Shoalhaven City Council v Stevenson [2013] NSWWCCPD 28

Shoalhaven City Council v Stevenson [2013] NSWWCCPD 28

Challenge to factual findings; ss 61 and 261 of the 1998 Act; requirements as to giving notice of injury and making of a claim; obligation to state reasons for decision.

1. 
   her “consideration and determination” of maters in dispute identified as “injury, causation and substantial contributing factor” and “whether [Mr Stevenson] has made a claim for compensation in accordance with the requirements of the Act”;
   
2. 
   her factual finding concerning the occurrence of relevant injury on 25 May 2000 and suggested a reversal of the burden of proof, and
   
3. 
   her failing to consider “whether the injury was in the nature of a disease process and if so whether the appellant was not the last [relevant] employer”.
   

1. 
   On 13 March 2013, the appellant registered an appeal with the Commission against the medical assessment. Commission records indicated that no determination had been made as to whether that appeal should proceed. This was relevant to the order made on appeal confirming the Arbitrator’s order of remitter.
   

2. 
   Mr Stevenson sought to adduce documentary evidence as fresh or additional evidence on appeal, which he unsuccessfully sought to admit during the Arbitration. That evidence was a letter, dated 11 December 2000, sent by the appellant to Mr Stevenson. The letter stated that “Council has accepted liability for this claim”. The appellant opposed the admission of this evidence.
   
3. 
   No explanation was given on the latest application for Mr Stevenson’s failure to adduce the evidence earlier, nor was there such an explanation provided to the Arbitrator when he sought to admit the evidence. In those circumstances, the Commission was not satisfied that the document was not available to Mr Stevenson, and could not reasonably have been obtained by him, before the proceedings conducted before the Arbitrator as is required by the terms of s 352(6) of the 1998 Act [20].
   
4. 
   Bearing in mind that the party seeking leave on appeal was the successful party at first instance, and having regard to the Deputy President’s conclusions with respect to the merits of the appeal generally, it was concluded that the interest of justice did not require that leave be granted to allow the evidence to be admitted (CDJ v VAJ [1998] HCA 67; 197 CLR 172) [23]-[24].
   

5. 
   The appellant correctly stated that proof of the occurrence of injury depended upon acceptance by the Arbitrator of the evidence of Mr Stevenson. The Arbitrator dealt with the question of “injury” and the question of Mr Stevenson’s credit as a witness. Following a consideration of Mr Stevenson’s evidence, including his responses in cross-examination, the Arbitrator concluded that he was a witness of truth. The Arbitrator reached that conclusion notwithstanding matters raised on behalf of the appellant concerning apparent inconsistencies as to dates and description of the occurrence of injury. The Arbitrator addressed the evidence and arguments raised on behalf of the appellant and had stated reasons for her acceptance of Mr Stevenson’s evidence concerning the occurrence of injury [49]. (Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505)
   
6. 
   The Arbitrator’s rejection of orthopaedic surgeon, Dr Smith’s opinion, that Mr Stevenson’s degenerate right knee was “non-work related”, was founded, in part, upon her conclusion that Dr Smith did not have a “thorough history”. The Arbitrator also rejected Dr Smith’s view that the “aggravation” of his right knee arthritis which occurred in 2000 had “resolved”. The Arbitrator’s reasoning demonstrated no relevant error and the appellant’s argument that her finding concerning the occurrence of injury was rejected [50].
   

7. 
   The relevant injury occurred, as found by the Arbitrator, on 25 May 2000. In those circumstances, requirements as to notice of injury are prescribed by s 61 of the 1998 Act [52]. The Arbitrator, following an assessment of the evidence and a determination as to the credibility of Mr Stevenson’s evidence, accepted that Mr Stevenson had made a report to his then supervisor regarding the injury. That conclusion was one open to the Arbitrator on the evidence. It was suggested by the appellant that the Arbitrator’s reasons demonstrated that she had in some way reversed the onus concerning this matter; that submission was rejected. It was appropriate that the Arbitrator, when evaluating the evidence concerning the matter in dispute, made the observation that there was an absence of evidence concerning the issue presented on behalf of the appellant [54].
   
8. 
   The evidence established that Mr Stevenson was referred by her general practitioner, Dr Shaw, for conduct of an x-ray, which took place on 1 September 2000. It was open to inference, and on this appeal it was concluded, that the commencement of treatment concerning Mr Stevenson’s right knee injury received in May 2000, occurred on a date prior to the conduct of the x-ray examination. It was Mr Stevenson’s evidence that he had, before pursuing treatment, arranged to lodge a claim through his supervisor for the purpose of obtaining a claim number. Having regard to the date of the x-ray examination it was clear that, should Mr Stevenson’s evidence be accepted, notice of that claim had been made within six months of the occurrence of injury [56].
   
9. 
   The state of that evidence, together with Mr Stevenson’s evidence, permitted the conclusion that a claim had been made as required by the statute shortly following the subject injury. In those circumstances, Mr Stevenson, having made a claim in 2000, was entitled to the benefit of the provisions of s 261(3) and was thus taken to have complied with his obligations as to making a claim [58].
   

10. 
    The present facts concerned injury occurring to a worker at his place of work, during working hours whilst performing duties. The injury came about, as accepted by the Arbitrator, by reason of the failure of a ladder causing Mr Stevenson to fall. Those facts established beyond doubt that employment was a substantial contributing factor to injury. The Arbitrator’s conclusion concerning the requirements of s 9A was correct and was not disturbed on appeal [63]. (Van Wessem v Entertainment Outlet Pty Ltd [2010] NSWWCCPD 97; 9 DDCR 351)
    

11. 
    No argument concerning the “disease” provisions of the legislation was advanced at the hearing. In the circumstances, the appellant could not raise the issue, with respect to whether the Arbitrator was required to determine whether injury was in the nature of a disease process and, if so, whether the appellant was not the last employer for whom the worker carried out work to the nature of which any such disease is due, on appeal given that it was bound by the manner in which argument was presented before the Arbitrator (Metwally v University of Wollongong (No 2) [1985] HCA 28; 59 ALJR 481). In those circumstances, the arguments advanced concerning this question were rejected [64].