MacLeod v John Radcliffe and Andrew Lye t/as Dripping Wet Surf Company [2013] NSWWCCPD 26

MacLeod v John Radcliffe and Andrew Lye t/as Dripping Wet Surf Company [2013] NSWWCCPD 26

Whether injury received in the course of employment; application of the principles in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

1. 
   made an error of fact in determining that the injury was a leisure activity prior to work;
   
2. 
   made an error of law in deciding the question of whether the applicant was directed to trial the SUP, and
   
3. 
   made an error of law in deciding that the injury did not arise out of or in the course of employment.
   

1. 
   The submission that the Arbitrator erred by failing to attach sufficient weight to the certificate of Dr Gray (actually signed by Dr Daskopoulos) or by accepting the certificate as decisive in resolving the factual dispute between the parties, particularly as it was accepted as a contemporaneous document, was rejected [83].
   
2. 
   The most immediate contemporaneous records were the notes of Manly Hospital where the worker was taken immediate after the accident. Those notes recorded the circumstances of the accident but made no reference to the accident being work related or any use of the SUPs as directed by the employer. It was accepted there were reasons for not drawing any adverse inference in relation to such omission as the worker had been in a serious accident and was no doubt more concerned with treatment than a detailed account of any discussions with his employer. He had also received a blow to the head resulting in some degree of amnesia [84]-[85].
   
3. 
   It was reasonably inferred from the medical certificate that within a matter of days after the accident Mr MacLeod had given a history which was consistent with his evidence. However, the notation recorded was merely Mr MacLeod’s belief that he had been directed to trial the employer’s SUPs. Whether or not that belief was an accurate statement of the fact was for the Arbitrator to determine [86].
   
4. 
   The Arbitrator described the notation contained in the medical certificate as “the strongest evidence in favour of Mr MacLeod’s case”. However, it was inferred from the Arbitrator’s decision that he concluded that the certificate alone was not of sufficient weight to tip the balance in Mr MacLeod’s favour in terms of resolving the factual dispute [87].
   
5. 
   There was no substance to the submission that the Arbitrator incorrectly interpreted Ms Judd’s evidence. Ms Judd stated that she was a friend of Mr MacLeod. On the occasions that she went surfing with him it was at Mr MacLeod’s invitation. She had not previously expressed any interest in purchasing a SUP prior to Mr MacLeod’s invitations. Her evidence could not possibly have led to a conclusion that there was any legitimate expectation that she was a potential purchaser [88].
   
6. 
   Mr MacLeod submitted that the store manager, Mr Plim’s, evidence (which directly contradicted Mr MacLeod’s evidence) was contradictory and should not have been preferred to Mr MacLeod’s evidence on the critical issue, because on the one hand Mr Plim said that he had dismissed the idea of using trials as a means of enhancing the sale of SUPs, yet on the other hand he provided a trial on one occasion [89].
   
7. 
   It was not accepted that Mr Plim’s evidence on the issue was contradictory. The Arbitrator correctly concluded that Mr Plim’s use of the SUPs on the occasion referred to was not undertaken with the prospect of a purchase. Firstly, the gentlemen owned their own SUPs. Secondly, the surf was before working hours. Thirdly, they were members of a South Australian paddleboard club. Fourthly, they had free time whilst in Sydney and wished to see parts of Manly by paddleboard. Last, Mr Plim regarded it as a social occasion and has remained friends with one of the gentlemen [90].
   
8. 
   Mr MacLeod submitted there was another reason for preferring his evidence to Mr Plim’s due to a credit issue in relation to Mr Plim’s evidence. In oral evidence, Mr Plim denied that he was aware that Mr MacLeod had been using the respondent’s SUPs with his friends. However, in his written statement he confirmed that he was aware that the practice had taken place. When the discrepancy was drawn to his attention he readily conceded that he had made an error when giving evidence and agreed that his earlier written statement on the issue was correct, namely, that he was aware that the worker had been using the respondent’s SUPs in the company of his friends. After hearing and seeing Mr Plim give evidence, it was open to the Arbitrator to conclude on balance that the discrepancy did not seriously diminish the weight to be attached to Mr Plim’s evidence [91].
   
9. 
   It was open to the Arbitrator to find that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden: Suvaal v Cessnock City Council [2003] HCA 41; 77 ALJR 1449, Rhesa Shipping Co SA v Edmunds (“The Popi M”) [1985] 1 WLR 948 [92].
   
10. 
    The Arbitrator was correct to conclude that the principles in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473, in the circumstance of this case, did not assist in resolving the critical question concerning any directions given to Mr MacLeod and the trialling of the SUPs [94].
    
11. 
    In Hatzimanolis, the High Court was concerned with the principles to be applied in circumstances where the worker was injured during an interval occurring within an overall period of work and with activities that were engaged in with the employer’s inducement or encouragement [95].
    
12. 
    The evidence established that Mr MacLeod was engaged to work six days per week between 9am and 6pm. The accident occurred before normal working hours. The Arbitrator was correct to reject Mr MacLeod’s Hatzimanolis submission on that basis alone. Even if the injury was sustained in an interval between two discrete periods of work it was still necessary for the worker to establish that he was encouraged or induced to engage in that activity by his employer at the time of the accident [96].
    
13. 
    The evidence relied on by the worker to establish an implied term was the concession by Mr Plim that the use of equipment would be of benefit, Mr Plim’s use of the SUPs with the South Australian gentlemen and the discussions in relation to the demonstration method of selling SUPs [97]. This evidence did not support a conclusion that Mr MacLeod was encouraged or induced to trial SUPs. Although Mr Plim agreed that trialling the equipment would be of benefit there was no evidence that he communicated that to the worker. The evidence was contrary. The Arbitrator’s conclusion that the episode involving the South Australian gentlemen was predominantly a social occasion was open on the evidence [98].
    
14. 
    The Arbitrator correctly observed that whether the activity engaged in by the worker at the time of the accident was at the direction of his employer, involved an acceptance of the worker’s evidence. It was inferred from the decision that the Arbitrator did not accept the worker’s evidence on this point for two reasons. First, he concluded that the worker only used the SUPs when he was in the company of friends and he was socialising. And second, he concluded that Mr MacLeod had misconstrued his conversation with Mr Plim concerning the use of the SUPs [99].
    
15. 
    The Arbitrator considered the circumstances which Mr MacLeod alleged supported his evidence. This included the Arbitrator’s acceptance that Mr MacLeod had used the SUPs before his accident but determined that those occasions were socialising. He did not accept that there was any expectation of Ms Judd purchasing an SUP. He acknowledged the significance of the contemporaneous hospital records but was not satisfied that the medical certificate issued at the hospital was decisive in resolving the conflicting version of events. There was no other evidence to support the claim that trialling the SUPs was an express or implied term of employment [100].
    
16. 
    In circumstances where the Arbitrator had the advantage of seeing and hearing the witnesses give evidence, respect and weight should be given to his to his conclusions; Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531. See also Abalos v Australian Postal Commission [1990] HCA 47; (1988) 171 CLR 167; Devries v Australian National Railways Commission (1993] 177 CLR 472.
    

17. 
    Ground three did not add any additional issues for determination on appeal [104].
    

AHG Services (NSW) Pty Ltd v Milojkovic [2013] NSWWCCPD 25

Section 4 of the 1987 Act; personal injury; disease which is contracted in the course of employment; obligation to state adequate/sufficient reasons for decision.

O’Grady DP

9 May 2013
Facts:
The appellant, AHG Services (NSW) Pty Ltd, was one of three employers of Mr Nenad Milojkovic (the worker) between 2002 and 2010. The worker commenced employment with Automotive Training Group (ATG), as an apprentice motor mechanic in 2002. Upon completion of his apprenticeship in 2006 his services were transferred to an associated company, Kumar Motors (Bankstown) Pty t/as Peninsular Holden (Peninsular Holden). That employment ceased in 2008. The worker then discontinued his employment as a tradesman and, for a number of months in 2008, underwent training with the New South Wales Police Force at Goulburn. He resigned from that traineeship in September 2008. He was then unemployed until he returned to his trade and commenced employment with the appellant on 12 January 2009. He remained in that employment until March 2010. He has not worked since.
The worker alleged that, as a result of his employment duties with each of the three employers, he had received injury to his back. The date of injury was particularised against each employer as being “the period 2002 to 2006”. The evidence indicated that the worker first began to notice problems with his back in or about 2006, as a result of lifting heavy objects. It was not disputed that the worker had received a back disability, but each employer denied liability.
The claim against the employers was defended on their behalf by the one solicitor. It appeared that the insurers were of different identities and as a result a “lead” insurer was appointed by agreement to conduct the defence. It appeared that, in the absence of relevant agreement, no thought had been given to the likelihood of a conflict of interest. In the course of submissions on this appeal, reference was made to the question of “apportionment”. That subject, which necessarily raises conflict in the absence of agreement, was not touched upon during proceedings before the Arbitrator. Another difficulty appeared to have arisen given that the first and third respondents to the worker’s application had, without explanation, not participated in the appeal. Nor had any submission been put on their behalf concerning the failure of the Arbitrator to enter an award in favour of each of those respondents given her ultimate finding that the appellant alone was to meet the terms of the award in favour of the worker.

The matter came before the Commission and a Certificate of Determination was issued by the Arbitrator on 22 January 2013. The Arbitrator made an award against the appellant for payment of weekly benefits for total incapacity of the worker.

The issues in dispute on appeal were whether the Arbitrator erred in:

1. 
   failing to provide adequate reasons for her finding that the worker suffered from an injury of the nature of a disease of gradual process;
   
2. 
   failing to provide a clear finding on the issue of injury generally;
   
3. 
   failing to provide adequate reasons for her finding that the respondent was effectively totally incapacitated as a result of his injury, and
   
4. 
   failing to provide adequate reasons linking the worker’s injury to his subsequent deterioration after ceasing employment.
   

Having regard to the submissions in support of the appeal, it was noted that the real argument advanced was a suggestion that, not only were the Arbitrator’s reasons “inadequate”, but that the evidence did not support the conclusions which she reached in the course of that reasoning. The appellant also suggested error of law in the manner in which the Arbitrator construed and applied s 4 of the 1987 Act, as it was prior to the 2012 amendments.

Held: The Arbitrator’s determination was revoked and the matter was remitted to a different Arbitrator for re-hearing.
The Arbitrator’s findings as to “disease”

1. 
   The Reasons given by the Arbitrator for her finding concerning the occurrence of a “personal injury namely a disease of gradual onset” were stated briefly and without reference to the entirety of the evidence of orthopaedic surgeon, Dr Powell which, the appellant argued, required consideration by the Arbitrator and an expression by her of her evaluation of that evidence as a whole [40].
   
2. 
   The arguments advanced by the appellant concerning alleged deficiencies found in the Arbitrator’s reasoning constituted an attack upon the sufficiency of those Reasons, a concept which was addressed by Santow JA in Haris v Bulldog’s Rugby League Club [2006] NSWCA 53 [41].
   
3. 
   The finding that the worker suffered “a personal injury namely a disease of gradual onset” suggested the occurrence of a frank or discrete injury which had given rise to a disease which had gradually progressed. That suggested that the Arbitrator’s conclusion had been reached by reference to s 4(a) and (b)(i). The “personal injury” was not identified by the Arbitrator other than, as stated by her: “[t]here was no frank injury but the back would have been subjected to micro traumata” [45]. No relevant disease that was said to be causally related to the “micro traumata” was identified by the Arbitrator [46].
   

4. 
   The Arbitrator had found, as a fact, that employment related disease existed in circumstances where Dr Powell expressly eschewed existence of any relevant disease. His evidence did suggest a relationship between work duties and the appearance of symptoms [47].
   
5. 
   The Arbitrator’s failure to make reference to the entirety of Dr Powell’s evidence was misleading in respect of the general tenor of his evidence and its relevance to the Arbitrator’s conclusion as to injury. Whilst an Arbitrator is not bound to accept all of the evidence of a witness, but may accept part and reject other aspects of such evidence (Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167), the present circumstances presented two difficulties. First, the opinion of Dr Powell concerning the limited relevance of work activity to the manifestation of symptoms was not addressed by the Arbitrator. Secondly, a clear opinion expressed by Dr Powell was that existence of the discal damage may not be explained by any relevant disease process. It was thus clear that nothing stated in evidence by Dr Powell supported either the existence of work caused disease (as found) nor any relevant aggravation other than that concerning temporary provocation of symptoms [48].
   
6. 
   The Arbitrator failed to sufficiently state her Reasons for her finding that the worker suffered an injury “being of the nature of a disease of gradual process” [49].
   

The Arbitrator’s “alternative finding”

7. 
   The Arbitrator expressed an “alternative finding” that “the injury was due to the nature and conditions of employment with [the appellant]”. That finding was said to be founded upon the evidence of Dr Giblin, orthopaedic surgeon, and Associate Professor Sheridan, neurosurgeon. No further reasons were stated for reaching that “alternative” finding [50].
   
8. 
   The Arbitrator’s statement that Associate Professor Sheridan’s evidence “unequivocally” supported the worker’s claim that the “back condition is due to the nature and conditions of his employment” plainly misstated the evidence. The only observations found in that evidence concerning causation of injury was the statement “as you know [the worker] injured his back during the course of his work as a motor mechanic”, and later, where it was stated that the CT scan findings were “entirely consistent with his symptoms and his work injury” [52].
   
9. 
   The appellant’s argument that Dr Giblin’s evidence should not be accepted because the history relied upon was wrong, was rejected by the Arbitrator without there being any reasons stated [53].
   
10. 
    The Arbitrator’s failure to address the matters raised by the appellant concerning the probable inaccuracy in Dr Giblin’s history and those matters concerning Associate Professor Sheridan’s evidence, lead to the conclusion that insufficient reasons were expressed by the Arbitrator concerning the “alternative” finding that “the back condition is due to the nature and conditions of [the worker’s] employment” [54].
    

Other matters

11. 
    A suggestion was made by the appellant in submissions that the Arbitrator, given a particular finding that was the subject of challenge, should have “considered apportionment”. That was clearly a reference to the Commission’s power to order apportionment of liability in circumstances addressed by s 22 of the 1987 Act. Whilst there was nothing before the Commission which indicated the existence or otherwise of agreement among the employers concerning liability, it was clear that there existed a real prospect that the terms of Rule 9 of the Revised Professional Conduct and Practice Rules 1995 made by the Council of the Law Society of NSW may require that the solicitors cease to act for all parties [56].
    

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