Hanson v Wilke and Company Pty Ltd - [2024] NSWPICPD 20

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Hanson v Wilke and Company Pty Ltd [2024] NSWPICPD 20
APPELLANT:	Lloyd Hanson
RESPONDENT:	Wilke and Company Pty Ltd
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W752/23
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	10 April 2024
ORDERS MADE ON APPEAL:	1. The Senior Member’s Certificate of Determination dated 26 May 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Section 261 of the Workplace Injury Management and Workers Compensation Act 1998 – compensation sought in respect of alleged injury that occurred over 23 years prior – whether employer paid taxi fare for worker to attend hospital after incident – whether seeking payment of taxi fare to hospital constituted giving notice of injury
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms E Grotte, counsel
Kemp & Co Lawyers
Respondent:
Mr F Doak, counsel
Hicksons Lawyers
DECISION UNDER APPEAL:	Hanson v Wilke and Company Pty Ltd [2023] NSWPIC 242
SENIOR MEMBER:	Ms K Haddock
DATE OF MEMBER’S DECISION:	26 May 2023

INTRODUCTION

The appeal is from a Certificate of Determination dated 26 May 2023[1] in which the Senior Member made an award for the respondent.
[1] Hanson v Wilke and Company Pty Ltd [2023] NSWPIC 242 (reasons).
The appellant, a printer employed by the respondent, Wilke and Company Pty Limited (Wilke), sustained injury to the dominant right hand on 14 September 1998 when his hand became caught in the printing machine.
The claim is for a 4% whole person impairment (WPI) due to an 8% loss of use of the right upper extremity. The amount in issue is $5,600. The claim for lump sum compensation was commenced by a claim form dated 11 May 2022, that is, 23 years after the original injury.
The respondent’s insurer resisted the claim on two grounds:
(a) the appellant failed to give notice of the injury within the time prescribed by s 254 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); and
(b) the appellant failed to make a claim for compensation within the time prescribed by s 261 of the 1998 Act.
The Senior Member found in favour of the appellant with respect to the giving of notice under s 254 of the 1998 Act and against the appellant with respect to the making of a claim for compensation within the time prescribed by s 261 of the 1998 Act.
The appeal challenges the latter determination. For the reasons that follow, the appeal is dismissed and the Senior Member’s Certificate of Determination is confirmed.

SENIOR MEMBER’S STATEMENT OF REASONS

The Senior Member commenced her findings and reasons by considering the appellant’s two statements, the first dated 20 December 2022 and the second 8 May 2023.
The appellant sustained injury to the right hand on 14 September 1998 when his hand was caught in a printing machine. He was taken by taxi to Liverpool Hospital. He was seen and attended to in the Emergency Department. There was no hand surgeon available to see him and he was asked to return the following day. He returned the following day when he saw an orthopaedic surgeon. The orthopaedic surgeon told him there was little that could be done given the passage of time since the injury. He was given a WorkCover certificate.
The appellant returned to his place of employment and handed the certificate to his supervisor. The supervisor told him he would be paid for the day and that he should go home and rest. The appellant was then off on annual leave for a period of three weeks.
The appellant understood that the supervisor did not pass on the medical certificate to the management of Wilke and it was his understanding furthermore that the injury was not reported to WorkCover.
The appellant identified the person to whom he gave the certificate/paperwork concerning his injury as a Mr Paul Revere.
On return to work following annual leave the appellant realised that his right hand was not as it had been before the injury and, in particular, his right index finger was deformed. After his holiday he was seen by Dr Curtin at the doctor’s Westmead rooms. No particular treatment was recommended by Dr Curtin. The appellant continued to work for Wilke and a subsequent employer, PMP Print Pty Ltd (PMP), in his pre-injury employment as a printer.
In September 2018 the appellant was retrenched from PMP.
The appellant said that he had not suffered a previous injury to the right hand but had suffered a similar but more severe injury to the left hand. He said that he was not aware that he had any entitlement to compensation arising out of his right hand injury as he had continued to work for Wilke/PMP without any loss of earnings.
The appellant consulted a solicitor with respect to hearing loss. In the course of that consultation the solicitor informed him that he might have a claim for lump sum compensation reflecting the loss of use of the right hand and that he should seek an assessment of the loss of use.
On 25 February 2022 Associate Professor Kleinman, orthopaedic surgeon, examined the appellant at the request of the solicitors.
The appellant completed a claim form on 11 May 2022 reflecting the assessment of Associate Professor Kleinman. It was given to the respondent on 4 July 2022.
In the second statement dated 8 May 2023 the appellant said that after his return from leave he was able to perform his normal duties. He said that prior to 14 September 1998 he had injured his left hand/index finger during employment and that he had made a permanent impairment claim for that injury.
The injury to the left hand was particularly bad and involved massive damage. He recalled that the left thumb required three operations because it was so badly dislocated and required a fusion. Due to the injury his left thumb was 1cm shorter than his right. The left index finger was torn away and dislocated. The left ring finger was also dislocated and ripped in half and required two operations. He was unable to do normal duties for about seventeen months.
The Senior Member said the appellant had limitations with respect to the right hand but not as bad as the left hand and it did not limit him in his job to the same extent. The appellant did not think there was a compensation claim available for this permanent impairment.[2]
[2] Reasons, [49].
The respondent said that it had no information relating to an injury sustained by the appellant in 1998. Ms Jones of the respondent said the appellant ceased employment on 5 September 2017 by way of redundancy. The Senior Member felt this to be an error for September 2018, “given the [appellant’s] evidence and the date of his claim for hearing aids.” Ms Jones said that Mr Revere was no longer employed by the company.
The Senior Member noted that the appellant had had other claims, namely:
(a)    A laceration to the right middle finger on 13 December 1989 when employed by Cambec Press. The appellant was absent from employment from 13 December 1989 to 20 December 1989 and the claim was marked a no time loss claim. The GIO paid $125.80 for public hospital.
(b)    On 7 March 1995 a left hand injury. The proceedings were settled in 1997 or 1998.
(c)    On 4 May 2014 a left ankle sprain when the appellant stepped off a catwalk onto a roll of tape. The appellant was cleared for pre-injury duties on 3 June 2014. A list of payments indicated an amount of $4,142.05 including weekly benefits and medical expenses were paid.
(d)    On 9 March 2015 the appellant alleged a back strain when moving rollers. He received payments of $490.22 including hospital expenses and travel expenses.
(e)    On 8 July 2015 the appellant notified QBE Insurance that he had sustained an injury to his lower back. The amount of $27,304.65, including weekly benefits, medical expenses, artificial aids, rehabilitation and travel was paid on the claim.
(f)    In 2021 the appellant claimed for hearing aids with a deemed date of injury of 7 September 2018.
The Senior Member set out in detail the entries relevant to the appellant’s attendance at the Liverpool District Hospital on 14 September 1998. The records indicated that he attended at 7.15 pm with “laceration – finger”. The note by the triage nurse recorded that the appellant’s right index finger had been caught in a printing machine. The laceration was across the first knuckle. “Movement and sensation present. Saline soaked gauze applied. X-ray ordered.”[3]
[3] Application to Resolve a Dispute (ARD), p 13.
The appellant was seen by an ED Intern at 9.00 pm He recorded that at 6.40 pm the appellant’s right index finger was caught in a printing machine at work. “‘Squashed finger’. There was a laceration across the distal and PIP (proximal interphalangeal) joint, ‘? 3 to 4 cm long’.”[4]
[4] Reasons, [86].
The appellant’s finger was dressed and he was discharged at 10.20 pm with “all doctors’ letters given”. An X-ray showed no underlying fracture or joint abnormality.
The appellant returned to the Emergency Department on 15 September 1998 at 8.08 am. The doctor recorded a crush injury to the right index finger with lacerations over the PIP joint and made an entry “workers comp”. The appellant was given antibiotics, the wound was dressed, he was given an unsigned and undated WorkCover NSW medical certificate. It recorded the employer as “Wilke Colour” and that the date of injury was 14 September 1998. No other detail was recorded.
Unsurprisingly given that no treatment was provided, enquiries of Dr Curtin merely confirmed that the appellant was a patient in 1998 but did not provide any relevant records.
The Senior Member noted the report of Associate Professor Leon Kleinman dated 25 February 2022. Associate Professor Kleinman had a more detailed history. He also recorded that the appellant’s complaints were of “intermittent pain the right index finger; permanent deformity of the tip of the index finger; pain in the distal interphalangeal joint of the middle finger; sometimes catching of the deformed right finger; and slight feeling of weakness in the finger. The [appellant] used the middle finger and thumb of his right hand to perform a pinch grip so that he did not get pain in the index finger.”[5]
[5] Reasons, [120].
The Senior Member recorded the appellant’s evidence that he was able to help with the housework; go shopping; mow the lawn and do gardening. Since he injured his right index finger, he had difficulty holding a golf club. He had given up playing cricket because of excruciating pain in his index finger when he was hit by a ball. He was no longer able to fish using a hand line because the line ran over the right index finger. He had stopped making model cars and doing mechanical work on his vehicle.
On examination Associate Professor Kleinman noted an obvious mallet deformity of the index fingers on both hands. The appellant had an unobtrusive scar across the dorsum of the right index finger. He had a 40 degree flexion deformity of the distal interphalangeal joint of the finger. He was able to passively straighten the distal interphalangeal joint of the index finger to 0 degrees. He could make a full fist with his right hand.[6]
[6] Reasons, [122].
Associate Professor Kleinman assessed the appellant as having an 8% loss of efficient use of the right arm at and below the elbow (sic). This equated to a 4% whole person impairment.
The Senior Member summarised the parties’ submissions. She then identified the issues as follows:
“The issues in this matter are whether the [appellant] gave notice of the injury within the time provided by the legislation; and whether he made a claim for compensation within the time provided by the legislation.
Depending on the outcome of those disputes, there is then the further issue of whether the [appellant’s] impairment should be assessed by a Medical Assessor.”[7]
[7] Reasons, [156]–[157].
The Senior Member then made the observation that s 254 of the 1998 Act did not apply to the present matter and that the relevant notice provision was s 61 of the 1998 Act. Having set out the provision, the Senior Member said:
“I am satisfied that the [appellant] gave notice of the injury ‘as soon as possible after the injury happened’.
The [appellant’s] evidence, which I accept, is that the respondent arranged for a taxi to take him to hospital after the injury occurred.”[8]
[8] Reasons, [166]–[167].
There is no challenge to the finding of notice of injury to the employer.
The Senior Member observed that s 261 of the 1998 Act applied to this injury because that provision applied if the claim was made on or after 1 January 2002, notwithstanding that the injury was received before that date.[9]
[9] Toll Pty Limited v Bartimote [2007] NSWWCCPD 153; Westlake v Sydney Symphony Orchestra Subscribers Committee [2009] NSWWCCPD 12.
There is no challenge to that conclusion on the part of the Senior Member.
The Senior Member set out s 261 of the 1998 Act in full.
Before the Senior Member, the appellant relied on s 261(3), (4) and (6) to overcome his failure to make a claim for compensation within six months of the date of injury.
The Senior Member rejected the appellant’s reliance on each of these subsections.
She said with respect to s 261(3):
“The [appellant] has submitted that he has made a claim, so as to satisfy s 261(3) of the 1998 Act, because the respondent arranged for a taxi to take him to hospital, and that must have been covered by s 60 of the 1987 Act.
I do not accept that submission. The [appellant’s] evidence is that the respondent arranged for the taxi. He did not say it arranged and paid for the taxi. At a time before many, if not most, people owned a mobile phone, and when the [appellant] was not working in an office environment, it may be the case that someone with access to a telephone made the call for a taxi on his behalf. I am simply not in a position to know.
In the absence of any further evidence from the [appellant] on this point, I am not prepared to find that he made any claim before the claim for permanent impairment compensation was made on 4 July 2022.”[10]
[10] Reasons, [175]–[177].
The Senior Member dismissed the appellant’s reliance on s 261(6) of the 1998 Act on the basis that the appellant was “on notice of the injury and its cause” (that is, became aware) immediately it occurred. The Senior Member said:
“Section 261(6) does not assist the [appellant], and the submission that he was not aware of the injury until he became aware that he could make a claim for permanent impairment compensation is rejected.”[11]
[11] Reasons, [181].
There is no challenge to that finding on the part of the Senior Member.
The appellant relied on s 261(4) of the 1998 Act, submitting that his failure to make a claim within the period required was occasioned by “ignorance”. The Senior Member did not regard the appellant as relying on “other reasonable cause”.
The Senior Member said that she understood “ignorance” in s 261(4) to mean “ignorance of legal rights and obligations and includes ignorance of the time limits.” For that conclusion the Senior Member relied upon the decision of Judge Burke in the Compensation Court in a matter of Gregson v L & MR Dimasi Pty Limited.[12]
[12] [2000] NSWCC 47; 20 NSWCCR 520 (Gregson).
The Senior Member rejected the appellant’s submission that he was ignorant of the requirement to make a claim “because other notifications of injury were made by his employer on his behalf, or because the injury to his right hand was less serious than that to his left, in respect of which there is no evidence that he made a claim for permanent impairment.”[13]
[13] Reasons, [186].
She said:
“The [appellant] himself completed a claim form with respect to the injury to his right middle finger on 13 December 1989. This was clearly a minor injury, as he lost no time from work, and the total paid on the claim was $125.80.
The [appellant’s] evidence is that he was not aware that he had any entitlement to compensation for injury on 14 September 1998 because he continued to work without loss of earnings. However, it was also the case that he had no loss of earnings as a result of the injury in 1989, but he nonetheless made a claim.”[14]
[14] Reasons, [187]–[188].
The Senior Member noted that the appellant’s evidence was that when he returned to work after having taken leave he was aware that his right hand was not as it had been and he particularly noticed that his right index finger was deformed. This was within about three weeks of the injury having occurred.[15]
[15] Reasons, [190].
The Senior Member said: “The fact that he may not have been aware that he could make a claim for permanent impairment compensation does not mean that he was ‘ignorant’ of his rights.”[16] There is no challenge to that conclusion on the part of the Senior Member.
[16] Reasons, [191].
She concluded her discussion of the submission that the appellant was ignorant of his rights with the following dispositive paragraph:
“I am not persuaded that the [appellant’s] failure to make a claim was occasioned by ignorance. He had made a previous claim, in respect of which he lost no time from work, and on his own evidence his right hand was not as it had been before the injury, and his index finger was deformed. He consulted Dr Curtin, according to the doctor, in 1998. The [appellant’s] evidence is that Dr Curtin did not recommend any treatment, but he was obviously sufficiently concerned about the symptoms and deformity to again consult the specialist who had treated his left hand.”[17]
[17] Reasons, [192].
By way of an alternative and contingent finding, the Senior Member said that had she accepted that the failure to make a claim for compensation within the applicable time was occasioned by ignorance she would nonetheless not have accepted that the injury resulted in “serious and permanent disablement”.[18]
[18] Reasons, [193].
After referring to the Court of Appeal decision in Broken Hill Pty Co Limited v Kuhna[19] and making further reference to Judge Burke’s consideration in Gregson, the Senior Member quoted Wood DP in Handley v Canterbury City Council[20] as follows:
“It is not sufficient for the appellant to show that he has a disablement in respect of his capacity to perform work. The disablement must be serious. Adopting the approach taken by Burke CCJ in Gregson, it is the degree of incapacity that must be assessed.”
[19] [1992] NSWCA 30.
[20] [2020] NSWWCCPD 59, [173].
The Senior Member said:
“The [appellant] sustained injury in 1998. He continued to perform the same work until he was retrenched 20 years later. He has given evidence that he had some difficulties using his right hand, without providing any detail of those difficulties. He also referred to ‘limitation and disabilities’ from the injury, again without providing any detail of what they may be.
A/Prof Kleinman reported that the [appellant] was aware of his disability due to the injury, but he worked around it, and it was difficult for him to recall what he could not do. That, together with the fact that the [appellant] continued in the same employment for 20 years, does not suggest to me that he had any difficulty performing the work.
The [appellant] has had other employment since leaving the respondent’s employ. He has given no evidence of any difficulty performing this work. He stated he worked casually from time to time, but not that this was due to any limitation as a result of the injury to his right hand.”[21]
[21] Reasons, [204]–[206].
After referring to the limitations noted by Associate Professor Kleinman noted above and making the observation that the appellant did not himself give evidence of these limitations, the Senior Member said:
“Once again, the [appellant] himself has given no evidence about any of these activities, or how the injury to his right hand has affected them. I have no reason not to accept A/Prof Kleinman’s evidence, but I do not accept that it establishes that the [appellant] has a serious disability.
Considering what Burke CCJ said in Gregson, the [appellant] has a disability; I do not accept that it is serious; it is permanent; and it does not impinge adversely on his capacity to work.
I have determined that the injury to the [appellant’s] right hand on 14 September 1998 did not result in serious and permanent disablement.”[22]
[22] Reasons, [210]–[212].

GROUNDS OF APPEAL

The appellant relies on three grounds of appeal, namely:
“1. Senior Member Haddock erred in law because she misconstrued the provisions of s 261(3) of the 1998 Act by giving it a narrow construction, leading her into error in respect of her determination of whether the Appellant had made any claim for compensation prior to making the claim for permanent impairment sufficient to bring him within the terms of s 261(3), thus not being barred to recover compensation for the work-related injury to his right upper extremity.
2. The [Senior] Member erred in fact and law by failing to draw the compelling inference that ‘arranged’ meant, on the balance of probabilities, ‘called and paid for’ the taxi to take the Appellant to the hospital, having found that the Appellant had notified the Respondent of the work injury.
3. The [Senior] Member erred in fact and law by failing to find that the Appellant had ‘made a claim’ within the terms of s 261(3) of the 1998 Act by informing the Respondent of the injury and requiring treatment at the hospital for which the Respondent arranged a taxi and handing in a medical certificate to his employer, and being told that he could go home and rest and that he would be paid for the day.”

PROCEDURAL MATTERS

Time

The decision appealed against was dated the 26 May 2023. The appeal was lodged on 23 June 2023. The respondent concedes that the appeal has been commenced within time.

Threshold

The amount of compensation in dispute is $5,600 which satisfies s 352(3)(a). The decision is not interlocutory.

ON THE PAPERS

The parties have agreed that the matter is capable of being determined without resort to oral hearing. I agree and propose to dispose of the appeal on this basis.

NATURE OF THE APPEAL

The jurisdiction exercised by me under s 352(5) of the 1998 Act is as follows:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion and to the correction of any such error. The appeal is not a review or new hearing.”

GROUND 1 – MISCONSTRUED THE PROVISIONS OF SECTION 261(3) OF THE 1998 ACT BY GIVING IT A NARROW CONSTRUCTION

Appellant’s submissions

The appellant cites Inghams Enterprises Pty Limited v Thoroughgood,[23] a decision of Deputy President Roche of the former Workers Compensation Commission, at [104]–[109].
[23] [2013] NSWWCCPD 29 (Thoroughgood).
In that case Mr Thoroughgood, an employee of Inghams who suffered from varicose veins aggravated by prolonged standing, asked his employer for comfortable waterproof boots to protect his feet as gumboots were unacceptable. He provided two certificates from his GP that working on concrete in a wet environment made his varicose veins worse. He subsequently made a claim for lump sum compensation. He was found to have made the claim for compensation verbally.
The appellant submits:
“As noted in Thoroughgood, the objective of the workers compensation legislation is directed primarily to ensuring compensation for a work-related injury. Those objectives would not be promoted by a narrow reading of a provision which allows for recovery of compensation in circumstances where procedural requirements have not been followed. A claim can be made verbally, as happened in the present case. The Appellant sustained a work-related injury and the Member found that he had given notice.
The Member erred in her construction of s 261(3) by giving it a very narrow reading, contrary to the principles enunciated in Thoroughgood, and limiting it to whether or not the Respondent paid for the taxi. The Member gave too much weight to the issue of who paid for the tax[i], thereby leading her into error.”[24]
[24] Appellant’s submissions, [8]–[9].

Respondent’s submissions

The respondent submits that the evidence fell well short of establishing that the appellant made a claim for weekly benefits of compensation. The respondent notes that there is no reference in the hospital records to the appellant being certified unfit for work.
The respondent says:
“The hospital record also identifies the time of the Appellant’s presentation at the hospital as ’19.15’ (i.e. 7.15 pm) and the discharge or departure time as ‘00.15’ (12.15 am, presumably the following day). There was no evidence from the Appellant that would have permitted the Senior Member to conclude that he worked on a night shift on 14 September 1998 and therefore his attendance at the hospital would have interrupted his work for the Respondent.”[25]
[25] Respondent’s submissions, [13].
The respondent submits that it follows from the appellant’s evidence “that his supervisor did not submit any WorkCover certificate he presented to the Respondent’s management and that no ‘WorkCover’ claim was made that the payment made to the Appellant for any time he might have taken off work on 14 September 1998 was paid as wages and not as weekly benefits compensation”.[26]
[26] Respondent’s submissions, [14].
After referring to s 33 of the Workers Compensation Act 1987 (the 1987 Act) the respondent quotes from the Court of Appeal decision in Inghams Enterprises Pty Ltd v Thoroughgood[27] at [46] where Basten JA stated:
“However, the authorities do not stand for the proposition that ‘the incapacity’ referred to in s 16(1)(a) is one which gives rise to an entitlement to weekly compensation payments: rather, the authorities stand for the proposition that the existence of an incapacity must depend upon an entitlement to compensation, being an entitlement of the kind the subject of a claim, that is, one encompassing economic loss.” (emphasis in the submission)
[27] [2014] NSWCA 166.
The respondent submits there is no evidence that the appellant suffered any economic loss.
In conclusion the respondent submits:
“In the absence of a proper evidentiary basis to support a finding that the Appellant made a claim for compensation by handing a medical certificate to his supervisor on 14 November 1998 [sic] the Appellant’s submission that the Senior Member erred by narrowly construing s 261 of the [1998 Act] cannot be accepted. The Respondent submits that Ground 1 of the appeal should be rejected.”[28]
[28] Respondent’s submissions, [18].

Consideration

Section 261(3) of the 1998 Act provides:
“(3) For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.”
The Senior Member characterised the appellant’s submission with respect to s 261(3) as follows:
“The [appellant] has submitted that he has made a claim, so as to satisfy s 261(3) of the 1998 Act, because the respondent arranged for a taxi to take him to hospital, and that must have been covered by s 60 of the 1987 Act.”[29]
[29] Reasons, [175].
The subject matter of this ground of appeal is asserted to be the Senior Member’s unduly narrow construction of s 261(3). The Senior Member did not articulate any particular construction for s 261(3). Rather she applied the subsection on its terms.[30]
[30] See reasons, [175], [176].
The appellant does not offer any particular construction of s 261(3). He merely says that the Senior Member construed it “narrowly”. But this is no more than a complaint that the Senior Member rejected the appellant’s contention based on the taxi journey.
It is not said by the appellant that the Senior Member misapprehended his submission.
The appellant contended that because a taxi was “arranged” by the respondent to take him from the workplace to the hospital it should be inferred that the taxi was paid for by the respondent. If that were so, then a further inference was that the appellant had made a “claim for compensation”.
However, those inferences were not necessarily drawn nor were they the only inferences available. The Senior Member was not prepared to infer from the use of the word “arranged” by the appellant that the employer paid for the taxi. There was no error on her part in not drawing the inference contended for by the appellant.
More importantly the Senior Member expressly rejected the submission under s 261(3) because the appellant “did not say it [Wilke] arranged and paid for the taxi”.
The Senior Member said the appellant failed to persuade her because he failed to adduce sufficient evidence:
“In the absence of any further evidence from the [appellant] on this point, I am not prepared to find that he made any claim before the claim for permanent impairment compensation was made on 4 July 2022.”[31]
[31] Reasons, [177].
The conclusion as to what inferences might be drawn from the appellant’s statement evidence that the respondent arranged for a taxi to take him to hospital was for the Senior Member to determine.
Because it impacts on each of the grounds of appeal in this matter, I set out from Raulston v Toll Pty Limited,[32] at 163 ([17] and [19]) the following:
[32] [2011] NSWWCCPD 25; 10 DDCR 156. From 1 March 2021 applying to a ‘member’ rather than an ‘arbitrator’.
“17. …
(a)an appeal from an Arbitrator to a Presidential Member is no longer a ‘review’ and is not a hearing de novo. It is an appeal that is limited to the determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. It is the establishment of error and the correction of that error that now defines the process under s 352;
…
19. First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Limited v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant … :
(a)An arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.’”
Deputy President Roche also quoted at [20] from the decision of Allsop J (as his Honour then was) in Branir Pty Limited v Owston Nominees (No 2) Pty Limited:[33]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”
[33] [2001] FCA 1833, [28].
The Senior Member’s conclusion that the mere fact the respondent arranged for a taxi did not mean that it paid for the taxi or that the appellant had made a claim coming within s 59 and s 60 of the 1987 Act was open to her on the material. More importantly the conclusion did not bespeak error on her part.
Furthermore, the Senior Member’s conclusion at [177] of the reasons to the effect that there was an absence of evidence from the appellant on this point is correct.
If the appellant’s proposition was that the employer had paid for the taxi ride or indeed had paid for the attendance on the Emergency Department at the hospital or in some other way satisfied a demand for compensation, then it was open to him to give evidence to that effect. He did not give that evidence.
The s 78 notice was quite explicit in that the respondent said:
“Section 261 of the [1998 Act] states that compensation cannot be recovered unless a claim for compensation has been made within 6 months after the injury or accident occurred.
As such we did not receive notification of a workplace injury from yourself for over 23 years since your stated date of injury, we do not agree that you are entitled to compensation as you have failed to give notice and make a claim for your injury within the prescribed time frames as noted in sections 254 and 261 of the [1998 Act].”
It would have taken only slight evidence from the appellant to establish that he did not pay for the taxi and that therefore an inference that the taxi was paid for by the respondent was open. But he did not give that evidence. As the evidence is left, the Senior Member was not prepared to draw the inference that the respondent paid for the taxi.
The appellant’s complaint is not as to the construction of s 261(3) adopted by the Senior Member but as to the application of the subsection to the facts of the matter. The inference to be drawn from the appellant’s statement that the taxi was arranged by his employer was one for the Senior Member’s determination. No error is demonstrated. Ground 1 of the appeal is dismissed.

GROUND 2 – THE SENIOR MEMBER FAILED TO DRAW A COMPELLING INFERENCE THAT “ARRANGED” MEANT ON THE BALANCE OF PROBABILITIES CALLED AND PAID FOR THE TAXI

Appellant’s submissions

The appellant submits that the fact that the Senior Member found that the appellant had injured his right hand and had notified the respondent as soon as possible after the event must, as a matter of logic, result in a finding that the respondent had paid for the taxi:
“This could be the only meaning that could be ascribed to the word ‘arranged’. An employer whose employee catches his hand in a printing machine which results in an obvious laceration and pain sufficient to attend the hospital immediately is unlikely, on the balance of probabilities to not pay for a taxi to take that employee to hospital. That would be the least that would be expected of an employer. Generally, someone is assigned to take an injured person to the hospital, but in this case, a taxi was ‘arranged’.”[34]
[34] Appellant’s submissions, [12].
The appellant submits that the Senior Member was in error in failing to draw the compelling inference that ‘arranged’ meant ‘called and paid for’ such that it would constitute a claim under ss 59 and 60 of the 1987 Act.

Respondent’s submissions

The respondent cites Bradshaw v McEwans Pty Limited (Unreported High Court of Australia 27 April 1951)[35]and submits that the appellant’s submission, that because the Senior Member found the appellant had notified the respondent of his injury it must result in a finding that the respondent paid for the taxi, is no more than speculation.
[35] Reported at (1951) 217 ALR 1.
The respondent submits:
“The Appellant has not identified any other evidence to support his submission. Rather the submission relies on a series of unfounded assertions about what would ‘be expected of an employer’ and that ‘generally someone is assigned to take an injured person to hospital.’ Those submissions do not meet the requirement stated in the quoted passage from Bradshaw v McEwans, which requires that ‘the circumstances appearing in the evidence give rise to a reasonable and definite inference’.”[36]
[36] Respondent’s submissions, [23].

Consideration

Ground 2 of the appeal can be disposed of on the same basis that Ground 1 of the appeal was disposed of, namely, that the inference drawn by the Senior Member from the appellant’s evidence was open.
The appellant persuaded the Senior Member that he had given notice of the injury to his right hand “as soon as possible after the event”. What the appellant did not persuade the Senior Member of was that he lodged a claim for compensation as required by s 261 or as was to be excused by the exculpatory provisions.
The appellant failed to adduce evidence which would have required the inference that he wished to have drawn to be drawn. That is exactly what the Senior Member said[37] was her reason for not accepting that the taxi journey represented a claim for compensation.
[37] Reasons, [177].
Ground 2 of the appeal is rejected.

GROUND 3 – FAILURE TO CONCLUDE THAT THE APPELLANT HAD MADE A CLAIM BY INFORMING THE RESPONDENT OF THE INJURY REQUIRING TREATMENT AT HOSPITAL, HANDING IN THE MEDICAL CERTIFICATE TO THE EMPLOYER AND BEING TOLD THAT HE COULD GO HOME FOR THE DAY AND WOULD BE PAID FOR THE DAY

Appellant’s submissions

The appellant submits that in handing the WorkCover certificate to the respondent who told him to go home and rest and that he would be paid for the work, the appellant had made a claim at least for wages lost while he attended hospital.

Respondent’s submissions

The respondent says that the submission that the appellant was paid for any time he had away from work while attending Liverpool Hospital should not be accepted.
The respondent says:
“At paragraph 21 of his submissions the Appellant submits that it should be accepted that he was paid for any time he had away from work while attending Liverpool Hospital. Putting to one side the issue about the time of the Appellant’s attendance at the hospital and the question of whether, in fact, the Appellant took any time off work to attend, the fact that the Appellant was paid for the day on 14 September 1998 undermines the Appellant’s submission.”[38]
[38] Respondent’s submissions, [25].

Consideration

The Senior Member’s reasoning with respect to the inferences she drew from these matters is set out at paragraph [40] above quoting from the Senior Member’s reasons. In essence the Senior Member regarded the evidence as insufficient to persuade her to conclude in favour of the appellant.
The established primary facts were: the appellant was absent from his place of employment for several hours on 14 September 1998; he was told that he should go home and that he would be paid. The Senior Member was not prepared to infer from those primary facts that a claim for compensation had been made.
The supervisor said that the appellant would be paid for the time off, it does not follow that the appellant was to be paid compensation. It simply means that he did not lose any part of his wages. There is no evidence of error on the part of the Senior Member.
Ground 3 of the appeal is rejected.

CONCLUSION

The appeal is rejected. The Senior Member’s Determination adverse to the worker is confirmed.

DECISION

The Senior Member’s Certificate of Determination dated 26 May 2023 is confirmed.

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

10 April 2024