Amaca Pty Ltd v Werfel [2024] WADC 77 | Case summary

Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE

Amaca Pty Ltd v Werfel [2024] WADC 77 | Case summary | Zoe

[45]

On 14 December 2021, the appellant, Mr Arturo Zamora, slipped and fell in the course of his employment as a cleaner with the respondent, OCS Service Pty Ltd (OCS). He was working at Westfield Whitford City Shopping Centre. The slip and fall, which was unwitnessed, occurred late at night in a toilet cubicle of the Shopping Centre after it had closed.
Mr Zamora alleged that as a result of the fall he suffered 'soft tissue injuries' to his right shoulder and lower back. Further, as a consequence of his injuries he developed chronic pain, somatic symptoms disorder and depression. He sought the payment of weekly payments and statutory expenses under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act).
OCS admitted that Mr Zamora fell in a toilet cubicle but disputed the extent and severity of the fall. OCS denied that Mr Zamora had suffered any 'injury' within the meaning of the Act as a consequence of the fall.
On 26 April 2023 the dispute as to the payment of compensation proceeded to an arbitration hearing before a Workers' Compensation Arbitration Service arbitrator, Ms D Chesworth (the Arbitrator), in accordance with pt XI div 4 of the Act. The central issue before the Arbitrator was whether Mr Zamora's slip and fall resulted in a compensable injury to his right shoulder and lower back.[1]
The Arbitrator found that:
1. The fall on 14 December 2021 did not result in an injury to Mr Zamora's right shoulder and lower back.[2]
2. Any condition that Mr Zamora asserted he was suffering from was not causally related to the fall on 14 December 2021.
3. If Mr Zamora suffered any incapacity for work, it did not result from any injury he alleges occurred on 14 December 2021.
4. Mr Zamora was not entitled to weekly payments of compensation or any medical expenses.
The Arbitrator stated that her findings turned on her assessment of the reliability and credibility of Mr Zamora, in that he was the only witness to the slip and fall and the medical opinions regarding his injuries relied upon his self-reporting of the incident and his subsequent symptoms.[3] The Arbitrator found Mr Zamora was an unreliable witness.[4]
In this appeal Mr Zamora contends that the Arbitrator's decision should be set aside and his claim remitted to the Workers' Compensation Arbitration Service for rehearing before a different arbitrator. Mr Zamora seeks these orders, in broad terms, because he says that:
1. the Arbitrator did not accord him procedural fairness during the hearing process in reaching findings as to the reliability of his evidence;
2. the reasons for decision provided by the Arbitrator were inadequate; and
3. the Arbitrator required him to prove the existence of his injuries by an unnecessarily high level of satisfaction and exactness of proof.
In what follows, I will outline the background facts, the relevant statutory provisions, the decision of the Arbitrator and, finally, deal with Mr Zamora's grounds of appeal.

[55]

COUNSEL: Mr Zamora, do you remember the night of your accident?

WITNESS: Yes, I do - - -

...

COUNSEL: Just once you got to the toilet, you finished and you were about to leave. Is that right?

WITNESS: Yes, sir.

COUNSEL: And the door was still closed, was it?

WITNESS: Yes, sir.

COUNSEL: And you then slipped.

WITNESS: Correct, sir.

COUNSEL: And, I think, subsequently the security guard came and took some photos. Page 237, they're on. Have a look at that one, please. Is that a picture of you?

WITNESS: That's me.

...

COUNSEL: and about how long had you been on the floor when that was taken?

WITNESS: For quite a while.

...

COUNSEL: Where's your walkie-talkie - - -

WITNESS: And finally - - -

COUNSEL: - - - in that photo?

WITNESS: Must be on the other side.

COUNSEL: Other side of what?

WITNESS: That thing there. That wall there, sir.

COUNSEL: On the other side of the wall?

WITNESS: yes. Well, there when I called them and - - -

COUNSEL: Well, you say you had it.

WITNESS: - - - I - - -

COUNSEL: Did you keep hold of it?

WITNESS: - - - reached out for - for it and called them in. My call (indistinct) and then when finally I told them my location and they came, it was hard for them to find me because it's a big shopping centre. Finally they came and they saw me there.

COUNSEL: Was the door still open or closed?

WITNESS: The door was open.

COUNSEL: Who opened the door?

WITNESS: WHEN I WAS COMING OUT OF THE TOILET, SIR.

Counsel: You'd already opened the door?

WITNESS: I slipped on something slippery on the floor.

COUNSEL: So you stood up.

WITNESS: I was - - -

COUNSEL: Adjusted your trousers, I assume.

WITNESS: - - - coming out, yes, sir, and I slipped with this foot, my - - -

COUNSEL: Your left foot.

WITNESS; - - - left - - -

COUNSEL: Your left foot slipped.

WITNESS: - - - foot.

COUNSEL: Yes.

WITNESS: Went heading back. I hit the edge of the toilet seat and I was thrown to the side, to the right side.

COUNSEL: All right.

WITNESS: I landed on my right shoulder, sir.

...

(emphasis added)

[62]

In approaching the question of Mr Zamora's slip and fall and the extent of any injury, the Arbitrator considered the issue of what Mr Zamora was doing before the slip and fall. She then addressed the cause of the slip and fall before determining the extent of it. On each occasion the Arbitrator considered not only Mr Zamora's direct evidence but also what Mr Zamora had reported to medical practitioners as recorded in their reports. I address these aspects of the Arbitrator's decision in the next paragraphs.
The Arbitrator referred to Mr Zamora's evidence that prior to the fall he 'was mopping the floor when he decided to use the toilet'. The Arbitrator then referred to seemingly contradictory evidence in statements contained in medical reports, specifically:
1. Dr Heng Tan in his report of 10 March 2022 which recorded 'on 14 December 2021, Mr Zamora stated he was spot cleaning the escalator, half-way through needing to use the toilet'.[15]
2. Dr Menon in his report of 28 November 2022 recorded 'he was working as a cleaner and cleaning a toilet when he slipped and landed on his right side'.[16]
3. Dr Cheng in his report of 21 December 2022 which recorded 'he stated he was going down the escalator and then he had the urge to go to the toilet'.[17]
With respect to the issue of what caused the slip and fall, the Arbitrator noted the following matters:
1. Mr Zamora's statement did not go into any detail as to what caused the slip and fall. His workers' compensation claim form dated 20 December 2021 recorded that there was 'something slippery on the floor'. Further, on the same date, 20 December 2021 when Mr Zamora attended his GP, his GP, Dr Gupta noted on the first medical certificate 'slipped at toilet'.[18]
2. The Joondalup Health Campus admission plan noted 'patient using toilet, went to stand slipped on water'.[19]
3. Further, the medical admission proforma notes completed by the attending doctor at the Hospital recorded 'noticed slippery object on the floor after he fell'.[20]
4. On 15 August 2022, Dr Silbert recorded 'he reports arising from the sitting position on the toilet in a cubicle when his left foot slipped forwards on something soapy'.[21]
5. On cross-examination Mr Zamora stated 'he had opened the toilet door and his left foot slipped on something slippery'.[22]
The Arbitrator then addressed the issue of the extent of the slip and fall. The Arbitrator noted the following evidence:
1. In Mr Zamora's statement of 5 March 2022 he stated:[23]

[115]

Mr Zamora requires leave to appeal against the Arbitrator's decision. In order to justify a grant of leave, the appeal must concern an issue of law.[50] An appeal involves a question of law when either an error of law, or error of mixed law in fact, is involved.[51] A detailed summary of the legal principles which apply to a grant of leave and what constitutes an error of law is set out in Dodson v Woolworths Group Ltd.[52]
Whether an appeal ground is properly categorised as raising a question of law is, in many cases, a difficult assessment. The distinction between errors of law, errors of fact and mixed errors of law and fact can be elusive. The relevant principles include:
1. An appeal will involve a question of law if the court, tribunal or statutory decision-maker whose decision is under appeal has made an error of law or an error of mixed law and fact.[53]
2. A failure to give reasons, or adequate reasons, for a decision, may constitute an error of law. This general proposition must, however, be considered in the context of the provisions of s 213(4) of the Act which I refer to in [62] below.[54]
3. A court, tribunal or statutory decision-maker does not make an error of law merely because the court, tribunal or decision-maker finds facts wrongly or upon a doubtful basis.[55]
4. A failure to accord procedural fairness arising from a failure to put a party on notice of a fact or issue, when the decision-maker's evaluation or conclusion of that fact or issue is one that could not have reasonably been anticipated, may be an error of law[56]. In such a case, an appeal court may be able to infer that, if fairly put on notice of that fact or issue, the party might have addressed the fact or issue by way of further evidence or submissions, such that the party may have been deprived of the possibility of a successful outcome.[57]
5. A decision does not involve an error of law unless the error is material to the decision, in the sense that it contributes to the result so that, but for the error, the decision may have been different.[58]
The two appeal grounds seem to require the determination of the following issues:
1. Did the Arbitrator deny Mr Zamora procedural fairness by failing to raise with his counsel:

[133]

The principles relating to procedural fairness are well settled and have been outlined by the Court of Appeal in a number of cases in recent years including, for example, Davie v Manuel,[62] Defendi v Szigligeti,[63] and Frigger v Frigger.[64]
From those cases, the following general principles may be observed:
1. A court or tribunal is obliged to accord procedural fairness to a litigant. However, that general proposition is only the first step of any analysis. The second step is to identify the content of the requirements for procedural fairness in the specific case.
2. A fundamental requirement of procedural fairness is that a party is given a reasonable opportunity to be heard, in other words, to present their case by evidence, information and submissions.[65]
3. The requirements of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice. Precisely what is necessary to avoid practical injustice will depend upon the circumstances of each given case.
4. The content of procedural fairness will ordinarily need to be understood having regard to the nature of the proceedings. Arbitration disputes under the Act should, for the reasons I set out further below, generally be amenable to being determined efficiently and expeditiously. Provided that a reasonable opportunity to present their case is given to the parties, issues dealt with by an Arbitrator under the arbitration process required by the Act will need to be flexible and take into account the informality of the procedure in the arbitration process under the Act.
In Davie the Court of Appeal recently made reference to when and in what circumstances a person to whom procedural fairness is owed will be entitled to have brought to their attention critical issues or factors on which the decision is likely to turn. In Davie the court made these observations:
1. Generally speaking, in litigation the parties must anticipate combinations and permutations of various findings and adduce evidence and make submissions at the trial on all the potential findings of fact on the issues litigated. Any gap in the evidence on an issue will generally operate to the detriment of the party carrying the burden of proof on that issue.
2. A person to whom procedural fairness is owed is, ordinarily, entitled to have brought to his or her attention the critical issues or factors on which the decision is likely to turn so as to give the person an opportunity to deal with them. However, a decision-maker is not usually required to disclose to a person to whom procedural fairness must be accorded the decision-maker's mental processes, provisional views or proposed conclusions before a final decision is made. The position may be different when the decision-maker's evaluation or conclusion is one that could not have reasonably been anticipated. In this context, the observations of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, 591 - 592 are relevant:

[137]

In support of Ground 1 the appellant relied upon, amongst other authorities, the decision of Audino v WA Country Health Service - Wheatbelt.[66] In that case, Stavrianou DCJ discussed the principles of procedural fairness as they apply to arbitrations conducted under the Act.
In the case of Audino, an arbitrator hearing a claim for compensation under the Act made a specific finding that the worker, Mrs Audino, was willing to knowingly deceive her employer regarding the circumstances of her injury, being a hernia. On appeal, it was held that that finding was tantamount to a finding of fraudulent or deceitful conduct on the part of Mrs Audino. Further, while submissions before the arbitrator referred to Mrs Audino's credibility being in issue, there was nothing in the employer's submissions to suggest that fraud or deceptive conduct on the part of Mrs Audino was alleged.
During the arbitration hearing Mrs Audino was not cross-examined in a way to suggest that she had engaged in dishonesty or deceptive conduct. Relevantly, Mrs Audino was not cross-examined in relation to propositions which arose from the intended evidence of another witness, being a Ms Jakubow. The arbitrator made findings based on the evidence of Ms Jakubow that Mrs Audino sought to have Ms Jakubow conceal the fact that Mrs Audino had asked her not to say anything about failing to report an incident concerning her injury which led to a finding that Mrs Audino was willing to deceive her employer regarding the circumstances of her injury. The facts in Audino are, in my opinion, different from the present matter.
A Judge or arbitrator holds no duty to advise the parties that a witness's evidence is not adequate to make out the alleged claim. However, where a party claiming compensation for injury has been held to have feigned or exaggerated symptoms, and that proposition is not suggested in cross-examination, or by the other party, that will be a breach of procedural fairness.[67] In this case, OCS's position was that there was no objective evidence of injury and that the symptoms complained of were not consistent with objective symptoms of an injury.

[147]

The Arbitrator found that Mr Zamora's evidence was unreliable. Having said that, the Arbitrator did not find that Mr Zamora had acted fraudulently or engaged in deliberately deceptive conduct.
The Arbitrator's Reasons need to be read in the context that Mr Zamora was the only witness to the slip and fall incident.
For his claim to succeed, Mr Zamora was obliged to prove, on the balance of probabilities, that he had suffered a 'personal injury by accident' as a result of the slip and fall.
To decide Mr Zamora's claim, the Arbitrator needed to assess not only Mr Zamora's evidence given at the arbitration, by his witness statement and in cross-examination, but also the instructions he gave to medical practitioners as to the circumstances of the slip and fall and the severity of the fall and the injury (or injuries) he says he suffered by reason of the fall.
The instructions Mr Zamora gave to various medical practitioners after 14 December 2021, including the paramedics who treated him at the scene and the nurses and doctors who reviewed Mr Zamora at the Hospital, were inconsistent in many material respects. Those inconsistencies gave rise to varying accounts of the events that the Arbitrator had to consider.
As may be noted from the Arbitrator's Reasons, the Arbitrator marshalled and considered the relevant evidence before concluding Mr Zamora was not thrown or bounced from the toilet seat as to land on the cubicle floor with any force as to cause injury to his back, right arm, or shoulder. Further he did not suffer 'a personal injury by accident arising out of or in the course of the employment'.
For the reasons that I will turn to, I do not consider that the Arbitrator was required to draw Mr Zamora's attention to inconsistencies between his evidence at the arbitration hearing and the medical reports and contemporaneous medical records.
Mr Zamora submissions on Ground 1 were, in substance, that:
1. The Arbitrator failed to accord Mr Zamora procedural fairness by making adverse findings as to the reliability of his evidence based upon the six matters set out in [49(a)] - [49(f)] that were not raised by the Arbitrator or the respondent at the appeal hearing.[72]
2. It was not part of Mr Zamora's case that he contacted the toilet bowl with his back. Specifically, that contention was not raised in his witness statement and not advanced in written submissions (or oral submissions at the arbitration). Rather, his case, as advanced at arbitration, was that he landed on the toilet seat after slipping. From the toilet seat he fell to the floor.
3. If the Arbitrator had raised with Mr Zamora his back striking the toilet bowl that question or issue would have been answered by Mr Zamora (or on his behalf) that it was not part of his case and it was not relevant to his reliability as a witness because it was not part of his case.
4. There was no link that the Arbitrator could draw between the findings in [49(a)] - [49(f)] and his evidence being unreliable.
5. Statements attributed to the appellant in various medical reports should have been put to the appellant in cross-examination (or by the Arbitrator if not in cross-examination) if adverse findings were likely to be made by the Arbitrator relying on those matters to the extent that they were inconsistent with the evidence led at the trial or the presentation of his case generally.
6. The reliability of Mr Zamora's evidence based upon those matters also had to be reviewed by the Arbitrator in the context that there was a concession (or no challenge) that Mr Zamora felt pain in his back when he landed on the floor of the cubicle.
As may be noted from the general principles I have outlined, the critical question to identify is the content of the requirements of procedural fairness for the case in question. As noted, the fundamental requirement of procedural fairness is that a party is given a reasonable opportunity to be heard, in other words, to present their case by evidence, information and submissions.
In an arbitration under the Act, where both parties are represented by legal practitioners, an arbitrator would not ordinarily be required to disclose to a litigant a provisional view the arbitrator may have formed, or the arbitrator's mental processes or proposed conclusions, for any decision making. The exception to this general proposition is where the arbitrator's evaluation or conclusion is one that could not have reasonably been anticipated by the litigant.
An example of a situation where a conclusion by an arbitrator could not have reasonably been anticipated by the litigant is illustrated by the case of Audino where the arbitrator made a finding, in effect, of fraudulent concealment of an injury when no such case had been advanced by the employer.
Before turning to the specific factual matters raised by Ground 1, I will make some general observations about how the arbitration hearing was conducted.
Mr Zamora and his legal representatives knew at the commencement of the arbitration that the extent and severity of Mr Zamora's fall in the toilet cubicle (and whether that fall caused an injury) was in issue. As with many arbitration hearings under the Act, the Arbitrator and parties were faced with numerous documentary records and medical reports. Based upon the appeal book utilised in the appeal, the Arbitrator was presented in advance of the arbitration with almost 550 pages of medical reports and records, witness statements and legal submissions. The time spent in the hearing was less than one day. At the time of reserving her decision the Arbitrator said she would have 'to go away and read all the documents and ... consider what (counsel) have said ... (and also read) the witness statements'.[73]
As I have noted, the medical reports and records contained various inconsistencies about what Mr Zamora had said as to the lead up to the fall, the circumstances of the fall and of the symptoms of his injuries. Mr Zamora did not attempt to deal with the various inconsistencies ultimately identified by the Arbitrator in his own evidence or by submissions. This could only be construed as a forensic decision.
Mr Zamora's objection raised at the commencement of the arbitration hearing that OCS had not put into issue his 'credibility in terms of the accident' was not accepted by the Arbitrator. The Arbitrator's Reasons make clear that the circumstances and severity of the fall was in issue and should not have taken Mr Zamora by surprise.
That ruling made clear to Mr Zamora that he was required to prove his case and that no concession could be relied upon to prove any factual matter required to be proved by him. Namely, any deficiencies in his evidence or his case could lead to a conclusion that he had not discharged the burden of proof he bore.
OCS highlighted various inconsistencies in Mr Zamora's case and the reliability of his reporting of matters to doctors in its pre-hearing written submissions. One example was that Mr Zamora had told his treating psychologist, Ms Byers, and the respondent's psychiatrist, Dr Cheng, that he had no history of psychological symptoms during his consults with them. That, according to the respondent, was shown to be wrong by an AAT decision which the appellant provided with his responsive statement and which contained evidence that Mr Zamora had experienced symptoms of depression and anxiety since 1998 and had been taking antidepressive medication.[74]
It was not reasonable for Mr. Zamora to assume, in preparing for and conducting the hearing, that inconsistencies in his account of events would not be addressed unless specifically pointed out, despite the presence of multiple medical reports and records submitted by him that contained inconsistencies in symptom reporting and descriptions of the slip and fall incident.
I do not consider that Mr Zamora could hold a legitimate expectation that the Arbitrator would point out or address inconsistencies in the medical and other evidence, or warn that his evidence might be considered to be unreliable, if he did not seek to address or explain these apparent inconsistencies, even if OCS's counsel did not cross examine him about them. I now turn to the specific factual matters raised in Ground 1 upon which it is said it was procedurally unfair for the Arbitrator to make findings which were adverse to Mr Zamora.

[150]

To place the conclusions reached by the Arbitrator at [48] and [49] in context, in the earlier part of her Reasons, the Arbitrator had reviewed Mr Zamora's evidence and the medical records which were relevant to the circumstances of and the severity of the fall in the toilet cubicle.
Mr Zamora's primary witness statement, which stood as his evidence-in-chief,[76] at par 9 describes the slip as causing him to fall backwards. He said he landed on the toilet seat, hit his head and fell to the side of the cubicle landing on his right arm. The Arbitrator considered this version of the slip and fall in her Reasons at [20].
As may be noted from my summary of the Arbitrator's decision, various of the medical reports relied upon in the arbitration refer to Mr Zamora saying that his back hit the toilet bowl.[77] The Arbitrator considered this version of events in her Reasons, for example, at [39] (the history seemingly relayed by Mr Zamora to Dr Kain) and at [41] (the history seemingly relayed by Ms Byers, clinical psychologist).
The evidence elicited in cross-examination, was in my view, ambiguous about Mr Zamora's fall, but, on one reading, it could also be construed as his back having hit the toilet bowl.[78]
Putting to one side the second sentence in [48] of the Reasons about Mr Zamora's back not hitting the toilet bowl, a key finding to the decision reached by the Arbitrator is contained in the final sentence of [48] - that Mr Zamora did not land on the cubicle floor with any force such as to cause injury.
The second sentence of [48] of the Arbitrator's Reasons, that, Mr Zamora did not contact the toilet bowl with his back, makes a finding, that the fall did not occur on a version of Mr Zamora's reporting that his back did make contact with the toilet bowl/toilet seat, such version being contained in:
1. Contemporaneous medical records - see above at [29(2)], [29(3)], [29(4)], [29(5)] and [29(7)].
2. Later reports from medical practitioners as to his contended injuries - see above at [29(9)], [29(10)], [29(12)] and [29(13)].
3. On one reading of Mr Zamora's answers to questions in cross-examination by counsel for OCS.[79]
Whilst [49(a)] states that Mr Zamora made no reference in his witness statement about striking his back on the toilet seat, from a reading of the Reasons in their entirety, the evident purpose of [49(a)] - [49(f)] was to highlight conflicting accounts Mr Zamora reported to medical practitioners after the incident.
The complaint in ground 1 that the Arbitrator seemingly criticised Mr Zamora's witness statement (and thereby his evidence) for not mentioning that his back touched the toilet bowl, when that was not actually part of his case, does not, in my opinion, have any real basis.
Notwithstanding that Mr Zamora's case at the arbitration hearing was that he landed on the toilet seat before falling, the Arbitrator still had to consider other versions of the circumstances of the fall which emerged from the instructions Mr Zamora gave to doctors and the contemporaneous records. Mr Zamora's compensation claim was based on a fall that no one saw, so it was important for the Arbitrator to carefully review his evidence and be persuaded to the requisite standard of proof of how the fall happened, the severity of the fall and what injuries, if any, were caused by the fall.
The finding at [48] that Mr Zamora's back did not make contact with the toilet bowl does not appear to have had any real significance in the Arbitrator's resolution of the case. The Arbitrator's finding in [48] went on to say that Mr Zamora was not thrown or bounced from the toilet seat to the cubicle floor with any force as to cause injury to his back, right arm or shoulder. In effect, that finding is that he fell from the toilet seat to the cubicle floor, but not with sufficient force to cause the claimed injuries. Mr Zamora's criticisms of the Arbitrator's comments about Mr Zamora's back not making contact with the toilet bowl do not give rise to an error of law. I do not consider that the Arbitrator was obliged to raise the inconsistencies between the version summarised in [87] about his back making contact with the toilet bowl/toilet seat and the version in his witness statement that he landed on the toilet seat, hit his head and fell to the side of the cubicle.

[152]

I have already commented on the matters stated by the Arbitrator at [49(a)] of her Reasons in [82] - [92] above. With respect to each of the matters outlined by the Arbitrator at [49(b)] - [49(f)], as I understood the appellant's argument, the various conflicts and inconsistencies highlighted by the Arbitrator could not, of themselves, give rise to a conclusion of him being an unreliable witness. I deal with this in the limb of Ground 1 dealing with inadequate reasons.
The various findings in [49(a)] - [49(f)] were open to the Arbitrator in the course of assessing and marshalling the evidence given during the arbitration. As noted, significant inconsistencies emerged in Mr Zamora's versions of reporting the incident and its symptoms to medical practitioners.
I do not consider that the Arbitrator was obliged to point out the inconsistencies between Mr Zamora's evidence-in-chief, the instructions he had given to doctors and the contemporaneous medical records. Further, the Arbitrator was not required to disclose to Mr Zamora, as a litigant how, taken either individually or collectively, those matters may inform the Arbitrator's ultimate decision. The Arbitrator was not privy to Mr Zamora's instructions. At the time of the hearing, the Arbitrator could not have been expected to have considered the various permutations in the evidence in the same depth that the parties themselves had in their preparation of the case for a final hearing.[80] Rather than the Arbitrator holding a duty to inform Mr Zamora of what findings she may make when marshalling the contradictory evidence, it was open to Mr Zamora to give evidence himself of the apparent inconsistencies in his case and, to the extent that he thought they could be cleared up or reconciled, he could have given evidence on those matters. Mr Zamora could also have attempted to address the inconsistencies in his case by submissions.
The arbitration was conducted on the clear assumption that all matters were in issue concerning the extent of Mr Zamora's fall and any injuries he suffered from that fall. This is clearly stated in the Arbitrator's Reasons, particularly at [1] - [8].
Read fairly, the matters referred to by the Arbitrator at [49(a)] - [49(f)] (inclusive) highlighted inconsistencies in the reporting of events by the appellant. The Arbitrator's findings that those inconsistencies reflected adversely on Mr Zamora when assessing the reliability of his evidence were reasonable and something Mr Zamora, as a party in an adversarial process, could have reasonably anticipated. This was not a case which was similar to the fact situation in Audino where the Arbitrator made findings tantamount to fraud where no such contention had been raised by the employer.
In my opinion it was open to the Arbitrator to make the findings that she made at [49(a)] - [49(f)] (inclusive) of her Reasons without having to inform Mr Zamora what those findings may be or that he should address those issues by other evidence or submissions. Mr Zamora had an opportunity to present his case by evidence, information and submissions. The fact that inconsistencies within the evidence were not addressed by him, even though not raised by the Arbitrator during the hearing, in my view does not lead to a conclusion that the arbitration hearing was procedurally unfair to him.
Taking into account all matters, I do not consider the Arbitrator was obliged during the hearing to draw to Mr Zamora's attention the findings she was inclined to make at [48] and [49(a)] - [49(f)] (inclusive) of the Reasons. The first limb of Ground 1 relying on a failure by the Arbitrator to accord procedural fairness is not made out. There is no error of law as contended by Mr Zamora.

[165]

As I have noted, the aspects of ground 1 contending that the Arbitrator did not give adequate reasons for her decision are set out in particulars (b) - (e) to the ground. When read together, it is argued that the Arbitrator's reasoning relied on her assessment of the appellant, which she did not explain in sufficient detail. Mr Zamora's argument, as I understood it, was that the Arbitrator found the appellant to be an unreliable witness but did not provide reasons for this finding, except to say it was influenced by the ten issues listed in [49(a)] - [49(j)].
Whilst I will deal with each of the particulars in turn, for the reasons that follow, I consider that read fairly, each of the matters in [49(a)] - [49(j)], when taken together, provide a sufficient basis for the Arbitrator's finding that Mr Zamora was not a reliable witness. Generally, a finding that a witness' evidence is not reliable may only be set aside where the credit-based finding is flawed by reference to incontrovertible facts, uncontested testimony, is glaringly improbable or contrary to compelling inferences. That condition does not exist in this case. The Arbitrator properly assessed and weighed all relevant evidence before reaching her conclusion as to Mr Zamora's lack of reliability. I return to this issue in [123] - [124] below.
As I have referred to in the aspect of my reasons touching on procedural fairness, whilst [48] of the Arbitrator's Reasons sets out the central findings as to the slip and fall, [49] states that the findings are based on the Arbitrator's assessment that Mr Zamora is an unreliable witness.
That finding in the second sentence of [49] of the Arbitrator's Reasons, read fairly, is that Mr Zamora is an unreliable witness because of the Arbitrator's assessment of his evidence and by reason of:
1. Conflicting accounts in his evidence, the examples of which are contained in [49(a)] - [49(f)] inclusive.
2. Mr Zamora's failure to disclose a prior history of anxiety and depression to his clinical psychologist, Ms Byers, or consultant psychiatrist Dr Cheng ([49(g)]).
3. Mr Zamora's denial about taking any medication prior to the accident, but, when later pressed in cross-examination he did admit to taking a sleeping medication but denied taking Citalopram despite receiving a script for it on 8 November 2021 ([49(h)]).
4. Mr Zamora becoming argumentative and angry under cross-examination and accusing OCS's counsel of lying to him ([49(i)]).
5. The Arbitrator finding that it was inconceivable that a neurosurgeon, Mr Bala, would laugh in Mr Zamora's face during a consultation as he stated in cross-examination ([45(j)] (see further [23] above for an extract of the cross-examination in that respect).
Any criticism of the content of the Reasons in [48] - [49] must not overlook the last sentence of [48] where the Arbitrator found that Mr Zamora did not land on the cubicle floor with sufficient force so as to cause injury to his back, right arm or shoulder. The conclusion reached by the Arbitrator of the extent of the force on which Mr Zamora fell to the floor was also reached in her assessment of the objective evidence of the injury which is set out later in the Arbitrator's Reasons, specifically at [50], [54] - [64], [67], [88] and [90].
In these paragraphs of her decision, the Arbitrator analyses the ambulance and Hospital records and radiological investigations which ultimately lead to her conclusion that Mr Zamora did not suffer a soft tissue injury. I now turn to the specific matters in the particulars to ground 1.

[179]

(a) all appeals are creatures of statute therefore the ambit of any appeal will turn upon the proper construction of the statute creating the right of appeal;

(b) while on the one hand the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'[107] on the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the records;

(c) these limitations include the disadvantage that the appellate court has when compared with a tribunal at first instance in respect of the evaluation of the credibility of witnesses and of the 'feeling' of a case which cannot be gleaned from the reading of the transcript;

(d) furthermore, an appellate court does not typically get taken to or read all of the evidence taken at trial, with the result that a tribunal at first instance has advantages that derive from considering the entirety of the evidence, and reflecting upon that evidence over a longer interval;

(e) within these constraints an appellate court is obliged to conduct a real review of the trial and is not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses and should make due allowance in this respect';[108]

(f) in general an appellate court is in as good a position as the court at first instance to decide on the proper inference to be drawn from facts which are undisputed or, which having been disputed, are established by the findings of the court;[109]

(g) in deciding the proper inference to be drawn the appellate court will give respect and weight to the conclusion of the court at first instance but once having reached its own conclusion will not shrink from giving effect to it;[110]

(h) the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute;[111]

(i) in some cases incontrovertible facts or uncontested testimony will demonstrate that the conclusions of fact made by the court at first instance are erroneous even when they appear to be, or are stated to be based on credibility findings;[112]

(j) if the decision at trial is glaringly improbable or contrary to compelling inferences the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses;[113]

(k) while appellate deference to the decision of a trial judge can be justified by the advantage of assessing the demeanour of witnesses when giving their evidence, more recently caution has been expressed with respect to the weight properly given to assessments of demeanour as compared to an assessment of credibility based upon objectively established facts, contemporary documents and the apparent logic of events.[114]

[184]

In [15] and [16] of her Reasons the Arbitrator outlined the burden and standard of proof required to be discharged by Mr Zamora. Namely, he had the burden of establishing his case and the standard of proof was on the balance of probabilities. Further it was not necessary for there to be an exactness of proof in order to find a fact proven provided there is sufficient evidence that can be afforded weight to support findings of fact or for a reasonable inference to be drawn.
The Arbitrator also noted at Reasons [17] that, with respect to matters of expert evidence, it remained for the party carrying the onus of proof, in this case Mr Zamora, to ensure that the expert evidence is explained in a manner that supports the finding agitated for.
After setting out these introductory comments the Arbitrator stated at Reasons [18] that in order to find that the information provided by Mr Zamora to doctors is reliable she had to accept his evidence and that the assessment of the reliability of his evidence was a multifactorial task involving a consideration of contemporary materials, objectively established facts and the apparent logic of events.
In her Reasons at [50], the Arbitrator made reference to the High Court decision in Military Rehabilitation and Compensation Commission v May.[115] In that case the plurality made reference to the definition used by Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Limited v Petkoska[116] that an injury as that term is used in its primary sense is 'something ... can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an 'injury' in the primary sense of that word'.[117]
In Military Rehabilitation, Gageler J made the following observations:
1. Every ailment can at some level be described as an alteration from the functioning of a healthy mind or body however not every ailment can be described as an injury in the ordinary sense. At least in the case of a physical injury, to suffer an injury is more than just to experience the onset of disfunction.
2. An injury may be established on the basis of an account by a claimant of the disturbances to his or her body or mind, without the necessity for a diagnosis of a recognised medical condition, or corroborating pathology or medical opinion, but whether or not the evidence of a claimant will be sufficient, if it is not supported, corroborated or confirmed by independent medical opinion or pathology will be a matter for the judge's (or arbitrator's) satisfaction on the evidence in each particular case.[118]
Ground 2 is, in effect, an attempt to challenge a factual finding made by the Arbitrator at [69] of her Reasons.
As I have noted the Arbitrator found that there was no objective evidence of any injury to Mr Zamora's right shoulder or arm or lumber spine or back generally. In making that finding, the Arbitrator did not require the proof of those matters by what is referred to in the appeal ground as 'an unnecessarily high level of satisfaction and exactness of proof'.
The Arbitrator addressed Dr Tan's phrase 'soft tissue contusion injury' in her Reasons at [60] and [66]. The Arbitrator observed at [66]:

Amaca Pty Ltd v Werfel

At a glance

Court

Decision date

Before

Source

Judgment (240 paragraphs)

ZAMORA -v- OCS SERVICES PTY LTD [2024] WADC 77 (10 September 2024)

Parties

Legislation Cited (1)

Cases Cited (15)