Sonter v Librix Pty Limited
[2006] NSWWCCPD 269
•11 October 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Sonter v Librix Pty Limited [2006] NSWWCCPD 269
APPELLANT: Alan Leslie Sonter
RESPONDENT: Librix Pty Limited
INSURER:QBE Workers Compensation ( NSW) Limited
FILE NUMBER: WCC21291-05
DATE OF ARBITRATOR’S DECISION: 5 May 2006
DATE OF APPEAL DECISION: 11 October 2006
SUBJECT MATTER OF DECISION: Jurisdiction; mental capacity and consent orders.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Self Represented
Respondent: Bartier Perry, Solicitors
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 5 May 2006 is confirmed.
2. No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
Alan Leslie Sonter (‘Mr Sonter’) and his wife, Margaret Sonter, were proprietors of the Respondent company, Librix Pty Limited trading as Lady Rene Carpet Cleaners (‘Librix’). Mr Sonter was a director of Librix but claimed that he, his wife and his son Andrew were employees of the company.
Mr Sonter claimed that on 10 July 2002, he went to collect his son Andrew in a company van, because Andrew’s van had apparently broken down. Mr Sonter stated that he then drove Andrew to Andrew’s home where an argument ensued. Mr Sonter was punched violently in the head by Andrew, as a consequence of which he suffered a fractured skull resulting in a severe traumatic brain injury.
Notice of the injury was given to Librix’s insurer, QBE Workers Compensation (NSW) Limited (‘QBE’) by way of a claim form completed on 15 October 2002.
By letter dated 5 December 2002 QBE advised Mr Sonter that liability was declined because “… your injury was not related to your employment.” In a further letter to Mr Sonter dated 11 December 2002, QBE advised that “… liability of your claim was denied based on section 9A(1) of the Workers Compensation Act 1987.”
On 15 December 2005, Mr Sonter filed an ‘Application to Resolve a Dispute’ seeking weekly benefits compensation, medical, hospital or related expenses and permanent impairment/pain and suffering compensation pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’) and the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
On 19 January 2006, Librix filed a ‘Reply’ disputing, inter alia, Mr Sonter’s entitlement to any benefits on the basis that his injury did not arise out of or in the course of his employment and further, that his employment with Librix was not a substantial contributing factor to his injury.
The matter was listed for a conciliation/arbitration hearing on 23 March 2006. The matter was not able to conclude on that day and was adjourned part-heard to 4 May 2006.
Following further discussions between the parties on 4 May 2006, the matter resolved. Short Minutes of Order were signed by Mr Sonter, his counsel, and counsel for Librix.
On 5 May 2006, a ‘Certificate of Determination – Consent Orders’ was issued. The determination of the Arbitrator was as follows:
“In this matter a conciliation conference was held where the parties were assisted by me, acting as an Arbitrator, to come to an agreed resolution of the issues in dispute. By reason of their agreement, and in accordance with Rule 75(1) of the Workers Compensation CommissionRules 2003, the determination of the Commission in this matter is as follows:
1. Award in favour of the Respondent in respect of the Applicant’s claim for payments of weekly compensation.
2.That the Respondent pay the Applicant’s medical expenses under s.60 of the Workers Compensation Act 1987 up to a maximum amount of $10,960.00 on production of accounts or receipts. Award in favour of the Respondent in respect of all amounts in excess of $10,960.00 and in respect of all medical and hospital expenses incurred after 3 May 2006.
3. That the Respondent pay the Applicant’s costs as agreed or assessed, and for this purpose I certify these proceedings as complex.
4. That the parties file a s.66A Agreement with respect to s.66/67 of the Workers Compensation Act 1987 with the Registry within 14 days or those proceedings will be dismissed.
The following is not a determination of the Commission, however, I note that the parties have agreed the following: The Respondent will pay the Applicant $35,000.00 in respect of a 23% whole person impairment, and $25,000.00 in respect of pain and suffering under s.67. It is noted the Applicant has no other s.66 or s.67 entitlements.”
On 30 May 2006 Mr Sonter filed an ‘Appeal Against Decision of Arbitrator’. Mr Sonter claims that, although he advised the Arbitrator that he was “happy with the settlement” that, on reflection, he realised that he had relinquished his rights to “ongoing medical treatments” and “loss of wages since the injury …” He submits that: “… The injury to my brain has taken away my ability to quickly assess complex situations. I need time to analyse things … I would have been unable to assess the full ramifications of the agreement which the legal people thrust in front of me.”
Mr Sonter claims that:
“I feel that the full ramifications of the agreement were not explained to me in a way that would allow my brain to assess the complete compensation package. I therefore appeal the decision of the Arbitrator and ask that his decision be set aside and a new hearing be convened.”
Although not clearly stated, Mr Sonter apparently seeks leave to adduce fresh evidence being a report from his treating psychiatrist, Dr Montanari dated 22 June 2006.
On 20 July 2006, Librix filed a ‘Notice of Opposition to Appeal’. Briefly, Librix submits that the “decision” which Mr Sonter seeks to appeal is a settlement agreement reached between the parties which resulted in “consent orders” being issued by the Arbitrator. Librix submits that Mr Sonter “… reached the agreement as to settlement with the Respondent in good faith and with the benefit of legal representation at all times and was therefore not disadvantaged in his negotiations with the Respondent at any time.” Librix submits that leave to appeal should be refused and that the Consent Orders issued by the Arbitrator should be confirmed.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“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.”
Both parties submit that the appeal is suitable for a determination ‘on the papers’.
Having regard to Practice Directions No.s 1 and 6, and all the documents that are before me, 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.
LEAVE TO APPEAL
Before proceeding to deal with an appeal, the Commission must determine whether the Appeal Application meets the requirements of section 352 of the 1998 Act.
Section 352(2) provides as follows:
“The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a) at least $5000.00 (or such other amount as may be prescribed by the Regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
In the present case, Mr Sonter filed submissions on this issue on 16 June 2006, pursuant to a direction from the Commission dated 7 June 2006.
In response to that, Librix submits that Mr Sonter’s submissions “… do not properly or adequately address the requirements of section 352 in respect of threshold issues relating to the granting of leave and the Appellant’s application should be rejected.”
Briefly, Mr Sonter submits that the amount at issue exceeds the requirements of section 352(2) of the 1998 Act because of his claim for loss of wages from 10 July 2002 to date and continuing, and future medical and possible rehabilitation expenses.
In his Application, Mr Sonter claimed weekly benefits at the rate of $489.00 per week from 10 July 2002. Medical expenses claimed were said “to be advised”.
I accept Mr Sonter’s submissions on this issue and I am satisfied that the amount at issue on appeal satisfies the threshold requirements set out in section 352(2) of the 1998 Act.
Leave to appeal is granted.
FRESH EVIDENCE
There is no reference in Mr Sonter’s submissions to the medical report of Dr Roman Montanari, Consultant Psychiatrist, dated 22 June 2006 which was addressed to the Registrar of the Commission. It is not clear when it was ‘filed’; it post-dates the Appeal Application. It was served on Librix’s solicitors on 30 June 2006.
The report is certainly ‘fresh evidence’, post dating the arbitration hearing, and follows consultation with Mr Sonter on 22 June 2006. Dr Montanari was requested by Mr Sonter to provide a report in relation to the Appeal Application.
Section 352 of the 1998 Act makes provisions for an appeal against a decision of the Commission constituted by an Arbitrator. Section 352(6) provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No. 6 states as follows:
“hIf fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against (new evidence) is relied upon:
- A schedule of the new evidence,
- A copy of the new evidence,
- A brief outline of the new evidence and the reasons why it was not give in proceedings before the Arbitrator, and
- Submissions on why the new evidence should be admitted.
[Must be included in the Application]”
Whilst the Practice Direction does not have the force of statute or regulation, its purpose is to set out the practice and procedure to be adopted by the Commission when a party seeks leave to appeal a decision of an Arbitrator.
Mr Sonter has failed to comply with the requirements of Practice Direction No. 6 to the extent that he has not provided any submissions as to why the new evidence should be admitted.
Nonetheless, I am mindful that he is a self represented Appellant, and I am mindful of the objectives of the Commission as set out in section 367 of the 1998 Act, in particular section 367(1)(a) “to provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts …”
I have also had regard to the provisions of section 354 of the 1998 Act, in particular sub-sections 1, 2 and 3 which provide as follows:
“(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the Rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
The decision as to whether or not to admit fresh evidence is a discretionary one, and must be exercised having regard to both to the objectives of the Commission and the procedure before the Commission.
There was considerable evidence before the Arbitrator from psychiatrists, neurosurgeons and neuropsychologists filed by Mr Sonter. There is no medical evidence in the Commission file from Librix. The Arbitrator’s notes record that a medical appointment had been arranged shortly before the resumption of the hearing on 4 May 2006 and, given that the parties ultimately resolved the dispute, it was presumably deemed no longer necessary to make application to admit further medical evidence.
I have taken this aspect of the matter into account bearing in mind the objection raised by ‘Librix in its ‘Notice of Opposition to the Appeal’ to the admission of this fresh evidence.
The Rules do not set out the factors to be considered in the exercise of the discretion to admit fresh evidence, but the overriding principal must be to do justice between the parties and to afford each party procedural fairness.
Whilst I am mindful of Librix’s objections, and the fact that no medical evidence from it is included in the Arbitrator’s file, I am of the view that the interests of justice would be served by permitting Mr Sonter to file the report of Dr Montanari dated 22 June 2006.
Accordingly, leave to file fresh evidence is granted.
The weight of that evidence is of course a different issue to which I will refer shortly, bearing mind the requirements of Rule 70 of the Rules in relation to the relevance and probative value of any evidence before the Commission.
THE ISSUES IN DISPUTE
The thrust of Mr Sonter’s submissions is that he did not have the requisite mental capacity to provide informed consent to the resolution of his claim. Mr Sonter submits that the medical evidence before the Arbitrator confirms that: “The injury to my brain has taken away my ability to quickly assess complex situations.”
Mr Sonter submits that:
“I am told that because of my injury, I can only focus my attention on one aspect of a situation. At the conference, I was focused on the negotiations of the ‘whole of body impairment’ and the ‘pain and suffering’. The ongoing medical situation and loss of wages were never negotiated.”
Mr Sonter further claims that he:
“Would have been unable to assess the full ramifications of the agreement which the legal people thrust in front of me … the hand written agreement was read to me and I was never asked to read it myself. I thought that the agreement sounded alright and I was then asked to sign it. It was not until after I had left the WCC Office that I had time to read it.”
In order to assess the accuracy of these statements, it is necessary to examine the medical evidence.
In his Application, Mr Sonter relied on extensive medical evidence. It is not necessary to examine in detail the hospital records and extensive reports from the Nepean Brain Injury Rehabilitation Clinic except to say that there is no doubt that Mr Sonter suffered a severe traumatic brain injury. It should also be noted that all of those reports refer to Mr Sonter’s background history of depression over about three years prior to his injury and apparent personality and behavioural changes consequent on that condition. Mr Sonter, subsequent to his injury, was also diagnosed with an aneurysm.
In what appears to be the final report from the Brain Injury Rehabilitation Service at Westmead Hospital under the hand of Dr Alexandra Walker, Senior Clinical Neuropsychologist, dated 6 November 2003, it was recorded that Mr Sonter showed little change in cognitive function relative to the earlier assessment carried out on 24 September 2002. Dr Walker concluded:
“The most prominent feature of Mr Sonter’s presentation remains behavioural and personality disturbance, with a lowering of frustration tolerance and increased liability of mood and depression. He reports increased difficulty with decision making, which may be related to depression and/or personality factors … The personality and behavioural issues appear to be of long standing according to the more comprehensive history obtained by … his clinical psychologist. The lack of clear decline and the apparent stability of personality and behaviour indicate that there is unlikely to be an underlying neurodegenerative process.”
Mr Sonter was seen by Dr Buskell, Consultant Psychiatrist at Nepean Hospital throughout 2002 and into 2003. It appears that Mr Sonter developed some hostility towards Dr Buskell as a result of his perceived treatment at the Nepean Hospital. It seems that Mr Sonter regularly failed to attend appointments. Dr Buskell was also of the view that many of Mr Sonter’s difficulties and complaints related to his previously diagnosed depression and personality style. Mr Sonter had been treated by a psychologist prior to his injury.
Mr Sonter appears to have come under the care of Dr Montanari, psychiatrist, in March 2004. In a report dated 19 October 2004 Dr Montanari’s psychiatric diagnosis (DSM – IV) was dementia due to head trauma which Dr Montanari described in the following terms:
·“Memory impairment (impaired ability to learn new information).
·Disturbance in executive functioning (ie planning, organising).
·The cognitive deficits each cause significant impairment in social and occupational function, and represent a significant decline from his previous level of function.”
Mr Sonter was also seen by Dr Arthur Shores, Honorary Clinical Associate Professor of Neuropsychology. In a report dated 7 September 2004, Dr Shores opined that Mr Sonter’s presentation was consistent with non-dominant cerebral hemisphere impairment. Dr Shores noted “in the presence of apparently well preserved verbal memory function he has strong evidence of visual memory impairment, evidence of slowness of processing mental information and evidence consistent with right hemisphere brain impairment …” Dr Shores considered that Mr Sonter was unfit for work “… because of his poor memory, slow information processing and lack of initiation.”
Mr Sonter also consulted Dr Julian Parmegiani, Psychiatrist at the request of his solicitors on 26 August 2003. In a report dated 27 August 2003, Dr Parmegiani concluded that: “Mr Sonter is currently fit to resume fulltime employment in his pre-injury occupation. He was able to drive again, and renovate houses. He could return to carpet cleaning if he chose to do so.” Dr Parmegiani also noted that “Mr Sonter was able to read for two hours. He was able to undertake property transactions, drive and renovate houses. This suggested his concentration was normal”. Dr Parmegiani considered that Mr Sonter suffered a 4% whole person impairment as a consequence of his injury.
In a subsequent report dated 23 November 2004, Dr Parmegiani was asked to review a number of other reports including those from Doctors Walker, Buskell and Shores. Dr Parmegiani concluded that “Dr Shores’ findings differ from my findings in August 2003. It is possible that Mr Sonter’s level of function deteriorated over the past 12 months. If so, a diagnosis of depression is likely. Problems arising from brain damage tend to improve in the first two years, while problems arising from depression increase as time passes.
In a final report dated 23 February 2005 to Mr Sonter’s solicitors, Dr Parmegiani reviewed reports of Dr Montanari and concluded as follows:
“In summary, if Mr Sonter’s impairment is to be attributed wholly to brain damage, an assessment of psychiatric impairment is no longer appropriate. I suggest asking Dr Shores for an opinion about the contribution of depression, if any, to Mr Sonter’s present problems. If functional deficits are caused by brain damage, Mr Sonter’s impairment will need to be assessed by an MAA trained neurologist.”
No such assessment appears to have taken place.
Mr Sonter was also seen at the request of his solicitors by Dr Patricia Jungfer, Psychiatrist, on 21 July 2005. In a report dated 9 August 2005, Dr Jungfer made the following observations:
“[Mr Sonter’s] impairments and deficits have gradually improved over time although he continues to have residual impairments… The current behavioural changes that are reported in particular the difficulties with respect to initiative are best described as that of an organic personality disorder apathetic type.”
Dr Jungfer noted that Mr Sonter indicated that his primary problem was “difficulties in getting things done. He said that he is aware of what needs to happen but often has difficulties initiating the task.” She also noted that Mr Sonter:
“… Reported that he had become very tied up with the whole legal process since the time of the assault by his son and while he was aware that this meant that he neglected other things, he was unable to shift his mindset to be able to attend to more than one task at a time and indicated that he was quite obsessive with respect to the one activity.”
Dr Jungfer recorded that Mr Sonter denied a depressed mood, that he was able to drive a vehicle and that “his long term memory [is] … reasonable …” Mr Sonter’s wife, when interviewed, expressed a view that Mr Sonter had “changed” but was unable to say specifically in what way he had changed. At the time Dr Jungfer saw Mr Sonter, he was not taking any medication. Dr Jungfer diagnosed Mr Sonter with mild depression.
Dr Jungfer also commented on the report of Dr Montanari dated 8 July 2005 noting that the anti-depressant medication had been ceased and that Mr Sonter’s mood had continued to improve.
Dr Jungfer diagnosed Mr Sonter as suffering a cognitive disorder following his head injury. However, she noted that “there was no evidence of formal thought disorder …” and that “… Mr Sonter had some awareness with respect to the impairments that he suffered from and some acknowledgment of the difficulties that his impairments were causing.” Dr Jungfer concluded that:
“Mr Sonter’s current impairments and difficulties are essentially that of difficulties with regards to initiative … if activities that are structured or planned for him and he is prompted he is able to complete these activities. He also has difficulties in determining the importance of activities and presents as being a ‘sticky’ and more difficult individual.”
Dr Jungfer concluded that Mr Sonter suffered a whole person impairment of 23%.
Whilst it is fair to say that the psychiatrists whom Mr Sonter consulted were all of the view that he had cognitive or mental status impairments as a consequence of his injury, there was no medical evidence to the effect that Mr Sonter was unable to appreciate, as he put it, “the full ramifications of the agreement …” Whilst it is also fair to say that the medical evidence tended to support his assertion that he required time to assess complex situations and “… to analyse things and to break situations down into smaller units”, there is no evidence that Mr Sonter was denied that opportunity.
Moreover, in a statement dated 9 March 2006 contained in an Application to Admit Late Documents dated 16 March 2006, Mr Sonter said as follows: “The treatment I am currently receiving is from Dr Montanari. This basically involves counselling and I receive counselling every three or four weeks. I am not taking any anti-depressant medication … My activities are basically involved looking after my personal affairs and using a computer. I find that I cannot concentrate on performing tasks. The main problem I have is in prioritising things.” That statement is consistent with the medical diagnoses and again, does not suggest that Mr Sonter has any particular difficulty with comprehension or understanding.
It is clear from Mr Sonter’s submissions that he is aggrieved by his legal representation. It is noted that he has apparently had two previous firms of solicitors representing him. Proceedings commenced by him in the Commission in 2004 were apparently discontinued. Mr Sonter stated that his claim “… had been listed and then withdrawn on two previous occasions and I feel that the reason this matter has had such a long delay is due to the incompetence of my legal representatives.”
Mr Sonter noted that the arbitration hearing on 4 May 2006 was a continuation of the previous arbitration hearing held on 23 March 2006. The circumstances of the adjournment were described in a memorandum from the Arbitrator following the hearing on 23 March as follows:
“This matter commenced in conciliation today, and after two hours, arbitration was commenced. The matter was not able to conclude, and is now part heard. Delays are experienced partly because the Applicant has a brain injury, and care is required to ensure that he is given adequate time to provide instructions and understand what is occurring.”
Mr Sonter went on to state in his submissions that, at the resumption of the proceedings on 4 May 2006, settlement negotiations had apparently resumed with which he was dissatisfied. He states:
“I was extremely upset by the fact that the case was not being heard by the Arbitrator, so much so that I walked away from the negotiations. I told my legal representative that I had had enough of all the back and forth negotiating and that I would return at 12:00 midday, when the hearing was due to resume. I then walked out.”
It would appear that Mr Sonter’s behaviour throughout the arbitration proceedings on both occasions was reflective of many of his personality disorders as described by the psychiatrists. However, his description of the circumstances of both arbitration hearings is also evidence of the fact that considerable time appears to have been afforded Mr Sonter and indeed the legal representatives for both parties, to reach an agreement as the Arbitrator, consistent with his obligations, was required to urge the parties to achieve.
The medical report of Dr Montanari dated 22 June 2006 upon which Mr Sonter now seeks to rely states as follows:
“Mr Sonter showed me a copy of the handwritten document entitled ‘Settlement Instructions’, dated 4 May 2006. He tells me that this document was given to him to sign relatively hastily, before he had an opportunity to properly consider its ramifications. In light of Mr Sonter’s known brain injury, and its consequential cognitive impairments, it is my opinion that it was unwise for him to be expected to sign a contract without more time (than would be appropriate for a person without a brain injury) to consider the ramifications of any decision. In short, he seems to have a legitimate claim to the effect that he was unable to give informed consent in the situation.”
Dr Montanari seems to be referring to a document that Mr Sonter presumably signed at the request of his solicitors, being ‘Settlement Instructions’, as opposed to the handwritten Short Minutes of Order signed by Mr Sonter, his Counsel, and Counsel for Librix. I am not, nor can be, privy to any discussions between Mr Sonter and his legal representatives. If Mr Sonter did not wish to settle his claim, he was not obliged to do so. The Arbitrator’s notes, and indeed the duration of the proceedings over two days, suggest that considerable time was afforded Mr Sonter to consider settlement of his claim. There is nothing to suggest, as Dr Montanari stated, that Mr Sonter was required to sign a document “relatively hastily”.
Moreover, as Mr Sonter points out in his submissions:
“When I returned at 12 midday I was told that QBE had agreed to pay me $35,000.00 for whole of body impairment and a further $25,000.00 for pain and suffering. I agreed that that was what I was prepared to accept. My legal representative then spoke to the other party and they wrote out an agreement for me to sign. The agreement was read to me and I was told to sign the Agreement at the bottom and so I signed it.
When the conference resumed, the Agreement was given to [the Arbitrator]. The [Arbitrator] asked me if I was happy with the settlement and I told him that I was.”
Mr Sonter then submits as follows: “The next few days following the conference I took time to reflect over what had transpired. I came to realized [sic] that the wording of the agreement denied me the right to be compensated for any rehabilitation or ongoing medical treatments … [or] for the loss of wages since the injury or for loss of future wages”.
Mr Sonter’s submissions essentially reflect a ‘change of heart’ by him. He has prepared a two page typed statement of his submissions which are both detailed and coherent. His submission that “I know when you read the medical reports about me, you will realise that I would have been unable to assess the full ramifications of the agreement which the legal people thrust in front of me” is simply not born out by the totality of the medical evidence. The majority of the psychiatrists reported that Mr Sonter’s principal difficulties were with respect to initiation of activity on a background of pre-existent significant psychiatric difficulties and personality disorder. Moreover, whilst Dr Montanari seems to express some concerns at Mr Sonter’s signing of “settlement instructions”, Mr Sonter himself appears to only take issue with the Short Minutes of Order, since he states “my legal representative then spoke to the other party and they wrote out an agreement for me to sign. The agreement was read to me and I was told to sign the agreement at the bottom and so I signed it.” It is certainly clear that Mr Sonter signed the Short Minutes of Order.
Mr Sonter also confirmed that the Arbitrator spoke with him to confirm that he was happy with the settlement to which he responded in the affirmative.
In summary, there is nothing in the whole of the evidence before me to suggest that Mr Sonter’s claim was resolved in haste, nor does the medical evidence support any suggestion that Mr Sonter’s cognitive impairments were such that he was unable to understand or comprehend the nature of the proceedings he had embarked upon, nor their resolution. It is noted that the proceedings had had a long history having apparently been initially commenced in the Commission in 2004.
The report of Dr Montanari dated 22 June 2006 fails to satisfy the evidentiary requirements set out in Rule 70 of the Rules, which states as follows:
“70. When informing itself on any matter, the Commission is to bear in mind the following principles:
(a) Evidence should be logical and probative,
(b) Evidence should be relevant to the facts in issue and the issues in dispute,
(c) Evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) Unqualified opinions are unacceptable.”
In my view Dr Montanari’s opinion is based on speculation and unsubstantiated assumptions insofar as it expresses the view that “it was unwise for [Mr Sonter] to be expected to sign a contract without more time …”. Similarly, there is no evidence to suggest that Mr Sonter was “… unable to give informed consent in a situation.”
Although not strictly relevant to the issues raised on appeal by Mr Sonter, it seems to me appropriate to note at this point that there were clearly some difficulties with the claim, leaving aside the medical evidence. Librix had raised the issue that Mr Sonter’s employment was not a substantial contributing factor to his injury. This was a real issue in light of Mr Sonter’s statement to the police dated 10 July 2002 as follows:
“About 5:00pm 10/07/2002, the Victim picked up the Offender … the Victim has driven the Offender to his home address and parked in the street out the front of the Offender’s house. The Offender and Victim have then sat in the vehicle for about 20 minutes, talking about the problems in their relationship. Their conversation has become heated … the Offender has then alighted from the vehicle and slammed the door shut, at the same time as the Victim has alighted from the vehicle. The Victim has thrown his set of car keys at the Victim’s vehicle … the Offender ran and picked up the Victim’s keys and went to the front door, where he was met by the Witness. The Offender and Witness had a conversation before the Offender went inside the house. The Victim and Witness then engaged in a verbal argument. About 30 to 45 seconds later, the Offender has emerged from the house … The Offender has then struck the Victim …”
It was on the basis of this statement that QBE denied liability. That statement is somewhat inconsistent with the statement made on Mr Sonter’s claim form that “I drove Andrew Sonter to his house in a company van, he got out of the van and kicked the van. I got out, he came around the van and struck me with his fist in the side of the head.” In his statement dated 22 July 2003 Mr Sonter claimed that his son slammed the door of the van and kicked the passenger door, that Mr Sonter threw the keys of his van towards his car but after that “I remember nothing else, apparently Andrew punched me”.
In addition, the evidence as to any wage loss was complicated by the structure of the company and indeed conflicting medical evidence as to Mr Sonter’s capacity for work.
In other words, it seems to me that there were very good reasons for Mr Sonter to endeavour to resolve his claim.
THE POWERS OF THE COMMISSION ON APPEAL
Section 352(1) provides that:
“A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.”
Section 352(5) provides that:
“An appeal under this section is to be by way of review of the decision appealed against.”
An appeal from an Arbitrator to a Presidential member is not an appeal in the strict sense as the Commission can receive further evidence. 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.
As the Commission determined in Ross v Zurich Workers Compensation Insurance [2002] NSWWCCPD 7,
“… The review is by way of rehearing where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by some legal, factual or discretionary error.”
Deputy President Fleming in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6 went further noting that an appeal from a decision of an Arbitrator is a ‘review’ where error of law, fact or discretion must be demonstrated.
Acting Deputy President Snell took a slightly different view in Electrolux Home Products Pty Limited v Richey & Anor [2006] NSWWCCPD 242 noting that:
“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 a Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
ADP Snell went on to note the established principles governing an appeal against an exercise of discretion as set out in Hause v R (1936) 55 CLR 499, noting that “intervention will be justified where a Judge at first instance has acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistaken the facts, or not taken into account some material consideration.”
In my view, it is necessary for an Appellant to demonstrate some error by the Arbitrator in line with the principles enunciated in the various authorities to which I have referred in the preceding paragraphs.
In the present case, Mr Sonter has failed to demonstrate any error by the Arbitrator. It is clear from the Arbitrator’s notes that he was cognizant of the nature of Mr Sonter’s injury noting that “care is required to ensure that he is given adequate time to provide instructions and understand what is occurring.” The medical evidence does not support Mr Sonter’s assertions that he was unable to assess “the full ramifications of the agreement.”
In any event, as His Honour Judge Neilson of the former Compensation Court said in Anderson v Charles Sturt University (2002) 25 NSWCCR 407 at 418:
“Parties can ask the court to enter up an award in accordance with their agreement. The court, provided jurisdiction exists can enter up that award. However, even though formed in the terms of a Court award, it is still in effect an agreement between the parties.”
Mr Sonter is in effect asking the Commission to review an agreement between the parties. Although framed as a “determination” of the Commission, it is nonetheless an agreement between the parties, and I have no jurisdiction to interfere with that agreement in the absence of any evidence to suggest that it was entered into under duress or other legitimate explanation.
As to the circumstances of the settlement, Librix makes the following pertinent submissions:
“h At all times during the substantive proceedings the Appellant was
represented by [solicitors] and at the Teleconference on 9 March 2006 the Appellant was represented by Counsel. The Appellant was also represented by Counsel at the conciliation/arbitration on 23 March 2006 which was adjourned (part heard to 4 May 2006) at which time the Appellant was again represented by Counsel.
· The settlement reached on 4 May 2006 was negotiated in good faith and on
instructions provided by the Appellant to his representative.
· In the Appellant’s submissions … he says that he had agreed to and was
prepared to accept an offer of settlement negotiated on his behalf by his legal representative (Counsel) in accordance with the Appellant’s instructions. Further, the Appellant says the agreement was read to him and he signed the agreement.
· The Respondent submits the Appellant reached the agreement as to
settlement with the Respondent in good faith and with the benefit of legal representation at all times and was therefore not disadvantaged in his negotiations with the Respondent at any time.
· At no time during the negotiations did the Appellant inform the Respondent
or its representatives that he required more time to consider the effect of the agreement reached.
· Further, the Appellant says the written agreement was read to him and at no
time did he inform the Respondent or its representatives that he did not understand the contents and effect of the agreement that had been explained to him by his legal representative.”
In summary, it is clear that Mr Sonter was represented by both his solicitor and Counsel at all stages of the proceedings. He concedes he reached an agreement to which he consented. He informed the Arbitrator that he consented to the agreement, and the evidence suggests that he was afforded ample time and opportunity to consider his options.
If Mr Sonter is dissatisfied with his legal representation, that is an issue more appropriately dealt with in another forum.
The parties resolved their dispute on terms set out in handwritten Short Minutes of Order which were adopted by the Arbitrator in his Certificate of Determination. It was open to both parties to resolve the claim on whatever basis they deemed appropriate. As His Honour Judge Burke in the former Compensation Court said in Almario v Carrington Constructions Pty Limited [1996] 13 NSWCCR 739:
“A worker can be, and almost invariably is, bound by the acts of his lawyers acting within their ostensible authority … similarly, a worker can be, and almost invariably is, bound by his own acts particularly those done on the advice of his lawyers.”
CONCLUSION
Mr Sonter has failed to demonstrate any error by the Arbitrator that would justify any interference on review. The Arbitrator’s determination is merely a reflection of an agreement between the parties which was entered into, on the face of it, in good faith and without any apparent disadvantage to Mr Sonter.
The medical evidence is insufficient to conclude that Mr Sonter’s cognitive impairments were such that he was unable to adequately comprehend the nature of the agreement between the parties.
DECISION
The decision of the Arbitrator dated 5 May 2006 is confirmed.
COSTS
No order as to costs of the appeal.
Deborah Moore
Acting Deputy President
11 October 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
4
0