Parallel Lines Design Construction Pty Ltd v Bevins - [2014] NSWWCCPD 46

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Parallel Lines Design Construction Pty Ltd v Bevins [2014] NSWWCCPD 46
APPELLANT:	Parallel Lines Design Construction Pty Ltd
FIRST RESPONDENT:	Emanuel Sebastian Bevins
SECOND RESPONDENT: INSURER:	Workers Compensation Nominal Insurer Uninsured
FILE NUMBER:	A1-7552/12
ARBITRATOR:	Mr G Edwards
DATE OF ARBITRATOR’S DECISION:	20 February 2014
DATE OF APPEAL DECISION:	25 July 2014
SUBJECT MATTER OF DECISION:	Challenge to factual findings founded upon findings as to credibility of witnesses; procedural fairness
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Self-represented
First Respondent: Second Respondent:	Bourke Love Lawyers Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determinations, declaration and orders as recorded in the Certificate of Determination dated 20 February 2014 are confirmed. 2. Mr Bevins’ costs of the appeal are to be paid by the Workers Compensation Nominal Insurer and the appellant is to reimburse the Workers Compensation Nominal Insurer the quantum of those costs. 3. No order as to the Workers Compensation Nominal Insurer’s costs on appeal.

BACKGROUND

This appeal concerns a challenge brought by Parallel Lines Design Construction Pty Limited (the appellant) to certain findings and orders made by Arbitrator Grahame Edwards in proceedings commenced against the appellant by Mr Emanuel Sebastian Bevins. Mr Bevins alleged that he received injury in the course of his employment with the appellant on 8 April 2011. It is not in dispute that at relevant times the appellant was not a holder of a policy of insurance in respect of liability under the Workers Compensation Act 1987 (the 1987 Act) and the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) as is required by the provisions of s 155(1) of the 1987 Act. By reason of the appellant’s non-insurance, the second respondent, the Workers Compensation Nominal Insurer (WorkCover New South Wales) (the Nominal Insurer) was joined to the proceedings as is permitted by s 140(1)(a) of the 1987 Act.
The injury alleged by Mr Bevins was said to have occurred at a building site located at 22 Stanton Road, Mosman. The appellant was the building contractor which had, through its principal and sole director, Mr Ian Walters, contracted with the owners of the property with respect to construction of a new residence. At relevant times Mr Bevins was employed by the appellant as an adult apprentice. Mr Bevins alleged injury to his lower back as a result of lifting a large metal beam from ground level onto the tines or forks of a hoist. It was further alleged that the back injury was caused by the general nature and conditions of his employment with the appellant, involving repetitive bending, twisting and lifting.
The matter was listed for hearing before the Arbitrator on 4 and 5 June 2013, and 27 November 2013. The principal matter in dispute concerned the question of the occurrence of injury on 8 April 2011. At the conclusion of the hearing the Arbitrator reserved his decision. A Certificate of Determination, accompanied by a Statement of Reasons, was issued on 20 February 2014. A finding was made that Mr Bevins suffered an injury to his lumbar spine on 8 April 2011 in the course of his employment with the appellant. The following determinations, declaration and orders are recorded in that Certificate:
“THE COMMISSION DETERMINES:
1. First respondent to pay the applicant weekly payments of compensation at the rate of $1,200 for the first 26 weeks of total incapacity from 10 June 2011 pursuant to section 36 of the Workers Compensation Act 1987.
2.       First respondent to pay the applicant weekly payments of compensation at the prescribed rate for a worker without dependants, as adjusted in accordance with the provisions of the Workers Compensation Act 1987, thereafter until 13 September 2013 pursuant to section 37(1)(a)(ii) of the Workers Compensation Act 1987.
3. First respondent to pay the applicant’s reasonably necessary medical and related treatment expenses pursuant to section 60 of the Workers Compensation Act 1987.
4. First respondent to pay the applicant’s costs as agreed or assessed. On application of the applicant, I order pursuant to Schedule 6 clause 9(2)(b) of the Workers Compensation Regulation 2010 that the application by the first respondent pursuant to section 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 to put previously unnotified issues in dispute is to be treated as a separate resolution to the resolution claiming compensation benefits for the purpose of the assessment of costs. Pursuant to Schedule 6 Table 4 Item 5 of the Workers Compensation Regulation 2010 where Item 6 would have application, I certify the resolution claiming compensation benefits as complex with a 45 per cent increase in costs otherwise available to the applicant only.
DECLARES:
1.       First respondent was not insured as required by the Workers Compensation Act 1987 at the time of the worker’s injury.
ORDERS:
1. That the nominal insurer pay any compensation and costs awarded against the first respondent from the Workers Compensation Insurance Fund established under section 154D of the Workers Compensation Act 1987.
2.       Second respondent (nominal insurer) to have credit for compensation benefits paid to the applicant.
3.       That the first respondent reimburse the nominal insurer for:
(a)amounts paid out of the insurance fund in respect of compensation and costs awarded against the first respondent, and
(b)the costs of the nominal insurer.
A statement is attached to this determination setting out the Commission’s reasons for the determination.”

PRELIMINARY MATTERS

Thresholds

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

On the papers

Each of the parties has submitted that this appeal may proceed to be determined “on the papers” as is permitted by s 354(6) of the 1998 Act. The appellant does not, on this appeal, have the advantage of legal representation. Conduct of the appeal has been undertaken by Mr Walters. Following my perusal of the appellant’s application filed with respect to this appeal, I directed that a telephone conference take place which was conducted on 13 May 2014. Mr Walters attended that conference on behalf of the appellant, Mr Bourke, solicitor, appeared on behalf of Mr Bevins, and the Nominal Insurer was represented by Mr Dolan, solicitor. During that conference the issues raised on behalf of the appellant were identified with some particularity and some minor difficulties concerning the state of the documentation were addressed. Determination of the appeal may, in my view, be determined on the papers.

ISSUES IN DISPUTE

The appellant has provided primary submissions in support of the appeal as well as a written response to the opposition to the appeal filed on behalf of Mr Bevins and the Nominal Insurer. On 22 May 2014 the appellant filed a document headed “Extra Submission” which addressed the Arbitrator’s findings concerning the physical circumstances of the movement of the steel beam on 8 April 2011 and the question of costs.
The submissions provided represent an analysis of the Arbitrator’s findings and detailed criticism of the reasoning expressed and conclusions reached by him. It was ascertained at the telephone conference that the fundamental challenge raised on appeal concerned the Arbitrator’s finding of the occurrence of injury. In submissions, the appellant seeks to identify a number of suggested factual errors, as well as suggested omissions by the Arbitrator to consider relevant evidence. The issue raised is whether the Arbitrator has erred concerning his factual finding that Mr Bevins suffered injury as alleged on 8 April 2011.
A further challenge to the Arbitrator’s determination is founded upon a suggested denial of natural justice. It is argued that the manner in which the proceedings were heard and determined demonstrates that the appellant had been denied procedural fairness. It is argued that the determination should be set aside by reason of that suggested failure.
The appellant also challenges the quantum of weekly payments awarded to Mr Bevins as found at [1] of the Arbitrator’s determination noted at [3] above.

FRESH OR ADDITIONAL EVIDENCE

The appellant states at 2.5 of the Application made with respect to this appeal that it seeks to adduce new evidence. The manner in which forms have been completed and the submissions which accompany the relevant documentation have given rise to some confusion as to what documents or material the appellant seeks to adduce as fresh evidence on this appeal. Efforts were made at the teleconference conducted on 13 May 2014 to clarify these matters.
There is no doubt that the appellant seeks to tender correspondence and enclosures from Herbert Consultancy to Mr Robert Kellaway of Kellaway Cridland dated 26 November 2011. That correspondence was prepared by Herbert Consultancy following conduct of a Wage Audit which was prompted by the absence of relevant insurance. The annexures to that correspondence address payments made by the appellant to a large number of parties described as “contractors”. Included among those contractors are Mr Trevor Fagan, Mr Peter Richmond and Mr Bevins. The author of those annexures, who is not identified, expressed the opinion that Mr Fagan, Mr Richmond and Mr Bevins were, at the time of payment for services made by the appellant, “deemed workers” of the appellant. That correspondence and annexures are marked “Annexure G”.
The appellant has annexed to the application concerning this appeal a copy of a compact disc which contains recording of the proceedings before the Arbitrator. That disc is marked with the letter “J”.
There is also annexed to the application a sketch which is marked “Annexure K”. That sketch depicts, what is said to be, the probable position of the relevant steel beam during movement as described in Mr Bevins’ evidence.
Section 352(6) of the 1998 Act makes provision for the admission of fresh evidence on appeal as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
It is proposed to deal with each of the documents in turn:
(a)     Correspondence from Herbert Consultancy: This document and the annexures appears on its face to have come into being on a date well before the conduct of the hearing before the Arbitrator. In the circumstances the document may only be admitted if it be established that failure to grant leave would cause substantial injustice. It is apparent that the appellant wishes this document to be before the Commission to permit an argument that error had been made by the Arbitrator concerning the relationship between the appellant and Mr Fagan. Leaving aside the question of the reliability and weight of the document in the form it is tendered on this appeal, I have reached the conclusion that the contents of the correspondence and the annexure have no relevance to questions raised before the Arbitrator and determined by him. Accepting for present purposes that the relationship between the appellant and Mr Fagan was that of principal and contractor and further that the relationship should properly be construed as being one of employer and deemed worker, that fact has little, if any, relevance to the matters determined by the Arbitrator. I note in passing that the reliability of this document is questionable, given, by way of illustration, that Mr Bevins is also stated by the unidentified author of the documents annexed as being a deemed worker, whilst the evidence before the Arbitrator clearly established that Mr Bevins was an indentured apprentice and, as such, was an employee of the appellant. Leave to tender the correspondence and annexures is refused.
(b)     The compact disc: A transcript of proceedings before the Arbitrator has been produced and is before the Commission. Copies of that transcript have been made available to the parties. There is no suggestion made by the appellant that that transcript contains any defect or relevant inaccuracy. The appellant’s intention in seeking to adduce the compact disc was stated by Mr Walters at the telephone conference as being to permit an application that I listen to the evidence of particular witnesses. It was argued, both in submissions and at the telephone conference, that it was “very important” that the tone and manner of those witnesses be heard. The compact disc forms part of the Commission’s record and, in my view, need not be the subject of an application such as the present. As foreshadowed at the telephone conference, I do not consider it appropriate in all the circumstances that I listen to that recording. This mater is discussed further in the course of discussion below.
(c)     Sketch of steel beam: It appears that the appellant seeks to tender this sketch as a means of demonstrating the falsity of Mr Bevins’ evidence concerning the manner in which the beam was transported upon the concrete slab at the subject premises. This particular aspect of the evidence was dealt with during the hearing before the Arbitrator and is again addressed in submissions which have been prepared by the appellant with respect to the appeal. The argument advanced is addressed below and I have reached the conclusion that no assistance is provided concerning relevant argument by the matters depicted in the sketch. I have also reached the conclusion that the appellant has failed to establish that to deny a grant of leave would give rise to substantial injustice in the case, and the application is refused.

THE ARBITRAL PROCEEDINGS

The fundamental dispute before the Arbitrator concerned the question as to the manner in which a steel beam was moved by those present at the building site on 8 April 2011. This relatively straight forward issue, having regard to the manner in which the matter was presented to the Commission and to the large volume of documents in evidence, occupied, as noted earlier, three hearing days.
It is common ground that a number of steel beams were delivered to the worksite at about midday on 8 April 2011. Present and working at the site were Mr Bevins, Mr Walters, Mr Fagan, Mr Richmond and Mr Joel Gaul. The driver of the delivery truck, which was equipped with a crane, placed the beams on the ground. There is some dispute as to the exact position the beams were placed, however it is clear that they were left by the driver at a point near to the front boundary of the site upon a “makeshift driveway” which sloped down towards the building under construction, an approximate gradient, as described in evidence, of one in four.
It was Mr Bevins’ case that the relevant large beam, said by him to be 9.2 m in length, was placed upon pieces of 2x4 timber which permitted “some clearance under the beam above ground level”. The driveway terminated at a temporary set of three or four steps which had been built by Mr Bevins. Those steps led down to a concrete slab which had been fabricated as part of the construction.
There were a number of written statements made by Mr Bevins in evidence before the Arbitrator and he also gave oral evidence. It was Mr Bevins’ case that he, together with Mr Walters, Mr Fagan and Mr Richmond, moved the large beam a distance of approximately eight metres down the driveway, which he stated comprised “uneven gravel and dirt” towards the temporary stairs. He stated that he and his fellow workers were “spread along the beam with [Mr Bevins] at the front dragging – facing in the opposite direction to which the beam was travelling, and dragging the leading edge under our legs”. The beam was manoeuvred to a position where it “tilted down” beyond the stairs towards the concrete slab upon which was placed a metal tube which was about 600 millimetres in length. There were two hoists positioned on the concrete slab. This manoeuvre was described by Mr Bevins in his statement dated 21 May 2012 (at [67]– [69]):
“67. We continued to pull and push the beam until it actually tilted down and then bumped it down one or two of the three stairs until we could get the beam at a sufficiently flat angle to balance it on the roller (a piece of round steel scaffolding).
68. This involved the four of us moving the beam sometimes only a few inches at a time, then shuffling and repositioning ourselves, and moving a few more inches, taking the weight at the top end and lowering it carefully on to the step, and repeating the process many times before we could get the bottom end of the beam onto a roller.
69. Because of the length of the beam and the angle between the beam and the floor (taking into account the height of the steps – about 900 mm) in order to stop the beam gouging into the floor, we could only roll the beam along the roller for a very short distance (a few inches) before having to reposition ourselves and the roller. Just like getting the beam onto the roller in the first place, once we have it on the roller we had to repeat the repositioning process many times in order to get the beam up to the end of the corridor.”
Mr Bevins stated that those involved in the movement of the beam included himself, Mr Walters, Mr Fagan and Mr Richmond. Once the beam came to rest on the concrete slab there was a need to lift the beam onto the hoists. The first hoist, near the base of the steps, had a piece of timber placed across the tines or forks. The lift required was “three hundred mm at the most” (T1.107). Mr Bevins performed this lift with Mr Walters to his left and Mr Richmond to “the right hand side”. Mr Bevins described standing with his right foot on the step and his left foot on the ground as he lifted the end of the beam with his fellow workers onto the hoist. It was then that he experienced severe pain in his lower back and right leg. The lift was made on the count of three. Mr Bevins could not recall who did the counting. Mr Bevins estimated the weight of the beam as being 400 kilograms. Mr Bevins states that he exclaimed that he had injured his back at the time of injury in the presence of his fellow workers.
A supplementary statement, dated 21 February 2011, by Mr Bevins was in evidence before the Arbitrator. A number of documents were annexed being copies of architectural drawings of the cottage under construction at the time of the alleged injury. Those drawings depicted the position of the relevant beam at different stages of the operation, as described by Mr Bevins. The diagrams numbered “5” and “6” demonstrate the position of the beam wholly within the corridor of the cottage with each hoist in place at either end. It is noteworthy that the position of the temporary stairs as demonstrated on that diagram, conflicts with the balance of the evidence. The diagram indicates that those stairs were actually within the building, whereas it is clear that the steps were constructed at the end of the driveway, outside the building, some short distance from the entrance to the cottage. It is also noteworthy that the manner in which the statement is expressed by Mr Bevins is in stark contrast to the manner in which his evidence was expressed in the course of the hearing before the Arbitrator. Whether this document represents a faithful record of matters as stated by Mr Bevins is, on one view, a matter of doubt. However no argument has been raised concerning the manner of expression was found in that statement.

The evidence of Mr Fagan provided a detailed description of the manner in which the appellant alleged the steel beam was moved. That evidence is found in a statutory declaration made 11 July 2011 and a statement made 11 August 2011, as well as in Mr Fagan’s oral evidence, which was given before the Arbitrator on 5 June 2012.
The method of movement of the beam upon the driveway was described by Mr Fagan to involve sliding the beam on timber struts and rollers. The struts and rollers were put in place as the beam progressed down the driveway. The beam was “hoisted” by Mr Fagan and Mr Walters. The other workers present, including Mr Bevins, were engaged in positioning the timber struts and rollers. Mr Fagan was at the lower end of the beam and Mr Walters was at the higher or top end. The beam, it was said by Mr Fagan, “moved a lot easier” than he had expected.
The beam was described by Mr Fagan as “a nine metre beam”. Reference was made in evidence to the beam projecting “a good two metres in over the slab onto the first genie hoist” (T2.161) which had been wheeled into position beneath the beam. The hoists were handled by Mr Bevins and Mr Richardson. Mr Fagan described the method (at T2.163):
“And I can’t recall who it was that took the first one. The request was to raise gradually, at a very slow pace, to take the weight of the front of the beam onto the genie hoist. When that was done, [Mr Gaul] was behind with the struts, place them as we all pull forward, being myself and [Mr Walters] and I can’t recall if it was [Mr Richardson] or [Mr Bevins] who was wheeling the first genie hoist. As we moved further down to a point of probably eight metres and the last metre resting at the point at the top of the steps, it was either [Mr Bevins] or [Mr Richardson] who got the second genie hoist, came down to the backside of the beam, placed it in position as the first one was and then slowly raise the lift arm to engage with the beam.
Mr Perry: Slowly raise the lift arm?
Mr Fagan: Yes.
Mr Perry: To do what?
Mr Fagan: Engage with the beam.
Mr Perry: To engage with the beam?
Mr Fagan: So as the beam was resting at the back of, the beam was resting at the top step, so if you can imagine the first genie is eight metres up ahead.
Mr Perry: Yes.
Mr Fagan: The second genie is moving into position where the back of the beam rests on the top step.
Arbitrator: That’s the top step of the makeshift stairs?
Mr Fagan: That’s correct, yes.
Arbitrator: Thank you.
Mr Fagan: So at that point then I instructed either [Mr Bevins] or [Mr Richmond], forgive me, I can’t recall who it was that was on front or who was on back, and the request was then to raise that up and take the full weight of the beam onto both genie hoists.
Mr Perry: And across the tines of the second genie hoist was a piece of timber?
Mr Fagan: There was a piece of timber with a clamp, there was two metal clamps that were clamping these timbers onto the forklift.
Arbitrator: That’s the tines?
Mr Fagan: Yes, correct, sorry.
Arbitrator: Thank you.
Mr Perry: And when you speak of two meal clamps, do you mean one metal clamp per hoist?
Mr Fagan: Correct.”
When questioned as to how the second hoist was placed in position, Mr Fagan stated (at T2.165.23):
“Well if my memory serves me well, it was the second genie hoist that was either in the office space which is either [sic] right hand side to the door. I can’t recall if it was in front of the steps or in the office space.”
Mr Fagan further stated (at T2.166.4) that the beam “had absolutely no reason to sit on the floor”. Mr Fagan did not hear any complaint of back injury having been made by Mr Bevins.
When cross examined, the proposition was put to Mr Fagan that “…the genie hoists never passed each other?” to which he replied (at T2.188.26):
“Well, I can’t say it hasn’t [sic] passed each other but at that point, I can’t recall if we had taken it around through the stud and that’s where my mind is telling me, is that we came through and around and I do recall pulling a stud, a jack stud out of the wall, to pull the genie hoist through”.
Mr Fagan was further questioned concerning the placement of the second hoist, at which time it was again stated by him (at T2.207.11) that “in order for me to get the [hoist] through, I had to pull a stud out”. Mr Fagan also stated (at T2.207.20) that “the door itself was a metre wide and the genie hoist was somewhere in the, about 1100 or so. I just remember we couldn’t get it through and I had to take the stud out”. The “door” mentioned in evidence was identified by Mr Fagan (at T2.207.34) as being “the doorway from the study”.
When re-examined, Mr Fagan stated that when bringing the second hoist into position it could not pass through an opening one metre wide which caused him to take out a jack stud (at T2.227). A plan (exhibit 2) was marked by Mr Fagan as described by counsel (at T2.227).
The statement by Mr Fagan, dated 11 August 2011, which was not the subject of cross examination, included the following responses to questions put by an investigator who had been retained by the Nominal Insurer:
“Q51: Now there were steel beams being delivered to this particular building site?
A: There sure were.

Q52: And how are they delivered?
A:They were delivered by crane onto, what we’d call our driveway avenue. We had rollers. What we have is rollers that we roll them down into the, onto the level slab and from there I hoist them up onto our gennys, me, me personally. Ian helped a bit but personally I wouldn’t say this to Ian or offend him in any way, but he wouldn’t have the strength to do these kind of things. Again, Ian had a back problem some years ago. I’m happy to do so, I’m comfortable to do so.

Q53: You actually placed the beams into the hoist?
A:I do everything. My job is to take responsibility, you know. If something did happen and one of these guys were to be crushed or foot crushed I don’t mind taking responsibility and ownership. I don’t mind saying that.

Q54:So, you’re saying that Mr Bevins’ sole responsibility was to manipulate the hoists?
A:Yes, exactly. And why his job is, his firm job, eyewitnesses, plenty of eyewitnesses to see this one. His job was simply to stabilise them as well as I would put them onto the hoists. So he would stabilise them, he would monitor them, he would move them. All fully aware there was a back problem. All fully aware. There were no hidden secrets. There were never a hidden agenda here. It was made open and clear.

Q55:What was Mr Richmond’s role in this process?
A:Again there was two hoists. He was involved in one of the hoists. Again, he is not very strong, the boys aren’t very strong, they are very…

Q56:This is Mr Richmond you are talking about?
A:Mr Richmond is kind of a bongo player, you know, if you want to say the least. Again the truth is the truth, not very strong, not kind of one of these…”

Oral evidence was given by Mr Joel Gaul who had earlier sworn a statutory declaration dated 8 July 2011. In that declaration Mr Gaul stated:
“I was present on the day the beam was erected and [Mr Bevins’] job was to stabilise the hoist, he didn’t do any lifting. The beam was manoeuvred into position using rollers and lifted with the hoists.”
During the course of a somewhat confusing cross examination, Mr Gaul summarised the movement of the beam as follows (at T2.276):
“I remember it was rolled down the hill, slid down through the stairs, the timber stairs, put on a hoist, put on another hoist, rolled into place. That’s what I remember.”
Mr Gaul had no memory of Mr Bevins lifting the beam off the concrete slab.
Mr Walters, whose evidence was given on 27 November 2013, denied the occurrence of the injury as alleged and stated in evidence that there was no report given to him by Mr Bevins of any such injury. Mr Walters alleged that Mr Bevins was not involved in the handling of the steel beams but rather was occupied “handling the genny [sic] hoists, the stabilising of the genny [sic] hoists”. That work, it was stated, did not involve any manual manipulation of the steel beams. In a written statement, made on 11 August 2011, Mr Walters provided a description of the method adopted to move the steel beams. He stated that “the majority of the beams have been [sic] between 4 m and 6 m. One was approximately 9 m”. The following general description was given by Mr Walters as to the manner of handling the beams (statement dated 11 August 2011):
“Q 104:      What was the method of delivery?
A:              The method of delivery was a truck with a hiab crane.
Q 105:       The truck, where would it drop off these beams?
A:At the time of delivery the driveway was in place, the old driveway was in place. The truck would hiab with the crane the beams onto the driveway and I would always make sure that I had scaffold tube rollers on site and the beams would be rolled down the driveway and onto the new constructed concrete slab.
Q 106:       So, the delivery truck would not have been parked in the street?
A:              Yes, it was parked in the street.
Q 107:       So adjacent to the driveway?
A:              That’s correct.
Q 108:       And the beams would be rolled down the driveway?
A:              That’s correct.
Q 109:       And then what? To a genny…?
A:The ones that had to be lifted up into position were rolled onto a genny Hoist and then a genny hoist under each end and they [sic] two hoists were used to push them along the slab and up into place.
Q 110:And you mentioned earlier that Mr Bevins was never involved in the manual handling of those beams. Is that correct?
A:              That’s correct.
Q 111:Why was that?
A:Because he was always used to stabilise the hoist. Being an apprentice I didn’t feel it was necessary for him to get involved in the manual lifting of the beams. Plus the fact that nobody really had to manually lift the beams at all on the job. The genny hoists were there to do the work. The site was that easy with the rollers and the hoists, no physical lifting was carried out.”
Mr Walters provided a second statement which was made on 18 October 2012. That statement represents a detailed response to the statement made by Mr Bevins. Much of that stated by Mr Bevins is challenged by Mr Walters. Mr Walters again asserted that Mr Bevins was not concerned with lifting of the large beam. The beam in question was said by Mr Walters to be 8.4 m in length. That assertion was based upon structural drawings to which he referred at [4] of his statement. The weight of the beam was said to be 210.84 kilograms. That statement does not contain a detailed description of the manner in which the subject beam was moved.
A further statement made by Mr Walters dated 28 May 2013 is in evidence. That statement, again, challenges much of the evidence of Mr Bevins. There is no detailed description of the manner in which the beam was moved. Mr Walters notes that the position of the temporary steps as depicted in sketches attached to the statement made by Mr Bevins is wrong. The dimensions of the hoist are stated by Mr Walters to be “780mm in width x 1.850mm in length”.
In oral evidence before the Arbitrator, Mr Walters said that the beam had been moved upon the surface of the driveway on rollers and timber gluts. The rollers were metal tubing which had been put in place at the time of delivery of the beams.
It was put to Mr Walters in cross-examination that his evidence was that the beam had been placed onto rollers “and rolled down the embankment”. Mr Walters confirmed in evidence that the surface of the driveway was “quite smooth”. Mr Walters denied that the beam was lifted onto the hoist and asserted that the beam slid into position upon a timber glut placed across the tines of the hoist. It is of significance that Mr Walters gave evidence that the second hoist used to manoeuvre the beam had been brought into position after wheeling it through an open area and through a wall from which stud work had been removed by Mr Fagan.
A statement made by Mr Richmond, dated 18 August 2011, was in evidence before the Arbitrator. Mr Richmond, who was absent from the state and did not give oral evidence, was present on the Stanton Road site on the day of the alleged injury. In his statement, Mr Richmond described movement of the steel beams at that site as follows:
“Q40:        Now, do you recall having to move steel beams on this particular job?
         A:              yes.
Q41:          What can you tell me about that particular aspect?
         A:              Well, the beams were on the ground.
Q42:Where were they delivered to (sic) from the supplier? Where were they dropped off?
A:              They were dropped off in the driveway.
Q43:          On the footpath or actually in the driveway?
         A:              They were dropped off in the driveway.
Q44:          How far down the driveway?
A:Well, right in the driveway. It was only a matter of putting wheels underneath them and dragging them and there was five of us. My back is fine.
Q45:          What do you mean wheels, were they rollers?
         A:              Rollers, rollers.
Q46:          How many rollers did you have there?
         A:              Two rollers.
Q47:OK. And on how many occasions were steel beams delivered to the site to your recollection?
A:Twice.
Q48:And how many beams in each delivery?
A:Well, the first delivery was more and then they needed some more, so I don’t know. I don’t know the exact amount of beams.
Q49:          What kind of beams were they?
         A:              Steel beams.
Q50:          Where they RSJ’s, or any other type of steel beam?
         A:              RSJ’s, they were yeah.
Q51:          Possibly RSJ’s?
         A:              Yep, yep.
Q52:And how long?
A:Some was five, some was four, six, a couple were six metres. It should be in the specifications on the house if there is any problem.
Q53:So can you just describe how you move those beams from the driveway to the actual construction site? Can you describe that?
A:              Yes. We put rollers under the beams and Trevor actually did the lifting.
Q54:          That’s Trevor Fagan?
         A:              Trevor Fagan is a big guy right solid and he goes I will do the lifting.
Q55:          He lifted the beams onto the rollers did he?
A:He took the brunt of the weight. The beam only had to come up like 50 mils so you can slide the roller underneath and drag it and then the genny lifter does the work.
Q56:So how far did you actually roll the beams into the construction site, how far, what distance?
A:Probably I’d say about eight metres for the max.
Q57:Did the beams have to be lifted into place?
A:No, no. Just on the genny lift, which is just a matter of all of us just going right onto the lift and crank them up and put them into place.
Q58:OK, now you say there were five men involved. Who were they, do you recall?
A:Five of us. It was myself, Trevor, Ian, Emanuel and Joel who was onsite doing a lot of welding, he was doing the welding the beams and so forth together and he gave us a hand too.
Q59:To your recollection, did Mr Bevins appear to participate in this exercise without any problems?
A:              Yeah.”
Mr Richmond stated that “everything went smooth” with the movement of the beams and that “there was no accident on that day”.
Mr Bevins gave evidence in reply. Mr Bevins denied that a hoist had been brought around the “back of the, the hallway through a side door” and further denied that a “stud wall in the hallway” had been removed.

OTHER ISSUES RAISED BEFORE THE ARBITRATOR

A number of matters were raised before the Arbitrator which, in some instances, concerned a challenge to the credit of Mr Bevins. Those matters included:
(a)     evidence which suggested that Mr Bevins had experienced back pain prior to the date of the alleged injury;
(b)     that Mr Bevins had worn a back brace when working with the appellant prior to April 2011;
(c)     there was a dispute as to the composition and condition of the surface of the make-shift driveway;
(d)     the appellant disputed that Mr Bevins had some days absent from work following the alleged injury, and
(e)     Mr Bevins was extensively cross examined by Mr Flett, counsel for the nominal insurer, concerning his medical treatment since the alleged injury, with particular emphasis placed during that questioning, upon the histories given by him to the various practitioners consulted.
Those matters summarised above, where relevant to matters raised on the appeal, are addressed during discussion below.
It is relevant to note that in the course of his evidence, Mr Gaul stated that prior to giving evidence on 5 June 2013, he had been to lunch on that day in the company of Mr Walters and Mr Fagan. When questioned as to whether Mr Walters and Mr Fagan had then “discussed the case”, Mr Gaul replied, “I guess so”. Mr Gaul stated that he could not remember what was discussed. Mr Gaul said that, “we spoke about the day, what happened, yeah…the hoist, yeah, we spoke yeah, about that yes” (at T2.243).

SUBMISSIONS BEFORE THE ARBITRATOR

It was acknowledged by counsel appearing on behalf of Mr Bevins that, given the varying accounts as to the manner in which the relevant beam was manoeuvred on 8 April 2011, there existed a factual dispute which gave rise to questions as to the credibility of the various witnesses. It is not proposed to attempt a full summary of argument as presented given that submissions were recorded and a transcript has been produced. The essential argument advanced on behalf of Mr Bevins was that his evidence should be accepted in preference to the evidence of Mr Walters, Mr Fagan and Mr Gaul. It was put that Mr Bevins had been consistent in his descriptions from time to time as to what occurred, and argument was advanced which sought to challenge the credibility of those witnesses called on behalf of the appellant. Those arguments focused upon two principal matters, being the apparent contradiction between Mr Gaul on the one hand, and Mr Walters and Mr Fagan on the other concerning discussions at lunch on 5 June 2013. The other matter raised by counsel concerned the suggested unreliability of the evidence as to the manner in which the second hoist was manoeuvred into position. It was put that the explanation concerning removal of the stud in the wall adjacent to the entry where the hoist needed to be placed, was first mentioned by Mr Fagan only when it became apparent that the two hoists could not pass each other in the corridor. It was suggested by counsel that the evidence concerning that manoeuvre was a recent invention by Mr Fagan and that it should be rejected.
Counsel appearing on behalf of the appellant submitted that the case as presented on behalf of Mr Bevins had been, in practical terms, limited to an allegation of there being a discreet injury rather than, as pleaded, involving both a discreet injury and the consequences of arduous work over a period. It was further argued that, having regard to the inconsistencies concerning histories recorded by various practitioners, that the evidence of Mr Bevins concerning the occurrence of injury and its circumstances should be rejected. Emphasis was placed upon the fact that three witnesses had been called on behalf of the appellant, all of which testimony challenged the facts as alleged by Mr Bevins. The evidence of those witnesses, it was put, should be accepted in preference to the evidence of Mr Bevins.
Counsel appearing on behalf of the Nominal Insurer drew attention to his cross examination of Mr Bevins and argued that the inconsistencies and apparent omissions which are to be noted in histories recorded by various practitioners, following cessation of work by Mr Bevins, suggest that there is considerable doubt concerning the occurrence of injury as alleged. The argument was advanced that, having regard to the deficiencies demonstrated in the evidence relied upon by Mr Bevins, the case as presented by the appellant should be accepted and orders in favour of the respondents should be entered.

Counsel for Mr Bevins, in reply, again directed attention to the suggested deficiencies to be found in the evidence presented by the appellant concerning the physical circumstances involved in moving of the beam. Counsel, when dealing with the histories as recorded by the treating practitioners, argued that on any view of the matters recorded, there was no suggestion that Mr Bevins had suffered a relevant back injury or “condition” prior to the alleged injury. It was put that such inconsistencies were not uncommon when careful scrutiny is given to evidence in proceedings.

THE ARBITRATOR’S DECISION

The Arbitrator, following a summary of the issues for determination, and a brief statement concerning the background to the proceedings, immediately proceeded to address the evidence relating to the events at the subject building site on 8 April 2011. The Arbitrator’s Reasons include lengthy extracts of the oral evidence taken from the transcript and from the exhibits, which included evidence given by Mr Bevins, Mr Fagan, Mr Gaul and Mr Richmond.
At [123] of Reasons, the Arbitrator stated:
“I make the following findings with respect to the steel beams; the driveway and the timber makeshift stairs:
(a)A number of steel beams were delivered to the Mosman site on 8 April 2011.
(b)The smaller steel beams measured between 4 and 6 metres in length.
(c)The large steel beam measured either 8.4 metres weighting at least 200kg or 9.2 metres weighing up to 300 kg.
(d)The steel beams were lifted by a crane attached to the back of the delivery truck and placed onto the top of the makeshift or temporary driveway inside the boundary of the property.
(e)The large steel beam was placed onto pieces of timber and scaffold steel tubes.
(f)The makeshift or temporary driveway consisted of soil, sand, stones, road base and concrete.
(g)The distance of the makeshift or temporary driveway was approximately 8 to 12 metres.
(h)The fall or gradient of the makeshift or temporary driveway from the boundary to the end of the driveway was approximately 450mm to 600mm.
(i)The timber makeshift or temporary stairs was constructed by Mr Bevins.
(j)The timber makeshift stairs consisted of either three or four steps.
(k)The width of each step was between 150mm and 180mm.
(l)The height of the timber makeshift stairs was approximately 450mm to 600mm.
(m)The depth of the timber makeshift stairs was approximately 1 to 1.5 metres.
(n)There was a piece of plywood affixed to the top step described as a platform.
(o)The bottom of the timber makeshift stairs adjoined or butted up against the edge of the concrete slab of the ground floor of the residence.
(p)The purpose of the timber makeshift stairs was to allow access from the end of the makeshift or temporary driveway into the entry/foyer of the residence.”
The Arbitrator proceeded to consider the evidence concerning the conflicting versions as to the manner in which the large beam was transported down the driveway and into the building under construction. Again, the Arbitrator extracted portions of the oral evidence from the transcript of proceedings and a number of matters were recorded in the course of his reasoning. Of significance, concerning the matters raised on appeal, was the Arbitrator’s notation of the evidence at [140] of Reasons that “[t]he width of the genie hoist was approximately 1100mm and about 1.5m in height. The tines or forks were manually wound up to the required height”. When summarising Mr Bevins’ evidence, the Arbitrator recorded (at [141] of Reasons) that immediately before the alleged lift of the beam by Mr Bevins and others, he was in a bent position with his right foot on the first step of the makeshift stairs and his left foot on the concrete slab.
The Arbitrator’s factual conclusions concerning the events which took place on 8 April 2011, became clear when it was stated (at [144]‑[145] of Reasons):
“In my view, what is critical in not accepting the evidence of Mr Fagan and Mr Walters about the hoists used to support the weight of the beam as it rested on the top of the timber makeshift stairs is their failure to disclose in their statements and oral evidence until cross-examination that a stud and noggins were removed from a timber frame to make the door opening wider for the second hoist to be wheeled into position under the steel beam.
It was not put to the applicant in cross-examination by counsel for the first respondent that it was not until the first hoist was backed up the hallway with the end of the steel beam resting on the top step of the makeshift stairs that it was realised that the hoists could not pass in the hallway requiring Mr Fagan to remove the stud and noggins to make the door space wider to enable the second hoist to go through it and be placed under the steel beam.”
The Arbitrator proceeded to extract a lengthy portion of the evidence of Mr Fagan given when cross examined (at [148] of Reasons). That evidence focused upon Mr Fagan’s assertions concerning the manner in which the beam was transported and the use of the two hoists. He then stated (at [149] of Reasons):
“In re-examination, Mr Fagan marked on the plan drawing the direction of (sic) the second genie hoist travelled from the far end of the hallway via the dining room/ kitchen/laundry and through an area adjacent to the foyer/entry of the residence, marked on the plan as the powder room. The plan indicates a powder room but as at 8 April 2011 the powder room wall adjacent to the laundry did not exist. There was only a timber frame with an opening for a doorway adjoining the foyer/entry.”
The plan is exhibit two, tendered on behalf of the appellant.
The Arbitrator’s further reasoning is demonstrated by the following observations and findings which followed his consideration of the oral evidence at ([164], [175] and [179] of Reasons):
“164.I am of the view that it would be unlikely that two experienced persons in the building industry, such as Mr Fagan and Mr Walters, would not have realised that the genie hoist would not fit through the doorway opening in the timber frame, when inspecting the site and working out the logistics as to how the steel beams were to be manoeuvred onto the concrete slab. It would be standard building practice that the doorway opening in the timber frame would be 900mm to 1 metre. In my view, it would be obvious to an experienced builder, or carpenter, that the width of the genie hoist at least 1100mm in width, would not fit through the opening in the timber frame.”
“175.While Mr Gaul said that there was no lifting involved and that hoists were used, he said that the beam was pulled down the stairs. Mr Gaul said that he could not remember the beam being on the concrete floor. Mr Gaul gave evidence about stabilising the hoist, but no evidence about how the hoists were used and that the stud and noggins were removed because the hoist could not get through the door space.”
“179.In my view, Mr Fagan and Mr Walters discussed evidentiary matters pertaining to the use of the genie hoists at lunch on 5 June 2013, as evidenced by Mr Gaul, despite the denials of Mr Fagan and Mr Walters under oath, that there was no such discussion. Mr Fagan said the only discussion was about him being called to give evidence at 2.00pm and that they spoke about the appointment of the new manager to the Chelsea Football Club, a rugby league player urinating on a playing pitch, and about their children.”
The Arbitrator (at [181] of Reasons) rejected the evidence of Mr Fagan and Mr Walters concerning the removal of the stud and noggins from the timber frame to permit access by the hoist to the entry foyer area. At [183], the Arbitrator expressly accepted Mr Bevins’ evidence concerning the manner of manoeuvring the beam. The Arbitrator’s acceptance of Mr Bevins’ evidence was, in part, founded upon the corroboration of his evidence concerning “dragging” of the beam as found in the evidence of Mr Richmond.
The Arbitrator expressly rejected the evidence of Mr Fagan and Mr Walters, that Mr Bevins had worn a back brace whilst working at the Mosman site, before the delivery of the steel beams. It was also found as being “unlikely” that Mr Walters would re-employ a worker who had a back condition “especially one who wore a back brace” (at [190] of Reasons). The Arbitrator expressed his view that there was “a commercial relationship between Mr Walters, Mr Fagan and Mr Gaul” (at [192] of Reasons). The Arbitrator added, that in the case of Mr Walters and Mr Fagan, the “commercial relationship appears [to] be one of mutual financial benefit with either of them sourcing work, such as the Mosman job”. The Arbitrator observed that Mr Gaul had done “sub contract work for Mr Walters over a number of years”, and that he had been working full time on the Mosman site, up to and after Mr Bevins ceased work. The Arbitrator acknowledged that there was “some inconsistency” in the language used by Mr Bevins as to “how he reported the injury to Mr Walters”. Notwithstanding that conclusion, the Arbitrator accepted Mr Bevins’ evidence that he complained to Mr Walters at the time of lifting the steel beam (at [199] of Reasons).
The Arbitrator (at [201] of Reasons), reached the following conclusion which was stated after the finding that he did “not accept [the evidence of Mr Walters and Mr Fagan] where it is inconsistent with the evidence of [Mr Bevins]”:
“I am also of the view that the evidence about the removal of the stud and the noggins from the timber frame was a recent invention by Mr Fagan revealed in cross-examination after agreeing that the hoists could not pass in the hallway. Mr Fagan and Mr Walters had not referred to the removal of the stud and noggins in their interviews with the investigator or in their statements. No evidence was lead from Mr Fagan about the removal of the stud and noggins by counsel for the First Respondent. Significantly, in my view, it was not put to the applicant in cross-examination until he gave evidence in reply that the opening in the timber frame was widened to allow access for the genie hoist. I reject the evidence of Mr Fagan and Mr Walters about the removal of the stud and noggins from the timber frame.”
The Arbitrator proceeded to consider the medical evidence and made findings concerning the nature of the injury and extent of incapacity. A further finding was made that Mr Bevins’ current weekly wage rate at the date of injury was $1200. The Arbitrator proceeded to make the orders which are noted at [3] above.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The submissions prepared by Mr Walters in support of this appeal seek to highlight what are said to be “errors of facts and points of law” to be found in the Arbitrator’s findings and reasoning. Those submissions direct attention to particular matters to be found in the reasons as expressed by the Arbitrator and criticism is made founded upon what is stated to be relevant evidence.
Having regard to the manner in which these challenges have been expressed in submissions, it is proposed to deal with each matter serially as those criticisms appear in the document dated 19 March 2014 filed on behalf of the appellant. The appellant criticises the Arbitrator’s finding concerning the length and weight of the subject steel beam which is found at [123] of Reasons. The finding was that the beam “measured either 8.4 m weighing at least 200 kg or 9.2 m weighing up to 300 kg”. That inexact finding reflects the confused state of the evidence concerning the proper description of the beam. It was Mr Bevins’ evidence that the beam was 9.2 m in length, whereas Mr Walters, when cross-examined, agreed that the beam was 9 m in length. Other evidence of Mr Walters suggested that the beam was 8.4 m in length and weighed 210.84 kilograms. The criticism of that finding must be rejected given the state of the evidence. This matter raised on behalf of the appellant fails to establish any relevant error of fact.
The submissions proceed to criticise the Arbitrator’s finding that the makeshift driveway “consisted of soil, sand, stones, road base and concrete”. The Arbitrator’s finding, in my view, is consistent with the description of the composition of the driveway as found in the appellant’s own case. The Arbitrator acknowledged that the photograph to which he referred had been taken in August 2011, however no express reference was made to the evidence of Mr Peter Hunt concerning his excavation of the driveway on or about 1 August 2011. It is reasonably clear that the Arbitrator has relied, in part, upon the appearance of the residual ground surface demonstrated in that photograph. The Arbitrator’s omission to note the evidence which established that the driveway had been excavated does not, in my view, constitute relevant error. I reach this conclusion given that the finding made by the Arbitrator as to the composition of the ground and its surface is substantially consistent with the appellant’s own case. I also note that the Arbitrator accepted that the beam had been moved upon metal tubes and timber as asserted by the appellant ([123] of Reasons).
The appellant makes reference to the evidence of Mr Flaus, the driver who delivered the subject beams. That evidence has not, in my view, been relied upon by the Arbitrator in reaching his conclusions of fact. I am further of the opinion that the evidence concerning the state of the driveway and the Arbitrator’s conclusions concerning that matter were substantially consistent with the appellant’s case and the findings made with respect to those matters demonstrate no relevant error.
The appellant is critical of the Arbitrator’s finding (at [133]) that the large steel beam was “dragged down the driveway by [Mr Bevins], Mr Walters, Mr Fagan and Mr Richmond between their legs”. The appellant correctly notes that Mr Bevins agreed in the course of cross-examination that the sliding of the beam down the hill had been conducted by Mr Fagan and Mr Walters (at T2.23). The appellant’s submissions proceed to suggest that Mr Bevins “following that response panicked and stated ‘I did some dragging’”. It is this evidence which the appellant has submitted should be listened to on the sound recorded disc. I have earlier (at [15(b)] above) stated that I do not intend to listen to that sound recording. There is no suggestion that the transcript does not faithfully record what was in fact stated by the witness and I do not consider it appropriate that questions of demeanour of a witness should be assessed in that manner on appeal. Such an assessment has been conducted by the Arbitrator and, having regard to those matters stated by the High Court in Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 no attempt to second-guess the Arbitrator’s assessment should be made by the Commission on appeal. The matters stated are found in the joint judgment of Brennan, Gaudron and McHugh JJ (at 479, omitting footnotes):
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his (or her) advantage’ or has acted on evidence which as ‘inconsistent with the facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”
The appellant’s submissions emphasise the fact that evidence was before the Arbitrator that Mr Bevins’ involvement concerned moving the timber gluts and not “the dragging of the steel beam”. It is suggested that there is no evidence to support Mr Bevins’ version and that the appellant’s case is “supported by all the other witnesses”. This submission is a restatement of matters which were argued before the Arbitrator. Those issues necessarily involve questions of credit and the Arbitrator’s conclusion was that the evidence of Mr Bevins was to be preferred to that of Mr Fagan and Mr Walters. Nothing raised in argument on this point establishes a basis for a successful challenge to that determination.
The appellant’s submissions suggest error on the part of the Arbitrator in concluding that the hoists “are 1,100 mm in width”. It is, as argued, Mr Walters’ evidence that the hoists are 760 mm in width. However, in contrast to that evidence, Mr Fagan had stated (at T2.207.22) that the width of the hoist was “about 1100 or so”. It is important, in my view, to note that Mr Fagan’s evidence as to the width of the hoist was given in the context of questions concerning his removal of the stud. It was his evidence that, by reason of the width of the hoist, it was not able to pass through a door frame which was present in that stud wall at that time. The photograph to which reference is made in submissions (annexure D) was not in evidence before the Arbitrator and does not appear to be the subject of an application seeking leave to adduce new evidence. Given the uncertainty concerning the appellant’s applications made with respect to new evidence addressed earlier, I consider it appropriate to note that any such application with respect to the admission of the photograph must fail. The photograph standing alone is of little if any evidentiary weight and there is nothing before the Commission upon which it could be argued that the interests of justice require that the photograph form part of the evidence. Mr Fagan’s evidence on this matter has been accepted by the Arbitrator. Such conclusion was open on the evidence, and no relevant error is demonstrated.
It is suggested in submissions that the Arbitrator (at [143] of Reasons) was “very confused” when it is stated that both Mr Fagan and Mr Walters gave evidence that “both hoists were on the left hand side of the corridor/foyer when entering the house”. The appellant is correct to assert that neither Mr Fagan nor Mr Walters expressly stated that that was the positioning of the hoists. The evidence, as earlier observed, was often confusing and it may not be surprising that the Arbitrator had erroneously construed the evidence concerning this particular operation. Any error demonstrated did not constitute an essential step in his reasoning which ultimately led to the orders made against the appellant. In the circumstances, I find that the “confusion”, which had apparently arisen in the mind of the Arbitrator on this point, does not constitute a relevant error which would lead to his orders being disturbed on this appeal.
The appellant was critical of the Arbitrator’s reasoning where, at [144] of Reasons, the credit of Mr Fagan and Mr Walters is addressed. It seems to be submitted that the Arbitrator’s view of the evidence concerning removal of the stud and noggin was factually flawed and that the unfavourable inference concerning credit should not have been drawn. That submission must be rejected. Again, the state of the evidence concerning this particular matter is in a state of confusion, and the evidence of Mr Walters and Mr Fagan on this point conflict. However it is clear that Mr Fagan’s evidence as expressed by him would support the conclusion reached by the Arbitrator that there was a space for a doorway between the study area and the hallway which Mr Fagan, on his evidence, needed to widen by removal of the timber. No relevant error is made out.

The appellant correctly submits that the Arbitrator appears to have misunderstood Mr Walters’ evidence concerning the direction in which the hoists were facing when positioned in the hallway. Mr Walters’ evidence was that Mr Fagan had made an error in the sketch which is exhibit one. The error in question, as suggested by Mr Walters, was that the hoist closest to the steps was positioned facing that stair. The Arbitrator was dealing with contradictory evidence and, again, given the confusing manner in which much of this evidence was presented at the hearing, it is not surprising that there may have been some misunderstanding on the part of the Arbitrator. Upon an acceptance that an error was made, it cannot be said that such error was relevant to an essential step in the Arbitrator’s reasoning such that his ultimate order should be revoked. No persuasive argument is advanced in support of the proposition that the Arbitrator’s factual conclusion so affected his reasoning process that any relevant impact upon his orders had occurred.
The appellant’s submissions which address the Arbitrator’s reasoning (at [63] of Reasons) does not constitute an argument of relevant error. As expressed, the submission appears to represent an attempt to summarise relevant evidence concerning the physical layout of the floor plan of the cottage under construction. That submission has no relevance to the question raised concerning the suggested commission of factual error.
The submissions (which appear at page four of the appellant’s submissions) do not identify relevant error but rather constitute an address founded upon the evidence which seeks to support the appellant’s case concerning the physical circumstances relevant to movement of the beam.
The submission (which appears at page five) suggests that the Arbitrator has wrongly placed “enormous emphasis” upon the evidence concerning the manoeuvre of the second hoist following removal of a stud. It is suggested that the Arbitrator has adopted a “distorted view” and that the Arbitrator was wrong to reject the appellant’s witnesses concerning these factual matters. Nothing found in those submissions identifies relevant error. Submissions (which appear at page six) address the Arbitrator’s assessment of the evidence of Mr Gaul. It seems to be suggested that the Arbitrator has disregarded the evidence which supported the appellant’s contention that Mr Bevins at no time lifted the subject beam. These submissions constitute a restatement of argument as was put before the Arbitrator. No relevant error is made out.
At page seven of the appellant’s submissions the appellant correctly identifies the Arbitrator’s erroneous statement concerning Mr Bevins’ position at the time of lifting. The error noted is that the Arbitrator has confused the placement of Mr Bevins’ left and right feet. That mistake, in my view, may be treated as a slip and of no consequence. It is clear that the Arbitrator has correctly recorded the evidence as to Mr Bevins’ physical position earlier in the course of his reasons (at [141] of Reasons). No relevant error is made out.
The appellant incorrectly suggests that Mr Bevins gave evidence that Mr Fagan was “always making fun of his back brace because it looks like a bra”. The evidence of Mr Bevins is that Mr Fagan’s evidence on that subject was false (at [113] of Mr Bevins’ statement dated 21 May 2012).
The appellant in its submissions is critical of the Arbitrator’s expressed view that there “is a commercial relationship between Mr Waters, Mr Fagan and Mr Gaul”. The appellant correctly submits that the evidence does not support the view expressed by the Arbitrator that Mr Gaul had “done sub-contract work for Mr Walters over a number of years”. Such an error is not relevant to the Arbitrator’s reasoning such that it has had a relvant impact upon his ultimate conclusions and orders made. In the circumstances, I conclude that no relevant error has been made out. In the case of Mr Fagan, it is clear from the evidence of that witness that there had been an ongoing commercial relationship, albeit intermittent in nature, over the past seven years. Again no relevant error is demonstrated.
The appellant is critical of the Arbitrator’s assessment of the weight of Mr Richmond’s evidence. This criticism does not acknowledge that the Arbitrator had determined to place little or no weight on Mr Richmond’s evidence where it was inconsistent with Mr Bevins’ evidence. That conclusion did not prevent the Arbitrator, as is criticised by the appellant, to accept other aspects of that witness’s evidence. No relevant error is demonstrated.
The appellant’s submissions proceed to address the evidence generally and seek to emphasise the merits of the case as presented on its behalf. Those submissions constitute repetition of argument as put before the Arbitrator and do not establish relevant error.
At page nine of submissions the appellant argues that the Arbitrator committed “an error of judgment” when accepting Mr Bevins’ evidence as to movement of the beam. Argument is advanced that Mr Bevins’ evidence concerning movement of the beam upon the surface of the slab “defies physics and science”. A sketch is annexed which, it is said, demonstrates the impossibility of the manoeuvre described by Mr Bevins. The sketch, which is marked “Annexure K” has been addressed at [15(c)] above. The argument as advanced on behalf of the appellant is comprehensible without the need to refer to such a sketch. That the manoeuvre as described by Mr Bevins would have presented physical difficulty is acknowledged by him in his statement made on 21 May 2012. The relevant part of that statement is noted at [19] above. The appellant has failed to make out any relevant error with respect to the Arbitrator’s evaluation of the evidence relevant to movement of the beam.
The appellant’s “Extra Submission” filed 22 May 2014 suggests that the Arbitrator has treated Mr Walters evidence, concerning placement of the beam, in a manner described, somewhat floridly, as “distortion and manipulation and a dishonest representation of [Mr Walter’s] evidence”. The Arbitrator’s observation has plainly been misread or, more correctly stated, misconstrued by the appellant. The clear meaning of the Arbitrator’s statement complained of was that the stair abutted the concrete slab not, as asserted by the appellant, that the beam abutted the slab. The submission that there had been “dishonest distortion” of the evidence is rejected.
The appellant’s submissions conclude with a summary of matters said by the appellant to have been the subject of advice given by its solicitors following the Arbitrator’s decision. There also appears in that submission a complaint concerning the appellant’s understanding of the force and effect of relevant legislation. Those matters raised can have no relevance to questions raised on appeal. The questions of “openness, honesty and transparency” in the context of workers compensation proceedings is addressed below (at [82]).

Procedural fairness

The submissions presented on behalf of the appellant, in particular the response to the respondents’ opposition to the appeal filed by the appellant on 1 June 2014, include often repeated complaints concerning the Arbitrator’s approach to the evidence and it is put that the appellant has been unfairly disadvantaged given the manner in which the evidence has been assessed. The tenor of those submissions is demonstrated by the content of [21] where the following appears:
“21. (171) I reiterate point 171 very, very strongly and state that the factual evidence submitted to the commission has been dishonoured, discounted and distorted and manipulated by the arbitrator to bolster a case for the applicant, especially in relation to the width of the hoist, position of the second genie hoist, condition of the driveway, position of the end of the steel beam upon the top of PLY wood step, position of the applicant in his alleged lifting position, reporting of any one of the three versions of events of the injury by the applicant to the appellant, manipulation of a sketch by council [sic, counsel] for the applicant drawn by Mr Fagan representing a general sketch concept NOT A SCALE DRAWING depicting position on terrain. But to name only a few errors by the arbitrator along with deliberate distortion of the appellant’s evidence, once again I go back to point 149 as to credit.”
The appellant at the hearing before the Arbitrator was represented by experienced and competent counsel. There is no suggestion made in the submissions presented on this appeal that the Arbitrator’s conduct during the course of the hearing was such as to demonstrate relevant bias. The appellant was afforded the opportunity to adduce all evidence he considered relevant and lengthy submissions were put to the Arbitrator on his behalf. The complaint made is directed to the manner in which the Arbitrator has assessed the evidence, in particular his determinations concerning the credibility of particular witnesses. I have reached the view that there is no foundation for the suggestions made that there has been any distortion or manipulation of the evidence by the Arbitrator and any suggestion that the appellant has been denied a fair hearing must be rejected.

Quantum of the award

The appellant challenges the quantum of weekly compensation awarded by the Arbitrator. At page eight of submissions it is argued that any entitlement would be limited to an hourly rate relevant to payment of adult apprentices as appears in the extract of the award which is found at page 41 of the Reply filed on behalf of the Nominal Insurer. The difficulty with that submission is that there was unchallenged evidence before the Arbitrator as to the quantum of Mr Bevins’ pre-injury earnings, and that evidence was relied upon by the Arbitrator when the quantum of compensation was determined. The award entered by the Arbitrator reflects the finding made as to current weekly wage rate which is based on that evidence. No relevant error is made out.

Conclusion

The appellant has emphatically argued that the Arbitrator’s finding that Mr Fagan’s evidence concerning the placement of the hoist was a “recent invention” constitutes error. In so finding the Arbitrator has accepted Mr Bevins’ submission concerning the credit of Mr Fagan and Mr Walters. In presenting its argument the appellant has made reference to the decision of the High Court in Fox v Percy [2003] HCA 22; 214 NSWLR 118 (Fox). Contrary to the submission advanced by the appellant, I am not satisfied that any of the matters raised, either alone or in combination, demonstrate that the Arbitrator’s findings were against incontrovertible facts or uncontested testimony or that the Arbitrator’s decision was glaringly improbable as discussed by the majority in Fox. The appeal fails and appropriate orders appear below.
With respect to costs, I consider it appropriate that the Nominal Insurer bear its own costs of the appeal.

DECISION

The Arbitrator’s determinations, declaration and orders as recorded in the Certificate of Determination dated 20 February 2014 are confirmed.

COSTS

Mr Bevins’ costs of the appeal are to be paid by the Workers Compensation Nominal Insurer and the appellant is to reimburse the Workers Compensation Nominal Insurer the quantum of those costs.
No order as to the Workers Compensation Nominal Insurer’s costs on appeal.

Kevin O'Grady
Deputy President

25 July 2014

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

ASSOCIATE