Taumata v Movers & Shakers Pty Limited
[2006] NSWWCCPD 240
•21 September 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Taumata v Movers & Shakers Pty Limited [2006] NSWWCCPD 240
APPELLANT: Michael Taumata
RESPONDENT: Movers & Shakers Pty Limited
INSURER:Allianz Australia Workers Commission (NSW) Ltd
FILE NUMBER: WCC5538-04
DATE OF ARBITRATOR’S DECISION: 30 March 2006
DATE OF APPEAL DECISION: 21 September 2006
SUBJECT MATTER OF DECISION: Bias; procedural fairness; procedure followed at rehearing after successful appeal
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: White Barnes
Respondent: Sparke Helmore
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 30 March is confirmed.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 26 April 2006 Michael Taumata (‘the Appellant Worker/Mr Taumata’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 30 March 2006.
The Respondent to the Appeal is Movers & Shakers Pty Limited (‘the Respondent Employer’).
Mr Taumata was born in New Zealand on 13 October 1945. He came to Australia in 1982 and started work as a removalist for the Respondent Employer in December 1999. At about 10pm on the evening of 17 July 2003 he was involved in moving several safes and other boxes from Tempe to Warringah Mall. He alleges that as he was tilting one of the safes to allow a trolley to be placed under it, the safe started to over balance and topple onto him. He says he yelled out to a co-worker to give him assistance. Eventually the safe was secured onto the trolley. In this process Mr Taumata felt a substantial strain and says he immediately developed certain symptoms. Exactly what symptoms he developed and when was the subject of conflicting evidence. Ultimately Mr Taumata was diagnosed as having suffered a myocardial infarct (‘heart attack’), admitted to hospital and underwent open heart surgery and later abdominal surgery as a result of complications from the heart surgery.
On 29 March 2004 an Application to Resolve a Dispute (‘the Application’) was filed in the Commission alleging that Mr Taumata’s heart attack had been caused by a “heavy strenuous lift” on 17 July 2003. The Application claimed weekly compensation from 17 July 2003 to date and continuing together with hospital and medical expenses under section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’). His claim was decided in favour of the Respondent Employer on 20 August 2004 (‘the first Arbitration’)
Mr Taumata sought leave to appeal that decision on the grounds that at the first Arbitration he was denied procedural fairness in that the Arbitrator refused to allow oral evidence from either him or from a co-worker, Mr Ratima, who was present at the time of the incident on 17 July 2003. The appeal was determined by ADP Handley in favour of Mr Taumata on 31 October 2004 (Taumata v Movers & Shakers Pty Ltd [2005] NSWWCCPD 123) when the following order was made:
“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.”
In the course of his decision ADP Handley stated that as the Arbitrator felt the case hinged on whether he accepted Mr Taumata’s account of the events on 17 July 2003, he should have afforded Mr Taumata the opportunity of giving oral evidence. The failure to do that amounted to an error of law going to jurisdiction. As a result the decision was revoked and remitted for redetermination.
The redetermination was allocated to a different Arbitrator when Mr Taumata gave lengthy oral evidence and was questioned by his counsel, counsel for the Respondent Employer and by the Arbitrator. The Arbitration hearing (‘the second Arbitration’) was conducted over two days, 18 January and 13 March 2006. In a reserved decision delivered on 30 March 2006 the Arbitrator did not accept Mr Taumata’s version of the events of 17 July 2003 and made an award for the Respondent Employer. Mr Taumata now seeks leave to appeal the decision in the second Arbitration.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would result in the Respondent Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of 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 Numbers 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 30 March 2006, records the Arbitrator’s orders as follows:
“1.An award is entered in favour of the Respondent in respect of the claims brought by the Applicant for weekly benefits and medical expenses compensation.
2.There is no order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(i)referring to and relying on the earlier decision given in the first Arbitration;
(ii)adopting the issues raised by the first Arbitrator as to whether there was inconsistency in or reason to doubt the credibility of the applicant as the starting point of his determination rather than proceed with the determination as a hearing de novo;
(iii)referring to and relying on the decision in the first Arbitration in determining the issues before him and not proceeding with the determination as a hearing de novo uncoloured by the perceptions of fact taken by the first Arbitrator;
(iv)denying Mr Taumata procedural fairness in referring to and relying on the earlier Arbitrator’s decision in determining the issues before him and, as a consequence, assuming the critical question was Mr Taumata’s credibility before the hearing of the matter;
(v)denying Mr Taumata procedural fairness in reading the Statement of Reasons for Decision of the first Arbitrator without affording the parties an opportunity to address the appropriateness of such conduct;
(vi)denying Mr Taumata procedural fairness and committing an error in circumstances where there was no contest on the medical opinion;
(vii)ignoring the only specialist medical opinion in the case on causation and proposing that the matter be sent to an Approved Medical Specialist (‘AMS’) to provide further opinion on causation when a simple inquiry of the specialist who had provided the only opinion on causation by way of the Arbitrator’s inquisitive powers would have more appropriately addressed any queries or concerns;
(viii)denying Mr Taumata procedural fairness in failing to have proper regard to the need for him to determine issues of causation rather than seek to have those issues determined by an AMS, and
(ix)failing to base his decision on logically probative evidence in that he:
(a)made assumptions on the basis of perceived and subjective inconsistencies in written statements of Mr Taumata, ignoring the weight of supporting evidence, and
(b)ignored the only specialist medical opinion before him on causation, preferring to colour the language of the treating specialist to suit his argument.
SUBMISSIONS AND FINDINGS
It is submitted that when ADP Handley revoked the first Arbitrator’s decision and remitted the matter to a different Arbitrator for a redetermination what was required was a hearing de novo. In general I agree with that submission. It is said that the Arbitrator approached the proceedings “on the assumption that there were inconsistencies in the histories and focused his attention on that and that issue alone” (Appellant Worker’s submissions, paragraph 15). It is argued that the Arbitrator should have had no regard to the history of the proceedings and should have approached his determination with a clear mind. In failing to do so, it is submitted, the Arbitrator made an error of law and failed to afford the Appellant Worker natural justice.
It is argued that the Arbitrator’s decision is flawed because of the “colouring and the bias with which the Arbitrator approached the determination of the issues, rather than as a determination de novo” (Appellant Worker’s submissions, paragraph 17).
The Appellant Worker relies on Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission & ors (2000) 203 CLR 194 where it was held at 202-203 that “in the case of a hearing de novo the matter is heard afresh and a decision is given on the evidence presented at that hearing”. It is said that the Arbitrator’s decision making process was clouded by his reference to the earlier decision by the first Arbitrator and, as a result, he pre judged the existence of “apparent inconsistencies and based his fact finding and determination upon the assumption there was inconsistency which needed to be reconciled” (Appellant Worker’s submissions, paragraph 23). The basis for this submission is found in paragraph one of the Arbitrator’s Reasons in which he states:
“This matter has been referred to me in the wake of a successful appeal by the Applicant worker against a decision of the Commission Arbitrator who first heard the case. Acting Deputy President Robin Handley held on appeal that the determination of the original Arbitrator could not stand because of procedural shortcomings at the hearing. In a nutshell, she [sic] held that the Arbitrator should have given the Applicant an opportunity to give oral evidence and by that token also the opportunity to clear up apparent inconsistencies and improbabilities in his various statements. Those inconsistencies and improbabilities were central to the Arbitrator’s evaluation of the evidence and his eventual decision against the Applicant.”
There is no doubt the Arbitrator did read both the decision of the first Arbitrator and that of ADP Handley in the first appeal. No authority has been cited to suggest that he was not entitled to read those documents. I do not believe the Arbitrator was in error in reading the first Arbitrator’s decision. If I am wrong on this point and the Arbitrator was in error in reading the first Arbitrator’s decision, the evidence in and the result of the first Arbitration was set out in detail in the decision of ADP Handley which he clearly was entitled to read. That decision made it plan that there were perceived inconsistencies in the evidence before the first Arbitrator and, in the light of those inconsistencies, the first Arbitrator denied the Appellant Worker procedural fairness by not allowing oral evidence to be given by Mr Taumata and Mr Ratima.
In my view it is always appropriate, indeed essential, in any rehearing after a successful appeal, for the second Arbitrator to have regard to the appellate decision before embarking upon the second hearing. A failure to do so may well result in the error corrected in the appeal being repeated at the second hearing. That risk is a very real one in the Commission when the issue concerns a denial of procedural fairness because of a refusal to allow oral evidence. The reason is that oral evidence is often not allowed in the Commission. The Guideline for the Practice of Conciliation/Arbitration Process 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.”
Therefore, even if the Arbitrator had not read the first Arbitrator’s decision, he was required to read the decision of ADP Handley. That decision highlighted certain inconsistencies in the evidence. Nevertheless, that fact did not relieve the second Arbitrator of his obligation to bring an impartial mind to bear on the issues before him. All issues were before him for determination according to the evidence presented to him regardless of the view the first Arbitrator took of the evidence. I reject the Respondent Employer’s submission that the second Arbitration was not a hearing de novo because ADP Handley only remitted the matter for a “determination of outstanding issues”. Once the decision of the first Arbitrator was revoked, and no orders or findings were made in substitution by ADP Handley, all issues were to be determined in the second Arbitration. However, the fact that there were inconsistent statements would have been apparent to the second Arbitrator from reading the Application and the statements attached to it. Arbitrators do not approach hearings with a blank page but are aware of most, if not all, of the relevant evidence before the hearing commences. That is the nature of the proceedings in the Commission. Evidence is required to be filed and served with the initiating process, the Application to Resolve a Dispute, in the case of the Applicant, and with the Reply, in the case of the Respondent (see Rules 38 and 42 of the Workers Compensation Commission Rules 2003 (‘the Rules’). In the present case the second Arbitrator was not only aware of the documents attached to the Application, but was also aware of the comments by ADP Handley and the first Arbitrator. That fact does not, on its own, mean that he did not bring an impartial mind to the resolution of the issues in the case.
Notwithstanding the fact that evidence is filed at the beginning of the proceedings, an Arbitrator must still comply with the rules of natural justice. Those rules have been considered in numerous cases. The Appellant Worker relies on Kioa v West (1985) 159 CLR 550 (‘Kioa’) where Mason J (as he then was) said at [31]:
“31. The law has now developed to a point where it may be accepted that there
is a common law duty to act fairly, in the sense of according procedural
fairness, in the making of administrative decisions which affect rights,
interests and legitimate expectations, subject only to the clear manifestationof a contrary statutory intention.”
There is no doubt that the Commission has a duty to observe the rules of natural justice (Inghams Enterprises Pty Ltd v Zarb [2003] NSWWCCPD 15) and to allow a party to be heard and present his or her case. However, that statement of general principle does not provide any assistance in the resolving the issue raised in the present appeal. That issue is: did the Arbitrator approach the matter before him with an impartial mind free from prejudice or bias?
In In Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 the High Court discussed the manner in which procedural fairness cases are approached by the courts, and Gleeson CJ said (at 14, [37]):
“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
In Muin v Refugee Tribunal [2002] HCA 30 Justice McHugh stated the requirement as follows at [123]:
“Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power.”
In considering the application of the rules of natural justice to the Commission the NSW Court of Appeal held in Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 (‘Zheng’) at [20] that:
“As ever when a claim is made that Natural Justice has not been accorded, regard must be paid to the legal context in which the decision-maker operates and to the law regulating the conduct of the proceedings.”
The judgment by Gibbs CJ in National Companies and Securities Commission vNews Corporation Limited (1984) 156 CLR 296 at 312 is also instructive:
“In Russell v. The Duke of Norfolk (1949) 1 All ER 109 Tucker L.J. said, at p 118: ‘The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.’ The passage has frequently been approved - for example, by this Court in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at p 552. The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.”
In light of the above authorities it is appropriate to consider the provisions that govern proceedings before the Commission. They are set out in Chapter 7 of the 1998 Act and in section 354 which provides as follows:
“354 Procedure before Commission
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5) Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(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.
(7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(8) In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted.”
The mere fact that the Arbitrator read the first Arbitrator’s decision does not of itself indicate bias or a denial of procedural fairness. The Appellant Worker has not pointed to any part of the proceedings which indicate a denial of natural justice or procedural fairness. Counsel for Mr Taumata was aware from the outset that the Arbitrator had read the earlier decisions (transcript, page one line 35) but made no objection to the matter proceeding. If it was thought that such a course was improper and indicated bias, objection should have been taken at that time. If bias is alleged then objection must be taken to the judicial officer continuing to hear the matter and if no objection is taken the right to object is taken to have been waived (Vakauta v Kelly (1989) 167 CLR 568 at 572 (‘Vakauta’) and Lindon v The Commonwealth (1996) 70 ALJR 541 at 548B).
The Appellant Worker has not identified if it is alleged that the Arbitrator’s conduct amounted to actual bias or apprehended bias. In the absence of submissions on this point I have assumed that apprehended bias is alleged. In Johnson v Johnson [2000] HCA 48 the High Court held at [11] and [12]:
“It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
That test has been adopted, in preference to a differently expressed test that has been applied in England [cf Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451], for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done [cf R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 per Lord Hewart CJ]. It is based upon the need for public confidence in the administration of justice. ‘If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision’ [R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263]. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial’ [Vakauta v Kelly (1988) 13 NSWLR 502 at 527 per McHugh JA, adopted in (1989) 167 CLR 568 at 584-585 per Toohey J].”
Applying the above test to the present case, and taking into account the whole of the transcript of evidence, the submissions by the parties and the Arbitrator’s Reasons, I can see nothing about his conduct of the second Arbitration that would even remotely suggest to a fair minded lay observer that he did not bring an impartial and unprejudiced mind to the resolution of the issues before him. The issue identified by the Arbitrator in his Reasons at paragraph one does no more than state the error in the conduct of the first Arbitration. That error was obvious from the decision of ADP Handley. The Arbitrator’s decision does not refer to the first Arbitrator’s reasons and does not rely on them, either expressly or impliedly. The only possible reference to the first Arbitrator’s decision is at paragraph 37 of his Reasons where he states:
“All in all, and with due regard to the history of these proceedings, it must be said that Mr Taumata’s oral evidence failed to reconcile the inconsistencies in the various written statements and has rather left his credibility rather worse off than before.”
The complaint about this passage is that it allegedly shows that the Arbitrator approached the matter with certain assumptions, namely, that there were inconsistencies in the histories. The fact that there were inconsistencies in the Appellant Worker’s statements was apparent on the face of the documents attached to the Application. The further submission, that the Arbitrator “focused his attention on that and that issue alone”, is incorrect. The Arbitrator’s decision was carefully prepared, well reasoned and meticulous in identifying and considering the relevant issues. At paragraph five of his Reasons the Arbitrator set out the issues to be determined as follows:
“The key issues in dispute in these proceedings are the following:
(a)Was there an incident at work on the evening of 17 July 2003 when Mr Taumata was placed under acute physical strain?
(b)If so, was it this incident that precipitated the rupturing of an atherosclerotic plaque, the cause of Mr Taumata's myocardial infarct? (Otherwise put, did an injury arising out of or in the course of employment for the purposes of s 4 of the Workers Compensation Act, 1987?)
(c)What compensation is due in the event that a work-related injury is proven?”
It has not been suggested on appeal that the Arbitrator identified the wrong issues or failed to identify relevant issues.
At paragraph six of his Reasons the Arbitrator identified the Appellant Worker’s allegation as follows:
“In the light of the particular evidence, it is as important to note the boundaries of Mr Taumata’s assertions. Mr Taumata is not alleging that the general nature and conditions of his quite strenuous employment at the Company over any extended period or indeed merely over the course of the evening in question were the cause of his heart attack. His claim as pleaded and pursued in his evidence is that a very specific incident triggered the rupture of an atherosclerotic plaque. It is that claim and no other that the Company is called upon to rebut, always bearing in mind that the Applicant carries the onus of proof.”
The Arbitrator allowed additional documents to be tendered and lengthy oral evidence from Mr Taumata. He then considered Mr Taumata’s evidence in detail and the evidence of Mr Ratima, the co-worker who was with Mr Taumata at the time of the relevant incident with the safe. Mr Ratima was not called to give oral evidence at the second Arbitration. That was surprising because one of the grounds of appeal before ADP Handley was that procedural fairness had been denied because the first Arbitrator refused to allow oral evidence from Mr Ratima.
The Arbitrator considered the medical history recorded by Dr Ng, his general practitioner, and the medical opinions of Dr Ng and Dr Cranney, Mr Taumata’s treating cardiologist. Dr Cranney’s opinion was set out in his report of 21 May 2004 and the following passage was quoted by the Arbitrator:
“6. Michael’s myocardial infarct was caused by a ruptured atherosclerotic plaque which would have occurred at the time of him lifting a heavy steel 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 his rupture with myocardial infarction on this occasion.” (emphasis added)
Under ‘analysis’ at paragraph 27 of his Reasons the Arbitrator noted that:
“It has been the Applicant’s firm proposition that his injury stemmed from a very particular event on the evening of 17 July 2003, and it has been his counsel’s case that the Applicant’s claims stand or fall on the establishment in these proceedings of that event, and not on anything else. How credible is the account?”
The Arbitrator’s statement in the above passage is correct. At page 39 line 58 of the transcript counsel for the Appellant Worker said:
“Now, this case was before an Arbitrator on a previous occasion. It went up to a Deputy President. It’s now back before you, Arbitrator, and it’s back before you because on the previous occasion, and on this occasion, the only issue, the applicant says, given that there’s no issue on the medical case, is whether or not you accept Mr Michael Taumata as a witness of truth. You either accept his version of events with respect to what happened on that night or you don’t. Now, if you don’t accept his version of events, if you don’t accept that an incident did occur, he loses. So it all rests upon, on the basis of the statements you have before you from Mr Taumata, from his oral evidence before you on two occasions, his evidence today in respect of issues going to injury and his evidence today with respect to matters going to incapacity, whether you accept he is a witness of truth.” (emphasis added)
The Arbitrator carefully analysed Mr Taumata’s evidence, both oral and written, observed him give evidence, then considered the medical reports and the histories contained in them, and concluded at paragraph 38 of his Reasons:
“Mr Taumata has failed to discharge the onus of proving that that [sic] he suffered a frank injury at work on the evening of 17 July 2003. The weight of evidence is solidly against his account, and raises more questions than he has been able to provide answers to.”
In short, the Arbitrator did not accept the Appellant Worker’s version of the events at work on the evening of 17July 2003. That finding was based on the Arbitrator’s assessment of the Appellant Worker’s credit (Reasons, paragraph 37). The question of when a credit based finding can be upset on appeal to a Presidential Member has been considered in numerous cases. In Department of Education & Training v Jeffrey Sinclair [2004] NSWWCCPD 90 it was held at [158] that:
“…a Presidential Member of this Commission, reviewing an Arbitrator’s decision on appeal, should upset such a finding only if there is other ‘incontrovertible’ evidence indicative of error, not adequately dealt by the Arbitrator at first instance. Fox v Percy (2003) 77 ALJR 989, c.f. Abalos v Australian Postal Commission (1990) 171 CLR 167. (See also the useful discussion in the judgments of the High Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) & Ors (1999) 160 ALR 588, especially that of Kirby J at 508ff, and the decision of Deputy President Fleming in Mayne Health Group v Sandford [2002] NSW WCC PD6, pars 35-41).”
The Appellant Worker attacks the Arbitrator’s decision on the basis that the analysis at paragraph 24 onwards in his Reasons illustrates his bias. Exactly how those paragraphs illustrate that the Arbitrator was biased or was in some way prejudiced is not explained. Paragraph 24 of the Reasons deals with the opinion from Dr Ng in his report of 21 August 2003. Paragraph 25 quotes from Dr Ng’s report of 20 December 2003 and paragraph 26 notes that the Respondent Employer tendered no medical evidence though it did arrange an examination. Paragraph 27 I have already quoted above. Paragraph 28 states, among other things, “a starting point is the uncontested evidence of Drs Cranney and Ng: an event such as the one described by Mr Taumata could have caused the atherosclerotic rupture of a plaque”.
At paragraphs 29 and 30 of the Arbitrator’s Reasons it was noted that certain statements had been sent to Dr Cranney by the Appellant Worker’s solicitors on 4 December 2003. Exactly which statements were sent is unclear, but it is probable that they were the statements of 2 December 2003 taken by the solicitor and of 9 September 2003 taken by an investigator. Those statements contained different histories about the onset of Mr Taumata’s symptoms. In the statement of 2 December Mr Taumata said at paragraphs four and five:
“4.I was involved in tilting the cigarette safes off the pallet to allow the pallet to be pulled out and the trolley to be placed underneath them. This involved a substantial amount of very heavy exertion. The cigarette safe came back onto me and I was straining to hold it up. I started to lose the balance of the cigarette safe, which if it had toppled over on me would have crushed me very badly. I was yelling out to the other workers to give me a hand. Eventually we managed to push it up, onto the dolly.
5.I felt a substantial strain whilst doing this and felt a sharp painful sensation in my chest. I was breathless afterwards. I don’t know quite what physical damage I had done to myself.”
In his statement of 9 September 2003 Mr Taumata said at paragraphs 71, 73, 74, 75 and 76:
“71.Tom came back and it was he and I on the dock. I tilted the safe back onto me and asked Tom to get the pallet out and put the dolly under it. I found that I was losing control of the safe, and it went over past the point of balance onto me. I started to hold it up and I yelled out to Tom to give me a hand.
72.…
73.The safe was resting on my chest. Obviously the safe was taller than me. I had both hands holding it, one on each of the corners closest to me. The front edge of the dolly was on the concrete dock. Tom had already put the dolly underneath, and all we had to do was push it up.
74.I felt the strain however, and I said to Tom, ‘Tom, quick come here, I can’t hold this thing.’ Tom was no more than a metre or two away from me.
75.Tom came around straight away and he managed to right the safe, with my help as well. I would estimate that the safe came down to about 45 degree [sic]. Because of the angle, I was down on both knees and my upper body was tilted backwards, and I was holding onto it 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.
76.When I got up I just left the safe and walked away from it. At the time I felt short of breath. The safe had been resting all up the front of my chest. Tom did not say anything, he just pushed the safe along on his own, until the others came around.”
The above statements only provide support for Dr Cranney’s conclusion if it accepted that the alleged incident with the safe occurred. The Arbitrator was not satisfied that it did occur and, in these circumstances, Dr Cranney’s opinion was of no value.
There were several reasons why the Arbitrator did not accept the Appellant Worker’s evidence and was not satisfied that the safe incident occurred.
First, the Appellant Worker’s account was not supported by the only other person present, Mr Ratima. The reference to ‘Tom’ in the above statement is a reference to Mr Ratima. In his statement 25 September 2003 Mr Ratima said he had no recollection of anything untoward happening when the safe was being moved on the evening of 17 July 2003 and no recollection of Mr Taumata yelling out for assistance or being on his knees with the safe at 45 degrees. However, he added that such an occurrence sounded “logical and possible” (Mr Ratima’s statement, 25 September 2003, paragraph 29).
Second, the Appellant Worker’s failure to comment about the incident at the time was “hard to credit” (Reasons, paragraph 33).
Third, Appellant Worker’s co-workers who were with him in the hour after the incident noticed none of the breathlessness which Mr Taumata said he experienced immediately after the lift (Reasons, paragraph 33).
Fourth, Mr Taumata made no mention of the safe incident to Dr Ng when he attended on him on 18 July 2003. Instead he mentioned that he’d had curried sausages the night before (Reasons, paragraph 35).
Fifth, the evidence that the Appellant Worker made a nearly contemporaneous diary account of the incident was not accurate. The diary note was note made until about one week after the 17 July 2003. This emerged in questions put to Mr Taumata by the Arbitrator (transcript, page 14 line 18) (Reasons, paragraph 36).
Sixth, the claim by the Appellant Worker of experiencing chest pain immediately on lifting the safe was incorrect and, in the Arbitrator’s opinion, “suggestive of an intention to repaint the past” (Reasons, paragraph 36).
The Appellant Worker submits that the time of the onset of chest pain was not relevant to Dr Cranney’s conclusion. That is correct. However, Dr Cranney’s opinion is based on an acceptance of the history that Mr Taumata lifted a heavy steal safe in the circumstances set out in his statements of 9 September 2003 and 2 December 2003. For the reasons set out above, the Arbitrator did not accept that the safe was lifted in that way or that it caused a strain as alleged by Mr Taumata. To the extent that the Arbitrator thought Dr Cranney relied on the development of chest pain at work on the night of 17 July 2003 to support his (Dr Cranney’s) conclusion, the Arbitrator was wrong. However, that does not invalidate the Arbitrator’s conclusion because he adds the following to his Reasons at paragraph 32:
“But in any event, the medical conclusions turned on the happening of an event. Has the Applicant established that it happened?
For the reasons set out above the Arbitrator was not satisfied that ‘the event’ did happen.
The Appellant Worker relies on the contents of a letter written by his solicitors to Dr Cranney on 4 December 2003 which states:
“We have been advised by Mr Taumata that you have been treating him [in] relation to a heart condition and related problems. Mr Taumata advises us that he suffered a severe onset of chest pain and symptoms arising out of a traumatic lifting incident occurring in the course of his employment on 17 July 2003. We enclose herewith a copy of the statements we have taken from Mr Taumata. We would be pleased if you would express your opinion as to whether you believe Mr Taumata’s heart condition could be said to have been substantially aggravated by the work incident.”
The submission is made that the above letter does not say when the chest pain started. That is true, but the statement of 2 December 2003 (enclosed with the letter) refers to a “sharp painful sensation” in Mr Taumata’s chest while engaged in the lift. That history was later conceded to be incorrect. The letter and the statement of 2 December taken together leave the clear impression that the chest pain started at work. The extent to which Dr Cranney relied on that part of the history to reach his conclusion, as opposed the history of strenuous heavy lifting, was not clarified in the evidence. In the end it does not matter. If the doctor relied on the history of the sudden development of chest pain in the course of or immediately after heavy lifting at work on the evening of 17 July 2003, that history was shown to be incorrect. If he merely relied on the history of heavy lifting as set out in the statements sent to him, those histories were not accepted by the Arbitrator as being correct. In the end there was no basis for accepting Dr Cranney’s conclusion because the factual basis underlying it had no been established (Makita v Sprowles (2001) 52 NSWLR 705). If Dr Cranney based his opinion on a history that he took from Mr Taumata (as opposed to that contained in the statements sent to him), he does not identify that history.
On the issue of the Appellant Worker’s credibility it is submitted that the Arbitrator rejected Mr Taumata as a witness of truth because “one statement given six months later to a solicitor contains a variation in the history” (Appellant Worker’s submissions, paragraph 45). That is not correct. The Arbitrator rejected Mr Taumata’s account of the event of 17 July 2003 for the reasons set out above in paragraphs [46] to [51] inclusive.
I do not accept the submission that the Arbitrator “demonstrated his bias in approaching and arriving at his decision from an assumption that there were obvious inconsistencies” (Appellant Worker’s submissions, paragraph 47). I have not been referred to any part of the transcript of evidence or submissions in support of this submission. However, I note that in the course of making submissions before the Arbitrator, counsel for the Appellant Worker said at page 45 line nine:
“So you draw comfort from your own assessment of Mr Taumata as a witness before you. You draw comfort from the consistent histories he’s given to doctors and in his statements. I will, if you need me to, Arbitrator, address the issue of inconsistencies raised by the previous Arbitrator. I don’t think that’s a matter which ought concern you. I had some concerns about that on the last day. You need to make your own mind up and not be concerned about the perceptions of an Arbitrator in this matter in the earlier hearing where [inaudible] has taken of the evidence. You need to make your own assessment.
ARBITRATOR: Yes. As I mentioned before, I’ve read that decision. I don’t need you to take me through it at all. That’s an opinion to some extent.”
I see nothing in the above exchange to indicate that the Arbitrator had pre judged the issues before him or that he failed to approach his task with an impartial mind. The expression “that’s an opinion to some extent” does raise a question as to whether the Arbitrator placed any weight on the first Arbitrator’s decision in reaching his own conclusions. After carefully considering this issue, I have concluded that the second Arbitrator has independently assessed the evidence before him and formed his own view on the relevant issues. My conclusion is reinforced when one considers the Arbitrator’s comments from page 46 line 18 to page 48 line 34 of the transcript where he set out the issues that were ‘exercising his mind’ and invited the parties to make further submissions on those issues. In my view these passages indicate that the Arbitrator brought his own mind to bear on the issues before him and, quite properly, let the parties know what he was thinking so they could respond.
The Appellant Worker submits that the Arbitrator’s conclusion in rejecting Mr Taumata’s account of the lifting incident in the absence of evidence contradicting Mr Taumata was against the weight of the evidence and demonstrates an error of law (Appellant Worker’s submissions, paragraph 51). I reject this submission. The acceptance or rejection of the Appellant Worker’s account was entirely a matter for the Arbitrator. He gave detailed reasons for rejecting Mr Taumata’s account of events and the failure to make a complaint at the time was only one of several reasons for not accepting him.
The submission that Mr Taumata’s evidence “with respect to the incident itself was uncontested” (Appellant Worker’s submissions, paragraph 52), is not correct. Mr Taumata’s evidence was not supported by Mr Ratima, a co-worker who was only a metre or so away from him when a fairly dramatic incident occurred, allegedly over 20 or 30 seconds. To say that there was “no evidence that the incident did not occur” reverses the onus of proof in circumstances where the Appellant Worker carries the onus of proof.
It is noted that Mr Taumata had been examined on behalf of the Respondent Employer by Dr Hickie on 7 October 2003 (see letter from White Barnes to Sparke Helmore dated 29 April 2004) and that that report was not tendered in evidence. Therefore, it is submitted, the Arbitrator was entitled to draw an inference that that report did not assist the Respondent Employer’s case (Jones v Dunkel (1959) 101 CLR 298 (‘Jones v Dunkel’) and he was in error in not drawing that inference. The correct Jones v Dunkel inference was stated by Justice Kitto in that case at 308 as follows:
“…any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.”
Therefore, the question in the present case is whether an inference that the heart attack was caused by the alleged work incident could be more confidently be drawn because of the unexplained absence of any report from Dr Hickie. In my view the answer is: ‘no’. To draw such an inference first requires a finding that the heavy lift or ‘strenuous exercise’ alleged to have caused the heart attack occurred. The Arbitrator was not satisfied on that crucial threshold issue. Therefore, the fact that he did not draw an adverse inference about the non tender of Dr Hickie’s report is of no consequence.
The Appellant Worker complains that the Arbitrator suggested that the matter be referred to an AMS for an opinion. The basis for the complaint is that the course proposed by the Arbitrator “again represented a potential denial of procedural fairness to the Applicant” (Appellant Worker’s submissions, paragraph 55). I do not believe that the Arbitrator’s suggestion that certain questions be put to an AMS denied the Appellant Worker procedural fairness. In my opinion the suggestion was an attempt to assist the Appellant Worker fill in potential gaps in his medical case. The problem perceived by the Arbitrator was that the medical evidence was “thin” (transcript page 47 line 38 and:
“It is for that reason that I had suggested that it may be instructive for the parties to take this matter off to an approved medical specialist to get some idea of bringing in additional medical evidence here as to the symptomatology that was expressed in the evidence by Mr Taumata, the linkage between that and the typical symptoms of a heart attack. That’s what I don’t see in front of me here, and that’s the reason why I have certain question marks. That’s the reason that I invited the parties to take matters further.” (transcript page 47 line 48)
The Arbitrator’s suggestion was resisted by both parties at the Arbitration. The Appellant Worker argued that Dr Cranney’s evidence was unchallenged and therefore should be accepted. However, as the Arbitrator pointed out, precisely which history Dr Cranney relied on in reaching his conclusion was never established. In response to a submission about Dr Cranney’s standing and eminence as a cardiologist the Arbitrator said at page 49 line 24:
“I understand his reputation. I’m saying that that statement, that response he’s given is potentially marred by ellipsis. There are things that are not said there. There are a range of factors that emerge from the applicant’s own statement of account of events that are simply not addressed. Now, it may be it’s because it’s irrelevant from a medical point of view that once a certain chain of things is established other factors are really of no particular significance. That may be the case, and, indeed, you’re telling me it is the case but you’re also asking me to make inferences on the basis of authority, and I’m saying to you that I still have some difficulty there. On the question, by the way, to get further medical opinion, I made an invitation that was turned down.”
I agree with the Arbitrator’s concerns about the state of the medical evidence. It was appropriate and reasonable that he bring those concerns to the attention of the parties. The suggestion of a referral to an AMS was one avenue through which his concerns could be addressed. It did not involve any breach of the rules of procedural fairness. Indeed a judge (or Arbitrator) who sits silent throughout a hearing would not be a model to be emulated (Vakauta at 611 and Galea v Galea (1990) 19 NSWLR 263 at 282D)
In response to the Arbitrator’s concerns about the medical evidence, counsel for the Appellant Worker said at page 49 line 56:
“I appreciate your position. I understand why you have disquiet, but there is nothing before you ‑ nothing before you ‑ from a medical point of view to suggest something to the contrary to what Dr Cranney says, and we would say that you potentially may be distracting yourself with respect to what your task is, which is to look at the facts, establish what the facts are, then look at what the medical evidence is. Are you satisfied that the facts match up with the medical evidence? Now, if there were competing medical views, I’d be concerned. I would have asked my solicitor to get a different ‑ to get another opinion to clarify the position on a background of there being a competing view. There’s no competing view. There may have been but we haven't seen it.” (emphasis added)
The Arbitrator did establish the facts on the basis of the claim as it was presented to him. The claim presented was that the Appellant Worker suffered a heart attack as a result of the significant physical exertion during a specific lift when a safe toppled onto him on the evening of 17 July 2003. If it was not accepted that that incident happened, then those facts do not ‘match up’ with the medical evidence from Dr Cranney. The Arbitrator was therefore correct to conclude at paragraph 47 of his Reasons that:
“Accordingly, in the absence of any expert medical evidence on the relevant issues, it must remain a matter of conjecture as to whether Mr Taumata’s myocardial infarct was precipitated by his generally strenuous work activities on the evening of 17 July 2003. By the same token, it must remain a matter of conjecture whether, if his case had been differently pleaded and additional evidence adduced, he would have succeeded in his claims.”
The Arbitrator reached the above conclusion after reiterating that the Appellant Worker’s case was presented as “an all-or-nothing focus on a specific lifting incident and its relationship to a ruptured plaque” (Reasons, paragraph 42).
The Appellant Worker’s submission that the Arbitrator was, at paragraph 47 of his Reasons, “effectively conceding injury in the course of employment as pleaded in the” Application (Appellant Worker’s submissions, paragraph 57) is rejected. In my view the Arbitrator did no such thing. He merely highlighted the fact that the Appellant Worker’s claim was presented and argued in a very specific way (as a frank injury and not as one involving ‘generally strenuous work’), notwithstanding the concerns the Arbitrator openly expressed to the parties about the state of the evidence in support of that claim.
I reject the submission that the Arbitrator acted on some wrong principle and gave weight to irrelevant matters. I do not believe the Arbitrator’s decision is affected by any error of fact, law or discretion.
DECISION
The Arbitrator’s decision of 30 March 2006 is confirmed.
COSTS
No order as to costs of the appeal.
Bill Roche
Acting Deputy President
21 September 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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