Jennifer Tyack formerly t/as Country Kidz v Cain
[2007] NSWWCCPD 119
•23 May 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Jennifer Tyack formerly t/as Country Kidz v Cain [2007] NSWWCCPD 119
APPELLANT: Jennifer Tyack formerly t/as Country Kidz
RESPONDENT: Sharmaine Cain
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC7179-06
DATE OF ARBITRATOR’S DECISION: 8 September 2006
DATE OF APPEAL DECISION: 23 May 2007
SUBJECT MATTER OF DECISION: Procedural fairness; admissibility of late evidence; injury; whether decision supported by the evidence and weight of evidence; errors of fact, law and discretion; inadequate reasons for decision, and onus of proof of injury.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant Employer: Bartier Perry Solicitors
Respondent Worker: Matthews Williams
Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 8 September 2006 is revoked. The matter is remitted to the same Arbitrator to determine afresh in accordance with these reasons, and the findings made herein.
No order is made as to the costs of this appeal.
BACKGROUND
Ms Sharmaine Cain, the Respondent Worker, was employed by the Appellant Employer, Jennifer Tyack formerly trading as Country Kidz (‘Country Kidz’), as a part-time shop assistant. Country Kidz was insured by QBE Workers Compensation (NSW) Limited (‘QBE’) at the relevant time.
Ms Cain commenced employment with Country Kidz in September 2004. She alleges that on 8 December 2004 she suffered injury to her back and left leg as a result of tripping over while attempting to exit the window display area, in the course of her employment with Country Kidz. Documents in the relevant Commission file indicate variously that both 8 December and 9 December 2004, are each the date of the alleged injury. However, Ms Cain’s ‘Application’ filed in the Commission and the Arbitrator indicate that the date was in fact, 8 December 2004, and I accept that to be correct. Ms Cain claims to have given notice of the injury to Country Kidz on the same day. On 9 December 2004 she attended the Condobolin Medical Centre and consulted Dr M Kyrillos who prescribed analgesic and anti-inflammatory medication. He issued her with a certificate for selected duties. She claims that she took two weeks recreation leave, and that her employment was terminated on 17 December 2004. However, a fax dated 29 April 2005 from Country Kidz states that Ms Cain verbally resigned on 10 December 2004.
On 4 January 2005 Ms Cain lodged a claim for compensation with QBE for injuries sustained on 8 December 2004, alleging injury to her lower back. On 6 January 2005 QBE wrote to Ms Cain and confirmed that although she was fit for selected duties, her employer, Country Kidz, was unable to provide her with suitable employment. QBE further advised that while seeking suitable employment, Ms Cain was entitled to receive weekly payments of $311.63 gross for a period of 52 weeks effective from 6 January 2005 in accordance with section 38 of the Workers Compensation Act 1987 (‘the 1987 Act’), and that, “In order to receive benefits you will be required to apply for at least 3 jobs per week and advise us of the details of your attempts to find suitable employment on a fortnightly basis”.
On 25 January 2005 QBE wrote to Ms Cain requiring her to enter into an Injury Management Plan, and was advised that failure to comply would result in a suspension of her benefits.
On 11 April 2006 Ms Cain wrote to QBE claiming compensation pursuant to section 66 of the 1987 Act, in the sum of $8,750 in respect of 7% whole person impairment in relation to her back.
On 9 May 2006 Ms Cain lodged an ‘Application to resolve a Dispute’ in the Commission seeking weekly benefits compensation.
On 20 July 2006 QBE advised Ms Cain that it denied liability for her claim for weekly benefits and claims she made pursuant to sections 60 and 66 of the 1987 Act on the basis that it disputed that she suffered an injury arising out of or in the course of her employment on or about 8 December 2004.
A hearing took place before an Arbitrator on 10 August 2006, and on 8 September 2006 the Arbitrator issued a ‘Certificate of Determination’ and ‘Statement of Reasons for Decision’.
On 6 October 2006 Country Kidz lodged an ‘Appeal against Decision of Arbitrator’ with the Commission.
On 26 October 2006 Ms Cain lodged a ‘Notice of Opposition to Appeal Against Decision of Arbitrator’ with the Commission.
THE DECISION UNDER REVIEW
The Arbitrator’s Determination dated 8 September 2006 records the following orders:
“1.That the Respondent pay the Applicant weekly compensation at the rate of $100.62 from 1 May 2006 to date and continuing, the Respondent to have credit for any payments made.
2.That the Respondent pay the Applicant’s costs as agreed or assessed.
3.That this matter be certified as complex.”
ISSUES IN DISPUTE ON APPEAL
The issues in dispute in the appeal amount to whether the Arbitrator erred:
·in improperly eliciting and admitting late evidence from Ms Cain during the arbitration proceedings, amounting to a lack of procedural fairness;
·in finding that Ms Cain suffered an injury arising out of or in the course of her employment on 8 December 2004, as such finding is claimed to be against the evidence and the weight of the evidence, and was affected by legal, factual and discretionary error;
·in providing inadequate reasons for his decision, which did not comply with Rules 70 and 73 of the Workers Compensation Commission Rules 2003 (‘the 2003 Rules’), and which amounted to a failure to determine the dispute according to law, and
·in misstating the onus of proof in relation to the issue of injury.
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.”
Country Kidz and Ms Cain submit that the Appeal can be decided ‘on the papers’.
Having regard to the parties’ submissions and all of the relevant 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 TO APPEAL
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 6 October 2006, within 28 days of the Arbitrator’s decision, in compliance with section 352(4) of the 1998 Act.
Section 352(2) of the 1998 Act provides:
“The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount in the decision appealed against.”
The amount in issue on appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. The whole of the amount of compensation in the decision appealed against is at issue on appeal. Section 352(2)(b) of the 1998 Act is also satisfied.
Leave to appeal is granted.
FRESH EVIDENCE
Fresh evidence on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No 6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“-a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
Country Kidz’ solicitors seek leave to introduce fresh, or perhaps more specifically, “additional” evidence, in this appeal.
The first item is the ‘centre board’ that formed part of the boundary of the window display in the Country Kidz shop, over which Ms Cain alleged, in responding to a question by the Arbitrator, she tripped on 8 December 2004. Country Kidz submit that this is the same centre board as shown in the schedule of photographs filed with its ‘Application to Admit Late Documents’ dated 10 July 2006. The covering letter states that copies of the documents were served on Ms Cain’s solicitors by letter, via express post, on the same date.
The second item of additional evidence is a further statement of Jennifer Tyack dated 5 October 2006 confirming that the centre board, which Country Kidz seeks leave to introduce as fresh or additional evidence, is the centre board that was situated between the two pieces of lattice over which Ms Cain alleges she tripped and which is shown in photographs filed with the ‘Application to Admit Late Documents’ dated 10 July 2006.
Country Kidz submits that the reason why this evidence, specifically the centre board, was not given during the proceedings before the Arbitrator, is that during the arbitration proceedings there were inconsistencies in Ms Cain’s evidence, including her various accounts of how she tripped, specifically, whether she caught her foot on the lattice at the end of the display or whether she tripped as she attempted to step over the centre board between the two pieces of lattice. Towards the end of the arbitration proceedings the Arbitrator indicated that he would ask Ms Cain some questions to clarify the circumstances of her alleged injury. County Kidz’ solicitor submits that he strenuously objected to any questions being asked at that late stage of the proceedings in circumstances where there was no representative of Country Kidz present to have the opportunity of investigating or responding to any evidence Ms Cain gave in answer to the Arbitrator’s questions. Nevertheless, the Arbitrator proceeded to ask Ms Cain questions about the manner in which she injured herself. In her answer, Ms Cain stated that she stepped over the centre board, and that her left foot was on the ledge on the interior side of the centre board. When she went to step out her right foot clipped “the lattice”. In responding to a question in clarification by the Arbitrator, she further stated:
“There’s a floorboard in.[sic] That was about that big. I stuck my left foot on that floorboard. The customer was over here near a pole, and I went to, like, hop out, and my right foot clipped this bit of lattice, which it is lattice under that material there, and I clipped and I fell to my left-hand side and I got up very quickly.” [Page 29 of the Transcript of proceedings. See also, paragraph 34, below].
Country Kidz submits that Ms Cain’s evidence that the centre board was lattice covered with material was not previously given by her in her statements. In the circumstances, Country Kidz submits that it could not reasonably have anticipated the need to have the centre board present as an exhibit at the proceedings before the Arbitrator.
It is argued by Country Kidz that this fresh evidence should be admitted “to overcome the procedural unfairness visited upon the employer by the arbitrator’s misguided decision to elicit late oral evidence from the worker and to admit that late oral evidence as evidence in the proceedings and to base his primary finding of injury on that late oral evidence in circumstances where the employer had no opportunity to respond to at the arbitration hearing.” Country Kidz submit that the Presidential member determining the matter should be given the opportunity to “see and feel for himself or herself” that the centre board was not a piece of lattice. Country Kidz states that if the late oral evidence elicited by the Arbitrator at the conclusion of the arbitration hearing is exposed as false, then the evidence upon which the Arbitrator based his findings of injury in favour of Ms Cain must be rejected. Country Kidz submit that at the very least, the Commission may find that Ms Cain has not discharged the onus upon her to establish that, on the balance of probabilities, she suffered an injury arising out of or in the course of her employment on 8 December 2004 in the manner alleged, or at all.
Country Kidz submit that the significance of the admission of the centre board as fresh evidence, is that someone who had worked near and around this centre board would have known that it was a flat piece of board and not a piece of lattice under the material with which it was covered, and that such inaccurate evidence cannot be explained by “vagaries of memory in circumstances where the worker has given a number of histories that her foot actually became caught in lattice or trestle at the time of her alleged injury.” The centre board should therefore be admitted for the avoidance of injustice.
In reply, Ms Cain submits that the centre board should not be admitted. Ms Cain states that in her statement dated 3 May 2006 she said that she fell and injured herself when she stepped down from the display window, because her right leg caught on some lattice. She further submits that in her further statement (dated 27 July 2006 – paragraph 1.21) she confirmed that she clipped her right leg on the lattice. At the arbitration hearing Country Kidz was allowed to introduce the photographs attached to its application to admit late documents dated 10 July 2006, which included a number of photographs of the window display area. It was at this point of the proceedings that the Arbitrator asked Ms Cain in relation to one of the photographs, if this is what she had tripped over. Country Kidz objected to this questioning, however the Arbitrator stated (at page 29 of the Transcript):
“Arbitrator: Okay. Mr Underwood, I’m charged with – this process is an inquisitorial process, and I can inform myself by whatever means I think fit to obtain as clear a view of the matter as I can. You have introduced these photographs into evidence and you’ve made numerous and lengthy submissions about them. I’m just not clear. There’s just one matter I would like to clear up with the applicant”
…
Applicant: There’s a floorboard in. [sic]. That was about that big. I stuck my left foot on that floorboard. The customer was over here near a pole, and I went to, like hop out, and my right foot clipped this bit of lattice, which it is lattice under that material there, and I clipped and I fell to my left-hand side and I got up very quickly.
Arbitrator: Okay.
Applicant: There is another entry that we used to use but – which we always used, but there was a Christmas tree there at the time, and that’s why I used that as a new entry.
Arbitrator: Okay. Thank you for that.”
Ms Cain submits that Country Kidz was then allowed to make further submissions in relation to the line of questioning and the photographs (pages 29 to 30 of the transcript of proceedings). Ms Cain submits that the photographs clearly showed the centre board in relation to the lattice and the Arbitrator was entitled to ask her questions to clarify the photographic evidence in accordance with the Registrar’s Guidelines for the Conciliation/Arbitration Process [‘The Practice of the Conciliation/Arbitration Process in the Workers Compensation Commission’] which entitles the Arbitrator to properly make a direct enquiry of any witness.
Furthermore, Ms Cain submits that the transcript of proceedings (at page 29) adequately explains, by reference to the photographic evidence, how the accident occurred and this clarification was consistent with Ms Cain’s previous statements, in which she states that she did not trip over the centre board but in each case her consistent evidence was that she clipped her right leg on the lattice. Therefore, the admission of the centre board as fresh evidence is misconceived and would not be of any further assistance. Notwithstanding this objection, it is clear that Country Kidz has made this application to admit the centre board into evidence, because of the specific comment made by Ms Cain when responding to the Arbitrator, who sought to clarify his understanding of exactly what occurred.
This application is consistent with the essence of Ms Cain’s assertion, and for that matter the Arbitrator’s stated view that the further exchange set out at page 29 of the transcript of proceedings before the Arbitrator, was essentially by way of clarification. The Arbitrator said (at page 29), “I’m just not clear. There’s just one matter I would like to clear up with the applicant.” That being so, and in light of the photographic evidence that was already before the Arbitrator, the centre board is evidence of the same nature. Given that Ms Cain was permitted to assist the Commission by way of clarification, which gave rise to her specific statement that is now challenged, it would appear to be fair and appropriate for Country Kidz to be extended the same opportunity, to respond to the same point, on appeal. Country Kidz specifically challenges Ms Cain’s assertion made before the Arbitrator that “… it is lattice under that material there…” (Page 29 of the transcript).
A Presidential member can receive further evidence by leave, but not routinely even for later “clarification” purposes (see discussion in Raisebore Pty Limited v Brendyn Wilson [2003] NSWWCCPD 40). However Country Kidz’ application goes further than mere clarification. It’s purpose is to attempt to rebut certain aspects of the allegedly critical statement made by Ms Cain, in the context of a broader response to a question put to her by the Arbitrator, which gave rise to a detail that it alleges, had not arisen earlier in those proceedings. This evidence may or may not be critical, depending upon the weight to be given to it, if admitted on appeal.
The factors that weigh in favour of the exercise of a discretion to admit fresh or additional evidence in an appeal include the following:
· If the request is refused, whether a substantial injustice will result to the party who seeks to have the evidence admitted (Radnedge v Government Insurance Office of NSW (1987) 9 NSWLR 235 (‘Radnedge’);
· that the evidence could not have been discovered, with reasonable diligence, at the time of the original proceedings (Radnedge); Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80, and
· that the evidence is of such probative value that there is a high degree of probability that it would lead to a different outcome in the case (Greater Wollongong City Council v Cowan (1955) 93 CLR 435; Warr v Santos [1973] 1 NSWLR 432; Harrison v Schipp (2002) 54 NSWLR 738, and Akins v National Australia Bank (1994) 34 NSWLR 155.
Having regard to the particular circumstances that gave rise to Country Kidz’ application to admit the fresh evidence, and the comments made above, the possibility of a substantial injustice exists, depending upon the relevance of, and the weight that is given to, what is claimed by Country Kidz to be a critical point.
The precise point now in question was made by Ms Cain herself in response to the Arbitrator who was seeking to enhance his own understanding of what exactly occurred. A similar statement had already been included in documentary evidence that was before the Arbitrator, but Ms Cain’s statement to the Arbitrator, brought its significance into focus as being inconsistent with other statements made by her. This point is canvassed later.
While not weighing the fresh or additional evidence at this point, this evidence, if given the weight claimed by Country Kidz, could well result in a different outcome.
In the circumstances, leave is granted to admit into evidence in this appeal, the centre board that has been tendered by Country Kidz, along with Ms Tyack’s statement of 5 October 2006, purporting to identify that centre board as the one which was situated between the two pieces of lattice, and which is shown in photographs that were admitted into evidence before the Arbitrator.
I have inspected the centre board tendered by Country Kidz and have observed that it is comprised of a solid board, and not lattice, and it is covered with cloth material.
SUBMISSIONS, DISCUSSION AND FINDINGS
Did the Arbitrator improperly elicit and admit late evidence from Ms Cain and did this amount to a lack of procedural fairness?
Section 354(1), (2) and (3) of the 1998 Act provide:
“354 Procedure before Commission
(1)Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3)The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
The Arbitrator in this matter relied upon section 354(2) of the 1998 Act when objections were raised by Country Kidz’ legal representative, against the Arbitrator seeking to better understand how Ms Cain allegedly tripped, and in particular, Ms Cain’s response. Country Kidz submitted that this was “further evidence coming through the back door after both parties’ lawyers have concluded their submissions, by way of explanation from the applicant.” The objection was pressed because, “…the applicant has seen my whole case laid out in circumstances where my client has no opportunity to respond to it or investigate it or do anything about it today.” (See pages 28 and 29 of the transcript).
As indicated above, the Arbitrator responded as follows:
“Okay. Mr Underwood, I’m charged with – this process is an inquisitorial process, and I can inform myself by whatever means I think fit to obtain as clear a view of the matter as I can. You have introduced these photographs into evidence and you’ve made numerous and lengthy submissions about them. I’m just not clear. There’s just one matter I would like to clear up with the applicant.”
The legal representative for Country Kidz then briefly addressed the Arbitrator as to the fabric on, and the construction of, the centre board, as follows:
“There are histories that the applicant has put that her right foot got caught in the actual lattice. Now she says the lattice was underneath that material covering. So it’s still not consistent because it couldn’t have been caught if there was material covering it.”
.
Part 15, Rule 15.2 of the Workers Compensation Commission Rules 2006 (‘the Rules’) reproduces Rule 70 of the 2003 Rules, as follows:
“Principles of procedure
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 facts in issue and the issues in dispute,
(c)evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d)unqualified opinions are unacceptable.”
In informing himself “by whatever means I think fit to obtain as clear a view of the matter as I can”, the Arbitrator was nevertheless bound by the rules of procedural fairness and natural justice (for discussion see Inghams Enterprises Pty Ltd v Zarb [2003] NSWWCCPD 15 and Paul Segaert Pty Limited t/as Lidco v Narayan [2006] NSWWCCPD 296 (‘Narayan’)). The existence of section 354 of the 1998 Act does not release the Commission from the obligation to apply rules of law in arriving at its decisions (South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [88], per McColl JA (‘Edmonds’)). However, such a provision is intended to be facultative, not restrictive. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49], in referring to a similar provision in the Migration Act 1958 (Cth), Gleeson CJ and McHugh J went on to say:
“Their [such provisions] purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.”
A party is entitled to be heard in relation to the case brought against it before the Arbitrator exercises the power to make the decision (Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106 (‘Twist’). There exists a common law duty to act fairly, in the sense of according procedural fairness, in making of administrative decisions that affect “rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention” (Kioa v West (1985) 159 CLR 550, per Mason J at [31] (‘Kioa’). When a claim of denial of natural justice or procedural fairness is made, regard must be had to the legal context in which the decision-maker has operated and the law that regulates the conduct of the proceedings (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [20] (‘Zheng’).
In National Companies and Securities Commission v The News Corporation Limited (1984) 156 CLR 296 (‘News Corp’), Gibbs CJ said at page 312:
“The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.”
In the High Court case In Re Minister for Immigration and Multicultural & Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 (‘Lam’), the practical application of the concept of procedural fairness was discussed. Relevantly, Gleeson CJ said at 14:
“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
In the instant case, Country Kidz asserts that it was given no opportunity to deal with the point about the “lattice” raised by Ms Cain in her response to the Arbitrator’s question when he sought to clarify and understand exactly what it was that she fell over. In Muin v Refugee Review Tribunal [2002] HCA 30 (‘Muin’), McHugh J said at [123]:
“Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power.”
Counsel for County Kidz made a brief submission to the Arbitrator on the matter, asserting discrepancies in Ms Cain’s evidence, following on her response to the Arbitrator. The question remains whether this was an adequate opportunity, for the avoidance of “practical injustice” (Lam), “to deal with matters adverse to his or her [Country Kidz] interests”, that the Arbitrator proposed to take into account in exercising his power (Muin), in the context of the workers compensation legislation and jurisdiction (Twist; Kioa; Zheng; News Corp).
The Arbitrator states at paragraph 24 of his Statement of Reasons for Decision:
“The Applicant told me that this was what she stood on [a narrow ledge about 6 centimetres wide between the edge of the stage and the pieces of board and lattice where one could place ones feet] before her fall, having stepped over the lattice above it. This seems both plausible and consistent with her previous accounts. In short, the Respondent has not convinced me that the Applicant did not fall at work on 8 December 2004 as she alleges.”
I note again that the centre board that I inspected was not constructed of lattice, but of solid board covered by cloth material. The photographic evidence shows exposed lattice installed at either side of the opening at which a cloth covered centre board was located.
I do not agree that the Arbitrator improperly “elicited and admitted late oral evidence from the worker in circumstances which were unfair to the employer and which prejudiced the employer.” There are apparent discrepancies in the detail of the evidence submitted by Ms Cain to the Arbitrator and he was entitled to ask questions on the evidence before him, in order to arrive at a concluded decision in the matter. A reference by Ms Cain to a cloth covered “lattice” was specifically included in documentary evidence submitted well before the Arbitrator sought to clarify his understanding. See for example, paragraph 2.6 of the ‘Further Applicant’s Rule 38 Statement’ dated 27 July 2006, where she says, “The Lattice was unpainted and when I fell, I fell over the lattice as at the time the lattice was covered with material. There was no warning on the lattice as stated in paragraph 28.” [Emphasis added]. As this evidence was already before the Arbitrator it was reasonable for him to ask his questions, particularly as he was confronted with apparently conflicting detail about what occurred.
Given that it was the Arbitrator’s function and duty to determine the matter, it is difficult to accept an argument that essentially suggests that he acted unfairly in seeking to be clear in his own mind about evidence that was already before him, in arriving at his decision.
On my reading, the contents of the transcript of the arbitral proceedings and the Arbitrator’s Statement of Reasons for Decision do not support Country Kidz’ unequivocal assertion that, “The admission of that late evidence led to a different outcome in terms of the arbitrator’s finding on the manner and circumstances of the alleged injury, than would have been the case had that late evidence not been inappropriately elicited and admitted by the arbitrator, in the employer’s submission.” As outlined above, the Arbitrator made a general reference, at paragraph 24 of his Statement of Reasons for Decision, to Ms Cain’s various accounts of what exactly occurred, stating in conclusion, “This seems both plausible and consistent with her previous accounts.” Whether or not this was a valid conclusion on the evidence is another matter. However, he stated that took all of Ms Cain’s evidence and “accounts” into consideration.
I note incidentally, that the proprietor of Country Kidz chose not to attend the arbitral hearing because of pressing family commitments. The legal representative of Country Kidz made no application or attempt to cross examine Ms Cain on the point in issue, nor did he seek an adjournment to obtain further instructions by reason of Ms Cain’s response to the Arbitrator. He had the opportunity to do either or both, following his objections to the Arbitrator’s attempts to clarify his understanding of the evidence before him. (It should be noted that Ms Cain’s assertion that she was cross-examined at length before the Arbitrator, is not correct, according to the transcript of the proceedings that I have before me. Country Kidz also refutes this assertion).
Finally, given that Country Kidz submit that the comment made by Ms Cain in response to a question put to her by the Arbitrator contradicted relevant aspects of her previous evidence, it is difficult to see how on that basis, she obtained any benefit from making it, or how apparently contradicting her own evidence, was detrimental and therefore unfair, to Country Kidz.
Country Kidz further submits that, “there were also indications in the arbitrator’s findings and reasons that could give rise to a reasonable apprehension of bias against the employer.” Country Kidz points to comments made by the Arbitrator at paragraphs 23 and 27 of his Statement of Reasons for Decision. Without reproducing the substantial submissions made on this point, I note that Country Kidz questions the Arbitrator’s motives for making observations about the volume and nature of its evidence, and the submissions in the matter. Country Kidz then goes on to comment on, what amounts to the manner in which the Arbitrator dealt with, or failed to deal with, the evidence. Country Kidz’ submissions on appeal fall short of asserting that there was a reasonable apprehension of bias, suggesting only that there are “indications” in the Arbitrator’s findings and reasons that “could” give rise to such an apprehension. Country Kidz may well disagree with what the Arbitrator said, or even be affronted by some of his observations, but this is not the test to be applied.
The High Court in Johnson v Johnson (2000) 201 CLR 488, (‘Johnson’) held at [11]:
“It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”
In R v Commonwealth Conciliation & Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546, (‘R v Commonwealth’) the Court commented at 553-554:
“[The] requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.”
The test to be applied is an objective test (Minister for Immigration, Local Government and Ethnic Affairs v Mok (1994) 55 FCR 375. The ground of disqualification is a reasonable apprehension that the judicial officer will not decide the matter impartially or without prejudice, rather than he or she will decide the matter adversely to one party (Re JRL; Ex parte CJL (1986) 161 CLR 342 per Mason J, at 352). It is not enough that the “fair-minded lay observer” (Johnson) has a “vague sense of unease or disquiet” (Jones v Australian Competition & Consumer Commission (2002) 76 ALD 424). See also Narayan for further discussion).
Neither the Arbitrator’s comments to which Country Kidz refer nor any other statements made by him in this matter, give rise to a “reasonable” apprehension of bias, on the application of the proper test, in my view. The assertion that there are “indications” in the findings and reasons of the Arbitrator that “could” give rise to a reasonable apprehension of bias, even if true, is inadequate. The “suspicion” of apprehended bias must be “firmly established”, and not amount to a mere possibility of, or potential for, bias. While the Arbitrator did make some observations along the lines suggested by Country Kidz, they must be read in the context of his Statement of Reasons for Decision. On such a reading, any suspicion of bias is quite remote, even on Country Kidz’ own assertions, and therefore, it is not “firmly established” (R v Commonwealth).
I find that there was no lack of procedural fairness in the way in which the Arbitrator sought to enhance his understanding of the evidence that was before him, and that he did not improperly elicit and admit “new” and late oral evidence. Further, I find that Country Kidz has failed to demonstrate a reasonable apprehension of bias on the part of the Arbitrator.
This ground of appeal fails.
Was the Arbitrator’s finding that Ms Cain suffered an injury arising out of or in the course of her employment on 8 December 2004, unsupported by the evidence and against the weight of the evidence, and was such finding affected by legal, factual and discretionary error? Did the Arbitrator misstate the onus of proof in relation to the issue of injury?
Country Kidz submits on appeal, “During the submissions made by the employer’s solicitor [to the Arbitrator], numerous inconsistencies in the worker’s evidence and histories to doctors in relation to the circumstances of her alleged injury whilst allegedly exiting an elevated shop window display platform inside the employer’s shop, were outlined.” .
These and other submissions pointed to various inconsistencies in the evidence put forward by and in support of Ms Cain, as to the way in which she left the shop window in the premises of Country Kidz and re-entered the shop itself, when the alleged injury was sustained.
Country Kidz further submits that the Arbitrator glossed over “significant untruths in the worker’s histories and evidence, which should have caused him to conclude that her creditworthiness was very poor, without properly and objectively considering the evidence referred to in the employer’s submissions.” Much of this evidence relates to Ms Cain’s previous medical and associated history, and evidence of an alleged “piggy-back” incident involving one Christopher Norris.
It is further submitted that the Arbitrator did not mention the evidence give by Ms Natasha Tyack, (the employer’s most important witness), and did not take this “crucial evidence” into account in arriving at his decision.
Country Kidz submits that the errors and oversights that it outlined in its submissions on appeal:
“… demonstrate further inadequacies in the arbitrators’ reasons and a failure by the arbitrator to make a decision on the basis of logically probative evidence. They also demonstrate that this arbitrator appeared to ignore evidence incompatible with the worker’s allegation of injury and denials of prior back problems and made findings against the weight of the evidence and findings not supported by the evidence, sufficient to constitute an error of law.”
Country Kidz cites the decision of Deputy President Fleming (as she then was) in M & S Shipman Pty Ltd v Larry Matters [2003] NSWWCCPD 19, and the Court of Appeal in YG & GG v Minister for Community Services [2002] NSWCA 247, in submitting that the Arbitrator’s reasons for decision are inadequate and demonstrates that he failed in his statutory duty to fairly and lawfully determine the dispute.
Significantly, Country Kidz submits that the whole case in relation to the dispute about injury “stands or falls on which camp’s evidence is accepted.” It goes on to say, ”The evidence is so polarised and irreconcilably different between the worker and her witnesses and the employer and her witnesses that the truth cannot lie somewhere in the middle.”
Country Kidz made similar detailed submissions to the Arbitrator, indicating in the Arbitrator’s words, “The Respondent says that the Applicant is not a credible witness and that the Applicant and her witnesses ‘must be lying’.” [23]. He goes on to say:
“The Respondent’s written submissions devote some 10 ½ pages pointing out alleged inconsistencies in the Applicant’s evidence. I will not comment on every point in those submissions but reject them as largely being speculative in nature. In considering the evidence as a whole, I do not reach the same conclusions as the Respondent’s legal representative.”
Country Kidz further submits that the Arbitrator’s comment at paragraph 24, “In short, the Respondent has not convinced me that the Applicant did not fall at work on 8 December 2004 as she alleges” places the onus of proof incorrectly upon it, and not where it properly resides, that is, upon Ms Cain.
Country Kidz submits in conclusion, “… the key issues required to be determined by the arbitrator were not determined in accordance with the law and were not determined by any meaningful or coherent or more than cursory reference to the evidence.”
Injury
A significant volume of documentary evidence was submitted to the Arbitrator and is before me in this appeal. It is itemised at paragraph 9 of the Arbitrator’s Statement of Reasons for Decision. The core argument put by Country Kidz in this appeal is essentially that the event did not take place as alleged by Ms Cain and consequently, no injury arose out of or in the course of her employment. Country Kidz submits that any medical issues that she may have cannot be attributed to her employment.
Country Kidz further submits that Ms Cain’s various accounts of what allegedly occurred contain “numerous inconsistencies”, and consequently, Ms Cain is not to be believed in terms of her claim that she sustained an injury arising out of or in the course of her employment with Country Kidz. At paragraph 1.4 of the ‘Respondent’s Written Submissions’ to the Arbitrator, dated 10 August 2006, Country Kidz states its position thus:
“The respondent says that this whole claim and case turns on the credibility of the applicant. If the evidence of the respondent’s witnesses, Natasha Tyack and Jennifer Tyack, is accepted, then the respondent submits that there must be a finding that the injury was fabricated and never occurred and that there ought to [sic] and award for the respondent in respect of injury.”
Country Kidz then provides a lengthy and detailed analysis of the inconsistencies that it had identified, along with observations and comments about Ms Cain’s medical condition, and other events that it considers to be of significance. Without detailing the contents of each and every statement and document in which Ms Cain describes the alleged incident, the key inconsistency referred to by Country Kidz is represented by what follows.
In her ‘Employees Report of Injury’ dated 4 January 2005, Ms Cain states, under the heading “What happened”: “Tripped over some lattice getting out of display window. Just finished display window and a customer came in so got out to serve them.” This is consistent with what Ms Cain said at paragraph 2.6 of her ‘Further Applicant Rule 38 Statement’ of 27 July 2006, as set out at paragraph 55, above, and in which she stated that the lattice that she “tripped over” was covered in cloth.
I note that according to the ‘Background Information’ in Ms Cain’s ‘Injury Management Plan’ she had “resigned from her employment with Country Kidz prior to her injury and ceased working on the 17/12/04.” According to this document, she was not “terminated” on that day, as she has claimed.
In the accompanying ‘Initial Needs Assessment’ prepared by Interact Injury Management, under the heading ‘Injury Details’, it is stated, “Ms Cain reports that when a customer entered the store, she attempted to step down from the display window when she caught her leg on some lattice surrounding the window. Ms Cain reports falling approximately 50 centimetres from the window display to the floor.”
In paragraph 3 of her statement of 3 May 2006 Ms Cain states:
“On the morning of 9 [sic] December 2004 I was attending to my normal duties at Country Kidz shop in Condobolin which included setting up a display in the display window. This required me to step up approximately 50 cm into the window display. A customer entered the store and I went to step down from the display window when my leg caught in some lattice surrounding the window and I fell to the floor.”
The principal inconsistency highlighted by Country Kidz is that Ms Cain states on the one hand that she tripped over the cloth covered centre board (which she understood to be of lattice construction), while on the other hand she also states that she caught her leg in the lattice “surrounding the window”, that is, the lattice that was off to one side of the centre board. The Arbitrator makes two comments that are of significance, in this regard. The first is set out at paragraph 74 above. The second is at paragraph 24 of his Statement of Reasons for Decision:
“The first four pages of submissions attempt to show that the Applicant’s account of the way in which she fell is inconsistent with the physical arrangement of the shop window. I do not agree. … The Applicant told me that this was what she stood on [the narrow ledge about 6 centimetres in width] before her fall, having stepped over the lattice above it. (The emphasis has been added).
There is no suggestion that the centre board admitted into evidence in this appeal is not the same centre board that was in place at the time of the alleged incident.
Ms Cain’s submissions on appeal contain the statement at paragraph 12, “As the further Applicant’s Rule 38 Statement (at 1.21) and transcript at 29.35 makes clear she does not say she tripped over the centre board but in each case her consistent evidence is that she clipped her right leg on the lattice.” However, that contradicts her assertion at paragraph 2.6 of the same Statement and what she said to the Arbitrator at the hearing.
Other variations as to how Ms Cain allegedly fell are found in other documents in evidence. For example, Dr Winlow’s WorkCover certificate dated 9 December 2004 indicates that Ms Cain caught her foot on the lattice in the window and fell to her hands and knees, and back pain was felt half an hour later. According to Dr Huntsdale’s report of 16 August 2005, Ms Cain allegedly told him that she stepped backwards, fell and landed on her left side. The difficulty in achieving a clear understanding of exactly how she fell is illustrated in the report of Dr William Coyle, Orthopaedic Surgeon, dated 10 May 2006. He states, relevantly:
“Ms Cain states that she was arranging a display window in the shop that she was working in on 9 December 2004. A customer entered the shop and Ms Cain attempted to leave the display window, which was raised about 50 cm above the shop floor, to attend to the customer. There was a small lattice fence separating the display window from the shop floor. Ms Cain stepped over this with her left foot and then caught her right foot in the fence when trying to step over it. She fell to the shop floor, landing on her left side and possibly also twisting her back.”
What emerges from the mass of evidence and submissions in this matter is that Ms Cain has given different versions and has herself, conveyed different impressions, as to how she fell, rather than whether or not she fell at all. While the fact that she did fall is disputed, Ms Cain is consistent in the fact that she did so, and claims to have sustained an injury arising out of or in the course of her employment with Country Kidz.
Ms Cain’s statements that she clipped or caught her foot in the lattice “surrounding” the window, and that she clipped her foot on, and/or fell over the “lattice” under the cloth on the centre board, do not stand together. Both statements as to how she tripped, cannot be correct. From submissions made by her in this appeal, Mrs Cain recognizes this. Moreover, the photographs in evidence before the Arbitrator make this obvious as no other part of the window enclosure, other than the centre board, was covered with cloth, and there is no claim by Ms Cain that the photographs represent an arrangement that was any different at the time of the alleged incident.
The Arbitrator’s acceptance at paragraph 24 of his Statement of Reasons for Decision, that Ms Cain “stepped over the lattice above it” is apparently based upon her comments to him at the arbitration hearing and on what she states in the ‘Further Application Rule 38 Statement’ of 27 July 2006, referred to above. Ms Cain’s statement in this regard, is at odds with what she says in other statements as to how she tripped, and notably, what she now submits in this appeal.
Notwithstanding the inconsistencies and lack of clarity in Ms Cain’s evidence and the medical reports, the Arbitrator states at paragraph 27 of his Statement of Reasons for Decision, “…it is the circumstances surrounding the injury that I must address and I am satisfied that the Applicant’s account of the mechanism of her injury is accurate enough for me to make a finding. As the injury occurred at work, I find that her work was a substantial contributing factor to the injury.” [Emphasis added].
The Arbitrator has failed to address the inconsistencies in Ms Cain’s evidence and his bald statement that her “account of the mechanism of her injury is accurate enough” is inadequate. Country Kidz is entitled to know how and why the Arbitrator came to that conclusion, in light of the evidence before him, and particularly in light of the inconsistencies in Ms Cain’s evidence.
At paragraph 23 of his Statement of Reasons for Decision the Arbitrator says, in part:
“The Respondent’s written submissions devote some 10 ½ pages pointing out alleged inconsistencies in the Applicant’s evidence. I will not comment on every point in those submissions but reject them as largely being speculative in nature. In considering the evidence as a whole, I do not reach the same conclusions as the Respondent’s legal representative.”
There is little analysis of the evidence and submissions of Country Kidz. Consequently, it is difficult to ascertain, “in considering the evidence as a whole”, what was accepted and what was not, and why. The difficulty is exacerbated by the fact that the Arbitrator accepts at paragraph 23, that Ms Cain “stepped over the lattice”, which is at odds with what Ms Cain now puts forward in this appeal. While I agree that Country Kidz’ submissions appear to contain a good deal of speculation, some of it not particularly helpful, that is not entirely the case.
The Arbitrator’s Statement of Reasons for Decision contains a substantial list of documentary evidence put forward by both parties. Apart from comments at paragraph 25 about instances of prior back pain and an alleged “piggy back” incident, the Arbitrator is dismissive of the bulk of the Country Kidz’ evidence as to injury (amongst other things) without specifying which of the evidence he considered and why he preferred Ms Cain’s evidence. Relevantly, he fails to comment at all on the Country Kidz’ evidence and version of the alleged incident, the surrounding circumstances and the report of injury. For example, no mention is made of the evidence of Jennifer Tyack and Natasha Tyack, as Country Kidz rightly points out.
There is a great deal of medical evidence before the Arbitrator, much of which supports Ms Cain’s position in terms of incapacity and that she has an injury. However, it is critical that all of the evidence of both parties relevant to injury, whether the injury occurred at work, and the circumstances of injury, should be considered by the Arbitrator, and given due weight. Appropriate findings may then be made on the basis of such an analysis.
A tribunal is entitled to accept one aspect of evidence in preference to another. Arbitrators are required to assess and decide between conflicting evidence in the performance of their function. “However, when performing that task an arbitrator must act according to law and must consider all of the evidence.” (Prestige Property Pty Ltd v Rafiq [2006] NSWWCCPD 355). In failing to provide an adequate analysis of all of the relevant evidence, and to deal with the inconsistencies in Ms Cain’s evidence, the Arbitrator has failed to exercise his function fairly and according to law (see Rohloff v Diacut Pty Limited (in Liquidation) [2005] NSWWCCPD 17 at [26]. See also, Wingecarribee Shire Council v Wortz [2006] NSWWCCPD 111; Westpac Banking Corporation v Kilby & Bananacoast Credit Union Ltd [2005] NSWWCCPD 24; Edmonds, and Knight v Eyles Nominees Pty Limited t/as Processed Forest Products [2004] NSWWCCPD 73).
In Vettas v Cho [2006] NSWWCCPD 122, as in a number of other appeals in the Commission, it was held that the weight to be given to the evidence properly admitted, is a matter for the discretion of the arbitrator and that the decision should not be overturned until and unless it can be shown that he or she demonstrably failed to exercise this discretion fairly and lawfully.
I find that the Arbitrator in this matter has demonstrably failed to exercise this discretion fairly and lawfully, by not giving proper consideration to the body of relevant evidence, and the weight of that evidence. For this reason, the Arbitrator’s decision is affected by an error of law, and to that extent, this ground of appeal succeeds.
Onus of proof in relation to injury
Country Kidz’ assertion that the Arbitrator has misstated the onus of proof as to injury is misconceived. The Arbitrator said at paragraph 24 of his Statement of Reasons for Decision, “In short, the Respondent has not convinced me that the Applicant did not fall at work on 8 December 2004 as she alleges.” This statement was made by the Arbitrator in the context of dealing with Country Kidz’ submissions that had been put in an attempt to rebut or discredit the evidence of Ms Cain, to which the Arbitrator had already referred. The Arbitrator was merely indicating that in his opinion, Country Kidz had failed in that attempt. While the comment may have been put more precisely, the intention is clear when the statement is read and considered in proper context.
This ground of appeal fails.
Were the Arbitrator’s reasons for decision inadequate and amounted to a failure to determine the matter according to law?
The Arbitrator must not only note the relevant evidence and give reasons for findings made, but where the evidence is disputed, he must give a clear explanation of the reasons why some evidence is preferred over other evidence (Mayne Group Limited v Mikhail [2006] NSWWCCPD 249 at [41]. See also, 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). The Arbitrator did not achieve that in his Statement of Reasons for Decision, as outlined above.
In the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 at [64], Kirby J said:
“The more significant the decision the clearer the duty may be, the clearer the reasons should be and the clearer the consequences will be for the breach. Some decisions cry out for a clear explanation … Especially is this so where the legislature has recognized the need and imposed a duty to give reasons and where the decision is very important for the person affected and for others close to that person.”
The duty to give reasons in the Commission is prescribed by statute at section 294(2) of the 1998 Act and at Rule 15.6 of the 2006 Rules.
Having regard to the failure to properly consider the evidence, it follows that the reasons upon which the Arbitrator’s decision is based are inadequate, amounting to a failure to determine the matter properly and according to law.
This ground of appeal is made out.
DECISION
The appeal is partly successful. It is appropriate that the Arbitrator should provide a proper analysis of all of the relevant evidence of both parties, deal specifically with and make appropriate findings as to the inconsistencies in the evidence of Ms Cain as to how the alleged injury occurred, and provide brief but adequate written reasons for the decision, according to law.
The decision of the Arbitrator dated 8 September 2006 is revoked and the matter is remitted to the same Arbitrator for determination afresh in accordance with these reasons, and the findings made herein.
COSTS
No order is made as to the costs of this appeal.
Gary Byron
Deputy President
23 May 2007.
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
11
29
0