Duinker v St Vincent de Paul Society Aged and Special Services Limited (Lewisham Nursing Home) - [2008] NSWCA 127

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Duinker v St Vincent de Paul Society Aged and Special Services Limited (Lewisham Nursing Home) [2008] NSWCA 127

HEARING DATE(S): 20 May 2008

JUDGMENT DATE:
4 June 2008

JUDGMENT OF: Beazley JA at 1; Hodgson JA at 2; McColl JA at 56

DECISION: Appeal dismissed with costs.

CATCHWORDS: WORKERS COMPENSATION – Determination of claim by Arbitrator – Review of decision by Presidential member – Nature of review – Whether necessary for Presidential member to identify error – Whether Presidential member bound to apply the principle in Abalos – Whether error of law by Presidential member shown.

LEGISLATION CITED: Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 294, 350, 352, 353, 354
Workers Compensation Commission Rules 2006 (NSW), Rule 15.6

CATEGORY: Principal judgment

CASES CITED: Abalos v Australian Postal Commission (1990) 171 CLR 167
Boston Clothing Co v Margaronis (1992) 27 NSWLR 580
Fox v Percy [2003] HCA 22, 214 CLR 118
Mifsud v Campbell (1991) 21 NSWLR 725
Paric v John Holland (Constructions) Proprietary Limited (1985) 59 ALJR 844
Siddik v WorkCover Authority of NSW [2008] NSWCA 116
South Western Sydney Health Service v Edmonds [2007] NSWCA 16
State Transit Authority of New South Wales v Chemler [2007] NSWCA 249
W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; 185 ALR 703
Watson v Hanimex Colour Services Pty Limited (1992) 8 NSWCCR 190

PARTIES: Nicole DUINKER (Appellant)
ST VINCENT DE PAUL SOCIETY AGED and SPECIAL SERVICES LIMITED (Lewisham Nursing Home) ABN 7210 0907 0180 (Respondent)

FILE NUMBER(S): CA 40558/07

COUNSEL: P WEBB QC/ D A BAKER (Appellant)
S G CAMPBELL SC/ P J MENARY (Respondent)

SOLICITORS: Graham Jones (Appellant)
Sparke Helmore (Respondent)

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S): WCC 11002-06

LOWER COURT JUDICIAL OFFICER: Acting Deputy President Deborah Moore

LOWER COURT DATE OF DECISION: 3 May 2007

LOWER COURT MEDIUM NEUTRAL CITATION: St Vincent De Paul Society Aged & Special Services Limited (Lewisham Nursing Home) v Duinker [2007] NSWWCCPD 207

CA 40558/07
WCC 11002-06

BEAZLEY JA
HODGSON JA
McCOLL JA
4 JUNE 2008

Nicole DUINKER v ST VINCENT DE PAUL SOCIETY AGED and SPECIAL SERVICES LIMITED (Lewisham Nursing Home) ABN 7210 0907 0180

Judgment

1 BEAZLEY JA: I agree with Hodgson JA.

2 HODGSON JA: On 20 November 2006, an Arbitrator of the Workers Compensation Commission determined that the respondent pay the appellant weekly compensation from 4 April 2004 to 3 March 2005, and also certain expenses and costs.

3 The respondent appealed to the Commission constituted by a Presidential member pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (WIM Act), and on 3 May 2007 Acting Deputy President Moore revoked the decision of the Arbitrator and made an award in favour of the respondent.

4 The appellant appeals to this Court pursuant to s 353 of the WIM Act.

Statutory Provisions

5 Relevant to this appeal are the following provisions of ss 294, 350, 352, 353 and 354 of the WIM Act:

294 Certificate of Commission’s determination

350 Decisions of Commission

352 Appeal against decision of Commission constituted by Arbitrator

Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.

353 Appeal against decision of Commission constituted by Presidential member

decision

354 Procedure before Commission

Crimes Act

6 Also relevant is Rule 15.6 of the Workers Compensation Commission Rules 2006 (the Rules):

15.6 Certificates of determination

Decision of Arbitrator

7 It was common ground before the Arbitrator that the appellant worked one day per week (Monday) for the respondent at Lewisham Nursing Home, and on the other four weekdays worked as an assistant for her husband in his painting business.

8 The appellant’s evidence accepted by the Arbitrator was to the effect that on 29 March 2004, while working at the respondent’s premises, she experienced symptoms in her neck and shoulder; that those symptoms continued over the following days; and that on Sunday 4 April 2004 she woke up with very severe symptoms in those areas which disabled her.

9 The Arbitrator found that the appellant received an injury to her neck arising out of or in the course of her employment with the respondent, and that her employment with the respondent was a substantial contributing factor to the injury. Relevantly, he gave the following reasons:

Injury

Did Ms Duinker receive an injury to her neck arising out of or in the course of employment with the Respondent?

6. Ms Duinker outlines in her statement continuous symptoms in the neck and shoulders from 29 March 2004 onwards. The Respondent submits that there is insufficient evidence for her to discharge the onus of proof that the injury occurred while working for the Respondent. The Respondent submits that the work with Mr O'Toole in the days following 29 March 2004 up to 4 April is the more likely cause of injury. Ms Duinker gave oral evidence at the arbitration hearing as to the duties she performed with her husband's company in the days following 29 March, largely comprising clerical duties which did not aggravate the neck injury. I found Ms Duinker to be a direct and truthful witness and I accept the account she gives in her written and oral statements as to the circumstances of injury. Her account is also consistent with the medical evidence overall. The Respondent submits that there is insufficient in the medical evidence to establish the relationship between the work on 29 March 2004 and the neck injury.

7. Dr Beer in his report of 2 February 2005 is consistent with Ms Duinker's account, and ascribes the injury to the duties with the Respondent. Dr Bodel for the Respondent is also consistent with her account in the history taken but says "She gives no history of any specific event which led to the onset of her symptoms in the neck and left arm and at this stage there is in my view no definite causal link between the pathology and her work at CFTTB Lewisham Nursing Home." This is also consistent with Ms Duinker's account. The Respondent made the point that there is no report commissioned by the Applicant from the treating specialist neurologist Dr Van Gelder, and that no history of injury to the neck was given to Dr Sachdev or to Dr Bruce. Ms Duinker explained in her evidence that she did tell Dr Gelder as to the shoulder symptoms experienced on the Sunday morning following Monday 29 March 2004, but did not at that time make the connection between the shoulder symptoms and a neck injury. She also explained that she saw Dr Sachdev and Dr Bruce about her hip problem and not about her neck. The account of Ms Duinker as to the development of the symptoms and the nature of her duties with the Respondent, and of her duties with Mr O'Toole after 29 March is sufficient in conjunction with the medical evidence available to satisfy me to the required level that the injury to the neck arose out of or in the course of the employment with the Respondent. Where Dr Beer differs from Dr Bodel I prefer Dr Beer because of the correlation with the other evidence.
Substantial Contributing Factor
Was Ms Duinker' employment a substantial contributing factor to the injury?

8. An Applicant must establish that the employment is a substantial contributing factor to the injury. It is not sufficient that the injury arose out of or in the course of the employment, although this is a relevant consideration: Deputy President Byron in NSW Police Service v Kehoe [2004] NSW WCC PD 40. There may be other causative factors of an injury, and a substantial contributing factor is sufficient if the overall impression and degree in the circumstances of the case is that the factor is more than minimal: Deputy President Fleming in Central Coast Area Health Service v Clara Evans [2004] NSW WCC PD 10.

9. I have already preferred Ms Duinker's medical evidence on the issue of injury. Referring to the relevant examples in s9A(2) of the Act, there is no evidence of a previous injury or pre-existing degenerative disease. There was concurrent employment, but the evidence is that there was no injury arising from that. The only apparent cause of the neck pathology is Ms Duinker' employment with the Respondent on 29 March 2004, which I find was a substantial contributing factor to the neck injury.

10 The Arbitrator also gave a list of the evidence taken into account in his decision, including a report of Dr J O’Neill dated 18 August 2006.

Decision of Presidential member

11 The appeal to the Presidential member was brought on three grounds:

1. That the decision of the Arbitrator … is contrary to the weight of the medical evidence before him.

2. That the Arbitrator … has failed to afford the Appellant procedural fairness by failing to consider all of the medical evidence before him.

12 The appellant indicated that she was content for the matter to be determined “on the papers”; and the Presidential member was satisfied that it was appropriate to proceed under s 354(6) of the WIM Act and to deal with the matter on the papers.

13 In the course of considering the first ground of the appeal, the Presidential member said this concerning the evidence of the appellant (who she referred to as “the Worker” and also “Ms Duinker”):

"The account of Ms Duinker as to the development of the symptoms and the nature of her duties with the Respondent ...is sufficient in conjunction with the medical evidence available to satisfy me to the required level that the Injury to the neck arose out of or in the course of the employment with the Respondent.'"

69. Thus the Arbitrator's statement that "the only (my emphasis) apparent cause of the neck pathology..." was as a result of work performed on 29 March 2004 was incorrect.

14 The Presidential member’s conclusion on the first ground was as follows:

76. In all the circumstances, I accept the Appellant's submission that the Arbitrator's determination that "the only apparent cause of the neck pathology is Ms Duinker's employment with the Respondent on 29 March 2004, which I find was a substantial contributing factor to the neck injury" was contrary to the weight of all the evidence before him.

"... whilst as a specific cause of the Applicant's onset of symptoms in her neck, I can't point to it being the cause of it, clearly, if one is protecting one part of the anatomy and tending to apply greater effort in relation to another part ...it is ...a not unreasonable inference to draw that that predisposed her to the sort of injury, we say, that she suffered on or about 29 March 2004 because of these other limitations, and I think that's the extent of that component of the case."

15 The Presidential member’s conclusion on the second ground of appeal was as follows:

83. I am of the view that the Arbitrator’s ‘Statement of Reasons’ does demonstrate that he failed to consider all the medical evidence before him in particular, the omission of any reference whatsoever to the opinion of Dr O’Neill, notwithstanding detailed submissions made by the Appellant’s legal representative before the Arbitrator as to the contents of that report. I see this not so much as an issue of ‘procedural fairness’ but rather an error by the Arbitrator in his apparent failure to have regard in particular to the opinion of Dr O’Neill and indeed to all the radiological material before him.

16 Her conclusion on the third ground was as follows:

That oral evidence was also inconsistent with the history given to Dr Beer upon whom the Arbitrator appears to have placed great reliance. The Arbitrator’s ‘Statement of Reasons’ contained glaring inconsistencies to which I have referred previously, in particular, his acceptance of the Worker’s written and oral statements as being “consistent with the medical evidence overall” where that medical evidence was not identified and further, his statement that the Worker’s account was consistent with the report of Dr Beer. Her written statements were to some extent consistent, but her oral evidence was utterly inconsistent.

17 Accordingly, the Presidential member came to the following conclusions on the appeal:

97. The Arbitrator’s failure to resolve these conflicting accounts reflect a fundamental error in his reasons, and his determination must accordingly be set aside. My powers on review of an Arbitrator’s decision contained in section 352 of the 1998 Act permit me, having revoked the decision, to either issue a new decision or remit the matter to an Arbitrator for re-determination.

Issues on Appeal

18 The appellant relies on the following grounds of appeal:

19 Under s 353 of the WIM Act, an appeal lies to this Court only on a point of law. As developed, the grounds of appeal came down to one point of law, namely that the Presidential member erred in law in that she did not have regard to the principle in Abalos v Australian Postal Commission (1990) 171 CLR 167, because she did not address the significance of the Arbitrator’s finding that the appellant was a direct and truthful witness, and did not address what exceptions could justify an appellate tribunal departing from such a finding.

20 This in turn gave rise to a number of issues:

Abalos

(2) Was the credibility of the appellant an issue before the Arbitrator and the Presidential member?

(3) Did the Presidential member err in law in not confirming the decision of the Arbitrator?

(4) Did the Presidential member err in law in giving a decision in favour of the respondent?

21 I will deal with these issues in turn.

Application of

Abalos

22 Mr Webb QC for the appellant submitted that the Presidential member was bound to apply the principle in Abalos, and that failure to do so would be an error of law.

23 He submitted that the cases of Watson v Hanimex Colour Services Pty Limited (1992) 8 NSWCCR 190 and Boston Clothing Co v Margaronis (1992) 27 NSWLR 580, although decided under earlier workers compensation legislation, supported the applicability of Abalos. Mr Webb also referred to the case of W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; 185 ALR 703 at [64]: although in relation to that case, it should be noted that it dealt with s 476 of the Migration Act 1958 (C’th), under which there were limited grounds that could be relied on in an application for review.

24 Mr Campbell SC for the respondent submitted that Watson and Boston did not support the application of Abalos; and that the case of State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 was against it.

25 I accept that the nature of a review under the previous legislation was considered in some detail in Watson and in Boston; but in my opinion neither case is clear authority one way or the other on the application of the Abalos principle.

26 In Watson at 195-206, Kirby P (with whom Handley JA and Hope AJA generally agreed) discussed the nature of a review; and he concluded (at 205) that such a review was “something wider than the narrow form of a reconsideration on appeal, strictly so called”, but that there was “the need, on the part of the aggrieved party, to provide some proper basis for disturbing the decision of the challenge”. The discussion that followed that statement suggests an assumption that the Abalos principle applied, but did not clearly assert this.

27 In Boston, the assumption that the Abalos principle applied is perhaps clearer (588-89), because the appeal was dismissed on the basis that the judge of the Compensation Court had applied that principle and had not erred in doing so. However, again there is no clear statement that the principle applied.

28 The present scheme is different from the previous scheme, among other things in that the review is not by a judge but by a tribunal whose operations are governed by s 354 of the WIM Act, which dispenses with formality and with the rules of evidence. This new scheme was discussed by McColl JA (with whom Giles JA and Tobias JA agreed) in South Western Sydney Health Service v Edmonds [2007] NSWCA 16 at [55]-[74] and [86]-[96], where her Honour came to the conclusion that s 354 does not exclude an obligation to afford procedural fairness. See also the further discussion of the present scheme by McColl JA (with whom Mason P agreed) in Siddik v WorkCover Authority of NSW [2008] NSWCA 116.

29 The nature of a review by the Presidential member was discussed in Chemler, at [22]-[29] by Spigelman CJ (with whom Basten JA and Bryson AJA agreed):

[22] The scope of an internal merits review by a Presidential member is an important safeguard for the proper operation of the legislative scheme. Arbitrators’ decisions, particularly on issues of credit, are entitled to respect. That does not, however, mean that such a merits review process should operate on the basis of some kind of presumption that the first instance decision-maker should redetermine the matter.

4(f) to deliver the above objectives efficiently and effectively.

[24] It is inconsistent with this objective to confine the discretion of the Presidential member to make a “new decision” in the manner proposed.

[25] Furthermore, a specific power, designed to serve objective 4(f), to hold what has been called a “paper hearing” is found in s 354(6):

354(6) 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 without holding any conference or formal hearing.

[26] This power may be exercised by a Presidential member conducting a review. The existence of such a broadly expressed discretion is itself inconsistent with the Appellant’s contention that the power to review a decision is constrained.

[27] I note that the Acting Deputy President determined to proceed without a formal hearing. No challenge has been made to his ‘satisfaction’ that he had “sufficient information”.

[28] The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of “review” instead of “appeal” with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.

Mansini v Director General of Education

Watson v Hanimex Colour Services Pty Ltd

Boston Clothing Co v Margaronis

Litynski v Albion Steel Pty Ltd

Aluminium Louvres & Ceilings Pty Ltd v Zheng

South Western Area Health Service v Edmonds

30 In his separate judgment, Basten JA also said this:

[63] The procedural challenge must therefore depend upon the proposition, as put in written submissions, that it was “not open” to the Deputy President to reverse a finding of fact made by the arbitrator. This proposition was based on the assertion that the appeal undertaken by the Deputy President was in the nature of a “review” and was therefore not a hearing de novo. By that it was presumably meant that because s 352(1) permitted an “appeal” against the decision of an arbitrator, the Presidential member considering the appeal was required to identify error on the part of the arbitrator.

[64] There are several difficulties with that approach. First, it appears to depend upon the classification of appeals in accordance with the terminology adopted in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 621–622 (Mason J) and more recently identified in Coal and Allied Operations Pty Ltd v Australian Industrials Relations Commission (2000) 203 CLR 194 at [11]–[14]. Even if the appeal were to be placed in one class rather than another, as a matter of statutory construction the nature of the appeal by way of review should not be seen to be so constrained. Section 352(7) permits a Presidential member to confirm a decision or to revoke it and make a “new decision” in its place. Further, s 354 permits the Commission to conduct its proceedings with as little formality and technicality as the proper consideration of the matter permits, not to be bound by the rules of evidence and to act according to “equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”: s 354(3). In particular, the Commission is relieved of any obligation to conduct proceedings “by formal hearing” and may conduct them by way of “a conference between the parties”, or “without holding any conference or formal hearing”: s 354(4) and (6).

[65] The precise scope of a provision such as s 354 will depend upon the circumstances in which its operation arises. No doubt the Commission is required to apply substantive rules of law applicable to its jurisdiction and to comply with rules of procedural fairness, although the content of the latter may be affected by the terms of the provision: see generally Sue v Hill (1999) 199 CLR 462 at [42] (Gleeson CJ, Gummow and Hayne JJ); Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29 (Gleeson CJ and Handley JA); Italiano v Carbone [2005] NSWCA 177 at [70]; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [87]–[94] (McColl JA, Tobias and Giles JJA agreeing), and Haider v JP Morgan Holdings Aust Ltd [2007] NSWCA 158 at [42]. So long as each party has notice of, and a reasonable opportunity to address, the case against it, there is no reason to suppose that the Commission is not at liberty to determine how it will proceed and whether it should make a new decision. A different approach may apply in relation to a grant of leave to appeal, but that is not in issue in the present case: cf Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267 at 275 (Deane, Gaudron and McHugh JJ).

Workers Compensation Act

31 These passages in Chemler raise but do not clearly resolve two questions relevant to the present case:

(2) Is the Presidential member bound to apply the Abalos principle?

32 As regards the first question, it is generally the case that an appeal court, dealing with an appeal from a first instance judge, will not intervene on a question of fact unless it is affirmatively satisfied that the decision of the first instance judge is wrong. This is particularly significant in relation to matters on which minds may reasonably differ, such as an assessment of what reasonable care requires. In relation to such matters, an appeal court recognises that minds may reasonably differ, and even if its own view, if it were approaching the matter de novo, would be different from that of the primary judge, it will not substitute its own view unless it is satisfied that the primary judge’s view is wrong, in the sense of being one not reasonably available or vitiated by some error. A question whether this approach applies in the case of a review under s 353 of the WIM Act could be significant, particularly in relation to a question whether a worker’s employment was a “substantial contributing factor” to an injury, within s 9A of the Workers Compensation Act 1987. The discussion by Basten JA at par [63]-[66] in Chemler suggests that this approach would not apply, so that it would be open to a Presidential member carrying out a review under s 353 of the WIM Act to substitute his or her own preferred view on such a question, even if he or she was not affirmatively satisfied that the Arbitrator’s view was wrong. Paragraph [29] in the judgment of Spigelman CJ in Chemler also tends to support that view.

33 As regards the second question, it is clear that the Presidential member conducting such a review must apply substantive rules of law and must accord procedural fairness; but it is doubtful whether s 354 is consistent with an obligation on a Presidential member, as a matter of law, to apply the principle of Abalos. Again, the discussion in Chemler seems to suggest that it is not.

34 For reasons I will give, in my opinion the Presidential member did not commit any error of law in this case, even if she was obliged to identify an error before intervening, and even if the Abalos principle applies. Accordingly it is not necessary to come to a final view on the two questions I identified.

Issue of Credibility

35 Mr Webb submitted that the credibility of the appellant was an issue before the Arbitrator, and also before the Presidential member. He submitted that this issue was found in favour of the appellant by the Arbitrator, and that this finding should have been accepted by the Presidential member but was not.

36 In my opinion, although some issue as to the credibility of the appellant was raised before the Arbitrator and also before the Presidential member, this was not the only or even the main issue. There was some challenge to the veracity of the appellant’s account before the Arbitrator, but in final submissions (Combined Book 29), Counsel for the respondent said that her credibility was not in issue, and it is apparent (Combined Book 30) that the main thrust of his submission was that (accepting her as a credible witness) the combination of her evidence and the medical reports did not establish that the severe neck problem that gave rise to disability, which undoubtedly occurred on 4 April 2004, was due to injury arising out of or in the course of her employment with the respondent, or was something to which the employment with the respondent was a substantial contributing factor.

37 In my opinion also, that was the thrust of the submissions to the Presidential member, and the basis on which the Presidential member dealt with the case.

Error in not confirming the Arbitrator’s decision?

38 Mr Webb submitted that the Presidential member embarked on making her own decision without identifying error by the Arbitrator; and that to the extent that the Presidential member purported to identify any error by the Arbitrator, there was in fact no such error and the Presidential member committed an error of law.

39 In my opinion, apart from her general review of the medical evidence, the Presidential member did identify at least two specific errors by the Arbitrator:

(2) An inconsistency between the Arbitrator’s finding that the only apparent cause of the neck pathology was the appellant’s employment with the respondent on 29 March 2004, and his statement that Dr Beer’s report was consistent with the appellant’s account; in circumstances where Dr Beer’s report was based on a history of symptoms in the neck and shoulder noticed in late 2003 and increasing from then until 29 March 2004, supporting an opinion that the disc lesion was consistent with the nature of the duties she was carrying out with the respondent.

40 Mr Webb submitted that these were not errors.

41 As regards the first matter, he submitted that the Arbitrator’s failure to refer to the report of Dr O’Neill, apart from simply listing it, was not a deficiency of reasons, having regard to the limited nature of the duty of an Arbitrator to give reasons. He further submitted that the statement that there was no evidence of degenerative changes meant only that, for the purpose of considering whether the employment was a substantial contributing factor, there was no evidence of pre-existing degenerative changes which were relevant to that issue and which would materially count against a finding that the employment was a substantial contributing factor.

42 As regards the second matter, Mr Webb submitted that any divergence between the facts as found by the Arbitrator and the history relied on by Dr Beer was not material, and did not significantly affect the weight of Dr Beer’s opinion.

43 On the first matter, I am prepared to accept that, having regard to the task given to Arbitrators by the WIM Act and the provisions of s 294(2) of the WIM Act and Rule 15.6 of the Rules, it would not have been an error of the kind identified in Mifsud v Campbell (1991) 21 NSWLR 725 for the Arbitrator in this case not to have referred specifically to the opinion of Dr O’Neill. However, in my opinion the Arbitrator’s categorical statement that “there is no evidence of a previous injury or pre-existing degenerative disease” was simply wrong, and cannot be explained away as submitted by Mr Webb. The report of Dr O’Neill was plainly evidence of a pre-existing degenerative condition, and plainly capable of preventing a finding that the appellant’s employment with the respondent was a substantial contributing factor to the injury.

44 Accordingly, there was at least one error justifying intervention by the Presidential member, assuming that identification of such an error was necessary. As regards the second matter, I will consider it in connection with my consideration of the final issue.

Was there an error of law in deciding in favour of the respondent?

45 Mr Webb submitted that the Presidential member erred in not applying the Abalos principle; and that this was shown by her failure to refer to that principle and by failing to accept the appellant’s account of the circumstances of her injury, in the absence of grounds for departing from the findings of the Arbitrator. Insofar as the Presidential member referred to internal inconsistencies between the appellant’s written statements and her oral evidence, there were no material inconsistencies; and insofar as she referred to divergence between the appellant’s oral evidence and the history accepted by Dr Beer, there was no material divergence.

46 As noted earlier, the Arbitrator had found that the only apparent cause of the appellant’s neck pathology was her employment by the respondent on 29 March 2004. In her oral evidence, the appellant had said that she first noticed pain coming on on 29 March 2004; and when asked “Not prior? Not at any time prior?” she had answered “Only that you have tenseness, but I didn’t actually connect that with anything” (Combined Book 12).

47 On the other hand, in her first written statement, the appellant had said:

25. On 9 December 2003 I had my contract renewed. It involved reduced pay and new duties. These included carrying equipment, moving garbage, moving metal beds with assistance, carrying commercial vacuum cleaners up and down stairs, moving tables, setting up boardrooms, etc. My weekly gross wage was $120.07 per week, plus overtime, however, I was no longer casual.

26. I continued to perform my duties for another 3 months. In this time I noticed that my symptoms were increasing around my neck and shoulders when performing my duties.

48 And in her Further Written Statement, the appellant said this:

9. Following an injury at Lewisham Nursing Home on 8 September 2003 I was placed on light duties with Seumus O’Toole Renovations as I had injured my hip at the home moving an ‘otto’ bin. Annexed and marked with the letter “B” is a revised job description dated 23 September 2003.

10. After 14 March 2004 I took the next week off work as I had started getting symptoms in my left shoulder, across my neck and over to my right shoulder whilst performing my duties at Lewisham Nursing Home. I had not said anything to Lewisham Nursing Home and thought it would ‘simply get better’.

49 As noted earlier, Dr Beer’s opinion relied on a history of pain from late 2003, and his opinion as to the relationship of the appellant’s condition to her employment adverted to the nature and conditions of her employment, by implication at least, over a number of months leading up to 29 March 2004.

50 In my opinion, these matters did raise substantial questions whether the written statements and the oral evidence were consistent, whether they (and particularly the written statements) were consistent with the Arbitrator’s finding as to the causative effect of what happened on the 29 March 2004, and whether the history as found by the Arbitrator diverged materially from that on which Dr Beer’s opinion was based.

51 The question then is, assuming it would be an error of law not to apply the Abalos principle, was there such an error by the Presidential member? In considering this question, it is appropriate to note that there has been some fluctuation over time as to exactly what this principle requires; and I would take the present authoritative statement to be that in Fox v Percy [2003] HCA 22, 214 CLR 118, especially at pars [23]-[31].

52 In my opinion, it was open to the Presidential member to regard the difference between the written statements and the oral evidence as material inconsistencies, and to regard the divergence between the history as found by the Arbitrator and the history relied on by Dr Beer as also being material. The Presidential member was not rejecting or disregarding the Arbitrator’s finding as to the credibility of the appellant, but rather seeking to determine how that finding should be given effect to, in the circumstances. In those circumstances, in my opinion it could not be said that the approach taken by the Presidential member was contrary to the Abalos principle, or such as to indicate she was not complying with the Abalos principle.

53 In my opinion, if there were any error in her view as to inconsistencies in the appellant’s evidence and/or divergence between the findings of the Arbitrator and the history relied on by Dr Beer, this would at most be an error of fact. I note that in Paric v John Holland (Constructions) Proprietary Limited (1985) 59 ALJR 844 at 846, the High Court affirmed the view that the question whether the case assumed by an expert was “sufficiently like” the case proved to render the opinion of the expert of any value, was a question of fact.

54 Accordingly, in my opinion, assuming the Abalos principle applies, there was no error of law.

CONCLUSION

55 For those reasons, in my opinion, the appeal should be dismissed with costs.

56 McCOLL JA: I agree with Hodgson JA.

**********

Citations

Duinker v St Vincent de Paul Society Aged and Special Services Limited (Lewisham Nursing Home) [2008] NSWCA 127

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CITATION:	Duinker v St Vincent de Paul Society Aged and Special Services Limited (Lewisham Nursing Home) [2008] NSWCA 127
HEARING DATE(S):	20 May 2008
JUDGMENT DATE:	4 June 2008
JUDGMENT OF:	Beazley JA at 1; Hodgson JA at 2; McColl JA at 56
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	WORKERS COMPENSATION – Determination of claim by Arbitrator – Review of decision by Presidential member – Nature of review – Whether necessary for Presidential member to identify error – Whether Presidential member bound to apply the principle in Abalos – Whether error of law by Presidential member shown.
LEGISLATION CITED:	Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 294, 350, 352, 353, 354 Workers Compensation Commission Rules 2006 (NSW), Rule 15.6
CATEGORY:	Principal judgment
CASES CITED:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Boston Clothing Co v Margaronis (1992) 27 NSWLR 580 Fox v Percy [2003] HCA 22, 214 CLR 118 Mifsud v Campbell (1991) 21 NSWLR 725 Paric v John Holland (Constructions) Proprietary Limited (1985) 59 ALJR 844 Siddik v WorkCover Authority of NSW [2008] NSWCA 116 South Western Sydney Health Service v Edmonds [2007] NSWCA 16 State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; 185 ALR 703 Watson v Hanimex Colour Services Pty Limited (1992) 8 NSWCCR 190
PARTIES:	Nicole DUINKER (Appellant) ST VINCENT DE PAUL SOCIETY AGED and SPECIAL SERVICES LIMITED (Lewisham Nursing Home) ABN 7210 0907 0180 (Respondent)
FILE NUMBER(S):	CA 40558/07
COUNSEL:	P WEBB QC/ D A BAKER (Appellant) S G CAMPBELL SC/ P J MENARY (Respondent)
SOLICITORS:	Graham Jones (Appellant) Sparke Helmore (Respondent)
LOWER COURT JURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S):	WCC 11002-06
LOWER COURT JUDICIAL OFFICER:	Acting Deputy President Deborah Moore
LOWER COURT DATE OF DECISION:	3 May 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	St Vincent De Paul Society Aged & Special Services Limited (Lewisham Nursing Home) v Duinker [2007] NSWWCCPD 207