Brines v Westgate Logistics Pty Ltd
[2008] NSWWCCPD 43
•10 April 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43
APPELLANT: Sean Brines
RESPONDENT: Westgate Logistics Pty Ltd
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC4150-07
DATE OF ARBITRATOR’S DECISION: 29 October 2007
DATE OF APPEAL DECISION: 10 April 2008
SUBJECT MATTER OF DECISION: The absence of transcript of proceedings; onus of proof; weight to be attached to evidence taken by telephone, and weight to be attached to evidence of lay witnesses.
PRESIDENTIAL MEMBER: President Greg Keating, DCJ
HEARING:On the papers
REPRESENTATION: Appellant: Napier Keen
Respondent: Gillis Delaney Lawyers
ORDERS MADE ON APPEAL: The Arbitrator’s findings and determination dated 29 October 2007 are confirmed.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 23 November 2007 Mr Sean Brines (‘Mr Brine/ the Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against the decision, dated 29 October 2007.
The Respondent to the Appeal is Westgate Logistics Pty Ltd (‘Westgate’).
Mr Brines claims to have suffered an injury to the right arm when he fell from a truck at his employer’s premises on 21 November 2005.
Mr Brines sought lump sum compensation in respect of an impairment of his right arm pursuant to section 66 and compensation for pain and suffering pursuant to section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). The claim was denied.
On 6 June 2007 Mr Brines filed an Application to Resolve a Dispute in the Commission.
On 27 June 2007 Westgate filed a Reply in the Commission disputing liability. Westgate claims that the application made by Mr Brines is fraudulent. It claims that Mr Brines suffered an injury to his arm whilst at home on Saturday 19 November 2005 when, under the influence of alcohol, he fell and rolled down a driveway whilst playing a game of handball.
In due course, the Arbitrator was required to determine the dispute, as the parties were unable to reach agreement throughout the dispute resolution process prior to the arbitral hearing.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 29 October 2007 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1. Award for the Respondent.
2. As indicated at the hearing the issue of costs is reserved, and liberty is granted to both parties to make brief written submissions within 7 days.”
ISSUES IN DISPUTE
The issues in dispute are whether the Arbitrator erred in:
a) allowing a key witness (Ms Newham) to give evidence by telephone;
b) accepting Ms Newham’s evidence despite it being tainted by domestic child custody issues and separation, and despite her evidence that her initial allegation against Mr Brines was a lie;
c) her assessment of Ms Newham’s credit;
d) making incorrect use of the medical evidence;
e) not discounting the evidence of Ms Rankmore in circumstances where she could not be served;
f) casting an onus on Mr Brines to account for there being no reason provided as to why the evidence of Mr Dunne and Mr O’Brien was not a true account of threats made by Mr Brines with respect to their attendance at the arbitration;
g) finding that Mr Brines injured himself at home;
h) in finding that Mr Brines tolerated the pain of his injury for 48 hours because of his level of intoxication when she was not qualified to express such an opinion about the affect of alcohol;
i) not accepting the evidence of Mr Le Milliere;
j) failing to refer to the observations of an investigator, Mr Collier, and
k) a misapplication of logic in the rational determination of facts on the available evidence.
An additional issue arises from the fact that part of the evidence has not been transcribed and whether that fact prevents the Commission from properly and fairly conducting a review under section 352 (‘absence of transcript’).
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 the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
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 amount of compensation on appeal meets the monetary threshold under section 352(2) of the 1998 Act.
I grant leave to appeal.
FRESH EVIDENCE
Neither party seeks to rely on fresh evidence on appeal.
REVIEW
A Presidential member’s powers in conducting a review pursuant to section 352 of the 1998 Act, were discussed in The King Island Company Limited v Deery [2005] NSWWCCPD 1. Byron DP said:
“A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.” (at [19])
In Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34, it was confirmed that the review process was broader than correction of error of the kind identified in House v The King. Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] quoted this passage with approval in holding that it was “an over-generalisation” to describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” (at [133]).
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
Before an Arbitrator’s decision will be revoked on appeal it must be demonstrated that the decision contains, or has resulted from, an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
THE EVIDENCE
The Appellant Worker, Mr Brines, filed with his Application to Resolve a Dispute two statutory declarations, the first dated 16 January 2006 (‘the first statutory declaration’), and a second dated 21 May 2007 (‘the second statutory declaration’). He also gave oral evidence at the arbitration hearing.
In the first statutory declaration Mr Brines stated that on 21 November 2005 at approximately 4.30am, whilst at his employer’s premises, he was getting out of his truck when he slipped and fell to the ground. He alleges he put his hands out to break his fall and landed heavily on the right wrist resulting in a fracture of his right wrist. He immediately reported the incident to the acting allocator, Mr Michael Le Milliere, and left work. He then drove himself to Mount Druitt Hospital for treatment. He was admitted to Mount Druitt Hospital on 23 November 2005 and underwent an operation to his right wrist performed by Dr Fraser.
On 11 April 2006, Belinda Newham, the Appellant’s former de facto wife, provided a signed statement of evidence as to her understanding of the circumstances in which Mr Brines came to suffer a fracture of his wrist. She stated that on Saturday 19 November 2005 at about 5pm Mr Brines was on the footpath at the junction of her home and her neighbour’s property playing handball with her 8-year-old nephew. She said:
“[My Nephew] hit the tennis ball to Sean’s right, he was towards the downhill slope of number 9’s driveway (the neighbouring property). Sean moved to his right and reached to his right to try and reach the ball. Sean missed the ball and lost his footing. He then rolled all the way down the driveway at number 9, and stopped rolling when he got to the bottom of the hill. I would estimate that he rolled something like 10 metres.”
She said that Mr Brines suffered a grazing of his back, shoulders and knees. She stated that Mr Brines had been drinking VB or bourbon from about 10am on Saturday 19 November 2005. She estimated that by the time of the incident described above he had consumed at least 12 drinks and was unsteady on his feet and was “quite intoxicated”.
Ms Newham observed that Mr Brines was complaining of a sore right arm throughout the early hours of the morning of Sunday 20 November 2005. Throughout the balance of the day:
“He lay in bed all day on Sunday moaning and saying that he could not move his right wrist and was in pain.”
Ms Newham attested that Mr Brines did not seek medical treatment on Saturday 19th or Sunday 20th November 2005. She stated,
“He said that he would hold off until he got to work, he would say that he hurt his wrist at work, otherwise he would not be covered by insurance.”
She noted that prior to attending work on Monday 21 November 2005 Mr Brines’ wrist was noticeably swollen but was not visibly bruised or discoloured.
In his second statutory declaration, Mr Brines stated that he had become aware that Ms Newham had made an allegation that his injuries were not suffered in the work related circumstances as he claimed. He stated that their relationship had deteriorated and that they had finally separated by about February 2006, having been living in a de facto marriage for approximately 8 years. He recalled telephone discussions with Ms Newham during which she was quite hostile towards him. He recalled Saturday 19 November 2005 and recalled that a barbeque had taken place at Ms Newham’s premises. He agreed that he had been drinking. He stated that it was highly likely that he was drunk. He played football, cricket and handball with the kids. He accepted that the handball could have taken place in the front of the house on the footpath. He stated he had absolutely no recollection of having a serious fall. Mr Brines’ evidence at the arbitration was consistent with his two statutory declarations. He denied the version of events claimed by Ms Newham in her statement of 11 April 2006.
Ms Newham made a further statutory declaration on 28 May 2007, in which she recanted the version of events described in her statement of 11 April 2006. She stated that she had been angry with Mr Brines. She understood that he had been spending money on prostitutes, money which could have gone towards family support. She gave this as the reason for making her earlier statement. Ms Newham went on to state that Mr Brines did in fact roll down the driveway on 19 November 2005, but did not injury his arm in any way. She confirmed that Mr Brines was very drunk on 19 November 2005 but had not made complaints regarding his arm. She stated that at 5am on 21 November 2005, when he drove himself to work, he was in absolutely no discomfort.
Ms Newham gave oral evidence by telephone at the arbitration on 18 October 2007. Ms Newham stated that the evidence contained in her second statement of 28 May 2007 was untruthful. She confirmed, notwithstanding robust cross-examination, that Mr Brines had indeed injured his right wrist in a fall at home in the circumstances described by her in her statement of 11 April 2006. She accepted that she had given untruthful evidence in her second statement because she had been persuaded to do so by Mr Brines in exchange for payment of child support. She said:
“The only lies I told was to Sean’s solicitor and that was Napier Keen. That was the only lies I told them there, because I was doing it hard – okay – and I wanted to move away, and the only reason I was going to get money out of Sean for child support was if I went to that solicitor. Then he was going to give me my child support money. And, so, I went and I told youse what Sean told me to say, and that is the truth. And that’s under oath right now.”
In a statement dated 11 April 2006, Ms Alana Rankmore who, although she did not witness a fall, stated that she saw Mr Brines playing handball on the footpath outside Ms Newham’s property on a weekend in November 2005. After hearing laughter, she went outside and observed Mr Brines getting up off the ground in the driveway of the neighbouring property, estimating he was 10-15 metres down the driveway.
Mr Le Milliere was the acting supervisor at Westgate on the morning of the alleged injury. He confirmed that the Worker had approached him at about 4.30am in his office reporting that he had just slipped and fallen from the cab of his truck injuring his arm.
Mr Robert O’Brien, a truck driver in the employ of Westgate, provide a statement dated 22 March 2006. He was called to give evidence at the arbitration. He confirmed that he had been present at the Respondent’s premises on a morning in November 2005, but did not see any incident involving injury to Mr Brines. He stated Mr Brines approached him holding his arm saying he fell out of his truck. He overheard an argument between Mr Brines and Mr Le Milliere concerning the incident. Mr Le Milliere questioned why Mr Brines clothing wasn’t wet if he had been injured as alleged. Mr O’Brien was unable to recall if it had been raining at the time. Mr O’Brien stated that on Thursday 16 March 2005 Mr Brines approached him and wanted him to confirm that he [O’Brien] had witnessed his fall. Mr O’Brien refused. He was then abused by Mr Brines, who accused him of being “Ben’s mate”, referring to the manager Ben Dunne.
Westgate retained an investigator, Mr Collier, who attempted to take signed statements from Ms Newham’s sister in law, Ms Hearn, and another neighbour, Ms Borg. Both parties declined to make formal statements, although Mr Collier has himself sworn a statement to the effect that both women said that they were aware of the Worker falling when playing handball on the driveway.
Westgate relied on the statement of Mr Ben Dunne dated 22 March 2006. Mr Dunne was Mr Brines’ immediate supervisor. He provided a detailed chronology of the phone calls from Ms Newham relating to the matter and email exchanges between he and his supervisors. Mr Dunne stated that Mr Brines had telephoned him on 21 March 2006 threatening him that he and his family would be hurt if the investigation into Mr Brines’ workers compensation claim was not dropped. Mr Brines called a second time and abused and threatened Mr Dunne, the threats were reported to Mr Dunne’s employer and to the police.
ABSENCE OF THE TRANSCRIPT
An arbitration hearing took place at the Commission on 18 October 2007. The matter had already been the subject of two telephone conferences and an adjourned conciliation conference.
Approximately ten minutes prior to the commencement of the scheduled arbitration hearing the dispute management officer of the Commission with the responsibility for the matter was contacted by Ms Newham, the Worker’s former de facto wife. Ms Newham had been summoned to appear as a witness. She request the matter be adjourned. The Arbitrator and the parties were informed and the Respondent sought leave to have Ms Newham’s evidence taken by telephone. Ms Newham agreed on the proviso that her address was not disclosed to the Worker. Mr Brines’ counsel objected to the evidence being taken by telephone on the basis that it would deprive the Arbitrator of the opportunity to assess the demeanour of the witness. The Arbitrator, noting that the only other option available to her was to rely upon Ms Newham’s two written statements, without the opportunity for her evidence to be tested in cross-examination, allowed the evidence to be taken by telephone. There is a transcript of the evidence and cross-examination of Ms Newham.
At the completion of Ms Newham’s telephone evidence the arbitration hearing of the remaining evidence was undertaken. Mr Brines gave sworn evidence. For the Respondent, oral evidence was called from Mr Dunne and Mr O’Brien. The Arbitrator noted (paragraph [48] of her Statement of Reasons for Decision (‘Reasons’)) that there was no cross-examination of Mr O’Brien and limited cross-examination of Mr Dunne. Regrettably there was a technical malfunction and, although the Arbitrator took steps to record the evidence, the recording is inaudible and unable to be transcribed. On appeal, there is no transcript available of the evidence given by Mr Brines, Mr O’Brien and Mr Dunne or of the submissions of the parties.
There have been a number of cases where appeals have been brought in circumstances where for a variety of reasons there has been an incomplete recording of the proceedings from which the appeal is brought.
In Wyong Shire Council v Paterson [2004] NSWWCCPD 45 (‘Paterson’) Deputy President Fleming (as she then was) considered the absence of a transcript in the context of an appeal from the decision of an arbitrator in circumstances that are similar to the instant case. In that matter the oral evidence given by the worker at the arbitration could not be transcribed. The Deputy President relied on statements that had been filed by the worker. She noted at paragraph [16]:
“Taking into account the particular grounds of appeal, the Arbitrator’s written reasons and the documentary evidence that is before me I am satisfied that I can proceed to review the Arbitrator’s decision.”
An appeal to the Court of Appeal was unanimously dismissed with Giles JA holding at [44] that the absence of a transcript is not a passport to a fresh arbitration.
In Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34 (‘Zheng’) there was no transcript or sound recording available of the evidence given before the Arbitrator. The Presidential member dealing with the appeal overcame the absence of the transcript by relying upon a summary of the relevant evidence from a solicitor for one of the parties. The Court of Appeal noted that the solicitor’s narration of the relevant facts was not disputed by the opposing party and in all the circumstances it was determined there was no error on the part of the Presidential member in proceeding to deal with the appeal relying, inter alia, on the solicitor’s narration of the relevant evidence.
In Zheng Bryon JA (with whom Handley JA and Bell J agreed) in dealing with the absence of transcript stated:
“This is a serious shortcoming, because it greatly impedes the right of appeal and the due exercise of powers of the Presidential member under s.352; and also impedes the conduct of a further appeal under s.353. According to circumstances, the absence of a sound recording could fairly readily lead a Presidential member to a decision to require a rehearing; although that result would not be automatic.”
In Ashley v Ashmore Constructions Pty Ltd [2006] NSWWCCPD 225 (‘Ashley’) Acting Deputy President Candy dealt with a case similar to this appeal regarding the absence of transcript of portions of the evidence. In that matter the missing transcript concerned the evidence of the worker and a lay witness. Statements from both of the witnesses were attached to the Application to Resolve a Dispute. Acting Deputy President Candy drew the distinction between cases where portions of the evidence are not transcribed from those where the reasons for decision are not transcribed. He noted that the absence of a transcript is not necessarily fatal to the process of review. He noted the Arbitrator gave careful reasons in her determination of the matters in dispute. She had before her a statement of the worker taken several years before the hearing. The Acting Deputy President expressed doubt as to whether the evidence of the worker given during the arbitration hearing in March 2005, almost four years after the event in question, would have greatly assisted the Arbitrator in determining disputed matters of fact. He considered the statement of the worker some months after the event and the contemporaneous medical evidence to give a greater indication of where the truth lay. He held that the absence of the transcript did not prevent him from dealing with the matter on appeal and proceeded to determine it.
In Safi v Australian Concert & Entertainment Security [2007] NSWWCCPD 128 (‘Safi’) Deputy President Byron dealing with an absence of transcript formed the view that in the absence of the evidence upon which the Arbitrator’s decision was made he was unable to undertake a proper review in order to determine whether or not the Arbitrator had erred as alleged. He noted at [29]:
“The absence of a transcript can be a serious impediment to the process of ‘review’ that is required on appeal. In Fraternity Bowling & Recreation Club Ltd v Sartor [2004] NSWWCCPD 47 (‘Sartor’) not only was there no transcript of the oral evidence but there was no transcript of the Arbitrator’s ex tempore decision. The Arbitrator’s decision was revoked and the matter remitted to a new Arbitrator for re-hearing. The Commission noted at paragraph 15:
‘The absence of a transcript of the arbitration may be fatal to the conduct of a fair review on appeal where no written reasons have been provided. The task of the Presidential Member is to ‘review’ the Arbitrator’s decision, wherever it is possible to do so, either ‘on the papers’ or after an oral hearing. Where an Arbitrator has erred in making the decision, it may not be possible for a Presidential Member to proceed to substitute a new decision ... if the evidence on appeal is inadequate. This has frequently occurred because the evidence was not properly filed or given in accordance with the Rules or because it was not properly recorded in the arbitral proceedings. In these circumstances, to grant leave for fresh evidence to be given on appeal can lead to the review becoming a complete second hearing of the dispute ... this is not the intention of the statutory scheme. The particular circumstances of each case will influence the course of the review.’”
On 19 February 2008, I issued a direction to the parties in reference to the absence of transcript of the evidence and submissions at the arbitration hearing conducted on 18 October 2007. Both parties were invited to make written submission in relation to the conduct of the appeal in the absence of a complete transcript of the arbitration.
In response to that direction, supplementary submissions were received from Mr Brines on 27 February 2008. He submitted:
1. The matter should be remitted to an arbitrator for a fresh consideration particularly having regard to earlier submissions made by him that evidence given by so called corroborating witnesses Messrs Dunne and Brien [sic - O’Brien] were given undue weight by the Arbitrator. He further submits “there can be no way of checking whether that evidence ought have been relied upon by the arbitrator in the way that she did”.
2. That the approach to assessing the credit of Ms Newham should follow the approach taken by Deputy President Byron in Rocla Industries Pty Ltd v Seton [2006] NSWWCCPD 43 (‘Rocla’). (The approach proposed was not articulated in the submissions).
3. Where credit is in issue it is important to assess the demeanour of the witness to be able to make a fair determination of the reliability of the evidence and the credit of a witness. “This did not occur in the instant case as Ms Newham was not present for cross-examination”.
4. The approach adopted by the Arbitrator taking Ms Newham’s evidence by telephone was a means of receiving evidence that is usually confined to the evidence of expert witnesses not involving issues of credit.
5. The telephone evidence deprived the parties of an image of the witness that could have been obtained had the evidence been taken by video link up.
6. The whereabouts of the witness, the circumstances in which she was giving evidence and other matters where unable to be “checked or tested.”
Westgate did not make any further submissions concerning the absence of portions of the transcript.
On the 6 March 2008, I issued a direction to the parties in these terms:
“1. This matter is listed for a directions hearing at 9.30am on 13 March 2008 in Hearing Room 1, level 21, 1 Oxford Street Sydney.
2. The sound recording of the evidence of Mr Brines, Mr Dunne and Mr O’Brien was inaudible and unable to be transcribed. The parties are directed to confer prior to the directions hearing date regarding the provision of an agreed statement concerning the evidence of each witness. The statement should deal with the extent to which the oral evidence including the evidence under cross-examination, was inconsistent with, or additional to, the evidence contained in the written statements.
3. The parties are directed to the authority of Aluminium Louvres & Ceilings Pty Ltd v Xue Qui Zheng [2006] NSWCA 34.”
At the directions hearing on 13 March 2008, Mr Campo, solicitor, appeared for Mr Brines and Mr Hodges, solicitor, appeared for Westgate. Following discussions between the parties concerning the content of the missing portion of transcript, the following matters were acknowledged and agreed:
1. In so far as Mr O’Brien’s evidence is concerned, his evidence in chief went no further than to adopt the statement of evidence signed by him and dated 23 March 2006, which is noted as having been admitted into evidence. Mr O’Brien was not cross-examined.
2. At paragraph [40] of the Arbitrator’s statement of reasons, the Arbitrator very helpfully set out in detail the evidence given by Mr Dunne. The parties agreed that the cross-examination of Mr Dunne was limited to the issue of alleged threats made against him. Mr Dunne did not resile from the evidence given in his written statement dated 23 March 2006 on that issue. There was some additional oral evidence given at the arbitration concerning a further alleged threat made against him if he attended the hearing. According to the Arbitrator’s summary of the evidence an unidentified person said words to the effect that there would be “people waiting outside court if [Mr Dunne] gave evidence”. It is agreed that there is no evidence as to who made that threat and that it is accepted that it was anonymous.
3. The parties agree that the oral evidence of Mr Brines was confined to confirming his version of events as stated in his statutory declarations dated 16 January 2006 and 21 May 2007. He was given an opportunity to adopt the version of events postulated by Ms Newham in her statutory dated 11 April 2006. That statutory declaration attested to Mr Brines having sustained injuries at home on Saturday 19 November 2005. Mr Brines expressly rejected that suggestion and adhered to his own evidence that he fell from his truck at the Respondent’s premises, as alleged in the Application for resolution a dispute.
4. It is agreed that Mr Brines denied Mr Dunne’s evidence concerning threats made against him if he attended the Commission proceedings.
Whilst it must be accepted that the absence of transcript is a serious shortcoming because it greatly impedes the right of appeal and could fairly readily lead a Presidential member to a decision to require a rehearing, that is not an automatic result (see Zheng).
The absence of a transcript of the Arbitrator’s reasons or extempore decision may well be fatal to the conduct of a fair review on appeal (see Sartor and Safi).
However, cases where there are transcribed reasons for decision but where portions of the evidence are not transcribed are in my view a different category. The absence of a transcript of portions of the evidence may not necessarily be fatal to the conduct of a fair review on appeal (see Ashley and Paterson).
In this matter I have the benefit of the Arbitrator’s thoughtful and comprehensive statement of reasons. The Arbitrator herself noted the absence of the transcript and expressed the view that she dealt with the matter relying on her notes, the content of the file and her memory.
In light of the agreements noted at paragraph [52] above, I do not believe a fresh hearing is required. The evidence that was not transcribed falls into a narrow compass and its absence will not inhibit a fair review of the Arbitrator’s decision. I am therefore of the view that I have sufficient information, taking into account the Arbitrator’s comprehensive reasons for decision, the telephone evidence of Ms Newham, the written statements given by witnesses Newham, Dunne and O’Brien and the statutory declarations of Mr Brines, coupled with the agreement as to the limits on the oral evidence not transcribed (see paragraph [52]), to fairly review the Arbitrator’s decision on appeal under section 352 of the 1998 Act. I am comfortably satisfied that in light of the above matters, my conducting the appeal in the absence of part of the transcript involves no procedural unfairness to either party.
The telephone evidence of Ms Newham
Prior to the arbitration hearing this matter had been the subject of two telephone conferences and an adjourned conciliation conference.
Various witnesses were summonsed to appear at the first hearing on 12 September 2007, including Belinda Newham, the former de facto wife of Mr Brines, and Ms Alana Rankmore, a former neighbour of Ms Newham. On the day of the hearing neither Ms Rankmore nor Ms Newham attended. Westgate sought an adjournment with an extension of time provided for a Summons to Appear to be served and for compliance. Westgate did not press the Summons on Ms Rankmore. Westgate advised that it had had difficulty in serving the Summons on Ms Newham, as she had moved from her previous address. Mr Brines stated that he had no knowledge of Ms Newham’s whereabouts and could not assist with locating her for service of the Summons to Appear as a witness in the proceedings. The Arbitrator granted an adjournment so that a summons could be served on Ms Newham.
The Commission was informed by Westgate on 12 October 2007, six days prior to the second hearing that it had still not located Ms Newham. It sought a further adjournment, which was denied.
Approximately ten minutes prior to the commencement of the scheduled second conciliation/arbitration hearing, Ms Newham contacted the Dispute Management Officer with responsibility for the matter and asked that the matter be adjourned. The parties were informed and Westgate sought to have Ms Newham give her evidence by telephone. Ms Newham ultimately agreed on the proviso that her address was not disclosed to the Applicant. Mr Brines’ Counsel objected to this course of action, mainly on the basis that the Arbitrator would have no opportunity to observe the witness. However, bearing in mind that the only other course open to the Arbitrator was to rely on Ms Newham’s written statements, with no opportunity to test those statements and to make some assessment regarding her demeanour, the telephone evidence was permitted.
Ms Newham also stated in the presence of both parties that the Worker had contacted her a few days prior to the hearing to alert her to the fact that a Summons had been issued.
Ms Newham was sworn. She gave evidence in chief and was cross-examined.
A transcript of her evidence was taken, which I have had the benefit of reading. I have also heard the audio recording of Ms Newham’s evidence.
Mr Brines submits that the Arbitrator had erred in accepting the evidence of Ms Newham by telephone in circumstances where her credit was plainly in issue.
From the exchange between Ms Newham and the Arbitrator prior to the giving of her telephone evidence it was clear that Ms Newham was concerned for her personal safety. She insisted that her current whereabouts and address not be disclosed to Mr Brines.
It is submitted that Ms Newham gave evidence in an “hysterical manner” and that her demeanour was incapable of observation by the Arbitrator. Having heard the audiotape, I am prepared to accept that the witness was in an agitated state when giving her evidence.
‘Hysterical’ is defined by the Macquarie Dictionary 3rd Edition as “emotionally disordered”. ‘Hysteria’ is defined by the Concise Oxford Dictionary to mean “wild uncontrollable emotion or excitement, a functional disturbance of the nervous system, of psychoneurotic origin”. I do not accept that the witness gave her evidence in an hysterical manner. She was obviously very concerned for her safety. It must have been extremely difficult for Ms Newham to agree to give evidence knowing that she would be challenged about having previously made contradictory statements concerning the circumstances in which Mr Brines was injured. Whilst there were times when the witness made statements that were not responsive to the questions and was at times argumentative, I am satisfied that Ms Newham gave clear evidence regarding the circumstances in which her previous written statements were made and gave clear evidence of her recollections of the circumstances in which Mr Brines came to suffer the injuries to his arm. Her evidence was subject to robust cross-examination. Ms Newham fairly conceded that she was in dispute with Mr Brines regarding child support and other family issues. It was put to her squarely in cross-examination that her evidence during the course of the telephone evidence was untruthful, which she forcefully denied.
The Commission has a statutory obligation under section 354 of the 1998 Act to conduct the proceedings with as little formality and technicality as the proper consideration of matters permit. Section 354 is in these terms:
“354 Procedure before Commission
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5) Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(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.
(7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(7A) The Commission may dismiss proceedings before it before or during the conduct of proceedings:(a) if it is satisfied that the proceedings have been abandoned, or
(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Rules.
(8) In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted.”
Section 354(4) expressly contemplates that parties may participate in proceedings before the Commission by telephone, close circuit television or other means. Though Ms Newham is not a party, I believe the terms of section 354 clearly contemplate that evidence may, in the appropriate case, be given by telephone.
For a number of reasons I am not satisfied that the Arbitrator was in error in allowing Ms Newham to give evidence by telephone:
1. Section 354(4) expressly permits parties, and, in my view, witnesses, to participate in proceedings before the Commission by telephone.
2. Ms Newham was in fear of her personal safety, which is why she failed to attend in person before the Commission.
3. As the Arbitrator pointed out, had she not permitted the evidence to be given by telephone she would have been left in the unsatisfactory position of having to determine the credit issues based on the sworn evidence by Mr Brines, on the one hand, with the written statements of Ms Newham on the other.
4. Having heard the witness give evidence by telephone the Arbitrator was in a position to assess the demeanour of the witness, although I accept the capacity to do so was somewhat diminished by reason of the fact that the witness was not physically present at the hearing.
5. I do not accept that taking the evidence of Ms Newham by telephone (rather than the witness being present at the hearing) so impeded the Arbitrator’s capacity to fairly assess the credit issue in the case that it resulted in error.
Mr Brines submits that the decision in Jones v Hyde [1989] 185 ALR and Watt Or Thomas v Thomas [1947] AC 484 are examples of cases where the assessment of credit was an issue and demonstrate the importance of an assessment of demeanour of a witness to be able to make a fair determination of the reliability of the evidence and the credit of a witness. Mr Brines submits:
“This did not occur in the instant case as Ms Newham was not present for cross-examination”.
For the reasons I have identified above, I am of the view that the Arbitrator was capable of, and in fact did, assess the demeanour of the witness and fairly determined which of the competing versions of events were more likely to be the truth.
By reason of the foregoing the Appellant’s submission that the Arbitrator was in error in allowing the evidence of Ms Newham to be given by telephone must fail.
Mr Brines’ further submissions
Credit Issues
Mr Brines made the following submission:
“The evidence given by Belinda Newham in written form and by telephone was accepted despite that evidence being tainted by domestic child custody issues and separation. It is incredulous for the Arbitrator to have accepted the telephone evidence in preference to that of the Applicant and a fellow workmate on the site in circumstances where she gave a statement that her initial allegation against the Applicant was a lie (paragraphs [32] – [37] [of the Arbitrator’s reasons]).”
In his supplementary submissions dated stamped 27 February 2008, Mr Brines submitted that the approach adopted by Deputy President Byron in Rocla ought to be adopted in the analysis of the Arbitrator’s method of assessment of the credit to be attached to Ms Newham’s evidence. In that case, Deputy President Byron noted that the arbitrator had found the worker’s evidence to be unsatisfactory. The arbitrator found that the witness had not been entirely frank in his presentation to medical assessors. Whilst being critical of the worker’s obvious lack of veracity, the Arbitrator failed to draw a conclusion in terms of its impact on the dispute between the parties. Deputy President Byron found at [50]:
“The Arbitrator’s reasons in terms of injury and incapacity are entirely inadequate. There is little analysis of the evidence, including the medical evidence of Mr Seton’s oral evidence, and the weight to be attached to it. This amounts to an error of law on the part of the Arbitrator and I find accordingly.”
Rocla was a case that was decided on its own facts. It turned on the Arbitrator’s failure to properly analyse the evidence and consider the weight to be attached to it. This case has little application in the present circumstances. The Arbitrator in the present matter has made none of the errors identified in Rocla.
Ms Newham readily conceded in cross-examination that she was in dispute with Mr Brines. The Arbitrator acknowledged the submissions made by both parties that Ms Newham’s evidence “must be treated with some caution,” bearing in mind any possible reason she might have for not being totally candid in her evidence. The Arbitrator expressly indicated that she was mindful of that issue. She was also alert to carefully assess the evidence of Mr Brines taking into consideration, inter alia, that on several occasions during the course of the teleconference and hearings he denied that he had any contact details for Ms Newham, yet it became clear that he had sufficient information to contact her about the issuing of a Summons and the hearing date and time.
Where a worker has given untruthful evidence the Arbitrator must carefully assess the rest of his evidence in order to determine its honesty and reliability. Some of the evidence may have been acceptable because other independent or objective evidence confirmed it. However, where a worker’s evidence was not independently supported it clearly must be assessed with great care to determine whether it could properly be accepted as proof of any matter that was in issue in the proceedings (see Malco Engineering Pty Ltd v Feereira and others (1994) 10 NSWCCR 117 and Divall v Mifsud (2005) NSWCA 447). The Arbitrator in assessing the credit issues was clearly conscious of the legal principles involved. She expressly referred to the caution required in assessing Mr Brines evidence in light of his, at best, misleading, and at worst, untruthful evidence regarding the whereabouts of Ms Newham for the purposes of service of process (see paragraph [43] of the Arbitrator’s Reasons).
Mr Brines submits that the Arbitrator was in error in finding at paragraph [46] of her Reasons that:
“with the benefit of having seen and heard the evidence of Mr Brines and heard the evidence of Ms Newham including in cross-examination as well as other evidence to which I will refer shortly I am of the view that it is more probable that the Applicant did fall during the course of the Saturday game of handball with the young boy and Ms Newham and that he suffered his injury in that fall”.
In Devries v Australian National Railways Commission (1992) 8 CA 41; (1993) 177 CLR 472 (‘Devries’) at 479 Brennan, Gaudron and McHugh JJ said:
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based upon the creditability of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends on any substantial degree on the creditability of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”
On review, the Arbitrator’s assessment of the credibility of witnesses is not to be set aside even if the Appellate court or tribunal thinks that the probabilities of the case are against the finding.
In Holroyd Bus Lines Pty Limited v Stanojevic [2007] NSWWCCPD 169, Acting Deputy President Snell reviewed the authorities on findings on credit. He noted at [56] and [57] as follows:
“In Fox v Percy (2003) 214 CLR 118 (at [128]) (‘Fox v Percy’), Gleeson CJ, Gummow J and Kirby J said:
‘It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses [eg Trawl Industries of Australia Pty Ltdv Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348, per Samuels JA.] Thus, in 1924 Atkin LJ observed in Société d’Advances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”) [(1924) 20 Ll L Rep 140 at 152].
“… I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.”
Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell the truth from falsehood accurately on the basis of such appearances [See material cited by Samuels JA in Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 and noted in SRA (1999) 73 ALJR 306 at 329 [88]; 160 ALR 588 at 617-618]. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.’(at [30] to [31])
Ipp JA, in Goodrich Aerospace Pty Limited v Arsic (2006) 66 NSWLR 186 (‘Goodrich Aerospace’), quoted the above passage, referred to a number of learned articles dealing with demeanour, and continued at [27]:
‘These problems and doubts about demeanour findings explain why trial judges are expected to weigh their impressions as to demeanour carefully against the probabilities and to examine whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case. Of course, demeanour may trump the probabilities, but it should be apparent from the judge’s reasons that the probabilities and consistency with other relevant evidence have properly been taken into account.’”
The Arbitrator’s acceptance of of Ms Newham’s first statement, dated 4 April 2006 as a reliable account is indeed based on other objective evidence, which includes:
· Ms Newham first statement was proximate to the alleged incident and contained the type of detail which could probably only be provided if the person was present during the sequence of events described (see Arbitrator’s reasons at paragraph [47]);
· Mr O’Brien’s evidence that Mr Brines asked him to confirm that he had witnessed a fall even though it is clear from Mr Brines’ statement that he knew that Mr O’Brien did not witness the fall (see Arbitrator’s reasons at paragraph [47]);
· threats made by Mr Brines to Ms Newham and Mr Dunne, the only purpose of which could have been to discourage the witnesses from giving evidence contrary to that of Mr Brines (see Arbitrator’s reasons at paragraph [48]), and
· the statement of 11 April 2006 by Ms Alana Rankmore who, although she did not witness a fall, saw Mr Brines playing handball on the footpath outside Ms Newham’s property, on a weekend in November 2005 and after hearing laughter went outside and observed Mr Brines getting up off the ground in the driveway of the neighbouring property estimating he was 10-15 metres down the driveway (see Arbitrator’s reasons at paragraph [47]).
The Arbitrator has made a finding of fact based, inter alia, on the credibility of various witnesses. Such a finding on review is not to be set aside because the review tribunal thinks that the probabilities of the case are against, or even strongly against, that finding of fact. Where the finding depends to any substantial degree on the credibility of witnesses the finding must stand unless it has been shown that the trial judge has failed to use or has “palpably misused his advantage” or has acted upon evidence “inconsistent with the facts in controvertibly established by the evidence” or “was glaringly improbable” (see Devries). Moreover in recent times both at first instance and on appeal judges are encouraged to limit their reliance on the appearances of witnesses and should place greater emphasis in reaching their conclusions on the basis of objective evidence and the apparent logic of events. Whilst this does not eliminate the established principles concerning the credibility of witnesses it tends to reduce the occasions where those principles are seen as critical (see Fox v Percy).
In this case, consistent with the authorities, the Arbitrator has approached her finding of the facts by weighing the credibility of the witnesses. On review, I would not set that finding aside unless it offended the principles established in Deeries. Not only do I consider that those principles have not been offended, I am of the view that the findings were not only open to the Arbitrator but were indeed the most compelling having regard to the objective evidence available to her.
OTHER GROUNDS OF APPEAL
The further ground of appeal is in these terms:
“Further it is quite unfair and unreasonable to cast an onus on Mr Brines to account for ‘there being no cogent or indeed any reason provided as why the evidence of Mr Dunne and Mr O’Brien is not a true account of the threats made by Mr Brines with respect to her [sic] their attendance at the arbitration hearing (paragraph [43])’”
Both Mr Dunne and Mr O’Brien gave evidence adverse to Mr Brines’ interests. An unsuccessful attempt was made by Mr Brines to coerce Mr O’Brien into giving untruthful evidence about the circumstances in which Mr Brines sustained the injury to his wrist.
Mr Dunne was threatened that he and his family would be hurt if the investigation into Mr Brines’ case was not dropped.
There was no attempt made by Mr Brines’ Counsel to cross-examine Mr O’Brien. Mr Dunne was cross-examined, however, it is conceded that Mr Dunne confirmed his written evidence concerning the threats. It was open to Mr Brines to undermine or refute the evidence from Messrs Dunne and O’Brien. As the Arbitrator correctly observed (at paragraph [48] of her Reasons), given the absence of cross-examination of Mr O’Brien and the limited cross-examination of Mr Dunne their evidence should prima facie be accepted unless absolutely improbable, which the Arbitrator noted was not the case. I see no error in the approach taken by the Arbitrator on this issue.
Mr Brines also argues that the evidence of Messrs Dunne and O’Brien regarding the alleged threats was hearsay. It is alleged that there was no direct evidence to show that Mr Brines was in fact responsible for the threats alleged. I disagree. The statements made by both Mr Dunne and Mr O’Brien relate to direct evidence of conversations between each of the witnesses and Mr Brines. In any event, the Commission is not bound by the rules of evidence but may inform itself on any matter and in such manner as it thinks appropriate (section 354(2)).
Rule 15.2 of the Workers Compensation Commission Rules 2006 provides that when informing itself on any matter the Commission is to bear in mind the principles that the evidence should be logical and probative, should be relevant to the fact in issue and the issues in dispute. The evidence of both Messrs Dunne and O’Brien was in my view highly relevant to the credit issues as previously discussed, and even if the evidence was hearsay evidence, it was appropriate and consistent with the Commission’s procedure, that the evidence be admitted and given such weight as was appropriate in all the circumstances of the case.
Mr Brines submits that the Arbitrator failed to refer to the observations of an investigator, Mr Collier, who sought to take signed statements from Ms Newham and two other persons as to the events leading up to Mr Brines’ injuries. At the time Mr Collier approached those persons to make formal statements they declined to do so and in Mr Collier’s opinion they were affected by alcohol or drugs.
The Arbitrator did in fact refer to Mr Collier’s attempt to obtain statements from Ms Newham’s sister-in-law, Ms Hearne and another neighbour, Ms Borg. The Arbitrator noted both parties declined to make statements but noted Mr Collier provided a sworn statement to the effect that both women said they were aware of the Worker falling when playing handball on the driveway. Mr Collier records from his inquiries with Ms Borg that she was not a witness to the accident and did not observe the claimant in the driveway of her home. She informed the investigator that she recalled Mr Brines being injured whilst playing handball but could not remember if the injury occurred on 19 November 2005. In my view it is clear from the Arbitrator’s statement of reasons that she was conscious of this evidence but placed less weight on it than the factors to which I have referred in paragraph [83]. Given that the evidence from Mr Collier was hearsay evidence of the statements of two witnesses who did not provide written statements of evidence and neither of whom were called to give evidence in the proceedings, it was open to the Arbitrator to attach less weight to that evidence than the objective evidence referred to in paragraph [83] above.
Mr Brines takes issue with paragraph [52] of the Arbitrator’s reasons. Paragraph [52] is in these terms:
“There may well have been an incident involving the Applicant and his truck on the Monday morning as he describes, however in my view he has not established that it is more likely than not that it occasioned the injury the subject of his claim.”
Mr Brines’ submission on this passage is that it is a “misapplication of logic in the rational determination of the facts based on the available evidence”. Further he submits:
“if the Arbitrator is satisfied that there may well have been an incident involving the applicant and his truck on the Monday morning as he describes, there is no basis on the evidence to make the findings set out in paragraph [53] (of the Arbitrator’s reasons)”.
I do not accept this submission. At paragraph [52] of her Reasons the Arbitrator did nothing more than acknowledge the possibility that the incident involving the Worker falling from his truck on the Monday morning as he described. However, weighing the evidence, the Arbitrator came to the view that it was more likely than not that this did not occasion the injury to his right wrist and that the injury was sustained as previously described by Ms Newham. As the Respondent’s submissions note, the Arbitrator was not making a finding that the Worker fell from his truck at work on the Monday morning. The Arbitrator found, based on the available evidence, Mr Brines had not discharged the onus of establishing that the injury occurred in circumstances arising out of or in the course of his employment as required in section 4 of the 1987 Act. The submission that this amounts to an error is misguided and must fail.
Mr Brines submits that the evidence of Mr Le Milliere who stated at the time the injury was reported to him he noticed the Worker’s hand was already swollen. Further it is submitted:
“One might have expected a more gross presentation had the injury sustained two days previously and one might have expected that this would have been noted by Mr Le Milliere and commented upon.”
In dealing with this aspect the Arbitrator noted that there was no detailed evidence with respect to swelling or otherwise of the Worker’s arm when he attended the workplace on Monday morning. The Arbitrator noted that the evidence went no further than Mr Le Milliere’s observation that Mr Brines’ hand was swollen at the time the Mr Brines notified him of the alleged injury. It is clear that the Arbitrator had regard to this evidence in reconciling the competing versions of events. She also noted that there was no available evidence from persons who may have had the opportunity of seeing the worker’s arm after he presented for work, but before the alleged fall. The presentation of swelling at the time of reporting the injury could have been consistent with either of the competing versions of events.
The Arbitrator did not “wrongfully apply” the evidence as submitted by Mr Brines, she clearly weighed the evidence of Mr Le Milliere in the context of other available, and more compelling, evidence in her determination as to the manner in which Mr Brines came to injury his wrist.
It is submitted by Mr Brines that the Arbitrator should have discounted the evidence of Ms Rankmore in circumstances where she could not be served with a summons. The Arbitrator noted that a Summons to Appear at the first hearing had been issued to Ms Rankmore and that she had failed to attend. It was noted that she also failed to attend the second arbitration hearing (the subject of this appeal). Westgate did not press the summons with respect to Ms Rankmore. Mr Brines did not require Ms Rankmore for cross-examination. As I have discussed, it is open for the Commission to inform itself on any matter in such manner as it thinks appropriate and for the proper consideration of the matter before it permits (section 354(2)). It is commonplace at arbitrations for evidence to be received by the Commission in written form. It was open to Mr Brines to object to the matter proceeding in the absence of Ms Rankmore and to require her to be present for the purpose of cross-examination on her sworn statement. He did not do so. In any event, such an application would be subject to the leave of the Arbitrator. I see no reason to accept the submission that Ms Rankmore’s evidence should, in the circumstances, be discounted. In receiving it in written form, no error is disclosed.
Medical Evidence
Mr Brines submitted that the medical evidence was consistent with his injuries being sustained by falling from a height of approximately 1.5 metres. He submitted that it is inconsistent with him having injured himself “by rolling on a cement driveway whilst playing with his son [sic – nephew]”.
In a separate submission on the medical evidence Mr Brines submitted:
“Whilst admitting the evidence of the general practitioner at paragraph [49] the Arbitrator proceeds to take the view that the general practitioner’s opinion that the severity of such an injury would be unlikely to be one that would be tolerated for another 48 hours for the purpose of turning up to work and pretending that the injury had occurred there was in relation to his drunken condition and that he was able to resist the pain because of his alcoholic state. And this is imposing an expert opinion when the Arbitrator clearly is not qualified to express such an expert opinion in relation to the effects of alcohol.”
Finally, on this issue Mr Brines submitted:
“One might have expected a more gross presentation had the injury been sustained two days previously and one might have expected that this would have been noticed by Mr Le Milliere and commented upon. This was not the case paragraph [51] also has drawn an incorrect inference by assuming that the Applicant had an obligation to provide a history to the doctors consistent with the allegation of fraud. The Applicant’s medical case was never contradicted by the medical evidence or by the Respondent.”
The medical evidence is at best equivocal, neither the general practitioner, Dr Tamayo nor Dr Smith, an orthopaedic surgeon, who examined the Worker for Westgate, were given any opportunity to opine as to whether Mr Brines’ injuries were consistent with having fallen and rolled down a driveway, a distance, according to Ms Newham, of about 10 metres. No evidence was called from Dr Daryl Fraser, the orthopaedic surgeon who performed the operation on Mr Brines’ right wrist on 23 November 2005.
Both parties had the opportunity to obtain medical evidence as to whether Mr Brines injuries were consistent, or not, with having been sustained in a fall as described by Ms Newham. Neither party elected to do so. The Arbitrator, noting the deficiencies in the medical evidence, concluded that the weight to be attached to them was diminished. Whilst Mr Brines’ general practitioner noted that it was unlikely that he could have delayed seeking medical treatment, it is possible he did so if it was his intention to fraudulently submit a workers compensation claim. The Arbitrator, postulating that his state of intoxication on the Saturday that he is alleged to have fallen, may have affected his pain threshold, does not in my view amount to an error on her part and does not amount to her expressing an expert opinion as alleged by the Worker. This issue was not determinative of the claim. The Arbitrator rejected the claim because she preferred Ms Newham’s evidence over Mr Brines’. That finding discloses no error and I firmly agree with it.
The Arbitrator has taken the relevant medical evidence into account and in view of the deficiencies in the histories that were given to the doctors her approach in acknowledging the diminished weight to be attached to it was entirely appropriate and does not constitute any error of fact, law or discretion.
DECISION
For the reasons given in this decision the Arbitrator’s findings and determination dated 29 October 2007 are confirmed.
COSTS
No order as to costs of the appeal.
His Honour Judge Greg Keating
President
10 April 2008
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HONOUR JUDGE GREG KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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