Qube Logistics (WA) Pty Ltd v Ward
[2020] WADC 32
•17 MARCH 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: QUBE LOGISTICS (WA) PTY LTD -v- WARD [2020] WADC 32
CORAM: VERNON DCJ
HEARD: 4 DECEMBER 2019
DELIVERED : 17 MARCH 2020
FILE NO/S: APP 62 of 2019
BETWEEN: QUBE LOGISTICS (WA) PTY LTD
Appellant
AND
SAAS-FEE PETA-ANN WARD
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE
Coram: ARBITRATOR MENGLER
File Number : A53412
Catchwords:
Workers' compensation - Error of law - Whether finding of fact reasonably open
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA)
Result:
Appeal dismissed
Arbitrator's decision affirmed
Representation:
Counsel:
| Appellant | : | Mr T J Hammond |
| Respondent | : | Mr A A Nolan |
Solicitors:
| Appellant | : | SRB Legal |
| Respondent | : | Hoffmans Lawyers |
Case(s) referred to in decision(s):
Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
Skippers Aviation Pty Ltd v Curtin [2015] WADC 82
Velez Pty Ltd v Tudor [2011] WASCA 218
VERNON DCJ:
By notice dated 19 August 2019, the appellant seeks leave to appeal the decision of Mr J Mengler, a WorkCover WA arbitrator, dated 9 July 2019, that the respondent (the worker) sustained a work‑related injury on 13 June 2017.
A party to an arbitration may appeal the arbitrator's decision with leave of the court: s 247(1) of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act). In order to obtain leave, the appellant must demonstrate the arbitrator made an error of law or an error of mixed law and fact: s 247(2)(b) of the Act; BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3] (Pullen JA). If leave is granted, the appeal proceeds by way of a review of the arbitrator's decision, and the court may affirm, vary or quash the decision, or make any decision that should have been made in the first instance: s 247(5) and s 247(7)(a) of the Act.
Under the Act an employer becomes liable to pay compensation to a worker if an 'injury' occurs: s 18(1). The term 'injury' includes a personal injury by accident arising out of or in the course of a worker's employment, or the aggravation of any pre‑existing disease where the employment was a contributing factor to that aggravation: s 5(1)(a) and s 5(1)(d) of the Act.
It is not in issue that the worker suffered a rotator cuff tear to her right shoulder (the injury).[1] The learned arbitrator found that the injury was either caused by an accident suffered in the course of the worker's employment on 13 June 2017, or that accident had caused an aggravation of a pre‑existing injury. Of the five grounds of appeal, the appellant principally relies on ground 1, that this finding was contrary to the compelling inferences in the case and not reasonably open, such that the arbitrator erred in law and fact in making the finding.
[1] Appellant's submissions, par 5.
Ground 1
Ground 1 of the appeal states as follows:[2]
[2] Combining the ground of appeal and the elaboration on the ground in Annexure A to the notice of appeal.
Did the arbitrator err in fact and in law in finding that the worker sustained a work related injury on 13 June 2017 pursuant to section 5 of [the Act]?
Notwithstanding the Arbitrator made findings of credit that were positive to the worker at paragraph [12] of his reasons, the Arbitrator erred in fact and in law in finding at [60] and [61] that she sustained a work-related injury on 13 June 2017 pursuant to section 5 of [the Act].
PARTICULARS
a.The worker stated her injury occurred on 13 June 2017 as a result of 'lifting unhung gates above shoulder height' (see [7](a) of the reasons) ('the incident').
b.This was accepted by the Arbitrator at [60](5) and [61](a) of his reasons.
c.Such a finding was contrary to contemporary materials, the apparent logic of events and the consistency of the evidence at the Arbitration, having regard to the following evidence:
iThe worker had felt pain, discomfort and twinges in her shoulders prior to 13 June 2017;
iiThe worker failed to recall the incident occurred on 13 June 2017 until 21 May 2018;
iiiThe worker denied she felt pain in her shoulder at the time of lifting the gates;
ivThe worker denied shoulder symptoms prior to 13 June 2017;
vThe medical evidence of Dr Wang and Mr Hurworth was to the effect that the likelihood of a shoulder injury occurring or being made worse, despite the workers employment duties was no more than 'a possibility';
viThe evidence of Anthony Hughes, the Appellant's Transport Manager, the evidence of Trinden Ford, the Appellant's Safety and Compliance Administrator, the evidence of Elizabeth Dobb and Barry Burger, both of whom were employed by the Appellant as Operations Supervisors; and
viiThere was an absence of any contemporaneous evidence to support the worker's claim that the incident occurred either in the manner in which she stated, or at all.
The appellant accepts that in order to establish an error of law, the appellant must satisfy the court that the finding that the worker suffered a work‑related injury on 13 June 2017 (the finding) was not reasonably open to the arbitrator, and that, if there is some basis for the finding, there could be no error of law, even if the finding appeared to have been drawn as a result of illogical reasoning.[3]
[3] Appellant's submissions, par 22; see Skippers Aviation Pty Ltd v Curtin [2015] WADC 82 [15] (Davis J).
As the worker submits, where there is competing evidence, or competing inferences are available, no error of law occurs simply because the judge prefers one version of evidence to another or one set of inferences to another.[4]
[4] Respondent's submissions, par 13; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 151 (Kirby P).
The appellant relied in argument on Fox v Percy,[5] where the High Court held that an appellate court will be obliged to exercise its appellate functions even where a decision at first instance is said to be based on credibility findings, if incontrovertible facts or uncontested testimony demonstrates the decision maker's conclusions are in error, and in rare cases, where although not contrary to incontrovertible facts or uncontested testimony, the decision at trial is 'glaringly improbable' or 'contrary to compelling inferences'.[6]
[5] Fox v Percy [2003] HCA 22.
[6] Fox v Percy [2003] HCA 22 [28] and [29], page 128 (Gleeson CJ, Gummow and Kirby JJ).
The appellant concedes that there is some evidentiary basis for the finding, namely the worker's evidence.[7] However, in submitting that the finding was not reasonably open to the arbitrator, the appellant says that the finding was contrary to the compelling inferences in the case, relying on the absence of contemporaneous evidence corroborating the worker's evidence, in the context of what the appellant submits is overwhelming evidence contradicting the worker's evidence. In making this submission, the appellant relies on the combination of the evidence that:[8]
[7] Appellant's submissions, par 29.
[8] Appellant's submissions, par 30. The appellant did not, in its submissions on this ground rely on particular (c)(v).
1.The worker had previously identified when the incident had occurred inconsistently with her evidence before the arbitrator that it occurred on 13 June 2017, being:
(a)the contents of progress medical certificates completed by Dr Yure Pavic dated 24 April 2018,[9] 4 May 2018,[10] and 25 May 2018,[11] which record the date of the injury as Friday, 23 March 2018;[12]
[9] AB 305 to 306.
[10] AB 308 to 309.
[11] AB 315 to 316.
[12] Appellant's submissions at par 30.4, 30.5 and 30.6.
(b)the evidence of the appellant's employee, Trinden Ford, who completed the incident report form, that the worker had reported the date as 20 April 2017;[13]
[13] AB 56, 133 and 450; Appellant's submissions at par 30.1.
(c)the contents of a note of the worker's general practitioner, Dr Tan, dated 31 January 2018 which recorded the worker had complained of 'sore shoulders 7-10 months', being a date between 31 March and 30 June 2017;[14] and
[14] AB 364; Appellant's submissions at par 30.7.
(d)the contents of the worker's initial statement which recorded the date of the incident as 13 July 2017.[15]
[15] AB 151 at par 16; Appellant's submissions at par 30.3.
2.The worker had failed to recall that the incident had occurred on 13 June 2017 until 21 May 2018, being the date of a report of an orthopaedic surgeon, Dr Allan Wang.[16]
3.The worker had failed to complain of pain in her right shoulder when attending Murray Medical Centre after 13 June 2017, on 5 July 2017,[17] and 28 November 2017.[18]
4.The worker had failed to report the incident on 13 June 2017 to the appellant when the worker knew that she was required to report even minor work incidents.[19]
5.The worker did not complain to the appellant's employee, Elizabeth Dodds, prior to April 2018 that the worker was constrained in her ability to do her work because of shoulder pain.[20]
6.The worker did not complain to the appellant's employee, Barry Burger, prior to April 2018, of shoulder pain.[21]
7.When the worker reported the injury to Ms Ford in April 2018, the worker said that she had no pain at the time of the incident, which evidence the arbitrator accepted over the worker's evidence that she had told Ms Ford that she had suffered pain at the time of the incident.[22]
8.The worker had failed to produce a text message that she said, in cross‑examination, she had sent to an employee of the appellant, complaining of shoulder pain.[23]
9.The worker had aches and complained of pain in her right shoulder before the incident.[24]
10.The photographs on which the worker relied, of the alleged system of work that gave rise to the injury on 13 June 2017, were taken after the alleged injury, and were not of the same trailer configuration.[25]
[16] AB 313 to 314; Arbitrator's reasons at par 22.
[17] AB 353 and 364; Appellant's submissions at par 30.10.
[18] AB 364 and 372; Appellant's submissions at par 30.11.
[19] AB 18; Appellant's submissions at par 30.12.
[20] AB 83 and 446; Appellant's submissions at par 30.14.
[21] AB 59, 60 and 444; Appellant's submissions at par 30.16.
[22] Appellant's submissions at par 46.
[23] AB 30, 79, 80 and 81; Appellant's submissions at par 30.9.
[24] AB 22, 150 par 11; Appellant's submissions at par 30.8.
[25] AB 15; Appellant's submissions at par 30.15.
It is apparent from the arbitrator's reasons read as a whole that the arbitrator considered the evidence referred to in [9] above, other than the evidence in [9.8], and addressed in detail his reasons for arriving at his findings which are set out in par 60 of the arbitrator's reasons. Those reasons are detailed, cogent and logical.
The arbitrator specifically referred to the evidence that contradicted the worker's evidence that the injury had occurred on 13 June 2018. However, it was open to the arbitrator to accept, as he did, the accuracy of the worker's recollection that the incident occurred on that date, despite his finding that her memory of the date of the incident was poor in early 2018, in the context where the arbitrator accepted that:
1.the worker was honest in her recollection that the incident had occurred on that date;[26]
2.that the date was 5 days after the worker's birthday;[27]
3.the date identified was consistent with her complaint to Dr Tan on 31 January 2018;[28]
4.when the incident occurred the worker did not appreciate the significance of what had occurred and had tried to cope with the symptoms by working around the problem;[29]
5.by 24 April 2018, the worker had recalled the incident occurred in mid-2017;[30] and
6.There was documentary evidence which confirmed the worker was driving and operating a prime mover and trailers for the appellant on 13 June 2017.[31]
[26] Arbitrator's reasons pars 12 and 60.5.
[27] Arbitrator's reasons par 60.8.
[28] Arbitrator's reasons pars 60.9, 36 and 15(c).
[29] Arbitrator's reasons pars 60.5, 60.6, 60.10.
[30] Arbitrator's reasons par 60.9.
[31] Arbitrator's reasons at pars 60.2 and 60.9.
In addition:
1.the dates referred to in [9](1)(a) above was an obvious typographical error that was repeated in subsequent forms; and
2.the date referred to in in [9](1)(d) above was also an obvious typographical error which the worker corrected in her subsequent statement.
The arbitrator expressly identified his reasons for accepting the worker's evidence that the injury occurred on 13 June 2017 despite finding that the worker, contrary to her evidence, had denied to Ms Ford that she felt pain at the time of lifting the gates on that date. The arbitrator considered that the worker's denial that she had felt pain was irrelevant or immaterial in the context, which was that the worker had persevered working with the injury for 10 months and Ms Ford was asking her, in effect, why she had not complied with a clear work rule.[32]
[32] Arbitrator's reasons at pars 60.10 and 60.11.
With respect to the evidence of earlier aches and pains in the worker's shoulders, the arbitrator accepted that the worker had been truthful in her evidence that what she felt in her right shoulder on 13 June 2017 was more intense or noticeable pain then she had felt previously, in the context of the documentary evidence that the worker had not complained of pain in her right shoulder in 29 visits to her GP over the period from 15 May 2012 and 15 March 2017.[33]
[33] Arbitrator's reasons at pars 14 and 60.5.
The arbitrator made express findings that there was nothing in the evidence of Ms Dodds that necessarily contradicted the worker's evidence that she had injured her right shoulder at the time and in the way she had described.[34] The arbitrator also found that the evidence of Mr Burger that the worker had verbally requested different trailers gave support to the worker's version of events.[35]
[34] Arbitrator's reasons at pars 28. It is to be noted that Ms Dodds' evidence was also to the effect that the worker had on occasion requested different trailers (at AB 83).
[35] Arbitrator's reasons at par 40.
The arbitrator accepted that the worker had not made a complaint of any shoulder pain to the appellant's employees before April 2018. However the arbitrator's finding that the worker had suffered the injury on 13 June 2017 as she claimed, despite that evidence, was made in the context of:
1.The arbitrator's rejection of evidence led by the appellant to the effect that the worker would not have been able to perform her duties after 13 June 2017 had she suffered the injury claimed on that date;[36]
2.The arbitrator's acceptance of the worker's evidence, over that of the appellant's witness, regarding the tasks involved in her employment and that, after 13 June 2017, she had managed to carry out her duties by increasing use of her left hand and arm, despite ongoing variable pain symptoms in her right shoulder, which finding was supported by the arbitrator's finding that the worker had carried out her normal duties without complaint to the appellant's employees at a time between December 2017 and April 2018, when there was no real controversy that she was suffering from the rotator cuff tear;[37]
3.The arbitrator's finding that the ongoing cause of the pain was unknown to the worker and that she had resolved to cope, and that the symptoms were not of a sufficient level to raise with her doctors on 5 July and 28 November 2017;[38] and
4.The arbitrator's finding that, having worked with difficulty until seeing Dr Tan on 31 January 2018, the worker seems to have hesitantly notified the respondent of the injury and proceeded openly, handicapped by a poor memory as to the exact occurrence date.[39]
[36] Arbitrator's reasons at par 60.13.
[37] Arbitrator's reasons at pars 33, 34, 35, 36, 37 and 38.
[38] Arbitrator's reasons at par 60.6.
[39] Arbitrator's reasons at par 60.11.
In relation to the evidence referred to in [9.8] the failure to produce the text message was not significant. With respect to the photographs referred to in [9.10] there is no suggestion that the arbitrator was misled as to when the photographs before him had been taken. The arbitrator noted the worker's evidence to the effect that the photographs differed from the gates she had handled on 13 June 2017.[40]
[40] Arbitrator's reasons at par 13.
In my view, the findings the arbitrator made referred to above and his finding that the injury occurred as alleged by the worker on 13 June 2017, were reasonably open to him on a consideration of the evidence as a whole, and it cannot be said that the finding was contrary to the compelling inferences in the case, so as to amount to an error of law.
Accordingly, I find that ground 1 does not raise a question of law.
Ground 2
Ground 2, whilst not pressed with any force by the appellant at the hearing, was not abandoned, and states:[41]
Did the arbitrator err in fact and in law in finding that the worker was suffering from total incapacity for work from 10 August 2018 and continuing?
In finding at [72] and [73](3) of his reasons that the worker was suffering from total incapacity for work from 10 August 2018 and continuing, the Arbitrator erred in fact and in law.
PARTICULARS
a.Having accepted the workers' evidence as credible, notwithstanding the inherent inconsistencies in her evidence, the Arbitrator then disregarded the workers' own assessment of her capacity for work when she gave evidence that she could return to work as a transport operator at Linfox (see [69] of the Arbitrators reasons).
[41] Combining the ground of appeal and the elaboration on the ground in Annexure A to the appeal.
Again this ground essentially relies upon the assertion that there was no reasonable basis upon which the arbitrator could make this finding. That submission must be rejected. As the worker submits,[42] rather than disregarding the worker's evidence, the arbitrator addressed that evidence and his reasons for not making a finding based on the worker's assessment of her capacity for work in par 69 of the reasons. The arbitrator rejected the worker's expressed opinion about her capacity for work, but rather made findings based on other evidence before him as to that capacity. The fact that the arbitrator accepted the worker as truthful and accurate in her factual evidence did not require him to accept the worker's expressed opinion about her current capacity for work. There is nothing inconsistent with the arbitrator's approach to the evidence.
[42] Respondent's submissions, pars 21 and 22.
As a result, I find that ground 2 does not disclose an error of law.
Ground 3
Ground 3 states:
Did the Arbitrator fail to adequately expose his reasoning process as to why evidence of the worker was preferred as to whether the incident occurred and subsequently erred in fact and in law in arriving at his finding that the worker sustained an injury in the course of her employment?
The particulars to ground 3 are limited to repeating the matters set out in relation to ground 1.
In determining the adequacy of the arbitrator's reasons, common law principles are to be applied subject to s 213(4) of the Act[43] which provides that the arbitrator's reasons:
(a)need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and
(b)need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
[43] Velez Pty Ltd v Tudor [2011] WASCA 218 [57] and [58].
The arbitrator is obliged to expose the reasoning process linking the facts accepted and the law applied, and the reasons for doing so, and justifying the ultimate result.[44]
[44] Velez Pty Ltd v Tudor [2011] WASCA 218 [70].
The arbitrator has adequately stated his reasons for accepting the worker's evidence over competing evidence, where he has done so. Indeed, for the reasons outlined in [10] ‑ [18] above, those reasons are detailed, cogent and logical.
Accordingly I find that ground 3 does not disclose an error of law.
Ground 4
Ground 4 states:[45]
Did the Arbitrator err in law in considering the issue of causation pursuant to [the Act] with respect to whether there was a causal connection between the worker's injury and the incident pursuant to relevant principles of the Act?
The Arbitrator erred in law at [54] of his reasons when, in considering the issue of causation pursuant to [the Act] he considered the principles of Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 to have application to an analysis of whether there was a causal connection between the worker's injury and the incident pursuant to the relevant principles of the Act.
[45] Combining the ground of appeal and the elaboration on the ground in Annexure A to the appeal.
The appellant accepted the worker's submission that the relevant principles to be taken into account when determining whether a personal injury by accident is suffered in the course of the worker's employment were outlined by Toohey J in Ansett Transport Industries (Operations) Pty Ltd v Srdic.[46]
[46] Respondent's submissions, par 37; Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41.
As the worker further submits the arbitrator identified those principles at pars 43, 46 and 47 of the reasons, and applied them at par 61.[47]
[47] Respondent's submissions, pars 38 and 39.
In my view all the arbitrator seeks to do in par 54 of the reasons is to recite the uncontroversial proposition that courts must determine the existence of a causal relationship on the balance of probabilities and that any inference as to the probabilities may be drawn from a number of pieces of evidence, each of which does not rise above the level of possibility.
In submitting that the arbitrator relied on Seltsam Pty Ltd v McGuiness[48] in the way alleged, the appellant relies on the arbitrator's use of the phrase 'is no more than a possibility' in par 60(14)(a) when referring to the likelihood of the cuff tear occurring or being worsened by aggravation or acceleration 'despite the employment duties': that is unrelated to those employment duties. However the arbitrator goes on, in that paragraph, to give his reasons for dismissing, as possible causes of the worker's rotator cuff tear, any cause unrelated to a work incident.
[48] Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262.
In addition, in considering the issue of causation in par 61 of the reasons the arbitrator specifically refers to Ansett and does not make any reference to Seltsam. Accordingly, as the worker submits, if there were an error in referring to Seltsam, it apparently played no role in the arbitrator's decision.
I find that ground 4 does not disclose an error of law.
Ground 5
Ground 5 states:[49]
Did the Arbitrator err in fact and in law in failing to have regard to the weight of the expert medical evidence, which was to the effect that a causal connection between the worker shoulder injury and the incident was no more than a possibility?
The Arbitrator erred in fact and in law in failing to have proper regard of the weight of the expert medical evidence, which was to the effect that a causal connection between the workers shoulder injury and the incident was no more than a possibility.
[49] Combining the ground of appeal and the elaboration on the ground in Annexure A to the appeal.
In submissions this ground appeared in fact to be a reworking of ground 4, that the arbitrator had misdirected himself as to the correct test for determining a causative link, and was not an invitation to analyse the medical evidence. As I have found that ground 4 does not disclose an error of law it follows that this ground does not disclose an error of law.
However, if I am wrong in that, I consider that, as the worker's counsel submits, ground 5 is otherwise no more than a complaint that the arbitrator made a finding against the weight of evidence. In my view the arbitrator's finding was open to him and does not disclose an error of law.
The arbitrator made an express finding that, on 13 June, the worker was required to lift and move trailer gates, two of which were un‑hung, and that she had previously made a complaint about these gates to the appellant's employee.[50]
[50] Arbitrator's reason at pars 60.2 and 60.3.
The proposition that lifting or moving gates could cause either a rotator cuff tear or an aggravation or acceleration of a pre‑existing tear was not controversial on the basis of the expert evidence identified by the arbitrator.[51]
[51] Arbitrator's reasons at pars 60.4 and 60.13.
Conclusion
As I have found no error of law has been made out I would refuse leave to appeal. It is therefore not necessary for me to consider the merits of the appeal. However in that respect I note that the appellant conceded at the hearing that if it failed to establish an error of law it must also fail in a review of the arbitrator's findings that the worker suffered a work injury on 13 June 2017 and that the worker's current condition is causally related to that work injury.
Leave to appeal is refused and the appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JG
Associate to Judge Vernon16 MARCH 2020
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