Taumata v Movers and Shakers Pty Ltd
[2005] NSWWCCPD 123
•31 October 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Taumata v Movers and Shakers Pty Ltd [2005] NSWWCCPD 123
APPELLANT: Michael Taumata
RESPONDENT: Movers and Shakers Pty Ltd
INSURER:Allianz Australia Workers’ Compensation (NSW) Ltd
FILE NUMBER: WCC 5538-04
DATE OF ARBITRATOR’S DECISION: 20 August 2004
DATE OF APPEAL DECISION: 31 October 2005
SUBJECT MATTER OF DECISION: Lack of procedural fairness, credibility of applicant and oral evidence.
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: White Barnes Solicitors
Respondent: Sparke Helmore Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 20 August 2004 is revoked and the matter is remitted to the Registrar for referral to a different arbitrator for determination of outstanding issues.
The Respondent, Movers and Shakers Pty Ltd, is to pay the Appellant, Mr Taumata’s costs in this appeal as agreed or assessed.
BACKGROUND TO THE APPEAL
On 15 September 2004, Michael (“Sonny”) Taumata sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 20 August 2004. Mr Taumata was born in New Zealand on 13 October 1945 and is aged 60. He migrated to Australia in 1982.
The Respondent to the Appeal is Movers and Shakers Pty Ltd, by whom Mr Taumata was employed as a removalist from December 1999. He was mainly involved in office relocations. Mr Taumata states that he suffered an injury on 17 July 2003 while lifting a heavy safe during the course of his work, resulting in a subsequent myocardial infarction (heart attack). On 18 July 2003, he notified his supervisor that he was feeling unwell and went home late morning. He then went to see his doctor and was later hospitalised. On 25 July 2003, Mr Taumata underwent triple coronary artery bypass surgery. Post operative complications later required further surgery.
On 18 September 2003, Mr Taumata lodged a claim for workers compensation. He claims weekly compensation from 17 July 2003 to date and continuing, together with medical, hospital or related expenses. Movers and Shakers deny liability. On 2 April 2004, Mr Taumata’s solicitors lodged an ‘Application to Resolve a Dispute’ with the Commission. Movers and Shakers’ ‘Reply’ was lodged on 23 April 2004. The Arbitrator held a teleconference with the parties on 8 July 2004 and, on 11 August 2004, conciliation having proved unsuccessful, he conducted an arbitration hearing. On 20 August 2004, the Arbitrator made the determination set out below.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 20 August 2004, records the Arbitrator’s orders as follows:
“1. Award for the Respondent pursuant to sections 36 and 60 of the 1987 Act.
2. Each party to pay their own costs.”
In his ‘Statement of Reasons for Decision’, the Arbitrator, while in no doubt that Mr Taumata suffered an acute myocardial infarction, was not satisfied that this occurred as a result of lifting a heavy steel safe at work. The Arbitrator did not find Mr Taumata’s evidence in relation to the safe to be credible and concluded that he did not receive an injury arising out of or in the course of his employment with Movers and Shakers.
ISSUES IN DISPUTE
The issue in dispute in the appeal is whether Mr Taumata received an injury arising out of or in the course of his employment with Movers and Shakers. Mr Taumata’s solicitors submit the Arbitrator denied Mr Taumata procedural fairness and failed to base his decision on logically probative evidence.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(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 Numbers 1 and 6, the documents that are before me, and the submission by Mr Taumata’s solicitors that the appeal can proceed to be determined on the basis of these documents, Movers and Shakers being silent on this issue, 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.
Neither party sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The Appeal was first lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), the amount of weekly compensation at issue exceeds $5,000, and comprises 100% of the amount claimed, the Arbitrator having made an award in favour of Movers and Shakers in the decision appealed against. Accordingly, I am satisfied that the section 352 threshold has been met, and I grant leave to appeal.
SUBMISSIONS
Mr Taumata’s solicitors submit that the Arbitrator denied Mr Taumata procedural fairness by refusing to allow oral evidence from both Mr Taumata and his colleague, Mr Ratima, who was also present at the time of the incident involving the lifting of the safe; alternatively, that the Arbitrator denied Mr Taumata procedural fairness by not using his inquisitorial powers to clarify perceived inconsistencies in the three statements made by Mr Taumata. In particular, his solicitors submit the Arbitrator acknowledged that Mr Taumata’s credibility was critical to the outcome but did not avail himself of the opportunity to test Mr Taumata’s credibility by way of oral evidence. Instead, the Arbitrator made assumptions, ignoring the weight of supporting evidence.
Mr Taumata’s solicitors submit that the Arbitrator gave little or no weight to the contemporaneous notes of Mr Taumata’s treating general practitioner, Dr Richard Ng, to the timing of Mr Taumata’s complaints about his health, and to the handwritten amendment to Mr Taumata’s statement of 2 December 2003. Further, the Arbitrator took “arbitral notice” of the effect of tilting a safe, as a result of which he had difficulty with Mr Taumata’s description of events. His solicitors submit the Arbitrator was not qualified to make such assumptions and since there were no statements contradicting Mr Taumata’s evidence, the Arbitrator should have accepted that evidence and found in his favour. The Arbitrator had no basis for making a finding adverse to Mr Taumata’s credibility.
Movers and Shakers note that Mr Taumata suffered from underlying atheroscelerotic coronary disease, and that his myocardial infarction could have occurred either as a result of the atheroscelerotic plaque rupturing because of the alleged work injury, or because of it rupturing spontaneously. They submit there was ample evidence from the statements of witnesses other than Mr Taumata, for the Arbitrator to conclude on the balance of probabilities that he was not satisfied that Mr Taumata suffered the injuries he alleged.
Movers and Shakers submit that even if Mr Taumata had given oral evidence, he still lacked corroboration of his description of the lifting incident from any other witnesses. Moreover, there is no mystique about the tilting of a safe. In any event, Mr Ratima’s evidence that he had no recollection of the particular lifting incident is more telling. They submit that Mr Taumata failed to establish the injury alleged and the Arbitrator’s decision was correct.
EVIDENCE
The documentary evidence before the Arbitrator is largely focused on the alleged lifting incident described by Mr Taumata and whether this gave rise to the myocardial infarction. Mr Taumata provided three statements dated 9 September 2003, 2 December 2003 and 6 May 2004. In his statement of 9 September 2003, made to an investigator with Milne & Associates Pty Ltd instructed by the insurer, Mr Taumata said he had been fit and well in the period leading up to Thursday17 July 2003. On that day, he, his sister and niece had lunch with his wife, who cooked curried sausages. He went to work from his wife’s house - despite having a close relationship, they live separately - arriving at his depot at Lidcombe at about 6.30pm. From there he and others drove to a Telstra depot at Tempe to collect about 30 cartoons and six “cigarette” safes which were to be delivered to a Telstra shop at Warringah Mall at Brookvale. These were loaded on to a four ton truck. Mr Taumata estimated that the heaviest of the cartons weighed about 50kgs. However, he estimated that the steel safes – about 1.8ms x 800mms x 700mms wide – weighed at least 200kgs. At the Tempe depot, these were loaded on to the truck using a pallet lifter owned by Telstra.
There was no pallet lifter available at Warringah Mall. The cartons and safes were unloaded from the truck on to the loading dock using the truck’s hydraulic lifter. They were then placed on “dollies” for wheeling to the Telstra shop. In the case of the safes, because of their weight, they were moved individually: two men tilted each safe backwards while a third man pushed a dolly underneath the safe so that it could be wheeled. However, each safe had to be tilted horizontally once again to get it through the low door exiting the dock en route to the shop. The first five safes were moved without incident. However, when it came to the sixth safe, there were only two men present at the loading dock, Mr Taumata and Mr Ratima, and Mr Taumata attempted to tilt the safe back on his own without the help of a second man, and asked Mr Ratima to push the dolly underneath.
Mr Taumata said that he found that as he tilted the safe back, he began to loose “control of the safe, and it went over the point of balance onto me. I started to strain to hold it up and I yelled out to Tom [Mr Ratima] to give me a hand” (paragraph 71, statement of 9 September 2003). Mr Ratima was no more than a metre or two away from him. Mr Taumata said:
“75.Tom came round straight away and he managed to right the safe, with my help as well. I would estimate that the safe came down to about 25 degree [sic]. Because of the angle, I was down on both knees and my upper body was tilted backwards, and I was holding on to it [the safe] as best I could. When Tom helped me, I was still initially on my knees, before I got up when Tom took some of the weight off me. I was on my knees for about twenty or thirty seconds or so.”
Mr Taumata said that when he got up, he left the safe and walked away. He felt short of breath but said nothing to anyone. He did not show that he was not well. He thought he “would be right”. Later, when he was driving home from the Lidcome depot not long after 11pm, “he was gasping and trying to belch”, thinking that if he belched, he would feel better. At home, he had difficulty sleeping. He said he did not feel any pain, just the need to belch, which did not happen despite his drinking coke and taking Enos (paragraph 81). Next morning, Friday 18 July 2003, he arrived at work at about 7.30am and did some light deliveries. However, he began to feel feverish and went to see Asi Tuimaseve, the Operations Manager, whom he told that he felt sick. At that stage, Mr Taumata thought this was caused by the curried sausages he had eaten the previous day. He went home, and phoned his wife to say that he was ill and wanted to sleep. She went to his home and persuaded him to let her drive him to see his doctor, Dr Richard Ng at Maroubra. Dr Ng saw him immediately, and rang for an ambulance, which took him to the Prince of Wales Hospital soon afterwards.
Mr Taumata said when Dr Ng came to visit him three days later, he told him about the lifting incident. Dr Ng “felt the strain that I had put myself through in trying to keep the safe from falling right back on to me could credibly have caused my heart problems” (paragraph 87).
Mr Taumata said he was not surprised when told that Mr Ratima knew nothing of the matter. Mr Ratima might not have noticed him being on his knees at the time of the lifting incident because Mr Ratima was pushing from behind him. He would also not have been aware of Mr Taumata being short of breath. “It is quite possible that Tom knew nothing and saw nothing, though I would believe that he heard me calling out for assistance” (paragraph 97).
In his second statement, dated 2 December 2003, prepared for his solicitors, Mr Taumata reiterated that the safes were considerably heavier than the 100kgs suggested by the “paper work”, and estimated them to be at least 200kgs. He said that (paragraph 5) while holding up the safe, he “felt a substantial amount of strain … and felt a sharp painful sensation in my chest. I was breathless afterwards”. That night, he “was quite ill and dry retching and the pains continued” (paragraph 8).
In his third statement of 6 May 2004, also prepared for his solicitors, Mr Taumata commented on the statements of the other witnesses that had been forwarded to him by his solicitors. In particular, he repeated his opinion that the safes were substantially heavier than 100kgs (suggested in a number of statements) and could weigh in excess of the 150kgs estimated by Mr Ratima. Mr Taumata said he did not report the shortness of breath he experienced at the time, because he believed “this was a condition which would pass”. He took pride in his physical strength and ability to do his job and it would be embarrassing for him to make such a comment and draw attention to his discomfort. On the morning of 18 July 2003, not having discussed his condition with a doctor, he “mistakenly felt this was due to indigestion”.
Mr Taumata’s solicitors also tendered a copy of a statement dated 21 August 2003 made by Wini Taumata, Mr Taumata’s wife, to an investigator with Milne & Associates, a copy of Milne & Associates’ reports to the insurer dated 15 September 2003 and 26 September 2003, and a report by Dr Ng to the insurer dated 21 August 2003. In its report, Milne & Associates stated that Steve Ellis from Telstra said the safes weigh 200kgs each; a representative of the manufacturer/distributor advised verbally that the safes weigh 210kgs each. Both Mrs Taumata and Milne & Associates refer to a note made by Mr Taumata in his diary for 17 July 2003, recording his shift as being from 6.30pm to 11.15pm and involving undertaking work for Telstra, as follows:
“Moving containers, 6 heavy cabinets on pallets. Moving 1 cabinet with Tom Ratima, taking off dolly, tilt over lost point of balance ended up cabinet trying to get it up. Yelled for Tom to give assistance (was a stupid move on my part) short of breath. Got home, developed chest pain at about 1.00am felt bloated and needed to belch badly. Woke every half hour walking around to try and belch. Drank soft drink, milk, water – not good – only small belches, went to work (next day).”
Dr Ng’s report dated 21 August 2003 included the following:
“Whether their employment is a substantial contributing factor to the injury?
Yes
Mr Taumata had an acute myocardial infarction on 18/7/03. It is most likely that from his history that excessive exertion on the previous day, provoked the heart attack. This excessive exertion was him having to support an extremely heavy safe which was being moved. This action was done as part of his job as a removalist.”
In a later report dated 20 December 2003, Dr Ng noted that Mr Taumata initially attributed the chest pain and tightness to his dinner of curried sausages on 17 July 2003. In answer to a question whether from Mr Taumata’s solicitors about whether physical exertion would trigger the onset of an acute myocardial infarction, Dr Ng said that his own experiences and reading:
“would make me say an emphatic Yes, that a sudden physical exertion as in the case of Mr Taumata, especially in an unfit person, can precipitate a myocardial infarction. Although Mr Taumata was a strong man and often lifted heavy objects, he did not exercise regularly.”
Mr Taumata’s solicitors also tendered a report dated 31 May 2004 from Mr Taumata’s treating cardiologist, Dr Gregory Cranney. In answer to a question from Mr Taumata’s solicitors, Dr Cranney made the following answer:
“Question 6 – Michael’s myocardial infarct was caused by a ruptured atheroscelerotic plaque which would have occurred at the time of him lifting a heavy safe at work. The strenuous exercise would have been the precipitating factor in this regard. For him to have a myocardial infarct however he has to have underlying atherosclerotic coronary disease which was demonstrated on coronary angiography. You will probably ask whether the plaque could have ruptured spontaneously. Indeed this may occur but clearly there is a relationship between this gentleman lifting the safe and the rupture with myocardial infarction on this occasion.”
Movers and Shakers tendered statements from a number of their employees who had some connection with the events in issue. Mr Ratima provided a statement dated 25 September 2003. He guessed the safes, which he described as “heavy”, weighed about 150kgs. He did not recall the incident as described by Mr Taumata, nor Mr Taumata calling for his help. However, he said:
“29. The scenario you have described sounds logical and possible, and certainly if Sonny had have asked me to help him I would have done so without thinking about it. I have often helped someone and losing balance with something does happen.
30. I did not notice that Sonny was short of breath. If he was hurt I would have noticed I am sure.
31. …
32. …
33. …
34. …
35. As I have outlined, I have no clear recollection of the events you have described to me, however, I have been involved in hundreds of moves, and I do this type of manual handling work day in and day out. We often handle large and heavy items and we are told to ask for assistance when doing so. I know there are times when large items have slipped and this happens without me taking much notice of it. It is all part of a day’s work.”
Attached to Mr Ratima’s statement was a handwritten note he prepared at the request of Mr Asi Tuisameve, the Operations Manager, about a week after the alleged incident occurred. The note states: “Accident occurring 17.7.03. Me, Paul R + Sonny worked together on Thursday night & there were no incidents reported or seen that night.”
Mr Tuimaseve provided a statement dated 3 September 2003. He recalled that on 18 July 2003 at about 11.30am, Mr Taumata:
41. …“came to me and reported he had indigestion. He said that he had eaten curried sausages the night before, cooked by his wife, and that this had upset his tummy a little. He said he thought he would go home.
42. Even though Sonny had an upset stomach, he had his hand on his chest in the area of his heart. He did not make a big deal of the issue really, just made the comment and said he was going. He did not look too healthy, and I say that because he had his hand on his chest. He did not indicate that he was in pain as such, and he did not seem as though he was trying to “belch”. His colour seemed normal as did his eyes, and he was walking upright.”
DISCUSSION AND FINDINGS
As stated above, the issue in dispute in this matter is whether Mr Taumata received an injury arising out of or in the course of his employment with Movers and Shakers. Essentially, the Arbitrator did not believe Mr Taumata’s account of what occurred:
“I have been provided with no explanation as to why the Applicant’s recollection was clear at the time of the giving his first and last Statements, but no detail is spelt out in December 2003.
Given that there is no direct denial of the Applicant’s story (possibly excepting paragraph 24 of Mr Ratima’s Statement), it might, were it not for the Applicant’s December Statement, have been possible for him to carry the onus in the face of other matters raised by the Respondent.
Ultimately however I have difficulty with the evidence of the Applicant himself. If he could be so clear in September 2003, and assert a clear recollection in May 2004, it is very difficult to understand how the December Statement takes the form that it does.
I can only conclude that the Applicant told Mr Tuimaseve and his Doctor about the curried sausages because he thought they were the only possible cause of his difficulty.
A rather alarming episode with a safe, allegedly sufficient to bring about an acute myocardial infarction, is not even put forward as an alternative possibility and this at a time when, stoicism aside, he had chest pains and was obviously in greater difficulty than would be brought on by an innocent meal of curried sausages.
It follows, on the balance of probabilities, that the Applicant did not believe the incident with the safe was responsible, because it did not occur.”
Thus, the Arbitrator decided that Mr Taumata did not receive an injury as defined in section 4 of the 1987 Act. The first issue raised by Mr Taumata’s solicitors is whether the Arbitrator, having recognised that Mr Taumata’s credibility was critical to the outcome, should have heard oral evidence from Mr Taumata and Mr Ratima and, by not doing so, denied Mr Taumata procedural fairness. It is clear from the transcript of the arbitration hearing (at page 2) that there had been some discussion during the preceding conciliation phase, prior to the recording of proceedings, as to the giving of oral evidence by Mr Taumata and Mr Ratima. Mr Ratima had been summonsed to attend the hearing, the summons having been issued at the request of Mr Taumata’s solicitors on 20 July 2004 after the teleconference. In their submissions, Mr Taumata’s solicitors state that, at the teleconference, the Arbitrator directed that Mr Ratima be in attendance to give evidence, although there is no record of such a direction on the Commission’s file.
Mr Taumata’s barrister raised the issue of oral evidence again at the beginning of the arbitration hearing and sought leave to call those witnesses. The Arbitrator refused leave because, in the case of Mr Taumata, whom Mr Taumata’s barrister sought leave to call “on the issue as to his capacity, his physical ability to perform work” (arbitration hearing transcript page 2), there had been no indication of this at the teleconference and to allow him to give evidence might “create the danger of denying procedural fairness to the respondent”. In the case of Mr Ratima, whom Mr Taumata’s barrister sought leave to call in order to clarify the short handwritten note attached to Mr Ratima’s statement dated 25 September 2003 (arbitration hearing transcript page 2), the Arbitrator took the view that it was unnecessary for him to give evidence given the later detailed written statement.
The requirements of procedural fairness will depend upon the nature of the decision under review (Kio v West (1985) 159 CLR 550). A fundamental requirement of procedural fairness is that a decision-maker must give a party whose interests may be adversely affected by a decision an opportunity to be heard. A denial of procedural fairness is an error of law going to jurisdiction (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11).
The Commission is bound by the common law rules of procedural fairness subject to any clear and express statutory modification. For example, section 354 of the 1998 Act states relevantly:
“(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.”
In Saverio Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1, Davies J, the President of the Administrative Appeals Tribunal, said of how the rules of evidence apply to the Administrative Appeals Tribunal:
“In informing itself on any matter in such manner as it thinks appropriate, the Tribunal endeavours to be fair to the parties … the requirement of a hearing and the provision of a right to appear and be represented carries with it an implication that, so far as is possible and consistent with the function of the Tribunal, a party should be given the opportunity of testing prejudicial evidentiary material tendered against him. It is generally appropriate that a party should have an opportunity to do more than give evidence to the contrary of the evidence adduced on behalf of the other party. He should be given an opportunity to test the evidence tendered against him provided that the testing of the evidence seems appropriate in the circumstances and does not conflict with the obligation laid upon the Tribunal to proceed with as little formality and technicality and with as much expedition as the matter before the Tribunal permits.”
Turning to other relevant provisions, Rule 66 of the Workers Compensation Commission Rules 2003 requires the naming of witnesses whom the parties propose to call to give oral evidence and the lodging and serving of witness statements by those witnesses, generally at the stage when an Application or Reply is lodged with the Commission. However, there is an exception where the Commission may allow a party to introduce oral evidence “for the avoidance of injustice”.
Rule 70 states:
“Principles Of Procedure
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.”
Rule 71 provides that the Commission is to take such measures as are reasonably practicable to “(c) ensure that the parties have the fullest opportunity practicable to have their case in the proceedings considered without compromising the objectives of the Commission”.
The Commission’s Practice Direction No 1, which, of course, is not a statutory measure, identifies factors that may be relevant to the decision by an arbitrator as to whether to determine a matter ‘on the papers’. One of the factors identified is “Whether there are questions as to the credit of the Applicant or a witness”.
Finally, the Guideline for the Practice of Conciliation/Arbitration Process, issued by the Registrar, states:
“Questioning or cross-examination of witnesses (including parties) will be permitted in very limited circumstances and only if the Arbitrator is of the view that it is necessary to come to a decision. Circumstances where cross-examination may be allowed would include where:
• contradictory evidence requires to be clarified or tested, or
• adverse matters material to the decision should be put to a witness when there has been no previous opportunity for these to be answered.”
In Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSW WCC PD 26 (‘Zheng’), at paragraphs 29 to 30, Deputy President Fleming said procedural fairness does not require that a party be afforded an unrestricted right to cross-examination in relation to evidence given at an arbitration hearing. The determination of what is procedurally fair is a matter for the arbitrator in the circumstances of the particular case. The Deputy President decided that the arbitrator’s refusal to allow a line of questioning at the arbitration hearing did not amount to a denial of procedural fairness. Deputy President Byron came to a similar conclusion in Rick Damelian Pty Ltd v Romanas [2004] NSW WCC PD 93 (‘Romanas’). He summarised the position as follows (at paragraph 45):
“As observed in Zheng, where the rules of evidence do not apply, the conduct of proceedings will 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 is bound by the principles of procedural fairness, which require that the parties be given the opportunity to address the evidence against them, where that evidence is to be relied upon in the Commission’s decision.”
I note that in Romanas, Deputy President Byron commented (at paragraph 49), in relation to the arbitrator having found “no difficulty with the credit of the Respondent Worker”, that the applicant “did not give evidence in the proceedings before the Arbitrator and it is somewhat difficult to know how the Arbitrator arrived at that view of his credit”. However, because this was not at issue in the appeal, the Deputy President did not interfere with the arbitrator’s finding.
My role in relation to the Arbitrator’s decision in the present case not to allow oral evidence from Mr Taumata and Mr Ratima, and also not to put what the Arbitrator perceived to be inconsistencies in Mr Taumata’s statements to him before making a finding as to credit, is to decide whether the Arbitrator denied Mr Taumata procedural fairness.
My conclusion is that there was such a denial of procedural fairness. The outcome of the hearing turned upon whether the Arbitrator believed Mr Taumata’s account of the alleged lifting incident and his attributing his myocardial infarction to the incident. If the Arbitrator had believed Mr Taumata’s account, then the consequence of this may have been a finding that Mr Taumata suffered an injury arising out of or in the course of his employment and within the definition of ‘injury’ in section 4 of the 1997 Act. The alternative was the decision the Arbitrator took, which was that he was not so satisfied. Indeed, he found that Mr Taumata “did not believe the incident with the safe was responsible, because it did not occur”. This finding seems to implicitly recognise the other possibility identified by Dr Cranney, which was that it was atheroscelerotic plaque rupturing spontaneously that caused the myocardial infarction.
The Arbitrator drew attention to the fact that Mr Taumata at first attributed his illness to the curried sausages prepared by his wife, which he ate for his main meal on Thursday 17 July 2003, prior to going to work. It was the sausages he mentioned as the possible cause of his illness to Mr Tuimaseve just before he went home on Friday 18 July 2003, and he obviously told Dr Ng of this because Dr Ng records in his report dated 21 August 2003, that on arrival at his surgery on 18 July 2003, Mr Taumata “thought he had some heartburn which he attributed to curried sausages which he had for dinner”. It appears to have been on Sunday 20 July 2003, when Dr Ng visited Mr Taumata at the Prince of Wales Hospital and raised the question of the possible cause of the myocardial infarction with him, that Mr Taumata recalled the lifting incident and told Dr Ng about this (Mr Taumata’s statement dated 9 September 2003, paragraph 87). Given that Mr Taumata had not previously experienced heart problems, excepting the hypertension for which he had been treated “for about three or four years” and which he said was stable (paragraph 11), and given that he otherwise prided himself on being strong and healthy, it does not seem surprising that he might at first attribute his symptoms of illness to indigestion or heartburn.
The Arbitrator also appears to have had doubts about Mr Taumata’s account of the tilting of the safe in order to lever it on to the dolly, of his being on his knees “for about 20 or 30 seconds”, and of his calling or shouting to Mr Ratima to help him take the weight of the safe and push it up onto the dolly.
However, what seems to have been of particular significance for the Arbitrator was the lack of detail in Mr Taumata’s description of the lifting incident in his second statement of 2 December 2003, when compared with his earlier statement. In particular, Mr Taumata made no reference to Mr Ratima. The Arbitrator stated he had been provided with no explanation for this, but he does not appear to have raised this with the parties at the arbitration hearing.
At the very least, if the Arbitrator felt Mr Taumata’s account lacked credibility because of his first attributing his illness to eating curried sausages, and because of inconsistencies between his three statements, then given the Arbitrator’s recognition that his decision would hinge on whether he accepted Mr Taumata’s account (see for example the arbitration hearing transcript at page 17), he should have afforded Mr Taumata the opportunity to address these matters. Thus, in my view, given the particular circumstances of this case, procedural fairness required that the Arbitrator allow the questioning of Mr Taumata or, at least, that the matters perceived by the Arbitrator to be adverse to his case should have been put to him.
With regard to Mr Ratima’s evidence, if, at the teleconference, the Arbitrator directed that he be summonsed, and given that Mr Ratima was, according to Mr Taumata, the only other direct witness to the lifting incident, it is curious that the Arbitrator did not give leave for him to be called to give evidence. Admittedly, Mr Ratima had given a detailed statement dated 25 September 2003, but given the Arbitrator’s concerns with Mr Taumata’s account of the incident, it was not unreasonable for Mr Taumata’s barrister to seek leave to call him to give oral evidence. Of itself, I would not have found this amounted to a denial of procedural fairness. However, it adds weight to my concerns about the Arbitrator’s not allowing oral evidence from Mr Taumata and not giving him the opportunity to address the matters perceived by the Arbitrator to be adverse to Mr Taumata’s case.
In conclusion, I find that the Arbitrator denied Mr Taumata procedural fairness and thereby made an error of law going to jurisdiction. The decision must therefore be revoked and remitted for redetermination.
DECISION
The decision of the Arbitrator dated 20 August 2004 is revoked and the matter is remitted to the Registrar for referral to a different arbitrator for determination of outstanding issues.
COSTS
The Respondent, Movers and Shakers Pty Ltd, is to pay Mr Taumata’s costs in this appeal as agreed or assessed.
Robin Handley
Acting Deputy President
31 October 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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