James v Civilcon Plant Hire Pty Limited
[2006] NSWWCCPD 276
•23 October 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:James v Civilcon Plant Hire Pty Limited [2006] NSWWCCPD 276
APPELLANT: Dianne James
RESPONDENT: Civilcon Plant Hire Pty Limited
INSURERS: CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC16574-05
DATE OF ARBITRATOR’S DECISION: 15 February 2006
DATE OF APPEAL DECISION: 23 October 2006
SUBJECT MATTER OF DECISION: Adequacy of evidence for ‘nature and conditions’ claim; Application of the principles in Jones v Dunkel [1959] 101CLR 298.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Thomas Mitchell, Solicitors
Respondent: McCulloch & Buggy
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 15 February 2006 is confirmed.
2. No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
Dianne James (‘the Appellant’) is the legal personal representative of Michael James (‘Mr James’), deceased. Mr James was employed by Civilcon Plant Hire Pty Limited (‘the Respondent’) as a Plant Operator.
Mr James died as a consequence of a melanoma, unrelated to his employment with the Respondent, on 8 March 2004.
The Appellant claims that Mr James suffered an injury to his back and both legs on 5 September 1991 when he fell from a truck. Mr James notified the Respondent of his injury on the same day. The Appellant also maintains that Mr James suffered injuries to his back and legs as a consequence of the nature and conditions of his employment with the Respondent.
On 21 July 1994 Mr James commenced proceedings in the former Compensation Court of NSW against the Respondent and also Leighton Contractors Pty Limited (‘Leighton’) being matter No. 31744 of 1994. In those proceedings, Mr James claimed that he suffered injuries in the course of his employment with Leighton on two occasions in December 1983. As against the Respondent, he claimed benefits as a consequence of the injury on 5 September 1991 and also as a result of the nature and conditions of his employment with the Respondent.
Mr James claimed, as against both employers, weekly benefits of compensation from 22 February 2003 “to date and continuing” together with section 60 expenses pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’).
Those proceedings were settled as between Mr James and Leighton by way of redemption in the sum of $80,000.00 on 22 September 1994. Although not clear from documents filed with the Commission, the Arbitrator noted that: “… [Mr James’] proceedings against the Respondent were stood over and eventually were struck out for want of prosecution.”
On 29 September 2005 the Appellant filed an ‘Application to Resolve a Dispute’ in the Commission again seeking, as against the Respondent, weekly benefits compensation from 22 February 1993 to 8 March 2004 (date of death), a “general award” in respect of medical, hospital or related expenses and permanent impairment/pain and suffering compensation in respect of 15% permanent impairment of the back, 7.5% permanent loss of efficient use of the right leg at or above the knee, and 5% permanent loss of efficient use of the left leg at or above the knee. The injuries said to give rise to these entitlements were described as “5 September 1991 – fall from truck, and nature and conditions of employment.”
In its ‘Reply’ filed on 13 October 2005, the Respondent listed as issues in dispute, inter alia, the nature and extent of previous injuries suffered by Mr James during the course of his employment with Leighton and whether any evidence served by the Appellant was sufficient to prove the claim. The Respondent also relied on the provisions of section 67(5) of the 1987 Act.
At a Teleconference held on 8 December 2005, the Appellant confirmed that any claim for benefits pursuant to section 67 of the 1987 Act was abandoned.
The parties attended a conciliation/arbitration hearing on 3 February 2006 where oral evidence was given by the Appellant.
On 15 February 2006, a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The decision of the Arbitrator was as follows:
“1.Award for the Respondent in respect of the Applicant’s claim for weekly payments.
2.Award for the Respondent in respect of the Applicant’s claim for section 60 expenses.
3.Award for the Respondent in respect of the Applicant’s claim for section 66.
4.Section 67 claim is withdrawn.
5.No order as to costs.”
On 8 March 2006 the Appellant filed an ‘Appeal Against Decision of Arbitrator’. The Appellant cites three grounds of appeal as follows:
“A.The Arbitrator erred in law and in using his discretion by failing to consider or adequately consider the Applicant’s nature and conditions of employment claim.
B.The Arbitrator erred in law and in using his discretion by failing to determine there was an adverse inference in accordance with the principles of Jones v Dunkel [1959] 101 CLR 298 in relation to the Respondent’s failure to place the reports of Dr Edwards dated 7 March 2003 and Dr Stephenson dated 10 March 2003 into evidence into the proceedings.
C.The Arbitrator erred in law and in using his discretion by not accepting the evidence of the Applicant including the statement of Dianne James dated 30 November 2005 and the reports of Dr Ghabrial dated 9 October 1995 and 9 February 2004.”
On 31 March 2006, the Respondent filed a ‘Notice of Opposition to Appeal’. Briefly, the Respondent submits that the Arbitrator properly considered all the evidence before him and that his decision should be confirmed.
LEAVE TO APPEAL
No amount of compensation was awarded in this matter. The amount at issue on appeal nonetheless satisfies the requirements of section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The appeal was also filed within the limits prescribed by section 352(4) of that Act.
Leave to appeal is granted.
ON THE PAPERS
Both parties submit that the matter is suitable for a determination ‘on the papers’. 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.”
In the present case, I am satisfied that I have “sufficient information” within the meaning of section 354(6) to determine the issues raised ‘on the papers’, and that this is the appropriate course in the circumstances. I have before me the Arbitrator’s ‘Statement of Reasons’, all the evidence before him, including the transcript, the Commission files, and the detailed submissions by both parties on appeal. I have also had regard to the factors relevant to a determination ‘on the papers’ as set out in Practice Direction No. 1.
THE SUBMISSIONS, EVIDENCE AND FINDINGS
The Arbitrator’s findings and reasons
At paragraphs 15 and 16 of the ‘Statement of Reasons’ the Arbitrator noted the evidence that was taken into account in making his determination. He noted the sworn evidence of the Appellant together with the Application and attached material, the statement of the Appellant dated 30 November 2005 with annexures, and the medical report of Dr Y Ghabrial dated 9 October 1995. The Respondent’s evidence consisted of the ‘Reply’ and attached material, material produced pursuant to directions by Dr Hughes, and material produced pursuant to directions by Corporate Management Services Pty Limited.
The Arbitrator noted that the Respondent’s insurer, CGU Workers Compensation (NSW) Limited (‘CGU’) (wrongly described by the Arbitrator as GIO Workers Compensation Limited) had denied liability for the claim in its Answer dated 30 August 1994 and that “that position is maintained in the present proceedings.”
At paragraph 26, the Arbitrator noted that the Respondent’s solicitor had made written submissions which were provided both to the Arbitrator and the Appellant’s Counsel. He further stated at paragraph 26: “Both legal representatives made oral submissions. The submissions from both parties were detailed, and carefully and responsibly made.”
Thereafter, the Arbitrator proceeded to summarise the parties’ submissions. At paragraph 27 he stated as follows:
“Essentially the Respondent’s submission is that on all of the evidence before me I could not be satisfied that the Deceased [Mr James] sustained a significant back injury on 5 September 1991 or any permanent aggravation of his earlier injury in 1983 with Leighton Contractors, or that the nature and conditions of the deceased’s employment with the Respondent caused any incapacity or symptoms.”
At paragraphs 28 to 31 the Arbitrator summarised the Appellant’s submissions. These were to the effect that statements from two co-workers of Mr James confirmed that the work was particularly heavy. The Arbitrator then noted at paragraph 29 the Appellant’s submission that:
“… the Deceased consistently complained of pain in the performance of this work as detailed in paragraphs 19 to 28 of the Applicant’s statement … There was a frank injury on 5 September 1991 for which the Deceased had five days off work and that the Deceased’s frank injury in 1991 was the precursor in increased pain and incapacity arising from the nature and conditions of his employment with the Respondent.”
At paragraph 30 of the ‘Statement of Reasons’, the Arbitrator noted the Appellant’s submissions that the Respondent had not put into evidence reports of Doctors Edwards and Stephenson who had both examined Mr James on behalf of the Respondent on 4 February 2003.
Extensive submissions had been made (as noted in the transcript) as to the circumstances of Mr James’ dismissal with the Respondent, to which I will refer later. At paragraph 31 of the ‘Statement of Reasons’, the Arbitrator noted the Appellant’s submissions on this issue to the effect that the Appellant’s recounting of Mr James’ version of his dismissal by the Respondent was not necessarily at odds with the statements made by the co-workers.
Under the heading ‘Findings and Reasons’, at paragraph 32 of the ‘Statement of Reasons’, the Arbitrator stated:
“I accept the Submissions on behalf of the Respondent. Consideration of all the material available in these proceedings does not persuade me that the Deceased suffered any significant injury on 5 September 1991, nor a significant aggravation of his 1983 injury.”
At paragraph 33, the Arbitrator accepted the Appellant’s criticism of the statement of Mr Ackroyd, the Managing Director of Civilcon because “… it appears to be based on hearsay, in relation to critical factors.” As to the statement from Stuart Garland, also a plant operator with Civilcon, annexed to the Respondent’s ‘Reply’, the Arbitrator rejected any such criticism. He stated:
“His recall of events at page 3 of the statement seems to me to be quite vivid and it was obviously he who was with the Deceased when the Deceased ‘told me to stick the job up my arse’. Despite the fact that Mr Garland characterised the Deceased as a whinger and a mouth piece, his Statement is quite complimentary of the Deceased, acknowledging that he was a very competent excavator operator. I detect no evidence in Mr Garland’s Statement that he was doing anything other than to accurately recall the events of the Deceased’s employment with the Respondent some two years after the event and I accept the Respondent’s submission that this version of events is more likely to be accurate than the Applicant’s re-counting of the Deceased’s version of those events to him [sic], which she recollected some 13 years after the event.”
Briefly, the evidence from both Mr Ackroyd and Mr Garling was to the effect that Mr James was performing full and normal duties up until the time of his ‘resignation’ on 23 February 1993. Mr Ackroyd stated “as I recall he left our employment as a result of an argument and being insubordinate to Stuart Garland about travelling to a certain job site. He didn’t leave because of any injury.” Mr Garland stated:
“In respect of Mick’s termination of employment his machine was no longer required on the site but another job required this machine away from the area he was working on … the job required him to live away from home for three days. Mick refused to go. He had been made aware through the day that he was required to live away … he refused to live away and told me to stick the job up my arse if I insisted he had to go away. This was the third such time Mick had told me where to stick his job and this time I accepted … I accepted his resignation … on Tuesday 23 February 1993.”
As to the medical evidence, the Arbitrator accepted the report of Dr Meintjes dated 15 August 2004 relied upon by the Respondent. Dr Meintjes took a history that, as a result of the incident on 5 September 1991 Mr James “… sustained ‘bruising to his buttocks’ in that fall. He did not specifically state that he had caused any aggravation to his lower back as a result of that fall.”
That opinion was reinforced by Dr Roland Hicks in a report dated 9 September 1991 included in the Appellant’s Application. Dr Hicks saw Mr James on 9 September 1991 and stated “… he has persisting soreness in the right buttock but his underlying low back condition is not significantly worse than before the fall.” Dr Hicks certified Mr James “… fit to return to work tomorrow.”
At paragraph 35, the Arbitrator also noted reference in the report of Dr Meintjes to a further injury to Mr James’ back in 1992. Dr Meintjes recorded:
“Looking through the medical reports, which the patient had brought with him, I see in a report from Dr Hicks dated 15 September 1993, that he had in fact suffered a further injury to his back in June 1992. Apparently, he had bent over at home to open a roller door and had felt ‘acute pain in his lower back and was unable to straighten’. The pain in the lower back was so severe, he needed help to get back into the house and it required him to rest over that weekend … the patient did not mention this latter incident to me when relating his history.”
It is noted that no report from Dr Hicks dated 15 September 1993 was included in the Appellant’s Application.
As to this evidence, the Arbitrator stated at paragraph 34:
“I accept the submissions by the Respondent that these significant issues clearly had not been made known to Dr Ghabrial and were not recorded in his report of 9 February 2004. Accordingly, I believe that his views in relation to the nature and conditions of the deceased’s employment with the Respondent are not persuasive as they are founded on an incorrect and incomplete history.”
At paragraph 36 of the ‘Statement of Reasons’, the Arbitrator also noted various time sheets and an ‘Absenteeism Report’ included in the Respondent’s ‘Reply’ which confirmed that Mr James had approximately five days off work following the incident on 5 September 1991 and a further period of five days off between 15 and 21 June 1992 due to his back and “thereafter went back to work fulltime and continued to work overtime. To my mind, this is compelling evidence that the incident in 1991 was not productive of any lasting injury or impairment.”
As to the Jones v Dunkel argument, the Arbitrator stated at paragraph 37 as follows:
“I do not intend to draw any inference from the Respondent’s failure to put the reports of Doctors Edwards and Stephenson into evidence. Nor do I intend to draw any inference from the Deceased’s discontinuance of the prior proceedings and the fact that these proceedings were not commenced and concluded during his lifetime. Any inference in either case would in my view be quite speculative and unwarranted”.
As a consequence, the Arbitrator concluded at paragraph 38: “Accordingly, on the balance of probabilities I am not persuaded that the Deceased after that date [23 February 1993] was totally or partially incapacitated for work as a result of his injuries on 5 September 1991.”
THE GROUNDS OF APPEAL
The ‘Nature and Conditions of Employment’ Issue
The Appellant submits that the Arbitrator failed to consider her statement dated 30 November 2005 in relation to the nature and conditions of employment claim wherein she specifically referred to observations of and conversations with Mr James.
The Appellant also submits that the Arbitrator failed to adequately consider the reports of Dr Ghabrial dated 9 October 1995 or 9 February 2004 wherein, the Appellant submits, “… it is detailed that the nature and conditions of the Applicant’s employment with the Respondent aggravated his condition.” The Appellant submits that the Arbitrator has “disregarded” Dr Ghabrial’s report of 9 February 2004, notwithstanding that it was the most recent and up to date report.
The Appellant also submits that the Arbitrator accepted the report of Dr Meintjes dated 15 August 1994 notwithstanding that doctor’s opinion that “I would suggest that this patient undergo a further CT Scan of the lumbo-sacral disc, before any decision is made regarding liability.” Further the Appellant submits that Dr Meintjes’ opinion “is only based upon the accident in September 1991” and does not address “whether the nature and conditions of the Applicant’s employment affected his condition at all.”
In summary, the Appellant submits:
“Accordingly, the only medical evidence as to whether the nature and conditions of the Applicant’s employment affected his condition is as contained in the medical reports of Dr Ghabrial. Such medical opinion is uncontested by the Respondent.”
In her statement dated 30 November 2005, the Appellant stated that “from 1983 until 5 September 1991 my husband would complain about pain in his back and legs.” Nonetheless, it must be remembered that Mr James suffered a significant back injury in the course of his employment with Leighton and redeemed his entitlements to compensation for the sum of $80,000.00.
The Appellant further stated that following the incident on 5 September 1991, Mr James’ “… complaints of pain became much more significant”, and that Mr James complained that “…everything I do hurts my back. My pain has been much worse since that fall.”
Whilst Mr James may well have complained of back pain following his injury in December 1983 with Leighton, the Appellant’s statements are in stark contrast with the contemporaneous medical evidence of Dr Hicks that Mr James’ “… underlying low back condition is not significantly worse than before the fall.” Moreover, the clinical records from Mr James’ general practitioner, Dr Bassett (now Dr Hughes) which covered a period from 1975 to 1993, although a little difficult to decipher, do not seem to show any complaints of back pain since approximately February 1987, pre-dating his employment with the Respondent.
In her oral evidence before the Arbitrator, the Appellant gave evidence to the effect that from about 1988, she and her family, including Mr James, attended a different general practice because the family had moved. The Appellant was unable to say how frequently Mr James attended but did state “… if it was anything to do with his back, it would have been there or, other than that, Dr Ghabrial or Dr Hicks …” (see page 2 transcript). That was the extent of the oral evidence before the Arbitrator.
No records were produced from this other medical practice. The Appellant was unable to recall the name of the general practitioner. I also note that the medical records from Doctors Basset and Hughes disclose family attendances at that practice up until 1993 which seems to conflict with the oral evidence of the Appellant.
As to the reports of Dr Ghabrial, these were clearly conflicting. In a report dated 21 July 1994, Dr Ghabrial opined that:
“Mr James sustained an injury to his L4/5 disc at work in December 1983. Clinical assessment and investigations confirmed a prolapsed L4/5 intervertebral disc. He remains unfit for any work involving any lifting over 10 kilograms, excessive bending as well as sitting for lengthy periods. He is not fit for driving for long distances… I believe that his disabilities are related to his injury to his back in December 1983. The permanent impairment of his back is assessed at 30%.”
No reference was made in that report either to the incident in September 1991 or to the impact of the nature and conditions of Mr James’ employment on his condition. Mr James had last worked for the Respondent in February 1993.
In a report dated 9 October 1995, Dr Ghabrial stated:
“Mr James reported that his condition regarding his lower back and right lower limb have deteriorated since I saw him last on 20 February 1995. Mr James has been on the Disability Pension since February 1993, having been declared not to be fit for any type of work.”
Dr Ghabrial went on to note in that report: “Mr James continued the symptoms and clinical features which deteriorated from 1985 when he started with Civilcon until February 1993.” Dr Ghabrial assessed permanent impairment of the back at 35%, “15% of which relates to work done since 1985.” He concluded that his condition was “… related to his injuries in 1983 and the subsequent type of work he was performing until 1993.”
In a report dated 9 February 2004, Dr Ghabrial made reference to the injury with Leighton on 20 December 1983. He recorded “deterioration of his clinical features”, when he was seen on 21 July 1994. Mr James was seen again on 9 October 1995 and not again until May 2003. His last consultation was on 16 September 2003. Dr Ghabrial concluded the permanent impairment of the back was now 40% “(25% as a result of the injuries sustained on 20 December 1983 and 15% as a result of the nature and conditions of his employment between 1983 and until retirement in 1993)”. Dr Ghabrial went on to make assessments in relation to both lower limbs and concluded that “… his present clinical features, disabilities and impairments are the result of his work related injury of 1983, as well as the nature and conditions of his employment between 1983 and until retirement in 1993.”
There were some obvious difficulties with the reports of Dr Ghabrial as highlighted by the Arbitrator at paragraph 34 of the ‘Statement of Reasons’. Not only did Dr Ghabrial have no information as to the “nature and conditions” of Mr James’ employment, he had no history of the injury on 5 September 1991, nor of the apparent injury at home in 1992 to which Dr Hicks referred. Moreover, there was no explanation as to why, in July 1994, Dr Ghabrial thought that all of Mr James’ disabilities were as a consequence of the injury with Leighton in December 1983, but in October 1995 apparently changed his mind, attributing part of his problem to “the subsequent type of work he was performing until 1993”.
As a consequence, the Arbitrator concluded at paragraph 34:
“… these significant issues clearly had not been made known to Dr Ghabrial and were not recorded in his report of 9 February 2004. Accordingly, I believe that his views in relation to the nature and conditions of the deceased’s employment with the Respondent are not persuasive as they are founded on an incorrect and incomplete history”.
That conclusion was entirely open to the Arbitrator in light of the other medical evidence to which I have referred, and indeed the Respondent’s records which demonstrated that Mr James had only one short period off work in 1992 following the episode in September 1991.
Mr James may well have complained of back pain as documented by the Appellant in her statement, but the difficulty confronting the Arbitrator was to determine whether or not those complaints related to the clearly significant injury sustained in December 1983 in the course of employment with Leighton or to the unidentified ‘nature and conditions’ of employment with the Respondent.
As to the report of Dr Meintjes dated 15 August 1994, the Appellant, in her submissions, quotes one sentence only from that report. What Dr Meintjes said was this:
“This patient has symptoms and signs of a Lumbar Disc Lesion. I am however, not too convinced about the severity of the disc lesion and I would suggest that this patient undergo a further CT Scan of the lumbo-sacral disc, before any final decision is made regarding liability … in my opinion however, any injury this patient may have in relation to his lumbo-sacral spine, would be related to the alleged incidents which occurred when working as a brick layer in December 1983. The incident which occurred in Mr James’ home in 1992 would have caused some aggravation to his lower back condition.”
Dr Meintjes concluded: “In my opinion, the fall which this patient had whilst in the employ of … Civilcon … would not have caused any significant aggravation of that [1983] injury …”
It was difficult then for the Arbitrator to place much reliance on the reports of Dr Ghabrial given that he had no history whatsoever of the injury on 5 September 1991 nor indeed the injury in June 1992.
It is somewhat spurious of the Appellant to suggest that Dr Meintjes’ opinion “is only based upon the accident in September 1991” in the absence of any history from Mr James to Dr Meintjes of any aggravation or exacerbation of his condition as a consequence of the nature and conditions of his employment. In any event, Dr Meintjes had obtained a history that the principal injury in September 1991 was “bruising to his buttocks” and noted that Mr James “… did not specifically state that he had caused any aggravation to his lower back as a result of that fall”.
Dr Meintjes recorded Mr James as stating: “He eventually stopped work on 21.2.93, because of continuing symptoms in relation to his lower back. He said he was unable to continue working.” Dr Ghabrial took a history that Mr James had been on the disability pension since February 1993, “… having been declared not to be fit for any type of work.” . In her statement dated 30 November 2005, the Appellant stated that:
“In February 1993 my husband returned home and stated to me as follows, or words to the same effect: ‘That’s it I’ve resigned. I just can’t take the pain any more. They wanted me to lay turf today and I told them I couldn’t do it and they told me I had to.’”
These statements are in stark contrast to the evidence of Messrs Ackroyd and Garland as to the circumstances of Mr James’ cessation of employment with the Respondent.
It is clear from the Arbitrator’s statement at paragraph 16 of his ‘Statement of Reasons’ that the Appellant’s statement, together with the annexures contained therein, was taken into account by him, but there was clearly considerable additional evidence which to some extent contradicted the Appellant’s assertions. Moreover, paragraph 29 demonstrates that the Arbitrator was cognizant of the contents of that statement in noting the submissions made by the Appellant’s Counsel on that particular subject.
The onus was on the Appellant to demonstrate that Mr James had suffered incapacity and/or impairments as a consequence of the ‘nature and conditions’ of his employment with the Respondent. That evidence was scant indeed, being effectively only the statement of the Appellant and the reports of Dr Ghabrial. Neither the Appellant nor Dr Ghabrial gave any description of the ‘nature and conditions’ of employment or its impact on Mr James’ condition. The discrepancies in that evidence which clearly contradicted the contemporaneous medical evidence and lay evidence from the Respondent was sufficient to entitle the Arbitrator to conclude that the Appellant had failed to discharge that onus. As I said in Issott v North Sydney Leagues Club Limited t/as Seagulls Club [2005] NSWWCCPD 38:
“It is not sufficient for a worker to merely cite the duties, ie, ‘nature and conditions of employment’ in grounding an allegation of ‘injury’. Similarly, an allegation of ‘on going symptoms’ does not of itself constitute an ‘injury’. There must be clear evidence of aggravation, exacerbation, acceleration or deterioration by those duties to constitute ‘injury’.”
Whilst there was some evidence in the statement of Mr Garland as to the type of work performed, there was really no evidence before the Arbitrator to assist him in determining whether or not those duties were sufficient to ground an allegation of ‘injury’ particularly in circumstances where the weight of medical evidence did not support such a conclusion.
The Jones v Dunkel Issue
The Appellant submits that the Arbitrator erred in failing to determine that an adverse inference ought to be drawn in accordance with the principles of Jones v Dunkel [1959] 101 CLR 298 in relation to the Respondent’s failure to tender reports of Dr Edwards dated 7 March 2003 and of Dr Stephenson dated 10 March 2003.
In her statement dated 30 November 2005 at paragraph 34, the Appellant stated “on 4 February 2003 I attended with my husband upon Dr Kim Edwards and Dr B J Stephenson as requested by the solicitor for the Respondent.”
The Appellant submits that the Arbitrator ought to have inferred that the reports of Dr Edwards and Dr Stephenson would not have assisted the Respondent “… as there is no explanation by the Respondent for the failure of the Respondent to rely upon these reports which was the most up to date evidence the Respondent had in relation to the Applicant’s condition.”
As stated earlier, the Arbitrator declined to draw any such inference since it would be “… quite speculative and unwarranted.”
It was the Respondent’s position, as set out both in its written submissions before the Arbitrator and in submissions on appeal, that the incident on 5 September 1991 was relatively minor and that there was no evidence to support the contention that Mr James’ condition in some way was aggravated or deteriorated as a consequence of the nature and conditions of his employment.
The Respondent submits that this ground of appeal “… is predicated on the assumption that the Respondent must disprove the Appellant’s allegation. The Respondent submits that the onus falls upon the Appellant to prove that the deceased suffered injury in the course of his employment with the Respondent. The Arbitrator found that, on the evidence available, no such injury occurred. Accordingly, the Respondent submits that where a worker has not served sufficient evidence to establish that an injury has occurred, there is no reason for a Respondent to serve any further evidence in relation to that issue.”
Although not entirely clear, I assume that the Respondent is referring to the injury by way of ‘nature and conditions of employment’. The Respondent conceded that an incident occurred on 5 September 1991 but claimed that it was neither productive of any ongoing symptoms nor of incapacity.
In Jones v Dunkel [1959] 101 CLR 298 the High Court considered the question of what inferences may be drawn in relation to the absence of certain evidence. As Windeyer J said at page 320:
“The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party’s fear of exposure. But the propriety of such an inference in general is not doubted.”
The circumstances under which the rule in Jones v Dunkel is applicable were recently considered by the Court of Appeal in Wollongong Fabrications Pty Limited v Ramsbottom [2006] NSWCA 279. Tobias JA stated: “… the principle may be invoked for a deficiency in the evidence of a party bearing the legal onus of proving an issue.” Tobias JA went on to quote from Glass JA in Payne v Parker [1976] 1 NSWLR 191 at 201 noting that, whether the principle can or should be applied depends upon satisfaction of three conditions, namely:
“(a)The missing witness would be expected to be called by one party rather than the other;
(b)His evidence would elucidate a particular matter;
(c)His absence is unexplained.”
Glass JA went on at 202 as follows:
“I would think it insufficient to meet the requirements of principle that one party merely claims that the missing witness has knowledge, or that, upon the evidence, he may have knowledge. Unless, upon the evidence, the tribunal of fact is entitled to conclude that he probably would have knowledge, there would seem to be no basis for any adverse deduction from a failure to call to him.”
In the present case, the “legal onus of proving an issue” lay with the Appellant, ie, the Appellant was required to establish that Mr James suffered ‘injury’ and/or ‘incapacity’. Similarly, as Glass JA indicated, it is insufficient for the Appellant merely to claim that Doctors Edwards and Stephenson may have relevant “knowledge” of the issues to be determined.
The Arbitrator determined that the Appellant’s evidence was not persuasive either as to injury simpliciter or to injury by way of nature and conditions of employment, and indeed, to the issue of ‘incapacity’. In the circumstances, the Arbitrator was entitled to reject the submission that an adverse inference ought be drawn from the Respondent’s failure to rely upon the reports of Doctors Edwards and Stephenson such that I am not satisfied that the Appellant has demonstrated any error by the Arbitrator on this issue.
The Evidence of the Appellant and Dr Ghabrial
I have dealt with this issue to some extent in the preceding paragraphs. The Appellant submits that:
“The Arbitrator did not consider the Applicant’s statement at all. The only mention of the Applicant’s evidence is in paragraph 31 of the Arbitrator’s Reasons in relation to the termination of the Applicant’s deceased husband’s employment. The Arbitrator gives no reason for not accepting or not preferring Mrs James’ evidence.”
As I said earlier, there is no doubt that the Arbitrator had before him the Appellant’s statement dated 30 November 2005. The contents of that statement were the subject of submissions by the Appellant’s Counsel contained both in the transcript and summarised by the Arbitrator at paragraph 29 of his ‘Statement of Reasons’.
At paragraph 32 the Arbitrator stated: “I accept the submissions on behalf of the Respondent. Consideration of all the material available (my emphasis) in these proceedings does not persuade me that the deceased suffered any significant injury on 5 September 1991, nor a significant aggravation of his 1983 injury”.
It should be born in mind that the Appellant’s statement was made almost 13 years after Mr James ceased employment with the Respondent. There is no suggestion that the Arbitrator has specifically rejected that evidence, rather, he accepted the submissions made by the Respondent after consideration of “… all of the material available …” The Appellant’s statement was inconsistent with the medical evidence so far as the nature and extent of the injury on 5 September 1991 was concerned, there was no reference to the apparently significant incident at home in 1992 to which Dr Hicks referred, and her statement as to the circumstances surrounding Mr James’ cessation of employment was contradicted by the Respondent’s representatives. It is clear that the Arbitrator took the statement into account in reaching his decision particularly given his summation of the Appellant’s Counsel’s submissions on aspects of the Appellant’s statement as set out in paragraph 31 of the ‘Statement of Reasons’.
To succeed in a claim for compensation, a worker must establish that he sustained an injury within the meaning of section 4 of the 1987 Act. That section provides as follows:
“4 In this Act –
Injury –
(a)Means personal injury arising out of or in the course of employment;
(b)Includes –
(i) a disease which is contracted by a worker in the course of
employment and to which the employment was a contributing factor; and
(ii) The aggravation, acceleration, exacerbation or deterioration
of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration …”
No reference is made in that section to an injury resulting from the ‘nature and conditions’ of employment, although this is a term widely used in the context of determining whether or not an injury arose “out of or in the course of employment”.
There are innumerable decisions dealing with the definition of ‘injury’. Generally speaking, and particularly in respect of injuries received prior to 12 January 1997, it is appropriate that there be some causal relationship between employment and injury. If it appears that the fact of the worker having been employed in the particular job caused, or to some extent contributed to, the injury, then the injury can be said to have arisen out of the employment. (See Nunan v Cockatoo Docks & Engineering Co Pty Limited [1941] 41 SR (NSW) 119 per Jordan CJ).
In the present case, the Appellant’s recollection that Mr James regularly complained of symptoms following the fall in September 1991 was not sufficient to ground an allegation that the ‘nature and conditions’ of his employment with the Respondent resulted in an injury. It was necessary to demonstrate that Mr James’ duties either following the incident on 5 September 1991 or indeed over the entire period of employment in fact caused or contributed to his back condition.
In my view, the evidence fell short of this requirement. Evidence of an increase in symptoms is not sufficient to establish ‘injury’. As I said earlier, there is no explanation for Dr Ghabrial’s change of view between July 1994 and October 1995 as to the contribution by Mr James’ employment with the Respondent to his condition, particularly given the fact that Mr James had ceased employment with the Respondent in February 1993.
CONCLUSION
Whilst it is fair to say that the Arbitrator’s consideration of the ‘nature and conditions’ claim was somewhat scant, it is not such that the decision should be set aside. As Deputy President Fleming said in Wyong Shire Council v Patterson [2004] NSWWCCPD 45, “the Arbitrator’s decision must be read as a whole … and without combing it for error …” Whilst the Arbitrator did not make specific reference in his reasons to that portion of the Appellant’s statement purportedly supporting a ‘nature and conditions’ claim, he certainly had regard to the evidence of Dr Ghabrial and, quite properly, concluded that “… his views in relation to the nature and conditions of the Deceased’s employment with the Respondent are not persuasive as they are founded on an incorrect and incomplete history.” The reasons for the Arbitrator’s findings are clearly evident from reading his decision as a whole.
I am not persuaded that the Appellant has demonstrated any error on the part of the Arbitrator in his ultimate determination.
He who asserts must prove. The evidentiary onus was on the Appellant to prove to the Arbitrator that either or both the injury on 5 September 1991 and the nature and conditions of Mr James’ employment caused or contributed to his injuries. The evidence fell short of that requirement; it was insufficient to establish any ‘injury’ within the meaning of section 4 of the 1987 Act as a consequence of the ‘nature and conditions of employment’ with the Respondent.
DECISION
The Decision of the Arbitrator dated 15 February 2006 is confirmed.
COSTS
No order as to costs of the appeal.
Deborah Moore
Acting Deputy President
23 October 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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