Yang v Industrie Clothing Pty Limited [2022] NSWPICPD 10 (16 March 2022)

Last Updated: 23 March 2022

INTRODUCTION AND BACKGROUND

1. On 29 March 2017, the appellant, Mr Xiong Yang, fell on stairs leading to an Industrie Clothing shop situated at Rosebery. At the time Mr Yang was using a hand trolley ladened with four individual boxes. He slipped and lost control of the trolley resulting in injury.

2. An Application to Resolve a Dispute (ARD) dated 11 March 2021 was lodged identifying the matters in dispute as:

(a) lump sum compensation, and

(b) lump sum compensation where the degree of permanent impairment is in dispute.

3. The Body systems claimed were:

(a) right upper extremity, and

(b) cervical spine.

4. The respondent lodged a reply to the ARD dated 1 April 2021.

5. On 31 May 2021, a Member of the Personal Injury Commission heard submissions by the parties’ representatives, at the conclusion of which he reserved his decision.

6. On 7 June 2021, the Member delivered an oral Statement of Reasons.

7. The Member defined the dispute between the parties in the following terms:

“The impairment is alleged to result from an injury which occurred in the course of the [appellant’s] employment on 29 March 2017. The respondent accepts that the [appellant] suffered an injury to his right shoulder in that incident but disputes that he suffered any other injury. Specifically, it disputes that the [appellant] suffered an injury to his neck.

...

It was accepted by the parties at the arbitration that the claim in respect of the thoracic spine or upper back should be deleted from the Application.”^[1]

8. The Member determined the parties’ dispute adverse to the appellant. He said:

“As the [appellant] has not persuaded me on the balance of probabilities that he suffered an injury to his neck in the incident pleaded, the application must be dismissed. I note that the assessment of Dr Bodel in respect of the [appellant’s] right shoulder is not sufficient to permit a referral of the [appellant’s] claim to an Approved Medical Specialist. In short, it is less than 11 per cent.”^[2]

CERTIFICATE OF DETERMINATION – ORAL REASONS

9. The Certificate of Determination recorded the determination of the Commission as follows:

“1. By consent amend the Application by deleting reference to ‘upper back’ wherever it appears.

2. That the [appellant] has not established on the balance of probabilities that he sustained injury to the cervical spine on 29 March 2017.

3. As the remaining claim for permanent impairment does not exceed 10% dismiss the Application.”

10. The appeal challenges orders 2 and 3. The relief sought by the appellant is that, in the event the appeal is allowed, the matter should be remitted for rehearing by the Commission differently constituted.

11. In view of the disposition of the appeal, it is unnecessary to discuss the proposed relief in any detail.

THE MEMBER’S STATEMENT OF REASONS

12. The Member delivered an oral judgment which was plainly carefully considered and prepared before its delivery.

13. The Member identified the respondent’s case as depending upon the absence of any contemporaneous complaint of neck pain in the fairly lengthy medical records and as being supported by the opinion of Dr Kleinman that the appellant had not suffered a neck injury.

14. It was not disputed that there was an absence of contemporaneous complaint of neck pain in the medical records. But the appellant’s counsel submitted “that that was understandable in view of the [appellant’s] evidence that he was focused on pain in his right shoulder when he initially sought treatment after the incident.”^[3]

15. The Member outlined the evidence briefly. He said that he did not intend “to survey that evidence in a comprehensive manner; rather, [he] record[ed] the salient points in the context of the submissions made by the parties.”^[4]

16. It is significant that the appellant does not complain about or challenge the accuracy of the Member’s summary of the evidence. Furthermore, there is no complaint that the Member failed to correctly identify those parts of the evidence relevant to his determination or that he overlooked important parts of the evidence.

17. The Member referred to “several aspects” of the case requiring comment prior to the Member addressing the critical issue in dispute.^[5]

18. Firstly, in answer to the appellant’s counsel’s submission that the appellant was “an unsophisticated man who spoke English as a second language”, the Member noted that Dr Bodel, independent medical expert for the appellant, observed that the appellant had a reasonable command of the English language though he, at times, did refer to the interpreter. Importantly the Member said: “In the absence of evidence on this issue in the [appellant’s] statement it is not possible to draw an inference that the [appellant’s] failure to inform multiple medical practitioners and allied health professionals of [the] cervical injury can be explained on the basis of language difficulties.”^[6] There is no challenge to that finding on the part of the Member.

19. Secondly, the Member said that he could accept that the appellant may have been distracted by his significant shoulder injury throughout the initial medical examinations, however, he was not prepared to accept “that the distraction hypothesis” explained the appellant’s failure to give an account of a neck injury to his treating practitioner, his physiotherapist, his treating orthopaedic surgeon and several other medical practitioners or allied health professionals who saw him on behalf of the respondent.^[7]

20. That conclusion was reinforced by the elapse of time. It was accepted by the Member that excruciating pain may have distracted the appellant in the months following the injury, but it was difficult to accept that that circumstance continued for a number of years.

21. Thirdly, the Member found Dr Bodel’s evidence to be “quite ambiguous”. Dr Bodel’s reports did not say that the appellant suffered a pathological or physiological change in the body or the aggravation of a disease.

22. The Member said of the treating doctors and allied medical professionals:

“Dr Gothelf commences his written record of his treatment of the [appellant] with a letter to Dr Abeydeera on 1 May 2017.

That record concludes with a report of 31 January 2020. Neither the histories nor the clinical examinations recorded in those serial reports refer to neck pain. Similarly, the notes of the medical practice where the [appellant] was treated are remarkable for the complete absence of the complaint of neck pain or a record of neck examination. The notes contain not only the records of Dr Abeydeera and Dr Ma, who primarily treated the [appellant], but also the clinical notes of the physiotherapist who treated the [appellant] over this period. In none of those documents is there a reference to neck pain or restriction of movement.”^[8]

23. The evidence of Dr Kleinman, who was qualified by the respondent, was that the appellant had not sustained any injury to the neck. The reports of Mr Milazzo, consultant physiotherapist, contained “no complaint” of neck pain. Furthermore, Mr Milazzo recorded “that the [appellant] had a full range of movement in his neck on examination.”^[9]

24. Mr D’Costa, treating physiotherapist, made no reference to neck pain in his report.

25. Dr Kafataris, in his report to the insurer dated 4 August 2018, opined the worker had continuing symptoms in the shoulder preventing him returning to his pre-injury work. He did not refer to an injury to the neck.

26. The Member came to the following conclusions:

“While it is possible that the [appellant] had some restriction of movement in his neck at the time that he saw Dr Bodel, I am not persuaded that he suffered an injury to the neck in the subject incident.

The complete absence of any contemporaneous complaint together with the multiple opinions expressed by Dr Kleinman, Mr Milazzo, Dr Kafataris and others combine to lead the Commission to the conclusion that the opinion of Dr Bodel, which I have pointed out is in some ways quite tenuous, should not be accepted in this case.

I should state that when there are conflicting opinions among medical specialists in respect of issues of injury or causation or, indeed, prognosis the absence of evidence from treating medical practitioners on critical points is important.”^[10]

ON THE PAPERS

27. The parties are in agreement that the appeal can be disposed of on the basis of the written information, material and submissions.

28. Section 52(3) of the Personal Injury Commission Act 2020 provides:

“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”

29. The procedural directions PIC2 and WC3 provide that I may be satisfied that the documents and submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing. I am satisfied this is an appropriate matter to proceed “on the papers” without holding any conference or formal hearing.

THRESHOLD MATTERS

30. The parties agree that the appeal was lodged within time and that the financial constraints imposed by s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) are satisfied.

THE NATURE OF THE APPEAL PURSUANT TO SECTION 352 OF THE 1998 ACT

31. The appellate jurisdiction conferred by s 352 of the 1998 Act is as follows:

“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”

32. The ambit of that provision was considered in Raulston v Toll^[11] at [19] and [20] by Roche DP. It is valuable to quote from that decision:

“19. First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted “Arbitrator” for “trial judge” where appropriate):

(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.

(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.

(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.’

20. The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):

‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”

33. The Member’s advantage in the circumstances of the present matter where there is no oral evidence is less than might be the case in courts exercising general jurisdiction and hearing the viva voce evidence, nevertheless the findings of the Member are to be afforded appropriate deference and respect.

34. The appellate jurisdiction of the Personal Injury Commission is only engaged where there is error of fact, law or discretion.

GROUNDS OF APPEAL

35. The appellant agitates three grounds of appeal, namely:

(a) Ground One – The Member misapplied authority on the correct approach to clinical notes and misdirected himself to the evidence accordingly (error of law).

(b) Ground Two – Failure to place appropriate weight as to the appellant’s circumstances (error of fact).

(c) Ground Three – Failure to decide the case at hand (error of law).

Ground One – The Member misapplied authority on the correct approach to clinical notes and misdirected himself to the evidence accordingly (error of law)

Appellant’s submissions

36. The appellant submits that although the Member cited the leading authorities and what is required by a tribunal in a personal injury case in approaching clinical notes, he misapplied those cases “by misdirecting himself as to the facts of the particular case at hand”.

37. The appellant submits:

“It is conceded here, as below, that in many cases the correct approach is to determine a case based on clinical notes. However, as the above cases confirm, that approach is one to be exercised with caution. That is because clinical practitioners do not have a forensic purpose in mind when doing their job which is to provide medical treatment – not to assist lawyers in proving or disproving a case.”^[12]

38. The appellant further observes that the tribunal “must take into account not only the purpose of a medical practitioner but also the unique circumstances of the case which, here, include evidence that the appellant was suffering from significant pain with the injuries to the other parts of his body, which distracted him from seeking treatment for the neck. That does not mean the neck was not injured.”^[13]

Respondent’s submissions

39. The respondent submits in its overview that the appellant failed to complain about injury to his neck until such time as he saw his independent medical expert, Dr James Bodel, on 16 August 2018. The respondent says that there is no history of any complaint about an injury to the neck but merely a traction injury to the right arm and shoulder. Further, Dr Bodel does not specifically record that the appellant complained of any injury to his neck.

40. The appellant made numerous attendances upon allied medical health professionals but made no complaint of injury to the neck.

41. The respondent submits:

“Of those 8 medical professionals it is only Dr Bodel who asserts that the appellant injured his neck however this is in the absence of any recorded history of injury to the neck.”^[14]

42. In its opposition to Ground One the respondent says:

“It is not the case that the [M]ember misdirected himself as to the very simple facts of the present matter. Mason v Demasi [2009] NSWCA 227 made clear the task required of the tribunal of fact when considering interpretation of clinical notes which requires caution to be exercised when histories provided may not be comprehensive, such as in a case involving a convoluted psychological injury over many years, such as in Mason.

In this matter, the facts were glaringly simple. The appellant slipped on steps whilst pulling a trolley of boxes and sustained injury to his right shoulder. It is not to the point that he could have sustained injury to the neck but whether he actually did sustain such injury.”^[15]

43. The respondent refers to Malec v JC Hutton Pty Limited^[16] and quotes from Nguyen v Cosmopolitan Homes (NSW) Pty Limited,^[17] the essence of which is that the trier of fact must feel an actual persuasion of the existence of the fact before an affirmative finding of fact may be made.

44. The respondent concludes its submissions in opposition to Ground One in the following terms:

“In the present matter, the [M]ember made clear after a reasoned analysis of all the evidence presented in the matter that he was not persuaded the appellant had suffered an injury to the neck in the subject incident as stated by the [M]ember at line 3–4 on page 11 of the reasons.

Importantly, the appellant’s counsel sought to describe the plausibility in the mechanism of injury at T 12 (line 8 to 14) in circumstances where the appellant had never provided such an explanation.”^[18]

Appellant’s submissions in reply

45. The appellant filed submissions in reply on 11 August 2021.

46. The appellant submits that the respondent’s submission:

“respectfully, somewhat overstates the position in that whilst it is conceded that there is no record of complaint that is not, per se, positive evidence that there was no complaint. In any event, even if there was no complaint this is explained, cogently, by the appellant’s evidence that he was focused on pain elsewhere in the body and it should be noted that it was the right shoulder injury in respect of which he was being treated on the occasions when the respondent replies [sic, relies] upon the absence of complaint.”^[19] (emphasis in original)

47. The appellant makes the further point:

“Clearly, the appellant cannot (and does not seek to) reverse the onus which he has but part of the way in which that onus is discharged is by drawing the Commission's attention to the absence of a countervailing case theory in the context of the actual evidence, both lay and expert, deployed in the appellants case below - namely his statement evidence and the evidence of Dr Bodel.”^[20]

48. In answer to the proposition that the facts in this matter are “glaringly simple” the appellant submits:

“a correct application of the principles in Mason v Demasi [2009] NSWCA 227 must always be dependent upon the facts of the case to hand. Those facts are not, as submitted by the respondent at para [22] ‘glaringly simple’. Rather the clinical records, or lack thereof, must be considered in the light of the lay evidence and the explanation provided.”^[21]

Consideration

49. In Davis v Council of the City of Wagga Wagga^[22] the appellant suffered a severe injury to the left arm when he fell or jumped from a swing in a park. The respondent was sued as the occupier of the park responsible for installing and maintaining the swing. The respondent’s counsel submitted that the history contained in a report from a Dr J S Middleton was inconsistent in various ways with the account of the accident given in the appellant’s evidence.

50. At [29] Mason P said:

“The so-called inconsistencies were a substantial part of counsel’s submissions, as recorded. Counsel was at pains to indicate that it was not being suggested that anybody was deliberately lying, nor was recent invention raised in terms. But the point was hammered that the appellant ‘can only be regarded as about one the most unreliable historians that one could imagine’.” (emphasis in original, citations omitted)

51. The primary Judge adopted those submissions. He concluded that he was not satisfied that the appellant had satisfied the onus of proof. But the primary judge did not make a finding that the appellant or his father had given deliberately false evidence. He found several inconsistencies in the recorded history and gave them significant effect.

52. Although the appellant’s credibility (reliability) was not the only reason why the case failed before the primary Judge, Mason P observed:

“It cannot however be said that the case was doomed to fail regardless of the credibility issue. There was a good deal of material supporting a case that it may have been negligent to continue using this type of S-hook ...”.^[23]

53. His Honour said:

“32. This was a case in which credibility was vital and in which the appellant’s failure to persuade the trial judge that he had given an accurate and reliable account of the mechanics of the accidents formed a substantial plank in the ultimate determination.

33. The trial judge acknowledged that a significant aspect of his credibility assessment turned upon the inconsistencies that he identified in the passages set out above.

34. In my view it was not fairly open for these matters to be taken into account in the way they were. A challenge of this significance ought to have been taken to the witness by cross-examination, yet he was never confronted with a suggestion that he had held back the S-hook scenario until he saw Dr Middleton. Nor was it put to him that he had given inconsistent histories and that this was indicative of a lack of credibility casting doubt upon the critical question whether his clothing got caught on a partially-opened S hook.

35. Experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury. It is possible, and not merely speculatively so, that Dr Middleton misunderstood the precise mechanics of the immediate antecedent of the fall.

36. One can also envisage several reasons why the early hospital records make no mention of the mechanics of the fall. They had little to do with the diagnosis and treatment of an obviously serious injury. The plaintiff ought in fairness to have been given the opportunity to explain the entries if (which I doubt) they were inconsistent with his later testimony.”

54. The decision of Mason P allowing the appeal was agreed to by Beazley and Tobias JJA.

55. In Mason v Demasi,^[24] Basten JA made the point that discounting the appellant’s oral testimony on the basis of accounts given to various health professionals “which appeared inconsistent either with each other, or with her oral testimony or both” needed to be approached with caution for a number of reasons, namely:

(a) the health professionals who took the history had not been cross-examined;

(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;

(c) the record did not identify any questions which may have elucidated replies;

(d) the record is likely to be a summary prepared by a health professional, rather than a verbatim recording, and

(e) a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning will each affect the content of the history.

56. In both Mason and Davis importance was attached to the fact that the medical professionals were not cross-examined. In that context it was important that the evidence against which the medical history was said to show inconsistency derived from the oral evidence of the plaintiff.

57. The Member found and it is not challenged that apart from Dr Bodel, there was no record of a complaint of neck injury in any of the material provided by or from the health professionals. Furthermore, the Member regarded Dr Bodel’s reports as being inconclusive and somewhat ambiguous.

58. Dr Bodel did not have a specific history of injury to the neck.^[25]

59. This is the point made by the Member in his quotation from Dr Bodel’s report of 16 August 2018 that “[h]e also suffered a traction injury to the right arm and has referred pain into the neck and upper part of the back in the periscapular region in the right-hand side which is part of the same injury in my view.”^[26]

60. The Member regarded Dr Bodel’s reports as:

“quite ambiguous in addressing the question of whether the [appellant] suffered an injury to his neck. He opines that the [appellant’s] neck restrictions are caused by referred pain from the shoulder. That may or may not be consistent with an injury to the neck in the context of the workers compensation legislation. Injury is, of course, defined in the [Workers Compensation Act 1987]. It has been held that an injury consists of either a pathological or physiological change or alternatively the aggravation of a disease.

It is not evident from Dr Bodel’s reports that the [appellant] suffered either. However, I do not propose to determine the claim on that basis.”^[27]

61. The treating general practitioner was not told by the appellant on the appellant’s own case of injury to the neck. In the statement dated 11 May 2021 the appellant says:

“Because the pain in my neck was not as painful as my right arm and right shoulder, I did not mention it to Dr Prasad Abeydeera.”^[28] (Emphasis added)

62. The Member made that point when he said:

“Similarly, the notes of the medical practice where the [appellant] was treated are remarkable for the complete absence of the complaint of neck pain or a record of neck examination.”^[29]

63. It was not merely the absence of a record as is contended for by the appellant in his submissions. The appellant’s evidence was that he did not tell Dr Abeydeera of the injury. This is not a case where the complaint is that the medical professional failed to record what s/he has been told in the consultation. In this case the appellant concedes he did not tell Dr Abeydeera of injury to the neck. He does not elucidate the position so far as the other medical professionals are concerned but it is not disputed that apart from Dr Bodel, they had no record of injury to the neck.

64. The explanation of why the appellant failed to tell Dr Abeydeera is not really to the point. The absence of a complaint of injury to the neck in the notes and reports meant that the notes and reports did not provide support for an affirmative finding of injury.

65. The Member said with respect to the authorities:

“It is true that caution must be exercised in drawing inferences from clinical notes. That has been said in a series of cases, the most prominent of which is Mason v Demasi [2009] NSWCA 227, Wagga Wagga Council v Davies and Fitzgibbons v Waterways Authority [2003] NSWCA 294 (3 December 2003). However, multiple entries from multiple doctors over a long period of time, in the absence of explanation, must be given some weight.”^[30]

66. It is apparent that the Member was correctly directed to the explication of the relevant principle and that he had the cases in which the principle was applied in mind when he made his determination.

67. The evidence demonstrated on the probabilities that no complaint with respect to the neck was made until Dr Bodel’s first examination on 16 August 2018. The evidence of the respondent, in particular Dr Kleinman, was that there was no injury to the neck. The clinical notes and the reports therefore supported an inference that favoured Dr Kleinman’s opinion.

68. The Member explicitly had regard to the caution necessary when drawing inferences from the clinical notes. He did not misdirect himself as to the necessity for caution to be observed when considering the clinical notes. It was open to the Member to prefer the view of Dr Kleinman and to reject the appellant’s belated assertion of injury to the neck. The appellant has not shown error of fact, law or discretion. This ground of appeal is dismissed.

Ground Two – Failure to place appropriate weight as to the appellant’s circumstances (error of fact)

Appellant’s submissions

69. The appellant submits that the Member erred in failing to have sufficient regard to the statements of the appellant dated 9 March 2021 and 11 May 2021. Those statements are said to show that the focus on the accepted right shoulder injury “early on in the course of treatment” explains the absence of complaint of injury to the neck.

70. The appellant says “[t]here is no positive evidence in the clinical notes to exclude an injury to the neck”.^[31]

71. It is submitted that the appellant discharged the onus of proof by giving an account which was not contradicted by other material.

Respondent’s submissions

72. The respondent submits that the appellant has reversed the onus by suggesting that the doctors failed to enquire about a neck injury rather than the true position of the worker failing to mention it to anyone.

73. It further submits:

“The only reason why the appellant’s account in his statement went uncontradicted was solely on the basis that there was no contemporaneous evidence in support of the contention, apart from the lone voice of Dr Bodel. It is by no means clear from reading his two medico-legal reports that the appellant ever complained of neck pain, rather Dr Bodel says he made the observation during the examination and when the [appellant] was undressing. That hardly qualifies as a complaint of pain.”^[32] (emphasis in original)

The appellant’s supplementary submission and submission in reply

74. In his submissions in reply, the appellant denies that he has reversed the onus by suggesting the doctors failed to enquire about a neck injury rather than the true position of the worker failing to mention it. The appellant submits that the worker’s case need not be perfect and may as in this case be the subject of difficult forensic questions. However, the Member erred in the fact-finding process by effectively only relying on the absence of contemporaneous complaint without relying on the uncontradicted version of events put forward by the appellant below.

75. In supplementary submissions dated 1 July 2021, filed following receipt of the transcript of proceedings before the Member, the appellant directs attention to page 21, line 8 of that transcript, submitting that the Member accepted the proposition advanced by counsel at that point.

Consideration

76. The passage at transcript 21, line 8, agreed to by the Member, that the “appellant’s memory or ability to record events” appears to have improved over time, is indeterminate and hardly advances in its terms the proposition sought to be established before the Member, namely that of injury to the neck.

77. In the context of statements made to support his claim before the Commission, the appellant gave statement evidence seeking to explain why he had not complained to the treating doctors about the injury to his neck. The Member was not required to accept that explanation. There was other evidence, for example Dr Kleinman, that the appellant had not sustained injury to the neck. It was open to the Member to conclude notwithstanding the appellant’s statement that the reason there was no record of complaint was that he did not sustain injury to the neck on 29 March 2017.

78. It was for the appellant to establish by means of satisfactory evidence that he had sustained an injury to the neck. Part of the reasoning of the Member for not accepting that the appellant had sustained an injury to the neck was the absence of a recording of complaint in any of the medical evidence except for that of Dr Bodel.

79. The appellant gave evidence in his statements of why he did not in fact complain to Dr Abeydeera of the injury to the neck. That explanation was recognised by the Member who did not regard it as sufficient to overwhelm the inference against the allegation of injury to the neck.

80. It was open to the Member to draw the inference he did concerning the occurrence of the alleged injury to the neck.

81. The fact that another trier of fact may have been persuaded by the statement and prepared to draw an inference in favour of the appellant is insufficient. There was a choice between conclusions equally open and balanced as to whether or not the inference of injury to the neck should or should not be drawn. The conclusion of error is not arrived at merely because of the preference of a view of the appeal court for some fact or facts contrary to that reached by the trial judge.^[33] (This is not to suggest that I would have drawn a different inference.)

82. In my view, the inference drawn by the Member was not only available but was correct. Ground Two of the appeal is not made out and is dismissed.

Ground Three – Failure to decide the case at hand (error of law)

Appellant’s submissions

83. The appellant submits in support of this ground that the Member erred in law in failing to exercise the jurisdiction provided by s 105 of the 1998 Act for the reasons developed above as to Ground Two.

Respondent’s submissions

84. The respondent submits that the Commission has determined injury and causation on an analysis of the facts and evidence presented in support of those facts and that the evidence was insufficient to support a finding that the appellant discharged his onus in establishing that he sustained an injury to his neck on the balance of probabilities.

Consideration

85. In my view, the Member engaged with the evidence, the appellant’s submissions and exercised the jurisdiction provided by s 105, in making a determination adverse to the appellant that there was no injury to the neck.

86. The Member exercised the jurisdiction of the Commission to make the determination and no error is demonstrated.

CONCLUSION

87. No error of fact, law or discretion is demonstrated by the appeal. The appeal fails.

88. The Member’s Certificate of Determination dated 7 June 2021 is confirmed.

Geoffrey Parker SC

ACTING DEPUTY PRESIDENT

16 March 2022

^[1] Transcript of reasons 7 June 2021 (Reasons), 2.1–15.

^[2] Reasons, 11.27–29.

^[3] Reasons, 2.31–‑34.

^[4] Reasons, 3.28–31.

^[5] Reasons, 7.14–16.

^[6] Reasons, 7.25–30.

^[7] Reasons, 8.1–7.

^[8] Reasons, 8.29–9.10.

^[9] Reasons, 10.6–8.

^[10] Reasons, 11.1–16.

^[11] [2011] NSWWCCPD 25.

^[12] Appellant’s submissions, [16].

^[13] Appellant’s submissions, [17].

^[14] Respondent’s submissions, [20].

^[15] Respondent’s submissions, [21]–[22].

^[16] (1990) 169 CLR 638, 642–643.

^[17] [2008] NSWCA 246, [44]–[48].

^[18] Respondent’s submissions, [33]–[34].

^[19] Appellant’s submissions in reply, [4].

^[20] Appellant’s submissions in reply, [3].

^[21] Appellant’s submissions in reply, [5].

^[22] [2004] NSWCA 34.

^[23] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 (Davis), [31].

^[24] [2009] NSWCA 227 (Mason).

^[25] See pp 2–3 of the report dated 16 August 2018, ARD pp 26–27, and pp 2–3 of the report dated 20 July 2020, ARD, pp 21–22.

^[26] See Reasons, 6.9‑‑–13.

^[27] Reasons, 8.13‑–26.

^[28] Appellant’s supplementary statement dated 11 May 2021, Application to Admit Late Documents dated 11 May 2021, p 1, [5].

^[29] Reasons, 9.2–5.

^[30] Reasons, 9.12–19.

^[31] Appellant’s submissions, [21].

^[32] Respondent’s submissions, [38].

^[33] Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833.