DK Hospitality 2 Pty Ltd v Escott
[2024] WADC 67
•20 AUGUST 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DK HOSPITALITY 2 PTY LTD -v- ESCOTT [2024] WADC 67
CORAM: TROY DCJ
HEARD: 18 JULY 2024
DELIVERED : 20 AUGUST 2024
FILE NO/S: APP 8 of 2024
BETWEEN: DK HOSPITALITY 2 PTY LTD
Appellant
AND
SIMON ESCOTT
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE
Coram: ARBITRATOR CASHMAN
File Number : A117527
Catchwords:
Total and partial incapacity - Adequate reasons - Error of law
Legislation:
District Court Rules 2005 (WA), r 51, r 56, r 57
Workers' Compensation and Injury Management Act 1981 (WA), s 5, s 18, s 188, s 213, s 247, Schedule 1 cl 7, cl 8
Result:
Appeal allowed
Representation:
Counsel:
| Appellant | : | Mr N F Morrissey |
| Respondent | : | Mr A Gunasekera |
Solicitors:
| Appellant | : | HWL Ebsworth Lawyers (Perth) |
| Respondent | : | Haynes Robinson Lawyers |
Case(s) referred to in decision(s):
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6
BHP Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60
Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580
Dennis Wilcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267
Dettenmaier v Minister for Works [1979] WAR 203
Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55
Kanowna Belle Goldmines v Feierabend [2003] WASCA 246
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390
Kozak v Ehrhardt [2022] WASCA 165
Leighton Contractors Pty Ltd v Withers (C-19-2011)
MacMahon Holdings Limited v McKenzie [2018] WADC 28
Marks v Coles Supermarkets [2021] WASCA 176
McKay v Commissioner of Main Roads [2013] WASCA 135
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Public Transport Authority v Djano [2010] WACC C9-2010
R v District Court; Ex parte White (1966) 116 CLR 644
Ross v Corruption & Crime Commission [2008] WACC C15-2008
South Metropolitan Health Service v Jones [2024] WADC 44
Sutcliffe v General Motors Holden Automotive Limited (1998) 80 IR 142
Velez Pty Ltd v Tudor [2011] WASCA 218
Waite v Alcoa of Australia Ltd [2020] WASCA 1
West v BGC Australia Pty Ltd [2019] WADC 20
TROY DCJ:
Introduction
The employer in this matter and the appellant in the appeal is DK Hospitality 2 Pty Ltd (DKH). In May and June of 2022, DKH briefly employed the respondent worker, Mr Simon Escott, as a casual dish‑hand. Having worked for DKH for some 88 hours over a period of six weeks, on or around 14 June 2022 Mr Escott complained that he had sustained injuries to his hands. Those injuries were subsequently diagnosed as bilateral carpal tunnel syndrome (CTS). Mr Escott contended that this was attributable to his washing dishes and lifting tubs during his employment.
Mr Escott gave evidence at the hearing before the arbitrator that he had been plagued by injuries (prior to this employment), which the arbitrator summarised[1] as including post-traumatic stress disorder, anxiety, motor vehicle accidents in 2012 and 2020, dental issues and injuries to his spine, neck, ribs and right arm.
[1] Arbitrator's Reasons for Decision (RFD) [38].
In a Form 2B Workers' Compensation Claim Form, Mr Escott stated that he had no similar injury prior to this employment. However, a clinical note from a general practitioner, Dr Mark Nicholas, recorded an attendance relating to 'carpal tunnel syndrome' on 12 July 2021. An Emergency Department Summary from Albany Hospital recorded that Mr Escott attended that hospital on 24 July 2021 and that he had carpal tunnel syndrome in both wrists for which he was awaiting surgical management.
In his statement filed in the WorkCover proceedings[2] Mr Escott contended that Dr Nicholas had wrongly diagnosed him, and he simply developed wrist pain following a surfing incident. Mr Escott stated that he attended Albany Hospital on 24 July 2021 following being 'manhandled' by police during an arrest. He denied telling hospital staff that he had CTS.[3]
[2] Joint Appeal Book (JAB) pages 684 - 688.
[3] JAB page 78 (ts 45, line 10).
Counsel for Mr Escott filed detailed written submissions on 11 August 2023 and concluded those submissions by asserting that:
The weight of the medical evidence establishes that [Mr Escott] suffers from bilateral [CTS] and that he is, and has been, totally incapacitated for pre-injury and suitable alternative work, because of his bilateral [CTS].[4]
[4] Written submissions before hearing below [105].
In the hearing before the arbitrator, Mr Escott gave evidence that he had previously lied to his treating doctors about having CTS in order to obtain prescription medication.[5] He was at relevant times addicted to pain medication and had been categorised as 'a doctor shopper'[6] making it difficult for him to obtain medication.
[5] JAB page 80.
[6] JAB page 97 and 405 for example.
Mr Escott's application
Mr Escott made an application to WorkCover for a determination of liability arising from a claim for compensation under the Workers' Compensation and Injury Management Act1981 (WA)[7] (the Act).
[7] As of 1 July 2024 the Act was repealed and replaced with the Workers' Compensation and Injury Management Act2023 (WA), but the operative Act at all material times is the Act.
Following a three-day contested hearing on 21, 22 and 23 August 2023, the arbitrator, Mr M Cashman, delivered written reasons for his decision, on 16 January 2024.
Contrary to DKH's submissions, the arbitrator found first, that Mr Escott had sustained an injury as defined in the Act. There is no appeal from that decision.
Second, that Mr Escott had proved a total incapacity for work, such that an entitlement to weekly compensation payments under Schedule 1 of the Act was established. This finding is challenged by three grounds of appeal (as amended)[8] as follows:
[8] Ground 3 is out of time and I will consider that aspect separately.
Ground 1
The Learned Arbitrator erred in determining that the Respondent was entitled to payment of weekly compensation by the Appellant in the period from 14 June 2022 and ongoing pursuant to Schedule 1 of the Act.
Particulars:
(a)the Learned Arbitrator failed to consider the Respondent's evidence that he had operated and continued to operate a photography business from which he earned income therefore establishing a capacity for work;
(b)the Respondent did not adduce evidence of the amount of income received from his photography business;
(c)the Respondent failed to discharge his evidentiary onus as to what he could earn within his retained work capacity.
Ground 2
The Learned Arbitrator erred in law in that he failed to give adequate reasons for his finding of total incapacity for pre-injury and suitable alternative work, more particularly by failing to properly identify the factual basis for that finding.
Ground 3
The Learned Arbitrator erred in law in finding at paragraph [56] of his reasons that the Respondent had given evidence that 'there was little scope for full-time work in Albany other than event management etc' when there was no evidence to support such conclusion.
Relevant provisions of the Act
Liability on an employer to pay compensation arises where an injury, as defined in s 5(1) of the Act, occurs. Relevantly, s 5 of the Act defines injury to mean:
(a)a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions; or
…
(c)a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree; or
(d)the recurrence, aggravation, or acceleration of any pre‑existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree.
'Disease' is defined to include any physical or mental ailment, disorder, defect, or morbid condition whether of a sudden or gradual development.
Section 5(5) provides:
(5)In determining whether the employment contributed, or contributed to a significant degree, to the contraction, recurrence, aggravation or acceleration of a disease for purposes of the definitions of injury and relevant employment, the following shall be taken into account -
(a)the duration of the employment; and
(b)the nature of, and particular tasks involved in, the employment; and
(c)the likelihood of the contraction, recurrence, aggravation or acceleration of the disease occurring despite the employment; and
(d)the existence of any hereditary factors in relation to the contraction, recurrence, aggravation or acceleration of the disease; and
(e)matters affecting the worker's health generally; and
(f)activities of the worker not related to the employment.
By s 18 of the Act, if an injury to a worker occurs, the employer shall, subject to the Act, be liable to pay compensation in accordance with Schedule 1 of the Act. The employer is liable to pay compensation from the date of incapacity resulting from the injury: s 21.
Schedule 1 of the Act deals with compensation entitlements. Clause 7 entitles the worker to weekly payments for any period during which the worker is totally or partially incapacitated.
Under cl 7(1), when total incapacity for work results from the injury, that entitlement is to a weekly payment during the incapacity equal to the weekly earnings of the worker calculated and varied in accordance with the Schedule.
Under cl 7(2), where partial incapacity for work results from the injury, that entitlement is to a weekly payment equal to the amount by which the total weekly earnings of the worker (calculated and varied in accordance with the Schedule) would exceed the weekly amount, exclusive of payments of overtime or any bonus or allowance, which he is earning or is able to earn in some suitable employment or business after the occurrence of the injury.
Both clauses are relevantly subject to cl 7(3) dealing with cessation of entitlement to payments when the total weekly payments reach a prescribed amount.
Clause 8 provides:
Where a worker who has so far recovered from his injury as to be fit for employment of a certain kind satisfies an arbitrator that he has taken all reasonable steps to obtain, and has failed to obtain, that employment and that the failure is a consequence, wholly or mainly, of the injury, the arbitrator may, without limiting the arbitrator's powers of review, order that the worker's incapacity be treated, or continue to be treated, as total incapacity, for such period, and subject to such conditions, as the order may provide.
Here, the claim was for total incapacity under cl 7(1) of the Act. DKH accept that the reference in the arbitrator's written reasons for his decision to 'clause 7(2)' total incapacity is a typographical error.
The relevant legal principles
As the Court of Appeal (Murphy, Mitchell and Beech JJA) explained in Engine Protection Equipment Pty Ltd v Miller:[9]
50In common with other forms of workers' compensation legislation, the Act requires two forms of connection: first, a connection between the worker's employment and the injury; and, secondly, a connection between that injury and the worker's incapacity.
51The concept of injury is defined so as to provide the requisite statutory causal connection with the worker's employment.
52The focus of this appeal is on the other element of connection: the requirement that the incapacity 'results from' the injury. Satisfaction of that element does not require that the injury be the direct or proximate cause of the incapacity. It is sufficient if the injury was a material contributing cause to the incapacity. Whether the incapacity results from the injury is a factual inquiry involving a common sense evaluation of all the facts and circumstances, bearing in mind that the purpose of the inquiry is to determine whether compensation is payable by the employer because incapacity was casually related to the work‑related injury.
53Thus, more than one cause, including more than one injury, may contribute to an incapacity.
54The burden of proving the elements of the claim, and thus proving the incapacity, the injury, and that the incapacity results from the injury, lies on the worker as applicant for compensation.
[9] Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55 [50] - [54] (citations omitted).
Their Honours also held:[10]
… demonstration that an incapacity results from a particular injury does not involve any conclusion that the injury was the primary or true cause above any other possible cause(s). Rather, it is enough if the injury materially contributed to the incapacity, even if another injury or other cause also did so.
[10] Engine Protection Equipment Pty Ltd v Miller [64].
The legal principles on total incapacity
In Mitchell v Canal Rocks Beach Resort,[11] the Full Court considered an appeal from the Compensation Magistrate's Court upholding the Review Officer's dismissal of a claim for total incapacity.
[11] Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 (Mitchell).
In his judgment, Templeman J set out the following findings by the magistrate:[12]
… At the hearing of the appellant's application for weekly payments, operation of the normal rule with regard to the burden of proof resulted in the appellant being required to satisfy the review officer that he was:
(1)totally incapacitated and therefore entitled to weekly payments on that basis; or
(2)partially incapacitated, but nevertheless entitled to weekly payments as for total incapacity, either because he had complied with cl 8 of Schedule 1 to the Act or else because he had been able to establish himself as an 'odd lot'- see Ball v William H Hunt & Sons Ltd(1912) AC 496; or
(3)partially incapacitated, and therefore entitled to weekly payments in the amount of the difference between his pre‑accident earnings and the weekly amount he was able to earn in some suitable employment or business after his disability, in accordance with cl 7(2) of Schedule 1 (this alternative includes, of course, the situation where there is no suitable employment and the difference is therefore 100% of pre-accident earnings).
The review officer found that the appellant was partially incapacitated. The appellant did not rely on cl 8 or seek to establish himself as an 'odd lot'. The burden was therefore upon him to establish what he could earn in some suitable employment or business, and to demonstrate that it was less than his pre-accident earnings. By reason of Mayne Nickless v Mayne, that seems ineluctably to be the case, no matter how much or how little weight is given to the decision in Bunce.
[12] Mitchell [10].
Templeman J completely agreed with those findings.[13] I will refer to the concept of an 'odd lot' at [32] below. Here, Mr Escott's position was confined to (1), total incapacity.
[13] Mitchell [11].
Roberts-Smith J also agreed with the magistrate's approach (as set out at [78]) that:[14]
Where a worker is partially incapacitated, the onus is on the worker to establish that what he or she is able to earn in some suitable employment is less than the amount payable in respect of total incapacity, so as to give rise to an entitlement to payments as for partial incapacity in accordance with cl 7(2) of the Schedule.'
[14] Mitchell [80].
Roberts-Smith J explained:[15]
It is important to appreciate the claim which Mitchell sought to make once that for total incapacity failed, and the rationale behind it. The claim became ex hypothesi, a claim under cl 7(2) for partial incapacity. Such a claim is in effect that the only suitable employment or business which is open to the appellant is such that would give him a weekly income less than weekly compensation payments under Schedule 1. That would allow an award in an amount calculated as the difference between the two. The compensation amount would be predicated on acceptance of the proposition that the income he was able to earn, plus the compensation portion, would equate to the maximum weekly compensation calculated in accordance with Schedule 1. In the extreme situation, a worker who was found to be partially incapacitated might have no suitable employment open to him or her. In that situation, the amount of the compensation would be 100 per cent of his maximum entitlement.
[15] Mitchell [83].
His Honour concluded:[16]
Against this background, it is consistent with principle and the justice of the case that the worker has the burden of proving the case he seeks to establish. The learned Magistrate was correct to uphold the Compensation Magistrate's conclusion that Bunce was persuasive authority for the proposition that the appellant carried the burden of proving what he was able to earn in some suitable alternative employment if he was to obtain an order for partial incapacity. Given the Review Officer's finding that the appellant produced no (sufficient) evidence to that effect, there was no evidentiary onus on the respondent to show that the appellant was capable of working in a specific alternative job or jobs.
[16] Mitchell [84].
Applying this authority, if the arbitrator had found that Mr Escott had failed to establish total incapacity, Mr Escott's claim would become, as a consequence, a claim under cl 7(2) for partial incapacity with him still carrying the onus of proof as explained in Mitchell.
In Waite v Alcoa of Australia Ltd the court noted that:[17]
The arbitrator said that the appellant only advanced his case on the basis of total incapacity, and that he led no evidence of any residual earning capacity. Accordingly, even if an alternative argument were available to him in respect of partial incapacity, there was insufficient evidence to prove that matter. The arbitrator said:
As observed in Mitchell v Canal Rocks Beach Resort a worker who asserts that she is totally incapacitated ought to be prepared for the possibility that an arbitrator may not so find. If no alternative evidence that might support a finding of partial incapacity is led it will not be possible for an alternative finding to be made. The effect of this is that if the worker's claim for total incapacity fails, the worker's claim for weekly payments will fail in its entirety.
[17] Waite v Alcoa of Australia Ltd [2020] WASCA 1 [33].
Commissioner McCann, drawing on Mitchell, said the following in the case of Ross v Corruption & Crime Commission:[18]
There are three means by which a partially incapacitated worker may establish an entitlement to weekly payments which are equal to total weekly earnings.
First, as an 'odd lot' in the sense explained in Dettenmaier v Minister for Works [1979] WAR 203.
Second, pursuant to clause 7(2) of Schedule 1 if it is established that there was no suitable employment for the worker during the period of incapacity (described as an 'extreme situation' by Roberts-Smith J in Mitchell at [83]).
Third, pursuant to a deemed total incapacity pursuant to clause 8.
[18] Ross v Corruption & Crime Commission [2008] WACC C15-2008 [16].
In Dettenmaier v Minister for Works,[19] Burt CJ explained the concept of an 'odd lot' as:
Only an idea which operates upon evidence which establishes that the worker is totally incapacitated for work. It operates so as to lead one to say of a worker who by reason of his injuries and resulting loss of bodily function is 'physically incapacitated from ever earning by work any part of his livelihood', he being a person who is only able to obtain 'special employment of an unusual kind', that he is suffering a total incapacity for work. Such a worker is an 'odd lot' and in the absence of evidence that such special employment is available to him the proper finding is that total incapacity for work has resulted from the injury.
If on the facts it is found that the appellant is an 'odd lot' and in the absence of evidence to show the work was available which he was able to do, then he is suffering a total incapacity for work and no onus is cast upon him.
[19] Dettenmaier v Minister for Works [1979] WAR 203, 205.
In the present case, Mr Escott did not contend that he was an 'odd lot'. As noted at [5] Mr Escott confined his case before the arbitrator as being one of total incapacity.
The concept of an 'incapacity for work' was exhaustively explained, by reference to authority, by Sweeney DCJ in West v BGC Australia Pty Ltd.[20] I gratefully adopt and apply that analysis.
[20] West v BGC Australia Pty Ltd [2019] WADC 20 [198] - [205].
Nature of an arbitration
As Buss P, Murphy JA and Chaney J noted in BHP Billiton Iron Ore Pty Ltd v Treby:[21]
The practice and procedure in relation to dispute resolution through arbitration is governed by pt 11 div 4 of the Act.
Section 188(2) of the Act provides that the Evidence Act1906 (WA) does not apply to proceedings before an arbitrator and that an arbitrator is not bound by the rules of evidence except to the extent that the arbitration rules make them apply. The arbitrator is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
… an arbitrator may inform himself on any matter as he thinks fit, and if he considers it appropriate, may conduct all or part of a proceeding entirely on the basis of documents without the parties or their representatives or any witnesses attending or participating in the hearing.
[21] BHP Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60 [8] - [9] (BHP Billiton Iron Ore Pty Ltd v Treby CCA).
As O'Neal DCJ dryly noted in MacMahon Holdings Limited v McKenzie:[22]
That statutory provision [s 188] is one which parties seem content to abide by in arbitration proceedings, right up to the point that they receive an adverse decision.
[22] MacMahon Holdings Limited v McKenzie [2018] WADC 28 [39].
His Honour also observed:[23]
The fact that an arbitrator is not bound by the rules of evidence does not of course mean that the principles underpinning those rules should therefore simply be ignored. The historical common sense as to what makes particular evidence persuasive or gives it value for a decision maker, and how contentious facts should be proved to ensure fairness to all concerned, are not to be discarded lightly. Section 188(2)(b) of the Act itself expressly requires that hearings before arbitrators be conducted, 'according to equity, good conscience and the substantial merits of the case …'.
[23] MacMahon Holdings Limited v McKenzie [40].
Section 213(1) of the Act requires that a decision and reasons for decision of an arbitrator be given in writing where required by the arbitration rules or requested by a party. Section 213(4) provides:
(4)The reasons for an arbitrator's decision-
(a)need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and
(b)need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
The evidence before the arbitrator
The arbitrator had before him, on behalf of DKH, a report from a principal occupational therapist, Mr Brent Byrne dated 21 July 2022 and two reports from a consultant occupational physician, Dr Iyad Dayoub, dated respectively 13 September 2022 and 17 May 2023.
So far as Mr Escott was concerned, the arbitrator had before him several certificates of capacity authored by Mr Escott's general practitioner, Dr Jansz of Pioneer Health Albany from 21 June 2022 to 11 April 2023. He also had three reports from Dr Barrie Slinger, who I accept to be a highly experienced orthopaedic surgeon, dated 23 August 2022, 6 December 2022 and 18 July 2023. Having dealt with some interlocutory applications, the arbitrator heard an opening address from counsel for Mr Escott, which expanded upon the written outline of submissions already filed.
The arbitrator received evidence from Mr Escott through two witness statements and heard oral evidence from him. Counsel for DKH cross‑examined Mr Escott at length throughout 21 August, continuing into the following day, 22 August 2023. Counsel for DKH adduced witness statements from two former work colleagues of Mr Escott, Mr Sean Barton and Mr Aaron Raper, and called them to give oral evidence. Each was then cross‑examined in detail by counsel for Mr Escott. The arbitrator received documents relating to surveillance carried out on Mr Escott. Counsel delivered closing addresses on 23 August 2023.
The arbitrator's decision
The arbitrator structured the RFD, which encompassed 24 pages, as follows. In sketching out the background,[24] the arbitrator noted that injury, causation, chronology, capacity and credibility were in dispute.
[24] RFD [1] - [4].
The arbitrator then set out the legislative framework, noting the statutory definition of injury including the provisions that relate to the contraction, recurrence, aggravation or acceleration of a pre‑existing disease. The arbitrator acknowledged that the onus of proof was on Mr Escott, on the balance of probabilities, and explained the arbitration process.[25]
[25] RFD [20] - [22].
The arbitrator briefly set out the relevant principles that relate to expert medical opinion, particularly in the context of medical practitioners who did not give oral evidence, noting as follows:[26]
For an opinion to be accepted, the factual basis upon which the opinion is founded needs to be established and an expert should express their opinion in a comprehensible manner that enables the arbitrator to understand their reasoning.
[26] RFD [15].
The arbitrator referred to the present case as being the type of case where much turns on expert medical opinion.[27]
[27] RFD [14].
The arbitrator explained[28] that the relevant test of causation where there is more than one possible cause of an incapacity remains the test articulated by Parker J (Murray and Wheeler JJ agreeing) in Kanowna Belle Goldmines v Feierabend.[29] I have referred to this aspect in more detail at [21] - [22] above.
[28] RFD [18].
[29] Kanowna Belle Goldmines v Feierabend [2003] WASCA 246 [13].
Having succinctly set out the background and framework for the decision‑making process, the arbitrator then identified,[30] and in due course resolved, four issues for determination:
(a)whether Mr Escott suffered from bilateral CTS prior to his period of employment with DKH - answer 'No'.
(b)whether Mr Escott suffered an 'injury' as defined in s 5(1)(c) or s 5(1)(d) of the Act while employed by DKH - answer 'Yes'.
(c)if so, whether Mr Escott has suffered an incapacity for work resulting from that injury - answer 'Yes'.
(d)if so, whether that incapacity is total or partial, and the period(s) of total and partial incapacity - answer 'Total'.
[30] RFD [23].
Before embarking upon his analysis of the four issues as defined, the arbitrator made a number of observations about Mr Escott's credibility. The arbitrator indicated that Mr Escott's credibility would be largely determinative of each of the four issues. In other words, Mr Escott had to be a sufficiently honest and reliable witness for the arbitrator to conclude that, as Mr Escott contended, he had not in fact suffered from bilateral CTS prior to his employment; rather he suffered an injury as defined whilst employed by DKH and this had caused an incapacity for work that was either total or at least partial.
On the question of credibility, the arbitrator observed in a footnote[31] that Mr Escott had somewhat paradoxically submitted that he was 'being honest about his dishonesty'. The arbitrator referred to the progress certificates of capacity of 28 September 2022 and 17 January 2023 which respectively indicated a dose reduction of oxynorm and then having been weaned off oxynorm to suboxone. He considered that corroborated Mr Escott's evidence that he had essentially moved on from his previous chaotic and complex life, was no longer addicted and had not relapsed.
[31] RFD [40].
DKH commissioned surveillance of Mr Escott over the period 27 ‑ 29 July 2022. The nature of that evidence is set out[32] with Mr Escott's response in evidence when challenged by this footage summarised in a single paragraph.[33]
[32] RFD [27] - [28].
[33] RFD [30].
The arbitrator cited the observations of Commissioner McCann in Public Transport Authority v Djano:[34]
It is true that surveillance recordings have limitations and must always be interpreted with caution because there are well‑known pit‑falls. The symptoms of a genuine disability might be minimized by pain relief or other aids, or a person's symptoms might fluctuate. A decision‑maker must be alert for mitigatory or explanatory factors, be wary of one‑off, isolated or intermittent incidents and look for trends or corroborative features in the evidence.
[34] Public Transport Authority v Djano [2010] WACC C9-2010 [67].
The arbitrator characterised this evidence as simply circumstantial evidence of Mr Escott's physical capacity as of the period 27, 28 and 29 July. He considered that it provided a limited snapshot of Mr Escott's physical activities, although as the arbitrator noted[35] the footage shows:
•Mr Escott lifting a small child and securing the child into a car seat,
•carrying a variety of different items,
•refuelling a vehicle,
•picking up two large bags of firewood and holding one in each hand,
•pushing a loaded shopping trolley, presumably with both hands,
•loading a number of items into the back of a vehicle, and
•selecting and carrying items from a grocery store using both hands.
[35] RFD [27].
In stating[36] that this material was 'relatively limited in what can be concluded with regard to [Mr Escott's] veracity of ongoing symptoms and complaints', the arbitrator implicitly accepted Mr Escott's evidence when challenged with this footage.[37]
[36] RFD [32].
[37] RFD [30].
The arbitrator commented on the absence of any evidence from an occupational physician concerning this footage and concluded that footage of these day‑to‑day activities did not assist him in determining whether Mr Escott had the capacity to undertake the physical demands of a kitchen hand in a commercial kitchen undertaking continuous tasks with both hands.[38] Having regard to the onus of proof, I assume that the arbitrator considered that the surveillance footage did not stand in the way of Mr Escott establishing that he did not have such capacity.
[38] RFD [32] - [33].
Having set out the framework as I have explained, and having concluded that the surveillance evidence was largely irrelevant, the arbitrator then turned to consider the first of the four issues that he had identified.
Issue (1) - did Mr Escott suffer from bilateral CTS prior to his employment?
The arbitrator set out the evidence before him and the respective contentions[39] before setting out his analysis and conclusion that:[40]
On the basis of the contemporaneous materials evidence (sic) taken with the objectively established facts and the apparent logic of events, I am persuaded and find that Mr Escott did not suffer from bilateral CTS prior to his period of employment with DKH.
Issue (2) - did Mr Escott suffer a defined injury while employed by DKH?
[39] RFD [34] - [38].
[40] RFD [39] - [41].
In my view, the arbitrator's conclusion on issue (1), largely dictated the outcome of issue (2). That is because the medical evidence clearly identified the relevant injury. Once the arbitrator had satisfied himself that it was not pre‑existing, the absence of any suggestion of any other event that could have caused this injury prior to the August 2023 hearing, meant that the conclusion that it arose during Mr Escott's employment with DKH (however brief) was almost inevitable.
The arbitrator noted[41] that the parties' medical evidence would largely determine this issue and then set out the respective evidence, beginning with a summary of the reports from Dr Dayoub.[42] Dr Dayoub accepted that Mr Escott was suffering from bilateral CTS. He considered CTS to be a condition that is characterised by development over many years and so it could not be attributable to 88 hours of work over six weeks. Implicitly, Dr Dayoub contended that the condition that he accepted existed in September 2022[43] must be attributable to events that preceded May 2022.
[41] RFD [43].
[42] RFD [45] - [46].
[43] Referred to as September 2023 in the RFD but clearly September 2022.
The arbitrator then set out the medical evidence that Mr Escott relied upon. As might be expected, like Dr Dayoub, Dr Slinger concluded that the diagnosis is that of CTS (albeit with somewhat unusual features to his presentation). The arbitrator refers[44] to Dr Slinger's conclusion that the cause of the diagnosis chronologically relates to the work activity, without dealing with the issue of whether this is a condition that unfolds over a lengthy period and therefore cannot be attributable to activity that occurs within a period limited to some six weeks.
[44] RFD [48] - [49].
The arbitrator gave three reasons for preferring the evidence of Dr Slinger to that of Dr Dayoub on issue (2).[45] Properly analysed, the reason at RFD [52(a)] is not a reason to prefer Dr Slinger. Rather, it is simply a reason not to find that Dr Slinger is internally inconsistent because an earlier conclusion that he had reached was predicated on information that could be discounted for the reasons the arbitrator gave.[46]
[45] RFD [52].
[46] RFD [39] - [41].
I consider the supposed inconsistency highlighted at RFD [52(b)] at [157] of these reasons.
The arbitrator was entitled to conclude that there was no factual basis for Dr Dayoub's opinion that Mr Escott did not sustain an increased load on both wrists as a result of his employment, having regard to the evidence summarised at RFD [52(c)].
Although the basis for the arbitrator's conclusion expressed[47] concerning issue (2) is not pellucidly clear, there is no appeal against the arbitrator's finding that Mr Escott's employment with DKH caused the CTS. However, if there are limitations in the reasoning process articulated at RFD [62], which I will discuss below, the reasons to prefer Dr Slinger on a different issue[48] would not, in my view, compensate for any such limitations.
[47] RFD [53].
[48] RFD [52].
I will come to the arbitrator's reasoning process on issues (3) and (4) when I consider the merits of Grounds 2 and 3. For the moment, I note that the arbitrator reiterated his earlier conclusion that Mr Escott did not suffer from bilateral CTS prior to his employment with DKH, that he suffered a bilateral CTS injury as defined in s 5(1)(c) of the Act and his employment with DKH contributed to a significant degree to his bilateral CTS injury.[49] The arbitrator further concluded that Mr Escott is (as a result), and has been, totally incapacitated for pre‑injury and suitable alternative work.[50]
[49] RFD [67](i) and [67](ii).
[50] RFD [66], repeated at [67](iii).
Appeal to this court
As I have noted, DKH sought leave to appeal against aspects of the arbitrator's decision under s 247 of the Act.
Section 247 provides:
Appeal against arbitrator's decision made under Part XI
(1)If written reasons for an arbitrator's decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.
(2)Subject to subsection (3), the District Court is not to grant leave to appeal unless -
(a)in the case of an appeal in which an amount of compensation is at issue -
(i)a question of law is involved and the amount at issue in the appeal is both -
(I)at least $5 000 or such other amount as may be prescribed by the regulations;[51] [or]
[51] Accepted to be the case here.
…
(ii)a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;
and
(b)in any other case, a question of law is involved.
The use of the word 'involved' indicates that the court's role is not confined to the determination of pure questions of law but extends to questions of mixed fact and law.[52]
[52] BHP Billiton Iron Ore Pty Ltd v TrebyCCA [36].
I respectfully adopt the reasons (citations omitted) of Herron DCJ in BHP Billiton Iron Ore Pty Ltd v Treby,[53] the subject of the unsuccessful appeal in BHP Billiton Iron Ore Pty Ltd v Treby of the decision of the Court of Appeal:[54]
•A court or tribunal does not make an error of law merely because the court or tribunal finds facts wrongly or upon a doubtful basis.
•If a ground of appeal by a party, properly analysed, does not involve a question of law, linguistic gymnastics in the formulation of the ground cannot alter the position.
•A ground that asserts a decision is against the evidence and the weight of the evidence does not raise an issue involving a question of law.
•There is no error of law simply in making a wrong finding of fact.
•If there is evidence, or if there are available inferences which compete for the judge's acceptance, no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another.
[53] BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6 (BHP Billiton Iron Ore Pty Ltd v Treby DC).
[54] BHP Billiton Iron Ore Pty Ltd v TrebyCCA [41] - [42].
Further, so long as a particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning - there is no error of law.[55]
[55] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356 (Mason CJ).
In Australian Broadcasting Tribunal v Bond[56] Mason CJ cited,[57] with approval, the observation of Menzies J in R v District Court; Ex parte White:[58]
Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg illogical) inference of fact would not disclose an error of law.
[56] Australian Broadcasting Tribunal v Bond.
[57] Australian Broadcasting Tribunal v Bond (356).
[58] R v District Court; Ex parte White (1966) 116 CLR 644, 654.
Mason CJ then held:
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
As Herron DCJ correctly found in BHP Billiton Iron Ore Pty Ltd v Treby,[59] relying upon a medical report which was said by the other party to be of no probative value is not an error of law. Equally, accepting an expert medical opinion for one party vis-à-vis an opposing opinion does not amount to an error of law, although it might be if it can be inferred that an arbitrator considered that preferring one report was determinative in and of itself of the issues before him/her.[60]
[59] BHP Billiton Iron Ore Pty Ltd v Treby CCA [54], [72] - [75].
[60] BHP Billiton Iron Ore Pty Ltd v TrebyCCA [65] - [71].
In BHP Billiton Iron Ore Pty Ltd v Treby the court concluded that:[61]
'Properly analysed', the appeal to the primary judge involved the question of whether the arbitrator erred in fact in his findings as to the nature of the respondent's injury and what caused it, in reliance on the evidence of Mr Wong [a medical expert] and the respondent. The primary judge was correct to conclude that, in substance, the appeal did not involve a question of law.
[61] BHP Billiton Iron Ore Pty Ltd v Treby CCA [54].
As I have noted, DKH have not appealed the findings on issues (1) and (2). Nor does DKH contend that the arbitrator's reasoning was unreasonable in the Wednesbury sense, namely that it was so unreasonable that no reasonable arbitrator could have made it.
As Buss (JA) noted in Paridis v Settlement Agents Supervisory Board:[62]
A ground of appeal that a tribunal has failed to take into account a consideration which, in the circumstances, it was bound to take into account, does, however, allege an error of law. There is a distinction between failing to take into account relevant considerations which a tribunal is obliged to take into account, on the one hand, and failing to take into account a particular piece of evidence, on the other.
[62] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [57].
Consistently with these principles, in Waite v Alcoa of Australia Ltd the court noted[63] that whether the evidence ought to have been accepted as sufficient to establish a fact, is itself a question of fact. However, as their Honours noted:[64]
There is a distinction between the party bearing the onus of proof [in this case, Mr Escott] and the party not bearing the onus of proof [here, DKH]. If an arbitrator finds a fact proved, a party [in the position of DKH] may contend that the evidence is not capable of establishing the fact. If accepted, that is an error of law.
[63] Waite v Alcoa of Australia Ltd [99].
[64] Waite v Alcoa of Australia Ltd [100].
As Jenkinson J held in Dennis Wilcox Pty Ltd v Federal Commissioner of Taxation:[65]
If a submission worthy of serious consideration and seriously advanced is not dealt with, one ought to infer that it has been overlooked, giving rise to an error of law.
[65] Dennis Wilcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267, 276.
Finally, a failure of an arbitrator to give reasons, or adequate reasons, for a decision is an error of law. I will return to this aspect in more detail when considering Ground 2.
If a question of law is involved, the grant of leave to appeal lies in the discretion of the court. Ordinarily, if a question of law is involved leave should be granted if, in all the circumstances of the case, it is in the interests of justice to do so.[66]
[66] BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [20] (Buss JA).
In Pacific Industrial Co v Jakovljevic Wheeler JA held as follows:[67]
To the extent that the commissioner's reasons might be understood as suggesting that the commissioner is precluded from considering or reviewing errors of fact, he has, in my respectful view, erroneously confused a necessary precondition to the grant of leave (the existence of a question of law) with the task to be undertaken during the course of a review.
As to the question of what a 'review' entails, it is to be noted that the review is ordinarily conducted on the materials before the arbitrator: s 247(6). It is not a hearing de novo.
[67] Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [19] - [20].
Her Honour noted[68] what Kirby P wrote in Boston Clothing Co Pty Ltd v Margaronis:[69]
This suggests the need, on the part of the aggrieved party, to provide some proper basis for disturbing the decision under challenge. Invoking the review procedure does not sweep aside the effect of the decision. It remains valid unless the Judge, on review, otherwise orders.
[68] Pacific Industrial Co v Jakovljevic [20].
[69] Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580, 586.
Her Honour found:[70]
In my view, the statutory framework, and the policy considerations to which Kirby P referred, support the conclusion that a review pursuant to s 247 is not limited merely to the correction of errors of law. It is broader than an appeal in the strict sense. As Pullin JA said in Sotico, once leave is granted the commissioner is obliged to conduct a 'real review'.
[70] Pacific Industrial Co v Jakovljevic [24].
Her Honour also stated:[71]
As I noted earlier, the commissioner can, and I understand often does, consider in a single hearing both the application for leave and the appeal itself.
[71] Pacific Industrial Co v Jakovljevic [25].
Finally, her Honour observed:[72]
… Before us, the appellant was not able to point to any 'proper basis' for disturbing the decision of the arbitrator, in addition to those identified in grounds 1 to 8 inclusive. Rather, it was suggested, speculatively, that if the commissioner had undertaken a 'review' in the sense contended for by the appellant - that is, if the commissioner had just ignored the arbitrator's decision and started again - the commissioner might have arrived at a view different from that of the arbitrator. That is not a proper basis for a review.
[72] Pacific Industrial Co v Jakovljevic [26].
The decision in Pacific Industrial Co v Jakovljevic was confirmed as correctly decided by a coram of five judges in Marks v Coles Supermarkets.[73]
[73] Marks v Coles Supermarkets [2021] WASCA 176 [5] (Marks).
Conventionally, when the application for leave to appeal and the appeal are heard together, the question of leave is dealt with after considering the merits of the proposed grounds of appeal. If the proceedings are conducted in that way, then the court will be in a position at the end of the hearing to either grant leave and uphold, or dismiss the appeal or refuse leave to appeal.[74] Here, both parties approached the appeal hearing on the basis that I should determine both the question of leave and the appeal together. There was a further issue in terms of whether leave should be granted in respect of Ground 3 given that it was out of time.
[74] BHP Billiton Iron Ore Pty Ltd v Brady [14] (Pullin JA, Wheeler & Buss JJA agreeing).
I now turn to what it is that DKH assert has gone wrong in this case.
Consideration of Ground 1
By this ground, DKH essentially contend that in a situation where there is evidence of a business from which (at the time of the hearing) a worker earned income, that ineluctably leads to a conclusion that there is a capacity for work and hence it was not, as a matter of law, open to the arbitrator to conclude that there was a total incapacity for work under cl 7(1).
Further, drawing on the authorities to which I have referred, in particular Mitchell, where a worker fails to prove total incapacity, if he fails to adduce evidence of what he could earn within his retained work capacity, the onus of proof being on him, it is not open to an arbitrator, as a matter of law, to conclude that partial incapacity has been established. In this case, therefore, it was not open to the arbitrator, as a matter of law, to find that Mr Escott was entitled to payments of weekly compensation.
In his closing submissions before the arbitrator, counsel then appearing for DKH devoted most of his efforts to the issue of whether Mr Escott had established that he had suffered an injury. Counsel then briefly set out[75] the reasons why the arbitrator could not find that Mr Escott was totally incapacitated. He submitted that two factors definitively stood in the way of Mr Escott discharging the onus that was on him that he was totally incapacitated:
•He was running a photography business and continued to sell prints through that business; and
•The fact that he is engaged in a course of study establishes that he has the capacity to work.
[75] JAB 175.
Counsel also relied upon the fact that Mr Escott's extensive and diverse work record showed a capacity for both physical and sedentary work with numerous transferable skills. He has sold phones and phone plans while working for Telstra. He had recently worked as a road traffic controller.
Counsel concluded by submitting that in the event that the arbitrator was considering a partial incapacity for work, the onus was on Mr Escott to demonstrate what he was able to earn in some suitable employment in light of his restrictions. It was submitted that he had failed to do so.
The reference to running a business emerged from cross‑examination of Mr Escott on 21 August 2023. Having begun his cross‑examination of Mr Escott on the topic of his prior work history,[76] counsel eventually asked Mr Escott if he had also worked as a freelance photographer. Mr Escott confirmed that he had, and that he has a business called Skuup Photography. He stated that he still ran that business but he had been unable to use his camera for some time because of the injury to his hands. He stated that he was able to continue to sell existing prints that he had on his hard drive and computer, but because of his injury he was not able to take and therefore sell any new prints.
[76] AB 55.
Mr Escott accepted that this business still retained an active Facebook account.[77] He confirmed that he has a current Australian Business Number associated with Skuup Photography.[78]
[77] AB 66.
[78] AB 72.
Counsel for Mr Escott similarly focused his closing argument on the issue of whether there had been a causal injury. When he turned to the question of capacity, counsel accepted that, as he put it, the weight of the evidence lies with the worker. He relied upon Dr Slinger's opinion that Mr Escott was totally unfit and submitted this was corroborated by Dr Jansz. He set out reasons for the arbitrator to prefer the evidence of Dr Slinger and Dr Jansz to Dr Dayoub.
Counsel engaged with the issue concerning the photography business by submitting that it was not a business in the proper sense or in any significant or material way.[79] Counsel submitted that his recollection of the evidence was that, in essence, the business was at best a 'side hustle' and a hobby and that in the entire time of the business he had sold two or three items to his family. Counsel made no reference to the relevance of the university course.
[79] AB 185.
The only point taken by counsel for DKH in reply was an invitation to the arbitrator to look closely at whether the observation that the business was just a 'side hustle' or a hobby significantly watered down the evidence.[80]
[80] AB 186.
Analysis of first aspect of Ground 1
DKH submit that the provisions of the Act addressing incapacity for work and weekly payments should be read as a consistent whole.[81] So much might be accepted. I do not find, however, that merely because there is evidence of a potential to realise earnings from a business, a finding of total incapacity under cl 7(1) is thereby precluded. Or that where there is such evidence, that the arbitrator was required to go to cl 7(2) first, not cl 7(1).
[81] Written submissions on appeal, par 59.
I accept that interpreting cl 7(1) and cl 7(2) of the Act involve a question of law.
In my view however, Ground 1 can only succeed if I was persuaded that where there is evidence of a capacity to make earnings from a business, it is not open to make a finding of total incapacity under cl 7(1).
I do not consider that Mitchell is authority for that proposition. In essence, the effect of Mitchell and other authorities in this area is that a worker should not assume that there will be a finding in his favour of total incapacity. If there is not, because the onus is on him, he must be prepared to lead evidence of partial incapacity or risk a finding that neither total nor partial incapacity can be established.
I accept the argument that once the arbitrator had concluded that the medical evidence established total incapacity (I will consider whether the arbitrator erred in law in that regard when analysing Ground 2), it was not necessary to consider evidence of an earning capacity. The arbitrator would have only had to consider such evidence if he concluded that the worker was partially incapacitated.
Analysis of second aspect of Ground 1
In particular (1)(a) to Ground 1, DKH contend that the arbitrator failed to consider Mr Escott's evidence that he had operated and continued to operate a photography business from which he earned income therefore establishing a capacity for work (my emphasis). I accept the submissions advanced on behalf of Mr Escott that he did not give definitive evidence that he had earned an income from his photography work.
Mr Escott accepted in his evidence that he had an unspecified quantity of prints that he had taken at a time when he could work. He would sell them if anyone wanted them but he had not made much income from them.[82] It was then put to him, 'and you've run your own business, a photography business?' Mr Escott agreed, but then stated, 'I haven't made any money from it though (my emphasis)'.[83]
[82] JAB 66.
[83] JAB 67.
Whilst it was open to the arbitrator to draw an inference from the presence of a Facebook account and the existence of an ABN that Mr Escott was earning an income in this way, that could not be said to be the only inference. Declining to draw such an inference is not an error of law. Particularly, when the evidence was that the purpose of obtaining an ABN in the first place was when Mr Escott was working in a subcontracting capacity as a fisherman, as opposed to for any photography business.[84]
[84] JAB 72.
Further, whilst an ability to take photographs of sufficient quality that they could be sold commercially would be relevant to ongoing partial capacity for work, the ability simply to sell such photographs if someone was interested in them would not. The stock, namely the photographs, would already exist and no work would be required other than, presumably, agreeing an appropriate price. It would be different if there was evidence that Mr Escott continued to take photographs.
In essence, I conclude that a submission based on the limited evidence concerning this business was not worthy of serious consideration so that I ought not infer that it has been overlooked, giving rise to an error of law.
Whilst I grant leave to appeal on Ground 1, I do not find that it has been established and Ground 1 is dismissed.
Ground 2
As I have noted, by Ground 2 DKH submit that the arbitrator failed to give adequate reasons for his finding of total incapacity for pre‑injury and suitable alternative work, more particularly by failing to properly identify the factual basis for that finding. DKH submit that the reasons do not disclose why the arbitrator concluded that Mr Escott did not have a capacity to obtain employment in sedentary type roles within the Albany labour market.
As counsel for Mr Escott pointed out in oral submissions in the hearing before me the grounds of appeal do not specifically refer to the relevance of the university course that Mr Escott was seemingly engaged in. Under r 51 of the District Court Rules 2005 (WA), DKH as the appellant was required to file a Form 8A that sets out the matters referred to in r 51(4B). These are:
(a)the question of law the subject of the appeal; and
(b)the error alleged to have been made by the arbitrator; and
(c)the decision that the appellant claims should be made in relation to that question of law.
Although it would have been preferable for there to have been an added particular to the ground of appeal, so as to contextualise the failure to give adequate reasons in the context of evidence concerning the university course, it was very much a matter that was in issue at the initial hearing. Further, it was set out in detail in the written submissions in advance of the hearing before me and Ground 2 is sufficiently broad to encompass it.
I am not persuaded that the omission in the particulars to this ground of appeal of a specific reference to the university course prevents DKH relying upon it as one of the factors that grounds the central argument in Ground 2 that the arbitrator erred in failing to give adequate reasons for his finding of total incapacity.
In his evidence, Mr Escott stated that he had almost finished a Bachelor in General Arts degree which had taken him over eight years. There was one unit left.[85] He also started studying for a degree in Biomedical Science in 2020 or 2021 but said that after his injury he was not able to continue studying. In 2022 he enrolled for one set of units but he failed those units at the end of the year.[86]
[85] JAB 62 - 63.
[86] JAB 64.
He accepted that in 2023 he had enrolled in some units which he was studying through Curtin University. He was doing that online.[87] He expanded upon this by saying that he was doing three units initially but as of August 2023 he was enrolled in one. He was doing three units at the start of the year which worked out to be 36 hours a week. When he moved to one unit, it was six to eight contact hours together with online study.[88]
[87] JAB 64 - 65.
[88] JAB 71 and 112.
The arbitrator's decision on total incapacity
I bear in mind, that in turning his mind to the third of the four issues he had identified (see [47] above), the arbitrator had concluded, contrary to the submissions advanced by DKH, that there was no pre‑existing injury and that the injury that Mr Escott indisputably suffered from was attributable to his employment. Having devoted 20 pages of his findings to setting out the background and dealing with the first two issues, the arbitrator dealt with the remaining two issues in three pages. The arbitrator separated out the two remaining issues[89] to be (1) whether Mr Escott had suffered an incapacity for work resulting from that injury and (2) if so, whether that incapacity was total or partial and the period of any such incapacity. However, the issues were then merged to be, if there was an injury as a result of the employment (as the arbitrator had found), whether Mr Escott had suffered total or partial incapacity for work resulting from the injury.[90]
[89] RFD [23(c)] and [23(d)].
[90] RFD [54] onwards.
As the Court of Appeal noted,[91] and as is clear from Mitchell, discussed above, it is uncontroversial that the burden of proof of incapacity is on an applicant seeking compensation.
[91] BHP Billiton Iron Ore Pty Ltd v Treby CCA [78].
The arbitrator noted that Mr Escott relied upon several certificates of capacity that Dr Jansz had issued. The arbitrator then summarised Mr Escott's evidence[92] in a manner that gives rise to proposed Ground 3. That paragraph canvassed Mr Escott's evidence of his work history.
[92] RFD [56].
The arbitrator referred to Dr Slinger's conclusion that Mr Escott was totally incapacitated.[93] He noted DKH's argument that its expert (Dr Dayoub) considered that Mr Escott had a partial capacity, which was corroborated by the video surveillance I have referred to.
[93] RFD [57] - [58].
The arbitrator found in favour of Mr Escott on this point because first, he considered that Dr Dayoub's second report of 17 May 2023 was consistent with a finding of total incapacity. In that report, Dr Dayoub accepted that Mr Escott was unfit to work as a kitchen hand on a full‑time and unrestricted basis and that he was not suitable for any employment that he might be considered vocationally suited (for).
Accordingly, the arbitrator found that Dr Dayoub's evidence about Mr Escott's capacity in his respective reports was equivocal and (internally) inconsistent.[94]
[94] Findings at [62][b].
Second, the arbitrator implicitly regarded the experts called on behalf of Mr Escott to be better qualified than Dr Dayoub to give the relevant opinions. DKH submit that in preferring the evidence of Dr Slinger and Dr Jansz over the evidence of Dr Dayoub, the arbitrator erred by stating that Dr Slinger was Mr Escott's treating Orthopaedic Surgeon.
In that regard the arbitrator relevantly stated:[95]
I prefer the evidence of Dr Jansz and Dr Slinger over that of Dr Dayoub for the following reasons -
(a)Dr Jansz and Dr Slinger are Mr Escott's treating general practitioner and orthopaedic surgeon respectively ...
[95] RFD [62].
In my view, the clear interpretation of this sentence is that the word 'treating' applies to both the qualifications of 'general practitioner' and 'orthopaedic surgeon'. Otherwise, the arbitrator would have written, 'Dr Jansz and Dr Slinger are Mr Escott's treating general practitioner and an orthopaedic surgeon respectively'.
Further, it cannot be the case that the arbitrator was conveying that the nature of Dr Slinger's position as an orthopaedic surgeon is the reason for preferring his evidence because the arbitrator had stated:[96]
… nothing turns on the respective specialities of Dr Dayoub and Dr Slinger. In circumstances, it comes down to which medical evidence I ought prefer.
[96] RFD [51].
Accordingly, this reason for preferring the evidence of Dr Slinger has to be discounted.
Third, Dr Dayoub's opinions, particularly as to Mr Escott's fitness to participate in vocational rehabilitation, do not constitute 'clear' specialist evidence of a retained capacity for work by Mr Escott. It is not obvious why the word 'clear' was placed in quotation marks.
Essentially, the arbitrator considered the surveillance evidence to be neutral. The arbitrator referred to the decision of von Doussa J in Sutcliffe v General Motors Holden Automotive Limited[97] which he found to be analogous and persuasive. Essentially, the holding in that case was that the mere fact that someone carries out what were described as 'minimum domestic requirements' might result in the position where they have no remaining capacity to engage in paid work and are therefore totally incapacitated for work.
[97] Sutcliffe v General Motors Holden Automotive Limited (1998) 80 IR 142.
The arbitrator concluded,[98] without further analysis, that having fulfilled, as he was required, his domestic requirements, Mr Escott had no remaining capacity to engage in paid work.
[98] RFD [65].
The arbitrator had earlier noted[99] that Mr Escott's evidence was that he had wide experience in a number of diverse physical and sedentary positions including inter alia freelance photography.
[99] RFD [56].
It seems apparent[100] that in circumstances where Dr Jansz had consistently certified Mr Escott as unfit for work and where an orthopaedic surgeon, (who gave a report for medicolegal purposes) considered that there was total incapacity, the arbitrator considered that if he accepted that evidence, as against the evidence of Dr Dayoub, that necessarily established total incapacity, without the need to consider other evidence that had been placed before him. Without stating it expressly, the position appears to be that once that medical evidence was accepted, the fact that Mr Escott was running the remnants of a photography business as of the time of the hearing, had recently worked in a sedentary role in a Telstra and was currently enrolled in a university degree course were all irrelevant and required little or no mention.
[100] RFD [62].
Accordingly, as I have noted, the arbitrator having reiterated his earlier conclusion that Mr Escott suffered a bilateral CTS injury as defined in s 5(1)(c) of the Act and that his employment with DKH contributed to a significant degree to that injury, he further concluded that Mr Escott is (as a result) and has been, totally incapacitated for pre‑injury and suitable alternative work.
Contrary to the submissions advanced on behalf of Mr Escott, I do not find that the reasons the arbitrator gave in relation to the surveillance evidence could overcome any proven inadequacy in the reasoning process that gives rise to the three conclusions.[101] Rather, the arbitrator, having concluded as he did, then supplemented those reasons by essentially finding that the surveillance evidence did not stand in the way of that conclusion. But the reasoning process that led to the conclusion[102] still needs to be adequately articulated. That turns, it seems to me, on an assessment of whether the medical evidence was sufficiently clear on its face that it was not necessary for the arbitrator to set out in detail why it was that he preferred the conclusions of Dr Slinger and Dr Jansz to those of Dr Dayoub and did not need to consider any other material, apart from the surveillance evidence.
[101] RFD [62] in the context of RFD [52].
[102] RFD [62].
Dr Jansz
In his reasons, the arbitrator simply refers to a first certificate of capacity and a number of progress certificates of capacity issued by Dr Jansz. I have set out the certificates that appear in the appeal book below. If there are others, they are not referred to by the arbitrator.
Date Event Conclusion Page in JAB 21 June 2022 First certificate of capacity Clinical findings including positive tinnel and phalen test to both wrists. CTS. No capacity for work from 21 - 28 June 2022 521 - 523 28 June 2022 Progress certificate of capacity CTS. No capacity for work from 28 June 2022 ‑ 15 July 2022 525 - 526 26 July 2022 Progress certificate of capacity CTS. No capacity for work from 26 July 2022 ‑ 9 August 2022 532 - 533 2 August 2022 Progress certificate of capacity CTS. No capacity for work from 2 - 16 August 2022 537 - 538 24 August 2022 Progress certificate of capacity CTS. No capacity for work from 24 August - 24 September 2022 541 - 542 7 September 2022 Progress certificate of capacity CTS. No capacity for work from 24 August - 24 September 2022 544 - 545 16 September 2022 Progress certificate of capacity CTS. No capacity for work from 16 - 30 September 2022 548 - 549 28 September 2022 Progress certificate of capacity CTS. No capacity for work from 28 September - 18 October 2022 642 - 643 25 October 2022 Progress certificate of capacity CTS. No capacity for work from 25 October - 25 November 2022 673 - 674 29 November 2022 Progress certificate of capacity CTS. No capacity for work from 25 November - 31 December 2022 675 - 676 17 January 2023 Progress certificate of capacity CTS. No capacity for work from 17 January 2023 - 23 February 2023 677 - 678 11 April 2023 Progress certificate of capacity CTS. No capacity for work from 11 April - 11 June 2023 679 - 680
Although the arbitrator stated that he, 'preferred the evidence of Dr Jansz', that evidence is confined to the fact that on a number of occasions between June 2022 and April 2023 Dr Jansz, without exception, certified that Mr Escott was totally incapable of working. There is no information contained within any of these documents that explain why Dr Jansz came to that conclusion. The mere fact that a doctor concludes that his patient has an incapacity to work does not relieve a judicial factfinder of the responsibility of assessing that conclusion and, where appropriate, differing from it.
The paucity of information from Dr Jansz and the lack of consideration of the other factors that would bear on total incapacity meant, in my view, that there was an obligation to explain in detail why Dr Slinger's opinions were so influential. Particularly that is so where the arbitrator erroneously referred to Dr Slinger as Mr Escott's treating physician.
Dr Slinger reviewed Mr Escott on 18 August 2022 at the request of Mr Escott's solicitor. He understood that Mr Escott had been working for six weeks as a kitchen hand and noted the referral to Dr Jansz on or around 14 June 2022. Dr Slinger noted an ultrasound which was said to show bilateral mild median nerve thickening and compression. He noted that treatment has included physiotherapy every two weeks and that has been associated with some improvement.
Dr Slinger noted that the diagnosis was that of CTS but that required further evaluation to confirm, given the 'somewhat unusual features to the presentation'.[103]
[103] JAB 647.
In answer to the question 'is our client totally incapacitated for pre‑injury work at present?' Dr Slinger answered that he was. Dr Slinger considered that such incapacity will last until symptoms have resolved with appropriate treatment following appropriate diagnosis.
In the instructing letter, Mr Escott's solicitor then posed the even more leading question,[104] 'do you agree that our client is totally incapacitated for other jobs which might be described as reasonably within his sphere of labour market opportunity?' Dr Slinger again agreed.[105]
[104] Accepting, of course, that Dr Slinger could have answered negatively.
[105] JAB 648.
Dr Slinger then advised Mr Escott's solicitors on 6 December 2022 that he had received an EMG nerve conduction studies report which confirmed that Mr Escott does experience bilateral CTS.[106]
[106] JAB 651.
Dr Slinger reviewed Mr Escott again on 10 July 2023. As of that time Dr Slinger was in receipt of reports from a Dr Yeboah dated 1 and 9 September 2022 and Dr Dayoub's two reports. Dr Yeboah had performed endoscopic carpal tunnel release surgery on Mr Escott on both sides on 27 September 2022 and then a right carpal tunnel surgical decompression on 27 March 2023.[107]
[107] JAB 654.
Dr Slinger carried out an examination as described at pages three and four of his report and noted restricted movements in the right wrist and fingers. As well as the pain, discomfort and numbness reported by Mr Escott, Dr Slinger noted that movements at the wrist proper were restricted with positive carpal tunnel provocation at the right wrist including Tinel's sign and prominent weakness of the intrinsic muscles of the thumb.
Dr Slinger made similar findings in relation to the left upper limb and noted that movements of the right and left wrist were broadly comparable, save that the radial deviation in the left wrist was 20 degrees, whereas on the right wrist it was 15 degrees. Grip strength was 10 kg on the right and 6 kg on the left, and there was pronounced weakness of the intrinsic muscles of the hand. Dr Slinger noted mild swelling to both hands and a restricted range of movement throughout the hand and the wrist.[108]
[108] JAB 654 - 655.
Dr Slinger reiterated his conclusions in terms of total incapacity and stated that such incapacity was more likely than not to persist into the reasonably foreseeable future.[109] He considered that there had been an increase in the severity of symptoms since his last review and indeed the last review with Dr Dayoub.[110]
[109] JAB 658.
[110] JAB 659.
Dr Dayoub's reports
Dr Dayoub saw Mr Escott on 13 September 2022. He did not detect any inconsistency in the history he obtained from Mr Escott and his clinical presentation. He diagnosed bilateral CTS. He believed this to be a new condition, of an idiopathic[111] origin. He considered the prognosis to be good. As noted, he did not think that the need for treatment resulted from Mr Escott's employment with DKH, but the finding to the contrary by the arbitrator is not the subject of an appeal.
[111] Discussed further at [157] - [158] below.
Dr Dayoub did not consider Mr Escott to be totally incapacitated for work. He considered he had the capacity for work according to his pre‑injury hours and undertaking restricted duties that did not involve forceful gripping or grasping with both hands and which did not involve forceful extension or flexion of both wrists.[112]
[112] JAB 199.
Dr Dayoub provided a second report dated 17 May 2023 having seen Mr Escott two days previously on 15 May 2023. Although, the arbitrator referred to an inconsistency between the two reports, a possible explanation for that is that in the second report, unlike the first, Dr Dayoub identified significant inconsistencies between the history provided to him by Mr Escott and the documented medical evidence having regard to the discharge summary from Albany Health Campus and the established diagnosis (as he found it to be) of bilateral CTS prior to 3 May 2022.[113]
[113] JAB 206 - 207.
Dr Dayoub considered that Mr Escott was unfit for work as a kitchen hand as a result of a pre‑existing diagnosis of bilateral CTS. He found him fit for office-based duties. He agreed with Dr Slinger that Mr Escott was unfit for work as a kitchen hand on a full‑time and unrestricted basis. He was not suitable for employment that he might be considered vocationally suited. However, he was fit to participate in vocational rehabilitation undertaking office-based duties for four hours per day up to three days per week.[114]
[114] JAB 211 - 212.
Adequacy of reasons
Adequacy of reasons must be considered in the context of s 213(4) of the Act. In identifying the facts accepted and the reasons for doing so (s 213(4)(a)) and the law applied and the reasons for doing so (s 213(4)(b)), the arbitrator is still obliged to expose the reasoning process linking them, and justifying the ultimate result.[115]
[115] Velez Pty Ltd v Tudor [2011] WASCA 218 [70] (Murphy JA, Pullin & Newnes JJA agreeing).
Recently, in South Metropolitan Health Service v Jones[116] Curwood DCJ identified the applicable principles concerning when a failure (by an arbitrator) to give adequate reasons for a decision in this area may amount to a question of law. Those principles, citations omitted, are as follows:
•the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard. The adequacy of reasons is not to be judged as against a standard of perfection. The question is whether the reasons attained the minimum acceptable standard. In that context, a minimum requirement has been identified as being that the reasons be given in a form that will enable the losing party properly to understand the grounds on which the case was lost and will not frustrate the losing party's right of appeal.
•When deciding between competing versions of the facts, it is necessary for a trial judge (here the arbitrator) to explain why one version has been preferred over another.
•In doing so, the trial judge should refer to relevant evidence and, when one set of evidence is accepted over a conflicting set of evidence, set out his or her findings as to how he or she has come to accept the one over the other. This does not mean, however, that the judge at first instance must spell out every detail pertaining to the process of reasoning.
•Where important or critical evidence is not referred to, an appellate court may infer that it has been overlooked or that the trial judge failed to give attention to it.
•Notwithstanding these matters, an appellate court must take care to ensure that dissatisfaction with a finding of fact does not mislead it into holding that the trial judge has failed to give reasons for that finding.
•An appellate court may consider what can legitimately be inferred from the reasons as a whole. Whether the reasons are adequate will depend upon the circumstances of the case and that matters which arose for consideration.
[116] South Metropolitan Health Service v Jones [2024] WADC 44 [37] - [43].
I respectfully agree with Curwood DCJ that the minimum requirement of content of reasons for decision required from an arbitrator is also informed by the objects of the Act for the reasons that his Honour explained.[117]
[117] South Metropolitan Health Service v Jones [42] - [43].
In Mitchell v Canal Rocks Beach Resort, Roberts-Smith J stated that the test to be is whether:[118]
The reasons are so deficient as to fail to expose the reasoning of the court in such a way as will enable a party having a right of appeal conferred by statute to challenge the reasoning on appeal. If that is the result, then the deficiency in the reasons itself constitutes an appealable error of law in that the result is effectively to deprive the party of the right of appeal.
[118] Mitchell [103].
In my view, Mr Escott's ongoing university studies and his relatively recent prior employment with Telstra are plainly relevant to the issue of total or partial incapacity. At the very least, not addressing why this other material is irrelevant, frustrates DKH's ability to advance a ground of appeal that the arbitrator wrongly determined the matter solely on the basis of his preference for the evidence of Dr Slinger over that of Dr Dayoub.[119]
[119] An argument rejected BHP Billiton Iron Ore Pty Ltd v Treby CCA [69].
The arbitrator noted[120] Mr Escott's evidence that he had wide experience in a number of diverse physical and sedentary positions including inter alia Telstra consultant but said nothing of the relevance of such employment.
[120] RFD [56].
The submissions on the relevance of Mr Escott's university studies and his work with Telstra were worthy of serious consideration and were seriously advanced. Given that they were not dealt with,[121] it is open to me to infer that they were overlooked, giving rise to an error of law.
[121] Save the reference in passing to Telstra at RFD [56].
I have acknowledged that on the evidence, the arbitrator was entitled to conclude that the photography business was at the relevant time virtually non‑existent and hence was irrelevant. Beyond a bald assertion in response to leading questions posed by Mr Escott's solicitors there is no explanation from Dr Slinger as to why office‑based duties for some 12 hours per week were incompatible with Mr Escott's condition. Dr Slinger had Dr Dayoub's 17 May 2023 report when he gave his final report. He does not refer to Dr Dayoub's conclusion[122] that there was some capacity for vocational rehabilitation.
[122] Conclusion #15 at JAB 212.
The arbitrator observed[123] that there is an internal inconsistency within Dr Dayoub's reports. That is seemingly that on the one hand Dr Dayoub concludes that the majority of CTS has an idiopathic origin (as defined in Butterworths Medical Dictionary (2nd ed) as 'any morbid condition occurring without apparent external cause, a primary disease') and on the other hand that it is characterised by the compression of the median nerve as it passes in the carpal tunnel and develops over many years. The arbitrator did not explain how that constitutes an inconsistency.
[123] RFD [52(b)].
In the same sub-paragraph[124] the arbitrator described as 'noteworthy' a medical dictionary definition of CTS which indicates that CTS symptoms may result from trauma. 'Trauma' is in turn defined as 'injury'. 'Injury', being 'hurt done to or damage suffered by the body'.[125] If, in relying on a dictionary, the arbitrator considered that the fact that CTS may (my emphasis) result from trauma undermined Dr Dayoub's opinion that the CTS suffered by Mr Escott was idiopathic, he was required to expose that reasoning process. I do not consider that he did.
[124] RFD [52(b)].
[125] Butterworths Medical Dictionary (2nd ed).
In my view the arbitrator was required to identify any reasons for concluding why the limited sedentary work referred to by Dr Dayoub was not compatible with Mr Escott's condition before he could conclude that Mr Escott had established total incapacity.
Conclusion on Ground 2
I concur with the observations of O'Neal DCJ in MacMahon Holdings Limited v McKenzie (quoted at [37] above) that:
… the historical common sense as to … how contentious facts should be proved to ensure fairness to all concerned, are not to be discarded lightly.
Dr Slinger concluded that Mr Escott was incapacitated for other jobs which might be 'reasonably within his sphere'. I assume that means work for which he was capable of attaining by virtue of experience and/or qualifications.
I accept DKH's submission that the arbitrator did not address the issue of whether this was a comment that, read properly, amounted to an opinion of partial incapacity.
It was, I find, necessary for the arbitrator to identify the factual basis upon which Dr Slinger's opinion of total incapacity was founded.
I remind myself that a worker must prove a physical incapacity for doing work in the labour market in which that person was working before suffering the injury, or in which the worker might reasonably be expected to work, that is which is reasonably accessible to him/her. And that it is relevant to take into account inter alia the worker's employment background.
I further accept DKH's submission that the reasons do not disclose why the arbitrator concluded that Mr Escott did not have a capacity to obtain employment in sedentary type roles within the Albany labour market. A finding of total incapacity for work is not a logical consequence of the arbitrator's reasoning, particularly where the arbitrator accepted Dr Slinger's opinion without any analysis of Mr Escott's transferable skills nor the fact that Mr Escott was engaged in university studies. I will consider the issue of the Albany labour market when I consider proposed Ground 3.
The legal test for total incapacity is correctly set out by Commissioner McCann in Leighton Contractors Pty Ltd v Withers[126] as being:
… wholly unable to earn a living in the labour market in which he was working before suffering the injury or in which he could reasonably be expected to work, that is, one reasonably accessible to him and for which he is vocationally suited.
[126] Leighton Contractors Pty Ltd v Withers (C-19-2011) [3].
The arbitrator's conclusion[127] that Mr Escott was incapacitated for 'suitable alternative work' required an analysis of what suitable alternative work may or may not exist. That did not occur.
[127] RFD [66].
The reasons did not, in this regard, identify the facts, along with the reasoning process, that the arbitrator has accepted in coming to the decision of total incapacity.
Given the absence of any reference to the authorities on partial incapacity I further accept that the arbitrator did not identify the law he applied in coming to his finding as to total incapacity.
I have taken care to ensure that any dissatisfaction I might feel with the findings of fact on the issue of total incapacity do not mislead me into holding that the arbitrator has failed to give reasons for those findings.
The reasons for the finding of total incapacity are inadequate. This involves a material question of law. I grant leave to appeal and uphold the appeal on Ground 2.
Ground 3
Proposed Ground 3 is some four months out of time (though the appeal notice itself was filed in due time). It reads:
The Learned Arbitrator erred in law in finding at paragraph [56] of his reasons that the Respondent had given evidence that 'there was little scope for full‑time work in Albany other than event management etc' when there was no evidence to support such conclusion.
The finding referred to in Ground 3 reads as follows:[128]
Mr Escott's evidence was that he had wide experience in a number of diverse physical and sedentary positions including lobster fisherman, Telstra consultant, traffic controller, freelance photography, tattooing and men's mental health publishing. However, he had not finished tertiary education courses nor a pre‑apprenticeship course. Mr Escott agreed that he had a wide range of work skills but there was little scope for full‑time work in Albany other than event management etc.
[128] RFD [56].
In my view the arbitrator's conclusion in the final part of the last sentence in this paragraph is somewhat ambiguous. It could mean that the arbitrator found as a fact that there was little scope for such work, in which case the sentence should read:
Mr Escott agreed that he had a wide range of work skills but I find that there was little scope for full‑time work in Albany other than event management etc.
The other interpretation, which Mr Escott contends for,[129] and the one that I favour, was that Mr Escott had testified there was little scope for full‑time work in Albany other than 'event management etc', in which case the sentence should more plainly read:
Mr Escott agreed that he had a wide range of work skills but stated that there was little scope for full-time work in Albany other than event management etc.
[129] Written submissions of 8 July 2024 [27] - [28].
As the High Court stated in Kostas v HIA Insurance Services Pty Ltd:[130]
Whether there was no evidence to support a factual finding is a question of law, not a question of fact. A tribunal that decides a question of fact when there is no evidence in support of the finding makes an error of law.
[130] Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 [91] (Hayne, Heydon, Crennan & Kiefel JJ).
If there was an error, it would be significant because it would plainly have relevance to the task that I have identified at [167] that the arbitrator should have, but did not, engage in. Whilst I agree with the written submissions on behalf of Mr Escott that enabling parties to amend grounds such that the ultimate appeal bears no resemblance to the original appeal runs contrary to legislative intent, that is not the situation here. Far from bearing no resemblance to the original appeal there is a close relationship between Grounds 2 and 3.
I consider it appropriate to grant leave to add this ground under r 56 and r 57(2)(i).
On behalf of Mr Escott, it is contended that his evidence was confined as follows:[131]
Q:of all the many things that it has been put to you that you have done, have you done any of these things in our Albany?
A:only the event organisation.
[131] Written submissions dated 8 July 2024, pars 29 - 31, referring to JAB 33 and par 21 of Mr Escott's witness statement at AB 685.
However, Mr Escott completed his answer by acknowledging that in addition to event organisation[132], he had also worked in Albany in an abattoir, for Telstra and carrying out electrical work.[133]
[132] Citing an example in October 2016 but also in 2018 (JAB 57).
[133] JAB 60 and JAB 133.
I accept that in re-examination Mr Escott explained the logistical difficulties of working in an electrical field as a 36-year-old. But I find that it was not open to the arbitrator to state that there was limited work in Albany other than event management etc, certainly not without explaining what he meant by 'etc'. Mr Escott had given at least one example of other work that he had recently engaged in himself, namely with Telstra, and had not ventured an opinion as to what the Albany labour market was like generally, as distinct from his own direct experience of certain roles within the Albany area.
I accept DKH's submission that Mr Escott's evidence was not capable of establishing the fact that the arbitrator found proved.
Accordingly, I am satisfied that the arbitrator materially erred in law in finding[134] that Mr Escott had given evidence that 'there was little scope for full-time work in Albany other than event management etc'. I grant leave to appeal and uphold the appeal on Ground 3.
[134] RFD [56].
Remit or carry out a re-hearing
On appeal, the District Court's powers include the power to quash the arbitrator's decision either with or without substituting any decision that should have been made in the first instance. There is no express power of the District Court to remit a matter to the original arbitrator, or to a different arbitrator, for a further or substituted hearing. However, such an order might be made as a 'further or other decision, as to costs or otherwise, as the District Court thinks fit', under s 247(7)(b) of the Act.[135]
[135] Marks [103].
In Marks the Court of Appeal observed:[136]
Once an error or a miscarriage of justice is established then the appellate court, if it is in a position to do so, substitutes its own decision for that of the arbitrator. The appellate court will ordinarily do so by reference to the facts found by the arbitrator which have not been successfully challenged and such findings of fact that the appellate court is able to make by reference to the written record. In deciding whether the appellate court is able to make findings, regard must again be had to the natural limitations of an appellate court working from written material without the benefit of seeing or hearing witnesses. Where an arbitrator's credibility-based findings of fact are infected by material error and cannot be relied upon, or where an assessment of primary evidence contested on credibility grounds is called for, then the appellate court will generally not be in a position to make its own findings of fact. In such a case, it will, at least ordinarily, be necessary for the District Court to remit the case to WorkCover WA for redetermination, usually by a different arbitrator.
[136] Marks [131].
A failure to give adequate reasons amounts to a failure to accord procedural fairness. A common order where an appellate court finds that to be the case in proceedings below is to remit the matter for rehearing.[137]
[137] Kozak v Ehrhardt [2022] WASCA 165 [20].
Further, as was the case in Marks,[138] I am not in a position to make my own findings as to the extent of Mr Escott's incapacity because, in addition to the medical evidence, that turns on an assessment of the credibility and reliability of Mr Escott as a witness. I have not seen him give evidence. The arbitrator's errors of law mean that I cannot rely on the arbitrator's findings as to those matters. The only appropriate course in these circumstances is to allow the appeal, set aside the arbitrator's decision and remit the matter for determination by a different arbitrator.
[138] Marks [171].
As Murphy JA, (Martin CJ and Buss P agreeing) held in McKay v Commissioner of Main Roads:[139]
Generally speaking, the starting point is that if there is to be a new trial, it ought to be of the case as a whole unless the court thinks that it will do more injustice by setting the matter at large again. Where the court considers that it is difficult to 'disjoin' the issue which makes the retrial necessary from other issues in the case, it will be appropriate to order a retrial of all such issues. Similarly, a new trial should not be limited if there is a 'real chance' of the primary court having erred in the wider case.
[139] McKay v Commissioner of Main Roads [2013] WASCA 135 [357].
In my opinion, having regard to the challenges to Mr Escott's evidence in the hearing below, there is such a 'real chance', but given the fact that I have ordered a rehearing it would be inappropriate for me to expand further.
Appropriate orders
I grant leave to appeal on all three grounds.
The appeal is allowed on Grounds 2 and 3. Ground 1 is refused. Accordingly, I allow the appeal.
I order that the decision of Arbitrator Cashman of 23 January 2024 be quashed and the matter be remitted back to a different arbitrator for rehearing of the matter on all issues.
I will hear from the parties as to whether any further orders are required.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ES
Associate to Judge Troy
19 AUGUST 2024
24
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