Thinking | 1 July 2020

No compensation due to (not so shocking) finding of fact: worker’s appeal dismissed after electric shock injury

By Rosena De Freitas and Rhonda Carson 

The District Court has dismissed a worker’s appeal that he had suffered an alleged electric shock injury from a cash register at a drive-through bottle shop, as no question of law was involved.

Nathan Tupaea was employed at a Liquorland outlet on 8 February 2019 when the alleged incident occurred. Liability was not accepted. Conciliation failed to resolve the dispute and the matter proceeded to arbitration.

The arbitrator dismissed the application on the basis that Mr Tupaea had not discharged his burden of proof to establish that he suffered a personal injury by accident (paragraph (a), definition of ‘injury’ of the Workers’ Compensation and Injury Management Act 1981 (WA)).

On appeal, a preliminary issue arose as to whether the arbitrator should have addressed, in the alternative, whether the appellant suffered the recurrence, aggravation or acceleration of a pre‑existing disease (paragraph (d) ‘injury’).

The arbitrator had found that Mr Tupaea’s evidence, at its highest, established it was possible that he may have suffered an electric shock. However, when the evidence was taken as a whole, the arbitrator was not persuaded that it was probable. As such, the issue as to whether the appellant sustained a section 5(1)(a) or in the alternative a section 5(1)(d) injury was irrelevant.

His Honour Judge Troy identified a fundamental problem that, unless Mr Tupaea could establish a demonstrable error of law in some aspect of the arbitrator’s approach, the finding of fact that Mr Tupaea did not suffer an electric shock should stand. Mr Tupaea adduced no expert evidence in this regard, relying solely on his own testimony. Coles relied upon expert evidence to refute the allegation that Mr Tupaea received an electric shock.

His Honour observed that a criticism directed to the weight arbitrators afford to one party’s evidence over that adduced by the other party is a complaint about a fact finding exercise and not an error of law. His Honour referred to section 188(2)(b) of the Act, which requires arbitrators to conduct hearings 'according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms’. His Honour cited O'Neal DCJ’s comments in MacMahon Holdings Ltd v Mckenzie [2018] WADC 28, that s188 is a provision ‘which parties seem content to abide by in arbitration proceedings, right up to the point that they receive an adverse decision'.

Based solely on the evidence before the arbitrator, his Honour Judge Troy considered that Mr Tupaea did not sustain an electric shock. Hence, the issue of whether Mr Tupaea suffered a recurrence, aggravation or acceleration of a pre-existing disease was a complaint with respect to the arbitrator’s fact-finding exercise.

His Honour then addressed a contention raised by Mr Tupaea for the first time on appeal – that the arbitrator failed to consider the ‘reverse onus of proof’ provisions. Section 44 and Schedule 3 create a presumption that 'exposure to an electrical current' will result in a disease 'the effect of an electric current', resulting from a worker's employment. If a worker can establish that, then the onus of proof shifts to the employer to prove that the disease was not due to the employment.

Mr Tupaea contended that the arbitrator erred in law in not considering this of his own volition. His Honour found that, when the arbitrator determines the fundamental issue according to the means identified by each party – as opposed to an alternative which no one urged upon him – this was not an error of law.

This decision yet again highlights that a criticism directed to the weight the arbitrator attributes to specific evidence is a complaint about a finding of fact and therefore is not an error of law. However, an error of law will still arise if there have been findings of fact made, or inferences drawn, without any evidence to support them.

It also confirms that an arbitrator will only determine the issues that are put before him/her, and a party bears the responsibility of raising any other alternatives that could be open to a party to the arbitration for determination.

Tupaea v Coles Liquor [2020] WADC 83

Contact

Rosena De Freitas

Rosena is an insurance lawyer with extensive experience in workers’ compensation and personal injury matters.

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