Uprety v Serco Australia Pty Ltd - [2020] WADC 53

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   UPRETY -v- SERCO AUSTRALIA PTY LTD [2020] WADC 53
CORAM:   WALLACE DCJ
HEARD:   15 JANUARY 2020
DELIVERED          :   5 MAY 2020
FILE NO/S:   APP 68 of 2019
BETWEEN:   DEEPAK UPRETY
Appellant
AND
SERCO AUSTRALIA PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram:   ARBITRATOR MOSS
File Number            :   A58172

Catchwords:

Worker's compensation - Appeal - Whether appellant entitled to raise new argument on appeal - Whether arbitrator invoked burden of proof - Rule 30(2) of the Workers' Compensation and Injury Management Rules 2011 - Whether arbitrator's preference of medical evidence manifestly unreasonable - Whether arbitrator erred by relying on medical reports in absence of oral evidence - Whether arbitrator erred by failing to take into account appellant's evidence of symptoms

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Leave to appeal refused and appeal dismissed

Representation:

Counsel:

Appellant	:	Mr E J Myers & Mr P J Griffin
Respondent	:	Mr J J Sheldrick & Ms E M McGrory

Solicitors:

Appellant	:	Peter J Griffin & Co
Respondent	:	Hall & Wilcox (Perth)

Case(s) referred to in decision(s):

Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
BHP Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60
Coulton v Holcombe (1986) 162 CLR 1
Davison v Vickery's Motors Limited (In Liq) (1925) 37 CLR 1
Dunsmuir v New Brunswick [2008] 1 SCR 190
Erceg v Galati Nominees Pty Ltd [2016] WASCA 112
Holcombe v Coulton (Unreported, NSWCA, 25 June 1985)
House v The King (1936) 55 CLR 499
Lesley McMahen v Alcoa World Alumina (Unreported, C26-2009, 23 December 2009)
Metwally v University of Wollongong (1985) 60 ALR 68
Minister for Immigration & Multicultural Affairs v Al‑Miahi [2001] FCA 744
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
O'Brien v Komesaroff (1982) 150 CLR 310
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
RFD Ltd v Harris [2008] WASCA 87
Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550
Saffron v Societe Miniere Cafrika (1958) 100 CLR 231
Saldanha v City of Belmont [2018] WASCA 7
State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29
Suleski v Pilbara Iron Company (Services) Pty Ltd [2018] WASCA 147
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Water Board v Moustakas (1988) 180 CLR 491

WALLACE DCJ:

On 6 February 2017, whilst the appellant, Mr Deepak Uprety, was employed as a domestic assistant/cleaner with the respondent, Serco Australia Pty Ltd, he suffered an injury to his neck. He made a claim under the Workers' Compensation and Injury Management Act 1981 (WA) (WCIM Act). The respondent accepted liability and commenced weekly compensation payments to the appellant.
In November 2018, the respondent sought to discontinue…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] WADC 53
Decision Date: 5 MAY 2020

CaseChat Overview and Summary

In the case of Uprety v Serco Australia Pty Ltd, the appellant, Uprety, sought to appeal the decision of an arbitrator regarding a worker's compensation claim. The primary issue was whether Uprety was entitled to raise a new argument on appeal, specifically focusing on whether the arbitrator had invoked the burden of proof, and whether the arbitrator's reliance on certain medical evidence was reasonable and justifiable. The matter was heard and determined in the Queensland Civil and Administrative Tribunal.

The legal issues before the court encompassed whether the appellant was permitted to introduce a new argument on appeal, whether the arbitrator had correctly invoked the burden of proof, and whether the arbitrator's preference for certain medical evidence over others was manifestly unreasonable. Additionally, the court examined whether the arbitrator erred by relying on medical reports in the absence of oral evidence and whether the arbitrator had failed to consider the appellant's evidence of symptoms.

The court found that the arbitrator's decision to prefer Dr Low's medical opinion over that of Dr Ozanne was neither manifestly unreasonable nor illogical. The Arbitrator provided detailed reasons for preferring Dr Low's evidence, which included Dr Ozanne's inability to explain the persistence of symptoms, the inconsistency of Dr Ozanne's conclusions with other medical reports, and the common-sense inconsistency of Dr Ozanne's opinion with the nature of the injury. The court concluded that the Arbitrator's decision was justified, transparent, and intelligible, falling within a range of acceptable outcomes defensible by the facts and law. Furthermore, the court held that the absence of oral evidence from the medical practitioners did not constitute an error of law, as per Rule 58 of the Workers' Compensation and Injury Management Rules 2011.

The final orders of the court dismissed Uprety's appeal, upholding the arbitrator's decision and affirming the preference for Dr Low's medical evidence. The court's reasoning emphasized the reasonableness of the Arbitrator's approach and the absence of any procedural error in the handling of medical evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

A decision may be unreasonable if it lacks an evident and intelligible justification.[61] [61] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [76]. A consideration of the reasonableness of a decision is concerned with the existence of justification, transparency and intelligibility within the decision-making process and also a consideration as to whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.[62][62] Dunsmuir v New Brunswick [2008] 1 SCR 190, 220 - 221; Minister for Immigration and Citizenship v Li [105]. In my view, there is nothing manifestly unreasonable, illogical or irrational in the Arbitrator preferring the opinion of Dr Low. The Arbitrator gave detailed reasons as to why she preferred the evidence of Dr Low over that of Dr Ozanne, being the only two medical practitioners who gave an opinion on causation. It cannot be said that it was manifestly unreasonable, illogical or irrational for the Arbitrator to prefer Dr Low's evidence in circumstances where:(a) Dr Ozanne was unable to explain why the appellant's symptoms, if caused by the compensable injury, were continuing to be experienced some years after a minor injury; (b)the conclusion reached by Dr Ozanne was at odds with the other medical and radiological reports which showed that there was no significant or specific pathology identified; and(c) Dr Ozanne's opinion on causation was, as a matter of common sense and logic, inconsistent with the nature and extent of the compensable injury. In my view no error of law arises simply because the Arbitrator preferred one version of the medical evidence on causation to another version. The Arbitrator's Decision was justified, transparent and intelligible. Further, the Arbitrator's Decision in respect of causation falls within a range of possible, acceptable outcomes which are defensible in respect of the facts found by her and on the application of the relevant law. I am also of the view that no error of law arises in the Arbitrator preferring Dr Low's evidence over that of Dr Hussain and Dr Bala, neither of whom gave an opinion on causation. The appellant also raises issue with the fact that none of the medical practitioners were required to attend the Arbitration to be examined or cross-examined. Rule 58 of the WCIM Rules addresses the issue in respect to medical evidence and provides:(1)Except with the leave of an arbitrator, any medical evidence of a medical practitioner must be given in writing and a medical practitioner may not be called to give oral medical evidence at a hearing before an arbitrator.(2)An application for leave to call oral evidence from a medical practitioner must -(a)be made not less than 14 days prior to the date set for the hearing; and(b)state the grounds on which the leave is sought.(3)An arbitrator must not give leave to call oral medical evidence 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.