Qantas Airways Ltd v Coleman (NSWWCCPD 2020)

Key Takeaways

In determining the nature and extent of injuries sustained in a work related incident there are often issues as to the actual body parts for which a claim can be made.

In a recent decision in the WCC, Deputy President Snell held that it was necessary to consider the evidence as a whole on the balance of probabilities when considering whether an inference should be drawn that a worker had injured his left arm as claimed.

Brief Facts

The worker was employed by Qantas as a flight attendant and claimed that he sustained an injury to his right shoulder, right arm and left arm on 20 May 2016 as he was retrieving his own luggage from the overhead cabin.

Liability was accepted for injury to the right arm and right shoulder, but disputed for the left arm.

The worker made a claim in respect of 17% WPI pursuant to s66 of the Workers Compensation Act 1987, which included 10% in respect of permanent impairment of the left arm.

Arbitrator John Isaksen found that the worker had sustained an injury to the left arm on 20 May 2016 (in addition to the accepted injuries to the right shoulder and right arm) and referred the worker to an AMS for an assessment of WPI.

The respondent appealed the decision on the basis that the Arbitrator had erred by inferring that the worker’s left arm was involved in the incident, and by failing to provide adequate reasons addressing the causal nexus between the left arm condition and the incident on 20 May 2016.

Judgment

Deputy President Snell noted that in determining whether the worker had injured his left upper extremity, Arbitrator Isaksen had referred to Field v Department of Education and Communities (NSWWCCPD 2015) in which Roche DP stated:

It is for the tribunal of fact to assess the reliability of the evidence against the ‘contemporary materials, objectively established facts and the apparent logic of events’.

Adopting this approach, the Arbitrator had referred to contemporary materials which included a claim form and statement of events completed ten days after the incident, which failed to detail injury to the left arm.

However, on the worker’s return to Sydney he had consulted Dr Hirschowitz. A medical certificate dated 31 May 2016 and notes from 2 June 2016 consistently noted complaints involving both arms. A bilateral nerve conduction study was also performed on 6 June 2017.

Additionally, on 14 June 2016 the worker’s treating surgeon reported to Dr Hirschowitz that the worker had bilateral tingling and numbness in both hands, and Dr Nicklin who treated the worker for his ulnar nerve injuries considered the worker’s left sided pathology was part of the initial presentation. He believed the frank incident had caused the left sided pathology.

Based on the medical histories taken, the Arbitrator considered there was a consistent record of left arm symptoms and also considered it reasonable to conclude that the series of events led to a left arm injury.

Though the worker had not provided a ‘word perfect’ description of the incident and had indicated that his primary concern was the right sided symptoms, the Arbitrator felt an ‘actual sense of persuasion that the incident caused injury to the left upper limb’.

In consideration of the first ground of appeal, being that the Arbitrator had erroneously inferred that the worker’s left arm was injured in the frank incident, Snell DP referred to Bradshaw v McEwans Pty Ltd (unreported, High Court of Australia, 27 April 1951) in which the High Court stated:

‘Where direct proof is not available it is enough if the circumstances appearing in the evidence give rise to a reasonable definite inference; they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture…But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise’.

Snell DP clarified that when considering whether an inference should be drawn, ‘it is necessary to have regard to the evidence as a whole’.

In light of this, he did not agree with the employer that the fact that the worker had not included reference to his left arm in his statement of events meant that the only finding of fact available was that the worker used his right arm only.

Instead, DP Snell agreed with the Arbitrator’s finding that the medical history indicated symptoms in the left arm which were not existent before the incident on 20 May 2016. Snell DP stated that the inference drawn by the Arbitrator was ‘available on the evidence’ and the first ground of appeal failed.
Snell DP adopted his views in respect of ground one in relation to the other two grounds of appeal and the Arbitrator’s decision was confirmed.

Implications

Where a worker may have failed to describe injury to a particular body part, or given preference to more pressing concerns subsequent to an incident, this does not preclude a finding that this body part was in fact injured if there is sufficient evidence to draw reasonable inference. An arbitrator should draw an inference with regard to the evidence as a whole, rather than relying on a ‘word perfect’ account of events.