StateCover Mutual Ltd v Cameron
[2014] NSWWCCPD 49
•4 August 2014
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| Status: Notice of Appeal to the Court of Appeal filed on 30 October 2014 | |||
| CITATION: | StateCover Mutual Ltd v Cameron [2014] NSWWCCPD 49 | ||
| APPELLANT: | StateCover Mutual Ltd | ||
| FIRST RESPONDENT: | Rebecca Cameron | ||
| SECOND RESPONDENT: | AAI Ltd t/as GIO | ||
| EMPLOYER: | Greater Taree City Council | ||
| FILE NUMBER: | A1-559/13 | ||
| ARBITRATOR: | Mr B Batchelor | ||
| DATE OF ARBITRATOR’S DECISION: | 16 April 2014 | ||
| DATE OF APPEAL DECISION: | 4 August 2014 | ||
| SUBJECT MATTER OF DECISION: | Claim for lump sum death benefit; disease contracted by a gradual process; melanoma; whether Arbitrator erred in relying on hearsay evidence; Commission not bound by the rules of evidence; Pt 15 r 15.2 of the Workers Compensation Commission Rules 2011; whether employment a substantial contributing factor to the contraction of the disease; interpretation of special insurance provisions relating to occupational diseases; ss 4(b)(i), 15(1)(b) and 18(1) of the Workers Compensation Act 1987; relevance of s 151AB of Workers Compensation Act 1987 in a claim for workers’ compensation benefits | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | David Allen Legal | |
| First Respondent: Second Respondent: | Carroll & O’Dea Lawyers Thompson Cooper Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s determination of 16 April 2014 is confirmed. 2. The appellant, StateCover Mutual Ltd, is to pay the respondents’ costs of the appeal, as agreed or assessed. | ||
INTRODUCTION
This appeal concerns a claim for a lump sum death benefit under s 25 of the Workers Compensation Act 1987 (the 1987 Act). The basis of the claim is that the deceased worker died from skin cancer, a disease found to have been contracted in the course of his employment and to which his employment was a substantial contributing factor due to exposure to sunlight over several years of work outdoors with the relevant employer.
BACKGROUND
The applicant before the Arbitrator, Rebecca Cameron, who is the first respondent on appeal, is the eldest daughter of Alan Steere (the deceased) who died on 19 July 2011 from metastatic melanoma. She has claimed the lump sum death benefit as the deceased’s legal personal representative.
Greater Taree City Council (the Council) (and its predecessor, Manning Shire Council), employed the deceased between 6 May 1974 and 25 February 2011 (though he stopped working on 20 June 2008). Over that period, the deceased held the following positions with the Council:
(a) from 1974 to 1984 he worked as a crane driver on the bridge crew, working on bridge repairs and also curbing and guttering;
(b) from 1984 to 1986 he worked as the yardman/storeman at the Council depot;
(c) from 1986 to 1991 he worked as a senior storekeeper;
(d) from 1991 to 1999 he worked as the supervisor of central supply services, and
(e) from 1999 until he stopped work in 2008 he worked as a purchasing officer.
From 1983 until 2011, the Council had three insurers:
(a) from 31 December 1983 to 31 December 1986 – AAI Ltd t/as GIO (the second respondent on appeal) (GIO);
(b) from 1 July 1987 to 31 December 2001 – GIO General Ltd, and
(c) from 31 December 2001 to 31 December 2014 – StateCover Mutual Ltd (StateCover) (the appellant).
The gap in insurance between 1 January 1987 and 1 July 1987 is of no consequence. Though GIO General Ltd participated in the arbitration, it has not been joined to the appeal and the parties have not suggested that it should be.
Consistent with StateCover Mutual Ltd v Smith [2012] NSWCA 27, the insurers, save for GIO General Ltd, have been joined as separate parties under Pt 11 r 1(4)(b) of the Workers Compensation Commission Rules 2011 (the 2011 Rules). Though they were not separate parties before the Arbitrator, they were separately represented and acted as if they were separate parties.
Ms Cameron’s case was that her father’s duties with the Council between 1974 and 1984 and, to a lesser extent, between 1984 and 1986, exposed him to sunlight and that that exposure was a substantial contributing factor to the contraction by him of the disease of melanoma, which was first diagnosed on his left cheek in September 2003. The deceased underwent various operations for his condition, but the melanoma metastasised to the brain in July 2008 and, after more surgery in 2008 and 2009, he died from the melanoma on 19 July 2011.
The Application to Resolve a Dispute (the Application) alleged a date of injury of 19 July 2011, that is, the date of death. It alleged the cause of death to be “due to excessive exposure to sunlight” during the whole period of the deceased’s employment with the Council. At the arbitration, the period of employment relied on as being causally related to the development of the melanoma was from 1974 to 1986, it being accepted that he worked indoors from 1986 until he stopped work in 2008.
The claim was based on the disease provisions in s 4(b)(i) of the 1987 Act. At the time applicable to this claim, that provision provided that an injury includes “a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor”.
The issues in dispute before the Arbitrator were:
(a) did the deceased suffer an injury arising out of or in the course of his employment with the Council;
(b) in respect of any injury suffered after 12 January 1997 (the date on which s 9A commenced operation requiring that employment be a substantial contributing factor to any injury), was the deceased’s employment with the Council a substantial contributing factor to any injury suffered by him;
(c) was any injury suffered by the deceased a disease which is of such a nature as to be contracted by a gradual process under s 15 of the 1987 Act;
(d) for the purposes of s 15, on what date was any injury suffered by the deceased deemed to have happened, and
(e) which of the three insurers was liable to indemnify the Council for any compensation payable to Ms Cameron.
After referring to the extensive lay and expert evidence dealing with the deceased’s exposure to sunlight, the Arbitrator concluded that the deceased suffered a disease injury in the form of metastatic melanoma, which he contracted in the course of his employment with the Council and to which his employment was a substantial contributing factor. He also found that, as the disease was of such a nature to be contracted by a gradual process, s 15 applied and the deemed date of injury was the date of death, 19 July 2011 (s 15(1)(a)(i)).
Applying s 18 of the 1987 Act, the Arbitrator held that the liability of the employer (the Council) was taken to have arisen immediately before the deceased ceased to be employed by the employer. Therefore, StateCover was liable under its policy in respect of the compensation for which the Council was liable under s 15.
The Commission issued a Certificate of Determination on 16 April 2014 in the following terms:
“1. The deceased Alan Wayne Steere suffered a disease injury in the form of metastatic melanoma contracted by him in the course of his employment with the respondent which was a substantial contributing factor to that injury.
2. The deceased died from that injury on 19 July 2011.
3. Pursuant to section 15(1)(a)(i) of the Workers Compensation Act 1987 the injury is deemed to have happened on 19 July 2011.
4. Pursuant to sections 15(1)(b), 18(1) and 25(1) of the Workers Compensation Act 1987 the respondent in the interests of StateCover Mutual Limited is to pay the applicant as the legal personal representative of Alan Wayne Steere the sum of $465,100.
5. There will be awards in favour of the respondent in the interests of AAI Limited ABN 480052978071 trading as GIO, on risk from 31 December 1983 to 30 December 1986 and GIO General Limited on risk from 1 July 1987 to 31 December 2001.
6. The respondent in the interests of StateCover Mutual Ltd is to pay the applicant's costs as agreed or assessed. I certify the matter as complex and allow 25 per cent costs uplift to the applicant and the respondent in the interests of all insurers.”
StateCover has appealed. For the reasons explained below, the appeal is unsuccessful.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) relying on hearsay evidence (hearsay evidence);
(b) finding that the deceased’s employment was a substantial contributing factor to the injury (substantial contributing factor), and
(c) failing to find that GIO was the insurer liable for the deceased’s injury (the relevant insurer).
HEARSAY EVIDENCE
Submissions
Counsel for StateCover, Mr Flett, who did not appear at the arbitration, highlighted the Arbitrator’s reference (at [18]) to an “(unauthored) commentary on the deceased’s working life” that “must have been prepared by one of his children and confirmed that the deceased experienced no significant exposure to sunlight/ultra-violet radiation prior to his employment with [the Council]”. He then referred to the fact that, at [60]–[66], the Arbitrator gave weight to the evidence from the deceased’s former wife, Lesley Murray, and the applicant, Ms Cameron, as to the deceased’s exposure to sunlight between 1974 and 1986, which evidence was hearsay.
Mr Flett submitted that the Commission is bound to “operate according to relevant evidence and to afford procedural fairness to the parties”. He said the Commission is subject to s 354 of the 1998 Act and Pt 15 r 15.2 of the 2011 Rules, noting that McColl JA held (at [128]) in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 42 (Edmonds) that that rule “broadly reflects fundamental principles of the common law concerning the admissibility of evidence”.
Mr Flett contended that hearsay evidence is procedurally unfair because the party against whom the evidence is tendered cannot rationally question the hearsay witness. That is because he or she has no personal knowledge of the facts in question. He said that the Arbitrator not only failed to deal with this issue, but compounded the procedural unfairness by admitting the hearsay evidence in circumstances where there was no contrary evidence.
The result was that the Arbitrator effectively found hearsay evidence to be more credible. Mr Flett contended that the hearsay evidence could not be transformed into non-hearsay evidence because of the absence of contrary evidence. In addition, the Arbitrator did not consider that there was no contrary evidence in reply to Ms Cameron’s hearsay evidence because that evidence was admitted late.
The Arbitrator further compounded the procedural unfairness (at [71]) by relying, in part, on hearsay evidence to find that the facts on which Professor McCarthy, Fellow of the Australian College of Surgeons, qualified for StateCover, based his report, which was favourable to StateCover’s position, were incorrect.
Discussion and findings
Mr Flett’s submissions are untenable and are rejected.
Before considering Mr Flett’s submissions in detail, I make the following general observation. The Commission is not bound by the rules of evidence (s 354(2) of the 1998 Act). In considering a similar provision in the Administrative Appeals Tribunal Act 1975 (Cth), Brennan J observed in Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; 36 FLR 482:
“As the New South Wales Law Reform Commission has pointed out in its Report on the Rule against Hearsay, hearsay ‘has a wide scale of reliability’ (1979, LRC 29, p 35), and there is no reason why logically probative hearsay should not be given credence. However, the logical weakness of hearsay evidence may make it too insubstantial, in some cases, to persuade the Tribunal of the truth of serious allegations.”
The statement by McColl JA in Edmonds, upon which Mr Flett relies, did not suggest that Pt 15 r 15.2 re-introduced the rules of evidence to proceedings in the Commission. Her Honour’s statement was immediately followed by the following, at [128]:
“Indeed, in Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSWWCCPD 26 (at [24]) Deputy President Fleming said:
‘Where the rules of evidence do not apply, the conduct of proceedings will be a matter to be determined according to principles of fairness, taking into account the nature of the proceedings, the legislative requirements and the demands of the instant case. The Commission may have regard to evidence that would not be admissible in a court in accordance with the rules of evidence. Fairness must guide the weight to be given to this evidence.’”
Referring to the reasoning in Edmonds, which dealt with the admissibility of a medical report, Basten JA (Allsop P and McColl JA agreeing) observed in Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 (Sutton), at [82]:
“There is no warrant, however, in the statute or the general law relating to procedural fairness, to import into the legally mandated procedures of the Commission, limitations on the material which can be considered, derived from the rules of evidence.”
After noting that evidence before the Commission must be “logical and probative” and that “unqualified opinions are unacceptable” (Pt 15 r 15.2), McColl JA cautioned, at [59] in Sutton:
“It is nevertheless necessary to be alert to the fact that ‘the rules of evidence, excluded by statute, [should not be allowed] to ‘creep back through a domestic procedural rule’: Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (at [17]) per French CJ.”
Mr Flett’s submissions are, in effect, an attempt to re-introduce the rules of evidence that have been expressly excluded by statute. That is not permissible. It follows that the Arbitrator was permitted to have regard to hearsay evidence. However, the probative value of such evidence will depend, as always, on the circumstances of each case.
Dealing specifically with the evidence that Mr Flett now seeks to challenge, the first point to note is that the evidence was admitted without objection. As the Commission has held in numerous decisions, parties are bound by the conduct of their case at the arbitration (University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483). Mr Flett has advanced no reason why StateCover should be permitted to object, on appeal, to evidence that was not objected to at the arbitration. Had a successful objection been taken at the arbitration, Ms Cameron may have been able to call additional evidence. It is therefore not permissible for the objection to be taken, for the first time, on appeal.
Second, the relevance of the unauthored document is unclear. Though the Arbitrator referred to it at [18], when summarising Ms Cameron’s submissions, he made no further reference to it and it does not seem to have played any role in his determination. The Arbitrator based his decision on the extensive evidence in the several other documents discussed below. Therefore, the unauthored document is largely irrelevant.
Third, apart from the unauthored document, Mr Flett has not properly identified the hearsay evidence that allegedly gave rise to error by the Arbitrator. The Arbitrator summarised the evidence from Ms Murray and Ms Cameron from [62]–[66]:
“[62] Lesley Murray supplied two statements, one dated 10 December 2011 (page 19 of the Application) and a second dated 20 September 2013 (page 1 of the late documents received 13 March 2014). In the first statement Ms Murray said that she could verify that whilst at work the deceased (particularly during summer) worked in the sun with no sun-screen, hat or shirt. This was common practice for council workers and the job at the time involved long hours of sun exposure throughout the year when working on bridge repairs and curb and guttering. She said that no sun-safe clothing or hats were provided.
[63] Whilst I appreciate that evidence is hearsay, Ms Murray was married to the deceased ‘for 12 years between 6th November 1971 and 26th November 1985’ [sic], the period which covered almost the whole time between 1974 and 1986 when the applicant [sic, deceased] was engaged in outside work with the bridge crew (until 1984) and as a yardman (until 1986). Ms Murray would have been well aware of the clothing that the applicant [sic, deceased] wore (or did not wear) whilst at work, and in all probability washed this clothing. I accept her evidence as to the degree of sun exposure of her then husband during his employment with the respondent, and also her comment that it was common practice for council workers to work in the sun with no sunscreen, hat or shirt.
[64] In her second statement Ms Murray says that she met the deceased when he was 16 years old and still attending school, but working Friday and Saturday nights at a 24 hour service station. That meant that he slept throughout the days following those shifts. When the deceased left school at age 16 he worked night shifts during the week as well as some weekends until he was 18 years old. Ms Murray said that very little time was spent at the beach at this period of their life together, as he spent a lot of time in his father’s garage trying to keep his old Holden on the road. Ms Murray goes on to say in her second statement that after she and the deceased married in 1971 when he was 19 years old, he was unable to work at that time due to a back injury and again there was little time spent outdoors due to the need of the deceased to wear a heavy metal brace to enable him to move around. Ms Murray then goes on to deal with the deceased's subsequent employment with the respondent in 1974, and gives some direct evidence in that statement as follows:
‘It was not unusual to see [the deceased] and his fellow workers out working on the road gang without hat or shirt on a hot day.’
Ms Murray concludes her statement with the following:
‘I feel that most of [the deceased’s] unprotected exposure to the sun happened in work hours, over the 10 year period working outdoors.’
[65] The applicant [Ms Cameron] supplied a statement dated 1 December 2011 (page 18 of the Application) in which she confirms that her late father was ‘fairly bald’, and refers to the photographs earlier herein referred to. She says:
‘As can be seen he was bald on top but once he became aware of melanomas and from 2003 he always wore a hat and sunscreen when outside.’
From this can be inferred that the deceased was not as diligent prior to this time in wearing a hat and sunscreen.
[66] Ms Cameron does refer to the 12 year period of the deceased working outside with no shirt or hat, labouring and bridge carpentering. This is clearly hearsay and less weight should be placed on it. However, in the circumstances I do not think the evidence can be completely discounted, especially when considered with that of her mother and the co-workers.”
The Arbitrator acknowledged that parts of this evidence were hearsay. However, in assessing the weight to attach to Ms Murray’s evidence, the Arbitrator had regard to the fact that she was married to the deceased from 1971 until 1985 (I note the main period of exposure to sunlight at work was between 1974 and 1986). As the Arbitrator noted, Ms Murray would therefore have been well aware of the clothing that the deceased wore or, more importantly, did not wear. In those circumstances, Ms Murray’s evidence was logical and probative, and it was open to the Arbitrator to accept her evidence as to the deceased’s work practices and the level of sunlight to which he would have been exposed.
The evidence in Ms Murray’s second statement was, in the main, not hearsay. It was direct evidence, based on her observations, of the deceased’s activities from when he was 16. Certainly the statement that it was “not unusual to see” the deceased and his work colleagues on the road gang without a hat or shirt on a hot day was not hearsay. It was evidence the Arbitrator was entitled to take into account in assessing the level of sunlight to which the deceased had been exposed for several years after he started work with the Council in 1974.
Ms Murray’s statement that she felt that most of the deceased’s unprotected exposure to the sun occurred in work hours, over the 10 year period of work outdoors with the Council, was an opinion based on her direct observations and the knowledge gained from having lived with the deceased since they married in 1971 (when the deceased was 19) and having been close to him for about three years before that. This evidence was logical and probative, relevant to the facts in issue and was not based on speculation or unsubstantiated assumptions. It was evidence that the Arbitrator was entitled to consider and did consider.
Ms Cameron’s statement that the deceased was “fairly bald” was (obviously) based on her observations, which were supported by photographs in evidence, and was not hearsay. It seems reasonable to conclude that Ms Cameron’s statement that, from 2003, the deceased always wore a hat and used sunscreen when outside was also based on her observations. However, this statement was of limited relevance to the overall assessment of the claim and the Arbitrator did not place any particular weight on it.
Ms Cameron’s evidence that deceased worked outside for 12 years with no shirt or hat, and was “constantly outside” was clearly hearsay, noting that Ms Cameron was not born until 1984, and that the 12-year period to which she referred was the period between 1974 and 1986. The Arbitrator acknowledged that that part of the evidence was hearsay but said he did not think the evidence could be completely discounted, “especially when considered with that of her mother [Ms Murray] and the co-workers” ([66]). Thus, the Arbitrator did not accept that evidence at face value, but considered it in light of the other evidence tendered. The weight the Arbitrator attached to this evidence from Ms Cameron is discussed further at [44] below.
The Arbitrator referred extensively to the evidence from the deceased’s co-workers, Gregory Sadler, Mervin Emerton, and John Connell, at [67]–[69]:
“[67] Gregory Sadler in his statement of 9 March 2012 confirms that he started with the respondent on 19 September 1978, at which time the deceased was already working in a bridge crew as a crane operator. He says that at that time there were no hats, shirts or sunscreen, and that the deceased was operating a crane for probably maybe two hours a day at a maximum. Otherwise he was outside with the bridge crew. Mr Sadler was unsure about whether the crane had a window in the roof or at the back, but he did say there was certainly no air-conditioning in the crane and it was extremely hot inside the cabin.
[68] Mr Emerton also gave a statement on 9 March 2012. He confirms that, when he joined the respondent in September 1977 the deceased was already working with the bridge crew as a crane operator. Mr Emerton worked with that crew for about six years (that is[,] until about 1983). Mr Emerton says that the crew use[d] to wear hard hats, that is[,] hats with no brim or rim when operating the crane, otherwise no headwear was worn. He says of the deceased:
‘Nonetheless I do recollect that Alan would often wear the hard hat when he was operating the crane, even if the boss was not around.
Otherwise[,] he worked in the sun like us with no hat or sunscreen and often no shirt.
I do remember that he certainly took his shirt off like everyone else.’
[69] Mr Connell says in his statement that he joined the [Council] in 1982 and gives evidence about the crane operated by the deceased. He says in respect to exposure to the sun:
‘Further of course I confirm that when I started and for many years thereafter there were no hats or other forms of sun protection by way of clothing, sunscreen or anything.
I do not think that came in into about 2004.’ (sic)”
This was an accurate summary of the evidence from the co-workers. I would add that Mr Connell also said, “we were also allowed to wear shorts often with no shirts if it was hot until about 15 or 20 years ago”.
After referring to the lay evidence, the Arbitrator concluded, at [70]:
“Having regard to the foregoing evidence I accept that the deceased, particularly during the period of time from 1974 until 1984 when he was working as a crane operator with the bridge crew, spent a large amount of his time working outdoors in the sun with no hat, shirt or sunscreen protection. I also accept that he spent no more than two hours each day on average within the cabin of the crane, and that that cabin had a glass window in the roof to enable the operator to look up and out.”
It is apparent that the Arbitrator did not base this conclusion, either wholly, or even mainly, on the hearsay parts of the evidence from Ms Cameron and Ms Murray. He based it on the clear, unchallenged, evidence from witnesses who worked with the deceased. Each gave a consistent account that the deceased was exposed to sunlight for the overwhelming majority of his working hours and that, during the relevant period, there were no hats and, often, no shirts worn, and no sunscreen used. It follows that, even without the hearsay evidence from Ms Cameron and Ms Murray, the Arbitrator’s conclusion was open to him, on any fair assessment of the evidence overall, and disclosed no error.
Mr Flett’s submission, that hearsay evidence is procedurally unfair, has been made without any regard to the evidence from the co-workers and without regard to the Arbitrator’s reasons. The evidence from the co-workers was not only not hearsay it was not challenged, either in cross-examination or with contrary evidence. In these circumstances, it was open to the Arbitrator to note, as he did at [61], that the Council tendered no evidence to contradict the evidence of the level of sunlight to which the deceased was exposed between 1974 and 1986. There was no procedural unfairness in the Arbitrator’s approach.
I reject Mr Flett’s (apparent) suggestion that the lay witnesses could not have been “rationally questioned” because they had no personal knowledge of the facts in question. The above summary of the lay evidence demonstrates that most of the evidence was based on the witnesses’ direct observations. Mr Flett’s submission has simply ignored the evidence. Moreover, it is always open to question a witness about the basis of his or her knowledge of the facts asserted, with the aim of demonstrating that the evidence is unreliable and should be given little or no weight. No application was made for leave to question any of the witnesses in the present case.
The submission that the Arbitrator “failed to deal with the issue” did not properly identify the “issue” with which the Arbitrator failed to deal. At the arbitration, counsel for StateCover, Mr Odling, made only one reference to hearsay evidence. Referring to Ms Cameron’s evidence, that for 12 years the deceased worked outside with no shirt or hat and was “constantly outside labouring”, Mr Odling said that that evidence was “entirely hearsay” (T24.28), but added, “[y]ou’re entitled to take it into account but it’d be [m]y submission you would not attach any weight to it”.
There are two things to note about Mr Odling’s submission. First, he conceded that the Arbitrator was entitled to take Ms Cameron’s evidence into account. This properly made concession makes this ground of appeal all the more untenable. Second, the Arbitrator did not refer to, or rely on, Ms Cameron’s evidence that the deceased was “constantly outside labouring” and he did not make that finding. He found (at [70]) that the deceased spent “a large amount of his time working outdoors in the sun with no hat, shirt or sunscreen” and that he spent no more than two hours each day, on average, in the cabin of the crane. This finding was consistent with the evidence from Messrs Sadler, Emerton and Connell and involved an implied (but clear) rejection of Ms Cameron’s evidence that the deceased was “constantly outside labouring. This approach and findings disclosed no error.
The suggestion that, by admitting the hearsay evidence in circumstances where there was no contrary evidence, the Arbitrator has “compounded the procedural unfairness” has overlooked the non-hearsay evidence I have referred to above and ignored the Arbitrator’s findings. The evidence on which the Arbitrator based his ultimate finding with regard to the level of sunlight to which the deceased was exposed between 1974 and 1986, was, in the main, the direct evidence from Ms Murray and from Messrs Sadler, Emerton and Connell. As noted above, that evidence was unchallenged. To the extent that the Arbitrator relied on hearsay evidence from Ms Murray, as explained above, that evidence was relevant, logical, and probative and, as the Commission is not bound by the rules of evidence, he was entitled to rely on it.
The submission that the Arbitrator did not consider that there was no evidence in reply to Ms Cameron’s hearsay evidence, because that evidence was admitted late, was based on the false assumption that Ms Cameron’s evidence was in fact admitted late. Ms Cameron’s (unsigned) statement was attached to the original Application, which was filed in the Commission on 14 December 2012 and served shortly after that date. The statement admitted late was merely a signed copy of the original statement attached to the Application. That is probably why Mr Odling did not object to it and made no submission along the lines now being argued on appeal. Mr Flett’s submission was surprising, to say the least.
The last complaint under this heading is that the Arbitrator further compounded the procedural unfairness by relying, in part, on hearsay evidence to find that the history on which Professor McCarthy relied, and on which he based his opinion rejecting the claim, was not accurate.
Professor McCarthy’s history included the following assumptions:
(a) that, for the whole period between 1974 and 1984, the deceased held the position of yardman/storeman;
(b) that the crane the deceased operated was “essentially enclosed”, and
(c) that it was likely that the deceased “sometimes left the driver’s cabin to assist with other work when the crane was not required”.
The Arbitrator interpreted this history to mean that Professor McCarthy understood that the deceased was “mainly employed inside his crane as a driver, and only sometimes left the cabin to assist with other work” and that between 1974 and 1984 the deceased had been employed as a yardman/storeman ([72]). The Arbitrator noted a further error in Professor McCarthy’s history, namely, the assumption that the deceased was an indoor worker between 1984 and 2011. In fact, between 1984 and 1986 the deceased worked as a yardman/storeman and was exposed to sunlight, though perhaps to a lesser extent than had been the case during the 10 years up to 1984.
Based on the Arbitrator’s findings set out at [70] (reproduced at [39] above), which were based on the whole of the lay evidence, especially the evidence of Messrs Sadler, Emerton and Connell, it was open to the Arbitrator to conclude that Professor McCarthy’s history was not accurate. Mr Flett has based his submission on the false assumption that, in making his findings, the Arbitrator used unreliable, speculative, hearsay evidence. He did not. The Arbitrator’s findings were based on an assessment of the whole of the lay evidence, noting that the Council called no evidence. That approach was open and disclosed no error.
SUBSTANTIAL CONTRIBUTING FACTOR
Submissions
Mr Flett submitted that the Arbitrator erred in “not taking a realistic view of the expert evidence as a whole”. He said that the expert evidence was that “it was not possible to say that there was no relationship between the deceased’s occupational solar exposure and his malignant melanoma”. The experts did not give positive evidence that there was a relationship between the deceased’s occupational solar exposure and his malignant melanoma, much less positive evidence that the deceased’s occupational solar exposure was a real and substantial cause of his melanoma.
Discussion and findings
I do not accept Mr Flett’s submissions.
The expert evidence consisted of evidence from Professor McCarthy, Professor Peter Hersey, the deceased’s treating specialist, and Dr Susanne Freeman, an occupational dermatologist qualified by Ms Cameron’s solicitors.
Professor McCarthy did not accept that the deceased’s employment with the Council was a substantial contributing factor to the development of the melanoma. The Arbitrator rejected this opinion because it was based on a wrong history as to the nature of the deceased’s duties and the extent of his exposure to sunlight between 1974 and 1986. Apart from the challenge to the reliance on hearsay evidence, which I have dealt with above, I do not understand the Arbitrator’s decision to reject Professor McCarthy’s evidence to be challenged on any other basis. For the reasons explained above, the Arbitrator’s decision to reject Professor McCarthy’s opinion on whether the deceased’s employment was a substantial contributing factor to the contraction of the disease was sound and disclosed no error.
The Arbitrator (correctly) noted (at [77]) that Professor McCarthy’s evidence emphasised exposure to sunlight around noon, as opposed to early morning and late afternoon exposure, and the age at which the exposure occurs, with the bulk of the damage to the skin being caused by sunlight before the person reaches the age of 25, as important factors in the relationship between sunlight and melanoma.
Consistent with Professor McCarthy’s evidence on this point, and with the Arbitrator’s earlier findings (at [70]), the Arbitrator said that it was “quite apparent that the deceased (and his co-workers) would have been exposed to sunlight in the course of their employment throughout the working day” ([77]). Thus, he would have been exposed to sunlight at and around noon. The Arbitrator accepted Ms Murray’s evidence that the deceased had little exposure to sunlight from the age of 16, when she met and started going out with the deceased, until 21, when he started work for the Council.
Thereafter, for at least four years, until the age of 25, the Arbitrator observed that the deceased “experienced significant exposure to sunlight” ([77]). This summary of the evidence, and the finding based on it, was correct and provided a further (valid) reason for not accepting Professor McCarthy’s conclusion that the deceased’s employment was not a substantial contributing factor to the development of the melanoma.
For the same reasons, the Arbitrator rejected Professor McCarthy’s statements that a substantial amount of the deceased’s exposure during the years 1974 to 1984 would have been on weekends, while at work he was at least partially protected by the cabin in which he worked. The Arbitrator added that there was little evidence of what the deceased did on the weekends or holidays, apart from coaching a hockey team when he wore a hat, though when that occurred was unclear.
The Arbitrator accurately noted Professor Hersey’s evidence that it would be difficult to attribute the development of the melanoma on the deceased’s cheek to his outside work with the Council. The Arbitrator quoted (at [81]) the following passage from Professor Hersey’s report:
“The epidemiological evidence that we have suggests the main risk for development of melanoma is sun exposure in early childhood or the teenage years. There may be some contribution to sunlight exposure in adulthood but it is believed that this is relatively minor compared to the exposure prior to adulthood. The best that could be decided is that it may have been a minor contribution to [the deceased’s] development of melanoma on the left cheek but it would be almost impossible to provide an accurate estimate of just what contribution this would be[.] [M]ore likely 1-2% overall rather than a major aetiological factor.”
The Arbitrator correctly noted that there was no evidence as to what sunlight exposure the deceased experienced during early childhood, that is, prior to the age of 16. According to Ms Murray, whose evidence the Arbitrator accepted, the deceased experienced little exposure to sunlight in his late teenage years – from 16 to 21.
Dealing with Dr Freeman’s evidence, the Arbitrator (at [75]) recorded that, like Professor McCarthy, Dr Freeman referred to recent studies showing that there is a close association between intermittent, leisure based, sun exposure and malignant melanoma, and less of an association between regular, occupationally based, sun exposure and malignant melanoma. Nevertheless, with reference to a study on the topic, Dr Freeman said, “occupational solar exposure cannot be totally ruled out as outdoor workers, farmers and veterinarians have been shown to be at an increased risk”.
The Arbitrator also noted that, in summary, Dr Freeman said that there was a great deal of difficulty in completely separating the effects of occupational and recreational solar ultraviolet light exposure. Dr Freeman added:
“In an individual case such as that of [the deceased], I believe one cannot state categorically that his occupational sun exposure was not associated with the development of his malignant melanoma on his cheek.” (emphasis included in original) (The Arbitrator accurately summarised this passage at [75].)
Mr Flett’s submission was that Dr Freeman’s evidence “simply confirm[ed] she was unable to disprove the null hypothesis – that there was no relationship between the deceased’s solar exposure during work and his malignant melanoma”. It followed, so Mr Flett argued, that Dr Freeman also found that there was “a” relationship, falling short of solar exposure during work hours being a substantial contributing factor. He added that the “gravamen” of the expert evidence was in the negative. The expert evidence was, Mr Flett submitted, that it was not possible to say that there was no relationship between the deceased’s occupational solar exposure and his malignant melanoma.
This submission is based on a selective reading of the evidence and has overlooked the last sentence in Dr Freeman’s report, where, immediately following the passage quoted at [62] above, she said:
“Therefore I would state that on the balance of probabilities [the deceased’s] outdoor occupation employed by [the Council] from 1972 to 2011 would have been a substantial contributing factor to the melanoma which ultimately caused his death.”
After referring to the expert evidence (but not the quote in the preceding paragraph), the Arbitrator observed, correctly, (at [83]) that the three medical experts did not deny the possibility of a causal connection between the deceased’s exposure to sunlight in the course of his employment with the Council and the development of his melanoma. He concluded, at [83]:
“In my view, having regard to the whole of the medical and lay evidence, I am persuaded that the deceased’s employment with the [Council] over the period 1984 [sic] – 1986 was a contributing factor to the development of the disease from which he suffered, originating with the melanoma in his cheek.”
The Arbitrator’s reasons overall make it clear that the reference in this passage to 1984 should be read as 1974. With this correction, the Arbitrator’s conclusion was open on the evidence and disclosed no error.
The Arbitrator then considered whether the deceased’s employment was a substantial contributing factor to the injury. Dealing with the terms of s 9A(2), but acknowledging that that provision is not an exclusive list, the Arbitrator said, at [84]:
“(a) the time and place of the injury; this occurred in the case of the deceased over the period 1974 – 1984, and thereafter to a lesser extent until 1986;
(b) the nature of the work performed and the particular tasks of that work: the deceased was a member of a bridge repair gang, and a crane driver with that gang over the period 1974 – 1984 and working almost exclusively outdoors. For the period 1984 – 1986 he was employed as a yardman/storeman, still working outdoors but to a lesser extent than formerly;
(c) the duration of the employment: the period of employment relied upon is 1974 – 1986;
(d) the probability that the injury or a similar injury would have happened anyway, at or about the same time or at the same stage of the workers life, if he or she had not been at work or had not worked in that employment: this has been addressed above when consideration was given to the lay evidence in conjunction with the views of the three medical experts;
(e) the worker’s state of health before the injury and the existence of any hereditary risks: there is no evidence to suggest that the deceased's state of health before he joined the respondent, was material to the development of the melanoma, first diagnosed in 2003, or that he had any hereditary risks which would lead to that development, and
(f) the worker’s life style and his or her activities outside the work place: these have been addressed in the evidence of Ms Murray and the applicant. For the period from at least 16 years old until 21 years old the deceased apparently led largely an indoor life both at home and during his leisure time. At another time (not determined) he coached a ladies hockey team.”
The Arbitrator concluded, also at [84]:
“Having regard to the whole of the evidence, my view is that the deceased’s employment with the [Council] was more than a contributing factor to the development of the disease, and a substantial contributing factor to that development[.]”
The Arbitrator’s specific findings under s 9A(2) have not been challenged and each was open on, and consistent with, the evidence.
I add, for completeness, that the assessment of whether employment is a substantial contributing factor to an injury is not purely a medical question (Awder Pty Ltd t/as Peninsular Nursing Home v Kernick [2006] NSWWCCPD 222 at [31]). As with the test for determining whether a legal incapacity exists (in the context of the Limitation Act 1969), it is for the judge (or, in this case, the arbitrator) to decide, on the basis of the totality of all the evidence, both lay and expert, whether the relevant test has been satisfied (Guthrie v Spence [2009] NSWCA 369 at [195]).
Moreover, a finding that employment is a substantial contributing factor to the injury within s 9A is a finding of fact (Department of Education and Training v Sinclair [2005] NSWCA 465 at [45]). And, as observed by the plurality in Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503, at [48(5)]:
“Although the strength of the linkage between the employment and injury is the question in issue, the determination is an evaluative one, leaving a broad area for the personal judgment of the trial judge: Hevi Lift at [105]-[106] 299 per McColl JA (Mason P and Beazley JA agreeing).”
In these circumstances, this ground of appeal fails. The Arbitrator not only took a realistic view of the evidence, his conclusion was consistent with it and disclosed no error.
THE RELEVANT INSURER
The legislation
Section 15(1) of the 1987 Act provides, so far as is relevant:
“(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process:
(a) the injury shall, for the purposes of this Act, be deemed to have happened:
(i) at the time of the worker’s death or incapacity, or
(ii)if death or incapacity has not resulted from the injury-at the time the worker makes a claim for compensation with respect to the injury, and
(b)compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.”
Section 18(1) of the 1987 Act provides:
“Special insurance provisions relating to occupational diseases
(1) If an employer has become liable under section 15 (1) (b) or 16 (1) (b) to pay compensation to a worker in respect of an injury and the time at which the injury is deemed to have happened is after the worker ceased to be employed by the employer, the liability of the employer is, despite sections 15 and 16, taken to have arisen immediately before the worker ceased to be employed by the employer. This subsection operates only for the purpose of determining whether any insurer or which of 2 or more insurers is liable under a policy of insurance in respect of that compensation.”
Section 151AB of the 1987 Act provides:
“151AB Special insurance provisions relating to occupational diseases
(1) If an employer is liable independently of this Act for damages for an occupational disease contracted by a worker, the following provisions have effect for the purposes of any policy of insurance obtained by the employer:
(a)the liability is taken to have arisen when the worker was last employed by the employer in employment to the nature of which the disease was due, subject to paragraph (b),
(b)if the worker was employed by the employer in employment to the nature of which the disease was due both before and after the relevant commencement, the liability is taken to have arisen both when the worker was last employed by the employer in employment to the nature of which the disease was due before the relevant commencement and when the worker was last employed by the employer in employment to the nature of which the disease was due after the relevant commencement.
(2) In a case in which subsection (1) (b) applies, 2 insurers will be liable under policies of insurance to indemnify the employer (or pay damages to the worker) and the following provisions apply with respect to those insurers (referred to in this subsection as the ‘responsible insurers’):
(a)Of the responsible insurers, the one that is the insurer in respect of the employer’s liability that arose after the relevant commencement is to be the insurer ‘primarily responsible’ for the claim.
(b)The responsible insurers can however agree as to which of them is to be primarily responsible for the claim or the court can order that one of them is to be the insurer primarily responsible, and any such agreement or order overrides paragraph (a).
(c)The insurer who is primarily responsible for the claim is to act for both the responsible insurers in respect of any claim for the damages and has sole liability for the claim (that is, it is to indemnify the employer for the full amount of the damages or is to pay the full amount of damages to the worker, without any right to a contribution from any other insurer, except as provided by paragraph (d)).
(d)The insurer who is primarily responsible is entitled to recover from the other responsible insurer half of the amount paid as damages to the worker, half of the amount paid in respect of the worker’s legal costs and half of such reasonable amount as the insurer primarily responsible may have incurred in respect of its own legal expenses in the matter.
(3) If 2 or more employers are jointly or severally liable for damages referred to in this section, the provisions of this section apply separately to each employer.
(4) This section does not affect the amount of damages recoverable by a worker.
(5) This section applies to any liability arising before or after the commencement of this Act and to any policy of insurance issued before or after that commencement.
(6) In sections 151AB and 151AC:
‘occupational disease’ means a disease of such a nature as to be contracted by a gradual process, and includes:
(a)a dust disease as defined by the Workers’ Compensation (Dust Diseases) Act 1942 , and
(b) total or partial loss of sight which is of gradual onset, and
(c)the condition known as ‘boilermaker’s deafness’ or any deafness of similar origin.
‘relevant commencement’ means:
(a)except as provided by paragraph (b)-4 pm on 30 June 1987, or
(b)in the case of an employer who was insured under a policy of insurance that was assigned as referred to in clause 10 of Part 15 of Schedule 6 to this Act-the commencement of the period of insurance of the policy so assigned.”
Submissions
Mr Flett submitted that s 18 fixes liability of the insurer by reference to the insurer on risk at the time of the work that was a substantial contributing factor to the worker’s injury. He relied on CIC Workers’ Compensation (NSW) Ltd v Alcan Australia Ltd (1994) 35 NSWLR 169 (CIC), where Gleeson CJ (Mahony and Meagher JJA agreeing) said, dealing with s 151AB, at 176D:
“The idea of a disease being due to employment of a certain nature directs attention, not to the contract of employment, but to the work being performed and the exposure to risk involved in that work. The reasoning in Blatchford, and the cases that have followed it, applies with equal force to s 151AB.”
Mr Flett contended that the above interpretation of “in employment” should be favoured over the decision of Grate Lace Pty Ltd t/as Grate Lace Bricklaying Co v Theiss Watkins White (Constructions) Pty Ltd (1995) 12 NSWCCR 365 (Grate Lace), which, it was submitted, has been cited as authority for the proposition that “employment” (in s 15(1)(b)) refers to the contract of employment.
Further, CIC directs attention to the construction of the phrase “employment to the nature of which the disease was due” in the context of the Act as a whole. It gives consistency to the words in the 1987 Act and is “neutral in respect of injured workers who are the intended beneficiaries of the legislation, and avoids injustice, hardship and inconvenience to employers that have not contributed to the employee’s injuries”.
If the construction of “in employment” is the work that was a substantial contributing factor to the worker’s injury, it should follow, so it was argued, that the phrase “ceased to be employed by the employer” in s 18 fixes liability of the insurer by reference to the insurer on risk at the time of the ceasing of the work that was a substantial contributing factor to the worker’s injury.
Mr Flett contended that the relevant wording of ss 18 and 151AB is:
s 18: “whether any insurer or which of two or more insurers is liable under a policy of insurance …”
s 151AB: “identify from among a number of insurers under policies of insurance obtained by the employer …”
Flowing from this, he argued that the work being done by ss 18 and 151AB is similar in that the sections determine an issue between two insurers, not between an employer and an employee or between an employer and an insurer or between an employee and an insurer.
Discussion and findings
The Arbitrator’s decision is consistent with the relevant legislation and with binding Court of Appeal authority. It discloses no error. The interpretation urged by Mr Flett is fundamentally wrong.
Consistent with GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187 (GIO v GIO), the Arbitrator found that the deemed date of injury was 19 July 2011, the date of death. This finding has not been challenged. He correctly noted that, under s 15(1)(b), compensation is “payable by the employer who last employed the worker in employment to the nature of which the disease was due” (emphasis added).
The Arbitrator then considered s 18(1), which, unlike s 151AB, applies to claims for workers compensation involving occupational diseases and, more importantly, applies in the present matter. Applying s 18(1), he determined, at [88]:
“The date of injury of 19 July 2011 is after the deceased ceased to be employed by the respondent on 25 February 2011. Therefore the liability of the respondent is taken to have arisen immediately before that date, when StateCover insured the respondent.”
This finding was correct. The effect of the legislation in the present case is as follows:
(a) the Council, as the deceased’s employer, has become liable under s 15(1)(b) to pay compensation to a worker (the deceased) in respect of an injury (the contraction of a disease in the course of his employment (s 4(b)(i));
(b) the time at which the injury is deemed to have happened (19 July 2011) is after the worker ceased to be employed by the Council (25 February 2011) and, in these circumstances,
(c) the “liability of the employer [the Council] is … taken to have arisen immediately before the worker ceased to be employed by the employer [the Council]” (emphasis added).
Section 18(1) adds that it operates only for the purpose of determining whether any insurer or which of two or more insurers is liable under a policy of insurance in respect of that compensation.
It follows that, if the liability of the employer (in this case, the Council) arises immediately before the deceased ceased to be employed by it (in this case, on 25 February 2011), the insurer on risk at that time (in this case, StateCover) is liable to indemnify the employer. The result, which flows from the unambiguous language of the relevant legislation, could not be clearer.
This is sufficient to dispose of this ground of appeal. However, as the Arbitrator gave additional reasons for rejecting StateCover’s arguments, and as those arguments have essentially been repeated on appeal, it is appropriate that I deal with them.
The Arbitrator rejected the argument that CIC requires a finding that, for the purposes of s 18, “the employer” is “the [Council] in the interests of GIO old Act” ([89]) and that the deceased ceased to be employed by the “employer” when he ceased working as a yardman/storeman (and ceased exposure to sunlight) in 1986. This is substantially the same argument presented on appeal, save that, on appeal the argument is that “employment” means the employment that exposed the deceased to sunlight up to 1986.
The Arbitrator rejected reliance on CIC because:
(a) section 151AB applies to the liability of an employer independently of the 1987 Act for damages for an occupational disease contracted by a worker;
(b) to import into s 18 the meaning of “employer” (employment) found in CIC is not correct, as s 151AB was enacted to introduce special insurance provisions relating to occupational diseases for common law claims (for damages) by workers against employers independently of the 1987 Act;
(c) to import into s 18 the meaning of “employer” (employment) found in CIC would be inconsistent with Grate Lace where Sheller JA (Gleeson CJ agreeing) held that, for the purpose of s 15(1)(b), compensation is payable by the employer in whose employment the worker was last employed, subject only to the condition read into that provision by Dixon J in Smith v Mann (1932) 47 CLR 426, that it be employment to the nature of which the disease was due, and
(d) as explained by Kirby P (as his Honour then was) in Grate Lace, the object of s 15 is to, among other things, remove the highly disputatious debate about “true” causation and fix the last relevant employer with primary liability (subject to limited contribution rights in s 15(2)).
I agree with this analysis, but make the following additional observations.
Mr Flett’s approach makes the same mistake made by the trial judge in Grate Lace (Manser J), namely, it seeks to return to the assignment of liability according to a notion of true causation. That is not how ss 15 and 18 work and the authorities make that crystal clear.
Moreover, Mr Flett’s argument is exactly the same argument that was rejected in GIO v GIO, a case decided 10 months after CIC and which is substantially on all fours with the current matter. In that case, the worker was exposed to sunlight in the course of his employment over 19 years. As a result, he developed a melanoma on his right cheek. Doctors removed the melanoma in 1983. This treatment resulted in a short period of incapacity. The worker subsequently developed a number of metastases of the melanoma. In 1993, he died from a brain tumour, which was a metastatic melanoma that had resulted from his original melanoma in 1983.
His widow claimed compensation under the 1987 Act and succeeded, the trial judge found that the deemed date of injury was the date of death in 1993. The insurer on risk in 1993 (GIO Workers Compensation (NSW) Ltd) appealed. It argued that the deemed date of injury was in 1983, when GIO General Ltd was on risk. That was because, so it was argued, the operation on the melanoma in 1983 had caused a period of incapacity and, as the worker’s death had resulted from the 1983 melanoma, the injury was deemed to have happened in 1983. In addition, in an argument identical to StateCover’s argument in the present case, it argued that it was not liable because there was no evidence that exposure to sunlight since 1983 (when it was the insurer on risk) had played any role in the worker’s death.
In rejecting these arguments, Sheller JA (Clarke JA agreeing) held (at 196G) that “for the purpose of the widow’s claim, the worker’s injury is deemed to have happened at the time of his death”. Significantly, for the purposes of StateCover’s arguments in the present appeal, his Honour said at 196B:
“In the case of the worker’s claim, the injury, being a disease of such a nature as to be contracted by a gradual process, is deemed to have happened at the time of incapacity. I have no doubt that is a reference to the incapacity for which compensation is claimed. Section 15(1)(b) provides that ‘compensation is payable by the employer in whose employment the worker is or who last employed the worker’. That means the employer in whose employment the worker is at the time the injury is deemed to have happened, or who last employed the worker before the injury is deemed to have happened; Fisher v Hebburn [1961] HCA 16; (1961) 105 CLR 177 at 196 and 199.” (emphasis added)
That employer, in the present case, is the Council.
Section 151AB was not argued in GIO v GIO. Given that s 151AB appears in Pt 5 of the 1987 Act, which deals with “Common Law Remedies”, and only applies if an employer is liable independently of the 1987 Act for damages for an occupational disease, it is hardly surprising that it was not raised. As in the present case, it had no application. As Tobias JA (Campbell and Bell JJA agreeing) pointed out (at [60]) in J C Equipment Hire Pty Ltd v The Registrar of the Workers Compensation Commission of NSW [2008] NSWCA 43; 70 NSWLR 704, s 149 of the 1987 Act emphasises the dichotomy between damages on the one hand and statutory compensation on the other. The current claim for the lump sum death benefit under s 25 of the 1987 Act is a claim for statutory compensation. It follows that s 151AB does not apply.
This statement is consistent with the observation by Beazley JA (as her Honour then was) in Dokoza v Stadkite Pty Ltd (1997) 42 NSWLR 544, at 547C, that:
“the structure of the [the 1987 Act] generally, and Pt 5 in particular, is such that the [1987 Act] maintains a distinction between compensation payable – that is the statutory compensation payable under the [1987 Act] which has no common law source and a person’s common law entitlement to damages. Notwithstanding that as between a worker and the worker’s employer, those damages are now regulated, they do not thereby become ‘compensation’ under the Act.”
Mr Flett has referred to no authority that has applied CIC to s 18. After an extensive search, I have been unable to find any. In addition to GIO v GIO, there are other authorities on s 18 that do not support the construction contended for by StateCover.
In considering the meaning of the phrase “immediately before the worker ceased to be employed by the employer” Campbell J held in Lanham v North Shore Gas Co Ltd [1976] WCR 132 that the purpose of the phrase (which then appeared in s 18(6A) of the Workers Compensation Act 1926 (the 1926 Act)) was “to make the date of the injury fall within the period of employment, and for this purpose it mattered not what sort of employment”. The employment to which the subsection referred was not limited to employment which was causally related to the injury (Smith v Mann (1932) 47 CLR 426), nor to employment of a nature to which the disease is due.
Even if the Commission were not bound by clear authority on the point, namely, GIO v GIO, the basic principles of statutory interpretation lead to the same result reached by the Arbitrator. As explained by the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 at [47]; 239 CLR 27:
“the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”
As the plurality in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 observed at [78] (footnote omitted):
“the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”
As noted above, s 151AB applies where an employer is liable “independently of [the 1987 Act] for damages for an occupational disease” (emphasis added). It does not apply to claims for workers compensation benefits. This point alone is sufficient to dispose of the appeal.
Moreover, contrary to Mr Flett’s submission, ss 18 and 151AB are expressed in completely different terms. Under s 151AB, if an employer is liable independently of the 1987 Act for damages for an occupational disease contracted by a worker then, “for the purposes of any policy of insurance obtained by the employer”, “the liability is taken to have arisen when the worker was last employed by the employer in employment to the nature of which the disease was due”. The words quoted by Mr Flett at [80] above do not appear in s 151AB, as it applies in this case.
Under s 18, if an employer has become liable under s 15(1)(b) or s 16(1)(b) to pay “compensation” to a worker “in respect of an injury and the time at which the injury is deemed to have happened is after the worker ceased to be employed by the employer”, the “liability of the employer is … taken to have arisen immediately before the worker ceased to be employed by the employer”, but only for the purpose of determining whether any insurer or which of two or more insurers is liable under a policy of insurance in respect of the compensation.
There is simply no valid comparison between the wording of the two provisions and no valid reason to apply the reasoning in CIC to s 18.
Mr Flett’s interpretation of s 18(1), namely, that it fixes liability of the insurer by reference to the insurer on risk at the time of the ceasing of the work that was a substantial contributing factor to the worker’s injury, involves reading words into the section that are not there. The task required is the construction of the words the legislature has enacted (Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9, per French CJ, Crennan and Bell JJ at [39]). Section 18(1) makes it clear that, in the circumstances of the present case, the liability of “the employer” is taken to have arisen immediately before the worker ceased to be employed by the employer. It says nothing about the insurer on risk at the time of the ceasing of the work that was a substantial contributing factor to the injury.
To the extent that one needs to consider the purpose or intention of s 18, that purpose does not support Mr Flett’s approach. As explained by Burke CCJ in Di Giovanni v Smorgon ARC Pty Ltd (1992) 8 NSWCCR 582 (Di Giovanni), s 18 is the lineal descendent of s 18(6A) of the 1926 Act, which was enacted to overcome the effects of State Mines Control Authority v GIO (NSW) (1964) 65 SR (NSW) 258. In that case, the worker became incapacitated by a relevant disease after leaving the employ of the Authority. The 1926 Act, like the 1987 Act, deemed the injury to have occurred at the time of the incapacity.
The insurer who indemnified the employer during the period the worker was employed was no longer on risk at the time of the incapacity and therefore not liable to indemnify the employer in respect of an “injury” occurring outside its period of cover. The insurer on risk at the time the injury was deemed to have occurred was liable only in respect of injuries to “workers”, that is, people employed by the Authority during the currency of the policy. The worker was not such an employee because his injury was deemed to have occurred after he ceased to be employed by the Authority.
As a result, the employer had no indemnity. To meet this situation, the 1926 Act was amended to add s 18(6A) to provide a notional date of injury as the last day of employment. Burke CCJ observed in Di Giovanni, and I agree, that the purpose of the amendment was to provide an indemnity to the employer in a situation where none existed under the then legislation.
That the purpose or intention of a legislative provision must be based on the words used in the provision concerned is not disputed (per French CJ and Hayne J in Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 87 ALJR 131 at [40]). The relevant words indicating the purpose or intention of s 18(1) are in the provision itself. The subsection “operates only for the purpose of determining whether any insurer or which of 2 or more insurers is liable under a policy of insurance in respect of that compensation”.
That purpose is achieved by the interpretation dictated by the plain words in the provision, which interpretation is consistent with the binding authorities of GIO v GIO and Grate Lace. It is not for a court to determine a “desirable outcome and give a construction to achieve that outcome” (Australian Building & Construction Commissioner v McConnell Dowell Constructors (Aust) Pty Ltd [2012] FCAFC 93; 203 FCR 345 at [50]).
There is nothing in the context of the legislation that alters the clear grammatical meaning of the words used. In these circumstances, as explained by Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297, at 305:
“if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust.”
As the words in s 18(1) are clear and unambiguous, and can be intelligibly applied to the subject matter, the provision must be given its ordinary and grammatical meaning.
I do not accept the submission that CIC directs attention to the construction of the phrase “employment to the nature of which the disease was due” in the context of the Act as a whole. CIC concerned the liability of an insurer in a claim for common law damages and focused exclusively on the construction of s 151AB, which, as I have explained above, is in completely different terms to s 18.
Last, though it is not relevant to my determination, Mr Flett’s submission that his interpretation is “neutral in respect of injured workers” is incorrect. If his interpretation were applied in the present matter Ms Cameron would, on the submissions made by GIO at the arbitration, recover no compensation. That is because the deemed date of injury would be a date in 1986. In that event, the 1926 Act would apply and that Act contained no provision for payment of death benefits to a claimant in Ms Cameron’s circumstances.
For the above reasons, this ground of appeal fails.
CONCLUSION
The Arbitrator did not err in the manner alleged on appeal and the appeal is unsuccessful.
DECISION
The Arbitrator’s determination of 16 April 2014 is confirmed.
COSTS
The appellant, StateCover Mutual Ltd, is to pay the respondents’ costs of the appeal, as agreed or assessed.
Bill Roche
Deputy President
4 August 2014
I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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