Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 (4 March 2005)

CITATION: Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42

FILE NUMBER(S):

40973/03

HEARING DATE(S): 19 July 2004

JUDGMENT DATE: 04/03/2005

PARTIES:

Hevi Lift (PNG) Ltd (Appellant)

Bruce Etherington (Respondent)

JUDGMENT OF: Mason P Beazley JA McColl JA

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S): CC 3364/02

LOWER COURT JUDICIAL OFFICER: Walker CCJ

COUNSEL:

T M Wardell (Appellant)

J W Dodd (Respondent)

SOLICITORS:

Goldbergs (Appellant)

Long Howland (Respondent)

CATCHWORDS:

WORKERS COMPENSATION - employment - substantial contributing factor - recess claim - test to be applied - JUDICIAL OFFICERS - obligation to give adequate reasons - EXPERT EVIDENCE. (D)

LEGISLATION CITED:

Compensation Court Act 1984 (NSW)

Compensation Act 1998 (NSW)

Compensation Court Repeal Act 2002 (NSW)

Compensation Court Repeal (Transitional) Regulation 2003 (NSW)

Suitors' Fund Act 1951 (NSW)

Workers Compensation Act 1987 (NSW)

DECISION:

1. Appeal allowed. 2. Award set aside. 3. Order that the matter be remitted to the District Court for re-determination in accordance with law. 4. Respondent to pay appellant's costs of the appeal and have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise eligible.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40973/03

CC 3364/02

MASON P

BEAZLEY JA

McCOLL JA

Friday, 4 March 2005

HEVI LIFT (PNG) LIMITED v Bruce ETHERINGTON

The respondent was awarded weekly benefits in the Compensation Court pursuant to s 40 of the Workers Compensation Act 1987 (NSW) (“the Act”). He suffered extreme pain in his back after getting up from a couch in staff quarters in which he resided for the purpose of carrying out his employment. An MRI scan revealed a central prolapsed disc at L4/5 associated with lumbar spinal stenosis and exit foraminal stenosis. A laminectomy with discectomy at L4/5 was performed.

At the time of the injury the respondent was employed as a helicopter pilot operating out of Dacca in Bangladesh. He was on 24 hour call. He worked 28 days on, 28 days off. The respondent argued that his injury was suffered while he was on a recess (s 11 of the Act) so that he was not required to establish that his employment had substantially contributed to his injury (s 9A(4) of the Act). The primary judge rejected that claim, finding that because the respondent’s hours of work were 24 hours a day, any event within those 24 hours occurred within his normal hours of work and, accordingly, was not a recess.

The respondent then advanced his claim that his employment was a substantial contributing factor to his injury on two bases (s 9A(1) of the Act). He argued first, that he had a “nature and conditions” injury caused by the general conditions of his work and, secondly, a frank injury suffered as he got up from a couch in the staff quarters.

The primary judge concluded that the respondent established he was entitled to an award of compensation on the basis that the employment was a substantial contributing factor to the injury. He reached that conclusion by having regard to the respondent’s medical reports, his commonsense and the sequence of events.

The appellant submitted that the primary judge had erred in law in concluding that the respondent had discharged the onus of demonstrating that his employment was a substantial contributing factor to his back injury within the meaning of s 9A of the Act. The appellant contended that there was no evidence of any causal nexus between the respondent’s employment and his ruptured disc. It contended that the respondent’s medical reports evidence did not rise above a bare ipse dixit and could not support the conclusion that there was a causal nexus between the respondent’s employment and his ruptured disc. It also argued that the commonsense matters to which the primary judge referred were inadequate in the absence of expert medical opinion to establish the causal connection required by s 9A. The appellant also argued that the primary judge’s chain of causation did not assist, absent expert opinion, as a pre-existing degenerative condition of the back from which the respondent had suffered may have deteriorated over time irrespective of activity. In addition the appellant argued that the primary judge’s reasons were inadequate.

By notice of contention the respondent argued that the award in his favour should be sustained on the basis that he was on a recess at the time he suffered injury.

The appeal was confined to errors of law: s 32(1) Compensation Court Act 1984 (NSW) continued in force by virtue of cl 8(2)(a) of the Compensation Court Repeal (Transitional) Regulation 2003 (NSW).

HELD per McColl JA (Mason P and Beazley JA agreeing), upholding the appeal:

Notice of Contention

1. The primary judge erred in determining whether the respondent was injured during an “ordinary recess”.

2. An “ordinary recess” is a break that occurs during a continuous period of work. It is irrelevant whether that period of work is 8 or 24 hours a day, as long as the interval during which the injury occurs can be characterised as having occurred during the period of employment rather than when the employee is off duty.

Landers v Dawson [1964] HCA 35; (1964) 110 CLR 644 referred to; Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580; Hatzimanolis v ANI Corporation Limited [1992] HCA 21; (1992) 173 CLR 473 considered.

3. The Notice of Contention should be rejected, however, because, at the time of his injury, the respondent was not temporarily absent from his place of employment: s 11(a) of the Act.

Appeal

4. The question whether there is any evidence of a particular fact is a question of law. If the primary judge erred in this respect his conclusion can be reviewed on appeal as long as the error vitiated the ultimate decision.

Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139; Yates Property Corp Pty Limited (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Minister Administering the Crown Lands Act v Deerubbin LALC (1998) 43 NSWLR 249; Terrace Towers Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195; Miller v Commissioner of Police NSW [2004] NSWCA 356 referred to.

5. The primary judge erred in according weight to the respondent’s medical reports. They were incapable of constituting evidence capable of satisfying the s 9A requirement that the respondent’s employment was a substantial contributing factor to either of the mechanisms of injury upon which he relied.

Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34; R v Jenkins; Ex parte Morrison (No 2) [1949] VLR 277; R v Hally [1962] Qd R 214; Steffen v Ruban [1966] 2 NSWR 622; Perry v R (1990) 49 A Crim R 243; Brown v Iontask Pty Ltd (2002) 24 NSWCCR 231; Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Cross on Evidence referred to.

6. The primary judge was not entitled to conclude that an opinion expressed in a medical report carried weight by relying upon general knowledge of back impairments derived from his experience in the Compensation Court to infer how, in the absence of any identified factual basis, a doctor formed his opinion.

Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; ICI Australia Operations Pty Limited v WorkCover Authority of New South Wales [2004] NSWCA 55; (2004) 60 NSWLR 18; J & K Clothing Pty Ltd v Mahmoud [2004] NSWCA 207 referred to.

7. The primary judge was entitled to apply common sense and examine the sequence of events in seeking to determine whether there was a casual relationship between the respondent’s employment and his injury.

Adelaide Stevedoring Co Ltd v Frost [1940] HCA 45; (1940) 64 CLR 538; Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720, MMI Workers Compensation (NSW) v Kennedy [1993] NSWCC 26; (1993) 9 NSWCCR 482; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; Commonwealth v McLean (1996) 41 NSWLR 389; Pioneer Construction Material Pty Ltd v Millsom [2002] NSWCA 258; McDonald t/as BE McDonald Transport v Girkaid Pty Ltd [2004] NSWCA 297 referred to.

8. The primary judge’s reasons for concluding that the respondent’s employment substantially contributed to his injury were inadequate.

Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430; Mercer v Australia & New Zealand Banking Group Ltd [2000] NSWCA 138; (2000) 48 NSWLR 740; Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174; (2004) 60 NSWLR 127 referred to.

9. As it was not apparent that the primary judge’s use of the weightless medical reports vitiated the ultimate decision and as there was some evidence on which the primary judge could base his finding that the respondent’s employment was a substantial contributing factor to the nature and conditions injury, the matter must be re-determined.

ORDERS

(1) Appeal allowed.

(2) Award set aside.

(3) Matter remitted to the District Court for re-determination in accordance with law.

(4) Respondent to pay appellant’s costs of the appeal and have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise eligible.

**********

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40973/03

CC 3364/02

MASON P

BEAZLEY JA

McCOLL JA

Friday, 4 March 2005

HEVI LIFT (PNG) LIMITED v Bruce ETHERINGTON

Judgment

1 MASON P: I agree with McColl JA.

2 BEAZLEY JA: I agree with McColl JA.

3 McCOLL JA: This is an appeal from a decision of Walker CCJ in favour of the respondent in his application for weekly benefits pursuant to s 40 of the Workers Compensation Act 1987 (NSW) (“the Act”) in respect of an injury to his back.

4 The respondent sought compensation in respect of back injuries he alleged arose out of and in the course of his employment with the appellant as a helicopter pilot. He said he had suffered injury by two mechanisms:

(a) a “nature and conditions” injury caused by the general conditions of his work; and

(b) a frank injury suffered on 15 February 2000 as he got up from a couch in the staff quarters in Dacca, Bangladesh, where he was stationed.

5 The primary judge found that the respondent was entitled to an award of compensation on the basis that he had proved that his employment with the appellant was a substantial contributing factor to his permanent back impairment within s 9A of the Act. The appellant appeals from that decision.

6 Prior to its abolition on 1 January 2004 by s 4(2) of the Compensation Court Repeal Act 2002 (NSW), an appeal from a decision of the Compensation Court was limited to errors of law on the part of the primary judge: s 32(1) Compensation Court Act 1984 (NSW). This limitation survived the abolition of the Compensation Court as s 32 was continued in force by virtue of cl 8(2)(a) of the Compensation Court Repeal (Transitional) Regulation 2003 (NSW) subject to the proviso that any reference to the Compensation Court in s 32 was to be read as a reference to the District Court: 8(2)(b). Accordingly the appeal is confined to errors of law.

Statement of the case

7 The appellant employed the respondent as a helicopter pilot. In 1997 he was transferred to work on a contract the appellant had with a Texan corporation, Unical, which was drilling for oil in Bangladesh. The respondent was required to live in designated quarters in Dacca where work facilities were provided and where he could be readily contacted. He was on call 24 hours a day. He was entitled to breaks described as recesses however these were very flexible and depended on the exigencies of the job. The primary judge found (at [11]) that the respondent’s hours of work were 24 hours a day. The respondent worked on a 28 days on, 28 days off basis. His Honour found the respondent enjoyed those special leave conditions because of the arduous nature of the flying and the requirement that he be on 24 hour call.

8 The primary judge found that the duties required of the respondent relevantly included:

· flying the helicopter solo, as the passenger seat was occupied by an armed guard for security reasons;

· being on 24 hours standby for all flight duties;

· ferrying heavy equipment, often slung externally beneath the helicopter, to oil rigs;

· cleaning and refuelling the helicopter with the assistance of an aeronautical engineer, which involved wheeling the aircraft in and out of its hanger and manhandling drums of aviation fuel;

· providing paperwork concerning the helicopter and its work and communicating electronically with the appellant in Australia. Much of this work was performed at the designated staff quarters.

9 On 14 February 2000 the respondent returned to Dacca following 28 days leave in Australia.

10 He did not fly his helicopter on 15 February 2000, but attended to maintenance during the morning. In the afternoon, he returned to his staff quarters to do some paper work, including trying to upgrade his computer system. When he finished work he sat on a couch and watched television. He got up to go to the refrigerator but had taken only a few steps when he felt extreme pain in his back. He fell to the floor unable to walk. He was taken to a doctor on a door removed from its hinges and used as a stretcher.

11 He was transported to Singapore where an MRI scan revealed a central prolapsed disc at L4/5 associated with lumbar spinal stenosis and exit foraminal stenosis. Doctor Khoo, a neurosurgeon, operated on his back on 17 February 2000, performing a laminectomy with discectomy at L4/5.

The recess claim

12 Section 9A(1) of the Act provides that unless the applicant’s employment was a substantial contributing factor to an injury, no compensation is payable under the Act. Section 9A(1) does not apply, however to an injury to which s 11 of the Act applies: s 9A(4). Section 11 provides:

“11 Recess claims

If a worker on any day on which the worker has attended at the worker’s place of employment pursuant to the worker’s contract of service or training contract -

(a) is temporarily absent from that place on that day during any ordinary recess or authorised absence,

(b) does not during that absence voluntarily subject himself or herself to any abnormal risk of injury, and

(c) receives a personal injury during that absence,

the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.”

13 The respondent submitted before the primary judge that the frank injury he suffered on 15 February 2000 occurred during an “ordinary recess” thus attracting the operation of s 11.

14 The primary judge rejected the respondent’s s 11 case. Having found that the respondent’s hours of work were 24 hours a day it followed, in his Honour’s view, that “any event within that 24 hours occurred within his normal hours of work and [was] not a recess.” He also recorded with apparent approval (at [15]) the appellant’s submission that if the respondent was on 24 hour call, he could not have been temporarily absent from his place of employment. His Honour held (at [18]):

“The [respondent’s] uncontested evidence is that for security and logistic reasons he and other employees were obliged by his employer to reside in a residence owned by Unical in Dacca. He was also provided with work facilities at the residence including a computer and conducted work there.”

15 The primary judge concluded (at [20]) that the frank injury on 15 February 2000 occurred during “an interval or interlude within an overall period of work in the course of his employment”, rather than during an “ordinary recess” within the meaning of s 11 of the Act.

16 Rejection of the recess claim meant that the primary judge had to determine the respondent’s case that his work was a substantial contributing factor to his injury: s 9A(1).

The medical evidence issue

17 The appellant submitted before the primary judge that there was no evidence to support the s 9A case. It argued that the respondent’s medical evidence had no weight.

18 All the medical reports were tendered without objection. There was disagreement between the medical experts who examined the respondent as to the cause of his back injury. None of the experts were cross-examined.

19 The respondent tendered two reports from Doctor Selby Brown, an orthopaedic specialist. Doctor Selby Brown conducted a clinical examination of the respondent as well as studying CT and MRI scans. He concluded, in his report of 18 April 2002, that the respondent’s employment with the appellant had been “a significant contributing factor to his present condition”.

20 The respondent also tendered a report dated 12 April 2001 from Doctor Khoo, the surgeon who operated upon him, who noted that the respondent worked “as a pilot” and opined that “[i]t is possible his work could have contributed to his condition”.

21 Doctor Selby Brown did not state any factual basis for his opinion that the respondent’s employment with the appellant had been “a significant contributing factor to his present condition” or identify any aspect of his work that could have contributed to his condition. He did not make any comment regarding the relationship, if any, between the aetiology of the L4/5 disc protrusion he diagnosed and the respondent’s employment. Nowhere in either of his reports did he express the opinion that either of the pleaded mechanisms of injury caused or contributed to the disc rupture, let alone explain the factual or scientific basis upon which such a conclusion might be based. He simply answered the legal test posed by s 9A(1) of the Act in the affirmative.

22 The same comment applies to Doctor Khoo’s opinion. Again, Doctor Khoo did not state the factual basis for his opinion or identify any aspect of the respondent’s work with the appellant which could have contributed to his condition.

23 Medical reports tendered by the appellant expressed a different view. Doctor Sheehy, a neurosurgeon, reported on 19 March 2001 “the most likely aetiology of [the respondent’s] low back symptoms is a mechanical problem with the back itself”.

24 Doctor Christie, an occupational physician, diagnosed a “spontaneous disc rupture” and made the following observations:

“While the vibration in a helicopter may be uncomfortable, it is hard to imagine it as likely to precipitate an acute disc prolapse.

From the point of view of causation Mr Etherington’s disc prolapse apparently occurred while walking to a refrigerator and as such would appear to have been a spontaneous disc rupture. Helicopter or fixed wing piloting may produce backache simply from prolonged sitting. However the seats are usually very ergonomically designed and well adjusted. I can think of no reason why this particular occupation should cause disc rupture, particularly a disc rupture occurring several hours after finishing work. While Mr Etherington’s disc rupture has a temporal connection with his work simply by the fact that it occurred in Bangladesh where he was stationed by his employer, I do not believe that there is any causal connection with his work.”

25 Doctor Innes-Brown, an orthopaedic surgeon, said in his report of 27 September 2002 that the disc prolapse “occurred on a background of longstanding spondylosis, a degenerative condition of the spine affecting the intervertebral and facet joints” and opined “I do not believe the nature and conditions of his work were in any way contributory”. He added in a separate report of the same date that “[t]he impairment is due to both pre-existing degenerative changes and the trauma of getting up from a sitting position in the course of his employment on 15/16 February 2000”.

26 It might also be remarked that, like the respondent’s medical reports, none of the appellant’s medical reports demonstrated any understanding of the nature of the respondent’s work to support the substantive conclusions that that work had not caused or contributed to his back condition.

27 At the conclusion of the evidence Mr Wardell, who appeared for the appellant both at first instance and on appeal, submitted that there was no expert opinion upon which the primary judge could rely to satisfy himself that the respondent’s injury arose out of or was in any way causally related to his employment. This was on the basis that the respondent’s medical reports failed the test as to the admissibility of expert opinion enunciated by Heydon JA (as his Honour then was) in Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (“Makita”). As the reports were already in evidence his Honour (at [26]) treated the issue raised by Mr Wardell’s submission as going to their weight. This was the correct approach: see Heydon JA’s observation in Makita (at 744 [86]) “... no objection was taken to Professor Morton’s evidence, so the only issue for this Court is its weight”.

28 His Honour (at [23] – [24]) referred in detail to Heydon JA’s judgment in Makita and, in particular, to his Honour’s statement (at 743 – 744 [85]) that:

“...so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight.”

29 His Honour also referred (at [24]) (inter alia) to Heydon JA’s critical query (Makita at 745 [87]) as to whether the expert’s report there under consideration went “beyond a bare ipse dixit”, a query which, I note, reflected Heydon JA’s earlier citation (Makita at 729 – 730 [59]) of Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that:

“... the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.”

30 His Honour then observed (at [25]) that in his 6 years as a judicial officer he had “read many thousands of medical reports and found only a handful that might avoid challenge under the Makita tests if they were to be inflexibly applied in a court that operates nearly exclusively on the tender of untested written reports.” He referred to his judgment in Brown v Iontask Pty Ltd (2002) 24 NSWCCR 231 where he had “pointed out in as strong as language as was appropriate the devastating effect that these rules of evidence would have on this jurisdiction if inflexibly applied”.

31 The primary judge then turned to determine the weight he should give to the medical reports. He dealt with Doctor Selby-Brown’s report in the following manner:

“[27] If I may turn to Dr Selby-Brown’s report. It is based on facts observed by the doctor who conducted a clinical examination of the [respondent] as well as studying special investigations in the form of CT and MRI scans. The report also takes a history of the facts from the Applicant which must of course be assumed by the doctor who is not in a position to prove them. Justice Heydon’s requirement that those assumed facts must also be proved in some other way creates a problem for the Applicant to the extent that the Applicant’s sworn evidence does not faithfully recount every detail. However for the purposes of this case the Applicant’s evidence which I accept as truthful confirms the critical details of the frank injury in 15 February 2000. The doctor records only part of the evidence relating to the nature and conditions claim. The much stronger facts attested to by the Applicant including a prior injection for back pain, in my opinion also form a proper foundation for Dr Selby Brown’s opinion.

[28] Dr Selby Brown as an orthopaedic specialist is eminently qualified to express an opinion about a back injury and there is nothing in his report which suggests to me that his opinion was based on anything else than his expertise developed by a great many years of experience treating, and operating on bad backs.

[29] After listening to the Applicant’s history and subsequent medical history studying the special investigations and other medical expert reports and making his own clinical examination Dr Selby Brown concluded that Mr Etherington’s employment with the [appellant] has been a significant contributing factor to his present condition. Now it may well be said that Dr Selby Brown’s ultimate conclusion does not go beyond a bare ipse dixit because it does not, in isolation, state its conclusion in a way that spells out in detail the intellectual basis of the conclusions reached. Nevertheless the report is being presented in the context of the steps taken by the doctor to understand the case in a report to an expert tribunal whose bread and butter is back impairments and which is in a position to draw any necessary inferences from the scientific criteria referred to by Dr Selby Brown to understand how he reached his conclusions and so test their accuracy against the facts proved. Under those circumstances the Makita test is in my opinion met.” (emphasis supplied)

32 The primary judge appears to have concluded at this stage of his judgment at [30] that the other medical reports also met the requirements of Makita presumably (albeit that his Honour did not expressly so state) for the same reasons.

Resolution of the s 9A case

33 His Honour observed (at [34]) that as he had found “the injury occurred during a Hatzimanolis interval at work” that left the appellant “with the s 9A argument that the medical evidence does not support work as a substantial contributing factor”.

34 He identified (at [35]) the issue he was required to determine for the purpose of s 9A as being whether “the activity or task [in which the worker was engaged at the time of the injury] was a ‘substantial contributing factor to an injury’ bearing in mind that concept as exegeted by s 9A(2) and s 9A(3)”, applying Mercer v Australia & New Zealand Banking Group Ltd [2000] NSWCA 138; (2000) 48 NSWLR 740 (“Mercer”). He observed that in Mercer the “Court of Appeal unanimously held that it is the strength of the causal linkage between the employment concerned and the injury that is in question”.

35 His Honour then summarised the medical evidence to which I have referred. Having concluded (at [38]) that there was a disagreement between the experts on the issue of causation, he said that in such circumstances the Court of Appeal had counselled that the issue was to be determined by the application of commonsense “to the question whether the worker’s disabilities resulted from the work injury impugned”.

36 His Honour (at [39]) then set out the chain of causation as he read the evidence. This was, essentially, that prior to 1999 the respondent’s back was asymptomatic, but that while working for the appellant in Bangladesh he noticed backache at the end of the day. On one occasion in about August 1999 he complained about the pain to the company rig doctors and was given a pain killing injection.

37 He set out the respondent’s evidence that the following work troubled his back:

· Flying helicopters for up to 4 hours carrying external loads which required him to pilot the craft looking out constantly at his load with his back in a fixed position;

· Flying old helicopters with external loads for hours at a time enduring heavy vibrations;

· Pulling heavy helicopters in and out of hangars;

· Manhandling very heavy drums of aviation fuel; and

· Maintaining and cleaning the helicopter.

38 The rupture of the respondent’s disc on 15 February 2000 was according to his Honour the final incident in the chain of causation.

39 Notwithstanding his earlier conclusion (at [30]) that the medical reports met the requirements of Makita, his Honour then criticised the medical evidence saying (at [40]):

“None of the medical experts in this case obtained a history of the back pain occurring during flight operations some 6 months prior to the prolapse. This is not surprising given that these examinations took place some 2 to 3 years later when the critical issue then seemed to be the [respondent]’s capacity for work after the operation. However it does raise the question of whether the medical experts who assert a spontaneous rupture may have formed a different view if they had been aware that the [respondent] was suffering backache after work. Another problem with these opinions is that the doctors notably Dr Christie do not seem to appreciate the nature of the piloting work the [respondent] was doing.”

40 He then made the following observations based on his “commonsense”:

“[41] Commonsense suggests to me that flying a violently vibrating helicopter with your body leaning out the window closely watching an external load for hours at a time would place great stress on one’s spine.

[42] Commonsense suggests to me that pulling a heavy helicopter in and out of hangers [sic] and manhandling 205 kg drums of aviation fuel would also place great stress on one’s back.

[43] Commonsense suggests to me that the degenerate lumbar spine described by Dr Khoo would not take kindly to such stressful treatment which would likely aggravate and accelerate the spondylosis.

[44] Commonsense suggests to me that the stress of lifting one’s body out of a couch is more likely to cause a degenerate disc to rupture than simply walking.”

41 The primary judge concluded (at [45]):

“Taking all the evidence into consideration, on the balance of probabilities, I determine that arising out of and in the course of his employment with [the appellant] the nature and conditions of the Applicant’s work and the spinal stress involved in rising from the couch on 15 February 2000 caused his pre-existing degenerate L4/5 disc to rupture."

42 After referring again to Mercer, he said (at [47]), that taking into account the factors in s 9A(2)(a) – (f) the respondent had proved that his employment was a substantial contributing factor to his back injury.

43 His Honour made an award in favour of the respondent which included an order that the appellant pay him $12000 pursuant to s 66, $12,500 pursuant to s 67 and weekly benefits both for the past and for the future at specified rates.

44 In considering the respondent’s s 66 entitlement, the primary judge said (at [51]) that the respondent had “undoubtedly suffered from a pre-existing back impairment in the form of a spondylosis at L4/5 and its facet joints”. He referred to Doctor Innes-Brown who had attributed 75% of the respondent’s permanent back impairment to his pre-existing degenerative changes and 25% to the stress applied to his spine in the 15 February 2000 incident, but noted that he had not agreed with Doctor Innes-Brown on causation – and, accordingly, implicitly rejected his apportionment opinion. Having observed that no other expert had expressed an opinion on apportionment, his Honour applied s 323(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) to reduce the respondent’s s 66 award by 2%. Neither party complained about this approach.

Notice of Contention

45 The respondent argued by Notice of Contention that the primary judge’s award of compensation could be supported on the following grounds in addition to those determined in his favour:

“1. That the Respondent’s injury occurred during an ordinary recess or authorised absence pursuant to section 11 of the Workers Compensation Act 1987.

2. That the provisions of section 9A of the Workers Compensation Act 1987 do not apply to injuries during the course of such ordinary recess or authorised absence.”

46 It is logical to consider the Notice of Contention first, because if the primary judge’s decision can be supported on the basis that the respondent’s frank injury occurred during an ordinary recess or authorised absence there is no need to consider whether it was open to his Honour to find that the respondent’s employment was a substantial contributing factor to his injury within the meaning of s 9A of the Act.

47 The respondent submitted that the primary judge’s conclusion that he had not been injured during an “ordinary recess” because he was employed 24 hours a day was an error of law. Mr John Dodd, who appeared for the respondent, both at trial and on appeal, contended that an “ordinary recess” could occur during a period of continuous employment, relying upon Landers v Dawson [1964] HCA 35; (1964) 110 CLR 644 at 650 (“Landers”) where Kitto, Taylor, Menzies and Owen JJ said:

“The word ‘recess’ in its normally understood acceptation refers to a relatively brief interruption in an otherwise continuous period of work. It is normally associated with rest, refreshment or relaxation, such as ordinarily occurs at regular times, such as lunchtime, morning or afternoon tea, or ‘smoko’. It is a period of rest incidental to a period of labour in its general acceptation. The recess is something in the nature of an interval between two or more periods of work in the normal day.” (emphasis supplied)

48 In Landers (at 651) Kitto, Taylor, Menzies and Owen JJ rejected the submission that where an employee was “available for duty 24 hours a day”, any break in that period whether for sleep, food or other activities such as the swimming excursion during which the employee was injured occurred during an “ordinary recess”. Their Honours concluded that during the substantial periods of time when the employee was not required to work and his time was his own – he was “off duty”, and not on a recess.

49 The primary judge concluded that the respondent’s back injury occurred during an interval or interlude during the overall period of work rather than during an ordinary recess by following Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580 and Hatzimanolis v ANI Corporation Limited [1992] HCA 21; (1992) 173 CLR 473. He did not refer to Landers.

50 In Favelle Mort it was held that an employee who contracted a disease while in employment requiring him to be on call almost 24 hours a day was injured in the course of his employment. There was no issue as to whether the disease might have been contracted during a recess.

51 In Hatzimanolis above, (at 584) Mason CJ, Deane, Dawson and McHugh JJ said in their joint judgment:

“Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment.”

52 Hatzimanolis concerned the question whether an injury sustained in a sightseeing excursion organised by the injured employee’s supervisor arose "out of or in the course of employment". The High Court held that it did because, having regard to the general nature, terms and circumstances of the employment and not merely to the circumstances of the particular occasion out of which the injury arose, the injury had been suffered during an interval or interlude occurring within an overall period or episode of work. There was no issue as to whether the injury was suffered during an “ordinary recess”. Landers was not referred to. It was not relevant.

53 The conclusion that the injury suffered in Hatzimanolis occurred during an interval or interlude which occurred in the course of employment is not inconsistent with the proposition that a recess also occurs in the course of employment. The only difference for present purposes is that the respondent’s interlude on the couch had to be capable of being characterised as having occurred during an ordinary recess to satisfy s 11(a).

54 I accept the respondent’s submission that the primary judge applied the wrong legal test to determine whether the respondent was injured during an ordinary recess. As Landers makes plain an “ordinary recess” is a break which occurs during a continuous period of work. It is irrelevant whether that period of work is 8 or 24 hours a day, as long as the interval during which the injury occurs can be characterised as having occurred during the period of employment rather than when the employee is off duty as in Landers or between shifts: see Tooth & Co Ltd t/as Mona Vale Hotel v Injac (1994) 10 NSWCCR 437.

55 The primary judge found that the respondent “was entitled to breaks described as recesses however these were very flexible and depended on the exigencies of the job.” The appellant did not challenge that finding of fact. It cannot be reversed on an appeal confined to error of law. It cannot, however, be reconciled with his Honour’s erroneous conclusion that any event that occurred during the respondent’s 24 hours of employment occurred within his normal hours of work and not during a recess. At the same time it is not apparent that even applying the correct test, the respondent’s respite on the couch occurred during an “ordinary recess”.

56 It is unnecessary to explore this anomaly further, because even if the respondent’s injury was suffered during an “ordinary recess” he also had to demonstrate for the purposes of s 11(a) that at the time of the injury he was “temporarily absent” from his place of employment.

57 The primary judge made no clear finding as to the respondent’s “place of employment”, however he did observe (at [11]) that it did not “necessarily follow that the nature of the activity alleged fell within the course of the [respondent’s] employment even though he was at his place of work” (emphasis supplied) – an observation which appeared to relate to the frank injury claim.

58 The respondent submitted that his place of employment was the office building or the airport and that during the intervals when he was in the staff quarters he was “temporarily absent” from his place of employment. However the primary judge found, as I have earlier noted, that the respondent “was also provided with work facilities at the residence including a computer and conducted work there” – a finding which, in my opinion, amounted to an implicit finding that the respondent’s place of employment included his residence. That was a finding of fact which Mr Dodd ultimately conceded was an insuperable obstacle to his Notice of Contention.

59 Accordingly, even if the respondent’s injury did occur during an ordinary recess the respondent was not at that time temporarily absent from his place of employment as required by s 11(a) of the Act.

60 The respondent’s Notice of Contention argument must be rejected.

Grounds of appeal

61 The substantial matters challenged on appeal were:

(a) The primary judge’s approach to the Makita point;

(b) Whether there was any medical evidence which could support the primary judge’s conclusion that the respondent had made out his s 9A case;

(c) Whether the primary judge was entitled to resolve the causation issue by the application of commonsense and in the absence of medical evidence;

(d) The adequacy of the primary judge’s reasons.

62 The appellant submitted that the primary judge had erred in law in concluding that the respondent had discharged the onus of demonstrating that his employment was a substantial contributing factor to his back injury within the meaning of s 9A of the Act. The appellant contended that there was no evidence of any causal nexus between the respondent’s employment and his ruptured disc.

63 The question whether there is any evidence of a particular fact is a question of law. If the primary judge erred in this respect his conclusion can be reviewed on appeal as long as the error vitiated the ultimate decision: see Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 153, 155 and 157 per Glass JA with whom Samuels JA agreed; see also Yates Property Corp Pty Limited (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 177; Minister Administering the Crown Lands Act v Deerubbin LALC (1998) 43 NSWLR 249 at 254 – 255; Terrace Towers Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 at [30]; Miller v Commissioner of Police NSW [2004] NSWCA 356 at [26].

64 The appellant also argued that the primary judge had erred in law to the extent his decision was based on the respondent’s expert reports. This was because the appellant submitted that, to the extent that the respondent’s medical reports opined about the cause of the respondent’s back injury, they had no probative value. The appellant conceded that the question whether evidence of a fact ought be accepted as sufficient to establish the fact was itself a question of fact (see Azzopardi, above at 155), but argued that an error of law could be identified as “an alleged insufficiency of evidence to prove a fact always raises a question of law”: see Azzopardi (above, at 156); Ambulance Service of New South Wales v Daniel [2000] NSWCA 116; (2000) 19 NSWCCR 697 at [56] per Hodgson JA (with whom Sheller and Beazley JJA agreed).

65 The respondent contended that the primary judge based his decision on his assessment of the weight of admissible evidence and that, accordingly, his decision involved a question of fact which was not susceptible to review on this appeal.

The appellant’s submissions

66 Mr Wardell submitted that the respondent’s medical evidence did not rise above a bare ipse dixit and could not support the conclusion that there was a causal nexus between the respondent’s employment and his ruptured disc. At best, he argued, it amounted to an assertion that the respondent’s employment was a substantial contributing factor to his injury because it occurred in the course of that employment.

67 The appellant contended the primary judge fell into error in that, in the absence of medical evidence on the causation issues, he impermissibly used what he described as “commonsense” to resolve the causation issues. Mr Wardell relied upon Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 725 where Mason J (as his Honour then was, with whom Barwick CJ and Gibbs J agreed) referred to Menzies J’s statement in Australian Iron and Steel Ltd v Connell [1959] HCA 54; (1959) 102 CLR 522 at 535–6 that “although it [a court] can rely upon `experience’ or `a common sense approach’ in deciding the use it will make of evidence that has been given ... it cannot supplement expert evidence by resort to such sources” and said:

“His Honour was there directing his remarks to a situation in which, in his view, the medical evidence called did not establish a causal connection between exertion and cardiac failure. He was denying the proposition that “experience” or “a common sense approach” could make up for, or provide, a substitute for deficiencies in the medical evidence. No doubt his Honour was correct in so saying.” (emphasis supplied)

68 The appellant argued that the respondent’s claim concerned a condition whose aetiology was peculiarly within the province of medical expertise, which could develop without any work contribution (so that mere temporal connection was insufficient to tend to support causation, let alone substantial contribution) and in respect of which there were competing medical opinions, however threadbare, on causation.

69 Mr Wardell argued that the commonsense matters to which the primary judge referred were inadequate in the absence of expert medical opinion to establish the causal connection required by s 9A. He also argued that his Honour’s chain of causation did not assist, absent expert opinion, as the respondent’s pre-existing degenerative condition may have deteriorated over time irrespective of activity.

70 The appellant submitted that the primary judge ought to have found that the medical evidence tendered by the respondent had no probative value according to the test set out by Heydon JA in Makita. Mr Wardell contended that the reports of Doctors Selby Brown and Khoo did not satisfy Makita because they contained no explanation of the reasoning upon which the doctors based their opinions. He relied upon the fact that Doctor Selby Brown did not explain the basis of his conclusion that the respondent’s employment had been a substantial contributing factor to his injury and that while Doctor Khoo said it was possible that the respondent’s employment may have contributed to his injury, his report was so lacking in history or explanation as to make that statement worthless.

71 The appellant also argued that the primary judge erred by effectively taking the view that the respondent’s reports could pass the Makita test not merely because of their content but by what the Court could infer from the context in which they were presented. Thus the appellant noted that the primary judge had acknowledged that Doctor Selby Brown’s opinion may well have been a bare ipse dixit, but had concluded that that did not diminish its weight, because his report had been presented to an expert tribunal in a position to draw any necessary inferences from the scientific criteria to understand how he reached his conclusions.

72 The appellant argued that the primary judge’s error on the Makita point infected the whole of his judgment. The appellant contended that it was not possible to be satisfied that his Honour did not rely on that objectionable medical evidence in reaching his conclusion.

73 The appellant also submitted that it was not appropriate for the primary judge to invoke his status as a member of a specialised tribunal to resolve a conflict between expert evidence. While the appellant acknowledged that there were circumstances in which a member of a specialised tribunal could bring to bear expertise acquired by virtue of that position the appellant argued that that did not permit the primary judge to use his commonsense approach effectively to become an expert witness – especially where the appellant’s medical evidence (which his Honour did not explicitly consider, let alone reject) presented a competing view.

74 Finally, the appellant submitted, referring to Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430, that the primary judge failed to give any or any sufficient reasons for his finding that the respondent’s employment was a substantial contributing factor to his injury within the meaning of s 9A. It argued that the primary judge’s findings did not reveal his reasoning in relation to the matters he took into account in determining the s 9A issue and what weight he gave to them.

75 Mr Wardell submitted that it was significant that his Honour, the primary judge did not address the s 9A requirement by reference to the two mechanisms of injury upon which the respondent relied. Rather, his Honour found that both injuries had been established and that s 9A had been complied with.

The respondent’s submissions

76 Mr Dodd submitted that the primary judge had reached his decision by a legitimate route. He argued that the possibility that the respondent’s employment was a “substantial contributing factor” to his injury established in Doctors Selby Brown and Khoo’s reports provided a sufficient basis when combined with the chain of causation, the primary judge’s “commonsense” approach, his expertise as a member of a specialised tribunal and his acceptance of the respondent’s evidence to enable his Honour to find that the respondent had discharged the onus of proving that his employment was a substantial contributing factor to his injury within the meaning of s 9A of the Act.

77 The respondent also contended that the primary judge did not substitute his “commonsense” approach for evidence. Rather, he examined all the evidence and then correctly applied a commonsense approach to the issue of causation. His Honour was entitled to apply commonsense, the respondent argued, particularly in relation to the nature and conditions injury, because it did not take an expert to determine that work such as manhandling heavy drums of fuel and pulling helicopters in and out of hangars would exacerbate a pre-existing degenerative condition in a worker’s back.

78 The respondent submitted that there was a sufficient evidentiary basis for the primary judge’s conclusion and that the appellant had not demonstrated any legal error reviewable in the context of the limited scope of the appeal. He also argued that the primary judge’s reasons were sufficiently exposed.

79 Mr Dodd submitted in the alternative that if this Court was of the opinion that the primary judge had relied upon medical reports which fell short of the Makita test, his Honour had failed adequately to expose his reasons and the matter should be remitted to the District Court for rehearing.

Consideration

The medical evidence issue

80 In my opinion the primary judge’s conclusion that the medical reports met the requirements of the Makita test was plainly wrong. In the absence of any identified factual basis for their opinions that the respondent’s work could possibly be (Doctor Khoo) or was a substantial contributing factor to his injury the reports were inadmissible and, if admitted, carried no weight.

81 Doctor Selby Brown’s conclusion that “[i]t is my opinion that his employment has been a significant contributing factor to his present condition” did not, as the primary judge recognised (at [29]) go beyond a bare ipse dixit. His Honour sought to remedy that deficiency, impermissibly in my view, by concluding (at [29]) that, sitting as a member of the Compensation Court, he was entitled to draw any necessary inferences “from the scientific criteria referred to by Doctor Selby Brown” to understand how the doctor reached his conclusion and then test it against the proven facts.

82 Members of specialised tribunals such as the Compensation Court are entitled to rely upon general knowledge acquired in that capacity in certain circumstances: see ICI Australia Operations Pty Limited v WorkCover Authority of New South Wales [2004] NSWCA 55; (2004) 60 NSWLR 18 at [219] - [232]. However in my opinion the primary judge was not entitled to rely upon general knowledge of back impairments derived from his experience in the Compensation Court to infer how, in the absence of any identified factual basis, Doctor Selby Brown formed his opinion so as to conclude the Makita test was satisfied.

83 This evidentiary lacuna was particularly significant in the case of the February 2000 injury which occurred in the course of the ordinary domestic activity of getting up from a couch. While the appellant conceded that the frank injury occurred in the course of the respondent’s employment, it also drew attention to the fact that the primary judge found the injury was occasioned during a period of rest, meaning that the respondent was not engaged in an employment task at the time. The absence of any expert opinion explaining how the respondent’s employment substantially contributed to an injury which occurred during a period of rest, could not be cured by recourse to the primary judge’s knowledge as a member of a specialised tribunal.

84 It is not, in my view, necessary to consider for present purposes whether Heydon JA’s judgment in Makita set too high a standard for the admissibility of expert opinion evidence. The critical parts of Doctor Selby Brown and Doctor Khoo’s reports fell short, even by pre-Makita standards, of the standard required for admissibility. It has long been the case that a court cannot be expected to, and should not, act upon an expert opinion the basis for which is not explained by the witness expressing it: see Cross on Evidence at [29065]; R v Jenkins; Ex parte Morrison (No 2) [1949] VLR 277 at 303; R v Hally [1962] Qd R 214; Steffen v Ruban [1966] 2 NSWR 622; Perry v R (1990) 49 A Crim R 243 and, of course, the principal authorities examined by Heydon JA in Makita (at 729 - 741 [59] - [82]). Nothing in Brown v Iontask Pty Ltd should be understood as warranting departure from those principles.

85 In my view, the primary judge should not have accorded the respondent’s medical reports any weight. They were incapable of constituting evidence capable of satisfying the s 9A requirement that the respondent’s employment was a substantial contributing factor to either of the mechanisms of injury upon which he relied.

86 Assuming, as appears to be the case, that the primary judge concluded that Doctor Selby Brown and Doctor Khoo’s opinions provided evidence capable of satisfying s 9A, he erred in law.

87 However, as I have earlier noted, in order to attract appellate review, it is necessary that the error of law vitiated the ultimate decision. It is here that the appellant encounters difficulty because the primary judge’s reasons do not disclose the extent to which he relied upon the weightless medical evidence.

The sequence of events and use of commonsense

88 The primary judge’s formal ruling that the medical reports satisfied Makita and his recitation of “the medical evidence” under the heading “Proof of s 9A” indicate that he took the respondent’s medical reports into account to some extent when reaching his conclusion that the respondent’s employment was a substantial contributing factor to his injury. It is apparent, however, that his Honour also relied upon what he described as the “chain of causation” and “commonsense”.

89 The appellant challenges the primary judge’s use of the sequence of events and commonsense but, in my view, the primary judge was entitled to have some recourse to such matters. The sequence of events and commonsense lent some support to the “nature and conditions” finding.

90 His Honour was entitled to rely upon his commonsense evaluation of the sequence of events: see Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538 at 563-564, 569; Tubemakers of Australia Ltd v Fernandez, above, per Mason J at 725; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463 – 464 per Kirby P (with whom Sheller and Powell JJA agreed); Commonwealth v McLean (1996) 41 NSWLR 389 at 410; Pioneer Construction Material Pty Ltd v Millsom [2002] NSWCA 258 per Handley JA at [8] - [9], Foster AJA at [35]; McDonald t/as BE McDonald Transport v Girkaid Pty Ltd [2004] NSWCA 297 at [103] – [110], [118]. That sequence of events included the respondent’s evidence that prior to 1999 his back was asymptomatic but that while working for the appellant in Bangladesh he noticed backache at the end of the day.

91 His Honour was also entitled to make the “commonsense” findings concerning matters likely to impose stress upon a back to which I have earlier referred (primary judgment at [41] – [44]). They were both within the “realm of common knowledge and experience” spoken of by Mason J (with whom Barwick CJ and Gibbs J agreed) in Tubemakers of Australia Ltd v Fernandez above, at 724 and the specialised knowledge he had acquired as a judge of the Compensation Court.

92 As Mahoney JA (with whom Kirby P and Meagher JA agreed) said in MMI Workers Compensation (NSW) v Kennedy [1993] NSWCC 26; (1993) 9 NSWCCR 482 at 489:

“To an extent, a specialised tribunal may be accepted as having, from what has been frequently proved before it or otherwise, special knowledge in this regard. The Compensation Court has in some respects been seen as having experience enabling it to draw inferences from facts which an ordinary tribunal may not: see, for example, Alvorac General Engineering Pty Ltd v Arlotta (Court of Appeal, 30 March 1993, unreported) and Allied Constructions Pty Ltd v Norbedo (Court of Appeal, 29 May 1992, unreported). See also The Metropolitan Water. Sewerage and Drainage Board v Bryer [1939] WCR 274 at 276 to 277 per Jordan CJ and Kemp v Darling Island Stevedoring and Lighterage Co Ltd [1959] WCR 169 at 171 per Owen, Richardson and Brereton JJ. These references are not limited to matters of pay, awards and the like. The Compensation Court may accept from its judicial knowledge that, in the case of a worker with such a work injury, what happened in 1987 was apt to disturb the physiology of his back.”

93 The appellant objected that his Honour did not explicitly invoke this status at the point in his judgment when he was making findings concerning s 9A of the Act. However, in my view, the primary judge’s “commonsense” findings as to causation should be understood as being based in part upon his expertise as a member of a specialised tribunal. He had already invoked this expertise earlier in his judgment when he referred to the Compensation Court as “an expert tribunal whose bread and butter is back impairments”. However it was incumbent upon the primary judge to disclose his intention to rely upon his specialised knowledge to the parties and give them the opportunity to rebut it or qualify it by argument or by other evidence: see ICI Australia Operations Pty Limited v WorkCover Authority of New South Wales at [229]; J & K Clothing Pty Ltd v Mahmoud [2004] NSWCA 207 at [23].

94 It was open, therefore, to the primary judge to make some “commonsense” findings as to causation – at least in relation to the “nature and conditions” claim. However in my opinion his Honour should not have taken that step in the face of the appellant’s medical reports which opined, in substance, that the respondent’s work had not caused his back injury without explaining why (as he apparently did) he rejected those opinions.

95 On one view of his Honour’s judgment it could be inferred that he rejected all the medical reports because none of their authors demonstrated any appreciation of the nature of the respondent’s work. Thus his Honour said (at [40]):

“None of the medical experts in this case obtained a history of the back pain occurring during flight operations some 6 months prior to the prolapse. This is not surprising given that these examinations took place some 2 to 3 years later when the critical issue then seemed to be the [respondent]’s capacity for work after the operation. However it does raise the question of whether the medical experts who assert a spontaneous rupture may have formed a different view if they had been aware that the [respondent] was suffering backache after work. Another problem with these opinions is that the doctors notably Dr Christie do not seem to appreciate the nature of the piloting work the [respondent] was doing.”

96 However, as I have earlier noted, it appears the primary judge did accord the respondent’s medical reports some weight, although the extent to which he did so is unclear.

Adequacy of reasons

97 The appellant’s argument that the primary judge failed adequately to expose his reasons stands on better ground. His Honour’s conclusions that the respondent’s injury arose out of and in the course of his employment with the appellant and that his employment was a substantial contributing factor to his injury ([45], [47]) were baldly expressed to be reached after “[t]aking all the evidence into consideration, on the balance of probabilities.”

98 It is sufficient, for present purposes, to consider the adequacy of his Honour’s conclusion that the respondent had established the matters required by s 9A. In my opinion his Honour’s reasons for this conclusion were deficient in three critical respects. First, his Honour did not differentiate between the two mechanisms of injury upon which the respondent’s case depended, being his nature and conditions claim and the claim of a frank injury on 15 February 2000. Secondly, his Honour gave no reasons which explained why he apparently preferred the respondent’s medical witnesses opinions on causation to the appellant’s experts. Thirdly, his Honour gave no reasons to demonstrate the basis of his conclusion that the respondent’s employment had been a substantial contributing factor to his injury.

99 It is unnecessary to digress at length upon the judicial obligation to give reasons. The obligation rests in the principle that justice must not only be done but must be seen to be done: Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278 (“Soulemezis”) per McHugh JA. Adequate reasons ensure that the legislative facility of appeal on a question of law is not frustrated: Soulemezis, at 259, per Kirby P. Inadequacy of reasons constitutes an error of law: ibid.

100 The primary judge must state generally and briefly the grounds which have led him or her to conclusions concerning disputed factual questions and to list the findings on the principal contested issues. Although it is not necessary that the judge refer to all the evidence, "[w]here nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged: Soulemezis, at 259, per Kirby P.

101 The obligation to give reasons where there is a dispute between experts was considered in Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174; (2004) 60 NSWLR 127 by Ipp JA (with whom Bryson JA and Stein A-JA agreed). His Honour observed (at [58], [62] – [67]) that in such cases reasons fulfil the dual functions of ensuring the parties know why they have won or lost and, in the case of the losing party, “whether he may have an available appeal on the substance of the case”, as well as concentrating the judicial mind to ensure that the resulting decision is soundly based on the evidence (see also Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 443 per Meagher JA).

102 The failure to discriminate between the nature and conditions and the frank injury claim was significant. Insofar as the frank injury claim was concerned, his Honour made no reference to the fact that the respondent had not performed any of the work tasks found to be causative of his injury for some 29 days prior to 15 February 2000 and was at rest immediately prior to the onset of acute pain. There was clearly a serious s 9A issue in respect of the frank injury claim which was not touched upon at all.

103 The same can be said of the nature and conditions claim. Having accepted that the respondent had a progressive underlying back condition, his Honour was required to explain in sufficient detail how or why the nature and conditions of the respondent’s employment had aggravated or accelerated that condition in a material pathological sense – certainly to give reasons adequate to expose his conclusion that the work was a substantial contributing factor. While “commonsense” may have assisted his Honour in determining that the respondent’s employment had contributed to his injury, he was required, according to the test in s 9A, to explain how that contribution had been substantial. In my opinion, he failed to give sufficient reasons in that respect.

104 Mere temporal congruence between the respondent’s degenerative back condition, his disc rupture and his employment by the appellant was not sufficient to establish the legal standard in s 9A of the Act. This is both commonsense and, in any event, entrenched by s 9A(3)(a) of the Act. Accordingly, it was essential both that the primary judge state the basis upon which he was satisfied that the respondent had discharged his burden of proof, as well as explain his conclusion by reference to each of the mechanisms of injury upon which the respondent relied.

105 His Honour referred to the fact that Mercer said the “construction of s 9A leaves a broad area within which the personal judgment of the individual judge as to what is ‘substantial’ may be determinative.” After saying he had taken into account the matters in s 9A(2) of the Act, the primary judge found that the respondent had proved that his employment with the appellant was a substantial contributing factor to his injury.

106 While Mercer did say s 9A left a “broad area” to the individual judge, it also emphasised, as his Honour recognised, that “it is the strength of the causal linkage between the employment concerned and the injury that is in question”. It was essential that his Honour’s judgment exposed the reasons why he concluded that the test of substantial contribution had been satisfied. Section 9A(2) listed examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury. Section 9A(2)(d) identified the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment, while s 9A(2)(e) identified the worker’s state of health before the injury as relevant to the issue.

107 In this context, his Honour’s acceptance, when determining the quantum of the award, that the respondent had a pre-existing degenerative spine is of particular significance. It was incumbent upon his Honour, in my view, to expose the reasoning process by which he concluded that the respondent’s employment was a substantial contributing factor to his injury notwithstanding the pre-existing condition and the matters identified in s 9A(2).

108 The primary judge’s failure to give sufficient reasons has particular significance in circumstances where causation was a live issue in the case and there was conflicting expert opinion on the aetiology of the respondent’s injury: see Wiki v Atlantis Relocations (NSW) Pty Limited, above, at [61] – [62]. It was essential that sufficient reasons be given for the appellant to understand why the opinions of its medical experts had been rejected.

109 The primary judge’s failure to give adequate reasons constituted an error of law.

Conclusion

110 Mr Wardell conceded that if there was some evidence, albeit lay, which the primary judge was entitled to take into account in support of the nature and conditions case, then the appropriate outcome would be a new trial rather than an award in favour of the appellant.

111 In my opinion, there was some evidence on which the primary judge could base his finding that the respondent’s employment was a substantial contributing factor to at least the nature and conditions injury pleaded. That evidence included the primary judge’s “commonsense” factual findings, based in part on his expertise as a judge of a specialised court, and the respondent’s evidence.

112 Since, however, it is apparent that the findings of the primary judge are based in part upon the weightless medical opinions and since the judgment is deficient in its exposed reasoning process, the matter must be re-determined.

Remitter

113 I have earlier noted that s 32 of the Compensation Court Act continued in force following that Court’s abolition, save that references to the Compensation Court were taken to be references to the District Court. So read s 32(2) enables this Court to remit the matter to the District Court for determination by that Court in accordance with this decision.

Costs

114 The respondent submitted that, if the Court considered that the matter should be remitted for hearing in the District Court, the appellant should pay the respondent’s costs of the appeal as it failed to ensure the attendance of Doctor Selby Brown for cross-examination or call Doctors Christie or Innes-Brown.

115 I do not accept that submission. The defect in the respondent’s medical reports should have been apparent to his legal representatives. Moreover the Makita point is only partially the basis of the appellant’s success. The appellant has succeeded principally because of the deficiency in the primary judge’s reasons.

116 However the appellant also seeks an order that the respondent pay its costs of the Compensation Court proceedings. I do not accept that that course is appropriate. In circumstances where the relevant medical reports were admitted without objection and the appellant did not flag the Makita point until final submissions for tactical reasons, it would be inappropriate to order the respondent to pay the costs of the trial. Had the issue been flagged before the close of the evidence, it is probable that the deficiency in the reports could have been cured by the granting of an adjournment and revision of the impugned reports or by the calling of the relevant experts. The appellant contends it was influenced in its decision not to flag the Makita point prior to the close of evidence by the respondent’s indication that he would be calling Doctor Selby Brown. This submission is difficult to understand, as I should have thought the appellant could have complained had the respondent called Doctor Selby Brown and then sought to shore up his opinion by oral testimony of which the appellant had no prior notice.

117 I am influenced, too, by the fact that the Compensation Court may not order the payment of costs by a person claiming compensation unless the Court is satisfied that the application for compensation was frivolous or vexatious, fraudulent or made without proper justification: s 112(3) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). Thus, as Beazley JA (with whom Sheller JA and Hodgson CJ in Eq agreed) said in Public Trustee v AM Hoipo Pty Ltd [1999] NSWCA 466; (1999) 19 NSWCCR 215 (“Hoipo”), “the entire scheme of the costs provisions of the Workplace Injury Management and Workers Compensation Act recognises that the employer will be liable for costs of a claim for compensation, regardless of whether an applicant commences proceedings or not, unless the claim is determined to have been made or brought frivolously or vexatiously”.

118 I accept that this legislative scheme does not operate upon appeal as I held in Dyktynski v BHP Titanium Minerals Pty Ltd [2004] NSWCA 154; (2004) 60 NSWLR 203 at [60] ff, however in the circumstances in which the award in the respondent’s favour is being set aside, it is relevant to have regard to the Compensation Court’s approach in exercising this Court’s discretion as to costs. Had the respondent been unsuccessful at trial, he would not have been subjected to a costs order. In circumstances where the appellant’s success was, in part, achieved by the tactical approach it took not to flag the Makita point when the respondent’s medical reports were tendered, it would not be just to order that he now be burdened by a costs order to which he would not have been subject below.

119 In my view the appropriate course is not to disturb the costs order made at trial.

Orders

120 In my opinion the following orders should be made:

(1) Appeal allowed.

(2) Award set aside.

(3) Matter remitted to the District Court for re-determination in accordance with law.

(4) Respondent to pay appellant's costs of the appeal and have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise eligible.

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LAST UPDATED: 08/04/2005