Tupaea v Coles Liquor
[2020] WADC 83
•12 JUNE 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: TUPAEA -v- COLES LIQUOR [2020] WADC 83
CORAM: TROY DCJ
HEARD: 6 MAY 2020
DELIVERED : 12 JUNE 2020
FILE NO/S: APP 99 of 2019
BETWEEN: NATHAN TUPAEA
Appellant
AND
COLES LIQUOR
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram: ARBITRATOR FLETCHER
File Number : A60170
Catchwords:
Workers' compensation - Appeal from arbitrator - Whether error of law - Failing to determine existence of alternative s 5(1)(d) injury - Reversal of onus of proof - Whether grounds of appeal challenging factual findings involved errors of law
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA), s 3, s 5, s 32, s 44, s 188, s 213, s 247 and sch 3
Result:
Leave to appeal refused
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Mr A G Illich |
| Respondent | : | Mr A A Nolan |
Solicitors:
| Appellant | : | Eureka Lawyers |
| Respondent | : | Kott Gunning |
Case(s) referred to in decision(s):
A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Beer v Duracraft Pty Ltd [2004] WASCA 192
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
BHP Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60
Carlson v Princess Margaret Hospital (Unreported, WASCA, Library No 930008, 12 January 1993)
Erceg v Galati Nominees Pty Ltd [2016] WASCA 112
Glenister v NMAHS-Mental Health (Graylands Hospital) [2017] WADC 14
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
MacMahon Holdings Ltd v Mckenzie [2018] WADC 28
Marks v Coles Supermarkets [2020] WADC 36
Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Pollock v Wellington (1996) 15 WAR 1
Suleski v Pilbara Iron Co (Services) Pty Ltd [2018] WASCA 147
TROY DCJ:
Introduction
Coles Liquor employed Mr Tupaea at its Liquorland drive-through bottle shop in Woodvale. On 8 February 2019 Mr Tupaea was operating cash register number 3. He alleges that he received an electric shock when his right hand made contact firstly with the cash register draw as he was closing it, and then with the bench top upon which the register was located. He spent the next five days in hospital.
Mr Tupaea contends that the electric shock caused him injury in the form of left facial nerve palsy and right hand hemiparesis within the meaning of compensable 'injury' as defined in s 5(1)(a) of the Workers' Compensation and Injury Management Act1981 (WA) (the Act).[1] The certificate of outcome on conciliation[2] confined the dispute to s 5(1)(a). The written submissions on behalf of Mr Tupaea prior to arbitration however, alleged in the alternative, a recurrence, aggravation or acceleration of a pre-existing disease as an 'injury' as defined in s 5(1)(d).[3]
[1] Applicant's outline of submissions dated 20 September 2019, par 3; Appeal Book page 378 'AB 378'.
[2] Applicant's book of documents pages 3 - 5, AB 55 - AB 57.
[3] Applicant's outline of submissions dated 20 September 2019, pars 3, 9, 11 and 19, AB 378 - AB 380.
The dispute progressed to arbitration. The fundamental issue was whether Mr Tupaea had suffered an electric shock injury. The arbitrator dismissed Mr Tupaea's application for compensation on the basis that he had not discharged the burden of proof on him to show that he suffered an injury as defined in s 5(1)(a).
Mr Tupaea has appealed to the District Court. He requires leave to bring this appeal. The monetary criteria of s 247(2)(a)(i) are met. The real question is whether it can be said that 'a question of law is involved': Section 247(2)(a)(ii). That is a requirement before I can grant leave on any ground.
An appeal involves a question of law where either an error of law, or an error of mixed law and fact is involved.[4]
[4] Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [18] (Wheeler JA).
All Mr Tupaea has to show is that there is a real or significant argument to be put which involves a question of law. I am not bound to accept that questions of law are involved merely because Mr Tupaea has asserted there are such questions. A decision does not involve an error of law unless the error is material to the decision, in the sense that it contributes to the result so that, but for the error, the decision may have been different.[5]
[5] BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [15] (Pullin JA).
Statement of issues
Although Mr Tupaea's primary case was that he received a s 5(1)(a) injury, did the arbitrator fail to consider whether, in the alternative, he sustained a s 5(1)(d) injury? Although Mr Tupaea's counsel did not ask him to do so, was the arbitrator nonetheless obliged to apply s 32, s 44 and sch 3 of the Act so as to place the onus of proof on Coles?
Did the arbitrator err in law in rejecting the evidence of two medical experts relied upon by Mr Tupaea, because that evidence was inconsistent with other evidence? Was there also an error in law in giving no weight to the evidence of an eye witness?
Did the arbitrator err in law in finding that the medical evidence established that Mr Tupaea did not sustain serious injuries of the type that might be expected if he had received an electric shock, when there was no such evidence? Finally, was the arbitrator compelled to reject the evidence of the expert witness called by Coles?
The grounds of appeal
The grounds of appeal as set out in the appeal notice dated 20 December 2019 were amplified significantly in Mr Tupaea's written submissions of 24 April 2020 and then in the course of oral submissions before me. One argument of substance is not reflected in any ground of appeal.
Ground 1
Ground 1 reads:
The learned Arbitrator failed to consider and determine whether the appellant sustained an injury as defined by s 5(d) of WCIMA (the recurrence, aggravation, or acceleration of any pre existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree).
In his reasons, the arbitrator stated at [3]:
Mr Tupaea alleges that the electric shock caused him injury in the form of left facial nerve palsy and right hand hemiparesis within the meaning of compensable 'injury' as defined in s 5(1)(a) of the Act ('the alleged injury').
In his reasons the arbitrator made no reference to s 5(d). Whilst the primary issue undoubtedly was whether there was a s 5(a) injury caused by an electric shock, there was also, initially at least, a live subsidiary issue of whether Mr Tuapea sustained a s 5(d) 'injury'.
Submissions on the nature of the injury before hearing
Mr Tupaea contended that the injury sustained on 8 February 2019 constituted an injury as defined in s 5(a) but, in the alternative, s 5(d).[6] Before the arbitrator he accepted he carried the legal onus of proof to establish that he had sustained an injury.[7]
[6] Appellant's written outline of submissions dated 20 September 2019, pars 3 and 9, AB 378.
[7] Appellant's written outline of submissions, par 14, AB 379.
In written submissions, in advance of the hearing before the arbitrator, counsel for Mr Tupaea contended,
(at) approximately 7:15 a.m. [sic] the applicant suffered an electric shock when he touched the cash register, 'the incident.'[8] As a result of the incident the applicant sustained injuries to his person.[9]
[8] Respondent's written outline of submissions dated 20 September 2019, par 22.
[9] Respondent's written outline of submissions, par 23.
So, the contention prior to the hearing was that the electric shock had caused the s 5(1)(a) injury, or in the alternative the s 5(1)(d) injury.
In its written submissions in advance of the hearing, Coles submitted that:[10]
Any injury sustained by the Applicant (if an injury was sustained at all) is limited to a possible recurrence of a prior Bell's palsy and some modest soft tissue injuries to the neck and right arm. As there was no electric shock injury there cannot be a neurological injury either to the face or arm.
[10] Respondent's written outline of submissions, par 5(b), AB 390.
Submissions during the hearing
In discussions prior to evidence commencing, counsel for Coles acknowledged that Mr Tupaea was,[11]
quite clearly and understandably frightened by what occurred but he did not sustain an electric shock. (Any) injuries that he sustained would be limited to soft tissue injuries to the neck and shoulder and maybe some aggravation of the Bell's palsy, possibly brought on by the shock of the situation which now appears to have ameliorated in any event.
[11] AB 288, ts 8.
Counsel observed, 'that's probably why it's very important you hear from Mr Bright'. Coles relied upon expert opinion evidence from a Mr Travis Parkins and a Mr Hector Bright to refute the allegation that Mr Tupaea received an electric shock. Coles called Mr Bright viva voce but not Mr Parkins.
I note that counsel for Mr Tuapea was not prepared to make a concession that if there had been no electric shock then there could be no neurological injury.[12] The arbitrator had anticipated that position. He permitted Coles to adduce Dr Silbert's report of 5 September 2019 on the basis that,
It somewhat self evidently states that if the applicant did not suffer electric shock he could not have suffered a neurological injury. Of course, at issue in this matter is whether the applicant did suffer an electric shock.
[12] AB 295, ts 15.
The arbitrator also noted that if an electric shock was established, then that aspect of Dr Silbert's evidence would fall away.
In my view, counsel for Mr Tupaea was on notice from that point that, in the event that the arbitrator was not persuaded that the applicant suffered an electric shock, he could not have suffered a neurological injury.
Following the tender of the book of documents, items 1 ‑ 24, counsel called Mr Tupaea to give evidence by tendering his witness statement. The subsequent cross-examination focused entirely on challenging Mr Tupaea's account that he had sustained an electric shock.
Submissions after the hearing
At no point did Mr Tupaea's counsel ever suggest a basis upon which the arbitrator could be satisfied that the alternative s 5(1)(d) injury was established in the event that the arbitrator was not satisfied that there had been electric shock. Mr Tupaea's case on both s 5(1)(a) and s 5(1)(d) was predicated on establishing that there had been an electric shock.
In written closing submissions, counsel for Mr Tupaea focused firstly on the issue of whether or not Mr Tupaea suffered an electric shock in the course of his employment. Secondly, whether his current symptoms and incapacities resulted from that electric shock.[13]
[13] Appellant's closing submissions dated 1 October 2019, par 38, AB 405.
The relevant parts of the closing submissions for Coles,[14] read as follows:
[37]If, as the respondent, submits the evidence establishes the applicant did not sustain an electric shock injury, then what injury did he sustain?
[38]The respondent submits there is only evidence of a pre-existing mild Bell's palsy, of questionable causal connection to the electrical event.
[14] Respondent's closing submissions dated 9 October 2019, pars 37 - 38, AB 414.
In responsive submissions counsel for Mr Tupaea engaged solely on the issue of whether the evidence revealed that there had been an electric shock.[15]
[15] AB 423 - AB 424.
The nature of a hearing before an arbitrator
As has been pointed out on many occasions, pt XI of the Act established a system of dispute resolution intended to be simpler, quicker, and cheaper than traditional litigation. Fundamental to that process is the way that s 188 provides that an arbitrator is to conduct hearings and receive evidence:
Section 188 Practice and procedure, generally
(1)An arbitrator is bound by rules of natural justice except to the extent that this Act authorises, whether expressly or by implication, a departure from those rules.
(2)The Evidence Act (WA) 1906 does not apply to proceedings before an arbitrator and an arbitrator -
(a)is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the arbitration rules make them apply; and
(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(c)An arbitrator may inform himself on any matter as the arbitrator thinks fit.
(3)An arbitrator may -
(a)receive in evidence any transcript of evidence in proceedings before a court or other person or body acting judicially and draw any conclusion of fact from the transcript; and
(b)adopt, as the arbitrator thinks fit, any finding, decision, or judgment of a court or other person or body acting judicially that is relevant to the proceeding.
(4)To the extent that the practice and procedure of an arbitrator are not prescribed under this Act, they are to be as the arbitrator determines.
Part of the purposes of the Act, by s 3(d), is to:
make provision for the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick.
Similarly, s 177(1)(e) of the Act states that adherence to the objects of pt XI:
in the case of arbitration, enables disputes not resolved by conciliation to be determined according to their substantial merits with as little formality and technicality as practicable.
As O'Neal DCJ dryly noted in MacMahon Holdings Ltd v Mckenzie,[16] 'that statutory provision (s 188) is one which parties seem content to abide by in arbitration proceedings, right up to the point that they receive an adverse decision'.
[16] MacMahon Holdings Ltd v Mckenzie [2018] WADC 28 [39].
His Honour also observed at [40]:
The fact that an arbitrator is not bound by the rules of evidence does not of course mean that the principles underpinning those rules should therefore simply be ignored. The historical common sense as to what makes particular evidence persuasive or gives it value for a decision maker, and how contentious facts should be proved to ensure fairness to all concerned, are not to be discarded lightly. Section 188(2)(b) of the Act itself expressly requires that hearings before arbitrators be conducted, 'according to equity, good conscience and the substantial merits of the case …'.
The arbitrator's approach
The arbitrator considered[17] that the fundamental issues were:
(a)Whether Mr Tupaea suffered an electric shock; and if so
(b)Whether he suffered the alleged 'injury'; and if so
(c)Whether incapacity results from the injury; and if so
(d)Whether the resulting incapacity is total and/or partial and the period(s) of total and/or partial incapacity; and
(e)Whether the statutory expenses claimed are 'reasonable'.
[17] At [10] of his reasons, AB 9.
The respondent accepted there was an electrical incident, but disputed whether Mr Tupaea suffered an electric shock. The arbitrator found that as the applicant Mr Tupaea carried the legal onus of proving on the balance of probabilities that he suffered an electric shock causing the alleged injury and resultant incapacity for work. Mr Tupaea adduced no expert opinion evidence, relying upon his own testimony in that regard. As noted, Coles relied upon expert opinion evidence from Mr Parkins and Mr Bright to refute the allegation that Mr Tupaea received an electric shock, although the arbitrator considered there were inadequacies in that evidence: written reasons [12] - [13].
The arbitrator was unable to determine whether it was more probable than not that Mr Tupaea received an electric shock. The onus of proof being on Mr Tupaea, his case therefore failed at the first hurdle: [14].
Mr Tupaea's evidence at its highest established that it was possible that he may have suffered electrocution, but the evidence taken as a whole did not persuade the arbitrator that it was probable that he did so: [85]. Accordingly his application was dismissed.
Conclusion on ground 1
Misunderstanding the nature of the statutory inquiry constitutes an error of law.[18] I am not persuaded that is what occurred here. Rather, the arbitrator focused on the issue actually before him.
[18] Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32 [154] and Suleski v Pilbara Iron Co (Services) Pty Ltd [2018] WASCA 147 [19].
The fundamental problems with this ground is that unless Mr Tupaea establishes that the arbitrator has demonstrably made an error of law in some aspect of his approach, his finding of fact that Mr Tupaea did not suffer an electric shock must stand. And if it does, it logically follows that not only did Mr Tupaea fail to prove his primary case of a s 5(a) injury, but the alternative of a s 5(d) injury would not arise, because it is also factually predicated upon Mr Tupaea having sustained an electric shock.
The argument that Mr Tupaea's employment was a contributing factor, to a significant degree, to the alleged recurrence, aggravation, or acceleration of any pre-existing disease, can only relate to a particular instance occurring during the course of that employment, namely the disputed electric shock.
In circumstances where whether Mr Tupaea sustained an 'injury', as defined by s 5(d) was not a live issue at the hearing, and where the arbitrator was required to determine contentious issues according to their substantial merits with as little formality and technicality as practicable, I am not satisfied that this complaint involves a question of law. Further, subject only to any demonstrable error of law, the arbitrator's finding of fact that Mr Tupaea did not suffer an electric shock would necessarily preclude him finding that there was an injury under either s 5(a) or s 5(d).
Reversal of onus?
There is another aspect which I must mention before I leave ground 1. In his 24 April 2020 submissions, Mr Tupaea raised for the first time an argument that the arbitrator failed to consider the provisions of s 44 and sch 3 of the Act.
In the circumstances here, these provisions when read with s 32 could create a presumption that the process 'exposure to an electrical current' will result in a disease 'the effect of an electric current', resulting from a worker's employment. The onus of proof would then shift to the employer to prove that the disease is not due to the worker's employment.
Mr Tupaea faces a number of fundamental difficulties in this regard. There is no ground of appeal that reflects this contention. An argument that the arbitrator erred in law by not having regard to this potential reversal of onus cannot be accommodated into a ground that complains that the arbitrator failed to consider and determine whether Mr Tupaea sustained a s 5(1)(d) injury.
Secondly, Coles contend that Mr Tupaea should not be permitted to raise an argument on appeal that was not run at the original hearing. It is only in the most exceptional circumstances that a party will be permitted to raise a new argument after the case has been decided against him when he has failed, even if inadvertently, to put the argument during the hearing, when given the opportunity to do so.[19]
[19] A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491 [111].
The opportunity to assert a new case should only be granted where the interests of justice require it and such a course can be taken without prejudice to the defendant. A court is highly unlikely to allow a new argument on appeal where the point, if taken below, might have resulted in additional or different evidence being led.[20]
[20] A v Corruption and Crime Commissioner [114].
Thirdly, and most fundamentally, I do not consider that an error of law is committed when the arbitrator proceeds to determine the fundamental issue in the manner that each party agreed was appropriate. It cannot be an error of law for an arbitrator to 'fail' of his own motion to consider an alternative way in which the injury could be proved. These provisions are not novel. They were considered comparatively recently by O'Neal DCJ in Glenister v NMAHS-Mental Health (Graylands Hospital).[21]
[21] Glenister v NMAHS-Mental Health (Graylands Hospital) [2017] WADC 14.
His Honour observed at [51]:
It must be observed that a legal practitioner hoping to rely on statutory deeming provisions in order to overcome issues of proof would be prudent to have careful regard to the statutory language sought to be relied upon. It might be regarded as a courageous decision, if decision it was, not to seek a certificate from the appellant's medical practitioner in the exact terms required by s 44.
In the present case counsel did not raise s 44 at the hearing, but contends that the arbitrator erred in law in not, nonetheless, applying it of his own volition. Presumably without notice to Coles.
As O'Neal DCJ also observed in Glenister at [86]:
Section 5(1)(c) describes one means of establishing eligibility for compensation for work related illness, where the disease is contracted 'in the course of employment, at or away from his place of employment and to which the employment was a contributing factor ... '. Section 32 and s 44 provide different means for establishing an entitlement to compensation.'
Here, s 5(1)(a) and, in the alternative, s 5(1)(d) describes one means of establishing eligibility for compensation for work related injury. Those acting for Mr Tupaea elected to proceed with those means. Section 32 and s 44 provide different means for establishing an entitlement to compensation.
Even setting to one side the absence of a ground of appeal which permits this argument, no question of law, still less any error of law, is involved when the arbitrator determines the fundamental issue according to the means identified by each party, as opposed to an alternative which no one urged upon him.
It is not necessary to determine Coles' contention that s 44 and sch 3 might apply if one was considering a s 5(c) injury, but do not apply if one is considering a s 5 (d) injury.
Before me there was discussion as to whether the relevant sch 3 process that might arise here, 'workers exposed to electrical currents' means to have actually received an electric shock (as suggested by Coles), or to have been involved in an electrical incident (Mr Tupaea's position).
Whilst it is not necessary to determine the point, having considered Carlson v Princess Margaret Hospital,[22] my provisional view is that it is the latter.
[22] Carlson v Princess Margaret Hospital (Unreported, WASCA, Library No 930008, 12 January 1993) (Pidgeon (1), Franklyn (2) and Murray (3) JJ).
Finally, it is not necessary to consider the potentially interesting question of whether the relevant sch 3 disease in this case, 'effects of electrical currents' can mean anything other than receiving an electric shock. And if so, whether these provisions could be utilised where one is contending for a personal injury by accident, s 5(1)(a).
Ground 1 does not involve a question of law and leave is refused.
Grounds 2 and 3
These grounds can be considered together. Ground 2 reads:
The learned Arbitrator erred in law by failing to discharge the obligation to act judicially to (a) consider relevant evidence and make proper findings; and (b) give adequate reasons for decision.
This inherently vague ground was only clarified in the written submissions of 24 April 2020. It essentially supports ground 3 which reads:
Ground 3
The learned Arbitrator erred in law in discounting and/or rejecting the relevant opinion evidence of the consultant neurologist Dr Goodheart and general practitioner Dr Jenkins, without himself carrying out the necessary foundational fact-finding analysis/evaluation required by law (see Beer v Duracraft Ply Ltd [2004] WASCA 192).
Summary of medical evidence
The medical reports referred to in ground 3 were in the appellant's book of documents.[23] The arbitrator also had before him medical records from Joondalup Hospital, where Mr Tupaea was taken on the night itself, and Sir Charles Gairdner Hospital where he was an inpatient from 9 ‑ 13 February 2019.
[23] AB 79 - AB 84 and AB 85 - AB 99.
There was also a witness statement from Mr Tupaea dated 17 April 2019.[24] Mr Tupaea gave evidence himself but did not call any other witnesses. In describing the key events, Mr Tupaea states that he began to close the register with his right hand and got an 'electric shock buzz'. The workstation began to smoke and blew up. He turned around to put his arm on the wooden workstation top of register 2 when he, 'felt a sharp pain buzz zap go to my right shoulder.'
[24] AB 212.
The respondent placed before the arbitrator medical reports from a neurologist, Dr Peter Silbert dated 26 April, 14 July and 5 September 2019, as well as an EMG report of 4 April 2019 and an MRI report of 11 July 2019. The arbitrator also had reports concerning Coles' investigation into the electrical incident which I will come to later.
The Workers' Compensation and Injury Management Arbitration Rules2011 (WA), made under s 293B of the Act, provide that at arbitration hearings, unless an arbitrator grants leave, any medical evidence of a medical practitioner must be given in writing. Leave must not be granted unless the arbitrator is satisfied that the giving of the evidence will assist in the determination of a dispute in a manner that is fair, just, economical, informal and quick. In the present case all the medical evidence was given in writing.
The Sir Charles Gairdner Hospital inpatient notes[25] for 9 February 2019 refer to a complaint of 'mild pain/tingling on right fingers'. On 11 February 2019 staff recorded ongoing right hand pain and pins and needles.[26]
[25] AB 126.
[26] AB 128.
The discharge summary[27] reveals that Mr Tupaea was admitted on 9 February and discharged on 13 February 2019. On examination to his upper limbs he had right hand numbness, 4/5 power to right hand, 5/5 power to left hand. No cause for his symptoms was identified on an MRI.
[27] AB 162.
Following his discharge, Mr Tupaea represented at 1.14 am on 17 February 2019 and was discharged with medication at 4.35 am.[28] It would seem,[29] that he had 8.5 out of 10 pain to his right hand with similar 'burning' as previously documented.
[28] AB 100.
[29] AB 102.
Dr Jenkins' report
In his 25 March 2018 report,[30] based on an examination of the same day, Dr Evan Jenkins asserts that Mr Tupaea was lucky to survive an electric shock injury on 8 February 2019.
[30] AB 85.
Dr Jenkins stated that the symptoms and restrictions were entirely consistent with an AC electrical shock sustained at work. At page 3 of 7 of Form AMS 7, Dr Jenkins referred to Mr Tupaea reporting that he was transferred to Sir Charles Gairdner Hospital where he was admitted for nine days (it was in fact five days). Mr Tupaea was told there was no abnormal findings in a cranial MRI. He was discharged on approximately 18 February (in fact it was 13 February). Mr Tuapea's current symptoms were variable burning pain in his right hand and most of his right upper arm to the shoulder. Dr Jenkins thought that Mr Tupaea was still in the early stages of recovery.
Dr Goodheart's report
Dr Ross Goodheart saw Mr Tupaea in his rooms on 16 May 2019. On examination Mr Tupaea had difficulty with flexion and extension of fingers on the right side. There was diffuse pain on formal testing. Sensory examination was probably intact. Dr Goodheart referred to the report prepared by the neurologist Dr Carroll on 4 April 2019. He concluded that it is more likely than not that Mr Tupaea suffered an electrical injury to his right hand and arm. Mr Tupaea continued to experience soft tissue symptoms in the right arm on this basis.[31]
[31] AB 80.
In his letter of the same date to Mr Tupaea's general practitioner,[32] Dr Goodheart stated:
Assuming there was some form of electrical injury, the ongoing symptoms are somewhat difficult to explain.
[32] AB 84.
Dr Silbert's reports
On 24 April 2019 Dr Silbert reviewed Mr Tupaea and reported on 26 April 2019.[33] Dr Silbert referred[34] at page 3 to the handwritten notes at Joondalup Hospital Emergency Department on the date of the incident, 8 February 2019, where at 22.30 hours a nurse noted:
no entry or exit wound. Patient seems shaken by events. Some tingling
[33] AB 215 - AB 222.
[34] AB 217, Report of Dr Silbert, page 3.
The emergency department doctor's case notes indicate, 'skin zero burns seen'.[35]
[35] AB 217.
Dr Silbert noted that Mr Tupaea was able to use his right hand when he went to show a photograph using his iPad and that he also used his right hand to adjust his trousers and put on his shirt and shoes.[36] Dr Silbert thought that Mr Tupaea's presentation was unusual and it would be helpful to know the potential of the electric shock injury.[37] Dr Silbert noted non-specific sensory changes in the right upper limb that can at times be seen after an 'electrocution injury', but they usually reflect more secondary factors. The lack of an entry or exit wound would be against a significant electrocution injury.
[36] AB 218, Report of Dr Silbert, page 4.
[37] AB 219.
Dr Silbert acknowledged the possibility of Mr Tupaea developing mild left Bell's palsy after the electrical injury and referred to clarification in terms of the formal report regarding any trauma potential of the electrical injury.[38]
[38] AB 220.
In a supplementary report of 14 July 2019[39] Dr Silbert refers to Professor Carroll conclusions following the EMG report on 4 April 2019:
This study has demonstrated continuity of the left facial nerve from brain stem to facial muscles and has not identified active denervation indicating axonal transaction in any of the nerve branches to the muscle sampled and has shown changes somewhat suggestive of functional inhibition in some muscles and active voluntary closures in other. Recovery can be anticipated.
[39] AB 225 - AB 226.
Dr Silbert agreed with those conclusions and considers them to be consistent with his own earlier interpretations. Dr Silbert notes that the MRI did not identify active denervation in any of the nerve branches to the muscle sampled and showed active voluntary closures in some muscles.
The MRI report was also in the respondent's book of documents.[40] Dr Stephen Davis wrote to Dr Goodheart referring to an examination of 11 July 2019 and to an MRI of the brain and cervical spine, concluding that the MRI shows no significant brain abnormality.
[40] AB 228 - AB 229.
The arbitrator's approach
The arbitrator noted Dr Goodheart's opinion that:[41]
It is more likely than not that Mr Tupaea suffered an electrical injury to his right hand and arm during the course of the incident at work on 8 February 2019. He continues to experience soft tissue symptoms in the right arm on this basis. It is probable that there were some associated soft tissue symptoms in the cervical region and, possibly in the face. There has been a reported facial asymmetry which may be improving. The facial nerve symptoms are still subject to further investigation and observation.
[41] [64] of the decision.
The arbitrator gave that part, rather than the whole, of Dr Goodheart's report very little weight, as inconsistent with the MRI scan and EMG reports: [64].
Dr Goodheart considered Mr Tupaea to be troubled by diffuse discomfort in the right arm suggesting the possibility of a neural hypersensitivity. It is possible that there is some irritation of the autonomic nervous system. Dr Goodheart could not exclude the development of a complex regional pain syndrome. The arbitrator rejected that opinion as speculative, giving it no weight: [65]
By ground 3 Mr Tuapea complains that in rejecting Dr Goodheart's evidence on the basis that it was speculative, the arbitrator did not actually identify the suggested speculation. It is clear to me that the arbitrator considered that passage to be self‑evidently speculative.
The arbitrator gave no weight to some or all of Dr Jenkins' opinion because he had not been provided with Professor Carroll's EMG report of 4 April 2019, excluding nerve injury: [66] - [67].
The arbitrator concluded that in the context of Professor Carroll's EMG report of 4 April 2019[42] and in the context of Dr Silbert's interpretation of that report, attributing Mr Tupaea's symptoms to non‑organic, voluntary/behavioural causes without a physiological basis,[43] the medical evidence as a whole was inconsistent with the history of electric shock provided by Mr Tupaea. Accordingly, the medical evidence relied upon by Mr Tupaea did not make up the shortfall in the evidence required to show that it is more probable than not that he suffered an electric shock: [71].
[42] AB 227.
[43] AB 225 - AB 226.
Reliance on Beer v Duracraft Ply Ltd
An identical ground to ground 3 was recently raised, as ground 9 in Marks v Coles Supermarkets,[44] where Gething DCJ considered the applicability of Beer v Duracraft Pty Ltd [2004] WASCA 192.
[44] Marks v Coles Supermarkets [2020] WADC 36.
The judgments in the case of Beer v Duracraft Pty Ltd re-state settled general principles. Before an expert medical opinion can be of any value, the facts upon which it is founded must be proved by admissible evidence and the opinion must actually be founded upon those facts. So far as the opinion is based on facts 'observed' by the expert they must be identified and admissibly proved by the expert, and so far as the opinion is based on 'assumed or 'accepted' facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it: Murray J at [19]. See also McLure J at [78] ‑ [79].
In Beer the question was whether it was open to the review officer to find that the appellant's psychiatric condition was causally connected with the accident. McLure J (with whom Wheeler J agreed) considered that the compensation magistrate erred in law in his approach and conclusion that the review officer could not rely upon the medical evidence on causation of that psychiatric condition, because it was based on an incomplete history: [66].
As is usual the relevant history supplied by the claimant provided the factual foundation for the statement of expert opinion. In many cases there is not an exact correlation between the facts proven in evidence and the facts relied upon by the medical practitioner upon which his or her opinion is based. The role of the decision maker is to examine any variation between the two in order to assess whether any unproven fact relied on by the medical practitioner or any omission from the material given to him or her renders the opinion inadmissible or of no weight: [80].
Her Honour found that the appellant's failure to refer to the sexual harassment incident was not, once one had regard to all relevant evidence, a material omission which rendered reliance on the expert psychiatric opinion on causation unsafe: [81].
Respective arguments on grounds 2 and 3
In essence Mr Tupaea contends that it is an error of law to reject the entirety, or at the very least a substantial part of a witness' evidence, simply because that evidence is deficient or inconsistent with other evidence in one aspect.
The arbitrator rejected part of Dr Goodheart's evidence on the basis that it was inconsistent with the MRI scan and EMG reports. Mr Tupaea contends that he had a number of different symptoms and these scans only dealt with some of those. The arbitrator did not explain what the alleged inconsistency actually was. Even if there was an inconsistency that would not justify rejecting the entirety of Dr Goodheart's evidence.
Mr Tupaea argues that the arbitrator erred in law in rejecting Dr Jenkins' evidence purely on the basis that he did not review the EMG report, when Dr Jenkins' evidence traversed issues that went beyond what was covered in the EMG.
Mr Tupaea submits that the evidence of all the medical experts is that the EMG self-evidently only relates to the facial nerve. Dr Silbert accepts that it is not the case that the EMG means that Mr Tupaea has not suffered any facial injuries.
Coles submit that the evidence of both Dr Goodheart and Dr Jenkins are inextricably linked to the history of events Mr Tupaea presented to each doctor. Both reports are predicated on certain assumptions. If those assumptions were taken away by the arbitrator's factual findings, nothing would remain in that medical evidence that could independently support the contention that there was an electric shock which caused injury. The criticism of the arbitrator's approach to Dr Goodheart and Dr Jenkins is therefore academic.
Conclusion on grounds 2 and 3
An erroneous (even if that is demonstrated) assessment of the weight to be given to material before a tribunal is not an error of law. There is no error of law simply in making a wrong finding of fact. If there is evidence, or if there are available inferences which compete for the fact‑finder acceptance, no error of law occurs simply because the fact‑finder prefers one version of the evidence to another or one set of inferences to another.
An error of law will only arise if there have been findings of fact made, or inferences drawn, without any evidence to support them.[45]
[45] Erceg v Galati Nominees Pty Ltd [2016] WASCA 112 [31] (judgment of the court).
If a ground of appeal by a party, properly analysed, does not involve a question of law, linguistic gymnastics in the formulation of the ground cannot alter the position. A ground that asserts a decision is against the evidence and the weight of the evidence does not raise an issue involving a question of law. A court, tribunal or statutory decision‐maker does not make an error of law merely because the court, tribunal or decision‐maker finds facts wrongly or upon a doubtful basis.[46]
[46] Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [21] (Buss JA (Wheeler & Pullin JJA agreeing)) cited in BHP Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60 [41].
As a matter of both principle and logic, if there is no proper factual basis for an expert's opinion, the weight to be given to, or probative value of, the expert's opinion will be impacted. As is clear from the decision in Beerthat is a question of degree.
I am not satisfied that the arbitrator gave no weight at all to the opinions of Dr Goodheart and Dr Jenkins.
In his reasons at [66] ‑ [67] it is clear that the arbitrator rejected a particular conclusion reached by Dr Jenkins that it was likely that Mr Tuapea suffered concomitant neurological and soft tissue injuries to his right upper extremity and electrical injuries to his left IIIrd, Vth, VIIth, and possibly IXth or and/or XIIth cranial nerves.
The arbitrator was entitled, and in my view was correct in any event, to conclude that this speculative observation was not borne out by the findings in the 4 April 2019 EMG.
Although Dr Goodheart received the MRI report on or about 11 July 2019 he did not provide any updated report. The arbitrator was entitled to give limited weight to the part of Dr Goodheart's opinion that the arbitrator referred to at [64] given the EMG which preceded Dr Goodheart's report and the MRI which followed it. There is nothing in the EMG report provided to Dr Goodheart that suggests that the facial nerve symptoms are still subject to further investigation and observation.
The arbitrator plainly preferred the evidence of Dr Silbert coupled with the EMG and MRI reports to the evidence of Dr Goodheart and Dr Jenkins. In circumstances where there was evidence which competed for the arbitrator's acceptance, no error of law occurs simply because the arbitrator preferred one version of the evidence to another.[47] The issue of weight was a matter for the arbitrator in the context of all of the evidence.[48]
[47] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 151 (Kirby P); Treby [42]; Brady[5] as cited in Marks[131].
[48] Treby [60]; Erceg [32]; Brady [5].
Adequate reasons
In MacMahon at [63] ‑ [65], O'Neal DCJ discussed the requirement for an arbitrator to give adequate reasons. The principles that his Honour identified obviously apply here.
Section 213(4) provides:
The reason for an arbitrator's decision -
(a)need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so;
(b)need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so;
(c)need not canvas all the evidence given in the case; and
(d)need not canvas all the factual and legal arguments or issues arising in the case.'
In the arbitrator's reasons at [56] ‑ [71] he set out in sufficient detail the medical opinions and evidence relevant to the question of whether that was independent support for Mr Tuapea's contention that he had received an electric shock. The arbitrator adequately explained why he reached his conclusion. Mr Tuapea has not persuaded me that the arbitrator did not discharge his obligations under s 213(4).
Grounds 2 and 3 do not involve a question of law and leave is refused.
I will deal with ground 5 next as it also touches upon the medical evidence.
Ground 5
This ground reads:
The learned Arbitrator denied procedural fairness to the appellant:
(a)in failing to give him, or his counsel, any opportunity to rebut or comment on proposed finding/s before it is made; and/or
(b)in failing to give him any opportunity to reopen his case and lead such further evidence if necessary.
The ground as pleaded is entirely unclear. The complaint, as it emerged in written and oral submissions is that the arbitrator erred in law in finding that the medical evidence established that Mr Tupaea did not sustain serious injuries of the type that might be expected if he had received an electric shock, when there was no such medical evidence. Further, when Mr Tupaea was not given an opportunity to be heard on the issue.[49]
[49] Submissions dated 24 April 2020, pars 69 ‑ 71; ts 22 - ts 23.
The arbitrator found that that the medical evidence strengthened his finding that Mr Tupaea failed to establish that he received an electric shock, in that he did not sustain serious injuries of the type that might be expected if he had received an electric shock: [56].
A denial of procedural fairness constitutes an error of law. Procedural fairness or natural justice lies at the heart of the judicial function. It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it. According to the circumstances, the content of the requirements of procedural fairness may vary.[50]
[50] International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54] (French CJ), cited by Gething DCJ in Marks [89] - [90].
A decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned of the risk of that finding being made or unless the risks necessarily inheres in the issues to be decided or the finding could not reasonably have been anticipated. That does not mean a decision‑maker is required to disclose to a person to whom procedural fairness must be accorded the decision‑maker's mental processes, provisional views or proposed conclusions before a final decision is made.[51]
[51] See cases cited by Gething DCJ in Marks [90].
Evidence/discussion on this point during the hearing and in closings
In exchanges with the arbitrator towards the start of the hearing, counsel for the respondent noted that the lack of electric shock was borne out to some extent (my emphasis) by the lack of burn marks, and lack of entry and exit wounds.[52]
[52] AB 287.
In his evidence before the arbitrator[53] Mr Tupaea described that if felt as though his arm had ripped out of his socket and that his whole arm felt it was on fire. He said he did not know if he was burnt because he was not an expert. It was put to him in cross-examination that 'burn marks are one of the things that you expect when you have an electric shock, you understand that?'[54] Mr Tupaea said, 'yes well I know that yep'.
[53] AB 313.
[54] AB 314.
It is arguable that the only expert evidence on this point, Dr Silbert's observation that the lack of an entry or exit wound would be against a significant electrocution injury, did not justify this question, but there was no objection. Contrary to Mr Tupaea's written and oral submissions on appeal,[55] there was evidence or discussion at the arbitration with respect to what 'might be expected' if a worker suffers an electric shock. I also note that Mr Bright referred in his evidence to, 'seeing people with entry and exit wounds throughout my career'.[56]
[55] [69] and ts 22.
[56] AB 370.
There was considerable material concerning the absence of any physical injuries as Coles noted at [30][57] for example by reference to the Joondalup hospital triage notes.[58] Coles implicitly indicated a reliance on that fact as early as the 15 May 2019 written submissions before conciliation.[59] In closing written submissions after the hearing, Coles' counsel again noted the absence of burns or of entry or exit wounds.[60]
[57] AB 411, Respondent's closing submissions.
[58] AB 168 - AB 170 and AB 172.
[59] AB 48 - AB 49, pars 8 and 13.
[60] AB 391, Respondent's submissions, par 8.
Conclusions on ground 5
Counsel for Mr Tupaea was undoubtedly on notice that the absence of burns or of entry or exit wounds was a live issue and could, if he chose, have made submissions as to the lack of significance of that fact.
I note that in closing submissions at [27](a),[61] Coles submitted that burns or any entry or exit marks are both diagnostic indicators of an electric shock injury. I accept that this submission went beyond the available evidence.
[61] AB 410.
The fundamental problem, however, with this ground is that the arbitrator's conclusion at [56] that medical evidence establishes that Mr Tupaea did not sustain serious (my emphasis) injuries of the type that might be expected if he had received an electric shock was open to him, given Dr Silbert's observation that the lack of an entry or exit wound would be against a significant (my emphasis) electrocution injury.
Ground 5 does not involve a question of law and leave is refused.
Ground 4
This ground reads:
The learned Arbitrator erred in law, and failed to provide adequate reasons, in finding (at [50]) that the evidence of Mr Nathan Howes is of no weight or probative value.
A ground of appeal that a tribunal has failed to take into account a consideration which, in the circumstances, it was bound to take into account, alleges an error of law. It is not sufficient, however, if the consideration is merely one that may properly be taken into account, or that many persons may have taken into account. There is a distinction between failing to take into account relevant considerations which a tribunal is obliged to take into account on the one hand, and failing to take into account a particular piece of evidence, on the other.[62]
[62] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [57] (Buss JA) (Wheeler & Pullin JJA agreeing).
This ground relates to [49] ‑ [50] of the arbitrator's reasons. Coles had relied upon a Coles Liquor investigation report which dates from around 11 February 2019 in which the investigation team was said to be Mr Parker and Mr Bright. Coles further relied upon an undated document entitled 'Electrical review Coles Liquor Woodvale' seemingly authored by Mr Bright.
The arbitrator observed that neither document was prepared in the form of an expert's report with a view to assisting a tribunal of fact with the legal issue of whether Mr Tupaea suffered electrocution [sic] or not. Rather they served the purposes of a broad ranging internal investigation by Coles, and insofar as Coles relied upon them for expert opinion evidence in this matter they were replete with diffuse, inadequately explained technical detail: [34].
Both documents incorporated a copy of a pro forma 'Coles Form: ES ‑ 1' entitled, 'Electrical Contractors REPORT FOR ELECTRIC SHOCK' dated 9 February 2019, signed by Mr Parkins which the arbitrator described as 'Mr Parkins' report': [35].
The arbitrator stated:
[49.]Earlier in the 'Coles Liquor Investigation Report': at RBD page 18 there is the following hearsay account of Mr Howes' evidence which taken at its highest corroborates Mr Tupaea's evidence to the effect that he believed that he had received an electric shock:
Nathan Howes (Team member witness - N.H) remembers turning around after seeing a spark out of their eye and seeing N.T. standing back from register 3 holding their arm. N.T. tells N.H. that they have had an electric shock and N.H. instructs N.T. to go out the back sit down and contact their area manager. Shortly after, N.H. notices that N.T.'s condition is worsening with physical signs - drooping of face.
[50] Insofar this constitutes an opinion by Mr Howes to the effect that Mr Tupaea received an electric shock I find it is of no weight or probative value on the basis that there is nothing to indicate Mr Howes' qualifications or expertise to express the opinion or the basis upon which he formed it.
The investigation report which formed part of the respondent's book of documents, referred to Mr Howes seeing Mr Tupaea standing just back from register 3 holding his arm.[63]
[63] AB 231.
Part of the report is an unsigned incident statement template seemingly provided by Mr Howes on 14 February 2019. Mr Howes states that he saw a spark out of the corner of his eye and heard a 'bang noise'.[64] He turned to see Mr Tupaea standing a few feet back from register 3 holding his hand/arm. Mr Tupaea said to him straightaway that he had just felt an electric shock from the register draw, that he could not move his right hand and was experiencing numbness/tingling. Mr Howes noticed that there was a burning smell around register 3 but no smoke. Approximately 10 or 15 minutes later he noted that the left side of Mr Tupaea's face had started drooping and that Mr Tupaea was complaining of numbness in his face.
[64] AB 246 - AB 247.
Coles submit that the arbitrator was correct in giving no weight to Mr Howes' evidence in circumstances where it is nothing more than a record of a conversation taken down by a third party. In my view this statement was undoubtedly admissible as part of the res gestae. I also note the arbitrator's findings[65] that Mr Tupaea's evidence (in his witness statement) is broadly consistent with Coles' admission that there was a short circuit when he closed the cash register draw, causing an emission of sparks and smoke from the rear of the cash register.
[65] [30].
Mr Tupaea's complains that by his observations at [50], the arbitrator effectively set Mr Howes up as a potential expert witness and then knocked him down by pointing to his lack of qualifications or expertise. The correct approach should have been to simply regard Mr Howes as a witness as to fact. Coles submit that did not have any substantive bearing or effect on the overall outcome of the arbitration.
Conclusion on ground 4
Having found at [31] as matter of fact that Mr Tupaea may well genuinely have believed he suffered an electric shock, the Arbitrator did not at [49] actually reject Mr Howes' evidence, as ground 4 claims. He concluded, as in my view he was entitled to do, that Mr Howes' statement, in particular his description of the facial symptoms, could not permit a conclusion that Mr Tuapea actually suffered an electric shock.
It might have been open to the arbitrator to so infer but it was not an error of law to decline to do so. Still less was the arbitrator, as essentially was urged on me on appeal, to accept every factual observation in Mr Howes' statement and draw every inference favourable to Mr Tupaea, merely because this document formed part of the respondent's book of documents.
Ground 4 does not involve a question of law and leave is refused.
Ground 6
This ground asserts the learned Arbitrator erred in law in failing to correctly apply the principles established in Pollock v Wellington.[66]
[66] Pollock v Wellington (1996) 15 WAR 1.
Again, the nature of the complaint is not apparent from the ground itself. It emerged that the error is said to be not rejecting Mr Bright's expert evidence in its entirety, given the arbitrator's own conclusions that in part, at least, it did not rely on facts proven by admissible evidence and that it was somewhat rambling, disjointed and diffuse. I immediately observe that this does not lead inexorably to a conclusion that his evidence was not comprehensible and was not rationally based as Mr Tupaea essentially contends in his written submissions on appeal.
The arbitrator considered Mr Tupaea's witness statement to be consistent with his contemporaneous statement to Coles dated 11 February 2019. As I have noted the arbitrator accepted that Mr Tupaea may well sincerely believe that he received an electric shock but that did not mean that he had: [28] - [31].
Coles submitted that the evidence establishes that the mains power supply cord from the cash register was connected to a Residual Current Device ('the RCD switch') which in turn was connected to the mains power plug. Coles contended that the short circuit activated the RCD switch, cutting the power supply to the cash register, so that no electric current flowed from the point at which the short circuit occurred to Mr Tupaea via the cash register drawer: [32].
Mr Parkins' report
The arbitrator noted that Mr Parkins was not called as a witness so his report was documentary hearsay. The arbitrator noted that he was not bound by the rules of evidence and may rely upon Mr Parkins' report and accord it such weight as he saw fit: [36].
The arbitrator did rely upon Mr Parkins' report and indeed attributed significant weight to it.[67] As noted, the Evidence Act does not apply to proceedings before an arbitrator. The arbitrator was, however, entitled to have regard to it in determining that he would receive Mr Parkins' report.[68] That was on the basis that even in hearings where the formal rules of evidence are insisted upon, this report would still be prima facie admissible under s 79C(1).
[67] [37](d) of the decision; AB 17 - AB 18.
[68] As the arbitrator did, [37](b).
Mr Parkins' report satisfied certain factors in s 79D(1) to be taken into account in assessing the weight to be given to the evidence, including that it is an objective, contemporaneous record of relevant information obtained in the course of his investigation: [37](c).
Although s 79C ‑ s 79D are not applicable in determining the admissibility of Mr Parkins' report, the arbitrator considered that they served as an indispensable guide to assessing the reliability of Mr Parkins' report.
Section 79D sets out six non‑exhaustive considerations, including whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated.
In his report Mr Parkins concluded as follows:
The team member (Mr Tupaea) went to operate the till at the register and received an electrical shock on the hand from the metal draw whilst closing it. The circuit has an RCD connected. It did not trip. The power cable for the monitor was 'squished' between the till and the cabinet. Operation of the till has caused the insulation to break down exposing a live conductor which came into contact with the till. A protective earth was not correctly wired to exposed metal parts. The RCD did not trip, the circuit breaker did trip.'[69]
[69] AB 248 - AB 250.
Mr Tupaea relies[70] on the first sentence of that passage. Given that Mr Parkins was not an eyewitness, I treat this observation as a statement of the worker's claim, as opposed to a concluded fact.
[70] Written submissions 24 April 2020, par 81.
Mr Bright's evidence
As noted, Coles called Mr Bright as their only viva voce evidence. In his evidence Mr Bright stated that he directed Mr Parkin in a one to one phone conversation and Mr Parkins' test results are documented in Coles Liquor Investigation Report 3234.[71]
[71] AB 352.
Mr Bright's report was not based upon his own observations. He did not attend at the Woodvale store so he did not conduct any personal investigation of the electrical incident. Rather, he directed Mr Parkins' investigation by contemporaneous telephone contact with him, resulting in the Parkins' report: [37](a) and [42].
Mr Bright is Coles' national manager responsible for electrical safety in all Coles' premises. Mr Bright gave evidence explaining and amplifying his earlier unsigned, undated reports entitled 'Coles Liquor Investigation Report 3234, Liquorland Woodvale' and 'Electrical Review Coles Liquor Woodvale 3234L.'[72] He concluded that Mr Tupaea did not suffer an electric shock as alleged. The arbitrator was satisfied that Mr Bright had the relevant qualifications and experience to give expert opinion evidence. No point is taken as to whether Mr Bright lacked the relevant expertise.
[72] AB 350.
Mr Bright's report incorporated a copy of Mr Parkins' report including the statement that the circuit breaker did trip: [43].
Mr Bright testified that, 'the evidence we have on the testing is that the circuit breaker tripped immediately'. He specified a period of 19 milliseconds, so that in that period of time electricity would not have gone into Mr Tupaea's arm.[73] Mr Bright gave further evidence concerning the relevance of Mr Tupaea standing on a rubber mat and wearing rubber shoes.[74]
[73] AB 359 - AB 360.
[74] AB 360.
In re-examination Mr Bright stated that even if current had flowed through Mr Tupaea, if he was standing on a rubber mat and wearing rubber shoes he would not have received an electric shock.[75]
[75] AB 372.
The arbitrator's findings
Contrary to Mr Bright's evidence, the arbitrator found that Mr Tupaea was not protected from electric shock by the correct operation of an RCD. Contrary to Mr Tuapea's submissions the arbitrator was satisfied that he was protected from electric shock by the correct operation of a circuit breaker device: [39].
Mr Bright disagreed with Mr Parkins' conclusion that the RCD did not trip. His report referred to subsequent unspecified investigation and further electrical evidence to suggest that Mr Parkins was either mistaken in that regard or that there was a second RCD device that had tripped, cutting power from the UPS device designed to provide mains power to the cash register. The arbitrator correctly rejected that aspect of Mr Bright's opinion: [46] - [47].
The arbitrator was understandably critical of Mr Bright in relying upon facts obtained from further investigation by unidentified other persons, without adequate explanation of what was the further investigation, how any facts resulting from that investigation were established, or the basis upon which Mr Bright relied upon those facts: [44].
If one disregards those comments, as the arbitrator was correct to do, the significance lies in Mr Bright's agreement with Mr Parkins' observation that the main circuit breaker at the switchboard had tripped: [45] and [47]. That meant that that no electric current would have reached Mr Tupaea via the cash register draw.
Whilst the arbitrator considered that there were considerable problems concerning the weight to be given to the opinions expressed in Mr Bright's report and viva voce evidence, his report and evidence were broadly consistent with Mr Parkins' report in one respect. Namely, that Mr Tupaea was protected by the correct operation of a circuit breaker device cutting the electric current from the mains power supply to the short-circuit at the rear of the cash register draw. Mr Bright's evidence did not detract from the significant weight the arbitrator attributed to Mr Parkins' report.
The arbitrator noted that Mr Tupaea relied upon his own testimony to establish that he received an electric shock: [53]. Although Mr Bright's evidence was flawed due to reliance upon unattributed hearsay information, he partially relied upon Mr Parkins' report to conclude that Mr Tupaea did not receive an electric shock. The arbitrator found that Mr Parkins' report, considered in the context of Mr Bright's report and viva voce evidence, cast significant doubt over Mr Tupaea's assertion that he suffered an electric shock, unsupported as it is by any corroborative expert opinion evidence: [54] ‑ [55].
Conclusions on ground 6
There is a degree of circularity in the way this part of the reasons are expressed. Mr Parkins' report cannot support Mr Bright's evidence which in turn supports Mr Parkins' report. There is, however, no ground of appeal that asserts that the arbitrator was wrong to rely on Mr Parkins' report and specifically on his observation regarding the circuit breaker.
The arbitrator explained his reasons for giving significant weight to Mr Parkins' report at [37] - [38]. There was no challenge to Mr Parkins' expertise and his investigation was contemporaneous, based on direct observations at the scene and seemingly objective. There was no expert evidence to the contrary on behalf of Mr Tupaea.
The arbitrator was entitled to accept as a primary fact Mr Parkins' observation that the circuit breaker did trip. Counsel for Mr Tupaea did not challenge that observation in closing submissions. In so far as Mr Parkins' observation was not self-evident, it was open to the arbitrator to accept that the consequences were as Mr Bright explained in the section of his report quoted at [45] that the circuit breaker had cut the power supply to the cash register: [46].
Obviously such a finding had the capacity to cast significant doubt over Mr Tupaea's assertion that he suffered an electric shock, as the arbitrator so found: [55]. Counsel for Mr Tupaea concentrated all his attack in cross-examination and in closing submissions on Mr Bright whilst not engaging in the critical conclusion reached by Mr Parkins.
The arbitrator found that Mr Bright's report and evidence did not detract from Mr Parkins' important conclusion. The arbitrator was not required to reject (or accept) the entirety of a particular witness's evidence. In reality this ground is a criticism directed to the weight the arbitrator afforded to one aspect of Mr Bright's evidence. It is in effect a complaint about a fact finding exercise engaged in by the arbitrator and thus not an error of law.
Ground 6 does not involve a question of law and leave is refused.
Overall conclusion
None of the grounds of appeal involve a question of law. Accordingly this appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MW
Associate to Judge Troy12 JUNE 2020
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