice and what is just in all of the circumstances. Where it is difficult to separate issues, it will be appropriate to order a retrial on all issues. A retrial should not be limited if there is a real chance of the primary judge having erred in the wider case. 55 Although I initially had reservations as to whether if I upheld the appeal the matter could properly be remitted to the same arbitrator for further determination, rather than being remitted to a different arbitrator for a new trial, and although I am of the view that discrete issues requiring the further determination of the arbitrator cannot be defined, I accept that the ordering of a retrial before a different arbitrator will inflict hardship on the parties and witnesses. In particular I take note of the fact that the original hearing before the arbitrator occupied five days. I also have regard to the nature of the injury claimed by Mr Bobic and that he is likely to be subjected to significant levels of stress were he required to proceed to a fresh trial. I also take into account that neither party wishes a retrial. 56 I also accept the parties' submissions reflect the practice followed in earlier decisions to remit the matter to an arbitrator to make any necessary further findings of fact rather than the judge on appeal determining the outstanding actual issues. See, for example, Ausden Joinery v PJ [2011] WACC C4-2011 in which McCann P determined he would normally order a rehearing in respect of any remaining issues before another arbitrator as arbitrators are the primary fact-finders in the former Dispute Resolution Directorate (now the Workers Compensation Arbitration Service). In that case McCann P identified discrete issues which were able to be remitted to an arbitrator for determination. However in this matter it is not possible, mainly because of the view I have reached that the arbitrator has failed to make necessary findings of fact and disclose his reasoning process to identify discrete issues to be remitted to the arbitrator for fresh determination. (Page 15)
57 However, and without intending to direct the arbitrator as to the precise issues he must determine, nor fetter his fact-finding role, I would expect the arbitrator to: (a) make findings as to what occurred between Mr Bobic and Mr Jolliffe on 31 August 2011; (b) make findings as to whether Mr Bobic suffers from a psychiatric condition and if so make findings as to the nature and extent of that condition; (c) if the arbitrator does find Mr Bobic suffers from a psychiatric condition, make findings as to whether anything which occurred on 31 August 2011 is causally relevant to Mr Bobic's evidence that he was beaten (which was rejected by the arbitrator and which is unchallenged) and to the plaintiff's psychiatric condition; (d) if what occurred on 31 August 2011 is determined to be causally relevant to any psychiatric condition Mr Bobic suffers from, whether that condition constitutes an 'injury', for the purposes of pars (a) or (c) of the definition 'injury' s 5 of the Act; (e) whether if Mr Bobic suffered a personal injury by accident, it arose out of or in the course of his employment; and (f) whether Mr Bobic has suffered a relevant incapacity for work for the purposes of sch 1 cl 7 of the Act. 58 These matters are not intended to be exhaustive. 59 I have earlier noted that both counsel agree that if the appeal is allowed, the matter should be remitted back to the same arbitrator rather than to a different arbitrator for a rehearing. Although in Ausden Joinery v PJ [2011] WACC C8-2011 McCann P ordered the matter should be remitted to a different arbitrator for re-hearing, in my view it is appropriate in this case that the matter be remitted to the arbitrator who heard the application rather than a different arbitrator to finally determine Mr Bobic's application. Although the arbitrator, in rejecting Mr Bobic's evidence that he was beaten and finding that he was not beaten, was able to make such a finding without making any adverse credibility finding against Mr Bobic, it may be that in making findings as to what occurred between Mr Bobic and Mr Jolliffe on 31 August 2011, he will be required (Page 16)
to make credibility findings. In that case having seen and heard the evidence of both Mr Bobic and Mr Jolliffe, the arbitrator is in the best position to assess their evidence and make findings. Also, in making findings as to the nature and extent of the plaintiff's psychiatric condition, the arbitrator is in the best position to assess the evidence and make findings. It is not in my view possible for a different arbitrator to make the findings which need to be made without re-hearing all of the evidence which would necessitate a new hearing. Neither party desires that.
Application to adduce fresh evidence 60 On the hearing of this appeal Mr Bobic also applied for leave to adduce fresh evidence. In support of the application, Mr Bobic's solicitor Mr Kevin Wong swore an affidavit on 12 June 2013 annexing a report of the clinical psychologist Mr Guest dated 18 February 2013 (in which I note Mr Guest states he is not currently practising as a registered psychologist) and a report from the psychiatrist, Dr Hoffman, dated 6 June 2013. 61 Given my conclusion that this matter be remitted to the arbitrator for further determination, it is therefore unnecessary for me to otherwise make any determination regarding the application. I am of the view that the application to adduce fresh evidence should be made to and be determined by the arbitrator as a part of his re-determination of the matter. It is likely the City of Armadale would also seek to adduce further medical evidence in response to fresh evidence sought to be adduced by Mr Bobic and it is more appropriate that those issues be considered and determined by the arbitrator during his re-determination. 62 As the arbitrator regarded his finding that Mr Bobic was not beaten as dispositive of the issues for his determination, which Mr Bobic may not have had a proper opportunity to address at the hearing, it is also likely the parties will seek to make further submissions regarding the evidence and whether or not they should be given the opportunity to call further evidence is an issue more appropriately considered and dealt with by the arbitrator (McKay v Commissioner of Main Roads [156] - [157].
Conclusion 63 I therefore order: (Page 17)
64 I will hear the parties as to costs.
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