Anderson v Mercy Hospital Mount Lawley

[2020] WASCA 42

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Workers' Compensation
2. › Injury
3. › Definition of injury under s 5
4. › Psychiatric condition
5. › Whether employment was significant contributing factor
6. › Whether arbitrator erred in failing to determine issue not raised by claimant
7. › Workers' Compensation and Injury Management Act 1981 (WA), s 5
1. Appeal
2. › New point on appeal
3. › Whether appellant should be permitted to raise argument not advanced below
4. › Whether argument could have been met by further evidence
5. › Interests of justice
1. Administrative Law
2. › Tribunals
3. › Workers' compensation arbitrator
4. › Obligation to act according to equity, good conscience and substantial merits
5. › Whether obligation requires arbitrator to consider case not put by any party
6. › Procedural fairness
7. › Workers' Compensation and Injury Management Act 1981 (WA), s 188

Quick Take

A workers' compensation arbitrator's obligation under s 188(2) of the Workers' Compensation and Injury Management Act 1981 (WA) to act according to equity, good conscience and the substantial merits of the case does not require the arbitrator to consider a basis for finding for a party that was substantially outside the case put by that party. The parties' formulation of their case is not a 'technicality' to be disregarded under s 188(2) but a fundamental element of procedural fairness. A claimant who invites rejection of a particular expert's evidence at the arbitration cannot on appeal seek to rely on that evidence as an alternative basis for the claim.