Patrick Operations Pty Ltd v Watson - [2013] NSWWCCPD 18

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Patrick Operations Pty Ltd v Watson & anor [2013] NSWWCCPD 18
APPELLANT:			Patrick Operations Pty Limited
FIRST RESPONDENT:			John Arthur Watson
SECOND RESPONDENT:			West Sydney Basketball Management Pty Limited t/as West Sydney Razorbacks
APPELLANT’S INSURER:			QBE Workers Compensation (NSW) Limited
SECOND RESPONDENT’S INSURER:			Employers Mutual NSW Limited
FILE NUMBER:			A1-6451/12
ARBITRATOR:	Mr C Tanner
DATE OF ARBITRATOR’S DECISION:			6 December 2012
DATE OF APPEAL DECISION:			8 April 2013
SUBJECT MATTER OF DECISION:			Section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; admission of fresh or additional evidence on appeal; refusal of arbitrator to grant adjournment; s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998; availability of appeal against order refusing adjournment which constitutes relevant error; s 16(1)(b) of the Workers Compensation Act 1987; employer who last employed worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease.
PRESIDENTIAL MEMBER:			Deputy President Kevin O'Grady
HEARING:			On the papers
REPRESENTATION:			Appellant:	McCulloch & Buggy
First Respondent:	Turner Freeman Lawyers
Second Respondent: Edward Michael Lawyers
ORDERS MADE ON APPEAL:			1. The findings and orders made by the Arbitrator as found in the Certificate of Determination dated 6 December 2012 are confirmed. 2. The appellant is to pay the costs of the appeal incurred by Mr Watson and by the second respondent.

BACKGROUND

Mr John Arthur Watson has developed a skin condition variously described as involving sun spots, skin cancers, solar keratoses and hyperkeratoses. He alleged that his skin condition had been aggravated by his employment with Patrick Operations Pty Limited (the appellant) and with West Sydney Basketball Management Pty Limited trading as West Sydney Razorbacks (the second respondent).
Mr Watson had been employed by the appellant as a waterside worker between 1965 and 1976. Thereafter he was self-employed, as a bookmaker and subsequently as a butcher, until 1985. He was then employed in sales work with two separate employers until 1998. From 1998 until 2007 he was employed by the second respondent as a salesman and was engaged in business development. He has since retired from the workforce. The nature of Mr Watson’s duties with the second respondent assumed significance both before the Arbitrator and on this appeal.
Claims were made by Mr Watson against the appellant and the second respondent in respect of lump sum compensation and for medical expenses. Each of the employers denied liability in respect of the claim.
Proceedings were commenced in the Commission by Mr Watson in April 2012 against both the appellant and the second respondent, seeking orders concerning his entitlement to the compensation earlier claimed. Those proceedings were discontinued by Mr Watson on 18 June 2012.
The present proceedings were commenced by Mr Watson in June 2012. The matter came before Arbitrator Tanner for conciliation and arbitration on 30 October 2012. An application seeking adjournment of the proceedings was made by the appellant. That application was refused. The matter proceeded to hearing. At the conclusion of submissions put by counsel for the parties the Arbitrator reserved his decision. It is to be noted that the appellant thereafter filed with the Commission an application seeking leave to have late documents admitted into evidence. That application was filed on 5 November 2012. There is nothing before the Commission which indicates that any step was taken by the appellant to have the matter brought again before the Arbitrator for the purpose of dealing with that application. The Arbitrator issued a Certificate of Determination on 6 December 2012 which was accompanied by a statement of reasons (Reasons). The following findings and orders were made:
“The Commission determines:

1.       Award for the second respondent.
2.       The applicant’s employment with the first respondent was the last employment that was a substantial contributing factor to aggravation, exacerbation or acceleration of his skin cancer condition.
3.       The matter is remitted to the Registrar in order that it be referred to an Approved Medical Specialist for assessment of whether the applicant has whole person impairment that results from an injury, in the form of skin cancer, that the applicant is deemed to have received on 4 February 2009.
4.       The materials to be provided to the Approved Medical Specialist are all documents attached to:

(a)the Application to Resolve a Dispute, and
(b)the Reply filed by the first respondent.

5. The first respondent is ordered to pay the costs of the applicant and the second respondent.

A statement is attached to this Certificate of Determination setting out the Commission’s reasons for the determination.”

ISSUES IN DISPUTE

The appellant’s grounds of appeal, of which there are eight, are set out at [2.8] of the Application filed with respect to this appeal and are as follows:
“1.     Arbitrator Tanner erred in fact and law by finding that the Report of Dr Haddad dated 30 July 2008 was probative of liability in the Appellant.
2.       Arbitrator Tanner erred in fact and law by finding that the Report of Dr Suzanne Freeman dated 10 December 2008 was probative of liability in the Appellant.
3.       Arbitrator Tanner erred in fact and law in finding that the Appellant had no basis for declining the First Respondent’s claim in the Appellant’s Section 74 Notice of 18 March 2009.
4.       Arbitrator Tanner erred in fact and law in finding that the Report of Dr Hunter Fry dated 8 April 2009 was probative of liability in the Appellant.
5.       Arbitrator Tanner erred in fact and law in finding the Appellant liable for the First Respondent’s injury.
6.       Arbitrator Tanner erred in fact in failing to note in the First Respondent’s Statement that the First Respondent spent half of his working life between 1985 and 2007 driving a motor vehicle outdoors.
7.       Arbitrator Tanner erred in fact and in law in ordering the Appellant to pay the costs of the First Respondent.
8.       Arbitrator Tanner erred in fact and law in ordering the Appellant the costs of the Second Respondent.”
I am of the view, for the reasons appearing below, that the complaints of error found in those grounds do not, in many instances, address either findings of fact or findings as to the application of relevant principle. The absence of precision in the identification of suggested error is not resolved by submissions provided in support which, in many respects, appear to be a critical narrative directed to the Arbitrator’s ultimate finding concerning the appellant’s liability. That narrative touches on matters of which there is no evidence and upon matters which can have no relevance to a challenge to the Arbitrator’s determination brought, as it is, pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Notwithstanding the many shortcomings which may be discerned in the manner of presentation of this appeal, it is clear that the appellant suggests error on the part of the Arbitrator in his findings that Mr Watson’s employment with the appellant was the last relevant employment, having regard to the provisions of s 16 of the Workers Compensation Act 1987 (the 1987 Act) and that the appellant was thus liable to pay any compensation to which Mr Watson may be found entitled following conduct of a medical assessment in accordance with Ch 7 Pt 7 of the 1998 Act. Leave is also purportedly sought by the appellant pursuant to s 352(3A) of that Act to bring an appeal against the Arbitrator’s refusal to grant an adjournment of the proceedings on 30 October 2012. The costs orders made by the Arbitrator are also said to have been made erroneously and are challenged.

ON THE PAPERS

The appellant and Mr Watson consent to the appeal being heard on the papers without the need for the conduct of conference or hearing as is permitted by s 354(4) of the 1998 Act. The second respondent consents to that course subject to the rider that, should the appellant’s application with respect to the admission of fresh or additional evidence be granted, consideration needs to be given to the need or otherwise to permit the parties to have an opportunity to make further written or oral submissions in relation to that fresh or additional evidence.
In the circumstances, and having regard to my ruling made below concerning the appellant’s application seeking leave to adduce additional evidence, I consider it appropriate that the appeal be dealt with on the papers without conduct of a hearing or further conference.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements concerning time as found in s 352(4) of the 1998 Act have been met.
Submissions have been put on behalf of Mr Watson that the monetary threshold as stipulated in s 352(3) of the 1998 Act has not been met. It is suggested that leave is required in the present circumstances to permit the appellant to proceed. Reference is made to relevant authority including the decision of Acting Deputy President Snell in Moore v Greater Taree City Council [2009] NSWWCCPD 17 (Moore).
Mr Watson’s suggestion that the Commission has discretion to permit conduct of an appeal notwithstanding that the monetary threshold has not been met is wrong. That monetary threshold is a mandatory requirement which must be met before the Commission may hear an appeal. Whilst the Rules make provision for the granting of leave to proceed in cases where the time requirements have not been met, no such discretion has been granted to the Commission in relation to the monetary threshold requirements.
Mr Watson’s submission concerning there being a “real risk that the assessment ultimately made by an Approved Medical Specialist will result in the first respondent’s entitlement being less than $5,000” must be rejected as being irrelevant to a consideration as to whether the threshold has or has not been met. Having regard to the quantum of the claim brought by Mr Watson it is clear that the decision “clearly has the potential to put the amount of compensation claimed… in issue” as stated by Snell ADP in Moore. I am satisfied that the relevant threshold requirement is met.

FRESH OR ADDITIONAL EVIDENCE

The provisions of s 352(6) of the 1998 Act grant discretion to the Commission to permit the receipt of fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a decision which is the subject of an appeal. The section provides that such leave is not to be granted unless the Commission is 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.
At [2.5] of submissions filed in support of this appeal, the appellant seeks leave to adduce “new evidence” being a report of Dr Hunter J. Fry, Plastic Reconstructive & Hand Surgeon, dated 31 October 2012 and all those documents listed in a “schedule of fresh evidence”, which appears at page 18 of those submissions. That list includes 16 items of correspondence between the appellant’s solicitors and Mr Watson’s solicitors; copy of Mr Watson’s earlier, discontinued, application filed with the Commission together with relevant timetable; two handwritten file notes produced by the appellant’s solicitor and a copy of the application to admit late documents dated 2 November 2012 which, as earlier noted, had been stamped as having been filed with the Registry on 5 November 2012. Both Mr Watson and the second respondent oppose the granting of leave with respect to the “new evidence”. I note that the documentation relevant to the earlier proceedings and the belated application made concerning admission of late documents constitute part of the Commission’s record and are, as such, before me on this appeal.
The appellant has furnished submissions in support of the admission of that “new evidence” which comprises 41 paragraphs. The history of the proceedings is described in those submissions with particular emphasis placed upon the content of a statement made by Mr Watson which had been relied upon by him in the proceedings. It seems to be argued that the following employment history is of particular significance, and, further, that it is relevant that none of the expert medical witnesses had been apprised of that history:
“During the course of my employment as a sales representative with Allied Express Transport Pty Limited, Shamrock Consultancy Pty Limited and West Sydney Basketball Pty Limited, I estimate that in each position I spent around half of my hours driving and around half of my hours in meetings. I also estimate that in each position, I spent around 5% of my working hours outdoors either walking to or attending meetings.”
The appellant’s submissions note that Mr Watson had been examined by Dr Fry on its behalf on 8 April 2009. That examination had been arranged in response to the claim earlier made against the appellant. The submissions note the employment history of Mr Watson as recorded by Dr Fry and an assertion is made (at 2.5.13) that “the history taken by Dr Fry is inaccurate when compared to the history given by [Mr Watson] in his statement dated 3 May 2011 where he records that, after 1985, he spent half his working life driving”.
The fate of the discontinued proceedings is noted by the appellant and it is stated that “[Mr Watson’s] solicitor made no attempt to update its [sic] medical evidence or to bring to the attention of Dr Haddad and Dr Freeman [Mr Watson’s] statement dated 3 May 2011”.
The submissions proceed to record the appellant’s views concerning the proceedings being “flawed” and that “[the appellant] did not need medical opinion to say that 50 per cent of a working life spent at the wheel of a motor vehicle was in fact employment outdoors”.
At [2.5.22] of those submissions the appellant describes events which it asserts occurred at a telephone conference conducted by the Arbitrator on 25 September 2012 at which time the matter was set down for conciliation and arbitration on 30 October 2012 (the teleconference). It is put that the Arbitrator was advised by the appellant that it intended to update medical evidence. The point is made by the appellant that the Arbitrator has “recorded in his Statement of Reasons that the intention of the appellant to obtain updated medical evidence was not drawn to his attention at the teleconference but this is incorrect”.
The submissions include a description of events concerning the appellant’s attempts to “update” its medical evidence following that teleconference. An examination of Mr Watson by a Dr Ian Hamann, General Practitioner, arranged by the appellant was rejected by Mr Watson’s solicitors given the earlier examination conducted by Dr Fry. Arrangements were made for Dr Fry to re-examine Mr Watson on 25 October 2012. That examination, it is said, took place. A report from Dr Fry could not be obtained prior to the hearing and notice was given to Mr Watson’s solicitors of the appellant’s intention to seek an adjournment of the hearing.
Correspondence between the solicitors acting for the appellant and Mr Watson is addressed in the submissions. Included in that material are assertions by the appellant of suggested maters of fact which are discussed below.
At [2.5.34] of those submissions, the appellant makes complaint concerning the circumstances of the Arbitrator’s refusal to grant the adjournment as sought by it.
The submissions proceed to note that the appellant obtained a copy of Dr Fry’s report dated 31 October 2012 on 1 November 2012. Steps were then taken, it is noted, to file an application to admit late documents, attaching that report, with the Registry on 2 November 2012. It is also noted that copies of the report were forwarded to Mr Watson and the second respondent on 2 November 2012.
Complaint is made at [2.5.37] of submissions that:
“[The] Application to Admit Late Documents appears not to have been dealt with the [sic, by the] Commission and is not referred to in the Reasons for the decision of the Arbitrator.”
Further complaint is made (between [2.5.38] and [2.5.40]) concerning the conduct of the Arbitrator at the hearing. These matters are addressed below.

Consideration

The manner in which the appellant has presented argument concerning its application seeking leave to adduce fresh or additional evidence is, in my view, deficient and in many respects misconceives the nature of the application.
The deficiencies of the application include failure to address the question as to whether the material which it seeks to adduce may be considered material that was not available to the appellant and could not reasonably have been obtained by it before the proceedings conducted by the Arbitrator. No meaningful argument is advanced in support of the alternative ground available to have the material admitted on appeal, namely that failure to grant leave would cause substantial injustice.
Much of the argument advanced constitutes criticism of the manner of preparation and presentation of Mr Watson’s claim before the Commission and criticism of the approach taken by the Arbitrator both at the teleconference and in the manner of his conduct of the hearing. Submissions include extracts of correspondence in which assertions of fact are made by the appellant.
By way of example of the criticism advanced concerning Mr Watson’s presentation of his case, it is put, at [30] of submissions, that:
“The appellant does not see how the appellant can be made responsible for the forensic decision of [Mr Watson] to commence identical proceedings with the same problems as the proceedings commenced in April 2012.”
By way of illustration of the criticism advanced concerning the Arbitrator’s conduct of the proceedings, those matters raised at [34] of submissions should be noted:
“The Conciliation/Arbitration proceeded at 2:00 pm on 30 October 2012. Arbitrator Tanner:
(a)     Rejected the Appellant’s Application for an adjournment.
(b)     Paid no mind to the antiquity of Dr Fry’s report of April 2009, the proximity of the Conciliation/Arbitration, or the unreasonableness in those circumstances of the First Respondent’s refusal to be examined by Dr Ian Hamann.
(c)     Rejected submissions made on behalf of the Appellant that the Medical Reports relied upon by the First Respondent were vitiated by the failure of the First Respondent to provide the report writers with an accurate work history.
(d)     Rejected submissions that the Statement of First Respondent dated 3 May 2011 gave a work history that from 1985 to 2007 the First Respondent spent half his working life outdoors.”
Reference is made at [30] above to assertions of fact made in correspondence forwarded by the appellant to Mr Watson’s solicitors. Such assertions include the following, concerning the history recorded by Dr Fry in 2009 which was said to be “misleading”. That correspondence is dated 26 October 2012 in which it was said:
“In fact, the Applicant suffered significant sun exposure as a salesman travelling by motor vehicle travelling from one customer to the next. In this circumstance, the Applicant would have been exposed to sun either directly or by reflection nearly all day.”

I have included the matters set forth in the immediately preceding three paragraphs in an attempt to demonstrate the approach adopted by the appellant to this application seeking leave to adduce the “new evidence”. It is, in my view, clear that the appellant seeks to establish that it has been treated unfairly by the Arbitrator. Such is apparent in submissions [38] – [40] where complaint is made concerning the Arbitrator’s questioning of counsel concerning the merits of the adjournment application during submissions at the hearing. A proposition also seems to be put in argument that the Arbitrator was, in some manner, at fault for failing to “persuade [Mr Watson] to discontinue [the proceedings]” (at submissions [40]).
No attempt is made to explain why Dr Fry’s examination was arranged at such a late date. It may be inferred from the tenor of those submissions that Mr Watson’s refusal to attend the examination by Dr Hamann, which I note was found by the Arbitrator to be justified, in some way explains the delay. If such an argument is intended, it is far from persuasive. Even upon an acceptance that the appellant advised the Arbitrator at the teleconference of its intention to “update medicals”, nothing put on behalf of the appellant even remotely suggests an explanation for the delay in arranging the conduct of an appropriate medical examination at which all relevant matters including Mr Watson’s statement, could be considered.
I am of the opinion that the appellant has failed to establish that any of the material which it seeks to adduce on this appeal was either not available before the hearing or, in the case of Dr Fry’s latest report, could not reasonably have been obtained for presentation at the hearing.
It remains to be considered whether failure to grant leave would cause substantial injustice in this matter. That question is to be considered given the nature of the Commission’s discretion as defined by s 352(6) of the 1998 Act and notwithstanding the appellant’s failure to address relevant matters in support of this application.
On no view of the correspondence and file notes may it be said that those documents are probative of any issue going to the question of the appellant’s liability as found by the Arbitrator; nor could it be said that those documents raise any issue that could cast doubt upon the soundness of the Arbitrator’s reasoning in so concluding. The demands of justice do not require that those documents be admitted in evidence on this appeal. The appellant’s application concerning those documents is refused.
With respect to the report of Dr Fry dated 31 October 2012, it is apparent that the history earlier recorded by that practitioner in 2009, being that Mr Watson had become “a sales representative for the Bulldogs [sic, Razorbacks] and this work was indoor work” had been amended. The later report recorded “from 1998-2007 he was with [the second respondent] and he said this involved 50% outside work”.
In the later report Dr Fry expressed his opinion concerning Mr Watson’s employment contributing to his condition as follows:
“There were contributions from his outside work at [the appellant], his work with Allied Express a lesser contribution, [the second respondent] a contribution but less so than the waterfront job. His inside work would not have involved a significant contribution”.
In his earlier report Dr Fry expressed the view that “so long as a significant and substantial employment related solar exposure can be established it can then be taken as a substantial contributing factor to such skin impairments”. Having regard to the history then recorded, Dr Fry expressed the view that:
“He has had sufficient outdoor solar exposure during his ten years from age 26 – 36 for his solar exposure to be a substantial contributing factor to his hyperkeratosis.”
Dr Fry had paid no regard to employment with the second respondent in this context.
It is important to note that Mr Watson expressly presented his case before the Arbitrator as being founded upon the provisions of s 16 of the 1987 Act which provides, relevantly:
“(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(a)  the injury shall, for the purposes of this Act, be deemed to have happened:
(i)      at the time of the worker’s death or incapacity, or
(ii)  if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b)  compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
…”
The question as to whether the interests of justice require that Dr Fry’s latest report be admitted involves an assessment of its probative value concerning the issue as to whether employment with the second respondent was employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of his skin disease as diagnosed.
I have noted Dr Fry’s revised opinion at [40] above. That evidence, at its highest, supports the proposition that work with the second respondent made “a contribution but less so than the waterfront job”. The weight of that evidence needs to be assessed in light of the following matters:
(a)     Dr Fry has revised his earlier opinion, by inference, upon the amended history concerning the nature of Mr Watson’s employment with the second respondent;
(b)     that amended history as recorded by Dr Fry was that Mr Watson had said that employment with the second respondent “involved 50 per cent outside work”, and
(c)     the amended history is in stark contrast to the unchallenged matters recorded in Mr Watson’s statement made in May 2011 being that, when with the second respondent, he “spent around half [his] hours driving and around half of [his] hours in meetings”. Also stated was that, in that and other positions, Mr Watson “spent around 5 per cent of my working hours outdoors either walking to or attending meetings”.
It may be seen that the revised history is not supported by the evidence relevant to the nature of Mr Watson’s employment with the second respondent. The weight of Dr Fry’s evidence in the later report is thus, in my view, diminished.
Insofar as complaint is made concerning the Arbitrator having not “dealt with” the belated Application to Admit Late Documents, in respect of which no leave to file had been sought or granted, reference need only be made to that which was stated by Kirby J in the High Court decision in Re Application by the Chief Commissioner of Police (Vic) [2005] HCA 18; 214 ALR 422 which appears at [54]:
“Where leave has not been given publicly for supplementary submissions and evidence, the provision of such material to court registries without permission of the court, publicly signified, is a derogation from the principle of the open administration of justice. It should not occur. If new points of importance arise in the case whilst a matter stands for judgment, the proper course (unless statute or court rules permit otherwise) is for the proceeding to be relisted so that an application to enlarge the record can be made and determined in open court.”
Having regard to all the circumstances, I do not accept that argument could reasonably be advanced that Dr Fry’s revised opinion has any probative value, concerning the question as to whether employment with the second respondent was employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the relevant disease. The weight of that evidence must be assessed not by reference only to the existence of the revised history and the evidence as a whole, but also regard should be had to the absence of any statement by Dr Fry that the second respondent’s employment was a “substantial contributing factor” to the aggravation, acceleration, exacerbation or deterioration in terms of s 16(1)(b) of the 1987 Act.
I am not, for the reasons stated, satisfied that failure to grant leave to have Dr Fry’s report admitted would cause substantial injustice in this matter. In those circumstances, the application for leave brought pursuant to s 352(6) of the 1998 Act is refused.

THE MERITS OF THE APPEAL

The Arbitrator’s refusal of adjournment application

As earlier noted, the appellant purports to seek leave to appeal against the Arbitrator’s refusal of its adjournment application made at the hearing. It is convenient to address this matter before an attempt is made to deal with the various grounds raised by the appellant. The leave application, found at 2.6 of submissions, is not supported by any submissions other than those arguments raised with respect to the fresh evidence application. The refusal of the Arbitrator is, it seems, treated by the appellant as an interlocutory order thus, by inference, the leave application is made pursuant to s 352(3A) of the 1998 Act.
The appellant’s application is misconceived. Upon the assumption that relevant error has been committed by the Arbitrator in refusing the adjournment, the appropriate approach on this appeal would necessarily involve an argument that such refusal has given rise to relevant error such as a denial of procedural fairness. Such a complaint concerning an impugned interlocutory order may be raised as a substantive ground on appeal without the need for a grant of leave to argue the matter. That is, the Commission may on this appeal correct an interlocutory order made which has affected the Arbitrator’s decision (see discussion per Gaudron, McHugh and Hayne JJ in Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 at 483).
The Arbitrator has stated his reasons for refusal of the adjournment application between [23] and [29] of his Reasons. The ground for the making of the application was stated, incorrectly by the Arbitrator, as being “to enable [the appellant] to have the applicant examined by Dr Fry who would not be available until 31 October 2012 or 1 November 2012”. That error, which I do not consider material in the context of an examination of the correctness of the Arbitrator’s reasons for refusal, is perhaps not surprising given the confused manner in which the application was made. There is no record to be found in the written submissions which had been provided at the hearing by the appellant in support of the application nor in the transcript, that the Arbitrator had been advised that Mr Watson had in fact been examined by Dr Fry on 25 October 2012. The written submissions, again confusingly, stated that “[Mr Watson] did not attend the appointment with Dr Fry on 18 October 2012 …”. That statement was misleading, although some attempt to correct it had been made by counsel, given that the arrangement to have Mr Watson examined on that date was the disputed examination proposed not by Dr Fry but by Dr Hamann. The Arbitrator’s error, such as it is, is explained more probably than not by the written submissions found at [7] and [8] which purport to record the following matters of fact:
“On 30 October 2012 the [appellant’s] solicitor telephoned Sinergy, the medico-legal service provider through whom the [appellant’s] solicitor had arranged the appointment with Dr Hunter Fry.
A person by the name of Shannon from Sinergy advised that the report of Dr Hunter Fry would not be available until 31 October 2012 or 1 November 2012.”
At the hearing before the Arbitrator, counsel for the appellant expressly refrained from repeating those matters which appeared in the written submissions in support of the adjournment application. The transcript records, as raised by the second respondent in submissions on this appeal, concessions made by the appellant’s counsel during exchanges with the Arbitrator concerning the absence of any explanation for delay in arranging “updated” medical evidence. Of particular significance, in the present context, the Arbitrator put to counsel that the need to have Dr Fry deal with the work history found in Mr Watson’s statement should properly have been raised at the teleconference, to which counsel replied “that could quite possibly be the case” (at T3). There was no assertion then made by counsel, as is purportedly evidenced by the file note which was the subject of the unsuccessful application dealt with above, that the need to “update” medical evidence had been raised.
Submissions of the second respondent put on this appeal address this matter at [28] to [30] where it is put:
“One further factual matter relating to this issue warrants mention. The Appellant asserts that at the Teleconference on 25 September 2012 it indicated that a further medical examination was to be arranged and seeks to rely upon a file note (as part of the new evidence sought to be relied upon) which records that the Appellant “advised arbitrator 1R will update medical evidence”. The arbitrator indicated in the transcript and at para.27 of his decision that no such advice was given. The solicitor for the Second Respondent has no record of the Appellant advising that a further medical examination would be arranged and has no independent recollection of that having occurred and therefore cannot assist the Presidential Member in relation to this apparent factual dispute. Certainly, the prospect of the Appellant obtaining further medical evidence would have been a matter of considerable concern to the Second Respondent in circumstances where there was at that time no medical evidence inculpating it as the last relevant employer, meaning that any further medical evidence obtained by the Appellant inculpating it would have necessitated the Second Respondent having its own medical examination undertaken.
In any event, even if the Appellant indicated that further medical evidence would be relied upon, it ought to have pressed for the arbitration to be at a later date in order to ensure that such evidence could have been obtained and, more importantly, even had such indication been made at the Teleconference it would still have been appropriate for the arbitrator to decline the adjournment application on the day of the arbitration for the reasons ultimately given by him, including that any further medical evidence which had been foreshadowed at the Teleconference had not in fact been obtained, that it was unknown whether such further medical evidence would assist the Appellant’s case and that the Appellant had had ample opportunity prior to the Teleconference on 25 September 2012 in which to arrange for a further medical examination.
In short, even if it be accepted that the Appellant had foreshadowed obtaining further medical evidence at the Teleconference, this would not necessarily have assisted in obtaining an adjournment on the day of the arbitration, particularly in circumstances where such further evidence would possibly have necessitated the Second Respondent obtaining medical evidence as a matter of procedural fairness in circumstances where there was, at that time, no medical evidence which inculpated the Second Respondent.”
I accept the second respondent’s submissions that, even upon an acceptance that relevant matters had been raised by the appellant at the teleconference, it was appropriate that the Arbitrator refuse the adjournment application for the reasons ultimately stated by him when delivering his determination of the dispute. Those reasons have not, as earlier noted, been addressed by the appellant. My view is that, given the tardiness of the appellant’s approach to preparation of its defence; the prejudice to the other parties that would result from any adjournment granted, and, in particular, the absence of any knowledge as to the character of evidence intended to be presented at the time the adjournment application was made, the appellant has failed to demonstrate any relevant error on the Arbitrator’s part in refusing that application.

The grounds of appeal

I have recited the grounds raised on this appeal at [6] above. It is important to note that, as recorded by the Arbitrator at [31] of Reasons, and as is emphasised by the second respondent in its helpful submissions put in opposition to this appeal, the appellant did not dispute that Mr Watson was exposed to the sun in the course of his employment by it, nor did it dispute that such employment “was a substantial contributing factor to the skin cancers he had suffered”. The issue for determination was perhaps more succinctly stated by the Arbitrator at T8 where it is recorded:
“Having discussed the issues with counsel it appears that there is a single issue for determination and that is whether the last employment – that was a substantial contributing factor to the aggravation, exacerbation or acceleration of the Applicant’s skin cancer condition lies with the First Respondent or with the Second Respondent.”

Ground one

The appellant is wrong, as argued by the second respondent, to suggest that the Arbitrator had relied upon the evidence of Dr Haddad as proof concerning its liability. In the circumstances, the arguments raised concerning the weight of that evidence may be disregarded. This ground fails.

Ground two

The suggestion of error concerning the Arbitrator’s reliance upon the evidence of Dr Susanne Freeman, occupational dermatologist, qualified to provide an opinion for the purposes of the litigation by Mr Watson’s solicitor, must also be rejected. I accept the submission put by the second respondent that the evidence of Dr Freeman established that the appellant’s employment of Mr Watson was a substantial contributing factor to the subject injury which evidence was consistent with the evidence of Dr Fry and with the concession made on behalf of the appellant. Dr Freeman’s evidence was not treated by the Arbitrator, as suggested by the appellant, as being relevant to the question concerning the role of the employment with the second respondent and its relevance to the question of liability. The appellant’s reliance upon the decision of Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita) is misconceived given that Dr Freeman’s evidence did not touch upon that issue, nor can it be said that the Arbitrator relied upon that evidence with respect to that dispute. Ground two fails.

Ground three

This ground erroneously asserts that the Arbitrator has made a finding that the appellant had no basis for declining Mr Watson’s claim in its s 74 Notice. In fact the Arbitrator made the observation that “not one of the documents [attached to the Notice] provided any basis for liability to be declined” (at [11] of Reasons). That observation cannot, having regard to the documents in question, be criticised. With respect to the merits of this ground, I unreservedly accept the correctness of matters raised in opposition by the second respondent between [59] and [63] of its submissions. It is there noted that, of the five reasons given by the appellant for denial of liability, four were later abandoned. The remaining reason, being a denial that it was the last relevant employer, was addressed by the Arbitrator as noted below in relation to ground five. The reasoning, as there discussed, demonstrates no relevant error. Further, the ground fails as it is founded upon a misconception of the reasons advanced by the Arbitrator for his determination.

Ground four

The challenge to the Arbitrator’s reliance upon the evidence of Dr Fry as being “probative of liability in the appellant” must be rejected. I accept the submission put on behalf of the second respondent that such assertion is absurd given Dr Fry’s evidence concerning the relevance of employment with the appellant being that Mr Watson “has had sufficient outdoor solar exposure during his 10 years [with the appellant] from age 26–36 for his solar exposure to be a substantial contributing factor to his hyperkeratoses”.
Dr Fry’s evidence was not relied upon by the Arbitrator concerning the factual issue which the appellant unsuccessfully attempted to raise, namely that the appellant was not the last relevant employer in terms of s 16 of the 1987 Act. As is put on behalf of the second respondent there was a complete absence of any evidence “inculpating the second respondent”. The deficiencies of the evidence in this regard have been addressed earlier in these Reasons and may fairly be said to relate to the manner in which the appellant had conducted its defence of the claim. I acknowledge that Mr Watson, having joined the second respondent to the proceedings, bore the onus of proof concerning the relevance of employment with that respondent. That no such evidence was adduced by him raised the need for presentation by the appellant of any relevant facts supporting its contention that it was not the last relevant employer.

It cannot, in my view, be said that the opinion of Dr Fry was in any relevant manner compromised having regard to the absence of any relevant history which had been established on the evidence. This ground fails.

Grounds five and six

These grounds challenge the Arbitrator’s findings concerning the appellant’s liability with respect to Mr Watson’s injury. It is again asserted in submissions that the opinion of Dr Haddad, Dr Freeman and Dr Fry were “based on an incomplete work history” and were thus “contrary to the Makita principles”. It is also argued that “there was no evidence against [either the appellant or the second respondent]”.
Reference is made to the statement of Mr Watson dated 3 May 2011 with particular attention again given to the description, such as it is, of his work with the second respondent. That description, it is argued, supports a conclusion that Mr Watson at relevant times “spent half his working life (sic) at the wheel of a car”. That fact establishes, it is argued, that such driving was “outdoors”. It is then suggested that the Arbitrator “should have taken judicial notice, or otherwise informed himself, that driving a motor vehicle from 1985 to 2007 for half [Mr Watson’s] working life was outdoor employment and would probably have exposed Mr Watson to solar radiation”.

It is clear that those complaints which allege “incomplete work history” must, if they are to have any force at all, be founded upon the inference of suggested fact drawn by the appellant that Mr Watson’s employment with the second respondent involved outside work which exposed him to “relevant solar radiation”. Such argument was raised before the Arbitrator and rejected by him. The Arbitrator found (between [37] and [40]) of Reasons:
“The applicant estimated in his statement dated 3 May 2011 that he spent “around 5 %” of his working hours outdoors either walking to or attending meetings when working for the second respondent. That would indicate a total of approximately 20 minutes per day outdoors. There is no forensic opinion which indicates that this minimal exposure to sunlight would contribute to the development of skin cancer. Indeed if exposure of that kind would give rise to liability, the consequence would be that virtually all employment involved a substantial risk of contracting or aggravating, exacerbating or accelerating skin cancer.

There is no forensic opinion which supports the first respondent’s submission that the applicant’s employment with the second respondent was a substantial contributing factor to his condition. Dr Fry’s report, beside supporting the case against the first respondent, explains why negligible exposure such as that when the applicant worked for the second respondent is not sufficient to cause injury:

‘The advent of malignant melanoma is traditionally associated not with solar exposure over time but rather more intense exposure typical of that which would occur in beach goers who get sunburned and the like.’

The applicant’s employment with the first respondent involved intense exposure of the type to which Dr Fry refers.

In the circumstances, I find that the applicant’s employment with the first respondent, not the second respondent, was the last employment that was a substantial contributing factor to the aggravation, exacerbation or acceleration of his skin cancer condition.”

The facts as found by the Arbitrator were, in my opinion, open to him on the evidence as it stood. Further, I reject the submissions which suggest that the weight of the experts’s evidence was compromised having regard to the state of relevant history as recorded, or by failure to record relevant history. It is self-evident that, in the absence of expert opinion inculpating employment by the second respondent, the mere history of “driving” could not be treated by the Arbitrator as relevant employment. The Commission is here dealing, as was the Arbitrator at the hearing, with a speculation based on inferences drawn by the appellant in the absence of evidence. These grounds fail.

Ground seven

This ground alleges error on the part of the Arbitrator in ordering that the appellant pay Mr Watson’s costs. Argument advanced in respect of this ground, which commences at page 14 of submissions, appears to be intended to be in support of the later challenge (ground eight) to the costs order made against the appellant in respect of the second respondent’s costs. It is reasonably clear that submissions concerning ground seven and eight have been transposed. In the circumstances those arguments advanced at page 15 of submissions are to be treated as apposite to this ground.
The Arbitrator’s decision concerning costs was one made in the exercise of discretion granted by the Commission by s 341 of the 1998 Act, as it stood before the recent amendments affected by the passage of the Workers Compensation Legislation Amendment Act 2012. The usual rule is that costs follow the event. That a successful litigant was generally entitled to an order such as that made by the Arbitrator in the present matter is beyond doubt. The difficulty facing the appellant in its attempt to establish error on the Arbitrator’s part, which vitiates the costs order made, is that no argument was advanced at the hearing which suggested Mr Watson should, given the history of the litigation, be deprived of his costs regardless of the outcome of the proceedings. This ground is not made out.

Ground eight

This ground suggests error on the part of the Arbitrator in making an order that the appellant pay the costs of the second respondent. That question was argued at some length before the Arbitrator following an application in respect for costs made against the appellant by the second respondent. The Arbitrator has stated his reasons for the making of the costs order which is challenged between [42] and [44] of Reasons. Those Reasons reflect the Arbitrator’s consideration of those matters of principle which are raised by the appellant in its submissions on this appeal, in particular, its reliance upon the entry referred to which appears on the website of the Judicial Commission of New South Wales.
The discretion exercised by the Commission with respect to costs prior to the recent amendments was in very wide terms. Section 341(2) of the 1998 Act provided:
“(2) The Commission has full power to determine by whom and to whom and to what extent costs are to be paid.”
A court or tribunal is reluctant to disturb any order made at first instance upon the exercise of discretion. The principles relevant to appeals against such discretionary orders are to be found in the discussion by Dixon J, Evatt J and McTiernan J, in the High Court decision of House v The King [1936] HCA 40; 55 CLR 499 where it was said at 504–505:
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”
I reject the appellant’s suggestion that Mr Watson’s conduct was “contumelious” and that it was not reasonable and proper for him to join the second respondent to the proceedings. The reasons as expressed by the Arbitrator concerning the conduct of Mr Watson may not, in my view be faulted. It is of particular relevance to the question as to the commission of any error that the Arbitrator had concluded that the appellant’s conduct, being denial that it was the last relevant employer, was done in the absence of any evidence in support of the assertion. That conclusion was open to the Arbitrator and the costs order must stand.
It may be seen that each of the grounds relied upon by the appellant have been rejected. In the circumstances the Arbitrator’s determination of the dispute should be confirmed.

The second respondent seeks an order that its costs of the appeal be paid by the appellant. Having regard to the transitional provisions found in the WorkersCompensation LegislationAmendment Act 2012, the Commission may make appropriate costs orders in relation to costs in matters such as the present which were commenced before the commencement of the amendment (Sch 6 Pt 19H Div 3 Cl 21 to the 1987 Act). The appeal, in which the second respondent has taken a significant part, has failed in every respect. The order in favour of the second respondent stands and, in accordance with the general rule, and in light of the express application made by that party and the appellant’s failure to respond, I conclude that such order should be made. Appropriate orders appear below.

DECISION

The findings and orders made by the Arbitrator as found in the Certificate of Determination dated 6 December 2012 are confirmed.

COSTS

The appellant is to pay the costs of the appeal incurred by Mr Watson and by the second respondent.

Kevin O'Grady
Deputy President
8 April 2013

I, KATHRYN CAMP, 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