State Transit Authority of NSW v Ali

[2005] NSWWCCPD 23

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:State Transit Authority of NSW v Ali

[2005] NSWWCCPD 23

APPELLANT:  State Transit Authority of NSW

RESPONDENT:  Mohammed Ali

INSURER:State Transit Authority of NSW

FILE NUMBER:  WCC1121-2004

DATE OF ORIGINAL DECISION:  3 December 2003

DATE OF APPEAL DECISION:  14 April 2005

SUBJECT MATTER OF DECISION: Decision of Compensation Court Commissioner; definition of ‘injury’ in section 4 of the Workers Compensation Act 1987, alleged errors of fact and law and discretion.

PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President

HEARING:6 April 2005

REPRESENTATION:  Appellant:     Sparke Helmore Lawyers

Respondent:  Steve Masselos & Co. Solicitors

ORDERS MADE ON APPEAL:  The decision of Commissioner Hogg, dated 3 December 2003, is confirmed.

The State Transit Authority of NSW is to pay the costs of the appeal, as agreed or assessed.

The Appeal

1. Mohammed Ali worked for the State Transit Authority of NSW (‘State Transit’) as a bus driver from 1996 until October 2001.  In July 1996 he injured his back and left leg at work.  He claims that he further injured his back, left leg and right leg at work in a second incident, on 12 August 2001. 

1. There is considerable dispute between Mr Ali and State Transit as to what exactly occurred in this incident on 12 August 2001.  Video evidence of the incident was in evidence but it is ambiguous in some ways and was the subject of contradictory claims.  Mr Ali was driving a State Transit bus at the time of the incident.  He alleges that a male passenger attacked him and in the course of the incident he injured his back, further aggravating his left leg and causing him to suffer symptoms in his right leg.  Mr Ali has made a claim for weekly benefits compensation, lump sum permanent impairment compensation, pain and suffering and related medical expenses.  State Transit argues that Mr Ali did not suffer a compensable injury on 12 August 2001. 

1. Commissioner Hogg, of the Compensation Court of NSW, heard this dispute on 24 November 2003 and gave his decision, with written reasons, on 3 December 2003.  He found in favour of Mr Ali and awarded him compensation by way of weekly benefits, lump sums and related medical expenses. 

1. On 19 March 2003 State Transit filed an appeal against the Commissioner’s decision in the Compensation Court.  The Court closed on 31 December 2003 and the appeal was transferred to the Commission to be determined by a Presidential Member (section 7 of the Compensation Court Repeal Act 2002 and Clause 7 of the Compensation Court Repeal (Transitional) Regulation 2003). The appeal is by way of review of the Commissioner’s decision (section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)).

1. State Transit argues that Commissioner Hogg’s decision should be revoked and that an order should be made that it is not liable to pay Mr Ali compensation under the Workers Compensation Acts (the Workers Compensation Act 1987 (‘the 1987 Act’) and the 1998 Act).

1. Mr Ali submits that the decision of Commissioner Hogg is correct and should be confirmed.

1. Leave to appeal is granted.

1. The parties rely upon the evidence that was before the Commissioner and no new evidence is sought to be given on the appeal.

1. State Transit’s ‘grounds’ of appeal may be reduced to one significant issue, namely: Did the Arbitrator err in finding that on 12 August 2001, Mr Ali suffered an “injury arising out of or in the course of employment”, pursuant to section 4 of the 1987 Act?

Did the Arbitrator err in finding that, on 12 August 2001, Mr Ali suffered an “injury arising out of or in the course of employment” pursuant to section 4 of the 1987 Act? 

1. Commissioner Hogg sets out the facts of this matter in some detail and they are not repeated here in full.  In summary, Mr Ali was driving a State Transit bus on the afternoon of 12 August 2001 when an ‘incident’ occurred.  A male passenger boarded the bus, along with two female passengers whose relationship to the male passenger is not confirmed.  There was an altercation between Mr Ali and the male passenger, apparently over the payment of the fare.  In the course of this altercation a number of things happened, some of which are in dispute.  In general terms it is agreed that Mr Ali was physically assaulted by the male passenger, he resisted two attempts by the male passenger to grab the cash tray from the bus, he phoned for assistance during the fracas and he left the bus at one point to chase after his attacker who had jumped off the bus.  Mr Ali claims that in the course of this incident he aggravated his back injury and additionally injured his right leg.

1. Commissioner Hogg set out his reasons for decision is some detail (running to twenty one pages) and no attack has been made on the adequacy of his reasons.

1. State Transit make a number of attacks upon the Commissioner’s findings of fact.  Firstly, it alleges that the Commissioner was wrong to accept Mr Ali as a witness of truth, because he gave contradictory accounts of the incident to his employer, the Transport Appeals Board and the medical experts. 

1. Secondly, it alleges that given the unreliability of Mr Ali’s own evidence, the video evidence was ambiguous and insufficient to support the Commissioner’s finding that Mr Ali did in fact aggravate his pre-existing back condition.  State Transit argue that there was no evidence of what occurred when Mr Ali left the bus during the incident, and that the Commissioner should have drawn the inference that, ‘if’ an injury occurred to Mr Ali’s back, it was more likely than not that it occurred when he left the bus.  State Transit argue, further, that Mr Ali took himself outside the course of his employment when he left the bus to chase his attacker.  Thirdly, State Transit submit that the medical evidence cannot be read to support Mr Ali’s claimed injury because it was not based upon the correct history of the incident.  I will deal with these claims in turn.

1. At the hearing of the appeal State Transit raised an objection to Commissioner Hogg’s determination of ‘comparable weekly earnings’ for the purpose of the assessment of Mr Ali’s entitlement under section 40 of the Workers Compensation Act 1987. This is not a matter that was raised in the ‘Application for Leave to Appeal’ and consequently Mr Ali’s representative was not fully prepared to reply to it. At paragraph 63 of Commissioner Hogg’s decision he refers to his review of the “competing wages schedule and information on hourly rates” that was before him. He concluded “. . . that for all relevant time after 25 October 2001 comparable earnings should be determined at $925 per week”. I am not satisfied that this ground of appeal should be considered. It was raised only at the ‘eleventh hour’, it was not supported by any evidence as to what the allegedly correct figure should be, nor any application to file fresh evidence, and it was made without adequate submissions as to the nature of the Commissioner’s error.

Mr Ali’s Credit

1. The issue of whether Mr Ali was a truthful witness in his own cause was before the Commissioner and thoroughly addressed in his reasons. 

1. On 8 October 2001 State Transit charged Mr Ali with three breaches of the State Transit Code of Conduct, as follows:

   1.   “Breached State Transit Policy and Instruction by leaving your workplace under unsatisfactory circumstances.

   2.   It is alleged you made false and misleading statements regarding a Workers Compensation claim.

   3.   It is alleged that you deliberately provoked an altercation with a passenger, resulting in an injury.”

2. State Transit ultimately found these matters proven and dismissed Mr Ali from employment.  He appealed to the Transport Appeal Board.  The Board found the first charge not proven. 

1. In relation to the second and third charges the Board decided they were ‘proven’.  The Board found that Mr Ali had not been entirely truthful in his recounting of the incident.  It concluded that the video evidence did not show Mr Ali being hit by the cash tray nor did the attacker grab him by the throat.  The Board considered that Mr Ali’s actions in driving away without carrying the female passenger who had boarded with the attacker was provocative.  The Board found, as a matter of fact, that Mr Ali had not sustained an injury until he left the bus to chase his attacker.  The Board found that Mr Ali was an unreliable witness and did not give a truthful account of the incident to his employer, or to Dr Smith, who examined him at the employer’s request.

1. The review of findings based on credit must be approached with caution, giving due regard to the fact that the Commissioner has had the benefit of seeing and hearing the witness give evidence, and then of reflection on the evidence prior to coming to a decision (Abalos vAustralian Postal Commission (1990) 171 CLR 167). An appellate body must be alert to the advantage enjoyed by the Commissioner and to the nature of the proceedings. In Department of Education & Training v Jeffrey Sinclair [2004] NSW WCC PD 90, the President of the Commission relevantly said (at paragraph 158):

   “. . .  Understandably, the Department rejects that credit finding [by the Arbitrator], but a Presidential Member of this Commission, reviewing an Arbitrator’s decision on appeal, should upset such a finding only if there is other “incontrovertible” evidence indicative of error, not adequately dealt by the Arbitrator at first instance. Fox v Percy (2003) 77 ALJR 989, c.f. Abalos v Australian Postal Commission (1990) 171 CLR 167. (See also the useful discussion in the judgments of the High Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) & Ors (1999) 160 ALR 588, especially that of Kirby J at 508ff, and the decision of Deputy President Fleming in Mayne Health Group v Sandford [2002] NSW WCC PD6, pars 35-41)”.

1. Commissioner Hogg had the forensic advantage of hearing and observing Mr Ali give evidence as to these matters in cross-examination.  The video film of the incident was shown at the hearing and was the subject of extensive cross-examination.  Commissioner Hogg had the Transport Appeal Board’s decision before him and the relevant medical evidence.  He was entitled to come to his own view as to the veracity of Mr Ali’s evidence and the matters that could be concluded from viewing the video. 

1. Commissioner Hogg confronted the issue of the inconsistencies in Mr Ali’s evidence to the Transport Appeals Board and to him.  It is clear that he was not bound to accept the Board’s finding, that Mr Ali was an unreliable witness.  He found that Mr Ali “confessed his sins” in relation to his untruthful evidence before the Board. 

1. The acceptance or rejection of Mr Ali’s evidence was properly a matter for Commissioner Hogg to determine.  He did so in the knowledge that Mr Ali had previously been found to be unreliable.  The Commissioner has not erred in coming to his decision in relation to Mr Ali’s credit as a witness and his reasons are clear.  He found that Mr Ali had given a “highly consistent medical presentation after the events of 12 August” and that the video supported much of Mr Ali’s account of the incident, in particular that he did not provoke his attacker.

1. The Commissioner has not erred in finding Mr Ali to be a witness of truth and in finding his evidence to be probative as to facts relevant to injury.

If there was an injury, it occurred when Mr Ali left the bus.

1. State Transit argue the evidence does not support a finding that Mr Ali injured his back whilst he was actually on the bus during the incident on 12 August 2001.  The evidence in relation to what occurred is the videotape and Mr Ali’s own evidence.  There was medical evidence as to the alleged permanent impairment that arose from what occurred.

1. Commissioner Hogg gave extensive consideration to the Transport Appeal Board’s finding that Mr Ali could not have injured his back during the incident on the bus on 12 August 2001, and he rejected that finding.  Commissioner Hogg considered the fact that Mr Ali had previously suffered a back injury at work in 1999.  He accepted Mr Ali’s evidence of having ongoing back problems following the August 2001 incident including: difficulty sleeping, pain in the back, pain in the legs if he stood for ‘too long’ and changed mood.  He comments on the video, which shows Mr Ali stretching and holding his back when he returns to the bus after chasing his assailant.  Commissioner Hogg reviewed the medical evidence of Drs Smith, Singh, Giblin and  Endrey-Walder.  He found that Mr Ali had aggravated his back “in the offending incident and it will be remembered that the video discloses him ‘feeling’ his back whilst still in the bus immediately after the assault”.  Ultimately this was a temporary aggravation of his previous back injury, but Commissioner Hogg found it added to his injury, in that it caused Mr Ali symptoms in his right leg.  Mr Ali had not been compensated for permanent impairment of his right leg arising out of the compensable injury to his back in 1999.

1. Before Commissioner Hogg, State Transit argued that Mr Ali was guilty of ‘wilful and gross misconduct’ and had ‘abandoned his employment’ when he left the bus to chase his attacker.  The Commissioner considered a number of relevant authorities and distinguished Stojkovic v Telford Mangement Pty Limited (1998) 16 NSW CCR 165 from the facts of the matter before him.  He found that Mr Ali did not instigate the attack upon him.  He had responded in a reasonable manner to “apprehend the customer”, and then waited for security back up to arrive.  The claim that Mr Ali had abandoned his employment by leaving the bus to chase his attacker was soundly rejected. 

1. State Transit’s argument on appeal, that these findings should be overturned, is not sustainable.  It was for Commissioner Hogg to make relevant findings of fact on the basis of the evidence that was before him.  It cannot be argued that there was ‘no evidence’ upon which he could find that Mr Ali suffered an aggravation of his back injury and a fresh injury to his right leg as a result of the incident of 12 August 2001 (Austratlian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 at 356). There was evidence that was capable of supporting Commissioner Hogg’s findings, namely Mr Ali’s own evidence, the video recording, and the medical evidence of Drs Singh and Giblin.

1. It was also open to Commissioner Hogg to find that Mr Ali remained ‘in the course of his employment’ when he jumped off the bus to chase his assailant, and therefore if Mr Ali was injured it was a compensable injury. Having rejected the argument that Mr Ali had abandoned his employment when he left the bus, Commissioner Hogg clearly considered ‘the incident’ as a whole, from the time of the attack on the bus and including the assault, which occurred when Mr Ali left the bus. The Appellant has not articulated any error of law on the part of the Commissioner in making this finding, relying instead upon a challenge to the underlying findings of fact. As stated above, this challenge is not sustainable. I agree with Mr Ali’s submission on appeal, that the Commissioner applied the law, being the definition of ‘injury’ pursuant to section 4 of the Act 1987, to the facts as he found them. He did not err in doing so.

No medical evidence to support injury on the true facts.

1. State Transit argue that Commissioner Hogg’s decision is unsound because the medical evidence which he relied upon to support Mr Ali’s claims was based upon a history of the incident that was not supported by the facts.  Specifically, Mr Ali’s claims, later withdrawn, that he was hit in the face with the bus’s cash box and ‘grabbed’ so forcefully around his throat by the attacker that he was forced back into his seat during the incident on 12 August 2001.  The Commissioner found that he had been grabbed around the throat but not quite as aggressively as Mr Ali had claimed. 

1. Mr Ali admitted to Commissioner Hogg that he had previously lied about these matters.  However Commissioner Hogg was of the view that these facts “were ones which really bear no direct relevance to this case”.  Having found that Mr Ali was in the course of his employment at all times during the incident, and that he had not abandoned his employment when he left the bus to run after his attacker it was not necessary to distinguish whether the injury occurred on or off the bus.  Commisioner Hogg expressly accepted the opinion of Dr Giblin and rejected that of Dr Smith. 

1. State Transit argue that Dr Singh, upon whom Commissioner Hogg relied, was given an incorrect account of the incident.  Dr Singh is Mr Ali’s general practitioner.  He provided three reports, dated 21 February 2000, 2 November 2001 and 27 August 2003.  He has clearly known Mr Ali for a considerable time and treated him in relation to the earlier back injury in 1999.  In his report of 2 November 2001 he refers to Mr Ali’s account of the incident on 12 August 2001.  The history attributed to Mr Ali contains the inaccuracies referred to above.  However, in relation to the back injury, Dr Singh reports that: “Back spasm seen-lumbo-sacral area (he was sitting on a chair in a twisted manner)”. 

1. State Transit submitted that Dr Endrey-Walder was given no information about Mr Ali leaving the bus and having another altercation with the attacker.  Dr Endrey-Walder’s report of 19 July 2002 recounts this history:  “I believe that one of the passengers had become abusive, ‘and at first he grabbed my neck and then I pushed him and then he tried to grab my cash tray.  I got hold of the cash tray and he pulled and I pulled, and he just threw the cash tray away. I hurt my back twisting…’”. This is broadly consistent with the video recording of what occurred and of Commissioner Hogg’s findings.  It is evident that Dr Endrey-Walder accepts that Mr Ali could have aggravated his back injury from these events alone.  The fact that he may have also injured his back during a later altercation with his attacker does not diminish the effect of what actually occurred on the bus. 

1. Dr Giblin, Orthopaedic Surgeon, reported on his observation of Mr Ali’s back condition on 13 September 2001.  He had seen Mr Ali as a result of a referral from Dr Singh.  He reported again on 15 August 2002.  He does not recount a detailed history of the incident that caused the injury, simply referring to “. . .a subsequent and second assault at work on 12 August 2001”.  The account of symptoms given to Dr Giblin by Mr Ali was accepted by Commissioner Hogg as “consistent and believable. . . He had after the event of 12 August 2001 problems with his back- and his right leg particularly- which meant he was not fully fit to do his normal driving duties”.

1. In my view, Commissioner Hogg did not err in accepting as probative the medical evidence of Drs Singh, Endrey-Walder and Giblin.  The errors in the history of the incident given to these doctors by Mr Ali were not such that the whole, or critical aspects, of their opinions were tainted.  Their findings in relation to Mr Ali’s injury to his back and right leg is consistent with what Commissioner Hogg found to be the true account of the facts of the incident, supported by Mr Ali’s evidence and the video evidence.

Decision

1. The decision of the Commissioner, dated 3 December 2003, is confirmed.

Costs

1. State Transit has been unsuccessful on the appeal.  The appropriate order is that State Transit pay the costs of the appeal, as agreed or assessed.

Dr Gabriel Fleming

Deputy President  

14 April 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE