Hapago Pty Limited t/as Noni B v Anderson
[2006] NSWWCCPD 217
•5 September 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Hapago Pty Limited t/as Noni B v Anderson [2006] NSWWCCPD 217
APPELLANT: Hapago Pty Limited t/as Noni B
RESPONDENT: Heather Joan Anderson
INSURER:Vero Workers Compensation (NSW) Limited
FILE NUMBER: WCC8024-05
DATE OF ARBITRATOR’S DECISION: 5 October 2005
DATE OF APPEAL DECISION: 5 September 2006
SUBJECT MATTER OF DECISION: Journey; section 10 Workers Compensation Act 1987; rejection of evidence; rule 40(3) Workers Compensation Commission Rules 2003; privilege; waiver of privilege; section 122 Evidence Act 1995
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Moray & Agnew
Respondent: Bale Boshev Lawyers
ORDERS MADE ON APPEAL: Paragraphs one and two of the Arbitrator’s decision of 5 October 2005 are revoked and the following order made:
(i)The matter is remitted to a different Arbitrator to determine pursuant to section 10(2) of the Workers Compensation Act 1987 whether on the Respondent Worker’s interruption and deviation from her journey from her place of abode to her place of employment on 7 December 2001 the risk of injury was not materially increased because of the interruption or deviation.
(ii)The Arbitrator decision on ‘notice’ under section 261 of the Workplace Injury Management and Workers Compensation Act 1998 is confirmed.
(iii)The Arbitrator’s finding on ‘journey’ is, subject to the issue of ‘material increase in the risk of injury’, confirmed.
(iv)Costs of the first Arbitration are to follow the result of the second Arbitration.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 2 November 2005 Hapago Pty Limited t/as Noni B (‘the Appellant Employer/Noni B’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 5 October 2005.
The Respondent to the Appeal is Heather Joan Anderson (‘the Respondent Worker/Mrs Anderson’).
Mrs Anderson started work for the Appellant Employer as a sales person on 20 September 1994. She continued to work for the company in various positions until 7 December 2001. At that time she lived at Park Avenue, Kotara and worked at the Noni B store on the Pacific Highway at Belmont. She normally drove to work along Charlestown Road to the Pacific Highway at Charlestown, through Charlestown and on to Belmont. The trip from Kotara to Charlestown normally took about 10 minutes by car. The trip from Kotara to Belmont took about 15 minutes.
On 7 December 2001 Mrs Anderson was driving to work via her usual route when she stopped at Charlestown to drop some documents off at the National Australia Bank (‘NAB’). She parked her car in a car park at the rear of the Hoyts Cinema complex at Charlestown. As she was walking across the car park she stepped onto a raised metal section that extended across the access road that forms part of the car park. Light rain was falling at the time and had been falling from the time she left her house just before 10am. As she stepped onto the metal section she slipped and fell sustaining injury to her right hand/arm.
As a result of her injury she brought a claim for compensation in the Commission in an Application to Resolve a Dispute filed on 23 May 2005. By its Reply filed on 17 June 2005 the Appellant Employer denied that Mrs Anderson had sustained an injury within the terms of the Workers Compensation Act 1987 (‘the 1987 Act’), that she was on a journey within the meaning of section 10 of the 1987 Act and, among other things, that she had discharged the onus she carried of establishing that the risk of injury had not been materially increased because of the interruption and/or deviation to her journey.
An Arbitration hearing took place in Newcastle on 16 September 2005. In a reserved decision delivered on 5 October 2005 the Arbitrator found in favour of the Respondent Worker. The Appellant Employer now seeks leave to appeal that decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. The whole of the amount awarded is in issue on appeal and section 352(2)(b) is also satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Appellant Employer submits that the appeal should not be heard on the papers because of the substantial issues involved, the alleged denial of procedural fairness and the absence of a transcript. The Respondent Worker does not consent the matter being heard on the papers but advances no reasons for taking that position. Since the parties filed their initial submissions I issued a Direction on 5 August 2006 as follows:
“1. In the event that the Commission finds that tender of the report from Barker Harle dated 10 April 2003 was wrongly rejected by the Arbitrator, the parties are invited to make written submissions on the issue of ‘material increase in risk’ under section 10(2) of the Workers Compensation Act 1987.
2. The parties are invited to make submissions on the relevance of the authority of NRMA Smash Repairs Pty Ltd v Hoy (1995) 11 NSWCCR 326.
3.The Appellant’s submissions are to be filed and served on or before Monday 21 August and the Respondent’s on or before 28 August 2006.”
In response to the above Direction the Appellant Employer filed further detailed submissions on 17 August 2006 and the Respondent Worker did so on 29 August 2006. With the benefit of these additional submissions I do not believe that an oral hearing is required.
Whilst only one page of the transcript of proceedings before the Arbitrator is available, the Appellant Employer has filed with its submissions an Affidavit sworn by Rachael Sutton on 2 November 2005 setting out a summary of the proceedings before the Arbitrator on 14 September 2005. The Respondent Worker has not disputed any part of that Affidavit and I intend to refer to it but only as a guide to the conduct of the proceedings before the Arbitrator. No oral evidence was given before the Arbitrator and I do not believe that the absence of a complete transcript prevents me conducting a review as required by section 352 of the 1998 Act. Neither party has submitted to the contrary.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 5 October 2005 records the Arbitrator’s orders as follows:
“1.The Respondent pay the Applicant pursuant to s67 the amount of $10,000.00.
2.The Respondent pay the Applicant’s costs as agreed or assessed.”
The Certificate of Determination also noted that the parties agreed to the payment of compensation under section 66 of the 1987 Act in the sum of $18,500.00 which I assume to be for a 25% permanent loss of efficient use of Mrs Anderson’s right arm below the elbow.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)excluding important evidence relevant to the issue of ‘increased risk of injury’, namely, the expert’s report from Barker Harle, engineers and scientists, dated 10 April 2003 (‘the experts report’);
(b)failing to consider whether, apart from simply crossing the road, the fact that the Respondent Worker was (in the course of a deviation) required to step upon a wet metal strip, constituted an increased risk of injury (‘material increase in risk of injury’);
(c)inverting the test to be applied by requiring positive proof from the employer that the risk was materially increased when the onus to prove no material increase in the risk of injury rested at all times with the Respondent Worker (‘reversing the onus’), and
(d)failing to advert to or deal with the wet metal strip which strip was an integral part of the deviation and was peculiar to the environs and route adopted by the Respondent Worker as a result of the deviation (‘reasons’).
SUBMISSIONS AND FINDINGS
The Expert’s Report
The expert’s report is dated 10 April 2003 and is addressed to the Respondent Worker’s former solicitors having been obtained by them for use in Mrs Anderson’s claim for common law damages arising from the accident of 7 December 2001. It was obtained by the Appellant Employer’s solicitors under a Direction for Production issued by the Commission on the District Court of NSW (‘the District Court’) on 17 June 2005. I do not know when the documents were produced by the District Court but the Direction for Production is marked that first access to the documents produced is to be given to the Respondent Worker for seven days after the return date of 12 July 2005. It is not known if or when the Respondent Worker accessed the documents.
Ultimately the Appellant Employer’s solicitors gained access to the documents and filed an Application to Admit Late Documents on 2 August 2005 annexing a copy of the expert’s report, a report from Dr Kerridge dated 2 February 2004 and copies of certain photographs. The Application to Admit Late Documents with copies of the relevant documents was forwarded to the Respondent Worker’s solicitors on 1 August 2005 (Affidavit Rachael Sutton, paragraph five)
A teleconference was held on 5 August 2005 when the parties agreed on quantum. The other issues in dispute were listed for an Arbitration hearing on 14 September 2005. The purpose of a teleconference is to enable the Arbitrator and the parties to identify and, if possible, narrow the issues to be determine at the hearing (Procedural Tables 4.125). No issue was raised at the teleconference that the documents served on 1 August 2005 would be objected to (Affidavit Ms Sutton, paragraph 11) or that they caused the Respondent Worker any prejudice.
As a result of the teleconference of 5 August 2005 the Arbitrator issued Direction on 9 August 2005 in the following terms:
“1.The Applicant is given leave to file and serve within 14 days any documents or submission relied on following production of the insurers file by the Respondent.
2.The matter will proceed to a conciliation/arbitration conference on 14 September 2005 at 11am in Newcastle, venue to be advised.
3.The parties are to advise on or before 7 September any authority they rely on.”
At the Arbitration hearing on 14 September 2005 the Arbitrator, over objection, allowed into evidence a further statement from the Respondent Worker and a statement from her solicitor, Simon Hunt, both dated 29 August 2005 which had been attached to an Application to Admit Late Documents filed on 1 September 2005, well outside the time limit set at the teleconference on 5 August 2005. According to the Affidavit of Ms Sutton, the reason given by the Arbitrator for allowing these statements into evidence was that it would “unnecessarily delay the proceedings to adjourn the arbitration given the objects of the Act” (Affidavit Ms Sutton, paragraph 10).
No oral evidence was given and the Arbitration proceeded with submissions from Ms Sutton. In the course of those submissions she referred to the expert’s report when there was, for the first time, an objection to that report from counsel for the Respondent Worker on the ground of legal professional privilege. After hearing submissions on the admissibility of the document the Arbitrator ruled that it was inadmissible on the grounds of privilege (Affidavit Ms Sutton, paragraph 17). This ruling extended to all of the documents in the Application to Admit Late Documents dated 2 August 2005 (‘the August documents’).
In her Statement of Reasons for Decision (‘Reasons’) the Arbitrator states at paragraph 10 that the August documents were excluded because the Appellant Employer had not complied with the Workers Compensation Commission Rules 2003 (‘the Rules’) as Part 4.2 of the Reply simply served as an “ambit catch all reference to any number of unidentified documents and authors and in no way complies with by whom, any intended reliance, or reasons not yet available [sic] as required in the Commissions proceedings”. This is presumably a reference to Rule 40(2). However, it appears that the Arbitrator failed to have regard to subrules 40(3), (4) and (5) which provide:
“(3) The Commission may, for the avoidance of injustice, allow a respondent to introduce evidence that the respondent would otherwise be prevented from introducing because of the operation of subrule (2).
(4) Where a respondent wishes to rely on a document produced as required by a direction issued under section 357 of the 1998 Act, and claims that the respondent was:
(a) unaware of the relevant information in the document, or
(b) unable to obtain possession of the document,
at the time the respondent lodged the reply in the proceedings, the respondent must, as soon as practicable after becoming aware of the information, lodge and serve on all other parties to the proceedings a statement revealing:
(c) the specific nature of the information, and
(d) the reliance the respondent intends to place on the information.
(5) Without limiting subrule (3), where a respondent complies with subrule (4) in respect of any information, the Commission may allow the respondent to introduce evidence of that information.”
When the Appellant Employer obtained access to the documents produced under the relevant Direction for Production it promptly filed an Application to Admit Late Documents on 2 August 2005. That document set out the reasons in support of the application as follows:
“1.The respondent identified in the reply an intention to issue directions to produce and to rely upon the documents produced pursuant to those directions.
2.The documents attached to this application are from documents produced pursuant to a direction to produce.
3.The respondent submits that the documents do not take the Applicant by surprise as they were documents relied upon by the Applicant in common law proceedings.
4.The respondent submits that there is no prejudice suffered to the applicant if the documents are admitted into evidence.
5.The Respondent submits that prejudice will be suffered by the Respondent if the documents are not admitted into evidence.”
In my view the Appellant Employer substantially complied with subrule 40(4). The documents could not have been attached to the Reply because they were not in the Appellant Employer’s possession at that time. Indeed, it probably did not know they existed at that time. It acted promptly to serve the relevant information as soon as was practical, a few days before the teleconference on 5 August 2005 and about six weeks prior to the Arbitration hearing.
The Commission is bound to determine cases “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form” (section 354(3) of the 1998 Act). By excluding the August documents the Arbitrator was not permitting the case to be determined according to its substantial merits. The Arbitrator failed to consider Rule 40(3) and failed to allow the Appellant Employer to present its case. In these circumstances the Arbitrator misused her discretion in that she failed to take into account relevant matters, namely, Rule 40(3) and section 354(3). Subject to the claim for privilege, the Arbitrator should have admitted the August document into evidence so that the case could be decided on its merits.
On the privilege issue the Respondent Worker argues that the expert’s report “is a confidential communication within the meaning of section 119 of the Evidence Act 1995” (‘the Evidence Act’) (Respondent Worker’s submissions, page one). The terms ‘confidential communication’ and ‘confidential document’ are defined in section 117 of the Evidence Act to mean:
“‘confidential communication’ means a communication made in such circumstances that, when it was made:
(a) the person who made it, or
(b) the person to whom it was made,was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
‘confidential document’ means a document prepared in such circumstances that, when it was prepared:(a) the person who prepared it, or
(b) the person for whom it was prepared,was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.”
Accepting, without deciding, that the expert’s report was a confidential document under section 117 of the Evidence Act it is necessary to consider the terms of section 122 of that Act which provides:
“122 Loss of client legal privilege: consent and related matters
(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.
(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if a client or party has knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made:(a) in the course of making a confidential communication or preparing a confidential document, or
(b) as a result of duress or deception, or
(c) under compulsion of law, or
(d) if the client or party is a body established by, or a person holding an office under, an Australian law—to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held.
(3) Subsection (2) does not apply to a disclosure by a person who was, at the time, an employee or agent of a client or party or of a lawyer unless the employee or agent was authorised to make the disclosure.
(4) Subject to subsection (5), this Division does not prevent the adducing of evidence if the substance of the evidence has been disclosed with the express or implied consent of the client or party to another person other than:(a) a lawyer acting for the client or party, or
(b) if the client or party is a body established by, or a person holding an office under, an Australian law—the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held.
(5) Subsections (2) and (4) do not apply to:
(a) a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or
(b) a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to a proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.
(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness’s memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence by police officers).”
The Respondent Worker’s argument is that the expert’s report has been disclosed under compulsion of law under section 122(2)(c) and, therefore, the privilege attaching to the report has not been waived. This argument ignores that fact that the report had already been “knowingly and voluntarily disclosed to another person” in the District Court proceedings. The submission that there was no evidence that the report had been voluntarily disclosed to another person is not sustainable. The report was obtained from the District Court of NSW having been relied on by the Respondent Worker in her common law claim in that court. The only conclusion open is that it had been “knowingly and voluntarily disclosed” in those proceedings. Unless the disclosure in the District Court “was made in the course of making a confidential communication, client legal privilege was lost” (per Giles JA in Amalgamated Television Services Pty Ltd v Marsden, [1999] NSWCA 97 at [27]). Far from being a confidential communication, the disclosure of the expert’s report in the District Court proceedings was an act that placed the document into the public domain. In my opinion any entitlement to claim privilege over the expert’s report was lost when it was tendered in evidence in the District Court proceedings. It is not necessary to also tender a letter showing that the report was served in accordance with the District Court rules. The fact that it was in evidence is enough to establish that any privilege over it had been waived. In these circumstances the Arbitrator was in error in rejecting the expert’s report on the ground of privilege.
In light of the above finding it is unnecessary to consider the other grounds of appeal.
OTHER MATTERS
Deviation and Interruption
The Respondent Worker has submitted that the Arbitrator’s finding of “deviation and interruption” was in error. I reject that submission. Mrs Anderson’s stop at Charlestown was for a reason “unconnected with the worker’s employment or the purpose of the journey” (section 10(2)(b)). It was not analogous to stopping for petrol, as the Respondent Worker has suggested. Her stop interrupted her journey to work and took her off her usual route, albeit only a very short distance. During that interruption and deviation she was injured. In these circumstances it is necessary for the Respondent Worker to prove that the risk of injury “was not materially increased because of the interruption or deviation”.
The Respondent Worker relies on Vetter v Lake Macquarie City Council (2001) 202 CLR 439 (‘Vetter’). In that case the High Court did not consider the question of ‘material increase in risk of injury’ because that issue had been determined as a question of fact by the trial judge and no appeal was available against that factual finding. Therefore, the only question for the High Court was whether the worker was on a journey given that she had interrupted that journey to visit her grandmother and was injured while driving from her grandmother’s house to her own home. The court held that a worker may still be on a journey within the meaning of section 10 of the 1987 Act even if he or she chooses a longer and more indirect route.
Notice
Before the Arbitrator the Appellant Employer argued the issue of ‘notice’ under section 261 of the 1998 Act. That issue was determined against it and has not been raised on appeal. Therefore, the Arbitrator’s finding on that issue is confirmed.
Journey
The Appellant Employer also argued before the Arbitrator that Mrs Anderson was not on a journey to which the 1987 Act applied, but was on a journey to the bank as part of a “discrete and separate private journey” (Appellant Employer’s submissions, paragraph five). Relying on the authority of Vetter, that argument was rightly rejected by the Arbitrator and is not a matter that has been challenged on appeal. The Arbitrator’s finding on that issue is confirmed.
CONCLUSION
The issue of whether there has been a material increase in the risk of injury has not been properly determined because of the rejection of relevant evidence. That issue must be determined and the Respondent Worker is entitled to call further evidence on this point.
In the Respondent Worker’s further written submissions dated 25 August 2006 it is submitted that if the expert’s report is allowed into evidence “the matter must be redetermined, by rehearing, before a different Arbitrator”. In light of this submission I believe that the proper course is to revoke the Arbitrator’s decision and remit the matter to a different Arbitrator for a rehearing in accordance with the reasons in this decision.
DECISION
Paragraphs one and two of the Arbitrator’s decision of 5 October 2005 are revoked and the following order made:
(i)The matter is remitted to a different Arbitrator to determine pursuant to section 10(2) of the Workers Compensation Act 1987 whether on the Respondent Worker’s interruption and deviation from her journey from her place of abode to her place of employment on 7 December 2001 the risk of injury was not materially increased because of the interruption or deviation.
(ii)The Arbitrator decision on ‘notice’ under section 261 of the Workplace Injury Management and Workers Compensation Act 1998 is confirmed.
(iii)The Arbitrator’s finding on ‘journey’ is, subject to the issue of ‘material increase in the risk of injury’, confirmed.
(iv)Costs of the first Arbitration are to follow the result of the second Arbitration.
COSTS
No order as to costs of the appeal.
Bill Roche
Acting Deputy President
5 September 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
2
0