Waite v Alcoa of Australia Ltd
[2020] WASCA 1
•17 JANUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WAITE -v- ALCOA OF AUSTRALIA LTD [2020] WASCA 1
CORAM: MURPHY JA
PRITCHARD JA
VAUGHAN JA
HEARD: 4 DECEMBER 2019
DELIVERED : 17 JANUARY 2020
FILE NO/S: CACV 108 of 2018
BETWEEN: TIMOTHY JOHN WAITE
Appellant
AND
ALCOA OF AUSTRALIA LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TROY DCJ
File Number : APP 102 of 2017
Catchwords:
Workers' compensation - Appeal from the District Court - Whether appeal related to question of law - Assessment of medical evidence by arbitrator - Arbitrator's finding that the appellant had not established a personal injury by accident - Whether District Court erred in law in finding that the arbitrator had not erred in law in dismissing appellant's claim - Turns on own facts
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA), s 5(1), s 254
Result:
Appellant's application to adduce additional evidence dismissed
Application for leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | D R Clyne |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Spyker Legal |
Case(s) referred to in decision(s):
AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122
Ambulance Service of NSW v Daniel [2000] NSWCA 116
Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Clark v Flanagan [1934] HCA 73; (1934) 52 CLR 416
Edelsten v Ward (No 1) (1988) 63 ALJR 345
Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55
Goodwin v Commissioner of Police (NSW) [2012] NSWCA 379
McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8
Michaud v Stefanovski [2016] WASCA 85
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
O'Brien Glass Industries Pty Ltd v Bahmad [2001] NSWCA 224
Saunders v Public Trustee [2015] WASCA 203
Warley Pty Ltd v Adco Constructions Pty Ltd (1988) 8 BCL 300
Workers' Compensation (Dust Disease) Board v Kelly [2000] NSWCA 57
JUDGMENT OF THE COURT:
Summary
This appeal is against the decision of Troy DCJ in Waite v Alcoa of Australia Ltd (primary decision).[1] The primary decision concerned an appeal by the appellant against the decision of Arbitrator Nunn in the Workers' Compensation Arbitration Service (arbitrator's decision).[2] The arbitrator had dismissed the appellant's claim for workers' compensation on the bases that (1) the appellant had not established that he had suffered an 'injury', within the meaning of the Workers' Compensation and Injury Management Act 1981 (WA) (Act),[3] as alleged, and (2) in any event, the appellant had claimed for, but was unable to establish, total incapacity, and he had not made or established an alternative claim based on partial incapacity.
[1] Waite v Alcoa of Australia Ltd [2018] WADC 147.
[2] A33756.
[3] Section 5(1) of the Act defines, relevantly for present purposes, 'injury' to mean:
'(a)[A] personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions'.
The appellant now appeals against the primary decision. Pursuant to s 79 of the District Court of Western Australia Act 1969 (WA) and s 254 of the Act, an appeal may be made to the Court of Appeal in respect of a judgment, order or determination in proceedings in the District Court under the Act, but (1) the appeal 'must relate to a question of law', and (2) leave to appeal must be obtained from this court.
For the reasons which follow, the application for leave to appeal should be refused, and the appeal should be dismissed. That is because the grounds of appeal do not in substance relate to any question of law (other than ground 5) and they all have no merit, and, in any event, the appellant did not challenge in the primary court (or for that matter in this court) the arbitrator's alternative basis for dismissing his claim, namely that he had not established, as he had claimed, that he was totally incapacitated for work.
Undisputed background facts
The following facts were undisputed in the arbitration.
The appellant was an employee of Alcoa of Australia Ltd (the respondent). On 7 February 2016, the appellant was at work driving trucks, and was in a queue waiting to be loaded by another employee, Mr Steven Findlay, who was operating an excavator. As Mr Findlay was loading the appellant's truck, part of the excavator's bucket made contact with part of the tray of the truck being driven by the appellant.[4] The only witnesses to the collision were the appellant and Mr Findlay. The appellant was the only witness as to the effect of the collision on him.[5]
[4] Arbitrator's decision [17] - [18].
[5] Primary decision [2].
The appellant reported the collision to dispatch and pulled over. The appellant, his supervisor, and Mr Findlay attended a security office where the appellant received medical attention by a Mr Murray Tompsett, who applied an ice pack to his back and created an incident report that noted that '[t]he bucket of the digger struck the tray of the truck causing the cab to shudder'.[6] The appellant indicated to Mr Tompsett that he had a sore shoulder, although Mr Tompsett did not record this.[7]
[6] Arbitrator's decision [30].
[7] Arbitrator's decision [17] - [18].
The appellant proceeded to work his normal duties until late March 2016. The appellant did not complain of shoulder pain to anyone in this period. The appellant was on break from work in March 2016 when his shoulder froze up and he obtained a first medical certificate. The appellant has not worked since then.[8]
[8] Arbitrator's decision [17] - [18].
The appellant's claim before the arbitrator
The appellant claimed that he had been totally incapacitated for all work since 26 March 2016 and sought weekly payments of compensation and payment of statutory expenses under s 58 and sch 1 cl 17 of the Act.[9]
[9] Arbitrator's decision [3].
The appellant, who was legally represented before the arbitrator, contended:
1.That he had suffered a personal injury by accident to his left shoulder at work on 7 February 2016,[10] and that the injury he suffered on that occasion was a 'soft tissue injury'.[11]
2.In closing submissions, that the 'soft tissue injury' that he suffered on 7 February 2016 was an intrasubstance supraspinatus (tendon) tear, identified in an ultrasound report dated 1 April 2016.[12]
3.That the 'soft tissue injury' on 7 February 2016 led to or triggered two conditions being (1) adhesive capsulitis ('frozen shoulder'), and (2) subacromial impingement.[13]
4.That these two conditions caused his total incapacity since 26 March 2016.[14]
[10] Primary decision [4] - [5].
[11] Arbitrator's decision [84].
[12] Arbitrator's decision [96]; the arbitrator refers to this document as the 'ultrasound of 26 March 2016', however the ultrasound was requested on that date, and it was not collected and reported until 1 April 2016: GB 137.
[13] Primary decision [4].
[14] Arbitrator's decision [129].
The arbitrator's decision
Overview
In summary the arbitrator found:
1.The appellant had not established that the cab of his truck was shaken violently in the incident with the excavator on 7 February 2016.[15]
2.There was insufficient evidence to support a finding as to what likely physiological change occurred in the appellant's shoulder on 7 February 2016, or (if there were a change), whether such a change could have resulted from the appellant being shaken less violently than he alleged.[16]
3.Accordingly, the appellant had not established that he had suffered a personal injury by accident as alleged.[17]
4.If (contrary to the above finding), the appellant had established a personal injury by accident on 7 February 2016, then that injury led to adhesive capsulitis (frozen shoulder) from which the appellant suffers, but it did not lead to subacromial impingement, from which the appellant also suffers.[18]
5.If the appellant had suffered an injury by accident as alleged, leading to adhesive capsulitis (frozen shoulder) and/or subacromial impingement, he had not established that he was totally incapacitated for work from 26 March 2016 as alleged. Nor had he run a case of entitlement based on partial incapacity.[19]
[15] Arbitrator's decision [11], [73], [77].
[16] Arbitrator's decision [124].
[17] Arbitrator's decision [127].
[18] Arbitrator's decision [155] ‑ [156].
[19] Arbitrator's decision [167] - [168], [172], [202] ‑ [208].
The arbitrator's detailed findings are referred to below.
Personal injury by accident
The appellant's reported shoulder pain
At the security office to which the appellant reported after the incident on 7 February 2016, the appellant told Mr Tompsett that he had a 'sore shoulder'.[20] The appellant continued working after that until late in March 2016. The appellant had shoulder pain, but he did not complain about it to anyone.[21]
[20] Arbitrator's decision [17(e)], [52].
[21] Arbitrator's decision [17(f)], [156].
On 9 February 2016, the appellant attended on Dr Rostin. He reported experience of shoulder pain, but when tested by Dr Rostin, he had a full range of movement.[22]
[22] Arbitrator's decision [87], [117].
The appellant later went on leave and experienced a sudden onset of pain whilst at home on Good Friday. He was resting and trying not to use his arm or shoulder at home.[23]
[23] Arbitrator's decision [17(g)], [157] ‑ [158].
It was over the Easter long weekend in 2016 that the appellant's shoulder 'froze up'.[24] On 26 March 2016, the appellant attended on Dr Bailey, his general practitioner,[25] who issued a first medical certificate. Dr Bailey recorded that the appellant had shoulder pain and limited movement, but did not record any diagnosis of his condition or the precise nature of his injury.[26]
[24] Arbitrator's decision [135].
[25] Primary decision [91].
[26] Arbitrator's decision [135].
The appellant has not worked since 26 March 2016.[27]
The excavator incident
[27] Arbitrator's decision [17(g)].
The arbitrator found that although the cab of the appellant's truck did shake in the incident on 7 February 2016, the appellant was not violently shaken as he alleged.[28] The appellant had not established that the cab shook any more than was normal when a load was dropped into the tray of the truck - which involved the cab shaking 'slightly'.[29] (This finding was substantially based on the arbitrator's assessment of the appellant's credibility).[30]
[28] Arbitrator's decision [73], [77].
[29] Arbitrator's decision [47], [76].
[30] Arbitrator's decision [25], [67] ‑ [72].
Further, the appellant did not hit the window of the cab or otherwise strike his shoulder against any part of the cab in the incident with the excavator on 7 February 2016.[31]
The principles concerning 'personal injury by accident'
[31] Arbitrator's decision [115].
The arbitrator said, in effect, that the findings in [17] ‑ [18] above did not, however, necessarily mean that the appellant's case must fail. It may be that the evidence supported a finding that the appellant suffered a personal injury by accident even if the cab was 'merely shaken'. In that regard, it was not necessary for there to be an exact correlation between the facts proved in the evidence and the facts relied on by the medical practitioner in forming their opinion. There only needed to be a 'fair climate' for accepting the experts' opinion.[32]
[32] Arbitrator's decision [78], [80].
The relevant principles concerning a personal injury by accident were set out in the reasons of Toohey J in Ansett Transport Industries (Operations) Pty Ltd v Srdic.[33]
[33] Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41; arbitrator's decision [82].
Having regard to the relevant principles, the arbitrator said it was apparent that a personal injury by accident may exist where there is no more than an internal physiological change that results from some force or pressure exerted within the body. There need not be an external stimuli to render the change. Also, it does not matter if the worker has a predisposing physical condition that renders the worker susceptible to some kind of internal physical injury. The employer is obliged to take the worker as it found him.[34]
The appellant's particularised claim
[34] Arbitrator's decision [83].
The appellant's particulars asserted that the injury suffered was a 'soft tissue injury' that triggered subacromial impingement and adhesive capsulitis. In other words, the subacromial impingement and adhesive capsulitis were sequelae resulting from the injury, and not the injury itself.[35]
[35] Arbitrator's decision [84].
In closing submissions, the appellant's solicitor referred to the relevant soft tissue injury as an 'intrasubstance supraspinatus [tendon] tear', identified in an ultrasound report dated 1 April 2016.[36]
The question of soft tissue injury
[36] Arbitrator's decision [96].
The arbitrator said that the immediate question raised by the appellant for determination (see [9.1] above) was whether the appellant suffered a 'soft tissue injury' on 7 February 2016, and whether that was a sufficient description to constitute the relevant physiological change required to ground a finding that there had been a 'personal injury by accident'.[37]
[37] Arbitrator's decision [85].
To the arbitrator, it appeared uncontroversial that the term 'shoulder injury' was too general a description to permit a finding of what the relevant physiological change was. The arbitrator then said that the question was whether a 'soft tissue injury' was, similarly, too general, or whether the nature of soft tissue injuries could be described as notorious facts, such that a more specific identification of the relevant physiological change was not necessary.[38]
[38] Arbitrator's decision [88] - [89].
The arbitrator said that what was required was precise identification of the internal physiological change said to have occurred on 7 February 2016. Whilst it might be common knowledge that there is a class of injuries encompassed by the term 'soft tissue injury', use of that broad term does not indicate what part of the body was in fact injured.[39] The term 'soft tissue injury' is not in Mosby's Medical Dictionary,[40] and is, rather, a broad description of a type of injury rather than the identification of a specific injury.[41] The arbitrator said, in effect, that without identifying what the particular soft tissue injury was said to be, merely referring to this broad description of a class of non‑bony injury was insufficient to identify the physiological change required to be identified by the term 'personal injury by accident'.[42]
[39] Arbitrator's decision [91] - [92].
[40] Mosby's Medical Dictionary 9th Ed, 2013.
[41] Arbitrator's decision [93].
[42] Arbitrator's decision [94].
The arbitrator then turned to the question of whether there was more specific identification of a physiological change to the appellant's left shoulder. The arbitrator's findings in that regard are set out in [86] below.
The arbitrator concluded:[43]
[T]here is insufficient evidence to support a finding as to what the likely physiological change that occurred in [the appellant's] shoulder on 7 February 2016 might be, or whether such change could result from being shaken less violently than [the appellant] otherwise asserts…
[43] Arbitrators decision [124].
Accordingly, the arbitrator was not satisfied that the appellant had suffered a 'personal injury by accident' within the meaning of the definition of 'injury' in par (a) of that definition in s 5(1) of the Act. The arbitrator noted that the appellant did not put his case on the basis of the definitions of 'injury' in pars (c) or (d) of that definition in s 5(1) of the Act.[44]
Whether the appellant suffered subacromial impingement and adhesive capsulitis
[44] Arbitrator's decision [125] ‑ [127].
The arbitrator, having considered the medical evidence, concluded that the appellant suffered at least the residual effects of an adhesive capsulitis and a subacromial impingement.[45]
Whether the subacromial impingement and adhesive capsulitis resulted from a personal injury by accident on 7 February 2016
[45] Arbitrator's decision [146], [153].
The arbitrator said that as he had found that a personal injury by accident had not been established by the appellant, then neither the subacromial impingement nor the adhesive capsulitis could have resulted from the incident on 7 February 2016.[46]
[46] Arbitrator's decision [154].
Alternatively, the arbitrator said that if he were wrong about there not being a personal injury by accident on 7 February 2016, then he would have accepted that the adhesive capsulitis resulted from that injury, but not the subacromial impingement.[47]
Whether the appellant established total incapacity
[47] Arbitrator's decision [155], [163] - [164], [166].
The arbitrator said that the appellant only advanced his case on the basis of total incapacity, and that he led no evidence of any residual earning capacity. Accordingly, even if an alternative argument were available to him in respect of partial incapacity, there was insufficient evidence to prove that matter.[48] The arbitrator said:[49]
As observed in Mitchell v Canal Rocks Beach Resort[50] a worker who asserts that she is totally incapacitated ought to be prepared for the possibility that an arbitrator may not so find. If no alternative evidence that might support a finding of partial incapacity is led it will not be possible for an alternative finding to be made. The effect of this is that if the worker's claim for total incapacity fails, the worker's claim for weekly payments will fail in its entirety.
[48] Arbitrator's decision [168].
[49] Arbitrator's decision [172].
[50] Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 [54]. In that case, it was held, in effect, that in relation to a case of partial incapacity, the onus is on the worker to establish, for the purposes of cl 7(2) of sch 1 of the Act, what he or she was able to earn 'in some suitable employment or business after the occurrence of the injury': Mitchell [5] ‑ [16], [78] ‑ [84], [107].
The arbitrator examined the evidence of alleged incapacity in detail.[51]
[51] Arbitrator's decision [167] - [208].
The arbitrator found that the appellant had failed to prove that from at least 8 April 2016, being the date that he was initially assessed as having a capacity for modified duties by Dr Rostin, he was totally physically incapacitated for all employment.[52]
[52] Arbitrator's decision [202].
The arbitrator then considered the position with respect to the period 26 March 2016 to 7 April 2016.[53] Whilst the medical certificates issued referred to the appellant being unfit for work, the certificates were not supported by any comments as to the appellant's capacity or otherwise in the reports issued by his general practitioner Dr Bailey or by Dr Lawson‑Smith.[54] The arbitrator was not persuaded that the progress medical certificates properly reflected the appellant's true capacity for employment and he was not satisfied that the appellant had proved that he had been totally incapacitated since 26 March 2016 as alleged.[55]
[53] Arbitrator's decision [203] ‑ [204].
[54] Arbitrator's decision [205] ‑ [206].
[55] Arbitrator's decision [207] ‑ [208].
The arbitrator concluded:[56]
[D]espite finding that [the appellant] suffers from adhesive capsulitis I am not satisfied that [he] has proven that his condition has rendered him totally physically unfit for all employment as he has alleged.
[56] Arbitrator's decision [223].
The findings referred to in [33] - [37] above were not the subject of any challenge in the District Court. Nor, this appeal being an appeal from the decision of the primary judge in the District Court, was there any challenge to those findings in this court.
The appeal to the District Court and the primary decision
The appellant appealed to the District Court. The appeal was governed by s 247 of the Act, which provided, relevantly for present purposes, that leave was required and that the appeal must involve a question of law.
The appellant relied upon 17 grounds of appeal, with one ground, ground 7, containing 10 particulars.[57] The judge found that none of the grounds of appeal revealed any error of law.[58]
The extent of the collision - grounds 1(a), 1(c), 12, 13, 14, 16(a), 16(c)
The grounds
[57] Primary decision [24].
[58] Primary decision [200].
By grounds 1(a) and 1(c), the appellant noted that the arbitrator found that there was a collision between the truck and the excavator, causing the cab of his truck to shake slightly and causing at least some damage to the truck. The appellant submitted that the arbitrator should, as a consequence, have concluded that the truck cab did indeed shake violently as he described in his evidence.[59]
[59] Primary decision [31].
By grounds 12, 13, 14, 16(a) and 16(c), the appellant submitted that the arbitrator erred in reaching adverse conclusions as to his credibility as a witness and in finding Mr Tompsett to be a reliable witness, bearing particularly on the issue of the extent of the collision.[60]
The judge's finding
[60] Primary decision [32].
The judge found that no error of law was established by grounds 1(a), 1(c), 12, 13, 14, 16(a) or 16(c).[61] Each finding was based on evidence and was open to the arbitrator.[62]
Personal injury by accident - grounds 2, 3, 5(a), 7, 16(b)
The grounds
[61] Primary decision [33], [49], [61].
[62] Primary decision [36], [48] - [49], [57].
Grounds 2, 3, 5(a), 16(b) and particulars of ground 7 complained, in effect, that on the evidence, particularly the medical evidence, the arbitrator should have inevitably found that the appellant suffered a personal injury by accident, and necessarily erred in law when he did not so conclude.[63]
The judge's finding
[63] Primary decision [67] - [69], [73], [128], [156], [165], [167], [170], [173].
The judge found that no error of law was established by grounds 2, 3, 5, 16(b) or the relevant particulars of ground 7.[64]
Findings that injury did not arise out of course of employment - grounds 6 and 7
The grounds
[64] Primary decision [72], [127] - [128], [163] - [164], [166], [168] ‑ [169], [172], [174] - [175], [179] - [180].
Ground 6 and particulars of ground 7 alleged that, having found that the appellant may have suffered a left shoulder injury encompassed by the descriptor 'soft tissue injury', the arbitrator then failed to find that this injury arose out of the course of his employment.[65]
The judge's finding
[65] Primary decision [129].
The judge found that ground 6 did not amount to an error of law. The judge referred to the High Court's decision in Military Rehabilitation and Compensation Commission v May[66] and said that had the arbitrator failed to apply May on the question of whether the appellant had sustained a personal injury by accident, the arbitrator would have committed an error of law.[67] But the judge found the arbitrator, in substance, had applied the principles in May. The arbitrator concluded that the appellant had not established, on the evidence, that there had been a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. The judge said that that conclusion did not constitute an error of law.[68]
[66] Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468.
[67] Primary decision [146].
[68] Primary decision [154].
In particular the judge found that (1) the arbitrator did not find that the appellant sustained a soft tissue injury,[69] and (2) the appellant's failure to discharge the burden of proof that he suffered a personal injury by accident which arose out of or in the course of his employment, did not amount to an error of law on the part of the arbitrator.[70] Rather, it was simply a failure of the appellant to discharge the burden of proof on him.[71]
[69] Primary decision [131], [137] - [139].
[70] Primary decision [151] - [153].
[71] Primary decision [129] - [130], [154].
As to grounds 7(b) and 7(h), the judge referred back to his reasons on ground 6.[72]
Failure to set aside a medical report - ground 8
The grounds
[72] Primary decision [164], [175].
Ground 8 alleged that the arbitrator should have disregarded Dr Meyerkort's report entirely, because his prognosis as to recovery was wrong.[73]
The judge's finding
[73] Primary decision [181].
The judge found that the arbitrator's decision not to set aside the report of one medical expert did not constitute an error of law.[74]
Failure to draw inference that injury must have arisen from accident - ground 9
The ground
[74] Primary decision [181] - [183].
Ground 9 argued that, in deciding whether an inference could be drawn that a shoulder injury arose from the events of 7 February 2016, the arbitrator should have had regard to the fact, if the evidence so established, that the appellant had no shoulder injuries of any sort immediately prior to 7 February 2016. In the period closely following the accident, he developed a shoulder injury for which no other explanation emerged from the evidence, which leads to an irresistible inference that the shoulder injury must have arisen from an accident on 7 February 2016.[75]
The judge's finding
[75] Primary decision [184].
The judge found that the fact that the arbitrator was not sufficiently persuaded to find that there had been a personal injury by accident on 7 February 2016, in the sense of a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, did not constitute an error of law.[76]
Arbitrator's reasons unreasonable - ground 17
The ground
[76] Primary decision [186].
Ground 17 complained that the arbitrator's reasoning was so unreasonable that no reasonable arbitrator could have made it.[77] The appellant submitted that there were a 'ridiculous amount of contradictory statements used' and 'every statement [the arbitrator] made … is the complete opposite to the final decision'.[78]
The judge's finding
[77] Primary decision [187].
[78] Primary decision [189].
The judge found that no error of law was made out. The arbitrator properly applied the relevant law, considered all relevant matters, and excluded irrelevant matters.[79]
Arbitrator's reasons inadequate - grounds 4, 10, 11
The ground
[79] Primary decision [190] - [191].
Grounds 4, 10 and 11 complained that the arbitrator's reasons were inadequate.[80]
The judge's finding
[80] Primary decision [192].
The judge found that the appellant had not demonstrated any inadequacy in the arbitrator's reasons and none of those grounds constituted an error of law.[81]
Failure to afford procedural fairness - ground 15
The ground
[81] Primary decision [198].
Ground 15 alleged that the arbitrator denied procedural fairness to the appellant by not allowing his counsel to cross-examine Mr Tompsett on a particular document.[82]
The judge's finding
[82] Primary decision [199].
The judge found that there was no error of law. The arbitrator did not, in fact, prevent cross-examination. Rather, he inquired about relevance and counsel did not press the point any further.[83]
[83] Primary decision [199].
Grounds of appeal and the appellant's submissions
The effect of the appellant's grounds of appeal, understood in the light of his submissions, appears to be as follows.
Ground 1
Ground 1 alleged, in effect, that the judge wrongly referred to and applied the principles outlined by the High Court in May, because May was a case in which there was no medical evidence that the worker had suffered an injury,[84] whereas the appellant had established, on the medical evidence before the arbitrator, that he had suffered a personal injury by accident on 7 February 2016 in the excavator incident.[85]
[84] See, eg, May [66].
[85] Appellant's written submissions, pars 3, 5; appeal ts 4 - 5.
In that regard, the appellant submitted that he had not only suffered pain, but this was 'followed up' with 'medical opinion and medical pathology'.[86]
Ground 2
[86] Appellant's written submissions, par 4; appeal ts 6.
Ground 2 alleged, in effect, that the judge erred in failing to find that a 'soft tissue injury' is an injury within the meaning of the term 'personal injury by accident' in par (a) of the definition of 'injury' in s 5(1) of the Act, because:
1.The arbitrator found that the appellant had suffered a soft tissue injury.[87]
2.A soft tissue injury is anything other than a broken bone and includes (relevantly) damage to tendons, ligaments and muscle.[88] In this case, the soft tissue injury that the appellant suffered on 7 February 2016 was to the tendon and ligaments surrounding his shoulder.[89]
3.A soft tissue injury is a physiological change that falls within the definition of an injury under the Act.[90]
4.The soft tissue injury which he suffered on 7 February 2016 was identifiable in:
(a)an SKG Radiology report dated 1 April 2016, which stated that the supraspinatus tendon appeared irregular and fragmented 'suggestive of intrasubstance tear';[91]
(b)an MRI scan report dated 28 April 2016 which referred to (1) mild supraspinatus and anterior infraspinatus tendinosis - without evidence of tear, (2) mild subacromial subdeltoid bursitis,[92] (3) and the possibility of a low‑grade AC joint sprain injury.[93]
[87] Appellant's written submissions, par 11; appeal ts 9 - 10.
[88] Appellant's written submissions, pars 6 - 8; appeal ts 6.
[89] Appeal ts 13.
[90] Appellant's written submissions, par 11 - 12, 24, 30; appeal ts 9, 17.
[91] GB 137; appellant's written submissions, par 22.
[92] Inflammation of bursa - ie, inflammation of sac or pouch facilitating motion between tendon and bone: Macquarie Online Dictionary.
[93] GB 145; appellant's written submissions, par 21; appeal ts 6 - 8, 11 - 12, 14.
The appellant, having described (without reference to any evidence) the meaning of the terms 'capsulitis' and 'impingement',[94] then referred to Dr Overmeire's report dated 15 February 2017 where Dr Overmeire said that, in his opinion, 'the reported mechanism of injury [reported by the appellant] is consistent with a soft tissue injury to the left shoulder that has triggered an episode of subacromial impingement and adhesive capsulitis'.[95]
[94] Appellant's written submissions, par 9.
[95] GB 175; appellant's written submissions, par 17.
The appellant also referred to a report of Dr Meyerkort who said that capsulitis is currently defined as 'a condition of uncertain aetiology characterised by a significant restriction of both active and passive shoulder motion that occurs in the absence of known intrinsic shoulder disorder'.[96] The appellant then said that there was evidence before the arbitrator and the primary judge that showed that he had restriction of movement in his shoulder showing a physiological change.[97] The appellant referred to the 'Appellant's Schedule in Compliance with Practice Direction 7.4' including (1) Dr Bailey's 'first certificate of capacity' dated 26 March 2016,[98] (2) Dr Overmeire's report, dated 15 February 2017,[99] (3) Dr Phillip's report, dated 17 February 2017,[100] (4) Dr Rostin's report, dated 26 April 2016,[101] (5) Dr Lawson‑Smith's report, dated 21 April 2016,[102] and (6) Dr Fairhurst's report, dated 24 August 2016, which referred to a 'form AMS7' completed by Dr Fairhurst.[103]
[96] GB 151; appellant's written submissions, par 18.
[97] Appellants' written submissions, pars 19 - 20; appeal ts 17 - 18, 24 - 26.
[98] GB 245 - 246.
[99] GB 174 - 175.
[100] GB 183.
[101] GB 143.
[102] GB 138.
[103] GB 164.
The appellant also referred to the differences in opinion between Dr Rostin and Dr Fairhurst on the question of the causes of the appellant's symptoms.[104] Dr Rostin said that the appellant's symptoms appeared to have developed and deteriorated sometime after the incident, which was inconsistent with acute trauma or a sudden aggravation of underlying pathology.[105] On the other hand, Dr Fairhurst said that it was not uncommon for frozen shoulder to arise as a result of trauma.[106]
[104] Appellant's written submissions, pars 27 - 28.
[105] GB 144.
[106] GB 156.
The appellant also submitted, in effect, that the arbitrator erred in fact by not inferring, as a matter of 'common sense', that he had suffered a soft tissue injury on 7 February 2016, given that (1) he did not have a sore shoulder before 7 February 2016, (2) there was a 'severe accident' on 7 February 2016 when he 'got smashed around in the truck', (3) he reported pain to his shoulder following the incident, (4) the ultrasound report dated 1 April 2016 indicated that there was evidence suggestive of intrasubstance tear of the supraspinatus tendon, (5) the MRI report dated 28 April 2016 indicated that he had mild tendinosis and mild bursitis with the possibility of a low‑grade AC joint sprain, and (6) he subsequently developed frozen shoulder and subacromial impingement.[107]
Ground 3
[107] Appellant's written submissions, pars 26, 29; see also appeal ts 12, 19, 27, 29.
Ground 3 alleged that the judge erred in law at [154] of the primary decision in not finding that the appellant's soft tissue injury arose out of or in the course of his employment. The appellant submitted that it was 'perfectly clear' that he had established the accident and the soft tissue injury, and that the primary judge erred in law in finding that the arbitrator had not erred in law in concluding that the appellant had not established a 'personal injury by accident' within the meaning of par (a) of the definition of 'injury' in s 5(1) of the Act on the evidence.[108]
Ground 4
[108] Appellant's written submissions, pars 32 - 34; appeal ts 27 - 29.
Ground 4 alleged in effect that the judge erred in mixed fact and law by failing to find that the arbitrator had erred in law in not concluding that the appellant had discharged his burden of proof in the arbitration.
In this regard, the appellant referred to [129] of the primary decision, in which the judge said:[109]
The error contended for in ground 6 is that having found that Mr Waite may have suffered a left shoulder injury encompassed by the descriptor 'soft tissue injury,' the arbitrator then failed to find that this injury arose out of the course of employment. The fact that an injury arose in the course of Mr Waite's employment was the matter that Mr Waite was required to prove. Mr Waite's inability on the evidence to establish this contention does not amount to an error of law on the part of the arbitrator. Rather it is a simple failure by Mr Waite to discharge the burden that was on him. (emphasis added)
[109] Waite v Alcoa of Australia Ltd [129].
In that regard, the appellant submitted:[110]
This statement is baffling that no errors of law were found. When there is no dispute between the Arbitrator, Respondent or Appellant that there was a collision and there was an accident. The accident was clearly accepted, established and proven and the injury was reported immediately following the accident and has been established and proven through pathology.
Ground 5
[110] Appellant's written submissions, par 38.
Ground 5 alleges that the judge erred in mixed fact and law in finding that the appellant had not established that he was denied procedural fairness in relation to his counsel's cross‑examination of a witness.
The appellant submitted that:[111]
The course of justice was already predetermined through the Interlocutory order so that when [the witness] Murray Tompsett said anything contrary to, 'Yes I would have written it down somewhere, in one of the entries I made' that the recordings could be put to him in cross examination determining credibility and reliability. It was plainly wrong that the Arbitrator questioned this line of questioning and stopped the questioning from continuing. When [the appellant's counsel] replied, 'But Mr Tompsett said that he didn't write anything down about his shoulder' This should have been clearly enough for [the arbitrator] to say continue. How is this not obscuring the course of justice? Especially when [the] course of justice was already predetermined through the interlocutory order.
[111] Appellant's written submissions, par 41.
The appellant essentially submitted that his counsel had been prevented by the arbitrator from cross‑examining on the recordings, and had the cross‑examination been permitted, it would have indicated that Mr Tompsett was not a credible witness on the basis that (the appellant submitted) the evidence given by Mr Tompsett in the arbitration was inconsistent with his responses to questions from the appellant, which the appellant had recorded in 2016.[112]
[112] Appeal ts 32 - 34.
The respondent's submissions and notice of contention
The respondent submitted, in effect, that the judge was correct for the reasons that he gave, and that the appeal to this court did not relate to a question of law.
The respondent also filed a notice of contention to the effect that the judge should also have dismissed the appellant's appeal on the bases that (1) the appellant did not challenge the arbitrator's finding that the appellant had not, in any event, established that he was totally incapacitated as alleged, and (2) the judge should have found that any adhesive capsulitis was not caused by the incident on 7 February 2016.
The respondent also submitted that the matter in [76(1)] above was relevant to the question of leave to appeal, and contended that no substantial injustice would be done if the judge's decision were left unreversed.[113]
[113] Appeal ts 35; respondent's written submissions, pars 47 - 51; WB 37.
Disposition
Leave to appeal
In Engine Protection Equipment Pty Ltd v Miller,[114] this court said:
Apart from the requirement that the appeal relate to a question of law, the power to grant leave to appeal is not expressly confined. Leave to appeal should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave. Relevant matters include, but are not limited to, whether the decision below was wrong, or attended with sufficient doubt to justify leave, and whether a substantial injustice would be done by leaving the decision unreversed. (footnotes omitted)
[114] Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55 [46].
Leave to appeal should be refused, for two reasons. First, for the reasons below at [80] ‑ [109], with the exception of ground 5 none of the grounds of appeal, in substance, relates to a question of law and the grounds (including ground 5) otherwise have no merit. Secondly, the dismissal of the appeal to the primary court, if left unreversed, would cause no substantial injustice to the appellant. That is because the appellant did not, in any event, challenge the alternative basis upon which his claim was dismissed by the arbitrator, namely that he had not established that he was totally incapacitated for work, and he had not made or established an alternative claim based on partial incapacity.
Ground 1
The judge did not err, as alleged by the appellant, in referring to the principles outlined in May. The judge referred to May for the proposition that proof of a 'personal injury by accident' required the appellant to establish, as a fact, some identifiable physiological change or disturbance of the physiological state which arose out of, or in the course of, his employment. The judge noted that the appellant's case was that he suffered an identifiable physiological change when the excavator made contact with the tray of the truck he was driving on 7 February 2016. The judge observed, in effect, that the arbitrator was not satisfied, on the evidence as a whole, that the appellant had established that case.[115] There is no error in that reasoning. The point being made by the judge was that even though the appellant was contending, in his appeal to the District Court, that his evidence was more complete and compelling than the evidence led by the worker in May, that contention did not establish an error of law by the arbitrator in his assessment of the evidence in this particular case. Moreover, ground 1 at bottom criticises the judge's reference to May for the purpose of contending, in this court, that the appellant's evidence in the arbitration was sufficient to establish that he had suffered a personal injury by accident on 7 February 2016. That does not relate to a question of law (see [99] below). Ground 1 should be dismissed.
Ground 2
[115] Primary decision [142] - [154].
Three overarching and related observations should be made about ground 2 at the outset. First, the ground seeks to frame, as an issue for determination in the appeal, a general question as to whether a 'soft tissue injury' is an 'injury' within the meaning of 'personal injury by accident' in par (a) of the definition of 'injury' in s 5(1) of the Act. The primary decision does not raise for determination an issue framed in those terms. The burden of the primary decision was, relevantly, that the appellant had failed to establish, on the evidence before the arbitrator, that he had suffered a personal injury by accident on 7 February 2016. There was no finding, expressly or implicitly, by the primary judge to the effect that a 'soft tissue injury' is not an 'injury' within the meaning of par (a) of the definition of 'injury' in s 5(1) of the Act. Nothing in the appeal to the judge raised, or in the appeal to this court raises, a question of construction in that regard. So understood the ground does not, in substance, relate to a question of law.
Secondly, the ground proceeds on a misconception that the arbitrator found as a fact that the appellant had suffered a 'soft tissue injury' on 7 February 2016. As the judge correctly observed, the arbitrator did not conclude that the appellant had suffered a soft tissue injury on 7 February 2016.[116] The arbitrator found, in terms, that the highest to which the appellant's case rose was that he may have suffered an injury of a kind encompassed by the broad descriptor 'soft tissue injury'.[117] In that respect the premise behind ground 2, and thereby ground 2, again does not relate to a question of law.
[116] Primary decision [131], [137], [139].
[117] Arbitrator's decision [122].
Thirdly, by ground 2, the appellant, in substance, invites this court to review the evidence before the arbitrator afresh, and conclude that on the evidence before the arbitrator, he had established that he suffered an injury by accident on 7 February 2016. That contention does not relate to a question of law, and, again, is accordingly not properly the subject of an appeal to this court.[118]
[118] Section 254 of the Act.
These three overarching observations, at least collectively if not separately, are sufficient to dispose of ground 2. Ground 2 should be dismissed accordingly.
Even putting those matters aside, however, the particular arguments raised by the appellant in respect of ground 2 have no merit for the following reasons.
The arbitrator examined in detail the medical evidence and made findings, relevantly, to the following effect:
1.Although the appellant's solicitor relied upon the relevant personal injury by accident as being the intrasubstance supraspinatus (tendon) tear identified on the ultrasound, the SKG radiologist's report of the ultrasound (dated 1 April 2016) indicated that the findings were only 'suggestive' of a tear. No such tear was identified in the subsequent MRI. Also, the ultrasound did not occur until six weeks after the incident of 7 February 2016 and no physician prior to the ultrasound postulated that there was a tear of the supraspinatus or any other distinct injury. Accordingly, the arbitrator was not satisfied that there was an intrasubstance supraspinatus (tendon) tear, and this matter could not be identified as a relevant 'personal injury by accident'.[119]
2.It may be accepted that the MRI scan of 28 April 2016 (over six weeks after the excavator incident) disclosed mild bursitis and tendinosis, and raised the prospect that the appellant 'may' have suffered a low grade AC joint sprain. But the evidence did not establish that any such sprain had occurred on 7 February 2016. In particular, the evidence of both Dr Phillips and Dr Meyerkort was to the effect that any soft tissue injury suffered on 7 February 2016 would have resolved itself within two to six weeks. Moreover, both Dr Phillips and Dr Meyerkort noted the result of the MRI without suggesting that a low grade AC joint sprain was a soft tissue injury of the kind which they would otherwise have expected to resolve itself within two to six weeks. Accordingly, the evidence did not establish that the appellant had suffered an AC joint sprain on 7 February 2016.[120]
3.The only physician who provided an opinion as to what the soft tissue injury might have been was Dr Phillips. Dr Phillips speculated, in effect, that there might have been a 'soft tissue strain' or a 'soft tissue contusion' affecting the tissues just deep to the point of claimed tenderness, but without affecting the structural integrity of the shoulder joint. The arbitrator said that according to Mosby's Medical Dictionary, the word 'strain' means relevantly 'damage, usually muscular as a result of physical exertion' and that 'contusion', also known as a bruise, is relevantly defined as 'an injury that does not interrupt the integrity of the skin, caused by a blow to the body and characterised by swelling, discolouration and pain'. There was no evidence of discolouration or swelling. Moreover, Dr Phillips' opinion was based on a history, given to him by the appellant, of being 'violently shaken' and being 'bounced around the cab'. The appellant's evidence in that regard was rejected and it was unlikely that the appellant struck his shoulder against any part of the cab, as he had suggested that he may have done, so as to result in a contusion as speculated by Dr Phillips. Accordingly it had not been established that there was a strain or contusion of the left shoulder on 7 February 2016.[121]
4.Also, there was no specific diagnosis of an injury on 7 February 2016 as opposed to the conditions which subsequently developed.[122]
5.Dr Fairhurst said that the appellant 'suffered a left shoulder injury', but did not diagnose what that injury was. He cited radiological findings which appeared to be inconsistent, and in any event did not expressly relate those findings to the events of 7 February 2016.[123]
6.Whilst Dr Overmeire considered that the appellant suffered a 'new injury to his left shoulder in the reported jolting incident', which he described as 'an acute soft tissue injury to the left shoulder', that evidence did not assist in identifying what the particular physiological change might have been.[124]
7.Further, both Dr Fairhurst and Dr Overmeire reported a soft tissue/shoulder injury by reference to the appellant's history of being 'violently' shaken in the cab of his truck. The arbitrator was not satisfied that the appellant was violently shaken. So even if their broad references to 'soft tissue injury' sufficiently described a physiological change for the purposes of 'injury by accident' without identifying what particular soft tissue was injured, no significant weight could be given to their view given their reliance on the unproven history of the accident.[125]
8.The highest the appellant's case rose to was that he may have suffered an injury of a kind encompassed by the broad descriptor 'soft tissue injury'.[126]
[119] Arbitrator's decision [95] ‑ [102].
[120] Arbitrator's decision [103] ‑ [107].
[121] Arbitrator's decision [108] ‑ [116].
[122] Arbitrator's decision [118].
[123] Arbitrator's decision [119].
[124] Arbitrator's decision [120] - [123].
[125] Arbitrator's decision [121] - [123].
[126] Arbitrator's decision [122].
It was in this context that the arbitrator concluded:[127]
[T]here is insufficient evidence to support a finding as to what the likely physiological change that occurred in [the appellant's] shoulder on 7 February 2016 might be, or whether such change could result from being shaken less violently than [the appellant] otherwise asserts[.]
[127] Arbitrators decision [124].
The appellant did not, in this appeal, engage with the detailed findings and reasoning referred to in [86] above.
Further, insofar as the appellant contends,[128] by ground 2, that the evidence in the ultrasound and MRI scan points to error by the judge, the following observations may be made. First, it was the function of the arbitrator, not the judge, to assess the evidence and its weight. Secondly, the appellant's lawyer relied on an intrasubstance supraspinatus tear to the tendon as the physiological change which had occurred on 7 February 2016. However, the MRI report, to which the arbitrator had referred, indicated that there was no such tear. Thirdly, the appellant did not suggest that his case before the arbitrator was that the mild tendinosis and mild bursitis shown in the MRI report on 28 April 2016 themselves constituted an unintended or dramatic physiological change which occurred in the appellant's shoulder on 7 February 2016. Fourthly, there was no medical opinion to the effect that mild tendinosis and mild bursitis could have resulted from a shaking of the truck's cab to the limited extent found by the arbitrator. Also and in any event, the appellant's expert, Dr Lawson‑Smith, said that he was 'not convinced' that the appellant's symptoms were 'all classic for a diagnosis of bursitis and impingement', and that there was 'certainly no cuff tear' that warranted surgical intervention.[129] Finally (as noted earlier at [86.2]), the arbitrator dealt in terms with whether the evidence established the existence of a low‑grade AC joint sprain, and the appellant's submissions failed to engage with the arbitrator's reasoning and finding in that regard.
[128] See [63.4] above.
[129] GB 247.
Insofar as the appellant contends[130] that the evidence that he suffered from capsulitis and subacromial impingement points to error by the judge, the following observations may be made. First, again, it was the function of the arbitrator, not the judge, to assess the evidence and its weight. Secondly, the appellant's case before the arbitrator was that those conditions were triggered by the physiological change to his shoulder which occurred on 7 February 2016. In other words, on the appellant's case before the arbitrator, these conditions emerged subsequent to, and consequential upon, the physiological change which occurred on 7 February 2016. They were not, on the appellant's case before the arbitrator, in themselves the physiological change which had allegedly occurred on 7 February 2016. Thirdly, whilst, as the appellant submits, Dr Overmeire considered that the 'reported mechanism of injury' was consistent with a soft tissue injury which triggered 'an episode of subacromial impingement and adhesive capsulitis', the arbitrator was not bound to accept Dr Overmeire's opinion. The arbitrator was not persuaded that Dr Overmeire's evidence should be accepted because[131] (1) he did not articulate the particular soft tissue injury which triggered these later conditions, and (2) Dr Overmeire's opinion depended upon the history given by the appellant of a 'violent' shaking of the cab, which the arbitrator found had not been established on the evidence.
[130] See [64] above.
[131] See [86.6] ‑ [86.7] above.
Insofar as the appellant relies on the evidence that he subsequently developed restricted movements in his shoulder,[132] the evidence of Dr Rostin, who saw the appellant on 9 February 2016 (two days after the incident), was to the effect that he had a full range of movement with no indication of any impingement or compromised function.[133] The arbitrator was not bound to accept other and subsequent medical evidence of restricted shoulder movement as establishing that a physiological change had occurred to his shoulder in the incident on 7 February 2016.
[132] See [65] above.
[133] GB 143.
The appellant's submission concerning the difference in opinion between Dr Rostin and Dr Fairhurst about the causes of the appellant's symptoms[134] does not assist the appellant. Even if Dr Fairhurst's opinion were to be accepted that it is not uncommon for frozen shoulder to arise as a result of 'trauma', the point remains that it was based on the history given by the appellant, and the arbitrator found, in effect, that the incident on 7 February 2016 did not involve any direct impact to the shoulder, and that the shaking of the cab was not of the magnitude alleged by the appellant.
[134] See [66] above.
Finally, the appellant submits[135] that the arbitrator should have inferred, as a matter of 'common sense', that he had suffered a physiological change to his shoulder on 7 February 2016 from the fact of the excavator incident, the appellant's absence of pain before then and his experience of pain after the incident, the later diagnosis of frozen shoulder and subacromial impingement, and the evidence of mild bursitis and mild tendinosis in the MRI report of 28 April 2016. That submission cannot be accepted. An inference of that kind could not be drawn merely as a matter of common sense, and without the assistance of medical opinion evidence, in the way that the dismemberment of a limb involves a physiological change as a matter of common sense.[136] However, there was some medical evidence from Dr Lawson‑Smith of that nature. Dr Lawson‑Smith referred to the appellant having some clinical features of capsulitis and bursitis, and said that based on the history given by the appellant - that he previously had a normal functioning pain‑free shoulder and he now suffers pain that has only developed since 7 February 2016 - it was 'reasonable that the shoulder injury is related to the work place incident'.[137] Nevertheless, that evidence was qualified by a reference to the history given by the appellant as to the nature and circumstances of the accident, which the arbitrator did not accept. In any event, the arbitrator was not bound to accept that evidence. As noted earlier,[138] the arbitrator examined in detail the medical evidence and explained why he was not satisfied that it disclosed the existence of an injury by accident on 7 February 2016. The appellant's submissions do not engage with the arbitrator's reasoning and findings in that regard.
[135] See [67] above.
[136] May [62], [82].
[137] GB 138.
[138] See [86] - [88] above.
Ground 2 should be dismissed.
Ground 3
Ground 3 does not identify any error by the judge. The judge's finding at [154] of the primary decision was to the effect that the appellant had not established, on the evidence accepted by the arbitrator, that he had sustained a personal injury by accident on 7 February 2016. The judge was not dealing with the question of whether any injury had arisen out of, or in the course of, the appellant's employment. The finding at [154] is directed to the arbitrator's conclusion that the appellant had not established an injury by accident.
Insofar as ground 3 also repeats, in effect, that the judge erred in not finding that the appellant had established before the arbitrator that he had suffered a personal injury by accident on 7 February 2016, this ground is to be rejected for the reasons given under ground 2.
Ground 3 does not relate to a question of law, essentially for the same three overarching and related observations made in relation to ground 2, and otherwise has no merit. It should be dismissed.
Ground 4
Ground 4 does not relate to a question of law.
Whether the evidence ought to have been accepted as sufficient to establish a fact, is itself a question of fact: Clark v Flanagan;[139] Azzopardi v Tasman UEB Industries Ltd;[140] McPhee v S Bennett Ltd;[141] Warley Pty Ltd v Adco Constructions Pty Ltd;[142] Edelsten v Ward (No 1);[143] Ambulance Service of NSW v Daniel;[144] AB v Director of Public Prosecutions;[145] Goodwin v Commissioner of Police (NSW);[146] Workers Compensation (Dust Disease) Board v Kelly[147] and Michaud v Stefanovski.[148]
[139] Clark v Flanagan [1934] HCA 73; (1934) 52 CLR 416, 428.
[140] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 155 ‑ 157.
[141] McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8, 9.
[142] Warley Pty Ltd v Adco Constructions Pty Ltd (1988) 8 BCL 300, 310 - 311.
[143] Edelsten v Ward (No 1) (1988) 63 ALJR 345.
[144] Ambulance Service of NSW v Daniel [2000] NSWCA 116 [52] ‑ [65].
[145] AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 [18].
[146] Goodwin v Commissioner of Police (NSW) [2012] NSWCA 379 [54] ‑ [60].
[147] Workers' Compensation (Dust Disease) Board v Kelly [2000] NSWCA 57 [12].
[148] Michaud v Stefanovski [2016] WASCA 85 [45].
In Azzopardi, Glass JA (Samuels JA agreeing) drew a distinction between the party bearing the onus of proof (in this case, the worker) and the party not bearing the onus of proof (relevantly, the employer). If an arbitrator finds a fact proved, the employer, assuming against itself that the evidence has been accepted, may contend that the evidence is not capable of establishing the fact. That is an error of law. On the other hand:[149]
The party saddled with the onus … cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence … The burden of proof to which the applicant is subjected cannot be masked by the use of double negatives. A purported ground of appeal which submits that there was no evidence that or it was not open to find that the applicant was not injured constitutes a futile attempt to convert a question of fact into a question law by inverting the onus of proof.
[149] Azzopardi (156).
Insofar as ground 4 also implicitly repeats the complaint that the judge erred because the arbitrator failed to accept that the appellant had established his case on the evidence before the arbitrator,[150] the ground has no merit for the reasons given in relation to grounds 2 and 3.
Ground 5
[150] See [71] above.
The 'interlocutory order' referred to in the appellant's submissions in [73] above is a reference to an earlier interlocutory order made by Arbitrator Rutherford on 28 July 2017.[151] On 28 July 2017, Arbitrator Rutherford referred to an interlocutory application by the appellant in which the appellant sought leave to file sound recordings of telephone conversations between himself and Mr Tompsett. The respondent objected to the conversations on the basis that they breached the provisions of the Surveillance Devices Act 1988 (WA). Arbitrator Rutherford noted that counsel for the respondent said that the respondent did not deny that the conversations the subject of the applications had occurred, and that the details of the conversations were set out in the appellant's witness statement and were accepted as accurate. On that basis, Arbitrator Rutherford said that there was no need for the sound recording to be adduced in evidence, but if Mr Tompsett, when giving evidence, denied the accuracy of the conversations in the appellant's witness statement, then the appellant could apply for leave to put the sound recording to him in cross‑examination. On that basis, he adjourned the interlocutory application to the hearing of the arbitration.
[151] GB 116 - 117.
At the hearing of the arbitration before Arbitrator Nunn, the following exchange occurred:[152]
ARBITRATOR: We have an interlocutory application that is still formally outstanding but I understand from the file that really is a non‑issue and falls away and can be dismissed.
[COUNSEL FOR THE APPELLANT]: Yes.
ARBITRATOR: Okay.
[COUNSEL FOR THE APPELLANT]: It can be dismissed but it can be enlivened if we put to Mr Tompsett the conversation and he denies its accuracy.
[152] GB 2 - 3.
In the cross‑examination of Mr Tompsett by counsel for the appellant, Mr Tompsett agreed, as he had stated in his statement, that the appellant had reported that his left shoulder was sore,[153] but Mr Tompsett said that he did not treat the shoulder and did not write down the appellant's complaint about the shoulder.[154]
[153] GB 75.
[154] GB 75 - 76, 79.
Counsel for the appellant asked Mr Tompsett whether the appellant had spoken to him on the telephone and then indicated that she was going to give Mr Tompsett a copy of the appellant's statement to read through in that regard.[155] The arbitrator intervened and the following exchange occurred in the absence of Mr Tompsett:[156]
ARBITRATOR: All right. What are we doing with this …? It is not disputed that they had the conversation.
[COUNSEL FOR THE APPELLANT]: No, that's correct. But Mr Tompsett said he didn't write anything down about the shoulder.
ARBITRATOR: Yes.
[COUNSEL FOR THE APPELLANT]: In here, he said he would have wrote something down. So sir, he was asked about where he would have written it down and he said, 'I don't know until I get the paperwork, so it's got patient'. 'So what does it say then?' That's referring to the ES.
ARBITRATOR: I don't know, in the context of having brought this interlocutory application to secure proof of the fact that Mr Waite told Mr Tompsett he had a sore shoulder, in light of what the evidence that Mr Tompsett has just given, how is this relevant? The evidence he has given under cross‑examination is 'He told me. I made the decision not to write it down because I didn't treat it'. That's exactly consistent with [the appellant's] evidence.
[COUNSEL FOR THE APPELLANT]: All right, sir. I will withdraw the question.
[155] GB 80.
[156] GB 80 - 81.
The primary judge, in dealing with this aspect of the appellant's appeal in the court below, said:[157]
I am far from satisfied that any error of law is established in this regard. The arbitrator did not, in fact, prevent cross‑examination. Rather, he enquired about relevance and counsel [for the appellant] did not press the point any further.
[157] Primary decision [199].
The gravamen of ground 5 is that the judge erred in finding that the arbitrator did not prevent the cross‑examination. A failure to afford a party procedural fairness will constitute an error of law. Accordingly, insofar as, before both the primary judge and this court, the appellant alleged a denial of procedural fairness, the ground relates to a question of law: whether there was a failure to afford procedural fairness. However, in the circumstances of this particular case that contention turned on a question of fact: whether the arbitrator prevented cross‑examination (as the appellant contended) or whether the appellant's counsel did not press the point when the arbitrator raised the utility of the cross‑examination in circumstances where Mr Tompsett had accepted that the appellant had reported that his left shoulder was sore (as the primary judge found).
The judge's finding is plainly correct. While there may be circumstances where a finding as to the credibility of a witness might be vitiated by a denial of procedural fairness,[158] this is not such a case. As the judge correctly found, the arbitrator did not prevent counsel from cross‑examining, and there was no denial of procedural fairness.
[158] O'Brien Glass Industries Pty Ltd v Bahmad [2001] NSWCA 224 [17] - [18].
Ground 5 should be dismissed.
The notice of contention
It is unnecessary to deal with the notice of contention as an alternative basis upon which the primary judge's decision might be upheld. That is because the grounds of appeal lack merit in any event. However, the subject matter of the notice of contention referred to in [76(1)] above is relevant to the question of leave, as discussed in [79] above.
The application to adduce additional evidence
On 14 December 2018 the appellant filed an application in an appeal to adduce additional evidence in the appeal. This application was supported by an affidavit dated 6 December 2018. The additional evidence that the appellant seeks to adduce are annexed to the affidavit and are as follows:[159]
1.Hand written statement authored by the appellant on the day of the incident 7 February 2016.
2.Hand written statement authored by Stephen Findlay on the day of the incident 7 February 2016.
3.Photographs of the truck as damaged by the incident on 7 February 2016.
[159] Appellant's affidavit dated 6 December 2018; YB 3 - 11.
The appellant contended, in effect, that the documents the subject of his application had been improperly withheld from him in the arbitration.[160] The respondent's counsel submitted, in effect, that there was no evidence to support that allegation, and that the documents were, or must have been, known to the appellant's solicitors but they did not seek discovery of them in the context of a jurisdiction in which there is no discovery unless requested.[161] The respondent's counsel also sought to tender a legible copy of the second of the documents referred to in [111] above (Mr Findlay's statement) in the event that the appellant's application were allowed. A legible copy of that document was marked 'MFI1' in the appeal.
[160] Appeal ts 28.
[161] Appeal ts 36 - 37.
The application serves no purpose given that leave to appeal should be refused, at least for the second of the two reasons in [79] above. In any event, the application has no merit. None of the material is fresh evidence.[162] Also, there was no, or at least no cogent, evidence that any of the documents the subject of the application had been improperly withheld from the appellant. Further, the purpose of the evidence was to invite this court to find, as a fact, that the excavator had caused the cab of the appellant's truck to shake violently, and to substitute that finding for the arbitrator's finding.[163] An appeal to this court must relate to a question of law. The proposed additional evidence does not relate to any question of law.
[162] See, generally, Saunders v Public Trustee [2015] WASCA 203 [83] ‑ [90].
[163] The appellant's affidavit, 6 December 2018, YB 3.
Conclusion
For the foregoing reasons, it is appropriate to make the following orders:
1.The appellant's application to adduce additional evidence is dismissed.
2.Leave to appeal is refused.
3.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DM
Associate to the Honourable Justice Murphy17 JANUARY 2020
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