ESCOTT -v- DK HOSPITALITY 2 PTY LTD [2025] WASCA 128 (29 August 2025)

The question of total or partial incapacity before the arbitrator

1. There was a forensic issue at the hearing before the arbitrator as to whether, if the appellant established that he suffered an injury in the course of his employment with the respondent, the appellant had a total or partial incapacity to carry out work resulting from the injury. The evidence relevant to this issue fell into two categories.
2. First, there was evidence about other work which the appellant had carried out prior to his employment with the respondent. In this regard, the arbitrator observed:[3]

[The appellant's] evidence was that he had wide experience in a number of diverse physical and sedentary positions including lobster fisherman, Telstra consultant, traffic controller, freelance photography, tattooing and men's mental health publishing. However, he had not finished tertiary education courses nor a pre-apprenticeship course. [The appellant] agreed that he had a wide range of work skills but there was little scope for full-time work in Albany other than event management etc. (original emphasis)

The reference to tertiary education courses was to courses for an undergraduate arts degree and a separate biomedical science degree which the appellant had partly completed.

1. The evidence about the appellant's former work led to the following submission being made to the arbitrator on behalf of the respondent:[4]

However, I'll go on to say that he [the appellant] has a wide range of work experience. One day, when we went through the work that the [appellant] has undertaken in the past; he's done a lot of both physical and sedentary work. He has numerous transferable skills. And recently he worked in Albany for Telstra, selling phones and phone plans. There's nothing to suggest that he can't continue to do that, certainly under surveillance... He's recently worked as a traffic controller, which he said involved him standing by the side of the road pressing a button: there's nothing to suggest he can't do that. He stopped doing that because it didn't appeal to him, words to that effect. Sir, with respect, I ‑ on ‑ just cannot find that the worker is totally incapacitated for work.

1. Secondly, there were medical reports of an orthopaedic surgeon, Mr Slinger, adduced by the appellant and a consultant occupational physician, Dr Dayoub, adduced by the respondent. While the reports of these medical practitioners were before the arbitrator, they did not testify before the arbitrator (and were unable to do so without the leave of the arbitrator).[5] The proper understanding and significance of these reports in respect of the issue of total and partial incapacity is a matter of some debate, as explained below.
2. After noting medical certificates as to incapacity issued by the appellant's treating general practitioner, Dr Jansz, and the appellant's previous employment, the arbitrator referred to Mr Slinger's reports of 23 August 2022 and 18 July 2023. Mr Slinger expressed the opinion that, at those times, the appellant was totally incapacitated for his pre‑injury work and 'other jobs which might be described as reasonably within his sphere'.[6] The reports did not identify what kind of jobs might, in Mr Slinger's opinion, be jobs reasonably within the appellant's 'sphere'.
3. The arbitrator then noted the respondent's contention that, if the appellant succeeded in establishing liability for his claim, the evidence was insufficient to prove a total incapacity. While, as has been seen, the respondent advanced that contention on a wider basis, the arbitrator took that submission to be based on the view expressed in Dr Dayoub's report of 13 September 2022 that:[7]

I believe that he has the capacity for work according to his pre-injury hours and undertaking restricted duties that do not involve forceful gripping or grasping with both hands and do not involve forceful extension or flexion of both wrists.

1. The arbitrator contrasted this view with views expressed in Dr Dayoub's report of 17 May 2023,[8] and said:

I prefer the evidence of Dr Jansz and Dr Slinger over that of Dr Dayoub for the following reasons -

(a) Dr Jansz and Dr Slinger are [the appellant's] treating general practitioner and orthopaedic surgeon respectively; Dr Dayoub is a consultant occupational physician;

(b) Dr Dayoub's evidence about [the appellant's] capacity in his respective reports is equivocal and inconsistent; and

(c) Dr Dayoub's opinions, particularly as to [the appellant's] fitness to participate in vocational rehabilitation, do not constitute 'clear' specialist evidence of a retained capacity for work by [the appellant].

1. After dealing with a presently immaterial issue about surveillance footage, the arbitrator found that the appellant was, and had been, 'totally incapacitated, for pre-injury and suitable alternative work, because of his bilateral CTS'. (emphasis added)

1. There was no challenge to the decision by the arbitrator that the appellant had not suffered from CTS prior to his employment by the respondent, or that he suffered that injury while employed by the respondent.
2. However, the respondent's appeal to the District Court challenged the arbitrator's finding that the appellant had suffered a total incapacity for work resulting from the injury. Relevantly two grounds of appeal (grounds 2 and 3) succeeded on this issue:

(a) the primary judge held that the arbitrator had erred in law by failing to give adequate reasons for his finding of total incapacity for pre‑injury and suitable alternative work, more particularly by failing to properly identify the factual basis for that finding (ground 2); and

(b) the primary judge held that the arbitrator had erred in law in finding that the appellant had given evidence that 'there was little scope for full‑time work in Albany other than event management etc', when there was no evidence to support that conclusion (ground 3).

1. The reasoning of the primary judge in respect of each of these successful grounds requires some explanation.

1. The primary judge said that the adequacy of reasons must be considered in the context of s 213(4) of the 1981 Act. Section 213(4) provided:

(a) need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and

(b) need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and

(c) need not canvass all the evidence given in the case; and

(d) need not canvass all the factual and legal arguments or issues arising in the case.

The primary judge observed that, in identifying the facts accepted and the reasons for doing so and the law applied and the reasons for doing so, the arbitrator is still obliged to expose the reasoning process linking them, and justifying the ultimate result.[9] His Honour then referred to general principles in relation to the adequacy of reasons.

1. The primary judge considered that evidence of the appellant's ongoing university studies and relatively recent employment at Telstra was 'plainly relevant to the issue of total or partial incapacity'.[10] His Honour said that, '[at] the very least, not addressing why this other material is irrelevant, frustrates [the respondent's] ability to advance a ground of appeal that the arbitrator wrongly determined the matter solely on the basis of his preference for the evidence of' the appellant's medical expert (Mr Slinger) over the respondent's medical expert (Dr Dayoub).[11]
2. The primary judge also noted that the arbitrator referred to the appellant's 'wide experience in a number of diverse physical and sedentary positions including inter alia Telstra consultant but said nothing of the relevance of such employment'.[12] The primary judge concluded that:[13]

[T]he relevance of [the appellant's] university studies and his work with Telstra were worthy of serious consideration and were seriously advanced. Given that they were not dealt with, it is open to me to infer that they were overlooked, giving rise to an error of law. (footnotes omitted)

1. Dr Dayoub expressed the opinion that the appellant was 'unfit for work as a kitchenhand on a full‑time and unrestricted basis' and that he was 'not suitable for any employment that he might be considered vocationally suited'.[14] However, Dr Dayoub said that the respondent was 'fit to participate in vocational rehabilitation' and that for the time being 'he can work for four hours per day, three days per week, undertaking office‑based duties.'[15]
2. The primary judge observed that:[16]

Beyond a bald assertion in response to leading questions posed by [the appellant's] solicitors there is no explanation from Dr Slinger as to why office‑based duties for some 12 hours per week were incompatible with [the appellant's] condition. Dr Slinger had Dr Dayoub's 17 May 2023 report when he gave his final report. He does not refer to Dr Dayoub's conclusion that there was some capacity for vocational rehabilitation. (footnotes omitted)

1. The primary judge also held that the reason given by the arbitrator for finding that there was internal inconsistency within the reports of Dr Dayoub was incorrect. This concerned an issue about whether the CTS was idiopathic or caused by trauma.[17] The primary judge considered that there was no inconsistency established upon a careful reading of the reports.[18]
2. The primary judge was of the view that 'the arbitrator was required to identify any reasons for concluding why the limited sedentary work referred to by Dr Dayoub [ie the office‑based duties] was not compatible with [the appellant's] condition before he could conclude that [the appellant] had established total incapacity'.[19]
3. The primary judge identified the relevant test for total incapacity as being whether the worker is 'wholly unable to earn a living in the labour market in which he was working before suffering the injury or in which he could reasonably be expected to work, that is, one reasonably accessible to him and for which he is vocationally suited'.[20]
4. In all of these circumstances, the primary judge held:

(a) It was necessary for the arbitrator to identify the factual basis upon which the appellant's expert opinion (ie Mr Slinger's opinion) of total incapacity was founded;[21]

(b) the arbitrator's reasons did not disclose why the arbitrator had concluded that the appellant did not have a capacity to obtain employment in sedentary type roles within the Albany labour market;[22]

(c) the arbitrator's conclusion that the appellant was incapacitated for 'suitable alternative work' required an analysis of what suitable alternative work may or may not exist, which did not occur. The reasons did not, in this regard, identify the facts, along with the reasoning process, that the arbitrator accepted in coming to the decision of total incapacity;[23]

(d) given the absence of any reference to the authorities on partial incapacity, the primary judge accepted that the arbitrator did not identify the law he applied in coming to his finding as to total incapacity; and[24]

(e) the arbitrator's reasons for the finding of total incapacity were inadequate, and involved a material question of law.[25]

No evidence of 'little scope for full‑time work in Albany other than event management etc' (District Court, ground 3)

1. In the passage quoted at [8] above, the arbitrator said that the appellant 'agreed that he had a wide range of work skills but there was little scope for full‑time work in Albany other than event management etc.'[26] The primary judge considered that this was likely intended to be a finding of objective fact by the arbitrator that there was 'little scope for full‑time work in Albany other than event management etc', rather than a statement that this was what the appellant believed to be the case.[27]
2. On that basis, the primary judge considered that the arbitrator could not make that finding about the state of the Albany job market as a matter of objective fact. His Honour said that the finding was uncertain to the extent that it referred to 'etc'. The primary judge also pointed out that the appellant had given at least one example of other work that he had recently engaged in with Telstra, and had not purported to offer an opinion about the Albany labour market generally, as distinct from his own direct experience of certain roles in the Albany area.[28]
3. For these reasons, the primary judge held that the appellant's evidence was not capable of establishing the objective fact which the arbitrator found proved.[29] Consequently, the primary judge held that the arbitrator erred in law in finding that the appellant's evidence established the objective fact that 'there was little scope for full‑time work in Albany other than event management etc.'[30]

1. The primary judge considered that he was unable to make his own findings about the appellant's capacity to engage in employment in sedentary type roles within the Albany labour market. His Honour said that he could not 'make my own findings as to the extent of [the appellant's] incapacity because, in addition to the medical evidence, that turns on an assessment of the credibility and reliability of [the appellant] as a witness.'[31]
2. The primary judge referred to the following statement of general principles by Murphy JA, (Martin CJ and Buss P agreeing) in McKay v Commissioner of Main Roads:[32]

Generally speaking, the starting point is that if there is to be a new trial, it ought to be of the case as a whole unless the court thinks that it will do more injustice by setting the matter at large again...where the court considers that it is difficult to 'disjoin' the issue which makes the retrial necessary from other issues in the case, it will be appropriate to order a retrial of all such issues... Similarly, a new trial should not be limited if there is a 'real chance' of the primary court having erred in the wider case...

1. The primary judge then concluded:[33]

In my opinion, having regard to the challenges to [the appellant's] evidence in the hearing below, there is such a 'real chance', but given the fact that I have ordered a rehearing it would be inappropriate for me to expand further.

1. As a result, the primary judge ordered a full rehearing of all issues.[34]

1. The appellant has sought leave to appeal to this court on two grounds.
2. The first ground is that the primary judge erred in law and in fact in finding that the arbitrator's reasons for decision were inadequate. This ground is particularised as follows:

a) having found at [148] of his reasons that Dr Dayoub considered the appellant was fit to participate in vocational rehabilitation, the primary judge mischaracterised Dr Dayoub's evidence insofar as it related to the appellant's capacity to work; and
>
> b) in consequence of doing so, erroneously required the arbitrator's reasons to disclose (and the arbitrator to undertake) an analysis of: > > > c) what suitable alternative work may or may not have been available to the appellant;
> >
> > d) authorities on partial incapacity; and
> >
> > e) the appellant's transferrable skills and educational capacity;

in circumstances where the medical evidence of each medical examiner, including Dr Dayoub, was that the plaintiff was totally unfit for work.

1. The second ground of appeal is concerned with the decision of the primary judge to remit the case for a full rehearing, rather than only to remit it for rehearing on the issue of total or partial incapacity. It was amended with leave during the oral hearing on 18 August 2025. It is now in the following terms:

The primary judge erred in law, or in the alternative in the exercise of his discretion, by quashing the decision of Arbitrator Cashman and remitting the matter back to a different arbitrator for a rehearing on all issues when there was, contrary to His Honour's finding at paragraphs [188] and [189], no 'real chance' that the arbitrator had erred in the wider case.

PARTICULARS

a) the arbitrator's findings as to credibility, 'injury' and the appellant's entitlement to statutory allowances were not challenged by the respondent in the primary appeal and those findings could and ought to have been left undisturbed on appeal; and

b) it was possible to disjoin findings as to capacity from those other issues.

c) remitting the matter for a re-hearing on all issues would cause substantial injustice to the appellant;

d) Further (or in the alternative) the primary judge erred in law by failing to adequately (or at all) expose his reasoning process as to why the matter could not be remitted to the arbitrator for further reasons, or alternatively, on the singular issue of the appellant's entitlement to income compensation payments.

Appeal ground 1: Adequacy of reasons Appellant's case based on the primary judge's misconstruction of Dr Dayoub's reports

1. The appellant's argument on appeal ground 1 was expressed to turn on the proper characterisation of Dr Dayoub's opinion that the appellant could work for four hours per day, three days per week, undertaking office‑based duties. This was an opinion which Dr Dayoub expressed after saying that he considered that the appellant was fit to participate in vocational rehabilitation.
2. Given the importance of the relevant opinions of Dr Dayoub, it is desirable to set them out fully:[35]
   1. Whether in your opinion, [the appellant] is currently fit to perform his pre‑accident employment duties as a dish hand and if so, whether he is fit to perform those duties at his pre‑accident hours. If not, why not?

He is unfit for work as a kitchenhand at present. His inability to work is related to the pre‑existing diagnosis of bilateral carpal syndrome.

1. If you consider [the appellant] is unfit for work in his pre‑injury role, do you consider him fit for alternative duties? If so, can you give clear certification based on medical grounds alone that [the appellant] has sufficiently recovered or is fit to perform alternative duties?

At present, I find him fit for office‑based duties. (emphasis added)

1. With reference to Dr Slinger's opinion, do you agree with him that [the appellant] is totally incapacitated:

(a) for his pre‑Injury employment; and/or

(b) for any other employment to which he might reasonably be considered vocationally suited?

I agree with Dr Slinger that he is unfit for work as a kitchenhand on a full‑time and unrestricted basis. I also agreed that he is not suitable for any employment that he might be considered vocationally suited. However, it should be noted here that his incapacity for work is not related to any injuries that he sustained at work on 14 June 2022 but related to the pre‑existing diagnosis of bilateral carpal tunnel syndrome.

1. If you consider [the appellant] is unfit for work as a dish hand, do you consider he is fit to participate in vocational rehabilitation? If so, how many hours of rehabilitation do you consider [the appellant] capable of performing?

I believe that [the appellant] is fit to participate in vocational rehabilitation. For the time being, he can work for four hours per day, three days per week, undertaking office-based duties. (emphasis added)

1. In our view, on a fair reading of the opinions expressed by Dr Dayoub, he considered that:

(a) the appellant was totally incapacitated for work as a kitchenhand on a full‑time and unrestricted basis;

(b) the appellant was totally incapacitated for any work for which he might be presently vocationally suited;

(c) the appellant was fit to participate in suitable vocational rehabilitation; and

(d) prior to suitable vocational rehabilitation, the appellant had retained a partial capacity for work for four hours per day, three days per week, undertaking office‑based duties.

1. Our interpretation of the opinion of Dr Dayoub set out in the last sub‑paragraph is based upon the answer he provides to question 13, as well as the answer to question 15. He considers that the appellant is 'at present' fit for office duties, and that he can perform these 'for the time being' (ie in the meantime) prior to vocational rehabilitation.
2. This interpretation of Dr Dayoub's opinion is consistent with the primary judge's view that there was a conflict between the views of Mr Slinger and Dr Dayoub about whether the appellant was totally incapacitated from performing limited sedentary work.[36]
3. However, the appellant contends that the primary judge 'mischaracterised Dr Dayoub's evidence insofar as it related to the appellant's capacity to work' (particular (a) of ground 1). The particular mischaracterisation is set out in paragraphs 26 - 28 of the appellant's written submissions:[37]

At [145] ‑ [148] of the reasons, the primary judge outlined the evidence of Dr Dayoub and identified that Dr Dayoub agreed with Dr Slinger that the appellant was unfit for work as a kitchen hand on a full‑time and unrestricted basis and was not suitable for employment for which the appellant might be considered vocationally suited.

Having done so, the learned primary judge correctly identified at [148] that Dr Dayoub considered the appellant was fit to participate in vocational rehabilitation undertaking office‑based duties for four hours per day up to three days per week.

It is submitted that notwithstanding his Honour correctly identified Dr Dayoub's evidence to reveal a capacity to participate in vocational rehabilitation, his Honour thereafter erroneously characterised Dr Dayoub's evidence as certification that the appellant had a partial capacity to work such that the arbitrator was required to consider and analyse evidence of the appellant's suitable alternate roles, transferable skills and educational capacity and authorities on partial incapacity. (emphasis added) (footnotes omitted)

1. The appellant also submits, at paragraph 31 of his written submissions:[38]

Despite accepting at [102] that once the arbitrator had concluded the medical evidence established total incapacity the arbitrator need not consider evidence of a retained earning capacity unless the arbitrator found a partial incapacity, the primary judge, by characterising Dr Dayoub's evidence of fitness for vocational rehabilitation to [be] evidence of 'partial capacity to earn', erroneously imposed a requirement that the arbitrator do just that.' (emphasis added)

1. In other words, the appellant contends that Dr Dayoub's opinion should be characterised as meaning that the appellant was totally incapacitated from working but fit to undertake vocational rehabilitation engaging in office‑based duties for four hours per day, three days per week. The appellant effectively says it is a mischaracterisation to say that Dr Dayoub was of the opinion that the appellant could undertake office‑based duties for the nominated hours prior to vocational rehabilitation.
2. We do not accept this to be correct, for the reasons we have outlined. In order for this to be the proper inference to draw, it would be necessary to understand what Dr Dayoub meant when he referred to 'employment that [the appellant] might be considered vocationally suited.' In context, we do not think that this was intended to cover sedentary, office-based duties. Dr Dayoub referred to such duties separately.
3. During oral argument, the appellant's counsel accepted that the appeal based upon ground 1 must fail if the appellant's 'mischaracterisation' submission was not correct. That concession was correctly made. For the reasons we have given the appellant's mischaracterisation submission must be rejected. Consequently, ground 1 of the appeal does not succeed.

1. In any event, irrespective of the proper characterisation of the medical opinions, the arbitrator's reasons failed to identify the facts that the arbitrator accepted in deciding that the appellant was totally incapacitated for work.
2. Whether or not Mr Slinger and Dr Dayoub were in complete agreement about the appellant's capacity to work, there was still the objective evidence of the work which the appellant had carried out at Telstra and as a traffic controller, as well as the university studies which he had been pursuing. As the respondent's submission to the arbitrator quoted at [9] above demonstrates, these matters were relied upon by the respondent before the arbitrator to show that any incapacity which the appellant had sustained was, at most, partial. The contest between the parties before the arbitrator did not depend solely on the medical evidence.
3. The opinion of Mr Slinger, which the arbitrator accepted, was relevantly that the appellant was incapacitated from 'other jobs which might be described as reasonably within his sphere'. Dr Dayoub expressed the view as to the appellant's fitness for any employment for which 'he might be considered vocationally suited'. The arbitrator's ultimate finding was that the appellant was totally incapacitated for 'suitable alternative work'.
4. Given the submissions advanced by the respondent, a conclusion of total incapacity required a finding as to the kind of work the appellant was vocationally suited for, and the impact of CTS on his ability to do that work. Given the appellant's previous employment in administrative roles and university studies, it was not an inevitable conclusion that he was suited only for manual work which CTS would obviously impair him from performing. In order to conclude that the appellant was totally incapacitated, the arbitrator must have formed a view about these matters, but that view is not apparent from the reasons given by the arbitrator.
5. As the High Court observed in Wingfoot Australia Partners Pty Ltd v Kocak,[39] the content of a statutory duty of an administrative body (in that case a medical panel) to give reasons defines the statutory standard that a written statement of reasons must meet to fulfil it. The standard required of a written statement of reasons falls therefore to be determined as an exercise in statutory construction. In the absence of express statutory prescription, that standard can be determined only by a process of implication. The nature of the function performed and the objective in requiring reasons to be provided may be significant in undertaking that exercise.[40]
6. The nature of the function of the arbitrator in the present case was to make a binding determination of the appellant's entitlement to payments of workers' compensation. The general object of the 1981 Act was to make provisions for the hearing and determination of disputes 'in a manner that is fair, just, economical, informal and quick'.[41] As this court observed in River Hill Contracting Pty Ltd v Moore:[42]

The [1981 Act] aims to establish a system for resolution of compensation disputes which is timely, cost effective, accessible and in which arbitrated disputes are determined according to their substantial merits with as little formality and technicality as practicable. The length and complexity of the legislative labyrinth which successive amendments to the Act have created challenges the achievement of that objective. Too often, workers' compensation disputes seem to become mired in technical procedural arguments, resolved by long and over‑elaborate reasons for arbitral decisions which take many months to produce. It is important that those charged with the difficult responsibility of navigating through the legislative maze bear in mind the need to focus on the fair and efficient determination of the substantive merits of the case.

1. This context counts strongly against construing s 213(4) of the 1981 Act as imposing a duty to provide reasons equivalent to that which might be imposed on a court. It also strongly supports an inference, often drawn in other contexts,[43] that no standard of perfection is required in the preparation of reasons, and they are to be considered fairly and not combed through with a 'fine appellate toothcomb' to find error. As this court recently recognised in Zamora:[44]

It is not simply that s 213(4) prescribed the extent of the content and detail required of the arbitrator's reasons. Two further matters are relevant. First, as has already been mentioned in addressing the question of procedural fairness, the relevant workers' compensation legislation sought to establish a system for determining workers' compensation disputes that was accessible, cost effective and timely in which arbitrated disputes were determined according to their substantive merits with as little formality and technicality as practicable. The adequacy of an arbitrator's reasons is to be assessed in the context of the informal and timely way in which it is expected that an arbitrator will deal with a dispute for determination. It would not, for example, be appropriate to find inadequacy in an arbitrator's reasons due to mere infelicities in language. An arbitrator may be expected to express his or her conclusions with an economy that is consistent with the nature of the dispute determination system established by the legislation.

Second, the ambit of any appeal from the arbitrator's decision is confined by the terms of the workers' compensation legislation. An appeal must 'involve' a question of law (on an appeal to the District Court) or 'relate' to a question of law (on a further appeal to this court). An important function of reasons is to facilitate the exercise of the relevant statutory right of appeal. In assessing the adequacy of the arbitrator's reasons by reference to whether the reasons deprive the appellant of an effective right of appeal, due regard must be had to the limited grounds which might sustain an appeal. Importantly, no appeal lies on a pure question of fact.

1. However, as was held in Velez,[45] and reaffirmed in Zamora,[46] in identifying the facts accepted and the reasons for doing so, and the law applied and the reasons for doing so, the arbitrator will still be obliged to expose the reasoning process linking them and justifying the ultimate result.
2. In our view, not all of the deficiencies in the arbitrator's reasons identified by the primary judge in the present case constituted a failure to provide reasons of the kind required by s 213(4) of the 1981 Act. For example, the primary judge's comments about the arbitrator wrongly finding inconsistency between Dr Dayoub's reports[47] were concerned with the merits of the arbitrator's decision rather than the adequacy of the arbitrator's reasons.[48] The finding that it was necessary for the arbitrator to identify the factual basis of Mr Slinger's opinion[49] may impose an impossible standard when the evidentiary material before the arbitrator did not reveal what Mr Slinger considered to be 'other jobs which might be described as reasonably within [the appellant's] sphere'. We do not agree that the absence of reference to authorities on partial incapacity supports a finding that the arbitrator did not identify the law he applied in coming to a conclusion on total incapacity.[50] Nor, in our view, does anything arise from whether the arbitrator was in error in referring to Mr Slinger as the appellant's 'treating' orthopaedic surgeon.[51]
3. However, given the evidence and the way the case was argued before the arbitrator, the primary judge correctly concluded that the arbitrator failed to comply with the statutory obligation to identify the facts that the arbitrator accepted in coming to the decision. As the primary judge correctly held:
   1. The arbitrator's reasons did not disclose why he concluded that the appellant did not have a capacity to obtain employment in sedentary type roles within the Albany labour market.
   2. The arbitrator's conclusion that the appellant was incapacitated for 'suitable alternative work' required an analysis of what suitable alternative work may or may not exist.
   3. The arbitrator's reasons did not, in this regard, identify the facts, along with the reasoning process, that the arbitrator has accepted in coming to the decision of total incapacity.
4. This aspect of the primary judge's reasoning was correct and provides a further basis for concluding that appeal ground 1 is not established.

1. The primary judge concluded that there was an error by the arbitrator in not adequately considering whether the appellant had partial capacity to work, and in finding that there was little or no work available in the Albany labour market for the appellant to perform 'other than event management etc'.
2. Whether the primary judge should have ordered a new hearing of all issues or only a limited rehearing is a discretionary decision.
3. The primary judge adopted what was said in McKay v Commissioner of Main Roads.[52] The starting point is that, generally speaking, if there is to be a new trial it ought to be of the case as a whole, unless the court thinks that it will do more injustice by setting the matter at large again.
4. The court in McKay then went on to refer to two particular situations where a retrial of all issues would be appropriate:[53]

(a) where the court considers that it is difficult to 'disjoin' the issue which makes the retrial necessary from other issues in the case, it will be appropriate to order a retrial of all such issues; and

(b) similarly, a new trial should not be limited if there is a 'real chance' of the primary court having erred in the wider case.

1. The trial judge found that there was a 'real chance' of the primary court having erred in the wider case, given the challenges to the appellant's evidence in the hearing before the arbitrator.
2. The appellant appeals against the finding of the primary judge that there was a 'real chance' of the arbitrator having erred in the wider case, and says that there was no such 'real chance'. The appellant also maintains that remitting the matter for a rehearing on all issues would cause substantial injustice to the appellant. It is submitted that this is because it is possible to separate findings as to partial or total incapacity from other issues of credibility, 'injury', and the appellant's entitlement to statutory allowances, which were not challenged by the respondent in the primary appeal.
3. In our view, it is important to observe the connection between all of the major issues which the arbitrator had to decide. The arbitrator himself said that the appellant's credibility would be 'largely determinative' of each of the issues for determination, namely whether the appellant had pre‑existing CTS, whether the CTS developed while the appellant was employed by the respondent, whether the appellant had suffered an incapacity and the extent of that incapacity.[54] Indeed, the arbitrator referred to the paradoxical submission that the appellant had been honest about his own dishonesty.[55] That is obviously something which needs to be assessed by one tribunal of fact.
4. It follows that this is a case where it is impossible to 'disjoin' the issues in contention due to underlying credibility issues of the appellant's evidence. That is to say, it is a case within the first category mentioned in McKay. We do not consider that there was any error of law by the primary judge in ordering a retrial on all issues, having regard to the credibility connection between these issues.
5. As to whether there is a 'real chance' of the error of the arbitrator on the question of partial incapacity having infected the wider case, it seems to us that the error here was the failure of the arbitrator to consider whether the appellant's recent office‑based and sedentary work meant that he had partial capacity to carry out some duties. This meant that the arbitrator avoided making credibility findings based upon this issue, which may well have had a consequential effect upon the other issues.
6. Whether there was a 'real chance' of the arbitrator having erred in the wider case is a low threshold to cross. Taking into consideration that questions of credibility are relevant to each of the findings in this case, we consider that the primary judge was justified in considering that there was a 'real chance' of the error on the question of partial incapacity having affected the findings on the other issues. This placed the case in the second category referred to in McKay as well.[56]
7. Consequently, this ground cannot succeed. We would not grant leave to appeal on this ground. In our view, given the low threshold of 'real chance' and the interconnection between all of the issues, it does not raise any arguable question of law.

1. For these reasons, we would refuse leave to appeal and dismiss the appeal. We would hear from the parties as to the costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Arbitrator's decision [67] (Blue AB 122).

[2] See s 254 of the 1981 Act and s 393 of the Workers' Compensation and Injury Management Act 2023 (WA) (which came into effect on 1 July 2024). As there is no material difference between the repealed and new provisions, it is unnecessary to determine which provision governs the present appeal: Zamora v OCS Services Pty Ltd [2025] WASCA 117 [39].

[3] Arbitrator's decision [56] (Blue AB 119).

[5] Workers' Compensation and Injury Management Arbitration Rules 2011 (WA) r 58 and r 59.

[6] Arbitrator's decision [57] - [58] (Blue AB 119).

[7] Arbitrator's decision [59] (Blue AB 119 - 120).

[8] Arbitrator's decision [60] - [61] (Blue AB 120).

[9] DK Hospitality 2 Pty Ltd v Escott [2024] WADC 67 (DC Reasons) [149], citing Velez Pty Ltd v Tudor [2011] WASCA 218 [70] (Murphy JA, Pullin & Newnes JJA agreeing).

[14] Dayoub report, 17 May 2023 (Green AB 272).

[15] Dayoub report, 17 May 2023 (Green AB 272).

[26] Arbitrator's decision [56] (Blue AB 119).

[32] McKay v Commissioner of Main Roads [2013] WASCA 135 [357].

[35] Dayoub report, 17 May 2023 (Green AB 271 ‑ 272).

[39] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 [43] - [44].

[42] River Hill Contracting Pty Ltd v Moore [2023] WASCA 111 [1].

[43] See, for example, Re Medical Assessment Panel; Ex parte Hays (Unreported WASC, Library No 980575), 6 ‑ 7; Re Bannan; Ex parte Suleski [2001] WASCA 289 [12]; Coffey LPM Ltd v Contaminated Sites Committee [2014] WASC 504 [76] - [77].

[52] McKay v Commissioner of Main Roads [2013] WASCA 135 [357].

[54] Arbitrator's decision [23] ‑ [24] (Blue AB 106 ‑ 107).

[55] Arbitrator's decision [40] (Blue AB 114 and footnote 2).

[56] McKay v Commissioner of Main Roads [2013] WASCA 135 [357].