Allianz Australia Insurance Ltd v Peters & Brownes Group

[2005] WASCA 195

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   ALLIANZ AUSTRALIA INSURANCE LTD -v- PETERS & BROWNES GROUP & ORS [2005] WASCA 195

CORAM:   STEYTLER P

WHEELER JA
ROBERTS-SMITH JA

HEARD:   13 JUNE 2005

DELIVERED          :   11 OCTOBER 2005

FILE NO/S:   FUL 105 of 2004

BETWEEN:   ALLIANZ AUSTRALIA INSURANCE LTD

Appellant (Second Respondent)

AND

PETERS & BROWNES GROUP
First Respondent (Applicant)

GIO GENERAL INSURANCE
Second Respondent (First Respondent)

ZURICH AUSTRALIAN INSURANCE LTD
Third Respondent (Third Respondent)

ON APPEAL FROM:

Jurisdiction              :  COMPENSATION MAGISTRATE'S COURT

Coram  :MR I G BROWN CM

File No  :CM 1 of 2004

Catchwords:

Workers' compensation - Workers' Compensation and Rehabilitation Act 1981 (WA) s 74 - Disputes between insurers

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 73, 74

Workers' Compensation and Rehabilitation Act 1981 (WA), s 73, s 74

Result:

Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant (Second Respondent)             :        Ms F C E Davis

First Respondent (Applicant)             :        No appearance

Second Respondent (First Respondent)    :        Mr G R Hancy

Third Respondent (Third Respondent)     :        Mr L E James

Solicitors:

Appellant (Second Respondent)         :        Phillips Fox

First Respondent (Applicant)             :        Pynt & Partners

Second Respondent (First Respondent)    :        D G Price & Co

Third Respondent (Third Respondent)     :        Kott Gunning

Case(s) referred to in judgment(s):

Albion Insurance Co Ltd v GIO (New South Wales) (1969) 121 CLR 342

Beer v Duracraft Pty Ltd [2004] WASCA 192

Canale v Commissioner of Main Roads (1982) 1 WCR (WA) 163

F & T Grassi Pty Ltd v Ellendale Estate Pty Ltd [1985] WAR 294

SGIO Insurance Ltd v Wesfarmers Insurance Ltd, unreported; FCt SCt of WA; Library No 950091; 3 March 1995

Case(s) also cited:

Wesfarmers Federation Insurance Ltd v State Government Insurance Commission, unreported; FCt SCt of WA; Library No 960286; 24 May 1996

1. STEYTLER P:  I agree with Wheeler JA, for the reasons which she has given, that the appeal should be dismissed.

   WHEELER JA: 

The appeal

1. This is an appeal from a decision of a Compensation Magistrate in relation to a dispute between three insurers.  The worker concerned had previously brought a successful application against the first respondent ("the employer") for an order for workers' compensation payments.  The employer then brought an application against its workers' compensation insurers claiming indemnity.  The issue for determination in the proceedings below was which of the employer's insurers was liable to indemnify the employer for the employer's liability to pay workers' compensation payments to the worker.

2. The appeal centres around two primary issues: the way in which liability is apportioned between insurers pursuant to s 74 of the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the Act") (as it was then called); and the extent to which a Review Officer should rely upon and accept expert medical opinion when some of the factual foundation for that opinion is lacking, or is found to be erroneous.

Background to the appeal

1. In April 1992 the worker commenced work with the employer.  The appellant ("Allianz") was "on risk" as the workers' compensation insurer for the employer.  On 11 September 1994 the worker injured his lower back assisting two co‑workers to move a jammed machine lifter ("the 1994 accident").  Allianz accepted liability for the workers' compensation claim.  Allianz ceased to be on risk in respect of the employer on 30 November 1994.  As at this date, the second respondent ("GIO") was on risk as the workers' compensation insurer for the employer.  On 10 March 1995 the worker injured his back whilst pushing a trolley ("the 1995 accident").  The worker suffered a recurrence of his back symptoms and was certified unfit for work.  On 20 April 1995 the worker was certified as wholly recovered from the 1995 accident and deemed fit for work.  GIO accepted liability for the workers' compensation claim.  On 3 June 1997 the worker injured himself as a result of doing a particular job in the preceding months which aggravated his back symptoms ("the 1997 accident").  GIO accepted liability for the workers' compensation claim.  On 4 May 2000 the worker injured his back and left hip when he slipped in a puddle of lubricant on a ramp and fell into a dumper bin ("the

2000 accident").  Liability for the workers' compensation claim was accepted by GIO.   On 1 December 2000 GIO ceased to be on risk.  The third respondent ("Zurich") was then on risk as the employer's workers' compensation insurer.  On 18 July 2001 the worker again injured his back and his left hip at home whilst pushing his son on a bike ("the 2001 accident").  He was unfit to work for seven days.

1. On 15 August 2001 the worker lodged a workers' compensation claim for the recurrence of his symptoms on 18 July.  GIO disputed liability for the claim on the basis that there was insufficient evidence that the injury was a work‑related disability.  The worker then lodged a Form 1 application against the employer seeking weekly payments of compensation from, on or about, July 2001 and continuing ("application 3713/01").  On 19 May 2002 the worker injured his back at work when he went to step onto a machine and missed his step ("the May 2002 accident").  On 26 June 2002 the worker had another accident at work when he slipped in a puddle of yoghurt and lost his footing ("the June 2002 accident"). 

2. In February 2003, in application 3713/01, the Review Officer found that the worker had suffered an injury by accident at work in 1994 and that he had suffered an aggravation or fresh disability in 1995.  The Review Officer ordered that the employer pay the worker weekly payments of compensation.  The employer then issued an application ("application 382/03") against GIO and Allianz claiming inter alia indemnity in relation to the worker's claim and referring the dispute between the insurers for determination pursuant to s 74(1a) of the Act. In April 2003, GIO lodged an application ("application 834/03") claiming indemnity from Zurich and seeking to join Zurich as a party to the dispute in application 382/03. GIO claimed that if the worker had suffered a disability in March 1995, the worker had fully recovered from the effects of that disability by 21 July 2001 and that the worker suffered either a fresh disability or a recurrence of the original 1994 disability in the course of his employment on or about 19 May 2002 and or on or about 26 June 2002 when Zurich was on risk.

3. In May 2003 Allianz brought an application against GIO and Zurich ("application 881/03") seeking a determination of the dispute between all three insurers pursuant to s 74(1a) of the Act as to which insurer is liable to indemnify the employer and/or how liability is to be apportioned between the insurers pursuant to s 74(2) of the Act.

4. On 11 June 2003, Zurich was ordered to be a party to the dispute in application 382/03.

5. On 16 December 2003, the Review Officer found that the worker suffered injury by accident in September 1994 and that all incapacity subsequent to September 1994 resulted from no more than "mere recurrences" of the 1994 disability.  Accordingly, the Review Officer found that liability for payment of the worker's compensation rested with Allianz as the insurer on risk at the time of the 1994 accident.

6. On 7 January 2004 Allianz lodged an appeal from the decision of the Review Officer.  The Compensation Magistrate dismissed the appeal.  Allianz appeals to this Court from the decision of the Compensation Magistrate.

Disputes between insurers - Canale's case

1. Section 74 of the Act allows for the determination of a dispute between insurers as to liability and, if necessary, the apportionment of liability where "a worker is entitled to compensation for a fresh disability or the recurrence of an old disability".

2. The appellant submits that the correct test to be applied for determining liability as between insurers is that set out in Canale v Commissioner of Main Roads (1982) 1 WCR (WA) 163 at 164:

   "Considerable confusion often arises as to what is a recurrence of an old injury, and what should be regarded as a new injury.  It is not possible to lay down any rule to completely answer the problem in the multitudinous circumstances from which it rises.  Generally however, I would say that an injury or condition recurred where it flared up either spontaneously or because of the ordinary stresses and strains of living and working, and that any consequent incapacity would be related to the original accident.  On the contrary, even though the first injury left a weakness, even a great weakness and a potential site of trouble, where that trouble is precipitated by a new incident of an accidental nature such as could well originate trouble in its own right, then that trouble should be regarded as a new injury for which the later incident is the direct cause." (Emphasis supplied)

3. The appellant submits that the Review Officer did not apply the test as stated in Canale (and, in particular, the portion emphasised) or alternatively, did not properly approach the question of causation.  The appellant submits that the correct approach to determining the question of causation and apportionment between the insurers, applying Canale, would have been to look at each of the events which occurred after the 1994 accident and to ask, having regard to each of those events, whether they were events which could have, in their own right, caused the worker's disability (ie, a fresh disability).

4. However, there are differences between the statutory regimes as they were first prior to May 1982, when the Act came into force, then prior to the amendment of the Act by the Workers' Compensation and Assistance Amendment Act 1990 ("the 1990 Amendments"), and finally as the Act presently is, for the purpose of apportionment of liability between employers and between insurers. Those amendments have effected a change which is of importance for the present case.

5. The statutory scheme, so far as it is of relevance, is as follows. A "disability" is defined in s 5 of the Act to include:

   "(a)a personal injury by accident arising out of or in the course of employment, or whilst the worker is acting under the employer's instructions;

   …

   (c)a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree;

   (d)the recurrence, aggravation, or acceleration of any pre‑existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree … "

6. A "disease" is defined as including "any physical or mental ailment, disorder, defect, or morbid condition whether of sudden or gradual development".  Section 18 provides that "[i]f a disability of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1".  Schedule 1 has a variety of clauses, but is concerned principally with the concept of total or partial incapacity for work, so that compensation is calculated by reference to the degree of incapacity and the duration of that incapacity. 

7. Pausing there, it can be seen that the way in which the concepts of disability, disease, liability, and incapacity relate to each other are such that it is possible for more than one employer to be liable to pay in respect of a period of incapacity, or for the same employer to be liable to pay in respect of an incapacity as a result of liability arising from more than one event.  As a result, more than one insurer may be liable in respect of that period.  For example, an employee may, during the course of employment with one employer, contract a disease within the meaning of par (c), which is aggravated by an event occurring while employed with another employer in such a way as to cause incapacity.  If the incapacity is seen as resulting from both disability events, it may be that both employers will be liable.  Alternatively, an employee may suffer a disease, or may suffer a personal injury by accident, during the course of employment with one employer, which becomes symptomatic so as to result in incapacity.  The worker may recover from the symptoms for a time, but may find those symptoms recurring at a later time, so as to cause incapacity, not because of any subsequent disability, but simply because of the ordinary stresses of living, or for no apparent reason.  The employer at the time of the disability will be liable for all of the incapacity which results.  An employee may suffer a number of disabilities, with one or more employers, in such a way that a later period of incapacity can be seen to be caused by more than one of those disabilities, and in that case each employer will be liable; or alternatively, it may be that it is simply not possible to discern which of a number of disabilities, each of which could have caused a particular period of incapacity, was the principal cause of that incapacity, or the degree to which those discrete disabilities were the cause of the incapacity. 

8. However, prior to May 1982, the concept which was central to the Workers' Compensation Act 1912 (WA) was that of "personal injury by accident" (s 7), a concept now found in par (a) of the definition of "disability". The obvious possibility of multiple causes of one period of incapacity, each of them being able to be considered a "disability", arises in part from the terms of the definition of that new statutory concept introduced by the Act in 1982.

9. In order to protect the worker who has indisputably suffered a disability and a resultant incapacity, s 73 of the Act provides a mechanism for dealing with disputes between employers as to their liability where there is some issue as to causation. Section 73(1) and (5) provide:

   "(1)Where there is a dispute between employers as to liability but no dispute that the worker is entitled to compensation from some employer for a fresh disability or the recurrence of an old disability the employer of the worker at the time of the latest disability or recurrence is liable to pay compensation under this Act until the question of  which employer is liable or how liability is to be apportioned between employers has been resolved.

   …

   (5)If a dispute resolution body finds that it was a recurrence and not a fresh disability or partly a recurrence and partly a fresh disability, it may order that other employer to pay to the applicant employer the whole or a part of the amount of compensation paid to the worker and to pay any further compensation to which the worker is entitled."

10. It is to be noted that the terms "recurrence" and "fresh disability" are not defined. A recurrence of a pre‑existing disease may, of course, itself be a disability where the employment was a contributing factor to that recurrence to the relevant degree. The pre‑existing disease may also be a disability by reason of par (c) in the definition of disability. In order to make sense of s 73(5), which appears to regard the concepts of recurrence and fresh disability as mutually exclusive ones, it is, in my view, necessary to read "recurrence", in that context, as meaning a recurrence which itself is not capable, by reason of the definition of disability, of constituting a disability. A recurrence in that sense would be, for example, the spontaneous flaring‑up of a pre‑existing condition, where the employment did not contribute to a significant degree to that flaring‑up of the condition.

11. The understanding of "recurrence" which I have described is largely consistent with the discussion in Canale. Generally, one would understand recurrence in s 73 as referring to a condition flaring up spontaneously or because of the "ordinary stresses and strains of living and working".

12. However, the last sentence of the quoted passage from Canale, upon which the present appellant lays considerable stress, is not, in my view, consistent with the proper application of s 73, when understood in the light of the definition of disability. Where the first injury leaves a "great weakness and a potential site of trouble" it may well be that the worker has been left with a disease - that is, a physical defect - which is a disability, and where trouble at that weakened site is "precipitated by a new incident of an accidental nature", then that precipitation too could be a disability within the meaning of par (d), so that both the original event and the aggravation would be understood as disabilities for which the relevant employers would be liable to pay in respect of any resulting periods of incapacity.

13. It may be that it was necessary to adopt the test used in Canale at that time in order to make a somewhat arbitrary choice between competing causes, since it was then necessary to allocate liability to only one employer. Prior to the 1990 Amendments, s 73 relevantly provided:

    "73.(1)  Where there is a dispute between employers as to liability but no dispute that the worker is entitled to compensation from some employer for a fresh disability or the recurrence of an old disability the employer of the worker at the time of the latest disability or recurrence is liable to pay compensation under this Act until the Board has determined that some other employer is liable.

    …

    (5)If the Board finds that it was a recurrence and not a fresh disability, it may order that other employer to pay to the applicant employer the amount of compensation paid to the worker and to pay any further compensation to which the worker is entitled."

14. In its present form, however, s 73 allows for apportionment of liability between employers, and therefore allows full effect to be given to the current definition of "disability". The only inquiry, then, is that to which the present s 73(5) directs attention; that is, whether the incapacity results from an old or a fresh disability, or partly from both.

15. Section 73 in its earlier form was also discussed in F & T Grassi Pty Ltd v Ellendale Estate Pty Ltd [1985] WAR 294. In that case, a worker had sustained personal injury by accident and had then been incapacitated on a number of subsequent occasions. The Workers' Compensation Board had found that there was only one personal injury by accident and that the symptoms causing incapacity thereafter were, in each case, the recurrence of an old disability. At 297, Burt CJ referred to the passage earlier quoted from Canale, and said:

    "That test would seem to me to be saying that if a worker's incapacity for work arising while employed by A is of a kind that can result from an 'old disability', that is to say, from an old personal injury by accident arising out of or in the course of his employment with employer B, then in the absence of any 'fresh disability', that is to say, in the absence of any further personal injury by accident arising out of or in the course of his employment with employer A which could result in such incapacity for work the liability to pay compensation is the liability of the old or of the 'other' employer identified by me as employer B. And that, I think, is correct. It is correct because apart from the provisional liability placed upon employer A by s 73(1) of the Act there is then, no basis for exposing that employer to liability at all, the reason being that there is then nothing enabling one to associate the incapacity to some incident of the worker's employment with employer A and no personal injury by accident and hence no 'disability' as that word is now defined by s 5 of the Act can be established as against that employer.

    The Commonwealth v Ockenden (1958) 99 CLR 215. Central to the reasoning is the absence of a 'fresh' personal injury by accident from which incapacity for work can result.

    Under s 73 of the Act, the concepts 'a recurrence' and 'a fresh disability' are, I think, mutually exclusive. It is one or the other. The board, to make an order under subs (5) of the section must find that 'it was a recurrence' and that it 'was not a fresh disability'.

    If there is a fresh disability, that is to say a fresh personal injury by accident, then liability to pay compensation cannot be shifted and it remains with 'the employer of the worker at the time of the latest disability'."

1. It is to be noted that Burt CJ refers to disability only in the sense of a personal injury by accident, and not in the sense defined in par (d) of the definition of disability. That appears to have been because in that case there was not raised any question of a disability in the latter sense, as opposed to either a disability resulting from a fresh "accident" or a mere recurrence as a result of everyday stresses. It is also to be noted that his Honour's observation that if there is a fresh personal injury by accident, then liability cannot be shifted and remains with the employer of the worker at the time of the latest disability is not consistent with the recognition in s 73(5), as it presently stands, that there may be found to be partly a recurrence and partly a fresh disability, as a result of which there may be some apportionment of liability.

2. Wallace J published separate reasons agreeing with Burt CJ. His Honour's view appears to have been that it was open to the Board to find that the ultimate incapacity of the worker was caused by a fresh traumatic injury, rather than because of increasing symptoms due to "the ordinary stresses and strains of working". Rowland J, in separate reasons, appears to have dealt primarily with issues of causation. To the extent that this case suggests that it is necessary to nominate only one disability as causing a period of incapacity, it is not applicable to the Act as it stands after the 1990 Amendments.

3. Section 74 is concerned with disputes between insurers. Consistently with the former s 73, prior to the 1990 Amendments, it required the selection of only one insurer to bear the liability for an incapacity. Section 74 now relevantly provides:

   "(1)Where a worker is entitled to compensation for a fresh disability or the recurrence of an old disability from an employer but there is a dispute between insurers as to liability to indemnify that employer, the insurer of the employer of the worker at the time of the latest disability or recurrence is liable to indemnify the employer until a dispute resolution body has otherwise determined.

   (1a)An employer or insurer may refer to the Director for Conciliation under Part IIIA a dispute between insurers notwithstanding any term or condition of any policy of insurance providing for some other means of settling disputes.

   (2)A dispute resolution body shall determine which insurer is liable or how liability is to be apportioned and may make such order as it thinks proper for the reimbursement of one insurer by another and for the indemnity of the employer in respect of his liability under this Act."

4. It is to be noted that s 74 does not concern itself with the way in which any apportionment should be made. Properly understood, s 74 performs two different functions. Subsection (1) protects the employer by fixing the insurer at the time of the last disability or recurrence with liability until a dispute resolution body has otherwise determined. Subsection (2) allows the dispute resolution body to determine which insurer is liable, or how liability is to be apportioned and, if it thinks proper, to order reimbursement of one insurer by another.

5. The operation of s 74 in its present form was discussed in terms which I would respectfully adopt (and in a manner which I would understand to be broadly consistent with the operation of s 73) by Anderson J in SGIO Insurance Ltd v Wesfarmers Insurance Ltd, unreported; FCt SCt of WA; Library No 950091; 3 March 1995.  At 5 ‑ 6 of his Honour's reasons, he said:

   "Before us, counsel for the appellant argued, that, as between insurers, the ultimate liability to indemnify the employer is to be determined by the application of sub‑s 74(1) and in construing that sub‑section, the word 'disability' must be given the meaning set forth in sub‑para (d) of the definition of disability in s 5. The submission was that a proper application of sub‑s 74(1) using that extended definition of 'disability' must exonerate the appellant once it is shown that the onset of incapacity has been 'to a recognisable degree' accelerated by the employment during the respondent's period of cover.

   This argument assumes that sub‑s 74(1) is concerned with the question of liability as between insurers and contains rules for the determination of that question.  In my opinion, the sub‑section is not concerned with that subject.  It is solely concerned with the protection of the position of an insured employer.  In a case where the worker is undeniably entitled to compensation but there is uncertainty as to the period of cover to which the disability is attributable the sub‑section obliges the insurer who presently has the cover to indemnify the employer.  It has no other operation.  It has nothing to say about how any dispute between insurers (as to which of them is ultimately liable or to what extent they should both contribute) is to be resolved.

   The legislative provision which authorises the Board to resolve disputes between insurers is sub‑s 74(2).  As can be seen, that sub‑section lays down no guidelines.  In particular, there is nothing in sub‑s 74(2) to support the appellant's contention that once it can be shown that a degenerative condition started up by a personal injury by accident happening in one period of insurance is 'to a recognisable degree' accelerated by the employment in a later period of insurance, the first insurer is exonerated and the second insurer is exclusively liable."

6. Rowland J did not find it necessary to discuss that question, considering that the questions raised by the appeal were questions of fact which the Board had determined on evidence open to it, while Ipp J agreed with Rowland and Anderson JJ.

7. In considering the question of the liability of insurers as amongst themselves, the first question which should be asked is that of which employer was on risk at the time at which the liability arose.  That, in turn, directs attention to the question of what disability or disabilities caused the incapacity for which the worker claims compensation.  If there is only one such disability, then only one insurer will be liable.  If more than one disability causes the incapacity for which compensation is claimed, then one looks to the insurers who may have been on risk at the time of each relevant disability. 

8. In the present case, it was apparently not necessary for the Review Officer to consider the terms of any particular policy, since, we were advised, it is accepted that the insurance policies which issue in this area are, in effect, standard form policies which comply with the requirement of s 160 of the Act that the employer have a policy "for the full amount of his liability to pay compensation … to any worker". Unless there were some particular issue raised, then the Review Officer could assume that the employer's liability at the time of the relevant disability, and the liability of the insurer at that time to indemnify, were co‑extensive. The principles applicable to contribution between insurers, although perhaps of some value as a guide, would not be strictly applicable for two reasons: first, those principles apply only when each insurer insures against the same risk, while it will generally be the case that each insurer contemplated by s 74 will insure against the same type of risk, but covering different periods (cfAlbion Insurance Co Ltd v GIO (New South Wales) (1969) 121 CLR 342 at 345); and second, s 74 in its terms appears to allow a dispute resolution body a broad discretion.

9. The primary task of the dispute resolution body pursuant to s 74(2), in my view, is to ascertain, so far as can be done, to what event or events the incapacity for which a worker claims compensation should be attributed. Where more than one of those events constitutes a disability as defined under the Act, the next question will involve ascertaining which insurer or insurers was or were on risk in relation to those disabilities. As a general rule, it would appear to be appropriate to apportion liability depending upon the degree to which each event contributed to the incapacity. Where it cannot be ascertained which of a number of disabilities caused the incapacity, but it is clear that all of them were capable of causing or contributing to the incapacity, it may be, prima facie, appropriate simply to apportion the liability equally between the competing insurers. 

10. Of course, because of the requirement in s 84ZA that the Review Officer act fairly, economically, informally and quickly, and according to the substantial merits of the case, a Review Officer in determining questions of liability must balance the need to achieve a just outcome, against the need to avoid the unnecessary expense and technicality which may result from too close an examination of matters which, of their nature, may not be susceptible of precise apportionment.  A Review Officer is entitled to act on an impression formed as a result of reasonable consideration of the medical evidence, without a minute examination of the precise detail of each incident and of the medical sequelae of each incident, particularly in a case such as the present, where there are such a large number of incidents that even the worker has difficulty recalling precisely when and how injuries occurred or precisely what consequences flowed from which injury. 

11. It follows from what I have said, that Canale's case, while it contains some commonsense guidance as to what constitutes a recurrence of a disability, is not to be substituted for the words of ss 73 and 74 of the Act. To the extent that it suggests that it is necessary to select only one cause of any incapacity, Canale should no longer be applied.  This ground of appeal therefore fails.

"New Pathology"

1. In related grounds of appeal, the appellant submits that the Review Officer erred in failing to find that there was personal injury by accident on any occasion other than 11 September 1994 because of the absence of evidence of any "new pathology" thereafter.

2. What the Review Officer said (at [38]) was:

   "From the medical evidence it is not evident whether the applicant suffered new pathology after the incident on 10 March 1995 or for that matter after any of the subsequent occurrences of pain.  It was clear he suffered severe pain after a number of incidents including on 10 March 1995.  The disability of 11 September 1994 aside, this increased symptomatology does not necessarily constitute a change in pathology.  In the absence of such evidence it would seem appropriate to conclude the worker did not suffer an injury by accident disability (type (a)) apart from 11 September 1994.  The disability of 11 September 1994 aside, the question remains as to whether he suffered a disease to which the employment contributed to a significant degree (type (c) disability) or an aggravation of a pre‑existing disease to which the employment contributed to a significant degree (type (d) disability)."

3. Having considered a submission similar to the present grounds of appeal dealing with this issue, the learned Compensation Magistrate concluded (at [29]):

   "In my view a fair reading of paragraphs 38, 39, 43 and 44 of the decision discloses no error of law. The passage quoted in paragraph 39 drew his attention to the issue of causation in the context of a s 73 dispute, and the need to make a finding as to whether the subsequent incapacity for work resulted from the original disability or was a fresh disability. He had correctly summarised his task at paragraph 14. He took the view at paragraph 50 that the evidence as to each subsequent incident showed they were 'no more than mere recurrences of the 1994 disability and did not result in the occurrence of a fresh disability'. Having carefully reviewed the evidence of the respondent worker and the medical reports that conclusion was open."

4. The second respondent conceded that the suggestion that no incident after 1994 was a "disability" was erroneous, since some of those incidents would have fallen within par (d) of the definition.  However, it was submitted that what was meant by "mere recurrence" in that sense was a temporary aggravation which made no causal contribution to any incapacity in or after 2001.  I accept that submission.  So understood, in my view, the Compensation Magistrate was correct.  The Review Officer used the absence of new pathology, not in substitution for the statutory inquiry into causation, but as one factor relevant to the determination of that issue. 

Reliance on medical opinion

1. Finally, the appellant argues that the Compensation Magistrate erred in law in finding that the inaccuracies in the worker's history as provided to medical practitioners were not so serious that the Review Officer was bound to reject the whole of the medical reports.  The appellant submits that the Compensation Magistrate should have found that the Review Officer erred in law in accepting and relying upon medical opinion evidence and in making findings based on that medical opinion when the factual foundation for that medical opinion had not been established.

2. The first of these propositions cannot be sustained.  In par 21 of his reasons, the Compensation Magistrate noted that the Review Officer was of the view that the worker had inadvertently misled Mr Bell in relation to some details, and in particular in relation to the periods of time that he had off work after the 1994 accident and the 1995 accident.  However, the Compensation Magistrate then continued:

   "The consequences of the inaccurate information provided to Mr Bell is for the Review Officer to assess, ie it depends on how significant the inaccuracy was.  It is not the case that a total rejection of a medical report inevitably follows the finding of some factual inaccuracy in the report.  It is for the tribunal of fact to assess whether the error is so serious that no weight can be given to the relevant report.  Even if a lie is told it is not always fatal to the worker's case … ."

3. The Compensation Magistrate then went on to refer to certain alleged inaccuracies in the histories recorded by Dr Marsden and Dr Hardcastle.  In par 23, the Compensation Magistrate concluded that the inaccuracies provided to the medical practitioners were not so serious that the Review Officer was bound to reject the whole of those reports.  As the learned Compensation Magistrate noted, the Review Officer had the evidence of the worker (which he had considered to be truthful, although in part inaccurate), the report of Dr Marsden which relied in part on x‑rays taken in September 1994, and some evidence of degenerative joint change from the 1994 x‑rays.  The Review Officer also took into account the difficulty in recalling details of incidents after a long gap in time.  In the view of the Compensation Magistrate, the conclusion of the Review Officer having weighed all the evidence was open to him. 

4. Pausing there, it is to be noted that the way in which the Compensation Magistrate considered that it was appropriate for the Review Officer to approach his task, and the way in which the Compensation Magistrate considered that the Review Officer had approached his task, are entirely consistent with what was said in this Court to be the proper way to approach factual inaccuracies in medical expert opinion.  In Beer v Duracraft Pty Ltd [2004] WASCA 192, McLure J, in a passage with which I agreed, said at [80]:

"In this case, as with the majority of cases involving medical expert evidence, the relevant history supplied by the claimant provides the factual foundation for the statement of expert opinion.  In many cases there is not an exact correlation between the facts proven in evidence and the facts relied upon by the medical practitioner upon which his or her opinion is based.  The role of the decision maker is to examine any variation between the two in order to assess whether any unproven fact relied on by the medical practitioner or any omission from the material given to him or her renders the opinion inadmissible or of no weight."

1. In my view, the passage which I have quoted from the decision of the Compensation Magistrate makes it clear that his Worship made no error of law in considering what task it was which the Review Officer had to perform.  Having considered the Review Officer's reasons, and the evidence upon which those reasons relied, he reached the view that, as a matter of fact, the Review Officer had performed that task.  At par 24, he said:

   "The reasons make clear that [the Review Officer] carefully read and assessed the content of each medical report and then proceeded to draw his own conclusions, after having to consider the effect of the inaccurate details provided." (Emphasis supplied) 

2. The appellant sought to take us in some detail to what were said to be the inaccuracies in the medical reports.  However, it is not for this Court to consider whether, as a matter of fact, some other conclusion could, or even should, have been reached concerning the effect of those inaccuracies upon the ultimate conclusion reached.  The appeal to this Court is upon a question of law and, the correct legal principles having been applied by the Compensation Magistrate, the appeal so far as it is based on these grounds must fail also. 

3. I would therefore dismiss the appeal.

4. ROBERTS-SMITH JA:  I have read the draft reasons for judgment prepared by Wheeler JA.  I agree with those reasons and have nothing to add.