Cleland v Carter - [2016] NSWWCCPD 29

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Cleland v Carter [2016] NSWWCCPD 29
APPELLANT:	Alan Cleland
RESPONDENT:	Geoffrey Leslie Carter
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-3085/15
ARBITRATOR:	Ms E Beilby
DATE OF ARBITRATOR’S DECISION:	3 February 2016
DATE OF APPEAL DECISION:	1 June 2016
SUBJECT MATTER OF DECISION:	Section 60AA(1) of the Workers Compensation Act 1987; use of WorkCover Guidelines in construing the Workers Compensation Acts; application of Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244; 5 DDCR 247 and Tan v National Australia Bank [2008] NSWCA 198; 6 DDCR 363; construction of s 60AA(1)(c) of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Shaddicks Lawyers
Respondent:	Hicksons Newcastle
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination dated 3 February 2016 is confirmed.

INTRODUCTION

This appeal raises issues about the construction of s 60AA of the Workers Compensation Act 1987 (the 1987 Act).

BACKGROUND

Alan Cleland (the appellant) suffered compensable injury in the employ of Geoffrey Leslie Carter (the respondent) on 14 July 2000, when a railway sleeper fell on his right great toe. The respondent at the time conducted a business known as Richmond Caravan Repairs. This incident set in train a series of medical consequences, which are summarised in the decision of a Medical Appeal Panel (MAP) dated 15 July 2014 at [18]–[19]:
“… there were eight operative procedures including an arthrodesis of the first metatarsophalangeal joint. There were problems with infection and poor healing. The continuing problems led to gait derangement within the right knee which was subjected to an arthroscopic procedure some two or three years later. Following that procedure the knee became infected. In October 2004 the appellant underwent a further right knee arthroscopy and in early 2005 a total right knee replacement.
The appellant started to suffer with problems in the left knee in 2007. He has had a total of 18 operations on the left knee and underwent a total knee replacement in 2009. Due to infection the appellant underwent a second total knee replacement in 2010. That knee replacement had to be removed in 2011 because of continuing infection. The appellant underwent an arthrodesis in the left knee in early 2012.
There is also a summary of the appellant’s surgical procedures at [2] of the Arbitrator’s reasons.
The appellant was assessed by Dr Crane, an Approved Medical Specialist (AMS), whose Medical Assessment Certificate (MAC) dated 9 January 2014 certified that the appellant suffered 16 per cent whole person impairment. This was the subject of appeal. The MAP issued a decision dated 15 July 2014. The MAP revoked the earlier MAC, and substituted a whole person impairment of 33 per cent as a result of the employment injury.
Ms Sellen, a rehabilitation consultant qualified by the respondent, recorded that, after his injury, the appellant remained at work for “a few months”, and his employment was eventually terminated in 2004.
The appellant has been married to Irene Jean Cleland since 1973, and resides with her. She gave statements setting out the domestic assistance she had provided to the appellant. This is summarised in the Arbitrator’s reasons at [4].
There was a claim pursuant to s 60AA of the 1987 Act, in respect of gratuitous domestic assistance provided to the appellant by Mrs Cleland. The respondent’s insurer, in a letter dated 4 February 2014, referred to an assessment conducted at its request, and said that a rehabilitation consultant had assessed the required “household and gardening services” as “Nil”.
The appellant’s solicitors particularised the claim for gratuitous domestic assistance and care in a letter dated 2 July 2015. The “Primary Claim” for the weekly cost commenced to run from 30 September 2004. This was the date of the first of the surgical procedures performed on the appellant’s right knee.
At the arbitration hearing, the respondent accepted that some domestic assistance was necessary (the Arbitrator’s reasons at [3]).
The proceedings were commenced by an Application to Resolve a Dispute registered in the Commission on 29 May 2015. The matter was heard at an arbitration hearing on 1 December 2015. Mr S Hickey of counsel appeared for the appellant, and Mr Halligan of counsel appeared for the respondent. The matter was conducted on the papers. No oral evidence was adduced. A Certificate of Determination and written statement of the Arbitrator’s reasons were issued on 3 February 2016.

THE ARBITRATOR’S DECISION

The Arbitrator made a number of factual findings which are not the subject of challenge. She found:
(a)     9 January 2014 (the date of the earliest of the MAC’s, that of Dr Crane) was the date from which, it was agreed, the appellant was “entitled to assert that he has proved 15 per cent whole person impairment” (Arbitrator’s reasons at [6]);
(b)     Mrs Cleland had ‘foregone employment’ as a result of providing the relevant assistance to the appellant (Arbitrator’s reasons at [25]–[30]);
(c)     Mrs Cleland had provided a diary dealing with the relevant assistance provided to the appellant (Arbitrator’s reasons at [31]–[35]);
(d) there was certification by a medical practitioner, Dr Rizkallah, on the basis of a functional assessment, that it is reasonably necessary that the relevant domestic assistance be provided, in compliance with s 60AA(1)(a) of the 1987 Act (Arbitrator’s reasons at [36]), and
(e)     it is “reasonable and necessary” that the appellant be provided with “domestic care and personal assistance needs” for 12.5 hours per week (Arbitrator’s reasons at [65]).
The Arbitrator made a number of other specific findings going to the need for bathroom modifications, car modifications, an electronic recliner and provision of a concrete pathway. These are not relevant to this appeal.
The Arbitrator made an award for the cost of gratuitous domestic assistance and care, for six hours per week, for a period of three months from 30 September 2004, at $28.99 per hour, totalling $2,087.28. This was pursuant to s 60AA(2) of the 1987 Act, which deals with assistance “provided on a temporary basis”.
The Arbitrator made an award for the cost of gratuitous domestic assistance and care at a rate of $497.37 per week, for 12.5 hours per week, from 9 January 2014 to date and continuing.
The Arbitrator considered the provisions of s 60AA of the 1987 Act, and the WorkCover Guidelines for the Provision of Domestic Assistance 2004 (the Guidelines). She said, in her reasons at [19], that there was no ambiguity in the meaning of s 60AA, where whole person impairment was less than 15 per cent, or had not yet been determined. In those circumstances the Guidelines provided that “a maximum of six hours per week for three months domestic assistance can be provided”. Thus, the award for domestic assistance was for six hours per week for three months, from when the claim commenced, on 30 September 2004. The payment then resumed, at a rate consistent with the Arbitrator’s factual findings, from when whole person impairment was assessed by the AMS in the MAC dated 9 January 2014.

ISSUES IN DISPUTE

The grounds raised in the appeal are:
(a) Ground 1 – that the Arbitrator erred in the construction she adopted of s 60AA of the 1987 Act, an otherwise beneficial provision. It was submitted that she failed to properly construe this section, instead incorrectly determining that clauses 6.1 and 6.4 of the Guidelines evinced legislative intent to allow for entitlement “on a limited temporary basis until the date 15% WPI is determined”.
(b) Ground 2 – that, when purporting to construe s 60AA, the Arbitrator incorrectly construed clauses 6.1 and 6.4 of the Guidelines so as to take precedence over s 60AA generally, particularly sub-sections (1)(c) and (d) and (2)(a) and (b). It was submitted that clauses 6.1 and 6.4 of the Guidelines had “no apparent proper statutory basis for their existence and ought not to have taken precedence.”
At issue is the entitlement to a weekly payment pursuant to s 60AA of the 1987 Act, during a period from 1 January 2005 to 8 January 2014. The entitlement during the period from 30 September 2004 to 31 December 2004 also arguably should have been higher, not necessarily being restricted to six hours per week.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

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

THE LEGISLATION AND GUIDELINES

Section 60AA of the 1987 Act provides:
“60AA      Compensation for domestic assistance
(1)     If, as a result of an injury received by a worker, it is reasonably necessary that any domestic assistance is provided for an injured worker, the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that assistance if:
(a)a medical practitioner has certified, on the basis of a functional assessment of the worker, that it is reasonably necessary that the assistance be provided and that the necessity for the assistance to be provided arises as a direct result of the injury, and
(b)the assistance would not be provided for the worker but for the injury (because the worker provided the domestic assistance before the injury), and
(c)the injury to the worker has resulted in a degree of permanent impairment of the worker of at least 15% or the assistance is to be provided on a temporary basis as provided by subsection (2), and
(d)the assistance is provided in accordance with a care plan established by the insurer in accordance with the Workers Compensation Guidelines.
(2)     Assistance is provided on a temporary basis if it is provided in accordance with each of the following requirements:
(a)     it is provided for not more than 6 hours per week,
(b)it is provided during a period that is not longer than, or during periods that together are not longer than, 3 months,
(c)it is provided pursuant to the requirements of the relevant injury management plan.
(3)     Compensation is not payable under this section for gratuitous domestic assistance unless the person who provides the assistance has lost income or forgone employment as a result of providing the assistance.
(4)     Compensation payable under this section for gratuitous domestic assistance is payable as if the cost of that assistance were such sum as may be applicable under section 61(2) in respect of the assistance concerned.
(5)     The following requirements apply in respect of payments under this section:
(a)payments are to be made as the costs are incurred or, in the case of gratuitous domestic assistance, as the services are provided,
(b)payments are only to be made if those costs and the provision of the assistance is properly verified (and the Workers Compensation Guidelines may make provision for how the performance of those services is to be verified),
(c)payments for gratuitous domestic assistance are to be made to the provider of the assistance.

(6) In this section:
gratuitous domestic assistance means domestic assistance provided to an injured worker for which the injured worker has not paid and is not liable to pay.”

Section 376(1) of the 1998 Act provides:
“(1) The Authority may issue guidelines with respect to the following:
(a)the assessment of the degree of permanent impairment of an injured worker as a result of an injury,
(a1)the professional or other requirements (including qualifications, training or membership of professional bodies) for a medical practitioner to be permitted to assess (or carry out any function related to assessing), for the purposes of the Workers Compensation Acts, the degree of permanent impairment of an injured worker as a result of an injury,
(b) the giving of interim payment directions by the Registrar under Part 5,
(c)such other matters as a provision of the Workers Compensation Acts provides may be the subject of Workers Compensation Guidelines.”
Section 33 of the Interpretation Act 1987 (the Interpretation Act) provides:
“33 Regard to be had to purposes or objects of Acts and statutory rules
In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.”
Clause 6 of the Guidelines provides:
“6. LEVEL OF DOMESTIC ASSISTANCE THAT CAN BE APPROVED BY THE INSURER
6.1 Hours per week
In the event the worker has been certified with at least 15% Whole Person Impairment (WPI), the worker is entitled to all reasonably necessary domestic assistance.
In these cases, the hours provided would be determined based on medical/health professional recommendation and application of the principles listed above. A thorough functional assessment by an occupational therapist is required as well as medical certification. Periodic review of the hours required is essential and should be conducted according to medical advice.
If the WPI is less than 15%, or has not yet been determined, then a maximum of 6 hours per week domestic assistance can be provided. The approved amount will always be in
accordance with the functional requirements of the injured worker.
6.2 Period of time
In the event the worker has been certified with at least 15% WPI there is no limit on the length of time that domestic assistance can be provided. Where domestic assistance is required in the long term, periodic review of the injured workers circumstances is to be conducted.
If the 15% WPI has not yet been determined, then domestic assistance can be provided for up to 6 hours per week for a maximum period of 3 months. This can be a single block of three months, or can be accumulated by several shorter periods of assistance adding up to three months.
6.3 Periodic Review
The provision of domestic assistance must be re-evaluated at regular intervals. The frequency of these re-evaluations will depend on the prognosis for the injured worker, including speed of recovery and degree of anticipated recovery. Review timeframes must be noted on the Injury Management Plan or Case Management Plan for long term care.
6.4 Where a WPI has not yet been determined
In the circumstance where a WPI has not yet been determined and the injured worker requires domestic assistance beyond 3 months and/or for more than 6 hours per week there is little flexibility available. Under current legislation, injured workers are not entitled to domestic assistance beyond three months or for more than 6 hours per week unless they have a WPI of at least 15%.
It is important to note that this does not prevent nursing or personal care being provided to the worker.
Where a medical specialist experienced in the management of the worker’s medical condition, who is trained in the application of the WorkCover Guides for the Evaluation of Permanent Impairment, determines that a worker’s injury will result in at least 15% WPI, payments can be made on a ‘without prejudice’ basis. The requirements for appropriate assessment also apply in these cases.
In cases where this cannot be manifestly determined, the worker can pay for the service and apply for recovery of the moneys when WPI is able to be determined.” (Emphasis added)

THE APPELLANT’S SUBMISSIONS

The appellant’s challenge is only in respect of the entitlement from 30 September 2004 to 8 January 2014.
It is submitted that the Arbitrator “did not move to properly construe s 60AA, which was called for”. Rather she:
“… incorrectly applied Workcover Guideline 6.1 and 6.4 to support her conclusion that there is ‘no ambiguity’ in s 60AA, which otherwise would have permitted the construction contended for by the appellant at reasons [18].”
The construction referred to at [18] of the reasons was that the 15 per cent threshold “could be met retrospectively” if the other requirements of the subsection are met.
Although pleaded as two separate grounds, the appellant has relied on a single set of submissions. By way of submissions on Ground 2, the appellant repeated various paragraphs of his submissions going to Ground 1.

Ground 1 – Failing to Apply a Correct Test in Construing Section 60AA

Ground 2 – The Statutory Basis for Paragraphs 6.1 and 6.4 of the Guidelines

The appellant submits that clauses 6.1 and 6.4 “are not Guidelines at all and appear to be an attempt to enunciate the legal effect of s 60AA”.
The appellant referred to various principles of statutory construction. He submitted that the starting point is to “begin with the consideration of the text itself” (Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 at [47]). Consideration must be given to the context and purpose of the provision being construed (Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 248 CLR 378 at [24], Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]). The starting point is not the consideration of extrinsic material. The language itself is the surest guide to legislative intent.
The appellant referred to s 3(c) of the 1998 Act, which relevantly provides:
“3 System objectives
The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives:
…
(c) to provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses, …”
The appellant submitted that the construction of s 60AA for which he contended was consistent with the objective described in s 3(c) above. Consistent with s 33 of the Interpretation Act, such a construction was to be preferred. Reference was made to Turner v George Weston Foods Limited t/as Tip Top Bakeries (Newcastle) [2007] NSWCA 67 at [54]–[56]. An unjust or capricious result should be avoided.
The Arbitrator, in her reasons at [21], acknowledged that her construction could be seen to be inconsistent with the System Objectives referred to in s 3(c) of the 1998 Act. She acknowledged that her construction did not involve a beneficial interpretation for the appellant. She referred to the second reading speeches of the Honourable John Della Bosca on 28 November 2001 (when s 60AA was introduced) and on 24 June 2004 (when the section was amended by the Workers Compensation Legislation Amendment Act 2004). These were consistent with a beneficial intent.
The appellant referred to the decision of Roche DP in Hesami v Hong Australia Corporation Pty Ltd [2011] NSWWCCPD 14; 10 DDCR 142 (Hesami). The Deputy President at [53] relied on the system objectives in s 3(c) of the 1998 Act, as supporting his construction of s 60AA. The requirement in s 60AA(1)(d), that domestic care be in accordance with a care plan, did not prevent recovery when a care plan was put in place subsequently.

It was submitted that s 60AA(1)(c) did not, on its plain meaning, limit the recovery of compensation in respect of “non-temporary care payments” to care occurring after “the date of an agreement or an AMS outcome as to WPI at 15% or more”. The section is not so limited by words. “To read it otherwise would be to add words to the section.”
Alternatively, if the view were taken that there was ambiguity on this aspect of the section, the appellant submitted “it should be construed so as to give the fullest relief which the fair reading of its language will allow”. The appellant referred to Bull v Attorney-General (NSW) [1913] HCA 60; 17 CLR 370 (Bull) and Kajic v Hawker De Havilland Aerospace Pty Ltd[2009] NSWWCCPD 136; 8 DDCR 228 (Kajic). Such an approach is consistent with s 3(c) of the 1998 Act and s 33 of the Interpretation Act.
Section 376 of the 1998 Act relevantly gave the WorkCover Authority power to issue guidelines with respect to “such other matters as a provision of the Workers Compensation Acts provides may be the subject of Workers Compensation Guidelines”. The appellant submitted that, when this is read with s 60AA, it gave the Authority power to issue guidelines with respect to the “establishment of a care plan by the insurer” (referred to in s 60AA(1)(d)), and “how to verify performance of services provided by a carer” (referred to in s 60AA(5)). The ‘Explanatory Note’ to the Guidelines stated they were made under s 60AA of the 1987 Act and s 376(1) of the 1998 Act.
Whilst not stated in this way, the thrust of the above submission appears to be that Guidelines 6.1 and 6.4, on which the Arbitrator relied, were not within the relevant power conferred on the WorkCover Authority. Ground 2 asserts there was no statutory basis for Guidelines 6.1 and 6.4. The appellant submitted that the Arbitrator’s reliance on these guidelines was a “fundamental error”.
The appellant additionally submitted that the requirement in s 60AA(1)(c), of 15 per cent permanent impairment, was a “threshold section”. Once the threshold was met, it was open to the Arbitrator to award compensation (other than on a temporary basis) “for gratuitous domestic assistance both before and after the date of attainment of the 15% WPI threshold”. To apply s 60AA, so as to refuse the recovery of such compensation for periods prior to the date of attainment of the 15 per cent threshold, was to read words into s 60AA(c) which were not there.
It was submitted that the threshold in s 60AA(1)(c) was analogous to the 15 per cent threshold in s 151H(1) of the 1987 Act, governing the recovery of ‘work injury damages’. Providing the 15 per cent threshold is attained, damages are then recoverable in respect of periods both before and after that event.
The appellant acknowledged that not every provision of the ‘Workers Compensation Acts’ has a beneficial purpose. Reference was made to ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1; 13 DDCR 90 (Goudappel) at [29]–[30]. However, it was submitted that s 60AA was “patently beneficial”, and there was “no constructional choice so as to avoid its application to the appellant and his care giver”, both before and after the date of the first MAC.

THE RESPONDENT’S SUBMISSIONS

The respondent made some opening submissions, apparently to be of general application.
It was submitted that each of the appeal grounds made the same complaint, that in the Arbitrator’s construction, she gave Guidelines 6.1 and 6.4 precedence over s 60AA. The appellant’s submissions did not enunciate a better interpretation or explain an alternative interaction between s 60AA and the Guidelines. It was submitted that the Guidelines must be read in conjunction with the section, consistent with the decision of Keating P in Kajic. The statutory basis for the existence of the Guidelines is the enabling provision in s 376(c) of the 1998 Act.

Ground 1 –Failing to Apply a Correct Test in Construing Section 60AA

The respondent submitted that the Arbitrator correctly concluded that all of the conditions in s 60AA(1) must be satisfied (Hesami). There is “no entitlement to assistance until and unless the [appellant] had achieved a 15% wpi”. This “necessity is expressed without qualification in s 60AA(1)(c) and para. 3 of the Guidelines”.
Whilst the legislation might be beneficial, the construction of a provision should not be “strained or exceeded beyond that which provides the fair meaning of its anguage [sic, language]”. Bull was referred to. Some provisions are not beneficial (Goudappel).
It was submitted that “No ambiguity exists in respect of the reading of s 60AA or the Guidelines.” The legislature could have made specific provision for “a case where a worker’s injuries are significant but where a wpi assessment remains outstanding”. “[N]o such provision exists or is implied.” There is provision for services on a ‘temporary basis’ in s 60AA(2).
The respondent submitted that “there was a cascade of physical disabilities which befell [the appellant] at different times”. During the period at issue in this appeal (30 September 2004 to 8 January 2014) the appellant underwent 11 surgical procedures and contracted infections. There was “a developing schedule of disabilities culminating in the final assessment made on 9 January 2014”. At no time before that did he “hold a 15% WPI assessment”. The Arbitrator engaged with this difficulty at [22]–[23] of her reasons. At [23] she said “I am not in a position to be able to determine when a 15 per cent whole person impairment would have likely have [sic] been received”.

Ground 2 – The Statutory Basis for Paragraphs 6.1 and 6.4 of the Guidelines

The respondent referred to the decision in Kajic in respect of the second ground.

DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”

Was the Construction of Section 60AA(1)(c) in Error

For compensation to be payable pursuant to s 60AA of the 1987 Act, other than on a ‘temporary basis’, it is necessary that all of the requirements of s 60AA(1) be satisfied: Hesami at [46]. The findings of the Arbitrator relevant to sub-sections (a), (b) and (d) are not at issue in this appeal.
For compensation other than on a ‘temporary basis’, s 60AA(1)(c) requires that “the injury to the worker has resulted in a degree of permanent impairment of the worker of at least 15%”. Section 60AA does not provide for the consequences where, as in this matter, there is not evidence about permanent impairment, or agreement between the parties on the issue, until after care has been provided. In this regard, there is ambiguity in the meaning and operation of the section.
The Arbitrator dealt with this difficulty by reference to the Guidelines. At [19]–[20] she said:
“19. I agree that the authorities support a general proposition that legislation should be read in a beneficial manner to the applicant particularly where there is ambiguity. The difficulty, however, in this claim is that there is no ambiguity. The guidelines specifically refer to circumstances in paragraph 6.1 where whole person impairment is less than 15 per cent or has not yet been determined. It is clear that in those circumstances the guidelines provide that a maximum of six hours per week for three months domestic assistance can be provided. This is clearly stated in Paragraph 6.4 of the Guidelines which provides:
‘In the circumstances where a WPI has not been determined and the injured worker requires domestic assistance beyond 3 months and/or for more than 6 hours per week there is little flexibility available. Under current legislation, injured workers are not entitled to domestic assistance beyond 3 months or for more than 6 hours per week unless they have a WPI of at least 15%’.
20. It appears to me that in these circumstances there is no ambiguity and it is a threshold requirement for ongoing assistance that the applicant is certified as 15 per cent whole person impairment. That being so, the [appellant], in my mind, is only entitled to receive six hours of care per week for the first three months.”
The Arbitrator’s approach to the construction issue involved construing s 60AA(1) by reference to the content of the Guidelines. Treated in this way, she concluded there was not ambiguity when s 60AA(1) was read with the Guidelines. The appellant argued that this approach was erroneous.
The issue of the status to be accorded to the Guidelines was touched on in the submissions at the arbitration hearing. The appellant’s counsel, at T17.27, said “Guidelines are just that, guidelines…”, although he did not go on to further develop that submission. The respondent’s counsel, at T35.20–27, said:
“So one has to be careful here, Madam Arbitrator, not to draw a brush across the entire thing because at the end of the day we’re talking about the interpretation of section 60AA. The guidelines are there to assist in understanding it but they are not in substitution of it and I come back to the earlier submission, to the extent that there’s any conflict between the guidelines and the section, then the section must have priority.”
In Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244; 5 DDCR 247 (Barrow) there was an issue regarding whether alleged failure by a worker to make a claim in accordance with the WorkCover Guidelines deprived the Commission of jurisdiction. Dealing with the status of the relevant WorkCover Guidelines, Mason P (Santow and Tobias JJA agreeing) at [41]–[44] said:
“41 Nothing in the statute appears to provide support for the proposition that the Guidelines operate to qualify or restrict the statutory scheme or the Commission’s duties and powers referable to investigating disputes that arise.
42 The Explanatory Note to the Guidelines states that they set out the procedures for the initial notification of an injury, making provisional liability payments and the making and handling of claims under Pt 3 of the WIM Act. The Guidelines are said to be ‘primarily intended to assist WorkCover NSW Licensed Insurers’. Nowhere is it suggested that the Guidelines touch upon the Commission’s jurisdiction or powers as regards a later dispute.
43 In addition, the word ‘guidelines’ is usually encountered with reference to a non-binding indication of policy. The Macquarie Dictionary relevantly defines the term to mean ‘a statement which defines policy or the area in which a policy is operative’.
44 As regards initial notifications, being notifications capable of being made by a worker, employer or their representative, the Guidelines list categories of ‘minimum identifying information’ (Pt 1 r 5.1). This information is referred to as ‘Criteria 1 information’. Rule 7 states that if the Criteria 1 information is not provided at the initial notification, then the initial notification is ‘not complete’. Nevertheless the insurer is authorised to start provisional liability payments if the ‘missing information is not materially necessary’ (r 7.1). This is not the language one would expect to find if compliance were of the essence of a legally valid claim, as regards a matter touching the Commission’s ‘jurisdiction’. Of course, the idea that the Guidelines could dictate the effect of the statute would itself be misconceived.” (emphasis in the original)
In Tan v National Australia Bank [2008] NSWCA 198; 6 DDCR 363 (Tan) Basten JA (Bell JA agreeing) at [34] said of the WorkCover Guidelines:
“The explanatory note with which they commence states that they are ‘primarily intended to assist WorkCover NSW Licensed Insurers’. They cannot, and do not purport to, affect the proper construction of the Act, as accepted by this Court in Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244 at [32] and [41] (Mason P, Santow and Tobias JJA agreeing).
The Explanatory Note to those Guidelines relevant to this appeal states:
“These Guidelines are made under sections 376(1)(c) of the Workplace Injury Management and Workers Compensation Act 1998 and section 60AA of the Workers Compensation Act 1987. They explain the operation of the workers compensation legislation relating to the provision of domestic assistance services to injured workers.
These Guidelines set out procedures to be followed relating to the provision of domestic assistance services and the verification of the provision of those services.
These Guidelines are primarily intended to assist insurers, medical practitioners, rehabilitation providers, injured workers and their carers. Questions about the provision of domestic assistance and these Guidelines should be directed to the Workplace Injury Management Branch of WorkCover NSW on 13 10 50.” (emphasis added)
Paragraph 1.2 of the Guidelines states:
“1.2 Guidelines for domestic assistance services

Section 376(1)(c) of the 1998 Act empowers the Authority to issue guidelines as to a matter that a provision of either the 1987 or the 1998 Act provides may be the subject
of guidelines.

Under section 60AA(1)(d) of the 1987 Act, compensation is payable for domestic assistance that is reasonably necessary for an injured worker, where the assistance is provided in accordance with a care plan established in accordance with the WorkCover Guidelines. Section 60AA(5)(b) further provides that Guidelines may be made for how the provision of those services is to be verified.

Accordingly, these Guidelines apply in relation to:
·the provision of domestic assistance, and
·how the provision of domestic assistance services is to be verified.”

The status of the Guidelines was raised, in passing, at the arbitration hearing. The extent to which it was permissible to have reference to the Guidelines, in construing s 60AA, was raised in the appellant’s submissions. The appellant argued that it was erroneous to construe the section by reference to the Guidelines.
Section 60AA of the 1987 Act has been the subject of limited Presidential consideration. In Kajic, Keating P dealt with an argument about whether the compensation recoverable, in respect of gratuitous domestic assistance, was limited by reference to what the provider of the assistance would probably have been earning had the worker not been injured, and had the provider continued earning what she had prior to the injury.
Keating P at [8] of his decision set out the question of law which had been referred to him:
“Does sub-section 60AA(3) of the Workers Compensation Act 1987 constitute more than an evidentiary threshold entitlement requirement, and if so, is it to be read in conjunction with the WorkCover Guidelines for the Provision of Domestic Assistance dated 15^th October 2004, so as to impose a maximum level of compensation payable under s. 60AA to a care provider, limited by the amount of any lost income or value of the forgone employment sustained by the care provider?” (emphasis added)
It will be observed that the question of law posed two questions.
His Honour, construing the section, referred to two relevant Second Reading speeches. He said that s 60AA “was intended as a remedial provision in otherwise beneficial legislation to ensure that the long-term care needs of the most seriously injured workers are met by the statutory scheme”. His Honour at [66] said:
“Workers compensation legislation has long been regarded as beneficial in nature. In beneficial legislation where any ambiguity exists it is to be construed beneficially. The true significance of the provision should not be strained or exceeded, but it should be construed so as to give the fullest relief which the fair reading of its language will allow, (Bull v Attorney General (NSW) (1913) 17 CLR 378 per Isaacs J).”
His Honour concluded that s 60AA(3) of the 1987 Act was a “qualifying provision or evidentiary threshold” (see his Honour’s reasons at [67] and the reasoning which precedes it). His Honour reached this conclusion without reference to the Guidelines.
Section 60AA(4) was “concerned with the quantum of compensation payable for gratuitous domestic assistance” (his Honour’s reasons at [68]). This was set by reference to “such sum as may be applicable under s 61(2) in respect of the assistance concerned”. Section 61(2) of the 1987 Act provided for the Authority to set a maximum amount for any particular “medical or related treatment”. Clause 7.4 of the Guidelines went to such quantification.
His Honour noted that the Guidelines provided “for the regulation and verification of compensation for gratuitous domestic assistance”. His Honour at [68]–[76] dealt with s 60AA(4) and s 61(2) of the 1987 Act, and clause 7.4 of the Guidelines, reading “the Act and the Guidelines together”. His Honour at [71]–[72] said:
“71. Clause 6.1 provides that once the Whole Person Impairment criteria has been satisfied ‘the worker is entitled to all reasonably necessary domestic assistance’. Clause 5.2 provides guidance as to what is to be regarded as reasonable and necessary domestic assistance.
72. Reading the Act and the Guidelines together as a scheme for the provision of compensation for gratuitous assistance, once an entitlement to compensation has been established, the amount of compensation payable is regulated by clause 7.4 which provides for an hourly rate by reference to the Australian Bureau of Statistics publication on average earnings i.e. dividing by 35 the amount estimated as the average weekly total earnings (full time adult ordinary time) of all employees in New South Wales. Clause 7.4 also sets a limitation on the total compensation payable by providing that compensation is not payable for more than 35 hours per week.” (emphasis added)
There was no issue in Kajic going to whether the requirements of s 60AA(1) were satisfied.
Section 60AA was also considered by Roche DP in Hesami. Section 60AA(1)(d) provides a requirement that gratuitous domestic assistance be “provided in accordance with a care plan established by the insurer in accordance with the WorkCover Guidelines”. The worker’s solicitors, on 19 August 2008, made a claim on the insurer pursuant to s 60AA. It was ignored. On 8 December 2009 the insurer, in Commission proceedings which were discontinued, agreed to establish a care plan in accordance with the Guidelines. A plan was established by the insurer on 29 January 2010.
The employer argued that each of the four requirements of s 60AA(1) needs to be satisfied, before domestic assistance is paid. It argued that no compensation was payable pursuant to s 60AA(1) until the last of the requirements, the care plan, was satisfied on 29 January 2010.
After referring to Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 (Wilson), Roche DP at [44] said:
“Applying the above principles, I must interpret and construe the words in s 60AA having regard to their legal and historical context, giving close attention to the text and structure of the Act. I also have regard to the fact that the workers compensation legislation is ‘beneficial legislation’ and that entitlements under such legislation should not depend on ‘distinctions which are too nice’ (per Mahony JA in Articulate Restorations & Developments Pty Ltd v Crawford(1994) 10 NSWCCR 751 at 765). At the same time, the principle that beneficial legislation should be given a liberal construction does not entitle a court to give it a construction that is unreasonable or unnatural (per McColl JA in Amaca Pty Ltd v Cremer [2006] NSWCA 164, citing IW v City of Perth[1997] HCA 30; 191 CLR 1 (at 11–12) per Brennan CJ and McHugh J).”

The Deputy President at [49] said:
“Whilst I agree there is no requirement to pay for gratuitous domestic assistance until the insurer has established a care plan, that does not mean that there is no liability for domestic assistance provided before the establishment of the care plan. What is required is that the assistance be provided ‘in accordance with’ a care plan.”
And at [51]:
“Applying Wilson, considering the words used, the context in which they are used in the section, the context of the section in the legislation overall, and the purpose of the section, I believe the words ‘in accordance with’ in sub-section (d) of s 60AA mean ‘in conformity with’ or ‘consistently with’. It follows that, regardless of when the domestic assistance is provided, if it is in conformity with or consistent with the care plan, then, provided the other conditions in s 60AA are satisfied, the claimant is entitled to succeed.” (emphasis added)
The Deputy President described this construction as consistent with the objective in s 3(c) of the 1998 Act. He construed s 60AA(1) without reference to the Guidelines.
In Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc & Ors [2000] NSWCA 65; 48 NSWLR 548 Spigelman CJ at [116] said:
“The use of the word ‘ambiguity’ in the context of statutory interpretation is not restricted to lexical or verbal ambiguity and syntactic or grammatical ambiguity. It extends to circumstances in which the intention of the legislature is, for whatever reason, doubtful.”
Section 60AA(1)(c) provides, as one of the four requirements of s 60AA(1), that the injury to the appellant have resulted in a degree of permanent impairment of at least 15 per cent. The section is silent as regards when that provision needs to be satisfied. The section is silent as regards the consequences of establishing that level of impairment, at some point in time after the gratuitous domestic assistance has been provided. There is ambiguity in this regard.
In my view, the manner in which the Arbitrator construed s 60AA(1)(c) of the 1987 Act demonstrated error. There was ambiguity in the subsection. To solve that ambiguity by reference to the Guidelines was inconsistent with the decisions of the Court of Appeal in Barrow and Tan.
The Explanatory Note to the Guidelines said that they explained the operation of the legislation, and set out ‘procedures to be followed’ relating to the provision and verification of domestic assistance services. It said the Guidelines were ‘primarily intended to assist insurers, medical practitioners, rehabilitation providers, injured workers and their carers’. As was observed in the passage from Tan at [34] (quoted at [57] above), they do not purport to affect the proper construction of the Act. I note the statement of Mason P in Barrow at [44] (quoted at [56] above), in relation to the Guidelines at issue there, that the “idea that the Guidelines could dictate the effect of the statute would itself be misconceived”.
Although I do not rely on it in reaching the view which I have, I note that the final two paragraphs of clause 6.4 of the Guidelines are not inconsistent with the proposition that payments in respect of paid domestic assistance may be recoverable, if the 15 per cent threshold is attained after such care is supplied.

What is the Preferred Construction?

In considering what construction should be given, it is appropriate (as in Hesami) to be guided by the judgment of Allsop P (Giles, Hodgson, Tobias and Macfarlan JJA agreeing) in Wilson at [12], which sets out well established principles:
“I am mindful that any initial engagement with enactment history and context might be misunderstood as part of any enquiry as to the subjective intent of legislators or policy advisers so that such divined intent can be transferred to the words used by Parliament. Such an enquiry would be misdirected. It is the language of Parliament that must be interpreted and construed: Harrison v Melhem[2008] NSWCA 67; 72 NSWLR 380 at 384–385 [12]–[16] (Spigelman CJ), 398–403 [158]–[185] (Mason P), 403 [191] (Beazley JA) and 403 [192] (Giles JA). However, as is now beyond dispute, in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context. Context is to be considered in the first instance, not merely when some ambiguity is discerned. Context is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed. These are legitimate means of understanding the purpose of the Act and of the relevant provisions, against which the terms and structure of the provisions and the Act, and a whole, are to be understood. Fundamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose. Nevertheless, general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect. The foregoing principles can be taken from the following: Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421–424, specifically approved by the Court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) in Bropho v Western Australia [1990] HCA 24; 171 CLR 1 at 20; CIC Insurance Ltd v Bankstown Football Club Ltd[1997] HCA 2; 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Newcastle City Council v GIO General Ltd[1997] HCA 53; 191 CLR 85 at 99 (Toohey, Gaudron and Gummow JJ), 112–113 (McHugh J); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 381–382 [69]–[71] and 384 [78] (McHugh, Gummow, Kirby and Hayne JJ); Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at 23 [49] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Eastman v Director of Public Prosecutions of the Australian Capital Territory [2003] HCA 28; 214 CLR 318 at 322 [1] (Gleeson CJ agreeing with Heydon J) 330 [32] (Gummow J agreeing with Heydon J), 331 [34] (Kirby J agreeing with Heydon J), 331 [35] (Hayne J agreeing with Heydon J), 331 [36] (Callinan J agreeing with Heydon J) and 368 [140] and fn 99 (Heydon J); Network Ten Pty Ltd v TCN Channel Nine Pty Ltd[2004] HCA 14; 218 CLR 273 at 280–281 [10]– [11] (McHugh ACJ and Gummow and Hayne JJ), 305–306 (Kirby J, in dissent, though not in expression of principle); Minister for Immigration and Citizenship v SZJGV [2009] HCA 40 at [8]–[9] (French CJ and Bell J), [47]–[48] (Crennan and Kiefel JJ), cf [19]–[20] (Hayne J), though compare Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 and Saeed v Minister for Immigration and Citizenship[2010] HCA 23 at [33]–[34]; and see also the Interpretation Act 1987 (NSW), ss 33 and 34.”
The respondent submitted that the Arbitrator’s approach to the construction of s 60AA(1) was correct. For reasons given above, I do not accept that submission.
The appellant, at [31] of his submissions, submitted on an alternative construction:
“Section 60AA(1)(c) is not limited by words so as to confine the period for which the claim may be made. It is a threshold section which threshold the worker met once Dr Crane the AMS assessed him and so certified his WPI at 33% and in excess of 15%. From that time it was open to the arbitrator to favourably determine the whole claim for gratuitous domestic assistance both before and after the date of attainment of the 15% WPI threshold provided the facts and proof supported the awarding of compensation for such.”
The above contains a factual error. Dr Crane assessed the appellant’s permanent impairment at 16 per cent. That was subsequently increased to 33 per cent by the MAP. This does not affect the meaning of the submission.
The appellant referred to the threshold of 15 per cent in s 151H(1) of the 1987 Act, relating to the availability of an award of modified common law damages pursuant to Part 5 of the 1987 Act. If that threshold is met, damages can then be awarded in respect of periods “both before and after the date of assessment or agreement as to WPI”. The appellant submitted that “[t]here is no good reason to consider that s 60AA was intended to operate differently.”
I do not accept that submission. It is necessary to consider the provisions in context. Section 151H(1) of the 1987 Act prevents the awarding of modified common law damages unless the relevant injury resulted in death, or permanent impairment of at least 15 per cent.
A dispute about whether a worker has 15 per cent permanent impairment is a ‘threshold dispute’ (s 314 of the 1998 Act). If there is a ‘threshold dispute’ the worker cannot serve a pre-filing statement until the degree of permanent impairment has been assessed by an approved medical specialist (s 313 of the 1998 Act). Court proceedings for the recovery of ‘work injury damages’ cannot be commenced if a pre-filing statement is not served (s 315 of the 1998 Act). There is a statutory regime in place governing the procedure for establishing the existence of the threshold of 15 per cent permanent impairment.
Once the threshold is established, there is a statutory regime in Chapter 7, Part 6 of the 1998 Act, governing the procedures to be followed. The damages which are recoverable in an action for ‘work injury damages’ are subject to the provisions in Part 5, Division 3 of the 1987 Act.
The regime which governs ‘work injury damages’, and the associated 15 per cent permanent impairment threshold, is quite different to the operation of s 60AA. The analogy which the appellant seeks to draw, between s 151H(1) and s 60AA(1)(c), is not appropriate. The statutory context of the two provisions is quite different.
In Kajic the President, at [60]–[62], referred to and quoted from the second reading speeches of the Honourable John Della Bosca, relating to the Workers Compensation Legislation Further Amendment Act 2001and the Workers Compensation Legislation Amendment Act 2004.
The following passage was quoted from the earlier of the above second reading speeches:
“Schedule 3 introduces a new entitlement to statutory compensation for domestic assistance that is reasonably necessary to be provided to an injured worker as a direct result of the injury, but only where the degree of permanent impairment of the injured worker resulting from the injury is 15 per cent or more, with exceptions for short-term special needs. These substantial improvements to non-economic loss benefits and the introduction of a new entitlement for domestic assistance are being provided mainly out of the estimated savings in legal and investigation costs in the scheme. Workers with comparatively moderate degrees of injury, such as back injuries, are expected to receive a similar amount to that currently provided by the table of disabilities. The provision of increased statutory benefits is intended both to ensure that the long-term care needs of the most seriously injured workers are met by the statutory scheme, and to make provision for a range of seriously injured workers to seek common law remedies, if appropriate, to their circumstances.”
His Honour in Kajic at [63] said:
“It can be readily seen from the Minister’s second reading speeches that the introduction of section 60AA was intended as a remedial provision in otherwise beneficial legislation to ensure that the long-term care needs of the most seriously injured workers are met by the statutory scheme.”
I respectfully agree with the views of both Keating P (in Kajic) and Roche DP (in Hesami) that s 60AA of the 1987 Act is beneficial, and should be construed on that basis (see Kajic at [66] and Hesami at [44]).
The natural meaning of the words in s 60AA(1)(c) is that payments of compensation pursuant to s 60AA(1) (other than on a temporary basis) are to be restricted to workers whose injury has resulted in a degree of permanent impairment of at least 15 per cent. In some matters, for example traumatic amputation, the ultimate degree of permanent impairment may be in place almost immediately after an injury occurs. In other matters, there may be a lengthy period over which the level of permanent impairment develops and increases. There may be matters where the level of permanent impairment is modest initially, but increases substantially, for example due to events such as post-operative infections.
The appellant submits that, when a worker attains the threshold of 15 per cent permanent impairment, assuming the other requirements of s 60AA(1) are satisfied, he or she is entitled to recover pursuant to that subsection, in respect of domestic assistance, whenever provided. This approach would have the effect that domestic assistance, supplied to a worker when he or she had little if any permanent impairment, would potentially be the subject of compensation pursuant to s 60AA, if the permanent impairment subsequently increased to 15 per cent.
Two workers, with the same level of permanent impairment, both less than 15 per cent, might each receive the same level of domestic assistance. Compensation in respect of that assistance, pursuant to s 60AA(1), might then be recoverable by one worker (whose level of impairment later increased) but not by the other. This would, in my view, be an unjust or capricious result which should be avoided: Tickle Industries Pty Ltd v Hann & Anor [1975] HCA 5; 130 CLR 321 at [40] per Barwick CJ.
An appropriate construction of s 60AA(1)(c), in my view, is that it is satisfied if a worker has a degree of permanent impairment of at least 15 per cent, at the time when the relevant domestic assistance is provided for the worker. This is consistent with the words of the section. It is consistent with the legislative intent to meet “the long-term care needs of the most seriously injured workers” (see the passage from the earlier of the second reading speeches quoted at [89] above). It is consistent with the system objective in s 3(c) to provide “payment for reasonable treatment and other related expenses”. It is, in general terms, consistent with the approach taken in Hesami.

The Validity of Clauses 6.1 and 6.4 of the Guidelines

I note the appellant also submitted that there was no statutory basis for issue of the Guidelines 6.1 and 6.4. Because of the view I have taken, on the effect of Barrow and Tan on the construction of s 60AA of the 1987 Act, it is unnecessary that I deal with the argument going to whether the Guidelines were validly issued.

The Effect of the Found Error

I have found that the Arbitrator erred in construing s 60AA(1)(c) of the 1987 Act as she did. The preferred construction is described at [95] above.
To recover compensation pursuant to s 60AA (other than on a temporary basis) it is necessary that a worker establish each of the four requirements in s 60AA(1). The onus is on the worker to do so (Hesami at [45]–[46]). On the construction which I have reached, relevant compensation is potentially recoverable, during the period at issue on this appeal (30 September 2004 to 8 January 2014), providing the appellant can establish that he had at least 15 per cent whole person impairment, for the whole or part of the period.
Where there is a dispute in a ‘work injury damages claim’, in respect of whether the 15 per cent threshold has been achieved, it is necessary that the degree of permanent impairment be assessed by an approved medical specialist (s 313 of the 1998 Act). There is no similar requirement in s 60AA(1)(c). However, a worker claiming compensation pursuant to s 60AA still requires evidence to discharge his or her onus, on the probabilities, that the 15 per cent threshold was satisfied, at the time relevant domestic care was provided.
The MAC of Dr Crane dated 9 January 2014 is not before me. Dr Ting’s report dated 18 September 2014 said that he sighted Dr Crane’s MAC, and that it assessed 16 per cent whole person impairment. This was accepted between the parties at the arbitration hearing. I note the Arbitrator’s reasons at [6] state it was common ground that 9 January 2014 was the date when the appellant was “entitled to assert that he has proved 15 per cent whole person impairment”.
The respondent submitted that there was “a cascade of physical disabilities which befell [the appellant] at different times”. The appellant underwent 11 surgical procedures, and also contracted infections, during the period at issue in this appeal. There was “a developing schedule of disabilities culminating in the final assessment made on 9 January 2014”.
The Arbitrator, in her reasons at [23] said:
“… there is no date set forward upon which it was likely that the [appellant] would have meet [sic] the 15 per cent whole person impairment. That is, I don’t know after which surgical procedure was it likely that the [appellant] would have reached 15 per cent whole person impairment. I note the [appellant] has had significant surgery and I am not in a position to be able to determine when a 15 per cent whole person impairment would have likely have [sic] been received.”
There is clear evidence that the appellant had 15 per cent whole person impairment from the date of Dr Crane’s MAC. There is no medical evidence dealing with the issue of whether the appellant had 15 per cent whole person impairment at some earlier time, and if so, when. Given the multitude of failed surgical procedures and infections which befell the appellant from time to time, prior to 9 January 2014, it is an issue that could not be satisfactorily decided, other than with the assistance of medical evidence going to the issue. I agree with the Arbitrator’s observations at [23] of her reasons.
The effect of the above is that, even if the Arbitrator had applied what I have concluded is an appropriate construction of s 60AA(1)(c) of the 1987 Act, she could not, on the evidence before her, have been satisfied that the appellant suffered at least 15 per cent permanent impairment, prior to the date of Dr Crane’s MAC. If she had applied the construction which I have found to be correct, it could not have affected the result.
In Toll Pty Ltd v Morrissey [2008] NSWCA 197; 6 DDCR 561 Beazley JA (as her Honour then was) (Handley AJA and McDougall J agreeing), dealing with the consequence of a finding of error on appeal from an arbitrator, at [10] said:
“The correct test was that he should allow the appeal from the arbitrator, unless the error of the arbitrator could not possibly have affected the result: see Stead v State Government Insurance Commission[1986] HCA 54; (1986) 161 CLR 141 at 147.”
It follows that the appeal does not succeed.

DECISION

The Arbitrator’s determination dated 3 February 2016 is confirmed.

Michael Snell

Deputy President

1 June 2016