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Incapacity survives video 28 WCMS

Tweed Shire Council v Garrie Marriott [2008] NSWCA 166. Ipp JA, Beazley JA & Handley AJA agreeing. 08.07.08.

Beazley JA and Handley AJA simply agreed with Ipp JA who delivered the leading judgment, dismissing with costs the employer's evidence, fairness and reasons appeal.

The worker had obtained lump sums on his lumbar pathology, and had been confronted with surveillance video at hearing.

Arbitrator Ms Anne-Marie Nicholl made a s 38 and s 40 award. Candy ADP [at  PD 102] reduced the s40 award.

On evidence and its weight,  Ipp JA said [13]: "The approach of the acting deputy president was correct. He had to determine what value was to be given to the evidence before him and to make up his own mind on the issues. He did not accept all the evidence tendered on behalf of Mr Marriott and he did not accept all the evidence tendered on behalf of the Council. He was entitled to adopt this approach. Essentially the decision he made was one of fact. In my view there is no issue of law revealed, as was submitted on behalf of the Council. "

The procedural fairness complaint arose from telephone conference dialogue between the acting deputy president and the employer's counsel, where the officer had agreed with the proposition that, where evidence was erroneously excluded, a usual appeal course was to remit.

Ipp JA [19]: "It is true that the acting deputy president was discussing what would occur were the appeal to succeed on one particular basis, and there were other bases on which he upheld the appeal. Nevertheless, it is significant that counsel then appearing for the Council did not respond in any way to the submission that the matter should not go back to the arbitrator. I do not think that there was a tacit understanding (as the Council submitted) that, should the appeal succeed, the matter should be remitted."

And Mr Candy's reasons were adequate.

Ipp JA: "In the context of the acting deputy president's reasons as a whole, it is apparent, as I have already mentioned, that having referred to all the relevant evidence and the different opinions given and having himself seen the video, he made up his own mind as to incapacity, which indeed was his duty.

"In the course of his reasons, he explained why he accepted neither Mr Marriott's contentions as to the degree of incapacity, nor the Council's evidence that there was no incapacity. He concluded that some incapacity remained. The inference is that he accepted the evidence (that he had recounted) that supported a finding of a limited loss of capacity.

"I accept, as was submitted this morning, that, by reason of the video, the Council's doctors discounted much of the reasoning and findings on which Mr Marriott's doctors based their evidence, and Mr Marriott's doctors did not see the video.

"This was a particularly forceful point to make at trial in arguing that the evidence of Mr Marriott's doctors should be rejected. On appeal, however, the point has no cogency as it does not give rise to an error of law."

A:  L King SC, J Catsanos, ins Bartier Perry . R:  P Rickard, White Barnes.

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