Fox v Roy Hill Holdings Pty Ltd
[2019] WADC 171
•11 DECEMBER 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: FOX -v- ROY HILL HOLDINGS PTY LTD [2019] WADC 171
CORAM: QUAIL DCJ
HEARD: 18 NOVEMBER 2019
DELIVERED : 11 DECEMBER 2019
FILE NO/S: APP 48 of 2019
BETWEEN: JAMES DAWSON FOX
Appellant
AND
ROY HILL HOLDINGS PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE WA
Coram: ARBITRATOR MENGLER
File Number : A53483
Catchwords:
Workers' compensation - Appeal from arbitration - Section 247 of the Workers'Compensation and Injury Management Act 1981 (WA) - Question of law - Whether arbitrator erred in law in considering whether injury proved - Whether arbitrator erred in relation to causation of injury- Whether arbitrator made a finding of fact in the absence of evidence supporting such finding
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA)
Result:
Leave to appeal denied
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr G R Hancy |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Hall & Wilcox (Perth) |
Case(s) referred to in decision(s):
Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
BHP Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60
Catholic Education Office of WA v Granitto [2012] WASCA 266
Erceg v Galati Nominees Pty Ltd [2016] WASCA 112
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Hawker Pacific Pty Ltd v Lang [2015] WASCA 256
Konings v Commonwealth Bank of Australia [2016] WASCA 122
Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744
Mokta v Metro Meat International Ltd [2005] WASCA 143
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
MTI v SUL [No 2] [2010] WASCA 58
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550
Smart v Prisoner Review Board (WA) [2012] WASC 48
Suleski v Pilbara Iron Company (Services) Pty Ltd [2018] WASCA 147
Van Der Feltz v Legal Practice Board of Western Australia [2017] WASCA 113
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
QUAIL DCJ:
Introduction
The appellant, James Fox, was employed as a truck driver with the respondent, Roy Hill Holdings Pty Ltd (Roy Hill). As an employee Mr Fox was part of an emergency response team (ERT) and required to participate in training and gym based fitness work. On 8 October 2017 Mr Fox was injured during boxing training when he mishit a punching bag.
On 19 June 2018 Mr Fox filed an application for arbitration (Application) in relation to a claim for workers' compensation for his injuries pursuant to the Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA). In written reasons for decision, delivered and published on 16 May 2019, a WorkCover arbitrator (the Arbitrator) found that Mr Fox sustained an injury to his left shoulder in the course of his employment with Roy Hill, but was not satisfied that Mr Fox sustained an injury to his neck from the accident.
By appeal notice (Appeal Notice) lodged within time on 12 June 2019,[1] Mr Fox appealed from the decision and relies on two grounds of appeal. Firstly, that the 'Arbitrator erred in law in finding that he needed to be satisfied that the pins and needles symptoms described by the appellant had been experienced during or immediately after the accident before he could find that the accident caused a neck injury to the appellant'. Secondly, that he 'erred in law in his assessment of the evidence of Mr Geoff Owens by concluding that there were material differences between two written statements provided by Mr Owens in circumstances where there was no evidence to support such a conclusion'.
[1] The appeal registry stamp says 12 June 2018 but this is obviously an error.
For the reasons which follow, Mr Fox has not established that the appeal involves a question of law, and he should be denied leave to appeal.
The Arbitrator's decision
The only issue for determination before the Arbitrator was whether Mr Fox sustained any injury during the course of his employment on 8 October 2017 and if so, what the nature of it was. The Arbitrator was not required to determine the effect of any injury upon Mr Fox's capacity for work or any entitlement to compensation or medical expenses. Those matters were to be the subject of conferral between the parties or determination by further arbitration if necessary.[2]
[2] Arbitrator's decision [4].
In his decision the Arbitrator comprehensively reviewed the evidence given at a two day hearing before him. He made detailed factual findings about the lay witnesses, relevant contemporaneous notes and records and the medical evidence and reports. The Arbitrator set out the relevant law governing Mr Fox's claim under the WCIMA and expressly directed himself in relation to causation, his approach to expert medical evidence, assessing witnesses, drawing inferences, the burden of proof and rules of evidence.
The Arbitrator reviewed Mr Fox's evidence and witness statements in considerable detail and found that Mr Fox had a 'core of honesty' but that nonetheless he misremembered past events of personal importance, conflated aspects of genuine recollection with thoughts or ideas of circumstances which better suited his purpose and he 'demonstrated an instability of memory and his statements and evidence since 31 October 2017 regarding his experiences in the period 8 ‑ 31 October 2017 should be regarded as unreliable'.[3]
[3] Arbitrator's decision [14].
Although Mr Fox does not agree with that assessment, it is the Arbitrator's application of the law in making his findings of fact which Mr Fox takes issue with. Before dealing with the grounds of appeal it is instructive to quote in full the relevant findings (under the heading 'Findings') from the Arbitrator's decision:
65.I am satisfied that, following the exercise circuit in the morning of 8 October 2017, the applicant's left shoulder and upper arm were sore and this soreness was materially contributed to by a mishit during the boxing exercise. I am not satisfied that the immediately following symptoms were as pronounced as described by the applicant in his statement and his oral evidence in that I do not accept that he suffered, either immediately or soon after the mishit, pins and needles down his left arm, hands and fingers like a jarring sensation or an electric shock, or at all.
66.I accept that he mentioned to Mr Geoff Owens following the completion of the circuit training that morning that his shoulder and arm felt sore, rather than 'very sore' or that he had 'really hurt' them. The level of soreness was in my opinion, consistent with the applicant thinking it was insignificant, not worth reporting as an injury and continuing on with the day's activities without mentioning it to anyone other than Mr Owens, and that in the context of Mr Owens himself informing the applicant that he thought that he had injured his hand.
67.I accept that Mr Troy Collard partnered the applicant during the other training sessions on 8 October 2017 (Exhibit B2, para 63) and that the applicant had every opportunity to report or mention to him any injury or significant symptoms which occurred during the boxing exercise or at all. In my opinion, had the pins and needles described by the applicant on 19 and 31 October (see para 19 above), or similar, been experienced by him on 8 October 2017, they would have been of sufficient significance to him to mention to Mr Owens and report or mention to Mr Collard that day, no matter how robust the applicant considered himself to be or how busy Mr Collard was.
68.In my opinion, save for the apparent misreading by Amy O'Brien of the notes made by Katherine Ranga on 19 October 2017, the medical notes and records made from 19 to 31 October 2017 (see paras 19 and 20 above) reflect what occurred. I am satisfied that the pins and needles down the left arm and hand were first experienced by the applicant about four days before the attendance on 19 October 2017 and were significantly increased by the morning of 31 October 2017.
69.I am satisfied that, consistent with the opinion of Mr Phillips (see para 38 above), the applicant sustained in the accident an aggravation of his pre‑existing degenerative left shoulder condition as described by the various doctors and specialists who subsequently saw him and as referred to by Mr Homan Zandi as a Para labral tear with a small cyst and an undisplaced small tear of the labrum (see para 28 above). Such aggravation was, in my opinion, a material contributing cause of the symptoms which necessitated the successful operation on the left shoulder by Mr Zandi on 31 July 2018. It was an injury within the meaning of s 5(d) and s 5(5) of the Act, meeting the criteria mentioned in the above paras 48(e), (f), and (g) and 54(a) as the probable cause vis-à-vis the left shoulder.
70.I am not satisfied that the applicant suffered any neck injury within the meaning of the definition of that term in s 5(a), (c) or (d) of the Act which occurred or arose out of the accident, or anything else that may have occurred during the ERT activities at work on 8 October 2017. Consistent with the opinion of Mr Phillips (see para 38 above) that the pathology in the applicant's neck was of long standing and gradually progressive and inevitably would have led to symptoms and, further, that concern regarding the symptoms (pins and needles) became significant (for the applicant) after reporting waking up with neck pain (on 31 October 2017), I am not satisfied that the accident caused or contributed to the cause of any aggravation or acceleration of that pathology so as to be an injury under s 5(a), (c) or (d) of the Act. To be persuaded that the accident caused such an injury, I would require to be satisfied that the pins and needles symptoms described by the applicant as having been experienced during or immediately after the accident, had in fact then been experienced. I would not attribute the need for the subsequent neck operation (an anterior cervical fusion at C6/7 and C7/T1 on 8 February 2018 by Dr Baddour) to the accident in any relevant way.
71.All the medical opinions regarding the cause of the need for the applicant to have the neck operation of 8 February 2018 which have relied upon the applicant's history of experiencing pins and needles in his shoulder and down his left arm and hand at the time of, or immediately following, the accident are, in my opinion, of little weight on the causation issue as regards the claimed neck injury and I do not accept them. With reference to para 54 above, the probable cause of the symptoms which necessitated the neck operation was, in my opinion, that mentioned in para 54(b) - no work activity. In any event, I am not satisfied that the accident was the, or a, probable cause.
The District Court appeal
Mr Fox seeks that part of the Arbitrator's decision dismissing his application for compensation and medical expenses in respect of his neck injury be set aside and in view thereof, a determination made that Roy Hill is liable to pay the same. Mr Fox filed submissions in support of his appeal dated 19 September 2019. Roy Hill filed submissions in opposition dated 23 September 2019.
Mr Fox represented himself on the appeal and I allowed his wife to sit next to him and assist him. He also prepared his written submissions without the benefit of legal assistance. Roy Hill was represented at all times by solicitors and counsel.
Accordingly, in deciding this matter, I have had regard to the well‑established general principles providing guidance on the level of flexibility and assistance which is to be provided to a litigant in person.
A litigant in person is entitled to some leniency in relation to compliance with the court rules.[4] The court should approach the documents in which a litigant in person articulates their claim with some flexibility.[5] A court ought to assist a litigant in person to the extent consistent with the interest of justice. What the court ought to do will depend upon the nature of the case and the litigant's capacity to understand the issues in the case.[6] The advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which that litigant will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which the adversarial procedure offers to the unwary and untutored.[7] The court must not intervene to such an extent that a position of neutrality cannot be maintained or a litigant in person is given a positive advantage over another party.[8] The court also needs to ensure that any latitude given to a litigant in person does not deprive the other party of its rights to procedural fairness and a fair hearing.[9]
[4] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
[5] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 – 537 (Kirby P), 543 (Hope and Samuels JJA agreeing); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10].
[6] Van Der Feltz v Legal Practice Board of Western Australia [2017] WASCA 113 [15] – [16]; Konings v Commonwealth Bank of Australia [2016] WASCA 122 [12].
[7] Van Der Feltz v Legal Practice Board of Western Australia [15] – [16]; Konings v Commonwealth Bank of Australia [12].
[8] Konings v Commonwealth Bank of Australia [12].
[9] Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51]; MTI v SUL [No 2] [2010] WASCA 58 [42] – [43]; Glew v Frank Jasper Pty Ltd [10].
Despite not being represented, Mr Fox was well prepared and respectful to the court. His written submissions detailed his claims and he elaborated on them in oral argument.
I have decided it is appropriate to allow Mr Fox some latitude in relation to those of his submissions which go beyond the grounds identified in the Appeal Notice. To deal with those matters causes no disadvantage to Roy Hill as counsel addressed the issues in his own written submissions and also in oral argument.
Relevant legal principles
A party to a dispute before an arbitrator may, with the leave of the District Court, appeal to the District Court against a decision of the arbitrator where written reasons for the decision are given to a party.[10]
[10] WCIMA s 247(1).
This appeal is governed by s 247(2)(b) of the WCIMA. Accordingly, 'the District Court is not to grant leave to appeal unless … a question of law is involved'.
A decision will not 'involve "an error of law" unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different'.[11] An appeal may 'involve' a question of law where an error of law, or an error of mixed law and fact, is involved.[12] An error of fact alone is insufficient.[13]
[11] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 353; BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [15].
[12] BHP Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60 [36]; Erceg v Galati Nominees Pty Ltd [2016] WASCA 112 [31]; Hawker Pacific Pty Ltd v Lang [2015] WASCA 256 [15]; BHP Billiton Iron Ore Pty Ltd v Brady [3].
[13] Erceg v Galati Nominees Pty Ltd [31]; Brady [5].
Several principles can be drawn from the authorities about what constitutes an error of law:[14]
[14] Suleski v Pilbara Iron Company (Services) Pty Ltd [2018] WASCA 147 [19]; Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744.
1.a finding of fact in the absence of any supporting evidence is a question of law;
2.whether there is evidence of the fact is a question of law;
3.whether an inference can be drawn from fact is a question of law;
4.there is no error of law simply from the making of a wrong finding of fact;
5.want of logic is not synonymous with an error of law;
6.whether facts as found meet a statutory definition is a question of law;
7.taking into account irrelevant considerations is an error of law;
8.failing to take into account a relevant consideration is an error of law;
9.where a statute uses words according to their common understanding and the question is whether the facts found fall within these words, the question is a question of fact; and
10.where it is necessary to engage in a process of construction of the meaning of a word or phrase in a statute, a question of law will be involved but the question may be a mixed one of law and fact.
An appeal under s 247 of the WCIMA is by way of a review of the decision appealed against.[15] No fresh evidence, or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against, can be given without the leave of the court.[16] Nor is the appeal a hearing de novo.[17] An 'appellant may not simply invite the court to ignore the arbitrator's decision and start again with a view to having the court substitute its own decision for that of the arbitrator'.[18] It is not a necessary pre‑condition to the conduct of a review that the error of law has been held to have occurred.[19] Rather, if some question of law is 'involved', the whole decision appealed from is open to review and not merely the question of law.[20] The review is to be a 'real review'.[21] Correction of errors of law is the court's 'principal, but not only, task'.[22] However, the appellant must show a 'proper basis' for disturbing the decision such as error of 'fact, law or logic'.[23] Unless the 'review' persuades the court that the arbitrator's decision should be varied, discharged or otherwise disturbed, it should stand.[24]
[15] WCIMA s 247(5).
[16] WCIMA s 247(6).
[17] Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [18].
[18] Erceg [33]; Pacific Industrial Cov Jakovljevic [20], [26].
[19] Pacific Industrial Co [25].
[20] Pacific Industrial Co [18].
[21] Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [25].
[22] Pacific Industrial Co [25].
[23] Erceg [33]; Pacific Industrial Co [26].
[24] Pacific Industrial Co [20] – [26].
If no question of law can be identified in the appeal as arising from an arbitrator's decision, there is no jurisdiction in the District Court to grant leave to appeal.[25] If there is a question of law involved, leave should be granted if, in all the circumstances of the particular case, it is in the interest of justice that there be a grant of leave.[26]
[25] Pacific Industrial Co [17]; Catholic Education Office of WA v Granitto [2012] WASCA 266 [54].
[26] Brady [20]; Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 [16].
Where the question of leave is determined concurrently with a substantive hearing, the appropriate approach is to deal with leave after considering the merits of the proposed grounds of appeal. The court will then be in a position to either grant leave and uphold or dismiss the appeal, or refuse leave to appeal.[27]
[27] Brady [14].
Ground one of the appeal
As I understood his submissions, Mr Fox maintains in relation to his first ground of appeal that the Arbitrator made two errors of law. Firstly, that there was no evidential foundation for the Arbitrator's finding that Mr Fox experienced symptoms of pins and needles in his shoulder. Secondly, the Arbitrator's finding that he 'would require to be satisfied that the pins and needles symptoms described by the applicant as having been experienced during or immediately after the accident, had in fact then been experienced'[28] was an error of law because it depended on an unfounded assumption that Mr Fox's symptoms needed to be of immediate onset for there to be a compensable injury.
[28] Arbitrator's decision [70].
I will deal with each of the alleged errors.
Was there an evidential foundation for referring to Mr Fox experiencing pins and needles in his shoulder?
The Arbitrator's decision is organised under various headings. After dealing firstly with the background to the matter and identifying the nature of the dispute, the Arbitrator wrote a 'Summary of Decision'. Under that heading the Arbitrator said he was not persuaded that Mr Fox's 'symptoms of pins and needles in the left shoulder and down the left arm and hand, of which he first complained on 19 October 2017, were causally related to the boxing mishit on 8 October 2017 or any work activity on that day'.[29]
[29] Arbitrator's decision [5].
In [70] of his decision quoted above, under the heading 'Findings', the Arbitrator's conclusion on this issue was worded slightly differently. Relevantly to the ground of appeal, he made no mention of Mr Fox having experienced pins and needles in his left shoulder.
Mr Fox maintains that the Arbitrator's reference in the summary to pins and needles in the 'shoulder' was an error of law because there was no evidential foundation for that finding. He says it is a material error because the pins and needles symptoms related to his neck injury, not his shoulder injury.
I do not accept Mr Fox's submission for two reasons. Firstly, the summary is just that. It must be read with the judgment as a whole and insofar as there is any difference between it and the Arbitrator's findings of fact, the 'Findings' (under that heading), which are more detailed, are to be preferred.
Secondly, there was a foundation in the evidence and his reasons for the Arbitrator to express the summary of his findings more widely by referring to Mr Fox's shoulder. That foundation was not in Mr Fox's evidence, which the Arbitrator found was unreliable, but in what various medical practitioners recorded in their notes and reports about what Mr Fox had told them about his symptoms of pins and needles.
The Arbitrator found, subject only to a minor error not relevant to the appeal, that the medical notes of Ms Ranga and Ms O'Brien reflected what occurred. That was a factual finding open to the Arbitrator and one he made after considering all of the evidence and deciding the notes were more reliable than Mr Fox's memory of what had occurred.[30]
[30] Arbitrator's decision [14], [15].
The relevant records are reproduced in the decision. On 19 October 2017 Mr Fox presented with a 'left shoulder injury'. Mr Fox stated 'it had slowly gotten worse over the last couple of days and he had started to get pins and needles and was quite concerned'.[31] There is nothing in the notes which locates the pins and needles anywhere other than in Mr Fox's left shoulder. It was thus open to infer that Mr Fox had reported the pins and needles symptoms were sourced in his shoulder.
[31] Arbitrator's decision [19].
Mr Silbert, a neurologist who saw Mr Fox on 19 January 2018, said that Mr Fox 'felt sudden pain in the left shoulder region but with pins and needles that radiated down to the left hand involving the palm and all of the digits'.[32] That statement implies Mr Fox reported that the pins and needles radiated from his shoulder to the hand.
[32] Arbitrator's decision [29].
Later statements made by Mr Fox differentiated between his shoulder pain and the pins and needles symptoms in his arm and hand. Mr Phillips, a consultant orthopaedic surgeon who provided a report of 30 October 2018, said 'Mr Fox stated that there was instant pain and he described generalised shoulder pain. He also stated there was instant pins and needles going down the forearm and into the hand'.[33]
[33] Arbitrator's decision [37].
Professor Stokes, an emeritus consultant neurosurgeon who saw Mr Fox on 7 November 2018, said 'he immediately developed pain in the shoulder and pain and tingling down the left arm in what sounded like the C8 and C7 dermatome distribution as his punch overreached range of movement'.[34]
[34] Arbitrator's decision [39].
Based on his acceptance of the notes of 19 October 2017 as reliable, and the report of Mr Silbert, there was an evidential foundation for the Arbitrator to refer to Mr Fox's shoulder in the summary of his decision. Indeed, given the evidence I have referred to which inferentially associated the symptoms with the left shoulder, as reported by Mr Fox, it was prudent for the Arbitrator to make it clear that, wherever in his body the symptoms originated, Mr Fox's experience of pins and needles was not causally related to the boxing mishit on 8 October 2017.
There being an evidential foundation for the Arbitrator's finding, the error complained of could only be one of fact and not law. Even if there was an error of fact, about which I am not persuaded, it is not reviewable on appeal.
Did the Arbitrator make an assumption without any evidential foundation?
In relation to Mr Fox's second submission, I do not accept that the Arbitrator proceeded on an assumption that he needed to be satisfied Mr Fox's symptoms of neck injury were of immediate onset.
Before making his factual findings, the Arbitrator correctly summarised the law concerning causation of injury[35] and quoted the well-established principles from Ansett Transport Industries (Operations) Pty Ltd v Srdic.[36] He went on to say that Mr Fox 'must identify the pain and/or other relevant symptoms experienced by him during, immediately following or which were causally related to the accident'[37] (emphasis added). The use of the word 'or' after the words 'immediately following' shows that the Arbitrator correctly understood the law and knew that Mr Fox did not need to prove a temporal link between his symptomology and the accident, so long as a causal link was proved.
[35] Arbitrator's decision [42] ‑ [57].
[36] Ansett Transport Industries (Operations) Pty Ltd v Srdic (1983) 66 FLR 41.
[37] Arbitrator's decision [46].
The sentence in the Arbitrator's decision that is complained of commences with the words: 'To be persuaded that the accident caused such an injury, I would require …'. Clearly, thereby the Arbitrator was referring specifically to Mr Fox's 'accident' and his resulting 'injury' and not stating a general proposition or making an assumption that symptomology must coincide with injury.[38]
[38] Arbitrator's decision [70].
What the Arbitrator found was that he needed to be satisfied the pins and needles symptoms which Mr Fox had reported to medical practitioners were in fact experienced at the time of the accident. As the Arbitrator explained in some detail, he rejected Mr Fox's evidence that those symptoms had been experienced by him then, notwithstanding that Mr Fox told various medical practitioners they had been.
Read properly, the sentence complained of is a statement about the evidence required to establish factual causation of injury. It does not imply any assumption or pre‑determination by the Arbitrator and discloses no error of law.
Ground one of the appeal fails.
Ground two of the appeal
At the hearing of the appeal Mr Fox abandoned ground two of his appeal. That was a proper concession given that, even if I were satisfied that ground two disclosed an error of law by the Arbitrator, the outcome of the hearing before the Arbitrator and any review on appeal would be no different.
Notwithstanding the concession I will explain briefly why ground two does not involve any error of law and must fail.
In his statement dated 21 November 2017, Mr Owens said that 'after the training James was saying that his arm/shoulder was very sore'.[39] In his second statement dated 23 May 2018, Mr Owens stated that 'at the end of the session James Fox said to me that he had really hurt his left arm and shoulder during the session'.[40] In his statements and evidence, Mr Owens said nothing about Mr Fox having complained about an injury to his neck or experiencing pins and needles symptoms.
[39] Arbitrator's decision [16].
[40] Arbitrator's decision [17].
The Arbitrator found that Mr Owens was an honest witness but that his second statement was more favourable to Mr Fox and 'indicated a more serious or higher level of hurt or concern expressed by the applicant (Mr Fox) after the gym work on 8 October 2017 than did his earlier statement of 21 November 2017'.[41]
[41] Arbitrator's decision [18].
I agree with the Arbitrator's conclusion that there is a qualitative difference between the two statements. The first statement records a description of pain whereas the second statement reflects an injury of some severity.
Consequently, the Arbitrator found that while Mr Owen was an honest witness, his evidence should be approached with caution.[42] In light of the qualitative differences between the statements, that was a finding of fact well open to the Arbitrator and does not demonstrate any error of law.
[42] Arbitrator's decision [18].
Even if I am wrong about that, no different consequences would have followed if the Arbitrator had not approached the evidence of Mr Owens with caution. The Arbitrator ultimately found that Mr Fox suffered a shoulder injury in a work accident. He was not required to assess the severity of the injury, which is the only issue the difference in Mr Owens' two statements potentially went to.
Further, taking Mr Owens' evidence at its highest in favour of Mr Fox could only ever have resulted in the finding that the Arbitrator made, namely that Mr Fox suffered a shoulder injury. It could not have resulted in the Arbitrator finding that Mr Fox suffered a neck injury on 8 October 2017.
Mr Fox's submissions that did not relate to the grounds of appeal
Causation of injury
Mr Fox submitted that the Arbitrator ought to have applied the 'but for' test when deciding injury causation. He says that because he had to have neck surgery before his shoulder surgery, 'but for' his shoulder injury the neck surgery would not have been required.
The term 'injury' is defined in WCIMA s 5(1) as follows:
injury means -
(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
(b)a disease because of which an injury occurs under section 32 or 33; 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; or
(e)a loss of function that occurs in the circumstances mentioned in section 49, …
Relevantly, causation of injury for the purposes of s 5(1)(a) is proved by establishing it 'arose out of or in the course of the employment'. An additional requirement must be proved for an injury being a recurrence, aggravation or acceleration of a pre-existing disease under s 5(1)(d), namely, that the employment must be a contributing factor to 'a significant degree' to the recurrence, aggravation or acceleration.
In deciding causation the Arbitrator was bound to apply those statutory requirements, which did not require him to apply the 'but for' test from common law. He had to decide whether Mr Fox suffered shoulder and neck injuries and, if so, whether one or both 'arose out of or in the course of' his employment. Insofar as both the shoulder and neck injuries aggravated a pre-existing disease, as both did, the Arbitrator also needed to be satisfied the accident contributed to 'a significant degree' to the aggravation.
The Arbitrator correctly identified these issues and the law he was required to apply in considering, relevantly, whether an injury for the purposes of s 5(1)(a) or 5(1)(d) was proved.[43]
[43] Arbitrator's decision [46] - [48], [50] - [53].
As Roy Hill has identified, Mr Fox's submission on causation confused injury with its consequences. The Arbitrator was not required to decide whether there was incapacity resulting from an established injury, nor one that was not established. He was also not required to decide any issue relating to treatment of injury.
Once the Arbitrator found as a matter of fact that Mr Fox's neck injury was not related to the boxing training incident and did not arise out of or in the course of his employment, any incapacity and treatment requirements that flowed from the neck injury were irrelevant.
Did Mr Fox's neck injury materially contribute to his incapacity?
Further in relation to causation, Mr Fox submitted that it was sufficient if his neck injury was a material contributing cause to his incapacity. Again this submission confused injury with consequence.
As I have outlined above, it would have been sufficient to prove that the work accident contributed to a significant degree to the aggravation of the pre-existing neck disease. As the Arbitrator correctly identified, 'significant means "not insignificant", which, in other words, means that the contribution by the employment must be material. A contribution is "material" if it is not negligible'.[44]
[44] Arbitrator's decision [52], citing Mokta v Metro Meat International Ltd [2005] WASCA 143 [39].
The Arbitrator found that Mr Fox's neck injury was not a result of a work accident. Once he made that finding of fact there was no requirement or legal basis for the Arbitrator to make any further findings.
The issues of any incapacity Mr Fox suffered, whether it was caused by the neck or shoulder injury or both and what treatment was required, were not before the Arbitrator for determination.
Mr Fox has not demonstrated any error of law in the Arbitrator's approach to causation of injury.
ERT testing
Mr Fox submitted that he went through a very stringent ERT assessment before being employed by Roy Hill and he was completely asymptomatic before the boxing training incident on 8 October 2017. He says that his neck injury must have been caused by the boxing training accident, even if the symptoms only arose a week or so later as the Arbitrator found. In many respects that is an understandable belief which many people in Mr Fox's position hold. However the belief is underpinned by two assumptions, both of which are wrong and contrary to the factual findings of the Arbitrator.
Firstly, despite having passed stringent pre-employment physical examinations, Mr Fox's belief that he was healthy was, very regrettably, wrong. The Arbitrator found he was suffering from a degenerative illness in his shoulder which was aggravated by the work accident. The aggravation was an injury within the meaning of s 5(d) and s 5(5) of the WCIMA.[45]
[45] Arbitrator's decision [69].
The Arbitrator also accepted the opinion of Mr Phillips that the pathology in Mr Fox's neck was long standing, gradually progressive and inevitably would have become symptomatic.[46] It became symptomatic after the accident but the Arbitrator was 'not satisfied that the accident caused or contributed to the cause of any aggravation or acceleration of that pathology so as to be an injury under s 5(a), (c) or (d) of the Act'.[47]
[46] Arbitrator's decision [38], [70].
[47] Arbitrator's decision [70].
Secondly, Mr Fox assumed that because of the close temporal connection, whether immediate (on his own evidence which the Arbitrator rejected) or approximately one week later (as the Arbitrator found), between his experience of symptoms related to his neck injury and the boxing mishit, the neck injury must have been caused by the mishit and was therefore a work accident.
Whilst that assumption can sometimes be true, it has no role to play in a decision on whether an injury is proved for the purposes of s 5 of the WCIMA. The Arbitrator's factual finding, based on the evidence, not any assumption, was that Mr Fox's neck injury did not arise out of 'the work accident or anything else that may have occurred during the ERT activities at work on 8 October 2017'.[48] The Arbitrator was satisfied that the probable cause of Mr Fox's symptoms which necessitated the neck operation (ie the pins and needles) was 'no work activity'.[49]
[48] Arbitrator's decision [70].
[49] Arbitrator's decision [71], [54].
Did the Arbitrator have regard to Mr Fox's dyslexia?
Mr Fox submitted that the Arbitrator made an error of law in not taking into account his dyslexia. As I understand his argument, Mr Fox believed the Arbitrator should not have been critical of his memory instability when, because of his dyslexia, he was prone to confusion about dates and other matters.
The Arbitrator was in no way critical of Mr Fox suffering from dyslexia. Indeed, as I read his decision, the Arbitrator's opinion of Mr Fox was generally favourable, describing him as 'a man who prefers actions to words', someone who 'would get the job done' and not 'foolhardy, incautious or inclined to ignore his own wellbeing'.[50]
[50] Arbitrator's decision [10].
In rejecting Mr Fox's evidence, the Arbitrator did not say he was untruthful, rather he found that he was naive[51] and his memory was unreliable.[52] He did so after carefully reviewing the evidence and explaining why Mr Fox's recollection, particularly of dates, was wrong.[53] In that way the Arbitrator very much took into account Mr Fox's dyslexia.
[51] Arbitrator's decision [11].
[52] Arbitrator's decision [14].
[53] Arbitrator's decision [12] - [13].
Whether it was caused by dyslexia, conflation of events, naivety, poor memory or a combination of those and other factors, once the Arbitrator found that Mr Fox's recollection was mistaken he could not rely on at least those parts of Mr Fox's evidence. It was open to the Arbitrator to accept or reject all or part of a witness' evidence, as he expressly directed himself.[54] It was open for him to find as he did, that Mr Fox was an unreliable witness. Those were decisions of fact for the Arbitrator. No error of law has been demonstrated in his assessment of Mr Fox's evidence.
[54] Arbitrator's decision [64].
Other submissions
In his written submissions, Mr Fox relied on matters potentially going to an employer's duty of care, standards under the Occupational Health and Safety Act 1984 (WA) and various mine management and safety standards. None of those were relevant to the Arbitrator's decision and the submissions disclose no error of law by the Arbitrator.
Leave to adduce fresh evidence
Mr Fox made an application to lead fresh evidence in the appeal which was adjourned by me pending my decision on the appeal. The application is to adduce further evidence in relation to sequela Mr Fox says he suffered as a consequence of spinal fusion surgery for his neck injury.
I refuse leave to adduce fresh evidence in the appeal as the consequences of Mr Fox's neck surgery are irrelevant to the appeal and whether the Arbitrator made an error of law in deciding whether Mr Fox suffered an injury at work.
Disposition of the appeal
Having dismissed the grounds of appeal and determined the Arbitrator made no error of law in his decision, leave to appeal must be refused.
Orders
Leave to appeal is refused.
I will hear the parties on costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AW
Associate to Judge Quail10 DECEMBER 2019
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