Anderson v Mercy Hospital Mount Lawley - [2020] WASCA 42

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   ANDERSON -v- MERCY HOSPITAL MOUNT LAWLEY [2020] WASCA 42
CORAM:   MITCHELL JA
BEECH JA
VAUGHAN JA

HEARD:   9 MARCH 2020
DELIVERED          :   7 APRIL 2020
FILE NO/S:   CACV 64 of 2018
BETWEEN:   SHARON MARIE ANDERSON
Appellant
AND
MERCY HOSPITAL MOUNT LAWLEY
First Respondent
ST JOHN OF GOD HEALTH CARE INC
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   LONSDALE DCJ
Citation: ANDERSON -v- MERCY HOSPITAL MOUNT LAWLEY [2018] WADC 74
File Number            :   APP 63 of 2017

Catchwords:

Appeals - Workers' compensation - Where claim based on alleged psychiatric condition - Where worker's claim was based on her evidence and evidence of psychiatrists called by her - Where arbitrator made an adverse credibility finding and found that the history given to the psychiatrists was unreliable - Whether arbitrator and judge erred in failing to consider and determine an argument not put to them - Whether appellant should be permitted to run a new case on appeal

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 5

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	A J Stewart
First Respondent	:	No appearance
Second Respondent	:	R D McCabe

Solicitors:

Appellant	:	Chapmans Barristers & Solicitors
First Respondent	:	Jackson McDonald
Second Respondent	:	Group Legal, St John Of God Health Care Inc

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

Anderson v Mercy Hospital Mount Lawley [2018] WADC 74
Catholic Education Office of WA v Granitto [2012] WASCA 266
Commonwealth v Butler (1958) 102 CLR 465
Department of Education v Azmitia [2014] WADC 85
Department of Education v Azmitia [2015] WASCA 246
Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55
Johnson v Denwest Nominees Pty Ltd [2017] WASCA 200
Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230; (2015) 49 WAR 243
Regis Aged Care Pty Ltd v Hunter [2018] WASCA 50
Saldanha v City of Belmont [2018] WASCA 7
Townsville City Council v Chief Executive, Department of Main Roads [2005] QCA 226; [2006] 1 Qd R 77
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481
Water Board v Moustakas (1988) 180 CLR 491
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598
Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227; (2013) 45 WAR 446

JUDGMENT OF THE COURT:

Introduction

The appellant, Ms Sharon Anderson, made a claim for workers' compensation, claiming that she developed a psychological condition as a result of an incident that occurred in the early hours of 5 May 2014 while she was working as a nurse at the Mercy Hospital in Mount Lawley. She relied on her evidence and on the expert medical opinions of two psychiatrists.
Her claim for workers' compensation was dismissed by an arbitrator on the basis that Ms Anderson had not suffered an 'injury to which employment made a significant contribution' within the meaning of s 5 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act). The arbitrator's conclusion was based, primarily, on his findings that Ms Anderson was not a credible witness and that the histories she gave to the psychiatrists on whose opinions she relied were unreliable. This led to his rejection of those medical opinions and consequently to a finding that she had not established her claims that she was suffering from post-traumatic stress disorder (PTSD) or major depressive disorder (MDD).
Ms Anderson's appeal from the arbitrator's decision was dismissed by a judge of the District Court.[1] The judge rejected Ms Anderson's main complaint, that the arbitrator placed undue emphasis on her credibility, as well as her complaints that the arbitrator failed to properly determine whether she had suffered an 'injury' within the meaning of s 5 of the Act and failed to find that the psychological condition from which she suffered was PTSD.
[1] Anderson v Mercy Hospital Mount Lawley [2018] WADC 74 (primary reasons).
Ms Anderson now appeals the decision of the primary judge to this court. Ms Anderson advances a single ground of appeal, contending that the judge failed to properly interpret and apply the definition of 'injury' in s 5 of the Act. For the reasons that follow, the ground of appeal is entirely without merit. In substance, in oral submissions Ms Anderson seeks to raise an argument that she did not advance at the arbitration and did not advance before the primary judge. Neither the arbitrator nor the judge erred in failing to deal with a case not put to them. Moreover, Ms Anderson should not be permitted to raise a new point on the appeal to this court. Insofar as her written submissions raise arguments she put below, the arguments are without merit for the reasons given by the primary judge. Consequently, leave to appeal should be refused, and the appeal dismissed.

The facts

The incident on 5 May 2014

The arbitrator's findings as to what occurred on 5 May 2014 are not in dispute.
Ms Anderson qualified as a registered nurse in about 2007. She began working for the first respondent (Mercy) in 2009.[2] At 12.00 am on 5 May 2014, ownership and control over the hospital passed from Mercy to the second respondent (SJOG).[3]
[2] Arbitrator's reasons [1] - [2].
[3] Arbitrator's reasons [3]; primary reasons [3].
At 9.00 pm on 4 May 2014, Ms Anderson commenced night shift at the Mercy Hospital. She was assigned to care for a patient in the special nursing unit who had returned to the hospital with post-operative obstetric complications from a caesarean section.[4]
[4] Arbitrator's reasons [3] - [4]; primary reasons [6].
At around midnight, the patient informed Ms Anderson that she needed to go to the toilet. The patient passed a large clot of blood, so Ms Anderson contacted the patient's obstetrician by telephone. The obstetrician gave her treatment instructions, which she implemented.[5]
[5] Arbitrator's reasons [5]; primary reasons [6].
At about 12.30 am, Ms Anderson told a supervisor that she believed that the patient should be transferred to a hospital with emergency facilities. The obstetrician attended and Ms Anderson voiced her concerns to him. To Ms Anderson, he appeared unconcerned by the patient's condition. He decided not to move her immediately. He performed a procedure, during which, Ms Anderson said, the patient was visibly suffering and shaking. The obstetrician left after performing the procedure, leaving Ms Anderson to care for the patient.[6]
[6] Arbitrator's reasons [6] - [9]; primary reasons [7] - [8].
After the obstetrician left, the patient began to exhibit signs of pain and started crying and screaming. Ms Anderson described her as agitated, depressed, desperate and anxious.[7]
[7] Arbitrator's reasons [10]; primary reasons [8].
Ms Anderson began to feel nauseous and was soaked in perspiration. She felt mild detachment from her surroundings. She was angry because she felt the whole situation was not safe practice.[8]
[8] Arbitrator's reasons [11].
At about 2.20 am, the obstetrician returned. Ms Anderson suggested that he authorise transfer of the patient immediately. The obstetrician called for assistance from a consultant at another hospital and a transfer was arranged at 4.30 am.[9]
[9] Arbitrator's reasons [12] - [13]; primary reasons [9].
Ms Anderson continued on her shift, feeling angry and annoyed that her clinical opinion was not taken into consideration. Towards the end of her shift, Ms Anderson met with her nurse manager, Ms Anna Sanasi, to discuss what had occurred.[10]

Subsequent events

[10] Arbitrator's reasons [14] ‑ [15].

Ms Anderson did not seek medical help in the period of time immediately following the incident for issues related to the incident. It was not until July 2016 (more than two years after the incident) that she claimed to have realised that her mental health problems could be attributed to the incident. The first record of her claim to be suffering from PTSD was on 14 July 2016, when she presented to a doctor reporting that she believed she may be suffering from PTSD.[11]
[11] Primary reasons [10].
Prior to July 2016, Ms Anderson had only ever complained to her doctors of symptoms consistent with a diagnosis of premenstrual dysphoric disorder.[12]
[12] Primary reasons [11].

Statutory provisions

One of the purposes of the Act is to establish a workers' compensation scheme dealing with compensation payable to, or in respect of, workers who suffer an injury.[13]
[13] Section 3(a)(i) of the Act.
Section 18 of the Act provides that if an injury of a worker occurs, the employer shall, subject to the Act, be liable to pay compensation in accordance with sch 1 to the Act. Thus, it is the occurrence of an injury to a worker that triggers the entitlement of the worker to be paid, and the liability of the employer to pay, compensation.[14]
[14] Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230; (2015) 49 WAR 243 [106].
Weekly payments of compensation are payable where the worker has total or partial incapacity for work that results from the injury.[15] Thus, in order to obtain weekly payments, the worker must establish both incapacity and injury.[16]
[15] Schedule 1, cl 7 of the Act.
[16] Catholic Education Office of WA v Granitto [2012] WASCA 266 [21]; Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55 [49].
In common with other forms of workers' compensation legislation, the Act requires two forms of connection: first, a connection between the worker's employment and the injury; and, secondly, a connection between that injury and the worker's incapacity.[17]
[17] Commonwealth v Butler (1958) 102 CLR 465, 478; Catholic Education Office v Granitto [21]; Engine Protection v Miller [50].
The concept of injury is defined so as to provide the requisite statutory causal connection with the worker's employment.[18]
[18] Napier v BHP Billiton [6]; Engine Protection v Miller [51].
'Injury' is defined in s 5(1) to mean:
injury means -
(a)a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions; or
(b)a disease because of which an injury occurs under section 32 or 33; or
(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; or
(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; or
(e)a loss of function that occurs in the circumstances mentioned in section 49,
but does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the matter is mentioned in paragraph (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer[.]
'Disease' is defined in s 5(1) to include 'any physical or mental ailment, disorder, defect, or morbid condition whether of sudden or gradual development'.
Section 5(5) provides, relevantly to s 5(1)(c) and s 5(1)(d):
(5)In determining whether the employment contributed, or contributed to a significant degree, to the contraction, recurrence, aggravation or acceleration of a disease for purposes of the definitions of injury and relevant employment, the following shall be taken into account -
(a)the duration of the employment; and
(b)the nature of, and particular tasks involved in, the employment; and
(c)the likelihood of the contraction, recurrence, aggravation or acceleration of the disease occurring despite the employment; and
(d)the existence of any hereditary factors in relation to the contraction, recurrence, aggravation or acceleration of the disease; and
(e)matters affecting the worker's health generally; and
(f)activities of the worker not related to the employment.

The arbitrator's decision

The arbitrator summarised the parties' competing cases as follows:[19]
[19] Arbitrator's reasons [16] - [17].
It is [Ms Anderson's] case that:
(a)she left work before the completion of her shift at the suggestion of Ms Sanasi;
(b)still distressed by the events, she lost time from work soon after and consulted her doctor;
(c)without her realising it, or understanding why (until much later, following medical consultation), her psychological health deteriorated and life at work and away from work (particularly in respect of her family life) was affected significantly. Initially she believed her psychological problems were related to gynaecological issues and she had arranged for the removal of a Mirena in the hope that this would alleviate the situation;
(d)in particular, she engaged in avoidance behaviour at work, resisting involvement in the area where the events occurred, and being in positions of responsibility;
(e)she sought medical help from time to time but in July 2016 realised she particularly required medical assistance for psychological injury and consulted her doctor;
(f)she suffered a personal injury by accident in the course of her employment on 4 May 2014 and/or contracted the disease (being a mental ailment) in the course of employment (in particular the events during the night shift) on and from 4 May 2014 to which the employment contributed to a significant degree; and
(g)she is entitled to payments of weekly compensation and expenses pursuant to cl 17 and 19 of Sch 1 of the Act.
It is [SJOG's] case that:
(a)the credibility of [Ms Anderson] is in issue. The evidence of [Ms Anderson] and the symptoms and history she reported [to] the doctors alleging a work‑related post‑traumatic stress disorder or other work‑related psychological condition is unreliable and [Ms Anderson] has failed to establish a case on the balance of probabilities;
(b)the contemporaneous medical records are more reliable and objective evidence than [Ms Anderson's] testimony and establish significant non‑work‑related psychological conditions including a Pre‑Menstrual Dysphoric Disorder (PMDD) and significant marital problems culminating in the period of separation requiring counselling and medical support;
(c)since the reported history and symptoms are unreliable, it is not possible to reach a conclusion on the balance of probabilities that [Ms Anderson] sustained an 'injury' in the terms contemplated by s 5 of the Act on 4 or 5 May 2014. In particular, the evidence does not establish, on the balance of probabilities that the employment was a significant contributory factor to the development of a psychological condition;
(d)due to primary or secondary motivators/gains [Ms Anderson] has consciously or unconsciously falsely:
i.exaggerated her symptoms and psychological profile including the nature, intensity and chronicity of the symptoms; and
ii.attributed her psychological symptoms to an alleged incident in the course of employment, rather than to non‑work‑related factors; and
(e)[Ms Anderson] has failed to establish liability under s 18 on the balance of probabilities and the application ought to be dismissed.
The arbitrator set out all the paragraphs of the definition of 'injury' under s 5(1) of the Act, as well as s 5(5) of the Act.[20]
[20] Arbitrator's reasons [19].
The arbitrator noted that there was no dispute that Ms Anderson suffered from a psychiatric condition. The issues were: (1) whether there was an 'injury' within the meaning of s 5 of the Act; and (2) if so, whether the employment caused that injury or contributed to it to a significant degree.[21]
[21] Arbitrator's reasons [20].
The arbitrator referred to authorities establishing that, generally, the history given by the claimant provides the factual foundation for the opinion expressed by a medical expert.[22] The arbitrator observed that this was particularly important in cases concerning psychiatric or psychological injury, as a medical practitioner's diagnosis and opinion on causation are significantly influenced by the history and description of symptoms given by the patient.[23] In that context, the arbitrator said, Ms Anderson's credibility was a central issue in the case.[24]
[22] Arbitrator's reasons [21] - [22].
[23] Arbitrator's reasons [23].
[24] Arbitrator's reasons [23].
The arbitrator outlined the competing medical expert evidence. Three psychiatrists provided opinions in the period between November 2016 and February 2017. Dr Claassen diagnosed Ms Anderson with PTSD.[25] Dr Bassett diagnosed Ms Anderson with PTSD and MDD, both of which he related directly to the work incident.[26] By contrast, Dr Piirto was not satisfied that Ms Anderson presented with PTSD. On the basis of the history recounted to her by Ms Anderson, she concluded that Ms Anderson presented with some type of depressive disorder. However, on the basis of other material, including the medical practice notes of Ms Anderson's previous consultations and a conversation with Ms Anderson's husband, she expressed the opinion that Ms Anderson presented with premenstrual dysphoric disorder, which had been clinically significant for an extended period.[27]
[25] Arbitrator's reasons [24].
[26] Arbitrator's reasons [25].
[27] Arbitrator's reasons [26], [30].
The arbitrator outlined the respective histories, which had been obtained from Ms Anderson, recorded by each of the psychiatrists.[28] The arbitrator also summarised evidence of surveillance that was conducted in respect of Ms Anderson over the period from December 2016 to January 2017,[29] and the evidence given by Ms Sanasi.[30]
[28] Arbitrator's reasons [27], [28], [30].
[29] Arbitrator's reasons [33].
[30] Arbitrator's reasons [34].
The arbitrator made a number of adverse findings as to Ms Anderson's credibility. He said that: (1) her evidence was not frank, at times was evasive, implausible and unconvincing, and was internally inconsistent; (2) he accepted Ms Sanasi's evidence to the extent that it was inconsistent with Ms Anderson's evidence; and (3) Dr Piirto accurately recorded the history recounted to her by Ms Anderson, which history was inconsistent with some of her documented activities.[31]
[31] Arbitrator's reasons [35] - [37], [39].
The arbitrator concluded that Ms Anderson had not 'sustained an injury to which employment made a significant contribution'. The arbitrator said that, in that regard, 'the question of credibility has played a significant role'.[32]
[32] Arbitrator's reasons [38].
The arbitrator found that Ms Anderson deliberately misled psychiatrists as to certain matters, in that:[33]
[33] Arbitrator's reasons [39].
(a)she failed to mention gynaecological issues, her attendance upon her general practitioner for treatment in that regard, the opinion expressed by the general practitioner that those issues may be the cause of her condition, and the prescribing of Lovan;
(b)she informed Dr Piirto that she was unhappy, socially withdrawn, suffered from low energy, was hypervigilant and acutely aware of danger, and suffered from agoraphobia and panic attacks. I do not accept her evidence that she did not mislead Dr Piirto because the doctor did not ask about her current mental and physical condition. I prefer the evidence of comments Dr Piirto [sic] that the questions were asked of Ms Anderson. I accept the views expressed by Dr Piirto that the surveillance conducted of Ms Anderson contradicted her representations. Specifically, I accept the comments of Dr Piirto that:
i.her attendance at the marquee event and her interactions with others outside the gym, inside the shopping centre and at the Café during the surveillance showed her as laughing, smiling on occasions, and happy and relaxed without any suggestion of being affected by any mood or anxiety symptoms and that there was certainly no behaviours;
ii.her suggestion that she was socially withdrawn was not evident - she was seen to engage in sometimes animated conversation with others on numerous occasions and there was no evidence of social avoidance;
iii.her attendance at the gym prior to … her attendance upon Dr Piirto (admitted by her in cross examination) raised questions about her credibility as a historian;
iv.[her assertion that] she was hypervigilant and acutely aware of danger was countered by the fact that:
1.at the crowded marquee event, and over an extended period, she did not seem to be scanning environment for danger despite having two young girls with her;
2.she set off on her outing with the bikes with earphones in which was not consistent with a hyperalert individual; and
v.her attendance at shopping centres, on one occasion in a venue likely to be crowded two days before Christmas was in contradiction to her assertion that she avoided crowds[.]

Because of this, and for further reasons, the histories relied upon by Dr Claassen and Dr Bassett to make diagnoses of PTSD (and, in the case of Dr Bassett, MDD) were not reliable.[34] The arbitrator rejected Ms Anderson's evidence that her numerous absences from work were due to stress occasioned by the PTSD condition.[35] Further, the arbitrator did not accept the uncorroborated evidence of Ms Anderson as to the existence of certain symptoms consistent with the diagnosis of PTSD.[36] Consequently, although he did not expressly state it, by implication the arbitrator was not persuaded that Ms Anderson suffered from PTSD.
[34] Arbitrator's reasons [40] - [41].
[35] Arbitrator's reasons [42].
[36] Arbitrator's reasons [44].

The appeal to the District Court

Ms Anderson sought leave to appeal the arbitrator's decision to the District Court. She advanced six grounds of appeal, in the following terms:
1.The learned arbitrator erred in law insofar as, having [at paragraph 35 of his Reasons. P.21] found that the events of 4 and 5 May 2014 had occurred as described by the appellant, he failed to then properly determine whether the appellant had sustained an injury (as defined by the Act), whether
1.1A personal injury by accident in the course of her employment, so as to fall within paragraph (a) of the relevant s 5 definition; and/or
1.2 A mental disease (as defined) so as to fall within paragraph (c) and/or paragraph (d) of that definition;
2. As a consequence of that error, in respect of 1.2, the learned arbitrator also erred by failing to determine, to the extent the appellant had contracted a disease, or suffered the recurrence, aggravation, or acceleration of any pre-existing disease, whether:
2.1 Her employment was a contributing factor:
•to her contracting that disease; or
•to the recurrence, aggravation or acceleration of any pre-existing disease
and, if so
2.2 whether any such contribution was significant for the Act's purposes, including s 5(5).
3.Further, and/or in the alternative, the learned arbitrator erred by focusing on the matter of the appellant's credibility as a 'central issue' [Reasons par.23, p.10] when there was no, or alternatively, the learned arbitrator failed to establish any, proper basis for so doing, as part of the proper assessment of facts, the making of relevant findings of fact, and applying relevant law to those facts.
4. Further, and in any event, the learned arbitrator erred in law by failing to provide adequate reasons for finding:
4.1 The appellant's credibility was 'a central issue' [Reasons par.23, p.10] in a context of it being the second respondent's mere assertion as its principal submission [see Reasons at par.17, p.6], that 'the credibility of the appellant is in issue' and (she) 'has failed to establish a case on the balance of probabilities'; and
4.2 The witness' evidence of Ms A Sanasi was to be preferred over the appellant's evidence, without identifying what the (presumably relevant) 'significant discrepancies' [see Reasons par.36, p.25] were between the respective testimonies;
5.Further, and in any event, the learned arbitrator erred in law by failing to find the appellant's psychiatric condition, the existence of which was not in issue [see Reasons at par.20, p.8], was Post Traumatic Stress Disorder (PTSD) when:
•It was the evidence of Doctors Claassen and Bassett that the appellant was suffering from PTSD;
•There was no evidence from Dr Piirto that the appellant was not suffering from PTSD; and
•The appellant's evidence of her symptoms was consistent with the diagnosis provided by Doctors Claassen and Bassett; or
6. In the alternative, make any finding as to the nature of the appellant's psychiatric condition. (emphasis in original)

The primary judge's decision

The primary judge characterised Ms Anderson's main complaint on appeal, advanced by grounds 3 and 4, as being that the arbitrator erred in law by placing undue emphasis on the issue of her credibility.[37] In response to this complaint, the judge found that, in a case about alleged psychiatric injury, plainly Ms Anderson's account to the doctors was an important issue. To the extent that there was no other objective evidence of Ms Anderson having suffered the 'injury' complained of, Ms Anderson's account to the doctors and her evidence at the hearing was not only important but critical.[38]
[37] Primary reasons [50].
[38] Primary reasons [64], [66].
Before this court, Ms Anderson does not challenge the primary judge's rejection of grounds 3 and 4.
The primary judge dealt with grounds 1 and 2 together. Ground 1 contended that the arbitrator failed to properly determine whether Ms Anderson suffered an injury within the meaning of s 5(1)(a), (c) or (d) of the Act. Ground 2 contended that, as a consequence, the arbitrator failed to determine whether Ms Anderson's employment was a contributing factor to her contracting a disease (s 5(1)(c)) or to the recurrence, aggravation or acceleration of any pre-existing disease (s 5(1)(d)).
Before the primary judge, Ms Anderson accepted that her case before the arbitrator relied on s 5(1)(a) and s 5(1)(c), and did not rely on s 5(1)(d).[39]
[39] ts 119.
Ms Anderson submitted that, because she had a perception that her injuries were caused by the incident at work, the arbitrator was compelled to conclude that she suffered an injury within the meaning of the Act.[40] She relied on McCann DCJ's decision in Department of Education v Azmitia, in which his Honour said:[41]
A stress claim is compensable if it is caused by a worker's subjective reaction to objectively proven facts. It is not necessary for a worker to prove that his or her subjective perception of proven facts was reasonable.
[40] Primary reasons [34], [40].
[41] Department of Education v Azmitia [2014] WADC 85 [16].
Ms Anderson further submitted that there was a 'decision-making structure' that the arbitrator was bound to follow in these circumstances, being the one set out in McCann DCJ's decision, as follows:[42]
[42] Azmitia [2014] WADC 85 [21].
(a)whether the events described by the respondent on 23 and 26 March 2012 occurred;
(b)if so, whether she sustained an injury, being a mental disease such as to fall within s 5(c) or s 5(d) of the Act;
(c)if so, whether her employment was a contributing factor to the contraction of the disease;
(d)if so, whether the employment contributed to a significant degree to the contraction of the disease;
(e)whether the disease wholly or predominantly arose from an excluded matter within s 5(4) of the Act and, if so, whether the relevant conduct of the appellant was harsh and unreasonable;
(f) whether the respondent failed to mitigate her loss and, if so, the consequence (if any) of that failure;
(g) whether the respondent is entitled to weekly payments of compensation for total incapacity and, if so, the amount;
(h) whether the respondent is entitled to payment of statutory expenses.
The judge found that Ms Anderson's argument was misconceived. Neither the decision of McCann DCJ in Azmitia nor the decision of this court which upheld that decision[43] dictated a structure of decision-making that an arbitrator is bound to follow in every case where a worker's claim of psychiatric or psychological injury is based wholly or partly on a worker's claimed perception of the cause of injury.[44] That conclusion is not challenged. Nor, in our view, could it be.
[43] Department of Education v Azmitia [2015] WASCA 246.
[44] Primary reasons [41].
Further, the judge observed that Azmitia could be distinguished on its facts. In that case, although the arbitrator had made a finding that the worker lacked credibility, he allowed the claim on the basis that there was objective evidence to establish that the worker's employment had contributed to her injury to a significant degree, unlike the present case. Also unlike the present case, the worker in Azmitia sought immediate medical attention following the incident the subject of her claim.[45] Moreover, the objective evidence did not support Ms Anderson's perception that her mental health issues were related to her employment.[46]
[45] Primary reasons [42] - [43].
[46] Primary reasons [43].
The judge concluded:[47]
It is correct that the arbitrator did not determine that [Ms Anderson] suffered an injury within the meaning of s 5 of the Act. The fact that he did not make specific reference to what her condition was and whether that fitted within the definition of s 5(a) or s 5(d) of the Act is of no consequence. What was important was the finding that - whatever condition [Ms Anderson] suffered - it was not a condition which was caused by her employment or to which her employment made a significant contribution.
…
[A]lthough the arbitrator may not have expressly said so, it was plain that the arbitrator had concluded that [Ms Anderson] did not suffer an 'injury' within the meaning of s 5(c) of the Act.
[47] Primary reasons [44], [49].
The judge also dealt with grounds 5 and 6 together. Those grounds contended that the arbitrator should have found that Ms Anderson's psychiatric condition was PTSD or, in the alternative, should have made a finding as to the nature of Ms Anderson's psychiatric condition.
In the judge's view, the arbitrator provided sufficient reasons for rejecting a conclusion that Ms Anderson's psychiatric problems were related to the work incident and therefore did not amount to an 'injury' within the meaning of s 5 of the Act.[48] Her Honour said:[49]
Whilst the evidence of Dr Claassen and Dr Bassett might support a finding that [Ms Anderson] had PTSD, as I have explained, the arbitrator was entitled to conclude the factual basis for their opinion was not established. If the factual basis for their opinions was not established then the arbitrator was justified in rejecting them. There was no other evidence which would have permitted the arbitrator to conclude that [Ms Anderson] suffered PTSD. The arbitrator was entitled to prefer the evidence of Dr Piirto whose opinion was that [Ms Anderson] did not suffer PTSD related to her employment or at all. If there was no psychiatric condition caused by her employment or to which her employment was causally related, there could be no 'injury' within the meaning of s 5 of the Act.
[48] Primary reasons [115].
[49] Primary reasons [116].
Having found that none of the grounds had been made out, the judge dismissed Ms Anderson's appeal.

Ground of appeal

Ms Anderson appeals against the primary judge's decision on a single ground, contending that the judge failed to properly interpret and apply the definition of 'injury' in s 5 of the Act. The ground is expressed as follows:
1Her Honour Lonsdale DCJ in the Court below, failed to properly interpret and apply the definition of injury in s 5 of the Workers' Compensation Injury Management Act 1981 ('the WCIMA') in coming to the conclusion that the injury suffered by the appellant worker was not:
a)a personal injury by accident arising out of or in the course of employment, or whilst the worker was acting under the employer's instructions, so as to fall within paragraph (a) of the definition of injury in s 5 of the WCIMA; and/or
b)a disease contracted by a worker in the course of his or her employment at or away from his or her place of employment and to which the employment was a contributing factor and contributed to a significant degree, so as to fall within paragraph (c) and/or paragraph (d) of the definition of injury in s 5 of the WCIMA;
Particulars
i.Her Honour failed to consider at all whether the appellant suffered an injury as defined in s 5(a) of the WCIMA (paragraph 4 of the reasons).
ii.Her Honour failed to properly determine whether the appellant had contracted a disease as contemplated by s 5(c) and/or s 5(d) of the WCIMA by failing to take into account, and by failing to apply to the evidence, the relevant factors contained within s 5(5) of the WCIMA.
iii.As a consequence of particular (ii) above, Her Honour failed to conclude that the Learned Arbitrator's failure to take into account the relevant factors contained within s 5(5) of the WCIMA gave rise to an error of law.
iv.Whilst the Learned Arbitrator accepted that the Appellant was suffering from a psychiatric condition (Reasons for Decision of the Learned Arbitrator; para 20), Her Honour failed to identify that the question for determination by the Learned Arbitrator was whether or not the appellant's employment with the respondent was a significant, contributing factor to the contraction of the psychiatric condition.
v.Further to particular (iv) above, Her Honour erred in concluding that given the Learned Arbitrator found that the appellant was not suffering from PTSD then it followed that the appellant did not suffer from a psychiatric condition that was caused by her employment (Reasons for Decision of Her Honour; para 116).
As can be seen, the ground has two distinct limbs.
The first limb of the ground complains that the primary judge failed to consider (at all) whether Ms Anderson suffered a 'personal injury by accident' within the meaning of s 5(1)(a) of the Act.
The second limb of the ground complains that, in considering whether Ms Anderson suffered a 'disease' within the meaning of s 5(1)(c) or (d) of the Act, the primary judge:
(1)like the arbitrator, failed to take into account the mandatory factors contained in s 5(5) of the Act;
(2)failed to identify that the relevant question was whether Ms Anderson's employment was a significant contributing factor to the contraction of her psychiatric condition; and
(3)having found that Ms Anderson was not suffering from PTSD, erred in concluding that it followed that Ms Anderson did not suffer from a psychiatric condition caused by her employment.

Leave to appeal

Ms Anderson requires leave to appeal from the decision of the primary judge. Section 254 of the Act provides that an appeal of this kind must relate to a question of law and leave to appeal must be obtained from this court.
This court's power to grant leave to appeal is not restricted or qualified except that the appeal must relate to a question of law. Leave to appeal should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave.[50] Among the matters relevant to whether that is so will be whether the decision was wrong or attended with sufficient doubt as to justify leave, and whether substantial injustice would be done by leaving the decision unreversed.[51]
[50] Napier v BHP Billiton [73]; Regis Aged Care Pty Ltd v Hunter [2018] WASCA 50 [40].
[51] Johnson v Denwest Nominees Pty Ltd [2017] WASCA 200 [31]; Regis Aged Care v Hunter [40].

The appellant's submissions and the disposition of the appeal

General

In her written submissions, Ms Anderson makes a series of assertions by reference to particular evidence, not to findings.[52] This court's function in an appeal under the Act is not to make findings of fact. Given the nature of, and ground of, the appeal to this court, assertions by reference to the evidence, rather than by reference to the primary court's findings of fact, do not assist in the resolution of the appeal. At the risk of stating the obvious, an appellant's outline of the facts should be done by reference to the facts found by the arbitrator (and, to the extent the judge makes any findings on the basis of evidence admitted under s 247(6) of the Act, by the judge), identifying any specific findings the subject of challenge in the appeal.

The first limb of the ground: 'injury' under s 5(1)(a) of the Act

[52] Appellant's submissions [15] - [25].

In oral submissions, Ms Anderson did not develop, or refer to, this limb in the ground of appeal.
Ms Anderson contends that a psychiatric condition should be considered a 'personal injury by accident' within the meaning of s 5(1)(a) of the Act.[53] Ms Anderson submits that the judge failed to consider s 5(1)(a) of the Act at all,[54] so that her Honour never determined whether Ms Anderson's psychiatric condition arose 'out of or in the course of [her] employment'.[55] In circumstances where each of the limbs of the definition of 'injury' under s 5(1) must be considered in order to determine whether an 'injury' has occurred, the judge's failure to consider s 5(1)(a) amounted to an error of law.[56]
[53] Appellant's submissions [57], [60], relying on the observations of the High Court in Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468 [45] - [48], [76].
[54] Appellant's submissions [55] - [56], [66].
[55] Appellant's submissions [64].
[56] Appellant's submissions [65] - [66].
Given that the arbitrator rejected the evidence upon which Ms Anderson's claim was founded, it was not necessary for the arbitrator to go on to distinctly determine the questions identified in [55] above. We adopt the following conclusions of the primary judge:[57]
It is correct that the arbitrator did not determine that [Ms Anderson] suffered an injury within the meaning of s 5 of the Act. The fact that he did not make specific reference to what her condition was and whether that fitted within the definition of s 5(a) or s 5(d) of the Act is of no consequence. What was important was the finding that - whatever condition [Ms Anderson] suffered - it was not a condition which was caused by her employment or to which her employment made a significant contribution.

The second limb of the ground: 'disease' under s 5(1)(c) or (d) of the Act

[57] Primary reasons [44].

Under the second limb of the ground, Ms Anderson alleges three separate, but related, errors of law. The three alleged errors are as follows:
(1)Having accepted that it was not in dispute that Ms Anderson was suffering from a psychiatric condition, the 'true question' for the arbitrator was whether the employment was a significant contributing factor to the contraction, or recurrence, aggravation or acceleration, of her condition. The arbitrator's failure to identify this, and the judge's failure to identify the arbitrator's error in this regard, amounted to an error of law.[58]
(2)To determine whether the employment was a significant contributing factor to the disease, the arbitrator had to take into account the factors in s 5(5) of the Act. By failing to do so, the arbitrator and the judge erred in law.[59]
(3)It did not follow from the conclusion that Ms Anderson was not suffering from PTSD that there was no psychiatric condition caused by her employment. Having accepted that it was not in dispute that she was suffering from a psychiatric condition, and given that the psychiatrists diagnosed her with other depressive disorders, the arbitrator still had to go on to consider whether her employment was a significant contributing factor to the contraction, or recurrence, aggravation or acceleration, of the condition. The judge's acceptance of the arbitrator's error in this regard reveals 'fundamental' error.[60]
[58] Appellant's submissions [74], [81].
[59] Appellant's submissions [68] - [74], [82] - [83].
[60] Appellant's submissions [73], [75] - [81].
Ms Anderson submits that, had the correct method been followed and applied to the totality of the evidence, the arbitrator would have found in her favour.[61]
[61] Appellant's submissions [84].
As explained in more detail below, Ms Anderson's case before the arbitrator relied critically upon the evidence of Dr Claassen and Dr Bassett to establish the connection between her employment and her psychiatric condition. The rejection of that evidence was fatal to Ms Anderson's claim. In those circumstances, the submissions in [57] and [58] above are entirely answered by the judge's conclusion on grounds 5 and 6, as follows:[62]
Whilst the evidence of Dr Claassen and Dr Bassett might support a finding that [Ms Anderson] had PTSD, as I have explained, the arbitrator was entitled to conclude the factual basis for their opinion was not established. If the factual basis for their opinions was not established then the arbitrator was justified in rejecting them. There was no other evidence which would have permitted the arbitrator to conclude that [Ms Anderson] suffered PTSD. The arbitrator was entitled to prefer the evidence of Dr Piirto whose opinion was that [Ms Anderson] did not suffer PTSD related to her employment or at all. If there was no psychiatric condition caused by her employment or to which her employment was causally related, there could be no 'injury' within the meaning of s 5 of the Act.
[62] Primary reasons [116].

In oral submissions, Ms Anderson developed these contentions in a manner not reflected in the written submissions. She developed a case based entirely on the evidence of Dr Piirto. Ms Anderson submits that:
(1)The arbitrator erred in failing to:[63]
(a)find that Dr Piirto's evidence established that Ms Anderson suffered from a psychiatric condition, namely an unspecified anxiety disorder, a depressive disorder or a major depressive disorder; and
(b)determine, by reference to the factors set out in s 5(5) of the Act, whether Ms Anderson's employment contributed to a significant degree to her psychiatric condition.
(2)The primary judge erred in not so finding.[64]
(3)Although Ms Anderson did not put to the arbitrator that if he rejected the evidence of Dr Claassen and Dr Bassett, he should find for Ms Anderson on the basis of Dr Piirto's evidence,[65] the nature of the arbitral process under the Act means that it was 'incumbent' on the arbitrator to consider and determine the issues raised in (1)(a) and (b) above.[66]
(4)Although it was not put to the primary judge that the arbitrator had erred in the manner outlined in (1) above, the judge erred in not so finding.[67]
[63] Appeal ts 17, 18, 20, 22, 28.
[64] Appeal ts 22.
[65] Appeal ts 25, 33.
[66] Appeal ts 20, 25 - 26, 30 - 31.
[67] Appeal ts 26 - 27, 29.
Ms Anderson properly concedes that she did not invite the arbitrator to reason in the manner outlined in (1) above, and did not contend before the primary judge that the arbitrator had erred in failing to do so.[68] In our view, those facts give rise to three reasons why the appeal must fail. First, the arbitrator cannot be said to have erred in failing to consider something that had not been raised before him. Secondly, the same is true of the primary judge. Thirdly, Ms Anderson should not be permitted to raise a new point on appeal in circumstances where, had it been raised, different or additional evidence might have been led in response to it. We proceed to explain these reasons in more detail.

The arbitrator did not err

[68] Appeal ts 25, 26.

Before the arbitrator, in both written and oral submissions, Ms Anderson relied entirely on the evidence of the doctors she called, especially Dr Claassen and Dr Bassett. Her written closing submissions included the following:[69]
11.The applicant's treating psychiatrist Dr J Claassen diagnosed the applicant as suffering a Post‑Traumatic Stress Disorder at his first assessment of her.
12.Similarly, Dr Guest diagnosed the applicant with Post‑Traumatic Stress Disorder.
13.Dr Claassen in his report to the First Respondent's insurer, set out the relevant criteria for the diagnosis of Post‑Traumatic Stress Disorder, and explained that the applicant met the full range of those criteria.
14.Further, Dr D Bassett Consultant Psychiatrist in his report to the First Respondent, having set out a full history as taken from the applicant, also diagnosed Post‑Traumatic Stress Disorder, with residual elements of a Major Depressive Disorder. Dr Bassett described the Applicant's Post‑Traumatic Stress Disorder as chronic.
15.All doctors referred to above link their diagnoses to the 'index incident', that occurred on 4 and 5 May 2014.
16.To the extent Dr H Piirto provides the Second Respondent with an alternative diagnosis, the applicant submits that should be entirely rejected as being without substance, including with respect to the facts necessary to ground such a contention, which facts cannot be held to be proved on the testimony given by the worker including under cross‑examination. (emphasis added, references omitted)
[69] BAB 142 - 143.
In oral submissions to the arbitrator, Ms Anderson reiterated that, to the extent Dr Piirto provided an alternative diagnosis, it 'should be entirely rejected as being without substance'.[70] She later submitted that Dr Piirto's evidence did not 'relevantly disturb the evidence of the other doctors'.[71]
[70] Arbitration ts 261 - 262.
[71] Arbitration ts 264.
In summary, Ms Anderson's case before the arbitrator relied entirely on the evidence of Dr Claassen and Dr Bassett. Far from relying on the evidence of Dr Piirto, Ms Anderson invited its rejection. Ms Anderson did not put, as an alternative contention, that if the arbitrator were to accept Dr Piirto's evidence, he should nevertheless find for Ms Anderson. Of course, any such submission would need to have been developed by detailed reference to particular parts of Dr Piirto's report.
In these circumstances, the arbitrator did not err in the manner alleged by Ms Anderson. Contrary to her submissions, it was not incumbent upon the arbitrator to consider and determine a case that had not been put. Indeed, had the arbitrator done so, the respondents would justifiably have complained of a breach of the requirements of procedural fairness.
Ms Anderson said little to explain her assertion that it was incumbent upon the arbitrator to proceed in the fashion already explained. She referred to s 188 of the Act, by which the arbitrator is not bound by the rules of evidence or of pleading and should act without regard to technicalities.[72]
[72] Appeal ts 20, 30.
In our view, nothing in s 188 of the Act, or in the nature of the arbitration process prescribed by the Act and its rules, provides any plausible basis for Ms Anderson's assertion. Section 188 of the Act provides, so far as is relevant, as follows:
(1)An arbitrator is bound by rules of natural justice except to the extent that this Act authorises, whether expressly or by implication, a departure from those rules.
(2)The Evidence Act 1906 does not apply to proceedings before an arbitrator and an arbitrator -
(a)is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the arbitration rules make them apply; and
(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)An arbitrator may inform himself on any matter as the arbitrator thinks fit.
The arbitrator's obligation to act 'according to equity, good conscience and the substantial merits of the case' does not require the arbitrator to consider a basis for finding for a worker (or employer) that was substantially outside of the case put to the arbitrator by that party. The obligation to act according to the substantial merits of the case requires identification of what the case comprises. The case comprises the claims made by the worker and the employer's responses to those claims. It does not encompass a claim not made by the worker. Nor does it encompass an evidentiary basis for a claim substantially different from the basis advanced by the worker.
This view of the effect of s 188(2) of the Act is supported by well‑established principles identifying the purpose of statutory provisions of this kind. Such provisions:[73]
are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals.
Ms Anderson's argument does not sit easily with this purpose. Her argument asserts that an arbitrator is obliged to do something that a court would not be required to do, whereas the purpose of s 188(2) is to give the arbitrator greater freedom than that enjoyed by a court.
[73] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 [49]. See also Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227; (2013) 45 WAR 446 [61]; Townsville City Council v Chief Executive, Department of Main Roads [2005] QCA 226; [2006] 1 Qd R 77 [40] ‑ [41].
The arbitrator is bound by the laws of procedural fairness, except to the extent the Act authorises a departure from those requirements.[74] Parties to the arbitration are bound by the manner in which they formulate their case. This is not a 'technicality' to be disregarded by, or rule of evidence or procedure not binding upon, an arbitrator. It is a fundamental and essential element of procedural fairness. Nothing in the Act permits the arbitrator to determine a case on a basis not articulated by any party without affording the losing party an opportunity to respond to that case. Courts are not required to do more than decide the issues raised by the cases presented to the court by the parties. Similarly, the arbitrator is not required to do more than that.
[74] Section 188(1) of the Act.
Nothing in the Act or the rules requires an arbitrator to consider and determine a case not put by any party.
For all these reasons, the arbitrator did not err in the manner contended by Ms Anderson.

The primary judge did not err

As already noted, Ms Anderson did not submit to the primary judge that the arbitrator erred in failing to consider whether, or find that, Dr Piirto's evidence established that Ms Anderson suffered from a psychiatric condition to which her employment significantly contributed.
The grounds of appeal to the District Court are set out at [34] above. Ground 6 was the only ground that may have been capable of encompassing this submission. No such submission was made in support of ground 6. Ms Anderson's written submissions dealt with grounds 1, 2, 5 and 6 compendiously. She advanced six paragraphs of submissions in support of those grounds. Before the primary judge, counsel for Ms Anderson (who was not counsel on the appeal to this court) made very few submissions in support of ground 6.[75] In support of grounds 5 and 6, counsel submitted that there was 'no evidence that there was not [PTSD]'.[76]
[75] See ts 116 - 120.
[76] ts 117.
Like her case before the arbitrator, Ms Anderson's case before the primary judge relied on the evidence of Dr Claassen and Dr Bassett. She submitted that Dr Piirto's evidence did not preclude a finding of injury based upon the psychiatric evidence of Dr Claassen and Dr Bassett.[77] Such a submission is very different from a contention that, even if her primary case - relying on Dr Claassen and Dr Bassett - was rejected, the arbitrator erred in failing to consider a case based on the evidence of Dr Piirto.
[77] ts 34 - 35, 57, 124 - 125.
In the course of oral argument in the District Court, the primary judge put to Ms Anderson's counsel, in effect, that the issue of credibility was vital in the arbitration because Ms Anderson's case depended upon acceptance of her evidence and the medical expert opinions of Dr Claassen and Dr Bassett, whose evidence was based on the history provided by Ms Anderson. In response to questions along those lines, Ms Anderson's counsel submitted, variously, that the arbitrator:
(1)gave excessive weight to, and was distracted by, questions of credibility;[78]
(2)failed to consider and determine whether Ms Anderson had suffered a personal injury by accident;[79] and
(3)failed to follow the process he was required to follow, being the decision-making structure set out in McCann DCJ's decision in Azmitia.[80]
[78] ts 26, 36, 122.
[79] ts 25 - 26.
[80] ts 122.
For present purposes, what is significant is what counsel did not say. Had the case advanced before this court been advanced before the primary judge, the response to the judge's questions would have been to the following effect. Credibility was not critical because, even if the evidence of Dr Claassen and Dr Bassett is rejected, Dr Piirto's evidence supports a finding in favour of Ms Anderson. No submission to this effect was ever made.
The ground asserts that the primary judge erred in failing to 'properly interpret and apply' the definition of 'injury' in s 5 of the Act. Ms Anderson accepts that she cannot point to any error of interpretation on the part of the primary judge.[81] Nor was there any error in the judge's application of the definition of 'injury'. The judge did not err in failing to apply the Act to a case that had not been put to the arbitrator and had not been put to her Honour. Indeed, had such a contention been put to the primary judge, it should have been rejected for the reasons given in [62] ‑ [72] above and for the additional reasons under the next heading.

Ms Anderson should not be permitted to raise a new point on appeal

[81] Appeal ts 27.

Ms Anderson is bound by the conduct of her case at both levels below. Other than in the most exceptional circumstances, it is contrary to principle to allow a party, after a case has been decided against her, to raise a new argument which, whether deliberately or through inadvertence, she failed to put during the trial when she had an opportunity to do so.[82] A point cannot be raised for the first time on appeal if it could possibly have been met by calling evidence below.[83] In Whisprun Pty Ltd v Dixon, Gleeson CJ, McHugh and Gummow JJ explained the rationale for these principles:[84]
It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action. Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs. (citations omitted)
[82] University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, 483; Saldanha v City of Belmont [2018] WASCA 7 [123].
[83] Water Board v Moustakas (1988) 180 CLR 491, 497; Saldanha v City of Belmont [123].
[84] Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 [51].
A point may be new even though it is within the pleadings or particulars. The pleadings and particulars are not conclusive; to determine whether a party is raising a new point on appeal, it is 'necessary to look to the actual conduct of the proceedings'.[85] In Whisprun Pty Ltd v Dixon, Gleeson CJ, McHugh and Gummow JJ illustrated this point by reference to Water Board v Moustakas. In Water Board v Moustakas:[86]
[T]he plaintiff's case at trial had been that his employer was negligent in failing to prevent traffic from crossing in to the lane in which he was working. On appeal, the Court of Appeal of New South Wales allowed the plaintiff to raise a case that the employer was negligent in failing to provide a barrier to prevent the plaintiff from straying into the adjoining lane. This Court held that, although this alternative case was within the particulars, it had not been the plaintiff's case at the trial and the Court of Appeal had erred in allowing it to be raised on appeal.
[85] Water Board v Moustakas (497); Whisprun Pty Ltd v Dixon [52].
[86] Whisprun Pty Ltd v Dixon [52].
Thus, the fact that Ms Anderson's argument to this court could perhaps have been encompassed in ground 6 of her appeal to the District Court does not control whether she is raising a new point on appeal. For the reasons already given, and as Ms Anderson ultimately conceded,[87] she seeks to run a new case on appeal. Indeed, the case Ms Anderson is seeking to run is doubly new: it differs from her case at the arbitration and it differs from her case before the primary judge.
[87] Appeal ts 43.
Ms Anderson's new case could possibly have been met by additional or different evidence at the arbitration, whether from Dr Piirto or other medical experts.
In our opinion, it would be contrary to the interests of justice to permit Ms Anderson to raise the new point of appeal which she seeks to advance by the submissions set out at [60] above.

Conclusion

For the above reasons, the appeal falls well short of having sufficient merit to warrant a grant of leave. We would make orders to the following effect:
(1)Leave to appeal is refused.
(2)The appeal is dismissed.
We would hear from the parties as to the costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SL
Associate to the Honourable Justice Beech
7 APRIL 2020