Cessnock City Council v Wilson - [2022] NSWPICPD 46

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Cessnock City Council v Wilson [2022] NSWPICPD 46
APPELLANT:	Cessnock City Council
RESPONDENT:	Troy Wilson
INSURER:	StateCover Mutual Limited
FILE NUMBER:	A1-W2472/21
PRESIDENTIAL MEMBER:	Acting Deputy President Kylie Nomchong SC
DATE OF APPEAL DECISION:	1 December 2022
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 2 December 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – injury – reliability of the evidence – reliability of a treating doctor’s clinical notes – the drawing of inferences – Jones v Dunkel [1959] HCA 8 discussed – Amaca Pty Ltd (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151 considered and applied – procedural fairness – whether there is error in not dealing with a submission concerning whether a Jones v Dunkel inference should be drawn
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr J Catsanos SC, counsel
Bartier Perry Lawyers
Respondent:
Mr L Morgan, counsel
Carroll & O’Dea Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr P Young
DATE OF Member’s DECISION:	2 December 2021

INTRODUCTION

On 2 December 2021, the Member determined that Troy Wilson (the respondent to the appeal) suffered an injury to his right hip and right leg in the course of employment on 17 June 2020 whilst getting out of a truck. As a result, the Member made awards for weekly payments pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act) and an award for medical expenses pursuant to s 60 of the 1987 Act.[1] The proceedings before the Member involved cross-examination of the respondent worker.
[1] Wilson v Cessnock City Council [2021] NSWPIC 497 (the reasons).
The respondent’s employer, Cessnock City Council (the appellant), has appealed that determination. Although there are three grounds of appeal, they are all directed to the finding that the respondent was injured during the course of his employment. Those grounds are:
(a)    the Member made an error of fact in determining that the respondent had suffered an injury during the course of his employment on 17 June 2020 (Ground One);
(b)    the Member made an error of fact in failing to draw a Jones v Dunkel[2] inference because the respondent did not call evidence from his treating general practitioner, Dr Wang; and an error of law because the Member failed to consider the appellant’s argument on the Jones v Dunkel point (Ground Two), and
(c)    by reason of the Member’s analysis of Dr Wang’s clinical notes and because the Member did not provide the appellant with procedural fairness as to the weight the Member was going to put on an incorrect entry in those clinical notes, the Member engaged in an error of fact (Ground Three).
[2] [1959] HCA 8 (Jones v Dunkel).
There is no challenge to the findings of incapacity or to the finding that medical expenses were reasonably necessary, including hip replacement surgery.
As the Court of Appeal held recently in Iqbal v Hotel Operation Solutions Pty Ltd,[3] by reason of s 352(5) of the Personal Injury Commission Act 2020 (the 2020 Act) the nature of an appeal is limited to a determination of whether the decision was affected by any error of fact, law or discretion. The appeal is not a review or new hearing. If the basis of the appeal is an alleged error of fact, the appellant must establish not merely a preference for a different view of the evidence, but an error in the fact-finding exercise undertaken by the Member. There can be no appellate intervention without a finding that there has been error.
[3] [2022] NSWCA 138, [11].
The nature of an appeal is described by Roche DP in Raulston v Toll Pty Ltd.[4] In that matter, the general principles applicable to appeals under s 352 were helpfully summarised, including that, by reference to Whiteley Muir & Zwanenberg Ltd v Kerr,[5] whilst an Arbitrator may have preferred one view of the primary facts to another as being more probable, that finding may only be disturbed by a Presidential member if “other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong”. Further, Roche DP cited the decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd[6] which is dealt with in more detail later in this decision.
[4] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[5] (1966) 39 ALJR 505 (Whiteley Muir), 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227).
[6] [2001] FCA 1833 (Owston Nominees) (Drummond and Mansfield JJ agreeing).
In this matter, the Member had the advantage of seeing the respondent in the ‘witness box’, being tested on his evidence about the injury and the information he provided to his treating doctor.

ON THE PAPERS

I have read all of the material in this matter including the written submissions of both parties, the transcript, the clinical notes and the medical reports. I have read and considered the Member’s reasons.
Pursuant to s 52(3) of the 2020 Act, I am satisfied that the materials, pleadings and submissions provided to me are sufficient for the Commission to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

THE EVIDENCE

The respondent was employed by the appellant as a council worker in 2015 and as at 2020 was a team leader in the maintenance section.
The respondent’s evidence was that on 17 June 2020, as he was getting down from the cabin of a council truck, he slipped and fell, landing heavily on his leg and then fell to the ground.[7] Variations of that account were given over time and they are discussed later. There were no witnesses. The respondent stated that he did not report the injury to the appellant for two reasons. The first was that he thought that he had simply sprained a muscle and so he took a Panadol and kept working. The second was that he did not want to “go on compo” and just wanted to keep working.[8]
[7] Respondent’s statement, 11 March 2021, [2].
[8] Transcript of arbitration hearing, 31 August 2021 (T), T 48.6.
On 13 August 2020, the respondent completed an incident report form and described the incident as:
“As I stepped out of the truck using my 3 points of contact, I twisted my leg and fell to the ground. I found it difficult to put any weight on my right leg. Thinking it was a pulled muscle I thought the pain would go away. So I took some Panadol and continued with my work.”[9]
[9] Reply to Application to Resolve a Dispute (Reply), p 4.
The respondent’s treating general practitioner is Dr Yang Wang of Cessnock. It is the clinical records of Dr Wang that provide the basis of the appellant’s contention that the respondent’s account of the injury should not be accepted and therefore, that it should have been found that the respondent did not suffer an injury during the course of his employment.
In Dr Wang’s clinical notes, the first time that the respondent’s complaint of pain in his right hip is recorded is from a consultation on 28 July 2020. That record states:
“right hip pain for 6 wks, nil obvious injury, woke up 6 wks ago with pain, dull ache.”[10]
[10] Clinical records of Dr Wang, Application to Resolve a Dispute (ARD), p 110.
The respondent had consulted Dr Wang on two prior occasions (after the date of the alleged accident) on 14 and 16 July 2020 but Dr Wang’s clinical notes do not contain any reference to the respondent complaining of right hip pain during those consultations.
The respondent, on the other hand, gave evidence that he believed he had raised his hip pain with Dr Wang on 14 July 2020 and that Dr Wang told him it was just a pulled muscle.[11] Further, although the respondent was less clear on this point, he stated that he also told Dr Wang that he slipped out of the truck and fell to the ground on that date.[12]
[11] T 54.5–8, 58.31–32.
[12] T 62.
An interesting feature of the cross-examination was that the respondent denied that he had presented on 14 July 2020 complaining that he had suffered a chest/lower rib injury at work the previous Friday. The respondent stated that the only time he remembered being hurt in the chest was an injury with a crowbar in July 2019, a year earlier.[13] The respondent said (repeatedly) that he had presented with pleurisy in July 2020,[14] not a work related chest injury.
[13] T 51.26–52.20.
[14] T 54.5–56.27, 59.10–60.23.
Asked whether he had repeated his complaint of hip pain on 16 July 2020, the respondent stated that he did not think he would have because it had only been two days since Dr Wang had told him it was a pulled muscle, and the respondent would not have expected it to have healed within two days.[15]
[15] T 59.18–60.15.
Dr Wang issued two medical certificates for the respondent’s absence from work between 14 and 17 July 2020.[16] These certificates did not state the reason for the absence.
[16] Reply, pp 8–9.
On 28 July 2020, after the respondent had complained of right hip pain, Dr Wang referred the respondent for an ultrasound and recommended analgesia, ice and rest. The respondent returned to Dr Wang on 31 July and on 7 August 2020, following up on various referrals after which Dr Wang diagnosed a small, undetectable muscle tear.
Dr Wang issued three further medical certificates (which were not SIRA certificates of capacity/certificates of fitness) for the respondent’s absence from work between 28 July and 14 August 2020.[17] These medical certificates again did not specify the condition being treated by the doctor.
[17] Reply, pp 10–12.
The clinical notes for 7 August 2020 record, amongst other things, “nil injury”.[18]
[18] ARD, p 112.
On 13 August 2020, Dr Wang’s clinical notes state:
“further detailed tale to Troy [sic], he revealed history, this maybe work related injury, as on 29/06/2020 stepped out of the truck and twisted R hip and felt pain, couldn’t wgt bearing [sic], and took Panadol and be back to work, and felt pain always there, but didn’t take much notice, and thinks this is pulled muscle.”[19]
[19] ARD, p 113.
The respondent was cross-examined on multiple occasions as to when he informed Dr Wang about his injury and on every occasion, the respondent gave evidence that he thought he had told Dr Wang about the injury to his right hip on or about 14 July 2020,[20] and suggested that Dr Wang might have “got his wires crossed” about how the respondent injured himself.[21] The respondent rejected the proposition that he was lying or that he was trying to bolster his case.[22]
[20] T 60, 73, 74, 76.
[21] T 66.4–5.
[22] T 63–64, 70.
When cross-examined as to why Dr Wang issued non-“WorkCover” medical certificates for time off work after the consultations on 28 and 31 July 2020 and 7 August 2020, the respondent gave evidence that, because he thought it was just a pulled muscle, he told Dr Wang he did not want to go on workers compensation.[23]
[23] T 68.19–27, 72.17–34.
In referring to the other evidence below, I do not refer to evidence concerning the respondent’s symptoms and disabilities nor to opinions as to treatment options as these are not in issue in this appeal. I focus on the evidence concerning the alleged accident on 17 June 2020.

Lay evidence

Ms Kerry Wilson, the respondent’s mother, Mr Warren Wilson, the respondent’s father, and Ms Jasmine Ryan, the respondent’s sister, each provided a signed statement[24] which disclosed that the respondent did not exhibit any signs of limping nor did he complain of pain prior to 17 June 2020. Ms and Mr Wilson and Ms Ryan state that the onset of symptoms began after the respondent fell/slipped out of a truck and landed on his right leg. However, it is not stated if the respondent told them about the injury contemporaneously or later. None of these witnesses were required for cross-examination.
[24] Statement of Kerry Wilson dated 26 November 2020, ARD, pp 3–4; statement of Warren Wilson dated 26 November 2020, ARD, pp 5–6; statement of Jasmine Ryan dated 26 November 2020, ARD, pp 7–8.

Dr Wang

On 19 August 2020, the appellant sent a letter to Dr Wang seeking information about the respondent. The form contains inconsistencies and appears to have been used on a “cut and paste” basis because although the worker is referred to as “Troy Wilson” in the first section, the subject matter line refers to “Ian Wilson” and the body of the letter refers to “Ian Casnave”. In any event, Dr Wang responded on or about 25 August 2020 and recorded his understanding of how the workplace injury occurred as:
“Stepped out of truck twisted R hip, & couldn’t weight bearing [sic], later felt both hip pain.”[25]
[25] Letter from StateCover Mutual Limited to Dr Wang,19 August 2020, ARD, pp 40–41.
Dr Wang’s clinical notes in relation to the respondent were in evidence. They disclose that the respondent suffered from a range of ailments over the years. Those records include that the respondent presented with injuries to his left foot in 2016 which he did not want to disclose to his employer,[26] an ankle injury that occurred during a weekend walk in 2018,[27] and a chest injury at work from using a crowbar in 2019 which resolved in two days.[28]
[26] ARD, p 81.
[27] ARD, p 94.
[28] ARD, p 103.
The clinical notes also include the entries referable to this matter.
In terms of the reporting of the injury, the following clinical notes are relevant:
(a) on 25 August 2020, Dr Wang recorded that he obtained consent from the respondent to answer the questions in the letter from the insurer,[29] and
(b) on 12 November 2020, in answer to an inquiry from the respondent as to why he recorded the history of complaint of pain on 28 July, Dr Wang recorded “but I told him it’s very common, sometime, some seemingly insignificant injury, which is not noticed and later became a big problem.”[30]
[29] ARD, p 114.
[30] ARD, p 116.
On 7 September 2020, Dr Wang signed a SIRA Certificate of capacity/certificate of fitness in which the date of injury was recorded as 17 June 2020 and the description of the injury is recorded as having occurred when the respondent stepped out of the truck, twisted his right hip and could not weight bear. It records that the respondent took Panadol, went back to work and felt pain always there but did not take much notice as he thought it was a pulled muscle. Dr Wang recorded that the first time the respondent was seen by him for the injury was on 28 July 2020. Dr Wang, in signing the certificate, certified that the information was, to the best of his knowledge, true and correct.[31]
[31] ARD, pp 243–244.

Dr Harbury

Dr Wang referred the respondent to Dr Harbury, orthopaedic surgeon, who examined him on 26 August 2020. Dr Harbury recorded that the respondent informed him that the onset of pain occurred about eight weeks prior when he got out of his truck at work and fell down a step and twisted, causing abrupt onset of pain in the right groin.[32] Dr Harbury, as his treating orthopaedic specialist, examined and treated the respondent on a number of occasions after that. In a report dated 29 April 2021, Dr Harbury noted that after the respondent slipped on some steps getting out of the truck, he struck the ground causing abrupt onset of pain. Dr Harbury opined that the fall on 17 June 2020 rendered symptomatic a previously asymptomatic condition of avascular necrosis of both femoral heads. Dr Harbury diagnosed a subchondral fracture of the right femoral head and opined that it was likely that this occurred together with the oedema in his femoral head as a result of injury on 17 June 2020.[33]
[32] Report of Dr Richard Harbury, 26 August 2020, ARD, pp 32–33.
[33] Report of Dr Richard Harbury, 29 April 2021, ARD, pp 27–28.

Professor Ghabrial

The respondent was also independently examined by Professor Y A E Ghabrial, orthopaedic and spinal surgeon at the request of his solicitors. In his report dated 27 January 2021, Professor Ghabrial reported that the respondent provided a history of slipping as he got out of a truck and landing with a jarring sensation of the right leg, with the leg taking all his weight. Thereafter the respondent developed pain in his right hip. Professor Ghabrial reported that the respondent had been seen by his local medical officer a week after the injury (a matter which the appellant contends is an instance of the respondent being an unreliable historian). Professor Ghabrial opined that the fall caused a fracture where there was pre-existing avascular necrosis.[34]
[34] Report of Professor Ghabrial, 27 January 2021, ARD, pp 24–26.

Professor Cumming

The insurer required the respondent to be assessed by Professor Cumming, orthopaedic surgeon, who provided two reports dated 29 September 2020 and 2 October 2020. The respondent informed Professor Cumming that he had injured his right hip at work on 17 June 2020 whilst getting out of a truck, whereby he twisted his right leg and fell to the ground.
In his 29 September 2020 report, Professor Cumming confirmed that the respondent suffered pre-existing avascular necrosis and noted that because there is bone oedema on the right side, that this was an indication that there may have been a traumatic episode. Later, Professor Cumming stated that if the respondent stated that he fell out of the truck and hit the ground, “then he needs to be given the benefit of the doubt.”[35]
[35] Report of Professor Cumming, 29 September 2020, Reply, p 17.
However, Professor Cumming then undertook an analysis of Dr Wang’s records and took the view that the clinical note of Dr Wang dated 28 July 2020 should be preferred, being that there was an onset of pain when the respondent woke up one morning. Professor Cumming opined that the source of the injury was constitutional bilateral avascular necrosis of the head of the femur, but then concluded “I am unable to state whether the condition is consistent with the stated cause of an injury on 17 June 2020.”[36]
[36] Report of Professor Cumming, 29 September 2020, Reply, p 24.
On a number of occasions, Professor Cumming notes that the respondent told him that he was not good with dates and that he believed that the respondent had difficulties with his memory. Professor Cumming also recorded that the respondent was pleasant and “totally compliant”.
Notwithstanding the opinions expressed above, in his later report dated 2 October 2020, Professor Cumming opined that the notes of Dr Wang ought be accepted and in his view there is less than a 50% chance that the right sided oedema and pain was traumatic. Rather, Professor Cumming was of the opinion that the hip pain was of spontaneous onset.[37]
[37] Report of Professor Cumming, 2 October 2020, Reply, p 30.

Leave records

The appellant’s leave record for the respondent discloses one day of sick leave on 25 June 2020, four days of sick leave from 14 to 17 July 2020, four days of sick leave from 28 to 31 July 2020, four days of annual leave (in lieu of sick leave) from 4 to 7 August 2020 and three days of annual leave (in lieu of sick leave) from 10 to 12 August 2020. As from 6 November 2020, the respondent took lengthy periods of annual leave, long service leave and sick leave.[38]
[38] ARD, p 253, Reply, p 2.

THE MEMBER’S DETERMINATION AND REASONS

In his analysis, the Member posed the following issues for consideration, being (in summary):
(a)    whether the respondent was a reliable historian in relation to the injury;
(b)    the cross-examination of the respondent and the late reporting of the injury;
(c)    varying histories given to medical practitioners – comparing that given to Professor Ghabrial, Dr Harbury, Dr Wang and Professor Cumming, and
(d)    the claim for surgery.

The Member acknowledged that the respondent had given varied descriptions of the alleged injury, but found that the respondent was unaware of the legal significance of words that he used. The Member considered that the respondent was out of his depth for much of the cross-examination but concluded that this was not because the respondent was evasive but rather because of his lack of knowledge and experience in such matters.
The Member identified various parts of the evidence, and in particular the cross-examination of the respondent, as to what information he gave to Dr Wang and to Professor Ghabrial.
The Member undertook a comparison of the manner in which the respondent had conducted himself in relation to a work accident on 9 July 2019 and the accident the subject of these proceedings. In essence, the Member found that the respondent downplayed both events, treating them both as minor injuries, likely to resolve, and therefore unnecessary to report. However, the hip injury in 2020, unlike the 2019 chest injury, did not resolve and it was then that the respondent made a formal notification.
In terms of the respondent’s credibility as a witness, the Member:
(a)    relied on the observations of the demeanour of the respondent in the ‘witness box’ and concluded that he was a stoic individual not inclined to exaggerate or embellish;
(b)    held that the respondent was not evasive, made concessions and answered questions directly and without hesitation;
(c)    acknowledged the respondent’s denials of lying and his affirmation that he was telling the truth, and
(d)    found the respondent’s concession as to his ongoing work capacity to be honest and appropriate.
The Member found that the respondent did not engage in voluntary criticism of Dr Wang but was rather taken to that point in cross-examination.
The report of Professor Ghabrial was examined and the Member noted the following inconsistencies:
(a)    the respondent told Professor Ghabrial that he had consulted his GP within a week of the injury;
(b)    Professor Ghabrial recorded that the injury occurred whilst operating a whipper snipper, although the slipping from the truck in the depot is also referred to, and
(c)    Professor Ghabrial formed the view that the injury (being the fall from the truck) caused a fracture which aggravated pre-existing avascular necrosis in both hips.
The Member noted that Dr Harbury reported that the respondent had given a history of eight weeks of pain in the right groin area, following a fall when he got out of his truck. Dr Harbury reported that the respondent’s previously asymptomatic avascular necrosis was rendered symptomatic by the fall which caused a subchondral fracture of the right femoral head. Following further consultations, Dr Harbury opined that the respondent required total hip replacement.
In relation to Dr Wang’s clinical notes, it is clear that the Member had undertaken a detailed review of them. In his decision, the Member relied on two particular matters:
(a) on two previous occasions in 2016 and 2017, the respondent had complained of injuries but did not want to report the injuries to his employer nor make a workers compensation claim. The Member concluded that the respondent was not eager to make workers compensation claims, and
(b) an entry on 16 December 2016 that was obviously made in relation to another patient, a female to whom Dr Wang had recommended giving up smoking to increase her chance of pregnancy, and incorrectly inserted into the respondent’s records. From this, the Member concluded that Dr Wang’s notes were not always entirely accurate.
The Member found the respondent to be a reliable historian and held that any inconsistencies were readily explained by the respondent’s difficulty in expressing himself and not having legal training. The Member concluded that there was a lack of precision in Dr Wang’s record keeping and held that the proposed hip replacement surgery was reasonably necessary.
The Certificate of Determination issued on 2 December 2021 records the finding of injury on 17 June 2020 and makes awards for weekly payments and medical expenses as follows:
“1. The [respondent] in the course of his employment with the [appellant] on 17 June 2020 suffered injury to his right hip and right leg.
2. Award in favour of the [respondent] in respect of weekly payments of compensation from 28 July 2020 pursuant to section 36 of the Workers Compensation Act 1987 (1987 Act) for a period of 13 weeks at 95% of the [respondent’s] pre-injury average weekly earnings (PIAWE) of $1,340.81 less $312.50 per week namely $1,028.31 per week.
3. Award in favour of the [respondent] in respect of weekly payments of compensation pursuant to section 37 of the 1987 Act from week 14 to date and continuing at 80% of the PIAWE namely $1,129.11 less $312.50 per week namely $816.61 per week.
4. General award in favour of past and future section 60 medical expenses concerning the [respondent’s] right hip and right leg injuries including a declaration pursuant to section 60 (5) that the proposed right hip replacement surgery is reasonably medical treatment resulting from injury of 17 June 2020.”

SUBMISSIONS

The appellant has made detailed submissions in which it identifies the principles in Whiteley Muir and Owston Nominees in relation to an appeal under s 352. In addition, the submissions cited the following passage in Lee v Lee[39] in which the High Court held:
“A court of appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgement to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, in general, an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which having been disputed are established by the findings of the trial judge.”
[39] [2019] HCA 28; 266 CLR 129, 148–149, [55].
The appellant’s submissions then engage in a detailed recitation of Dr Wang’s clinical notes, the evidence of the respondent given in cross-examination and the Member’s reasoning.
The appellant argues that material facts were overlooked or given insufficient weight by the Member, such as to give rise to an error of fact as described in Whiteley Muir.[40] Centrally, the appellant submits that Dr Wang’s clinical notes should have been given primacy over the respondent’s account of the alleged incident on 17 June 2020. The appellant points to inconsistencies in the histories provided by the respondent to various doctors and the evidence of the respondent in cross-examination and submits that the finding by the Member that the respondent was a reliable historian and that there was a lack of precision in Dr Wang’s record keeping, was erroneous.
[40] Whiteley Muir, 506.
The appellant submits that the credit finding made by the Member were “superficial”[41] and were not available because, predominantly, the respondent’s evidence was contrary to the content of the clinical notes. In addition, the appellant submits that the Member’s ability to form a view about the respondent’s evidence was clearly blunted by the audio-visual arrangements and technical difficulties experienced during the course of the hearing.[42]
[41] Appellant’s submissions, [3].
[42] Appellant’s submissions, [25].
The appellant contended below that the divergence in the evidence of the respondent and the content of the clinical notes of Dr Wang could and should have been resolved by the respondent calling Dr Wang to give evidence and, because the respondent did not do so, the Member ought to have concluded that any evidence Dr Wang would have given would not have assisted the respondent’s case, by reference to the principles in Jones v Dunkel.[43] The appellant submits that the Member failed to engage with and address submissions as to a Jones v Dunkel inference.
[43] Jones v Dunkel, 321.
The appellant argues that the Member failed to undertake a sufficient analysis of the key parts of the evidence, in particular the wording of key parts of Dr Wang’s clinical notes.
Finally, the appellant submits that the Member failed to accord the appellant procedural fairness in relation to an obviously incorrect entry in Dr Wang’s clinical notes on which the Member relied to conclude that Dr Wang’s notes are not always accurate.
The appellant seeks an order that the Certificate of Determination be revoked and that there be an award in favour of the appellant (or that the matter be remitted for re-determination by another Member).
In response, insofar as the test in Lee v Lee is concerned, the respondent submits that the appellant employer called no evidence from supervisors with respect to the practice, procedure or discussions regarding the respondent’s injury (or lack thereof) in the workplace. The respondent contends that there was no evidence from the appellant employer with respect to the tasks the respondent had been allocated on the day in question, the vehicle he was driving or whether it was in fact “glaringly improbable” or even unlikely that the respondent could have injured himself in the way in which he alleged.
Further, the respondent submits that the key part of his evidence was that he made no complaint when first injured because he thought it was a strained muscle and that it would resolve. Therefore he did not tell Dr Wang until he was consulting him at a later point in time in relation to another injury. This, submits the respondent, is consistent with his reluctance to report (and claim for) workplace injuries, as was noted in respect of earlier injuries he had received in 2019 and 2020. In this regard, the respondent pointed to his oral evidence, as follows:
“Well, sometimes if they think, you know, it’s just a pulled muscle, or you’ll be all right tomorrow, it saves them doing the paperwork, so they just tell you, just don’t worry about it, just keep an eye on it, if it gets worse, then will report it.”[44]
[44] Respondent’s submissions, [32]; Transcript, p 90.
The respondent submits the worker should be accepted as a witness of truth with respect to the occurrence of injury.
In respect of Ground One of the appeal, the respondent submits that the appeal is no more than a complaint that the Member did not adopt the appellant’s interpretation of the material. The respondent rejects the appellant’s characterisation of the credit finding in favour of the respondent and says that the Member had before him a wide range of evidence of which the Member conducted a proper review. The respondent submits that pre-eminence ought not be given to the recorded entries by Dr Wang but that, in any event, Dr Wang’s notes did record that the respondent gave details of the injury being the fall from the truck on 29 June 2020 in which he twisted his right hip, took a Panadol because he thought it was a pulled muscle.[45]
[45] Respondent’s submissions at [50], Dr Wang’s clinical notes entry 13/08/2020.
Further, the respondent submitted that the appellant’s own expert medical evidence supported in broad terms that the mechanism of injury as described by the respondent was capable of being causative of the pathology revealed. The respondent noted that Professor Cumming opined, that in the context of the respondent’s pre-existing bilateral necrosis, the respondent should be given the benefit of the doubt in relation to the fall from the truck rendering this previously asymptomatic condition, symptomatic.
In relation to Ground Two of the appeal, the respondent contends quite simply that no Jones v Dunkel situation arises because it was equally open to the appellant to call Dr Wang as a witness in its case to explain his practice and recording in his clinical notes.
In relation to Ground Three of the appeal, the respondent submits that the Court of Appeal decisions in Mason v Demasi[46] and Davis v City of Wagga Wagga[47] establish that one cannot expect there to be a rigorous and detailed note taken on every instance a person is seen by a medical practitioner. The respondent submits that the fact that some material may be left out or alternatively downplayed by a patient sitting opposite or other more pressing matters are being dealt with in the mind of the practitioner or the patient, is the whole point of those decisions. As such the respondent says that the analysis by the Member of Dr Wang’s clinical notes and the reference to erroneous entries, do no more than illustrate that point.
[46] [2009] NSWCA 227 (Demasi), [2].
[47] [2004] NSWCA 34, [35].
The respondent contends that the Member’s decision is not affected by error and that the appeal should be dismissed.
In its submissions in reply, the appellant contends that the respondent was not bound to adduce evidence of the alleged incident and submits that the issue is not whether the accident itself is glaringly improbable but rather that, on the evidence before the Member, the finding that the respondent had been injured as alleged, was glaringly improbable.
The appellant submits that the totality of Professor Cumming’s opinions ought be taken into account which, on the appellant’s case, is that there is a compelling alternative which explains the respondent’s symptoms that does not involve trauma from the fall.[48]
[48] Appellant’s submissions in reply, [3]–[5].
The appellant denied that it has placed any ‘gloss’ on the respondent’s evidence and rejects the contention that the cross-examination of the respondent was ‘aggressive and confronting’.
The appellant submits that the audio-visual difficulties blunted the Member’s ability to determine the demeanour of the respondent because of the intrinsic difference of observing someone in person as opposed to the more remote observations that occur with an audio-visual link. More important, submits the appellant, is the contention that the respondent’s demeanour in the ‘witness box’ could not provide an answer to the significant inconsistencies in history injury. The appellant submits that the Member had drawn sweeping conclusions.[49] In particular, the appellant contends that however stoic the respondent was found to be, this could not reconcile the respondent’s account of his injury and the content of Dr Wang’s clinical notes.
[49] Appellant’s submissions in reply, [9].
The appellant submits that there was no reason for it to call Dr Wang because it relied on the content of Dr Wang’s notes which it described as ‘clear and unambiguous’. The appellant contends that the absence of any evidence from Dr Wang was a conspicuous omission and that, at the very least, it created an environment in which it is open for a Jones v Dunkel inference to be drawn.[50]
[50] Appellant’s submissions in reply, [17].
The appellant conceded that the principle to be drawn from Demasi is that “[i]t is clear that as a matter of principle and, with respect as a matter of common-sense, care must be taken when interpreting medical records to take into account the potential for inaccuracy, incompleteness or any other factors which may call the reliability of the record into question.”[51] However, the appellant contends that this does not mean that it is permissible to disregard the content of the clinical notes. The appellant contends that Demasi cannot explain that Dr Wang took no history if he was in fact told of the respondent’s injury earlier, then also misdescribed the onset of pain as having no relationship to the said injury.
[51] Appellant’s submissions in reply, [20].
Finally, the appellant re-iterated that the Member’s reliance on an erroneous entry in Dr Wang’s clinical notes was significant because the Member invoked that entry to come to the conclusion that Dr Wang’s notes are not always entirely accurate.

CONSIDERATION

At its heart, the contest in this matter is between the respondent’s version of the mechanism of injury (falling from a truck to the ground on 17 June 2020) and the content of the clinical notes of Dr Wang, although the appellant also relies on what it says are varying accounts of the injury given by the respondent to other doctors.
The Member identified this contest as the focus of the case and separated it into a number of issues.[52] After a review of the evidence, the Member made his decision predominantly on a credit finding in favour of the respondent.[53]
[52] Reasons, [5(a)].
[53] Reasons, [60]–[61].
In order for the appeal to succeed, I must be persuaded that the Member was in error, as is required by s 352(5) of the 1998 Act. Further, I note the principles as to the approach that needs to be taken to appeals of this kind as summarised by Allsop J (as his Honour then was) in Owston Nominees:[54]
“24. What is error in any given case depends, of course, not only on the evidence, but also on the nature of the findings or conclusions made by the primary judge. The demonstration of error may not be straight-forward where findings or conclusions involve elements of fact, degree, opinion or judgment or when the findings or conclusions in question can be seen as made with the advantage of hearing the evidence in its entirety, presented as it unfolded at the hearing with the opportunity over the course of the hearing and adjournments for reflection and mature contemporaneous consideration and assessment, in particular in a long and complex hearing: see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588 at 619 [90] per Kirby J; Moneywood v Salamon Nominees (2001) 202 CLR 351 at 390 [127] and [128] per Kirby J; Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 180 ALR 655 at [203] and [205] per Branson J and Katz J; and also Khoo Sit Hoh v Lim Than Tong [1912] AC 323, 325; Paterson v Paterson (1953) 89 CLR 212, 221; Powell v Streatham Manor Nursing Home [1935] AC 243; and Warren v Coombes, supra at 538.
25. This is not to elevate ordinary factual findings to the protected position of those based on credit, but it is to make clear, first, the advantages of the trial judge and, secondly, the need for demonstration of error. The inability to identify error may arise in part from the unwillingness of the appeal court to be persuaded that it is in as good a position as the trial judge to deal with the issues, because of the kinds of considerations referred to in [24] above. Or, it may be that the nature of the issue is one such that (though not a discretion) there cannot be said to be truly one correct answer. In such cases the availability of a different view, indeed even perhaps the preference of the appeal court for a different view, may not be alone sufficient: see Zuvela v Cosmarnan Concrete Pty Ltd (1996) 140 ALR 227 at 229-30. In circumstances where, by the nature of the fact or conclusion, only one view is (at least legally) possible (for example, the proper construction of a statute or a clause in a document, where, although, as often said, minds might differ about such matters of construction, there can be but one correct meaning: see generally Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 151-56) the preference of the appeal court for one view would carry with it the conclusion of error. However, other findings and conclusions may be far more easily open to legitimate differences of opinion eg valuation questions, see Fenton Nominees Pty Ltd v Valuer-General (1981) 47 LGRA 71, 73-76.
…
28. … First, the appeal court must make up its own mind on the facts. Secondly, that task can only be done in the light of, and taking into account and weighing, the judgment appealed from. In this process, the advantages of the trial judge may reside in the credibility of witnesses, in which case departure is only justified in circumstances described in Abalos v Australian Postal Commission(1988) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472 and SRA v Earthline, supra. The advantages of the trial judge may be more subtle and imprecise, yet real, not giving rise to a protection of the nature accorded credibility findings, but, nevertheless, being highly relevant to the assessment of the weight to be accorded the views of the trial judge. Thirdly, while the appeal court has a duty to make up its own mind, it does not deal with the case as if trying it at first instance. Rather, in its examination of the material, it accords proper weight to the trial judge’s views. Fourthly, in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”
[54] Owston Nominees, [24]–[25], [28].

Ground One – that the Member erred in finding the worker had suffered injury

The Member found that the respondent suffered injury to his right hip and right leg in the course of his employment on 17 June 2020.[55] The Member reached this decision after he undertook a review of the evidence.[56] The Member then made a credit finding in favour of the respondent to the effect that he was a reliable historian,[57] but went on to acknowledge and address the difficulties with the respondent’s evidence. The Member held:
(a)    inconsistencies in the history given by the respondent were explained by his difficulty in expressing himself and that he was not a lawyer. I take the latter phrase to mean that the Member was referring to the respondent’s lack of legal training and therefore that he had an inability to appreciate the legal significance of the issues;
(b)    the respondent made appropriate concessions, and
(c)    the respondent was disadvantaged by memory but presented as an honest and reliable witness.
[55] Reasons, [69].
[56] Reasons, [15]–[55].
[57] Reasons, [60].
It is true that the finding of reliability as a witness appears to be inconsistent with the disclaimers referred to. However, in my view this is to be treated as no more than a misapplication of language. The Member was indicating that he believed the respondent notwithstanding the inconsistencies in the evidence and his memory problems. Inherently, it must be that the Member concluded that these matters were not of such significance to outweigh his primary finding that the respondent’s version of events as to the date and mechanism of the injury ought be accepted.
As the appellant noted in its submissions, where credit findings play a central role in fact finding, appellate restraint is to be applied unless the findings are “glaringly improbable” or “contrary to compelling inferences”.[58] This is a high bar.
[58] Appellant’s submissions, [13], citing Lee v Lee [2019] HCA 28 (Lee v Lee), [55]. See also Raulston, at [26] and cases cited therein.
The appellant contends that the credit findings in favour of the respondent are foundationally flawed and therefore this is a case where the Member’s findings meet the test in Lee v Lee. The appellant submits that the decision-making of the Member is attended by factual error of the kind identified in Whiteley Muir:
“… that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”[59]
[59] Whiteley Muir, 506.
The appellant contends that the matters recorded by Dr Wang in his clinical notes for the consultation on 13 August 2020 should be disregarded for a number of reasons:
(a)    first, because, if the respondent had genuinely been injured at work, it was traumatic and as such, he would have told Dr Wang on one of the occasions that he had consulted with Dr Wang after the alleged date of injury (17 June 2020) and prior to 13 August 2020;
(b)    second, that the recorded account in Dr Wang’s notes said to have been given by the respondent on 13 August 2020 about falling from the truck is inconsistent with the recorded notes on 28 July 2020 that the respondent awoke with pain and a dull ache in his right hip, and
(c)    third, that the respondent’s accounts of the mechanism of the injury had varied as between the two orthopaedic specialists who had examined him.
Dr Wang’s clinical notes on 28 July 2020 record the onset of pain at six weeks prior to the consultation. That is consistent with the date on which the respondent says he was injured. However, as stated above, the clinical records state that the respondent told Dr Wang he “woke up” with pain and a dull ache. I take the recorded note of “nil obvious injury” to be a reference to the fact that there was no apparent laceration, bruising or other indication of injury on examination. However, there is no reference as to the apparent cause of the onset of pain in that consultation. Nor was there any reference to the fall from the truck.
The respondent gave evidence that he told Dr Wang about the pain in his hip in early July 2020 (probably on 14 July 2020). The Member noted that the respondent denied that he told Dr Wang that he “woke up” with pain.[60] The Member also noted that the respondent’s evidence was that when he first told him, Dr Wang advised it was probably a muscle tear[61] and that he should use Deep Heat or Dencorub.[62]
[60] Reasons, [23].
[61] T 52.17–20.
[62] Reasons, [22].
The appellant submits that Dr Wang’s clinical notes are contemporaneous, unambiguous and legible. On the appellant’s case, the content of Dr Wang’s clinical notes trump the respondent’s evidence that he advised Dr Wang of his injury earlier in time and did not say that he “woke up” with pain. However, it must be accepted that the clinical notes cannot be any more than a summary of each consultation and that they are to be considered by reference to the matters elucidated in Demasi at [2(b)]. For example, the records for the consultation on 13 August 2020 disclose that it lasted for 35 minutes but the notes themselves are quite short. Overall, from the contents of the clinical notes themselves, it was open to the Member to give weight to the respondent’s evidence that “[Dr Wang] doesn’t write down everything that happens every day I’m there”[63] and to accept his evidence that he did not tell Dr Wang that he “woke up” with pain.
[63] T 55.19; reasons, [20].
The respondent was robustly cross-examined and it was put to him on multiple occasions that he was lying about telling Dr Wang about his hip pain and the fall from the truck prior to 13 August 2020. The respondent consistently rejected those propositions and the following extract is illustrative:
“Q.    What I’m suggesting to you, sir, is that as at the 7th of August, the doctor had no idea that you had had a work injury, because you never told him. Is that right?
A.     No, that’s not - he - he knew.
Q.     And I want to suggest to you, sir, you’re not telling the truth about this. What do you say about that?
A.     No it’s not true. Why - why would I go through all this stuff for over a year and a half? Jesus, all I want to do is go back to [work]. I don’t want any of this stuff - like ---
Q.     You understand, sir, that I’m not suggesting to you that you don’t have problems in your right hip. I’m suggesting to you that you never injured it at work. Do you accept that?
A.     No, that’s not true. I had no prior pain until slipping out of the truck. I mean there may have been something there that I did not know about, but I’m saying - what I’m saying is, I didn’t feel any pain until I fell out of the truck that day, and it’s been with me ever since.”[64]
[64] T 71.5–27.
The respondent continued to be cross-examined on this issue but steadfastly rejected the proposition that the first time he told Dr Wang about his right hip pain and injury was on 13 August 2020.
Again, it was put to the respondent that he was lying and the exchange was as follows:
“Q. Right. I want to suggest that’s all made up, sir.
A. No, sir. No, it’s not. Like I said, I didn’t believe it was that bad of an injury to begin with. I was in pain, yes, but I didn’t think that I would need to be off work for a bloody year. So that’s why I had to get the certificate. I was thinking I was going to be healed in a month and be right to go back for work.”[65]
[65] T 77.14–20.
The appellant contends that stoic or not, the lack of any contemporaneous note by Dr Wang and the failure to obtain a SIRA Certificate of capacity/certificate of fitness gives rise to a compelling inference that the respondent did not suffer the injury at work and it is glaringly improbable that he did. The appellant also contends that the credit findings which led the Member to believe the respondent’s version of events were superficial.[66] However, the respondent’s evidence has some weight because the unchallenged evidence was that the respondent had been injured the year before but eschewed making a workers compensation claim because of his belief that the injury was minor. On his evidence, he took the same approach about this injury.[67] As such it is not “glaringly improbable” that the respondent took the same approach when injured on this occasion.
[66] Appellant’s submissions, [29].
[67] T 47–48.
The Member noted that throughout the cross-examination the respondent appeared to be out of his depth, but the Member found that the respondent knew the importance of telling the truth on oath. Further, he found that the respondent had difficulty in expressing himself not because of evasion but because of his lack of knowledge and experience. The Member concluded that in his cross-examination, the respondent made concessions. I have read the transcript and I am of the view that these findings were open and available to the Member.
As noted by the Member, and reflected in the appellant’s submissions,[68] the respondent did not hold fast to any particular date as the date on which he told Dr Wang about the injury.[69] He thought it was at the consultation on 14 July 2020 but was not certain.
[68] Appellant’s submissions, [20].
[69] T 52.
A large part of the appellant’s case is that the respondent should be disbelieved about the injury occurring during the course of employment because of the delay in reporting it to Dr Wang. However, I am of the view it was open and available to the Member to accept the respondent’s evidence that he did in fact report it to Dr Wang on an earlier occasion, even though there was some imprecision about the exact date that he did so. It also axiomatic that a delay in reporting an injury does not necessarily mean that the injury did not occur.
Dr Wang’s notes on 28 July 2020 record the respondent as telling him that the onset of pain was six weeks prior which, though not precisely the time since 17 June 2020, is measurably close and not an unreasonable approximation.
Similarly, during cross-examination about what information he gave to Professor Ghabrial, the respondent was certain about advising him of the mechanism of the injury but less certain as to particular times and dates. The Member commented upon the incorrect history recorded by Professor Ghabrial wherein he said that the respondent had fallen when doing whipper snippering but that was corrected later in the report when Professor Ghabrial set out the mechanism of the injury as given by the respondent that he had slipped when he got out of his truck. The Member also noted that Professor Ghabrial took a history that the respondent continued at work for another six weeks. During cross-examination, the transcript reveals that the respondent did not feel that his days off work for pleurisy were something that he should have mentioned to Professor Ghabrial.
Finally, the respondent gave evidence that he had given honest evidence to the Commission.[70] It was open to the Member to accept that evidence. The Member had the advantage of listening to and watching the respondent’s body language. In my view, that advantage is not displaced or undermined by the fact that the cross-examination was conducted by audio-visual link or the other matters contended for by the appellant.
[70] T 78.21–24.
The Member also referred to the medical evidence that supported the respondent’s version of events. He noted:
(a)    Following radiological investigations, Professor Ghabrial opined that the respondent had pre-existing avascular necrosis in both hips but that the injury had produced a fracture of the head of the femur which resulted in him needing a right total hip replacement. Professor Ghabrial considered that the respondent’s employment was the main contributing factor to his disability.[71]
(b)    Dr Harbury recorded that the respondent had presented with a history of eight weeks of pain on 26 August 2020. That is broadly consistent with the date of injury being 17 June 2020. Dr Harbury’s opinion was that pre-existing asymptomatic avascular necrosis was made symptomatic by the incident on 17 June 2020 whereby he sustained a fracture of the femoral head. Dr Harbury also believed that the employment was the main contributing factor to the aggravation.
(c)    Professor Cumming, who examined the respondent at the request of the insurer, agreed that the respondent suffered from pre-existing avascular necrosis and initially determined that it was likely that his condition was made symptomatic by the incident at work. However, after reviewing Dr Wang’s notes, Professor Cumming fell back from his earlier conclusion and highlighted that causes for bone oedema could be both traumatic and non-traumatic with the effect that the respondent’s injury could have been a spontaneous fracture. That change of opinion was wholly dependent on the content of Dr Wang’s notes. Further, as Professor Cumming quite rightly conceded, the determination of whether there was an injury at work is a legal matter, not a medical one.[72]
[71] Reasons, [41].
[72] Report of Professor Cumming dated 29 September 2020, Reply, p 19.
As such, the preponderance of the medical evidence was that there was a fall which rendered symptomatic the respondent’s pre-existing avascular necrosis. And even though Professor Cumming withdrew from his earlier conclusion, it is notable that he made no comment to the effect that he thought the respondent was lying or exaggerating his claim. Rather he went out of his way to say that the respondent was totally compliant. This supports the Member’s finding that the respondent was an honest witness.
Whilst the Member did not refer to the following evidence in his reasons, he did have the following evidence available to him and it is in conformity with the Member’s conclusion as to the date and mechanism of the injury:
(a) the unchallenged evidence of Ms Kerry Wilson, Mr Warren Wilson and Ms Jasmine Ryan, all of whom stated that the respondent did not exhibit any signs of limping nor did he complain of pain prior to 17 June 2020; and that the onset of symptoms began after the respondent slipped out of a truck and landed on his right leg, and
(b) the SIRA Certificate of capacity/certificate of fitness filled in and signed by Dr Wang on 7 September 2020 in which the description of the injury is recorded as having occurred when the respondent stepped out of the truck, twisted his right hip and couldn’t weight bear. It also records that the respondent took Panadol, went back to work and felt pain always there but did not take much notice as he thought it was a pulled muscle. Dr Wang certified that the information in the certificate was, to the best of his knowledge, true and correct.[73]
[73] ARD, pp 243–244.
As noted above in Owston Nominees, I have considered the evidence before the Member and I have given weight to the advantages held by the Member in his determination of that evidence. As noted above at [55] and [71], the appellant contends that the Member’s ability to judge demeanour was impaired by the technological downsides to a remote hearing. I do not accept that submission. Whilst there were some technical difficulties, this did not impair the cross-examination of the respondent, as is evident by the content of the transcript. The references to the transcript where the alleged difficulties occurred do not reveal that there was anything more than the now ‘usual’ remarks about muting, echoes, background noises and asking if one can hear. There is nothing to indicate that these issues impaired the Member’s ability to appreciate the respondent as he appeared in the ‘witness box’.
Procedure before the Commission is set out at s 43 of the 2020 Act. The rules of evidence do not apply, and the Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. In Onesteel Reinforcing Pty Ltd v Sutton,[74] Allsop P (McColl JA agreeing) held:
“... the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material”.
[74] [2012] NSWCA 282, [2].
This is a matter in which conclusions could have been drawn either way. However, I do not consider that those conclusions were equally open or finely balanced. Allsop J noted in Owston Nominees:
“in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[75]
[75] Owston Nominees, [28], as applied in Raulston at [20].
In my opinion, there was no error in the Member finding that the injury occurred on 17 June 2020 during the course of employment. There was sufficient other evidence to support the credit finding in favour of the respondent.
The alleged error has not been made out, and as a consequence, Ground One fails.

Ground Two – that the Member erred in failing to draw a Jones v Dunkel inference and/or in failing to consider the appellant’s argument on the point

The Member did not address the appellant’s submission below that a Jones v Dunkel inference should be drawn in relation to the absence of evidence from Dr Wang as to whether the respondent had advised him about the pain and dysfunction in his right hip or the fall from the truck at one of the consultations prior to 13 August 2020.
The appellant contends that the failure to draw that inference was an error of fact and of law,[76] but I do note that in its reply submissions, the appellant was less robust and stated that “at the very least, it created an environment in which it is open for a Jones v Dunkel inference to be drawn.”[77]
[76] Appellant’s submissions, [63].
[77] Appellant’s submissions in reply, [17].
In a recent decision of the Court of Appeal in Amaca Pty Ltd (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt,[78] a similar ground of appeal was put. In that matter, the appellant contended that a failure to call a Dr Snodgrass (who had examined the scans of the deceased) should lead to the inference that any evidence given by Dr Snodgrass would not have assisted the respondent’s case. The Court of Appeal held:
“46. This ground is misconceived. Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 (‘Jones v Dunkel’) is authority for the proposition that two possible consequences may follow from a party’s failure to call a witness whom they might be expected to call. The first is that the Court may infer that the evidence of the witness who was not called would not have assisted that party’s case (a ‘Jones v Dunkel inference’). The other consequence is that the Court may have greater confidence in drawing an inference unfavourable to that party (Jones v Dunkel at 308 per Kitto J; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63] to [64]; ASIC v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [232] per Heydon J; ‘Hellicar’). This latter consequence can be put aside as no inference unfavourable to the Respondent was contended for by Amaca in this case.
47. A Jones v Dunkel inference has relatively weak evidentiary value. It does not enable the trier of fact to infer that the absent evidence would have been positively adverse to the party (Hellicar at [168] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ and at [232] per Heydon J), and it does not enable a court to discount or diminish the value of the evidence that a party adduced (Hellicar at [164] to [170] and [233]) …
48. In any event, the mode of reasoning suggested by Jones v Dunkel is directed to fact finding. There is no obligation on a jury or a judge to draw any such inference (Manly Council v Byrne and Anor [2004] NSWCA 123 at [52]). It follows that a failure to draw such an inference is not erroneous in law and does not raise any question or point of law.”
[78] [2022] NSWCA 151 (Brereton, Beech-Jones and Mitchelmore JJA).

As such, the appellant’s contention that a failure to draw an inference that if Dr Wang had been called, his evidence would not have supported the respondent’s case amounts to an error of law is rejected.
Further, the failure to draw that inference does not, in my view amount to an error of fact. The Member preferred the evidence of the respondent over the inferences to be drawn from Dr Wang’s clinical notes. The Member was entitled to do so.
In addition, on the assumption that if Dr Wang attended at the hearing and gave evidence that he would rely on his clinical notes as to what occurred during each consultation, then the state of the evidence would have been no better or no worse than that which was before the Member.
If Dr Wang gave evidence that the notes were in fact an accurate reflection of what was said and when, again the position would be no different and it would still have been open for the Member to prefer the evidence of the respondent over that of Dr Wang.
Further, as noted above, Dr Wang certified a SIRA Certificate of capacity/certificate of fitness on 7 September 2020 in which he himself described the injury as having occurred on 17 June 2020 when the respondent stepped out of the truck, twisted his right hip and could not weight bear. It also records that the respondent took Panadol, went back to work and felt that pain was always there but did not take much notice as he thought it was a pulled muscle. Significantly, Dr Wang certified that the information in the certificate was, to the best of his knowledge, true and correct.[79] The Member had this evidence available to him.
[79] ARD, pp 223–224.
The appellant also contends in this ground of appeal that the Member erred in not having the Jones v Dunkel issue determined on its merits with reasons provided to allow scrutiny of the Member’s conclusions.
I agree with the appellant that the Member was in error in failing to do so. It was one of the arguments put by the appellant below and the Member was required to engage with that argument and provide reasons for his decision on that issue. As was held in Li v Attorney General for New South Wales:[80]
“Of course, a failure expressly to address an argument or to consider some material does not, without more, constitute legal error. But a failure to address a ‘substantial, clearly articulated argument’ may amount to a failure to afford procedural fairness or, as the applicant formulated the error in this Court, in some circumstances to a constructive failure to exercise jurisdiction: see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088. What is critical is that the argument was ‘clearly articulated’ in the sense that the decision-maker can be said to have been put on notice of the argument, and ‘substantial’ in the sense that it was capable of altering or clearly material to the decision: see DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146 at [53]–[54]; Insurance Australia Ltd (t/as NRMA Insurance) v Milton [2016] NSWCA 156 at [8]–[9].”
[80] [2020] NSWCA 302, [48].
As such, the Member was in error in failing to address this submission. In Kirunda v State of New South Wales (No 4),[81] at [250]–[254], Snell DP helpfully summarised the principles with respect to the nature of appealable error. The Deputy President held:
“In Conway v The Queen[82] the plurality, after reviewing the practice in New South Wales, said:
‘… it seems clear enough that at common law a new trial would not be ordered in a civil cause if the error – whatever it was – could not reasonably be supposed to have affected the result of the trial.’[83]
In Walshe v Prest[84] Basten JA (Giles JA and Campbell AJA agreeing) said:
‘The principle that the Court should not order a retrial, even where error has been demonstrated in the proceedings below, unless ‘some substantial wrong or miscarriage has been thereby occasioned’ is now to be found in Part 51, r 23 of the Supreme Court Rules. As noted in Conway v The Queen [2002] HCA 2; (2002) 209 CLR 203 at [27] and [28] the principle derives from the general law and is consistent with long-standing practice in civil cases at common law in New South Wales.’[85]
In WorkersCompensation Nominal Insurer v Al Othmani,[86] an appeal from the Commission, Bathurst CJ (McColl JA agreeing) said:
‘The critical question, however, is whether the errors infected the Presidential member’s ultimate conclusion; that is whether they were operative errors in the sense discussed by Basten JA in Akora Holdings Pty Limited v Ljubicic [2008] NSWCA 339.’[87]
The error, in failing to consider the relevant affidavit, has not resulted in a miscarriage of justice and could not have affected the result. The result flowed from the Arbitrator’s assessment of the weight to be given to the appellant’s medical case, in circumstances where Dr Smith and Ms Hidalgo did not address the views of Dr George, and the full history on which those views were based, regarding the diagnosis of a delusional disorder. I accept the respondent’s submission that ‘the additional material had no bearing on the basis upon which the matter was determined’.”
[81] [2018] NSWWCCPD 45, [250]–[254].
[82] [2002] HCA 2; 209 CLR 203; 186 ALR 328; 76 ALJR 358 (Conway).
[83] Conway, [29].
[84] [2005] NSWCA 333 (Walshe).
[85] Walshe, [27].
[86] [2012] NSWCA 45; 10 DDCR 290 (Al Othmani).
[87] Al Othmani, [92].
Similarly to Kirunda, I am of the view for the reasoning set out at paragraphs [108] to [111] above, as well as Conway, Walshe and Al Othmani that this identified error has not affected the result.

Ground Three – The Member erred in his treatment of Dr Wang’s Clinical Notes

In Ground Three the appellant contends that there has been a denial of procedural fairness which amounts to appealable error within the meaning of s 352 of the 1998 Act. This failure is said to arise from the Member’s referral to an entry in Dr Wang’s clinical notes which was clearly erroneous.
At [47] of the reasons, the Member refers to an entry in respect of a consultation said to have taken place on 16 December 2016 in which Dr Wang records:
“I also find pt is still smoking. Today, I had a detailed discussion on the harmful effects of smoking. I suggested to the pt, if she wants to do anything to improve her health, quit smoking is probably the most important step, and this will also help her to increase her chance of pregnancy, and reduce the harmful effects to the baby.”[88] (emphasis added)
[88] ARD, p 150.
The Member relied on that entry as suggesting that Dr Wang’s notes are not always entirely accurate. The Member stated in the reasons:
“… I make that observation without in any way attempting to disparage Dr Wang, but rather to illustrate, as mentioned in a number of occasions in the case law (Mason v Demasi [2009] NSWCA 227) the caution that must be adopted when relying on consultation notes of practitioners who may be busy, otherwise occupied, and the like, understandable in modern medical practice.”[89]
[89] Reasons, [48].
The appellant contends that the error lay in the failure of the Member to advise the parties of the use that he proposed to make of this clinical note. The appellant contends that it had no way of anticipating the use to which the Member would put the clinical note and described it as “a crucial factor in the final determination.”[90]
[90] Appellant’s submissions, [72].
The accuracy of Dr Wang’s clinical notes was a key feature, if not the central feature of the case below. Part of that contest was between the respondent’s evidence about what he told Dr Wang and when he told him and the content of the clinical notes themselves. Accordingly, I am of the view that the accuracy or otherwise of the clinical notes was a matter well within the appellant’s knowledge as a key feature in the litigation below.
I disagree with the appellant’s characterisation of the clinical note of 16 December 2016 as “a crucial factor in the final determination”. It was but one matter taken into account by the Member in reaching his decision. It is necessary to read the Member’s reasons as a whole.[91] In the reasons, the Member reviewed the evidence including the respondent’s version of events, his cross-examination, Dr Wang’s clinical notes and the other medical evidence. In my view, the Member’s reference to the entry on 16 December 2016 is, properly characterised by the Member at [48] of the reasons, as an illustration that clinical notes are not always entirely accurate. The Member did not extrapolate that finding to hold that the entirety of Dr Wang’s clinical notes were inaccurate but rather to show that they were not infallible.
[91] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 444.
The clinical notes themselves were in the hands of both the appellant and the respondent well prior to the hearing. The appellant had the ability to read and understand the significance of the entry of 16 December 2016. It could not be said that it was evidence which took the appellant by surprise.
Whilst the respondent’s legal representatives did not make any submission on this particular entry, they did refer to the Court of Appeal decision in Davis v Council of the City of Wagga Wagga[92] in which the Court found the presence or otherwise of specific complaints relative to an injury asserted in a busy general practitioner’s notes cannot be determinative of injury. The respondent further submitted that it was incumbent upon the Member to have regard to the totality of the evidence available.[93]
[92] [2004] NSWCA 34.
[93] Respondent’s submission below dated 17 September 2021, pp 4, 5.
That very same passage was referred to in the appellant’s submissions below in which the appellant submitted that there is no evidence that Dr Wang’s practice was so busy as to compromise the accuracy of his record taking. Further, the appellant submitted that it had had regard to Dr Wang’s record taking from 2010 to date and that, it was apparent that the doctor’s notes were “thorough and detailed”.[94] Accordingly, it is clear that the appellant did read all of the notes and did have the opportunity to make submissions on the accuracy or otherwise of Dr Wang’s notes including the entry for 16 December 2016.
[94] Appellant’s submissions below dated 5 October 2021, [11(f)].
In those circumstances, I find that the Member did not engage in any error of law by not bringing the entry of 16 December 2016 to the attention of the parties prior to referring to it in the reasons.

CONCLUSION

I dismiss Grounds 1 and 3 of the appeal.
Whilst I have identified error in Ground 2 of the appeal only in so far as I found that there was an error in failing to engage with and address the appellant’s submission that a Jones v Dunkel inference should be drawn by the failure of the respondent to call Dr Wang, I am of the view that this error could not have affected the result for the reasons at [108] to [111] above.
Accordingly, the Certificate of Determination dated 2 December 2021 is confirmed.

Kylie Nomchong SC
Acting Deputy President

1 December 2022