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Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 (15 February 2011)
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Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 (15 February 2011)
Last Updated: 25 February 2011
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Case Title:
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Hancock v East Coast Timber Products Pty
Limited |
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Medium Neutral Citation:
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Hearing Date(s):
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Decision Date:
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Jurisdiction:
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Beazley JA at 1 Giles JA at 111 Tobias JA at
112 |
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Decision:
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1. Appeal allowed; 2. Remit the matter to the
Workers Compensation Commission for redetermination in accordance with law.
3. The respondent to pay the appellant's costs of the appeal. [Note:
The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the
Court otherwise orders, a judgment or order is taken to be entered when it is
recorded in the Court's computerised
court record system. Setting aside and
variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and
36.18. Parties should in particular note the time limit of fourteen days in Rule
36.16.] |
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Catchwords:
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WORKERS' COMPENSATION - error in point of law -
wrong application of principle in Makita - failure to afford procedural
fairness WORKERS' COMPENSATION - practice of the Commission -
determination of the matter on the papers where credit issues involved |
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Legislation Cited:
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Cases Cited:
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Parties:
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Daniel John Hancock (Appellant) East Coast Timber
Products Pty Ltd (Respondent) |
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Representation
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Counsel: S Campbell SC; R Harrington
(Appellant) P Webb QC; D Baker (Respondent) |
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- Solicitors:
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Solicitors: Lee Sames Egan
(Appellant) Mulcahy Lawyers (Respondents) |
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File number(s):
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Decision Under Appeal
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- Court / Tribunal:
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Workers Compensation Commission of NSW |
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- Before:
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Publication Restriction:
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Judgment
| 1 | BEAZLEY JA: This is an
appeal from a decision of Keating DCJ, President of the Workers Compensation
Commission of NSW, in which his Honour, on
an appeal from an Arbitrator pursuant
to the Workplace Injury Management and Workers Compensation Act 1998, ss
352(1) and (5), revoked the decision of the Arbitrator awarding the appellant
worker weekly compensation, and ordered that there be an award
for the
respondent employer. |
The workers compensation proceedings
| 3 | The appellant, who was
employed by the respondent as a labourer stacking and sorting timber, alleged
that on 31 October 2005, he injured
his right knee when he slipped on a cleat
whilst stacking timber in the course of his employment (the work incident). The
appellant
was off work for a few days after the incident but thereafter remained
at work, save for various periods of sick leave, not claimed
by him at the time
as being due to the original injury, until 26 March 2008, when he went off work,
remaining off work on sick leave.
The respondent terminated the appellant's
employment on 16 October 2008. |
| 4 | The appellant sought weekly
compensation payments from the respondent under the Workers Compensation Act
1987, claiming that he was suffering from permanent incapacity as a result
of the injury to his knee sustained on 31 October 2005. The
respondent denied
the claim, whereupon the appellant brought proceedings in the Workers
Compensation Commission. |
| 5 | The matter first proceeded
before an arbitrator in the Workers Compensation Commission based upon
statements by the appellant and
other " witnesses " and by the tender of
the medical certificates, reports and other documents. The Arbitrator made an
award of weekly compensation
in favour of the appellant. The respondent appealed
and the appeal was heard and determined by Keating DCJ. The matter also
proceeded
before his Honour 'on the papers'. |
| 6 | Both before the Arbitrator and
on the appeal to the Commission, the respondent contended that as the appellant
did not report the
injury and no one witnessed the work incident, it should be
inferred that no such incident occurred. Alternatively, the respondent
submitted
that the appellant's incapacity was not caused by the work incident, but was
attributable to subsequent non-work related
activities the appellant had
undertaken, namely: assisting members of his family to unload bearers and joists
from a truck at his
home on 22 January 2008; assisting a colleague, Mr
Hindmarsh, to move house in late March 2008, when he moved several pieces of
heavy
furniture; sanding the floor at his home, which involved being on his
knees for two days in late April 2008; as well as falling a
second time in late
March or early April 2008 (the subsequent non-work related incidents).
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| 7 | Keating DCJ found that the
work incident had occurred and that the appellant injured his right knee as a
result. However, his Honour
concluded, at [175], that the appellant had failed
to discharge the onus of proving that his " incapacity commencing on 26 March
2008 [being the date on which the appellant went off work on sick leave]
resulted from the injury sustained on 31 October 2005 ".
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| 8 | Integral to this conclusion
was his Honour's rejection, at [54], of the evidence of Dr Summersell, the
appellant's treating orthopaedic
surgeon, as having no weight. This finding
appears to have been based on two aspects of Dr Summersell's evidence. First, as
Dr Summersell
had " failed to explain or even consider the effect of the
intervening events " identified above, his Honour held, at [154], that the
facts on which Dr Summersell's opinion was based did not form a proper
foundation
for it: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA
305; (2001) 52 NSWLR 705 at [85]. |
| 9 | Secondly, his Honour found
that in two virtually identical reports of 6 May 2008, Dr Summersell's opinion
that the 2005 work incident
was the cause of the appellant's incapacity, was
given without any explanation of the scientific or other intellectual basis for
the conclusion reached. Accordingly, his Honour considered, at [155], that Dr
Summersell's opinion failed to satisfy the second limb
of Makita .
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Issues on the appeal
| 10 | Four principal issues arose
on the appeal. The first and second issues related to his Honour's treatment of
the evidence of Dr Summersell.
As to the first issue, the appellant contended
that in finding that " no weight could be placed " on Dr Summersell's
opinion, Keating DCJ wrongly applied the principles governing expert evidence
and, in particular, the principle
examined by Heydon JA in Makita.
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| 11 | As to the second issue, the
appellant contended that his Honour denied him procedural fairness in placing no
weight on Dr Summersell's
opinion when no ' Makita objection' had been
taken by the respondent. As this had not been raised as an issue in the case the
appellant had no opportunity
of making submissions to his Honour in respect of
the proper application of the Makita principle to Dr Summersell's
reports. |
| 12 | With respect to the third
issue, the appellant contended that the trial judge's error in placing no weight
on Dr Summersell's opinion,
was compounded by his refusal to draw a Jones v
Dunkel inference in the appellant's favour in circumstances where the
respondent had failed to tender the report of its own medico-legal
expert, Dr
Bodel, who had seen the appellant for the purposes of the proceedings: Jones
v Dunkel [1959] HCA 8; (1959) 101 CLR 298; [1959] ALR 367.
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| 13 | As to the fourth issue, the
appellant contended that his Honour misdirected himself in law on the issue of
causation by failing to
ask whether the injury sustained in the work incident
rendered the appellant susceptible to the effect of further injury. This
question
necessarily raised the further and central question whether the
subsequent non-work related incidents were caused by that susceptibility.
If so,
the appellant's continuing incapacity from 26 March 2008 fell within " injury
" within the meaning of the Workplace Injury Management and Workers
Compensation Act . |
Background facts
| 14 | The appellant's case was that
on 31 October 2005, he was stacking timber when he turned and slipped on a piece
of cleat (which is
an off-cut piece of timber). He said that his leg slipped
from under him and he landed on his backside. He believed he twisted his
right
knee when he fell and said he felt pain in the back and on either side of his
right knee. |
| 15 | No one saw the appellant fall
and he did not report it. The appellant said that, immediately after his fall,
he tried to locate a
supervisor but none could be found and he did not believe
that there was a log book in existence at that time in which to record
workplace
injuries. However, on 10 May 2006, following a safety meeting conducted by the
respondent, the appellant completed a questionnaire
concerning, inter alia,
previous work injuries in which he stated that he had injured his knee at work
the previous year. |
| 16 | On the day of the work
incident, the appellant spoke to a co-worker, Peter Hyde, and told him about the
incident but that he was "
ok ". The appellant continued to work for the
remainder of the day, although his knee was sore. That afternoon the appellant's
mother
picked him up from work. She noticed he was limping. He did not attend
work on 2 or 3 November 2005, but stayed at home and rested
his knee.
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| 17 | The appellant's mother made
an appointment for him to see a medical practitioner, Dr Gak, on 4 November
2005, which she also attended.
During the examination and in his mother's
presence, Dr Gak asked the appellant how he had come to be injured. When the
appellant
explained how he was injured, his mother recalled Dr Gak responding
with words to the effect: " so it's covered by Workers' Compensation? "
and the appellant replying that he " didn't think he was covered because he
did not tell a supervisor at work only a mate ". The appellant said that he
had not subsequently reported the injury because he was afraid for his job
security. |
| 18 | The appellant alleged that,
following the work incident, his knee progressively became worse. He attended
the Grafton Base Hospital
on several occasions in 2007 and 2008 and consulted a
number of doctors during this time. On 23 June 2008, the appellant underwent
a
right knee arthroscopic partial medial meniscectomy and chondroplasty, which was
carried out by Dr Summersell. |
| 19 | Mr Hyde, to whom the
appellant said he mentioned the incident, stated that he recalled the appellant
walking past him in the packing
room and observed him to be rubbing his knee. He
said that the appellant told him that he had " slipped on some timber on the
floor but was ok ". Subsequently, he saw the appellant on occasions with a
guard on his knee. Mr Hyde said that in the two and a half years prior to
the
hearing, the appellant had not mentioned his knee and had not " really shown
any signs of an injury ". He also said that " I would see [the appellant]
with a wrist or knee guard on occasionally but it never affected his work ".
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| 20 | Five other work colleagues
gave statements. His Honour summarised their evidence as being to the effect
that they were either unaware
of any injury suffered by the appellant and/or
that the appellant had never complained to them of an injury to his knee or of
symptoms
relating thereto. |
Medical treatment and reports and subsequent incidents
| 21 | It will be recalled that the
work incident occurred on 31 October 2005. The appellant saw Dr Gak on 4
November 2005. Dr Gak's notes
stated that the appellant " needed a clearance
to go back to work as from monday 7.11.05 following R knee injury at work ".
Dr Gak signed a certificate of sickness which recorded the appellant as
suffering from right knee injury. Dr Gak declared the appellant
fit to return to
work on Monday, 7 November 2005, which he did. |
| 22 | From about late 2006, the
appellant said that he needed to wear a knee guard or strapping at work. He wore
it on and off depending
on the level of his pain. As mentioned, this aspect of
the appellant's statement was corroborated by Mr Hyde.
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| 23 | On 8 October 2007, because of
increasing pain in his right knee which the appellant said " just came on
after work ", the appellant attended Grafton Base Hospital. He gave a
history to the Hospital of an injury " 2 years ago while working timber mills
". He stated that he had been walking a lot over the previous few days at
work and that the " pain started with swelling ". He said he was unable
to bear weight on his right knee. |
| 24 | A CT scan performed on 10
October 2007 demonstrated a " hypodense mass " lying on " the lateral
aspect of the right knee ". A letter from the Hospital of the same date to
Dr Barrell, the appellant's general practitioner, stated that having regard to
these
investigations, the diagnosis was highly likely to be a ganglion.
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| 25 | In early 2008, Dr Barrell
referred the appellant to Dr Summersell. |
| 26 | The next relevant date is 22
January 2008. The appellant stated that whilst at work on that day, his leg pain
got progressively worse.
That afternoon at home, he assisted members of his
family to unload timber from a truck. He said that whilst he was undertaking
this
activity, his knee continued to swell and ache as it had during the day.
This was one of the activities upon which the respondent
relied as having caused
the appellant's disabilities. The appellant said that the following day, his
knee was worse and he ceased
work and attended Grafton Base Hospital because he
was unable to see his own doctor. The appellant returned to the Hospital on 24
January 2008 to obtain a medical certificate for work purposes.
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| 27 | The Hospital notes relating
to his attendance on 23 January referred to the ganglion cyst and stated that
the appellant was waiting
on an appointment with Dr Summersell. The notes
recorded, " related to injury 2 yrs ago - aggravated it on Tuesday when
twisted knee + pain in popliteal region - much better now ". On examination,
he was observed to be walking with a limp. However, there was no tenderness over
the right knee and the appellant
had full range of movement of his knee.
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| 28 | In March 2008, the appellant
assisted a work colleague, Mr Hindmarsh, to move some furniture. The appellant
stated that he wore a
knee guard whilst doing so and also said that the work was
" probably less arduous " than the work that he performed in his
employment with the respondent. |
| 29 | On 26 March 2008, the
appellant had an ultrasound on his right knee. The ultrasound report recorded
that there was " tenderness over the medial joint space ", with " a
clear effusion " being noted. Dr Newman, who performed the ultrasound,
reported that as the medial collateral ligament was intact, the possibility
of
cartilage injury or cruciate injury was more likely.
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| 30 | The appellant did not return
to work after this. |
| 31 | On 9 April 2008, the
appellant attended Centrelink as he was concerned that he may not be able to
continue leave in his employment.
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| 32 | On 18 April 2008, an x-ray
was performed which showed " joint effusion " and ossification " in
the insertion of the suprapatellar tendon ".
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| 33 | On 21 April 2008, Mr Hancock
again presented at Grafton Base Hospital. The Hospital notes recorded "swollen R
lower leg, HX of seeing
Dr Barrell 3/7 ago been taking NSAIDS today increasing
pain swelling seems worse". |
| 34 | The history obtained on this
occasion, as recorded by the triage nurse, was:
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"... multiple problem [with] R knee/proximal leg for specialist RV in 2/52.
Aggravated recently by two days 'sanding' @ home-on knees
swelling medial upper
leg. Has had XR and US 2/52 ago but past 48 hrsswelling of entire leg."
| 35 | Under the heading "
presentation history, " the clinical notes recorded state:
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"... swollen R lower leg + R foot 1/52 C/O pain R lower leg radiating R knee. H
X fall 3/52. S/B GP for same."
| 36 | On 21 April 2008, the
appellant also underwent a right leg venous doppler. No " venous thrombus
" was present. Dr R Singh reported on the results as follows:
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"Partly anechoic material is present along the medial aspect of the distal thigh
and proximal calf. Overlying soft tissue swelling
is also present. It is
uncertain whether this represents intermuscular haematoma related to a muscular
tear or a popliteal cyst rupture
or an abscess. Further clinical assessment is
required."
| 37 | The appellant's first
consultation with Dr Summersell was on 29 April 2008. In his report of that date
to Dr Barrell, Dr Summersell
recorded a history of the appellant injuring his
knee while at work about three years previously, having about three days off
work
at that time and of the knee not being " right " since then. He
noted that the appellant reported that he had been bothered by medial pain and a
tightness around the back of the
knee. The pain was of intermittent severity,
with more days being bad than good. The appellant reported that the pain was
usually
worse later in the day. The knee had a painful click if he moved the
wrong way and it felt unstable at times if he stepped the wrong
way. The
appellant reported that the knee could give way.
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| 38 | Dr Summersell did not make a
diagnosis on that occasion, but said that he would see the appellant again after
the appellant had had
a new x-ray and an MRI scan. Dr Christie, who prepared the
MRI report of 1 May 2008, concluded from the MRI findings:
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"Medial compartment OA (osteoarthritic) change with osteochondral injury.
Unusual soft tissue swelling superior and inferior to the
knee joint on the
medial side. The nature of this is uncertain."
| 39 | On a follow-up visit on 6 May
2008, Dr Summersell, after reviewing the MRI scan, diagnosed a " medial
meniscal tear and articular surface injury, soft tissue injury ". In a
report of that date to Dr Barrell (the first report), Dr Summersell expressed
the opinion that " the subcutaneous changes " were " due to a recent
fall that [the appellant] had had due to the pre-existing instability of his
knee ". Dr Summersell, in a report of that date (the first 6 May report) to
Dr Barrell, stated that " [the appellant] feels that the injury he had about
three years ago is responsible for the current condition of his knee ".
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| 40 | There is another report of Dr
Summersell's, dated 6 May 2008, also addressed to Dr Barrell (the second 6 May
report). This report
is in identical terms to the first report save for two
matters. In place of the sentence bolded above, the second report stated,
" I
think the injury that [the appellant] had about three years ago is responsible
for the current condition of his knee ". The first 6 May report also stated:
" If approval isn't given then the surgery will occur at the public hospital.
" This comment was not contained in the second report. It is not apparent
whether the second report was also sent to Dr Barrell.
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| 41 | Copies of Dr Summersell's 29
April 2008 report and his second 6 May report were faxed to the respondent's
insurer on 20 May 2008.
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| 42 | On 30 May 2008, Dr Summersell
provided a report to the respondent's insurer in response to a series of
questions asked of him by the
insurer. In this report, Dr Summersell reported
the history given to him by the appellant in the same terms as that given in the
report dated 29 April 2008 to Dr Barrell. |
| 43 | In response to the question
asking his diagnosis, Dr Summersell stated: |
"... medial meniscal tear and articular injury, soft tissue injury. [The
appellant's] current condition is consistent with a previous knee injury
and [the appellant] associates his current problems with an injury he
recalls he had about 3 years ago." (emphasis added)
| 44 | In response to the question
"Do you consider that [the appellant] has suffered an aggravation", Dr
Summersell responded: |
"... when I initially saw him he was suffering an aggravation due to a recent
fall that he feels occurred due to the instability
that has been bothering him
since an injury, he stated to me, occurred at work 3 years ago."
| 45 | In response to the question
whether the employment with the respondent was a substantial contributing factor
to his injury, Dr Summersell
stated: |
"[The appellant] relates his current knee problems to any injury he believes he
had at work about 3 years ago, I did not assess him
at that time. If the
initial injury did in fact occur at work 3 years ago then it would be a
substantial contributing factor to his current knee
problems ." (emphasis
added)
| 46 | On 23 June 2008, Dr
Summersell performed a right knee arthroscopic partial medial meniscectomy and
chondroplasty. He found a complex
tear of the anterior horn of the medial
meniscus, as well as a longitudinal injury in the medial femoral condyle weight
bearing surface.
Dr Summersell provided two operative reports to Dr Barrell
which are not relevant to the issues on the appeal.
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Reasons of Keating DCJ on the appeal from the Arbitrator's decision
| 47 | The appellant's claim for
weekly compensation benefits and for medical benefits was brought under the
Workers Compensation Act . The entitlement to compensation is contained
in s 9, which provides: |
"(1) A worker who has received an injury (and, in the case of the death of the
worker, his or her dependants) shall receive compensation
from the worker's
employer in accordance with this Act."
"(1) No compensation is payable under this Act in respect of an injury unless
the employment concerned was a substantial contributing
factor to the injury."
| 49 | Injury is defined in s 4 to
include: |
"(ii) the aggravation, acceleration, exacerbation or deterioration of any
disease, where the employment was a contributing factor
to the aggravation,
acceleration, exacerbation or deterioration ..."
| 50 | One of the issues identified
by the Arbitrator was whether, if the appellant fell at work, injuring his knee
on 31 October 2005, was
that injury the cause of any past and continuing
incapacity associated with the appellant's knee. It is apparent from the
Arbitrator's
reasons that the appellant's case was that the subsequent non-work
related incidents were aggravations of the injury he sustained
in the work
incident. |
| 51 | On appeal from the
Arbitrator, Keating DCJ identified this issue in his reasons, at [9](2), in the
following terms: whether " the worker was incapacitated by reason of the
alleged injury sustained on 31 October 2005 ". In determining that question,
his Honour said at [138]: |
"The [appellant's] evidence that he continued to suffer from problems with his
right knee after the injury in October 2005 ... must
be considered in the light
of other evidence both corroborative and not corroborative."
| 52 | His Honour reviewed the
statements and the medical reports. At [149], after noting that apart from Mr
Hyde, the statements of the
appellant's work colleagues were to the effect that
they did not know of the injury, nor did the appellant complain of an injury
or
ongoing symptoms, his Honour observed that three of the witnesses described
themselves as friends of the appellant. His Honour
considered that in the
circumstances, their statements were " compelling evidence that any injury
sustained by [the appellant in October 2005] was either of a trivial nature or
was not incapacitating
". |
| 53 | His Honour, at [151], stated
that the evidence of the appellant's mother must be treated with some
circumspection. It is apparent
from his Honour's reasons that his Honour
rejected her evidence. |
| 54 | His Honour accepted, at
[154], the appellant's evidence that he sustained an injury at work on 31
October 2005. However, his Honour
considered, at [153], that the medical
evidence must be treated with some circumspection, as neither party had adduced:
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"... a forensic medical report with a complete history of the work and non-work
related incidents from which a reliable conclusion
could be formed as to the
cause of Mr Hancock's knee problems."
| 55 | His Honour stated that the
medical certificates obtained from Dr Barrell and Dr Gak carried little or no
weight in the absence of
a detailed report setting out the appellant's history,
any findings on examination and an opinion on causation.
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| 56 | His Honour next dealt with Dr
Summersell's opinion. Given that the challenges on the appeal are essentially
directed to his Honour's
reasoning at [154]-[155], it is necessary to set out
those paragraphs in full. His Honour stated: |
"[154] Dr Summersell's opinion is unreliable for a number of reasons. His
opinion is based on an acceptance of [the appellant's]
account of his injury on
31 October 2005, which I accept. However, it is also based on his acceptance of
continuing symptoms since
then, which I do not accept. Furthermore he has failed
to explain or even consider the effect of the intervening events occurring
on or
about 22 January 2008 (lifting bearers and joists), late March 2008, (moving
furniture and appliances), a second fall in late
March or early April 2008, and
in late April 2008 (two days sanding on knees), indeed he offered no explanation
for [the appellant]
ceasing work in March 2008. Therefore, the facts on which
the opinion is based do not form a proper foundation for it ( Makita
(Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 ('
Makita ') per Heydon JA at [85]).
[155] Furthermore, Dr Summersell provided two reports dated 6 May 2008. In the
first he offered no opinion as to causation other
than to restate [the
appellant's] own opinion that the problems with his knee were related to the
incident in 2005. In the second,
without offering any explanation, he stated
that he, himself had formed the view that the 2005 incident was the cause of
[the appellant's]
incapacity. In the absence of an explanation of the scientific
or other intellectual basis for the conclusion reached, Dr Summersell's
opinion
also fails to satisfy the second limb of Makita . See also Hevi Lift
(PNG) Ltd v Etherington [2005] NSWCA 42 (' Hevi Lift '). For these
reasons, I have concluded that no weight can be placed on Dr Summersell's
opinion."
| 57 | I deal with Makita in
detail below. It is useful at this point to refer to Hevi Lift where
McColl JA (Mason P and Beazley JA agreeing) said at [84]:
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"... 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."
| 58 | Keating DCJ noted, at [159],
that Dr Summersell's 23 June 2008 operative findings included a complex tear of
the medial meniscus.
His Honour observed that this was not the pathology found
in 2007 and that there had been no mention of a torn meniscus until Dr
Summersell diagnosed it in 2008 after the subsequent non-work related incidents.
His Honour observed, at [160], that there was no
medical evidence to explain the
difference between the 2007 pathology and that found in 2008. His Honour then
stated that he was
not satisfied that the injuries sustained by the appellant on
31 October 2005 caused any significant pathology.
|
| 59 | At [161], his Honour noted
that Dr Gak had not provided any diagnosis and that the exact nature of the
injury sustained on 31 October
2005 was not known. He considered that as the
appellant was only off work for a few days and had then returned to work and
performed
his normal duties for more than two years without restriction, he
should accept the evidence of the appellant's work colleagues that
the appellant
had worked until 2008 without demonstrating any sign of injury or disability.
His Honour found, therefore, that the
appellant had recovered from the effects
of the work incident within days of it occurring.
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| 60 | His Honour next dealt with
the submission that he should draw a Jones v Dunkel inference against the
respondent given that the respondent had failed to provide Dr Bodel's
medico-legal report to the Commission.
His Honour accepted that that it may well
be inferred that the report was not provided to the Commission because it was
unfavourable
to the respondent's case. However, he considered that that was of
little comfort to the appellant unless he had established his own
case at least
to a prima facie level. His Honour stated that for the reasons he had given the
appellant had failed to do so. |
| 61 | His Honour, in the following
paragraphs of his reasons, referred to the evidence relating to the subsequent
non-work related incidents.
His Honour then stated, at [171], that the
difficulty in accepting the appellant's evidence of ongoing pain and instability
was compounded
by the overwhelming evidence of his friends and colleagues that
he had gone for several years after the work incident with no apparent
restrictions, problems or complaints regarding his knee. His Honour considered
that the appellant's complaints of persistent problems
with the knee since the
work incident was inconsistent with his capacity to undertake the heavy physical
work he did, both in the
course of his employment and in performing the
activities which resulted in the subsequent non-work related incidents.
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| 62 | His Honour therefore
concluded, at [173], that: |
"[t]he combination of the lay evidence from [the appellant's] colleagues, his
own failure to address a series of intervening injuries,
and the lack of any
persuasive medical evidence"
led him to the
conclusion that incapacity due to the effects of the work incident ceased by 7
November 2005 and that any claimed incapacity
from 26 March 2008, was unrelated
to that incident.
First issue on the appeal: error in the application of the Makita
principle
| 63 | The appellant made five
complaints as to the manner in which his Honour applied the Makita
principle to Dr Summersell's opinion at [154]-[155] of his reasons. First,
he submitted that his Honour applied the wrong principle
at [154] when he found
that " the facts on which the opinion is based do not form a proper
foundation for it " . In particular, the appellant contended that his
Honour erred in that he considered it was necessary for the factual foundation
of
an expert report to be identical to the proven facts, whereas the correct
principle required only that the facts as assumed be "
sufficiently like the
facts established by the evidence ". Second, the appellant submitted that,
at [155], his Honour wrongly applied the principle in Makita to the
opinion expressed. |
| 64 | The appellant also complained
that his Honour was wrong in finding that Dr Summersell had failed to even
consider the effect of the
subsequent non-work related incidents. Dr
Summersell's opinion was predicated upon the appellant having instability in his
knee.
Dr Summersell linked other falls that the appellant had had back to the
work incident injury, on the assumption that such injury
had occurred. Senior
counsel for the appellant accepted that this was probably a factual error.
However, I mention it at this point
as it is relevant to the respondent's
argument that even if there was error in point of law as alleged by the
appellant, the outcome
of the case would not have been different because his
Honour did not accept that the appellant had sustained any ongoing disability
as
a result of the work incident. |
| 65 | In order to deal with these
two complaints it is first necessary to understand the Makita principle
and its proper application. |
The Makita principle
| 66 | In Makita, Heydon JA
(as his Honour then was), set out, at [85], the requirements for expert evidence
to be admissible. His Honour's remarks
were made in the context of the
Evidence Act 1995, s 79, which provides for the admissibility of expert
evidence as an exception to the opinion evidence rule: see s 76. Section 79
provides, relevantly: |
"(1) If a person has specialised knowledge based on the person's training, study
or experience, the opinion rule does not apply to
evidence of an opinion of that
person that is wholly or substantially based on that knowledge."
| 67 | After a lengthy review of the
authorities, as well as considering the express terms of s 79, Heydon JA stated,
at [85] 743-4: |
"... if evidence tendered as expert opinion evidence is to be admissible, it
must be agreed or demonstrated that there is a field
of 'specialised knowledge';
there must be an identified aspect of that field in which the witness
demonstrates that by reason of
specified training, study or experience, the
witness has become an expert; the opinion proffered must be 'wholly or
substantially
based on the witness's expert knowledge'; 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. And an attempt to make the basis of the
opinion explicit may reveal that
it is not based on specialised expert knowledge, but, to use Gleeson CJ's
characterisation of the
evidence in HG v R [1999] HCA 2; (1999) 197 CLR
414 at 428 [41], on 'a combination of speculation, inference, personal and
second-hand views as to the credibility of the complainant, and a process
of
reasoning which went well beyond the field of expertise'."
| 68 | Heydon JA referred to the
requirements for expert evidence to be admissible in less extensive terms, which
are nonetheless relevant
to this case, in Rhoden v Wingate [2002] NSWCA
165, at [61], as requiring that the expert gives evidence of what the expert
personally observed, what the expert assumed, but did not
personally observe,
and, in the light of that material and the witness' expertise, what the witness'
opinions were. This observation
reflects the practical application of the
principles governing expert evidence in circumstances where, for example, the
witness'
expertise is not in issue or where there is no issue that the opinion
given is in an area of accepted expertise. |
| 69 | Similar practical approaches
to the admissibility of expert evidence are to be found in the authorities.
Thus, in Paino v Paino [2008] NSWCA 276; (2008) 40 Fam LR 96, Hodgson and
McColl JJA noted, at [66], that it is inherent in the process of preparing many
expert reports that the factual basis
for the opinion expressed is derived from
third party information. Their Honours pointed out that what the courts require
is that
the factual bases of opinions be clearly laid out so that the opinion of
the expert may be properly tested. See also Sydneywide Distributors Pty Ltd v
Red Bull Australia Pty Limited [2002] FCAFC 157; (2002) 55 IPR 354; Adler
& Anor v ASIC [2003] NSWCA 131; (2003) 46 ACSR 504.
|
| 70 | In ASIC v Rich & Ors
[2005] NSWCA 152; (2005) 218 ALR 764, an issue arose as to the basis upon
which an expert could express an opinion. In that case, the respondent had
submitted that the
principles stated in Makita required that, for expert
evidence to be admissible, it must be based on facts set out in the report and
on no other facts, and that
the opinion expressed be arrived at by the process
of reasoning set out in the report and by no other process of reasoning. The
alternative
approach, advanced by the appellant, was that it was sufficient if
the expert identified the facts and reasoning process which the
expert asserted
to be an adequate basis for the opinion expressed in the report.
|
| 71 | The resolution of this issue
involved Spigelman CJ (with whom Giles and Ipp JJA agreed) undertaking a
detailed analysis of the underlying
basis of Heydon JA's reasoning in Makita
, by reference, in particular, to the reasoning of Gleeson CJ in HG v R
[1999] HCA 2; (1999) 197 CLR 414 to which Heydon JA had made extensive
reference. At [99], Spigelman CJ observed that the observations of Gleeson CJ
did not represent
the ratio of HG in a manner that was binding on the
Court of Appeal. Nonetheless, his Honour proceeded on the basis that the
reasoning of Gleeson
CJ was correct and expressed his agreement with that
reasoning in any event. |
| 72 | The analysis is lengthy. It
is sufficient for the purposes of my reasons to refer only to the limited
passages set out below. At [39],
Gleeson CJ accepted that an expert's report may
be based on assumed facts. His Honour said: |
"An expert whose opinion is sought to be tendered should differentiate between
the assumed facts upon which the opinion is based,
and the opinion in question.
Argument in this Court proceeded upon the basis that it was possible to identify
from Mr McCombie's
written report some facts which he either observed or
accepted, and which could be distinguished from his expressions of expert
opinion.
Even so, the provisions of s 79 will often have the practical effect of
emphasising the need for attention to requirements of form. By directing
attention to whether
an opinion is wholly or substantially based on specialised
knowledge based on training, study or experience, the section requires
that the
opinion is presented in a form which makes it possible to answer that question."
(footnotes omitted)
| 73 | Of particular importance to
the present case is the acceptance by Spigelman CJ of the following statement of
Gleeson CJ in HG as to what is required for expert evidence to be
admissible. Gleeson CJ stated, at [41], that such expert evidence:
|
"...required identification of the facts [the expert] was assuming to be true
, so that they could be measured against the evidence; and ...
demonstration or examination of the scientific basis of the conclusion."
(Spigelman CJ's emphasis)
| 74 | This is a principle of long
standing. It was referred to by the High Court in Paric v John Holland
(Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85, at [9], where the
Court (Mason CJ, Wilson, Brennan, Deane and Dawson JJ) said:
|
"It is trite law that for an expert medical opinion to be of any value the facts
upon which it is based must be proved by admissible
evidence: Ramsay v Watson
[1961] HCA 65; (1961) 108 CLR 642. But that does not mean that the facts
so proved must correspond with complete precision to the proposition on which
the opinion is
based. The passages from Wigmore on Evidence ... to the
effect that it is a question of fact whether the case supposed is sufficiently
like
the one under consideration to render the opinion of the expert of any
value are in accordance with both principle and common sense."
(emphasis added)
| 75 | Gleeson CJ referred to
Ramsay v Watson in his reasons in HG , and in Makita Heydon
JA also expressly adopted the reasoning in Ramsay v Watson . As Heydon JA
said, at [66], that case was a classic illustration of the principle that the "
assumed facts " need not be itemised by the expert witness in an
artificial way. His Honour referred to the High Court's observation in Ramsay
v Watson that: |
"... it was permissible for a doctor to narrate the history obtained from a
patient as part of the foundation of the doctor's opinion
on the patient's
health, even though the narration was not admissible to prove the facts of the
history unless some exception to
the hearsay rule were satisfied."
| 76 | Notwithstanding that an
expert may give an opinion on assumed facts, the High Court in Ramsay v
Watson observed, at 649, that if the history obtained by the doctor and upon
which the doctor based her or his expert opinion is not supported
by admissible
evidence, the opinion " may have little or no value, for part of the basis of
it is gone ". |
| 77 | Spigelman CJ's analysis in
ASIC v Rich of Heydon JA's reasoning in Makita concluded that it
conforms with the statement of Gleeson CJ in HG , at [39], set out at
[72] above. As Spigelman CJ stated, at [105]: |
"Although expressed in terms of 'usefulness', the starting point for Heydon JA's
detailed analysis of the case law on admissibility
does not suggest any focus on
the true historical process by which the expert first formed the relevant
opinion. The focus of attention
- the 'prime duty' - is to ensure that the
court, as the tribunal of fact, is placed in a position where it can examine and
assess
the evidence presented to it. That can occur without adopting the true
factual basis approach . What Heydon JA identified as the expert's 'prime
duty' is fully satisfied if the expert identifies the facts and reasoning
process
which he or she asserts justify the opinion. That is sufficient to
enable the tribunal of fact to evaluate the opinions expressed
." (emphasis
added)
| 78 | I accept this analysis, which
I consider to be clearly correct. |
Application of Makita to the proceedings in the WCC
" 354 Procedure before Commission
(1) Proceedings in any matter before the Commission are to be conducted with as
little formality and technicality as the proper consideration
of the matter
permits.
(2) The Commission is not bound by the rules of evidence but may inform itself
on any matter in such manner as the Commission thinks
appropriate and as the
proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the
substantial merits of the case without regard to technicalities
or legal forms."
| 80 | The Workers Compensation
Rules 2006, r 15.2 provides: |
" 15.2 Principles of procedure
When informing itself on any matter, the Commission is to bear in mind the
following principles:
(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in dispute,
(c) evidence based on speculation or unsubstantiated assumptions is
unacceptable,
(d) unqualified opinions are unacceptable."
"While the Commission may inform itself on any matter in such manner as it
thinks appropriate and as the proper consideration of
the matter before it
permits (s 354(2)), r 70 of the Workers Compensation Commission Rules
2003 [the Workers Compensation Commission Rules 2006, r 15.2]
provides that when informing itself on any matter, the Commission is to bear in
mind the principles that evidence should
be logical and probative, should be
relevant to the fact in issue and the issues in dispute, that evidence 'based on
speculation
or unsubstantiated assumption is unacceptable' and that 'unqualified
opinions are unacceptable'."
(The Workers
Compensation Commission Rules 2006, r 15.2 superseded, but replicated in
identical form, the Workers Compensation Commission Rules 2003, r 70.)
| 82 | Although not bound by the
rules of evidence, there can be no doubt that the Commission is required to be
satisfied that expert evidence
provides a satisfactory basis upon which the
Commission can make its findings. For that reason, an expert's report will need
to conform,
in a sufficiently satisfactory way, with the usual requirements for
expert evidence. As the authorities make plain, even in evidence-based
jurisdictions, that does not require strict compliance with each and every
feature referred to by Heydon JA in Makita to be set out in each and
every report . In many cases, certain aspects to which his Honour
referred will not be in dispute. A report ought not be rejected for that reason
alone. |
| 83 | In the case of a
non-evidence-based jurisdiction such as here, the question of the acceptability
of expert evidence will not be one
of admissibility but of weight. This was made
apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19]
per Hodgson JA. That is the way that Keating DCJ dealt with Dr Summersell's
evidence in this case, so that is not the relevant error.
|
| 84 | It is necessary at this point
to return to his Honour's reasons at [154]. It is convenient to set out the
relevant part of that passage
again. His Honour said:
|
"[Dr Summersell's opinion] is also based on his acceptance of continuing
symptoms since [the 2005 work incident], which I do not
accept. Furthermore he
has failed to explain or even consider the effect of the intervening events
occurring on or about 22 January
2008 (lifting bearers and joists), late March
2008, (moving furniture and appliances), a second fall in late March or early
April
2008, and in late April 2008 (two days sanding on knees), indeed he
offered no explanation for [the appellant] ceasing work in March
2008.
Therefore, the facts on which the opinion is based do not form a proper
foundation for it. " (emphasis added)
| 85 | With respect to his Honour,
this reasoning is the same reasoning as that rejected by this Court in ASIC v
Rich. Dr Summersell's opinion did not have to expressly refer to the
subsequent non-work related incidents in order for there to be a proper
foundation for the opinion expressed in his reports. Rather, what was required
for satisfactory compliance with the principles governing
expert evidence was
for his reports to set out the facts observed, the assumed facts including those
garnered from other sources
such as the history provided by the appellant, and
information from x-rays and other tests. |
| 86 | Those requirements were all
satisfied. In this case, as the appellant pointed out, neither Dr Summersell's
field of specialised knowledge,
nor his status as an expert, was challenged.
Insofar as his opinion was based upon facts " observed " by him, those
facts were contained within his examination findings in his report of 29 April
2008 to Dr Barrell and the report of
the MRI scan.
|
| 87 | Insofar as Dr Summersell's
opinion was based on assumed facts, those matters were set out in his various
reports. In particular, there
was a reference in his report of 30 May 2008 to
the appellant's knee not being " right " since the incident at work, to
it feeling " unstable " and to the knee giving way. In his report of 6
May 2008, Dr Summersell expressed an opinion that a recent fall the appellant
had
experienced was due to the instability of his knee.
|
| 88 | The fact that the reports did
not refer to the subsequent non-work related incidents did not amount to a
failure to satisfy the requirements
of expert evidence. As explained above, the
principle in Makita do not require that there be an exact correspondence
between the assumed facts upon which an expert opinion is based and the facts
proved in the case. Accordingly, the absence of any express reference to those
specific incidents did not mean that the facts upon
which Dr Summersell based
his opinion, including falls and instability of the knee, did not form a proper
foundation for his assessment
as required by the principle in Makita. The
extent of correspondence between the assumed facts and the facts proved was
relevant to the assessment of the weight to be given
to the reports. Although
his Honour dealt with Dr Summersell's reports as a matter of weight, he
incorrectly applied the principle
in Makita as that principle was
explained in ASIC v Rich. That constitutes error in point of law.
|
| 89 | The next alleged error
relates to his Honour's reasoning at [155]. Again, it is convenient to set out
the relevant portion of his
reasons: |
"... Furthermore, Dr Summersell provided two reports dated 6 May 2008. In the
first he offered no opinion as to causation other than
to restate [the
appellant's] own opinion that the problems with his knee were related to the
incident in 2005. In the second, without
offering any explanation, he stated
that he, himself had formed the view that the 2005 incident was the cause of
[the appellant's]
incapacity. In the absence of an explanation of the scientific
or other intellectual basis for the conclusion reached, Dr Summersell's
opinion
also fails to satisfy the second limb of Makita ."
| 90 | With respect to his Honour,
this passage does not fully replicate Dr Summersell's opinion in these two
reports. In each, Dr Summersell
stated that, in his opinion, he suspected that "
the subcutaneous changes are present due to a recent fall that [the
appellant] had due to the pre-existing instability of his knee
". This
opinion provided the scientific basis for the conclusion he reached in the
respective reports, that the injury sustained in
the work incident was
responsible for the current condition of the appellant's knee. Accordingly,
there was no failure to comply
with the second limb of Makita. His
Honour's finding to the contrary thus constituted a wrong application of legal
principle and also amounted to an error in point
of law.
|
| 91 | There is another problem with
his Honour's approach at [155]. His Honour singled out the reports of 6 May 2008
and found a deficiency
in those reports. It was that deficiency that led him to
conclude, in conjunction with the supposed non-compliance with the principle
in
Makita, that Dr Summersell's evidence should be accorded no weight; that
is, that his reports had no rational probative value: see Brambles Industries
Limited v Bell at [16]. Whether an insupportable finding that an opinion has
no rational probative value amounts to an error of law is not something
upon
which I need to express an opinion. The present point is different.
|
| 92 | Although I have concluded
that the two reports of 6 May 2008 were not deficient as found by his Honour,
the question as to whether
Dr Summersell's satisfied the principle discussed
above had to be determined by having regard to all of his reports. A deficiency
in one part of an expert's evidence may be made good by other material, either
in another report or in oral evidence: see the discussion
in Rhoden v Wingate
at [55]-[73]. In total, there were four reports of Dr Summersell, including
the two reports dated 6 May 2008. A failure to consider
all of the material
relevant to a particular issue is an error in the process of fact finding and
itself amounts to an error of law:
see Waterways Authority v Fitzgibbon
[2005] HCA 57; (2005) 221 ALR 402 per Hayne J at [130]. The question as to
whether there was a scientific or intellectual basis for Dr Summersell's opinion
had to
be determined by reference to all of his reports. It was not a
determination that could be made by singling out an isolated part
from the whole
of that witness's material before the Commission.
|
| 93 | There is also a question as
to whether the principles governing the admissibility of expert evidence, and,
in the case of jurisdictions
where the rules of evidence do not apply, the
weight to be given to expert evidence, had any role to play in the case of
reports
of an expert, such as a medical practitioner, which come into existence
as business records. In Rich & Anor v ASIC [2005] NSWCA 233; (2005)
54 ACSR 365, Handley JA (Giles and Basten JJA agreeing) stated, at [13], that it
was " far from clear " that the principle in Makita applied with
their full force, or at all, to out of court statements by experts in business
records. Although his Honour's observation
was made in the context of an
evidence-based jurisdiction, there is nonetheless force in his observation.
However, I do not find
it necessary to resolve that question in these reasons
and I defer any further consideration of it to an occasion where the point
is
raised and directly in issue. |
| 94 | I have indicated above that
the respondent's principal response to the appellant's arguments on the first
issue is that, even if his
Honour did err in the manner alleged, the error would
make no difference because of his Honour's rejection of the appellant's case
that he had ongoing symptoms. It is convenient to deal with that argument after
I deal with the second issue, namely, that his Honour's
according of no weight
to the expert opinion of Dr Summersell constituted a denial of procedural
fairness. |
Second issue on the appeal: the natural justice issue
| 95 | The appellant further
contended that he was denied procedural fairness in that, neither before the
Arbitrator nor before his Honour,
was any issue raised that the opinion of Dr
Summersell should be rejected as having no weight on the basis of a failure to
comply
with any aspect of the principle stated in Makita. The
respondent's initial response to this submission was that there had been a
challenge to Dr Summersell's evidence before the Arbitrator.
It was submitted
that that challenge was apparent from the Arbitrator's reasons, at [36], where
there is a reference to Dr Summersell's
evidence. However, a reading of that
paragraph does not support the respondent's submission. Apart from [36] of the
Arbitrator's
reasons, the respondent accepted that there was no reference
anywhere in the written submissions, either in those made to the Arbitrator,
or
more particularly in the written submissions made to his Honour, which raised
the Makita points upon which his Honour relied.
|
| 96 | His Honour's reasoning in
relation to the failure to comply with aspects of the principle in Makita
was central to his rejection of Dr Summersell's opinion as having no weight.
Had either of the Makita points been raised by the respondent, the
appellant would have had an opportunity to respond. Although it was open to his
Honour to
assess Dr Summersell's opinion having regard to the principle in
Makita , this was such a critical matter in his Honour's determination
that I am of the opinion that he should have given the parties the
opportunity
to address him before reaching a final conclusion. For that reason, I am of the
opinion that there was a relevant failure
to afford procedural fairness.
|
Should the matter be remitted to the Workers Compensation Commission?
| 97 | However, that does not
conclude the question as to whether his Honour's decision ought to be set aside.
In Stead v State Government Insurance Commission [1986] HCA 54; (1986)
161 CLR 141 the High Court noted that an appellate court will not order a new
trial if it would inevitably result in the making of the same order
as that made
by the primary judge. For this reason, not every departure from the rules of
natural justice will entitle the aggrieved
party to a new trial. This principle
is of long standing and has recently been affirmed by the High Court in Re
Refugee Tribunal & Anor; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
and SZBYR v Minister for Immigration and Citizenship [2007] HCA 26;
(2007) 235 ALR 609. |
| 98 | The respondent contended that
there was no basis for setting aside his Honour's decision because he had
rejected the appellant's case
that he suffered any ongoing disability beyond a
few days after the initial 2005 work incident. The respondent submitted that, in
that circumstance, Dr Summersell's opinion, which was based upon an acceptance
by Dr Summersell of the appellant's history that he
had had ongoing symptoms
relating to his knee since the work incident, would not, in any event, have been
accorded any weight by
his Honour, regardless of any error involved in the
application of the principle in Makita. |
| 99 | The difficulty with the
respondent's proposition is in the manner in which his Honour eventually
rejected the appellant's case. I
have already set out his Honour's reasoning
process in some detail. The paragraphs of his Honour's reasoning relevant to
this argument
are at [149] where he found the evidence of the appellant's
co-workers compelling as to the trivial or non-incapacitating nature
of the
appellant's injury; at [154]-[155] relating to Dr Summersell's evidence; at
[171] where his Honour refers to the difficulty
in accepting the appellant's
evidence being compounded by the overwhelming evidence of his friends; and then,
finally his conclusion
at [173], in which he finds that it is the combination of
the evidence of the appellant's friends; the appellant's own failure to
address
the intervening injuries and the lack of any persuasive medical evidence which
led him to conclude that the effect of the
injury ceased a few days after the
work incident. |
| 100 | There is no doubt that in
the course of this reasoning his Honour was leading to a rejection of the
appellant's claim that he had
had ongoing symptoms since the work incident.
However, he did not ultimately reject the appellant's case until he stated his
conclusion
at [173]. One of the reasons for that rejection was because his
Honour considered that there was no persuasive medical support for
the
appellant's case. However, one of the reasons why the appellant's case did not
have any persuasive medical support was because
his Honour had rejected Dr
Summersell's opinion. His Honour rejected Dr Summersell's opinion because he had
not accepted the appellant's
case. With respect to his Honour, this reasoning
was circular. |
| 101 | It is not apparent to me
that had Dr Summersell's evidence been dealt with in accordance with correct
legal principle and had the
appellant been afforded procedural fairness in
respect of his Honour's dealing with Dr Summersell's evidence, that the result
would
have been the same. Had his Honour been directed to the correct
application of the principles which govern expert evidence, it may
have been
that weight would have been afforded to Dr Summersell's opinion. The weight to
be given to that opinion would then be a
matter for the trial judge.
|
| 102 | It is also possible that the
appellant's submission relating to the failure of the respondent to
cross-examine Dr Summersell may have
been of more force had the appellant been
aware that his Honour was going to reach his conclusion in respect of the
medical evidence
on 'the Makita principle'.
|
| 103 | Importantly, it is likely
that, had the appellant had the opportunity to address his Honour in respect of
Dr Summersell's evidence
and the correct application of the principles governing
expert evidence, attention would have been drawn to the fact that Dr Summersell
was aware that the appellant had subsequent injuries not directly related to the
work injury, but which resulted from the instability
that Dr Summersell
attributed to the injury sustained in the work incident. Having regard to these
various possibilities, I am not
satisfied that the result in this case would
have been the same. |
| 104 | My conclusion in respect of
the first and second grounds of appeal makes it unnecessary to consider the
further issues raised by the
appellant. However, I would make the following
comment in respect of the third issue, namely, that his Honour erred in failing
to
draw a Jones v Dunkel inference having regard to the failure of the
respondent to provide to the Commission the report of Dr Bodel. This ground of
appeal
could not succeed on its own. It is a matter for the primary decision
maker as to whether or not to draw a Jones v Dunkel inference. It is
sufficient at this stage to say that, had the appellant made out a prima facie
case, which was possible if any of
the evidence of Dr Summersell had been
accepted, then the availability of a Jones v Dunkel inference may have
been particularly valuable to him. |
Other matters
| 105 | There is another matter
which I feel compelled to raise in these reasons. In his reasons, his Honour
recorded, at [124], the following
two submissions made by the respondent:
|
"(r) the reports from the treating specialist Dr Summersell contain no history
of a 'fall' or a 'second fall' or 'two days sanding
on knees' even though [the
appellant] first presented to Dr Summersell only seven days after presenting at
the Grafton Base Hospital,
reporting multiple problems in the right knee
aggravated by two days sanding at home. It is submitted that these histories
were deliberately withheld and explain Dr Summersell's confusion and inability
to reach a diagnosis
;
(s) on 6 May 2008 Dr Summersell wrote two reports to Dr Barrell. In the first
report, Dr Summersell in dealing with the question
of causation said '[the
appellant] feels that the injury he had about three years ago is responsible for
the current condition of
his knee'. In the further report, presumably written
later, he expressed the opinion 'I think the injury [the appellant] had about
three years ago is responsible for the current condition of his knee.' It is
submitted that Dr Summersell's opinion has been influenced by the possibility of
private hospital cover for the operative procedure
recommended ..."
(emphasis added)
| 106 | With respect to the drafter
of these submissions, they are improper. The submissions were made on an
occasion of privilege and in
circumstances where the drafter would have expected
that neither the appellant nor Dr Summersell were likely to be called to give
evidence, as turned out to be the case. It followed that neither the appellant
nor Dr Summersell had the opportunity to defend themselves
against the serious
allegations of impropriety and dishonesty that were directed to their conduct.
Courts and tribunals do not provide
a forum for the making of serious
allegations of impropriety and fraud, other than in well-accepted circumstances.
|
| 107 | The principles which govern
the making of such allegations were breached on this occasion. Before any such
submission was made, the
allegations of such seriously wrongful conduct should
first have been put to the relevant persons, namely, the appellant and Dr
Summersell.
This could have been done by seeking an oral hearing. In seeking
such a hearing, it would be incumbent upon the respondent to make
it explicit
that such allegations were being made so that the Court understood the case fell
outside the usual practice in the Commission
not to have an oral hearing. The
respondent did not make any such application. The consequence is that the
allegations are permanently
part of the public record.
|
| 108 | I raise the matter so that
the Profession is in no doubt as to their professional responsibilities in the
making of submissions. |
| 109 | I should also state that the
drafter of the submissions was given the opportunity at the conclusion of the
hearing of the appeal to
explain why such submissions were made by him given
that they were not supported in the evidence before the Commission. The drafter
refrained from doing so without first obtaining legal advice. This was a
position the drafter was entitled to take. However, that
is a separate matter
from that which I wish to bring to the attention of the profession.
|
| 110 | I would propose the
following orders: |
1. Appeal allowed.
2.
Remit the matter to the Workers Compensation Commission for redetermination in
accordance with law.
3. The respondent to pay the appellant's costs of
the appeal.
| 111 | GILES JA: I agree
with Beazley JA, and with the additional remarks of Tobias JA.
|
| 112 | TOBIAS JA: I agree
with the orders proposed by Beazley JA for the reasons she has given. In
particular, I endorse her Honour's remarks at [104]
to [106] of those reasons.
It is in the context of the matters raised in those paragraphs that I wish to
add some remarks of my own.
|
| 113 | As her Honour notes at [5]
of her reasons, the appellant's application proceeded both before the Arbitrator
and the President of the
Commission " on the papers ". Section 354 of the
Workplace Injury, Management & Workers Compensation Act 1998 (the WIM
Act) sets out the procedure to be followed before the Commission. Subsections
(1) to (3) are reproduced by Beazley JA
at [78] of her Honour's reasons. To
those provisions I would s 354(6) which provides as follows:
|
"If the Commissioner is satisfied that sufficient information has been supplied
to in connection with proceedings, the Commission
may exercise functions under
this Act without holding any conference or formal hearing."
| 114 | Rule 15.2 of the Workers
Compensation Rules is applicable to the operation of s 354(6) and is
reproduced by her Honour at [79] of her reasons. Relevant to what I am about to
say is that the rule provides that when informing itself of any matter, the
Commission is to bear in mind a number of principles
including, relevantly, that
evidence should be logical and probative. I would have thought that that
principle extends to the evidence
being complete in that it does not contain
unnecessary gaps or leave matters which require explanation unexplained.
|
| 115 | Practice Direction No.1 was
issued by the Commission with respect to the practice and procedure to be
adopted when determining matters
on the basis of documents provided ("on the
papers") in the absence of any conference or formal hearing. It notes that the
direction
must be considered in the context of the objectives of the Commission
including in particular the duty to provide a just, timely
and effective dispute
resolution in relation to workers entitlements under the legislation.
|
| 116 | The Practice Direction then
states that there will be many disputes suitable for determination on the papers
and provides a number
of examples where such a determination would be
appropriate in the circumstances. It is noteworthy that those examples do not
include
those cases where there are factual disputes and, in particular, where
the credit of the applicant or a witness is in issue. Thus,
under the heading
"Factors relevant to a determination on the papers", the Practice Direction
states that without restricting the
matters that may be relevant to the decision
to determine a matter on the papers, the following factors will be considered of
which,
relevantly for present purposes, is whether there are questions as to the
credit of the applicant or a witness. As I indicate below,
the present matter
was such a case. |
| 117 | The Practice Direction also
provides for the procedure for determination of appeals on the papers. It
states: |
"The Presidential member to whom the appeal is allocated for determination will
decide whether the matter is suitable for determination
on the papers. All
relevant documents and comprehensive written submissions must be put before the
Presidential member by both parties,
in order that the Presidential member may
make that decision.
It is the responsibility of the parties to ensure that the Presidential member
is properly and comprehensively informed in writing
as to the grounds of and
issues on appeal, and that any objections to a determination on the papers are
clearly stated and supported
by specific reasons, as opposed to broad
generalities."
| 118 | It may be noted that the
responsibility of the parties to which reference is made does not extend, at
least expressly, to the parties
ensuring that the evidentiary material placed
before the Presidential member is comprehensive in the sense that any gaps in
the evidence
are filled and any inconsistencies in the evidence are explained.
However, in my opinion the parties and their legal representatives
have that
responsibility, one that in my respectful opinion was in some respects
unfulfilled in the present case. |
| 119 | The President was aware of
the requirements of s 354(6) of the WIM Act which he reproduced at [10] of his
reasons. At [11] he said,
relevantly: |
"Having regard to Practice [Direction No.1], the documents that are before me,
in the submissions by the parties that the appeal
can proceed to be determined
on these documents, I am satisfied that I have sufficient information to proceed
'on the papers', without
holding any conference or formal hearing, and that this
is the appropriate course in the circumstances."
| 120 | I would observe that
notwithstanding that the parties may have submitted that the appeal could
proceed to be determined on the basis
of the documents before the President
(which comprised the material that was before the Arbitrator) subject only to
the admission
of some fresh evidence not presently relevant, in my view the
President may still have been required to satisfy himself not only
at the time
he commenced consideration of the appeal but also at all times during the course
of that consideration, that, given the
issues which arose during the course of
that consideration, he had sufficient information to enable him to proceed to a
final determination
on the papers without the necessity of holding any form of
hearing. |
| 121 | In Fletcher International
Exports Pty Ltd v Lott [2010] NSWC 63 at [44], Giles JA, with whose reasons
McColl and Basten JJA agreed (the latter adding some reasons of his own),
recorded
a submission by the appellant in that case that the Acting President of
the Commission had erred in law in that |
"... the information before him was not capable (it was also said, not
reasonably capable) of satisfying him that he could decide
the appeal upon
proper consideration. It was said that there was a 'continuing duty' to give
proper consideration, so that even if
he at first was satisfied that he had
sufficient information to proceed on the papers, the Acting President should
have taken a different
course upon it becoming apparent that an oral hearing was
necessary."
| 122 | However, his Honour did not
find it necessary to accept or reject that submission. It was not repeated
before us so that it would
not be appropriate to form a concluded opinion upon
its validity. Nevertheless, even if there is no "continuing duty" breach that
would involve an error of law, there is nothing to prevent the Presidential
member from applying the required state of satisfaction
at any time during his
or her consideration of the matter the subject of the appeal. As a matter of
practice, if not as a matter
of law, I would have thought that the objectives of
the Commission to provide a just and effective resolution of the dispute between
the parties would be more likely to be achieved even if some delay in the
determination of the matter resulted by requiring some,
even truncated or
limited, oral hearing where necessary to resolve serious credit issues.
|
| 123 | Having set out the relevant
procedural provisions, I now turn to what I perceive to be the issues that arose
before the President
and which have caused me some disquiet. Dealing first with
the subject matter of [104] of Beazley JA's reasons, the President dealt
with Dr
Summersell's reports at [154] and [155] of his reasons which her Honour has
extracted at [56] of her reasons. It is apparent
that his Honour rejected Dr
Summersell's opinions due to his failure to deal with the non-work related
incidents (at [154]) and to
offer an explanation for the differences in his two
reports of 6 May 2008 (at [155]). |
| 124 | Although the President
called Makita in aid of his conclusion that no weight should be accorded
to Dr Summersell's opinions, it is apparent that the President considered
that
those reports were, on their face and in the respects relied upon by him,
insufficient in the information they provided. His
Honour was alive to these
alleged deficiencies as appears from [153] of his reasons extracted at [54] of
Beazley JA's reasons, |
| 125 | Of itself, in my respectful
opinion, this should have conveyed to his Honour a concern as to whether s
354(6) of the WIM Act was satisfied
at the point where he was forming his
findings with respect to that material. It is apparent that the President did
not have sufficient
information upon which he could properly consider Dr
Summersell's reports of 6 May 2006 without further explanation from him as to
the differences between them. Given the submissions of the respondent
highlighted by Beazley JA at [104] of her reasons, and accepting
that the
President did not, at least expressly, adopt those submissions, nevertheless,
and particularly in the light of there being
no medical evidence tendered on
behalf of the respondent, fairness and justice required that Dr Summersell be
given the opportunity
of explaining the differences which ultimately caused the
President to reject his opinion. |
| 126 | I turn now to the findings
of the President referred to by Beazley JA at [52] of her reasons and, in
particular, to his Honour's finding
at [171] referred to by Beazley JA at [61]
above and which for convenience I repeat: |
"The difficulty in accepting Mr Hancock's evidence of ongoing pain and
instability in the knee since November 2005 is compounded
by the overwhelming
evidence of his friends and colleagues to the effect that he went for several
years after his injury in March
2005 with no apparent restrictions, problems or
complaints regarding his knee. His evidence of persistent problems with the knee
is also inconsistent with his capacity to undertake heavy physical work in the
timber mill for several years after the injury and
to participate in heavy
physical activities outside of the workplace including unloading timber and
joists at home, lifting heavy
furniture and appliances while assisting a friend
to move house and undertaking work around his home, for example, sanding whilst
on his knees."
| 127 | The President's finding that
the effects of the injuries sustained by the appellant on 31 October 2005 had
ceased by November 2005
was as a consequence of
|
"[t]he combination of the lay evidence of Mr Hancock's colleagues, his own
failure to address a series of intervening injuries, and
a lack of any
persuasive medical evidence."
| 128 | It is apparent not only from
the President's conclusions but also from his consideration of the lay evidence
tendered by both the
appellant and respondent, that he regarded the former as an
unreliable witness: see, for instance, [167] of his reasons. In particular,
he
considered that his evidence was inconsistent with that of his friends and work
colleagues who provided statements of which the
majority were those of the
respondent's employees and tendered by it: see at [168]-[169].
|
| 129 | There is no doubt that there
were apparent inconsistencies between the evidence of the appellant on the one
hand and those other witnesses
on the other. The President preferred the
evidence of the respondent's witnesses particularly because they were work
colleagues of
the appellant and some had become his friends and had not seen any
signs of any ongoing problems with the appellant's knee. At least
he had not
complained about it. |
| 130 | It is also clear from the
President's reasons at [160]-[173] that he regarded the appellant as lacking
credit. There can be no doubt
that in the mind of the President the evidence of
the lay witnesses raised questions with respect to the appellant's credit. Yet
it is apparent that his Honour still regarded it as appropriate to determine the
issue of credit " on the papers ". |
| 131 | As I have indicated,
Practice Direction No.1 makes clear that where an issue arises as to the credit
of an applicant or a witness,
that is a factor to be taken into account when
considering whether to determine a matter " on the papers ". Whether or
not the President took that factor into account in determining the matter on the
papers is not apparent from his reasons.
|
| 132 | The assertion by the
President at [11] of his reasons, to which I have referred at [ REF
_Ref284861161 \r \h The President was aware
of the requirements of s 354(6) of
the WIM Act which he reproduced at [10] of his reasons. At [11] he said,
relevantly: ] above,
causes me some unease given that it must have been obvious
at an early point of his consideration of the statements of the various
witnesses that there was an issue with respect to the appellant's credit. One
might be forgiven for thinking that before an adverse
finding as to his credit
was made, the appellant should have been given the opportunity of answering or
explaining the evidence of
his work colleagues relied upon by the President that
he had not between 2005 and 2008 made complaints regarding his knee.
|
| 133 | Furthermore, it is not self
evident that the appellant was not still suffering the effects of the
work-related incident in the years
referred to simply because he did not
complain about his knee to the witnesses upon whose evidence the President
relied and who were
employees of the respondent whose statements were tendered
by it. There may have been a number of explanations for the lack of any
complaint. Thus the appellant may simply not have been a complainer. He may well
have not wished to complain about his knee to his
work colleagues in case it got
back to his employer and affected his job security. Thus, one of the statements
tendered on behalf
of the respondent was from the owner (and later manager) of
the respondent's business who stated that at no time in the two and a
half years
prior to the date of his statement (28 May 2008), had the appellant made any
mention of a work-related injury to his knee
or reported any such injury. Again,
the appellant may have simply preferred to work in a manner that did not reveal
any weakness
on his part in his ability to carry out his work to other employees
of the respondent. He may have preferred to work with undisclosed
pain rather
than seek compensation. |
| 134 | These are all considerations
which, in my respectful view, should have exercised the mind of the President
either before or during
his consideration of the matter so that he could be
satisfied immediately prior to making his final determination that he in fact
had sufficient information on which to make serious findings with respect to the
appellant's credit. |
| 135 | I have referred at [ REF
_Ref284861272 \r \h The Practice Direction also provides for the procedure for
determination of appeals on
the papers. It states: ] above to the statement in
Practice Direction No.1 as to the responsibility of the parties in ensuring that
comprehensive information is provided to the Presidential member. As I there
observed, failure of the parties to attend to their
responsibilities does not,
in my respectful view, relieve the Presidential member of his or her obligation
to be satisfied that he
or she has sufficient information to enable a
determination to be made without holding any conference or formal hearing. That
was
a continuing obligation and could not be avoided simply because the parties
had agreed that the appeal could be determined on the
papers.
|
| 136 | The present is a case where
the appellant was unsuccessful before the Commission because of unfulfilled gaps
and unexplained inconsistencies
in both in the appellant's evidence and that of
Dr Summersell's. The appellant's legal representatives should have been alive to
those gaps and inconsistencies and should have ensured that as far as
practicable the gaps were filled and the inconsistencies explained
by seeking to
file supplementary statements and/or reports. This should have occurred when the
matter was before the Arbitrator.
This is because an appeal under s 352 of the
WIM Act is by way of review of the decision appealed against rather than a
re-hearing:
see s 352(5). Nevertheless, pursuant to s 352(6) fresh or additional
evidence may be given on an appeal to the Commission with leave.
|
| 137 | Alternatively, a submission
could have been made on behalf of the appellant to the President that if the
credit of the appellant was
to be in issue, then fairness dictated that there
should be some form of hearing and that the matter should not be determined
solely
upon the papers. |
| 138 | This is not the first time
that I have commented upon the failure of legal representatives in cases such as
the present to ensure
that the evidentiary statements and reports which are to
be tendered and relied upon are comprehensive, complete and as consistent
as is
practicable. I adverted to this issue in Brambles Industries Ltd v Bell
[2010] NSWCA 162 at [24]- [27] with which McColl JA agreed.
|
| 139 | Obviously, we have not heard
from the appellant's legal representatives and, therefore, it would not be
appropriate to make any final
criticism of the manner in which they conducted
this matter. I am content to simply observe that a careful consideration of the
material
that was before the Arbitrator and which was to be before the President
revealed matters (such as the appellant's lack of complaints
to his work
colleagues) which, at least prima facie, would seem to have called for some
explanation from him in order to avoid any
adverse credit finding.
|
| 140 | Be this as it may, the
President should have been alive to the matters to which I have referred given
that it was clear, at least
to him, that a significant issue in the appeal
involved the appellant's creditworthiness. Equally, again as the President
recognised,
the aspects of the two reports of Dr Summersell of 6 May 2008 upon
which he (the President) relied and which ultimately caused him
to give no
weight to that expert's opinion, involved an implicit finding which, at least in
part, reflected adversely on Dr Summersell's
credibility and integrity. As a
matter of fairness these problematic aspects of the reports called out for an
explanation particularly
in the light of the fact that no medical evidence was
tendered on behalf of the respondent. Dr Summersell was not, apparently, given
the opportunity to provide that explanation. |
| 141 | I simply conclude these
remarks by observing that the conduct of the appeal on the papers has left me
with a significant feeling of
unease. Both the Commission and the legal
profession should, as Practice Direction No.1 makes clear, give serious
consideration as
to whether it is appropriate for a matter to be determined
wholly on the papers where questions as to the credit of the applicant
or a
witness are in issue as in the present case.
|
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