Cummings v Melville - [2011] NSWWCCPD 59

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Cummings v Melville [2011] NSWWCCPD 59
APPELLANT:		Thomas Cummings
RESPONDENT:		Clive Melville
INSURER:		CGU Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-9855/10
ARBITRATOR:	Mr Brett Batchelor
DATE OF ARBITRATOR’S DECISION:		9 May 2011
DATE OF APPEAL HEARING:		18 October 2011
DATE OF APPEAL DECISION:		27 October 2011
SUBJECT MATTER OF DECISION:		Arbitrator’s discretion to permit cross-examination of witness; proof of injury; standard of proof and challenge to Arbitrator’s finding founded, in part, upon a finding as to credit
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		Oral
REPRESENTATION:		Appellant:	Mr Robison, instructed by Leitch Hasson & Dent
Respondent:	Mr Odling, instructed by Sparke Helmore
ORDERS MADE ON APPEAL:		The determination of the Arbitrator dated 9 May 2011 is revoked and the following orders are made in its place: “1. The matter is remitted to the Registrar for referral to an Approved Medical Specialist to assess the percentage permanent loss of sight of the left eye suffered as a result of injury received in or about June 1993. 2. The evidence to be referred to the Approved Medical Specialist is to include all that documentary evidence that was before the Arbitrator and the additional evidence, being the records of Dr Wright’s practice concerning treatment of the applicant, admitted on appeal.” The respondent is to pay Mr Cummings’s costs of the appeal.

BACKGROUND TO THE APPEAL

Mr Thomas Cummings of Narromine, New South Wales, is the appellant in these proceedings. He alleges injury to his left eye in the course of his employment with the late Mr Clive Melville (the respondent), the proprietor of a property known as “Wooringa” located in the Narromine district. Mr Cummings stated in evidence that he commenced that employment in “about 1980” as a station hand/shearer and that he “also did all round work”. That employment was not continuous however he worked “on and off up until either 1994 or 1995”. The availability of work varied and he was engaged between two and seven days a week.
Mr Cummings has experienced medical problems concerning his left eye over a period of many years. He has received treatment from a number of specialist practitioners both in rural New South Wales and in Sydney. There is no dispute concerning the complete loss of vision in his left eye.
Mr Cummings alleges that the injury to his left eye occurred on 30 June 1993 when he was kicked “in the left side of the head and face” by a ram which he was shearing. On 20 April 2010 Mr Cummings’s solicitors made a claim against the respondent’s workers compensation insurer, CGU Workers Compensation (NSW) Ltd (CGU), in respect of lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act). That claim was accompanied by a report from Dr Michael R Delaney dated 29 July 2008 which quantified Mr Cummings’s loss as being 100 per cent impairment of vision of the left eye.
The insurer, by letter dated 17 August 2010, gave notice to Mr Cummings pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) that liability in respect of the claim had been disputed and particulars of those matters in dispute were provided.
An Application to Resolve a Dispute was filed with the Commission on behalf of Mr Cummings by his solicitors in November 2010. That Application came before Arbitrator Brett Batchelor for conciliation/arbitration on 18 April 2011. The matter proceeded to hearing at which time the Arbitrator permitted counsel appearing on behalf of the respondent to cross-examine Mr Cummings. Following submissions put by counsel on behalf of each party, the Arbitrator reserved his determination. A Certificate of Determination issued on 9 May 2011 which recorded the entry of an award for the respondent. That Certificate was accompanied by a Statement of Reasons for the Arbitrator’s decision (Reasons).

THE DECISION UNDER REVIEW

The Certificate of Determination dated 9 May 2011 records the Arbitrator’s orders as follows:
“The Commission determines:
1. Award for the respondent.
2. No order as to costs.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

An appeal against the decision of the Arbitrator was filed with the Commission on 6 June 2011. There is no dispute that the threshold requirements as to quantum and time as found in the provisions of s 352(3) and s 352(4) of the 1998 Act have been met.

ISSUES IN DISPUTE

The issues in dispute raised on this appeal are whether the Arbitrator erred in:
(a)permitting cross-examination of Mr Cummings by the respondent’s counsel;
(b)failing to properly consider relevant authority, and
(c)applying an incorrect standard of proof.
The issues enumerated above are a summary of the matters which appear in submissions presented on behalf of Mr Cummings on this appeal under the heading “Errors in Decision”. At the hearing of the appeal leave was granted to the parties to tender additional evidence. A further issue arose as to whether such evidence provided proof of the allegation of injury which had been rejected by the Arbitrator.

TELECONFERENCE AND HEARING

Following a perusal of the documentary evidence and the transcript of proceedings, I concluded that there was a need to elucidate the issues raised on the appeal. The submissions which accompany Mr Cummings’s application concerning this appeal noted that attempts were being made to obtain “further factual material which [Mr Cummings] may seek leave to admit in this appeal. All efforts are being undertaken to obtain this material as soon as possible”. There had been no application made by Mr Cummings concerning the admission of any such material at the time the matter came before me for determination. In the circumstances a telephone conference was appointed which took place on 29 August 2011.
At the teleconference the Commission was informed that Mr Cummings wished to continue efforts to obtain documentary evidence from “the Medical Centre in Narromine”. Mr Cummings anticipated an application to have that material “admitted into the proceedings”.
Following argument concerning Mr Cummings’s request for time to conclude his search for additional evidence, a direction was made that Mr Cummings was to notify the Commission and the respondent of any application to adduce additional evidence within 21 days of the date of the teleconference.
Following that teleconference each party filed applications concerning the admission of additional evidence. In the circumstances a hearing of the appeal was fixed for 18 October 2011. Each party was represented by counsel at that hearing.
The documents which each party sought leave to tender as additional evidence were clinical records and correspondence concerning Mr Cummings’s medical treatment which had been produced by Dr Wright’s practice, Narromine Medical Centre. It was made clear at the hearing that such applications were made pursuant to s 352(6) of the 1998 Act.
Having regard to the nature of the documents, which are described at [17] and [18] below, and the fact that each party sought to tender the material, it was determined at the hearing that, in the interests of justice, those documents should be admitted. Appropriate orders were made. Submissions as noted below were put by each party concerning the relevance of those documents and with respect to the appeal generally.

ADDITIONAL EVIDENCE

The parties each tendered a bundle of documents produced by Dr Wright’s practice. I note that the documents as tendered are each in a different sequence and are, generally, in a confused state. It must also be said that the quality of the copied documents is poor, some portions of the documents have been obliterated by, it seems, the copying process and many entries are difficult, and in some cases impossible, to decipher.
The documents include two separate records of Mr Cummings’s attendances at the practice. The first is a handwritten record which relates to dates ranging between an uncertain date in the 1990s up to 20 July 2004. The earliest date was the subject of submissions which are addressed at [100] below. The second record is typed and appears to be computer generated. The earliest consultation date recorded in this record is 20 March 2006. The last recorded consultation is dated 16 June 2011. Detail of these notes, where relevant, are noted below.
Copies of the following documents accompanied the clinical notes:
(a)     letters of referral by Dr Wright to Dr Atkins dated 14 August 2000, 3 April 2002 and 20 July 2004;
(b)     reports from Dr Atkins to Dr Wright dated 22 August 2000, 22 July 2004;
(c)     reports from Dr Liu to Dr Atkins dated 24 August 2000, 22 November 2000 and 23 November 2000;
(d)     four Centrelink medical certificates dated between August 2001 and May 2002;
(e)     reports from Dr Barnes to Dr Wright dated 26 March 2009, 15 April 2010 and 16 June 2011;
(f)      copy of correspondence from the respondent’s insurer, CGU, and an injury management plan prepared in May 2010, and
(g)     a pro forma report requested by CGU and completed by Dr Wright which appears to be dated 27 July 2010.
The documents tendered also included a number of certificates and reports not relevant to the matters raised on this Appeal. The detail of the relevant documents enumerated above is addressed below.

THE ARBITRAL PROCEEDINGS

The proceedings before the Arbitrator were recorded and a transcript (T) has been produced and made available to each party. At the commencement of the hearing counsel appearing on behalf of the respondent informed the Arbitrator that the issues in dispute concerned Mr Cummings’s allegation that he was a worker in the employ of the respondent, injury was denied, and reference was made to the provisions of s 323 of the 1998 Act and s 68A of the 1987 Act. Counsel did not elaborate that last matter further other than to suggest that it was appropriate that the issue, if it arises, be dealt with by an Approved Medical Specialist (AMS).
Counsel proceeded to inform the Arbitrator that he wished to cross-examine Mr Cummings with respect to the issues of “worker” and “injury”. That application was opposed by counsel appearing on behalf of Mr Cummings. Argument was advanced on behalf of each party concerning the question as to whether cross-examination of Mr Cummings should take place. Following argument, the Arbitrator ruled that the respondent’s application to cross-examine Mr Cummings should be granted. The evidence given in the course of cross-examination is addressed below.

Mr Cummings’s evidence

The documentary evidence and the oral evidence of Mr Cummings was summarised by the Arbitrator at [26] and between [32] and [37] of Reasons. There were two statements made by Mr Cummings attached to his Application to Resolve a Dispute. The first is an unsigned record of interview between Mr Cummings and an insurance investigator, Mr Tony Hitchcock. That interview was conducted on 15 June 2010. The second document is a signed statement made by Mr Cummings on 22 November 2010.
The interview conducted by Mr Hitchcock records Mr Cummings stating that he commenced employment with the respondent in “about 1980” as a station hand/shearer and “also did all round work”. That employment continued on and off “from about 1980 to either 1994 or 1995”. Mr Cummings’s work was supervised by Mr Melville. He proceeded to describe an injury which occurred in 1993 in the course of that work. That date was determined by Mr Cummings by reference to his subsequent move to Quambone “the following year” and the fact that his son, Joseph, born 1 May 1992, was a baby at the time. As he was shearing a ram, the animal “pushed up with its rear legs and my head was down and the hooves of the ram struck me in the face on the left hand side and also in my left eye”. He was in “a great deal of pain”. He was assisted by his fellow worker Mr Glenn Colwell. After resting for some time the pain eased and Mr Cummings returned to work and completed the day.
Mr Cummings was unable to tell Mr Hitchcock the specific date in 1993 when this incident occurred, but stated that it was in “wintertime as it was cold”. The injury occurred after lunch at the respondent’s shearing shed situated on the property located in Trangie Road, Narromine. Mr Cummings states that he reported the injury to the respondent “straight away”. No written report was made at that time.
As a result of the injury Mr Cummings suffered a bleeding nose and his left eye was “blood shot”. Within one hour the left eye began to swell and “go black”. He had “scratches around [his] left eye and nose, [his] left cheek was bruised”. Mr Cummings stated that he did not get medical treatment because he “couldn’t leave [the respondent] as he had all the sheep to get done”. He returned to work the next day with a black eye and was taking panadol for pain. He states that he first sought treatment “a few years later” when he noticed that his vision in his left eye was “very poor”. The doctor consulted was Dr Thomas Atkins. Other evidence established that Dr Atkins is a specialist ophthalmologist.
Dr Atkins provided certain treatment and referred Mr Cummings to “Dr Henry Lew [sic, Liu]” for surgical treatment of a cataract.
In 2008 whilst shearing, Mr Cummings developed a “bad headache” and his left eye began bleeding. He sought treatment and was flown to Prince of Wales Hospital in Sydney where he remained for approximately 14 days under the care of Dr Barry Barnes.
Mr Cummings was questioned by the investigator concerning history recorded by Dr Delaney that he “had several black eyes in the past” but didn’t seek medical attention. Mr Cummings denied that he had had a previous black eye but had seen other people with black eyes. Mr Cummings states “the doctor misunderstood what I said”.
Mr Cummings states that he can “see light” with his left eye but cannot “see anything”. He states that he has not been able to work since 2008. Mr Cummings denied any injuries to his head or eye prior to 1993. He also denied having any injury to his head or eye since the incident in 1993. Mr Cummings identified his treating doctors as Dr Dean Wright of Narromine, Dr Thomas Atkins and Dr Barry Barnes. Mr Cummings also stated that the respondent had “passed away in the late 1990s”.
Mr Cummings’s statement dated November 2010 records the occurrence of injury whilst working with the respondent when kicked in the left side of the head and face by a ram in 1993. He could not remember the exact date of this occurrence but said “it was approximately 30 June”. He stated that at the time of the incident he did not think anything of it because he still had vision in his eye and he thought that the swelling and bruising would just “go down”. He continued working as a shearer and did not think much about it.
He stated that he had “seen a couple of friends get black eyes from fights in the years gone by” and had noticed that swelling and bruising “went down” and they appeared to go “back to normal”. He thought the same would happen with his eye and for that reason “did not do anything further”.
The swelling and bruising did heal and Mr Cummings stated that he did not seem to notice anything wrong with his eye. He would sometimes get pain in the eye but did not think anything of it. Two or three years after the injury he “started to lose vision in his left eye”. It was then that he attended Dr Atkins, specialist ophthalmologist, in Dubbo. He was questioned by Dr Atkins as to whether he had “received any hits or had any knocks to the left side of his face”. Mr Cummings stated that “the only thing which I could think of was the incident which occurred in 1993 when the ram kicked me”. Mr Cummings states that he was informed by Dr Atkins that it was more than likely the 1993 incident was the cause of the “pressure” in his left eye and that, at that time, he may have suffered a fractured cheekbone which “could be placing pressure on the eye as well”.
Mr Cummings stated that in approximately 2002 Mr Cummings returned for an eye examination by “the ophthalmologist” at which time he was informed that he had cataracts. He underwent cataract surgery which was performed by “Dr Henry Lieu [sic, Liu]”.
In February 2008 Mr Cummings states that he woke up experiencing severe headache across the front of his head, more to the left side. He attended work and a fellow worker advised him that he had “a haemorrhage on the surface of my left eye”. He immediately left work and went to the emergency department at Bourke Hospital. Following assessment by a medical practitioner, Mr Cummings was advised that he needed to go to a hospital in Sydney. He was then transported by air to the Prince of Wales Hospital. He was admitted to that hospital on 18 February 2008 and came under the care of specialist ophthalmologist, Dr Banks, and others.
Mr Cummings stated that he had experienced “a lot of difficulty” carrying out his work as a shearer and his vision problems had caused a severe laceration injury to his hands in 2004. He stated that following that incident he was forced to give up work because of the danger and risk of further injury. He stated that he has “virtually no vision” in his left eye.
There is in evidence a written record of an interview dated 15 June 2010 between Mr Tony Hitchcock and Mr Glenn Colwell. Mr Colwell was recorded as stating that he has known Mr Cummings for 35 or 40 years. Mr Colwell commenced work with the respondent in “around 1990” as a shearer. He worked with Mr Cummings who performed the duties of rouseabout/shedhand and later took on shearing work. He was supervised by the respondent. Mr Colwell reported that whilst shearing rams, Mr Cummings was kicked by an animal he was handling, its front leg “hit him straight in the eye”. Mr Cummings rested for a while and then tried to work again but was unable. The respondent told Mr Cummings to go home and have a few days off. Mr Colwell states that he is left handed and Mr Cummings is right handed and that they were facing each other when the incident occurred. When questioned as to when this incident happened Mr Colwell said “I know it was cold because I was shearing with a jumper on, it [sic] don’t know if it was 1992 or 1993”. When questioned as to how it was that he recalled the incident occurred in 1992 or 1993, he stated “was when I was shearing for Billy Melville”. Mr Colwell stated that the incident occurred in the shearing shed on the respondent’s premises located “five mile out of Narromine”. Mr Colwell states that he saw “blood coming from [Mr Cummings’s] left eye and bleeding nose”. He thought that Mr Cummings went to the doctor the next day “because [the respondent] gave him a couple of days off”.
Mr Colwell stated that after the incident he ceased work with the respondent and “went his way”. A few years later he again met Mr Cummings when he did one day’s work at Tomingley out of Dubbo. Mr Cummings complained at that time that he experienced dizziness when he put his head down. Mr Colwell has not worked with Mr Cummings since that day.
There is in evidence a copy of correspondence from Mr Cummings’s solicitors addressed to the respondent’s insurer dated 20 April 2010 which encloses a copy of a permanent impairment claim dated 29 April 2010. That claim was in respect of 100 per cent loss of vision of the left eye and included a claim pursuant to s 67 in the sum of $35,000. Enclosed with that correspondence was also a report of Dr Delaney dated 29 July 2008. The date of injury was specified as being 1993.

A copy of correspondence dated 17 August 2010 from the respondent’s insurer to Mr Cummings is in evidence. That correspondence gives notice of denial of liability and particularises the reasons for that denial. Those issues which were raised at the hearing before the Arbitrator were a denial of the occurrence of injury, a denial that Mr Cummings’s employment was a substantial contributing factor to his eye injury, and that he was not a worker within the meaning of the workers compensation legislation.

Medical evidence

The report of Dr Delaney dated 29 July 2008 is in evidence. That report was obtained for the purpose of presenting Mr Cummings’s lump sum claim. Dr Delaney examined Mr Cummings on 21 July 2008, at which time a history was recorded concerning injury in 1993. Mr Cummings was unable to remember the exact date. The injury was described as occurring when Mr Cummings was working as a shearer, when he was “kicked in the left side of the face and head by a ram”. He developed severe swelling and bruising around his left eye at that time and it was further recorded “but as he had had several black eyes in the past he did not seek medical attention”. Further history was recorded concerning treatment by Dr Atkins of Dubbo approximately two or three years after the incident.
Dr Delaney further records that, in approximately 2002, Mr Cummings had been diagnosed as having a cataract, and that he had undergone cataract surgery at about that time by “another eye doctor, Dr Henry Lieu [sic, Liu]”. In February 2008, Mr Cummings had developed a severe headache on walking and was informed by a fellow worker that he had a haemorrhage on the surface of the left eye. He sought treatment at Bourke Hospital on that day. Following assessment by a general practitioner at the hospital, he was transferred to Sydney by aeroplane and admitted to Prince of Wales Hospital on 18 February 2008. Treatment included injections and laser treatment, and he came under the care of an ophthalmologist, Dr Banks. Mr Cummings reported that he had “virtually no vision in the left eye”. Dr Delaney also recorded that Mr Cummings suffered a severe laceration to his hand due to his difficulty seeing, and that he had ceased working as a shearer.
Following a physical examination, Dr Delaney recorded his diagnosis and opinion as to causation in the following terms:
“Diagnosis and cause of disability: Mr Cummings was diagnosed at the Prince of Wales Hospital as having a branch retinal vein occlusion secondary to raised intraocular pressure. This retinal vein occlusion was responsible for scarring and new vessel formation which resulted in haemorrhage into the eye and the need for Avastin injections and laser treatment. Mr Cummings had also developed a cataract which had been removed in 2002 and based on the history obtained, I believe it is likely that this was a traumatic cataract.
Mr Cummings gave a history of severe blunt trauma to the left eye and within 2–3 years of this he had been diagnosed as having glaucoma and although Mr Cummings did not seek medical attention I believe that on the balance of probabilities he has suffered a secondary glaucoma as the result of severe blunt trauma to the anterior segment of the left eye which was associated with a fractured cheekbone. I believe that Mr Cummings subsequently developed a traumatic cataract as the result of the injuries sustained and this has been removed and an intraocular lens inserted into the eye.
Mr Cummings has subsequently developed a left ischaemic branch vein occlusion resulting in haemorrhage into the eye and new vessel formation requiring treatment and the direct cause of this is the secondary glaucoma caused by the injury sustained by the incident at work. The cumulative effect of his injuries has been the loss of virtually all his vision in the left eye. This loss of vision is responsible for his difficulty judging depth and distance.”
In a supplementary report bearing the same date, Dr Delaney assessed that “there is virtually 100% impairment of vision of the left eye due to reduced visual acuity, visual field loss and loss of the natural lens of the eye”.
A copy of correspondence between Dr Thomas Atkins, general ophthalmologist, addressed to Dr Dean Wright of Narromine dated 27 July 2004 is in evidence. Dr Atkins acknowledges Dr Wright’s referral of Mr Cummings and it is noted that Dr Atkins had previously seen Mr Cummings “quite a few years ago”. Previous history of “left implant surgery performed due to a post-traumatic, maturing cataract in his left eye” is recorded. Mr Cummings’s attendance in 2004 concerned symptoms of a red and aching left eye and there being “no sight in it”. Dr Atkins stated, “I am sure this glaucoma condition is related to the sickness of the eye pre-operatively and there is a possibility that the pressure has been so high for so long it may have destroyed precious structures at the back of the eye”.
There is in evidence a copy of correspondence dated 18 February 2008 from Dr Keith Downer, general practitioner of Bourke, addressed to Dr Sofia Dauber, eye registrar at Prince of Wales Hospital, Sydney. That correspondence notes that Mr Cummings had presented on that day with “uveitis (? cause)”. Dr Downer had arranged for Mr Cummings’s referral to Prince of Wales Hospital for investigation of his left eye condition. It was recorded that he had suffered a red, sore left eye for a period of two days. History was recorded as follows: “Trauma to ? vitreous, butted by ram, 1997”. Also recorded was “Cataract L 2002”. It was also noted that Mr Cummings was “under Dr Atkins Dubbo, last visit Aug 07”. These notations are Dr Downer’s “progress notes” concerning consultation which occurred on Monday 18 February 2008 at 9.40 am.
Clinical notes and a discharge summary of the South Eastern Sydney Illawarra Health Service, relating to Mr Cummings’s treatment at Prince of Wales Hospital in February 2008, are in evidence. Those notes include matters recorded by Dr Dauber, ophthalmic registrar, and Dr Tan, described as eye resident. The history recorded by Dr Dauber includes a notation of trauma to the left eye “butted by a ram 1997”. History recorded by Dr Tan included the following notation: “Had poor vision in L since trauma in 97”. Those clinical notes also include an entry, author not identified, which appears to have been made on 21 February 2008, that Mr Cummings had reported that his left eye was comfortable and provided a history of “L eye trauma 10–15 years ago”.
The discharge summary dated 22 February 2008 records that follow-up arrangements had been made, being a review by Dr Banks/Dr Barnes in six weeks at Orange, New South Wales.
Attached to Mr Cummings’s application was a two-page document which was described in the index as being “patient medical history, Western Plains Medical Centre”. It became clear at the hearing of this appeal that those documents had been erroneously described in the index. It was agreed by the parties that those documents were in fact the clinical records concerning treatment of Mr Cummings by Dr Thomas Atkins. The earliest consultation recorded was that occurring on 22 July 2004.
Mr Cummings also relied upon the evidence as found in the report of Dr Peter Duke, ophthalmic surgeon, dated 7 July 2010. That report had been arranged by the respondent’s insurer at the time liability was being assessed. The history recorded by Dr Duke was that, at some time in 1993, Mr Cummings was kicked about the left side of the face and head by a ram while shearing for the respondent. Mr Cummings did not attend for any treatment at that time, but consulted Dr Tom Atkins some two years later. In 2002, he was found to have a cataract in the left eye, which led to surgery conducted by “Dr Henry Liu”, an eye surgeon of Orange. That surgery involved removal of the lens cataract. Mr Cummings was urgently admitted to the Prince of Wales Hospital on 18 February 2008, at which time he was found to have “a raised eye pressure due to a thrombosis in a retinal branch vein”.
Dr Duke stated at page 2 of that report that “there will be a permanent visual impairment as a consequence of the presumed concussive injury sustained on 30 June 1993 with [the respondent]”. At page 4 of the report, Dr Duke states:
“Mr Thomas Cummings suffered a severe concussive injury to his left eye around 1993. This blunt eye injury has resulted in a secondary glaucoma and traumatic lens cataract. Subsequently, an ischaemic left retinal branch vein occlusion occurred resulting in a haemorrhage into the left eye with further visual impairment.”
At page 5 of his report, Dr Duke noted that “over the course of his employment as a shearer he had received several black eyes and thus the injury at work on 30/06/1993 may represent an aggravation of a pre-existing injury to the left side of his face”. Dr Duke later notes in his report that:
“the injury is more likely the initial substantial injury with fracture of the left maxilla and concussive trauma to the left eye and its sequelae in the incident of 1993. Any such aggravation would be ongoing with the subsequent consequences of that current injury of 1993.”
It was Dr Duke’s opinion that Mr Cummings had suffered a 100 per cent impairment of the vision of his injured left eye.
Correspondence from Dr Barry Barnes, ophthalmic surgeon of Burwood and Orange, dated 22 February 2008 addressed to Dr Atkins, was in evidence. Dr Barnes stated that Mr Cummings had been reviewed by him at the request of Prince of Wales Hospital. History recorded by Dr Barnes included “blunt trauma to the left eye and of cataract surgery in 2001”. Dr Barnes diagnosed the presence of “a fresh vitreous haemorrhage”. Treatment, as described in that correspondence, was to be followed up in Orange.

Respondent’s evidence

The respondent tendered in evidence a great many of the documents that had earlier been tendered on behalf of Mr Cummings. The complete investigation report compiled by Mr Tony Hitchcock was attached to the respondent’s Reply. That report included copies of records of interview between Mr Hitchcock and Mrs Shirley Melville, the widow of the late Mr Melville, dated 18 June 2010, and of Ms Geraldine Melville, the daughter of Mrs Melville and the late Mr Melville, dated 20 June 2010. Mrs Melville stated that her late husband passed away in 1996 and that the property had been sold in December of that year. Mrs Melville was informed by Mr Hitchcock of the allegation made by Mr Cummings concerning injury while working for her late husband. Mrs Melville stated that she could not recall ever hearing of such an accident, and she had never observed “an injury on Thomas Cummings”.
Ms Geraldine Melville is recorded as stating that she had no knowledge of the injury as alleged by Mr Cummings. All documents relating to the property “had been destroyed”. Ms Melville stated that, when she went through her late father’s desk many years ago, she did not locate anything relating to Mr Cummings being injured. She stated that she had never observed Mr Cummings with a head/face injury.
Attached to the Reply was a document described in the index as “Patient Medical History of Dr Thomas Atkins”. This is a two-page document which appears at page 80 and 81 of the Reply. This is a more complete copy of the document tendered on behalf of Mr Cummings described at [48] above. Again, the first recorded consultation is noted as 22 July 2004.
A number of other documents are relied upon by the respondent. That material is not strictly relevant to the matters raised on appeal and it is not proposed to summarise that evidence.

Mr Cummings’s oral evidence

The first matter in respect of which Mr Cummings was cross-examined concerned the disputed relationship of employer/worker. That matter is not relevant to the issues raised on this appeal and it is not proposed to summarise that evidence.
Counsel proceeded to cross-examine Mr Cummings concerning the alleged occurrence of injury and associated matters. That evidence is summarised by the Arbitrator between [32] and [34] of Reasons. When questioned, Mr Cummings denied ever suffering other injuries to his head or eye, and specifically denied having been butted in the head by a ram. He stated that he “might get hit under the jaw but nowhere near your eyes like”(T8.47). He denied that he informed Dr Delaney that he had had several black eyes in the past, being before 1993. Mr Cummings also denied that he had informed Dr Duke that, over time working as a shearer, he had received several black eyes.
When questioned about medical treatment, Mr Cummings said that he had sought medical attention a few days after the incident in 1993. When questioned as to who he consulted, he replied, “Probably just the outpatients at Dubbo” (T9.32). He stated that he remembered going to the Dubbo Hospital. He had attended the emergency department. Mr Cummings was also questioned by counsel concerning his statement to Mr Hitchcock concerning treatment following the injury.
Mr Cummings confirmed during questioning that the only injury to the left side of his head near his eye was in 1993, when he was kicked by the ram. He also confirmed that, whenever questioned, that was the history that he provided. Counsel put to Mr Cummings that he had told a doctor at Prince of Wales Hospital that he had been “butted by a ram in 1997” (T11.47). This was denied by Mr Cummings. He stated that he was in a lot of pain and “was probably full of pain-killers and that” (T12.2). When questioned concerning the contrasting history given at the hospital and as alleged in the claim, Mr Cummings replied, “I’ve never rode on an aeroplane before in your life and was in tremendous pain and that” (T12.16).
When re-examined by counsel, Mr Cummings stated that he was not “quite sure” whether he told his solicitors about his attendance at Dubbo Hospital. Following discussion as recorded in the transcript, counsel tendered a number of documents (T12.55), being a letter from Mr Cummings’s solicitors to the Greater Western Area Health Service dated 12 August 2010 with an enclosed authority signed by Mr Cummings and a reply to that correspondence from the health service dated 30 August 2010, which stated:
“We have received your letter requesting the medical records pertaining to Thomas Cummings (date of injury: 30 June 1993).
A thorough search has been made of our records at Dubbo Base Hospital, unfortunately the record of this patient was destroyed in 2008 (in accordance with the NSW Health Department’s retention policy).”
That correspondence was signed by Ms Sue Palmer, medicolegal officer/health information manager. Those documents were admitted into evidence by the Arbitrator.
Counsel also tendered a copy of correspondence forwarded to Dr Delaney by Mr Cummings’s solicitors dated 26 May 2008. That correspondence related to the medicolegal examination conducted in July 2008 and records that Dr Delaney was provided with copies of the records of the Prince of Wales Hospital. That document was admitted into evidence.

Submissions before the Arbitrator

Counsel appearing on behalf of the respondent presented argument concerning the issue of “worker” which is not relevant to the matters raised on this appeal and need not be addressed. He proceeded to present argument concerning the suggested failure by Mr Cummings to discharge the onus of proof upon him to establish that the cause of the injury giving rise to the impairment in vision was a kick by a ram as alleged in the course of his employment with the respondent in 1993.
Counsel pointed to numerous inconsistencies concerning the description of the “mechanism of injury” as described by Mr Cummings and by Mr Colwell in their evidence. Other inconsistencies in Mr Cummings’s evidence generally were noted in the course of argument. Those matters included conflict as to when Mr Cummings first sought medical assistance following the alleged injury, inconsistency between evidence of Mr Cummings and the history as recorded by both Dr Delaney and Dr Duke concerning his experience of black eye injury in the past, the conflict between the histories as recorded at Prince of Wales Hospital concerning an injury in 1997 when butted by a ram and the evidence of Mr Cummings as to injury occurring in 1993 while working for the respondent. Counsel emphasised the absence in the medical evidence of corroboration concerning the alleged history of injury. Particular attention was directed in argument to the state of the clinical notes produced by Dr Atkins.
Counsel, in the course of submissions, stated, “something may have happened in 1993” (T22.39). It was the respondent’s case that the Commission “should not accept [that Mr Cummings’s] condition was caused by something that occurred in 1993” (T22.38). It was argued that the medical practitioners who had “ascribed the cause of his condition to that event have been misled by the lack of history” (T22.41). Those practitioners, it was argued, treat the alleged 1993 injury “as the initiating cause because that’s the only history they’ve got” (T22.45). It was put that an award should be entered in favour of the respondent.
Counsel for Mr Cummings, following argument concerning the issue of “worker”, submitted that the Commission would be satisfied as to the occurrence of the injury as alleged and concerning the causal nexus between that incident and the loss suffered. Any inconsistency in Mr Cummings’s evidence may be explained, it was argued, by the effluxion of time and, in respect of some matters, by reason of pain and stress at the time histories were given. It was put that the version of events was substantially corroborated by the evidence of Mr Colwell and that Mr Colwell would be accepted as a witness of truth.
As to the respondent’s arguments concerning the credit of Mr Cummings, counsel noted the history concerning his limited education, and it was suggested that any contradiction in his evidence was “inadvertent”. The recorded history concerning the occurrence of black eyes in the reports of Dr Delaney and Dr Duke were said by counsel to be “mistaken” (T28.13)
Counsel submitted that it would be accepted by the Commission that Mr Cummings was kicked in the head by a ram in 1992 or 1993. It was argued that medical opinion supports the existence of a causal connection between the injury as described by Mr Cummings and the impairment. It was put that, while the medical witnesses relied upon the history as given, there was no evidence of any “intervening event of any great note that would give any other reasonable cause for the injury” (T30.19).
Counsel for the respondent submitted in reply as follows (at T33.45):
“The concept that the [a]pplicant suffered an injury in 1993 is probably not disputed. The real question is what led to the eye condition. Now the only history that the doctors have got and brought to your attention by my learned friend is straight from the [a]pplicant himself.
That the events had their genesis in 1993, there’s not one bit of corroborative material to support 1993 other than that which the [a]pplicant tells the doctor or is referred to in statements.”
It is recorded in the transcript (at T34.24) that, in response to a question put by the Arbitrator, counsel for the respondent agreed that, as suggested by the Arbitrator, it was the respondent’s position “that it’s probable that something happened in 1993”. Counsel then stated that “the causative event” occurred “much later”.

The Arbitrator’s determination

Following a summary of the evidence and of submissions put on behalf of each party the Arbitrator proceeded to consider the question as to whether the evidence established that Mr Cummings at relevant times was a worker within the meaning of the 1987 Act. That issue was determined in Mr Cummings’s favour following which the Arbitrator proceeded to consider the question as to whether injury had been proven.
Following an analysis of the evidence including the documentary material which was before him, the Arbitrator concluded that there had been a number of “discrepancies” in Mr Cummings’s evidence and that he was, at best, “an unreliable historian”. The Arbitrator made an observation as to the absence of corroboration as to when Mr Cummings first consulted Dr Atkins. The evidence of Dr Atkins did not relate to any consultation earlier than 22 July 2004. The Arbitrator concluded that he had “significant reservations” concerning Mr Cummings’s evidence which he summarised at [93] of his Reasons. The Arbitrator also concluded that “certain matters of his evidence cast doubt on [Mr Cummings’s] credit”. The Arbitrator was not satisfied that there had been a “consistent history of the alleged cause of [Mr Cummings’s] left eye injury”.

The Arbitrator ultimately reached the conclusion that he was not satisfied that “the incident in 1993 was the cause of Mr Cummings’s eye injury”. An award in favour of the respondent was entered.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act as amended by the Workers Compensation Legislation Amendment Act 2010: Sch 6 Pt 19G cl 8 to the 1987 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The written submissions which accompany the appeal brought by Mr Cummings do not contain a succinct statement of the grounds upon which the Arbitrator’s determination is challenged. Those submissions merely assert that “the Arbitrator’s determination as to the question of injury is at the heart of this appeal”. The submissions, which were reiterated at the hearing of the appeal, identify three distinct matters which, it is argued, were determined by the Arbitrator in error.
The first of those matters complained of is the order made by the Arbitrator permitting cross-examination of Mr Cummings. Between [16] and [19] of submissions a number of arguments are advanced by Mr Cummings upon which it is put (at [20] and [21]) that the Arbitrator’s discretion had “miscarried in permitting cross-examination” and that such miscarriage had occurred by reason of the Arbitrator’s failure to have proper regard to “all of the relevant considerations”. It appears that the argument being advanced is that Mr Cummings had been denied procedural fairness.
The complaints made concerning the manner in which the respondent’s application to cross-examine was determined by the Arbitrator are to be found at [16] of submissions which is as follows:
“The arbitrator should not have permitted cross-examination for the following reasons
a.No notice had been provided
b.The normal practice of the Commission and indeed the relevant practice direction (WCC PD 1) does not support cross-examination.
c.It was unfair to ask the appellant questions about other person’s versions of events where
i.The respondent was dead
ii.The insurance investigator was not also made available for cross-examination
iii.Mr Colwell (the only living eye-witness to the accident other than the appellant) was not made available despite having been interviewed on behalf of the respondent
iv.The doctors (to whom apparently contradictory histories had been provided) were not available to confirm their recollection of such histories.
d.Any concerns about the appellant’s evidence could be dealt with by way of submissions because the rule in Browne v Dunn (1893) 6 R. 67, H.L. was not applicable.
e.Having regard to the educational background of the appellant (which was clear from the statement material already before the arbitrator), it was unfair to expose him to cross-examination without notice and without the ability of his counsel to ask questions on the same subject matter of the investigator and Mr Colwell.”
The submissions, at [16b], make reference to a suggested relevant Practice Direction. The complaint is made that no notice concerning cross-examination had been given and it is put that practice before the Commission “does not support cross-examination”. Whilst it is correct, as acknowledged during argument conducted before the Arbitrator, that no notice had been given concerning cross-examination of Mr Cummings during the course of the teleconference conducted by the Arbitrator before the matter was set down for conciliation/arbitration, such notice, in my view, is not strictly required.
The practice of the Commission is plainly stated in the Guideline for the Practice of the Conciliation/Arbitration Process issued by the Registrar. That guideline notes under the heading “Further evidence and/or submissions”:
“Questioning or cross-examination of witnesses (including parties) will be permitted in very limited circumstances and only if the Arbitrator is of the view that it is necessary to come to a decision. Circumstances where cross-examination may be allowed could include where:
* contradictory evidence requires to be clarified or tested, or
* adverse matters material to the decision should be put to a witness when there has been no previous opportunity for these to be answered.”
The nature of proceedings before the Commission was the subject of discussion by Bryson JA in Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 4 DDCR 358 (Zheng) where it was stated (at [25]):
“The requirements of the rules for information to be lodged in advance and for statements revealing the cases of parties to be made in advance, taken with the width of the sources of information on which the Commission is authorised to act and the ways in which it is authorised to proceed, mean that assumptions upon which common law trials are conducted should not be readily carried over when testing contentions that a hearing before an Arbitrator was not conducted in a fair way. The overall and continuing duty under s 355 to use best endeavours to bring the parties to settlement acceptable to all of them must have large influence on the manner in which proceedings are conducted. The environment of contestation and the confrontational methods of the common-law trial would not usually be appropriate; there may be issues of kinds which it is appropriate to deal with in that style, and much is left to the discretion of the Arbitrator. The Arbitrator is in a good position to decide on and to impose appropriate controls on the adduction of evidence, by cross-examination or otherwise. The Arbitrator will usually be in a position to perceive whether a wish to pursue an issue has a basis, whether it is a sound basis, whether some issue or line of questions is merely exploratory, or for that matter whether questions are merely the product of inventiveness.”
The proper approach to a challenge concerning an Arbitrator’s exercise of discretion was succinctly stated by Snell ADP in Electrolux Home Products Pty Ltd v Richey & Email Ltd [2006] NSWWCCPD 242; 6 DDCR 426 (Richey) (at [45]):
“On the established principles governing appeal against an exercise of discretion, as set out in House v R (1936) 55 CLR 499, intervention will be justified where a judge at first instance has acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistaken the facts, or not taken into account some material consideration.”
Much of the cross-examination conducted by the respondent’s counsel concerned the issue of “worker” which has no relevance to matters raised on this appeal. Cross-examination to which objection is taken concerns the allegation of injury in 1993 and its circumstances. That questioning was permitted by the Arbitrator having regard to his view that there was apparent inconsistency between the evidence of Mr Cummings and matters attested to by other witnesses including Dr Delaney, Dr Duke and Mr Colwell. The Arbitrator expressed the view (at T4.15) that “[Mr Cummings’s] credit… will be significant in assisting me to determine the issues in the case…”. That view was reached following a consideration of argument presented by counsel and those authorities cited which were Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399 (Hancock), Richey and Matar v Zeineddine [2008] NSWWCCPD 51 (Matar).
Mr Cummings is correct to submit that the rule in Browne v Dunn does not preclude matters of credit being raised before the Commission in the absence of cross-examination if such issue has been raised and the witness has had a reasonable opportunity to respond (see discussion by Roche DP in Matar at [66]). However, that submission does not, in my view, afford a basis to argue that cross-examination should not be permitted.
Mr Cummings complains that it was “unfair” to cross-examine concerning the evidence of others. The complaint concerning the respondent, namely that he was deceased hence unavailable, must be rejected. There had been no evidence of the deceased in evidence nor had his business records been relied upon. Similarly, whilst the “insurance investigator”, Mr Hitchcock, compiled the report and relevant statements, he gave no evidence as to issues relevant to the dispute and I reject that argument based upon his absence at the hearing. Mr Cummings’s complaint concerning the absence of Mr Colwell and the medical experts must be rejected given that he had relied upon the evidence of those witnesses in his own case.
The Arbitrator’s reliance upon the decision of the Court of Appeal in Hancock is the subject of criticism in submissions. It seems that Mr Cummings seeks to distinguish Hancock on the facts. It is argued that the facts of Hancock, whilst involving the question of credit, are not concerned with the subjects of notice or the availability of “other witnesses”.
I have earlier rejected the arguments advanced concerning “notice” and the absence of other witnesses. In Hancock, in the view of Tobias JA, fairness and justice required that a medical expert witness be “given the opportunity of explaining the differences which ultimately caused [the Commission] to reject his opinion” (at [125]), and that the worker be given an “opportunity of answering or explaining the evidence of [other witnesses]” (at 132]).
In the present case the Arbitrator, who was aware of all the documentary evidence at the time of his ruling, held the view that Mr Cummings’s credit was a significant matter to be assessed when determining the facts and, further, that he would be assisted by hearing his evidence. Such course afforded Mr Cummings an opportunity to explain or clarify matters relevant to a determination of those issues. A refusal to permit cross-examination would have deprived Mr Cummings of that opportunity. Of equal importance was that the requirements of procedural fairness be met with respect to the respondent’s application. The approach adopted by the Arbitrator was, in my view, in accordance with those matters as stated by Bryson JA, (Handley JA and Bell J agreeing) in Zheng (at [37]):
“There is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission; and decisions whether to allow cross-examination or to limit it are discretionary decisions which must be made in a context of the legislation and practices which the Commission follows, and, at least as importantly, in the context of the facts and circumstances of the case under consideration.”
Mr Cummings has failed to demonstrate any error on the part of the Arbitrator in the exercise of his discretion to permit cross-examination. For the reasons stated, I am of the view that Mr Cummings’s argument that the Arbitrator’s discretion has miscarried must be rejected.
A second argument is advanced by Mr Cummings which suggests that the Arbitrator has failed to properly consider those authorities to which he referred when determining the respondent’s application. It is asserted that the decision in Richey “is not on point”. It is argued that, unlike the present matter, there was in Richey “clearly a potentially significant credit issue”. Having regard to the facts of Richey, which concerned suggested inconsistency between history given by the worker and matters recorded in medical records, I conclude that the Arbitrator’s reliance upon that which was there stated by Snell ADP was relevant to his adjudication of the application, in particular in his consideration of both the Commission’s practice and the facts and circumstances of the present case.
Mr Cummings argues that the Arbitrator had “failed to properly explore” the decision of Roche DP in Matar. Particular reference is made to the Commission’s observations in that matter concerning the proper approach to requirements concerning cross-examination having regard to the rule in Browne v Dunn. I have earlier (at [86] above) dealt with this assertion and for the reasons stated I conclude that no error in any relevant sense has been made out concerning the Arbitrator’s reliance upon that which is stated in Matar.
The third, and principal, argument advanced by Mr Cummings is that the Arbitrator had erred in finding that he had failed to prove that the condition of his left eye had been caused by the alleged 1993 injury. It is put that the wrong standard of proof had been adopted by the Arbitrator and that he “appears to have virtually applied the ‘beyond reasonable doubt’ standard” (at [34] of submissions). In support of this argument reliance is placed upon the decisions of the Court of Appeal in Palmer v Dolman [2005] NSWCA 361 (Palmer) and Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen).
At the hearing of the appeal Mr Cummings argued that the material admitted as additional evidence fortified his allegation of injury and the causal relationship between that injury and the state of his left eye. That additional evidence, it was argued, considered together with Mr Colwell’s evidence, would lead to a finding that “there was a butt [sic] to the face by a ram in approximately 1993”. Counsel also made reference to Dr Liu’s report addressed to Dr Atkins dated 24 August 2000 in which a history of being “kicked by a ram some three to five years ago” is recorded. It was put that Mr Cummings was confused as to the date but that, having regard to the suggestion that some “phantom second event in 1997” had occurred, Mr Cummings “certainly hasn’t said [he] had two injuries”.
The respondent, in his written submissions, argues that the Arbitrator was correct when he concluded (at [29(f)] of Reasons) that Mr Cummings’s credit “was in issue in the proceedings”. Those submissions seek to emphasise that liability of the respondent may arise only upon proof “that the incident occurred whilst employed by the respondent, and not at some other time” (at [17] of submissions). It is put that “the date of injury, therefore, is fundamentally important”.
The respondent argues that, having regard to the evidence, “it could not be said with any certainty when the incident that caused the subject injuries occurred”. The general thrust of submissions was that, having regard to the shortcomings in the evidence and the Arbitrator’s conclusions as to the credit of Mr Cummings, the findings made demonstrate no error.
It is submitted that the Arbitrator had adopted the correct standard of proof when assessing the evidence and making his findings. It was put that the Arbitrator was not “satisfied that the alleged 1993 incident was the likely, or more probable, cause of the injury” (at [23] of submissions).
The correctness of the Arbitrator’s finding that “he was not satisfied that the 1993 incident caused [Mr Cummings’s] injuries” is supported, as argued at [24] of submissions, by an examination of the evidence which demonstrated “inconsistent histories of the alleged cause of the injuries given by [Mr Cummings]”, the content of medical reports which “gave different dates and causes of the injury” and the “serious doubt” concerning Mr Cummings’s credit.
At the hearing of the appeal the respondent argued that the additional evidence did not advance Mr Cummings’s case. In particular it was submitted that the first consultation date noted in Dr Wright’s clinical record “appears to be 1994” and that those notes do not record any eye problems “going back to some time before 1996”. Counsel noted that the report of Dr Lui was the earliest record of left eye injury. That history, being that Mr Cummings had been “kicked by a ram some three to five years ago” would not be “sufficient to displace the Arbitrator’s analysis of the facts”. It was put that the history as recorded “was more consistent with the 1997 date than any other date”.
Reference was made in submissions to the notes compiled by Dr Tan at Prince of Wales Hospital. It was put that those notes had been “carefully made” and that the reference to the year 1997 was more likely based upon history taken from Mr Cummings rather than reliance upon the letter of referral from Dr Downer. It was put that no error by the Arbitrator had been identified.
The appellant’s challenge made on appeal is directed to the Arbitrator’s findings of fact. Whilst the submissions do not specifically identify those findings challenged there is a reference (at [26]) to those matters appearing between [101] and [103] of Reasons where it was stated by the Arbitrator:
“101.If I am not satisfied that the incident in 1993 was the cause of the applicant’s eye injury, it is not necessary for me to make a finding as to when [sic] as to the date of the injury which caused the current problems. It may have been in 1997 (in which case the applicant cannot have been employed by the respondent), or at some other time. I need to be persuaded on the balance of probabilities that the incident of 1993 relied upon by the applicant was the injury which gave rise to his significant injury in the left eye.
102.Having regard to all of the evidence I am not so satisfied. I have reservations about the applicant’s evidence, both as to its reliability and, so far as certain matters are concerned, its credibility.
103.There must therefore be an award for the respondent.”
The Arbitrator’s conclusion that he was not satisfied “that the incident in 1993 was the cause of [Mr Cummings’s] eye injury” had the consequence that the allegation of injury had not been made out. That conclusion was, in part, founded upon an assessment of the credibility of Mr Cummings. As earlier noted (at [74] above) the Arbitrator had found that Mr Cummings was “at best, an unreliable historian”. Such a conclusion was founded upon the “discrepancies in [Mr Cummings’s] evidence” which are summarised by the Arbitrator between [69] and [81] and between [85] and [88] of Reasons. It was the Arbitrator’s opinion that, because of such discrepancies, he considered it “necessary to seek corroboration wherever possible as to the 1993 incident in order to be persuaded that it was in fact that incident which caused [Mr Cummings’s] current left eye problems”.
The Arbitrator, following a summary of Mr Cummings’s evidence in respect of which he had “significant reservations” (at [93] of Reasons) made an adverse finding concerning his credibility. It was said, (at [100]):
“100.In this case the applicant’s reliability as a poor historian is certainly open to doubt. Further, in accordance with my finding I think certain matters of his evidence cast doubt on his credit. I think that he did tell the medico legal specialists he saw that he had suffered earlier black eyes, and he did relate to the doctors I have referred to above evidence of a trauma in 1997. There has not been a consistent history of the alleged cause of the applicant’s left eye injury – it has only arisen since the date when the applicant first saw Dr Delaney on 21 July 2008. At that time, the only material Dr Delaney was supplied with was the Prince of Wales Hospital discharge summary (see exhibit ‘D’). Thereafter the applicant related the history of the 1993 incident to the investigator engaged by CGU on 15 June 2010 and to Dr Duke on 22 June 2010. This is notwithstanding the fact that the applicant apparently discussed with Dr Atkins in Dubbo on the first occasion he saw him, the incident which occurred in 1993. As I have said there is nothing from Dr Atkins to corroborate that attendance.”

The state of the evidence before the Arbitrator may fairly be described as both contradictory and confusing. It is also clear, having regard to the perceived need to supplement the evidence on appeal, that there were significant shortcomings in the case as presented on behalf of Mr Cummings. The manner in which Mr Cummings’s case was presented had the result that the Arbitrator was, as stated by Tobias J in Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111 (at [26]):
“unfairly handicapped by having to do his or her best with medical evidence which is not always as fulsome and clear as it might be if care had been taken by the legal representatives of the parties to ensure that before the reports are tendered, any gaps, ambiguities or cryptic comments in any report are filled or clarified.”
The handicap placed upon the Arbitrator and the Commission on this appeal has, to some extent, been lessened following the tender by the parties of the additional evidence. The arguments raised may now be considered in the light of both the evidence before the Arbitrator and that additional evidence.
The Commission’s approach to this appeal which concerns findings of fact determined, in part, upon an assessment of Mr Cummings’s credibility must be guided by and conform with those matters stated by the High Court in Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 (Devries). The appeal in Devries concerned review by the Full Court of a finding as to credit made by the trial judge. It was stated by the High Court that such a finding could properly be overturned “only if it was vitiated by some error of principle or mistake or misapprehension of fact or if the affect of the overall evidence was such that it was not reasonably open to the trial judge to accept [the plaintiff] as a witness of truth” (per Deane J and Dawson J at 483). Attention must also be given to those matters found in the joint judgment of Brennan, Gaudron and McHugh JJ (at 479, omitting footnotes):
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility 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 to any substantial degree on the credibility 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’.
To succeed in his claim Mr Cummings was required to satisfy the Commission, on the balance of probabilities, that:
(a)     an incident occurred in 1993 in the course of his employment with the respondent;
(b)     the incident involved injury to his left eye in the manner alleged, and
(c)     the loss claimed was caused by that incident.
The Arbitrator’s reasoning demonstrates that he was satisfied that “an incident in 1993” occurred, but that he was not satisfied that such incident “was the cause of [Mr Cummings’s] eye injury” (at [101] of Reasons).
At the hearing of the appeal the nature of the dispute was briefly touched upon at which time it was noted that the issues before the Arbitrator were whether the injury occurred as alleged and, if proven, whether such injury was causally related to his loss. That was not the Arbitrator’s approach. He noted “differences” between the evidence of Mr Cummings and Mr Colwell without determining the question as to the probability of the event having occurred as alleged. The Arbitrator’s finding that he was not satisfied that the incident in 1993 was the cause of Mr Cumming’s eye injury does not address the primary allegation of injury made in the proceedings. I am of the view that the Arbitrator has erred in failing to determine the issue before him namely whether injury occurred as alleged.
The question before the Arbitrator required a determination as to whether, on the balance of probabilities, the events alleged had been proven by Mr Cummings. The standard of proof in such circumstances was considered by Dixon J in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 361-362 (Briginshaw) where it was stated:
“… when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
Mr Cummings’s allegation that he had been kicked by a ram in the course of his employment with the respondent is corroborated by the evidence of Mr Colwell. Whilst there are differences in detail in the evidence of that witness and Mr Cummings’s evidence concerning the timing of the incident and subsequent events, I accept Mr Cummings’s submission that such differences may not be surprising given the effluxion of time between the event and making the statements. This matter does not concern an evaluation of circumstantial evidence or questions as to inferences to be drawn from such evidence. In those circumstances, the authorities cited in the course of submissions, namely Palmer and Nguyen whilst relevant are not strictly apposite to the task before the Commission.
Whilst the Arbitrator noted the differences in detail between the evidence of Mr Cummings and Mr Colwell, there was no finding adverse to the credit of Mr Colwell. His evidence concerned the occurrence of an event of significance such that he was able to recall some considerable detail many years after the event. Notwithstanding the differences in detail noted by the Arbitrator, I am persuaded that the incident occurred as alleged and that it involved injury to Mr Cummings’s left eye, and I so find. The questions as to when the injury occurred and whether there is a causal nexus between the injury and Mr Cummings’s loss of vision are addressed below.
The evidence before the Arbitrator plainly established that Mr Cummings had, on different occasions, nominated various dates on which the subject injury occurred. It is his case that the injury occurred in 1993, and that history has been relied upon by Dr Delaney and Dr Duke. In contrast it appears that Dr Downer of Bourke was informed by Mr Cummings that he was butted by a ram in 1997. That history is also recorded by Dr Dauber of the Prince of Wales Hospital. Dr Tan had recorded that Mr Cummings had had poor vision in his left eye “since trauma in 97”. The additional evidence tendered on this appeal establishes that Mr Cummings has at all relevant times been a very poor historian concerning dates including those relevant to non-contentious matters. By way of illustration Mr Cummings has reported that Dr Lui’s treatment of his cataract occurred in 2002. The additional evidence, being the report from Dr Lui to Dr Atkins dated 24 August 2000, confirms that the cataract procedure took place in August 2000. The Arbitrator did not have the benefit of that evidence. The additional evidence also establishes that Dr Wright referred Mr Cummings to Dr Atkins, whose clinical notes are clearly incomplete, for treatment of his left eye in August 2000. The evidence does not establish whether that was the first occasion Dr Atkins had been consulted.
The Arbitrator found that a consistent history of injury occurring in 1993 had “only arisen since the date when [Mr Cummings] first saw Dr Delaney” in July 2008. It is of significance in my view that the Arbitrator has not made reference to the history as recorded by the Prince of Wales Hospital noted at [46] above of “L eye trauma 10-15 yrs ago”. It may be seen that such a history is consistent with the injury having occurred some time between 1993 and 1998.
It is reasonably clear that Mr Cummings sought advice concerning his rights shortly before his consultation with Dr Delaney in July 2008. His evidence is that he determined the year in which the subject injury occurred having regard to the birth date of his son and his moving residence. Such manner of estimating a date is, in my view, reasonable and may be found to be a reliable means of pinpointing a particular calendar year. It is not surprising that Mr Colwell made an estimate in terms of the date being “1992 or 1993”. What is clear, given my finding of the occurrence of injury in the course of employment with the respondent, that the incident occurred prior to Mr Melville’s death in 1996.
The history as recorded by Dr Lui, which was not before the Arbitrator, fortifies my view that Mr Cummings had received a traumatic injury to his left eye when kicked by a ram. The fact that the timeframe recorded by Dr Lui does not extend to 1993 only serves to demonstrate yet again that Mr Cummings is a poor historian. The respondent properly submits that Mr Cummings can take no comfort from the early records of Dr Wright concerning the occurrence of relevant injury in 1993. However, the handwritten clinical notes which appear to commence sometime in the early or the mid 1990s may be described as records that are economical in detail. The earliest letter of referral by Dr Wright to Dr Atkins contains no history at all other than diagnosis of a cataract in the left eye. It is clear that Dr Wright, from April 2002, was referring to the state of Mr Cummings’s left eye as involving “traumatic injury to left eye”. That description is to be found in a letter of referral to Dr Atkins dated 31 April 2002. I respectfully agree with the Arbitrator’s view that the evidentiary weight of medical records, including Dr Wright’s handwritten notes, must be assessed with caution as has been observed by the Commission and the superior Courts on earlier occasions in those decisions cited by the Arbitrator at [97] of Reasons.
It is reasonably clear that at some stage before making a claim in respect of the subject injury Mr Cummings put his mind to the question as to the likely date of that injury. His means of ascertaining the date was, in my opinion, a reasonable and reliable method of so doing. Mr Cummings denied that he had received traumatic injury to his left eye in any circumstances other than when kicked by the ram. In all the circumstances I am comfortably persuaded that the subject injury occurred in the year 1993. Both Mr Cummings and Mr Colwell gave evidence that the injury occurred in winter; however, the evidence does not permit a finding concerning the exact date of the injury.
As noted earlier in these Reasons, (at [42] and [51]), the evidence of Dr Delaney and Dr Duke establishes the causal nexus between the traumatic injury which has been established on this appeal and the loss of vision which each of those witnesses had found upon examination. There is no contrary expert evidence. In the circumstances I find that, as a result of traumatic injury received to his left eye in 1993, Mr Cummings has suffered a loss of sight in that eye and is entitled, on this appeal, to an award in his favour. The loss suffered by Mr Cummings is to be assessed by an AMS. In the circumstances the determination made by the Arbitrator should be revoked and appropriate orders are made below.

DECISION

The determination of the Arbitrator dated 9 May 2011 is revoked and the following orders are made in its place:
“1. The matter is remitted to the Registrar for referral to an Approved Medical Specialist to assess the percentage permanent loss of sight of the left eye suffered as a result of injury received in or about June 1993.
2. The evidence to be referred to the Approved Medical Specialist is to include all that documentary evidence that was before the Arbitrator and the additional evidence, being the records of Dr Wright’s practice concerning treatment of the applicant, admitted on appeal.”

COSTS

The matter is to come before the Commission following assessment by an AMS to facilitate appropriate orders and, if needed adjudication of Mr Cummings’s claim brought pursuant to s 67 of the 1987 Act. An appropriate order concerning costs of the arbitration may then be made.
The respondent is to pay Mr Cummings’s costs of the appeal.

Kevin O'Grady

Deputy President
27 October 2011

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

ASSOCIATE