Doohan v North Shore Transport Pty Ltd - [2012] NSWWCCPD 42

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Doohan v North Shore Transport Pty Ltd [2012] NSWWCCPD 42
APPELLANT:		Sonny Doohan
RESPONDENT:		North Shore Transport Pty Ltd
INSURER:		CGU Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-9130/11
ARBITRATOR:	Ms C D’Souza
DATE OF ARBITRATOR’S DECISION:		9 May 2012
DATE OF APPEAL DECISION:		10 August 2012
SUBJECT MATTER OF DECISION:		Adequacy of reasons; failure to weigh conflicting evidence
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Walker Legal
Respondent:	Rankin Nathan Lawyers
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 9 May 2012 is revoked and the matter is remitted to a different Arbitrator for re-determination. Costs of the first arbitration and of the second arbitration are to follow the event of the second arbitration. The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.

INTRODUCTION

This appeal concerns the appellant worker’s right to compensation for injuries received by him during a physical altercation involving two co-workers on 3 August 2011. The critical issue argued before the Arbitrator was whether the worker’s conduct took him outside the course of his employment.

FACTUAL BACKGROUND

The appellant worker, Sonny Doohan, is a truck driver. On 3 August 2011, he was working as a driver for the respondent employer, North Shore Transport Pty Ltd. His offsider was Paul Morton. At about 10.30 am on 3 August 2011, Mr Doohan turned into the driveway to the loading dock at Artarmon Super Centre and found that a truck driven by a co-worker, Oscar Ellis, blocked access to the dock.
Mr Morton got out to speak with Mr Ellis, who was not initially in his truck, to ask him to move his truck to allow access to the loading bay. On Mr Ellis’s return to his truck a few minutes later, an argument developed between the two men in which Mr Morton used grossly offensive and insulting language. Mr Ellis got out of his truck and the two men then traded punches and ended up holding each other in headlocks on the ground while they continued to punch each other.
What happened next is the subject of conflicting evidence and was the focus of the dispute before the Arbitrator.
Mr Doohan’s version is that he approached the two men to try to stop the fight. He told them something to the effect of “c’mon guys we have work to do”, and tried to pull Mr Ellis’s hand off Mr Morton’s face. As one of the men said it was okay, Mr Doohan thought they were no longer going to fight and he backed off. Mr Ellis then got up and threw a phone at Mr Doohan and started coming at him yelling. Then Mr Ellis’s offsider, Johnny Kautai, arrived and said something that got Mr Morton’s attention. At that moment, Mr Ellis punched Mr Doohan three or four times in the left eye, nose and right ear.
Mr Ellis’s version to the police on 17 August 2011 is that, while he was in a headlock on the ground, he felt a hard pounding to his back as Mr Doohan kicked him while Mr Morton punched him. As he could not punch back any longer, because he was trying to protect his head and face, he yelled “help” several times and they both got off him. He stood up and punched Mr Doohan, to try to get rid of him. As soon as he did that, Mr Morton attacked him again. Mr Ellis took a few steps back and, fearing that the two men would run at him, he ran at Mr Morton. As he did that, Mr Doohan pulled Mr Ellis’s jacket up over his head. When he got his jacket off, Mr Ellis tried to run after Mr Doohan to make him stop attacking him and make him go away. As he did that, Mr Doohan kicked him in the stomach and Mr Morton punched him again. He then stood back and yelled at the men. By that stage, Mr Kautai had returned and the fight stopped.
As a result of being struck by Mr Ellis, Mr Doohan suffered severe injuries and ultimately stopped work a few days later and has not returned. He claimed weekly compensation from 8 August 2011 to date and continuing together with hospital and medical expenses. The respondent’s insurer disputed liability on the ground that Mr Doohan had not received an injury arising out of or in the course of his employment, employment was not a substantial contributing factor to the injury, Mr Doohan was not incapacitated for work, and that he did not require medical treatment.
The central issue before the Arbitrator was whether, by reason of gross misconduct, Mr Doohan had taken himself outside the course of his employment and therefore had not suffered an injury within the definition of s 4 of the Workers Compensation Act 1987 (the 1987 Act).
The Arbitrator accepted that, prior to 3 August 2011, Mr Morton and Mr Doohan had made racist, repugnant and unacceptable comments to Mr Ellis, and that Mr Ellis had made similarly repugnant and unacceptable comments to Mr Doohan. Because of these comments, there was a build-up of tension between the three men, which culminated in the fight on 3 August 2011.
After summarising the evidence, the parties’ submissions and the authorities, the Arbitrator made the following further findings:
(a)     Mr Ellis’s account of Mr Morton’s behaviour outside Mr Ellis’s truck was plausible and consistent with Mr Doohan’s evidence;
(b)     given Mr Ellis’s injuries, she did not accept Mr Morton’s statement that he did not hit Mr Ellis;
(c)     the fight between Mr Ellis and Mr Morton could not be characterised as being in the course of their employment or incidental to it, even though it may have been precipitated by a discussion relating to a work issue, namely, Mr Morton’s request that Mr Ellis move his truck to allow Mr Doohan access to the loading bay;
(d)     Mr Doohan became involved when he either went to Mr Morton’s assistance and participated in the fight or tried to break up the fight. Either way, it appeared that “Mr Doohan punched and kicked Mr Ellis” ([64]), which appeared to the Arbitrator to have been “excessive, violent, inappropriate and wrongful behaviour in a workplace” ([64]);
(e)     it was more probable than not that, though Mr Doohan was not the immediate instigator of the fight, he was a “fellow perpetrator” ([65]);
(f)      she agreed with the police summary that the altercation appeared to have been a fight between work colleagues fuelled by the ongoing animosity between the three men rather than an assault on one person. That animosity appeared to have extended beyond issues relating to the employment and to have been sustained on a personal level;
(g)     when Mr Doohan made a decision to join in the fight he became guilty of gross misconduct and removed himself from the course of his employment. In the circumstances, the respondent had established that Mr Doohan’s conduct in entering the fight amounted to gross misconduct and Mr Doohan’s claim failed on that basis, and
(h) Mr Doohan did not suffer an injury arising out of or in the course of his employment within the definition of injury in s 4 of the 1987 Act and there would be an award for the respondent.
Mr Doohan has challenged the Arbitrator’s findings and determination.

ON THE PAPERS

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

ISSUES IN DISPUTE

The issues in dispute in the appeal were initially identified in the notice of appeal as whether the Arbitrator erred in:
(a)     taking into account irrelevant evidence;
(b)     failing to weigh the evidence or properly weigh the evidence;
(c)     making findings of fact based on no evidence or evidence not properly weighed;
(d)     applying the law to incorrect findings of fact, and
(e)     failing to give adequate reasons.
In further submissions filed on 13 July 2012, rather than addressing the grounds of appeal listed in the notice of appeal, Mr Doohan’s counsel, Mr Moffet, made general submissions (in the form of a narrative of events that he alleged supported his client’s position) and made separate and additional allegations of error, but made either no submissions, or only extremely brief submissions, as to how those errors affected the outcome. The additional allegations raised in the further submissions are that the Arbitrator erred in that she:
(a)     “conflated the pieces of evidence” to find that Mr Doohan had “punched and kicked” Mr Ellis;
(b)     misquoted the evidence from Michelle Collins, one of the respondent’s directors, at [28] of the decision and, at [39], wrongly referred to Ms Collins quoting offensive and racist text messages from Mr Doohan about Mr Ellis when the statement by Ms Collins did not refer to Mr Doohan;
(c)     failed to give adequate reasons for her weighing of the evidence and failed to address what evidence she preferred and why;
(d)     placed undue weight on the evidence of animosity between the three men when the contemporaneous documents omitted any reference to such a cause and Mr Ellis’s statement only referred to animosity between himself and Mr Morton;
(e)     did not say what evidence she relied on to conclude that Mr Doohan “punched and kicked” Mr Ellis, and
(f)      failed to weigh the fact that the whole series of events lasted less than a minute when deciding whether Mr Doohan was attempting to stop the fight or whether he was a fellow perpetrator.
Essentially, the appellant’s challenge, as set out in the initial notice of appeal, is that the Arbitrator failed to evaluate the evidence and failed to give reasons as to why she preferred the evidence on which she based her conclusion.

SUBMISSIONS

The appellant’s submissions

As noted above, the additional submissions prepared by Mr Moffet set out a summary of telephone calls made by Mr Morton and Mr Ellis to Ms Collins immediately after the altercation, in which neither said that Mr Doohan had kicked Mr Ellis. Mr Moffet submitted that these telephone calls were part of the res gestae (“things done” – things so close in time or space to the matter being proved as to be inseparable from it) and therefore entitled to greater weight. He submitted that this evidence, together with the evidence from Mr Ellis’s doctor that Mr Ellis only complained about his right hand on 4 August 2011, established that Mr Doohan was only trying to break up the fight between Mr Ellis and Mr Morton, and that he had not kicked or punched Mr Ellis.
It was submitted that the Arbitrator appears to have relied on information in the Initial Notification of Injury form prepared by Ms Collins on 10 August 2011 and addressed to the insurer to base her finding (at [64]) that Mr Doohan punched Mr Ellis. The form described the incident as follows:
“worker [Mr Doohan] was punching another employee [Mr Ellis] when the victim that was down on the ground [Mr Ellis] got to his feet and punched the perpetrator back.”
Mr Moffet submitted that the information in the form is hearsay from an unidentified informant and is inconsistent with all other statements.
Mr Moffet referred to the documents produced by the NSW Police in which it is recorded that Ms Collins told the police on 11 August 2011 that “the Vic [victim – Mr Doohan] has allegedly kicked the POI [person of interest – Mr Ellis] whilst he [Mr Ellis] was on the ground wrestling with the offsider [Mr Morton]”. This, it is submitted, is second-hand hearsay and is different to the account Ms Collins gave in the Initial Notification Form the previous day.
Rather than finding that, because of the discrepancy described in the two preceding paragraphs, Ms Collins’s evidence was less credible, the Arbitrator (at [64]) wrongly “conflated the pieces of evidence to find that [Mr Doohan] ‘punched and kicked’ Mr Ellis”. Mr Ellis gave evidence that, while on the ground, Mr Doohan kicked him, but made no mention of Mr Doohan having punched him.
Mr Moffet made a lengthy submission about a witness identified only as “Colin”. He said that, as it was not known who Colin was, if he was really present at the time of the incident, where he was standing and what he saw, his evidence could not have any weight.
It was submitted that the Arbitrator misquoted Ms Collins’s evidence. The Arbitrator said (at [28]) that Ms Collins had recounted that, shortly after 10.40 am on 3 August 2011, she received a phone call from Mr Ellis in which he said that “Mr Doohan had punched him”. However, it was clear from Ms Collins’s evidence that she was not referring to Mr Doohan having punched Mr Ellis, but was referring to Mr Morton.
Though the Arbitrator referred to the evidence at [9]–[44] of her decision, she did not give adequate reasons for her weighing of that evidence and failed to address what evidence she preferred and why.
The Arbitrator placed undue weight on the evidence of animosity between the three men. The contemporaneous documents made no reference to such a cause and Mr Ellis’s statement referred only to animosity between himself and Mr Morton.
The Arbitrator did not say what evidence she relied on to conclude that Mr Doohan had “punched and kicked” Mr Ellis.
The Arbitrator found that the whole series of events lasted less than a minute, but did not weigh that fact when deciding whether Mr Doohan was attempting to stop the fight or was a fellow perpetrator. The short duration of a scuffle that ended on the ground is supportive of Mr Doohan attending the fight to end it, not continue it.

The respondent’s submissions

The appellant’s further submissions should not be considered because they were filed on 13 July 2012 when the respondent had only consented to a seven-day extension of time for the filing of the submissions.
Dealing with the appellant’s submissions on the merits, the respondent has submitted:
(a)     the telephone conversation between Ms Collins and Mr Ellis was not a full recount of the incident and ought not be given more weight than other accounts provided by the parties;
(b)     Ms Collins said she met with Mr Ellis later on 3 August 2011 and that he provided a handwritten account of the incident (reproduced in the Reply) that outlines Mr Doohan’s involvement in the fight, including details of Mr Doohan punching and kicking Mr Ellis. This account is consistent with Mr Ellis’s statement to the police and his other accounts;
(c)     Ms Collins gave evidence of “racist and derogatory text messages sent to her” by Mr Doohan and it is clear from her evidence that the Arbitrator did not err in finding that the messages had been sent by Mr Doohan;
(d)     the text messages provided evidence of animosity between the three men leading up to the altercation and it was open to the Arbitrator to make that finding, which was consistent with the findings made by the police on 6 September 2011 that the “incident was not an assault on one person but a fight between work colleagues, fuelled by ongoing animosity and personal issues”;
(e)     it is agreed that there is a typographical error at [28] of the decision and the evidence is that Mr Ellis said that Mr Morton had punched him, not Mr Doohan as the Arbitrator recorded. This error has not materially affected the outcome;
(f)      as to the length of the fight, it lasted long enough for the three men to sustain significant injuries. The length of the fight cannot be used as an indication of the serious nature of the incident or the intention of the parties;
(g)     the Arbitrator did not find (at [64]) that Mr Doohan intended to further the fight but said he either went to Mr Morton’s assistance and participated in the fight, or tried to break it up. Either way, it appeared that Mr Doohan punched and kicked Mr Ellis, which appeared to the Arbitrator to have been excessive, violent, inappropriate and wrongful behaviour in the workplace. The Arbitrator was entitled to make this finding on the available evidence;
(h)     the Arbitrator’s reasons indicate that she gave proper consideration and weight to the available evidence and adequate reasons for her decision. Her decision was reasonably open to her on the available evidence, and
(i)      the appellant has failed to demonstrate that the Arbitrator has made errors of fact, law or discretion.

DISCUSSION AND FINDINGS

The respondent’s objection to the appellant relying on the submissions filed on 13 July 2012 is petty and without merit. The Commission has a statutory obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
While the appellant’s submissions should have been attached to the notice of appeal (Pt 16 r 2(4)(a) of the Workers Compensation Commission Rules 2011 (the Rules)), and there is no good reason (such as the unavailability of transcript) why that was not done, the filing of the submissions on 13 July 2012 has caused no prejudice to the respondent and has not delayed the resolution of the appeal.
The Commission has repeatedly criticised parties (usually respondents) for taking inconsequential points in an effort to gain a perceived procedural advantage. That criticism is repeated in this matter. The respondent has presented no legitimate reason why the appellant should not be permitted to rely on its late submissions. In these circumstances, I extend time under Pt 1 r 1.6(2) of the Rules until 13 July 2012 for the filing of the appellant’s submissions.
As to the merits of the appeal, I agree with the appellant that the Arbitrator failed to give any adequate reasons to support her critical findings and that her decision cannot stand. However, rather than the entry of an award for the appellant, I believe the matter must be re-determined by a different Arbitrator. My reasons are as follows.
Whether the Arbitrator “conflated” parts of the evidence to find that Mr Doohan “punched and kicked” Mr Ellis, as the appellant has submitted, is simply not known, because the Arbitrator did not explain the basis for her finding. The Arbitrator referred to the Initial Notification of Injury Form (at [16]) when summarising the evidence, but did not expressly refer to Ms Collins’s statement to the police on 11 August 2011.
There is no indication of how or why the Arbitrator concluded that Mr Doohan had “punched and kicked Mr Ellis”. The closest the evidence comes to supporting that conclusion is the evidence from “Colin”. In a handwritten note of a telephone conversation Ms Collins had with “Colin” on 29 August 2011, Ms Collins recorded:
“He [Colin] just told them [the police] what he saw and that was ‘the guy with the long hair didn’t start the fight, he was pulled out of the truck by the skinny bloke’. He said ‘they looked like that [sic] it was a rugby game, the long haired guy was being punched and kicked by them’.”
The parties agreed at the arbitration that “the guy with the long hair” was Mr Ellis and “the skinny bloke” was Mr Morton.
The Arbitrator referred to Ms Collins’s telephone conversation with “Colin” at [36] of her decision, when she was summarising the respondent’s evidence, but she did not say if she accepted it as a correct statement of what happened. Nor did she say if she accepted Ms Collins’s summary in the Initial Notification of Injury Form, or if she accepted Mr Ellis’s version. These matters were critical to the resolution of the case and had to be determined before any conclusion could be reached.

The respondent’s submission that the evidence that Mr Doohan “punched and kicked Mr Ellis” is in Mr Ellis’s handwritten statement is incorrect. Though that statement is difficult to read, partly because it is a poor copy and partly because of Mr Ellis’s handwriting, the best that I can decipher, consistent with the submission made by the respondent’s counsel at the arbitration at T23.20, is that Mr Ellis said that, while he was on the ground, he “felt very hard thuds to [his] back” and he turned and saw Mr Doohan. He added that he started to yell for help, which “worked enough for them to let me go and to stop kicking me”. He did not say that Mr Doohan had punched him.
Mr Ellis’s unsigned handwritten statement is largely consistent with his statement to the police dated 17 August 2011, in which he said that when he was “on the ground [he] could feel a hard pounding to [his] back” and could clearly see that it was Mr Doohan “who was kicking”. He added that he was still being punched in the head as Mr Doohan was kicking him. He yelled for help and “they both got off [him]”. As he stood up, he punched Mr Doohan “to try and get rid of him” and, when he did that, Mr Morton attacked him again. As Mr Ellis ran at Mr Morton, Mr Doohan pulled his (Mr Ellis’s) jacket over his head. When he got his jacket off his head, Mr Ellis tried to run after Mr Doohan “to make him stop attacking me and make him go away”. When he did that, Mr Doohan kicked him in the stomach, as Mr Ellis tried to punch him.
It is tolerably clear from Mr Ellis’s evidence that he did not allege that Mr Doohan had punched him. His consistent allegation was that Mr Doohan kicked him while he was on the ground and again when he ran at him. If follows that Mr Ellis’s evidence, even if it were accepted, does not support the Arbitrator’s critical conclusion that Mr Doohan “kicked and punched Mr Ellis”.
The evidence closest to the Arbitrator’s conclusion is from “Colin”, as recorded by Ms Collins. However, his account is ambiguous. It is equally consistent with Mr Ellis being kicked by Mr Doohan and punched by Mr Morton, as it is with Mr Doohan kicking and punching Mr Ellis. In any event, as already noted, the Arbitrator did not say if she accepted or rejected his account.
Whether Mr Ellis made his handwritten statement on 3 August 2011, as submitted by the respondent, or on 2 September 2011, as submitted by the appellant, is not critical to the outcome of the appeal. However, the evidence from Ms Collins strongly supports the conclusion that the statement was prepared on 3 August 2011. She said (at [72] of her statement) that Mr Ellis and Mr Kautai presented at the respondent’s Brookvale premises (presumably on the afternoon of the altercation) and that Mr Ellis “gave an account of the circumstances of the altercation in question and I have provided a copy of the same” to the investigators. I do not understand it to be disputed that the statement Ms Collins referred to is Mr Ellis’s handwritten statement, which is attached to the investigator’s report. If that is correct, it was clearly prepared on 3 August 2011.
More importantly, as the appellant has submitted on appeal, though the Arbitrator set out a detailed summary of the evidence, she did not analyse or weigh the evidence in an attempt to resolve the conflicts in it, and did not indicate which evidence she accepted and which she rejected, but merely expressed a conclusion that is not supported by any evidence. That error goes to the heart of the dispute between the parties, namely, whether Mr Doohan’s actions took him outside the course of his employment. If he did not kick Mr Ellis, and he denies having assaulted Mr Ellis (though he did not specifically deal with the kicking allegation) and was merely attempting to stop the fight so that work could resume, he has a strong argument that his injury either occurred in the course of his employment or arose out of it.
Contrary to the appellant’s submissions, whether there was any animosity between the three men was a relevant issue to determining if Mr Doohan did more than merely attempt to break up the fight.
Ms Collins’s evidence is that she received text messages from Mr Doohan to “the following effect: ‘this guy is an idiot’, ‘he does my head in’, ‘black cunt’ and ‘dumb fuck’” and that she was not sure why Mr Doohan sent her such messages. Though Ms Collins did not expressly state it, the inference is that Mr Ellis was the subject of the comments in the text messages. Whether Mr Doohan made those comments to Mr Ellis is unclear and not satisfactorily dealt with in the evidence.
If it is accepted that Mr Doohan sent the text messages to Ms Collins, and that he was referring to Mr Ellis, and it is unclear if the Arbitrator accepted that to be so or not, it provides evidence to support a conclusion that Mr Doohan made comments about Mr Ellis that were racist, repugnant and unacceptable, and that there was a degree of ill will between Mr Doohan and Mr Ellis. Such a conclusion is consistent with Mr Doohan asking Ms Collins that Mr Ellis be told not to threaten him with scissors.
Clearly, there were significant issues between Mr Doohan and Mr Ellis, and the Arbitrator was entitled to consider those issues in her assessment of the case. Whether she placed undue weight on the evidence of animosity is unclear because she did not explain how the animosity contributed to her conclusion and this matter will need to be addressed further at the re-determination.
Whether the fight took less than one minute is not determinative of whether Mr Doohan was merely attempting to stop it or was a fellow perpetrator whose actions took him outside the course of his employment. As the respondent submitted, the length of the fight cannot be used as an indication of the nature of the incident or the parties’ intentions. I reject the appellant’s submissions on this point.
While it may well have been open to the Arbitrator to conclude that Mr Doohan’s actions were excessive, violent, inappropriate and wrongful behaviour in the workplace, given the conflicting evidence, it was not open to reach that conclusion without first determining which evidence was accepted and which was rejected, and why. Even if the Arbitrator accepted Mr Ellis’s version, that does not support a finding that Mr Doohan “kicked and punched Mr Ellis” and, for this reason alone, the decision cannot stand.
Finally, I do not accept Mr Moffet’s submission that the content of the telephone calls made by Mr Ellis and Mr Morton to Ms Collins are more reliable, and should be accepted over other evidence, because they were part of the res gestae. As the phone calls were made after the altercation, and not contemporaneously with it, it is doubtful that they are part of the res gestae. Moreover, the doctrine of res gestae is a rule of inclusion that provides an exception to the rule against hearsay. As the Commission is not bound by the rules of evidence, and the conversations are admissible without resort to the doctrine, it is difficult to see what role it has to play in proceedings in the Commission. The doctrine says nothing about the weight to be attached to the evidence that is admitted as part of the res gestae.
The weight to be attached to the telephone conversations on 3 August 2011 is a matter for the next Arbitrator. In passing, I note that, as Ms Collins put Mr Ellis on hold while she was talking to him so she could take another incoming call, it is extremely doubtful that the conversation involved Mr Ellis or Mr Morton providing a full account of what happened. The conversations are evidence that the Arbitrator will be entitled to consider and weigh against the other evidence in the case.

OTHER MATTERS

The appellant’s legal advisers have presented this appeal in a most unsatisfactory way. The initial notice of appeal identified five grounds of appeal and indicated further submissions would be added within the timetable given by the Commission. In general, the further submissions did not address the five pleaded grounds of appeal, but presented arguments appropriate for a review or rehearing and made additional allegations of error by the Arbitrator.
Though the respondent was not prejudiced by this approach, because the appeal has turned on the errors identified in the initial notice of appeal and the respondent had every opportunity to respond to the further submissions, it is not an approach that should be repeated. The Commission has repeatedly held, consistent with Practice Direction No 6, that submissions in support of an appeal must deal clearly and succinctly with each ground of appeal. The appellant’s further submissions did not do that, but embarked on a narrative of the evidence said to support his position.

CONCLUSION

The Arbitrator erred in failing to explain why she concluded that Mr Doohan “kicked and punched Mr Ellis” when that conclusion was not supported by any clear evidence to that effect. In failing to consider and weigh the evidence and indicate which evidence she accepted and which she rejected, the Arbitrator failed to exercise her statutory duty to fairly determine the issues and give reasons for her conclusions. The Arbitrator’s error does not, however, lead to the conclusion urged by the appellant, but means that the matter must be re-determined.
In view of the questions involved, the unsatisfactory state of the evidence in general (I refer in particular to the poor copy of Mr Ellis’s statement and Mr Doohan’s failure to deal with the allegation that he kicked Mr Ellis), and the narrow submissions by the respondent on appeal (which were restricted to whether the Arbitrator had erred as alleged), it is necessary for this matter to be re-determined by a different Arbitrator, when each side will be at liberty to adduce such further evidence as they consider appropriate. At the least, I would have thought that evidence should be led as to when Mr Ellis prepared his unsigned statement and that the original of that statement (or at least a clean copy) should be tendered. It is unacceptable for a party to tender documents in the condition of those attached to the reply in this matter.

DECISION

The Arbitrator’s determination of 9 May 2012 is revoked and the matter is remitted to a different Arbitrator for re-determination. Costs of the first arbitration and of the second arbitration are to follow the event of the second arbitration.

COSTS

The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.

Bill Roche

Deputy President
10 August 2012

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

ASSOCIATE