Marshall v Skilled Group Ltd
[2018] NSWWCCPD 44
•17 October 2018
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Marshall v Skilled Group Ltd [2018] NSWWCCPD 44 | |
| APPELLANT: | Garry Marshall | |
| RESPONDENT: | Skilled Group Ltd | |
| INSURER: | Self-insured | |
| FILE NUMBER: | A1-324/18 | |
| SENIOR ARBITRATOR: | Mr G Capel | |
| DATE OF ARBITRATOR’S DECISION: | 12 April 2018 | |
| DATE OF APPEAL DECISION: | 17 October 2018 | |
| SUBJECT MATTER OF DECISION: | Admission of new evidence – D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 applied; whether failure to admit new evidence would cause substantial injustice; CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501 applied; application for extension of time to file the appeal – r 16.2(12) of the Workers Compensation Commission Rules 2011; requirement to identify error – s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 | |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Self-represented |
| Respondent: | Moray & Agnew | |
| ORDERS MADE ON APPEAL: | 1. The appellant’s application to extend time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused. | |
INTRODUCTION
Mr Garry Marshall brought a claim for weekly payments and treatment expenses pursuant to the provisions of the Workers Compensation Act 1987 (the 1987 Act) in respect of an alleged injury in the course of his employment with Skilled Group Ltd (Skilled) on 9 January 2015. Skilled disputed that Mr Marshall suffered the injury.
The matter proceeded to arbitration and the Senior Arbitrator issued a Certificate of Determination (COD) with written reasons on 12 April 2018, entering an award in favour of Skilled.[1]
[1] Garry Marshall v Skilled Group Ltd [2018] NSWWCC 96 (Reasons).
Mr Marshall appeals the decision. He first lodged an Application – Appeal Against the Decision of an Arbitrator (appeal application) on 26 June 2018, but a direction was issued for the document to be amended. An amended appeal application was lodged on 12 July 2018.
BACKGROUND
Mr Marshall was employed by Skilled as a plant operator and labourer from 9 December 2014 until his employment was terminated on 16 January 2015.
Mr Marshall alleged that he suffered an injury to his lumbar spine and left elbow on 9 January 2015, when he jumped out of the way of a reversing excavator.
Skilled issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing that Mr Marshall suffered an injury and that employment was a substantial contributing factor. The self-insurer relied on ss 4 and 9A of the 1987 Act. It also disputed that Mr Marshall suffered any incapacity for work and that it was liable for Mr Marshall’s treatment expenses pursuant to s 60 of the 1987 Act. In a second s 74 notice dated 7 October 2015, Skilled reiterated that it disputed Mr Marshall had suffered an injury and added that any whole person impairment suffered by Mr Marshall did not result from any injury with Skilled.
Mr Marshall commenced proceedings in respect of the same alleged injury on two prior occasions, and both proceedings were discontinued. On the second occasion, the matter proceeded to arbitration, but was discontinued before the second day of evidence was taken. Mr Marshall filed an Application to Resolve a Dispute in the current proceedings on 22 January 2018. The matter proceeded to arbitration.
The Senior Arbitrator found that Mr Marshall had not discharged the onus of proving that he had suffered an injury arising out of or in the course of his employment on 9 January 2015.
ON THE PAPERS
Mr Marshall indicates at 2.3 of the appeal application that this appeal cannot be determined solely on the basis of the written material contained in the appeal application and the Notice of Opposition to Appeal Against Decision of Arbitrator (the opposition). In his submissions, however, he submits that the appeal can in fact be determined on the written material.
Skilled submits that there is sufficient information before the Commission for the appeal to be determined ‘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.”
Mr Marshall provides no reasons in support of his indication that the appeal cannot be determined ‘on the papers’. If Mr Marshall is seeking an oral hearing, the basis upon which he does so is not apparent from his submissions.
The Senior Arbitrator’s decision was a factual decision made on the basis of the documents before him and the oral evidence of both Mr Marshall and his treating general practitioner, Dr Arcot S Kumar. The Senior Arbitrator also had available to him the transcript of evidence taken in the previous proceedings.
No new issue has been raised on appeal and the parties have had the opportunity to provide written submissions addressing the issues.
Having regard to:
(a) Practice Directions Nos 1 and 6;
(b) the nature of the Senior Arbitrator’s decision;
(c) the issues raised on appeal;
(d) the documents that are before me, and
(e) the submissions by the parties that the appeal can proceed to be determined on the basis of these documents,
it is the appropriate course in the circumstances to determine the appeal ‘on the papers’.
THRESHOLD MATTERS
Mr Marshall’s appeal application was not filed within 28 days of the COD being issued by the Senior Arbitrator on 12 April 2018, as required by s 352(4) of the 1998 Act.
Mr Marshall submits that from 3 April 2018 he was very ill. He was admitted to hospital on that date, subsequently discharged, but re-admitted until he was finally discharged on 17 April 2018. Mr Marshall submits that he is on the waiting list to be admitted again and in the meantime is required to attend the outpatients’ department of Bundaberg Hospital on a weekly basis and wear equipment to monitor his condition. He provides some documentary evidence in support of this submission.
He says that there was a lack of communication with his former solicitors and he did not become aware of the Senior Arbitrator’s decision until 27 April 2018. Thereafter he contacted the Workers Compensation Independent Review Office, who provided him with a list of legal practitioners. Mr Marshall submits that he contacted at least 15 of those on the list, who all declined to act for him in an appeal. He then contacted the Commission, and the Commission sent him a copy of the documents filed in the proceedings. Mr Marshall says that he received those documents on 9 May 2018. He submits that he was then required to read the documents, which was difficult for him because he was unwell and has no legal training.
Skilled opposes the application for an extension of the time to appeal. It says that the appeal was initially filed on 26 June 2018 and was not processed because “primarily” it did not comply with Practice Direction No 6. It submits that the appeal application filed on 12 July 2018 still does not comply with the Practice Direction because it does not identify the grounds of appeal. Skilled submits that for the most part, the application simply regurgitates submissions made in the arbitration. Skilled says that because of this, it has difficulties formulating its submissions in reply.
Skilled submits there is no explanation as to why Mr Marshall did not access his emails between 17 April 2018 (the date he was discharged from hospital) and 27 April 2018. Further, there is no explanation for the delay between 9 May 2018 (when Mr Marshall received a copy of the documents from the Commission) and 26 June 2018, when Mr Marshall first attempted to file his appeal application.
Skilled contends that there are no “exceptional circumstances” in this case and failure to extend time would not work a demonstrable or substantial injustice, as required by r 16.2(12) of the Workers Compensation Commission Rules 2011 (the 2011 Rules).
Skilled refers to the following matters set out in Gallo v Dawson[2] as factors that are required to be taken into account in the exercise of the Presidential member’s discretion to extend time:
(a) the history of the proceedings;
(b) the conduct of the parties;
(c) the nature of the litigation;
(d) the consequences to the parties for the grant or refusal of the application for extension of time;
(e) the prospects of the applicant succeeding in the appeal, and
(f) the fact that, upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for an extension of time is granted.[3]
[2] [1990] HCA 30; 93 ALR 479 (Gallo).
[3] Gallo, [2].
Skilled makes lengthy submissions about the number of previous proceedings, about the late evidence that Mr Marshall seeks to tender, the conflict in that evidence with earlier evidence and that Mr Marshall has always, in past proceedings, been represented by competent and experienced legal representatives and counsel.
Skilled submits that “in the light of those submissions and the matters referred to in Gallo” the application for an extension of time to file the appeal application should be refused.[4]
[4] Notice of Opposition submissions; p 3, 2.1 [32].
Consideration
Rule 16.2(12) of the 2011 Rules provides:
“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
I am required to consider whether there are exceptional circumstances and whether the denial of the right to appeal would work a substantial injustice. Rule 16.2(12) of the 2011 Rules is in identical terms to r 16.2(11) of the Workers Compensation Rules 2006 (the 2006 Rules). As Allsop P (as his Honour then was) said in Bryce v Department of Corrective Services[5] in relation to r 16.2(11) of the 2006 Rules:
“Whether or not there are exceptional circumstances and whether in those circumstances it is shown to the satisfaction of the Deputy President that demonstrable or substantial injustice would occur if leave were not granted is a composite expression in the rule to be dealt with within jurisdiction.”[6]
[5] [2009] NSWCA 188 (Bryce).
[6] Bryce, [10] (Beazley JA (as her Honour then was), Giles JA agreeing).
Mr Marshall attached documents from Bundaberg Hospital to his appeal application. He relied on those documents to support his assertion that he had been hospitalised with serious medical issues from 7 April 2018 to 17 April 2018 and that after discharge, was required to attend the outpatient’s department.
The following circumstances in which Mr Marshall found himself, while of themselves are not exceptional, when considered together are, in my view, exceptional:
(a) he was hospitalised over the period during which the COD was issued;
(b) he continued in ill health after discharge;
(c) his legal representation ceased to act on his behalf;
(d) he was unable to find alternate representation;
(e) he did not have access to his file until it was provided to him by the Commission on 9 May 2018, and
(f) he is not legally trained and has no relevant legal experience.
In accordance with the authorities in Gallo and Bryce, where there are exceptional circumstances I must also determine whether a failure to extend time would result in a substantial injustice, which means I must assess the merits of the appeal. To do so it is necessary to consider whether the new evidence sought to be relied on in the appeal by Mr Marshall ought to be admitted.
NEW EVIDENCE
Mr Marshall seeks to adduce further evidence on the appeal. He describes each document as follows:
(a) an MRI scan referral bearing a date of 9 January 2015;
(b) a “Workcover form” said to be by Dr Kumar dated 9 January 2015;
(c) handwritten consultation notes of Dr Kumar;
(d) an email directed to Alana Jagger at WorkCover from Margaret Smith, of Skilled’s self-insurer, dated 30 March 2015;
(e) his own statement dated 17 May 2016;
(f) correspondence to him from his former solicitor dated 24 June 2016;
(g) an amended statement by him, amending his statement dated 11 October 2016;
(h) Civil Works job advertisement for a plant operator dated 27 November 2014;
(i) Ms Kerrie Stevens’ telephone records dated from 5 December 2014 to 4 January 2015;
(j) Skilled’s documents pertaining to bank account details for wages payment and nomination of superannuation fund;
(k) Verto wage subsidy agreement dated 8 December 2014;
(l) Skilled wages timesheets completed by Mr Marshall for the following weeks:
(i)9/12/2014 to 13/12/2014;
(ii)15/12/2014 to 19/12/2014, and
(iii)8/1/2015 to 9/1/2015;
(m) Skilled pay advices for the weeks ending 17 December 2014,15 December 2014 and 29 January 2015;
(n) various site maps and pictures relating to the area in which Mr Marshall alleges injury, and
(o) documents relating to investigation by Mr Marshall into non-payment of his superannuation by a company called Chernco Pty Ltd.
Mr Marshall also annexed to the appeal application statements by him purporting to explain the relevance of the new documents. Included was a further statement amending his earlier statement dated 11 October 2016.
Mr Marshall submits that the evidence ought to be admitted for the following reasons:
(a) the handwritten notes of Dr Kumar provide evidence that he was examined by the doctor on 9 January 2015 in relation to his injury;
(b) the MRI referral establishes that he did consult Dr Kumar on 9 January 2015. Mr Marshall states that he gave the MRI referral to Mr Greg Le Breton of the John Holland Group (the site supervisor) on 13 January 2015, and
(c) the employment documents and telephone records show that he was required to perform work that was not within his job description, which he reported to Skilled by telephone on 19 December 2014 and 22 December 2014. This evidence, he says, refutes the allegation that he made that complaint on 9 January 2015, and that Mr Tobin spoke to him on 13 January 2015.
Mr Marshall submits that the above documents are “vital” documents that had been left out of his case without his knowledge.[7]
[7] Appeal submissions, p 63, [38].
Skilled submits that the application to have further documents admitted should be refused. Dealing with the documents in turn, Skilled submits that:
(a) in relation to the MRI scan referral allegedly dated 9 January 2015, Mr Marshall’s allegation that he gave the referral to Mr Greg Le Breton, the site supervisor, on 13 January 2015 is a new allegation and inconsistent with Mr Marshall’s prior evidence. Skilled refers to Mr Marshall’s prior statement dated 11 October 2016;
(b) further, Mr Le Breton denied having been given the referral and it is difficult to comprehend why Mr Le Breton, who was not employed by Skilled, would want the referral;
(c) Mr Marshall’s prior evidence was that Dr Kumar told him to fill in and submit the workers compensation claim forms, and that when he was given a claim number, the doctor would then refer Mr Marshall for an MRI scan;
(d) the WorkCover certificate allegedly dated 9 January 2015 is not signed by a medical practitioner and refers to a “bruised elbow”, when no such complaint was mentioned in Dr Kumar’s oral or documentary evidence. Skilled does not accept the authenticity of the document, and describes it as “self-serving”;
(e) the handwritten notes from Dr Kumar do not assist Mr Marshall. The first document does not bear a date and the notes of subsequent consultations post-date the alleged date of injury. Skilled contends that the later documents, which were noted to be within business hours, challenge the assertion that Dr Kumar hand wrote the notes allegedly made on 9 January 2015 because the consultation was after hours;
(f) Mr Marshall’s amended statement is inconsistent with his earlier statement evidence dated 11 October 2016, his oral evidence in the previous proceedings and the history he provided to Dr David O’Keefe, orthopaedic surgeon, that he was given the MRI referral on 30 January 2015, and
(g) none of the evidence is “fresh evidence”. The evidence is contradictory to the evidence before the Senior Arbitrator and such inconsistencies do not advance Mr Marshall’s case. In accordance with Barrett JA’s observations in CHEP Australia v Strickland,[8] the continued unavailability of the documents would not cause substantial injustice in the case and the documents ought to be rejected.
[8] [2013] NSWCA 351;12 DDCR 501 (Strickland).
Consideration
Section 352(6) of the 1998 Act provides that fresh evidence or additional or substituted evidence that was not before the Senior Arbitrator in the arbitral proceedings may only be admitted on appeal with the leave of the Commission. The Commission is not to grant leave unless the evidence was not available to and could not have been reasonably obtained by the party seeking to adduce the evidence, or that a failure to grant leave would cause a substantial injustice in the case.
The documents sought to be adduced by Mr Marshall are clearly documents which were available to him and could reasonably have been obtained by him in the proceedings before the Senior Arbitrator. It is therefore incumbent upon Mr Marshall to establish that if the documents he seeks to rely on were not admitted, it would cause him a substantial injustice.
The Court of Appeal considered the Commission’s power to admit late evidence on appeal in Northern New South Wales Local Health Network v Heggie,[9] in which Basten JA said that:
“the basic purpose of the power in s 352(6) is to allow the Commission to admit further additional evidence which, if accepted, would be likely to demonstrate that the decision appealed against was erroneous.”[10]
[9] [2013] NSWCA 255;12 DDCR 95 (Heggie).
[10] Heggie, [66].
Justice Basten further considered the Commission’s power to admit further evidence on appeal in Strickland, where his Honour observed:
“The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”[11]
[11] Strickland, [31].
Mr Marshall asserts that the documents (other than his amended statement) ought to have been relied on by his legal representatives in the arbitral proceedings.
The referral for an MRI scan is said to be dated 9 January 2015. As Skilled submits, Mr Marshall’s evidence prior to this appeal[12] and Dr Kumar’s oral evidence[13] was that Dr Kumar did not refer him for an MRI scan until 30 January 2015. Further, the history provided to his medicolegal expert, Dr O’Keefe, in September 2015 was that he did not consult Dr Kumar until 30 January 2015.[14]
[12] Mr Marshall’s statement dated 11 October 2016; Application to Resolve a Dispute (ARD), p 19, [55].
[13] Transcript of Proceedings, Marshall v Skilled Group Ltd (324/18, 27 March 2018), T2, 23.15–24.
[14] Report of Dr O’Keefe dated 2 September 2015; ARD, p 2.
The Senior Arbitrator provided a lengthy assessment of the conflict in, and the unsatisfactory nature of, the evidence which is discussed below. He commented that “there are just too many questions without answers.”[15] The admission of the MRI scan referral would only serve to add to the inconsistencies already in evidence. Applying Strickland, I cannot accept that the admission of that document would result in a different outcome in this case. The document is not admitted.
[15] Reasons, [293].
The WorkCover certificate (described by Mr Marshall as a WorkCover form) is not signed by a medical practitioner and the author of the information provided has not been identified, although it is signed by Mr Marshall. Mr Marshall submits that the document goes to establish that he did in fact attend Dr Kumar on 9 January 2015. In the absence of Dr Kumar’s signature, and in the light of the WorkCover certificate from Dr Kumar dated 30 January 2015 that indicates the first consultation was on 30 January 2015,[16] the document can be given no weight and is not admitted.
[16] ARD, p 51.
The handwritten clinical notes from Dr Kumar add nothing to Mr Marshall’s case. Two of the pages, the first of which is an undated entry recording the alleged injury and the second an entry in April 2015, were already in evidence before the Senior Arbitrator. The third page contains entries for consultations in June 2015, well beyond the alleged date of injury and do not assist Mr Marshall in establishing injury on 9 January 2015.
Similarly, Mr Marshall’s timesheets and payslips were before the Senior Arbitrator and were considered by him in his reasons.[17]
[17] Reasons, [232], [234], [236].
It is not appropriate for Mr Marshall to now seek to amend his statement evidence. An appeal brought pursuant to s 352 of the 1998 Act is not a re-hearing. It is limited to the identification of error of fact, law or discretion on the part of the Senior Arbitrator[18] and parties are bound by the forensic choices they or their representatives made at first instance.[19] In any event, the amended evidence is so inconsistent with the earlier evidence that its admission would be of no assistance to Mr Marshall.
[18] Section 352(5) of the 1998 Act.
[19] Caruana v Darouti [2014] NSWCA 85, [124]–[125].
In respect of the telephone records of Kerrie Stevens (Mr Marshall’s wife) from 5 December 2014 to 4 January 2015, Mr Marshall also attached the records from 5 January 2015 to 4 February 2015, which were already in evidence and considered by the Arbitrator. Mr Marshall submits that the records establish that the contents of the telephone log taken by Skilled employee Ms Shamael Keng dated 9 January 2015 actually relate to a complaint he made to Ms Keng in December 2014. At best, the documents go to show that calls were made from Ms Stevens’ telephone to Skilled on 27 November 2014, 4 December 2014 and 22 December 2014. Further calls to Skilled were made on 9, 13, 15 and 27 January 2015.
The call made to Skilled on 9 January 2015, logged by Ms Keng, was made to a different number to the calls made prior to the date of the alleged injury. The evidence does not show that Mr Marshall spoke with Ms Keng prior to 9 January 2015, about the matters that Ms Keng noted in the log dated 9 January 2015. The telephone records do not assist Mr Marshall as to the subject matter of the various calls he has identified. The telephone records do not provide any probative evidence that Mr Marshall reported his injury on 9 January 2015 or rang Skilled or Mr Le Breton and reported his injury on any of those dates. The Senior Arbitrator observed in his reasons that there was an absence of a telephone record to substantiate that Mr Marshall rang Dr Obeid and Dr Kumar on 9 January 2015. Even if the above telephone records were admitted, their admission would not fix the lacuna in the evidence identified by the Senior Arbitrator. The records are not admitted.
The remaining documents (including the site maps and photographs) are of no assistance to Mr Marshall’s appeal and have no bearing on whether the Senior Arbitrator erred in respect of his factual finding that Mr Marshall had not discharged the onus of proving he suffered an injury as alleged on 9 January 2015. It follows that I am not satisfied that the documents would lead to a different outcome, and they are not admitted.
None of the documents sought to be admitted by Mr Marshall are admitted in this appeal.
THE EVIDENCE
Mr Marshall’s evidence
Mr Marshall provided a 16 page statement dated 11 October 2016. Some of the matters referred to by Mr Marshall are not relevant to the appeal and are not included in this summary of his evidence.
Mr Marshall said he commenced employment with Skilled on 9 December 2014, who provided labour to the John Holland Group (John Holland). He worked until 20 December 2014, when he took the Christmas break. He returned to work on 9 January 2015, working on the construction of a new road. He said that on his return, there were a number of disgruntled employees, one of whom was Mr Phil Harries, who complained that John Holland had not paid him for services he provided to them under a sub-contract arrangement. Mr Marshall said that Mr Harries was on the telephone all day, complaining about the money owed. Mr Marshall said that Mr Harries was talking on his mobile telephone while he was operating the excavator.
Mr Marshall described the operating mechanisms of the brake pedals, controls and gear sticks of the excavator. He said that the controls allow the operator to pivot and rotate the machine.
Mr Marshall said that on that day, they were constructing sub soil drainage, which was a trench beside the road that was about four feet deep. First, they were to lay gravel, then a pipe with more gravel on top of the pipe. The trench would then be sealed with “geo cloth” and back filled with soil. Mr Harries was working half way down the road, going backwards and forwards, filling the trench with the machine blade. At that time, Mr Marshall was working with Mr Peter Hill, closing the trench with the “geo cloth”. He said that Mr Hill told him to retrieve a string line, which ran alongside the trench. Mr Marshall said that as he did so, he came within a metre of the excavator, and he observed Mr Harries talking on his phone while driving the excavator away in the opposite direction. As Mr Marshall was retrieving the string line, he noticed the tracks of the excavator over his left shoulder, which he said were “right on top of me.”[20] He said the only way he could avoid the excavator was to jump out of the way. He jumped over the left-hand corner of the vehicle, was hit by the vehicle while he was in the air and landed at the base of the excavator between its tracks.
[20] ARD, p 14, [30].
Mr Marshall reported that Mr Harries swore at him and told him that next time he would run him over. He said that when he “came out the other side,” he was in shock and everyone was yelling at him.
Mr Marshall said that he crawled onto the road and was in pain. He said Mr Hill told him just to shake it off, stop whinging and to get back to work. Mr Marshall said he advised Mr Hill that he was injured and was unable to do the hammering and shovelling he was told to do. He said Mr Hill then told him go and get the roller. When he returned with the roller, he said Mr Hill swore at him and told him to get out of the roller. He said Mr Hill was angry, told him he should quit work and that if he reported the injury to Mr Le Breton, Mr Le Breton would terminate his employment.
Mr Marshall said he then went to the main office, but everyone had gone home for the day.
He said that when he went home, he told his wife, Ms Kerrie Stevens, about the injury and at her suggestion rang Skilled and reported the injury. He advised them he was on his way to his usual general practitioner, Dr Kumar, who he had already contacted. He said Skilled told him to report the incident to Mr Le Breton as soon as possible.
Mr Marshall advised that Ms Stevens drove him to Dr Kumar’s surgery. It was about 6 pm and the surgery was closed but Dr Kumar let him in. Mr Marshall said that Dr Kumar assessed his left foot, left elbow and lower back. He recalled that Dr Kumar asked him about beekeeping, but did not recall Dr Kumar making any hand-written notes. Mr Marshall said that Dr Kumar gave him some medication (either tramadol or Endone) from his cupboard.
Mr Marshall further advised that Dr Kumar told him to obtain the necessary workers compensation forms from his employer and complete them, before returning to see him. When he returned to see Dr Kumar, Dr Kumar would provide a referral for an MRI scan of the lumbar spine.
Mr Marshall states that he subsequently attempted to contact Mr Le Breton but was not able to reach him until 11 January 2015. He said that Mr Le Breton was disinterested, but advised Mr Marshall to report the incident at work to him on Monday (12 January 2015). Mr Marshall attended the work site on the Monday, but no-one was there and Mr Le Breton was not responding to his calls. He then contacted Skilled, who said they would get back to him. Mr Marshall said that eventually that day, he contacted the main office of John Holland and was told that it was a flexiday and he should contact Mr Le Breton on the following day. Mr Marshall stated that the person he spoke to said that they would look into the incident.
Mr Marshall said that the following day (Tuesday 13 January 2015), he reported the injury to Mr Le Breton, who threatened him and advised him that Mr Hill had given a different version of the event, and in his view, it was not serious. Mr Marshall said that at 1 pm he was told to go home and report the next day to be interviewed by the work health safety manager.
Mr Marshall stated that he went to work the next day and was told by Mr Le Breton to wait in one of the offices until the safety manager arrived, but the safety manager did not come, and at midday Mr Le Breton told him to go home and return the next day. He said that he returned the next day but at 11 am was told to go home again and the safety manager would ring him. At 2 pm that day Mr Le Breton rang him and told him his services were no longer required and to send in his time sheets to Skilled so that he could be paid.
Mr Marshall said that on at least seven occasions between 9 January 2015 and 29 January 2015 he tried to tell Skilled about his injury and continuing symptoms, but he was brushed aside.
Mr Marshall attended Dr Kumar on 30 January 2015. He said Dr Kumar gave him a WorkCover medical certificate and a referral for an MRI scan. He took both those documents to Skilled that day. Mr Marshall said that despite several telephone calls to Skilled, he did not receive the compensation claim form until 2 April 2015.
Mr Marshall confirmed that Dr Kumar had been his general practitioner since October 2013.
Mr Marshall provided details of subsequent treatment and complained of ongoing symptoms in his low back, referred leg pain and pins and needles in the soles of his feet as well as left elbow pain and immobility.
Mr Marshall indicated that he had access to a report produced by Worksite Investigations following an investigation into his claim. He disputed the written recording of a telephone conversation with Ms Keng on 9 January 2015 at 5.48 pm, and disputed Mr Le Breton’s assertions that he continued to work full duties without complaint until his employment was terminated on 16 January 2015. Mr Marshall further disputed diary notes taken by Ms Michelle Stroud, and asserts that on each occasion he contacted the after-hours contact number, he mentioned his injury. Mr Marshall also denied an allegation by Mr Le Breton that he was a trouble maker in his employment with a previous organisation.
Mr Marshall provided a further statement in December 2017, which dealt with his inability to work and ongoing pain.[21]
[21] ARD, p 245.
Mr Marshall gave oral evidence and was cross-examined during the arbitration. Mr Marshall denied the proposition that he did not attend Dr Kumar on 9 January 2015. He further denied the proposition that he had not been a patient of Dr Kumar and the first time he saw Dr Kumar was on 30 January 2015.[22]
[22] T2, 6.23–7.29.
The transcript of Mr Marshall’s oral evidence in the previous proceedings was also in evidence.[23] In cross examination, Mr Marshall maintained his assertions that:
(a) he attended Dr Kumar on the date of injury and complained of left foot, left elbow and low back symptoms;
(b) he did not see Dr Kumar handwrite any clinical notes;
(c) on the day he was injured, Mr Harries had been using the telephone and told him to move out of the way;
(d) he told Mr Hill and Mr Le Breton that he was injured, and Mr Hill was abusive, telling him to “get up, shake it off and clean the drain”;
(e) he made several telephone calls about work matters and in each of those he mentioned his work injuries, and
(f) he did not know why there was no mention of the left elbow in the claim form signed by him on 13 April 2015.
[23] Reply to Application to Resolve a Dispute (Reply), pp 243–248; Transcript of Proceedings, Marshall v Skilled Group Ltd (5451/16, 13 April 2017) (T1).
During cross examination Mr Marshall denied that:
(a) he told Dr Kumar at the first consultation that he rolled his right foot in the incident;
(b) he told Mr Le Breton not to worry about his complaints;
(c) he worked after 9 January 2015 as a labourer, and in particular that he assisted Mr Le Breton in demolishing the work sheds on 13 January 2015;
(d) at the consultation with Dr Kumar on 1 June 2015, he only complained of reflux and hypertension, and
(e) he provided a history to Dr O’Keefe that:
(i)he tried to see Dr Obeid on the date of injury;
(ii)he waited three weeks to see Dr Kumar, who he saw on 30 January 2015, and
(iii)Skilled insisted he return to work in the office and he continued to work for a further two weeks.
Ms Kerrie Stevens’ evidence
Ms Stevens confirmed in a statement dated 20 May 2016 that on 9 January 2015, Mr Marshall came home and informed her that he had suffered an injury that day when an excavator had almost run over him. She said that he complained of pain and swelling in his right foot and left elbow and it appeared to her that he had hurt his back.
Ms Stevens said she was present when Mr Marshall rang Skilled and Mr Le Breton. Mr Le Breton did not answer his telephone. She stated that Mr Marshall advised Skilled that he had suffered an injury.
Ms Stevens stated that she went with Mr Marshall to see Dr Kumar. She further stated that she was present when Mr Marshall made telephone calls to Skilled and she conceded that during those calls, Mr Marshall mentioned many other issues besides his injuries, such as his wages and working conditions.
She further confirmed that Mr Marshall continued to complain of pain, swelling and lack of movement in his back and left elbow.
History of injury to the medical practitioners
A number of WorkCover medical certificates from various general practitioners were annexed to the ARD covering periods between 30 January 2015 and 22 September 2016. Relevantly, Dr Kumar provided three certificates, dated 30 January 2015, 2 April 2015, and 25 June 2015.
In the certificate dated 30 January 2015,[24] Dr Kumar indicated that the alleged date of injury was 9 January 2015, that the consultation on 30 January 2015 was the first consultation in respect of the injury and that Mr Marshall had no current capacity for employment from 16 January 2015. The injury was described as:
“… while walking up the side of the road, almost run down by a ESCAVATOR [sic], on 09-01-2015, at 11.30 AM. Reported to Peter Hill, and manager was Greg Leeberton [sic].”
[24] ARD, pp 51–53.
Dr Kumar diagnosed a lumbar disc lesion at the level of L5/S1, noting a previous laminectomy in 2006. He recommended analgesics and anti-inflammatory medication and recommended an MRI scan of the lumbar spine.
The same information was recorded by Dr Kumar in the subsequent WorkCover Medical Certificates dated 2 April 2015 and 25 June 2015, with ongoing certification of no capacity for work.
Dr Kumar’s clinical notes were also annexed to the ARD and included two pages of hand written notes.[25] The first page (undated) recorded a history of injury at work on 9 January 2015 to the left foot and low back, the left foot “much better” and pain in the low back. Dr Kumar recorded the mechanism of injury as “At work, almost run down by excavator had to throw himself in the dirt to avoid the reversing machinery”. The second page of the notes recorded “for MRI scan”, which preceded an entry dated 2 April 2015 and referred only to Skilled as the employer.
[25] ARD, pp 38–39.
Typed clinical notes from Dr Kumar’s practice were also included.[26] Those notes commenced on 30 January 2015. The entry for that date recorded the reason for contact as being “disc prolapse” and medication was prescribed. The next note was for the consultation on 2 April 2015, and recorded a complaint of pain, prescription of medication and creation and printing of a “letter” in relation to “NSW WorkCover”. A further consultation was noted on 1 June 2015, with the reasons for contact given as hypertension and gastro-oesophageal reflux disease. Dr Kumar prescribed medication for both of those conditions.
[26] ARD, pp 139–141.
Mr Marshall subsequently moved to Queensland and consulted two other medical practices. Those clinical notes were adduced into evidence, but as nothing turns on those notes, their contents are not recorded here.
On 27 May 2016, Dr Kumar wrote to Mr Marshall’s former legal representatives.[27] Dr Kumar wrote:
“Gar[r]y consulted me immediately [following] an accident at work, on 9th Jan 2015.
He was walking along the side of the road to pick up a string line, [an excavator] almost ran over Gar[r]y, hence he has to jump out of the way, and landed on his right foot-rolled it.
Gar[r]y gave the above [history], around 8 pm, on 9th Jan 2915 [sic].
He was given a pack of Tramadol tabs, for pain relief from my stock, as the chemist was closed in the country town. He was referred for Xray.
He was review on the 30th jan 2015. He was still in lot of pain, with no investigations as the Insurance company failed to co-operate with him.”
[27] ARD, p 136.
Dr Kumar provided further correspondence dated 6 July 2017 directed to “TO WHOM IT MAY CONCERN.”[28] He said that Mr Marshall had consulted him on 9 January 2015, at about 7 pm, presenting with severe discomfort after an accident at work. Dr Kumar explained that as it was at the end of the day, his computer was switched off and so he documented the consultation in his clinical notes. He said that he no longer had the original notes because he left the practice in April 2015. He confirmed that his previous statement was made based on copies of documents and his memory of events.
[28] ARD, p 238.
Dr Kumar also gave oral evidence via telephone at the arbitration and was cross examined.
Dr Kumar confirmed that he saw Mr Marshall on 9 January 2015 after the surgery was closed, and he took handwritten notes because his computer had been turned off. He conceded however that the undated clinical note alleged to be of that date may have been the consultation on 30 January 2015. He further conceded that the note that the left foot was better would seem to indicate that the undated clinical note referred to a time after the date of injury. Dr Kumar agreed that as Mr Marshall’s evidence was that he was given a referral for an MRI scan on 30 January 2015, the clinical note was more likely to have been written on 30 January 2015.
Dr Kumar said that he had not seen Mr Marshall since June 2015 and his report dated 27 May 2016 was prepared on the basis of a copy of his clinical notes. He asserted that he took note of all of Mr Marshall’s complaints, so that if the left elbow was not noted, then Mr Marshall had made no complaint of it. He could not explain why the clinical notes only commenced from 30 January 2015.
A statement dated 24 May 2016 from Ms Eryn Traves, the Practice Manager of Dr Kumar’s former medical practice, was tendered at the arbitration. Ms Traves stated that she had control over Dr Kumar’s original medical and clinical records and that she had perused Mr Marshall’s medical records.
She stated she was familiar with Dr Kumar’s record keeping practices, which was to sometimes handwrite his notes and at other times type them. She said that the entry “9 January 2015” on the first page of the notes was typical of Dr Kumar’s practice of recording the dates that his patients consulted him. She confirmed that there were no other attendance records held at the practice.
Mr Marshall consulted a number of doctors for treatment after he moved to Queensland. The histories of injury provided in those doctors’ notes are relevant to the determination of the merits of this appeal.
On 24 November 2015, Dr Muhammad Ismail, general practitioner, of the Gin Gin Family Medical Centre wrote a referral to Dr Abdul Chaudhry, orthopaedic surgeon. Dr Ismail recorded a “work place injury … wo[rk]ing for [S]killed labourer, couple of injuries including lower back however his left elbow is in fixed flexion and painful, since the injury.”[29]
[29] ARD, p 225.
Consequently, on 9 December 2015, Dr Chaudhry examined Mr Marshall and provided a referral for Mr Marshall to consult Dr Steven Fredericksen, orthopaedic surgeon with a speciality in upper limb conditions.[30] Dr Chaudhry provided a history of injury to Dr Fredericksen that Mr Marshall was injured on 9 January 2015. The history recorded that while Mr Marshall was walking up a hill, an excavator was coming down the hill and spun and hit his left elbow and his left body, causing him to fall to the ground. He suffered pain in the elbow, left knee and back.
[30] ARD, p 226.
Mr Marshall was subsequently referred to Dr Janusz Bankowski, spinal and neurosurgeon by Dr Ayobami Adeniji, general practitioner. The history provided to Dr Bankowski by Mr Marshall was that the excavator hit him on the left side, knocked him over and lifted him off his feet and then he was thrown onto the back of the machine.
Mr Marshall’s former legal representatives qualified Dr O’Keefe to provide an opinion. Dr O’Keefe provided a report dated 2 September 2015, following a consultation and examination. The history given by Mr Marshall was that while he was retrieving a string line, the excavator reversed, pushing him into a trench and he was trapped under the vehicle, injuring his back and left elbow. Dr O’Keefe took the further history that Mr Marshall attempted to consult a Dr Obeid, general practitioner, because of swelling in his left arm, foot and back pain. He was unable to obtain an appointment and so eventually on 30 January 2015 consulted Dr Kumar. Dr O’Keefe recorded that Mr Marshall was required to perform office duties following the report of injury, and that he continued to work for a further two weeks.
At the request of Mr Marshall’s legal representative, Dr O’Keefe reviewed his report and on 31 May 2017, amended the history of initial treatment. On this occasion, Dr O’Keefe reported that Mr Marshall had initially consulted Dr Kumar on the day of the injury, who told him he needed an MRI scan of his back, a CT scan of his left elbow and an x-ray of his left foot. Dr O’Keefe recorded that Mr Marshall then attempted unsuccessfully to consult Dr Obeid because of continuing symptoms. Mr Marshall then returned to Dr Kumar on 30 January 2015.
Skilled arranged for Mr Marshall to be medically examined by Dr Peter Boys, orthopaedic surgeon, on 12 April 2016. Mr Marshall informed Dr Boys that while he was retrieving a string line, he became aware that an excavator was reversing and turning. He said that he had to jump clear to avoid his foot being crushed, was hit on the left side of his body and ended up under the rear of the machine between the tracks.
Mr Phillip Harries
Mr Harries provided a statement dated 2 February 2017.[31] He stated that he was working as a sub-contractor to the John Holland Group and was required to drive his own excavator, other excavators and graders at a project at Wyangala Dam over a period of 18 months. He said that Mr Marshall worked on the site for a short while in the road cutting area, where Mr Harries also worked, almost on a daily basis.
[31] Reply, pp 233–242.
Mr Harries described Mr Marshall as lazy, and spent much of his time telling far-fetched yarns.
Mr Harries denied that Mr Marshall was required to carry equipment weighing 20–30 kilograms and said that the equipment was transported in the bucket of the excavator. He conceded that Mr Marshall assisted with rolling out the ag pipes, which would not have weighed as much as 20 kilograms.
He denied knocking Mr Marshall over with the excavator and further denied that he used a mobile phone while he was operating the excavator. Mr Harries said that there was poor reception in the area and there were only a couple of locations where you could get a signal. He said that the particular excavator he was using was not air conditioned, which meant the cabin was open and too noisy to speak on the telephone.
Mr Harries denied that the trench was four feet deep. He said it was a standard trench depth, which was 600 mm deep and 300 mm wide. He described the method used to fill in the trench. He said he could not recall using string lines on that job, but they could have been used in some parts.
Mr Harries denied that he was scraping soil over the drain as this was not done. He said that he could have been scuttling the trench, with one track of the excavator on each side of the trench, which required him to place a layer of blue metal in the trench, with the trench empty behind him. He said that this job is done very slowly and that Mr Marshall could not have fallen between the tracks because the tracks are seven and a half feet wide and the blade was behind him to balance the bucket at the front. Mr Marshall would have to climb over the blade to get under the tracks, which he described as “rubbish”.
Mr Harries said there was a warning buzzer when reversing, and it was a requirement in John Holland’s induction process that everyone sign off on the requirement to keep clear of the swing arm of the excavator unless there was eye contact and verbal contact with the operator. Mr Harries described how the machine would have been operating. He said that from Mr Marshall’s description he would have been able to see Mr Marshall, and that he was required to watch carefully to avoid driving into the trench and tipping the machine.
Mr Harries asserted that he never observed Mr Marshall jumping out of the way of the excavator, but that on numerous occasions he had to tell Mr Marshall to move away because he would move into the swing zone without eye contact. At times Mr Marshall would walk next to the excavator, trying to talk to Mr Harries. He conceded that he would have sworn at Mr Marshall and told him to get out of the way and if Mr Marshall did not, he would run over him. Mr Harries said that he raised this safety risk issue with both Mr Hill and the foreman.
Mr Harries recalled that on the last day Mr Marshall worked at the dam site, Mr Marshall was operating the roller. He said the roller got bogged, and Mr Marshall left the vibrating unit going while the roller was sitting over concrete pipes, which could have cracked the pipes. Mr Harries said that Mr Hill swore at Mr Marshall and took over the task himself.
Mr Harries said that Mr Marshall went back to labouring duties, complaining that Mr Hill had spoken to him in that manner and querying why he was not permitted to use the roller.
Mr Harries denied that there had been any accident, and that Mr Marshall had been injured that day. He further denied that he would operate machinery in the manner alleged by Mr Marshall. He said that Mr Marshall continued to work in labouring work all that day, with no appearance of any injury, and did not return to work at the dam site after that day. He said that he saw Mr Marshall about a week later, and he did not appear to have any restrictions. Mr Marshall informed Mr Harries that he had quit work.
Mr Harries also gave oral evidence in the prior proceedings.[32] He largely confirmed his statement evidence.
[32] T1, 141.25–191.17.
Mr Harries said that he had observed Mr Marshall working at another site with Mr Le Breton on the Monday after they had finished at the dam site. He denied using the blade on the excavator while reversing and denied that it was possible for Mr Marshall to be struck by one of the tracks, as he would have been run over. He said that he always spun around when reversing the excavator.
Mr Harries admitted that he had difficulties with being paid by John Holland. He conceded that he would at times use his mobile phone, but said that on those occasions the excavator would be stopped and isolated. He asserted that it was too noisy to use a telephone in the cabin while the excavator was being used and both hands were required to operate the machine.
Mr Peter Hill’s evidence
Mr Peter Hill provided a statement dated 14 April 2016.[33]
[33] Reply, pp 189–195.
Mr Hill stated that he last worked for John Holland at the Wyangala Dam Project and was employed as a leading hand. He reported to Mr Wayne Mayo, who in turn reported to Mr Le Breton. He said that Mr Marshall was employed through Skilled to work on the sub-soil drains. He denied that Mr Marshall was required to carry equipment weighing between 20–30 kilograms and also denied that the sledge hammer weighed 20 kilograms. He said that they would drive the star pickets into the ground about 300 mm deep using a star picket driver, but only in a few locations. He said Mr Marshall talked too much.
Mr Hill described an incident on a Friday where Mr Marshall was driving a roller with insufficient revs and was getting too close to an area where there were storm water pipes. Mr Hill said he did not want Mr Marshall to damage the pipes, so he told Mr Marshall to get out of the roller and let him finish off.
Mr Hill said that Mr Marshall was upset by this and claimed he was being sacked. Mr Hill said that he told Mr Marshall he was not being sacked and to turn up for work on the Monday.
Mr Hill recalled that Mr Harries had told him that he had to watch and warn Mr Marshall a couple of times for being too close to the excavator.
Mr Hill said that he did not witness any incident like the one described by Mr Marshall.
He denied that the excavator would be working in the same area where they were marking out a trench. Further, the usual occasion when an excavator might go forward and reverse was when the driver used the blade at the front to push some soil to the side of the road.
Mr Hill said that the excavator is usually positioned further away because the operator has to swing and move the loader arm over the work area, and the swinging loader arm required more than a metre of distance from the work area.
Mr Hill denied that Mr Marshall had been pushed into the trench and trapped. He said that if that had occurred, he would have been aware of the incident and called emergency crews. Mr Hill said that he had been told Mr Marshall also alleged he had to jump out of the way of the excavator and injured his back and elbow. Mr Hill said that Mr Marshall never reported any injury to him, and if he had he would have taken him to first aid. He said he vaguely recalled Mr Marshall complaining of having slipped in a trench on gravel, but not reporting any injury.
Mr Hill said he recalled Mr Marshall worked for a further two weeks after telling him to get out of the roller, working with Mr Le Breton in work that included tasks such as pulling down fences.
Mr Hill made a supplementary statement on 10 January 2017.[34] He stated that he had never seen Mr Harries use his mobile phone while operating the excavator, and that in any event the machinery was too noisy and required both hands free to operate it.
[34] Reply, pp 229–232.
Mr Hill disputed the description of the area as having a mountain side and a low side. He said he did not understand what Mr Marshall meant. Mr Hill described the area as a road cut through a hill with rock face or banks on both sides for most of the 800 metre section.
Mr Hill also disputed Mr Marshall’s evidence in relation to the stringline. Mr Hill said that paint is sprayed along the line to create a mark for the excavator to dig and then the string is removed before the excavator starts to dig. In any event, the practice was to mark out a trench on one side of the road, while the excavator was working on the other side.
Mr Hill stated that Mr Harries would not have been pushing dirt into the trench with the dozer blade because it was not the practice to put soil over the trench. The usual practice is to put blue metal over the pipe and then cover it with road base.
Mr Hill confirmed that he did not witness Mr Marshall being struck or pushed by the excavator and Mr Marshall’s allegation that he was lying on the ground yelling for help was simply not true. He further confirmed that Mr Marshall did not report an injury to him and that he did not hear about the allegation of injury until after 9 January 2015.
Mr Hill also gave oral evidence in the previous proceedings.[35] He confirmed that Mr Marshall reported that he slipped, and that may have been on 9 January 2015. He further confirmed that when he told Mr Marshall to get out of the roller Mr Hill was yelling and he may have sworn.
[35] T1, 98.10–140.30.
Mr Hill insisted that there was no blind spot when the excavator was reversed and that the operator would usually swivel around to see what he was doing. He confirmed that he saw Mr Marshall at a tool box meeting on the Tuesday after the roller incident and again later that week when Mr Marshall was cleaning “v” drains with Mr Le Breton.
Mr Gregory Le Breton
Mr Le Breton provided a statement dated 23 April 2015.[36] He stated that he was the site supervisor at Wyangala Dam. He said that Mr Marshall was employed in general labouring duties as well as some roller operating. He said that the only day to day contact he had with Mr Marshall was at the pre-start meetings each morning.
[36] Reply, pp 69–72.
Mr Le Breton advised that Mr Marshall contacted him at 6.45 pm on Sunday 11 January 2015 complaining about the manner in which Mr Hill had spoken to him on the previous Friday afternoon. Mr Le Breton alleged that Mr Hill swore at him and told him to get off the roller. He further complained that he was working “like a dog” shovelling drains. Mr Le Breton said that as it was a Sunday evening, he asked Mr Marshall to talk to him at work the following day.
Mr Le Breton said that Mr Marshall next spoke to him on 12 January 2015 at 1 pm, when he apologised for calling him on a Sunday and told Mr Le Breton not to worry about his complaint about Mr Hill as he wanted to continue to work without “dramas”. Mr Le Breton added that Mr Marshall then complained of an incident when he had to dive out of the way of the bucket of an excavator driven by Mr Harries. Mr Le Breton stated that Mr Marshall did not mention any injury and did not say when this incident occurred, but that Mr Marshall asserted Mr Harries had sworn at him.
As a consequence of this complaint, Mr Le Breton contacted Mr Harries, who denied any incident occurred. He also contacted Mr Wayne Mayo, the onsite supervisor who was also not aware of any incident. In the absence of any details of when the incident was alleged to have happened and of any further mention of it by Mr Marshall, Mr Le Breton did nothing further.
Mr Le Breton reported that Mr Marshall continued to work, doing normal hours and in labouring duties, without further complaint. He said that from 13–16 January 2015 Mr Marshall was under his direct supervision, worked without restriction and did not refer again to the excavator incident.
Mr Le Breton said that he told Mr Marshall on 16 January 2015 that he had no further work for him, but that if any work did become available, he would let him know. He said that in reality however, Mr Marshall was not fitting in with the crews and he had had enough of him.
On 27 January 2015, Mr Le Breton said that he received a voice message from Mr Marshall, who was on site at Wyangala. Mr Le Breton said that he attempted to call Mr Marshall back a number of times but was unsuccessful. Mr Le Breton said that the project manager, Mr Troy Carveth, Mr Scott Tobin and Ms Kathleen Campbell from Skilled all contacted him and told him that Mr Marshall was making a number of allegations about everyone. Mr Le Breton stated that he was told by Skilled that Mr Marshall was saying something about an ankle injury, and that was the only time he had heard about Mr Marshall suffering an injury.
He said he had not heard from Mr Marshall since 27 January 2015.
Mr Scott Tobin
Mr Tobin was employed by Skilled as a Sales and Service Representative. His role included delivering work health and safety management systems, safety talks and risk assessment. He provided a statement dated 22 April 2015[37] about Mr Marshall’s employment and in relation to Mr Marshall’s contact with the after-hours team members, Ms Keng and Ms Kathryn Falls. Mr Tobin said that there were two reports generated in relation to that contact.
[37] Reply, pp 56–64.
The first report was made on 9 January 2015 at 5.48 pm. It recorded complaints by Mr Marshall that:
(a) he had a number of close calls resulting from lax regard for safety on the site;
(b) he was required to do a lot of shovelling work and was not being given an opportunity on the machinery, and
(c) he was being bullied, shouted at and spoken to rudely by “Peter”.
Mr Tobin said that he was notified of the report when he returned to work on Monday 12 January 2015. He said he attempted to contact Mr Marshall and eventually spoke to him, either later on 12 January 2015, or the following day.
Mr Tobin stated that there was no mention of any accident or injury in either the report made by Ms Keng or by Mr Marshall when Mr Tobin spoke to him on the telephone.
The second report was made on 11 February 2015 at 12.15pm. Mr Tobin quoted the contents of the diary note, which was limited to a complaint by Mr Marshall about a manager, Rodger Sparke. Mr Sparke had been involved in lengthy discussions with Mr Marshall for most of the morning.
Mr Tobin indicated that he spoke to Mr Sparke and Mr Sparke gave him details about the discussions with Mr Marshall. Mr Sparke told Mr Tobin that they discussed rates of pay and safety issues at the dam site. The alleged incident on 9 January 2015 was also mentioned by Mr Marshall. Mr Tobin reported that Mr Marshall described having to jump out of the way of Mr Harries’ machine and hit the ground, injuring himself (without giving details of the nature or extent of the injury). Mr Marshall complained about a verbal altercation that followed.
Mr Sparke made enquiries of Mr Tobin and other staff as to whether they were aware of any injury suffered by Mr Marshall. Mr Tobin said that nobody was aware of any such injury, and as Mr Marshall indicated he did not want to pursue his complaint, the matter went no further.
Ms Kathleen Campbell
Ms Campbell was employed by Skilled as an operations assistant. In her statement dated 22 April 2015,[38] Ms Campbell said that her interaction with Mr Marshall was limited to assisting him in the induction into employment and telephone conversations with him on 27 January 2015 and 29 January 2015.
[38] Reply, pp 74–76.
Ms Campbell stated that on 27 January 2015, Mr Marshall contacted her and advised that Mr Le Breton had asked him to attend work that day, but that there was nobody at the site. He further advised her that Mr Le Breton had intended to arrange a “working at heights” course for him to attend. Ms Campbell contacted Mr Le Breton, who denied telling Mr Marshall he wanted him to work that day and denied that he offered the training course. Ms Campbell said that the day in fact was a rostered day off work.
Ms Campbell received a further call from Mr Marshall on 29 January 2015. Mr Marshall was seeking the facsimile number for the purpose of forwarding his time sheets so that he could be paid for his final two weeks of work. Ms Campbell said that the facsimile she then received was blank, so she obtained the hours he had worked from John Holland, and arranged for payment of his wages.
Ms Campbell said that in the telephone call on 29 January 2015, Mr Marshall became abusive, complained of being injured and requiring medical treatment, and accused both John Holland and Skilled of covering up the incident. He also accused John Holland of fraud and theft and Skilled of not paying him. Ms Campbell explained that Mr Marshall had not been paid because he had not submitted his time sheets.
Ms Campbell further stated that she ceased the telephone call because of Mr Marshall’s abusive manner. She reported the conversation to Mr Sparke, who subsequently had further conversations with Mr Marshall.
Documentary evidence
Mr Marshall’s time sheets and pay slips were in evidence. The time sheet for 9 January 2015 indicated that Mr Marshall worked from 7 am to 5 pm that day.[39] The remaining time sheets were unsigned. The pay slips indicated that Mr Marshall was paid for 16 hours of ordinary time and 2.5 hours at time and a half for the week ending 10 January 2015. For the week ending 17 January 2015[40] he was paid for 32 hours of ordinary time and 2.5 hours at time and a half.
[39] ARD, p 92.
[40] ARD, p 132.
The diary logs recorded by Ms Keng and Ms Campbell were also in evidence and are consistent with the information provided by Mr Tobin.[41]
[41] Reply, pp 197–202.
A further diary log dated 11 February 2015, prepared by Ms Lauren Carter, was annexed to the Reply. It recorded Mr Marshall’s complaints of injury on 9 January 2015 and attached the report of injury.[42]
[42] Reply, p 203.
The report of injury alleged injury to the left foot and lower back. The description of the incident was consistent with Mr Marshall’s statement, but contained no reference to Mr Marshall being struck by the excavator. It described how Mr Marshall dusted himself off, picked up a shovel and continued to work.[43]
[43] Reply, pp 206–207.
Ms Stevens’ landline telephone account (which was for the same number recorded in the injury notification as Mr Marshall’s home telephone number) was also in evidence.[44] It contained details of telephone numbers called during the period January 2015 to 4 February 2015. A hand-written note referred to the names of the people to whom the numbers belonged. That information was not disputed by Skilled.
[44] ARD, pp 96–102.
The record of calls relevantly included calls made to:
(a) an unidentified mobile number on 9 January 2015 at 7.16 pm;
(b) Mr Le Breton on 11 January 2015 at 6.26 pm and on 27 January 2015 at 8.41 am;
(c) Skilled’s offices on:
(i)9 January 2015 at 5.31 pm;
(ii)13 January 2015 at 4.05 pm;
(iii)16 January 2015 at 1.58 pm;
(iv)27 January 2015 at 8.45 am, and
(v)29 January 2015 at 9.26 am.
(d) John Holland on 27 January 2015, and
(e) Cowra Medical Centre on 27 January at 10.21 am and then Dr Kumar’s surgery at 10.26 am on the same day.
The remaining documents in evidence were not relevant to a determination of the issue of liability.
THE SENIOR ARBITRATOR’S REASONS
The Senior Arbitrator identified the issues in dispute. He thoroughly reviewed the statement evidence, the oral evidence given at the arbitration and in the previous proceedings, and the documents that were before him.
He provided a detailed summary of the submissions of both parties.
The Senior Arbitrator considered the authorities discussed in the New South Wales Court of Appeal decision in Nguyen v Cosmopolitan Homes,[45] referred to in President Keating’s decision of Department of Education and Training v Ireland.[46] The Senior Arbitrator concluded that he was required to determine the probabilities of whether the events occurred or whether they did not. That is, in the circumstances of this case, the Senior Arbitrator said that he must feel an actual persuasion that Mr Marshall was involved in an accident on 9 January 2015 and that he suffered an injury as a result of that accident.
[45] [2008] NSWCA 246 (Nguyen).
[46] [2008] NSWWCCPD 134 (Ireland).
The Senior Arbitrator proceeded to review the evidence, commencing with the after-hours service diary log made by Ms Keng on 9 January 2015.
The Senior Arbitrator noted that Mr Marshall had no recollection of the call but that he suggested it may have been made before 9 January 2015. The Senior Arbitrator formed the view that the diary log was clearly a contemporaneous business record of the telephone conversation that was particularly detailed and recorded numerous complaints of lax safety on site. The Senior Arbitrator observed that the complaints were not inconsistent with a complaint of an incident or Mr Marshall having to dive out of the way of the excavator, but made no reference to any injury. The Senior Arbitrator further noted that Mr Marshall claimed the log entry was not exhaustive of the full extent of the injury.
The Senior Arbitrator observed that the claim form completed by Mr Marshall on 13 April 2015 recorded a back injury at 1.30 pm on 9 January 2015 resulting from a “heavy fall to the ground caused by excavator machine”.[47] Mr Marshall indicated that he had reported the injury on 9 January 2015 to Mr Hill and again on 12 January 2015 to Mr Hill and Mr Le Breton.
[47] Reasons, [212].
The Senior Arbitrator noted the lack of consistency in the evidence in respect of the time the injury was alleged to have occurred. In Mr Marshall’s statement, he indicated that the injury occurred after lunch time, the medical certificates recorded the time of injury as having occurred at 11.30 am, and the after-hours log referred to an altercation between Mr Marshall and “Peter” occurred between 12.00 pm and 2.00 pm.
The Senior Arbitrator compared the evidence of Mr Harries and Mr Marshall in relation to the incident, noting that Mr Harries confirmed that he spoke to Mr Marshall in the manner alleged on a number of occasions. The Senior Arbitrator further noted that Mr Harries denied knocking Mr Marshall over and asserted that Mr Marshall could not have fallen between the tracks because the blade would have been in the way. The Senior Arbitrator considered that Mr Harries had made some concessions in his oral evidence, and that Mr Harries’ evidence supported the fact that an event occurred.
There was a consensus, the Senior Arbitrator said, that Mr Hill swore at Mr Marshall when he told him to get off the roller, and that he told Mr Marshall he was not going to terminate his employment. Mr Hill denied that Mr Marshall told him that he was injured, as did Mr Harries. The Senior Arbitrator further noted that there was no dispute that Mr Marshall performed some labouring duties in the afternoon of 9 January 2015.
The Senior Arbitrator reviewed Mr Hill’s evidence, in which Mr Hill denied that he witnessed the alleged incident and denied Mr Marshall reported an injury to him. The Senior Arbitrator considered that Mr Hill’s evidence was unconvincing, given that in his oral evidence he made a number of concessions as to the manner in which Mr Harries carried out his duties. Additionally, Mr Hill asserted that the excavator would not have been working in the same area as Mr Marshall, which was inconsistent with the evidence of Mr Harries, who said that he was driving the excavator close to where Mr Marshall was working and he had to tell Mr Marshall to get out of the way. Further, the Senior Arbitrator noted Mr Hill’s evidence was inconsistent with that of Mr Le Breton, who confirmed that on 12 January 2015, Mr Marshall complained to him of the incident with Mr Harries, although Mr Le Breton denied Mr Marshall told him he was injured.
The Senior Arbitrator concluded that he was satisfied that an incident occurred on 9 January 2015.
The Senior Arbitrator proceeded to examine the further evidence relied upon to establish that Mr Marshall was injured in that incident.
The Senior Arbitrator noted that the after-hours log dated 29 January 2015 recorded that Mr Marshall had been seeing a doctor for his work injury, and that this could be consistent with Mr Marshall’s allegation that he saw Dr Kumar on 9 January 2015.
He noted the telephone records confirmed that Mr Marshall called Skilled on 9 January 2015 at 5.31 pm and rang Mr Le Breton on 11 January 2015 at 6.26 pm, and that was consistent with the statement evidence. There was no evidence that Mr Marshall called Skilled on 12 January 2015, but there was a call at 4.05 pm on 13 January 2015.
The Senior Arbitrator referred to Mr Marshall’s assertion that he used his mobile telephone to ring Dr Kumar but the Senior Arbitrator noted that the mobile telephone records were not in evidence, and said that such evidence was crucial to corroborate that assertion. The Senior Arbitrator referred to the inconsistency between Mr Marshall’s assertion that he called Dr Kumar on that day, and the history provided to Dr O‘Keefe that Mr Marshall initially attempted to consult Dr Obeid, but was unsuccessful and consequently consulted Dr Kumar. The Senior Arbitrator observed that there was no record of a call to either Dr Obeid or Dr Kumar on 9 January 2015. The records showed that on 27 January 2015, Mr Marshall called the Cowra Medical Centre at 10.21 am and then called Dr Kumar’s surgery at 10.26 am. The Senior Arbitrator observed that it was not suggested by Mr Marshall that he called Dr Obeid twice before settling for a consultation with Dr Kumar. He concluded that the allegation made by Mr Marshall that he called those doctors on 9 January 2015 was unsubstantiated.
In relation to Mr Marshall’s assertion that he tried to speak with Mr Le Breton on 12 January 2015, but it was a flexiday and nobody was at work, the Senior Arbitrator considered that allegation to be inconsistent with other evidence. Mr Le Breton’s evidence was that he spoke with Mr Marshall on that day at work at 1.00 pm. It was also inconsistent with the time sheets that recorded Mr Marshall worked and was paid for that day, including 1.5 hours of time and a half.
The Senior Arbitrator considered further inconsistencies in Mr Marshall’s evidence that he did not work after 9 January 2015. That evidence included Mr Marshall’s assertions that:
(a) he was told by Mr Le Breton to go home at lunchtime on 13 January 2015, when the time sheet recorded that he worked from 6.30 am to 4 pm that day, and
(b) he was told by Mr Le Breton to go home at 11.00 am on 15 January 2015, however the time sheet recorded he worked from 7.00 am to 1 pm on that day.
The Senior Arbitrator observed that Mr Marshall worked until 11.00 am on 16 January 2015, which may have meant that Mr Marshall was sent home on that day, as it was consistent with Mr Le Breton ringing him at 2.00 pm and advising him there was no more work.
The Senior Arbitrator expressed the view that there was no reason to doubt Mr Le Breton’s credibility. It was highly unlikely that Skilled would have paid those wages if Mr Marshall was not in fact working. The claim form indicated that Mr Marshall ceased work at 11.30 am on 16 January 2015, and the medical certificate from Dr Kumar also indicated Mr Marshall last worked on 16 January 2015. The evidence of Mr Le Breton, Mr Hill, Mr Harries and Mr Tobin was all consistent with Mr Marshall continuing to work until 16 January 2015.
Further, Ms Campbell’s evidence was that there was an employment agreement that flexidays would fall the day after a public holiday. The Senior Arbitrator observed that there was no public holiday the day before 12 January 2015, so Mr Marshall was incorrect to say that day was a flexiday. Additionally, the after-hours log on 11 February 2015 recorded that Mr Marshall advised he had been provided with half days of work.
The Senior Arbitrator proceeded to consider the evidence going to whether the alleged injury occurred. In the after-hours log of 11 February 2015 and in the injury report, Mr Marshall reported that his injury was caused by jumping for his life, and made no mention of being struck by an excavator.
The Senior Arbitrator observed that it was unclear whether the history recorded by Dr O’Keefe in his original report was provided by Mr Marshall or Mr Marshall’s former legal representative. He noted Dr O’Keefe recorded the history that Mr Marshall was pushed into the trench and was trapped under the vehicle. There was no mention of a left foot injury or that Mr Marshall was struck by the excavator. The allegation that Skilled insisted that Mr Marshall return to work on office duties and was put off work two weeks later was also inconsistent with all of the evidence. Further, the history to Dr O’Keefe was that Mr Marshall attempted to see Dr Obeid, but eventually saw Dr Kumar on 30 January 2015. Dr O’Keefe did not explain why the previous history was incorrect, or what evidence he relied upon to change that history.
The Senior Arbitrator concluded that he could give little weight to Dr O’Keefe’s evidence.
The Senior Arbitrator considered the evidence of Ms Stevens. He noted that Ms Stevens stated that Mr Marshall said he had to jump out of the way of an excavator, injured his right foot and left elbow and appeared to have injured his back. The Senior Arbitrator observed that Ms Stevens’ statement was made almost 18 months after the alleged injury, and that it was “possible that she may be lacking in objectivity.”[48] He further noted that her evidence of a right foot injury was consistent with that of Dr Kumar but at odds with Mr Marshall’s evidence. The Senior Arbitrator concluded that her evidence ought to be given less weight.
[48] Reasons, [210].
The Senior Arbitrator said that Dr Kumar’s documents and oral evidence put into doubt the reliability of Mr Marshall’s allegation of injury and raised more questions than answers. He said the clinical notes appeared incomplete, and did not record a complaint of left elbow injury. Significantly, Dr Kumar conceded in cross examination that the reference in the hand written, undated clinical note that the left foot was “better” indicated that the note was likely to have been made sometime after 9 January 2015 and that it could well have been made on 30 January 2015. The Senior Arbitrator considered that evidence to be a major concession by the doctor. Further, the first WorkCover certificate was issued on 30 January 2015, which noted that date as the first time Mr Marshall attended for treatment of the injury. Dr Kumar certified incapacity from 16 January 2015, which was consistent with Mr Marshall having worked until that date. Dr Kumar also conceded in cross examination that he issued the WorkCover Certificate at the first consultation.
The Senior Arbitrator added that the doctor’s record dated 30 January 2015 shows that the doctor prescribed medication and referred Mr Marshall for an MRI scan of the lumbar spine. The only complaint recorded was a back complaint, casting doubt on the allegation of a left foot and left elbow injury. The Senior Arbitrator noted Dr Kumar’s explanation for the inconsistency between the notes and Mr Marshall’s evidence. The explanation was that Mr Marshall could have attended Dr Kumar on 9 January 2015 and 30 January 2015 was possibly the second visit, when Mr Marshall returned with the MRI scan. The Senior Arbitrator found that explanation implausible.
The Senior Arbitrator further noted that Dr Kumar’s hand written undated note did not lend support for the allegation that it was after-hours and the computer was turned off because there were other hand-written notes that were made during business hours.
The Senior Arbitrator also considered that the evidence of Ms Traves (the practice manager) that the date entered as 9 January 2015 in the hand-written clinical note was the doctor’s usual practice was inconsistent with the entry of 3 April 2015. On that basis, and the fact that Ms Traves was not the practice manager until September 2015, the Senior Arbitrator formed the view that Ms Traves’ evidence ought to be given little weight.
The Senior Arbitrator further observed that in Dr Kumar’s report dated 27 May 2016, the doctor recorded that Mr Marshall jumped out of the way of the excavator and rolled his right foot. There was no mention of injury to the back, left foot or left elbow. Dr Kumar recorded that he saw Mr Marshall immediately after the accident, prescribed Tramadol (which Mr Marshall disputed) and referred Mr Marshall for an x-ray. Dr Kumar said that on 30 January 2015, Mr Marshall continued to complain of pain. The Senior Arbitrator noted further discrepancies in Dr Kumar’s second report, which had been generated in response to a letter from Mr Marshall’s legal representative in July 2017. The Senior Arbitrator commented that the letter was not in evidence, and observed that the alleged time of the consultation, who it was that let Mr Marshall into the practice, and the treatment provided, was in conflict with the documentary evidence and Mr Marshall’s evidence.
The Senior Arbitrator found that Dr Kumar’s evidence was inconsistent and unreliable and his opinion as to injury should be given little weight. The Senior Arbitrator also found that he was not satisfied the hand-written undated clinical note was made on 9 January 2015.
The Senior Arbitrator concluded that:
(a) an incident occurred on 9 January 2015;
(b) the weight of the evidence supported the contention that Mr Marshall was not in fact struck by the excavator;
(c) it was highly unlikely that there was a conspiracy against Mr Marshall, given there were many parties involved, some of whom were not employed by Skilled;
(d) the absence of telephone records to support Mr Marshall’s allegation that he rang doctors about his injury was a major flaw in Mr Marshall’s case;
(e) Doctor Kumar’s evidence was crucial, but raised too many questions without answers;
(f) the evidence established that Mr Marshall worked on until 16 January 2015;
(g) he was not satisfied that Mr Marshall was injured in the manner alleged or at all in the incident, and
(h) applying the principles in Ireland, he was not satisfied that Mr Marshall had discharged the onus of proof in establishing an injury arising out of or in the course of his employment with Skilled.
The Certificate of Determination issued on 12 April 2018 records:
“The Commission determines:
1. The applicant has not discharged the onus of proof on the balance of probabilities that he sustained an injury arising out of or in the course of his employment with the respondent on 9 January 2015.
The Commission orders:
2. Award for the Respondent.
3. No order as to costs.”
GROUNDS OF APPEAL
Mr Marshall alleges two grounds of appeal.
The first ground alleges error by the Senior Arbitrator in finding he did not suffer injury on 9 January 2015. Included under this ground is a complaint that the Senior Arbitrator did not accept that Mr Marshall attended Dr Kumar on 9 January 2015, and found Dr Kumar’s evidence inconsistent and unreliable.
The second ground of appeal alleges error occasioned by the Senior Arbitrator not having before him the documents now sought to be adduced in this appeal.
Both grounds of appeal will be dealt with together.
SUBMISSIONS
Mr Marshall’s submissions
Mr Marshall provided substantive submissions and submissions within statements made by him that were included in his documents attached to his appeal. In summarising his case, I have taken into account all of those submissions,
Mr Marshall submits that the evidence is vital and compelling. He says that the MRI referral dated 9 January 2015 is corroborative evidence that he consulted Dr Kumar on that date.
Mr Marshall further submits that the MRI referral was provided to Mr Le Breton on 13 January 2015, along with his WorkCover certificates as to capacity and wage time sheets for 8 and 9 January 2015. Mr Marshall cannot explain why those documents were not included in his case, and submits that he only became aware that the documentation was not included when he received the file from the Commission.
Mr Marshall provides lengthy submissions, re-iterating his case that:
(a) he reported the injury to Skilled’s after-hours service on 9 January 2015, and to Mr Le Breton on 11 January 2015, who advised he was already aware of what had happened;
(b) he attended the work site on 12 January 2015 but nobody was there;
(c) he rang Skilled and reported his injury to the woman that he spoke to;
(d) he attended the work site on 13 January 2015 and again spoke to Mr Le Breton about his injury. He told Mr Le Breton that the doctor had referred him for an MRI scan;
(e) at the direction of Mr Le Breton, he was to meet the work health and safety officer on site on 13, 14 and 15 January 2015 to advise of his injury, but the safety officer did attend, and
(f) he was told by Mr Le Breton on 15 January 2015 there was no more work for him.
Mr Marshall refers to an email dated 30 March 2015[49] that confirms Skilled were aware of his injury and maintains it is an admission by them. He further submits the document confirms that Skilled had discussions with him about the requirements of making a claim and is compelling evidence in support of his case.
[49] Reply, p 152.
Mr Marshall says that the evidence of Dr Kumar, the medical certificates and the referral for an MRI cannot be read in any other way than as being supportive of his case. He further maintains that Dr Kumar confirmed that Mr Marshall was treated by him on 9 January 2015 and the entry referring to the first consultation as having occurred on 30 January 2015 was a mistake caused by himself.
Mr Marshall contends that the MRI referral, the WorkCover Certificate dated 9 January 2015 and his time sheets were all given to Mr Le Breton on 13 January 2015, and Mr Le Breton told him he would send the documents by facsimile to Skilled.
Mr Marshall further asserts that Dr Kumar thoroughly examined him on 9 January 2015, and that the reference to the left leg being “better” was in relation to an assessment of the left foot, referrable to the back symptoms.
Skilled’s submissions
Skilled submits that it has had difficulties in formulating its submissions in reply because Mr Marshall’s appeal does not comply with Practice Direction No 6 and Mr Marshall’s submissions merely regurgitate the submissions made on his behalf at the arbitration.
Skilled contends that Mr Marshall was well aware that there was an issue as to whether he attended Dr Kumar on 9 January 2015, and that he must have appreciated that any documents that would have been of assistance were not referred to and were not in evidence in the proceedings. Further, Mr Marshall was represented at all times by capable and experienced solicitors and counsel, and if they elected not to rely on such a document, then Mr Marshall is bound by that decision.
Skilled submits that it is clear from the contents of the letter to Mr Marshall dated 24 June 2016 from Mr Marshall’s former legal representatives that they did not have a document such as the MRI referral dated 9 January 2015 in their possession in the prior discontinued proceedings. The reason those proceedings were discontinued was because of the lack of evidence that Mr Marshall had attended Dr Kumar on that date.
Skilled further submits that the referral dated 9 January 2015 contradicts Mr Marshall’s statement and oral evidence that the referral for an MRI scan was given at a later date.
Skilled says that it is clear that the Senior Arbitrator did not find the oral and documentary evidence of Dr Kumar persuasive. Skilled does not dispute that a referral for an MRI scan came into existence, but does dispute the authenticity of the date on the document.
The balance of Skilled’s submissions are limited to whether the new evidence ought to be admitted. I have summarised those submissions at [33] above.
DISCUSSION
As discussed above, Mr Marshall seeks leave to file his appeal out of time. In order to grant leave, I must be satisfied that the failure to grant leave would work a substantial injustice. Mr Marshall must show that there is merit to his appeal. In order to do so, he is required to establish that the Senior Arbitrator erred in fact or law, or in the exercise of his discretion, as required by s 352(5) of the 1998 Act. Section 352(5) also provides that an appeal is not a review or a re-hearing.
Mr Marshall challenges the Senior Arbitrator’s factual determination that he was not satisfied that Mr Marshall suffered injury as alleged. The challenge is limited to submissions that there was vital and compelling evidence that was not before the Senior Arbitrator, and that those documents ought to be admitted into evidence in this appeal. Mr Marshall makes extensive submissions that re-iterate the submissions made by his counsel at the arbitration. There is nothing in those submissions that point to error on the part of the Arbitrator. Mr Marshall is simply asserting (without foundation) that the Arbitrator ought to have arrived at a different decision.
Arbitrations are not a trial run, and the parties must live with the consequences of the forensic choices they make at first instance, including those of their legal representatives.[50] The Arbitrator considered the submissions of the parties and made an evidence based decision in favour of Skilled.
[50] Super Retail Group Services Pty Ltd v Uelese [2016] NSWWCCPD 4, [92].
In D’Orta-Ekenaike v Victoria Legal Aid,[51] the plurality, (Gleeson CJ, Gummow, Hayne and Heydon JJ) said:
“A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.
The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called ‘fresh evidence rule’) are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe: ‘[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial.’”[52]
[51] [2005] HCA 12; 223 CLR 1 (D’Orta-Ekenaike).
[52] D’Orta-Ekenaike, [34] and [35].
In Inghams Enterprises Pty Ltd v Sok,[53] Basten JA said that the requirement to establish “error” in s 352(5) of the 1998 Act and the restriction in s 352(6) on the admission of new evidence on the appeal distinguishes a Presidential appeal from a review or re-hearing. The legislative intention of the provision was to limit the scope of such an appeal.[54]
[53] [2014] NSWCA 217; 87 NSWLR 198; 13 DDCR 139 (Sok).
[54] Sok, [15].
Mr Marshall seeks to have the Senior Arbitrator’s decision revoked and the matter remitted to the same Senior Arbitrator for reconsideration. This is not the role of a Presidential member. If the requirement to establish error is satisfied, I may revoke the determination and either re-determine the matter or remit the matter for re-determination by an Arbitrator.
The onus is on the person who seeks to overturn the decision to establish there are sufficient grounds to do so.[55] It is not sufficient that a different result might have been preferred.[56]
[55] Singh v Ginelle Pty Ltd [2010] NSWCA 310 at [45], [47] and [50].
[56] Heggie per Basten JA, [31].
In order to establish error on the part of the Senior Arbitrator in respect of his factual findings, what is required to be shown is that the Arbitrator either:
(a) ignored material facts;
(b) made a critical finding of fact which has no basis in the evidence;
(c) showed a demonstrable misunderstanding of relevant evidence, or
(d) demonstrably failed to consider relevant evidence.[57]
[57] Henderson v Foxworth Investments Ltd [2014] UKSC 41; SLT 775; 1 WLR 2600, [67].
As described by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr,[58] what is required to demonstrate error on the part of the Arbitrator, is to establish that other probabilities so outweigh the Arbitrator’s conclusion that it can be said his conclusion was wrong.
[58] (1966) 39 ALJR 505.
The only manner in which it is alleged the Senior Arbitrator erred was in not having before him the documents Mr Marshall is now seeking to rely on in this appeal. Some of the documents were before him and were considered.
The Senior Arbitrator particularly considered all of the evidence that pointed to whether Mr Marshall attended on Dr Kumar on 9 January 2015 as alleged. The evidence included the histories recorded by both Dr Kumar and Dr O’Keefe, Dr Kumar’s clinical records, Dr Kumar’s concessions made in cross examination, as well as Mr Marshall’s own evidence.
The MRI scan referral bearing date 9 January 2015, as Skilled submits, is inconsistent with that evidence. The Senior Arbitrator’s concern in relation to the significant inconsistencies identified by him were well founded and it can only be contemplated that had the MRI scan referral been before him, it would have raised further inconsistency and, as the Senior Arbitrator expressed it, even more questions, rather than answers.
Mr Marshall’s attempt to change his own statement evidence, apart from being entirely inappropriate, is an attempt to have a re-trial of the matter in contravention of s 352(5) and in any event falls into the same basket of raising more questions than answers.
I have already determined that the incomplete WorkCover Certificate dated 9 January 2015 carries no weight and that the telephone records add nothing to the assertion that in one or more of those calls, Mr Marshall reported his injury as alleged.
The relevant clinical notes were already in evidence and considered in detail by the Senior Arbitrator, as were the time sheets and pay records.
Mr Marshall has not pointed to any material facts that were ignored by the Senior Arbitrator, or any finding by the Senior Arbitrator that did not have a basis in the evidence. The Senior Arbitrator carefully considered all of the evidence relied on by Mr Marshall and analysed the facts and opinions contained therein. Mr Marshall has not made out either of his grounds of appeal.
Mr Marshall has failed to establish error on the part of the Senior Arbitrator.
CONCLUSION
The role of a Presidential member does not extend beyond setting aside the decision in the limited circumstances permitted by s 352(5). I am not satisfied that Mr Marshall has established error on the part of the Senior Arbitrator. If leave to appeal were granted, a determination of the appeal would not result in a different outcome to that arrived at by the Senior Arbitrator.
Mr Marshall has been unable to establish that a failure to extend time pursuant to r 16.2(12) of the 2011 Rules would result in a substantial injustice to him.
DECISION
The appellant’s application to extend time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused.
Elizabeth Wood
Deputy President
17 October 2018
0
13
0