Port Waratah Coal Services Pty Limited v McIntosh
[2004] NSWWCCPD 84
•29 November 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Port Waratah Coal Services Pty Limited v McIntosh [2004] NSW WCC PD 84
APPELLANT: Port Waratah Coal Services Pty Limited
RESPONDENT: Ann McIntosh
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER: WCC13499-03
DATE OF ARBITRATOR’S DECISION: 23 January 2004
DATE OF APPEAL DECISION: 29 November 2004
SUBJECT MATTER OF DECISION: Death Benefit; Worker attending function outside working hours; ‘arising out of or in the course of employment’; ‘substantial contributing factor’.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:26 October 2004
REPRESENTATION: Appellant: Arnold Lawyers
Respondent: MRM Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appeal
On 17 February 2004 Port Waratah Coal Services Pty Limited lodged an appeal against the decision of an Arbitrator, dated 23 January 2004. The appeal is against the award of workers compensation benefits to Ann McIntosh and her children, as the result of the death of her husband, Clive McIntosh. Mr McIntosh had worked for Port Waratah as a Mechanical Maintenance Supervisor since 1999 and continued to work in this role until the time of his death.
Mr McIntosh was responsible for the supervision of independent contractors who maintained and serviced equipment and machinery used by Port Waratah. One of these contractors was Convatech Pty Ltd. On 29 July 2000 Clive and Ann McIntosh attended the Newcastle paceway at the invitation of Convatech. The invitation was to have dinner and witness the ‘Convatech Cup’. Other employees of Port Waratah, and their partners, attended as well. While eating his meal Mr McIntosh choked and died. The cause of death was oxygen deficiency bringing on a heart attack.
Leave to appeal was granted on 24 September 2004. A hearing was held on 26 October 2004. Both parties were legally represented at the hearing and made further submissions on the issues.
Issues in Dispute
In order to be entitled to workers compensation benefits, Mrs McIntosh must prove that there was a connection between her husband’s employment and his death. The Arbitrator found that there was such a connection. The Arbitrator’s decision can only be set aside if Port Waratah can demonstrate that the Arbitrator has made an error of law, fact or discretion, which, if corrected, would have led to a different decision being made (Absolon v NSW TAFE [1999] NSWCA 311 at paragraph 131).
Port Waratah argues Clive McIntosh’s attendance at the function was purely social. It wants the Arbitrator’s decision set aside and a new decision, that it is not liable to pay workers compensation as a result of Mr McIntosh’s death, made in its place. It argues that the Arbitrator was wrong to find that:
·Port Waratah authorised or encouraged Mr McIntosh to attend a race meeting on the night that he died,
·Mr McIntosh’s injury ‘arose out of or in the course of his employment’ with Port Waratah, and
·Mr McIntosh’s employment was a ‘substantial contributing factor’ to his injury.
Port Waratah also argues that the Arbitrator failed to take into account all the relevant evidence and did not provide adequate reasons for his decision.
Did Port Waratah Authorise or Encourage Mr McIntosh to Attend a Race Meeting on the Night He Died?
Port Waratah submit that there was no evidence to justify the findings of fact made by the Arbitrator that:
· By allowing invitations to the event to be given out to staff, it had authorised, and possibly encouraged, attendance,
· That Port Waratah gained a benefit from Mr McIntosh’s attendance, and
· That the function had a dual purpose, both social and work related.
These findings of fact are critical to the determination of whether Mr McIntosh’s death ‘arose out of or in the course of his employment’.
Port Waratah argues that the fact that Mr McIntosh received his invitation to the ‘Convatech Cup’ whilst at work, does not allow the Arbitrator to conclude that his employer authorised or encouraged his attendance.
The Arbitrator stated that “ . . . . if the employer allowed the individual invitations to be handed out to its staff, including senior staff such as the deceased worker’s supervisor, then this is at the least demonstrable authorisation, and may even be construed as encouragement”. However the Arbitrator then went on to find that this “criterion” of encouragement or authorisation was not applicable to the facts of this case. The Arbitrator said the relevant test was whether there was a ‘significant enough work element in the activity’.
In any event I do not accept Port Waratah’s submission. The determination of the relative weight to be given to the evidence is a matter for the discretion of the Arbitrator. Findings of fact should not be interfered with unless it can be said that the Arbitrator’s discretion has miscarried and he or she has failed to exercise this discretion fairly and lawfully. The Workers Compensation Commission Rules 2003 require an Arbitrator to inform him or herself on the basis of evidence that is logical, probative, relevant and not based on speculation, unsubstantiated assumptions or unqualified opinions (Rule 70).
The Arbitrator was entitled to accept the evidence that: invitations to the function were handed out at work; other senior staff were invited; Mr McIntosh felt a sense of obligation to attend because of his key role in supervising Convatech workers, and that no directive was given not to take up such invitations, other than where there was the possibility of the appearance of favouritism to contractors. Mrs McIntosh also points to the evidence of Mr McIntosh’s contract of employment and statement of responsibilities, which expressly provides that Mr McIntosh was accountable for “establishing communications with internal customers and suppliers to ensure that agreed targets are met”. These factors, when taken together, amount to more than simply ‘not prohibiting’ staff from attending. The evidence was that Port Waratah had turned its mind to the attendance of senior employees at these types of functions and the only action that it had taken was to warn against any perception of bias.
Having accepted this evidence, it was open to the Arbitrator to conclude, objectively, as a matter of fact, that there was encouragement or authorisation by Port Waratah for employees to attend. The evidence is that Port Waratah knew of the event and allowed the invitations to be given out at work and knowing that staff may attend. On the evidence of Mrs McIntosh, it was clear that Mr McIntosh believed there was expectation and encouragement to attend. It is reasonable to conclude that these factors, taken together, leave the impression of encouragement and authorisation to attend.
Port Waratah argues that it did not actively seek to obtain any benefit from its staff attending the Convatech Cup or other such activities. It argues that the evidence of Mr McMahon and Mr Gordon does not support the Arbitrator’s finding that Port Waratah obtained a benefit from Mr McIntosh’s attendance.
In my view the finding of fact that Port Waratah gained a benefit from Mr McIntosh’s attendance was open to the Arbitrator on the evidence. At paragraph 27 of the reasons, the Arbitrator referred to the 7 August 2002 statement of Mr McMahon, and to Mr White’s statement, as follows:
“. . . Mr Brian McMahon in his statement says that ‘attending the social functions were good PR, particularly for PWCS. It established relationships and therefore working relationships. In that regards, in Clive’s role where he was directly responsible for the equipment these contractors maintained, it was beneficial to him to have a good working relationship with the contractors. I believe attending these functions assisted Clive in his work’. Mr White states that the deceased worker was ‘. . . the point of contact for the contractor companies’. This was no doubt why he was invited to the function. According to his accountability statement’ [sic] Mr McIntosh was accountable for, among many other things, ‘Supervising of contractors performing specific project work and arranging supervision of contractors by trades personnel as required’.”
Port Waratah complains that the Arbitrator did not take Mr McMahon’s second statement, dated 9 May 2003 into account, nor did he properly draw conclusions from the statement of Mr Gordon. I do not accept those submissions. An Arbitrator is not required to comment upon every piece of evidence. He clearly had the evidence before him and stated (at paragraph 11 of the reasons) that he took it into account. He preferred the earlier evidence of Mr McMahon given in 2002. In any event I am not convinced that the later statement of Mr McMahon contradicts his earlier statement or supports Port Waratah’s proposition that the function was purely a social event. In his later statement, Mr McMahon expresses this as his personal view, however he also describes how the functions benefited him, and Mr McIntosh, in terms of improving the relationship with the company’s contractors, and making their jobs easier as a result.
Port Waratah claims that the Arbitrator ascribed the motives of Convatech to Port Waratah, in terms of the benefit to be gained by good relations with senior staff at both companies in relation to contracts. This suggests that Port Waratah may only be said to have ‘benefited’ from its staff attending these functions if it subjectively believed that it did. Aside from the difficulties of ascribing subjective belief to the company, I do not accept that this is the case. Ultimately the Arbitrator has weighed the evidence of Mrs McIntosh, Mr McMahon, Mr White and Mr Gordon and has concluded, on an objective test, looking at all the facts, and having found that the employer had authorised or encouraged Mr McIntosh to attend, that Port Waratah received a benefit from Mr McIntosh attending such activities. He accepted that the invitation to attend was given only to key Port Waratah staff who dealt with Convatech (which was consistent with Mr McIntosh’s duties) and that the development of working relationships between these key staff and Convatech staff, resulted. The Arbitrator did not err in this finding.
Port Waratah argues that the Arbitrator was wrong to find that Mr McIntosh’s attendance at the Convatech Cup, had a dual purpose, both social and work related, because the claimed ‘employment purpose’ did not ‘arise out of or in the course of’ Mr McIntosh’s employment. This argument is intimately connected to the application of the statutory test of whether the injury ‘arose out of or in the course of employment’ and is thus a mixed question of fact and law.
Port Waratah argues that Hooke v Rolfe 2 (1986) NSW CCR 81, referred to by the Arbitrator, is not of assistance in this matter because the employer did not see the activity as being connected to Mr McIntosh’s employment. The issue of whether the employer perceived the worker’s activity to have an employment connection was not in issue in that case because it was accepted that the worker had both a ‘holiday’ purpose and an ‘employment’ purpose. However Glass JA observed:
“the existence of conduct inspired by multiple purposes is a common phenomenon. It raises the problem of classification in connection with a legal standard defined in terms of purpose. The solution normally adopted is to act upon the relevant purpose, to disregard others and not to inquire which of them is dominant or earlier. . . . The same approach has been adopted in relation to the question of whether conduct motivated by several purposes can fall within the course of employment” (at 87).
Determination of whether a worker’s conduct had an employment purpose is a question of ‘fact and degree’ dependent upon the circumstances of a particular case. The fact that there was a social element to the attendance at the Convatech Cup is not in dispute. It occurred on a Saturday night, dinner and alcohol were served, staff attended with their partners and it was at the paceway. However it was also open to the Arbitrator to accept the evidence of Mrs McIntosh, Mr McMahon and Mr White, that the function was attended by “ . . . a limited group of key staff. The interaction at the function, on the evidence, was such as to involve an element of work discussion and development of personal and work relationships between these key staff and a major maintenance contractor, Convatech”. The Arbitrator did not err in finding that there was a connection between Mr McIntosh’s attendance at the function and the particular duties that he was employed to carry out at Port Waratah. Whether or not this connection was sufficient to bring his attendance within the statutory test of ‘arising out of or in the course of employment’ is discussed below.
Did Mr McIntosh’s Injury Arise ‘out of or in the course of his employment’ with Port Waratah?
Port Waratah argues that the Arbitrator was wrong to conclude that “. . .there is a sufficient connection between the deceased’s attendance at the function and his employment such that I find the injury to have arisen out of the employment”. Port Waratah submits that Mr McIntosh’s injury (choking) had no relationship with any characteristic of his employment. His participation in a social function that involved some element of goodwill to his employer did not lead to his injury ‘arising out of or in the course of his employment’.
The Arbitrator appears to have confined his finding to the injury ‘arising out of the employment’. This phrase generally connotes a causal relationship between employment and injury, whereas the phrase ‘arising in the course of employment’ connotes a temporal relationship. It is possible for an injury to arise both ‘out of’ and ‘in the course of’ employment.
The phrase ‘in the course of employment’ is found in the definition of ‘injury’ in section 4 of the Workers Compensation Act 1987 (the 1987 Act). There are a number of well-known authorities on the legal interpretation to be given to it. The leading authorities are the High Court decisions of Henderson v Commissioner for Railways (1937) 58 CLR 281; Humphrey Earl Limited v Speechley (1951) 84 CLR 126 and Hatzimanolis v ANI Corporation (1992) 173 CLR 473.
In Henderson, Dixon J said (at 294):
"The general principle governing the ascertainment of the ‘course of employment’ appears now to be settled. It is not merely a question of the existence and continuance of a relationship. To be in the course of the employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work. General expressions of this kind have not proved very helpful ... Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question of whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorised to do in order to carry out his actual duties."
This principle was applied by Dixon J in Speechley (at 133), as follows:
"The acts of a workman which form part of his service to his employer are done, needless to say, in the course of his employment. The service is not confined to the actual performance of the work which the workman is employed to do. Whatever is incidental to the performance of the work is covered by the course of the employment. When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which he was reasonably required, expected or authorised to do in order to carry out his duties.”
The facts of this case are not similar to cases such as Hatzimanolis, which have been described as ‘camping’ cases. Mr McIntosh was not injured during an “interval or interlude occurring within an overall period or episode of work”. However the Court (Mason CJ, Deane, Dawson and McHugh JJ), in Hatzimanolis made a number of observations that are relevant to the present case, (at 479):
"On the whole, the flexible application of the test has enabled a satisfactory line of demarcation to be drawn between those injuries which are work-related and those which are so remote from the notion of the worker's employment as not to call for compensation by the employer...
Given the flexible nature of the application of the test, it is not surprising that what is now perceived as required, authorised or expected to be done in order to enable an employee to carry out his or her duties covers many situations that were not contemplated when the test was first formulated in Henderson in 1937."
It is clearly more difficult for a worker to demonstrate that he or she is in the course of his employment when the injury does not occur at their place of work, during their usual working hours, or on a prescribed journey. However it is acknowledged in the authorities that the nature of ‘work’ must be judged by contemporary standards and that there is likely to be changing notions of what constitutes ‘employment’ with the passage of time (Hatzimanolis, at 479). Cases where the worker was attending an activity outside of office hours provide a better analogy to the facts of this matter than do ‘camping’ cases. The Arbitrator considered the cases of Worrell v Longworth & Anor [2000] 20 NSWCCR 400. Port Waratah refers to Wyatt v Commissioner of Police (1996) 13 NSWCCR 429 (although I can find no reference to this case in the Arbitrator’s decision).
In Wyatt a police officer was injured when voluntarily participating in the ‘NSW Police Games’. The games were held on a weekend and were not organised by the Police Service nor supported by them in terms of the provision of uniforms, venue or expenses. The Compensation Court found that the officer had been injured ‘in the course of employment’. The Court followed the reasoning of the Court in Van Haeften v Caltex Oil (Aust) Pty Ltd (1995) 12 NSWCCR 250. In Black v New South Wales Fire Brigades (1994) 10 NSWCCR 322 the Court had considered a similar fact case but had come to the opposite conclusion. In that case the worker, a fireman, was injured when playing football for the NSW Fire Brigades Rugby League Team when he was off duty. The Court found that the injury did not occur in the course of employment.
In Worrell, the worker was injured when attending a Sunday picnic organised by his employer. The Court found that there was no encouragement or inducement to accept the invitation to the picnic, which was characterised as a social event. As a result the Court found that the employer was not liable for the worker’s injury.
In applying the principles found in Henderson and Speechley to the facts of this appeal, it is my view that the Arbitrator did not err in finding that Mr McIntosh’s injury (choking) ‘arose out of and in the course of his employment’. The determination of whether Mr McIntosh was carrying out employment duties that Port Waratah reasonably required, expected or authorised him to do must take into account the nature and terms of his employment and the circumstances in which his work was done.
I do not accept that Port Waratah did no more than ‘not prohibit’ the attendance of its senior staff at the Convatech Cup, including Mr McIntosh. As set out above, the Arbitrator did not err in finding as a matter of fact that Convatech encouraged or authorised Mr McIntosh’s attendance, that Port Waratah gained a benefit from his attendance and that the function had an employment purpose.
Mr McIntosh’s injury occurred during two discrete periods of work, but at a time when he was doing an activity, which was sufficiently “required, expected or authorised” by his employer as to bring it within the course of his employment. This conclusion is supported by the evidence of: the nature of Mr McIntosh’s work; his particular duties in relation to contractors such as Convatech; the fact that he was given the invitation to attend when he was at work; he would not have received the invitation at all but for his employment; the fact that other senior Port Waratah staff attended; that a benefit could be said to flow to Port Waratah in terms of improved relations with the contractor, and the fact that Port Waratah, knowing that senior staff were invited, did nothing to indicate it did not support their attendance other than to generally caution against the appearance of bias in accepting such invitations.
The Arbitrator did not err in finding that the injury satisfied at least one limb of the definition of injury, namely that it ‘arose out of or in the course of’ Mr McIntosh’s employment with Port Waratah. In my view the appropriate categorisation of what occurred is that the injury satisfies the second limb of that definition, namely that it occurred ‘in the course of’ Mr McIntosh’s employment with Port Waratah.
Was Mr McIntosh’s employment a ‘substantial contributing factor’ to his injury?
Port Waratah claims that the Arbitrator was wrong to conclude that Mr McIntosh was eating food at the function as part of an “ . . activity which had an employment relationship sufficient to place it in the course of employment”. Port Waratah argues that the Arbitrator has ‘oversummarised’ the effects of the Court of Appeal decision in Mercer v ANZ Banking Group 48 NSWLR 740 and has failed to properly consider the matters set out in section 9A of the 1987 Act, which provides as follows:
“9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if
he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor
to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12
applies.”
Port Waratah’s submissions on this issue have some merit. The Arbitrator’s reasons on ‘substantial contributing factor’ (which are contained in one paragraph, 31) are not clear to me. In particular, I do not understand his statement that “[T]he Mercer outcome has made clear, in general terms, that in circumstances where there are external factors associated with the employment that bring about an injury, then section 9A is satisfied”. Unfortunately the Arbitrator has not referred in any detail to the reasoning in Mercer, upon which he relies. In addition, the listing of cases that were cited by the parties (at paragraph 19 of the reasons) is of limited usefulness and does not give any indication of the relevance of those cases.
Having found (at paragraph 30 of the reasons) that the injury arose ‘out of the employment’, the Arbitrator then finds that Mr McIntosh was ‘in the course of his employment’ (at paragraph 31 of the reasons). Ultimately the relevance of this distinction, in this case, is the effect that this finding has on the additional test of whether the employment was a ‘substantial contributing factor’ to his injury. The Arbitrator does not address the matters that the statute specifies must be taken into account to determine whether the employment was a ‘substantial contributing factor’ to the injury. His reliance upon Mercer is not sufficient to find satisfaction of the section 9A test.
There has been a divergence of judicial opinion on the implications of Mercer, in particular as to whether the test of ‘substantial contributing factor’ is met, once a finding is made that the injury ‘arose out of employment’. The argument is that an injury found to ‘arise out of employment’ has already met a test of ‘causation’, which is also the test in section 9A (Muscat v Woolworths Ltd (2000) 20 NSWCCR 283; Jadoul v Qantas Airways Ltd (2001) 22 NSWCCR 229). At the same time, Mason P in Mercer stated that employment may be a substantial contributing factor to an injury that does not ‘arise out of employment’. It is clearly insufficient, for the purpose of section 9A of the 1987 Act, to prove that the employee was injured ‘in the course of employment’, as this implies only a temporal connection.
In my view Mr McIntosh’s injury arose ‘in the course of employment’, as discussed above. As Hodgson JA said in McMahon v Lagana & Anor. [2004] NSWCA 164 (at paragraph 33): “[I]t is clear that the question of substantial contributing factor is a distinct and additional question to that of the course of employment.”.
The question of what is a ‘substantial’ contributing factor is ultimately a matter for determination in the individual circumstances of each case. ‘Employment’ will include the nature, conditions and obligations of the actual work, and matters incidental to the performance of the actual duties of the employee (Stanton-Cook v TAFE Commission of NSW (1999) 17 NSWCCR 632 at 637).
A causal relationship must be established between the actual work activity the worker was engaged in at the time of the injury, and the injury itself (Stanton-Cook v TAFE Commission (NSW) (1999) 17 NSWCCR 632; Dayton v Coles Supermarkets Pty Limited (2001) 22 NSWCCR 46). There may be more than one contributing factor to the injury, but employment must be a factor which is more than minimal, large or great. (Mercer at paragraph 27). Mason P in Mercer, said at paragraph 22, that:
“. . . the words ‘employment concerned’ in s 9A reinforce the view that it is the work activity in which the worker was engaged at the time of injury that is relevant. The ultimate question is whether that activity or task was a substantial contributing factor to the injury, bearing in mind that the concept of ‘a substantial contributing factor to an injury’ is exegeted in subss (2) and (3) of s 9A.”
Taking the above authorities into account, I turn to the factors set out in section 9A(2) of the 1987 Act, and make the following findings;
(1)The time and place of the injury. The injury occurred at around 8.00 pm on the night of 29 July 2000 at the Newcastle Paceway. Mr McIntosh was attending the Convatech cup at the invitation of Convatech and was in the course of his employment at the time.
(2)The nature of the work performed and the particular tasks of that work. Mr McIntosh was eating dinner at the function when he choked upon some food and subsequently died from lack of oxygen. The ‘injury’ was the choking on the food. It is necessary to look at what work task Mr McIntosh was actually performing in his employment that caused the injury. His actual employment duties required him to establish communications with Convatech staff in order that he could effectively supervise their contractual obligations with Port Waratah and meet agreed performance targets. In my view he was fulfilling this duty by attending the function and dining with senior Convatech and Port Waratah staff. Even if the activity of dining at the function could not be said to be carrying out his actual duties, it was an activity reasonably incidental to the contract of employment and was encouraged or authorised by the Employer.
(3)The duration of the employment. Mr McIntosh had been employed by Port Waratah since 1999. The duration of his employment is not a relevant factor to his injury.
(4)The probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment. The fact that it was unlikely that Mr McIntosh would have suffered from the injury if his employment had not brought him to the Convatech Cup is a circumstance that showed his employment had some causal relevance to the injury (McMahon v Lagana & Anor. [2004] NSWCA 164 (at paragraph 37)).
(5)The worker’s state of health before the injury and the existence of any hereditary risks. This is not relevant to this case.
(6)The worker’s lifestyle and his or her activities outside the workplace. Mr McIntosh’s lifestyle did not contribute to his injury.
In my view Mr McIntosh’s employment was a substantial contributing factor to his injury and the Arbitrator was correct in his finding on this issue.
Did the Arbitrator fail to take into account all the relevant evidence?
I have largely dealt with this claim above. I am satisfied that the Arbitrator took into account all the relevant evidence, including the evidence of witnesses Slattery, White, Gordon, McLachlan and O’Connell. The determination of the relative weight of the evidence is a matter for the discretion of the Arbitrator.
Did the Arbitrator provide adequate reasons for his decision?
The Appellant claims that the Arbitrator has failed to give adequate reasons for the decision because he did not demonstrate that he had applied the relevant legal principles to the facts, as found.
Arbitrators of the Commission have a common law and statutory obligation to provide adequate reasons for their decisions (section 294(2) of the 1998 Act; Rule 73 of the 2003 Rules; Absolon v NSW TAFE [1999] NSWCA 311). Failure to do so constitutes an error of law and may be a ground to set aside the Arbitrator’s decision.
The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (see discussion in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6). The Commission is not a court, and its proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. The application of these principles to the setting out of written reasons is reflected in Rule 73(2). Lengthy written reasons will not always be necessary to convey simply, clearly and concisely, the reasons why a decision has been made, which is the purpose of giving reasons.
To succeed on the ground of ‘inadequate reasons’, Port Waratah must demonstrate not only that the reasons are inadequate, but that their inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application.
I am not satisfied that the Arbitrator’s reasons are inadequate. There are some parts of those reasons that I believe are not thorough or completely clear in their meaning. However, when read as a whole, I am satisfied that the reasons set out the Arbitrator’s findings on material questions of fact, refer to the evidence on which those findings were based, set out the applicable law in general terms and disclose the Arbitrator’s reasoning process.
DECISION
The decision of the Arbitrator is confirmed.
Dr Gabriel Fleming
Deputy President
29 November 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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