Liverpool City Council v Trovato
[2004] NSWWCCPD 15
•24 March 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Liverpool City Council v Trovato
[2004] NSW WCC PD 15
APPELLANT: Liverpool City Council
RESPONDENT: Isidora Trovato
FILE NUMBER: WCC 10970-2003
DATE OF ARBITRATOR’S DECISION: 27 October 2003
DATE OF APPEAL DECISION: 24 March 2004
SUBJECT MATTER OF DECISION: Procedure of the Commission, section 354 of the Workplace Injury Management and Workers Compensation Act 1998, Legal Professional Privilege, Rules of Evidence, Procedural Fairness, Adequate Reasons.
PRESIDENTIAL MEMBER: Deputy President, Dr Gabriel Fleming
HEARING:On the Papers
REPRESENTATION: Appellant: Abbott Tout Solicitors
Respondent: White Barnes Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant is ordered to pay the costs of the appeal.
BACKGROUND
On 21 November 2003 Liverpool City Council (‘the Appellant Employer/the Council’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 27 October 2003. The Council is a self-insurer for the purpose of workers compensation.
The Respondent to the Appeal is Isidora Trovato (‘the Respondent Worker/Ms Trovato’).
The appeal relates to an ‘Application to Resolve a Dispute’ lodged in the Commission by Ms Trovato on 13 June 2003. This application seeks an award of weekly benefits compensation for partial incapacity from 2 July 2002, to date and continuing, $15,000 for 20% permanent impairment of the left (non-dominant) arm at or above the elbow, and $25,000 for pain and suffering.
In the proceedings before the Arbitrator the Council denied liability for the claim.
The Arbitrator was asked to determine a threshold issue, namely, whether Ms Trovato’s employment was a ‘‘substantial contributing factor’’ to her injury.
The Certificate of Determination, dated 27 October 2003 records the Arbitrator’s finding that “The Applicant’s employment was a ‘substantial contributing factor’ to her injury”. A “Statement of Reasons for Decision’ (‘the Reasons’) was attached to the Certificate of Determination.
The Commission cannot make a final determination on Ms Trovato’s entitlement to permanent impairment compensation until the matter has been referred to an Approved Medical Specialist for assessment. This has not yet occurred.
This matter was referred to me for review on 26 February 2004.
LEAVE
Prior to review by a Presidential Member of the Commission an appeal must meet the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
In this matter I granted leave to appeal on 26 February 2004 on the basis that I was satisfied:
· The appeal was filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act),
· The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act),
· No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5), and
· No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).
ISSUES IN DISPUTE
The Appellant alleges that the Arbitrator erred in her finding that Ms Trovato’s employment was a ‘substantial contributing factor’ to her injury, because she:
(i)Incorrectly upheld the Respondent Worker’s claim for legal professional privilege over handwritten solicitor’s notes taken for the purpose of the Respondent Worker’s statement dated 22 April 2003 (‘Legal Professional Privilege’);
(ii)Denied the Appellant Employer procedural fairness in not allowing the Appellant access to the handwritten solicitor’s notes and the opportunity of making further submissions (‘Procedural Fairness’);
(iii)Accepted the Respondent Worker’s oral evidence over her written statement and the histories taken by Dr Pillemer and Dr Marnie (‘Weight of Evidence’), and
(iv)Failed to give adequate reasons for rejecting the Respondent Worker’s statement and the histories taken by Dr Pillemer and Dr Marnie (‘Adequate Reasons’).
The Appellant Employer seeks to have the decision of the Arbitrator revoked and a new order made that Ms Trovato’s employment was not a substantial contributing factor to her injury. Alternatively, the Appellant submits that the matter should be determined afresh by a different Arbitrator.
ON THE PAPERS REVIEW
The Appellant submits that the unusual nature of the proceedings warrants an oral hearing.
The Respondent submits that the whole of the matter is capable of 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.
I am satisfied that I have sufficient information to proceed on the papers, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
The parties were advised of the decision to proceed on the papers on 26 February 2004. No application to file further written submissions was received.
EVIDENCE AND SUBMISSIONS
The evidence that was before the Arbitrator is also before me on the appeal. In addition the written submissions of the parties on the appeal and the transcript of the proceedings before the Arbitrator are before me and have been taken into account in determining the appeal.
The facts are set out in the Reasons and need not be repeated in full here. In summary:
·At the time of the incident that gave rise to her injury Ms Trovato had worked for Liverpool City Council for eight and a half years as the Personal Assistant to the Mayor. Her duties mainly involved organisation activity over the telephone and a small amount of computer keyboard work.
·On 30 September 2000 she attended a work-related function where she sustained an injury to her left arm due to a fall while dancing.
·She notified the Council of the injury on 18 October 2000.
·Following the incident Ms Trovato received provisional payments of weekly compensation for total incapacity for a period of two and a half months. She returned to work on restricted duties and gradually increased her workload until she was working full-time in approximately March 2001. Her position was made redundant on 1 July 2002.
·On 5 December 2002 Ms Trovato lodged a claim for weekly benefits, medical expenses and non-economic loss compensation with the Council.
·The Council failed to make a substantive decision in relation to Ms Trovato’s claim.
Ms Trovato’s evidence in relation to whether or not she ‘blacked out’ at the time of the incident that caused the injury is in dispute. In her statement, dated 22 April 2003, she said, “. . . I remember that I was dancing when all of a sudden I must have blacked out. I remember that I woke up on the floor and immediately felt a lot of pain in my left wrist. There was (sic) a lot of people around me I was shocked and confused and upset” (at paragraph 7). This claim is repeated in the medical histories taken by Orthopaedic Surgeons Dr Pillemer, in his report dated 10 March 2003, and Dr Marnie, dated 19 June 2002. Contrary to this, Ms Trovato gave sworn oral evidence at the Arbitration hearing that she had not ‘blacked out’ at the time of the incident.
The Arbitrator found Ms Trovato to be“. . . a witness of truth and despite vigorous cross-examination I conclude that she was a truthful witness on the question of the cause of her fall” (at paragraph 22 of the Reasons).
In proceedings before the Arbitrator the Council called for the notes made by Ms Trovato’s solicitor, in connection with the preparation of her statement of 22 April 2003, to be produced. Ms Trovato objected to production on the ground of legal professional privilege. The Arbitrator upheld the Worker’s objection. At paragraph 21 of the Reasons, the Arbitrator states:
“The Respondent called for the notes of the Applicant’s solicitor relating to the taking of the Applicant’s statement of 22 April 2003. The Applicant claimed privilege in respect of those notes. I upheld the Applicant’s claim for privilege. If I was wrong in upholding the claim for privilege, as on reflection I think I was, I note for the record that it would have made no difference to my findings whether the solicitor’s notes accorded with the typewritten statement. This is because handwritten note taking by a solicitor can be incomplete and informal and in the present case it would have been of no significance to my decision whether at the time of the interview with the solictor the Applicant was noted by the Solicitor to have stated she had a black out as distinct from inferring that she must or might have had a black out. For example there is no significant difference between the Applicant asserting that a black out must have occurred and the Applicant asserting that a black out did occur but without adding the underlying reasoning. No matter what exact language was recorded in the notes and even assuming textual accuracy, the particular version noted by the solicitor would be unimportant to my decision even there [sic] was some variance from the Applicant’s statement of 22 April 2003 on this particular point.”
On appeal, the Appellant Employer submits that this constituted an error of law as “it was impossible to know what the documents say without seeing the documents and to then postulate what effect they may have.”
The Appellant further submitted that procedural fairness requires the Arbitrator to now, subsequent to her revised view of the application of legal professional privilege as set out in the Reasons, grant access to the solicitor’s notes and invite further submissions from the parties before proceeding to determine the matter. Alternatively, the Appellant submits that the Arbitrator erred in accepting Ms Trovato’s oral evidence of how the injury occurred, as opposed to the account given by Ms Trovato’s statement and the histories taken by Drs Pillemer and Marnie.
The Appellant also submits that the Arbitrator failed to give adequate reasons for rejecting the Worker’s statement and the histories taken by Drs Pillemer and Marnie.
The Respondent Worker submits that the Arbitrator did not err in upholding the claim of legal professional privilege in relation to her solicitor’s notes. The Respondent submitted that the solicitor’s notes “were made in conference when advising the Applicant of her rights and drafting her statement for the purposes of the Application” and are therefore privileged under the Evidence Act 1995 (NSW). The ‘dominant purpose’ of the solicitor’s notes was to provide legal advice to the Worker in relation to the proceedings in the Commission.
The Workers Compensation Commission Rules 2003 (‘the Rules’) required a signed statement by the Worker in order that she be permitted to give oral evidence in the proceedings (Rules 38 and 66). The Respondent Worker submits that her final, revised and signed statement stands alone and it is not necessary to consider the solicitor’s notes to gain an understanding of the document.
The Respondent Worker submits that the solicitor’s notes should not, in any event, be provided as they are not needed for the Arbitrator to determine the matter in accordance with section 354(3) of the 1998 Act, that is, “. . . according to equity, good conscience and the substantial merits of the case”. The Respondent also submits that the Appellant was not denied procedural fairness as the Arbitrator allowed cross-examination of the Worker in relation to her prior inconsistent statements and Ms Trovato’s evidence in relation to the issue of the ‘black out’ was adequately canvassed.
The Respondent Worker submits that the Arbitrator’s reasons are consistent with the weight of the evidence, in particular her conclusions as to the events that gave rise to the injury, and that the Arbitrator has given detailed and adequate reasons for upholding her claim.
DISCUSSION AND FINDINGS
Legal Professional Privilege
Section 354(2) of the 1998 Act provides that:
“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.”
Although the rules of evidence do not apply, the Commission is required to make its determination on the basis of relevant and probative evidence. The Rules provide as follows:
70 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.
The parties in this matter refer to the application of the Evidence Act 1995 (NSW). However the Evidence Act 1995 (NSW) does not apply to proceedings in the Commission (Evidence Act 1995, section 4).
To the extent that the Evidence Act 1995 (NSW) provides a guide to the determination of the weight to be given to certain evidence, it is a useful reference. Sections 118 and 119 of the Evidence Act 1995 (NSW) provide as follows:
118 Legal advice
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a)a confidential communication made between the client and a lawyer, or
(b)a confidential communication made between 2 or more lawyers acting for the client, or
(c)the contents of a confidential document (whether delivered or not) prepared by the client or a lawyer,
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
119 Litigation
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a)a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or
(b)the contents of a confidential document (whether delivered or not) that was prepared,
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
Section 122 of the Evidence Act 1995 provides for the loss of ‘client legal privilege’ in certain circumstances. In this matter the Appellant claims that the tendering of the Worker’s statement in the Arbitral proceedings amounts to what would be considered a “voluntary disclosure of the substance of the evidence” and thus the solicitor’s notes are “susceptible to production”.
In Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 (‘Daniels’), the High Court considered a claim of legal professional privilege attaching to documents specified in a ‘Notice to Produce’ issued by the Australian Competition and Consumer Commission, pursuant to section 155 of the Trade Practices Act 1974 (Cth). Gleeson, CJ, Gaudron, Gummow and Hayne JJ, in a joint judgment, described ‘legal professional privilege’ (at paragraphs 9-11, in part) as follows:
“It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. It may here be noted that the “dominant purpose” test for legal professional privilege was recently adopted by this Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation in place of the “sole purpose” test which had been applied following the decision in Grant v Downs.
Being a rule of substantive law and not merely a rule of evidence, legal professional privilege is not confined to the processes of discovery and inspection and the giving of evidence in judicial proceedings. Rather and in the absence of provision to the contrary, legal professional privilege may be availed of to resist the giving of information or the production of documents in accordance with investigatory procedures of the kind for which s 155 of the Act provides . . . .
Legal Professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity. It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect. That rule, the expression of which in this Court can be traced to Potter v Minahan, was the foundation for the decision in Baker v Campbell. It is a rule which, subject to one possible exception, has been strictly applied by this Court since the decision in Re Bolton; Ex parte Beane . . . ”
It can be seen from the above discussion that, while the rules of evidence, and the Evidence Act 1995 do not apply to the Commission, a party in Commission proceedings will have the benefit of the ‘common law right’ or ‘immunity’ of legal professional privilege, unless it has been expressly and unequivocally excluded by statute. There is no such express exclusion in the Workers Compensation Acts.
There are a number of elements of legal professional privilege. Firstly, the legal ‘communication’ must have been made by a lawyer, when he or she was acting in that capacity for the client, in this case, the Worker. Secondly, the communication must have been made with the dominant purpose of giving legal advice, or in relation to anticipated, or pending, legal proceedings. Thirdly the advice must have been confidential.
Whether legal proceedings are anticipated is a matter of fact in each case, taking into account the subject-matter and the context in which the communication came into existence. (Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd & Ors [1998] 81 FCR 526.
The Respondent submits on appeal that the solicitor’s notes were made in conference when the solicitor was advising the Worker of her legal rights and drafting her statement for the purposes of compliance with Rules 38 and 66 in relation to Commission proceedings.
In my view the notes made by the Worker’s solicitor are clearly subject to legal professional privilege. They were made for the purpose of anticipated legal proceedings and in the belief that they would not be disclosed, in other words, that they were confidential. The fact that Ms Trovato then filed a statement in the Commission that allegedly covered the same ground as that recorded in her solicitor’s notes, did not amount to a voluntary disclosure of the contents of the solicitor’s notes. Ms Trovato was required by the Rules to file a statement in proceedings in the Commission. It does not alter the confidential nature of those notes and waive the claim of privilege over them.
The Arbitrator did not err in upholding the worker’s claim for legal professional privilege over the solicitor’s notes.
Procedural Fairness
Where, in proceedings before an Arbitrator, a claim of legal professional privilege is made, the actual documents will ordinarily be considered by the Arbitrator to determine which, if any, are in fact subject to legal professional privilege.
In this matter the Appellant’s legal representative called for the solicitor’s ‘notes of the conference leading to the preparation’ of Ms Trovato’s statement in the course of the cross examination of Ms Trovato at the arbitration hearing. The transcript of the arbitration records that the Worker’s solicitor, Ms Steinfelder, was not certain that there were, in fact, any such notes in existence, as she had used a dictaphone when meeting with Ms Trovato, and had recorded matters for the purpose of preparing the statement. The Arbitrator, in the course of the arbitration, determined that the notes, if they existed, “would be privilege[d]”. This is the extent of the parties’ brief exchange on the issue.
In my view, the failure of the Arbitrator to have the notes, if they were found to exist, produced to the Commission, and to then examine them, is not, in this instance, fatal to the fair determination of the claim of legal professional privilege. The Arbitrator was right to immediately consider the issue and, in accordance with the principles of procedure in the Commission set out in section 354 of the 1998 Act, to make a decision and continue with the Arbitration. In the circumstances, where the nature and general content of the documents was clearly understood, to delay the arbitration to have the documents produced so that the Arbitrator could determine that claim would have been an inappropriate way to proceed.
Having decided that legal professional privilege applied to the Worker’s solicitor’s notes there was no reason why the Respondent, in the arbitral proceedings, should have been given access to them. This is inconsistent with the claim of privilege being upheld. In my view this was the correct decision and the different view adopted by the Arbitrator in the Reasons does not alter the situation or give rise to an error of law.
The Arbitrator did not deny the Appellant Employer (Respondent in the arbitral proceedings) procedural fairness in relation to the claim of privilege over the Worker’s solicitor’s notes.
Weight of Evidence
The Arbitrator found, and the Appellant does not dispute, that Ms Trovato’s injury occurred in the course of her employment with the Council.
The Appellant claims that the Arbitrator erred in accepting the Worker’s oral evidence, over her written statement and the histories taken by Dr Pillemer and Dr Marnie. The decision is allegedly against the weight of the evidence.
This ground must fail unless the Appellant can demonstrate that there was no logically probative evidence upon which the Arbitrator could reasonably base her decision. It is entirely a matter for the Arbitrator as to what weight to accord the evidence before her, but a decision against the weight of the evidence would be an error of law, and contrary to the requirements of Rule 70.
The Arbitrator, in her Reasons, concluded that the solicitor’s notes, even were they to be produced and inspected, would have carried little weight in view of evidence that was contemporaneous to the time of the injury, in September 2000. She preferred the sworn oral evidence of the Worker and the versions of events set out in the reports of her treating doctors. The Arbitrator concluded (at paragraph 22 of the Reasons), that:
“. . . Although I upheld the objection on the ground of privilege, I felt that the contents of the solicitor’s notes on the subject were unlikely to have any impact on my decision, and would be of minimal weight as compared to other evidence which appeared to me to be far more reliable. I consider that hindsight assumptions or even positive unsworn assertions made or recorded almost two years post-accident or even longer are in this case far less cogent evidence than versions recorded shortly after the injury and the Applicant’s sworn testimony.”
The Arbitrator considered the evidence in relation to whether Ms Trovato’s employment was a ‘substantial contributing factor’ to her injury (at paragraphs 12-23 of the Reasons). She carefully deals with the inconsistencies between Ms Trovato’s oral evidence and the reported history of the incident that she gave to Dr Pillemer and Dr Marnie. The Arbitrator sets out the relevant evidence and her findings, including her reasons for preferring the oral evidence of the Worker, the notes made at Liverpool Hospital almost immediately after the injury, the detailed account of injury on the claim form and the letter from Dr Dave to Ms Trovato’s General Practitioner. The Arbitrator has carefully weighed the relevant evidence and made conclusions based on logically probative evidence before her.
The Arbitrator did not come to a decision that is against the weight of the evidence.
Adequate Reasons
The Appellant submits that “. . . the Arbitrator failed to give adequate reasons for rejecting Ms Trovato’s evidence contained in her statement made on 22 April 2003 as supported by histories to Dr Pillemer and Dr Marnie and accepting the fresh version of the injury events given at the hearing”.
This ground of appeal restates, in large part, the matters referred to above in relation to the weight of the evidence.
An Arbitrator has a statutory duty to provide adequate reasons for decision. Section 294 of the 1998 Act provides that:
294 Certificate of Commission’s Determination
(1)If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2) A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination…
Rule 73 provides as follows:
73Certificates of Determination
(1)A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a)the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b)the Commission’s understanding of the applicable law, and
(c)the reasoning processes that lead the Commission to the conclusions it made.
(2)Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.
An Arbitrator need not set out lengthy written reasons in order to comply with the Act and the Rules. To do so would be unreasonable and inconsistent with the objectives of the Commission in providing a speedy resolution to workers compensation disputes.
In this matter the Arbitrator has clearly set out her reasons for decision. As stated above, she has set out her reasons for preferring the evidence of Ms Trovato and of certain other contemporaneous reports and notes.
The Arbitrator has not failed to give adequate reasons for her decision.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
The appeal has been unsuccessful and costs fall to be determined in accordance with section 345 of the Act. That section provides, relevantly, as follows:
345 Costs penalties where appeal unsuccessful
(1)On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a)if the appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for the payment of the appellant’s costs on the appeal by any other party to the appeal, or
(b)if the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal, the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund an administration fee of $1,000 or such other amount as may be prescribed by the regulations.
(2)If the appellant in any such appeal is a licensed insurer that maintains a statutory fund under the 1987 Act and is unsuccessful on the appeal:
(a)the insurer’s costs on the appeal, and
(b)the costs of any other party to the appeal that the insurer is ordered to pay,
are not to be paid out of the statutory fund.
(3)If an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5,000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid.
(4)An administration fee that an insurer is ordered to pay is recoverable as a debt due to the Authority.
(5)The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.
The Appellant is ordered to pay the costs of the appeal.
Dr Gabriel Fleming
Deputy President
24 March 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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