IF & LM Smith v Barrass
[2008] NSWWCCPD 143
•5 December 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | IF & LM Smith v Barrass[2008] NSWWCCPD 143 | |||||
| APPELLANT: | IF & LM Smith | |||||
| RESPONDENT: | Andrew Noel Barress | |||||
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | WCC A1-003441-08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 25 July 2008 | |||||
| DATE OF APPEAL DECISION: | 5 December 2008 | |||||
| SUBJECT MATTER OF DECISION: | Absence of the transcript of arbitral proceedings; analysis and consideration of evidence; credit issues. | |||||
| PRESIDENTIAL MEMBER: | President, Judge Keating | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Ellison Tillyard Callaman | ||||
| Respondent: | Adams Leyland Lawyers | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 25 July 2008, is revoked and the matter is remitted to a different Arbitrator for determination afresh. | |||||
| The costs of the original conciliation/arbitration hearing and the appeal, to follow the final costs orders after the remitter to, and hearing by, a different Arbitrator. | ||||||
INTRODUCTION
This appeal concerns inter alia the approach to be taken where error is alleged in the Arbitrator’s determination and where the arbitration proceedings, which included lengthy oral evidence and raised significant credit issues, have not been transcribed.
BACKGROUND TO THE APPEAL
On 19 August 2008, IF & LM Smith (‘the Smiths/Appellant/Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 25 July 2008.
The Respondent to the appeal is Andrew Barrass (‘the Respondent/Worker’).
Mr Barrass is a 33 year old wool classer/presser who was working casually for the Appellant in late 2004. He alleges that on 20 October 2004 (incorrectly pleaded as 13 October 2004), whilst he was penning sheep, a sheep ran into his right knee causing injury to his right knee.
Mr Barrass claims that he was again injured in a similar incident on 3 November 2004, when a sheep, weighing approximately 90 kg, charged and struck the back of his right knee.
It would appear that Mr Barrass’ claim in respect of injury on 20 October 2004, was initially accepted and he received weekly compensation payments under section 38 of the Workers Compensation Act 1987 (‘the 1987 Act’) for 52 weeks, and thereafter under section 40 of the 1987 Act.
On 27 June 2007, Allianz declined liability by way of a section 74 notice, on the basis that the injury did not occur as alleged or, in the alternative, that Mr Barrass had recovered and was able to earn in excess of his pre-injury earnings, and/or that under section 9A of the 1987 Act his employment was not a substantial contributing factor to the injury.
On 16 January 2008, Mr Barrass lodged a claim with Allianz, for weekly compensation payments from 6 January 2007, as a result of injury to his right knee sustained on 20 October 2004. He also claimed lump sum compensation under section 66 in respect of 21% whole person impairment and compensation for pain and suffering under section 67.
Allianz declined the claim and issued a section 74 notice on 10 March 2008. The claim was declined on several bases as follows:
· Mr Barrass had stated he had not injured his right knee prior to 20 October 2004;
· Mr Barrass had informed Mr Theobald he had injured his knee in a water skiing accident prior to the 20 October 2004;
· Mr Barrass wore a brace on his knee at the time of, and prior to the injury;
· Mr Barrass had informed Mr Harber and Mr McPhee that he required surgery on his knee;
· the alleged injury was not witnessed;
· Mr Barrass did not suffer an injury pursuant to sections 4 and 9 of the 1987 Act;
· employment was not a substantial contributing factor, pursuant to section 9A of the 1987 Act, and
· Mr Barrass was not incapacitated as alleged or at all and that he suffered a subsequent injury on 10 October 2005, whilst employed by a different employer, ‘Packing Pro Workshop’.
On 7 May 2008, Mr Barrass filed an ‘Application to Resolve a Dispute’ (‘the Application’) in the Commission seeking weekly payment of compensation from 6 January 2007 to date and continuing and lump sum compensation pursuant to sections 66 and 67 of the 1987 Act as a result of injury to his right knee on 13 October 2004, amended at the hearing to allege injury on 20 October 2004. The arbitration proceeded on the basis that the Worker claimed compensation for injury on 3 November 2004, although the Application was not formally amended to include this date of injury.
The Smiths filed a ‘Reply’ on 29 May 2008 relying on the section 74 notice dated 10 March 2008.
The matter was listed for a conciliation and arbitration hearing on 8 July 2008 in Cowra, NSW. Both parties were legally represented. The parties were unable to settle their dispute and the matter proceeded to arbitration hearing. At the hearing, oral evidence was adduced from Mr Barrass and four lay witnesses: Mr Theobald, Mr McPhee (the Appellant’s employed wool classer), Mr Harber (the Appellant’s employee) and Mr Ian Smith (one of the Appellants).
In addition to the oral evidence referred to above, both parties made oral submissions. The Arbitrator reserved and issued a ‘Certificate of Determination’ and written statement of reasons for his decision (‘Reasons’) on 25 July 2008. It is from this decision that the Smiths now seek leave to appeal.
DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 25 July 2008 records the Arbitrator’s orders as follows:
“1) The Registrar is requested to refer the Applicant to an Approved Medical Specialist to determine the extent of the Whole Person Impairment flowing from the injury to the Applicant’s right lower extremity as a consequence of the injuries which occurred on 3 November 2004. The documents to accompany the referral being the documents alluded in paragraph 7.
2) In respect to the Applicant’s claim for weekly compensation there will be an award for the Applicant in the sum of $450.00 per week as and from 6 January 2007 to date and continuing. Credit to be given to the Respondent for any payments made during this period.
3) The Respondent to pay the Applicant’s costs as agreed or assessed.”
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged on 19 August 2008, within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The monetary thresholds in section 352(1) (a) and (b) are met.
Leave to appeal is granted.
ISSUES IN DISPUTE
The Appellant submits that that the Arbitrator erred:
1) in law in relying on “purported evidence”;
2) in law in finding that there was “absolutely no evidence” that Mr Barrass had previously injured his knee in a water skiing incident;
3) in finding that Mr Barrass would have had difficulties performing his work duties if he had pre-existing cruciate ligament symptoms, and
4) in finding that, other than the recurrence claim form, there was no evidence with respect to the incident on 10 October 2005, whilst employed by ‘Packing Pro Workshop’.
EVIDENCE
The evidence before the Arbitrator included documentary evidence filed by both parties and documentary evidence admitted, without objection, at the hearing. In addition to the documentary evidence, which included signed statements and/or statutory declarations from a number of witnesses, both parties called oral evidence.
After an interview with Brooksights Investigations Mr Barrass prepared a signed statement dated 19 February 2007. He stated that he advised Mr Ian Smith that he was a qualified wool presser, had been brought up on the land and had experience in shearing sheds. Mr Smith employed him on a casual ‘job to job’ basis, with each job lasting about 3 to 4 days. He commenced work in August 2004 and primarily worked as a wool presser.
He stated that on 20 October 2004, he was in the sheep pen alone when a sheep ran at him and struck his knee. He stated that his kneecap had been dislocated and he hit the kneecap to reposition it, moving it laterally. He stated his knee was “massively swollen”. Mr Ian Smith spoke to him after the incident and suggested that he go to the doctor. Mr Barrass’ partner, Ellen, drove him to the doctor that day and the following day he had an x-ray. On 21 October 2004 he received a call from Mr Smith stating that he no longer required Mr Barrass’ services.
After the injury on 20 October 2004, Mr Barrass stated that did not return to work for the Appellant. He also stated that he had never previously injured either of his knees, but he wore a knee brace working in the wool shed to give support. He claimed that at the time of the injury he was not wearing his knee brace.
Mr Barrass confirmed that he had had three operations on his right knee and in July 2005 he was certified fit to return to full duties and commenced employment with ‘Packaging Professionals’ as a process worker packing small sachets of pet food. On 20 October 2005 [sic – 10 October 2005], he turned and his knee gave way. He believed this was an aggravation to the previous injury sustained on 20 October 2004. He stated the doctors had advised him he could not return to manual work.
Mr Barrass prepared a supplementary statement dated 5 May 2008, in which he expressly denied the conversation referred to in Mr Theobald’s statutory declaration in which he is alleged to have said that he hurt his knee water skiing (see [36] below). He also disputed that he had told Mr Harber and Mr McPhee that he had a pre-existing injury and needed an operation on his knee.
Mr Ian Frances Smith, one of the Employers, swore a statutory declaration on 1 December 2006. He noted that, at about 8.45 am on 21 September 2004, Colin McPhee informed him that Mr Barrass had returned home to get his knee brace, to wear to work and that he had to wear the knee brace because he had torn ligaments in his right knee. Mr Smith stated that he recalled on 20 October 2004, that Mr Barrass started yelling that a sheep had hit his knee. Mr Smith removed Mr Barrass’ track pants and saw a brace on his right knee. Mr Smith stated that when he commented that Mr Barrass already had a bad knee, Mr Barrass responded that he “had a premonition something was going to happen that day”. Mr Barrass left work to attend the doctors but returned to work the next day and stated that his knee was “okay”.
Mr Smith also stated that on 3 Novembers 2004, he recalled Mr Barrass again yelling out that a sheep had struck him and again injured his right knee. After this incident, Mr Barrass left work to attend a doctor who was 40 km away. After seeing the doctor he returned to work, collected his gear and went home. Mr Smith stated that prior to the incident Mr Barrasss had repeatedly asked how much work the Smiths had for him. Mr Ian Smith stated that there was only 4 to 5 days left and the work was running out.
Mr Ian Smith prepared a signed statement for Brooksights Investigations at the request of Allianz on 27 January 2007. He essentially confirmed the evidence in his statutory declaration but added that Mr Barrass had told Mr McPhee that could not work without his knee brace.
Mr Smith stated that at the next job, which ran from 25 October 2004 to 28 October 2004, he gave Mr Barrass the wool-classing job so that he did not have to walk around. The job after that commenced on 3 November 2004. On the fifth day in this new job, in response to Mr Barrass’ enquiry as to the amount of work remaining, Mr Smith stated that there was one week of work left. Mr Smith stated that he had decided not to continue employing Mr Barrass after that time, but he did not inform Mr Barrass of his decision.
Mr Smith stated that on 3 November 2004, he requested Mr Barrass to stop deliberately hurting one of Mr Smith’s dogs and that the farmer on whose property they were working had complained that Mr Barrass was too rough with the sheep and had in fact killed a sheep. Twenty minutes later Mr Barrass was heard screaming. Mr Smith stated that he observed him standing in the pen with no sheep around him. Mr Barrass stated that a sheep had hit his leg and injured his right knee again. Mr Barrass left work to attend the doctor and returned to work at which time Mr Smith told him that he was to finish work that day, not because of the injury, but because of the way that he worked.
Mr Harber, swore a statutory declaration on 3 November 2006. He said that on 21 September 2004, Mr Barras had told him that he would need to leave work and go home to obtain his knee brace which he had forgotten. During the conversation with Mr Harber, Mr Barras is alleged to have said he had “done the cartilage in his knee and needed an operation on it, but would be alright if he had his brace on”.
Mr Collin James McPhee swore a statutory declaration on an unspecified date. He also confirmed that on 21 September 2007 Mr Barrass had told him that he had damage to the cartilage in his knee and needed an operation but would be alright to work if he had his brace on. Mr McPhee stated that to his knowledge Mr Barrass wore a knee brace on his right knee all the time that he worked for Mr Smith.
A further statement was prepared by Mr McPhee dated 27 January 2008, which was unsigned, but was adopted by Mr McPhee at the hearing and admitted into evidence (see Arbitrator’s reasons at [9]). Mr McPhee stated that Mr Barrass wore a brace on his knee the whole time he worked with him. Mr McPhee confirmed the content of his earlier statement namely that Mr Barrass returned home to get his knee brace before starting work on 21 September 2004. Mr McPhee stated that in addition to working for the Smiths he had performed work at other sheds. When he returned to work for Mr Smith, Mr Smith informed him that Mr Barrass had hurt his knee. After this, Mr McPhee stated that he observed Mr Barrass jump down from a wool press onto a wooden floor about five feet below and he opined that Mr Barrass’ knee “could not have been too bad”. He stated that later during this same job, he was advised that Mr Barrass had suffered another injury to his knee when a sheep ran into him. Mr McPhee recalled that Mr Barrass drove into town to attend a doctor and returned about one and a half hours later. He stayed until the shift finished, but did not undertake any further duties.
Mr Zane Theobald swore a statutory declaration on 29 November 2006 that on a unspecified date he had had a conversation with Mr Barrass at the house of a mutual friend and Mr Barrass stated that he had hurt his right knee water skiing and was getting his knee fixed on Ian Smith’s workers compensation. When Mr Theobald informed Mr Barrass that he knew Ian Smith, Mr Barrass changed his story and said that a ram had hit him.
TRANSCRIPT
Whilst the Arbitrator recorded the arbitral proceedings on 8 July 2008, due to an administrative error, the sound card containing the transcription of the evidence given during the arbitration hearing cannot be located. Consequently there is no sound recording from which the Commission can prepare a transcript. The Commission informed the parties of the absence of transcript and requested submissions on the conduct of the appeal in the absence of a transcript of the arbitral proceedings.
Mr Barras’ solicitors’ submissions are brief and I reproduce them as follows:
“We note your correspondence dated 27 October 2008 regarding the transcript of the above mentioned matter.
We note that the hearing of this matter was very lengthy. We further note that the Appellant’s submissions in this matter relate to interpretations of the facts by the Arbitrator rather than the facts themselves.
It is the Respondent worker’s submission therefore that this matter is still able to be dealt with on the papers.”
Unfortunately, these submissions are ambiguous and unhelpful in determining whether or not the matter can proceed in the absence of a transcript.
The Smiths submit that the absence of the transcript “probably only affects Ground 2” of the Appellant’s appeal.
The Smiths’ second ground of appeal involves an assertion that the Arbitrator erred in law in finding that there was “absolutely no evidence” that Mr Barras had been previously injured in a water skiing accident. The Smiths rely on the evidence of the prior water skiing accident in Mr Theobald’s statutory declaration and his oral evidence. The Smiths further submit that if the Presidential member concludes that the statutory declaration of Mr Theobald is not accepted as evidence of the prior water skiing incident, then the absence of the transcript may be prejudicial to the Appellant’s argument on this point. They submit that there may be alternative ways of dealing with this, submitting that if Mr Barrass’ solicitors have reasonably detailed notes of the oral evidence, consideration could be given to such notes. The Smiths’ solicitors conceded that they, themselves, do not have such notes.
The Smiths also submit that the question of whether any additional evidence is admitted is a matter for the Presidential member to determine whether it is just in the circumstances of the case.
Finally, the Smiths submit that if the appeal is allowed, in the absence of a transcript, the remedy of a rehearing before an alternative arbitrator is a preferable course to the theoretical alternative of a Presidential member substituting his or her own determination of the matter.
Depending on the circumstances the Commission has taken various approaches to appeals in the absence of transcript.
In Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34; (2007) 4 DDCR 206 (‘Zheng’) there was no transcript or sound recording available of the evidence given before the Arbitrator. The Presidential member dealing with the appeal overcame the absence of the transcript by relying upon a summary of the relevant evidence from a solicitor for one of the parties. The Court of Appeal noted that the solicitor’s narration of the relevant facts was not disputed by the opposing party and in all the circumstances it was determined there was no error on the part of the Presidential member in proceeding to deal with the appeal relying, inter alia, on the solicitor’s narration of the relevant evidence.
In Zheng, Bryson JA (with whom Handley JA and Bell J agreed) in dealing with the absence of transcript stated:
“This is a serious shortcoming, because it greatly impedes the right of appeal and the due exercise of powers of the Presidential member under s.352; and also impedes the conduct of a further appeal under s.353. According to circumstances, the absence of a sound recording could fairly readily lead a Presidential member to a decision to require a rehearing; although that result would not be automatic.”
In Ashley v Ashmore Constructions Pty Ltd [2006] NSWWCCPD 225 Acting Deputy President Candy dealt with a case similar to this appeal regarding the absence of a transcript of portions of the evidence. In that matter the missing transcript concerned the evidence of the worker and a lay witness. Statements from both of the witnesses were attached to the Application to Resolve a Dispute.
Acting Deputy President Candy drew the distinction between cases where portions of the evidence are not transcribed from those where the reasons for decision are not transcribed. He noted that the absence of a transcript is not necessarily fatal to the process of review. He noted the Arbitrator gave careful reasons in her determination of the matters in dispute. She had before her a statement of the worker taken several years before the hearing. The Acting Deputy President expressed doubt as to whether the evidence of the worker given during the arbitration hearing in March 2005, almost four years after the event in question, would have greatly assisted the Arbitrator in determining disputed matters of fact. He considered the statement of the worker some months after the event and the contemporaneous medical evidence to give a greater indication of where the truth lay. He held that the absence of the transcript did not prevent him from dealing with the matter on appeal and proceeded to determine it.
In Safi v Australian Concert & Entertainment Security [2007] NSWWCCPD 128 (‘Safi’) Deputy President Byron dealing with an absence of transcript formed the view that in the absence of the evidence upon which the Arbitrator’s decision was made he was unable to undertake a proper review in order to determine whether or not the Arbitrator had erred as alleged. He noted at [29]:
“The absence of a transcript can be a serious impediment to the process of ‘review’ that is required on appeal. In Fraternity Bowling & Recreation Club Ltd v Sartor [2004] NSWWCCPD 47 (‘Sartor’) not only was there no transcript of the oral evidence but there was no transcript of the Arbitrator’s ex tempore decision. The Arbitrator’s decision was revoked and the matter remitted to a new Arbitrator for re-hearing. The Commission noted at paragraph 15:
‘The absence of a transcript of the arbitration may be fatal to the conduct of a fair review on appeal where no written reasons have been provided. The task of the Presidential Member is to ‘review’ the Arbitrator’s decision, wherever it is possible to do so, either ‘on the papers’ or after an oral hearing. Where an Arbitrator has erred in making the decision, it may not be possible for a Presidential Member to proceed to substitute a new decision ... if the evidence on appeal is inadequate. This has frequently occurred because the evidence was not properly filed or given in accordance with the Rules or because it was not properly recorded in the arbitral proceedings. In these circumstances, to grant leave for fresh evidence to be given on appeal can lead to the review becoming a complete second hearing of the dispute ... this is not the intention of the statutory scheme. The particular circumstances of each case will influence the course of the review.’”
In my decision in Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43 the appeal was able to proceed in the absence of a transcript of portions of the oral evidence. In that matter, the parties agreed that the Arbitrator’s Statement of Reasons accurately encapsulated the evidence that been given and that the evidence went no further than confirming material that was already contained in the written statements.
Acting Deputy President O’Grady took a different approach on different facts in Miles v ACE Semi Trailer Sales Pty Ltd [2007] NSWWCCPD 145 (‘Miles’). In that matter the Acting Deputy President noted that there were numerous references to the unrecorded evidence and submissions. He noted that both parties on appeal advanced arguments relating to the credit of witnesses and also that the Arbitrator had made findings which related to the subjective state of mind of the Worker which lead him to conclude that it would be inappropriate for him to examine such findings without a full transcript of the proceedings. He concluded that in the absence of a complete record of the proceeding a just determination of the dispute between the parties could not be obtained and he remitted the matter for determination afresh by a different Arbitrator.
The Respondent to the present appeal submits the absence of the transcript does not inhibit the appeal proceeding. The Appellant submits the absence of transcript probably only affects ground two of the appeal. As noted, ground two challenges the Arbitrator’s finding that there was “absolutely no evidence” of Mr Barras being involved in a prior water skiing accident.
The Smiths’ first two grounds of appeal allege the Arbitrator erred in his treatment of the evidence as it related to the occurrence of a knee injury sustained in a water skiing accident prior to 20 October 2004. The challenge is to the Arbitrator’s finding of “purported evidence” of a prior injury in the form of a water skiing accident and his finding that there is “absolutely no evidence” that such an incident took place.
The missing transcript concerns the cross examination of the witnesses referred to at paragraph [12] above. Each of the witnesses provided evidence in chief, in the form of statements and/or statutory declarations.
As Bryson JA noted in Zheng, the absence of transcript does not automatically lead to a rehearing. In the particular circumstances of the appeal before me, the first two grounds of appeal challenge the Arbitrator’s findings in a very narrow compass. The central issue on appeal relates to the Arbitrator’s findings in relation to the evidence of a prior water skiing incident. The documentary material addresses that issue. I accept that the oral evidence may have supplemented or qualified the evidence in chief and may have cast doubt on the veracity of the evidence relating to the prior water skiing accident. However, that is quite a different matter from determining on appeal whether the Arbitrator was correct in finding that there was no evidence of a particular fact, when that very fact is addressed in the documentary evidence filed in the proceedings.
Before I would consider that the absence of a transcript of the arbitral proceedings impeded the determination of the appeal to such an extent that it was the sole basis for ordering a new hearing, I would first need to be satisfied the evidence in chief failed to provide any evidence of a prior water skiing accident, given the clear finding by the Arbitrator of “absolutely no evidence” of it. If I am satisfied there is evidence of that fact from the documentary material, the absence of a transcript of the oral evidence will not be fatal to the appeal proceeding. For the reasons I shall come to, I am satisfied that there is sufficient evidence before me to review the Arbitrator’s decision, notwithstanding the absence of the transcript of the oral evidence.
DISCUSSION AND FINDINGS
The Arbitrator’s Reasons at [18] are as follows:
“I appreciate there is reference by the Respondent of purported evidence of a prior injury in the form of a water skiing incident however there is absolutely no evidence before me that suggests that such an incident ever took place and indeed contrary to any suggestion that there was such an injury the Applicant in his own statement provides evidence that the last time he water skied was when he was 6 years of age. I do appreciate that it is somewhat difficult to understand how there can be such conflicting evidence in terms of whether or not the Applicant had a pre-existing cruciate ligament problem, or whether indeed he hurt his knee in a water skiing incident, and finally that he might well have been struck by ram. I am satisfied that the Applicant would have had untold difficulty in performing his duties for the Respondent had he had a pre-existing cruciate ligament problem, having in mind the nature and type of work undertaken and the load applied to his knees when particularly moving compressed bales of wool over the floor of the shearing shed. Indeed one has to really question whether the Respondent really resiles from a position of acknowledging that injuries were occasioned to the Applicant on 20 October 2004 and 3 November 2004 when having regard for [sic-to] his own statements and correspondence to the Insurer. I am particularly mindful of the Respondent’s letter to the Insurer, which has a received date of 6 December 2006, in which he opines, “It is my opinion that I should not be liable for all of this claim, only part of it.” Earlier within the letter he opines, “At the best I think his injury was only aggravated while he was employed by myself.” I am also mindful of the words that have predominated the conversations that purportedly took place, namely the word ‘prevention’ as used by the Applicant as opposed to ‘premonition’ as used by a number of the witnesses. As I have indicated earlier the evidence clearly suggests (being that of Mr McPhee) that the Applicant openly worked with the use of a knee guard, he often having worked in shorts. This suggests to me more strongly the fact that the Applicant was using the guard as a prevention measure.” (emphasis added)
The Appellant submits that the Arbitrator’s discounting of Mr Theobald’s sworn evidence that Mr Barrass had admitted to Mr Theobald that he had previously injured his right knee in a water skiing accident, as constituting “purported evidence”, demonstrates legal error. If the Arbitrator was using the descriptor “purported” to convey that he preferred Mr Barrass’ evidence to that of Mr Theobald, he failed to state such a findings and failed to disclose his reasoning process. Further, the Appellant submits that if the Arbitrator made an adverse credit finding against Mr Theobald he failed to disclose the basis on which he made such a finding.
The Appellant submits that, given Mr Theobald’s evidence of Mr Barrass’ admission of a previous injury to his right knee in a water skiing incident, the Arbitrator erred in law and fact in making a finding that there was “absolutely no evidence” such an incident took place.
In addition, the Appellant submits that the Arbitrator’s use of the work “purported” without further explanation, creates an appearance that the Arbitrator “may have approached his decision making task with some degree of pre-judgment on this issue”.
In reply, Mr Barrass submits that the Arbitrator did not err in law or fact in using the word “purported”. The Arbitrator’s Reasons disclose that he took into account the evidence given by Mr Theobald, and exercised his discretion and placed appropriate weight on the evidence before him and his Reasons disclose that he preferred Mr Barrass’ evidence to that of Mr Theobold.
Mr Barrass also submits that Mr Theobald’s evidence was inconsistent with his evidence and also with:
“…the contemporaneous documents that were provided by both the Appellant and the respondent Worker in these proceedings. Such is clearly identified by the Arbitrator in his statement of reasons” (page 2 of submissions annexed to the Notice of Opposition to Appeal).
In response to the allegation that the Arbitrator may have demonstrated some pre-judgment in relation to this evidence, Mr Barrass submits that such an assertion is inconsistent with the Arbitrator taking oral evidence from all witnesses who had provided statements.
Mr Barrass submits that Mr Theobald’s statutory declaration was sworn on 29 November 2006, approximately two years after the alleged conversation took place and is inconsistent with the affidavit of Ms Toni-Anne Douglas dated 19 September 2008, which Mr Barrass seeks to have admitted on appeal as fresh evidence (see [76]-[79] below).
Mr Barrass submits that there is no doubt that the Arbitrator’s reference to “absolutely no evidence” in paragraph 18 of his Reasons is a reference to there being no medical evidence to support the allegations made by the Appellant’s witnesses as to a pre-existing condition.
An Arbitrator is under a statutory duty to provide adequate reasons for his/her decisions (see section 294(2) of the 1998 Act; ParT15 Rule 15.6 of the Workers Compensation Comission Rules 2006 (‘the Rules’); Absolon v NSW TAFE [1999] NSWCA 311) and his or her decision must be based on logical and probative evidence.
Part 15 Rule 15.2 of the Rules relevantly provides:
“When informing itself on any matter, the Commission is to bear in mind the following principles:
(a)evidence should be logical and probative,
(b)evidence should be relevant to the fact in issue and the issues in dispute
(c)evidence based on speculation or unsubstantiated assumptions is unacceptable
(d)unqualified opinions are unacceptable.”
When evidence is disputed an Arbitrator must give a clear explanation of the reasons why some evidence is preferred over other evidence (see Mayne Group Limited v Mikhail [2006] NSWWCCPD 249 at [41]; Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 and Hume v Walton [2005] NSWCA 148).
Deputy President Byron said in Westpac Banking Corporation v Kilby & Bananacoast Credit Union Ltd [2005] NSWWCCPD 24 at [54]:
“As stated in South Western Sydney Area Health Service v Edmonds [2005] NSW WCC PD 18, the weight and relevance to be given to evidence before an Arbitrator is a matter in the discretion of that Arbitrator. The decision of the Arbitrator should not be overturned unless it can be demonstrated that the Arbitrator has failed to exercise that discretion fairly and according to law. This may occur where an Arbitrator has acted upon an incorrect legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts, or failed to take into account relevant and material considerations, (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, and In the matter of National Roads and Motorists Association Ltd [2003] FCAFC 206 at [21]).”
An analysis of the Arbitrator’s Reasons, demonstrates that the Arbitrator failed to have regard to Mr Theobald’s sworn written evidence of an admission made by the Worker that he had suffered a previous injury to his right knee in a water skiing accident and indicated an intention to pursue a potentially fraudulent workers compensation claim. The Arbitrator’s Reasons do not clearly disclose what evidence he accepted or rejected on this issue.
I do not accept Mr Barrass’ submission that the Arbitrator’s finding of “absolutely no evidence” was a reference to the absence of medical evidence of a pre-existing knee condition. The Arbitrator’s discussion in relation to “no evidence” was made in the context of his analysis of the factual evidence of the prior water skiing accident, not in terms of any analysis of the medical evidence.
Mr Theobald’s sworn written evidence is as follow:
“Andrew Barass [sic-Barrass] called in at a friend’s place by chance, whilst I was there. During conversation he made the comment that he had hurt his right knee water skiing. He also said he was getting his knee fixed on Ian Smith’s workers compensation. When I said I knew Ian Smith, he immediately changed his story and said a ram hit him.”
The Arbitrator’s finding of “purported evidence” and “ absolutely no evidence” in relation to a previous water skiing incident in the presence of the above evidence discloses an error of law. Mr Theobald’s evidence was evidence directly relevant to the facts in issue. The Arbitrator’s conclusion of “no evidence”, was not open to him on the evidence, particularly in circumstances where no reasons are given for rejecting Mr Theobald’s evidence. These findings by the Arbitrator, coupled with the absence of the transcript of the conflicting oral evidence and cross examination of the witnesses, leads me to conclude that in the interests of justice the Arbitrator’s decision cannot stand and must be revoked and the matter re-determined, particularly in light of the significant credit issues involved.
The hearing of this matter was lengthy and involved five lay witnesses being called to give evidence. Whilst the absence of a transcript of the arbitral proceedings did not impede a determination of the merits of the appeal, the absence of a complete record of the proceedings prevents me from re-determining the matter. Without the transcript of the evidence of the five lay witnesses a just determination of the dispute cannot be obtained. It is therefore with some considerable reluctance that I propose to remit the matter to a different Arbitrator to determine afresh.
Having upheld the appeal on the first two grounds and revoked the whole of Arbitrator’s decision, it is not necessary for me to address the remaining grounds of appeal.
FRESH EVIDENCE
Mr Barrass seeks to have admitted as fresh evidence on the appeal an affidavit of Toni-Anne Douglas dated 19 September 2008. Ms Douglas claims to have been present on the occasion when the alleged conversation between Mr Theobald and Mr Barrass took place regarding his prior water skiing injury. She claims that she was present throughout the entire evening when Mr Barrass and Mr Theobald were together and states that at no time during the evening was there any discussion regarding Mr Barrass injuring his knee in a prior water skiing accident.
It is submitted this evidence was not available at the arbitration hearing. Mr Barrass submits that the alleged conversation referred to by Mr Theobald in his statutory declaration occurred at a friend’s place by chance. There were no details of where this friend’s place was located or who was present. It was only after cross-examination at the arbitration that such details were made available to Mr Barrass. As a result, further enquiries were made and Ms Douglas was identified as a potential witness.
The evidence of Ms Douglas is relevant to the credit issues.
Given that I have determined that the appeal has been successful and the matter is to be remitted to another Arbitrator for determination afresh, it is not necessary for me to decide this application on appeal, however, I consider that when the matter is listed for hearing, it is appropriate that both parties be given the opportunity to make application to adduce further evidence.
DECISION
The appeal is upheld and the decision of the Arbitrator dated 25 July 2008 is revoked.
The matter is remitted to a different Arbitrator for determination afresh.
COSTS
The need for a rehearing has been occasioned, not by the fault of either party but as a result of an administrative omission by the Commission. I have regard to the decision of Acting Deputy President Snell in K-Mart Australia Limited v Falzon [2006] NSWWCCPD283 (‘Falzon’) and the decision of Acting Deputy President O’Grady in Miles, that the Commission has broad discretion in relation to costs under section 341 of the 1998 Act. As was ordered in Falzon and Miles I consider it appropriate to make the following costs orders.
The costs of the original conciliation/arbitration hearing and the appeal, to follow the final costs orders following the remitter to, and hearing by, a different Arbitrator.
His Honour Judge Keating
President
5 December 2008
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HONOUR JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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