Rules of Engagement – Dealing with Parties’ Submissions

Sydney Catholic Schools Limited v Bridgefoot [2021] NSWPICPD 17

The Respondent was a school teacher who alleged suffering injuries in the course of her employment as follows:

  1. 30 January 2008 – right knee injury sustained while bending down in the classroom.
  2. 30 November 2018 – right shoulder, neck, back and body, and fractured ribs and left shoulder injuries sustained when the bus she was travelling on collided with a brick wall then struck a road sign.
  3. 6 December 2019 – right knee injury sustained when the bus she was travelling on stopped suddenly.

WCC proceedings

The Dispute before the Arbitrator (as they were then known) in the WCC proceedings centred upon whether the Respondent’s total right knee replacement performed in June 2020 was reasonably necessary as a result of her injury on 6 December 2019. The Arbitrator in those proceedings found this surgery to be reasonably necessary, in accordance with the opinion of the Respondent’s treating surgeon, Dr Broe. Dr Wallace, who was qualified by the Appellant, initially agreed with the opinion of Dr Broe, but later changed his opinion on receipt of further treating evidence to the effect that there was no objective evidence of injury to the Respondent’s right knee on 30 November 2018.

The Arbitrator concluded that there was no right knee injury before 6 December 2019, and therefore the surgery was not reasonably necessary as a result of her injury on that date alone.

At the conclusion of the Arbitration hearing on 11 November 2020, the Arbitrator gave ex tempore reasons for his decision and stated that he was satisfied the Respondent had demonstrated on the balance of probabilities the existence of a pathological change in her right knee as a result of injury sustained on 6 December 2019. In giving his reasons however, the Arbitrator noted a report from a neurosurgeon who examined the Respondent in August 2019 and provided a report which noted that she was suffering right knee symptoms related her injury on 30 November 2018. The Arbitrator then provided an addendum to his reasons dealing with the report of the neurosurgeon. He went on to reason that this report must be considered in the context of the Respondent not having required any lengthy periods of time off work nor seeking any ongoing medical attention in relation to her injury on 30 November 2018. The Arbitrator therefore determined the Respondent was suffering no, or “very minor” right knee symptoms prior to December 2019.

Grounds of Appeal

The Appellant asserted that the Arbitrator erred in fact and law in:

  1. failing to properly engage with the submissions made by the Appellant, and the evidence before him, and failing to provide his proper reasons; and
  2. failing to properly consider the report of the neurosurgeon, and in failing to find that the Respondent suffered significant right knee symptoms prior to 6 December 2019.

Presidential Decision

As to Ground 1, Judge Phillips stated that it was incumbent upon the Arbitrator to engage with the issues canvassed by the parties pursuant to the decision of Roche DP in University of New South Wales v Brooks [2014] NSWWCCPD 68. Judge Phillips considered that the Arbitrator was specifically required to deal with the issue of whether the Respondent’s injury on 6 December 2019 had “caused or made a material contribution” to the need for her total knee replacement, per Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49. Judge Phillips referred to the Arbitrator’s reasons and considered that they did not reveal how the Appellant’s argument submitted to him was rejected, having regard to the available medical evidence. Judge Phillips applied Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 in finding that there had been a failure to respond to a substantial, clearly articulated argument relying on established facts, which constituted a constructive failure to exercise jurisdiction and there had therefore been an error of law.

Judge Phillips rejected Ground 2 of the Appeal and stated that the Appellant’s submission that the Arbitrator could not add to his ex tempore reasons once he had completed his delivery of those reasons was not technically correct. He noted that decisions were not entered in the Commission’s records until the issue of a Certificate of Determination and there was no suggestion that any such Certificate had been issued before the Arbitrator embarked upon his additional remarks.

Judge Phillips revoked the Certificate of Determination and remitted the matter to another Member to be dealt with in accordance with his reasons.

Implications

The decision of Judge Philips confirmed that, whilst the decision of the Arbitrator may have been one that was open to him on the facts, the argument advanced by the Appellant about a material contribution had not been dealt with in accordance with the relevant common law authorities, and as a consequence, an error of law had arisen.