Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11

Expert evidence; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218; procedural fairness

Beazley JA

Giles JA

Tobias JA

15 February 2011

Facts:

1. The appellant, Mr Hancock, was employed by the respondent as a labourer. He alleged that, on 31 October 2005, he injured his right knee whilst stacking timber. There were no witnesses and the injury was not reported.

2. Mr Hancock was off work for a few days and thereafter remained at work until 26 March 2008, when he alleged he was incapacitated by reason of the 2005 injury.

3. The respondent claimed that, in view of the history, it should be inferred that Mr Hancock was not injured in the course of his employment or, alternatively, that his incapacity was attributable to several non-work-related activities he had undertaken around the time that he went off work. These included unloading heavy bearers and joists from a truck at his home on 22 January 2008; assisting a colleague to move house in late March 2008, when he was observed to lift and carry several heavy pieces of furniture; sanding floors at his home, which involved working on his knees for two consecutive days; and, finally, a second fall in late March or early April 2008.

4. The Arbitrator found that the worker suffered an injury to his knee on 31 October 2005 and that he was incapacitated as a result of it. He made an award of weekly compensation in Mr Hancock’s favour.

5. An appeal was lodged under s 352 of the 1998 Act. Both parties submitted that the matter could be determined on the papers. The President was satisfied that the worker had suffered an injury to his knee on 31 October 2005, but that he had failed to discharge the onus of proving that his incapacity commencing two-and-a-half years later on 26 March 2008 resulted from the injury sustained on 31 October 2005.

6. Six lay witnesses gave uncontested evidence that they were unaware of any knee injury suffered by the worker, or had seen or heard him complain of an injury to the knee, or display any symptoms of a knee injury between 2005 and 2008. Three of them were described as close friends. The President accepted their evidence and found it compelling evidence that the injury in 2005 was trivial and not incapacitating.

7. The President concluded that the opinion of the worker’s treating orthopaedic surgeon, Dr Summersell, was deprived of any weight because his opinion was based on an acceptance of continuing ongoing symptoms since the relevant injury (a history that was not accepted by the President). He also concluded that no weight could be placed on the reports because the doctor failed to explain, or even consider, the effect of the intervening events occurring in January, March and April 2008.

8. The President also concluded that no weight should be placed on Dr Summersell’s reports because no explanation had been offered for the conflicting opinions expressed by him in two reports, both dated 6 May 2008. Finally, the President found that, in the absence of an explanation of the scientific or other intellectual basis for the conclusions he reached, the report failed to satisfy the requirements for the acceptance of an expert opinion as formulated in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218 (Makita) and Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271.

9. Mr Hancock appealed to the Court of Appeal.

Issues in the Court of Appeal

10. The appellant contended:

(1) in finding that "no weight could be placed" on the evidence of the surgeon, the President wrongly applied the principles governing expert evidence and, in particular, the principle in Makita;

(2) the failure to place weight on the evidence of the surgeon constituted a breach of procedural fairness.

Held (per Beazley JA (Giles and Tobias JJA agreeing)) allowing the appeal:

11. An expert’s report will need to conform, in a sufficiently satisfactory way, to the usual requirements for expert evidence. 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.

12. As the President held, the question of acceptability of expert evidence was not one of admissibility but one of weight (Brambles Industries Ltd v Bell [2010] NSWCA 162).

13. The principle in Makita, as explained by Spigelman CJ in Australian Securities and Investment Commission v Rich [2005] NSWCA 152, is that there is no requirement for an exact correspondence between the assumed facts upon which an expert opinion is based and the facts proved in the case. Accordingly, the opinion of the appellant’s surgeon did not have to expressly refer to the subsequent non-work-related incidents in order for there to be a proper foundation for his assessment: [85]. 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: [85].

14. Those requirements were all satisfied. In so far as Dr Summersell’s opinion was based upon facts “observed” by him, those facts were contained within his examination findings in his report to the general practitioner on 29 April 2008 and the MRI scan report: [86].

15 In so far as Dr Summersell’s opinion was based on assumed facts, those matters were set out in his various reports. His report of 30 May 2008 referred to the worker’s knee not being “right” since the incident at work and to it feeling “unstable” and to the knee giving way: [87].

16. 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. The absence of any express reference to those specific incidents did not mean that the facts upon which Dr Summersell based his opinion, including the 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 the correspondence between the assumed facts and the facts proved was relevant to the assessment of the weight to be given to the reports: [88].

17. Dr Summersell said that “the subcutaneous changes are present due to a recent fall that [the worker] had due to the pre-existing instability of his knee”. This opinion provided the scientific basis for the conclusion he reached that the injury sustained in the work incident was responsible for the current condition of the worker’s knee: [90].

18. Deficiencies in one part of an expert’s evidence may be made good by other material, either in another report or in oral evidence. The question of whether there was a scientific or intellectual basis for Dr Summersell’s opinion had to be determined by reference to all of his reports: [92].

19. The President’s reasoning in relation to the failure to comply with the principle in Makita was central to his rejection of the appellant’s surgeon’s evidence as having no weight. The parties should have had the opportunity to address this issue. The failure to afford the parties that opportunity constituted a breach of procedural fairness: [95].

Professional responsibility

20. Beazley JA, with whom Giles and Tobias JJA agreed, observed that two of the respondent’s submissions on appeal made serious allegations of impropriety and dishonesty against Dr Summersell and Mr Hancock. Neither person had an opportunity to defend himself. Her Honour stated at [106]:

Courts and tribunals do not provide a forum for the making of serious allegations of impropriety and fraud, other than in well-accepted circumstances.

21. The respondent should first have put the alleged conduct to the relevant person before making such submissions. This could have been done by making an application for an oral hearing and explicitly stating in the application that such allegations were being made. No application was made: [107].

22. The matters were raised to ensure that the profession is in no doubt as to their professional responsibilities in the making of submissions: [108].

Manpower Pty Ltd v Harris[2011] NSWWCCPD 10

Doctrine of res judicata; effect of prior consent orders for continuing weekly compensation; relevance of words “without admission of liability” in consent orders; application to call oral evidence from expert witness; refusal to admit unserved clinical notes; refusal of adjournment; injury; substantial contributing factor; partial incapacity; assessment of weekly compensation under s 40 1987 Act.

Roche DP

25 February 2011

Facts:

Mr Harris, an electrician, alleged he suffered an injury to his right groin while undoing bolts in the course of his employment on 19 May 2008. He had previously suffered a hernia in 1972 while working for a different employer.

Mr Harris commenced proceedings in the Commission in 2009 alleging he had suffered a hernia on 19 May 2008. He was referred to an AMS for assessment of the relationship of employment to the injury (agreed to be right inguinal neuralgia), his capacity for work and prognosis. A non-binding MAC was issued on 11 June 2009. The AMS concluded that Mr Harris’s employment appeared to be a substantial contributing factor to the inguinal neuralgia, he was partially incapacitated for work and would benefit from a referral to a pain management specialist.

Following a telephone conference, the Commission issued a “Certificate of Determination – Consent Orders” in the following terms:

“Without admission of liability

1. Amend Part 4 of the Application to resolve Dispute under the heading ‘Injury Description’ to delete ‘hernia’ and insert ‘inguinal neuralgia’.

2. Respondent to pay the Applicant weekly compensation pursuant to section 40 of the Act at the full statutory rate for a single worker with no dependents as adjusted for the period 28 July 2008 to date and continuing.

3. Respondent to pay the Applicant section 60 expenses up to $500 on production of accounts or receipts.

4. Respondent pay the Applicant’s costs as agreed or assessed. Costs for both parties justify an uplift of 10% due to the liability issue, medical resolution of body part injury and definition (inguinal neuralgia), GMD referral.”

Following an internal review, Manpower’s insurer, GIO, issued a s 74 notice on 31 March 2010 in which it declined liability in respect of Mr Harris’s injury. GIO stopped weekly payments on 11 May 2010.

Mr Harris filed an Application in the Commission on 11 June 2010 seeking weekly compensation from 12 May 2010 to date and continuing. The injury was described as “inguinal neuralgia and/or Right sided groin disruption injury”.

The Arbitrator found, on the basis of the consent orders, that Manpower was estopped from disputing injury to Mr Harris arising out of or in the course of his employment, that that injury was inguinal neuralgia, that the worker’s employment was a substantial contributing factor to such injury, and that Mr Harris was incapacitated for work up until the date of the issue of the s 74 notice on 31 March 2010.

The issues on appeal were whether the Arbitrator erred in:

1. finding that Manpower was estopped from disputing injury or disputing that employment was a substantial contributing factor to the injury;

2. refusing Manpower’s application for an adjournment to call oral evidence from Associate Professor Myers;

3. refusing to admit into evidence documents produced under direction from Mr Harris’s treating general practitioner and refusing Manpower’s application for an adjournment to allow those documents to be tendered;

4. finding that the incident on 19 May 2008 resulted in a condition that amounted to an “injury”, and

5. finding that such injury caused Mr Harris’s ongoing incapacity and the need for ongoing s 60 expenses.

Held: For the reasons given on appeal, the Arbitrator’s decision confirmed; appellant employer to pay respondent worker’s costs of the appeal

Estoppel

23. The consent orders gave rise to a res judicata estoppel that bound the parties, and GIO was not entitled to stop payments to Mr Harris and not entitled to dispute liability in the second proceedings. The words “without admission of liability” were “devoid of any effect whatsoever” and “repugnant to the rest of the document” (in Ashenden v Stewarts & Lloyds (Australia) Ltd [1972] 2 NSWLR 484 at 498F and 494B (Ashenden)) [79] and [87].

24. In Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231, McColl JA (Giles and Campbell JJA agreeing) said (at [73]) in relation to res judicata:

The doctrine of res judicata properly so-called … applies where a plaintiff establishes his cause of action so that, upon judgment the cause of action and any matters which were necessarily established as its legal foundation or as the justification for its conclusion, or were legally indispensable to the conclusion merge in the judgment, and no longer have an independent existence and cannot be re-litigated in subsequent proceedings between the parties of their privies: …

25. As the words “without admission of liability” were of no effect, the consent orders therefore involved the admission by Manpower that Mr Harris was a “worker” employed by it, that he received an “injury” in the course of or arising out of his employment, that his employment was a substantial contributing factor to that injury, and that he was incapacitated as a result of that injury. Those admissions followed from the face of the consent orders and the history of the matter. [94]

26. The consent orders were as effective as any decision of the Commission made after a contested hearing and were effective and binding on the parties until revoked or varied on appeal or by further order of the Commission. [96].

27. Manpower’s submission that the worker’s case had “changed significantly” since the consent orders and that his condition had “evolved into so many different diagnoses that the current ‘claim’ is different to the claim that was the subject of the previous proceedings” was incorrect.  It submitted that the consent orders were based on Dr Khan’s (AMS) evidence and that the worker’s case had changed following Dr Garvey’s (general and diagnostic surgeon) evidence that he did not think Mr Harris had inguinal neuralgia. [98] That submission was not accepted. In the current claim, the injury was described as ‘inguinal neuralgia’ and/or right sided groin disruption injury”. The injury in the previous claim was alleged to be a “hernia”.  Dr Khan stated the injury was a “soft tissue injury in the right groin” which led to pain in the groin suggestive of inguinal nerve neuralgia.  The consent orders amended the Application to delete “hernia” and insert “inguinal neuralgia”.  [100] That another doctor has a different opinion or “label” for a worker's condition is of no consequence. The medical evidence was that the condition resulted from the incident on 19 May 2008. It is not essential for the Commission to put a “label” on a worker’s condition or be concerned because witnesses have labelled it differently:  Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626. [101]

28. Manpower was not without a remedy if it believed the consent orders resulted in an injustice. It was entitled to seek reconsideration of the orders under s 350(3) of the 1998 Act. [109] Manpower could also have sought a review of the consent orders under s 55 of the 1987 Act. Such a review would be subject to the applicant for review establishing a change in circumstances: Carrington Abrasive Cleaners Pty Ltd v Standen [2009] NSWWCCPD 143 at [78]. [110]

29. Though Manpower had not sought a review, that was the real thrust of its case. Had it done so, it would have failed because its evidence was the same as the evidence at the time of the consent orders, namely, evidence from Associate Professor Myers to the effect that, because there was no objective evidence that Mr Harris’s symptoms related to any incident in May 2008, there was no entitlement to compensation. [158].

In the alternative, dealing with the merits of the claim, the Deputy President held:

Adjournment to call Associate Professor Myers

30. Manpower sought to adjourn the arbitration to call oral evidence from Associate Professor Myers (GIO’s specialist) to “amplify” what he said in his reports. Manpower had not raised this at the telephone conference. The procedure for calling oral evidence in the Commission is set out in Pt 14 r 14.2 of the Rules and Practice Direction 3.  Manpower did not comply with the Rules or the Practice Direction.  Oral evidence is an exception, not the rule in the Commission. Under the Rules the parties should indicate at the telephone conference that they wish to call oral evidence: Rinker Group Ltd v Mackell (No 2) [2009] NSWWCCPD 97.  [121]

31. Manpower advanced no persuasive reason why the Arbitrator should have allowed such an adjournment. The Associate Professor explained his views in detail in his four reports admitted into evidence. Those reports dealt with all the issues in Mr Harris’s medical case.  Manpower suffered no prejudice in not being allowed to call oral evidence from the Associate Professor.  Further, any adjournment would have prejudiced Mr Harris as it would have delayed the resolution of his claim and he could not have been compensated for costs thrown away by the adjournment. [123], [125]

Dr Soh’s notes and second adjournment application

32. Manpower sought to tender the notes of Dr Soh (Mr Harris’s treating doctor) at the arbitration. These were rejected. Though they were produced under a Direction for Production, they had not been served as a late document, the only indication given that they would be relied upon was at the arbitration, Manpower gave no indication as to why it sought to rely on the documents, and Mr Harris would be prejudiced if the documents were admitted at the arbitration.

33. The Rules require that, where a party wishes to rely on a document produced under Direction for Production under Pt 13 r 13.4, they must, as soon as practicable after becoming aware of the information, lodge and serve a copy of the document on all other parties to the proceedings. Manpower did not do so.  In seeking to have the Commission exercise its discretion to admit documents, the party seeking leave has an obligation to explain its non-compliance with the rules: Iovanescu v McDermott [2004] NSWCA 106.  Manpower did not do so. [132] Manpower did not establish any basis for the admission of the notes. [139]

34. Manpower argued that the notes were relevant to the exercise of the discretion under s 40(1) and that compensation was not payable for depression resulting from a dispute with the insurer (Karathanos v Industrial Welding Co Ltd [1973] WCR 79 (Karathanos)).  In light of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796, it was doubted that Karathanos is good law. More importantly, the notes did not advance Manpower’s case or diminish the worker’s case. [137]

Injury

35. The medical evidence was that Mr Harris suffered a “strain of the ligaments in the region of his inguinal hernia repair (Dr McDonald), or a “soft tissue injury in the right groin” (Dr McDonald), or a “soft tissue injury in the right groin” (Dr Khan), or he may have suffered a “strain of the muscles in the right groin” (Associate Professor Myers). [148]

36. A “personal injury” is a sudden identifiable physiological (pathological) change: Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 at 347; Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45 at [35] and [36]; 74 ALJR 1298; and Austin v Director General of Education (1994) 10 NSWCCR 373.  A strain or soft tissue injury received in the course of or arising out of employment is a personal injury. However, inguinal neuralgia is not a personal injury, but “pain along the course of a nerve” that may result from injury. [149]

37. The more accurate finding was that Mr Harris suffered a personal injury in the nature of a strain of the ligaments in the region of his inguinal hernia repair and/or a soft tissue injury to his right groin. The exact labelling of the injury was not critical. [150]

Incapacity

38. Drs McDonald, Collins and Khan placed restrictions on the duties Mr Harris could perform.  Those restrictions meant that Mr Harris was unfit for his pre-injury employment as an electrician.  However, there was no evidence Mr Harris was only fit to work 28 hours per week, and the Arbitrator erred in making that finding. [165]

39. The submission that Mr Harris adduced no evidence of what he was able to earn ignored the fact that the Commission can draw on its expertise in assessing the labour market and wage levels to make an assessment of a worker’s ability to earn (J & H Timbers Pty Ltd v Nelson [1972] HCA 12; 126 CLR 625 at 632–3; Akawa Aust Pty Ltd v Cassells (1995) 25 NSWCCR 385 at 392; ICI Australia Operations Pty Ltd v WorkCover Authority of New South Wales [2004] NSWCA 55; 60 NSWLR 18; 1 DDCR 259; Australian Iron & Steel Pty Ltd v Elliott (1966) 67 SR (NSW) 87 at 94; 84 WN (Pt 2) (NSW) 45). [167]

40. In assessing a worker’s ability to earn, the Commission must take into account “the practical realities of the worker, in his or her injured condition and with his or her actual age, abilities, limitations and circumstances in life, being able to get and keep employment”: Ric Developments Pty Ltd t/as Lane Cove Poolmart v Muir [2008] NSWCA 155; 6 DDCR 339 at [50]. [168]

41. Mr Harris had no other skills or training, having worked all his life as an electrician. He was unlikely to obtain employment other than in the most basic clerical job or light electrical report work.  Because of his injury, skills, work experience, education, and lack of rehabilitation training, that work would be difficult for him to obtain and retain. [169]

42. Reliance on What Jobs Pay, 10^th ed 2009-2010, indicated that general clerical workers over 45 earn $902 per week and those aged between 15 and 24 earned $485 per week. The average for all ages being $844 per week. Due to Mr Harris’s experience and age, it was unrealistic to assess his ability to earn by reference to earnings for a full-time clerk over 45.  Taking into account the matters in s 43A, in particular the lack of any rehabilitation training by the insurer, Mr Harris’s ability to earn was assessed at $693 per week – the average of the earnings payable to junior clerks and senior clerks. His probable earnings but for injury were $1,276 per week giving a difference of $583 per week. [170]

43.Even if Dr Soh’s notes (which referred to Mr Harris suffering depression from his dealings with the insurer) had been admitted, they provided no basis for the exercise of the s 40(1) discretion. If it was thought that Mr Harris had a psychological reaction, the evidence was that it resulted from his chronic pain due to his injury. Mr Harris’s incapacity resulted from the injury to his right groin on 19 May 2008.

Kaur v Thales Underwater Systems Pty Ltd [2011] NSWWCCPD 6

Sections 25 and 26 of the 1987 Act; apportionment between dependants of deceased worker; s 109 of the 1998 Act, discretion to apportion interest.

Keating P

4 February 2011

Facts:

1. Mr Dhillon (the deceased worker) was employed by Thales Underwater Systems Pty Ltd (Thales). On 20 December 2005, he was walking across a road when he was struck by a car and killed.

2. Thales, did not dispute that the dependants of the deceased were entitled to compensation pursuant to s 25(1)(a) of the 1987 Act.

3. The dispute before the Commission concerned the apportionment of the lump sum compensation between a number of the alleged dependants.

4. Mr Dhillon was first married to Narindar Kaur. There were three children to that marriage: None claimed to be dependant on the deceased worker and none made a claim for workers compensation benefits.

5. After divorcing his first wife, Mr Dhillon married Gurmeet Kaur on 20 April 1997. At the time of their marriage, Gurmeet Kaur had two daughters. Gurdeep Kaur, a daughter from a previous marriage, born in 1984, and Babiljeet, who was the deceased’s daughter, born in 1991.The marriage to Gurmeet Kaur was dissolved on 24 February 2004.

6. On 10 December 2005, Mr Dhillon married Harbendar Kaur. At the time of the marriage she had two daughters: Darveen, who was born in 1990; and Rashveen, who was born in 1991. The children were aged respectively 15 and 14 at the date of the deceased worker’s death.

7. Proceedings were brought in the Commission by Gurmeet Kaur and her children and Herbendar Kaur and her children each claiming dependency.

Arbitrator’s decision

8. The Arbitrator found that, the evidence to support Gurmeet and her children’s claims of dependency was vague and unsatisfactory. He found at the date of the deceased’s death, neither Gurdeep nor Gurmeet Kaur, both of whom lived in India, were dependant. The Arbitrator found that the claim of dependency by Babiljeet Kaur on the deceased had been proven.

9. He found that Gurdeep was 21 years old at the time of the worker’s death. He was not persuaded that she was dependant on the deceased at the time of his death.

10. He was satisfied that there were transfers of funds to Gurmeet prior to and once after their divorce but no convincing evidence of any other payment thereafter up to the time of the worker’s death. He placed no weight on correspondence from Paul Merchant Ltd a commercial agency, being unable to be satisfied that it was a genuine record of transfer of funds from Mr Dhillon to his former wife.

11. The Arbitrator found that Harbendar, Darveen and Rashveen were all dependant on the deceased at the date of death.  This finding was not challenged on appeal.

12. The Arbitrator made orders apportioning the lump sum between the dependants. However, he ordered that the interest on the sum of $307,100 invested with the Public Trustee be paid to Harbendar only.

Issues on appeal

The issues on appeal were that the Arbitrator erred in:

(a) finding that Gurmeet Kaur, was not dependent upon the deceased at the time of his death, and

(b) in failing to award interest on the apportionment in favour of Babiljeet Kaur.

Held: partly confirmed, partly revoked and redetermined.

Dependency

14. The question whether there is dependence or reliance at the date of death is not answered by looking only to the circumstances as they existed at that date; “past events and future probabilities” have to be considered. (Aafjes v Kearney 180 CLR 199; [1976] HCA 5; 8 ALR 455; 50 ALJR 454, 456, 457 and 459).

15. The respective length of each of the deceased worker’s marriages to Gurmeet and Harbendar was not determinative of the existence or extent of dependency at the date of death. In Wratten v Kirkpatrick [1996] NSWCC 2; 15 NSWCCR 32 at 34, it was held:

The exercise of power to determine the correct amount to be apportioned to each dependant requires an examination of all relevant facts including the extent of past dependence, the anticipated future dependence, the ages of the dependants, their health, special needs, lifestyle etc.

16. The Arbitrator erred in placing no weight on the Paul Merchant Ltd, a commercial agency receipt.  There was no reason to doubt receipts were a genuine record of transactions between the deceased and Gurmeet.

17. The evidence disclosed that the worker made substantial payments to Gurmeet after their divorce for her and her children’s support. Gurmeet was dependant on the deceased worker at the time of his death.

18. In determining the extent of that dependency it was found that the amount of the deceased worker’s unspent income available and for the support of Gurmeet would not have exceeded $100 per week until retirement at 65 years. The current capital value of that support calculated at the discount rate of 5% was found to amount to $35,000.

19. This assessment involved a judgment about the “deceased’s circumstances, character propensities and performance to the date of death”, such an approach, based upon the limited available facts, was considered and approved in Warilla Timber & Hardware Pty Ltd v Newton (1995) 11 NSWCCR 546 per Mahoney AP at 549.

20. Order apportioning $35,000 of the lump sum to Gurmeet Kaur.

Interest

21. The interest on the capital sum invested by the Public Trustee to be distributed pro rata between the dependants in accordance with the apportionment orders.

White v Sylvania Lighting Australasia Pty Ltd [2011] NSWWCCPD 7

Claim for additional lump sum compensation; disease provisions; deemed date of injury; application of principles in Stone v Stannard brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701

Roche DP

10 February 2011

Facts:

Mr White was a storeman employed by Sylvania. He alleged that he injured his neck in 2000.  He was initially off work for about a week and returned to work on suitable duties, but still as a storeman using a forklift.  In 2004 he became a quality control inspector.

In 2000 he filed an Application in the former Compensation Court of NSW for injuries to his neck and arms, which was amended in 2002 to allege injuries to his neck and arms as a result of the “nature and conditions of employment involving forklift driving”.  Notice of injury was stated to be 30 May 2000 and compensation claimed on 30 November 2000. That claim was settled on 8 December 2002 for the following amounts:

(a)  $6,000 in respect of 15 per cent permanent impairment of the neck;

(b)  $2,000 in respect of 2.5 per cent permanent loss of use of the right arm at or above the elbow, and

(c) $1,875 in respect of 2.5 per cent permanent loss of use of the left arm at or above the elbow.

On 13 January 2010, Mr White’s solicitors claimed additional lump sum compensation for:

(a)  $8,000 in respect of a 20 per cent further impairment of the neck;

(b)  $2,000 in respect of 2.5 per cent permanent loss of use of the right arm at or above the elbow;

(c) $1,875 in respect of 2.5 per cent permanent loss of use of the left arm at or above the elbow, and

(d)  $25,000 for pain and suffering.

He based this claim on an assessment under the Table of Disabilities by Dr Bracken.

Mr White filed an Application in the Commission in which he alleged injury due to “the nature and conditions of employment up to the 30th May 2000”.  He alleged three alternative dates of claim: 30 May 2000; 15 November 2000 and 13 January 2010.

In its Reply, the insurer disputed the claim on the grounds that the injury was in the nature of a disease of gradual process and under ss 15 and 16 of the 1987 Act, the deemed date of injury was 13 January 2010, when Mr White made the additional loss claim.  As Dr Bracken’s assessment was not a whole person impairment, the claim was “not maintainable”.

The Arbitrator accepted that Mr White had a disease of gradual process and that he suffered an aggravation, acceleration, exacerbation or deterioration of that disease. She found that the deemed date of injury was 13 January 2010 and, as Mr White had never particularised a claim for whole person impairment under the 1998 Act, the claim was dismissed.

The issues on appeal were:

1. Whether Mr White’s injury was caused only by his duties up to 30 May 2000, or by his duties up to and beyond that date, and

2. Regardless of the answer to the first issue, what is the correct deemed date of injury under s 16 of the 1987 Act?

Held: For the reasons given on appeal, Arbitrator’s decision confirmed; each party to pay his or its costs of the appeal

1. The Arbitrator failed to decide whether Mr White’s injury resulted from the duties he performed up to 30 May 2000 or from his duties after then, but merely found that Mr White suffered from a disease of gradual onset and there had been an aggravation, acceleration, exacerbation or deterioration of that disease.  She did not decide when that aggravation occurred.  [51]

2. Mr White continued to work as a storeman and to drive forklifts up to 2004 when his neck pain became “intolerable” and he believed he would have to resign. The logical and compelling conclusion was that he experienced an aggravation of the degenerative changes in his neck (with arm symptoms) as a result of his duties as a storeman until he changed duties in 2004.

3. There is an aggravation of a disease if it is made more grave or more serious in its effects upon the patient:  Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 at 637 and 639.  Therefore Mr White’s duties up to September 2004 caused an aggravation of a disease in his neck within s 4(b)(ii) of the 1987 Act and the evidence of continuing symptoms indicated that the effect of the aggravation was continuing. [53]

4. Dr Bracken’s conclusion that Mr White’s impairment and losses resulted solely from his high lift forklift driving up to 30 May 2000 was inconsistent with the need for Mr White to change duties in 2004 because his symptoms “became intolerable” and were “getting out of control”.  The doctor did not explain why he attributed the whole of Mr White’s condition to the work up to 30 May 2000 and excluded the work after that date. [54]

5. Lyons v Master Builders Association (2003) 25 NSWCCR 422 did not help Mr White’s position.  In Lyons, the worker injured his knee which caused a chondromalacia patella, a progressive condition.  However, in this matter Mr White did not suffer a frank injury that caused a pathological condition that deteriorated of its own momentum. [55]

6. Employment only had to be a substantial contributing factor to the aggravation, not to the underlying disease process: Cant v Catholic Schools Office [2000] NSWCC 37; 20 NSWCCR 88. Whether the employment is a substantial contributing factor to an aggravation is a question of fact to be determined after considering all the evidence. Given the nature of Mr White’s duties as a storeman driving a forklift up to 2004, the duration of his employment, and the improbability that he would have received the injury or a similar injury anyway, at about the same time or stage of his life, Mr White’s employment up to 2004 was a substantial contributing factor to his aggravation injury. [57].

7. Under s 16, an aggravation injury is to be deemed to have happened at the time of the worker’s death or incapacity, or, if death or incapacity has not resulted from the injury, at the time the worker makes a claim for compensation with respect to the injury (s 16(1)(a) of the 1987 Act). Incapacity in s 16 means “incapacity falling within the period during which a worker has become entitled to weekly payments of compensation for incapacity” (P & O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214; 49 NSWLR 481 per Priestley JA at 486 (Alfonzo)). [59]

8. Although Mr White was unfit for unrestricted work as a storeman, or as a high lift forklift driver, there was no evidence that the aggravation injury had incapacitated him within the meaning of s 16, as explained in Alfonzo. The deemed date of injury is therefore the date he claimed compensation, namely 13 January 2010 and the degree of permanent impairment was to be assessed as provided by s 65 of the 1987 Act and Pt 7 and Ch 7 of the 1998 Act, and in accordance with the WorkCover Guidelines (s 322(1)). [59]-[61].

9. The employer submitted that as the claim had not been “duly made” by reference to an assessment of whole person impairment, the proceedings were “not maintainable” and should be dismissed.  Chapter 7 of the 1998 Act does not talk of whether a worker has “duly made” a claim. There is no provision in the current legislation to the effect that proceedings are “not maintainable” if a claimant has not provided “relevant particulars” as required by s 282 and the WorkCover Guidelines. [68]-[69]

10. As Mr White had claimed under the Table of Disabilities and not under the whole person impairment provision of the 1998 Act the proceedings were “misconceived” or “lacking in substance” because he claimed compensation under a provision that did not apply to him. This was not simply a failure to provide relevant particulars about a claim, which can often be overcome, but a complete failure to claim compensation under the whole person impairment provisions. The proceedings were therefore dismissed under s 345(7A)(b). [73]

11. If the finding that Mr White suffered an aggravation injury after May 2000 was wrong, it was necessary to determine whether the deemed date of injury was 30 May 2000 (the date of first incapacity), 15 November 2000 (the date of the first claim), or 13 January 2010 (the date of the claim for additional lump sum compensation under the Table of Disabilities). [74] In Alto Ford Pty Ltd v Antaw [1999] NSWCA 234; 18 NSWCCR 246 (Antaw) the Court of Appeal held that s 16(1) could fix different dates for incapacity and impairment injuries depending on the nature of the injuries claimed.  In Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701 (Stone), the Court of Appeal followed Antaw and said that the deemed date for an impairment injury was the date of the claim. Therefore applying the principles in Antaw, as explained in Stone, s 16 can “fix different dates for incapacity and impairment injuries”, and the correct deemed date of injury for Mr White’s “impairment injury” was the date of claim. [92]-[94]

NSW Police Force (Western Region) v Smith [2011] NSWWCCPD 8

Section 4 of the 1987 Act; injury; proof of causation; circumstantial evidence

O’Grady DP

22 February 2011

Facts:

In March 2008, Mr Smith, a Senior Constable with the NSW Police Force (the appellant), whilst stationed at Inverell, New South Wales, was diagnosed as suffering acute Ross River Virus infection (RRV). Mr Smith alleged that the infection was caused by his exposure to infected mosquitoes in the course of his work with the appellant during a cannabis eradication operation on 29 February 2008 and 1 March 2008. Medical complications following his infection rendered him incapacitated for work.

Mr Smith received weekly compensation and medical expenses until 4 August 2010 when liability for such payments was declined.

Mr Smith’s claim for lump sums pursuant to ss 66 and 67 of the 1987 Act was also denied. The dispute was referred to the Commission and the Arbitrator found in favour of Mr Smith.

The issue in dispute in the appeal was whether the Arbitrator erred in finding that Mr Smith received injury, being infection with RRV, arising out of or in the course of his employment.

The appellant submitted:

(a) There was uncontroverted evidence that Mr Smith manifested symptoms of RRV infection within a period of no more than 48 hours of first exposure to possible infection in the course of that employment;

(b) The date of the appearance of symptoms indicated that the initial infection more likely occurred at a time earlier than the dates Mr Smith was involved in the cannabis eradication operation.  The appellant raised a competing hypothesis as to causation, namely, that it was “more likely” that Mr Smith was infected at home (he lived on a 130 acre rural property a distance from Inverell) during leave, as that timeframe was within the accepted incubation period for RRV;

(c) The evidence before the Arbitrator was not sufficient to establish, on the probabilities, that the infection occurred during the cannabis eradication operation, and

(d) Mr Smith’s medical expert, Professor Lloyd, made an assumption that he was not exposed to mosquitoes whilst he was on leave.  However, Mr Smith agreed when cross-examined during the Arbitration that he could have been bitten at home without realising.  It was argued that the assumption “went to the weight that should be given to Dr [sic] Lloyd’s opinion”.

Mr Smith’s case was that:

(a) The infection was caused by mosquito bites;

(b) He was bitten by mosquitoes on numerous occasions on 29 February and 1 March 2008 in the course of his employment, and

(c) There was no direct evidence of any other relevant exposure to possible infection.

Held: Arbitrator’s decision confirmed.

1. The burden was upon Mr Smith to establish, on the probabilities, that the infection was caused in circumstances arising out of or in the course of his employment. [41]

2. There was no need for the appellant to establish a “more likely” cause of infection than exposure in the course of employment. The nature of the requirements as to proof in civil proceedings are as stated by the High Court in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 (per the Court at 5):

The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort where direct proof is not available it is enough in [sic, if] the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at 678.

3. Mr Smith relied on entirely circumstantial evidence.  There was no direct evidence as to the fact and timing of infection.

4. Acceptance by the appellant’s expert, Associate Professor Eisen, of the possibility of there being an incubation period less than 78 hours permitted an inference that it was possible that the infection occurred in the course of Mr Smith’s work. “Such evidence of possibility is not, alone, sufficient to establish causation at law. As was stated by Spigelman CJ in Seltsam Pty Limited v McGuiness; James Hardie and Company Pty Limited v McGuiness [2000] NSWCA 29; 49 NSWLR 262 (McGuiness) (at [80]):

The common law test of balance of probabilities is not satisfied by evidence which fails to do more than establish a possibility. See especially the unanimous joint judgment of the High Court in St George Club Ltd v Hines (1961-62) 35 ALJR 106 at 107 where the court referred to Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; (1956) AC 613 as authority for the following proposition:

‘In an action at law a plaintiff does not prove his case merely by showing that it was possible that his injury was caused by the defendant’s default.

5. It was open to the Arbitrator to accept the evidence of Associate Professor Eisen that an incubation period of less than 78 hours was impossible to rule out. This established the possibility of a causal nexus between work and infection. [50]

6. The evidence that supported a nexus between Mr Smith’s work and the infection included:

(a) RRV infection is caused by mosquito bite;

(b) there was no evidence of mosquito bite being received by Mr Smith in the month of February prior to his work eradicating cannabis;

(c) when working on the cannabis operation he was bitten on numerous occasions by mosquitoes;

(d) it was impossible to rule out an incubation period shorter than 78 hours as recorded following an outbreak of RRV on the Cook Islands in 1980 (Associate Professor Eisen);

(e) the infection was most likely to have been acquired in the course of Mr Smith’s policing duties, in particular clearing of the cannabis crop (Professor Lloyd), and

(f) the conclusion, as stated by Professor Lloyd, that it was more likely than not that the infection occurred in the course of Mr Smith’s work, as the incubation period for RRV may be as short as three days, his property was appropriately fly-wire secured and he had no recall of being bitten whilst on leave.

7. The evidence was sufficient to permit an inference that on the balance of probabilities Mr Smith’s infection was caused by mosquito bite occurring in the course of employment. As was stated by Spigelman CJ in McGuiness (at [90] and [91]):

Proof on the balance of probabilities, indeed on the beyond reasonable doubt standard, may be established on the basis of circumstantial evidence. As Lord Cairns said in Belhaven and Stenton Peerage [1875] 1 AC 278 at 279:

‘My Lords, in dealing with circumstantial evidence, we have to consider the weight which is to be given to the united force of all the circumstances put together. You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner. But on the other hand, you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and, when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel.’

Causation, like any other fact can be established by a process of inference which combines primary facts like ‘strands in a cable’ rather that ‘links in a chain’, to use Wigmore’s simile. (Wigmore on Evidence (3rd ed) para 2497, referred to in Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 at 579).

8. The “concession” made by Mr Smith in cross-examination did not undermine Professor Lloyd’s opinion. [52]

Uyanik v Mavruk Construction Pty Ltd [2011] NSWWCCPD 9

Causation; credit findings

Roche DP

24 February 2011

Facts:

Mr Uyanik was a construction worker employed by Mavruk. He alleged he injured his back, neck, legs and arms in a fall from scaffolding in the course of his employment on 22 November 2007. The employer disputed that any fall occurred and, in the alternative, whether Mr Uyanik suffered any incapacity. Though it was not included in the application, it was agreed that he also alleged that he injured his ribs in the fall.

The Arbitrator found “with some hesitancy” that Mr Uyanik had fallen from scaffolding in the course of his employment, but only fractured his left eighth rib. He was not satisfied that there was any causal link between Mr Uyanik’s “complaints involving his back, neck, arms and legs and the fall” or that any continuing incapacity resulted from the fractured rib. He made an award for Mavruk in respect of the worker’s claim for weekly compensation and for lump sum compensation. He ordered Mavruk to pay the worker’s hospital and medical expenses for the rib injury up to 10 October 2010.

The Senior Arbitrator found that there were various discrepancies in the medical evidence regarding Mr Uyanik’s complaints and he had difficulty in accepting Mr Uyanik’s explanation for the lack of neck and back complaints particularly to his treating doctor until 9 January 2009.  There were also a number of other inconsistencies in Mr Uyanik’s evidence.

The worker submitted on appeal that:

1. The Senior Arbitrator failed to accept Dr Mahoney’s evidence that the worker’s back and neck impairments arose as a result of the fall;

2. Mr Uyanik’s neck and back pain was, given his broken rib, masked by the chest pain;

3. Mr Uyanik’s injuries to his neck and back had no other precipitating factor;

4. As the neck and back injuries were not the subject of “primary treatment”, they were less important to the doctors who initially treated Mr Uyanik;

5. The evidence of Mavruk’s doctors was that they were not convinced “that the neck and back were traumatically caused and merely the effects of degenerative change”, and

6. This case differed from other cases that require corroborative evidence on injury to an additional body part because of the effect of masking caused by the rib injury.

Held: Senior Arbitrator’s determination confirmed; each party to pay his or its own costs of appeal

1. Mr Uyanik first saw Dr Demdi (his treating doctor) on 25 November 2007 when he complained of left chest wall pain for three days.  On 26 November 2007 Dr Demdi noted that x-rays revealed an undisplaced fracture to the left eighth rib. [19] There was no complaint to Dr Demdi regarding lower back and neck pain until 9 January 2009.  Between the first consultation and the first complaint of lower back and neck pain, Mr Uyanik consulted Dr Demdi on numerous occasions in relation to his rib injury and other matters. [35] Mr Uyanik claimed that he told Dr Demidi about his problems with his back, neck, jaw, left ear, dizziness, hearing, headaches and ringing in his ears, and that he repeatedly requested Dr Demdi refer him to someone for them, but he “seemed uninterested and ignored” the requests. [37] A review of Dr Demdi’s evidence revealed that the doctor provided Mr Uyanik with counselling about his extensive domestic problems. The significant discrepancy between Mr Uyanik’s evidence and the doctor’s contemporaneous notes and certificates raised serious issues as to Mr Uyanik’s evidence that he told Dr Demdi about his neck and back symptoms in the days and weeks after the fall.  [38]

2. Dr Mahoney’s evidence did not assist Mr Uyanik as the doctor based his conclusion on an assumption that Mr Uyanik injured his neck and back in the fall.  He took no history of when the neck and back symptoms started.  Dr Mahoney did not deal with the delayed onset of neck and back symptoms because he did not have that history. [39]

3. The submission that Mr Uyanik’s chest pain would have “masked” his neck and back symptoms was unsubstantiated by any medical evidence or any logical analysis of the evidence.  Counsel did not make that submission at the arbitration and it was inconsistent with Mr Uyanik’s evidence that he had back and neck symptoms from the time of the fall. [40]

4. The submission that the “injuries” to Mr Uyanik’s neck and back had no other precipitating factor was based on an assumption that was not justified on the evidence, namely, that Mr Uyanik injured his neck and back in the fall.  The MRI scans showed that Mr Uyanik had a degenerative disc bulge in his lower back and disc degenerative disease in his neck. Further, the suggestion that there was no other precipitating factor reversed the onus of proof.  He did not establish that his neck and back symptoms resulted from the fall.  [41]

5. Mr Uyanik’s submission that the injuries to his back and neck were not the subject of “primary treatment” was not supported by the evidence. Mr Uyanik did not receive treatment for these alleged injuries because he did not make any complaint in relation to them until well after the fall. [42]

6. The submission that Mavruk’s doctors were not convinced that the neck and back symptoms were traumatically caused by the fall but were merely the effects of degenerative changes was wrong as Mavruk did not qualify any medical experts, but relied on the inconsistencies in Mr Uyanik’s case and the radiological investigations. [43]

7. The credit issues were not restricted to Mr Uyanik’s evidence about his complaints to Dr Demdi.  Mr Uyanick gave inconsistent evidence in relation to the circumstances immediately before the accident and about when he first saw Dr Demdi.  Further, the Senior Arbitrator placed weight on the contrast in Mr Uyanik’s presentation to Dr Ellis in April and November 2008.  In April 2008, Dr Ellis found Mr Uyanik’s neck movements were “full and pain free”. Back movements were restricted, but straight leg raising was full on each side.  However, in November 2008, Dr Ellis recorded neck movements were full, but the limits of movement caused discomfort. Back movements were restricted and straight leg raising was restricted to 40 degrees on the right and full on the left. [44]-[47]

8. The submission that the injuries to the neck and back were easily overlooked because they were to the same “general part of the body” as the rib injury was untenable and not supported by reasoned argument or evidence. [48]

9. The submission that the Senior Arbitrator disregarded, or failed to consider, the effect of the evidence from Ms Holmes (rehabilitation consultant) was incorrect.  The Senior Arbitrator noted that the first reference to neck symptoms was the evidence from Ms Holmes, “many weeks” after the accident. However, he noted it was only a “passing reference” and fell well short of supporting Mr Uyanik’s allegation that he injured his neck in the fall. [55]