Gosper v Pilbara Iron Company (Services) Pty Ltd - [2023] WADC 102

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   GOSPER -v- PILBARA IRON COMPANY (SERVICES) PTY LTD [2023] WADC 102
CORAM:   BURROWS DCJ
HEARD:   23 MARCH & 19 MAY 2023
DELIVERED          :   1 SEPTEMBER 2023
FILE NO/S:   APP 1 of 2023
BETWEEN:   JOSES GOSPER
Appellant
AND
PILBARA IRON COMPANY (SERVICES) PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE
Coram:   ARBITRATOR WALLBRIDGE
File Number            :   A64434

Catchwords:

Claim by worker under the Workers' Compensation and Injury Management Act 1981 (WA) as a result of injuries allegedly suffered at work - Definition of injury - Whether arbitrator biased - Whether worker denied natural justice - Turns on own facts

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Leave to appeal on grounds 1, 2, 3 and 4 refused
Appeal dismissed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Ms E Thuijs

Solicitors:

Appellant	:	Not applicable
Respondent	:	Jackson McDonald

Case(s) referred to in decision(s):

Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Charisteas v Charisteas (2021) 273 CLR 289
Cullen v Woodside Energy Ltd [2021] WADC 56
Duluxgroup (Australia) Pty Ltd v Chapple [2023] WASCA 83
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Gosper v Pilbara Iron Company (Services) Pty Ltd [2021] WADC 47
Marks v Coles Supermarkets [2021] WASCA 176
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
WKS v The State of Western Australia [No 4] [2020] WASCA 178

BURROWS DCJ:

Background

The appellant, Mr Gosper, was employed by the respondent, Pilbara Iron Company (Services) Pty Ltd (PICS) primarily as a machine operator. He also undertook other work including manual handling.
Mr Gosper alleges that during the course of such employment he suffered two injuries to his left shoulder, those injuries being subacromial bursitis and a tear of the subscapularis tendon. The bursitis was identified and diagnosed following an ultrasound on 19 January 2019. The subscapularis tendon tear was identified in an MRI on 6 June 2019 and the presence of bursitis was confirmed.
Mr Gosper made a claim against PICS dated 5 July 2019 for compensation under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) in respect of the injuries. PICS disputed the claim.
It is not in dispute that Mr Gosper suffered the physical injuries. What is in dispute is whether those injuries are compensable under the Act.
Mr Gosper made an application for arbitration dated 21 October 2019. Arbitrator Nunn dismissed Mr Gosper's claim by written reasons delivered on 30 July 2020 (the First Arbitration). Mr Gosper appealed that decision to this court and on 25 May 2021 Lemonis DCJ, as he then was, delivered his reasons allowing the appeal and ordered that the matter be referred back for determination by a different arbitrator.[1] His Honour found that the Act did not mandate that a worker must establish the date of injury in order to establish their claim. His Honour found the learned arbitrator had made an error of law in finding that because Mr Gosper could not identify when he first suffered his injuries, Mr Gosper had failed to prove that it is more likely than not he suffered an injury caused by his employment.[2]
[1] Gosper v Pilbara Iron Company (Services) Pty Ltd [2021] WADC 47 (Gosper).
[2] Gosper [40].
In Mr Gosper's case the cause of his injuries is not readily apparent. Lemonis DCJ noted that in such a case proof of the cause will most likely depend on the overall circumstances. The extent to which the work undertaken by Mr Gosper involved the use of his left shoulder and the intensity and duration of such use were relevant factors in assessing his claim, as was an assessment of the activities Mr Gosper undertook when not at work. His Honour found the learned arbitrator made no findings regarding such activities.[3]
[3] Gosper [50].
Lemonis DCJ was of the view that the learned arbitrator's finding that the tendon tear was not an injury within s 5 of the Act was not sustained by the limited findings he made regarding Mr Gosper's work and non‑work activities involving the use of the left shoulder.[4] His Honour went on to consider Mr Gosper's submission that the bursitis and tendon injury were linked. His Honour's view was that if the learned arbitrator found Mr Gosper's work activities were a significant factor contributing to the torn tendon, then this might be a relevant circumstance in assessing whether the bursitis in a similar part of the body was also caused by the same activities. He considered the dismissal of the bursitis claim was not sustained by the limited findings made by the learned arbitrator and did not allow the contention point made by the respondent.
[4] Gosper [63].
It is against this background that the matter was referred for determination before a different arbitrator. Clearly a significant issue identified by his Honour in relation to causation was the nature and extent of the work and non‑work related activities undertaken by Mr Gosper.
Arbitrator Wallbridge took carriage of the matter. Three directions hearings were held on 30 June 2021, 6 August 2021 and 13 January 2022. I will refer to these as the first, second and third directions hearings respectively. All of the directions hearings were conducted by telephone. Arbitrator Wallbridge ultimately determined that the matter could be dealt with on the material that was received in the First Arbitration and submissions from the parties.[5]
[5] Directions Orders of Arbitrator Wallbridge, dated 13 January 2022 (Third Directions Orders).
In written reasons dated 13 January 2022 the learned arbitrator was of the view, having reviewed the transcript of the First Arbitration, the exhibits and the submissions of the parties that there was sufficient evidence to determine Mr Gosper's application and make the necessary factual findings including those about Mr Gosper's work and non‑work related activities without the need for a rehearing. The learned arbitrator then went on to consider a number of further documents sought to be adduced by Mr Gosper. He accepted a 15 page document as written submissions titled 'Submission of Further Evidence and Work Time' prepared by Mr Gosper in support of his application.[6] He excluded a number of documents sought to be adduced by Mr Gosper as not being relevant to the issue of causation including documents filed in Mr Gosper's previous appeal to this court and documents filed in a separate action in the Federal Court by Mr Gosper in relation to an unfair dismissal claim.
[6] Third Directions Orders, page 2.
It is important to note at this point that throughout the arbitration proceedings there has been a divergence of medical opinion evidence between Mr Gosper's general practitioner, Dr Patel, who in the absence of a clear triggering injury considered Mr Gosper's shoulder injury was likely to have developed as a result of or within the course of his employment[7] and Dr Tan, an occupational physician who reviewed Mr Gosper on 17 September 2019 at the request of the respondent. Dr Tan is of the opinion that there is no causal connection between Mr Gosper's employment and his shoulder injury.[8]
[7] Report of Dr Vikash Patel, dated 12 December 2019.
[8] Report of Dr Heng Tan, dated 25 November 2019, page 3.
Mr Gosper had the opportunity to adduce more detailed reports from his treating medical practitioners as to the nature and frequency of his work activities that could have caused or contributed to his bursitis and tendon tear. In relation to the latter, he could have obtained such a report from his treating orthopaedic surgeon, Dr Michalka, who performed a surgical excision of the lateral clavicle and the long head of the biceps tendinosis on 11 July 2019.[9] Mr Gosper chose not to obtain any further medical evidence or to call any of the medical practitioners in support of his claim. It is not part of the appeal grounds that he was denied an opportunity to do so, however making the decision to proceed without such further medical evidence in my view significantly impacted on Mr Gosper's claim for compensation.
[9] Report of Dr Patel, page 2.
By written reasons dated 22 December 2022 Arbitrator Wallbridge dismissed Mr Gosper's claim (the Second Arbitration).[10]
[10] Arbitrator's Decision 64434, dated 22 December 2022.

The Appeal

Mr Gosper now appeals the decision in the Second Arbitration pursuant to s 247 of the Act.

Relevant legal principles

Pursuant to s 247(1) of the Act, Mr Gosper can only appeal the learned arbitrator's decision with the leave of this court where a question of law is involved and the amount of compensation in issue exceeds the thresholds in s 247(2) of the Act. Given the learned arbitrator's decision is confined to the issue of whether Mr Gosper suffered a compensable injury pursuant to s 5(1)(a), s 5(1)(c) or s 5(1)(d) of the Act, the amount of compensation has not been determined. Section 247(5) of the Act provides that an appeal to this court is to be by way of review of the decision appealed against.
Some material error of fact or law or some other miscarriage of justice must be established: Marks v Coles Supermarkets [2021] WASCA 176 at [124].
A decision does 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': Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 353; BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 at [3].
An appeal involves a question of a law if the decision‑maker has made a material error of law or mixed law and fact: Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [20] (Buss JA, Wheeler & Pullin JJA agreeing), BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 at [3] and [15].
Section 247(7) provides that upon hearing an appeal this court 'may affirm, vary, or quash the decision appealed against, or substitute, and make, in addition, any decision that should have been made in the first instance'. Once a question of law is involved the whole decision appealed from is open to review: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 at [18].
Although no formal orders have been made for the application for leave to appeal and the appeal to be heard together, the parties have proceeded on the basis that I will determine the application for leave and the appeal itself together. In my view, it is appropriate to consider the merits of each ground of the appeal before dealing with the application for leave to appeal.

Conduct of the appeal

Mr Gosper was unrepresented at the first and second arbitrations and on appeal. The appeal was heard over two days on 23 March and 19 May 2023.
During the hearing on 23 March 2023 Mr Gosper submitted that the transcript of the directions hearings did not represent a full and correct record of what had transpired.
At the conclusion of the first day of the appeal hearing, the matter was adjourned to allow Mr Gosper to obtain the audio recordings of each of the directions hearings.[11] Mr Gosper filed further submissions but did not present a corrected transcript of the directions hearings. When the appeal hearing resumed on 19 May 2023 substantial portions of the directions hearing recordings were played and further oral submissions were made in respect of ground 1.
[11] Exhibit 1.
Turning to the grounds of appeal.

Ground 1

Ground 1 reads:
1.ARBITRATION HEARING PRACTICE AND PROCEDURE
In contrast to the Arbitration Hearing and the Arbitrators reference to natural justice in his Written Reasons for Decision (s 188 of the Act), it is contested that the Arbitration Hearing was prejudice to the disadvantage of the Applicant. A complaint of prejudice and Record of Prejudice were documented and submitted during the Arbitration, regarding Procedural fairness, but further to such prejudice the submissions were not considered or acknowledged. The prejudice is mainly concerned with bias in favour of the Respondent regarding the Arbitration procedure, time and means to respond to Arbitrator questions, and 2 evidence submissions, but also bias to aid the Arbitration service in dismissing my Case. It is contested that the Arbitration Hearing was unfair, which therefore concluded with an unfair ruling.
Two issues arise in respect of ground 1.
The first is whether the conduct of the Second Arbitration gives rise to actual or apprehended bias on the part of the learned arbitrator.
The second is whether Mr Gosper was afforded natural justice:
(a)during each directions hearing generally;
(b)in relation to the decision to proceed on the papers; and
(c)by the exclusion of additional material sought to be adduced by Mr Gosper.

Ground 2

Ground 2 reads:
2.ACCIDENT / INJURY INCIDENT
Without consideration of item one (1) of the Grounds of appeal; in contrast to the Arbitration findings, it is contested that under s 5 ‑ injury(a) of the Act an exact precipitating event resulting in an accident is not required to be identified. For as predetermined by the District Court in this entire matter, an exact day and time of an accident/injury is not mandatory (s 178 of the Act), therefore it is contested that by default an exact precipitating event is not mandatory, for an exact precipitating event would, by default, be coupled an exact day and time ‑ An exact event or exact time would identify each other. It is contested that the Arbitrator sought to undermine the Result and Orders of the District Court that were delivered in the first appeal; specifically, the Result that an exact day and time of an accident/injury is not required to be identified.
Mr Gosper explained that ground 2 of the appeal related to the tendon tear he had suffered. The substance of Mr Gosper's submissions was to the effect that the learned arbitrator erred in finding that there was no specifically identifiable event that caused the tear and not then going on to consider the nature of the work Mr Gosper undertook as he properly should have under s 5(5) of the Act. Mr Gosper accepts that there is no specifically identifiable time, date or place attributable to the injury. Mr Gosper explained his case relevant to the torn tendon to be that even without being able to identify a specific event, an event must have occurred to cause the tear and that when the activities he undertook at work and home were properly weighed, a finding that the tear occurred at some point during his work was inevitable.

Ground 3

Ground 3 reads:
3.WORK RELATED ACCIDENT / INJURY OR NOT
Without consideration of item one (1) of the Grounds of appeal; in contrast to the Arbitration findings, it is contested that s 5(5) of the Act should also apply to s 5 ‑ injury(a) of the Act, rather than, or as well as s 5 ‑ injury(c) and s 5 ‑ injury(d) of the Act, when in consideration of item two (2) of the Grounds of appeal. It is contested that the Arbitrator sought to diminish the relevance of s 5(5) of the Act by applying it only to s 5 ‑ injury(c) and s 5 - injury(d) of the Act in knowing that s 5 ‑ injury(c) and s 5 - injury(d) have a lesser strength of case in this matter rather than if s 5(5) were applied to s 5 - injury(a); essentially, coupling a relevant and strong section of the Act with a weaker section of the Act (in relation to the Applicants case) in order to dismiss the strong section along with the weak section.
In relation to ground 3 Mr Gosper explained that the ground related to his bursitis and that his complaint was largely the same as in ground 2. Mr Gosper submitted that the learned arbitrator again failed to properly weigh the factors contained in s 5(5) of the Act when determining if an injury within the meaning of either s 5(1)(a), s 5(1)(c) or s 5(1)(d) had occurred at work.

Ground 4

Ground 4 reads:
4.WITH CONSIDERATION OF ALL ITEMS
With consideration of items one (1), two (2), and three (3) of the Grounds of appeal; in contrast to the Arbitrators The Issues To Be Determined (part 9, Written Reasons for Decision), it is contested that, rather than the Written Reasons for Decision set out as a fair analysis and Findings of the Case, it has a 3 methodical layout in favour of predetermined conclusion of Dismissal. It is a vindictive conclusion in error of law.
In relation to ground 4, Mr Gosper explained that the ground was essentially a complaint that the arbitrator failed to provide adequate reasons explaining the way in which the various definitions of injury in s 5(1)(a), s 5(1)(c) and s 5(1)(d) and s 5(5) of the Act applied to the facts of the case, and the written reasons instead represented the product of a formulaic template designed to dismiss cases.
It is useful to deal with grounds 1 and then 4 given they raise similar issues before turning to grounds 2 and 3.

Ground 1

Relevant legal principles

The general conduct of arbitration hearings is governed by s 188 of the Act which reads:
188.Practice and procedure, generally
(1)An arbitrator is bound by rules of natural justice except to the extent that this Act authorises, whether expressly or by implication, a departure from those rules.
(2)The Evidence Act 1906 does not apply to proceedings before an arbitrator and an arbitrator -
(a)is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the arbitration rules make them apply; and
(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)An arbitrator may inform himself on any matter as the arbitrator thinks fit.
(4)An arbitrator may -
(a)receive in evidence any transcript of evidence in proceedings before a court or other person or body acting judicially and draw any conclusion of fact from the transcript; and
(b)adopt, as the arbitrator thinks fit, any finding, decision, or judgment of a court or other person or body acting judicially that is relevant to the proceeding.
(5)To the extent that the practice and procedure of an arbitrator are not prescribed under this Act, they are to be as the arbitrator determines.
I respectfully adopt the principles concerning the meaning of 'Natural Justice' as summarised by Stavrianou DCJ in Cullen v Woodside Energy Ltd [2021] WADC 56at [46] ‑ [49]:
46Natural justice requires that a party be given a reasonable opportunity to present their case: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589.
47What amounts to a reasonable opportunity to present a case depends on the circumstances of the case, the nature of the jurisdiction, the subject matter that is being dealt with and the statutory provisions governing the power or jurisdiction being exercised: National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296, 311 ‑ 312 (Gibbs CJ); SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 [26].
48As a general rule a person will not be afforded a reasonable opportunity to present his or her case if he or she is not entitled to put information and submissions to the decision‑maker in support of an outcome that supports his or her interests: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, 591 ‑ 592; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 [22].
49Fairness is essentially a practical concept. It is not abstract in nature. The law of procedural fairness is concerned to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ); Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [4], [55].

In addition, ground 1 of the appeal raises issues of both actual and apprehended bias. The legal principles applicable to a claim of actual bias were set out by the Court of Appeal in WKS v The State of Western Australia [No 4] [2020] WASCA 178 at [341]:
Insofar as the appellant asserts actual bias, the principles were outlined by Gleeson JA (Emmett and Tobias JJA agreeing) in Reid v Commercial Club (Albury) Ltd and may be summarised as follows.
(1)A finding of actual bias is a grave matter. An allegation of actual bias must be distinctly made and clearly proved. Such a finding should not be made lightly, and cogent evidence is required.
(2)If there is an allegation of prejudgment, the party making that claim must establish that the judge is 'so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented'.
(3)There are distinct elements underlying an assertion of prejudgment: that the judge (i) has an opinion on a relevant aspect of the matter in issue in the particular case; (ii) will apply that opinion to the matter in issue; and (iii) will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.
(4)The test requires an assessment of the state of mind of the judge in question, although it is not confined to an intentional state of mind. Bias may be subconscious.
(footnote omitted)
The test for apprehended bias is set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8]. It is a two step test in the following terms:
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
The majority of the High Court in Charisteas v Charisteas (2021) 273 CLR 289 at [11] made the following relevant observations about the rationale for the test:
Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that 'a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide'. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial - that it is conducted by an independent and impartial tribunal.
…
(citations omitted)

Mr Gosper's submissions

In oral and written submissions Mr Gosper raised the following matters in support of the contention that he was denied natural justice:
(a)that he was cut off when attempting to make submissions generally;[12]
(b)that relevant evidence was excluded without proper consideration;[13]
(c)that he was not afforded a reasonable opportunity to make submissions about the relevance of further evidence he sought to admit;[14] and
(d)that he wasn't given an opportunity to make submissions concerning whether the matter was to be redetermined on the papers.[15]
[12] ts 3, ts 54.
[13] ts 6, ts 55.
[14] ts 8.
[15] ts 42.
Mr Gosper submitted that the matters outlined above indicated a bias held by Arbitrator Wallbridge against him. Mr Gosper submitted:
(a)that Arbitrator Wallbridge reached a prejudged position that the matter should be dealt with on the papers and in excluding further evidence;[16]
(b)that Arbitrator Wallbridge and counsel for the respondent during the directions hearings had aligned interests;[17]
(c)that Arbitrator Wallbridge became 'vindictive and made the matter personal' to 'teach [him] a lesson' about the workers' compensation industry;[18]
(e)that Arbitrator Wallbridge and the workers' compensation industry as a whole were operating a conspiracy against him;[19]
(f)that Arbitrator Wallbridge became agitated at times during the directions hearings;[20]
(g)that Arbitrator Wallbridge spoke to him in a condescending and scornful manner;[21]
(h)that Arbitrator Wallbridge had an 'adverse reaction' when he disagreed and that the respondent didn't receive the same 'adverse reaction' when counsel for the respondent disagreed with the learned arbitrator;[22]
(i)that at various points Arbitrator Wallbridge attempted to entice him into doing a 'quicker' on the papers hearing to access a possible payout sooner;[23] and
(j)that an unknown party was present in the first directions hearing and can be heard to whisper the words 'he lied' on the audio recording. Mr Gosper submits the unknown person is Registrar Nunn.[24]
[16] Submissions titled 'Claim of Discrimination and Bias regarding second Arbitration Directions Hearings', filed 19 April 2023, page 7 (Discrimination and Bias submissions).
[17] Discrimination and Bias submissions, page 16.
[18] Discrimination and Bias submissions, page 6; Written Submissions, filed 18 March 2023, page 1 (Written Submissions).
[19] Discrimination and Bias submissions, page 6.
[20] Discrimination and Bias submissions, page 4.
[21] Discrimination and Bias submissions, pages 4, 8.
[22] Discrimination and Bias submissions, pages 7, 13, 14, 15.
[23] ts 55.
[24] Discrimination and Bias submissions, page 14.
The respondent's position is that there was nothing in the conduct of the arbitration that could reveal bias, nor was there anything in the manner of the arbitrator that was improper.

Ground 1 - disposition

I will deal first with the allegation of actual bias, second with the allegation of apprehended bias and finally with the appellant's claim he was denied natural justice.
The evidence that Mr Gosper points to in support of a claim of actual bias is scant. Mr Gosper's assertion that there is a conspiracy against him within the workers' compensation industry is without basis. In written submissions, he conceded that he could only 'heavily speculate'[25] as to the motivations of the learned arbitrator and failed to point to any direct evidence at all to support his claim, instead he relied on an inference being drawn from the outcome of the arbitration and the learned arbitrator's position within the industry. As was pointed out to Mr Gosper during the hearing of the appeal,[26] arbitrators exercising power under the Act are independently appointed officers of the court. Arbitrators are required to make decisions as part of an adversarial process and inevitably will at times accept the position of one or the other party. There is no evidence to support the inference sought to be drawn by Mr Gosper.
[25] Written Submissions, page 1.
[26] ts 17.
There is similarly no evidence in support of Mr Gosper's contention that the learned arbitrator arrived at a prejudged position in relation to the conduct of the arbitration or the admissibility of evidence. The learned arbitrator expressed a preliminary view at the first directions hearing that the matter could be redetermined on the papers.[27] The learned arbitrator then invited submissions from both parties orally and in writing as to the conduct of the hearing.[28] This indicates in my view that the learned arbitrator was willing to give the matter fresh consideration in light of the arguments put forward by the parties and the potential use which might be made of any further evidence sought to be adduced. In this regard I note that the learned arbitrator offered Mr Gosper the opportunity to outline and make submissions about any further evidence he would like considered, including any further medical evidence.[29] There is nothing unusual in a judge or arbitrator expressing a preliminary view in a matter and after hearing submissions either confirming or altering that view. In this case the learned arbitrator did give careful consideration to the position of the parties. Finally regarding the decision to conduct the rehearing on the papers, I note that Mr Gosper did not either in the appeal or directions hearings state that he wanted a full rehearing of the matter, nor did he submit that the decision of Lemonis DCJ required that a full rehearing be conducted.[30]
[27] First directions hearing, ts 3.
[28] First directions hearing, ts 3.
[29] First directions hearing, ts 5, ts 9, ts 10, ts 11, ts 12, ts 18; Directions Orders dated, 30 June 2021; Second directions hearing, ts 14 and ts 17; Directions Orders, dated 6 August 2021, page 2.
[30] ts 18, ts 48.
For these reasons I find that no actual bias has been established on the part of the learned arbitrator against Mr Gosper, in short because Mr Gosper has not raised any evidentiary material that could support such a finding. The balance of the matters regarding bias are best dealt with when considering the allegation of apprehended bias. I turn now to that allegation.
Regarding the allegation of apprehended bias, Mr Gosper submits that the following indicate the learned arbitrator based his decision on matters other than the merits of the case:
(a)that the learned arbitrator was unduly influenced by another person who whispered 'he lied' during the first directions hearing;
(b)that the learned arbitrator was attempting to dispose of the matter in the fastest way possible;[31] and
(c)that the learned arbitrator held a 'personal vendetta' against Mr Gosper due to controversy caused by Lemonis DCJ's decision.[32]
[31] Discrimination and Bias submissions, page 5.
[32] ts 10; Discrimination and Bias submissions, page 6.
Regarding the first allegation, that another person was present at the first directions hearing and whispered 'he lied,' Mr Gosper submits that this can be heard 32 minutes 37 seconds from the commencement of the audio recording of the first directions hearing. That recording was played in open court in full. I have again listened to the recording in chambers with the benefit of headphones. I am not satisfied any words can be heard in the background of the recording, specifically the words 'he lied' cannot be heard. The only voices which can be heard are those of the learned arbitrator, Mr Gosper and Mr Lustig who represented the respondent at the directions hearing.
Regarding the second allegation, Mr Gosper submits that the conduct of the learned arbitrator was such that he felt forced into accepting an 'on the papers' redetermination by the learned arbitrator against his own interest. I have reviewed the transcripts of the directions hearings and listened to the audio. I am unable to find any reference in those materials which could be construed as an ultimatum being presented by the learned arbitrator, nor can I find anything in the manner of the learned arbitrator's conduct that would imply such an ultimatum. As I have noted above, the learned arbitrator did come to the directions hearings with a preliminary view that the decision of Lemonis DCJ could be given effect in a rehearing on the papers. I am not satisfied that the learned arbitrator reached this position out of self‑interest or from a prejudged view.
Regarding the third allegation, Mr Gosper submits that the decision of Lemonis DCJ allowing his previous appeal to this court created some 'controversy' within the workers' compensation industry such that it engendered a personal vendetta against him on the part of the learned arbitrator. Mr Gosper did not at any stage specify what the alleged controversy is, nor could he point to any evidence that such a view was held within the workers' compensation industry. Mr Gosper did not point to any evidence that would suggest the learned arbitrator had a vendetta against him.
For these reasons I am satisfied that there is nothing in the conduct of the learned arbitrator that might have led the learned arbitrator to decide the case on anything other than its legal and factual merits.
I turn now to consider whether the appellant was afforded natural justice. Mr Gosper made numerous submissions, which are summarised at [41] ‑ [42] in support of the contention that he was denied natural justice. Broadly those submissions fall into three categories, first that he was not afforded the opportunity to make submissions during the directions hearings, second that the learned arbitrator unfairly allowed the respondent to make submissions and third, that the evidence he sought to adduce was unfairly rejected. Before dealing with each of those categories, I note that there is a discreet submission made that the respondent was allowed to adduce further evidence during the rehearing under the guise of submissions. I have reviewed that document,[33] it does not contain any evidentiary material and has been prepared consistent with the learned arbitrator's direction to both parties that they may file further written submissions should they wish to do so. Mr Gosper was permitted to file a document entitled 'Submission of Further Evidence of Duties and Work Time' dated 6 July 2021.
[33] Respondent's Submissions, filed 21 February 2022.
In terms of the first category which concerns Mr Gosper's allegation that he was not allowed to make submissions during the directions hearing, two issues arise.
Mr Gosper alleges he was not afforded opportunities to make submissions about the manner in which the matter was to be reheard or dealt with on the papers. Mr Gosper was candid during the directions hearings[34] and confirmed at the appeal hearing that he did not think a rehearing was necessary.[35] He does not submit that he was denied natural justice by the matter proceeding without a rehearing. The real issue Mr Gosper was concerned about was that he was not permitted to adduce further material in the arbitration. I will return to this issue shortly.
[34] First directions hearing ts 5; Second directions hearing, ts 2, ts 3, ts 7.
[35] ts 18, ts 48.
Second, Mr Gosper alleges that generally, he was cut off or received 'adverse reactions' during the directions hearings which hampered him from fairly putting his case. I note that it was Mr Gosper's primary submission that this was symptomatic of a bias held by the learned arbitrator. I have already made a finding that no such bias existed, however, the question of whether the alleged conduct of the hearing amounts to a denial of natural justice more broadly still arises. To that end I make the following findings:
(a)Mr Gosper was cut off from time to time by the learned arbitrator, as was the respondent's counsel, Mr Lustig.[36] This was in the context of hearings being conducted on the telephone without the benefit of visual clues as to when a person has finished speaking. Having listened to the recordings, I am not satisfied Mr Gosper was prevented or discouraged from making submissions.
(b)From time to time the learned arbitrator sounded frustrated as opposed to agitated. This was during portions of the proceedings when he was endeavoring to explain matters to Mr Gosper.[37]
(c)The scorn or condescension complained of is not apparent on a fair review of the audio and transcripts. It is true that the learned arbitrator went to some length to explain relatively basic procedural steps to Mr Gosper, but as a litigant in person this was proper and appropriate for the learned arbitrator to do. His tone was not condescending when he did so.
[36] Examples of Mr Lustig being cut off include portions of Exhibit 1, recording of second directions hearing at: 8:25 - 9:20; 13:40 and 32:55. Examples of Mr Gosper being cut off include portions of Exhibit 1, recording of second directions hearing at: 26:30; 30:22 and 47:20.
[37] See for example portion of Exhibit 1, recording of second directions hearing at: 14:35 - 15:15; 24:00; 30:45 - 30:55; 32:20; 39:15 - 39:45 and 38:20.
In terms of the submission that the respondent was unfairly allowed to make additional submissions during the directions hearings, having reviewed the audio and transcripts of the directions hearings it is clear that the respondent was given no greater opportunity than Mr Gosper to make submissions. There were no submissions made by the respondent in the course of the directions hearing as to substantive matters. The directions hearings were focused on the manner in which the arbitration was to proceed, the receipt of additional evidence and programming of submissions in support of Mr Gosper's application to adduce additional evidence. At the hearing on 13 January 2021 after the learned arbitrator had delivered his ruling on the admissibility of additional material, the filing of submissions was programmed. Mr Gosper was not denied natural justice by the manner in which the directions hearings were conducted.
Dealing now with the crux of Mr Gosper's complaint, that he was not permitted to adduce the evidence he sought to adduce in the arbitration. That material was:[38]
(a)the first appeal decision;
(b)Mr Gosper's opening submission in the first appeal;
(c)42 pages of 'consolidated documents' filed in the first appeal containing amongst other documents a statement from Mr Gosper, news articles and Mr Gosper's deed of settlement and release;
(d)a 269 page document filed in Mr Gosper's general protections claim in the Federal Circuit Court containing allegations of bullying, unlawful conduct, unfair treatment and other workplace management issues;
(e)a 1413 page document also filed in the Federal Circuit Court general protections claim dealing with Mr Gosper's treatment by PICS and workplace management issues including bullying, harassment, discrimination and the like; and
(f)video footage of Brockman 4 mine site.
[38] Third Directions Orders, pages 3 - 4.
At the appeal hearing Mr Gosper was unable to refer to any specific document that he says should have been allowed into evidence and why the document was relevant.
I will deal with each item in turn.
The learned arbitrator correctly observed that the appeal decision was not evidence. Its contents were a matter that the learned arbitrator was required to have regard to in determining the arbitration. It is clear from his reasons that he did.
In relation to item 'b', again the learned arbitrator noted the submissions were not evidence. He noted they largely repeated what was contained in Mr Gosper's closing submission in the arbitration. He was correct not to admit the appeal submissions document as evidence in the arbitration.
In relation to item 'c' the arbitrator reviewed the document. He determined that the statement of Mr Gosper did not contain any new evidence and that the news articles were irrelevant as was Mr Gosper's deed of settlement and release. The learned arbitrator was correct not to admit these documents into evidence.
Items 'd' and 'e' form part of separate proceedings. Mr Gosper submits they are relevant as they go to the credit and reliability of witnesses for the respondent. As the learned arbitrator correctly observed, Mr Gosper had the opportunity to and did cross‑examine Mr Webb and Mr Cozamanis during the First Arbitration and filed submissions pointing to alleged discrepancies in their evidence during the First Arbitration.[39] The learned arbitrator correctly determined that the filings in the Federal Circuit Court were not relevant to the arbitration.
[39] Third Directions Orders, pages 3 - 4.

In relation to item 'f' which is a video of the laydown yard at the Brockman 4 mine site and which shows a dingo approaching to then be shooed away by Mr Gosper, the learned arbitrator determined it was not relevant as it did not show Mr Gosper performing any work tasks. The footage showed an expanse of space with some dongas. I am satisfied the learned arbitrator correctly determined the footage was not relevant to the issues to be determined in the arbitration.
In conclusion I am satisfied that the learned arbitrator did not err in excluding materials. Further, there was no denial of natural justice in the procedure by which the materials were excluded. Mr Gosper was given the opportunity to make oral and written submissions in support of his application to adduce the materials. No error of law has been established.
Leave to appeal on ground 1 is refused.

Ground 4 - The structure of the learned arbitrator's reasons

The fourth ground of appeal raises concerns Mr Gosper has with the learned arbitrator's written reasons for decision. In the appeal notice, Mr Gosper contends the written reasons are no more than a 'methodical layout in favour of predetermined conclusion of dismissal'.[40] In his written submissions Mr Gosper labelled the reasons a 'letter of implore to the District Court'.[41] In oral submissions Mr Gosper explained that in dealing with whether both injuries occurred under s 5(1)(c) or s 5(1)(d) at the same time, the learned arbitrator failed to properly consider whether the torn tendon came about as a result of work‑related incident.
[40] Appeal Notice dated 2 January 2023, ground 4.
[41] Written Submission, page 2.
The respondent's primary position is that the appellant's complaint about the structure of the reasons does not raise a question of law. In the alternative, to the extent that the ground may be cast as a complaint of inadequate reasons the respondent submits that the learned arbitrator's reasons are sufficient and reveal careful consideration of the matters in issue, particularly in light of s 213(4) of the Act and the purpose of the Act.
Section 213(4) of the Act governs the form and content of reasons to be provided by an arbitrator under the Act and is in the following terms:
213.Decisions and reasons, form and content of
…
(4)The reasons for an arbitrator's decision -
(a)need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and
(b)need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
…
The principles relevant to evaluating the adequacy of reasons were recently set out in Duluxgroup (Australia) Pty Ltd v Chapple [2023] WASCA 83. In that decision the Court of Appeal examined the adequacy of reasons given under s 31(1) Magistrates Court Act 2004 (WA) which is in near identical terms to s 213(4) of the Act. The court set out at [46] ‑ [48]:
46The generally applicable principles dealing with the adequacy of reasons are well‑established. In evaluating the adequacy of reasons for decision the critical question is whether the essential path of reasoning to the impugned conclusion is disclosed in sufficient detail and with sufficient certainty to meet the twin objects that: (1) the litigant knows why he or she was unsuccessful; and (2) an appeal court may determine whether the decision involved appellable error.
47As was stated in Browne v Browne:
The principles relevant to an evaluation of the adequacy of reasons are well established and include the following:
(1)Reasons for decision need not be lengthy or elaborate.
(2)Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.
(3)It is certainly not necessary to refer to every submission advanced by a party. However, a tribunal or court must engage with the central element(s) of a losing party's case and explain why that case fails. Considering that party's submissions is an aspect of what procedural fairness requires.
(4)In determining the adequacy of the reasons, the reasons must be read as a whole, and, if necessary, considered in the context of the evidence. An appellate court may take into account what can legitimately be inferred from the reasons. Whether reasons are adequate will depend upon the circumstances of the case and the matters that arose for the judge's consideration.
48As to the last point, the authorities accept that the content and detail of reasons will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision.
(citations omitted)
The nature of the jurisdiction being exercised in this particular matter affects the practical content of the decision in the following ways:
(a)This is a decision made by an arbitrator under the Act, the purpose of which is relevantly set out in s 3(1) as:
3.Purposes
The purposes of this Act are -
…
(c)to provide for the resolution of disputes under this Act; and
(d)to make provision for the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick.
(b)Section 213(4) of the Act as set out above provides statutory recognition for what will constitute sufficient reasons.
(c)There is a limited right to appeal against the learned arbitrator's decision as set out at [15] ‑ [19] above. An important function of providing reasons under the Act is to facilitate a statutory right to appeal, the potential grounds on which such an appeal might be brought ought to be recognised. Importantly there is no right to appeal on the merits of the decision, or when alleging an error of fact.
A complaint about the structure of reasons is not an error of law. So far as the ground alleges that the learned arbitrator failed to provide adequate reasons, an error of law may be established if those reasons are so deficient as to not reveal the process by which the learned arbitrator reached his decision.
The reasons delivered 13 January 2022 set out clearly why the learned arbitrator determined it was appropriate to proceed on the material in the First Arbitration to determine the arbitration and his reasons for excluding the additional material sought to be adduced by Mr Gosper. The reasons disclose the intellectual process that led to the decisions and explain with sufficient detail why Mr Gosper was unsuccessful in his application to adduce the additional material. Read as a whole, the reasons are adequate.
The learned arbitrator's reasons delivered 22 December 2022 run to 32 pages. In his reasons the learned arbitrator has:
(a)Outlined the history of proceedings.
(b)Summarised the First Arbitration decision[42] and the decision of Lemonis DCJ on the first appeal.[43]
[42] Arbitrator's Decision 64434, dated 22 December 2022 [4].
[43] Arbitrator's Decision 64434, dated 22 December 2022 [5] - [6].
(c)Detailed the material received and considered in reaching his decision.[44]
(d)Set out the issues to be determined.
(e)Outlined the general arbitration principles and the obligations to a self represented litigant.[45]
(f)Set out Mr Gosper's case and the respondent's position.[46]
(g)Detailed the operator tasks and critical physical demands of Mr Gosper's employment (which Mr Gosper accepts and made detailed submissions on[47]).[48] The learned arbitrator accepted the role profile and critical physical demands document was a correct summation of the work tasks performed by Mr Gosper.[49]
(h)The learned arbitrator then went on to deal with the unrelated medical condition Mr Gosper suffered with from the beginning of 2018 when he was experiencing headaches and neck pain which caused him to be off work from 24 April to 30 October 2018. Mr Gosper did not pursue a workers' compensation claim in respect of those injuries.
(i)The learned arbitrator detailed the medical evidence including the treatment received by Mr Gosper. He found Mr Gosper was probably suffering from the bursitis on 19 December 2019 when Dr Cheong diagnosed AC joint arthropathy. He was not persuaded that Mr Gosper was suffering from the bursitis for one to two years prior to this time based on Mr Bowler's notes and Dr Tan's evidence. Mr Bowler was Mr Gosper's treating physiotherapist.
(j)The learned arbitrator found the tendon tear occurred between 17 January 2019 and the MRI on 6 June 2019, which conclusion was supported by Mr Gosper's evidence that he believed it had occurred sometime between 6 March 2019 and 13 March 2019 during a swing on Brockman 4.[50]
(k)The learned arbitrator outlined the legislation and legal principles relevant to determining whether Mr Gosper suffered a personal injury by accident arising out of Mr Gosper's employment. The learned arbitrator then set out in detail the competing medical opinions as to causation of Dr Patel and Dr Tan. The learned arbitrator found Dr Patel's report contained insufficient information to enable him to understand how Dr Patel concluded that Mr Gosper's shoulder injuries were likely to have developed as a result of, or in the course of his employment. He found Dr Patel failed to identify what significant or repetitive activities he believed resulted in the shoulder injuries. He then detailed the evidence of Dr Tan as to the activities Mr Gosper was required to perform and his opinion that the requirements of a heavy machinery equipment operator he had earlier outlined did not predispose Mr Gosper to the bursitis or tendon tear. [51] The learned arbitrator set out his reasons for preferring Dr Tan's opinion over that of Dr Patel.
(l)The learned arbitrator then detailed his findings on causation, outlining his reasoning process and concluded that he was not persuaded Mr Gosper had suffered a personal injury, either by the bursitis or tendon tear, by accident for the purposes of s 5(1) of the Act. He then went on to consider whether Mr Gosper had contracted a disease in the course of his employment to which the employment was a significant factor and whether Mr Gosper has suffered a recurrence, aggravation or acceleration of any pre‑existing diseases where his employment was a contributing factor. In considering these issues the learned arbitrator detailed the legislative provisions, relevant law and the factors in s 5(5) of the Act before setting out his findings.[52]
[44] Arbitrator's Decision 64434, dated 22 December 2022 [8].
[45] Arbitrator's Decision 64434, dated 22 December 2022 [9] - [16].
[46] Arbitrator's Decision 64434, dated 22 December 2022 [17] - [24].
[47] Appellant's Closing Submissions, filed 1 April 2020.
[48] Arbitrator's Decision 64434, dated 22 December 2022 [25] - [34].
[49] Arbitrator's Decision 64434, dated 22 December 2022 [35].
[50] Arbitrator's Decision 64434, dated 22 December 2022 [50].
[51] Arbitrator's Decision 64434, dated 22 December 2022 [56] - [73].
[52] Arbitrator's Decision 64434, dated 22 December 2022 [107] - [115].
When considered as a whole, the learned arbitrator's reasons cannot be said to be formulaic. His reasoning process has been comprehensively set out, the findings of fact clearly articulated and the reasons for preferring the evidence of Dr Tan clearly expressed. The reasons for decision are adequate. No error of law has been established.
Leave to appeal on ground 4 is refused.

Ground 2

'Injury' in s 5(1) of the Act is defined as follows:
5.Terms used
(1)In this Act, unless the contrary intention appears -
…
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,
but does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the matter is mentioned in paragraph (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer;
…
Section 5(5) of the Act is in the following terms:
(5)In determining whether the employment contributed, or contributed to a significant degree, to the contraction, recurrence, aggravation or acceleration of a disease for purposes of the definitions of injury and relevant employment, the following shall be taken into account -
(a)the duration of the employment; and
(b)the nature of, and particular tasks involved in, the employment; and
(c)the likelihood of the contraction, recurrence, aggravation or acceleration of the disease occurring despite the employment; and
(d)the existence of any hereditary factors in relation to the contraction, recurrence, aggravation or acceleration of the disease; and
(e)matters affecting the worker's health generally; and
(f)activities of the worker not related to the employment.
Mr Gosper in ground 2 contends that the learned arbitrator found there was no specific event which caused his injuries and therefore Mr Gosper had not suffered an injury as defined in s 5(1)(a) of the Act. The learned arbitrator set out at [52] of his written reasons the correct legal test to be applied referring to Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41 per Toohey J at [41] as:
1.The question whether there has been personal injury by accident is a question distinct from, and logically anterior to, the question whether what has happened arose in the course of the relevant employment. The questions have not always been kept distinct.
2.The expression personal injury by accident is a compound one. It is not necessary to show, first, that something to be described as an accident happened and secondly, that something else, namely an injury, was brought about or caused by that accident. The use of the term 'accident' points up the unexpected nature of the event constituting the injury.
3.It is no longer necessary to prove that some external event or some action of the worker caused a sudden physiological change to happen when it did. That necessity arose from the requirement to establish that injury by accident had arisen out of and in the course of the employment.
4.Personal injury by accident may exist where there is no more than an actual internal physical injury such as the rupture of an aneurism or of an oesophagus, not attributable to any external injury but resulting from some force or pressure exerted within the body.
5.Where the personal injury by accident relied upon is an internal physical injury, it is no answer to a claim for compensation that there was a pre‑disposing physical condition. The employer must take the worker as he finds him.
6.A worker does not suffer personal injury by accident arising in the course of his employment where he suffers, at his place of employment, a sudden and distinct physiological change as the product of the inevitable development of a progressive disease from which he is suffering and where such change can in no way be attributable to or associated with some incident of his employment.
7.Where incapacity results not from an actual physical injury, external or internal, but from the development or culmination of a pre-existing and progressive morbid physical condition, the disease and the condition in which it culminated (for instance thrombosis or occlusion) is autogenous. In the absence of any particular incident or activity of the worker accelerating or contributing to the condition, there is no personal injury by accident.
8.Personal injury by accident arises in the course of employment so long as it occurs while the worker is performing his duties or doing something incidental to the actual performance of those duties, or, put another way, where he is engaged in his employment. There need be no causal connexion between the injury and the employment.
9.The traditional view that a physiological change, sudden or otherwise, is not an injury by accident arising in the course of the employment unless it is associated with some incident of the employment cannot be pressed beyond the case of physiological change which is produced by the development of a progressive disease.
(citations omitted)
The learned arbitrator correctly concluded that Mr Gosper's injuries constituted a distinct physiological change for the worse. At [57] ‑ [73] of the learned arbitrators written reasons he set out the competing opinions of Dr Patel and Dr Tan. In Mr Gosper's case there is, as Dr Patel stated, no triggering incident in Mr Gosper's personal life or work that resulted in his injuries.[53] Dr Tan described the injuries being of gradual onset without an identified physical factor or acute incident precipitating them.
[53] Dr Patel's report, page 2.
The learned arbitrator considered in this case that it was necessary for Dr Patel to identify any particular work tasks that he categorised as significant strenuous and/or repetitive that were responsible for Mr Gosper's injuries. Dr Tan identified the type of tasks that may lead to such injuries as sustained by Mr Gosper, absent a traumatic event such as a fall or direct blow to the shoulder, as a period of unaccustomed repetitive overhead activities and/or heavy lifting above shoulder height. After examining the tasks that Mr Gosper performed and Mr Gosper's evidence in relation to those tasks, no such activities were identified. His Honour set out his findings at [81] ‑ [84] as follows:
81There is no evidence of any causal link between the bursitis and the tendon tear.
82There is no evidence of any discrete precipitating event in either Mr Gosper's employment or personal life that caused the shoulder injuries.
83There is no evidence that I accept of any inherent work tasks or key critical physical demands associated with the role of HME operator that corresponds to the typical mechanisms of injuries that Mr Gosper has suffered.
84Mr Gosper's evidence fails to demonstrate to the requisite standard a causal connection between his shoulder injuries and his tasks as a HME operator and/or any other incident or incidence of his employment. This is so because there is no evidence of any task or tasks Mr Gosper performed as part of his employment or any other incident or incidence of his employment that on the balance of probabilities can be said to have caused the injuries. Consequently, I am not persuaded by Mr Gosper's evidence to the requisite standard that he has suffered a personal injury by accident.
It is clear, when the reasons are read as a whole, that at [82] the learned arbitrator was stating a finding of fact which is not in dispute, namely there is no identifiable discrete event precipitating the onset of the bursitis or tendon tear. The learned arbitrator was not stating that an event was a pre‑requisite to a finding of causation. No error of law has been established.

Leave to appeal in relation to ground 2 is refused.

Ground 3

Mr Gosper submits that the learned arbitrator should have taken into account the factors set out in s 5(5) of the Act when determining whether Mr Gosper had suffered an injury as defined in s 5(1) of the Act.
In Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23] ‑ [24] French CJ and Hayne J stated the basic principles of statutory construction as follows:
23It is as well to begin consideration of this issue by re‑stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
24The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, '[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute' (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision 'by reference to the language of the instrument viewed as a whole', and 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'.
(citations omitted)
The factors referred to in s 5(5)(a) to s 5(5)(f) are relevant in determining whether a worker has suffered an injury as defined in s 5(1)(c) or s 5(1)(d) of the Act. They are not relevant to the application of s 5(1)(a). This is apparent from the words used at the commencement of s 5(5). The factors relevant in determining whether the employment contributed or contributed to a significant degree to the contraction, occurrence, aggravation or acceleration of a disease (emphasis added) for the purpose of the definitions of injury and relevant employment. Disease is not referred to in s 5(1)(a), it is referred to in s 5(1)(c). The reoccurrence, aggravation or acceleration of any pre‑existing disease is referred to in s 5(1)(d). The factors in s 5(5) are specifically therefore referrable on a plain reading of the Act to s 5(1)(c) and s 5(1)(d). Section 5(1)(a) relates to the circumstances where a worker has suffered personal injury by accident not a disease.
The test for a causal connection between the worker's injury and his employment contained in s 5(1)(a) of the Act does not require consideration of whether or not the employment contributed or contributed to a significant degree to the contraction, reoccurrence, aggravation or acceleration of a disease. The learned arbitrator considered the factors in s 5(5) when determining whether Mr Gosper has suffered an injury as defined in s 5(1)(c) or s 5(1)(d).[54]
[54]Arbitrator's Decision 64434, dated 22 December 2022 [90] - [106].
The learned arbitrator appropriately considered the s 5(5) factors and concluded that Mr Gosper had failed to satisfy him to the requisite standard that some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions on which it is performed was a contributing factor to the injuries or a contributing factor to the occurrence or aggravation or acceleration of any pre‑existing disease.[55]
[55]Arbitrator's Decision 64434, dated 22 December 2022 [111].
There was no error on the part of the learned arbitrator by not referring to s 5(5) factors when considering whether Mr Gosper had suffered a personal injury by accident.
No error of law has been established in respect of ground 3. Leave to appeal is refused.
The orders of the court will be:
1.Leave to appeal in relation to grounds 1, 2, 3 and 4 of the notice of appeal dated 2 January 2023 is refused.
2.The appeal is dismissed.
I will hear the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JG
Associate to Judge Burrows
31 AUGUST 2023