Irvin v LA Logistics Pty Ltd - [2011] NSWWCCPD 23

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Irvin v LA Logistics Pty Ltd [2011] NSWWCCPD 23
APPELLANT:		Phillip Irvin
FIRST RESPONDENT:		LA Logistics Pty Ltd
SECOND RESPONDENT:		Cemex Group Ltd
FIRST RESPONDENT’S INSURER:		CGU Insurance Limited
SECOND RESPONDENT’S INSURER:		Rinker Group Limited
FILE NUMBER:		A2-7113/09
ARBITRATOR:	Mr Jeffrey Phillips SC
DATE OF ARBITRATOR’S DECISION:		10 January 2011
DATE OF APPEAL DECISION:		12 April 2011
SUBJECT MATTER OF DECISION:		Admission of fresh or additional evidence: s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; Notice of claim: s 261(1) of the Workplace Injury Management and Workers Compensation Act 1998; failure to make a claim by reason of ignorance: s 261(4) of the Workplace Injury Management and Workers Compensation Act 1998; first awareness of receipt of injury: s 261(6) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Maurice Blackburn Lawyers
First Respondent:	Turks Legal
Second Respondent:	Leigh Virtue & Associates
ORDERS MADE ON APPEAL:		For the reasons given in this decision, the Arbitrator’s determination of 10 January 2011 is confirmed. No order as to costs.

BACKGROUND TO THE APPEAL

Mr Phillip Irvin, the appellant, commenced proceedings on 3 September 2009 against LA Logistics Pty Ltd (LAL), the first respondent, and Cemex Group Ltd (Cemex), the second respondent, seeking orders from the Commission in respect of lump sum entitlement. Mr Irvin had been employed by Cemex between September 2002 and September 2005, and by LAL between September 2005 and June 2008. He alleged that he had received injury in the course of his employment with each of those employers, being hearing loss resulting from noise exposure.
Mr Irvin’s claim was a modest one. His allegation was that, as a result of injury, he had suffered permanent damage to his hearing, which had been assessed as being a whole person impairment of four per cent. His claim sought an order for the payment of the sum of $5,500. It seems that both employers were joined to the proceedings, given the existence of doubt as to the identity of the employer who last employed Mr Irvin in an employment to the nature of which the injury was due in terms of s 17 of the Workers Compensation Act 1987 (the 1987 Act).
It must be stated at the outset that the history of this litigation since commencement in 2009 is most unsatisfactory. The matter came before Arbitrator Adelstein for arbitration on 26 November 2009, following which an award was entered in favour of each of the employers. That determination was the subject of an appeal (the first appeal) which was heard on the papers by the President, Judge Keating. On 16 April 2010, his Honour ordered that the decision of Arbitrator Adelstein be revoked and the matter was remitted to a different arbitrator for determination afresh (Irvin v LA Logistics Pty Ltd [2010] NSWWCCPD 40).
Following remitter, the matter came before Arbitrator Jeffrey Phillips SC on 4 August 2010. The transcript reveals that the matter proceeded to arbitration. However, the hearing did not conclude on that day, given the effluxion of time caused by protracted argument concerning the admission of evidence relied upon by each party. The Arbitrator, at the conclusion of argument, directed that each party provide written submissions. That direction was necessary, given that there was not sufficient time available on the day fixed for hearing to conclude oral argument.
Written submissions were, in due course, provided by the parties. A Certificate of Determination was issued by the Arbitrator on 10 January 2011, which made provision for the entry of an award in favour of each respondent employer. The present appeal is brought from that determination.
It is clear, following an examination of the transcripts of proceedings conducted before Arbitrator Adelstein and Arbitrator Phillips SC that, when the application came before each Arbitrator, there existed grave uncertainty as to the real issues in dispute between the parties and it is clear that, on each occasion, Mr Irvin and, to some extent, each of the respondents were ill-prepared for the efficient conduct of the hearings. It is this lack of preparedness which has prompted me to observe that the matter has an unsatisfactory history.
It is reasonably clear that the many difficulties that have arisen during the course of these proceedings originated from Cemex’s insistence upon raising, as an issue in defence of the claim, Mr Irvin’s failure to give notice of claim as required by s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). That issue was not clearly articulated in the notice issued by Cemex pursuant to s 74 of the 1998 Act at the time liability was denied. The form of that s 74 notice and its deficiencies were addressed by the President in the course of his reasons delivered in the first appeal. Cemex had been permitted to raise the issue of “notice of claim” at the first arbitration. Application of the provisions of s 261 to the circumstances of the present matter gave rise to significant factual issues in respect of which Mr Irvin had not directed attention in the course of the preparation of his case. The conduct of his case since that time has been characterised by a constant shifting of emphasis in argument and contradiction of his own evidence. That situation prompted Arbitrator Phillips SC to make the following observation in the course of his Reasons (at page 15):
“[Mr Irvin’s] case perhaps by trial and error evolved from its original position. [Mr Irvin’s] case presented itself as a moveable feast depending upon at what particular stage [Mr Irvin’s] case was presented.”
The first appeal was upheld by the President, in part, given his conclusion that the additional evidence admitted on Mr Irvin’s application in the course of that appeal demonstrated that the evidence before the Arbitrator was “unreliable”. His Honour, at [69] of his reasons, concluded that there was not sufficient material before the Commission to enable findings to be made, on that appeal, regarding the date of injury or the date of Mr Irvin’s claim for compensation. His Honour observed that it would be necessary for the parties to be given an opportunity to garner further evidence for presentation at the further arbitral hearing.
It is to be regretted that the evidence presented at the second arbitration did not include the material alluded to by his Honour. The evidentiary material referred to by his Honour included relevant documents from an organisation described as “Linfox” as well as any records held by Cemex concerning an alleged claim made by Mr Irvin in early 2008. The significance of the absence of that material and the circumstances which caused the omission of that evidence are addressed below.

ISSUES IN DISPUTE

Mr Irvin seeks leave to adduce fresh or additional evidence on appeal pursuant to s 352(6) of the 1998 Act. That material is described below at [18]. Cemex opposes Mr Irvin’s application. Mr Irvin argues that, should the additional evidence be admitted on appeal, the content of that evidence “demonstrates an error of fact” made by the Arbitrator.
A further ground of appeal relied upon by Mr Irvin asserts error on the part of the Arbitrator concerning his evaluation of the evidence as to “date of injury”, being that the burden of proof “imposed” in the course of such evaluation was “higher than the appropriate civil standard”.

ON THE PAPERS REVIEW

Both Mr Irvin and LAL consent to this appeal being heard on the papers should the Commission be satisfied of those matters provided by s 354(6) of the 1998 Act. Cemex submits that “the appeal cannot be determined on the papers”.
Among the documents before the Commission are Mr Irvin’s careful and detailed submissions in reply to the notices of opposition to the appeal filed on behalf of the respondents. That document was filed with the Registry on 7 April 2011. The lateness of those submissions was occasioned by an apparent failure by Cemex to serve its submissions upon Mr Irvin’s solicitors. Mr Irvin’s objection to Cemex’s submissions is noted. He has had an opportunity to respond and has done so and his objection must be overruled.
Cemex has provided no persuasive argument in support of its position concerning a hearing. Having regard to Practice Directions Nos 1 and 6, and 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.

LEAVE

There is no dispute between the parties concerning the threshold requirements prescribed by s 352 of 1998 Act.
In the circumstances, and having regard to the matters raised in submissions, I conclude that it is appropriate that leave be granted to proceed with the appeal, and I so order.

ADDITIONAL EVIDENCE

The admission of fresh evidence or evidence in addition to or substitution for evidence received in relation to the decision appealed against is governed by the provisions of s 352(6) of the 1998 Act. Such evidence may not be given on an appeal to the Commission except with leave. Having regard to the date of the Arbitrator’s Determination, the process for seeking leave of the Commission to adduce such evidence on appeal is regulated by Practice Direction No 6 in its form prior to recent amendments. The relevant provision of the Act is, likewise, in its terms as they stood before the recent commencement of the Workers Compensation Amendment Act 2010.
The additional items of evidence which Mr Irvin seeks leave to adduce are:
(a) a copy of a facsimile communication dated 19 January 2011 from Wyong Medical Centre which contains a copy of results of an audiogram conducted on 28 February 2008 at the request of Linfox. The patient’s name appears in that document as “Irvine [sic] Phillip”. The age of the patient is noted by record of date of birth, X March 19XX, and the name of the doctor is noted as Dr Oxley. The pro forma document has the words “pre-employment examination”, next to which the words “yes” and “no” appear, with the word “yes” circled in pen. The audiogram chart appears in the document, together with the readings at various frequencies. The result is noted as:
“bilateral mild higher tone loss, consistent with sensorineural loss –
L – 8.9 %
R – 10.7%.”
(b) a statement of Mr Christopher Parkin dated 19 January 2011. Mr Parkin is a law graduate in the employ of Mr Irvin’s solicitors. Mr Parkin states that he assumed conduct of Mr Irvin’s claim in October 2010, following the departure of Ms Simone Seller. Mr Parkin relates a conversation he had with Mr Irvin concerning an audiogram which had been conducted at Wyong Medical Centre “on behalf of Advantage Personnel who were arranging the medical examination for the purposes of his Linfox application”. On the day of that conversation, Mr Parkin contacted Wyong Medical Centre by telephone, and a request was forwarded to that practice on that day, following which the medical centre confirmed that “there was an audiogram”. A further request seeking a copy of the audiogram was forwarded by Mr Parkin on 19 January 2011. On that day, a copy of the audiogram was received by Mr Parkin’s office. Mr Parkin notes that the date of birth which appears on the face of the document corresponds to Mr Irvin’s date of birth.

Submissions

Cemex has provided lengthy submissions in opposition to the admission of the additional evidence. It has asserted in argument that Mr Irvin, having failed in his claim before Arbitrator Adelstein, conducted an appeal and sought “to run an entirely indifferent [sic, different] case to the one run at first instance”. It is argued that Mr Irvin attempted “to completely reframe his case in different terms to overcome the deficiencies correctly identified by the first Arbitrator”. It is further asserted that Mr Irvin, having failed before Arbitrator Phillips SC, is “yet again seeking the opportunity of presenting a case for the third time”.
Cemex submits that the document produced by Wyong Medical Centre and the statement of Mr Parkin are not items that may be described as “fresh” or “new” evidence. It is asserted that the evidence is “more” evidence and, it being of such a character, should not be admitted. It is argued that “to permit [Mr Irvin] to have yet another attempt to run his claim would be utterly unfair and unreasonable in the extreme”. The submissions include reasons for Cemex’s assertion concerning unfairness and unreasonableness. Included in those reasons is the submission that the additional evidence could not be said to be material that could not, with reasonable diligence, have been obtained by Mr Irvin at an earlier date for presentation before the Arbitrator. Reference is also made to a number of decisions of the Commission concerning the granting of leave to adduce additional evidence. Those decisions each contain reminders to the profession that an arbitration is not “a trial run” where a party can await the outcome, following which a decision is taken to prepare a case.
Mr Irvin, in submissions very recently filed seeks, upon the facts, to distinguish this matter from those matters cited by Cemex concerning a “trial run”. Whilst those arguments have some force, the revision of his case following the first arbitration and first appeal, as is considered below, does not appear to be addressed. It is those proceedings which Cemex characterises as a “trial run”, not the present appeal as is suggested at [52] of the recent submissions.
Cemex further argues that the admission of the additional evidence would give rise to extreme prejudice, given that it has not had “any forensic opportunity to address or respond to the additional evidence now sought to be relied on or to investigate the veracity of that evidence nor the circumstances in which it comes about”. Mr Irvin observes that Cemex has been aware of the evidence since 7 February 2011 and that no correspondence has been received from Cemex since that time. The suggestion of prejudice is challenged.
A further argument is advanced on behalf of Cemex that the additional evidence is “of limited probative value”. It is also asserted that, even if admitted, the evidence “could not alter the outcome of the proceedings”.
Much of the argument raised by Cemex has merit. It will be seen that I consider Cemex correct in asserting that Mr Irvin has failed to establish that the additional evidence could not, with reasonable diligence, have been obtained by him earlier and tendered in the proceedings before Arbitrator Phillips SC. The arguments advanced by Cemex concerning the need to acknowledge that an arbitration is not a “trial run”, whilst not determinative as to the admission or rejection of the additional evidence, also has merit.

Discussion

The principles relevant to the exercise of discretion granted to the Commission by the provisions of s 352(6) were succinctly summarised by the President in the course of his reasons in the first appeal, where it was stated (between [46] and [48]):
“46. The Court of Appeal considered the introduction of fresh evidence or additional evidence on appeal in Haider v JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158 (‘Haider’) where Basten JA referred to Akins v National Australia Bank (1994) 34 NSWLR 155 (‘Akins’) and other authorities. In Akins, Clarke JA (Sheller JA and Powell JA agreeing) stated at 160, that three conditions need to be met before ‘fresh evidence’ can be admitted.
‘These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.’

47. However, in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116, Heydon JA stated [15]: ‘Even if the three tests stated in the Akins case are applicable and are not satisfied, a question remains: is it just to admit the further evidence in this case?’

48. In considering an application to rely on fresh evidence or further evidence on appeal, the Commission must balance two competing requirements: the public interest that litigation should not continue indefinitely against the need to ensure that justice is done in all the circumstances of the case. In balancing these matters, the Commission must also keep in mind its statutory duty to act ‘according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms’ (section 354(3) of the 1998 Act), PCR Plaster Settings Pty Ltd v De Brito (No 3) [2008] NSWWCCPD 82.”

The suggested relevance of the late evidence

The additional evidence is relevant, it is argued by Mr Irvin, to issues raised concerning the obligation to make a claim for compensation as provided by s 261 of the 1998 Act. That section provides:
“261          Time within which claim for compensation must be made
(1)     Compensation cannot be recovered unless a claim for the compensation has been         made within 6 months after the injury or accident happened or, in the case of         death, within 6 months after the date of death.
(2)     If a claim for compensation was made by an injured worker within the period         required by this section, this section does not apply to a claim for compensation             in respect of the death of the worker resulting from the injury to which the                worker’s claim related.
(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.
(4)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
(5)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6)     If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.
(7)     If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
(8)     In the case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
(9)     When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”

The audiogram provided by the Wyong Medical Centre was, on the face of the document, conducted in February of 2008 and not, as stated by Mr Irvin in his statement dated 23 November 2009, at the end of his employment with Cemex in September 2005. It is now his case that he had assumed that his deafness was age-related until informed, at the time of that audiogram, that it was industrial deafness. If those facts are established it may be argued by Mr Irvin that the injury, for the purposes of s 261, is taken to have been received at the time he first became so aware: s 261(6).
Mr Irvin relies upon his alleged first awareness of injury as a basis upon which it may be inferred that he failed to make a claim as required by reason of ignorance in terms of s 261(4).
The significance of Mr Irvin’s arguments needs to be considered in the context of the evidence found in a report of Dr Seymour dated 26 May 2008 tendered on behalf of Cemex. It is Mr Irvin’s case that Dr Seymour’s examination, conducted on behalf of Cemex, followed a claim made by him against that respondent. The President found in the first appeal that Mr Irvin’s evidence concerning making a claim against Cemex in the first half of 2008 was credible (between [57] and [61]). Should there be findings made of the matters noted at [27] above and a finding that notice of claim was given shortly prior to that examination by Dr Seymour, Mr Irvin would not be barred from recovery by reason of non-compliance with the requirements of s 261(1).
The fundamental argument advanced by Mr Irvin in support of the admission of the additional evidence is, as stated at [16] of submissions, that “the audiogram adds credence to [his] statements”. What is meant is that the audiogram tends to support the evidence of Mr Irvin concerning first knowledge of injury occurring in February 2008. That evidence is to be found in his statement dated 1 December 2009 admitted by the President as additional evidence on the first appeal.
Mr Irvin’s submissions on this appeal effectively address the matters raised in the decisions of Haider and Nowlan between [10] and [18] and further argument is found in submissions recently filed. The first test concerns “reasonable diligence”. The statement of Mr Parkin demonstrates that Mr Irvin, within a week of publication of the determination made in the second arbitration, was able to inform his solicitors that:
(a) the audiogram was conducted at Wyong Medical Centre, and
(b) the audiogram was undertaken on behalf of Advantage Personnel who were “arranging the medical examination for the purposes of his Linfox application”.
Detail of those two facts noted immediately above were first given to the solicitors 16 months after commencement of proceedings. No explanation is given for the delay. Whilst there is evidence that Mr Irvin was not able to locate relevant paperwork, it is plainly open to inference that he has been aware of the matters noted above at all relevant times. The failure by Linfox to produce documents in response to a Direction for Production might be seen as a circumstance requiring further steps to be taken to obtain relevant documents. That failure to produce occurred prior to the conduct of the second arbitration and it is clear that no such steps were taken.
I am of the view that Mr Irvin has failed to establish that the evidence concerning the audiogram could not, with reasonable diligence, have been obtained for presentation at the second arbitration.
The second test requires an assessment as to whether the evidence is such that there must be a high degree of probability that there would be a different verdict. It is true that the audiogram is arguably relevant to proof of matters appering in Mr Irvin’s third statement dated 1 December 2009, being that he was not aware that he suffered industrial deafness until conduct of the audiogram. The difficulty with such argument is that the assertion of being so unaware is, as submitted by Cemex, first made once the difficulties arising from the notice provisions became apparent. Mr Irvin in his first statement dated 17 March 2009, describes his hearing problems dating from “approximately 2006 to 2007”. Significantly, he stated “the ringing in my ears is worse after work”. In his statement dated 23 November 2009 he says that he first started to notice hearing loss at the end of employment with Cemex (that is September 2005).
As is emphasised in Cemex’s submissions, the documentary evidence which pre-dates Mr Irvin’s last statement dated 1 December 2009 makes no suggestion of lack a of knowledge of work related hearing loss up to a date in early 2008. It is this shifting of emphasis that prompted the Arbitrator’s comment which I have noted at [7] above.
I am not persuaded that the evidence which Mr Irvin now seeks to adduce would give rise to a “high degree of probability” that there would be a different verdict as discussed in Haider.
The third test concerns the credibility of the evidence. No question arises concerning the evidence of Mr Parkin. The audiogram, considered with Mr Parkin’s evidence, appears to be genuine. Cemex asserts that it has not had an opportunity to test that evidence. That assertion is challenged by Mr Irvin. Having regard to all relevant circumstances I conclude that no question as to credibility of that evidence has arisen.
It may be seen that I have reached the view that, whilst the additional evidence is credible, Mr Irvin has failed to establish that two of the three matters raised in the matter of Haider are satisfied
It remains to consider the question raised in Nowlan as to whether it is just to admit the further evidence in this case.
Mr Irvin argues that “the ‘fair’ determination of this matter is of paramount importance and that such a determination can only be made if the fresh evidence is admitted”.
The difficulty with that submission is that following the President’s determination of the first appeal Mr Irvin had, with the benefit of those observations made in that decision, an opportunity to properly prepare and present his case. That opportunity was lost given that the proceedings were conducted without presentation of the evidence which I have earlier noted at [9] above.
The transcript of the second arbitration reveals that a great deal of argument was directed to the suggested failure of Cemex to comply with a direction for production (pages 42 to 47 of arbitration hearing on 4 August 2010). It is clear that an election was made to proceed notwithstanding that suggested non-compliance.
A similar decision appears to have been taken concerning the conduct of the second arbitration in the absence of evidence concerning the “Linfox audiogram”.
Cemex has asserted in submissions that it is significantly prejudiced given that it has defended two arbitration hearings and now a second appeal and that it has not had “an opportunity to address or respond to the additional of evidence… or to investigate the veracity of that evidence”.
I have reached the view that Cemex, and indeed LAL, should not be compelled to defend endless litigation concerning this claim. I have earlier (at [25] above) set out those observations made by the President in the first appeal concerning the need to balance public interest concerning the conduct of litigation and the need to ensure that justice is done.
Taking into account all those matters relevant to a determination concerning admission of additional evidence, including the requirement to ensure that justice is attained, I am not persuaded that Mr Irvin should be granted leave to adduce the additional evidence. Accordingly leave to rely on that material is refused. It remains to consider the arguments raised in support of the appeal generally.

GROUNDS OF APPEAL

The first ground of appeal relied upon by Mr Irvin suggests error on the part of the Arbitrator in that he imposed a “burden of proof higher than the appropriate civil standard” concerning the date of injury.
It is clear that the arguments advanced by Mr Irvin as to the Arbitrator’s reasoning concerning “date of injury” address the application of the terms of s 261 of the 1998 Act. The error asserted is that the Arbitrator disregarded circumstantial evidence being the report of Dr Seymour which, it is said, gave “credence” to Mr Irvin’s evidence concerning the making of a claim in or about February 2008.
It was incumbent upon Mr Irvin to adduce evidence before the Arbitrator sufficient to satisfy the Commission, on the balance of probabilities, that he first had knowledge of injury in early 2008. As I have attempted to outline at [27] above, proof of such fact would go some way to excusing Mr Irvin’s failure to comply with the notice provisions found in s 261(1).
It must be noted that the Arbitrator addressed the question of “date of injury” in terms of s 261(6) when considering Mr Irvin’s argument that he “first became aware that he suffered industrial evidence [sic, deafness] in or around February 2008 as a consequence of an application for employment with Linfox” (at page 16 of Reasons). Having raised that question the Arbitrator proceeded as follows:
“Exhibit ‘H’ is relied upon by the Applicant to support this assertion. However a reading of that exhibit does not provide any evidence of that awareness coming into being in February 2008. What it states at paragraph [2] is that a claim for compensation was made against Cemex in February 2008. He also states in paragraph [3] that he wasn’t aware that he had industrial deafness until Linfox refused to employ him. Exhibit H does not clearly state when that was nor does it contradict or seek to explain the earlier statement found in paragraph [10] in exhibit D to the effect that the Linfox job application was at the end of his employment with Cemex. The Applicant is responsible for the way in which he conducts his case. I am therefore left with the evidence advanced by the Applicant in the position that I find that the Applicant first became aware that he had received the injury of industrial deafness (s.261(6) of the 1998 Act) sometime after the last date of employment with Cemex being after the 30^th September 2005. Had the Linfox job application occurred in February 2008 then the claim would have been in time as the claim for compensation against Cemex would have been well within the six months time limit required by s.261(1) of the 1998 Act on account of Cemex having sent the Applicant to Dr Seymour for a consultation in relation to a claim. That however may not be the end of the matter for the Applicant if he was able to bring himself within the provisions of s.261(4) of the 1998 Act being that his failure to make a claim was occasioned by ‘ignorance, mistake, absence from the State or other reasonable cause’.
However the Applicant offers no evidence of such matters nor was it argued for in the written submissions presented by his counsel. Without any further statements from the Applicant that he was wrong in relation to the Linfox job application (which is not supported on either date by any material supplied by Linfox despite a requrest for that to happen), I am in the melancholy position of not being able to find that the Applicant is able to come within the injury deeming provisions of the 1998 Act. Consequently, there will be an award for the First and Second Respondents.”
It seems, but is not entirely clear, that the Arbitrator has found, given the evidence of Dr Seymour’s examination in May 2008, that a claim had been made against Cemex in early 2008. Such conclusion, if reached, was consistent with the views expressed by the President and with my own assessment of the evidence. It also appears that there had been acceptance that Mr Irvin first became aware of injury at the time, which was not established on the evidence, of the Linfox job application. Having regard to the manner in which the Arbitrator has expressed his reasons set forth above, it is proposed to review the evidence to determine the correctness or otherwise of his ultimate determination.
Mr Irvin’s complaint concerning the Arbitrator’s reasoning is that he failed to infer from the circumstantial evidence (Dr Seymour’s report) that he first became aware of injury in or around February 2008. It is put that the Arbitrator wrongly declined to draw such inference given his preferred view that the evidence of Mr Irvin was inconsistent and that such inconsistency was not adequately addressed in the evidence.
Reliance is placed by Mr Irvin upon the decision in Palmer v Dolman [2005] NSWCA 361 concerning the standard of proof in cases where reliance is placed upon circumstantial evidence. Reference is made to the leading judgment of Ipp JA (with whom Tobias and Basten JJA agreed). His Honour, in the course of his discussions, made reference to the decision of the High Court in Bradshaw v McEwans Pty Limited (1951) 217 ALR 1 where it was stated by the Court (at page 5):
“…if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise…”.
Mr Irvin in his submissions on this appeal suggests that the evidence before the Arbitrator was not inconsistent but rather ambiguous. The argument advanced by Mr Irvin concerning the proper evaluation of the circumstantial evidence is to be found at [38] of submissions where it is said:
“In light of the ambiguity of the direct evidence regarding the date of awareness for the purposes of section 261 of the 1998 Act, the appellant submits that the circumstantial evidence draws a clear inference of probability that the appellant became aware of his injury in, or around, February 2008, satisfying the civil standard in accordance with Palmer v Dolman”.
The difficulty with the argument advanced is that Mr Irvin may only be excused from compliance with the notice provisions to be found in s 261(1) should he establish:
(a) he first became aware of injury shortly before making the claim which led to Dr Seymour’s examination, or
(b) should he fail to prove the facts noted in (a) above, that his failure to give notice as required by s 261(1) was occasioned by ignorance, mistake, absence from the state or other reasonable cause and the claim made was made within three years after the date of injury, being September 2005, his last date of employment with Cemex: s 17(1)(a)(ii) of the 1987 Act, and s 261(4) of the 1998 Act.
The last of Mr Irvin’s statements dated 1 December 2009 included the following:
“I confirm that I lodged a claim for my industrial deafness with [Cemex] in approximately February 2008.
I wasn’t aware that I had industrial deafness until Linfox refused to employ me. I was informed that it was because I failed a hearing test and I should lodge a claim for industrial deafness. Up until that time, I thought any hearing loss I had was because of age”.
That evidence is in stark contrast to matters advanced on Mr Irvin’s behalf at the hearing before Arbitrator Adelstein, where his then counsel stated during submissions, immediately after a short adjournment to enable clarification of instructions:
“that in reply to the second respondent’s defence that [Mr Irvin] is out of time in his claim [he] argues that pursuant to s 261(6)… that [he]was aware of his injury on the receipt of the report of Dr Scoppa bearing date 9 December 2008… and on becoming aware that his industrial hearing loss was caused by his employment with the second respondent, then, and only then, could he have been taken to fulfil the provision of 261(6) and he made his claim within six months thereafter and he’s not statute barred”.
I note that there was evidence of a claim made by Mr Irvin on 17 December 2008.
Notwithstanding the absence of evidence concerning the date of Mr Irvin’s dealings with Linfox, it is clear that he now asserts first awareness of injury shortly before making a claim against Cemex. That assertion cannot, in my view, be accepted. I do not accept Mr Irvin’s submission that his evidence found in the three statements “is not inconsistent, but rather, ambiguous”. The statements dated 17 March 2009, 23 November 2009 and 1 December 2009 are, in my view, both inconsistent and ambiguous. The last of those statements also plainly contradicts those matters put to the Commission at the first arbitration hearing in November 2009.
I have reached the view that the vast preponderance of evidence suggests that Mr Irvin was aware earlier than February 2008 of the likely relationship between his significant hearing difficulties, as described by him, and his work conditions with Cemex as described in detail in his early evidence. There is a detailed history of industrial noise exposure and hearing difficulty recorded by Dr Seymour and Dr Scoppa as found in their reports and there is nothing to be found in that evidence which suggests any delay in Mr Irvin recognising the relevance of that exposure to those difficulties.
The bare assertion concerning first awareness noted at [56] above is made only once the evidentiary problems concerning notice became apparent and, in my view, should not be accepted given the inconsistency with the evidence as a whole, and argument previously advanced.
It remains to consider the argument raised concerning suggested “ignorance”. I have earlier expressed my view as to the credibility of Mr Irvin’s assertion that he first made a claim against Cemex in early 2008 (at [51]). That claim, being within three years of September 2005, the deemed date of injury, if made at that time by reason of ignorance, mistake, absence from the State or other reasonable cause in terms of s 261(4), would relieve Mr Irvin of the obligation which arises under s 261(1).
The Arbitrator observed that Mr Irvin offered no evidence of such matters. That is not correct, given Mr Irvin’s apparent argument that it may be inferred from his suggested absence of knowledge that he suffered industrial deafness that he was “ignorant” in terms of s 261(4). I have earlier rejected the argument concerning first awareness, hence no such inference may be drawn.
To avoid his claim being barred it was incumbent upon Mr Irvin to adduce evidence concerning “ignorance”. As was stated by Burke J in Gregson v L and MR Dimasi Pty Ltd 20 NSWCCR 520 at [61]:
“The ignorance referred to is ignorance of the rights deriving from the Act and the obligations imposed by it. Effectively the court is required to be satisfied that the applicant was unaware of those rights and obligations and thus failed to make the requisite claim…”
There is no evidence of any weight before the Commission as to Mr Irvin’s state of knowledge concerning his rights and obligations under the Acts. He has, in my view, failed to discharge the onus upon him to establish ignorance in terms of s 261(4) and is hence not relieved of the obligation to comply with the relevant notice provision.
Argument advanced in respect of the second ground of appeal is founded upon the assumption that the additional evidence was admitted. That material is not before the Commission and matters raised under that ground do not require attention on this appeal.
It follows that Mr Irvin’s failure to comply with the notice provisions concerning claim for compensation against Cemex gives rise to a bar to recovery of compensation, and the Arbitrator was correct to enter an award in favour of that respondent. There has been no challenge raised on this appeal to the Arbitrator’s entry of an award in favour of LAL.
The appeal is dismissed and the orders made by the Arbitrator as found in Certificate of Determination dated 10 January 2011 are, for the reasons stated herein, confirmed.

DECISION

For the reasons given in this decision, the Arbitrator’s determination of 10 January 2011 is confirmed.

COSTS

Cemex argues that the appeal should be found to “be either frivolous and/or brought without proper justification”. Cemex seeks an order for costs against Mr Irvin.

I am not satisfied that the conduct of this appeal may be characterised as frivolous or as being one brought without proper justification and, in the exercise of the discretion granted to the Commission by the Acts, I make no order as to costs on this appeal.

Kevin O'Grady

Deputy President
12 April 2011

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE