Shipley v Visscher Caravelle Australia Pty Limited
[2023] NSWPICPD 46
•14 August 2023
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Shipley v Visscher Caravelle Australia Pty Limited [2023] NSWPICPD 46 |
APPELLANT: | Troy Shipley |
RESPONDENT: | Visscher Caravelle Australia Pty Limited |
INSURER: | Employers Mutual NSW Limited |
FILE NUMBER: | A1-W456/23 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF APPEAL DECISION: | 14 August 2023 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 19 May 2023 is revoked. 2. The matter is referred to the Division Head of the Workers Compensation Division for allocation to another member and the appointment of an earliest possible hearing date. |
CATCHWORDS: | WORKERS COMPENSATION – whether an appeal can fairly and properly be heard in the absence of a transcript – Mosawi v Baron Forge (NSW) Pty Ltd [2022] NSWPICPD 48 and Wyong Shire Council v Paterson [2005] NSWCA 74 considered and applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr P Stockley, counsel and Mr S Chadwick, solicitor | |
| Chadwick Lawyers | |
| Respondent: | |
| Mr J Fennel, counsel | |
| Hall & Wilcox | |
DECISION UNDER APPEAL | |
MEMBER: | Mr J Wynyard |
DATE OF MEMBER’S DECISION: | 19 May 2023 |
INTRODUCTION AND BACKGROUND
Troy Shipley, the appellant, was employed by Visscher Caravelle Australia Pty Ltd, the respondent, as a storeman at their Glendenning warehouse. The appellant commenced this employment in January 2018. The appellant says that he suffered injuries on two occasions while working for the respondent. These injuries took place on 31 January 2020 and 2 July 2020. In the subject incidents the appellant says he suffered injury to his left shoulder, his cervical, thoracic and lumbar spines.[1]
[1] Appellant’s statement dated 27 July 2022, Application to Resolve a Dispute (ARD), p 20.
The respondent issued three notices under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing the appellant’s claims.[2]
[2] ARD, pp 1, 7, 14.
This application was advanced by the appellant seeking a declaration under s 60(5) of the Workers Compensation Act 1987 (the 1987 Act) that proposed fusion surgery to his cervical spine was reasonably necessary as a result of the claimed injuries. The issues before the Member involved two questions; did the appellant suffer injury to his cervical spine on either date and secondly, was the surgery reasonably necessary?[3]
[3] Shipley v Visscher Caravelle Australia Pty Ltd [2023] NSWPIC 229 (reasons), [3].
The Member was not satisfied that the appellant had proven injury to his cervical spine and accordingly entered an award for the respondent. The appellant appeals that decision.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 – Determination of matters ‘on the papers', and WC3 – Presidential appeals and questions of law; 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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
GROUNDS OF APPEAL
Below I am required to decide a preliminary matter relating to the absence of a transcript of the hearing. In evaluating whether I can fairly hear the appeal it is necessary to set out the appeal grounds as a part of my considerations. The appeal grounds are composed of the following:
Ground One: The decision was affected by error of law in that the Member, having correctly identified the issues for determination at paragraph [3] of the reasons, incorrectly stated and determined a different issue at paragraphs [132] and [133].
Ground Two: The Member erred in law in failing to determine whether on the balance of probabilities the appellant had sustained injury to his cervical spine on 2 July 2020.
Ground Three: The Member erred in law in considering whether the appellant had engaged in an ex post facto reconstruction of evidence.
Ground Four: The Member erred in fact in finding that the appellant had engaged in an ex post facto reconstruction of evidence.
Ground Five: The Member erred in a question of law, fact or discretion in failing to give consideration to the expert opinion of Dr Hsu in his report of 10 August 2022.
PRELIMINARY MATTER
After this appeal was lodged and it became apparent that there was no recorded audio or transcript of the hearing that took place before the Member on 21 March 2023, the matter was referred to me. Upon being allocated this matter I caused further enquiries to be made to ascertain whether a sound recording of the hearing could be located. Unfortunately, no such audio exists and as a consequence there is no transcript of the hearing.
The parties have been advised of this circumstance and have been invited to make submissions as to whether the appeal can be fairly and properly heard absent the transcript. A direction was issued to the parties posing various questions which both have very helpfully responded to.
The application for surgery in this matter involves a relatively modest amount, the claim is for a surgical expense totalling $22,349.30 (as quoted in October 2021).[4] I am mindful of the costs to the parties and the Commission in the event that this matter has to be reheard due to the absence of a transcript. Considerations of s 42(4) of the 2020 Act arise.
[4] ARD, p 142.
I have previously dealt with a similar situation involving the absence of a hearing transcript in Mosawi v Baron Forge (NSW) Pty Ltd.[5] The relevant passages of that decision are [5]–[27], and in particular paragraphs [13] and [14] dealing with the remarks of Giles JA in Wyong Shire Council v Paterson.[6]
“13. In Wyong Shire Council v Paterson Giles JA said as follows:
‘Absence of transcript is not a passport to a new trial, or the equivalent of a fresh arbitration in the present case, even if, as appears to have been the case, all concerned thought that the transcript would be forthcoming if necessary.’
14. Giles JA then said this:
‘I will assume, without deciding, that the Deputy President had a discretion, but if so it comes down to whether the Deputy President considered that she could properly carry out her task in the absence of the transcript. She considered that she could, and I do not think that it has been shown that her view was not open to her, or that it would work such an injustice on the employer that the only proper exercise of discretion could have been to send the matter back for a fresh arbitration. I am not persuaded that any error in the exercise of the assumed discretion has been shown.’”[7]
[5] [2022] NSWPICPD 48 (Mosawi).
[6] [2005] NSWCA 74 (Paterson).
[7] Mosawi, [13]–[14], citing Paterson, [44].
I will apply the principles set out in Mosawi to this matter in deciding whether it is possible to fairly and properly hear the appeal in the absence of a transcript.
There are a number of initial points to make about the hearing. Firstly, no oral evidence was called and, as a consequence, no witnesses were cross-examined. The respondent says that credit of a witness was not an issue in the proceedings,[8] although this is a matter of concern to the appellant.[9] Both parties were represented before the Member by experienced counsel and solicitors and the matter proceeded on the basis of oral submissions.
[8] Respondent’s submissions on appeal, 21 July 2023, [7(d)(iii)].
[9] Appellant’s submissions, 26 July 2023, [1(b)].
The Member’s decision itself does recount the parties’ submissions in detail, both in chief and in reply.[10] These passages constitute quite a reasonable commentary of the submissions that were made, bearing in mind the Member’ obligation to deliver brief reasons for his decision.[11] The respondent says that the Member’s summary is ‘broadly consistent’ with the parties’ oral submissions save for one matter, which is that the respondent says it addressed the Member on Dr Hsu’s report dated 10 August 2022.[12] The appellant agrees that the Member’s summary is ‘largely consistent’ with what was put but has no recollection of the particular submission made by the respondent about Dr Hsu. Dr Hsu’s opinion and how it was dealt with is subject to challenge in Ground Five of this appeal.
[10] Reasons, [72]–[103].
[11] Section 294(2) of the 1998 Act.
[12] ARD, p 169.
In terms of the parties’ submissions on this question, the appellant asserts that there has been a denial of procedural fairness in the hearing and as a result justice cannot be done without the transcript. The appellant says that this is a problem with respect to Ground Three in terms of how the Member dealt with the appellant’s evidence.
Ground Three alleges that the Member erred in law in considering whether the appellant had engaged in an ex post facto reconstruction of evidence. Submissions supporting Ground Three argue these propositions:
“15. At Reasons 129 the Member stated that he did not raise any question about Mr Shipley’s honesty.
16. The notion of ex post facto reconstruction of evidence was not one embodied in the dispute notices or identified by the respondent as a relevant consideration at the hearing.
17. To the best of the author's recollection, it was not a matter raised in oral submissions. The appellant seeks leave to re-visit this question upon the hearing transcript being provided.
18. The appellant accepts that the clinical material did not embody a direct contemporaneous corroboration of all of the evidence he gave and or to the histories he provided to both treating and qualified experts.
19. However, as the Member observed the clinical material did contain entries that tended to support the appellant's account. (For example reasons, [111], [113], [116], [118], [122].)
20. While the Member acknowledged that caution was required in using the absence of complaint in clinical material, he nevertheless impermissibly elevated the weight of the inferences to be drawn from them, in the face of the appellant's unequivocal evidence. This was an error of law, as identified by Brereton AJ in Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548.
21. The difficulty that the Member created in his analysis was borne by mere speculation on his part. This can be seen from the language that he adopted. For example, it is ‘always possible that Mr Shipley .... had unconsciously reconstructed’ (reasons, [108]); ‘Mr Shipley's statement that he recalled a snap in his neck may have been incorrect’ (reasons, [109]); ‘It may very well be that his recall of these events was influenced by these matters’ (reasons, [115]). [appellant’s emphasis]
22. At the very least Mr Shipley should have been asked about these matters before any negative inference was to be drawn against him. The [Commission] in recent times has acknowledged the need for cross examination in such circumstances. While the failure to cross examine in [Finney Pty Limited t/as Cut Price Car Rentals v Chequer [2021] NSWPICPD 13] was in respect of a more serious allegation than ex post facto reconstruction, the principles of procedural fairness mandated the need to draw to his attention the very proposition that in this case would be applied to dismiss his claim.
23. The failure to put the proposition to the appellant either in a dispute notice, in submissions or in cross examination, constituted a denial of procedural fairness.”
In reply the respondent says that injury was always disputed in the s 78 notices. Further, the respondent argues that:
“The appellant had, and in fact took, the opportunity to respond to those issues and raised no objection to the respondent’s clearly articulated arguments. It was clear at every point in the matter that the appellant’s version in his statement was in dispute.”
And:
“The oral submissions advanced on behalf of the appellant at first instance suffered from the same defect identified by the Deputy President in Mr Tanner’s submissions, above.”[13]
[13] Respondent’s submissions on appeal, 21 July 2023, [34], [36].
Ground Four is a derivation of Ground Three and the respondent’s response covers both grounds.
I would also note that in defence of Grounds One and Two of the appeal, the respondent makes reference to the submissions made at the hearing.[14] Notwithstanding its references to the oral submissions in its response to the appellant’s appeal submissions and the absence of a transcript, the respondent states that it accepts that the appeal can be fairly and properly heard. The appellant says that the appeal cannot be fairly heard absent the transcript.
[14] See [26(b)], [28] of the respondent’s submissions on appeal, 21 July 2023.
CONSIDERATION
As outlined above from Paterson, the absence of a transcript does not constitute the automatic granting of a rehearing. As I stated in Mosawi, the essence of the appellate function is the identification and correction of error. The matter to be considered is whether, absent a transcript, I can perform that function fairly and properly.
The circumstances of this matter can (unfortunately) be distinguished from those in Mosawi in this respect. In that case there was broad agreement about what transpired at the hearing. Both parties agreed that there was sufficient material and mutual acceptance as to what occurred to enable the matter to proceed. This does not exist in this matter. I hasten to add that I am not being critical of either of the parties in this matter. This situation is entirely regrettable, and I am very grateful for the thoughtful submissions of both parties in dealing with this issue. The respondent’s submission dated 11 August 2023 confirms that its notes of the hearing are not complete and are insufficient to provide a basis for agreement between the parties as to facts.
I am concerned that in this matter the appeal submissions contain arguments and responses based on what was put to the Member. This is a concern in terms of there being no transcript. The argument about Grounds One and Two is a case in point. The argument is whether the credit, honesty or reliability of the appellant’s evidence had been disputed. The respondent says its s 78 notices did notify this matter and the appellant failed to take issue with this point in submissions before the Member.[15] I have read the s 78 notices closely. It is true that the appellant’s claim is disputed but this is essentially done on the basis of the medical evidence and an examination of the clinical records. It is not a fair reading of those notices to say that the appellant’s credit, honesty or reliability was put in issue. I note that the respondent’s submissions do state that “[c]redit of a witness was not identified as being in issue in the proceedings”[16] which does appear to sit in contradistinction to the assertion that the matter had been notified in the s 78 notices.
[15] Respondent’s submissions on appeal, 21 July 2023, [26(b)].
[16] Respondent’s submissions on appeal, 21 July 2023 [7(d)(iii)].
In terms of Ground Five, the respondent asserts that it made submissions about Dr Hsu’s opinion. The appellant does not recall this. Given the argument in Ground Five and the lack of agreement as to what was (or was not) said, it is simply not possible to fairly decide this matter on appeal.
So, the situation is that in relation to all five appeal grounds, there is an aspect of the prosecution or defence of each which does involve a dispute about what was put to the Member. Without access to a transcript, I simply would not be able to discern the true position, given the state of the parties’ submissions, so that I could confidently proceed to determine the appeal. This would not be fair to either party.
As I have noted above, I make no criticism of any party or the Member. Indeed, the Member’s decision is very detailed, and I had hoped that there was sufficient in it to enable the appeal to proceed. Unfortunately, the arguments which both parties are completely entitled to assert mean that this cannot occur. The prudent course is for the matter to be reheard and at the earliest date possible.
It is therefore with great reluctance that I must revoke the Certificate of Determination on the basis of the absence of the transcript. Normally in such a circumstance involving a s 60 claim on appeal, I may proceed to redetermine the matter if the Certificate had been revoked. But absent being able to identify error, this path is not available. The issues in this case are relatively confined. I will make a direction that the matter be referred to the Division Head of the Workers Compensation Division of the Commission for an urgent allocation of an early hearing date. Given the decision reached by the Member, it would not be appropriate that the matter be referred back to that Member for rehearing. I will direct that it be allocated to another member.
DECISION
The Certificate of Determination dated 19 May 2023 is revoked.
I direct that this matter be immediately referred to the Division Head of the Workers Compensation Division of the Commission for the purposes of allocating this matter to another member and setting the earliest possible hearing date.
Judge Phillips
PRESIDENT
14 August 2023
2
5
0