Transfield Services (Australia) Pty Limited v Gower
[2007] NSWWCCPD 91
•10 April 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Transfield Services (Australia) Pty Limited v Gower [2007] NSWWCCPD 91
APPELLANT: Transfield Services (Australia) Pty Limited
RESPONDENT: Noel Gower
INSURER:Self insurer
FILE NUMBER: WCC 5339-06
DATE OF ARBITRATOR’S DECISION: 3 July 2006
DATE OF APPEAL DECISION: 10 April 2007
SUBJECT MATTER OF DECISION: Procedural fairness; cross examination; weight of evidence; actual bias; section 11A Workers Compensation Act 1987; adequacy/ sufficiency of reasons; consideration of Townsend vCommissioner of Police (1992) 25 NSWCCR 9; total incapacity.
PRESIDENTIAL MEMBER: Acting Deputy President Kevin O’Grady
HEARING:On the papers.
REPRESENTATION: Appellant: Moray and Agnew
Respondent: Whitelaw McDonald
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator, dated 3 July 2006, is confirmed.
2. The Appellant is to pay the Respondent’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 28 July 2006 Transfield Services (Australia) Pty Limited (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 3 July 2006.
The Respondent to the Appeal is Noel Gower (‘the Respondent’).
The Respondent, who was born on 29 September 1956, commenced employment with the Appellant on 28 January 2002 when he was appointed as Safety and Environment Co‑ordinator. The Respondent held that position until termination of his employment on 14 May 2006. The Respondent’s duties included responsibility for overseeing matters relating to workplace safety.
The Respondent performed his duties without incident and in an apparently satisfactory manner until 30 April 2003. On that day the Respondent attended a meeting at the Shell (Australia) Clyde Oil Refinery. That meeting was addressed by Mr Tim Bond, a Senior Manager of the Shell Company. The meeting was attended by a number of employees of the Appellant and others. The meeting was convened to inform those present of the imminent visit at the Shell premises of the Chairman of Shell who was arriving in Australia that day. Following Mr Bond’s address those present were invited to ask questions. The Respondent asked Mr Bond from where was the Chairman flying to Australia. Mr Bond advised that the Chairman was flying from Singapore. The Respondent then asked as to what was Shell’s policy or procedure concerning the arrival of visitors to the premises from Singapore, it being identified as a high risk area for the infectious disease known as SARs.
Mr Bond ruled the Respondent’s question out of order and made disparaging remarks. Following the meeting there was, as described by the Respondent, a hostile exchange between himself and a Senior Shell Manager, Mr Steve Burger concerning the content of the Respondent’s question. It is alleged by the Respondent that Mr Burger indicated aggressively that he “would not hear the end of this incident”. This incident caused distress to the Respondent and he became concerned about his position with the Appellant and alleges anxiety, sleeplessness, difficulty thinking, headaches and stomach problems.
The Respondent received, on 7 May 2003, a proposal from his employer that his duties be altered to rotating on a weekly basis between Mackay, Queensland and New South Wales. The Respondent states that this proposal was accepted by him with reluctance. Whilst in Mackay the Respondent received information suggesting that he would be required to relocate from NSW to Mackay, Queensland. These circumstances caused the Respondent to be anxious, withdrawn and distrustful. The Respondent carried out duties both in Mackay and NSW up until approximately mid August 2003. He was working in Mackay at the time of the premature delivery of his and his partner’s first child in NSW.
The Respondent, in August 2003, commenced duties as the HSE Co-ordinator on what was known as “the Housing Contract”. That contract involved the engagement of 96 Transfield staff, 1,400 sub-contractors and 55,000 properties requiring management throughout NSW and the ACT. The Respondent describes an increasing workload leading to the necessity to work 14 – 16 hours a day as well as on weekends. It was stated by the Respondent that work had become overwhelming, his physical health started to deteriorate and that his “psychological state was also questionable”. The Respondent’s workload included at that time responsibility for what was known as the “Schools Contract” on an irregular or ad hoc basis.
The Respondent alleges an onerous workload throughout the balance of 2003 and during 2004. The Respondent describes depression and inability to focus and concentrate leading to his withdrawal in October 2004 from a management course at the University of Western Sydney which he had earlier commenced.
The Respondent alleges a number of incidents and exchanges between himself and members of management of the Appellant Company each of which was said to have caused the Respondent distress. Incidents included disagreement as to the manner in which an asbestos risk at Lismore NSW was managed and the manner in which a sewerage disruption was addressed at Rose Hill, NSW. The Respondent describes difficulties with interpersonal relations at various sites in the course of his work, and states that by 17 August 2005 he was unable to “cope either mentally or physically with the situation” and that by reason of his mental and physical symptoms including nausea and headaches he ceased work.
The Respondent consulted a General Practitioner and on 24 August 2005 claimed workers compensation benefits from the Appellant. By letter dated 30 August 2005 the Appellant accepted provisional liability for the Respondent’s claim and weekly payments were made until 14 November 2005. Liability was declined following an examination of the Respondent, on behalf of the Appellant by Dr John Roberts, Psychiatrist.
The Respondent filed an Application to Resolve a Dispute with the Commission on 4 April 2006 seeking orders with respect to entitlement to weekly payments. That Application came before the Arbitrator for conciliation and arbitration on 29 June 2006. A Determination of the Respondent’s entitlement was made by the Arbitrator on that day and Reasons were delivered ex tempore. A Certificate with respect to that Determination issued on 3 July 2006.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 3 July 2006 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1.That the Respondent make weekly payments to the Applicant under section 36 of the Workers Compensation Act 1987 at the rate of $1,205.60 a week for the period 15 November 2005 to 21 February 2006.
2.That the Respondent make weekly payments to the Applicant under section 37 of the Workers Compensation Act 1987 at the rate applicable for a worker with a dependent wife and 2 dependent children from 22 February 2006 to date and continuing in accordance with the provisions of the Act.
3.That the Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)whether the Appellant, by reason of the manner of the Arbitrator’s conduct of the arbitration, was denied procedural fairness as required by the principles of natural justice;
(ii)whether the Arbitrator erred in reaching his ultimate determination against the weight of the evidence;
(iii)whether the Arbitrator erred in the manner of conduct of the arbitration by demonstrating an element of prejudgment;
(iv)whether the Arbitrator erred in his determination by failing to apply, or erroneously applying, the provisions of Section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’) to the facts of the dispute between the parties;
(v)whether the Arbitrator failed to state adequate reasons with respect to the defence raised by the Appellant pursuant to Section 11A of the 1987 Act;
(vi)whether the Arbitrator erred in law when determining the question of “injury” in terms of the 1987 Act having regard to matters of principle enunciated in the decision of Townsend v Commissioner of Police (1992) 25 NSWCCR 9 (‘Townsend’);
(vii)whether the Arbitrator erred in law in failing to state adequate/sufficient reasons in that particular evidence was not addressed, and
(viii)whether the Arbitrator erred with respect to his finding that the Respondent was totally incapacitated for work.
The summary of the issues as set forth above is taken from the Appellant’s document headed “Submissions on Appeal” which was attached to its Application for Leave to Appeal Against Decision of Arbitrator.
The matters above summarised have been the subject of submissions in response by the Respondent in written Submissions.
ON THE PAPERS REVIEW
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.”
The Appellant submits as follows:
“Unless the Commission is minded to set aside the Arbitrator’s award and allow the appeal, the Appellant would wish to be heard upon the matters arising because of the substantial issues involved, the claim of a failure to afford procedural fairness and natural justice and the absence of any transcript evidence.”
It is to be noted that a transcript of the proceedings before the Arbitrator was prepared by the Commission and a copy was sent to each of the parties’ solicitors under cover of letter dated 11 August 2006 signed on behalf of the Registrar. The correspondence addressed to the Appellant’s solicitors included the following paragraph:
“If you have indicated in your submissions on appeal, that you have been unable to complete your grounds of and/or submissions on appeal for the reason that the transcript of proceedings had not been received by you at the date of lodgement, you are required to complete and lodge in the Commission, your final grounds and/or submissions on appeal without delay, immediately upon receipt by you of the transcript, and serve on all other parties to the appeal.”
The Appellant has not, since the date of the abovementioned correspondence sent by the Registrar, filed any supplementary material addressing grounds of appeal nor any supplementary submissions. I note in passing that attached to the Appellant’s Application with respect to this appeal was an 86 page document which appears to be a transcription of the proceedings before the Arbitrator which took place on 29 June 2006. The origins of that document are not stated and it may safely be implied that the Appellant’s representatives had access to a sound recording of the proceedings and have attended to preparation of a typed script independently of the Commission. The Appellant makes reference to that document throughout the course of submissions in support of the appeal. I further note that there appear to be differences in detail between the matters recorded in the Commission’s transcript and those as recorded in the Appellant’s 86 page document. For the purposes of this appeal I have relied upon the Commission’s transcript of proceedings in determining the state of the record. References by the Appellant to its typewritten document have been utilised for the purpose of identifying particular tracts of evidence and argument as they appear in the Commission’s transcript.
The Respondent consents to the appeal being determined on the papers.
Having regard to Practice Directions Numbers 1 and 6, and the documents that are before me, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
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 amount of compensation at issue on the appeal is such that the subject matter of the appeal meets the relevant threshold requirements for section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The requirements of section 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
EVIDENCE AND SUBMISSIONS
As noted above, there is before the Commission a transcript of the proceedings conducted before the Arbitrator on 29 June 2006. That transcript includes the Arbitrator’s Reasons for his Determination (‘Reasons’). A Certificate of Determination issued on 3 July 2006. That record does not contain a convenient summary of the evidence which was before the Arbitrator. It is thus necessary to examine the record to ascertain the evidence that had been admitted by the Arbitrator. Documentation of such evidence should, ideally, in compliance with the Commission’s Guidelines for the Practice of the Conciliation / Arbitration Process, appear on the record in plainly stated form. The absence of such a summary here may raise questions as to the prudence of the Arbitrator’s election to deliver his Reasons ex tempore following submissions by the Parties in the then prevailing circumstances. The matter concerned reasonably complex factual and legal issues, the Conciliation / Arbitration had commenced at 10am and proceedings continued, with the Parties’ consent, to the conclusion of submissions at approximately 6.45 pm. Thereafter the Reasons for Determination were delivered.
It appears that the evidence relied upon by the Respondent and admitted into evidence by the Arbitrator was that material attached to the Application to Resolve a Dispute filed on 4 April 2006. I have regard to the exchange as recorded in the transcript between the Arbitrator and the Respondent’s Counsel which appears at page 4 lines 40 – 48:
“40ARBITRATOR: Okay. Now, the documents upon which the applicant relies are those attached to the application.
MR EDWARDS: That’s correct.
45ARBITRATOR: That’s the evidence that the applicant relies upon. Is that correct, Mr Edwards?
MR EDWARDS: Yes.”
The material which was attached to the Application to Resolve a Dispute was summarised at page 7 of that document as follows:
Document Author Date of Document Letter to Transfield Whitelaw McDonald
Solicitors30.03.2006 Letter to Transfield Whitelaw McDonald
Solicitors09.11.2005 Letter to Applicant Transfield 17.10.2006 Report Dr Spruce 13.02.2006 Workcover Certificates Dr Karen 18.01.2006
21.10.2005
22.09.2005
25.08.2005Workcover certificates Dr Murphy 24.08.2005 Document “In reply to Dr J Roberts report” Applicant Undated Report Dr Roberts 11.10.2005 Document headed “Summary of events leading to my illness” Applicant 24.03.2006 Pay slips Pay period to
31.05.2005
30.06.2005
31.07.2005
31.08.2005
30.09.2005
The transcript, between pages 4 and 12, reveals that a number of rulings were made by the Arbitrator with respect to the evidence relied upon by the Appellant. It is clear that the material attached to the Appellant’s Reply as summarised at page 4 thereof was admitted into evidence. In addition to that material the Arbitrator admitted into evidence a supplementary report of Dr John Roberts, Psychiatrist dated 16 June 2006 and a number of job advertisements obtained from Seek.com.au dated between 6 and 21 June 2006. Dr Roberts’ report and the advertisements were attached to an Application to Admit Late Documents filed with the Commission on 26 June 2006.
The Appellant also sought to rely upon material which had been attached to an Application to Admit Late Documents filed with the Commission on 7 June 2006. An examination of the transcript reveals that a number of documents were excluded by the Arbitrator following argument as to admissibility. The transcript reveals (at page 10) that the Statements of Mr David Bond, Mr Kilmaster, Mr De Angelis, Mr O’Brien, Mr Thomas and Mr Burnett were admitted into evidence by the Arbitrator. Two investigative reports prepared by Key Industry Support Services were excluded by order of the Arbitrator (page 11 transcript). The exclusion of those reports was the subject of one qualification which is noted at page 18 of the transcript where the Arbitrator admitted into evidence material that appears at page 5 of the report of Key Industry Support Services dated 5 June 2006 under the heading “Annie Tzannes, HSC Co-ordinator, NSW Housing”. The material admitted into evidence by the Arbitrator was confined to the contents of numbered paragraphs 1, 2 and 3 at that page of the investigative report.
The Arbitrator (transcript page 11, line 45) made it clear that his ruling with respect to the admissibility of Mr Bond’s Statement included the admission of several copies of emails and other attachments which accompanied that Statement.
In addition to the documentary evidence as summarised above, the Arbitrator permitted the taking of oral evidence from the Respondent Mr Gower as well as that of David Bond, Jim Burnett, Colin O’Brien, Lee Thomas and Ms Tzannes. Each of those witnesses were questioned by the Arbitrator. No oral evidence of the Respondent was elicited by his Counsel however the Appellant’s Counsel was, subject to rulings from time to time more fully addressed below, permitted to cross-examine the Respondent. Neither Counsel for the Respondent or the Appellant elected to put any questions to the witnesses Mr Bond, Mr Burnett, Mr O’Brien, Mr Thomas or Ms Tzannes.
As noted above the Arbitrator had before him a document prepared by the Respondent headed “Summary of events leading to my illness”. This 21 page document summarises events in the course of the Respondent’s employment with the Appellant between 30 April 2003 and 17 August 2005. It is noted by the Respondent that the onset of his problems giving rise to anxiety and depression occurred immediately following the meeting referred to above (paragraph 4) at the Shell Refinery (‘the SARs incident’). The Respondent states that within a week of that meeting he was experiencing restless nights with little sleep and that he felt “drained of emotion”. The Respondent alleges that he was informed by Mr De Angelis on 7 May 2003 that his removal from the Shell premises and proposed transfer to Mackay, Queensland was because Shell had demanded that he be removed from the Shell site following “the SARs incident” and that the Appellant wanted to “sack him on the spot”.
The Respondent proceeds to describe conversations he had with his superior Mr David Bond concerning his duties in Mackay. It is stated that Mr Bond indicated that the Respondent would be required initially to remain in Mackay for a period of at least 3 weeks which arrangement conflicted with an initial arrangement made with Mr De Angelis that the Respondent, “would only be required to spend a week about” (that is one week in Mackay, one week in NSW) in Mackay. Mr Bond informed the Respondent that the client in Mackay (REB Engineering) had no knowledge of “the SARs incident” and that was to remain the case. The Respondent states that he was being “severely and unjustly punished” for his behaviour at Shell.
The Respondent notes that he was “frequently asked by Peter Cameron, the Contract Manager, when was my partner coming to look around.” The Respondent’s understanding at this time was that his relocation to Mackay was expected by the Appellant. Such relocation was not earlier suggested by the Appellant and the Respondent had “no intention of relocating”. Discussions were had in Mackay with Mr Cameron and other managers concerning a shut down of a mine some 250 kilometres west of Mackay. That shut down would require the presence of the Respondent on a continuous basis for 3 months, 7 days a week.
The Respondent noted that he returned to NSW on 13 June 2003 and remained until 22 June 2003. During that period the Respondent’s partner, who was pregnant, became distressed concerning his return to Mackay.
The Respondent returned to Mackay on 23 June 2003 and received word from his partner early on the morning of 25 June 2003 that she had prematurely gone into labour. The Respondent rushed to join his partner in NSW. The child was born before his arrival at his partner’s side. The Respondent then took 2 weeks leave and remained with his family in NSW.
The Respondent returned to Mackay for a 3 week tour of duty and in August 2003 sought a transfer to a position in NSW (the Housing Contract). That transfer was agreed to by the Appellant. The Respondent commenced the Housing Contract duties however after a number of weeks he was contacted by Mr Bond and told that his presence from time to time was required in Mackay. The Respondent was also informed that he was to “look after the NSW Schools Contract on ‘an ad hoc basis’”. It was at that time that the Respondent commenced working 14 – 16 hours a day as well as weekends to “keep up with the heavy workload”. The Respondent notes that the work performed by him became overwhelming and that “my physical health was starting to deteriorate”.
In October 2003 the Respondent returned to Mackay for a fortnight. Whilst in Mackay the Respondent received telephone calls from the Schools Contract Manager demanding details of his whereabouts and details of his date of return. The Respondent notes that the demands of work at this time made him feel “like the walls were caving in on me”.
By December 2003 the Respondent’s duties concerned the Housing Contract alone. This work required long hours and the Respondent notes that he began experiencing frequent episodes of depression lasting for a week or more.
In May 2004 the Respondent became responsible for the Schools Contract as well as the Housing Contract. The resultant increased workload caused a continuation of the Respondent’s mental difficulties. By October 2004 the Respondent’s ongoing depression and his inability to focus and concentrate forced him to withdraw from a University course that he was pursuing with the University of Western Sydney.
In November 2004, following a serious breach of safety at Lismore, NSW the Respondent came into conflict with Mr Jim Burnett, the Regional Manager for the NSW Housing Northern Region. The Respondent notes a number of conflicts in the course of his duties including that with Mr Britton concerning safety breaches which, it is noted by the Respondent, lead to offensive remarks of a racist nature being made by Mr Britton.
The Respondent notes a telephone conversation he had with Ms Tzannes who informed him that she had been employed by the Appellant and that she had been told that she would be taking over the Respondent’s position on the Housing Contract. The Respondent had no knowledge of any such proposal and found the conversation very upsetting.
In May 2005 the Respondent notes a conflict he had with Mr Jim Burnett concerning a reported fault with the sewerage system at Rose Hill, NSW.
The Respondent notes that he was approached in May 2005 concerning a transfer to a position at Tomago Aluminium by Mr Kilmaster. The Respondent made enquiries of Mr Burnett and was informed that he had no knowledge of such a proposal. By 20 May 2005, after a discussion between the Respondent and Mr Kilmaster, the Respondent reluctantly accepted a position at Tomago Aluminium. The changes and knowledge concerning Ms Tzannes taking his position on the Housing Contract caused the Respondent great concern.
The Respondent notes that he took up his duties at the Tomago site however was still working on the NSW Housing Contract as well as other duties. The workload experienced by the Respondent had, he says, again become overwhelming.
The Respondent details a number of difficulties encountered at the Tomago site including the absence of suitable work equipment. The Respondent experienced some conflict with those working at the Tomago site and these circumstances caused stress to the Respondent. The Respondent experienced difficulty in his relations with other workers at the site, he felt that there was a deliberate omission to provide him with new clothing which had been acquired by others present at the site and in July 2005 the Respondent was suddenly and rudely interrupted by Mr Lee Thomas whilst conducting a meeting. The Respondent notes that the problems with interpersonal relations at the Tomago site gave rise to a feeling of being abused and humiliated. The Respondent reported his concerns to Mr David Bond.
In mid July 2005 the Respondent notes that he handed over the Housing Contract to Ms Tzannes. On 15 August 2005 the Respondent was informed that he would be taking “full control of the Hunter Valley Defence Contract”. Responsibility for that contract was to commence immediately. The Respondent notes that when enquiries were made by him concerning the appointment he was verbally abused. The Respondent reported these difficulties to Mr David Bond. Subsequent dealings with Mr Bond caused the Respondent to feel “that I was beating my head against a wall. I was not receiving any support from David Bond or any member of Transfield Services”. The Respondent further notes that he felt that he had “finally hit the wall”. He states that his whole body was shaking, he was nauseous and had vomited. He had a constant pounding headache. The Respondent informed Mr O’Brien that he needed to see a doctor and that he was unable to cope either mentally or physically with his situation. The Respondent ceased work on 17 August 2005.
In evidence before the Arbitrator there were five WorkCover NSW Medical Certificates dating from August 2005 to January 2006. The last of those certificates, issued by Dr Paul Karen, General Practitioner, of Belmont included certification of a diagnosis of depression and anxiety due to work stresses and stated that the Respondent was unfit to work from 21 January 2006 to 21 April 2006.
The Respondent first consulted Dr FR Spruce, Consultant Psychiatrist on 20 December 2005 following referral by Dr Karen. A report of Dr Spruce dated 13 February 2006 was before the Arbitrator. Dr Spruce in his report outlined, in summary form, the Respondent’s work circumstances from the date of “the SARs incident” in 2003 up until the Respondent’s departure from work in August 2005. Dr Spruce noted that the Respondent said that he had started to dysfunction from April 2003 and began to lose confidence in himself. Dr Spruce further noted that the Respondent took extended holidays in Japan in 2004 over Christmas at which time the Respondent’s headaches abated and that upon his return to work those headaches returned. Dr Spruce noted that the Respondent could not sleep and had 3 – 4 hours of broken sleep at best, that his weight went up and down, that he had trouble eating and that he was often shaking and tremulous. Dr Spruce recorded that the Respondent consulted Dr Lucy Murphy in August 2005 and it is to be noted that among the WorkCover NSW medical certificates in evidence before the Arbitrator is that of Dr Murphy dated 24 August 2005. Diagnosis in that certificate is stated as being “depression and anxiety due to work stress”. Dr Murphy certified that the Respondent was unfit to work from 24 August 2005 to 31 August 2005. Dr Spruce recorded that Dr Murphy had prescribed Efexor on a low dosage “until he was to be re-assessed by his usual Doctor”.
Dr Spruce further recorded in his report that the Respondent stated that his Efexor antidepressant had been increased to 225 mg eight weeks before the first consultation. Dr Spruce expressed the view that the Respondent’s history was consistent with the diagnosis of Major Depression with pervasive depressed mood, insomnia with early morning wakening, loss of pleasure, loss of motivation, loss of drive, heightened negativity and morbid thoughts and constant worry and inability to relax. Dr Spruce proceeded to express the view that:
“Such is the nature of the conflicts with his employer, his capacity to return to work even if his depression is resolved is improbable and he remains unfit to return to work either as fulltime or part-time duties with Transfield Services indefinitely. His lack of any prior psychiatric history, however and his capacity to resolve his psychiatric disorder is quite good and give him the opportunity of obtaining work in other settings. So demoralised is he by these experiences however and such is the nature of the industry that he may well require to retrain in alternative settings altogether in order for him to successfully return to work”
It is recorded in the transcript (at page 18) that Counsel for the Appellant sought the Arbitrator’s leave to cross-examine the Respondent. The Arbitrator is recorded as stating (at page 20, line 51 of transcript) that it was his proposal that he, the Arbitrator, would:
“…ask some questions of Mr Gower, and I’ll hear you [referring to the Appellant’s Counsel] after that if there’s any further point upon which or specific point upon which you want to cross-examine him, and also, depending upon – I will at that stage make a decision as to whether I want to hear or ask questions from any of your witnesses.”
It appears that the Arbitrator was there dealing not only with the Appellant’s application to cross-examine the Respondent but also the Appellant’s application to call oral evidence of a number of those individuals whose Statements were in evidence before the Commission.
The transcript reveals (between pages 21 and 46) that the Appellant was questioned at length by the Arbitrator during which time the matters contained in the Respondent’s “notes” referred to above were canvassed in general and, to an extent, circumstances were elaborated. Following this procedure the Respondent’s Counsel declined an invitation by the Arbitrator to ask any further questions of the Respondent.
The Appellant’s Counsel indicated that he wished to cross-examine the Respondent. It is recorded (between pages 46 and 48) that the Arbitrator sought to ascertain from Counsel the matters it was intended to address in the course of cross-examination. During exchanges with Counsel the Arbitrator made reference to the decision of the NSW Court of Appeal in Aluminium Louvres and Ceilings Pty Limited v Zheng [2006] NSWCA 34 (‘Zheng’). The Arbitrator made particular reference to the matters stated by Bryson JA (with whom both Handley JA and Bell J agreed) at paragraph 25. Following narration of that extract of the Court of Appeal’s Judgment the Arbitrator invited Counsel for the Appellant to proceed with cross-examination. The transcript records (between pages 49 and 80) that the Respondent was indeed cross-examined with respect to a wide range of subjects which were in issue before the Arbitrator. As well as recording the questions of Counsel and the Respondent’s replies there are numerous exchanges between the Arbitrator and the Appellant’s Counsel with respect to the subject matter of cross-examination and rulings by the Arbitrator against the Appellant’s entitlement to pursue particular lines of questioning. These matters are more fully addressed below.
As noted above a Statement from Mr David Bond was before the Arbitrator. That Statement includes a description of the Respondent’s work duties and his work history with the Appellant and, of significance in this appeal, Mr Bond is recorded as stating that, “As far as I am aware, Noel worked normal business hours.” Mr Bond did not consider that the Respondent was over worked and described “peaks and troughs” with regard to workload. Mr Bond included in his Statement detail of his concern regarding the contents of an email which the Respondent had sent to Mr Peter Finch on 16 August 2005.
The Arbitrator permitted Mr Bond to give oral evidence at the arbitration hearing. That evidence is recorded between pages 81 and 87 of the transcript of proceedings. The procedure adopted by the Arbitrator was that initially questions were put to Mr Bond by the Arbitrator following which the parties were given an opportunity to put any further questions they may wish. Neither the Appellant nor the Respondent elected to question Mr Bond further. Of significance Mr Bond denied (at page 82, line 50) any knowledge of the events concerning “the SARs incident” in 2003.
The Arbitrator adopted a similar approach to the taking of oral evidence from Mr Burnett, Mr O’Brien, Mr Thomas and Ms Tzannes. Neither representative of the Appellant nor the Respondent sought to put any questions to these witnesses. In the case of Mr O’Brien the Respondent’s Counsel sought elucidation of one matter contained in the witness’ Statement through questioning by the Arbitrator (at pages 95 and 96).
Mr O’Brien in his Statement and his subsequent evidence before the Arbitrator described the working relationship between himself and the Respondent and expressed his view that the Respondent was a “difficult person to get along with” and was one who would “often stick his nose in where it was not wanted”. Mr O’Brien was of the view that the Respondent was “not a person that would give and take and he was demanding of not only his own workstation, but also of others working around him, such as my assistant”. It was denied by Mr O’Brien that the Respondent was the subject of any “abuse and humiliation” at Tomago. Mr O’Brien confirmed that the Respondent was simultaneously committed to the Tomago Contract and the NSW Housing Contract. Mr O’Brien was of the view that the Respondent was disappointed that he had failed to obtain a management position and had “sour grapes” concerning this failure. Mr O’Brien further stated that the Respondent did not appear to be suffering from any work related stress. Mr O’Brien confirmed that there was a personality conflict between the Respondent and Mr Thomas. Generally Mr O’Brien was critical of the Respondent’s “demanding attitude” in the workplace. These matters were, to an extent, elaborated in the course of questioning of Mr O’Brien by the Arbitrator.
The Statement of Mr Thomas and his oral evidence address a number of matters raised by the Respondent. Mr Thomas “did not recall that Noel Gower was particularly overworked”. Mr Thomas considered the Respondent to have what he described as a “superior attitude”. The witness could not recall having a conversation as reported by the Respondent including a statement by Mr Thomas as follows:
“What the fuck are you doing? That’s my work station! Go and find another place to work from.”
Mr Thomas confirmed that he in fact interrupted a meeting being conducted at Tomago by the Respondent.
Oral evidence of Ms Tzannes is recorded at pages 100 to 103 of the transcript. Ms Tzannes (at line 24 – 30, page 103) confirms that a conversation took place in April 2005 between herself and the Respondent concerning her appointment to a position assuming responsibility for the Housing Contract.
The Statement of Mr Kilmaster which was before the Arbitrator confirmed that the Respondent had made application for a management position in August 2005. It was Mr Kilmaster’s view that the Respondent was “seeking more responsibility, rather than lessening of his workload”. Mr Kilmaster confirmed that the Respondent had a personality clash with Mr Britton, that conflict manifested with regard to falsified risk assessments which had been identified. Mr Kilmaster denied that he had reported to the Respondent that he had been described as “a bludger”. Mr Kilmaster stated that he believed that the Respondent was fully aware of Ms Tzannes involvement in being appointed to the Housing Contract.
The Statement of Mr De Angelis included reference to a conversation between himself and the Respondent concerning relocation from the Shell site. It is suggested in that Statement by Mr De Angelis that the Respondent wished to resign and that he, Mr De Angelis suggested taking a position elsewhere in the organisation. Mr De Angelis described the appointment to Mackay as “the North Queensland opportunity”. He was not able to recall the circumstances of how that opportunity became available. With respect to the Respondent’s suggestion that he had been “blackballed by Shell” following “the SARs incident”, Mr De Angelis stated that he did not know whether that was correct given that he had no involvement with that incident.
The Appellant relied upon the opinion of Dr John Albert Roberts, Consultant Forensic Psychiatrist, and placed before the Arbitrator two reports from that Practitioner, the first dated 11 October 2005 and the second being 16 June 2006. In the first of those reports Dr Roberts took a history in respect of the Respondent’s alleged disability and circumstances of employment. In the course of compiling the report Dr Roberts is critical both of the Respondent and the treatment which had been provided by his General Practitioner. Dr Roberts rejected the Respondent’s statement that “he could not sleep” and “that for 2-3 weeks he had not slept at all” as being simply impossible. Dr Roberts in his report adopted a format which included “comment” with respect to individual items of history, symptomatology and associated matters. Dr Roberts concluded that the Respondent could not be regarded “as being a person who was able to give a reliable history in terms of matters of fact, since he had described himself previously as being disoriented and yet denies any cognitive impairment”. Dr Roberts proceeded to question the Respondent and under heading “Comment” states:
“The above responses to questions put to Mr Gower by me, in my view effectively negate any claim for a work induced or other reactive state and in essence negates the nature of the alleged injury, namely work induced depression, stress and anxiety.”
Dr Roberts’ ultimate conclusion was that the Respondent’s “mental status is entirely unremarkable and there is no evidence of any abnormality in terms of my speciality”. Dr Roberts went further and stated:
“In my view Mr Gower has sought to use a psychological ploy to manage a situation that was not to his liking. There is no justification for the assertions that he made and the nature of his contradictory statements clearly indicate that he is as a historian, completely unreliable.”
Dr Roberts, in his report of 16 June 2006, took an updated history from the Respondent. Again Dr Roberts adopted a format including comment on individual matters raised during the course of the examination. Dr Roberts commented that the Respondent was contradictory in terms of response to questions put on this occasion and on the previous occasion and again stated that he was of the view that the Respondent could not be regarded as being a person who was able to give a reliable history in terms of matters of fact. It was recorded by Dr Roberts that the Respondent declined to provide a urine specimen as requested. Dr Roberts expressed the view that:
“Mr Gower does not suffer from a mental or nervous illness, disorder, condition or problem, arising as a result of his circumstances and conditions of his employment.”
Dr Roberts characterised the Respondent as being:
“…an angry hostile man who has not been able to get his own way – he is in all respects an unreliable historian – nothing that he states can be accepted at face value.”
The Appellant placed before the Arbitrator a number of advertisements published in June 2006 relating to vacant positions in the field of occupational health and safety.
Appellant’s Submissions
Both at the hearing before the Arbitrator and on this appeal the Appellant has submitted that there is a “substantial issue” as to the factual circumstances leading up to the Respondent’s alleged injury. It was further argued that the factual contest between the parties “involved significant credit issues”. The manner in which the Appellant conducted its defence involved not only a denial of “injury” but reliance was placed upon the provisions of sections 9A and 11A of the 1987 Act. The Appellant has also raised the issue of “incapacity” and has submitted that a “live issue was the question of the worker’s ability to earn for the purposes of any award under section 40 of the Act” (submission 8 on this appeal).
It is put on behalf of the Appellant (submission 14) that, by reason of the manner in which the Arbitrator conducted the hearing during the course of the Appellant’s Counsel’s cross-examination of the Respondent, the Appellant was “denied procedural fairness and natural justice”. It is asserted by the Appellant (submission 20) that consideration of the decision of the NSW Court of Appeal in Zheng and the “Charter of the Commission” does not lead to a conclusion “that parties ought be denied an opportunity to have the issues properly ventilated. The determination of those issues ought be done in a dispassionate and independent way.” The Appellant seeks to illustrate a denial of procedural fairness by reference to particular exchanges between the Arbitrator and the Appellant’s Counsel during the course of cross-examination of the Respondent.
It is further submitted on behalf of the Appellant (submission 28) that the Arbitrator’s ultimate determination is “so against the weight of evidence as to constitute reviewable error”.
It is put on behalf of the Appellant that the Arbitrator’s comments concerning conflict between the Respondent’s evidence and that contained in the Statement of Mr De Angelis demonstrated “an element of pre-judgment”. Whilst not expressly stated it appears that this submission constitutes an argument that the Arbitrator’s conduct was such as to demonstrate actual bias.
The Appellant (submission 34) argues that the Arbitrator’s reasoning with respect to the issue as to the reasonableness of the Respondent’s transfer to Mackay, Queensland was “manifestly inadequate”. It appears in this submission that the Appellant treats the Arbitrator’s reasons as being expressed in the context of dealing with the Appellant’s defence raised pursuant to section 11A of the 1987 Act.
The Appellant (submissions 42 to 53) identifies a number of incidents or factors alleged by the Respondent as being relevant to the question of injury and an analysis of the evidence with respect to those matters is presented in support of a submission that the Arbitrator’s conclusions of fact were against the weight of the evidence.
Reliance is placed upon the decision of Townsend and the Appellant argues (submission 54) that should injury be found as a fact, such injury “arose from the Applicant’s perception rather than from fact”.
It is further argued by the Appellant that the manner in which the Arbitrator dealt with the evidence in the course of his Reasons was such as to demonstrate failure “to either consider and/or explain the significance of those matters and to that extent committed a reviewable error …”. Reference is made to the decision of the NSW Court of Appeal in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (‘Soulemezis’).
It is submitted on behalf of the Appellant that the evidence as to incapacity falls short of supporting a conclusion of total incapacity as made by the Arbitrator and that an error was committed by the Arbitrator in failing to assess the Worker’s ability to earn as prescribed by section 40 of the 1987 Act.
The Respondent, in submissions in reply, relies upon the decision of the NSW Court of Appeal in Zheng in support of a submission that the Arbitrator was entitled to limit Counsel’s cross-examination of the Respondent.
The Respondent further submits that the manner in which the Arbitrator conducted questioning of the Respondent was a procedure in compliance with his power to adopt “an inquisitorial approach”.
The Respondent submits that the Arbitrator’s conclusions with respect to the evidence of Dr Roberts were open to him having regard to the state of the evidence and that such conclusions were correct.
With respect to the Appellant’s defence raised pursuant to section 11A of the 1987 Act the Respondent submits that the detailed reasoning regarding the Respondent’s transfer to Mackay and its relationship to “the SARs incident” demonstrates an adequate expression of reasoning as required by law. It is argued that the Arbitrator’s Reasons as expressed sufficiently support the conclusion that the Appellant’s actions with respect to the transfer were not reasonable in terms of section 11A of the 1987 Act.
The Respondent’s submissions in reply include an assertion that, having regard to the state of the medical evidence, it was open to the Arbitrator to accept the opinion of Dr Spruce and reject the opinion of Dr Roberts with respect to the question of incapacity and that his conclusion of “total incapacity” was open to him on the evidence.
DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5)An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was considered by the NSW Court of Appeal in Zheng where the Court was there considering an appeal from a Deputy President of this Commission who had heard an appeal from an Arbitrator which involved arguments concerning suggested denial of procedural fairness. In his leading judgment Bryson JA (with whom Handley JA and Bell J agreed) said at [38]:
“38. A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator’s discretionary decision in controlling procedure may be based on the test stated in House v R (1936) 55 CLR 499 at 504 – 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member. ….”
It is argued on behalf of the Appellant that the conduct of the Arbitrator in curtailing cross-examination constituted a denial of procedural fairness. The subject matter of the cross-examination, the course of which was interrupted by the Arbitrator, was identified in the Appellant’s submissions as dealing with the following subjects:
(i)the true reason for the Respondent ceasing work,
(ii)the factual dispute as to whether or not Mr De Angelis informed the Respondent that he was to be sacked,
(iii)an exploration as to why the Respondent expressed no concern in his emails concerning alleged intimidation,
(iv)an examination as to why there was an absence of complaint,
(v)an examination of “the so-called stresses arising from [the Respondent’s] time in Mackay” and the Respondent’s taking of leave during that period,
(vi)a line of questioning seeking to explore whether the Respondent “bore certain resentment”.
It is convenient to examine the regulation of procedure before the Commission before addressing the matters raised with respect to the suggested denial of procedural fairness. The provisions of section 354 of the 1998 Act regulate such procedure and provides (so far as is here relevant) as follows:
“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…..”
Rule 70 of the Workers Compensation Commission Rules 2003 (which rule was in force at the date of the subject hearing before the Arbitrator) provides that:
“70 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.”
It was stated by Bryson JA in Zheng (where the Court considered an Arbitrator’s ruling limiting cross examination):
“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.” (para 20)
The legislation governing procedure and practice before the Commission was considered by Bryson JA in Zheng and his Honour (at paragraph 37) concluded as follows:
“37. An assessment of whether the Arbitrator’s decision should be set aside for want of procedural fairness is no simple matter and could not be disposed of by applying any legal tests susceptible of clear statement relating to entitlement to cross-examine an applicant, or a witness. There is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission, and decisions whether to allow cross-examination or to limit it are discretionary decisions which must be made in a context of the legislation and practices which the Commission follows, and, at least as importantly, in the context of the facts and circumstances of the case under consideration.”
The facts and circumstances of the present case embrace a great many incidents of suggested relevance which occurred over a considerable period of time (that is between April 2003 and August 2005). The matters which the Arbitrator ultimately determined as being relevant to the Respondent’s allegation of injury appear in his Reasons and may be summarised as follows:
(i)The “SARs incident” which “precipitated” the Respondent’s transfer to Mackay (transcript page 40, line 50).
(ii)The Respondent’s experience of resentment of employees at Mackay (transcript page 141, line 17).
(iii)The Respondent’s hours of work and his workload (transcript page 142, line 25).
(iv)The safety (asbestos) issue that arose at Lismore, NSW in November 2004 (transcript page 142, line 39).
(v)The Respondent’s experiences whilst working at Tomago (transcript page 143, line 5 to page 144, line 5).
The Arbitrator summarised his conclusions as to matters of fact at transcript page 144, line 6 to 25 where it was stated:
“A finding as to the relative contributing factors is a
question of fact. It’s a question of impression and
degree. The significant factors to me that contributed to
10Mr Gower’s depression are, I’m satisfied on the balance
of probabilities, his concern at what occurred both at
the meeting at which he asked the SARS question and the
comments that were made to him immediately thereafter in
the days thereafter; his overwork, or his burdensome15workload in the period August 2003 through to December
2003, preceding that, the transfer and the circumstances
surrounding his transfer to Mackay; as I said, the
workload, his workload between August 2003 and December
2003 and again when he was transferred to Tomago in May202005; the conflict he endured, or the resentment he
endured whilst at Mackay and also at Tomago, and that’s
conflict both between the WorleyParsons employees and
with Mr Thomas – those, to my mind, are the significant
relative contributing factors to his major depression.”
It is my view that the “facts and circumstances” relevant to a consideration of the right to and extent of any entitlement to cross-examine a witness are those matters which, ultimately, were determined by the Arbitrator as being relevant to the question of “injury”. Inextricably involved in the determination of such facts was the question of the Respondent’s credibility.
The question of affording a party a right to cross-examination before Tribunals subject to regulation which is somewhat analogous to that relevant to the Commission was considered by the learned author of Natural Justice Principles and Practical Application, Flick (Butterworths 2nd Edition) where, following a consideration of authority, it was stated (at pages 84 – 85):
“The effect of these cases is that natural justice does not require the opportunity for cross-examination in all cases. Whenever disputed facts are in issue natural justice does require an opportunity to controvert those facts; but cross-examination is only one of the means by which adverse testimony can be tested. Natural justice only requires cross-examination when no other equally effective means for controverting factual material has been made available to an aggrieved party.”
In the present case the Respondent had been questioned extensively by the Arbitrator before leave was granted to Counsel to cross-examine. Whilst it is true as put by the Appellant that the Arbitrator on a number of occasions curtailed that cross-examination the fact remains that Counsel was afforded an opportunity to pursue cross-examination in respect of a number of aspects of the evidence over a reasonably long period of time. In addition to the cross-examination as permitted the Appellant had Statements of its witnesses as above summarised in evidence before the Arbitrator and leave was granted to the Appellant to call those witnesses who were then available to give oral evidence. It is my view that the procedure adopted by the Arbitrator was an “effective means” to permit an attempt by the Appellant to controvert relevant matters of fact as alleged by the Appellant.
With the exception of the line of cross-examination concerning the conflict between Mr De Angelis and the Respondent, it is my view that the balance of the matters mentioned above (paragraph 82) which were the subject of cross-examination addressed the general question of the Respondent’s credibility. The Appellant through its Counsel was attempting to pursue an enquiry as to the true reason for ceasing work, his failure to complain, inconsistencies arising from problems experienced in Mackay and the Respondent’s taking of leave and an exploration as to whether the Respondent had adopted an attitude of resentment against the Appellant. So far as conflict between the evidence of the Respondent and Mr De Angelis it is to be noted that Counsel was afforded an opportunity to test the Respondent and interruption by the Arbitrator took place once the direct conflict had been addressed in questioning and Counsel had proceeded to general questioning (with regard to his ties to Newcastle) apparently for the purpose of testing his general credibility (transcript page 56).
Having regard to the subject matter of cross-examination on the occasions of interruption complained of by the Appellant and having regard to those factual matters ultimately determined by the Arbitrator as being relevant in his conclusion as to the issue of “injury”, it is my view that there has been no denial of procedural fairness by reason of curtailment of cross-examination. As was stated by Bryson JA in Zheng (at paragraph 25):
“… The environment of contestation and the confrontational methods of the common-law trial would not usually be appropriate; there may be issues of kinds which it is appropriate to deal with in that style, and much is left to the discretion of the Arbitrator. The Arbitrator is in a good position to decide on and to impose appropriate controls on the adduction of evidence, by cross-examination or otherwise. The Arbitrator will usually be in a position to perceive whether a wish to pursue an issue has a basis, whether it is a sound basis, whether some issue or line of questions is merely exploratory, or for that matter whether questions are merely the product of inventiveness.”
The Arbitrator had the advantage of not only the written Statements of the various witnesses but the opportunity to question both the Respondent and a number of the Appellant’s witnesses, he had the advantage of observing the witnesses in the course of their evidence as well as the advantage of considering cross-examination as permitted by him of the Respondent by the Appellant’s Counsel. The Arbitrator was thus in a good position (as stated by Bryson JA in Zheng at paragraph 26):
“…to make a judgment about whether treatment or further treatment of any issue or line of enquiry in cross-examination was appropriately to be allowed or to be restricted.”
In summary I reject the Appellant’s submission with respect to denial of procedural fairness founded upon the Arbitrator’s curtailment of the enumerated lines of cross-examination. It should further be noted that I am not satisfied having regard to the record of proceedings that the Arbitrator made, as submitted by the Appellant, “repeated deprecating statements”. The Appellant’s argument that such statements were made and that such led to the “inevitable conclusion” that the Appellant was denied procedural fairness is rejected. That certain tension was present between the Arbitrator and the Appellant’s Counsel is apparent on the face of the transcript of proceedings. Such is not, in my view, of a character as to demonstrate disregard of the requirements of natural justice. A ‘mere lack of nicety’ does not “infringe the requirements of natural justice (see discussion by the High Court in R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546 at 553-554).
The Appellant submits that the Arbitrator’s ultimate determination is so against the weight of evidence as to constitute reviewable error. As was stated by Dr Fleming DP in Rohloff v Diacut Pty Limited (in liquidation) [2005] NSWWCCPD 17 at paragraph 48 (‘Rohloff’):
“Interference with an Arbitrator’s discretionary judgment as to the weight of evidence should only be done where it is manifestly obvious the discretion has so miscarried that it has not been exercised fairly and lawfully.”
The Appellant in its submissions on appeal canvasses both the medical and lay evidence in considerable detail and seeks to reiterate the submissions put to the Arbitrator at the hearing as to the acceptability of the Appellant’s evidence in preference to that of the Respondent. So far as the medical evidence is concerned I am of the view that the Arbitrator’s Reasons reveal that he has given due weight to the evidence of Dr Roberts and that his evaluation of that evidence was made by means of the proper exercise of discretion. So far as the lay evidence is concerned I am of the view that the Appellant has failed to demonstrate that the Arbitrator failed to give due weight to the Statements and oral evidence of those witnesses relied upon by the Appellant. In those circumstances I reject the Appellant’s argument that the Arbitrator’s ultimate findings were against the weight of the evidence.
The Appellant (at submission 33) argues that the Arbitrator demonstrated, when dealing with conflict between Mr De Angelis and the Respondent, “an element of pre-judgment”. Such a submission may only be construed as an allegation of actual bias on the part of the Arbitrator. Such an assertion carries a significant onus, should not be made lightly and cogent evidence of such is required (see discussion by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at paragraph 97 (‘Edmonds’)).
In my view nothing raised by the Appellant in submissions is of such a character as to be capable of discharging the onus upon the Appellant to establish pre-judgment on the part of the Arbitrator amounting to actual bias. Nothing raised by the Appellant, in my view, establishes that the Arbitrator had failed, during the course of the hearing and submissions, to apply a fair and unprejudiced mind to the matters in dispute.
It is submitted by the Appellant that the Arbitrator’s determination of issues relevant to the defence raised pursuant to section 11A of the 1987 Act was “manifestly inadequate”. It is put by the Appellant that “if the transfer to Mackay was causative of injury then it is submitted, as was submitted to the Arbitrator that the Appellant had a complete defence under section 11A of the WCA. Again this issue was ignored in the Determination.”
It is true that in the course of delivering his Reasons the Arbitrator failed to make reference specifically to section 11A of the 1987 Act or of its provisions. Notwithstanding this omission the Arbitrator has dealt with the question of reasonableness of the transfer to Mackay and this appears at transcript page 140, line 50 to page 141, line 16. It was the Arbitrator’s conclusion, having regard to the totality of the evidence, that he did not consider that the transfer to Mackay and the events leading to it were reasonable. Such a finding was, on the evidence, open to the Arbitrator. Having regard to that finding of fact I am unable to accept the Appellant’s suggestion that the defence had been “ignored” by the Arbitrator.
Submission 50(2) again raises the issue of section 11A of the 1987 Act in the context of suggested “reasonable action in either performance appraisal or discipline”. That submission is made with regard to the evidence of Mr Bond’s concern with respect to the Respondent’s “email writing” shortly before he ceased work. Given that the Arbitrator in his Reasons did not treat as relevant to the question of causation of injury the exchanges between Mr Bond and the Respondent concerning the emails, I conclude that the submission concerning this defence is founded upon a matter not relevant to the Arbitrator’s ultimate conclusions. I accordingly reject the Appellant’s submission that failure by the Arbitrator to address this issue constitutes error requiring review of his decision.
Reliance is placed (in submission 54) by the Appellant upon the decision of Townsend. It was stated by Neilson J in Yeo v Western Sydney Area Health Service [1999] NSWCC 1 (‘Yeo’) at [53] that Townsend is:
“…authority for the proposition that a misperception by a worker of otherwise innocuous matter, which misperception leads a worker to develop a psychiatric condition, does not constitute injury arising out of or in the course of employment.”
In the present matter the Arbitrator has concluded that the psychiatric injury suffered by the Respondent came about, in part, by reason of the transfer following “the SARs incident”, the transfer to Mackay which was found not to be reasonable as well as the Respondent’s workload and working hours. It is true that the Respondent’s perceptions were relevant, in part, to his responses to his situation however the question of “perception” in the present matter was not paramount as it was in the matter of Townsend. Dr Roberts rejects the Respondent as being a reliable historian and states that his assertions of disability cannot be accepted. There is no suggestion in Dr Roberts’ evidence that there has been some misperception or misconstruction on the part of the Respondent with respect to his work circumstances during the relevant period. In the circumstances I reject the Appellant’s argument that the Arbitrator has erred in his “approach to causation” by reason of erroneous application of principle.
The Appellants’ “Submissions on Appeal” have been presented in narrative form and there is no clearly enunciated statement of individual grounds upon which challenge is made to the Arbitrator’s Determination. It appears on examination of submissions numbered 56 to 58 that the Appellant is not only challenging the Arbitrator’s application of principle with respect to questions of causation but argues further that his conclusions with respect to injury in terms of the 1987 Act have been reached without provision of adequate reasons. It is asserted by the Appellant that in reaching his conclusion with respect to “injury” the Arbitrator ignored certain aspects of the evidence including the Respondent’s application for a responsible position shortly before ceasing work and the evidence of there being no history of medical treatment of the Respondent prior to his cessation of work.
There exists upon the Arbitrator an obligation to give reasons for his decision and such reasons should be sufficient to enable a party to exercise his right of appeal. As was stated by Mahoney JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 270 following his reference to earlier authority:
“Thus, the statement of reasons may be necessary to enable a party to exercise his right of appeal or such other rights as he may have to contest the decision: this is one of the conventional functions of the requirement.”
As was stated by Meagher JA in Beale v GIO of NSW (1997) 48 NSWLR 430 at 443, (as summarised by Santow JA in Harris v Bulldogs Rugby League Club [2006] NSWCA 53), “reasons need not necessarily be lengthy or elaborate” but “relate to the function to be served by the giving of reasons”. When needing to refer to relevant evidence “there is no need to refer to [it] in detail, especially in circumstances where it is clear that the evidence has been considered”.
The Appellant (at submission 58) accepts that the Arbitrator is “not required to discuss every piece of evidence in the case”. The Appellant’s attack upon the reasoning process rests upon an assertion that considerable attention was given by the Arbitrator to discussing the claim as asserted by the worker but that the Arbitrator did not deal in any substantive way with the issues raised by the Appellant in defence of those allegations. No argument is advanced on behalf of the Appellant that the Arbitrator erred in a relevant sense by addressing the question of whether a psychiatric injury had been sustained by the Respondent before dealing with the facts in dispute. Whilst the Arbitrator’s approach in so determining the dispute between the parties is open to criticism, it is plain that the determination of the question as to whether a psychiatric condition had been sustained by the Respondent was made upon the basis of acceptance of the Respondent’s factual allegations. The Arbitrator’s reasons for acceptance of the Respondent’s case should, in my view, have been more logically addressed prior to determination of the issue as to the existence or otherwise of a psychiatric injury.
It is correct, as submitted by the Appellant, that the Arbitrator made no reference to the Respondent’s application for a “demanding position” shortly before cessation of work nor to the “lack of any medical treatment” sought by the Respondent until after cessation of work. Notwithstanding the Arbitrator’s failure to refer to those matters that had been raised in argument on behalf of the Appellant, the question is whether the Arbitrator has discharged his obligations to state sufficient reasons for his ultimate conclusion. Whilst not expressly stated it is abundantly clear that the Arbitrator has accepted the Respondent as being a witness of truth. The Arbitrator’s conclusion as to the occurrence of “injury” follows a reasoned analysis of the evidence and, whilst there is not an exhaustive appraisal of every aspect of the evidence, I am of the view that the Arbitrator has discharged his obligation with respect to the provision of sufficient reasons for so concluding.
The Appellant (submissions 59 to 63) challenges the Arbitrator’s conclusion that the Respondent, as a result of the subject injury, was totally incapacitated for work. It is submitted that such conclusion conflicts with a suggested concession as to capacity made by the Respondent, that the Arbitrator had misconstrued the evidence of Dr Spruce on this issue and that the Arbitrator had addressed an irrelevant factor namely the Respondent’s arthritic condition and further had speculated as to the consequences of that physical condition.
Both the Arbitrator (transcript pages 24 and 25) and the Appellant’s Counsel (transcript pages 77 to 79) questioned the Respondent with respect to his capacity for work. In addition to that evidence there was before the Commission the medical certificates attached to the Respondent’s original Application and the evidence of both Drs Spruce and Roberts. The Arbitrator’s Reasons reveal an acceptance of the opinion of Dr Spruce in preference to that as stated by Dr Roberts. I reject the suggestion in the Appellant’s submissions that the Arbitrator has in some way misconstrued what was stated by Dr Spruce in his report. The Arbitrator had earlier in his Reasons exhaustively stated the basis upon which he preferred the views of Dr Spruce to those of Dr Roberts. I am of the opinion that such preference as expressed by the Arbitrator was open to him on the evidence. I do not accept that there was any meaningful concession as to capacity for work made by the Respondent in the course of his questioning either by the Arbitrator or Counsel on behalf of the Appellant. Whilst it is correct as stated by the Appellant that the question of capacity for work needs to be addressed in the context of the consequences of the subject injury, the fact remains that the Appellant takes the Respondent as he finds him and it is plain that the Arbitrator’s conclusion as to incapacity is founded upon the Respondent’s psychiatric disability, and that observations relating to his arthritis relate more to an appraisal of the Respondent’s present circumstances. Such a consideration of circumstance is relevant given that the implication of a finding of total incapacity is that a worker has sustained a loss of earning capacity in all fields of employment open to him. It was the Respondent’s assertion in evidence before the Arbitrator that his arthritic condition would prevent him from doing work which he had previously performed as a Bricklayer. It is correct, as submitted by the Appellant, that there is “no medical evidence to suggest that [the Respondent] was physically unable to work ‘in any manual position’.” That observation by the Arbitrator appears in his Reasons (transcript page 145, line 43) and forms part of a summary of the Respondent’s present circumstances. Notwithstanding the Arbitrator’s misstatement as to the Respondent’s evidence as to physical capacity I am of the view that the Arbitrator’s acceptance of both the medical and lay evidence with respect to the question of incapacity permits the conclusion as reached that the Respondent was totally incapacitated. For these reasons I reject the Appellant’s submission that the Arbitrator had erred with respect to his finding of total incapacity.
DECISION
The appeal is unsuccessful. The decision of the Arbitrator dated 3 July 2006 is confirmed.
COSTS
The Appellant is to pay the Respondent’s costs of the appeal as agreed or assessed.
Kevin O’Grady
Acting Deputy President 10 April 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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