Box v APK Engineering Pty Ltd
[2009] NSWWCCPD 149
•25 November 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Box v APK Engineering Pty Ltd [2009] NSWWCCPD 149 | ||||
| APPELLANT: | Neil Thomas Box | ||||
| RESPONDENT: | APK Engineering Pty Ltd | ||||
| INSURER: | QBE Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | A1-3655/09 | ||||
| ARBITRATOR: | Ms J. David | ||||
| DATE OF ARBITRATOR’S DECISION: | 11 August 2009 | ||||
| DATE OF APPEAL DECISION: | 25 November 2009 | ||||
| SUBJECT MATTER OF DECISION: | “Additional evidence” pursuant to section 352(6) of the Injury Management and Workers Compensation Act 1998; application of Haider v JP Morgan Holdings Auist Ltd (t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158, 4 DDCR 634 | ||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Michael Snell | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Slater & Gordon | |||
| Respondent: | Bartier Perry | ||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 11 August 2009, is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons. The Respondent Employer is to pay the Appellant Worker’s costs of this appeal. | ||||
BACKGROUND TO THE APPEAL
On 9 September 2009 Neil Thomas Box (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 11 August 2009 (the Certificate of Determination due to a typographical error describes its date as 11 August 2008).
The Respondent to the Appeal is APK Engineering Pty Ltd (‘the Respondent Employer’).
The Appellant Worker is 51 years of age, and ultimately claimed two children as dependants. He is illiterate. He had been an upholsterer, but for many years prior to the alleged injury had worked in the steel industry. He worked with the Respondent Employer for a number of years as a steel fabricator.
His claim related to an alleged incident on 7 May 2008. He stated he was using a large steel guillotine to cut pieces of steel, the weight of which he estimated at 90 kilograms. A piece of steel had dropped down whilst being cut. As the Appellant Worker pulled it back to its appropriate position on the table that supported it, he experienced mid-back pain. He said the pain persisted, and on the date of injury he reported at work to Mr Mentiplay that he had hurt his back, left early, and attended Mildura Base Hospital. The Appellant Worker lodged a claim form dated 26 June 2008.
The claim presented at the arbitration hearing was on the basis of total incapacity from 7 May 2008 to 6 August 2008, and thereafter partial incapacity pursuant to section 40. There was an ongoing loss from 6 August 2008, flowing from the Appellant Worker working five hours per day, rather than his previous full time hours.
Liability for the claim was denied by the Respondent Employer’s insurer, a section 74 Notice dated 2 October 2008 disputed inter alia that the Appellant Worker had suffered an injury, and that employment was a substantial contributing factor to injury.
The matter proceeded to arbitration hearing on 7 August 2009. Both parties were represented by counsel. The Appellant Worker gave evidence on the application of his own counsel, and was cross-examined. After hearing addresses, the Arbitrator reserved her decision. The only seriously contested issue between the parties at the arbitration hearing was whether the Appellant Worker had suffered an injury as alleged.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 11 August 2009 records the Arbitrator’s orders as follows:
“1. Award for the Respondent.
2. That each party pay its own costs.”
The Certificate was accompanied by eight pages of careful reasons. The Arbitrator observed the factual issue had to be determined “in large part on the Applicant’s credibility as a witness”. She set out various inconsistencies between the Appellant Worker’s account of the injury, and medical histories recorded at Mildura Base Hospital, by the general practitioner Dr Al-Hadi, and by a chiropractor Mr Wagstaff. She noted Mr Mentiplay (who worked in the Respondent Employer’s office) stated he could not recollect a report of the injury being made to him on the day it occurred, contrary to the Appellant Worker’s statement. After reviewing the evidence, the Arbitrator concluded the Appellant Worker had not persuaded her on the question of injury. Earlier in her reasons the Arbitrator had referred to the decision of Nguyen v Cosmopolitan Homes [2008] NSWCA 246 regarding the fact-finding process where there were disputed facts.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The compensation at issue on the appeal clearly exceeds the sum of $5,000.00 prescribed in section 352(2)(a). As no sum was awarded, the threshold provision in section 352(2)(b) does not apply: Mawson v Fletcher International Exports Pty Ltd [2002] NSWWCCPD5. The Respondent Employer properly makes no submission that the threshold provisions in section 352 are not satisfied.
I grant leave to appeal.
FRESH EVIDENCE
The Appellant Worker seeks to adduce new evidence on the appeal, additional to that before the Arbitrator. Leave is sought to rely on a statutory declaration of Mark Anthony Hendy dated 26 August 2009. Mr Hendy is a mechanical engineer and draftsman, in the employ of the Respondent Employer. As at 7 May 2008 he shared an office with Mr Mentiplay. His statutory declaration states he “distinctly heard Mr Box inform Mr Mentiplay that he had just hurt his back and was going home”. He states he originally believed the Appellant Worker’s “injury would be recognized (sic) as a workplace injury”, without his involvement. “Given the current state of proceedings I feel morally compelled to come forward and put the record straight…”
The Appellant Worker also seeks to rely on a statutory declaration of Peter Graham Wagstaff dated 23 August 2009. Mr Wagstaff was a chiropractor the Appellant Worker consulted both before and after the alleged injury of 7 May 2008. One of the historical inconsistencies referred to by the Arbitrator in her reasons at [17(d)] was that the Appellant Worker had consulted Mr Wagstaff on 6 May 2008, the day prior to the alleged injury. The Appellant Worker said he did not think he had done this (T53.20). The photocopy of Mr Wagstaff’s cards put into evidence was poor, and the date of that consultation was somewhat obscured. There was discussion at the arbitration hearing regarding the date. The Arbitrator and counsel for the Appellant Worker appear both to have thought the date of the relevant consultation was 6 May 2008 (see T65). The Respondent Employer’s counsel submitted on the basis the entry may have been 6 or 16 May 2008, “we can’t be 100% sure” (T84.5). The Arbitrator dealt with the entry on the basis it was 6 May 2008. Mr Wagstaff’s statutory declaration states he did not treat the Appellant Worker on 6 May 2008. It is accompanied by a better copy of the cards, clearly demonstrating the date was 16 May 2008.
Fresh or additional evidence on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction Number 6 sets out the process for seeking leave of the Commission to give fresh or additional evidence on appeal. It relevantly provides:
“FRESH EVIDENCE AND/OR ADDITIONAL EVIDENCE
Each application to introduce fresh evidence or additional evidence on appeal will be considered on its own facts and circumstances and in the context of the Commission’s obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (see section 354 of the 1998 Act).
In the exercise of its discretion to admit fresh evidence or further evidence on appeal the Commission will have regard to, and the parties should make submissions on, whether:
· it can be demonstrated that the evidence could not with reasonable diligence have been obtained by the party and tendered in proceedings before the Arbitrator;
· the evidence is credible;
· there is a high degree of probability that there would have been a different decision if the evidence had been admitted at the arbitration, and/or
· it is just to admit the evidence in all the circumstances of the individual case.
Parties should be aware that a review under section 352 of the 1998 Act is not a rehearing or hearing de novo. The original arbitration should not be treated as a preliminary hearing and all relevant evidence should be called at that time.
If fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against is relied upon, parties must include:
· a schedule of the fresh or additional evidence;
· a copy of the fresh or additional evidence;
· a brief outline of the fresh or additional evidence and the reasons why it was not given in proceedings before the Arbitrator, and
· submissions on why the fresh or additional evidence should be admitted, or rejected as the case may be.
Where a party seeks leave to rely on fresh or additional evidence in relation to the decision appealed against, that party must serve a copy of the fresh or additional evidence on the other parties to the dispute when serving the Application or Notice of Opposition.”
The Practice Direction was discussed in Haider v JP Morgan Holdings Aust Limited (t/as JP Morgan Operations Australia Ltd) [2007] NSWCA 158, 4 DDCR 634 (‘Haider’). Basten JA at [41] described the test set out in the Practice Direction as “apt to give rise to error by treating the discretion as fettered in a way which it is not”. The requirements set out in the Practice Direction “reflect the conditions which must generally be met before ‘fresh evidence’ is admitted” (at [41]). This fails to take account of the discretion to admit “additional evidence which did not need to satisfy the common understanding of ‘fresh evidence’. A more flexible test was available, but not applied.” (at [45]). At [44] Basten JA, dealing with the admission of evidence pursuant to the discretion in section 352(6), said:
“Assuming for present purposes that the evidence was material and probative, the statutory obligations and powers imposed and conferred on the Tribunal suggest that the material should have been considered in order to address the substantial merits of the case.”
The power to admit evidence that is in addition to, or substitution for, the evidence received at the arbitration hearing, pursuant to section 352(6), must be exercised having regard to sub-sections 354(1) to (3) of the 1998 Act (Haider at [41] to [42]). For reasons that appear below, the additional evidence the Appellant Worker seeks to rely on is, in my view, clearly material and probative.
Mr Hendy’s Statutory Declaration
The Appellant Worker gave evidence Mr Hendy was in the office when he went to report the injury to Mr Mentiplay, on the day it occurred (T20.15). The Appellant Worker said Mr Hendy told him that he (Mr Hendy) had refused to do a statement for “the employee” (this refers to the employer: T 40.5), because “it’s against his interests in the office”. Mr Hendy also refused to provide a statement for the Appellant Worker “because it’s a conflict of interest him working in the office” (T39-40). Cross examined briefly on this point, the Appellant Worker agreed that “Mr Hendy said that he wouldn’t give a statement to either party” (T40.40).
Mr Hendy’s statutory declaration, excluding formal parts, states:
“I categorically assert that
1.I and Mr David Mentiplay were within 3 meters (sic) of Mr Box when he entered an office (at APK Engineering) occupied by Mr Mentiplay and myself at that time and
2.I distinctly heard Mr Box inform Mr Mentiplay that he had just hurt his back and was going home and
3.A couple of days later Mr Box came into Mr Mentiplay and my shared office. I distinctly heard Mr Box request to Mr Mentiplay to record his injury in the accident book. At that stage Mr Mentiplay advised Mr Box that A.P.K. injury book was yet to be set up.
As a Mechanical Engineer/Draftsman at A.P.K. for the past elevaine (sic) years I enjoy the privilage (sic) of a company car and I have close contact with senior staff.
My original belief was that Mr Box’s injury would be recognized (sic) as a workplace injury without my involvement and the associated stress.
Given the current state of proceedings I feel morally compelled to come forward and put the record straight by stipulating the facts as I know them to be.”
The Appellant Worker submits he tried to obtain evidence from Mr Hendy, and with reasonable diligence was unable to do so. The Appellant Worker’s submissions on the appeal say the statutory declaration was produced by Mr Hendy “independently of any intervention of the Appellant’s solicitors”.
The Respondent Employer opposes admission of Mr Hendy’s statutory declaration on the following bases:
(i) The evidence could have been obtained for the arbitration hearing with reasonable diligence, by requesting the issue of a summons compelling Mr Hendy’s attendance to give evidence;
(ii) The statutory declaration does not give the dates of “the alleged conversations between Mr Mentiplay and the appellant”. This, it is submitted, deprives the declaration of credibility and probative value, and means “There is not a high degree of probability that there would have been a different decision if the evidence had been admitted at the arbitration.”, and
(iii) it is not just in the circumstances to admit Mr Hendy’s statutory declaration. This submission is not expanded on.
Contrary to the submissions of the Appellant Worker, there is power in the Commission, contained in section 359 of the 1998 Act, to issue a summons requiring the attendance of a person at a hearing before the Commission,.
Rule 10.3(1) of the Workers Compensation Commission Rules 2006 (‘the Rules’) requires that all information and documents on which a party proposes to rely, and which is in the possession and control of the party, be lodged and served with its application or reply. The Appellant Worker had not, of course, included any statement of Mr Hendy with his application, as he did not have such a statement. Rule 10.3(2) prevents the introduction of evidence not lodged and served as required by subrule 1. Rule 10.3(3) provides a discretionary power in the Commission to permit the introduction of evidence that would otherwise be precluded by subrule 2, if this is necessary in the interests of justice.
The evidence before the Arbitrator did not indicate the Appellant Worker had foreknowledge of what Mr Hendy’s evidence would be. Mr Hendy may well have said his attention was directed elsewhere when the worker attended the shared office, and he did not notice what was said, or had forgotten. The Appellant Worker could not know. It is apparent, from the evidence at the arbitration, that up to that time Mr Hendy did not intend assisting the position of either party.
For the Appellant Worker to have adduced evidence from Mr Hendy at the arbitration, it would have been necessary that he seek the issue of a summons requiring Mr Hendy’s attendance, with no knowledge of what evidence Mr Hendy would give. He would then have needed to make application for exercise of the Commission’s discretion to admit such evidence pursuant to Rule 10.3(3), without being able to indicate the substance of the evidence to be adduced. If that application succeeded, the evidence of Mr Hendy would then have been led, with the party leading it having no advance knowledge of what it would be. Such a process would have been fraught with practical difficulties, and it is, in my view, unrealistic to suggest that is a course the Appellant Worker should have followed. I do not accept the Appellant Worker could, with reasonable diligence, have adduced the evidence of Mr Hendy at the arbitration.
The Respondent Employer’s point about the absence of dates in the statutory declaration is to some extent a valid one. However I note the submission of the Appellant Worker that the statutory declaration was produced without intervention by them. The form of the document is consistent with it having been drafted by a lay person, without legal assistance. It also is consistent with the failure to include any dates. It is significant that the first conversation described involves the Appellant Worker saying “he had just hurt his back and was going home” (emphasis added). This is consistent with that conversation occurring very shortly after the injury being described, I would infer on the date of injury. It would be nonsensical for a person to say he had “just” hurt his back, if referring to an event that was not contemporaneous.
Mr Hendy is a relatively senior and long standing employee of the Respondent Employer, in a professional or quasi professional capacity. His initial refusal to assist either party does not suggest he is in any way biased in favour of the Appellant Worker. His statutory declaration indicates he was prepared to become involved only when he formed the view it was his moral duty to do so. On its face, his evidence is credible.
His evidence also is probative. One of the matters relied upon by the Arbitrator, in not accepting the Appellant Worker’s case on injury, was the inconsistency between the Appellant Worker (who said he reported the injury to Mr Mentiplay on the day it happened), and Mr Mentiplay’s statement that he had no such recollection ([17(f)] of the reasons). Mr Hendy’s statutory declaration is highly relevant to this issue.
This leaves the Respondent Employer’s argument that there is not a high degree of probability that there would be a different decision if the evidence were admitted. This submission picks up the language of Practice Direction Number 6, and also the judgment of Clarke JA in Akins v National Australia Bank (1994) 34 NSWLR 155 at 160F (referred to in Haider).
As Basten JA makes clear in Haider at [41] to [45], this requirement is one of the conditions “which must generally be met before ‘fresh evidence’ is admitted”. However where evidence is treated as additional evidence, this need not “satisfy the common understanding of ‘fresh’ evidence”, a “more flexible test” is available. It would be difficult to conclude Mr Hendy’s statutory declaration is such that there is a high degree of probability of a different decision, had it been admitted at the arbitration. However it is unnecessary that it meet this test, when I consider whether leave should be given for its use, as additional evidence, pursuant to section 352(6) of the 1998 Act. In exercising this discretion, the following matters favour the granting of such leave:
(i) The evidence could not, with reasonable diligence, have been obtained for the arbitration hearing;
(ii) it is apparently credible evidence;
(iii) it is material and probative evidence;
(iv) consideration of the evidence will assist in addressing the substantial merits of the case, and
(v) the Respondent Employer points to no prejudice that will result from use of the evidence.
I have concluded the interests of justice favour the granting of leave to permit the statutory declaration of Mr Hendy dated 26 August 2009 to be used in this appeal, and I grant such leave.
Mr Wagstaff’s Statutory Declaration
Mr Wagstaff’s statutory declaration dated 23 August 2009, excluding formal parts, reads:
“1. That Mr Neil Box did not attend for treatment nor did he receive any treatment from me on 6th May 2008.
2. The dates applicable to Mr Box’s hearing are 16th May 2008 and 19th May 2008.
3. I feel that Mr Box’s condition was a new injury, not a longstanding condition.”
16 and 19 May 2008 are, according to the clean copy of the notes, the two consultation dates that postdate the alleged injury on 7 May 2008. Paragraph [2] of the statutory declaration adds nothing to what can be gleaned from the clean copy of the notes.
The use the Appellant Worker seeks to make of this statutory declaration is described in his submissions as the correction of “a date in the Chiropractor’s clinical notes from 6 May 2008 to 16 May 2008”. The Appellant Worker’s submissions do not place reliance on paragraph [3] of the statutory declaration. The evidence does not qualify Mr Wagstaff as an expert to give evidence about medical matters going to causation. Even if it did, paragraph [3] of the statutory declaration could be no more than a bare ipse dixit, not entitled to evidentiary weight (South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, 4 DDCR 421 at [132] to [139]).
It follows that the only parts of the additional evidence from Mr Wagstaff that potentially consist of credible and probative evidence are paragraph [1] of the statutory declaration, and the clean copy of the notes.
The Appellant Worker argues he could not with reasonable diligence have obtained this evidence for the arbitration hearing, as he could not have known “a poor quality document with an illegible date would be used in the arbitration”.
The Respondent Employer opposes leave being granted to use the statutory declaration and clean copy of the notes. It submits:
(i) Mr Wagstaff’s documents were produced pursuant to a Direction for Production, and the Appellant Worker had sufficient time to clarify any uncertainty about dates in the documents. Thus with due diligence the further evidence from Mr Wagstaff could have been available at the arbitration hearing;
(ii) there is not a high degree of probability of a different decision if this evidence had been admitted at the arbitration;
(iii) it is not just in the circumstances to admit the evidence. This submission is not expanded on, and
(iv) it is conceded the evidence of Mr Wagstaff is credible.
It is clear there was uncertainty at the arbitration hearing regarding the date of the entry now identified as 16 May 2008 (see [17] above). Counsel for the Respondent Employer fairly addressed on the basis it could have been either. It is true those acting for the Appellant Worker would have had some opportunity to peruse these and other documents produced pursuant to Direction for Production, prior to the arbitration hearing. They could not necessarily have been expected to anticipate the significance that particular entry would take on, nor that it would be accepted as being 6 May 2008, the date most damaging (of the two alternatives) from the point of view of the Appellant Worker.
As with the evidence of Mr Hendy, it is appropriate I consider the Appellant Worker’s application for leave pursuant to section 352(6) on the basis this is additional evidence, or evidence in substitution for, that given at the arbitration hearing. I should have regard to the substantial merits of the case. It would, in my view, be appropriate to admit the clean copy of the notes, in substitution for the poor copy tendered at the arbitration hearing, on the basis this simply corrects an error, and the clean copy is the better evidence of the contents of the notes.
Additionally, in my view the following factors favour the admission of paragraph [1] of Mr Wagstaff’s statutory declaration, in addition to the clean copy of the notes:
(i) Mr Wagstaff’s evidence is credible;
(ii) admission of the additional evidence will correct an error in the evidence, it is probative;
(iii) no specific prejudice is raised by the Respondent Employer if the additional evidence is allowed;
(iv) whilst there may have been some opportunity for the Appellant Worker to seek to clarify uncertain dates in documents produced, he would not necessarily have foreseen the significance that particular entry would take on in the running of the arbitration hearing, and in the reasons of the arbitrator. This is particularly so when it is remembered the Respondent Employer quite properly did not, through its counsel, categorically submit the date of the entry was 6 May 2008;
(v) the interests of justice favour receipt of the evidence, to correct what is essentially a mistake, and
(vi) for the reasons discussed above in respect of the additional evidence of Mr Hendy, it is unnecessary that the Appellant Worker demonstrate there is a high probability of a different decision if the evidence had been admitted at the arbitration, to succeed in obtaining this leave.
For the above reasons I grant leave to permit paragraph [1] of the statutory declaration of Mr Wagstaff dated 23 August 2009, and the clean copy of Mr Wagstaff’s notes, to be used in this appeal.
SUBMISSIONS
The Appellant Worker submits that, if the additional evidence of Messrs Hendy and Wagstaff is admitted, the weight of the evidence overall supports a finding the Appellant Worker was injured as alleged. It is also submitted the admission of Mr Wagstaff’s partly illegible notes, and the conclusion drawn from those notes by the arbitrator, constituted error on her part. It is submitted there should be a rehearing of the arbitration, in which the additional evidence is admitted.
The Respondent Employer submits the notes of Mr Wagstaff were admitted at the arbitration hearing by consent. The Respondent Employer further submits that, when the evidence (including the additional evidence) is assessed overall, the preferable or correct decision remains that reached by the Arbitrator, that the Appellant Worker did not, on the probabilities, suffer compensable injury. The submissions of the Respondent Employer refer in some detail to various historical inconsistencies in support of this contention. Reference is made to Sapina v Coles Myer Limited [2009] NSWCA 71 (‘Sapina’).
DISCUSSION AND FINDINGS
The passages of the transcript dealing with admission of documents are somewhat lacking in precision, but the transcript does not suggest the Appellant Worker objected to admission of the notes of Mr Wagstaff. In any event, it is unnecessary that the Appellant Worker establish error for the purpose of succeeding in his appeal: Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339 at [6]; Sapina at [55].
The case of the Respondent Employer on the injury issue was to rely on various instances where the Appellant Worker did not, around the time of the alleged incident, give histories of its occurrence. These include histories recorded at Mildura Base Hospital, and by the general practitioner Dr Al-Hadi. Reliance is also placed on dealings between the Appellant Worker and other employees of the Respondent Employer. There are multiple instances of alleged inconsistencies set out in the Respondent Employer’s submissions, and I shall not seek to deal individually with these. The ultimate submission of the Respondent Employer is that the Appellant Worker’s account of his injury should not be accepted, having regard to the inconsistencies submitted to exist.
The only witness who gave evidence was the Appellant Worker. He was cross-examined at some length, and various of the inconsistencies were raised with him. The Arbitrator at [15] of her reasons correctly observed:
“As a result of the competing versions of events, the finding of fact in this matter has to be based in large part on the Applicant’s credibility as a witness. This was agreed by both counsel at the hearing.”
The Arbitrator at [17] of her reasons, set out “instances of the inconsistencies”. These included the evidence of Mr Mentiplay that is now the subject of Mr Hendy’s statutory declaration, and the chiropractic history described as occurring on 6 May 2008, now the subject of Mr Wagstaff’s statutory declaration. The Arbitrator then concluded:
“18. I accept the Respondent’s submission that the Applicant’s reporting to the staff at the Hospital of how his injury occurred was a contemporaneous account of the events as the Applicant alleges the injury occurred about ½ to 1 hour before he arrived at the Hospital. The hospital staff had no reason to record an explanation of the mechanism of injury other than that given to them by the Applicant. The explanation that the injury was caused by the Applicant sneezing the day before was noted three times on the Hospital records.
19. The above inconsistencies and the inconsistency of telling the Chiropractor that he injured his back at work (contrary to the alleged culture of the Respondent) on the day before the alleged date of injury, 7 May 2008, which is the date on which the Applicant stated his injury occurred in both his written statements, has left me without a “feeling of satisfaction” or “an actual persuasion that the fact does exist” in the words of the Court of Appeal quoted above. As stated above, independent records of the Hospital, Dr Al-Hadi and the Chiropractor do not support the Applicant’s version of events.
20. In coming to the conclusion that the Applicant has not satisfied me that his injury did occur at work on 7 May 2008, I have not relied on most of the statements lodged by both parties in support of their version of events on the basis that the statements were made either by continuing employees of APK Engineering or were made by persons who were partners of or related to the Employer, Mr Kerr, or to the Applicant. Also, none of the deponents were present to give evidence so their demeanour could not be assessed.”
It is clear, from the reasons at [19], that the chiropractic history, taken by the Arbitrator to have been recorded on 6 May 2008, was a factor in the Arbitrator’s conclusion regarding the Appellant Worker’s credit.
Each party submits that, if the additional evidence is allowed in on the appeal, it is entitled to succeed on the evidence overall.
The Arbitrator did not specifically refer to the Appellant Worker’s demeanour in her rejection of his case on ‘injury’. However it is noteworthy that she regarded her inability to assess the demeanour of some other witnesses (who did not give viva voce evidence) as a reason not to place reliance on their statements. I have not had the advantage of hearing and seeing the Appellant Worker give evidence. In Tan v National Australia Bank [2008] NSWCA 198, 6 DDCR 363 Basten JA at [11], dealing with the ‘review’ process, said:
“Constraints may arise at various stages. First, in deciding the primary facts, the appellate tribunal may defer to findings made by a decision-maker who has resolved conflicts in the course of hearing and assessing oral testimony. In such a case, the appellate tribunal which does not hear the witnesses, will be constrained to approach the findings in a manner similar to that described in Fox v Percy [2003] HCA 22; 214 CLR 118.”
The additional evidence from Messrs Hendy and Wagstaff may well impact on the significance to be attached, overall, to certain of the inconsistencies identified by the Arbitrator. Mr Mentiplay’s evidence, recorded in his statement, that he did “not recall” the Appellant Worker “telling me he had injured his back at work” was not a vigorously expressed denial of the possibility. It may well be that Mr Hendy’s statutory declaration on this issue would be preferred. If it were, a report of the injury, quite possibly on the day it allegedly occurred, could deprive various of the other medical histories, identified as inconsistent, of much of their sting.
The chiropractic history recorded (it is now known) on 16 May 2008 was the subject of discussion during addresses at the arbitration hearing (see T 66). At the least it appears to contain reference to “TS” (accepted by both parties at the arbitration hearing as probably a reference to the thoracic spine) followed by “re hurt at work”. This was approximately nine days after the alleged injury.
Certain inconsistencies remain (most noticeably, but not restricted to, the Mildura Base Hospital records). Consequently I would not conclude that admission of the additional evidence from Messrs Hendy and Wagstaff is such that there is a high degree of probability that a different result would have ensued at the arbitration hearing, had it been admitted. However the additional evidence is, in my view, credible, material and probative, and its admission is consistent with the principles referred to in the judgment of Basten JA in Haider. If there were reports of the injury on the date it occurred (to Mr Mentiplay), and nine days later in a treatment context (to Mr Wagstaff), this has the capacity to affect a consideration of whether the Appellant Worker’s case on ‘injury’ should, on the probabilities, be accepted.
The Arbitrator’s decision clearly involved a consideration of the Appellant Worker’s credit. I have not heard the Appellant Worker give evidence. Applying what was said by Basten JA in Tan, and the principles in Fox v Percy [2003] HCA 22; 214 CLR 118, it would in my view be inappropriate to seek to substitute my own views on credit, for those reached by the Arbitrator. The most appropriate course is to remit the matter for rehearing by another Arbitrator. The additional evidence admitted on this appeal should be part of the evidence on the rehearing.
Where the credit of a witness is challenged on the basis of allegedly inconsistent medical records, it is helpful to bear in mind the decisions of the Court of Appeal in Davis v City of Wagga Wagga [2004] NSWCA 34 and King v Collins [2007] NSWCA 122. These decisions were not raised in this appeal, and I do not rely on them in reaching the conclusion I have, as regards disposition of this appeal. They may be helpful to the parties when dealing with the rehearing of the matter.
DECISION
The decision of the Arbitrator dated 11 August 2009 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of this appeal.
Michael Snell
Acting Deputy President
25 November 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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