Fletcher International Exports Pty Limited v Adams
[2007] NSWWCCPD 21
•24 January 2007
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| STATUS: Decision confirmed on Appeal: Adams v Fletcher International Exports Pty Ltd [2008] NSWCA 238 | |||||
| CITATION: | Fletcher International Exports Pty Limited v Adams [2007] NSWWCCPD 21 | ||||
| APPELLANT: | Fletcher International Exports Pty Limited | ||||
| RESPONDENT: | Anthony Thomas Adams | ||||
| INSURER: | Self insurer | ||||
| FILE NUMBER: | WCC927-05 | ||||
| DATE OF ARBITRATOR’S DECISION: | 14 June 2006 | ||||
| DATE OF APPEAL DECISION: | 24 January 2007 | ||||
| SUBJECT MATTER OF DECISION: | Sections 149(1) and 151A of the Workers Compensation Act 1987; Section 234 of the Workplace Injury Management and Workers Compensation Act 1998; Section 304 of the Duties Act 1997, and Construction of deed of release. | ||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Kevin O’Grady | ||||
| HEARING: | Determined on the papers | ||||
| REPRESENTATION: | Appellant: | Leigh Virtue & Associates | |||
| Respondent: | McCabe Partners Lawyers | ||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator, dated 14 June 2006, is revoked and the following decision is made in its place: | ||||
| “Award for the Respondent. | |||||
| No Order as to costs.” | |||||
| No order as to costs of this Appeal | |||||
BACKGROUND TO THE APPEAL
On 15 June 2006 Fletcher International Exports Pty Limited (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 14 June 2006.
The Respondent to the Appeal is Anthony Thomas Adams (‘the Respondent’).
The Respondent, who was born on 2 September 1954, was employed by the Appellant as a Boner. It was alleged by the Respondent that he suffered injury within the meaning of the Workers Compensation Act 1987 (‘the 1987 Act’) being to his neck, right upper limb, left upper limb, back and left lower limb and further the contraction of the disease of psoriatic arthritis.
On 20 January 2005 the Respondent commenced proceedings against the Appellant by way of an Application to Resolve a Dispute (‘the Application’) filed with the Commission. That Application alleged incapacity as a result of the abovementioned injuries and orders were sought with respect to payment of weekly compensation, medical hospital or related expenses and lump sums in respect of permanent impairment/pain and suffering. Details of the dates and circumstances of the relevant injuries as alleged in the Application were the subject of amendment during conduct of the Application before the Commission.
The Application first came on for hearing before an Arbitrator on 8 June 2005. On that occasion the Respondent sought to amend his claim and the Appellant, by reason of the proposed amendments, sought an adjournment. It appears that the amendments sought by the Respondent were granted and, as noted by the Arbitrator “the substantive issues in relation to the Applicant’s claim could not proceed on that day” (see Statement of Reasons for Decision dated 25 July 2005). The Arbitrator, on that day, did hear submissions from the parties with respect to what was described by her as a “threshold issue”. That “issue” concerned the force and effect of a Deed of Release which had been signed by the parties and which, together with other material, was in evidence before the Commission.
On 25 July 2005 the Arbitrator made a determination in the following terms:
“1.The Deed of Settlement (undated) and entered into between the Applicant and the Respondent does not prevent the Applicant from bringing these proceedings in the Workers Compensation Commission.
2.The proceedings will continue to arbitration on 1 August 2005.”
That Determination by the Arbitrator was the subject of an appeal brought by the Appellant. That appeal was heard by Byron DP, and the Deputy President’s determination of the appeal was published on 2 February 2006. The Appellant’s appeal was upheld and the following orders were made:
“The decision of the Arbitrator, dated 28 July 2005 (sic), is revoked and the matter is remitted to the Arbitrator concerned for determination of the correct issue in dispute, in accordance with these reasons.
The Arbitrator is to seek from each of the parties, and take into account if and when received or made in accordance with her directions, further written oral submissions in relation to the issue in dispute, before proceeding to determine the issue.
No order is made as to costs of this appeal.”
Following that determination made on appeal the Respondent’s original Application came before the Arbitrator for further hearing on 28 March 2006 and a Certificate of Determination issued on 14 June 2006 (I note in passing that submissions of the parties were also received by her on 1 August 2005).
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 14 June 2006 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1.That the Respondent pay the Applicant weekly compensation as follows:
·From 20 June 2003 to 30 June 2003 at the rate of $286.77
·From 1 July 2003 to date at the maximum statutory rate for a worker with a dependant spouse and one dependant child.
Such payments to continue in accordance with the provisions of the Act.
2.That the Respondent pay the applicant’s expenses pursuant to s.60 of the Workers Compensation Act 1987 on production of accounts or receipts.
3.That the Applicant’s claim for compensation as a result of injuries to his neck, right upper limb, back and left lower limb be dismissed for lack of jurisdiction.
4.That the Respondent pay the Applicant’s costs as agreed or assessed. The matter is certified as complex for the purposes of assessment of costs.
The Commission also directs that the assessment of the level of impairment of the Applicant’s left hand and wrist (left upper extremity) as a result of the injury be referred to an approved medical specialist to be chosen by the Registrar.
A brief statement of reasons for determination, in accordance with Rule 73 of the Workers Compensation Commission Rules 2003, is attached.”
The Arbitrator, in her Reasons for Determination (‘Reasons’), addressed the “threshold issue” concerning the effect of a Deed executed by the parties and made a finding in favour of the Respondent both as to the admissibility of the Deed and as to its effect in law. These matters are more fully addressed hereunder.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)Whether the Respondent had received damages in respect of the injuries alleged in the Application and was thereby debarred from recovery of workers compensation benefits.
(ii)Whether the Arbitrator had reversed the onus of proof with respect to issues raised by the content of the Deed of Release executed by the parties.
(iii)Whether the Arbitrator misdirected herself as to the “categorization of the damages paid”.
(iv)Whether the Arbitrator erred “in purporting to consider that the conditions by which the damages were paid to the worker constitute a condition which is bad for uncertainty”.
(v)Whether the Arbitrator erred with respect to her application of the provisions of section 234 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
(vi)Whether the Arbitrator erred in her approach to the evidence when determining the Respondent’s entitlement pursuant to section 40 of the 1987 Act.
(vii)Whether the Arbitrator erred with respect to her rejection of the evidence of the Approved Medical Specialist Dr Sally Preston whose Medical Assessment Certificate was in evidence before the Commission.
(viii)Whether the Arbitrator erred in her determination of medical issues raised on the expert medical evidence.
(ix)Whether the Arbitrator erred with respect to her determination of the deemed date of injury in terms of section 16 of the 1987 Act.
(x)Whether the Arbitrator erred in concluding that the Appellant was “the employer who last employed the worker” in terms of section 16(1)(b) of the 1987 Act.
(xi)Whether the Arbitrator erred in her “consideration and application” of section 9A of the 1987 Act.
(xii)Whether the Arbitrator erred in her conclusion of fact with respect to the physical capacity of the Respondent and with respect to her determination of the Respondent’s economic incapacity.
(xiii)Whether the Arbitrator’s approach to the evidence of Dr Preston demonstrated bias or bad faith on the part of the Arbitrator.
The summary of the issues as set forth above is taken from the Appellant’s document headed “Grounds of Appeal” and from supplementary Submissions delivered by the Appellant on 14 November 2006 following its receipt of a full transcript of proceedings conducted before the Arbitrator. It may be seen that the Appellant suggests errors both of law and as to the determination of fact, as well as denial of procedural fairness founded upon suggested bias or bad faith as raised in the Grounds of Appeal and Submissions.
The matters above summarised have been the subject of submissions in response by the Respondent in written Submissions.
ON THE PAPERS REVIEW
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.”
The Appellant asserts that the appeal raises “numerous complex and difficult legal issues” which require the appointment of a hearing before a Presidential Member. The Respondent consents to the appeal being determined on the papers.
Having regard to Practice Directions Numbers 1 and 6, and the documents that are before me, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the Application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on the appeal is such that the subject matter of the appeal meets the relevant threshold requirements for section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The requirements of section 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
FRESH EVIDENCE
The admission of “fresh evidence” on appeal is governed by section 352(6) of the 1998 Act and Practice Direction No.6 sets forth the procedure for seeking leave of the Commission to adduce “new evidence”.
There has been no application made on behalf of either party to this appeal seeking the Commission’s leave to adduce “fresh evidence”. Indeed, the Respondent’s Notice of Opposition to this appeal stated (at par. 2.6) that he did not seek to rely on new evidence. There is, however, a document headed “Application to Admit Late Documents” filed by the Respondent’s Solicitors with the Commission’s registry on 15 August 2006. The form of that document complies generally with Form 2C as prescribed by the Commission and has annexed to it a copy of a Statement by the Respondent dated 4 August 2006. The filing of such a document in this appeal is, in my view, misconceived. The form of the document is appropriate in circumstances where a party seeks leave to introduce late evidence, a late reply or a late response in the course of conduct of an Application to Resolve a Dispute.
It may reasonably be inferred that the Respondent’s Solicitors have erroneously relied upon the procedure appropriate to an Application for Leave to Admit Late Evidence rather than seeking leave in accordance with section 352(6) of the 1998 Act and complying with the contents of Practice Direction No.6. Failure to comply with the last mentioned section and the Practice Direction defeats any application for leave which may properly be entertained even in the event that the Commission was to treat the reliance upon the document as merely an irregularity in terms of the former Workers Compensation Commission Rule 6(5). Having regard to all the circumstances, in particular having regard to the Respondent’s non compliance with the statutory and procedural requirements earlier mentioned, I determine the filing of the Application to Admit Late Documents to be a nullity.
EVIDENCE AND SUBMISSIONS
The Arbitrator’s Reasons for Determination (‘Reasons’) accompany the “Certificate of Determination” referred to in paragraph 9 and a copy of same is before the Commission. Also before the Commission are copies of transcript of proceedings before the Arbitrator conducted on 8 June 2005, 1 August 2005 and 28 March 2006.
As noted above the Respondent on 8 June 2005, being the first day of proceedings before the Arbitrator, sought leave to amend the particulars of injury as appear in his original Application. Whilst it is clear that that amendment was permitted by the Arbitrator there is no record before the Commission of the precise terms of the Respondent’s application to so amend (other than some handwritten alterations to the Application). It is clear (at page 74, line 50 to page 75, line 2 of transcript of proceedings dated 1 August 2005) that the injuries alleged, following amendment, were:
“…disease arising out of or during the course of the Applicant’s employment with the Respondent from 1999 to February 2003 or in the alternative a disease arising out of the Applicant’s employment with the Respondent to 20 June 2003.”
The Arbitrator is recorded as then observing:
“… and it’s noted that we are looking at whether the disease was caused or aggravated or accelerated or exacerbated by the employment as alleged.”
It appears that there was no amendment to that part of the Respondent’s original Application where “injury description” appears at page 12. That description is as follows:
“Left hand and wrist, injury to neck, right arm, left arm, back, and left leg.”
It is clear, having regard to the recorded submissions of the parties appearing in the transcripts, that the “disease” alleged by the Respondent was that of psoriatic arthritis. Whilst it is unsatisfactory that there is no clear record as to the precise allegation of injury made by the Respondent in the proceedings before the Arbitrator it is, again having regard to the contents of the transcripts of submissions by the parties, clear that the Respondent was alleging injury to those parts of his body aforementioned as well as cause and/or aggravation of the arthritic condition by reason of the nature and conditions of his work from 1999 to February 2003 or 20 June 2003.
The documentary evidence adduced by the parties before the Arbitrator is noted at paragraph 16 of her Reasons. In addition to that material it is further noted that a Medical Assessment Certificate (‘MAC’) of Dr Sally Preston dated 11 October 2005 was in evidence before the Arbitrator.
The Respondent’s employment with the Appellant commenced on 15 September 1988 and continued until termination of that employment on 20 June 2003. At the date of termination the Respondent was on leave. The Respondent’s Statements which were in evidence outline the nature and conditions of his employment and detail development of pain and discomfort in various parts of his body in particular his left hand. It was stated by the Respondent that loss of grip strength and movement in his left hand was due to the repetitive nature and heavy work conducted in the course of his employment with the Appellant. The Respondent proceeded to describe the onset of a skin condition on his left hand and outlined the medical treatment which he obtained from various Practitioners in 2003. The Respondent was placed on restricted duties in late February 2003 by his employer by reason of the disability in his left wrist and hand. The Respondent states (at paragraph 29 of Statement dated 10 May 2004) that the “restricted” work as there described “did cause aggravation to my hand pain”.
The Respondent’s Statements contain detail of his employment following termination with the Appellant commencing on 16 August 2003 being casual light building work with Peel Valley Constructions Pty Limited. That employment continued for approximately 2½ months. Detail of subsequent employment is contained in the Respondent’s evidence.
The medical evidence adduced by the Respondent is carefully summarised by the Arbitrator at paragraph 26 of her Reasons. That evidence included reports from Dr Zhou, Dr Wheen, Dr Mahony, Dr Browne and Dr Peter Johnson. It can be seen from the Arbitrator’s summary of that material that most attention is given to the diagnosed condition of “psoriatic arthropathy mainly affecting the left hand”. It may be generally stated that medical witnesses in the Respondent’s case supported the proposition that his work duties aggravated and accelerated the disease process experienced in his left hand. It was Dr Mahony who diagnosed:
“cervical strain, a capsulitis of his left shoulder, a generalised strain of the right wrist and hand as well as a more marked strain of the left wrist … marked restriction of movement of the fingers and less so of the thumb of the left hand and … early dupuytrens thickening in the palm of the left hand proximal to the left middle finger.”
Dr Mahony noted the existence in the Respondent of “advanced psoriasis” and proceeded to note that the Respondent “has symptoms referable to a thoracic strain as well as a low lumbar back strain and an injury to the upper fibres of the medial ligament of the left knee.” Dr Mahony stated that:
“It is consistent that the nature of his work has produced such lesions, however, it is recognised that psoriasis can produce arthritis changes although I would consider that the nature of his work has aggravated these changes and accelerated the degenerate change in his left hand.”
The medical evidence adduced on behalf of the Appellant is summarised in detail at paragraph 27 of the Arbitrator’s Reasons. That evidence included reports by Dr Potter, Dr Hughes and Dr Edwards. The general thrust of the medical material relied upon by the Appellant was that there was no relationship between the Respondent’s employment with the Appellant and the development of the pathology of his left hand either as cause and/or aggravation.
The MAC issued by Dr Preston is also addressed by the Arbitrator at paragraph 27 of her Reasons. Dr Preston diagnosed the condition of psoriatic arthritis which had particularly affected the Respondent’s left hand and wrist with associated distal interphalangeal joint fusion and involvement of identified joints of the left wrist. Dr Preston proceeded to express the view that she did not consider the Respondent’s employment to have been a substantial contributing factor with respect to his psoriatic arthritis and stated that such condition is “a constitutional condition”.
Included amongst the documentary evidence was a copy of an Application for Relief in Relation to Termination of Employment filed with the NSW Registry of the Australian Industrial Relations Commission on behalf of the Respondent bearing date 10 July 2003. That Application related to the termination of the Respondent’s employment with the Appellant on 20 June 2003. The relief sought was stated in paragraph 22 of that Application as being “reinstatement”, “an amount in relation to remuneration lost because of the termination” or in the alternative “re-employment to a suitable position”. Paragraph 17 of that document noted that the Respondent was represented by the Australasian Meat Industry Employees’ Union – NSW Branch.
Documentary evidence adduced by the Appellant included a document headed “DEED OF RELEASE”. That document does not bear a date. The document takes the form of a deed and cites the parties as being the Appellant and the Respondent and contains a series of five recitals. Following those recitals the document contains seventeen clauses each representing covenants as to agreement or consent. At the foot of page 3 (the final page of the document) the words “EXECUTED by the parties as a Deed” appear. It is common ground that the signatures that appear thereunder are that of Mr Fletcher signing on behalf of the Appellant and that of the Respondent. Detail as to the content of the Deed of Release (‘the Deed’) is addressed hereunder.
Also included among the documentary evidence adduced by the Appellant is a copy of correspondence bearing date 17 January 2005 from the Appellant to the Respondent. That document is headed “Your Compensation Claim” and the text of the correspondence is as follows:
“Thank you for providing us with a signed Deed of Release. We enclose a cheque made payable to you in the sum of $2,500 being in respect of the agreed work injury damages.”
It is signed on behalf of the Appellant by Mr Ulgiati. It is not in dispute between the parties that the correspondence together with the cheque mentioned therein had been received by the Respondent.
Submissions
Both at the hearing and on this appeal the Appellant submitted that, having regard to the contents of the Deed and the evidence of payment as stated in the correspondence dated 17 January 2005 it was established that the Respondent had recovered damages in respect of the injuries the subject of the Respondent’s Application and was thereby disentitled to any further compensation under the 1987 Act by reason of the provisions of section 151A(1) of that Act. With respect to that question the Respondent submits on this appeal that the Arbitrator erred in numerous respects including that the Arbitrator wrongly reversed the onus of proof with respect to issues raised by the content of the Deed; misdirected herself as to “categorisation of the damages paid” pursuant to the terms of the Deed; that the Arbitrator erred with respect to her finding as to the terms of the Deed with respect to payment of damages as being “uncertain”; that the Arbitrator erred with respect to her consideration and application of the provisions of section 234 of the 1998 Act.
The “Grounds of Appeal” and Supplementary Submissions filed on this appeal suggested errors on the part of the Arbitrator with respect to the following matters:
1. the application of the provisions of section 40 to the evidence,
2. the rejection of the evidence of the AMS Dr Preston,
3.in the manner of determination of medical issues raised on the expert medical evidence,
4.with respect to the application of section 16 of the 1987 Act to the evidence and the facts found,
5.with respect to the finding made with respect to the elements raised for determination by section 16(1)(b) of the 1987 Act,
6.in respect of her consideration and application of section 9A of the 1987 Act.
The Appellant further submitted that the Arbitrator’s evaluation of the evidence of the AMS Dr Preston demonstrated bias against the Appellant or bad faith towards it.
The Appellant further submits on this appeal that the Arbitrator erred in respect of her conclusions of fact concerning the physical capacity of the Respondent and with respect to any resultant economic incapacity suffered by him.
On the last of the three days of hearing before the Arbitrator, at which time Counsel was retained to appear on behalf of the Respondent, a submission was put on his behalf that the Deed may not be considered by any Court or Tribunal because it was “not stamped”. That objection is recorded at page 17 and page 19 of the transcript of proceedings of that day. That argument was not elaborated and indeed there is no elucidation of the statutory basis or otherwise upon which that point was taken. It is convenient to note here that the Arbitrator did not rule on that objection at the hearing however it may be seen from her Reasons that the Respondent’s argument was rejected and the Deed formed part of the evidence before the Commission. Whilst there is no point of contention raised by the Respondent on this appeal with respect to that ruling as to the admissibility of the Deed I consider it appropriate that the Respondent’s objection at the hearing and the Arbitrator’s ruling with respect to same is addressed on this appeal and that appears below.
The Respondent in his submissions on this appeal seeks to refute those arguments raised by the Appellant and to support the conclusions reached by the Arbitrator as revealed in her Reasons.
It is submitted by the Respondent that the terms of the Deed “when analysed was found to be ambiguous and as a matter of factual interpretation found to not lead to the recovery of damages by the worker”.
The Respondent places reliance upon the provisions of section 234 of the 1998 Act and submits that that section “was applicable to void the parties contracting out of their responsibilities and liabilities under the Act”.
The balance of the Respondent’s submissions briefly address the matters raised on behalf of the Appellant on this appeal and seek to support the Arbitrator’s conclusions of fact and her application of the relevant law.
DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5)An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was the subject of examination by Dr Fleming DP in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6. In summary, the Commission’s conclusion in the last mentioned decision was that a proceeding such as the present is not an “appeal” in the strict sense nor is it a hearing de novo. It was further stated in the course of that afore mentioned decision that such power to “review” is exercisable only where it can be demonstrated that the original decision of the Arbitrator was affected by legal, factual or discretionary error.
Admissibility of Deed of Release
As noted above the Appellant at the hearing relied upon the contents of the Deed of Release (undated) executed by the parties together with evidence of payment by the Appellant to the Respondent of the sum of $2,500, as provided by Clause 1 of the operative part of the Deed, as evidence of receipt by the Respondent of “damages” in respect of the injuries the subject of the Application within the meaning of section 151A of the 1987 Act. Before examining the form and content of those documents it is proposed to address the question as to whether the document headed “Deed of Release” (‘the Deed’) was properly received into evidence at the hearing by the Arbitrator (see Reasons paragraphs 73 to 77).
Objection, as noted above, was taken to the admission of the Deed by Counsel appearing on behalf of the Respondent on the last day of proceedings namely 28 March 2006. It was then stated (page 17 transcript 28/3/06 at line 6):
“MR DODD: ... if they’re going to rely upon the deed, it’s in contravention of the Duties Act of New South Wales and it’s not stamped, as it must be to be considered by any court or Tribunal in this State. And if that’s the only evidence he’s got [inaudible].”
The Deed was admitted in evidence over the objection of Counsel.
Whilst no point of contention or other objection has been raised on this appeal with respect to the Arbitrator’s ruling as to the admissibility of the Deed I am of the view that examination of the Arbitrator’s Reasons is appropriate having regard to the terms of the relevant provisions of the Duties Act 1997.
In her Reasons the Arbitrator (at paragraph 73) addressed the question before her as to admissibility of the Deed with reference to the provisions of section 29 of the Stamp Duties Act 1920. Whilst that Act remains in force in this State it is clear, having regard to the probable date of execution of the Deed, that the relevant provision is that to be found in section 304 of the Duties Act 1997 which provides as follows:
“304 Receipt of instruments in evidence
(1) An instrument that effects a dutiable transaction or is chargeable with duty under this Act is not available for use in law or equity for any purpose and may not be presented in evidence in a court or tribunal exercising civil jurisdiction unless:
(a) it is duly stamped, or
(b) it is stamped by the Chief Commissioner or in a manner approved by the Chief Commissioner.
(2) A court or tribunal may admit in evidence an instrument that effects a dutiable transaction, or is chargeable with duty in accordance with the provisions of this Act, and that does not comply with subsection (1):
(a) if the instrument is after its admission transmitted to the Chief Commissioner in accordance with arrangements approved by the court or tribunal, or
(b) if (where the person who produces the instrument is not the person so liable to pay the duty) the name and address of the person so liable is forwarded, together with the instrument, to the Chief Commissioner in accordance with arrangements approved by the court or tribunal.
(3) A court or tribunal may admit in evidence an unexecuted copy of an instrument that effects a dutiable transaction, or is chargeable with duty in accordance with the provisions of this Act, if the court or tribunal is satisfied that:
(a) the instrument of which it is a copy is duly stamped, or is stamped in a manner approved by the Chief Commissioner, or
(b) the copy is duly stamped under section 299.”
That the Deed has not been “stamped” is not in dispute however the question remains as to whether the Deed is “an instrument that effects a dutiable transaction or is chargeable with duty under this Act” within the meaning of section 304 above quoted. It was stated by the late learned author of Duties Legislation NSW, Hill Aitken Cannon (Lawbook Company, Sydney) that (when addressing the provisions of the Duties Act 1997):
“There is no imposition of duty on releases as such in the present legislation. To the extent that a release operates as a transfer of dutiable property, as for example a release of a partnership interest where all the title to the partnership property was in one partner, in such a case the release would operate to transfer to the other partner the interest of the releasing partner in the partnership property. If this involved an interest in dutiable property duty would be payable but as a transfer, not because it was a release.”
It is my view, having regard in particular to the provisions of sections 8 and 11 of the Duties Act 1997 that the Deed relied upon by the Appellant is not an instrument that effects a dutiable transaction in terms of section 304 of that Act and I respectfully agree with the Arbitrator’s ruling as to the admissibility of the Deed. I note in passing that I, with respect, disagree with the Arbitrator’s assertion at paragraph 75 of her Reasons that the provisions of section 354(1) of the 1998 Act would permit the Commission to disregard, in an appropriate case, the provisions of section 304 of the Duties Act 1997.
Effect of the Deed
The undated document headed “DEED OF RELEASE” contained the following Recitals:
“A.The employee carried out work for the employer from 15th December, 1988 to 20th June, 2003.
B.The employee has commenced proceedings against the employer in the Australian Industrial Relations Commission of New South Wales in matter numbers U2003/4712 and C2004/15.
C.In addition the employee has alleged that he has sustained work injuries as a result of the nature and conditions of his employment with the employer throughout the entire period of that employment including but not limited to an injury to his left hand and wrist.
D.The employer has denied the allegations made by the employee in the proceedings and otherwise;
E.The employer and the employee have agreed to resolve these proceedings and all other claims or possible claims for damages by or on behalf of the employee against the employer and its officers, employees, successors, heirs and assigns on the basis set out in this Deed;”
The operative parts of the Deed relevant to the Appellant’s submission as to its force and effect are as follows:
“1.The employer agrees to pay to the employee an amount of two thousand, five hundred dollars ($2,500.00) in respect of general and other damages with such payment to be made within 28 days after receipt by the employer of this Deed of Release signed by the employee.
2. The parties agree that the payment referred to in clause one (1) does not constitute an admission of liability by the employer in respect of any claim or allegation made by the employee.
3. In consideration of the payment referred to in clause one (1) the employee releases and will release the employer and each of it’s related bodies corporate, officers, employees, successors, heirs and assigns from all claims and liabilities of any nature (including any costs) connected with or incidental to:-
a)the proceedings and any possible proceedings;
b)the circumstances or allegations referred to in the proceedings and any possible proceedings or upon which the proceedings and any possible proceedings were, are or could be based;
c)the employment of the employee including but not limited to the circumstances of the termination of that employment and any matter, act, or thing occurring during the course of that employment.
d)Any entitlements to damages of any kind including but not limited to any entitlement to work injury damages or damages under the Anti Discrimination Legislation consequent upon the injuries referred to in the Recitals or otherwise;
4. The employee will file a notice of discontinuance with the New South Wales Australian Industrial Relations Commission within 7 days of receipt of the payment referred to in Paragraph 1 hereof.
5. Each party shall take all steps, execute all documents and do everything reasonably required by the other party to give effect to the transaction contemplated by this Deed.
…
10. The parties acknowledge that they enter into this Deed fully and voluntarily on their own information and investigation and that it is their intention to and they do fully, finally, absolutely, and forever settle according to the provisions of this Deed any and all liabilities, claims, disputes, and differences which now exist or may exist or have ever existed between them relating in any way to the matters the subject of this Deed.
…
12. This Deed may be pleaded as a bar to any action, suit, or proceedings commenced, continued or taken by any party to this Deed or on its behalf in connection with any of the matters referred to in this Deed except for breach of a provision of this Deed.
… … …”
The Appellant relies upon the contents of correspondence dated 17 January 2005 as providing a basis for inference that the Appellant has paid to the Respondent the sum of $2,500 as provided in clause 1 of the Deed. There is no evidence adduced by the Respondent to refute such inference and accordingly there is, in my view ample evidence of payment.
The efficacy of the Deed is not, in my view, affected by reason of the fact that it remains undated. The Deed refers to proceedings commenced on behalf of the Respondent in the Australian Industrial Relations Commission of NSW. In evidence before the Arbitrator there is a copy of the Respondent’s Application in that jurisdiction which bears date 10 July 2003. Having regard to the date borne by that last mentioned Application and the date of the correspondence relating to payment it is clear that the Deed was executed at some time between July 2003 and January 2005. It is to be noted that the Respondent last performed duties for the Appellant in June 2003.
It is the Appellant’s submission that having regard to the terms of the Deed, the evidence of payment pursuant to that Deed and the provisions of section 151A of the 1987 Act the Respondent is debarred from receiving compensation under that Act in respect of the injuries alleged. So far as is relevant section 151A of the 1987 Act provides:
“151A (1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act then (except to the extent that subsection (2), (3) or (4) covers the case):
(a)the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and
(b)the amount of any weekly payments of compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and
(c)the person ceases to be entitled to participate in any injury management program provided for under this Act or the 1998 Act.”
The Respondent in his submissions on this appeal seeks to argue that:
“In the Deed, it was never ‘clearly indicated that payment was in respect of the worker’s injuries’. In fact, the Deed when analysed was found to be ambiguous and as a matter of factual interpretation found to not lead to the recovery of damages by the worker.”
The Respondent in his submissions also placed reliance upon the provisions of section 234 of the 1998 Act (wrongly cited as the 1987 Act). The provisions of that section are as follows:
“234 This Act and the 1987 Act apply despite any contract to the contrary.”
It is the Respondent’s argument that the last mentioned section “was applicable to void the parties contracting out of their responsibilities and liabilities under the Act. The fact was there were no District Court proceedings on foot and therefore the consideration regarding ‘terms of settlement’ for such proceedings are quite irrelevant.”
The Arbitrator has recorded the parties’ submissions with respect to the question as to “the effect of the Deed” at paragraphs 29 to 39 of her Reasons. The Arbitrator’s determination in respect of questions raised by reason of the existence of the Deed appear at paragraphs 73 to 88 of her Reasons.
The Arbitrator following a consideration of the relevant statutory provisions, the authorities cited by her at paragraphs 80 and 86 of her Reasons and the terms of the Deed concluded (at para 88):
“88.Accordingly I find that the Applicant has not been paid damages “in respect of the injury concerned” and therefore does not cease to be entitled to payment of compensation under the 1987 Act, ‘in respect of the injury concerned’.”
The Arbitrator’s conclusion with respect to this issue appears from her Reasons to be founded upon her construction of the terms of the Deed. It was stated by the Arbitrator (at paragraph 87):
“87.It is the terms of the Deed of Settlement [sic] that are of relevance here. The Deed makes no reference to rights under the Workers Compensation Act except by implication in Recital C and Clause 3. I do not regard the reference in Recital C to the Applicant sustaining ‘work injuries … including but not limited to his left hand and wrist’ as sufficiently close to the injuries pleaded in the Application for Determination which is before the Commission, which, as noted above, includes a claim for compensation for injuries to the neck, right upper limb, left upper limb, back and left lower limb, psoriatic arthritis, being a disease of such a nature as to be contracted by a gradual process’ or ‘the aggravation, acceleration, exacerbation and/or deterioration’ of a disease. In order for the Applicant to be found to have settled his claim for compensation under the Act, greater specificity in relation to the injuries claimed should have been included in the Deed for there to be said to be an identity of injury and therefore, a settlement in relation to the injury (or injuries) as claimed.”
The question as to whether the provisions of section 151A of the 1987 Act operate to debar recovery by the Respondent of compensation requires that the Deed be construed to determine what was in fact the “injury” (or injuries) in respect of which the Respondent recovered the monies described in that instrument as damages. It is asserted by the Respondent, as above noted, that the “Deed when analysed was found to be ambiguous …”. It is my view that such submission misstates the findings of the Arbitrator. The reasoning demonstrated in paragraphs 87 and 88 of her Reasons makes it clear, in my opinion, that the Arbitrator was not satisfied that the verbiage of the Deed was such as to establish, as stated by Burke J in General Motors Holden Limited v Sema (1994) 10 NSWCCR 612 at 617C (‘Sema’) that:
“The injury which gave rise to the two entitlements must be the same for the section to operate.”
His Honour Judge Burke was there, dealing with the provisions of section 63(2) of the Workers Compensation Act 1926 which provided:
“(2) In such case the worker may proceed both under this Act and independently of this Act but where in proceedings independently of this Act he accepts money brought into court by his employer or he obtains judgment against his employer he shall not be entitled to any compensation under this Act other than compensation paid to him before such acceptance or judgment.”
The Arbitrator, in the course of her Reasons, made specific reference to Recital C and Clause 3 of the Deed. It is permissible, when determining the intentions of the parties to a Deed, to make reference to a recital in circumstances where an operative part of a Deed is doubtfully expressed. Subclause 3(d) makes reference to the recitals and I note that Recital C is in the following terms:
“C.In addition the employee has alleged that he has sustained work injuries as a result of the nature and conditions of his employment with the employer throughout the entire period of that employment including but not limited to an injury to his left hand and wrist.”
Can it be said that it was the intention of the parties to provide for payment to the Respondent by the Appellant of the sum of $2,500 in return for (among other things) a release in respect of entitlement to damages in terms of the 1987 Act consequent upon the injuries which are the subject of the Respondent’s Application? It is my view that the plain language used by the parties in the Deed is such as to demonstrate the intention of the parties as being that the payment was in return for the granting of a release from all claims and liabilities to damages in respect of “work injuries as a result of the nature and conditions of his employment with the employer throughout the entire period of that employment including but not limited to an injury to his left hand and wrist”. As is stated by the learned author in Beal’s “Cardinal Rules of Legal Interpretation”:
“The intention is to be collected from the whole context and subject matter of the Deed, so as to make one entire and consistent construction of the whole.”(at page 67).
Further guidance may be gained from the observations of the learned author of Lewison “The Interpretation of Contracts” (2nd ed. Sweet & Maxwell):
“It appears, therefore, that recitals may be used to control the operative part of a contract in any case where the language of the operative part is not absolutely clear. Such a conclusion would be consistent with the general principle that any contract must be construed as a whole and in the light of the circumstances surrounding its making.”(at 9.12).
It is my view that the Deed, properly construed, provides for payment of a sum of money in respect of those injuries which are the subject of the Respondent’s Application.
Can it be said that the payment by the Appellant, as evidenced by the correspondence dated 11 January 2005, amounts to a recovery by the Respondent of “damages” in terms of section 151A? Damages, for the purposes of the relevant Part of the Act, are defined in section 149 of the 1987 Act:
“149 (1) In this Part:
damages includes:
(a) any form of monetary compensation; and
(b) without limiting paragraph (a), any amount paid under a compromise or settlement of a claim for damages whether or not legal proceedings have been instituted),
but does not include:
(c) compensation under this Act; or
(d) additional or alternative compensation to which Division 8 of Part 3 applies; or
(e) an award of compensation or direction for compensation under Part 2 or Part 4 of the Victims Compensation Act 1996; or
(f) a sum required or authorised to be paid under a State industrial instrument; or
(g) any sum payable under a superannuation scheme or any life or other insurance policy; or
(h) any amount paid in respect of costs incurred in connection with legal proceedings; or
(i) damages of a class which is excluded by the regulations from this definition;”
That the Respondent has received monetary compensation (section 149(1)(a)) is not disputed. The Deed provides for release by the Respondent of any liability the Appellant may have in respect of “entitlements to damages of any kind …” and I am of the view that the amount paid under the Deed constitutes an “amount paid under a compromise or settlement of a claim for damages” as provided in section 149(1)(b). It is expressly provided in that last mentioned sub-subsection that such payment constitutes damages “whether or not legal proceedings have been instituted”. I would answer the question raised in paragraph 62 above in the affirmative.
It may be seen from the reasons expressed above that I conclude that the Arbitrator has erred in her approach to construction of the Deed and has erred in her application of the provisions of section 151A and section 149(1) of the 1987 Act.
It remains to be considered as to whether, as submitted by the Respondent, the provisions of section 234 of the 1998 Act operate to negate the force and effect of the Deed entered into by the parties. Section 234 provides:
“234 This Act and the 1987 Act apply despite any contract to the contrary.”
The Courts have always been careful to ensure that a worker is not deprived of his or her rights under the Act by the adoption by the parties of a device which was intended to defeat, upon an artificial basis, future rights to compensation in contravention of the “no contracting out” provisions which have applied over the years and the “commutation” provisions which were designed as a means of protecting such rights. As was stated by Burke J in “Sema” at 619-620:
“Parties are not free to compromise workers compensation claims under the guise of a common law action. In Nelson v. Flood & Co Ltd [1934] 8 WCR (NSW) 227 a not particularly dissimilar matter had been considered by Perdriau J in the Commission, gone before the Full Court and ultimately before the High Court, from whence it was remitted back to Perdriau J for further factual investigation. That case concerned the then necessity to elect between rights at common law and under the Act. In his judgment Evatt J commented (at 229):
‘If the Commission find, as Sir John Harvey thinks they have already found – that the process in the Supreme Court in truth represented the mere execution of an agreement to commute workers compensation payments without the consent of the Commission and to avoid having to obtain such consent – the applicant’s present claim under the Workers Compensation Act will not be defeated.’
Perhaps more in point were the remarks of Starke J (at 228):
’Were the parties really endeavouring to commute the weekly payments to which the workman was apparently entitled under the Workers Compensation Act, or were they in truth abandoning all rights and claims under the Workers Compensation Act and claiming damages for an injury for which the common law gave them a right of action? That question is one of great difficulty on the evidence.’ ”
The proper construction and application of “no contracting out” provisions which have appeared from time to time in workers compensation legislation was considered by Burchett AJ in Zreika v QBE Workers Compensation (2005) NSWSC 573. His Honour was there considering the enforceability of an agreement reached between a worker and an employer (through its insurer) providing for payment to the worker of a lump sum in return for the worker’s consent to entry of particular orders in workers compensation proceedings then on foot, the provision of certain admissions and agreed facts and that of a Deed of Release. His Honour found that the settlement as negotiated between the parties was enforceable and observed (at paragraphs 31 to 33):
“31 The various Worker’s Compensation Acts have always contained a section drafted so as to prevent contracting out of the reach of the provision made by the legislature. But this aspect of worker’s compensation law has been understood as preserving a worker’s rights, not as inhibiting the settlement of disputes that might otherwise come before the Commission. Indeed, in Australian Iron & Steel Pty Limited v McAuley (Court of Appeal, unreported, Kirby P, Mahoney and Priestley JJA, 21 December 1984), Kirby P and Priestley JA said:
“The Workers’ Compensation Commission operates on the assumption that the overwhelming majority of compensation claims in the State will be met by agreement and will never come before the Commission, save where the statute specifically requires it. The parallel operation of agreement outside the Commission and entitlements within the Commission is manifestly beneficial.”
32 The competence of parties to a proceeding in the Workers’ Compensation Commission to settle that proceeding by agreement had earlier been expressly affirmed by the Court of Appeal in Ashenden v Stewarts & Lloyds (Australia) Ltd [1972] 2 NSWLR 484. The court (Jacobs JA, Taylor AJA and Hardie AJA) had no difficulty in holding that a settlement agreement could determine the terms of an award to be made in the Commission, only Jacobs JA adding the qualification that the insertion in the settlement agreement of the words “without admission of liability” affected this position.
33 In Art Coating Pty Ltd v Gerace[2000] NSWCA 169, Sheller JA, Priestley JA and Foster AJA heard an appeal from an order that an agreement to commute worker’s compensation payments be specifically performed by the employer. The judgment of the court, delivered by Sheller JA, held that the agreement was enforceable, although it varied the terms of the orders.”
In the present matter there is no evidence before the Commission of any fact or circumstance concerning the execution of the Deed and payment of the sum which was the subject of the agreement. In those circumstances there is nothing that would lead the Commission to conclude, adopting the words of Burke J in “Sema”, “that the parties had colluded to achieve an improper result”.
The general law permits valid compromise of rights under the workers compensation legislation and concurrent rights to damages. The Courts have found that an agreement with respect to such compromise is enforceable. On the present facts I conclude that execution by the parties of the Deed and payment to the Respondent in accordance with the terms of that Deed did not contravene the provisions of section 234 of the 1998 Act.
Having regard to my conclusions as to errors on the part of the Arbitrator identified in paragraph 64 above and having regard to my conclusions as to construction of the Deed, the validity of the compromise effected thereby and the proper application of the provisions of section 151A and section 149(1) of the 1987 Act I conclude that the Respondent has ceased to be entitled to any further compensation under the 1987 Act in respect of the injuries concerned and that this appeal should succeed. In those circumstances the Arbitrator’s determination requires either revocation and substitution with a new decision or alternatively that the matter be remitted for determination in accordance with the matters determined on this appeal. Given the nature of my findings I consider it appropriate that a final determination of the matter be made in this appeal.
In Schon v Axbond Pty Ltd (1997) 15 NSWCCR 122 his Honour Judge Neilson, then of the Compensation Court of NSW, considered issues similar to the present in the context of section 151Z(1) and section 151Z(5). In that matter a worker had suffered injury in a motor vehicle accident the circumstances of which gave rise to both entitlement to damages as against a third party (tortfeasor) and workers compensation benefits as against the employer given that the worker at the time of injury was engaged in a “journey” in terms of the 1987 Act. Before pursuing rights to benefits pursuant to the 1987 Act the worker had entered into a Deed of Release providing for payment by the tortfeasor to the worker of a modest sum in return for a release granted by the worker to the tortfeasor “in full settlement and discharge of all actions, suits, and demands in respect of personal injuries which the Releasor may now or in the future have against the Releasees arising out of the motor accident recited above.” His Honour determined that the payment constituted recovery of “damages” in terms of section 151Z(1)(c) and that the worker was not entitled to recover compensation under the 1987 Act. His Honour, in the course of his reasons observed:
“… The deed ex facie purports to be a full settlement and discharge of all claims for damages which the applicant had. The sum may be grossly inadequate. However, the remedies which the applicant has are against those who may have advised her to take the sum if any such persons exist, or, if not, pursuant to the Contract Review Act 1980 or by in some means setting aside the effect of the deed by an action at law or in equity, for example, for undue duress or the like. However, this Court has no power to grant such relief. If the effect of the deed of release were set aside elsewhere, this Court may be in a position to award compensation under the Act. However, this Court does not have that power.”
The circumstances of the present matter are similar to those considered by his Honour Judge Neilson. The plain words of the Deed make provision for settlement of entitlements to damages, and the quantum of the payment stipulated in the Deed may be viewed as being modest. As his Honour has indicated in the abovementioned passage those matters are not relevant considerations before the Commission when determining the question of the consequences in law of execution of such a deed.
In the present circumstances it is not necessary to address the balance of the Appellant’s submissions challenging the Arbitrator’s determination. However I consider it appropriate to deal briefly with the matters so raised.
I do not consider that the Appellant has established any error on the part of the Arbitrator with respect to her determination as to the Respondent’s entitlement pursuant to section 40 of the 1987 Act. The Arbitrator’s approach conforms with authority as to the proper approach in determining entitlement in cases of partial incapacity. Whilst there may well have been an argument as to the manner in which the Commission’s discretion is to be exercised in such a case I reject the Appellant’s submission that the Arbitrator’s rejection of matters argued as being relevant to the exercise of that discretion demonstrates error on her part.
The Appellant’s submission with respect to the Arbitrator’s rejection of the evidence of the AMS, Dr Preston does not, in my view establish error on her part. In my view the Arbitrator was not bound to accept in every respect the reasoning process and findings and conclusions expressed by Dr Preston. In short I reject the Appellant’s arguments with respect to alleged error on her part in determining the medical issues raised on the evidence.
It is my view that the Arbitrator’s conclusion with respect to “deemed date of injury” as being 20 June 2003 was open to the Arbitrator on the evidence before her and I reject the Appellant’s arguments that the Arbitrator erred in her application of the relevant provisions of the 1987 Act.
The Appellant has challenged the Arbitrator’s conclusions with respect to “consideration and application of section 9A of the 1987 Act.” The Arbitrator addresses this matter at paragraphs 111 to 113 of her Reasons. I am not persuaded that the Arbitrator has erred in any manner and I conclude that her determination of the matters raised by that provision was available on the evidence and that her application of principle with respect to section 9A was correct.
It is asserted by the Appellant in its submissions that the Arbitrator, given her manner of approach to the evidence of Dr Preston, had demonstrated bias or bad faith. I have earlier expressed the view that the Arbitrator demonstrated no error with respect to her evaluation of the medical evidence generally and in particular that of Dr Preston. Dr Preston’s evidence is addressed by the Arbitrator at paragraphs 97 and 98 of her Reasons. I am not persuaded that any part of those reasons as expressed could in any way be construed as demonstrating, in the relevant sense, bias or bad faith.
I note in passing that the Arbitrator, in the course of her Reasons, determined that the Commission lacked jurisdiction with respect to the Applicant’s claims for compensation resulting from injuries to his neck, right upper limb, back and left lower limb and dismissed such claims. It is clear that the Appellant’s submission that no notice of claim in respect of such injuries had been given was accepted. The Arbitrator’s determination with regard to the question of jurisdiction to determine such entitlement has not been addressed on this appeal. Given the nature of the decision set out below I conclude that the appropriate order on review is to revoke the Arbitrator’s order based upon such determination.
DECISION
The decision of the Arbitrator, dated 14 June 2006 is revoked and the following decision is made in its place:
“Award for the Respondent.
No order as to costs.”
COSTS
No order as to costs of this Appeal.
Kevin O’Grady
Acting Deputy President 24 January 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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