Gardiner v Laing O'Rourke Australia Construction Pty Limited

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*Status: Appeal to the Court of Appeal allowed - Gardiner v Laing O’Rourke Australia Construction Pty Ltd* [2020] NSWCA 151**
CITATION:	Gardiner v Laing O’Rourke Australia Construction Pty Limited [2019] NSWWCCPD 66
APPELLANT:	James Gardiner
RESPONDENT:	Laing O’Rourke Australia Construction Pty Limited
INSURER:	Employers Mutual Limited
FILE NUMBER:	A1-1052/19
ARBITRATOR:	Ms C Rimmer
DATE OF ARBITRATOR’S DECISION:	28 June 2019
DATE OF APPEAL DECISION:	19 December 2019
SUBJECT MATTER OF DECISION:	Effect of deed of release signed by worker; s149 and s 151A of the Workers Compensation Act 1987 considered
PRESIDENTIAL MEMBER:	President Judge Phillips
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms E Grotte, of counsel
Instructed by Mr L Power, Turner Freeman Lawyers
Respondent:
Mr S Flett, of counsel
Instructed by Mr J Vrettos, Rankin Ellison Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s Certificate of Determination dated 28 June 2019 is confirmed.

INTRODUCTION

This appeal considers the terms of a deed of release entered into by the appellant, Dr James Gardiner, and the respondent, Laing O’Rourke Australia Construction Pty Limited, Dr Gardiner’s employer. The Deed was entered into on 5 September 2018 and the issue for consideration is whether or not, as a result of the execution of that Deed, ss 149 and 151A of the Workers Compensation Act 1987 (the 1987 Act) have been engaged such as to deny Dr Gardiner the right or capacity to pursue his proceedings in this Commission.

BACKGROUND

Dr Gardiner holds a PhD in architecture and commenced employment with the respondent on 4 October 2011. Dr Gardiner has a history of mental illness predating the commencement of his employment with the respondent. This is detailed in the report of his treating clinical psychologist, Ms Merryn Tendys of 23 October 2018.[1] In these proceedings, Dr Gardiner has alleged that he suffered from a disease injury, or in the alternative the disease had been aggravated, accelerated, exacerbated or deteriorated, and this disease is described as “psychological”.[2] In the ARD the injury description is described in the following terms:
“Injury occurred as a result of the nature and conditions of employment whereby numerous unaddressed administrative issuesIdifficulties occurred which affected the Applicant psychologically. There was a failure to remedy same with the Applicant's direct line manager. This failure to provide appropriate support staff and assistance to the Applicant following the Respondent being advised of the issues the Applicant was experiencing, resulted in the Applicant decompensating. The Applicant advised the Respondent of his deteriorating psychological health, however the administrative issues, failure to provide support staff and being deceived regarding potential business ideas, only exacerbated the Applicant's psychological injury. Please see the Applicant's Statement for further details.”[3] (emphasis added)
[1] Application to Resolve a Dispute (ARD), pp 196–200.
[2] ARD, Part 4.
[3] ARD, Part 4.
Attached to the ARD are two statements signed by Dr Gardiner dated 5 October 2018[4] and 26 February 2019.[5] The statement of 5 October 2018 details, in a chronological fashion, the commencement of his employment with the respondent, his employment duties thereafter and detailed descriptions of what transpired between Dr Gardiner and the respondent during his employment. Dr Gardiner also gives a history of the mental health issues that were afflicting him from time to time during his period of employment with the respondent. Dr Gardiner also details the investigation commenced by the respondent and his direction to be examined by the work-appointed psychiatrist, Dr Wilcox, which ultimately led to the termination of his employment by the respondent on 12 March 2018.
[4] ARD, pp 1–10.
[5] ARD, pp 11–17.
On 12 March 2018, the termination date, Dr Gardiner filed a complaint with the Anti-Discrimination Board of New South Wales alleging that he had been discriminated against on the grounds of his disability, as well as being victimised, in the course of his employment. This complaint was subject to a conciliation conference before the Anti-Discrimination Board on 25 July 2018 and was ultimately resolved by the parties, which resolution was reflected in the Deed of Release dated 5 September 2018.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances. I note that Dr Gardiner in his written submissions suggested that an oral hearing “would be appropriate”, but having regard to the documents that are before me, I am satisfied that the issues have been comprehensively traversed by both parties and the matter is eminently capable of decision on the papers.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

The evidence in this matter is in real terms not in dispute. Both parties make submissions as to the differing effects of the evidence, but the learned Arbitrator has at length in her decision set out the history.[6]
[6] Reasons, [19], [24], [25].
There were several medical reports before the Arbitrator. The matter was only decided within the relatively narrow compass of the effect of the Deed of Release. However, the medical evidence was generally consistent as to the unfortunate problems which have beset Dr Gardiner, although it is true to say that there was a divergence of opinion between Dr Gardiner’s medical evidence and that of the respondent as to the causal effect that the respondent’s work had upon those issues.
However, given the nature of the argument on appeal, and in particular in relation to Ground One, it is worthwhile to set out relevant extracts from the medical evidence.

Merryn Tendys – clinical psychologist

Dr Gardiner relied upon a number of reports from Merryn Tendys, his clinical psychologist. These reports commence at ARD pp 189–201. The following views were expressed by Ms Tendys in the following reports:
(a) Report dated 18 March 2018
“James Gardiner requested that I send you an outline of the work we have been doing regarding the stressors at work to assist with the initiation of WorkCover.
When I first started seeing James on 27/1/16, he was in a demanding role of leading a project developing a new technology. At this time, he reported that he very much loved his work, however there were areas where his workplace triggered depressive and anxiety episodes which at times escalated into suicidality.
Assessment indicated that the trigger to these depressive episodes appeared in circumstances where James tried to provide direction and leadership on the project and his recommendations were largely ignored leading to further complications and problems. As James is the inventor of this technology, he is highly invested in its success and these difficulties caused a great deal of distress. Furthermore, these difficulties led to interpersonal conflict with staff. By the time James started seeing me, he had already approached his manager (Andrew Harris) about this issue and tried to use organisational processes to resolve the issue. As part of resolution, James volunteered to develop his managerial skills and engaged in relevant training, and indeed did so outside the organisation. However, the organisation appeared not to develop processes to support his authority. Situations where the responsibility of a role exceeds the authority to fulfil the responsibility present a psycho-social hazard in the workplace, as they lead to severe stress and devaluing. For James, these triggered anxiety and depression.”[7]
(b) Report dated 23 October 2018
“The experience of the ongoing issues while working at Laing O’Rourke have caused significant anxiety and stress which I believe he would not have experienced had this workplace situation been adequately resolved. His anxiety has resolved since leaving Laing O’Rourke, however emerges transiently when he has contact around the Workcover claim due to the immediate contact with these issues. This is consistent with Laing O’Rourke being the trigger to this anxiety rather than other possible causes.
While, James’ depression predates his experience at Laing O'Rourke, and he is likely to have had periodic depressive episodes regardless of his workplace, the specific psycho-social hazard and the resulting interpersonal conflicts that were inadequately resolved, clearly triggered and/or exacerbated his depression, resulting in suicidality. It is my firm believe [sic] that despite James’ chronic mental health issues, the imbalance between job role responsibility and authority to fulfil role is a psycho-social hazard that was not adequately addressed in Laing O’Rourke…
I believe that Professor Harris had sufficient formal and informal communication with James, including receiving recommendations from myself, that should have led to some appropriate measures being taken that would have avoided these impacts on James.”[8]
[7] ARD, p 194.
[8] ARD, p 199.

The Deed of Release

For the purposes of these appeal proceedings, the most important piece of evidence is the Deed of Release itself. Set out below are extracts of the Deed of Release which was entered into by Dr Gardiner and the respondent on 5 September 2018. The Deed of Release was drafted by the respondent’s lawyers, Mills Oakley, who had been retained to conduct a workplace investigation (see Recital I set out below). The relevant provisions of the Deed of Release are as follows:
“Parties
Dr James Gardiner
C/Turner Freeman, Level 8, 100 George Street, Parramatta, NSW, 2150 (‘Dr Gardiner’)
Laing O’Rourke Australia Construction Pty Limited ACN 112 099 000
Level 4, 100 Arthur Street, North Sydney, NSW, 2060 (‘LORAC’)
Recitals
A.      Dr Gardiner was employed by LORAC within the Engineering Excellence Group (EEG), in the role of Lead Innovation Designer on 4 October 2011 (Employment). In that role, Dr Gardiner reported to Professor Andrew Harris (Prof Harris), the Engineering Director of the EEG.
B.      In February 2013, Dr Gardiner registered his first patent with LORAC, FreeFAB Wax technology. In more recent years, Prof Harris and Dr Gardiner discussed the possibility of the Free FAB Wax technology being developed in a new, ‘spin-off’ company, owned by LORAC (FreeFAB).
C.      On 3 October 2017, Prof Harris told Dr Gardiner that LORAC was not in a position to support the idea of creating a ‘spin-off’ company FreeFAB, at least in the foreseeable future. This prompted Dr Gardiner, on 6 October 2017, to send an email to LORAC's Human Capital (HC) team alleging ‘... a serious problem with [Dr Gardiner's] position under Andrew Harris ... which [he] would like to discuss as soon as possible’. Those allegations included concerns that Dr Gardiner was being denied certain Intellectual Property (IP) rights relating to Dr Gardiner’s contribution to the development of patents and other IP rights during the course of the Employment (the Timbrell Concerns).
D.      A meeting was subsequently arranged between Dr Gardiner and Mr Timbrell of the HC team. At that meeting Dr Gardiner discussed his intentions to exit LORAC and the HC team member suggested that Dr Gardiner should first speak with Prof Harris. Accordingly, Dr Gardiner scheduled a meeting with Prof Harris for 23 October 2017.
E.      On 13 October 2017 Dr Gardiner sent an email to Prof Harris referring to ‘... the announced change in strategy for FreeFAB’ and advised that the situation was already ‘unsustainable’ and had now ‘... become untenable’. The email attached a letter from his Merryn Tendys, Dr Gardiner's treating Psychologist dated 2 October 2017.
F.      On 23 October 2017, Dr Gardiner attended a meeting with Prof Harris.
G.     On 26 October 2017, Dr Gardiner had a brief (unscheduled) discussion with Mr Mark Wilson of LORAC. That discussion led to Dr Gardiner sending an email to Mr Wilson the following day, 27 October 2017, in which he detailed a number of his concerns (the Wilson Concerns).
H.      On 31 October 2017, in response to a request from Prof Harris regarding an issue that arose in relation to the Drone Patent, Dr Gardiner sent an email to Prof Harris in which he made a number of allegations, including:-
(i) [He - Dr Gardiner] has been ‘pushed out of his job’; and
(ii) [He - Dr Gardiner] found having contact with his ‘ex team members’ (especially Gina) ‘painful in the extreme’ and that is the primary reason for which he had ‘avoided contact and requested not to be contacted directly’ and
(iii) Prof Harris' behaviour towards him was ‘insensitive and intolerable’;
(iv) ‘[He - Dr Gardiner] therefore [had] withdrawn from all contact with [Prof Harris] and the FreeFAB team until resolution of the current situation has been put in place’;
(v) ‘[He - Dr Gardiner was] looking to find someone else within LOR that [he could] report to in the interim’;
(vi) His [Dr Gardiner's] Psychologist and he had ‘both separately requested that change needs to occur and that the current situation [was] causing [him - Dr Gardiner] undue stress, triggering depression and leading to suicidality’; and
(vii) [He - Dr Gardiner] wrote that, ‘Andrew it would almost seem that you want me to kill myself ... ‘, collectively referred to as the (the Prof Harris Concerns).
I.      As a consequence of the Timbrell Concerns, the Wilson Concerns and the Prof Harris Concerns, referred to above, including in particular the reference to ‘suicidality’ (referred to here collectively as the Complaints), Mills Oakley were engaged to provide legal advice to LORAC, which in turn, led to the conduct of an investigation (the Investigation).
J.      The Investigation did not identify any improper conduct by Prof Harris or any other person.
K.      In the course of the Investigation, reference to a possible medical condition came to light which might have impacted Dr Gardiner's fitness to safely perform the inherent requirements of the role that Dr Gardiner had been employed to undertake for LORAC during the Employment. The complete nature and extent of that medical condition had never been disclosed by Dr Gardiner to LORAC.
L.      LORAC arranged for Dr Gardiner to be examined by Dr Rosalie Wilcox MBBS FRANZCP, General and Forensic Psychiatrist on 13 February 2018. Dr Wilcox reported that:
(i) Dr Gardiner suffers from ‘a recognised psychiatric condition in that he has a diagnosis of Bipolar Type II disorder.’
(ii) it was also ‘highly likely that he had a personality disorder and [Dr Wilcox] had identified paranoid, borderline and schizoid traits.’
(iii) the timing of Dr Gardiner's complaint was ‘relevant in that he made the complaint after it became apparent that the spin-off company was not going ahead.’
(iv) Dr Gardiner's ‘ability to perform the inherent requirement of the duties and responsibilities of the role that he was employed to perform has been primarily affected by the disturbance in his personality. In particular, he does not have the temperament to manage a team. He becomes stressed in situations where things do not go his way, if he has to resolve a situation of conflict, if there is work to be completed by a certain time or if he has to deal with a level of uncertainty.’
(v) Dr Gardiner's history ‘does not support his assertion’ that ‘if he had been provided with appropriate management training and the authority to deal with his team he would have been capable of carrying out the duties and responsibilities of his role.’
(vi) ‘From at least 2015 to date he has of his own initiative, withdrawn from a number of tasks, duties and responsibilities of the role that he was employed to undertake for LORAC. He reports that he needed to do this for his sanity, that he felt it was impossible to continue when he felt undermined and disempowered. It is my belief that he has withdrawn from a number of tasks because he does not have the ability to manage these tasks, in particular tasks that involve overseeing a team as he prefers to be occupied with endeavours of a more solitary and creative nature.’
M.     On 12 March 2018 Dr Gardiner was advised by LORAC that as a consequence of advice received from Dr Wilcox, LORAC had determined that he was not fit ‘... to perform the inherent requirements of the duties and responsibilities of the role that you have been employed’ to undertake and that as a consequence the Employment was Terminated. Dr Gardiner was provided with a payment in lieu of one month's notice of termination in recognition of his period of employment with LORAC (Termination of Employment).
N.      On 12 March 2018 Dr Gardiner filed a complaint in the Anti-Discrimination Board of NSW (ADB) alleging that LORAC had contravened various provision of the Anti Discrimination Act 1977 (NSW). That complaint was allocated complaint numbers 2017/0154 & C2018/0244 (The ADB Complaints).
O.     On 25 July 2018 the ADB Complaints were the subject of a conciliation conference before the ADB (Conciliation Conference).
P.      The parties agreed, without any admissions as to liability, to settle all issues between them howsoever arising out of the: the Timbrell Concerns, the Wilson Concerns, the Prof Harris Concerns, the Complaints, the Investigation, the ADB Complaints, the Conciliation Conference and/or in any way connected to the Employment or the Termination of Employment by LORAC excluding any claim by Dr Gardiner pursuant to the provisions of any applicable Workers' Compensation legislation, in accordance with the terms of this Deed.
Operative Terms
1      Definitions and Interpretation
1.1    Definitions
The definitions contained within this clause apply in the Recitals and in this Deed unless the context otherwise requires.
Claims means any claim, action, proceedings, complaint, damage, loss, liability, cost, charge, expense, obligation, outgoing or payment whether arising or made at common law (whether in negligence or otherwise) or in equity or under statute, contract or other legal instrument. under an indemnity or warranty or otherwise.
…
Parties mean Dr James Gardiner and LORAC.
Party means a party to this Deed.
…
2      Payment/Termination of the ADB Complaints
(a) Dr Gardiner is to provide LORAC with a copy of:
(i) a counterpart of this Deed executed by Dr Gardiner,
(ii)a Notice of Discontinuance lodged in the Fair Work Commission by Dr Gardiner in respect of the ADB Complaints, and
(iii) a valid tax invoice from Turner Freeman in the amount of $4,400 inclusive of GST (the Legal Costs) made out to LORAC in respect of Mr Gardiner's legal costs, (the Invoice);
(b) Within 7 Days of receipt by LORAC of the documents in Clause 2(a), LORAC will:-
(i)pay to Dr Gardiner the sum of $29,412.00 (gross) as General Damages;
(ii)appoint Ms Helen Fraser of the HC team as the point of contact for any prospective employer who might wish to verify Dr Gardiner's employment history with LORAC;
(iii)Provide Dr Gardiner with a written reference; and
(iv)pay the Legal Costs in satisfaction of the Invoice to the following bank account:
…
3      Full and Final Settlement
The Parties agree that the matters recited and agreed to by this Deed are in full and final settlement of all Claims which Dr Gardiner and/or LORAC have now, or at any time in the future, against the other arising from or related in any way to the: the Timbrell Concerns, the Wilson Concerns, the Prof Harris Concerns, the Complaints, the Investigation, the ADB Complaints, the Conciliation Conference and/or in any way connected to Employment or the Termination of Employment excluding any claim that Dr Gardiner might elect to pursue pursuant to any applicable Workers' Compensation legislation.
4      Release
Dr Gardiner hereby releases and forever discharges LORAC from all Claims which Dr Gardiner:-
(a) now has;
(b) at any time had;
(c) may have; and/or
(d) but for this Deed, could or might have had;
against LORAC, its current and former directors, officers, servants, agents or employees howsoever arising from or related in any way to the: the Timbrell Concerns, the Wilson Concerns, the Prof Harris Concerns, the Complaints, the Investigation, the ADB Complaints, the Conciliation Conference and/or in any way connected to the Employment or the Termination of Employment excluding any claim that Dr Gardiner might elect to pursue pursuant to any applicable Workers' Compensation legislation.
5      Bar to further proceedings
This Deed may be pleaded as a full and complete defence by Dr Gardiner or LORAC to any action, suit or proceedings commenced, continued or taken by either of them, or by anyone on their behalf in relation to any matter for which the other person has provided a release under this Deed.
…
8      Acknowledgement
8.1    The Parties warrant that each of them:
(a) has had the opportunity to seek independent legal advice in relation to the nature, effect and extent of this Deed;
(b) has read and accepts each of the terms of this Deed;
(c)enters into this Deed freely and voluntarily and that all matters set out in it are true and correct; and
(d) is aware that the Parties are each relying on these warranties in entering into this Deed.
8.2    In addition to Clause 8.1, the Parties each warrant that no other Party has made any promise, representation or inducement or been a party to any conduct material to any other Party entering into this Deed, other than as set out in this Deed.
8.3    In addition to Clause 8:1 and Clause 8.2, the Parties accept the Deed as fair and reasonable in settlement of the matters referred to in this Deed.
…
14.2 The Parties acknowledge that the Recitals are true and correct and form part of this Deed and that headings are inserted for convenience only and do not affect the interpretation of this Deed.”

THE ARBITRATOR’S REASONS

Three issues fell for determination by the learned Arbitrator. The first issue was described in the following terms:
“(a) Whether the payment of $29,412.00 made on resolution of an application in the Anti‑Discrimination Board, pursuant to a deed of release, constituted damages in respect of the same injury, such that Dr Gardiner was precluded by the operation of section 151A of the 1987 Act from any further entitlement to compensation.”
Given that the learned Arbitrator found that Dr Gardiner was precluded by the terms of the Deed of Release, it became unnecessary for the learned Arbitrator to proceed to decide issues (b) and (c).[9]
[9] See Reasons, [7] for a description of the three issues.
The learned Arbitrator set out at length in the section of her decision entitled “Background” the facts which were necessary for the determination of the issue in question.[10] The learned Arbitrator then considered the parties’ submissions and considered the authorities with respect to s 151A of the 1987 Act cases.
[10] Reasons, [14]–[25].
The learned Arbitrator then turned to a detailed consideration of the terms of the Deed of Release. In particular, close regard was had to the decision of the former President of this Commission, Keating P (as he then was), in Super IP Pty Limited v Mijatovic.[11] In Mijatovic, Keating P found on the facts of that case that the payment made had been in respect of the worker’s psychological injury, before rejecting the submission that it was the contractual intention of the Deed to keep Ms Mijatovic’s workers compensation entitlements open. The learned Arbitrator found that the present case was similar to Mijatovic for two reasons.[12]
[11] [2016] NSWWCCPD 33 (Mijatovic).
[12] See Reasons, [45].
The learned Arbitrator also identified that full details of the Anti-Discrimination Board complaints, referred to at Recital N of the deed, were not set out in full and it was therefore appropriate to refer to the documents filed by the parties in the Anti-Discrimination Board in order to determine what events were regarded as part of the complaint. The Arbitrator noted that the chronology provided by Dr Gardiner to the Anti-Discrimination Board identified the incidents going back to 2013 that were the subject of the proceedings before this Commission.
The learned Arbitrator then described the release in the Deed and the definition of ‘claims’ in clause 1.1 of the Deed before finding that that definition “covers in the present case personal injury damages claims arising at least from ‘(a) the employment’ and (e) ‘any other matter referred to in the recitals’.”[13] The learned Arbitrator therefore found that the various carve-outs or exceptions within the Deed as to workers compensation claims did not enable Dr Gardiner to escape the operation of s 151B(1)(a). The learned Arbitrator found that the broad language of the release and the circumstances it is described as covering required a conclusion that the payment itself must be characterised as constituting a recovery of damages.
[13] Reasons, [64].
The learned Arbitrator concluded as a question of fact that there had been a recovery of damages in respect of the injury the subject of this claim by the applicant under the Deed of Release.[14] The learned Arbitrator went further however to consider that if the recovery of damages was in fact a mixed question of law and fact, that as a matter of law the conclusion inevitably reached was that there had been a recovery of damages such as would require the application of s 151B(1)(a) to provide the respondent with a compete defence to the proceedings.
[14] Reasons, [71].

GROUNDS OF APPEAL

Dr Gardiner maintains three grounds of appeal.
(a) Ground One: The Arbitrator made an error of fact in finding that the appellant had recovered “damages” “in respect of the injury concerned”.
(b) Ground Two: The Arbitrator made an error of law in that she failed to give effect to the purpose and intent of s 151A, which is to avoid double recovery of compensation.
(c) Ground Three: The Arbitrator failed to give any or any adequate reasons for giving no weight to the repeated exclusions set out in the Recital to the Deed.

LEGISLATION

The relevant legislation under consideration in this appeal is as follows.
Section 149 of the 1987 Act provides:
“149 Definitions
(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.
(2) A reference in this Part to compensation payable under this Act includes a reference to compensation that would be payable under this Act if a claim for that compensation were duly made.”
Section 151A of the 1987 Act relevantly provides:
“151A Effect of recovery of damages on compensation
(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), (4) or (5) 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.
(2) If damages in respect of an injury are recovered from the employer liable to pay compensation under this Act, pursuant to a cause of action that survives for the benefit of the estate of a deceased worker under the Law Reform (Miscellaneous Provisions) Act 1944, the following amounts of compensation are to be repaid out of the estate of the deceased worker to the person who paid the compensation—
(a) the amount of any weekly payments of compensation already paid in respect of the injury concerned,
(b) the amount of any permanent impairment compensation and pain and suffering compensation already paid in respect of the injury concerned.

SUBMISSIONS

Appellant’s submissions

As to Ground One

Dr Gardiner submits that the Arbitrator’s findings at [66]–[68], namely that the Deed should be construed to include an exacerbation of his psychological condition, was not open on the evidence. Dr Gardiner submits that nowhere in the Recitals is there reference to an “exacerbation of his psychological condition” or “psychological injury”. Dr Gardiner submits that objectively viewed, the Recital is a recitation of the events leading to his complaint of discrimination, and that payment of monies pursuant to the Deed is in respect of compensation for industrial issues in dispute regarding his patents and intellectual property and for the termination which was based on his pre-existing condition.
Dr Gardiner submits the Arbitrator failed to have regard to Clause P and its relevant and important position in the Recitals of the Deed. Dr Gardiner submits that Clause P (i) does not refer to injury, (ii) specifies the subject matter of the Deed, and (iii) clearly states that any claim he might have under the workers compensation provisions is excluded from the settlement amount.
Dr Gardiner submits the Arbitrator was misguided in placing greater weight on the chronology and the material he provided to the Anti-Discrimination Board to find that the damages recovered for the discrimination complaint were in respect of the psychological injury. Dr Gardiner further submits that the Arbitrator provided insufficient reasoning in her reliance on Burns v Gladesville Bowling & Sports Club Ltd[15] to support her finding that he had recovered damages for the same injury. Dr Gardiner distinguishes his case from Burns in that his case concerns his industrial issues and the termination issue which were resolved by way of the Deed, not the injury which was the subject of the worker compensation claim.
[15] (2000) 20 NSWCCR 648 (Burns).
Dr Gardiner further submits his case is analogous to Barnett v Country Rugby League of NSW Inc,[16] where Roche AP construed the deed to find that the express exclusion of “claims for workers compensation under workers compensation legislation” resulted in no release from any potential liability under the NSW workers compensation legislation.
[16] [2010] NSWWCCPD 73.

As to Ground Two

In respect of Ground Two, Dr Gardiner submits that the Arbitrator’s finding that he had recovered damages for the “injury concerned” on “the basis of the broad language of the release” was not open to her on the evidence. Dr Gardiner reiterates his submissions in respect of Ground One in support of this submission and further notes the specific exclusion for workers compensation contained in the Deed, which he submits was not sufficiently dealt with by the Arbitrator. Dr Gardiner submits that the intention and purpose of s 151A of the 1987 Act to avoid double recovery does not preclude a worker from pursuing the various available remedies under different causes of action, and cannot operate to unjustly prevent a legitimate claim for workers compensation in circumstances such as his case.

As to Ground Three

Dr Gardiner submits the Arbitrator failed to give any reasons for not giving any weight to the repeated exclusions as to workers compensation claims and where they appeared in the Deed. In doing so, she also failed to provide adequate reasons for her conclusions, thereby committing an error of law.[17]

Respondent’s submissions

[17] Referring to Public Service Board of NSW v Osmond [1986] HCA 7; 159 CLR 656 at 667 per Gibbs CJ; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273 per Mahoney JA (Soulemezis).

As to Ground One

The respondent submits that Dr Gardiner generally relies on an impermissibly subjective construction of the Deed. The respondent sets out the principles it views as relevant to the current case, and refers to Adams v Fletcher,[18] Mijatovic and Sciberras v University of New South Wales[19] for the proposition that s 151A operates independently of contract. The respondent submits that where, on a proper construction of a deed of settlement, the worker has been paid “damages” for “an injury” “from the employer liable to pay compensation”, s 151A effectively extinguishes a worker’s rights to compensation. Whether a payment is in “respect of an injury for which the employer is liable” so that it is caught by s 151A of the 1987 Act will depend on the characterisation of any payment made, which will in turn depend on the construction of the thing for which payment is made in any deed of release.
[18] [2008] NSWCA 238 (Adams).
[19] [2017] NSWWCC 207.
The respondent submits the broad language of s 149 is such that a large variety of settlement sums are capable of being characterised as damages and refers to the $29,412 paid to Dr Gardiner as ‘General Damages’ for The Professor Harris Concerns, the Timbrell Concerns, the Wilson Concerns, the Investigation, the Conciliation Conference, the Complaints, The Termination of Employment and the ADB Complaints. The respondent submits ‘the ADB Complaints’ encompass the issues raised by Dr Gardiner in his chronology, which are the same as the issues raised in his statement of 26 February 2019. As such, the psychological injury claimed in Dr Gardiner’s ARD has already been compensated and s 151A of the 1987 Act effectively extinguishes his claim. The respondent further submits that Dr Gardiner released ‘All Claims’ under s 4 of the Deed, and that the broad definition of ‘All Claims’ is such that any exclusions in respect of workers compensation claims can only be for a work injury that has not been settled under Deed. The respondent submits the problem for Dr Gardiner is that on the proper construction of the Deed, the particular workers compensation claim he brings is for the same injury that has already been compensated. The respondent submits the Arbitrator made no error of fact, law or discretion, as s 151A is not discretionary.

As to Ground Two

The respondent submits that the Arbitrator’s finding that the $29,412 paid to Dr Gardiner on 26 September 2018 was paid in respect of the same injury for which he now seeks compensation under the workers compensation legislation, gives effect to the purpose and intent of s 151A of the 1987 Act, which is to avoid double recovery of compensation. As such, there is no error.

As to Ground Three

The respondent submits that reasons need not be extensive[20], and that the Arbitrator’s reasons were adequate to explain her thought process and conclusions.
[20] Referring to Campbelltown City Council v Vegan (2006) 67 NSWLR 372 at 397.

Appellant’s submissions in reply

Dr Gardiner seeks to distinguish his case from Adams on the basis that, unlike in Adams, the Deed did not identify the money paid to him as “work injury damages”. Dr Gardiner seeks to distinguish Mijatovic on the basis that Dr Gardiner’s ADB claim concerned the respondent’s failure to accommodate for his pre-existing bi-polar/depressive condition of which they were aware, which he argues is not the same injury claimed in the ARD. Dr Gardiner further submits that he does not rely on a subjective construction of the Deed, and that the Arbitrator failed to construe the entirety of the Deed to “ensure a congruent operation of the various components as a whole”[21] by only giving weight to the definition of “claims” in Clauses 1.1 and ignoring the repeated exclusions within the Deed.
[21] Referring to Justice Sackar in Sydney Attractions Groups Pty Ltd v Frederick Schulman [2013] NSWSC 858 at [34]–[36] citing Gleeson CJ and McHugh, Gummow and Kirby JJ un Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522 at [16].

DISCUSSION

Before turning to a consideration of each of the three appeal points, there are a number of matters which are not issues of controversy between the parties. These matters though assist in understanding what the facts were and precisely what was resolved when the Deed was executed and whether or not it had the effect ultimately found by the learned Arbitrator. The issues are:
(a)    No issue was taken with the terms of the Deed of Release being in any way ambiguous. Both parties assert that consistent with the approach to construction of deeds, the meaning of this Deed is capable of being discerned.
(b)    There is no issue taken that Dr Gardiner was paid “general damages” in the sum of $29,412 pursuant to the Deed.
(c) No issue is taken with the fact that Dr Gardiner recovered the sum of $29,412, paid as general damages. This is important in terms of any consideration of s 151A of the 1987 Act as it requires the person to actually recover damages.
(d)    No issue is taken that Dr Gardiner has suffered, and from time to time continues to suffer, from the mental illnesses described in the medical reports. It is true though that there is a dispute, which it is not necessary for me to resolve in this appeal, as to the role if any played by the respondent in the aggravation or exacerbation of that disease. This was a live issue before the learned Arbitrator, but given the manner in which she decided the question which is now on appeal, it was unnecessary for her to proceed to consider those issues.

Relevant legal principles

Before a detailed consideration of Ground One is undertaken, it is necessary to set out the relevant legal principles arising from previous cases where settlements have taken place and there was a later argument about whether or not the appellant worker was barred from pursuing workers compensation proceedings.
Adams is an often relied upon case in this area. In Adams, the worker had brought proceedings in the then Australian Industrial Relations Commission with respect to his dismissal. These proceedings were settled by a Deed of Release, the operative provisions of which noted the employer’s agreement to pay the employee an amount of $2,500 “in respect of general and other damages”.
Handley AJA noted that “[t]he worker’s difficulties flow not from the deed as such, but from his acceptance of the payment of $2500”,[22] before turning to the question as to whether the amount recovered was “damages in respect of an injury”. Handley AJA then construed the Deed and established that the payment was made “in respect of” the injury.[23] His Honour found that s 151A of the 1987 Act “in its present form is intractable and the Court has no option but to give effect to the clear language of Parliament.”[24]
[22] Adams, [17].
[23] Adams, [27].
[24] Adams, [28].
In Mijatovic President Judge Keating (as he then was) found that a worker by deed resolving a claim in the Australian Human Rights Commission had recovered damages with respect to the same injury. His Honour construed the Deed which gave a release with respect to all claims “except any claims made in accordance with the provision of any applicable workers compensation legislation”. The Recitals to the Deed had recorded that the worker alleged that her employer had caused her psychological and personal injury and reports were provided in support. His Honour found that the broad definition of damages in s 149 of the Act included the compensation paid to settle the anti-discrimination complaint.[25]
[25] Mijatovic, [68].
Both of these matters involved a construction of the terms of the requisite deed of release in order to ascertain, as a factual matter, whether the damages recovered had been recovered in respect of the same injury. This was the task before the learned Arbitrator.

Ground One

The Arbitrator made an error of fact in finding that the appellant had recovered “damages” “in respect of the injury concerned”

Dr Gardiner in his submissions in support of Ground One correctly asserts that this Commission “is required to determine whether the ‘damages’ recovered are for the same ‘injury’ which would give rise to an entitlement to workers compensation under the 1987 Act.”[26]
[26] Submissions in chief, [34.2].
Dr Gardiner then challenges the conclusion that the Deed should be construed so as to include an exacerbation of his psychological condition and asserts that this was not open to the Arbitrator on the evidence. This is a specific allegation of a factual error in the learned Arbitrator’s reasoning. Much weight then is placed upon a review of the Recitals to the Deed (set out above) to support this submission. For this allegation of factual error to be made good, it must be shown that the decision in a factual sense is wrong.[27]
[27] Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506.
Dr Gardiner criticises the weight placed upon the chronology and the evidentiary material provided to the Anti-Discrimination Board in substantiating the finding that the damages were in respect to psychological injury. Dr Gardiner submits that this approach is misguided and that the material filed in support of the Anti-Discrimination Board complaint was merely historical and was provided so as to enable the complaint to be understood.
For the reasons set out below, I do not accept that the factual error as alleged has been made out. To the contrary, the conclusion reached by the learned Arbitrator was readily available on the evidence. Relevantly, at Reasons [68] the learned Arbitrator found as follows:
“The Deed of Release in the present case supports a finding that the applicant in the present case has recovered damages ‘in respect of the injury concerned’. The documents filed in the ADB and, in particular, the chronology by Dr Gardiner made it clear, in my view, that the events referred to in the Recitals in the Deed of the Release should be construed to include the events from 2011 onwards which were alleged in these proceedings to have exacerbated his psychological condition.”

If one considers the description of injury in the ARD, the terms of the chronology and in particular the reports of Ms Tendys, Dr Gardiner’s treating clinical psychologist, one is led inexorably to the view that the general damages paid for under the Deed were indeed “in respect of the injury concerned” as found by the learned Arbitrator. It is abundantly clear from both a consideration of the chronology and the extracts from Ms Tendys’ reports (see [11] above) that “the specific psycho-social hazard and the resulting interpersonal conflicts that were inadequately resolved, clearly triggered and/or exacerbated his depression, resulting in suicidality”.[28] Dr Gardiner himself gives evidence about these matters at pages 1–10 of the ARD. These issues gave rise to two claims, one under the Anti-Discrimination legislation, the other under the Workers Compensation Acts. This is not surprising because in the modern workplace there are various statutory provisions which apply in both a concurrent and overlapping way to the same set of facts and which can lead to rights being pursued under different statutes.
[28] ARD, p 199.
To use this case as an example, the evidence complained of gave rise to rights under the Anti-Discrimination legislation which were pursued by Dr Gardiner. Dr Gardiner’s termination, based upon the same facts could have led to an application under the adverse action provisions of the Fair Work Act 2009 (Cth) or otherwise for breach of his employment contract. The same facts have also given rise to the claim that Dr Gardiner has pursued under the Workers Compensation legislation.
Tellingly, the injury description as set out in the ARD (see [2] above) pleads injury “whereby numerous unaddressed administrative issues/difficulties occurred which affected the Applicant psychologically. There was a failure to remedy same with the Applicant’s direct line manager.” This is the same complaint which was pursued in the Anti-Discrimination Board, namely that there was a failure to make requisite adjustments for Dr Gardiner having regard to his mental disability. It is clear on any objective assessment of the evidence that the failure to make these adjustments caused and/or aggravated Dr Gardiner’s mental disease. When the evidence is looked at in this light, it is abundantly clear that the terms of the Recitals, and in particular the terms of Recitals B, C, E, G, H, I, M, N and O, were drafted so as to ensure that these factual issues and complaints were subject to the agreed settlement.
It is abundantly clear, as the learned Arbitrator found, that there was a real and obvious connection between the facts which gave rise to the claim before the Anti-Discrimination Board and the same facts which the medical evidence reveals as causing an exacerbation to Dr Gardiner’s mental condition. It is clear that the Recitals and the Releases and their terms, as described by the learned Arbitrator,[29] are drafted in sufficiently wide terms to cover all of these matters. The Arbitrator’s approach is consistent with the proper approach to construction of written contracts relied upon by Dr Gardiner.[30] In my view, consistent with Cordon Investments, it is plain in this matter that the parties clearly intended to resolve a number of claims and not just the discrimination claim which had been initiated in the Anti-Discrimination Board.
[29] Reasons, [19], [23], [61]–[65], [68].
[30] Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 per Bathurst CJ, [52] (Cordon Investments).
There is no doubt that the injury as pleaded in the ARD has been subject to a recovery of damages pursuant to the Deed of Release. Not only is there no error in the learned Arbitrator’s approach, factually or otherwise, it is indeed clear from a review of the evidence, that this was an available factual conclusion to be reached.
Dr Gardiner also attempts to distinguish the Court of Appeal decision in Adams, pointing to the covering letter which accompanied the cheque as identifying the damages as being for a “work injury claim” and drawing attention to the fact that no such description was given in this matter. It is correct to say that the term of art “work injury damages” was not used in this Deed of Release. However, the failure to use that term is not determinative. Section 149 of the 1987 Act defines damages more widely than “work injury damages”. The key is the recovery of damages with respect to the same injury concerned in order to trigger s 151A of the 1987 Act. In Adams, the $2,500 settlement was paid with respect to “the injury concerned” and a number of other claims. That is precisely the case in this matter where the Recitals and the Release detail, in a factual sense, the various claims, complaints and concerns which are subject to the settlement. It is clear as a matter of construction that the parties to the Deed of Release were resolving a wide range of matters which were inextricably linked with both the claim before the Anti-Discrimination Board and the claim which is now sought to be brought in this Commission.
I find no error of fact has been made by the Arbitrator in terms of finding that the damages recovered were in respect of the injury concerned.
Ground One is not made out and is thus dismissed.

Ground Two

The Arbitrator made an error of law in that she failed to give effect to the purpose and intent of s 151A, which is to avoid double recovery of compensation

This appeal ground is perhaps inelegantly expressed. It is abundantly clear from the learned Arbitrator’s decision, that the s 151A of the 1987 Act prohibition against double recovery of damages was uppermost in the learned Arbitrator’s mind and figured in the decision, and in particular at Reasons [69].
It is tolerably clear that the argument Dr Gardiner seeks to advance under Ground Two is to the effect that the s 151A prohibition against double recovery was not enlivened in this circumstance, as this provision does not prohibit a worker from pursuing different causes of action.[31]
[31] Appellant’s submissions in chief, [35.5].
As a statement of principle, Dr Gardiner’s proposition must be correct. The s 151A prohibition against double recovery only applies in circumstances where damages have been recovered with respect to the same injury. If this pre-condition is not met, applicants such as Dr Gardiner are free to pursue their various remedies.
Unfortunately in this matter, due to the terms of the Deed of Release and as I have found in dismissing Ground One, Dr Gardiner resolved all of his rights (as pursued in this litigation) when he executed the Deed of Release and recovered damages. Because the learned Arbitrator found that the monies recovered in the Anti-Discrimination Board proceedings were for the same injury as advanced in these proceedings, the s 151A prohibition against double recovery was thus enlivened. Indeed once the learned Arbitrator made the finding that she did regarding injury at Reasons [71], the application of s 151A adopted by the Arbitrator was in fact the only proper approach available. This did not involve the learned Arbitrator in any error of law, rather it was a precise and principled application of the provision.
The problem for Dr Gardiner in this matter is not any legal error in terms of how his different rights arose and were pursued. Rather, the difficulty is with the terms of the Deed of Release and the breadth of the facts, the claims and the releases which were subject to the settlement reflected in that Deed of Release. Once Dr Gardiner recovered the damages paid pursuant to the Deed, s 151A of the 1987 Act was enlivened.
I accept that the claim before the Anti-Discrimination Board, so as to engage with the provisions of the Anti-Discrimination legislation, was pursued on the basis of “less favourable treatment and detriment as a result of his disability”.[32] The problem is that whilst that was the claim filed in the Anti-Discrimination Board, the settlement went further than just that particular matter and constituted the recovery of damages. The learned Arbitrator so found.[33]
[32] Appellant’s submission in reply, [5].
[33] Reasons, [65].
No error of law in terms of the learned Arbitrator’s approach in relation to the argument raised in Ground Two has been established. Ground Two is therefore dismissed.

Ground Three

The Arbitrator failed to give any or any adequate reasons for giving no weight to the repeated exclusions set out in the Recital to the Deed

Before turning to the Arbitrator’s reasons with respect to the exclusions, it is necessary to briefly state the legal principles which apply to an allegation about a failure to give reasons or any adequate reasons for a particular decision.
It is trite to say that a failure to provide adequate reasons is an error of law.
Firstly, the statute itself sets out the requirement to give reasons:
“A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”[34]
[34] Section 294(2) of the 1998 Act.
Section 294(2) of the 1998 Act needs to be read in conjunction with Rule 15.6 of the Workers Compensation Commission Rules 2011 (the Rules) which sets out what is required to meet the standard referred to in s 294(2) of the 1998 Act. Rule 15.6 provides as follows:
“15.6 Certificates of determination
(1) A statement of the Commission’s reasons referred to in section 294 (2) of the 1998 Act is to include:
(a) the Commission’s findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c) the reasoning processes that led the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
This obligation has been described in a number of cases to require the following observance by decision makers. In Soulemezis McHugh JA said as follows:
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated.”[35] (emphasis added)
[35] Soulemezis at 280.
This statement of principle is the approach which has been followed in this Commission. In this appeal ground, the complaint by Dr Gardiner refers to the “repeated exclusions set out in the Recital to the Deed”. The relevant exclusions in the Deed are found not only in the Recitals but elsewhere in the Deed. The exclusions can be found in Recital P and clauses 3, 4, 6.3(f), 6.4 and 7.1.
Whilst there are other exclusions within the Deed, the exclusions which I have listed here are the ones which specifically apply to workers compensation rights.
In terms of the Deed however, before turning to what transpired at first instance regarding the exclusions, it is worthwhile to consider the provisions of cl 14.2.
Clause 14.2 of the Deed reads as follows
“The Parties acknowledge that the Recitals are true and correct and form part of this Deed and that headings are inserted for convenience only and do not affect the interpretation of this Deed.” (emphasis added)
This is an important provision because it means that the Recitals form part of the agreement to resolve Dr Gardiner’s rights. Clause 14.2 though makes sense when one considers the drafting of the Deed, which in its Operative Terms makes frequent reference to that which has been described in the Recitals. It is clear that one can only construe the terms of the Deed and understand that which has been resolved inter partes by reference to the factual matters set out in Recitals A–P.
Dr Gardiner argued the exclusions contained in the Deed directly with the Arbitrator. The learned Arbitrator has set this out in terms at Reasons [28].
Dr Gardiner’s submission before the learned Arbitrator therefore required a detailed examination by the Arbitrator of all the Deed’s provisions including the exclusions relied upon by Dr Gardiner. It is clear that consistent with the obligation to give reasons (described above) that this was the duty which was reposed in the learned Arbitrator on this issue.
In the section of the judgment titled “Background” the learned Arbitrator sets out the relevant provisions from the Deed to be considered. The Deed of course at Recital N refers to the complaint lodged before the Anti-Discrimination Board of New South Wales. This complaint included the detailed chronology prepared by Dr Gardiner which is then set out at length at Reasons [24]. The learned Arbitrator then compared that chronology with the statement filed in the proceedings in this Commission and noted that there was no significant difference between these two documents.[36] No issue was taken with this factual conclusion on this appeal.
[36] Reasons, [25].
In particular, whilst the Anti-Discrimination Board complaints were not set out in full in Recital N, the learned Arbitrator considered that it was appropriate to refer to extrinsic documents in order to determine what events are regarded as part of the complaint and thus what is referred to in Recital N.[37] This is an appropriate approach with which I respectfully agree. Indeed the comparison made between that extrinsic material, chiefly being the chronology provided by Dr Gardiner, with his statement in these proceedings, referred to at Reasons [25], was of course for the purposes of this application an important step to undertake given that Dr Gardiner was attempting to distinguish what transpired in the Anti‑Discrimination proceedings from these proceedings. This was an enquiry which had to be undertaken.
[37] Reasons, [62].
The learned Arbitrator then proceeded to consider the terms of the Release. It is important to understand that the Release was from “all claims” and the learned Arbitrator set out her thoughts regarding what had been defined as “claims” in cl 1.1.[38] At Reasons [64] the learned Arbitrator sets out her view as to why the express exception as to workers compensation claims did not respond. This consideration of the workers compensation exception continues at Reasons [65]–[67], wherein the learned Arbitrator sets out her reasoning processes based upon the Deed before concluding that the exceptions did not apply. In particular, as a matter of fact, the learned Arbitrator found as follows:
“The Recitals and chronology make it clear that the monies recovered were not paid merely in respect of a pre-existing condition.”[39]
[38] Reasons, [64].
[39] Reasons, [66].
This is an important finding because the essential allegation advanced by Dr Gardiner is that the subject of the settlement reflected in the Deed of Release was discrimination in relation to the pre-existing condition only and not any allegation with respect to an injury. The learned Arbitrator’s finding contrary to this allegation is thus crucial to the ultimate decision.
It is not true to say, as has been asserted by Dr Gardiner, that the Arbitrator failed to give any reasons for not giving any weight to the repeated exclusions. To the contrary, the Deed and the exclusions were construed in a concise and succinct manner before expressing the ultimate conclusion at Reasons [67]. This approach is consistent with the learned Arbitrator’s duty under the 1998 Act and the Rules and arising from the decided cases on the obligation to give reasons.
It is clear from the learned Arbitrator’s reasoning that the exclusion question was considered, the argument weighed and evidence reviewed to assess whether the exclusion applied. Particular issue is taken with how the Arbitrator dealt with the exclusion found in cl 4 of the Deed. The Arbitrator considered that the operation of the workers compensation exception was defeated because of the broad language of the Release.[40] Dr Gardiner takes issue with this description in terms of the release being “broad”, instead arguing that the Release is quite specific. This submission urges upon me a different construction of cl 4 of the Deed. It is hard to see how this submission can support an appeal ground which alleges that there are no or inadequate reasons. Clearly at Reasons [65], the cl 4 Release is subject to construction by the learned Arbitrator. The reasons are succinct. The criticism regarding the reasoning set out at Reasons [64] (see appellant’s submission in chief [36.2]) fails to read the decision in its context. Paragraph [64] of the Reasons sits within the section of the decision where the learned Arbitrator is reviewing the terms of the Deed of Release and dealing with Dr Gardiner’s arguments regarding the effect of the workers compensation exception. This statement is based upon the wide definition of “claims” in cl 1.1 which the learned Arbitrator considered before coming to the conclusion reached in Reasons [64]. There is no basis to assert that there are no reasons or no adequate reasons in this regard.
[40] Reasons, [65].
The allegation that the learned Arbitrator failed to give any or any adequate reasons for this aspect of the decision is without basis. Ground Three has not been made out and is dismissed.

DECISION

The learned Arbitrator concluded that Dr Gardiner was unable to pursue his workers compensation claim against the respondent due to the terms of the Deed of Release that he signed on 5 September 2018, by recovering general damages for personal injury pursuant to that Deed, and by the operation of ss 149 and 151A of the 1987 Act. The reasons for this decision were pellucid, detailed and in accordance with principle. No error is disclosed and the learned Arbitrator’s decision must therefore stand undisturbed.
The Certificate of Determination dated 28 June 2019 is confirmed.

Judge Phillips

PRESIDENT

19 December 2019

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established