Quadi v The Reject Shop (Aust) Pty Ltd
[2008] NSWWCCPD 3
•9 January 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Quadi v The Reject Shop (Aust) Pty Ltd [2008] NSWWCCPD 3
APPELLANT: Angie Quadi
RESPONDENT: The Reject Shop (Aust) Pty Ltd
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC4648-07
DATE OF ARBITRATOR’S DECISION: 19 September 2007
DATE OF APPEAL DECISION: 9 January 2008
SUBJECT MATTER OF DECISION: Procedural fairness; whether the failure to cross-examine resulted in a denial of procedural fairness
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Teakle Ormsby George
Respondent: Ellison Tillyard Callanan
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 19 September 2007 is confirmed.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
In this matter the Appellant Worker, Angie Quadi (also known as Angie Protonotariou), started work for The Reject Shop (Aust) Pty Ltd (‘the Respondent Employer/The Reject Shop’) in September 2005 working 25 hours per week as a permanent part time worker in stock and on the cash registers. She alleges that she injured her neck while lifting boxes of drinks at work on 18 April 2002. The insurer initially accepted her claim but later denied liability by letter dated 24 June 2002.
Ms Quadi first sought compensation as a result of her alleged injuries in an Application to Resolve a Dispute (‘the first Application’) registered in the Commission on or about 30 June 2006. That Application alleged Ms Quadi injured her neck, left shoulder and arm, upper back and scapular at work on 18 April 2002. By its Reply (the first Reply) filed on 13 July 2006, the Respondent Employer denied injury, incapacity and that employment was a substantial contributing factor to any injury. This Application was discontinued at a teleconference on 11 September 2006.
A second Application was filed in the Commission on 26 June 2007 alleging injuries to Ms Quadi’s “neck, left shoulder, arm and back”. The Respondent Employer filed a Reply to this Application on 17 July 2007. This Reply attached a copy of the first Reply and the documents attached to it. Those documents included a copy of Ms Quadi’s first statement dated 3 June 2002.
In an arbitration hearing held in the Workers Compensation Commission of NSW on 29 August 2007 counsel represented each party. Counsel for Ms Quadi amended the second Application by discontinuing the claim that Ms Quadi had injured her back (T1.25). No application was made to adduce oral evidence and the matter proceeded with submissions from each side. In a reserved decision delivered on 19 September 2007 the Arbitrator made an award in favour of the Respondent Employer on the ground that she was not satisfied that Ms Quadi had sustained any injury arising out of or in the course of her employment.
By an appeal filed on 8 October 2007 the Appellant Worker seeks leave to appeal the Arbitrator’s determination.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case and the Arbitrator’s finding would result in the Respondent Worker receiving no compensation. Therefore, the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 19 September 2007, records the Arbitrator’s orders as follows:
“1.Award for the Respondent in respect to injury to the cervical spine and left upper extremity.
2.No order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to consider the fact that Ms Quadi had not been cross-examined, and
(b)failing to properly consider the evidence.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34, (2006) 4 DDCR 358 (‘Zheng’) where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
THE EVIDENCE
Ms Quadi’s duties included refilling the drinks fridge at the front of the store and refilling the drinks in the drinks section (see Ms Quadi’s statement 3 June 2002, paragraph six). This involved handling an estimated 25 to 30 boxes of drinks per day. The boxes were moved from the storeroom into the store with a trolley. Boxes would sometimes be stacked quite high, requiring Ms Quadi to reach up to lift them and place them on the trolley.
She alleges that she sustained injury while lifting boxes of drinks on 18 April 2002. She completed her normal duties on that day but on 19 April she attended her general practitioner, Dr Voutos, who provided a non WorkCover certificate declaring Ms Quadi to be unfit for work on 19 April as she was suffering from a “(L) shoulder muscle strain”. The “L” has been written over the top of “R”.
Ms Quadi said in her statement of 24 January 2007 that she did not consider lodging a workers compensation claim at that stage because she thought her problem was minor.
On 20 April 2002 Ms Quadi attended the Haldon Street Medical Centre where her cervical and dorsal spines were x-rayed. The x-rays revealed mild to moderate narrowing of C5-7 disc spaces “in keeping with disc lesions at these sites” and mild C5, C6 and C7 spondylosis. There was scoliosis at T6 and T7.
On 22 April 2002 Ms Quadi attended at Canterbury Hospital. Her presenting problem is recorded in the hospital notes as “(L) back/shoulder blade & arm pain”. She was prescribed medication and advised to “¯ duties & lifting”. Under “CLINICAL RECORD” the following is typed as Ms Quadi’s presenting problem:
“CHEST PAIN – LEFT ARM HEAVINESS WITH NUMBNESS RADIATING TO LEFT SCAPULA. INTERMITTENT PAIN FOR ONE WEEK. NIL RELIEF FROM PAIN MEDS. VOMIT X 1”
The hand written notes from the hospital record:
“44 yr old woman presents with (L) shoulder
blade area pain + (L) upper arm pain which
has come on during the last week.
- worse on movement
- poor relief with 2x mersyndol
(dislikes paracetamol)
-no associated sweating
nausea
SOB
Dizziness.”
On the following page the notes record:
“i/c [sic] (L) arm pain – radiate to scapula – Denies chest pain – Pt has [sic] investigation with same problem few days ago – on panadeine forte – States help with pain for day but not tonight. Pt nil SOB – States (L) arm/finger felts [sic] tinking [sic] ATOR. ECG attended. R/V Mon. Hx father has cardiac.”
I believe the entry “i/c” refers to ‘initial complaint’.
Ms Quadi returned to see Dr Voutos on 23 April 2002. The doctor provided another non WorkCover certificate on that date stating she was suffering from a “(L) shoulder muscle strain” and was unfit for work on that day and “22/4/02 & 26/4/02”. Again, the “L” has been written over the top of “R”.
On 29 April 2002 Ms Quadi attended on a different general practitioner, Dr Milad, of Lakemba. He provided her with a WorkCover certificate of that date. This certificate is difficult to read but the doctor’s diagnosis is clear: “Disc lesion in Cervical spine”. The doctor has ticked “yes” in answer to whether the worker’s employment was a substantial contributing factor to the injury. Ms Quadi was declared unfit from 19 April 2002 until 19 May 2002.
In her claim form dated 30 April 2002 Ms Quadi stated that she injured her “neck, shoulder, arm left” “lifting boxes (drinks)”.
On 8 May 2002 a CT scan revealed Ms Quadi to have a C6/7 protrusion with impingement upon the cord centrally and to the left.
On 16 May 2002 Ms Quadi attended on Dr Voutos and was given a WorkCover certificate declaring her unfit for work from 19 May 2002 until 19 June 2002 because of a cervical disc herniation and left arm radiculopathy. On 18 June 2002 Dr Voutos declared Ms Quadi fit for suitable duties for six hours per day three days per week from 24 June 2002. On 8 July 2002 Dr Voutos declared Ms Quadi “fit for pre-injury duties”.
On 2 December 2002 Ms Quadi saw Dr Voutos complaining that she had pain over her right iliac crest for four weeks. Movements of her lumbar spine were reduced due to pain and muscle spasm.
On 17 December 2002 Ms Quadi’s employment was terminated for reasons unrelated to her alleged injury.
The circumstances of the alleged injury are described by Ms Quadi in her June 2002 statement as follows:
“8.I injured myself at work on the 18th of April 2002. On the 18th April 2002 I worked in some pain but I was not sure where the pain came from. I continued to work and thought the pain would go away.
9.On the 19th of April 2002 I woke up in great pain and went to the doctor. He said I had some kind of muscle strain in my back but at that stage he did not do any x-rays. It’s only since I have had an x-ray and cat scan done that I have discovered that I have a cervical disc herniation.”
In her statement dated 24 January 2007 Ms Quadi said at page three:
“On 18 April 2002 I was stacking boxes of drinks. I felt a sharp pain on the left side of my neck radiating down my shoulder. I had previously suffered mild neck pain from lifting the boxes of drinks before but on 18 April it was a sharp pain. I reported the pain to Nadia. The accident occurred whilst I was in the front of the shop and the only other person around was Nadia. Everyone else was in the back of the shop. I did complete my shift. I didn’t report the accident to anyone in authority because I didn’t think it was a serious injury and thought it was just muscular and that it would resolve.”
In support of her claim Ms Quadi relies on reports from Dr Voutos dated 8 February 2005 and Dr Patrick dated 19 September 2005. To the extent necessary these reports are referred to below.
ARBITRATOR’S REASONS
In her Statement of Reasons for Decision (‘Reasons’) the Arbitrator carefully reviewed the evidence and accepted that Ms Quadi’s neck and left arm pain “appeared to arise around 18 April 2002” (Reasons, paragraph 31). However, she felt that there were a number of inconsistencies “between Ms Quadi’s statements and in the histories she provides to the doctors and at the hospital which raise considerable doubts as to whether the injury was a frank injury” (Reasons, paragraph 32).
The Arbitrator identified those inconsistencies and made the following findings:
(a)in her 2007 statement Ms Quadi said she informed a co-worker (Nadia Tadros) of her pain on 18 April 2002 but in her 2002 statement (signed on 3 June 2002, but referred to by the Arbitrator as having been made on 16 May 2002) Ms Quadi said she did not report the incident to anyone (Reasons, paragraph 33). The Arbitrator did not accept that Ms Quadi told Ms Tadros about the injury on 18 April 2002. She felt that Ms Quadi’s recollections in her 2002 statement were more likely to be accurate than those in her statement “taken nearly five years later” (Reasons, paragraph 33);
(b)there is nothing in the Canterbury Hospital notes to suggest that Ms Quadi’s presenting symptoms were work related (Reasons, paragraph 34). The Arbitrator did not accept that Ms Quadi would not have mentioned the work incident at the hospital, particularly as she records in her 2007 statement that she went to Canterbury Hospital “for a second opinion” (Reasons, paragraph 34);
(c)it seems unlikely that Ms Quadi told Dr Voutos that her injury was work related when she first consulted him on 19 April 2002, as she says in her 2007 statement (Reasons, paragraph 35). If she did tell him it was work related there is no explanation as to why he did not issue her with a WorkCover rather than a normal medical certificate;
(d)Dr Voutos’ history in his report of 8 February 2005 is incomplete as he states that he initially saw Ms Quadi on 1 May 2002 when in fact he first saw her for her shoulder/arm complaints on 19 April 2002. The Arbitrator felt that this omission raised a question as to whether the doctor believed there was any relationship between the left shoulder muscle pain referred to in the April certificates and the history of intense neck pain and numbness radiating down the left arm referred to in his report. As a result the Arbitrator felt that less weight could be given to his report “because it doesn’t appear that a full history of Ms Quadi’s complaints has been given” (Reasons, paragraph 36);
(e)Dr Patrick’s history of Ms Quadi’s work duties on 18 April 2002 being heavier and more sustained than usual was at odds with the other evidence in the case (Reasons, paragraph 37). In addition, the Arbitrator felt that Dr Patrick did not provide a “reasoned basis for his opinion as to causation” (Reasons, paragraph 37). For these reasons the Arbitrator placed less weight on Dr Patrick’s evidence;
(f)the Arbitrator preferred the evidence of Dr Haynes because he provided some interpretation of the radiological investigations, his opinion more closely accorded with the hospital records and possibly explained why Ms Quadi did not mention work as “precipitating her symptoms when she went to the hospital because the pain did come on gradually and not suddenly as she told Dr Voutos and Dr Patrick” (Reasons, paragraph 38);
(g)the Arbitrator did not accept that tension in the workplace explained why it took so long for Ms Quadi to notify her employer of her injury, if she experienced intense pain on 18 April 2002 as recorded by Dr Patrick and Dr Voutos in their reports (Reasons, paragraph 39), and
(h)the Arbitrator accepted that Ms Quadi has degenerative changes in her neck, and that she has pain in her neck, but looking at the evidence as a whole, the Arbitrator was not satisfied that Ms Quadi received injury arising out of or in the course of her employment on 18 April 2002 (Reasons, paragraph 39).
SUBMISSIONS AND FINDINGS
Failing to Consider That the Applicant Was Not Cross-Examined
The Appellant Worker submits that she was not cross-examined on the following issues:
(a)the alleged inconsistencies between her statements in 2002 and 2007;
(b)the history recorded in the Canterbury Hospital notes;
(c)her failure to mention the attendance at Canterbury Hospital to either Dr Haynes, Dr Patrick or Dr Voutos;
(d)her failure to mention in her 2002 statement that she told Dr Voutos on 19 April 2002 that her symptoms were work related, and
(e)the history by Dr Patrick that the work she did on 18 April 2002 was somewhat heavier and more sustained than normal.
It is argued that the failure to cross-examine on these issues has resulted in Ms Quadi being denied procedural fairness in that she was not given an opportunity to explain the alleged inconsistencies.
Reference is made to the Guidelines for the Practice of Conciliation and Arbitration where it is stated at page 11:
“Further evidence and/or submissions
· If the Arbitrator determines there is the need for oral evidence to be taken, he or she may do any or all of the following:
* question the parties or witnesses;
* take evidence on oath or affirmation (NOTE: The interpreter is also required to take an oath or affirmation as to the interpreting of the evidence given), and
* permit parties or their representatives, to ask questions of witnesses, by or
through the Arbitrator (section 360 of the 1998 Act).
· Questioning or cross-examination of witnesses (including parties) will be permitted in very limited circumstances and only if the Arbitrator is of the view that it is necessary to come to a decision. Circumstances where cross-examination may be allowed could include where:
* contradictory evidence requires to be clarified or tested, or
* adverse matters material to the decision should be put to a witness when there has been no previous opportunity for these to be answered.” (emphasis added)
Reliance is placed on Zheng where Bryson JA stated at [37]:
“An assessment of whether the Arbitrator’s decision should be set aside for want of procedural fairness is no simple matter and could not be disposed of by applying any legal tests susceptible of clear statement relating to entitlement to cross-examine an applicant, or a witness. There is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission, and decisions whether to allow cross-examination or to limit it are discretionary decisions which must be made in a context of the legislation and practices which the Commission follows, and, at least as importantly, in the context of the facts and circumstances of the case under consideration.”
It is submitted that the Arbitrator’s decision was “made on the credibility of a witness without testing contradictory evidence by cross-examination or by the Arbitrator asking relevant questions” (Appellant Worker’s submissions, paragraph 10) and in these circumstances there has been a want of procedural fairness and the decision should be set aside. Other than Zheng, no authority is cited in support of this submission.
In addition, it is argued that in her 2002 statement Ms Quadi said she did not report any “incident” on 18 April 2002 to her co-workers (Ms Quadi’s statement 3 June 2002, paragraphs 16 and 17). In her 2007 statement she said that she reported “the pain” to Nadia (Ms Tadros) (Ms Quadi’s statement 24 January 2007, page three). Two points are made about these statements. First, they are not wholly inconsistent and, second, Ms Quadi was not cross-examined about the alleged inconsistency.
The Respondent Employer argues that counsel represented Ms Quadi at the arbitration and made no application for leave to adduce oral evidence but did make submissions on the issues raised at the hearing.
As Bryson JA noted in Zheng, there is no legal right to cross-examination in the Commission. Decisions about whether to allow cross-examination are discretionary. In the present matter counsel for the Respondent Employer (Mr Egan) did not seek to cross-examine Ms Quadi. The question arises as to whether the absence of such cross-examination has denied procedural fairness to Ms Quadi in the context of the present claim.
There is no doubt that the Commission and its Arbitrators are bound to comply with the rules of natural justice and procedural fairness (Inghams Enterprises Pty Ltd v Zarb [2003] NSWWCCPD 15). The fundamental principles of procedural fairness have been stated by Dr M Allars in Introduction to Australian Administrative Review (1990) at 236 to be:
“The three principles of procedural fairness are the hearing rule, the bias rule and the no evidence rule. The hearing rule, based on the maxim audi alteram partem, requires a decision-maker to give an opportunity to be heard to a person whose interest will be adversely affected by the decision. The bias rule, based on the maxim nemo debet esse in propria sua causa, requires a decision-maker to be disinterested or unbiased in the matter to be decided...The no evidence rule, which has developed comparatively recently, requires that a decision be based upon logically probative evidence.”
It is the ‘hearing rule’ that is relevant in the present matter.
In In Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 (‘Lam’) the High Court discussed the manner in which procedural fairness cases are approached by the courts, and Gleeson CJ said (at 14, [37]):
“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
In Muin v Refugee Tribunal [2002] HCA 30 (‘Muin’) Justice McHugh stated the requirement as follows at [123]:
“Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power.”
In considering the application of the rules of natural justice to the Commission the Court of Appeal held in Zheng (at [20]) that:
“As ever when a claim is made that Natural Justice has not been accorded, regard must be paid to the legal context in which the decision-maker operates and to the law regulating the conduct of the proceedings.”
The judgment by Gibbs CJ in National Companies and Securities Commission vNews Corporation Limited (1984) 156 CLR 296 at 312 is also instructive:
“The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.” (emphasis added)
In Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181 (Ucar) Justice Redlich observed at [22]:
“It is uncontroversial that an ingredient of the court’s duty to accord procedural fairness involves the giving of ‘a fair opportunity to those who are parties in the controversy to correct or contradict any relevant statement prejudicial to their view’ (Board of Education v Rice [1969] UKHL 3). And as McHugh J said in Re Refugee Tribunal; Ex parte AALA [2000] HCA 57; (2000) 204 CLR 82:
‘One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse findings.’”
His Honour added at [43]:
“The risk of an adverse finding will usually be present whenever there is a serious challenge to the credibility of a party or witness. Generally speaking, it will be unnecessary for the trial judge to advert to the possibility of such a finding because the risk will be apparent. Where the risk of an adverse finding being made does not necessarily inhere in the issues to be decided or where the facts or the inference which the judge contemplates drawing from the facts and which gives rise to such a risk is unknown to the party, the fundamental rule of fairness requires the decision-maker in some way to draw attention to the existence of that risk.”
Though it has not been presented in these terms, the Appellant Worker’s argument essentially attempts to raise a Browne v Dunn(1894) 6 R 67 point. In normal circumstances, a court will be inclined to disregard a submission on evidence that was not tested by cross-examination (per Glass JA in Seymour v Australian Broadcasting Commission (1990) 19 NSWLR 219 at 225C (‘Seymour’), citing Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 370). The ‘rule’ in Browne v Dunn is not a rule of evidence but is a rule of procedural fairness “designed to prohibit the unfair conduct of trials” (Seymour at 225B). It requires that, unless notice has been clearly given of the cross-examiner’s intention to rely upon certain matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence (Archer v Richard Crookes Constructions Pty Ltd (1997) 15 NSWCCR 297). It does not require that matters about which notice has already been given be put in cross-examination (Daw v Toyworld Pty Ltd (2001) 21 NSWCCR 389).
In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Hunt J (at 18F) identified two aspects of the ‘rule’ in Browne v Dunn. The first was described as “a rule of practice or procedure, based upon general principles of fairness”; the second was described as “a rule relating to the weight or cogency of the evidence” (see also State Rail Authority of NSW v Brown [2006] NSWCA 220 per Basten JA at [54]). Neither ‘rule’ can be strictly applied in the Commission because all evidence must be filed with the Application or the Reply and there is no automatic right to cross-examine. Late evidence is only allowed by leave if it is in “the interests of justice” (see Workers Compensation Commission Rules 2006 Part 10 Rule 10.3). The issues to be determined are, or should be, set out in those documents or at the teleconference stage of the proceedings.
In a claim heard by the former Compensation Court of NSW the Court of Appeal held that the “practical rule of fairness enshrined in the Browne v Dunn principle” required that suggested contradictions in the worker’s history should have been put to the worker before they were used as a basis for challenging the truth of the worker’s evidence (Boston Clothing Co Pty Ltd v Margaronis (1992) NSWLR 580 per Kirby P at 590, Waddell A-JA and Samuels JA agreeing).
However, the Commission operates under totally different rules and procedures to those applicable to the former Compensation Court of NSW. The Commission is not bound by the rules of evidence and its proceedings are to be conducted with as little technicality as the proper consideration of the matter permits (section 354(1) of the 1998 Act). The Commission has a wider range of discretionary choices about the procedure appropriate for a particular case than existed under earlier legislation that governed the Compensation Court (Zheng at [22]).
Bryson JA added in Zheng, at [25]:
“The requirements of the rules for information to be lodged in advance and for statements revealing the cases of parties to be made in advance, taken with the width of the sources of information on which the Commission is authorised to act and the ways in which it is authorised to proceed, mean that assumptions upon which common law trials are conducted should not be readily carried over when testing contentions that a hearing before an Arbitrator was not conducted in a fair way.”
His Honour added that the “environment of contestation and the confrontational methods of the common-law trial would not usually be appropriate” though there may be “issues of kinds which it is appropriate to deal with in that style”.
In Re Minister of Immigration and Multicultural Affairs; Ex Parte Applicant s154/2004 (2003) 77ALJR 1909; [2003] HCA 60 the High Court considered the application of the rule in Browne v Dunn to the Refugee Review Tribunal. The Court noted that section 420(2) of the Migration Act 1958 (Cth) exempts the Tribunal from being bound by “technicalities, legal forms or rules of evidence”. This provision is in strikingly similar terms to section 354(1) of the 1998 Act. Gummow and Heydon JJ (Gleeson CJ agreeing) stated at [56] that “the rule has no application to proceedings in the Tribunal”. Their Honours then quoted section 420(2) and added:
“The purpose of a provision such as s420(2) is to free bodies such as the Tribunal from certain constraints otherwise applicable in courts of law which the legislature regards as inappropriate.”
The Commission’s rules requiring evidence to be filed with the Application or the Reply and the fact that cross-examination is not allowed as of right mean that the potential consequences of non compliance with the ‘rule’ in Browne v Dunn are significantly diminished in proceedings in the Commission. In any event, the ‘rule’ is not a rule of law but one of fairness that goes to the weight and cogency of the evidence concerned.
However, provisions such as section 354 of the 1998 Act do not release the Commission from the obligation to apply the rules of law in arriving at its decisions (see Edmonds at [88]). Thus the need for the Commission to comply with the rules of procedural fairness.
The Appellant Worker raises five areas of concern under this ground of appeal (see [40] above). The first relates to the alleged inconsistencies between Ms Quadi’s statements in 2002 and 2007. The Arbitrator did not accept that Ms Quadi told Ms Tadros about her injury on 18 April 2002. In Ms Quadi’s 2002 statement she said at paragraphs 15, 16 and 17:
“15.Regarding the injury on the 18th of April 2002, the injury came about gradually while I was lifting the boxes and there was no way I was able to go home because there was no way my boss would let me go home.
16.I didn’t report the incident at the time because the store is quite short staffed and the Manager Sanjeev is very strict and would not have allowed me to go home. I have not returned to work since the 18th of April 2002.
17.I didn’t report any incident to my co-workers either because what could they have done? Also at that stage I was sure the pain would go away, I didn’t think it would get to the stage that it would be such a bad injury. After I finished working with the drinks, I then worked on the registers until 2:30pm when my shift finished.” (emphasis added)
In her 2007 statement Ms Quadi said at page three:
“On 18 April 2002 I was stacking boxes of drinks. I felt a sharp pain on the left side of my neck radiating down my shoulder. I had previously suffered mild neck pain from lifting the boxes of drinks before but on 18 April it was a sharp pain. I reported the pain to Nadia. The incident occurred whilst I was in the front of the shop and the only other person around was Nadia. Everyone else was in the back of the shop. I did complete my shift. I didn’t report the accident to anyone in authority because I didn’t think it was a serious injury and thought it was just muscular and that it would resolve.” (emphasis added)
It is argued that there is a distinction between reporting “any incident” (see the 2002 statement) and reporting “the pain” (see the 2007 statement). Ms Quadi did not claim to have reported her “injury” to Ms Tadros, but said that she “reported the pain to Nadia” (emphasis added). Exactly what Ms Quadi said to Ms Tadros is not disclosed in the evidence. As Ms Tadros’ address is unknown, no adverse inference is open about the fact that she did not give evidence. It is arguable that the Arbitrator was wrong to have equated a report of “pain” with a report of the “incident”. However, if she was wrong on that issue I am not satisfied that the error has affected the result of the case. Even if it is accepted that Ms Quadi did complain of “pain” to Ms Tadros on 18 April 2002 the evidence falls well short of establishing that the pain complained of resulted from any work incident. A report of “pain”, on its own, is not helpful and does not advance Ms Quadi’s case. The critical issue was: what caused that pain?
Regardless of what complaint Ms Quadi made to Ms Tadros it was open to the Arbitrator to prefer the evidence in the 2002 statement. The 2002 statement made it clear that Ms Quadi did not report any work injury or incident to any of her co-workers on 18 April 2002 and that was the essence of the Arbitrator’s finding on this point. That finding was open on the evidence and discloses no error.
The second matter relates to notes from Canterbury Hospital. Mr Egan addressed at length at the arbitration about the significance of these notes (T3.1, 4.47, 4.57 and 5.53). In summary his point was that the notes recorded no history of any work injury (T3.19). Counsel for Ms Quadi also referred to the hospital notes (T14.57) and submitted that they provided “contemporaneous complaints at that point of that injury” (T15.3). It was open to counsel for Ms Quadi to seek to call further evidence from Ms Quadi on this issue if he wished. He did not do so.
The Arbitrator’s conclusion that there was nothing in the hospital notes to suggest that Ms Quadi’s symptoms were related to a work injury with the Respondent Employer was correct and I agree with it. Reaching that conclusion involved no procedural unfairness to Ms Quadi. The issue was fairly raised at the arbitration and addressed by counsel for both parties. She was well aware of the contents of the hospital notes as they were attached to her Application. She was not deprived of a fair hearing. The Arbitrator was entitled to consider the evidence from Canterbury Hospital in determining if Ms Quadi had been injured at work as she alleged. The Arbitrator’s analysis of the notes was logical and well reasoned. The force of that conclusion is not diminished because Ms Quadi was not cross-examined.
The third matter relates to Ms Quadi’s failure to mention to Dr Haynes, Dr Patrick or Dr Voutos that she had attended Canterbury Hospital on 22 April 2002. Whilst the Arbitrator found this omission “curious” (Reasons, paragraph 34) it was not a decisive issue in her determination. The more important point was that the hospital notes did not support Ms Quadi’s claim that she injured herself at work.
The fourth matter relates to Ms Quadi’s failure to mention in her 2002 statement that she told Dr Voutos on 19 April 2002 that her symptoms were work related. The Arbitrator felt it was “unlikely that Ms Quadi told Dr Voutos that her injury was work related when she first consulted him on 19 April as she says in statement 2” (Reasons, paragraph 35). If Ms Quadi had mentioned her work injury to Dr Voutos on 19 April 2002 the Arbitrator noted there was no explanation as to why he did not issue her with a WorkCover certificate. Dr Voutos did not appear to consider Ms Quadi’s injury to be work related until 1 May 2002. These conclusions were all relevant and open to the Arbitrator on the evidence. Her final comment that she was more inclined to accept the recollection of events recorded in the 2002 rather than the 2007 statement was logical and appropriate. I agree with it. The validity of this finding is not diminished by the fact that Ms Quadi was not cross-examined. Mr Egan raised the question of whether Ms Quadi complained to Dr Voutos of a work injury when she saw him on 19 April 2002 (T2.32). Counsel for Ms Quadi made several references to Dr Voutos’ evidence but did not deal specifically with this issue. In her 2002 statement Ms Quadi said she did not present to Dr Voutos as a workers compensation patient because at that time she was only diagnosed with a muscle strain (Ms Quadi’s statement 3 June 2002, paragraph 13). In her 2007 statement she said that she told Dr Voutos on 19 April 2002 “it was work related” (Ms Quadi’s statement 24 January 2007, page four). Ms Quadi was on notice of these matters from the time the Respondent Employer filed an Application to Admit Late Documents on 21 July 2006 in matter 9903 of 2006 attaching a copy of Ms Quadi’s 2002 statement. The statement was also attached to the Respondent Employer’s Reply filed on 17 July 2007 in matter 4648 of 2007. There was no unfairness involved.
The fifth matter relates to the history by Dr Patrick that the work Ms Quadi did on 18 April 2002 was somewhat heavier and more sustained than normal. The Arbitrator correctly noted that the doctor’s history was not supported by Ms Quadi’s evidence about the nature of her duties on 18 April 2002. As a result the Arbitrator placed less weight on Dr Patrick’s evidence. In addition, she concluded that the doctor had not provided a reasoned basis for his opinion as to causation. These conclusions were open to the Arbitrator and disclose no error. I agree with them.
In conclusion, I do not accept that Ms Quadi was denied procedural fairness by reason of the fact that she was not cross-examined. The issues in dispute in the case were fully and fairly raised in the Respondent Employer’s Reply, the documents attached to it, and in the lengthy submissions before the Arbitrator. Whether Ms Quadi injured her neck at work on 18 April 2002 was always the critical issue in the case. Ms Quadi was not taken by surprise. She was well aware of the nature and extent of the challenge to her claim. She knew the notes from Canterbury Hospital made no mention of a work injury and that the first certificates from Dr Voutos (attached to the second Application) were not WorkCover certificates. She was aware of the content of the 2002 statement.
It was open to Ms Quadi’s legal representative to seek leave to call oral evidence to explain any inconsistencies in the evidence. He did not do so. Ms Quadi suffered no “practical injustice” (Lam) in the way the case was conducted. The risk of an adverse finding on injury was obvious on the face of the documents attached to both the second Application and the Reply. Ms Quadi had every opportunity to present her case and to deal with matters that were adverse to her interests (Muin).
Failing to Properly Consider the Evidence
The Appellant Worker submits:
(a)the CT scan of 8 May 2002 refers to a C6/7 disc protrusion;
(b)the Arbitrator appears to have disregarded this scan and relied on an interpretation of it by Dr Haynes in his report of 7 June 2002 where he stated that “the report indicated degenerative change”, and
(c)the Arbitrator failed to properly consider the radiological evidence in a logical and coherent manner and this has caused her to fail to be satisfied that Ms Quadi suffered an injury in the course of her employment.
I do not accept this submission. The Arbitrator referred to Dr Haynes’ evidence at paragraph 30 of her Reasons where she said:
“In his report he refers to the quite marked degenerative change diagnosed at C5/6 and C6/7 and disc protrusion with osteophyte formation at C6/7 and diagnoses degenerative change in the cervical spine causing some impingement on nerve roots.”
The Arbitrator was obviously aware of the content of the CT scan. However, having considered all of the evidence, she preferred the evidence of Dr Haynes because he provided some interpretation of the radiological investigations. In addition, his opinion possibly explained why Ms Quadi did not mention work as precipitating her symptoms when she went to the hospital, namely, the pain came on gradually and not suddenly as recorded by Dr Voutos and Dr Patrick in later reports.
Further, the radiological evidence did not overcome the real issue in the case, namely, whether Ms Quadi suffered an injury at work as she claimed. The Arbitrator was not satisfied on this critical issue and neither her reasoning process nor her conclusion discloses any error. I agree with it.
DECISION
The Arbitrator’s determination is confirmed.
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
9 January 2008
I TUYET WALLIS CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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