Chubb Fire & Security Pty Ltd v Trad - [2023] NSWPICPD 79

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Chubb Fire & Security Pty Ltd v Trad [2023] NSWPICPD 79
APPELLANT:	Chubb Fire & Security Pty Ltd
RESPONDENT:	Mark Trad
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W6207/22
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	13 December 2023
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 24 January 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – approach to evidence and pleadings – guiding principles and practice and procedure – sections 42 and 43 of the Personal Injury Commission Act 2020 – rule 73 of the Personal Injury Commission Rules 2021 – Commission is not bound by strict pleadings – Tray Fit Pty Ltd v Cairney [2015] NSWWCCPD 2; The King v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr J McEnaney, counsel
Gair Legal
Respondent:
Mr B McManamey, counsel
Turner Freeman Lawyers
DECISION UNDER APPEAL
MEMBER:	Ms R Homan
DATE OF MEMBER’S DECISION:	24 January 2023

INTRODUCTION

The respondent worker, Mr Mark Trad, commenced employment with the appellant, Chubb Fire and Security Pty Limited, on 1 May 2006 as a Portable Service Technician and worked continuously in that role up until his injury on 20 January 2022. On that date, whilst in the course of his employment with the appellant, the respondent was walking across the carpark area at Mount Druitt Hospital to service a parked bus, when he suffered injury to his left knee/left leg. He attended the emergency department at Mount Druitt Hospital and after being discharged, later attended upon his general practitioner and was referred for an MRI scan of his injured left knee and leg. The MRI revealed a vertical tear of the medial meniscus and moderate osteoarthritic changes in the left knee.[1]
[1] Application to Resolve a Dispute (ARD), pp 39–40.
The respondent made a claim for compensation which was rejected by the appellant by notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) issued on 4 April 2022.[2] This notice disputed liability pursuant to ss 4, 9A, 33 and 60 of the Workers Compensation Act 1987 (the 1987 Act), on the basis that the injury sustained while walking through the carpark could have occurred anywhere, at any time, and thus, employment was not a substantial contributing factor. In this notice, the described injury in dispute was a ‘strain’. This decision was confirmed after an internal review of the decision on 12 July 2022.
[2] ARD, p 7.
The respondent therefore brought proceedings in the Personal Injury Commission (the Commission) seeking weekly compensation and an order for the payment of his expenses under section 60 of the 1987 Act.
The matter was heard by Member R Homan, a member in the Commission’s Workers Compensation Division, on 8 December 2022. At arbitration, the appellant’s dispute of “injury” as defined in s 4 of the 1987 Act was withdrawn, together with the dispute in respect of capacity. The parties also agreed on pre-injury average weekly earnings.[3] Accordingly, the only contest was about s 9A of the 1987 Act, namely whether employment was a “substantial contributing factor” to the injury suffered by the respondent, and the respondent’s on-going entitlement to weekly compensation and medical expenses as claimed. Although injury in a s 4 sense had been conceded, the mechanism of injury was argued before the Member for the purposes of ascertaining whether employment was a substantial contributing factor pursuant to s 9A of the 1987 Act.
[3] Trad v Chubb Fire & Security Pty Ltd [2023] NSWPIC 28 (reasons), [8]–[11].
The Member found in favour of the respondent in a decision dated 24 January 2023. The Member held that employment was a substantial contributing factor to the injury, being employment which required him to walk across an uneven surface through the carpark of the hospital in the course of his duties. It is from this decision that the appellant seeks intervention on appeal.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 – Determination of matters ‘on the papers', and WC3 – Presidential appeals and questions of law; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

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 1998 Act have been met.

THE EVIDENCE

A primary issue on appeal is the Member’s findings regarding the way in which the injury occurred on 20 January 2022, which the appellant says was on the basis of a mechanism that was not pleaded, described, or given in evidence.[4] A review of the evidence, summarised below, reveals varying mechanisms of injury reported which the Member was required to decide upon.
[4] Appellant’s appeal submissions [8].

Lay evidence

In his statement, the respondent says that the surface of the carpark was uneven. He says he was walking through it with a bucket in hand, when he stepped in into a 50 mm pothole, keeled over and heard a snap.[5]
[5] ARD, p 4, [33]–[34].
This mechanism of injury is repeated in similar terms in the Application to Resolve a Dispute which describes the respondent as “stepping into a concrete ditch” on 20 January 2022.
Photographs of the carpark surface were filed by the respondent, which appear to capture a patch of uneven ground in the carpark concrete, representing this concrete ditch.[6]
[6] ARD, p 29.
CCTV footage of the incident on 20 January 2022 (filed by the appellant) shows a male who appears to be the respondent, holding a bucket and walking into and through a carpark with another male. Approximately 15–18 steps into the carpark, the respondent is seen to slow down, swap the bucket into his right hand, and slightly bend to clutch his left knee. He pauses only for a moment and then continues walking after the other male. He does not appear to fall or step obviously into a ditch or pothole. [7]
[7] Appellant’s Application to Admit Late Documents (AALD), 25 November 2022.

Medical evidence

Discharge records of Mt Druitt Hospital confirm the respondent attended on 20 January 2022 after experiencing pain in his knee, as follows:
“Was at work and took step and felt pain in posterior knee
Denies fall onto knee
Was able to mobilise afterwards
Pain posterior knee
Has not had previous L) knee pain
Otherwise well”[8]
[8] ARD, p 244.
Triage records from the hospital’s emergency department noted that the respondent “was walking this am while at work & has injured back of L knee”.[9]
[9] ARD, p 248.
On the same day, the respondent attended Dr Kim Taylor of High Street Family Practice, who recorded that he “[w]as walking at work with a Security Guard at Mt Druitt Hospital towards a bus this morning. Fell in a ditch. Sore over his hamstring muscles. Left knee painful posteriorly. Went to Emergency. Possible avulsion fracture of proximal fibula. Did not know whether this was old or new. MRI ordered.”[10] Certificates of capacity were subsequently issued by Dr Taylor, although, they do not make any assertion regarding the mechanism of injury.
[10] ARD, p 113.
After the respondent’s claim was made, the insurer arranged for him to be independently medically examined by Dr Stephen Rimmer, orthopaedic surgeon, who provided a report dated 8 March 2022.[11] The respondent told Dr Rimmer he was “walking through the car park when he heard and felt a crunch sensation. This caused the sudden onset of sharp pain”. The respondent denied a previous history of injury to his left hamstring or knee. Dr Rimmer reviewed the MRI of 22 January 2022 and noted it showed “moderate to severe patellofemoral degenerative osteoarthritis”. The doctor diagnosed the respondent with a left hamstring strain and “[t]rivial aggravation degenerative osteoarthritis left knee”.
[11] Appellant’s AALD, 24 October 2022, p 3.
When questioned as to the mechanism of injury and its relationship to the respondent’s diagnosis, Dr Rimmer answers that it is “possible that by just walking he can strain his hamstrings and concurrently aggravate the degenerative osteoarthritis of his left knee”. Dr Rimmer did not believe employment was a substantial contributing factor to the respondent’s injury due to its “trivial” nature and his view that it could have occurred anytime, anywhere when walking on flat ground. The doctor however said that the incident was the “whole and predominant cause” of his diagnosable condition.
An Initial and Workplace Assessment Report was completed by physiotherapist, Mr Craig Berry on 11 March 2022, with the purpose of developing a ‘return to work’ plan at the insurer’s request.[12] The respondent told Mr Berry that on 20 January 2022 he had been “on his feet for most of the day and queried if this may have something to do with the injury”. The respondent described hitting a little ditch and then hearing a crunch in his knee and feeling pain. He says he bent over, put his bucket down and struggled to walk thereafter.[13]
[12] Appellant’s AALD, 24 October 2022, p 13.
[13] Appellant’s AALD, 24 October 2022, p 15.
The respondent was independently medically examined by Associate Professor Nigel Hope, orthopaedic surgeon, who was qualified by his legal representatives. Associate Professor Hope reported on 6 June 2022 as follows:
“On 20 January 2022, Mr Trad was walking across the carkpark accompanied by a security guard. Mr Trad stepped into a shallow concrete ditch and heard and felt a snap in the back of the left knee. There was resulting medial and posterior severe left knee pain.”[14]
[14] ARD, p 31.
Associate Professor Hope confirmed that the respondent had not previously suffered symptoms to his left knee and diagnosed a permanent aggravation of osteoarthritis.

Oral evidence

The appellant was granted leave to cross-examine the respondent at arbitration. The respondent was questioned as to whether the mechanism of injury occurred as alleged in his statement, that is, stepping into a concrete ditch. It was put to the respondent that this mechanism was not consistent with the CCTV footage, nor was it recorded by Mt Druitt Hospital in the emergency or discharge records, nor did the photographs actually provide evidence of the pothole he says he stepped into. It was put to the respondent that he was simply “walking across the car park” when he suffered injury. Whilst, after some questioning, the respondent ultimately conceded that his statement evidence was incorrect, he says his recollection may have been impacted by pain and still maintained that he “stepped in something” which caused his injury. The respondent was also questioned as to the timing of his photographs, and it was put to him that the purpose of the photographs was to make a workers compensation claim. The respondent denied this and asserted that the photographs were taken for the purpose of allowing the appellant to investigate the incident.[15]
[15] Transcript of proceedings, 8 December 2022 (T), T 12.21–13.5; T 14.15–15.6.

Submissions

The respondent argued that the CCTV footage clearly indicated that something had happened to his knee when walking across the carpark, and what was in issue was whether he had stepped into a pothole. The respondent’s memory was not as good as it might be, but it was clear from the hospital and medical evidence that the respondent presented with a material change in his knee. The respondent acknowledged that Associate Professor Hope took a history of stepping into a ditch whilst Dr Rimmer attributed the injury to walking. The respondent was only walking across the carpark, carrying objects, because his employer required him to. The respondent referred to Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited[16] and Mercer v ANZ Banking Group[17].[18]
[16] [2009] NSWCA 324; 7 DDCR 75 (Badawi).
[17] [2000] NSWCA 138 (Mercer).
[18] Reasons, [57]–[65].
The respondent submitted that the carpark surface was uneven, and the injury occurred when he “stepped onto the uneven surface”. If mistaken, the respondent asserted that “[i]t was common ground that the process of walking through the carpark was the cause of an aggravation of the [respondent’s] osteoarthritis and hamstring injury … Whether or not there was a pothole, the activity of walking across the carpark, carrying work items was a substantial contributing factor to the injury”.[19]
[19] Reasons, [66]–[68].
The appellant submitted that the Member was required to make a finding about what happened on 20 January 2022.[20]
[20] Reasons, [69].
The appellant submitted that the CCTV footage did not reveal anything extraneous affecting the respondent’s knee. It argued that the photographs were taken close to the time of injury and so it was not believable that the respondent did not remember where the injury occurred. The appellant referred to the respondent’s inconsistencies and submitted that the evidence was compelling to establish he was simply walking at the time of injury. The appellant argued that the respondent either knew or suspected he could not claim compensation for sustaining injury due to walking at work (with reference to a prior claim) and thus attempted to assert otherwise.[21]
[21] Reasons, [69]–[75].
The appellant submitted that having regard to the respondent simply walking at the time of injury, s 9A(3) of the 1987 Act, and the authority of Mundundu v Healthscope Ltd,[22] the mere fact that the injury occurred at work could not render the injury compensable.[23]
[22] [2017] NSWWCC 146 (Mundundu).
[23] Reasons, [76]–[79].
In response, the respondent submitted that it was immaterial that the activity (walking) which caused injury was “mundane”. The respondent likened this to accepted injuries sustained due to prolonged sitting.[24]
[24] Reasons, [80]–[81].

THE MEMBER’S REASONS

The Member was satisfied that employment was a substantial contributing factor to the injury, after weighing up the relevant considerations under s 9A(2) of the 1987 Act and giving particular weight to the time and place of injury, the nature of work performed and the respondent’s particular tasks.[25]
[25] Reasons, [121].
The Member considered the authorities of Badawi, Kelly v Secretary, Department of Family and Community Services,[26] Department of Corrective Services v Clifton,[27] Mercer, and E-Dry Pty Ltd v Ker[28] as guiding the principles of substantial contributing factor, which required an evaluative assessment of the evidence.[29]
[26] [2014] NSWCA 102.
[27] [2006] NSWWCCPD 310 (Clifton).
[28] [2017] NSWWCCPD 26.
[29] Reasons, [85], [89]–[91].
In weighing up the factors relevant to s 9A(2) of the 1987 Act, the Member acknowledged that there was no dispute that the respondent was in his usual workplace performing employment duties when he sustained his injury.[30] There was no controversy that the respondent had pre-existing osteoarthritis in the knee, but, there was no medical opinion to indicate that the respondent’s lifestyle or activities outside work were significant causative factors, relevant to s 9A(2)(e) of the 1987 Act.[31]
[30] Reasons, [86].
[31] Reasons, [92]–[94].
Although Dr Rimmer opined that the incident was “trivial” and could have occurred anytime or anywhere, the Member noted the doctor did not provide an opinion as to the “probability” of this, nor did Dr Rimmer consider the surface or the carpark or that the respondent was carrying objects. The Member accepted the respondent’s argument that the triviality or the mundane nature of and activity was not determinative. This was relevant to s 9A(2)(d) of the 1987 Act.[32]
[32] Reasons, [95]–[96].
The Member referred to “the place” of injury being a matter of controversy, noting the inconsistencies in the evidence as to the respondent either stepping into a ditch or pothole. Whilst this aligned with the history given by Associate Professor Hope, it was not consistent with the “most contemporaneous account” of the mechanism of injury, which the Member held were the discharge documents of Mt Druitt Hospital which referred to him only taking a step and feeling pain, and denying a fall. This was not consistent with the general practitioner’s records, and the CCTV footage which the Member found did not depict the respondent “tripping, stumbling, or otherwise stepping into a ditch or pothole”.[33]
[33] Reasons, [99]–[108].
The Member thus determined that the respondent’s assertion during cross-examination that he “stepped in something” was not corroborated by the evidence. She therefore did not accept the respondent’s asserted mechanism of injury. She was however satisfied that the “carpark surface was not smooth or even but comprised of a rough or rocky surface”, with particular reference to the carpark photographs, and this weighed in favour of the respondent when considering “the place” of injury within the meaning of s 9A(2). The Member observed that the respondent was required to cross this rocky surface to perform his duties, and he would not have been crossing this surface otherwise.[34]
[34] Reasons, [109]–[111].
The Member did not think Mundundu was applicable authority as it involved a worker who experienced lumbar pain during the action of turning after using a toiler at work. This was considered to be an ordinary incident in life with no real or substantial connection to work. In this case, whilst walking occurs daily, the Member maintained that the respondent was required to walk through the particular carpark for the reason of his duties. He was carrying a bucket filled with work items. Whilst no doctor had commented on the contribution of the weight of the bucket, the Member believed it formed part of the “overall circumstances of the case” as there was no reason he would be walking through the carpark carrying the bucket for any other reason than his work duties.[35]
[35] Reasons, [112]–[116].
The Member compared the facts of the present case to those in Hogno v Fairfax Regional Printers Pty Ltd[36] and Clifton wherein substantial contributing factor was established. In the former, a worker suffered a compensable injury to his knee when twisting it getting out of a car, and in the latter, a worker sustained an injury when he fell onto a concrete floor after a coughing fit. Although the coughing fit could have occurred anywhere and there was nothing peculiar about the floor, in Clifton it was considered to be a feature of the workplace which the worker came into contact with whilst doing something incidental to his duties – “namely walking to his desk”. The Member was thus satisfied in the present case that the nature of the work performed and the particular tasks of his work (s 9A(2)(b) of the 1987 Act) weighed heavily in favour of the respondent’s employment being a substantial contributing factor to the respondent’s injury.[37]
[36] [2009] NSWWCCPD 33.
[37] Reasons, [118]–[119].
In finding for the respondent, the Member made the following orders in the Certificate of Determination issued on 24 January 2023:
“The Commission determines:
1. The [respondent] sustained a personal injury in the course of his employment pursuant to s 4(a) of the Workers Compensation Act 1987.
2. The employment concerned was a substantial contributing factor to the injury pursuant to s 9A of the Workers Compensation Act 1987.
3. The parties have agreed on a pre-injury average weekly earnings figure of $1,302.99 (as indexed from time to time).
The Commission orders:
1. The [appellant] to pay the [respondent] weekly compensation from 1 April 2022 to date as follows:
(a) from 1 April 2022 to 7 April 2022, the amount of $480.56 per week;
(b) from 8 April 2022 to 21 April 2022, the amount of $1,062.82 per week;
(c) from 22 April 2022 to 28 April 2022, the amount of $929.06 per week;
(d) from 29 April 2022 to 12 May 2022, the amount of $480.56 per week;
(e) from 13 May 2022 to 22 September 2022, the amount of $221.78 per week;
(f) from 23 September 2022 to 29 September 2022, the amount of $0 per week, and
(g) from 30 September 2022 to date and ongoing, the amount of $200.87 per week.
2. The [appellant] to have credit for any payments made to date and for the payment of any sick leave pursuant to s 50 of the Workers Compensation Act 1987.
3. The [appellant] to pay the [respondent’s] reasonably necessary medical and related treatment expenses, incurred to date, in accordance with s 60 of the Workers Compensation Act 1987, upon production of accounts, receipts and/or valid Medicare Notice of Charge.”

GROUNDS OF APPEAL

The appellant pursues three grounds of appeal. They are as follows:
Ground One – The Member erred by determining the matter in favour of the worker in light of a finding that the worker’s pleaded case (a fall into a ditch or pothole) could not be accepted.
Ground Two – Having continued to consider the case after the finding rejecting the worker’s pleaded case and evidence, erred by failing to determine the actual mechanism of injury.
Ground Three – Having made the previous two errors, compounded them by finding that employment was a ‘substantial contributing factor’ in spite of the worker’s pleaded case describing a different mechanism of injury, and in spite of the Member finding that the worker’s medical evidence did not address the features relevant to the actual determined cause of the fall.

LEGISLATION

Section 9A of the 1987 Act provides:
“9A   No compensation payable unless employment substantial contributing factor to injury
(1)     No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note—
In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)     The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Section 43 of the 2020 Act provides:
“43    Procedure before Commission generally
(1)     Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)     The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3)     The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.” (emphasis added)

SOME PRINCIPLES APPLYING TO APPEALS IN THE COMMISSION AND MATTERS OF PLEADING, PRACTICE AND PROCEDURE

Given the way that the appellant has framed this appeal, it is necessary to set out some relevant appeal principles and discuss the function of pleadings in the Commission. It is also necessary to state the principles about how the Commission can approach dealing with matters consistent with s 43(2) of the 2020 Act.
Intervention on appeal is dependent upon the appellant establishing that the Member’s decision is attended upon by error of fact, law or discretion.[38] The seminal treatise on how this power is to be exercised is found in Raulston v Toll Pty Limited.[39] In practice, this means that factual findings made by a member at first instance stand unless they can be shown to be wrong. Findings of fact will not be disturbed on appeal if they have rational support in the evidence.[40]
[38] Section 352(5) of the 1998 Act.
[39] [2011] NSWWCCPD 25 (Raulston), [19].
[40] Fox v Percy [2003] HCA 22; 214 CLR 118, (Fox v Percy), 125–6.
This approach to appeals does not exist in isolation from the practice, procedure and the statutory mandate under the 2020 Act under which the Commission operates. The Commission is required under the 2020 Act to resolve the “real issues” in dispute “justly, quickly, cost effectively and with as little formality as possible”.[41] This object is repeated in the guiding principle, and practitioners are obligated to give effect to the application of the guiding principle.[42]
[41] Section 3(c) of the 2020 Act.
[42] Section 42 of the 2020 Act.
This appeal makes much of what the appellant says about how the Member found facts and how these diverged from the claim as pleaded by the respondent.
A succinct and comprehensive statement of the correct approach to these arguments is found in Tray Fit Pty Ltd v Cairney[43] where Deputy President Roche said as follows:
“The submissions by [the appellant] have overlooked the fact that the [Workers Compensation] Commission ‘is not a court and is not expected to function as a court’ (Fletcher International Exports Pty Limited v Barrow [2007] NSWCA 244; 5 DDCR 247 at [91] (Barrow), citing Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 4 DDCR 358 at [25]). As such, the Commission is not bound by strict pleadings (Far West Area Health Services v Radford [2003] NSWWCCPD 10). Moreover, it is a tribunal that has a statutory obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 354(3) of the 1998 Act).”[44]
[43] [2015] NSWWCCPD 2 (Tray Fit).
[44] Tray Fit, [41].
I would remark that the previous s 354(3) of the 1998 Act, which applied to the former Workers Compensation Commission, referred to at the foot of this quote from Tray Fit, now appears in s 43(3) of the 2020 Act and operates from 1 March 2021.[45]
[45] The date of the establishment of the Personal Injury Commission; s 6 of the 2020 Act.
As is clear, the Commission is not a body where a strict approach to pleadings is required. Pleadings do need to be sufficient to satisfy the requirements of procedural fairness and to alert one’s opponent as to the nature of the case being brought. The Commission’s practice and procedure is sufficiently flexible so as to promote and enable the statutory mandate found in ss 3 and 43 of the 2020 Act.
Under s 43(2) of the 2020 Act, the Commission is not bound by the rules of evidence and may “inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.” How this may be done is found in r 73 of the Personal Injury Commission Rules 2021 (the Rules). Rule 73 provides:
“73    Guiding principles for applicable proceedings
The appropriate decision-maker for applicable proceedings must, when informing itself or themselves on any matter in the proceedings, have regard to the following principles—
(a)     evidence should be logical and probative,
(b)     evidence should be relevant to the facts in issue and the issues in dispute,
(c)     evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d)     unqualified opinions are unacceptable.”
In many respects r 73 codifies the long-standing approach to tribunals or commissions and other situations where the rules of evidence do not apply. In The King v War Pensions Entitlement Appeal Tribunal; ex parte Bott,[46] Evatt J said as follows:
“Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, ‘bound by any rules of evidence’. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer ‘substantial justice.’” (emphasis added)

DISCUSSION

[46] [1933] HCA 30; 50 CLR 228 (Bott), [256].

As to Ground One

The appellant in this ground argues that the factual case actually brought and pleaded by the respondent was rejected by the Member, namely that the respondent has suffered injury as a result of stepping into a ditch. The Member’s finding at reasons [108] (which I have summarised at [33]), the appellant submits, which rejected this pleaded case should have led to an award in its favour.
The appellant contends:
“In fact, all of the evidence upon which the worker relied was that he had stepped into a pothole or ditch. This was the version of his injury that he committed to, and ran his case on the basis of. This was the case that the Member was required to determine.”[47]
[47] Appellant’s submissions, [8].
As a consequence of this, the appellant maintains:
“There was simply no call or need for the Member to have contemplated some other mechanism of injury related to the ground of the carpark (it being rocky or rough), because the worker never contended that the ground being rocky or rough had caused him to fall and hurt his knee.”[48] (appellant’s emphasis)
[48] Appellant’s submissions, [12].
In response, the respondent argues that the Member was entitled and required to consider all of the evidence and not be limited to the evidence led by the respondent. The respondent submitted the following:
“The [r]espondent had submitted that it did not matter whether or not there was a ditch there. The [r]espondent’s case was that there was an acute occurrence with pathological change. The aggravation required something from the outside to cause it. It was not a spontaneous event.”[49]
[49] Respondent’s submissions, [4], citing T 19.11–25.
The respondent says that there is no dispute that injury occurred while the respondent was walking across a carpark. The respondent says that Dr Rimmer’s opinion was that the respondent suffered injury walking across the carpark and that “[t]his opinion entitled the Member to conclude that the injury was caused by the act of walking across the carpark.”[50]
[50] Respondent’s submissions, [5].
The respondent argues that that Dr Rimmer’s opinion on the question of “substantial contributing factor” is wrong for the following reason:
“Dr Rimmer only finds that employment is not a substantial contributing factor because he thought that the injury, because of its trivial nature, could have occurred anytime. This opinion repeats the error identified in Mercer in that it treats section 9A(3) as determinative. The [M]ember had correctly considered all of the matters in section 9A(3) and correctly concluded consistent with [Badawi] that section 9A is satisfied.”[51]
[51] Respondent’s submissions, [7].
In reply, the appellant says that the case belatedly put by the respondent at the hearing “was not the case the [a]ppellant was put on notice to meet. Although the Commission is not ‘expected to function as a court’ and nor are parties ‘bound by [rules] of strict pleadings’, a party is entitled to be on notice of the case against it.”[52]
[52] Appellant’s submissions in reply, [3], citing Tray Fit, [41]; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, [90].
The appellant further contends that it is difficult to see how the mere act of walking across the carpark, “without more, can import a causal connection that is ‘real and of substance’.”[53]
[53] Appellant’s submissions in reply, [4], citing Badawi, [82]–[83], [107].

Consideration

The case pleaded in the ARD reads as follows:
“On the date of the workplace injury, the [respondent] was working at Mount Druitt Hospital servicing fire extinguishers and other fire equipment. The [respondent] was walking across the carpark when he stepped into a concrete ditch. The [respondent] immediately experienced pain in his back, left knee and left hamstring.”[54]
[54] ARD, page 6 “Injury Description”.
In his statement of 12 August 2022, the respondent states:
“The surface of the carpark was uneven and was not well maintained. I was walking towards the bus with a bucket in my hand as well as my other equipment on my way to service the bus when I stepped into a pothole that was approximately 50 millimetres of bare concrete.”[55]
[55] ARD, p 4, [33].
The various histories of the injury circumstances recorded by the doctors and hospital are set out in the evidence section above.
The appellant strongly challenged the respondent’s evidence about how the injury occurred, relying on the CCTV footage of the respondent, as well as referencing the different histories from the medical records.
At the hearing before the Member, counsel for the respondent said this about the contest as to whether the respondent stepped into a ditch:
“Ultimately, in my submission, it doesn’t matter whether the ditch is there or not, … what has happened is that there has been an acute occurrence and pathological change, and an onset of symptoms.”[56]
[56] T 19.11–15.
The respondent continues:
“The [respondent] at the time was walking across the carpark as part of his employment. His employment required him to do that particular task. It was part and parcel of it. It’s not incidental to it, it’s what he had to do, he was carrying items at the time, it takes him across that carpark. In my primary submission, Member, you would accept what the [respondent] says about it being uneven and his belief that what triggered it was unevenness in the surface. He may be mistaken about precisely which patch it was when he came back later to try and photograph what he thought was the part that he had fallen on, but he was, as has been fairly clear throughout, that’s what he thought he’d done, he’d tripped on something, and it’s consistent with the CCTV, which shows, as he’s walking, something happens, [because] he stops and goes over.
… There is no suggestion anywhere that this is a spontaneous occurrence. It required a cause. The cause was walking across the carpark. That was an integral part of his employment duties. It would therefore satisfy the test.”[57]
[57] T 22.25–23.15.
For the appellant to make good this ground, I must effectively accept that the respondent was bound by the way the case had been pleaded. The error asserted against the Member is that “she decided the case on any other basis than that which was pleaded or supported by the worker in evidence.”[58]
[58] Appellant’s submissions, [13].
Notwithstanding the appellant’s acceptance in its submissions in reply that the Commission is not a jurisdiction of “strict pleadings”, the net effect of the appellant’s arguments in this ground is contrary to this principle. I would remark that whilst the decision in Tray Fit was referring to the Commission’s statutory predecessor body, the Workers Compensation Commission, the principles referred to in Tray Fit are equally applicable to this Commission.
I accept, as was submitted by the appellant, that the claim was framed in the manner alleged. Namely that the respondent asserted that while walking across the carpark he injured himself by stepping into a pothole or ditch. But as is evident from what transpired at the hearing, this was not the way the evidence ultimately unfolded before the Member. The submission was made by counsel for the respondent (which I have set out above at [63]) which framed the case differently in light of the evidence adduced at the hearing. The case was still about the respondent walking across the carpark and suffering injury, the contest was within that ambit but somewhat narrower, namely what happened to cause that injury? This was the “real issue” in contest between the parties, as contemplated in s 42(1) of the 2020 Act, as was the application of s 9A of the 1987 Act to the facts as found.
I would remark that at no time during the hearing, nor indeed once counsel for the respondent had made the submission repeated at [63] of this decision, did the appellant argue that it was caught by surprise, or that the case it was called upon to meet had changed to its disadvantage (in the sense as referred to in Bott). The suggestion, and I put it no higher than that, is that the appellant was not on notice of the case it was to meet.[59] This assertion has not been established nor was it a point taken before the Member.
[59] Appellant’s submissions in reply, [3].
The Commission’s practice and procedure is attended upon by great flexibility, subject always to observing the rules of procedural fairness (ss 3 and 42 of the 2020 Act; rule 73 of the Rules; Bott). The terms of s 43(3) of the 2020 Act are of particular resonance in the consideration of this appeal ground, which would set this provision at nought and impose a highly technical regime binding a party to its pleading. I decline to accept the appellant’s submission as to the binding effect of a pleading in this jurisdiction.
The factual findings made by the Member at reasons [110], [111] and [115] were available to be made by the Member upon a dispassionate examination of the evidence. There was rational support in the evidence for these findings.[60] I do not read the appellant’s submission in this ground as cavilling with the factual findings themselves, rather the complaint related to how these findings departed from the case as pleaded.
[60] Fox v Percy.
The Member was not in error to decide the matter on a basis slightly different to the manner in which the claim had been pleaded. Rather, the Member acted in accordance with the Commission’s statutory mandate to resolve the real issues in dispute “without regard to technicalities or legal forms”.[61] The ‘real issues’ were as I identified above.[62] It was the Member’s duty to decide the real issues.
[61] Section 43(3) of the 2020 Act.
[62] See [66] above.
No complaint of a want of procedural fairness was made. This ground cannot be sustained.
Ground One is dismissed.

As to Ground Two

The appellant argues that the Member, having rejected the respondent’s evidence that he suffered injury when he stepped into a pothole or ditch, was then obliged to find what the mechanism of injury actually was.
The submission is put in these terms:
“The Member does not make a finding as to whether he in fact tripped, stumbled, fell or stepped onto the ‘rough or rocky surface’ to cause the injury. It is not found that the ground moved, shifted or gave way under his feet. There is no finding that the worker mis-stepped due to the uneven ground and put unnatural strain on his joint. There is no finding at all.”[63]
[63] Appellant’s submissions, [20].
The appellant says that it was an error for the Member to fail to make a finding on the actual mechanism of the injury.
In response, the respondent argues that injury, for the purposes of s 4 of the 1987 Act, was never in dispute. That the respondent suffered an injurious event while walking across the carpark was not the contest between the parties. The respondent says that the Member, having established that injury was caused by walking across the carpark, was then obliged to consider the application of s 9A to those facts as found.
The respondent submits that:
“The Member has accepted the mechanism of injury proposed by the [a]ppellant’s own medical evidence and correctly considered whether the mechanism of walking across the carpark had the necessary connection with work to mean that employment was a substantial contributing factor to the accepted injury.”[64]
[64] Respondent’s submissions, [18].

The respondent says there was no error in the Member’s approach to this question.
In response, the appellant submits that the finding that injury was caused by merely walking across the carpark reveals the error. The appellant submits:
“Walking across the carpark provided the occasion or the place where the injury occurred, but that does not reveal how that activity caused the injury.”[65]
[65] Appellant’s submissions in reply, [10].

Consideration

Before turning to this ground, it is necessary to make a few preliminary points. Firstly, I approach this ground on the basis that injury was not in dispute. The real dispute was whether the respondent could satisfy the provisions of s 9A of the 1987 Act. Secondly, this ground, as expressed by the appellant, also builds on the appellant’s arguments in Ground One, which for the reasons expressed above, I have dismissed.
The appellant makes a very specific complaint in this ground, namely that the Member failed to make a finding as to how the injury occurred. It is trite to say that a decision must be read as a whole.[66] It is also the approach that on appeal, one should “avoid overly pernickety examination of the reasons” and that the “focus of attention is on the substance of the decision and whether it addresses the ‘real issue’ presented by the contest between the parties.”[67] It is also said in Beale[68] that it is not the function of a Presidential Member to comb through the decision in search of error. I would also refer to the remarks of Hodgson JA in Brambles Industries Ltd v Bell[69] where the following was said, “the obligation to give reasons has to be considered in light of the issues raised for consideration by the parties”.
[66] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 (Beale).
[67] Roncevich v Repatriation Commission [2005] HCA 40 (Roncevich), [64], per Kirby J.
[68] Beale, 444.
[69] [2010] NSWCA 162, [22].
The Member at reasons [109] was not satisfied that the injury was suffered by the respondent stepping or falling “into a pothole, ditch or the uneven surface shown in his photographs”.[70] But then the Member proceeded to make a ‘finding’ that the “remainder of the carpark surface was not smooth or even but comprised of a rough or rocky surface”.[71] This finding was based on the photographic evidence. No challenge is made to this factual finding.
[70] Reasons, [109].
[71] Reasons, [110].
Having made this finding at reasons [110], the Member then reviewed how the facts as found applied to her s 9A considerations which was the task before her. This commences at reasons [111] and concludes at [121].
I repeat the various remarks about the evidence and findings:
(a)    “It was a place with a rough or rocky surface which the [respondent] was required to traverse in order to access the bus where he was to service fire equipment.”[72]
(b)    “The [respondent’s] purpose in walking through the carpark and his presence in the carpark itself was to undertake the requirements of his work.”[73]
(c)    “I find that while he was walking in the carpark, the [respondent] was carrying, in his left hand, a large bucket filled with items relevant to his work tasks. Although no doctor has commented on the contribution of the weight of the bucket or the uneven loading of the [respondent’s] left side to the injury, that fact forms part of the overall circumstances of the case.“[74]
[72] Reasons, [111].
[73] Reasons, [114].
[74] Reasons, [115].
A fair reading of these passages and the surrounding paragraphs reveals that the Member has found that the injury was caused by the respondent walking over rough or rocky terrain in the carpark while carrying work equipment. I accept that the finding of the mechanism of injury is not expressed in the succinct terms in which I have just expressed it. But the fact is if one reads the decision fairly, without attempting a minute examination to elicit error[75] and it is read as a whole,[76] that is the finding of the mechanism of the injury.
[75] Roncevich; Beale.
[76] Beale.
The error alleged in this ground has not been established.
Ground Two is dismissed.

As to Ground Three

The appellant points to two passages in the Member’s decision as constituting the error in this ground. They are:
“The Member concedes however that:
‘… there is no specific medical opinion on the contribution of that rough or rocky surface to the injury.’ [at 111]
The Member then goes on to note other factors relevant to the section 9A determination, including at [115] that:
‘… while he was walking in the carpark, the [respondent] was carrying in his left hand a large bucket filled with items relevant to his work tasks. Although no doctor has commented on the contribution of the weight of the bucket or the uneven loading of the [respondent’s] left side to the injury, that forms part of the overall circumstances of the case.’ (emphasis added [by appellant])”[77]
[77] Appellant’s submissions, [23]–[24].
The appellant then says the error is as follows:
“The Member acknowledges that the ultimate finding reached is not supported by any medical evidence. It could not be - it is not the case pleaded or run by the worker. Accordingly, the Member has misdirected herself and erred by concluding the relevance of these factors to section 9A.”[78]
[78] Appellant’s submissions, [25].
In response, the respondent contends that “not all findings about causation of an injury require medical evidence. Some circumstances of injury are such that causation is obvious to a lay person.”[79]
[79] Respondent’s submissions, [23].
The respondent then goes on to argue the following:
“26. The [M]ember did not make a specific finding that either the uneven surface or carrying the bucket was in itself causative. Rather the Member observed that both matters form part of the overall circumstances of the case [at reasons, [115]]. The relevance is that it established that the sole reason the [r]espondent was performing the act which caused his injury (i.e. walking across the carpark) was because it was part of his employment duties.
27. The [a]ppellant does not identify a finding in the reasons to the effect that either the surface or the uneven load was in fact causative. This is because no such finding was made.
28. The only finding was that those facts form part of the overall circumstances. That finding is uncontroversial.”
In reply, the appellant counters the respondent’s submission in these terms:
“12. It is trite law, as observed by the Member,^[[80]] that the evaluative exercise that section 9A demands is not solely a medical question and one which is based on all of the evidence, lay and expert. But here the Member impliedly made specific findings that the nature of the uneven surface and carrying of a bucket by the [r]espondent contributed to the injury. This was a medical question that required expert evidence and even in a non-evidence based jurisdiction, the Commission is required to be ‘… satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings’.^[[81]]
13. The Member found analogy between the facts of this case and that of [Clifton], in which a person fell to a concrete floor at work, fracturing his right femur. In that case, however, there was specific medical evidence from the worker’s treating orthopaedic surgeon that addressed the connection between the nature of the floor and the worker’s injury. There is no medical evidence in this case that similarly addresses any connection between the surface of the carpark, and the bucket the [r]espondent was carrying, to the injury sustained.
14. The [r]espondent argues at paragraph [26] of [the respondent’s submissions] the Member’s findings in relation to the uneven surface and the carrying of the bucket were not findings the Member made that supported some causative element between those matters and the occurrence of the injury but that such findings were relevant only insofar they established the [r]espondent was performing his employment duties.
15. But it was not in dispute the [r]espondent was performing his duties at the time of the injury. The Member made those findings as factors to be taken into account in the evaluative exercise under section 9A(2). Factors under section 9A(2) are those the legislature has determined are relevant in determining the ultimate question as to whether the employment concerned is a substantial contributing factor to the injury.^[[82]] As such, if the Member considered they were relevant for the purposes of section 9A(2), she must have considered they in some way contributed to the injury.”
[80] Reasons, [91].
[81] Citing Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11, [82], per Beazley JA.
[82] Citing Badawi, [89], per Allsop P, Beazley JA and McColl JA.

Consideration

The gravamen of the appellant’s complaint in this ground is that the Member’s finding of the involvement of the rough, rocky surface and carrying the work equipment was not supported by medical evidence. This, it is said, is an error.
In May v Military Rehabilitation and Compensation Commission,[83] the Full Federal Court said this:
“… neither the terms of s 4 of the [Safety, Rehabilitation and Compensation Act 1988 (Cth)], nor the authorities, preclude an injury being established on the basis of an account by a claimant of the disturbances to her or his body or mind, without the necessity for a diagnosis of a recognised medical condition, or corroborating pathology or medical opinion. Whether or not the evidence of a claimant will be sufficient, if it is not supported, corroborated or confirmed by independent medical opinion or pathology, will be a matter for the Tribunal’s satisfaction on the evidence in each particular case. The error in the Tribunal’s reasoning process … was to proceed on the basis that a claimant’s account could never suffice to establish an injury.”
[83] [2015] FCAFC 93 (May), [212].
I would remark that while May was appealed to the High Court, the passage from paragraph [212] I have just set out was not disturbed on appeal.
The Member referred to a number of authorities at reasons [89]–[91] which are also to the same effect as May at [212], namely that the assessment (under s 9A) is not a purely medical determination. Rather, the approach is to consider all of the evidence. This is not surprising when one considers the statutory mandate, which I have discussed above, under which the Commission operates. Section 43 of the 2020 Act governs the approach, along with the requirements to observe procedural fairness.[84]
[84] Rule 73, Bott.
The appellant’s argument fundamentally misconstrues the Member’s functions and says, in effect, that the approach taken in the mainstream courts ought be applied. This is incorrect in principle. The Member’s duty was to consider the entirety of the evidence and consider whether it provided her with a satisfactory basis to make findings within the context of how the Commission operates within its statutory mandate.
It was not an error for the Member to proceed as she did, rather the approach was consistent with the approach to fact finding and decision making in the Commission. There was no need for the ultimate findings to be supported by medical evidence if there was support elsewhere in the evidence. I would remark that the factual findings and observations made by the Member, which are not supported by medical evidence, are themselves not subject to any challenge on appeal. These observations and findings were available to be made on the evidence without error.
Ground Three is dismissed.

DECISION

The Certificate of Determination dated 24 January 2023 is confirmed.

Judge Phillips
PRESIDENT

13 December 2023