E-Dry Pty Ltd v Ker - [2017] NSWWCCPD 26

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	E-Dry Pty Ltd v Ker [2017] NSWWCCPD 26
APPELLANT:	E-Dry Pty Ltd
RESPONDENT:	Danaan Ker
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-4312/16
ARBITRATOR:	Mr W Dalley
DATE OF ARBITRATOR’S DECISION:	6 January 2017
DATE OF APPEAL DECISION:	15 June 2017
SUBJECT MATTER OF DECISION:	Section 9A of the Workers Compensation Act 1987; the probability that the injury or similar injury would have happened irrespective of the employment; s 9A(2)(d); drawing of inferences concerning the mechanism of injury; Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75 considered and applied; whether s 9A is satisfied is not purely a medical question; Awder Pty Ltd t/as Peninsular Nursing Home v Kernick [2006] NSWWCCPD 222 applied
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Hicksons
Respondent:	John McGuire & Associates
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 6 January 2017 is confirmed.

INTRODUCTION

This appeal concerns a challenge by the appellant employer to the Arbitrator’s finding that the worker’s employment was a substantial contributing factor to his injury, pursuant to s 9A of the Workers Compensation Act 1987 (the 1987 Act). In particular, it concerns the application of s 9A(2)(d), namely, the probability that the injury would have happened anyway if the worker had not been at work or working in the appellant’s employment.
For the reasons explained below, this appeal is unsuccessful.

BACKGROUND

In November 2015, Danaan Ker, the respondent worker, commenced employment for E-Dry Pty Ltd (E-Dry), the appellant employer. He was employed as a carpet cleaner. Part of his role required him to attend the residences of potential customers and provide quotes for carpet cleaning or restoring.
On 21 March 2016, Mr Ker was crossing a road (Ocean Street, Woollahra) to attend a job at a customer’s residence when he injured his right knee. The mechanism of injury is the subject of dispute. He was certified to have no current work capacity for approximately two months, following which E-Dry was unable to provide him with suitable duties.
Sometime prior to 4 May 2016, Mr Ker made a claim for compensation for medical expenses arising from the injury on 21 March 2016. In particular, he sought compensation for proposed right knee reconstruction surgery. (Mr Ker had two previous right anterior cruciate ligament reconstructions, in June 2011 and July 2013.)
On 4 May 2016, E-Dry’s insurer, Employers Mutual, issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying liability for the claim. It claimed, amongst other things, that pursuant to s 9A of the 1987 Act, Mr Ker’s employment with E-Dry was not a substantial contributing factor to any injury he may have sustained. It further claimed that the injury could have happened at any time and the link to work was not substantial. It relied on the report of Dr P Hitchen, orthopaedic surgeon qualified by the insurer, dated 26 April 2016.
On 7 September 2016, following a request for a review under s 287A of the 1998 Act, Employers Mutual issued a second s 74 notice confirming it denied liability for the claim. Amongst other things, relying upon Dr Hitchen’s report of 26 April 2016, it denied that Mr Ker’s employment was a substantial contributing factor to his right knee injury (s 9A). It noted that Mr Ker’s description of the mechanism of injury in his statement of 15 July 2016 was inconsistent with the description made during initial contact with its office, at which time he reported that he was “walking across the road” when his “knee gave way.” It added:
“You also reported to Associate Professor Leo Pinczewski, Orthopaedic Surgeon, who provided a report dated 30 March 2016 that you were simply running across the road when your knee gave way.
You reported to Dr Hitchen, who provided a report dated 26 April 2016, that you were merely crossing the road walking in a straight line when your right knee spontaneously collapsed on you. You were specific that you did not twist, pivot or turn nor did you step on any unusual or uneven ground.”
It further recorded that Dr Hitchen opined that the injury would have occurred when walking at any time or place and that there was nothing particular at work which induced the injury to the knee. It disputed that there was a connection which was real and of substance between employment and the injury.
Having regard to the inconsistencies between the version of events initially reported and that contained within Mr Ker’s statement, the insurer accepted the report of injury recorded in the contemporaneous evidence obtained at the time of the injury and denied liability.
On 19 August 2016, Mr Ker lodged with the Commission an Application to Resolve a Dispute (the Application). He sought compensation for medical expenses arising from the injury sustained on 21 March 2016. The injury is described to have happened as follows:
“[Mr Ker] was crossing a road to attend a job at a customer’s premises when he injured his right knee.”
On 9 September 2016, E-Dry filed a reply to the Application relying on the s 74 notices.
On 14 November 2016, the matter proceeded to conciliation/arbitration hearing. The parties were unable to settle and the Arbitrator reserved his decision.
On 6 January 2017, the Arbitrator issued a Certificate of Determination finding in favour of Mr Ker. The Arbitrator found that Mr Ker’s employment with E-Dry was a substantial contributing factor to the right knee injury. The Certificate of Determination is in the following terms:
“The Commission determines:
1. The applicant's employment with the respondent was a substantial contributing factor to the applicant's injury to the right knee in the course of his employment on 21 March 2016.
2. The proposed two-stage revision anterior cruciate ligament reconstruction of the right knee (the proposed surgery) constitutes reasonably necessary treatment in respect of that injury to the right knee.
3. The respondent is to pay the costs of and incidental to the proposed surgery pursuant to section 60 of the Workers Compensation Act 1987
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
E-Dry appeals the Arbitrator’s determination.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements in s 352(3) and (4) of the 1998 Act have been met.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(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.”
Having regard to Practice Directions Nos 1 and 6; 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.

LAY EVIDENCE

Mr Ker’s statement

In evidence is Mr Ker’s statement dated 15 July 2016. In his statement, Mr Ker states that on 21 March 2016 he woke to a very wet day. His first job was in Woollahra. He set his Navman to the customer’s address but unfortunately the Navman sent him to Bondi. He re-set the Navman but arrived at the customer’s address on Ocean Street 20 minutes late.
The weather was “teaming rain”; the gutters were almost overflowing and parking on site was impossible. He parked 30 metres from the customer’s address. He was running late and was rushing. The rain didn’t help. He exited his vehicle with his iPad and brochure. He was concerned about getting his shoes wet or muddy as he was not able to enter a customer’s premises with wet/muddy shoes or no shoes. He states that he:
“…therefore needed to lunge over the gutter so as to not saturate my shoes in the built up water from the rain; this I did with my right leg and landed on my left leg.
As my right leg took the next step my right leg gave way and I heard a loud crack. Causing me to stumble in an attempt to regain balance.”
He immediately notified his manager of the incident by telephone providing brief details. He then made his way to the customer’s front door but the customer was not home. He then called his manager again and provided him more details of the incident.

Oral evidence

During the arbitration proceedings, E-Dry was granted leave to cross examine Mr Ker as to the actions he was performing at the time of, and leading up to, the injury.
E-Dry’s counsel, Mr Halligan, referred to A/Professor Pinczewski’s report dated 30 March 2016 and the medical history recorded. Then the following exchange took place (T6.29):
“Q. [Mr Halligan:]…And then you told [A/Professor Pinczewski] that on the day of the accident, to quote, ‘On 21 March this year, while running across the road in the rain, his knee gave way, which caused him to fall. He heard a cracking noise and had swelling, and struggled to walk. He knew immediately that he had ruptured his anterior cruciate ligament reconstruction. He’s had two previous anterior cruciate ligament reconstructions.’ Now, is that consistent with what you have told him?
A. [Mr Ker:] Yes.”
Mr Halligan then referred to the evidence of Dr Hitchen and the medical history recorded in the doctor’s report (T7.13):
“Q. [Mr Halligan:]… And I'll read this, and you can tell me whether you agree with this recitation of the history.
‘On 21 March, 2016, he had arrived at a work job. He got out of his van and was immediately crossing the road, walking in a straight line, when his right knee spontaneously collapsed on him. He was specific he did not twist, pivot or turn, nor did he step on any unusual or uneven ground. Nevertheless, the feeling was identical to what he had experienced some years earlier when his knee collapsed running in a straight line.’
Now, is that consistent with what you’ve told Dr Hitchen?
A.    [Mr Ker:] The end of it is. The twisting, pivoting, that didn't happen, the twisting, pivoting.
Q.   [Mr Halligan:] No.
A.   [Mr Ker:] The injury occurred whilst jumping over a gutter.
Q.   [Mr Halligan:] I understand that’s what you're saying now.
A.   [Mr Ker:] Yes.
Q.   [Mr Halligan:] I'm asking you whether you have any disagreement with what's recorded by Dr Hitchen - - -
A.   [Mr Ker:] I don’t - - -
Q.   [Mr Halligan:] - - - during that consultation.
A.   [Mr Ker:] I don’t remember saying that I was just walking straight out of the van.
Q.   [Mr Halligan:] Well, do you deny telling him that?
A.   [Mr Ker:] Pardon?
Q.   [Mr Halligan:] Do you deny telling him that?
A.   [Mr Ker:] Yeah, I don’t recall telling, saying to him that I was just walking straight from the van.”
Mr Halligan then referred to Mr Ker’ statement dated 15 July 2016. In particular, Mr Halligan referred (T9.5) to Mr Ker’s record of the incident and that he stated he “needed to lunge over the gutter so as not to saturate my shoes in the built-up water from the rain”. Mr Halligan added (at T9.15):
“Q. [Mr Halligan:] To state the obvious, the detail of your lunging and trying to avoid getting your shoes wet, and that other description, doesn't form part of anything you've told to either of the doctors. You didn't say any of that to A/Professor Pinczewski.
A.   [Mr Ker:] No. Dr Pinczewski, when I went to Dr Pinczewski, it was all about getting my knee fixed.
Q.   [Mr Halligan:] Sure.
A.   [Mr Ker:] It wasn’t ask a million questions. Dr Pinczewski was simply ‘Doc, I've got a bad leg. I need to fix it. What do I need to do?’”
Mr Halligan then referred to the “Knee Injury Assessment Form” dated 30 March 2016, which Mr Ker agreed he had signed (T11.10). Mr Halligan recites the following information recorded on the form (T11.15):
“Q. [Mr Halligan:] - - - the question is ‘Please give a brief description of how you injured your knee.’ And your response is ‘As I started to run across the road, my right knee gave out.’ Now, Mr Ker, you’re agreeing with me that there’s no reference to lunging or moving in a way that has you avoid getting your feet wet in a way that - - -
A. [Mr Ker:] No, yeah, no, I haven't fully described the incident, no.”

MEDICAL EVIDENCE

In evidence are the clinical notes of Mr Ker’s general practitioner, Dr Michael Sorani. Dr Sorani’s clinical notes, dated 21 March 2016, record the following:
“this morning his right knee gave a way - heared [sic] a crack, having severe pain,history of right ACL repair twice-last one about three years ago and first one about 12 years ago
mild swelling and effusion,very tender ACL and lateral mensci
possibilities with managmnet has explained
arrange MRI ,knee support,analgesia if necessary”
Following a referral from Dr Sorani, Mr Ker attended on A/Professor Pinczewski, orthopaedic surgeon. In a report dated 30 March 2016, A/Professor Pinczewski recorded a history of the incident on 21 March 2016. He recorded that:
“whilst running across the road in the rain [Mr Ker’s] knee gave way which caused him to fall. He heard a cracking noise and had swelling and struggled to walk. He knew immediately that he had ruptured his anterior cruciate ligament reconstruction.”
In the “Knee Injury Assessment Form” also dated 30 March 2016, A/Professor Pinczewski records a history of the incident as follows: “as I started to run across the road, my right knee gave out”.
In A/Professor Pinczewski’s clinical handwritten notes, also dated 30 March 2016, the following is recorded:
“21/3/16 -> crossing road in rain
  jogg
  [indecipherable]
  Fall -> grinding noise
swelling
struggling to walk”
On 23 March 2016, Mr Ker underwent an MRI of his right knee. In a report by Dr Ramesh Cuganesan, it is concluded that there is evidence of a “rupture of the ACL graft”. It is also noted that there is “an osteochondral impaction injury involving the posteromedial margin of the medial tibial condyle”.
On 26 April 2016, Mr Ker was examined by Dr Hitchen, at the request of the insurer. In a report dated the same, Dr Hitchen records a history of the incident on 21 March 2016 as follows:
“He got out of his van and was merely crossing the road walking in a straight line when his right knee spontaneously collapsed on him. He is specific he did not twist, pivot or turn nor did he step on any unusual or uneven ground.”
Dr Hitchen described the injury as “rather innocuous”. However, the injury occurred “during working hours and as such, employment is a substantial contributing factor.” He added:
“There are no obvious non-work related factors contributing to his current presentation however I concede that the mechanism of injury was rather trivial and not the usual type of activity that one would associate with an acute ACL rupture.”
Dr Hitchen further recorded that:
“it is conceivable however that he would have sustained the injury at or the same time in his life as it is simply a normal daily activity to walk in a straight line. Accordingly there was nothing particular at work that induced the injury to his knee as it equally could have happened when walking at any time or any place.”
Dr Hitchen added that “[i]t just so happens that the injury occurred whilst he was at work and hence employment appears a substantial contributing factor.”
On 20 September 2016, at the request of E-Dry’s legal representatives, Dr Hitchen provided a supplementary report specifically addressing s 9A(2) and (3). He drew attention to the fact that the mechanism of injury at work was “seemingly trivial” and the history recorded in his earlier report of the knee collapsing when walking in a straight line. He then reproduced the comment contained in his previous report, which is quoted at [32] above. Dr Hitchen then concluded, in light of the explanation of the Act coupled with his own opinion, employment was not a substantial contributing factor to the right knee injury.

THE 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.”

THE ARBITRATOR’S REASONS

After referring to relevant authorities, the Arbitrator noted (at [30]) that s 9A(2) “provides the framework upon which the argument as to causation has to be constructed”. He also noted that it is not sufficient to find that the injury occurred in the course of employment (which in this case is agreed). However, he noted that, it is necessary to have regard to the matters listed in s 9A(2) while taking into account the whole of the evidence, in order to determine whether there is a causal connection that is “real and of substance”.
The Arbitrator’s findings record the history of injury as provided by Mr Ker to A/Professor Pinczewski and Dr Hitchen. He noted in particular that Dr Hitchen considered it conceivable that Mr Ker could have sustained injury at the same time in his life as “it is simply a normal daily activity walking in a straight line”. The Arbitrator also noted that in his report of 20 September 2016, Dr Hitchen said that he considered that the knee spontaneously collapsed whilst Mr Ker was walking in a straight line without any twist, pivot or turn, nor that he was on any unstable or uneven ground. The Arbitrator noted Dr Hitchen’s conclusion that the event was random and it just so happened that it occurred at work. The Arbitrator found on the balance of probabilities that the manner in which the injury was sustained was that described by Mr Ker in cross-examination and re‑examination. He held (at [44]):
“That account closely aligns with the description recorded on the pro forma supplied to Dr Pinczewski. Mr Ker said in re-examination that he had parked his van on the left hand side of a road leading up to Ocean Street, Woollahra, got out carrying his iPad and brochure and crossed to the side of the road on the left hand side of his van. He had then walked to the kerb at the intersection of the road in which he was parked and Ocean Street.”

The Arbitrator accepted Mr Ker’s evidence that as it was raining he was conscious of trying to keep his shoes dry prior to entering the customer’s home.
The Arbitrator accepted Mr Ker’s evidence notwithstanding the apparent contradiction in the history given to Dr Hitchen. Mr Ker admitted there had been no pivoting or twisting or contact with uneven ground and that it was clear that he was walking as he approached Ocean Street.
The Arbitrator noted that it was unclear how Dr Hitchen had come to record that Mr Ker continued to walk after reaching the kerb at Ocean Street. That was partially so given that Mr Ker had previously told A/Professor Pinczewski, in his own words, that he was beginning to run.
The Arbitrator said (at [47]):
“Mr Ker used the word ‘lunged’ to describe his action in crossing the gutter, taking off on his right leg and landing on the left and taking a further pace on to the right leg at which point he noticed the onset of symptoms with the collapse of the leg.”
The Arbitrator found that Mr Ker’s use of the word “lunged” was consistent with the history provided to A/Professor Pinczewski, namely, “as I started to run across the road my right knee gave out”. The Arbitrator found (at [48]) that Mr Ker was clear in his evidence that he had walked to the corner of Ocean Street and upon reaching the kerb he “changed from a normal walking gait to an action designed to project himself across the flow of water in the gutter and to carry him rapidly across the road”.
The Arbitrator accepted that Mr Ker did not tell A/Professor Pinczewski about the lunging, but he accepted Mr Ker’s evidence that when he gave him that history, he was more concerned with treatment “rather than establishing a claim”. He accepted that the action of “lunging” across the gutter constituted the commencement of an action that Mr Ker described as running across the road but which was cut short by the collapse of the right knee.
The Arbitrator held (at [51]) that it was reasonable to infer that the action described by Mr Ker would have placed greater strain on the right knee than would have been the case had he continued to walk.
Further the Arbitrator held (at [52]) that Dr Hitchen’s opinion was based on an assumption that Mr Ker walked across the road in a straight line. He was satisfied that this was not the action carried out by Mr Ker on the day in question.
The Arbitrator found (at [53]):
“…that Mr Ker walked to the kerb at the intersection of Ocean Street at which point he applied additional force through his right leg to project himself across the water flowing in the gutter and with the intention of then running across the road.”
Having completed the fact finding exercise, the Arbitrator then turned his attention to the examples of matters to be taken into account in s 9A(2) for the purposes of determining whether Mr Ker’s employment was a substantial contributing factor to the injury.
The Arbitrator did not accept Dr Hitchen’s opinion that the injury could have happened at any time in Mr Ker’s life whether or not he had been at work. That was because Dr Ker’s opinion was based on an assumption that Mr Ker was walking across the road which the Arbitrator did not accept. The act of “lunging” which the Arbitrator accepted was attributable to Mr Ker’s consciousness that he was late for an appointment, and his attempt to keep his shoes dry given that he intended to enter a customer’s home.
Dr Hitchen regarded Mr Ker’s knee as essentially “normal” before the subject injury. The limited medical evidence suggested that Mr Ker suffered from a congenital abnormality which had not prevented him from engaging in sporting activities or full-time employment, although he used a knee guard when undertaking sporting activities likely to impose a strain on his knee.
The Arbitrator concluded (at [61]) that there was nothing in the medical evidence to suggest that the right knee condition caused the rupture of the graft which constitutes the subject injury. There was nothing in the evidence to suggest that any pre-existing condition, Mr Ker’s lifestyle, or activities outside the workplace played any causative role in the injury.
The Arbitrator summarised his conclusions. He found (at [62]):
“I am satisfied that Mr Ker suffered injury to his right knee whilst performing an activity that formed part of his employment in moving from his work van to the home of potential customer and that the injury he suffered came about because Mr Ker applied force to the right leg and knee ‘lunging’ on that leg across the water flowing in the gutter and then commencing a running action so that he suffered the rupture of the graft when he commenced to take the next step in [sic] with his right leg. I am satisfied that the connection between the injury and employment was one that is real and of substance.”

GROUNDS OF APPEAL

E-Dry alleges that the Arbitrator erred in:
(a) failing to observe that Mr Ker bore the onus of establishing the matters in s 9A of the 1987 Act;
(b)     failing to observe that it was incumbent on Mr Ker, to discharge this onus, to bring evidence of causation. Such evidence was absent;
(c)     failing to observe that Mr Ker had failed to provide any expert qualified on his behalf, a statement setting out the facts upon which he wished to rely;
(d) determining that the evidence before him satisfied s 9A;
(e) failing to take into consideration the matters set out in s 9A(2), particularly s 9A(2)(d);
(f)      determining (at [44]) that Mr Ker’s account in his statement “closely aligned” with an earlier account and was accordingly acceptable;
(g)     rejecting Dr Hitchen’s opinion that the fact that the injury occurred was simply coincidental, after having accepted the basis for Dr Hitchen’s conclusion that there was no twist, pivot or turn, nor was Mr Ker on unstable or uneven ground;
(h)     making a finding (at [53]) which was critical to his conclusion and which was not available to him, there being no medical evidence to support it;
(i)      rejecting Dr Hitchen’s opinion on an irrelevant ground (that Dr Hitchen had assumed that the worker was walking whereas the Arbitrator found that the worker was “lunging”). The only relevant matters to Dr Hitchen’s opinion were that there was no twisting, pivoting or turning, nor was Mr Ker on any unstable or uneven ground. All these matters were established, and
(j)      failing to observe that the only evidence on causation was contrary to the conclusion which the Arbitrator drew. A/Professor Pinczewski did no more than observe that the worker was running in the rain when his knee gave way. The doctor was not given the history which was given to the Arbitrator. Nor did the doctor advance any view on causation.

SUBMISSIONS

E-Dry’s submissions

Grounds one, two and three – that the Arbitrator erred in failing to observe that Mr Ker bore the onus of establishing the matters in s 9A of the 1987 Act; that it was incumbent on Mr Ker, to discharge this onus, to bring evidence of causation, which was absent and that Mr Ker had failed to provide expert evidence based on a statement setting out the facts upon which he wished to rely

E-Dry did not dispute the temporal connection between the injury and employment but disputed employment was a substantial contributing factor to the injury. Mr Ker bore the onus of proof and had to demonstrate that the contribution of employment was one which was “real and of substance”: Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75 (Badawi).
The s 74 notice of 7 September 2016 put Mr Ker on notice that E-Dry disputed that his employment was a substantial contributing factor to the injury. This was because of the history provided to Dr Hitchen, that Mr Ker was merely crossing the road walking in a straight line when his right knee spontaneously collapsed. The incident did not involve a twist, pivot or turn motion, or occurred from stepping on unusual or uneven ground.
The Arbitrator erred by failing to consider that Mr Ker had not introduced expert evidence to support his contention that employment was a substantial contributing factor. The only expert evidence introduced by Mr Ker was that of A/Professor Pinczewski, whose report did not advance Mr Ker’s case for the following reasons:
(a)     A/Professor Pinczewski did not acknowledge the expert’s code;
(b)     A/Professor Pinczewski did not comment on any causal link between Mr Ker’s activities on 21 March 2016 and the damage Mr Ker suffered that day to his anterior cruciate ligament reconstructions, and
(c)     A/Professor Pinczewski was not given an account of events on which Mr Ker relied in his case to the Arbitrator.
A/Professor Pinczewski’s report to Dr Sorani stated that Mr Ker was running across a road in the rain when his knee gave way which caused him to fall.
To demonstrate the role of employment in contributing to the injury Mr Ker relied upon his statement of 15 July 2016 (at [11]–[13]). He did not rely on any medical evidence commenting on the mechanism of injury. The evidence of Drs Sorani, Cossetto and Pinczewski did not address the question how the injury related to work. No explanation was advanced as to why such an opinion could not have been placed before the Commission.
It was imperative that Mr Ker demonstrate the manner in which the events on which he relied contributed to his injury. Mr Ker failed to provide any medical practitioner with the history on which he sought to rely. The Arbitrator did not address that failure and in so doing erred.

Grounds four and five – that the Arbitrator erred in determining that the evidence before him satisfied s 9A and in failing to take into consideration the matters set out in s 9A(2), particularly s 9A(2)(d)

E-Dry relies on the observations of Deputy President O’Grady in Taylor v PJM Building Management Pty Ltd [2013] NSWWCCPD 52 (Taylor) (at [53] and [59]). In particular E-Dry submits that “the task before the Arbitrator required evaluation by him of the linkage between employment and injury” (per O’Grady DP at [59]).
The Arbitrator proceeded by applying High Court authority in Comcare v Martin [2016] HCA 43 (Comcare v Martin) on the basis that s 9A(2) provided the framework upon which the argument as to causation had to be constructed but failed to apply the purposive approach required.
The Arbitrator erred by considering whether Mr Ker’s account of his movements on 21 March 2016 could, as a matter of common sense, support a conclusion that the special requirements of “lunging” over a gutter “provided a basis for lifting the matter out of the framework of s 9A(2)”. In proceedings before the Arbitrator it had been submitted that s 9A(2)(d) had particular application, namely the probability of the injury or a similar injury happening at about the same time or about the same stage of Mr Ker’s life if he had not been at work or had not worked in that employment.
It is an undisputed fact that Mr Ker suffered a rupture of his anterior cruciate ligament (ACL) in March 2011 and following surgery experienced a re-rupture of the graft in June 2013. The Arbitrator noted (at [46]) that Mr Ker frankly admitted that there had been no pivoting or twisting or contact with uneven ground and, so it is submitted, he was walking as he approached the kerb at Ocean Street.
E-Dry submits that the Arbitrator impermissibly formed his own view about the manner in which the “lunging” had caused the rupture of the graft where the Arbitrator said (at [62]):
“The injury he suffered came about because Mr Ker applied force to the right leg and knee ‘lunging’ on that leg across the water flowing in the gutter and then commencing a running action so that he suffered the rupture of the graft when he commenced to take the next step in with his right leg. I am satisfied that the connection between the injury and employment was one that is real and of substance.”
E-Dry submits that the critical error lies in the fact that the Arbitrator’s thesis is entirely without medical support.

Ground six and ground eight – that the Arbitrator erred in determining that Mr Ker’s account in his statement “closely aligned” with an earlier account and was accordingly acceptable, and in making a finding which was critical to his conclusion which was not available to him

E-Dry submits that the Arbitrator made a significant error of fact when dealing with the absence, in any account prior to Mr Ker’s statement of 15 July 2016, of an account of his “lunging over the gutter”.
In answer to the questionnaire for A/Professor Pinczewski, Mr Ker said that he was “crossing a road”. When asked to give a brief description of how he injured his knee he said “as I started to run across the road, my right knee gave out”.
The Arbitrator found (at [44]) that Mr Ker’s description to A/Professor Pinczewski closely aligned with the account given by Mr Ker in his statement. It is submitted that there can be no justification for the finding that the two accounts closely aligned.
The words “as I started to run across the road, my left leg gave out” do not have the same import as “I lunged over a gutter, landing on my left leg”. The word “landed” is only consistent with a leap, thus it is submitted the meaning of the word “lunge” as used by Mr Ker is clear.
Rather than closely aligning, the two accounts are incompatible. The alignment of the two accounts was central to the Arbitrator’s conclusion, which E-Dry submits is “unsupportable and erroneous”. Quite apart from its absence as the basis for any expert report, there is significant doubt about the account of “lunging”.

Ground seven – that, having accepted that the basis for Dr Hitchen’s conclusion was accurate, the Arbitrator fell into error in rejecting Dr Hitchen’s opinion that the fact that the injury occurred was simply coincidental

It was central to Dr Hitchen’s conclusion that there was no twisting, pivoting or turning and there was an absence of any unusual or uneven ground. So much was conceded by Mr Ker in his evidence to the Commission.
The similarity with the event in 2013 is notable and that was clearly an important matter for Dr Hitchen.
The apparent concession by Dr Hitchen, namely that there were no obvious non-work related factors contributing to the injury, was rectified in his report of 20 September 2016 where he stated that there was nothing particular about the work that induced the injury, and that it could have happened when walking at home or at any place.
Given Mr Ker’s concession that there was no twisting, turning or pivoting, or the presence of unstable or uneven ground, there was no basis for the Arbitrator to reject Dr Hitchen’s opinion.

Ground nine – that the Arbitrator made a finding at [53] which was critical to his conclusion and which was not available to him, there being no medical evidence to support it

The Arbitrator stated (at [53]):
“Accordingly, I find Mr Ker walked to the curb at the intersection of Ocean Street at which point he applied additional force through his right leg to project himself across the water flowing in the gutter and with the intention of then running across the road.”
This finding exceeded the Arbitrator’s authority. His task was to evaluate the evidence with a view to establishing whether Mr Ker had discharged the onus. It was not for the Arbitrator to provide an explanation that might fill the gap in Mr Ker’s case, when no evidence existed to support that explanation.

Ground ten – that the Arbitrator erred in failing to observe that the only evidence on causation was contrary to the conclusion which the Arbitrator drew. A/Professor Pinczewski did no more than observe that Mr Ker was running in the rain when his knee gave way. The doctor was not given the history which was given to the Arbitrator. Nor did the doctor advance any view on causation.

E-Dry submits that A/Professor Pinczewski’s evidence fell well short of the requirements for expert evidence in matters proceeding in the Commission (South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 provides (between [127] and [140]) (Edmonds)). The Commission is to bear in mind the principles that evidence should be logical and probative; should be relevant to the fact in issue and the issues in dispute, and that evidence “based on speculation or unsubstantiated assumption is unacceptable” and that “unqualified opinions are unacceptable” (Edmonds).

Mr Ker’s submissions

Grounds one, two and three

Satisfaction of s 9A was the only issue in dispute in the proceedings. From a reading of the Arbitrator’s decision as a whole, it is clear that he was conscious of the fact that the onus rested with Mr Ker.
Whether the “employment concerned” was a “substantial contributing factor” so as to fulfil the s 9A test involves a causative element (Badawi). Causation is a fact-laden conclusion which must involve a common sense approach: March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506 (March v Stramare); Nunan v Cockatoo Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119 (Nunan).
Section 9A requires a consideration of “the employment concerned” to ascertain whether it is a substantial contributing factor to the injury, given the relevant circumstances in which the injury occurred, including the matters in s 9A(2).
Mr Ker submits that the Arbitrator had before him various pieces of evidence to prove that the contribution from employment was real and of substance. This included Mr Ker’s statements, history provided to the treating doctor, A/Professor Pinczewski, and Mr Ker’s oral evidence after cross-examination. Even though that oral evidence was contradictory of the history recorded by Dr Hitchen, the Arbitrator was entitled to conclude that employment was a substantial contributing factor from an examination of all of the evidence as a whole.
The Arbitrator did not accept the history recorded by Dr Hitchen, namely that Mr Ker was merely walking at the time of the injury, was accurate. He rejected that evidence in favour of Mr Ker’s oral evidence that he had lunged over water and was hurrying as he was late and had formed an intention to run. The Arbitrator applied the common sense approach to find that he was satisfied of the elements of s 9A, even though he accepted that there was no pivot or twist of the knee at the relevant time (March v Stramare and Nunan).
The test for the satisfaction of the provisions of s 9A is a legal test. Whether the employment concerned was a substantial contributing factor to the injury for the purposes of s 9A is a question to be decided on the evidence overall including a consideration of the matters described in s 9A(2), which do not limit the factors which may be taken into account. It is not purely a medical question: Awder Pty Ltd t/as Peninsular Nursing Home v Kernick [2006] NSWWCCPD 222 (Kernick).
There is no requirement that medical opinion in a confirmatory sense address the causative issue of whether employment is a substantial contributing factor: Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen) at [60]–[61].
The Arbitrator made it clear (at [17] and [49]) that he accepted Mr Ker’s explanation for the discrepancy in his history to A/Professor Pinczewski, namely that at the point that he provided the history he was concerned with treatment “rather than establishing a claim”.
The Arbitrator’s reasons (at [48]–[50]) deal with the evidentiary basis for the imposition of a greater than usual force on Mr Ker’s knee as described by him in his evidence. The Arbitrator accepted that evidence as a proven fact. The question of whether the employment was a substantial contributing factor was then determined upon that factual basis.

Ground four

Mr Ker submits that the Arbitrator reasonably inferred that the lunge and commencement to run action would have placed greater strain on the right knee. The Arbitrator was permitted to arrive at the decision that he did “when deciding on the evidence overall, including the matters in s 9A(2). It was not purely a medical question.”

Ground five

Mr Ker repeats his earlier submissions.

Ground six

Mr Ker submits that the Arbitrator accepted his account of lunging off the gutter to avoid water was consistent with him commencing to run across the road when avoiding the water in the gutter, at which time his leg gave way as he commenced to move off his right leg having landed on his left leg. He relied on his oral evidence in cross-examination.

Ground seven

Mr Ker submits that the basis of this submission rises or falls upon the Arbitrator’s acceptance of the history of walking across the road as recorded by Dr Hitchen. The Arbitrator preferred Mr Ker’s evidence following cross examination. Dr Hitchen’s evidence cannot be afforded the weight contended by E-Dry on the Arbitrator’s acceptance of Mr Ker’s history (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [85] (Makita)).

Ground eight

Mr Ker submits that there was no error under this ground for the reasons submitted in response to ground seven.

Ground nine

Mr Ker submits that this was a finding of fact based upon Mr Ker’s evidence before the Arbitrator and did not require a medical opinion. Presuming that E-Dry’s point is that there was no medical evidence on “applied additional force through his right leg” then it would be a common sense approach to determine that that was so.

Ground ten

Informed by the whole of the evidence and accepting Mr Ker’s evidence as to the specific manner in which he crossed the road, the Arbitrator was entitled to find as he did. The historical records of A/Professor Pinczewski were accepted as being consistent with Mr Ker’s statement as to how his right knee injury occurred and was contemporaneous.

Submissions in reply

Ground one

E-Dry disputes that Mr Ker’s statements together with his oral evidence and the histories to the various medical practitioners provided evidence of “the nature of the causal connection” required by the legislation (Badawi at [114]).
E-Dry submits that the Arbitrator noted that it was insufficient to find injury occurred in the course of employment ([30]-[31]). The Arbitrator did not state that it was for Mr Ker to provide the additional evidence. Here, Mr Ker did not.
Satisfaction of s 9A is not purely a medical question (Kernick). In this case there was a complete absence of expert evidence on the issue of causation and therefore the onus was not discharged.

Ground two

Referring to Nguyen and Kernick, E-Dry submits that there may well be more needed than the evidence of an expert to discharge the onus. However, so it is submitted, “this is far from dispensing with the need for some form of expert evidence to establish the causal linkage in the manner required by Badawi”.
The Arbitrator accepted that Mr Ker “lunged”. However, in the absence of any evidence of what may be involved in ‘lunging’ to “set at nought the clear evidence from Dr Hitchen”, the Arbitrator was not at liberty to draw his own conclusion.

Ground three

E-Dry repeats its response to ground two.

Ground four

The decision in Kernick does not assist Mr Ker, for the reasons set out above.

Ground five

The Arbitrator’s reasons for rejecting Dr Hitchen’s evidence lacked support from any evidence.

Ground six

Mr Ker’s submissions fail to deal with the stark difference between A/Professor Pinczewski’s history and Mr Ker’s statement. The proposition that the two closely align is unsupportable. To treat them on the basis that they closely aligned was an error.

Ground seven

The reference to Makita is “counter-productive”. The Arbitrator accepted the evidence that there was no twisting, pivoting or turning involved in the injury. Therefore, applying Makita principles, the opinion was admissible and in the absence of a contrary opinion, persuasive.
The “lunge”, even if it was a matter properly found, did not introduce a twist, pivot or turn. It did not undermine Dr Hitchen’s opinion.

Ground eight

E-Dry repeats its submissions in response to ground six.

Ground nine

E-Dry submits that the Arbitrator was not entitled to “embark on an analysis of the forces involved in the action described by Mr Ker, and the pathological effect of those forces.” That was a matter which could easily have been addressed by a medical practitioner qualified by Mr Ker, but was not.

Ground ten

A/Professor Pinczewski’s evidence does not support Mr Ker’s position on the satisfaction of s 9A. A/Professor Pinczewski’s clinical notes are not consistent with Mr Ker’s statement and Mr Ker acknowledged this (at [49]). “It is for the very reason that there was an absence of a suggestion of ‘lunging’ that the arbitrator went on to excuse Dr Pinczewski on the ground that the doctor’s principal concern was with treatment.”

DISCUSSION AND FINDINGS

The test under s 9A requires an applicant for compensation to establish that the employment concerned is a substantial contributing factor to the injury. It is a question of fact which is determined following an evaluation of all the evidence (Dayton v Coles Supermarkets Pty Ltd [2011] NSWCA 153; 22 NSWCCR 46 at [29]; Hevi Lift (PNG) Ltd v Etherington[2005] NSWCA 42; 2 DDCR 271 at [105]–[106] 299 per McColl JA (Mason P and Beazley JA agreeing)).
Considering the application of s 9A, the Court of Appeal in Badawi said (at [82], per Allsop P, Beazley and McColl JJA):
“First, and perhaps most importantly, the word ‘substantial’, must be given effect. .... As Meagher JA said, something which is minor is not substantial, or, as Davies AJA said [in Dayton v Coles Supermarkets Pty Ltd [2011] NSWCA 153; 22 NSWCCR 46 (Dayton)], ‘substantial’ as it appears in s 9A means ‘in a manner that is real and of substance’ and does not apply where, as a matter of practical reality, the contribution of the employment to the injury was of, or had, ‘little substance’. We agree with his Honour that it is not useful to search for or use other terms, such as ‘large’, or ‘weighty’, or by way of further example, other concepts such as ‘predominant’. We consider that to do so may carry the vice of introducing concepts with different nuances from the words used by the legislature and which would take the meaning of the word beyond that needed to fulfil the purpose of the provision in its legislative context. In this respect, we prefer the views of Davies AJA in Dayton to the views in the extempore judgment in [Bulga Coal Management Pty Ltd v Sager [2004] NSWCA 443], which did not refer to Dayton and to the views of Mason P in [Mercer v ANZ Banking Group [2000] NSWCA 138; 48 NSWLR 740; 20 NSWCCR 70 (Mercer)]. The words of the statute should be adhered to: ‘a substantial contributing factor’. The ‘proper link’ in the legislative context was a causal connection expressed by the words ‘a substantial contributing factor’, meaning one that was real and of substance. ...”
Section 9A requires consideration of “the employment concerned” to determine whether it was a substantial contributing factor to the injury in view of the relevant circumstances in which the injury occurred, including matters in s 9A(2) (Badawi at [105]). In Badawi the plurality stated (at [101]):
“… a decision maker, in determining under s 9A whether the employment concerned is a substantial contributing factor, is required to consider the employment concerned and the circumstances surrounding the occurrence of the injury, including activities that might be undertaken during an interval in the employment. Those circumstances may be fully encompassed by the factors specified in s 9A(2), or there may be other factors that are relevant to take into account.”
It is not sufficient to find that as injury under s 4 is established the employment concerned was ‘a substantial contributing factor’ under s 9A. Sections 4 and 9A require independent satisfaction (s 9A(3)). Having said that, as the Court of Appeal in Badawi said (at [85]):
“there may be circumstances where the factors considered necessary and sufficient to satisfy the test ‘arising out of employment’ for the purposes of s 9, are sufficient to satisfy the test in s 9A. Whether that is so will depend on the facts. Both are factual questions…It is not sufficient to find that injury arose out of ‘employment’ and to thereby be able to conclude that the employment concerned was a ‘substantial contributing factor’.”
Section 9A(2) provides a non-exhaustive list of matters to be considered in determining whether the worker’s employment is a substantial contributing factor (Badawi; See v Commissioner of Police [2017] NSWDC 6 at [13] (See)). In Badawi (at [89], applied in Fox v NSW Police Force [2012] NSWIRComm 134 at [22] (Fox)) the Court said:
“To the extent that the matters specified in paras (a)-(f) are relevant to the case under decision, they must be taken into account and applied according to their terms. A decision maker is not confined to the matters specified in s 9A(2) and may take into account other factors that are relevant to the determination of the question in issue: viz, whether the employment concerned was substantial contributing factor to the injury.”
The assessment of whether the employment is a substantial contributing factor to the injury is not solely a medical question but a question which is based on “an assessment of all the evidence, lay and expert” (Smith v Parkes Shire Council [2010] NSWWCCPD 130 (confirmed by Court of Appeal in StateCover Mutual Ltd v Smith [2012] NSWCA 27)).
Whether employment is a substantial contributing factor to an injury is a “question of fact and is a matter of impression and degree (McMahon v Lagana [2004] NSWCA 164; 4 DDCR 348 (McMahon)) to be decided after a consideration of all the evidence” (Duc Dien Tran v Salmat Document ManagementSolutions Pty Ltd [2008] NSWWCCPD 147 at [72]). This is an evaluative process (State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71 at [72]). In Kernick, Acting Deputy President Snell (as he then was) said (at [31]):
“In considering whether the Worker had suffered compensable injury in the employ of the Second Employer, it was necessary firstly for the Arbitrator to deal with the question of whether, on the evidence overall, he was satisfied an injury had occurred. If he was so satisfied, it was necessary that he consider the provisions of section 9A, in deciding whether the injury was compensable. Whether ‘the employment concerned was a substantial contributing factor to the injury’ for the purposes of section 9A is a question to be decided on the evidence overall, including a consideration of the matters described in section 9A(2). It is not purely a medical question.”
Expert evidence may assist in determining questions of causation but is not necessarily determinative. In Nguyen, Justice McDougall (McColl and Bell JA agreeing) said (at [60]-[61]):
“In a particular case, expert evidence may assist the court to find causation in fact; but the court is not bound by an expert’s expression of an opinion that, on the balance of probabilities, a causal relationship has been established… The court does not abdicate its responsibility to an expert; an expert’s opinion cannot be determinative, particularly in relation to ultimate facts.
… the inference of causation may be drawn from all of the evidence in the case, including expert evidence as to the possibility that the causal relationship exists. And a number of pieces of evidence, considered together, may justify the drawing of an inference as to causation when none of them, considered individually, could do so.”
The Arbitrator identified (at [54]–[63]) the evidence that supported the conclusion that s 9A was satisfied. In summary form, the matters upon which the Arbitrator relied were:
(a)     the injury occurred during Mr Ker’s normal working hours and at a time that had been governed by an appointment with a potential customer;
(b)     the incident occurred on the direct pedestrian route between the place where Mr Ker parked his work van and the customer’s home;
(c)     Mr Ker was at the precise location, pursuant to a direction by his employer, to inspect the customer’s property for the purpose of providing a quote for the cost of carpet cleaning;
(d)     Mr Ker was rushing at the time of the incident because he was late for the appointment;
(e)     it was raining and the gutter contained a substantial quantity of water;
(f)      Mr Ker lunged over the gutter in order to straddle water gushing along the kerb in an attempt to keep his shoes dry and free from debris prior to entering the customer’s home;
(g)     he had been instructed not to remove his shoes before entering a customer’s home and would be wary of entering the house with wet shoes;
(h)     the action of lunging across the gutter placed force on Mr Ker’s right knee resulting in the immediate rupture of his anterior cruciate ligament reconstruction;
(i)      although Mr Ker suffered from a congenital abnormality of the knee, it had not prevented him from engaging in regular sporting activities and full time employment prior to the injury;
(j)      the absence of any medical evidence to suggest that the right knee condition caused the rupture of the graft which constituted the subject injury, and
(k)     the absence of any lifestyle activities that played a causative role.
These findings were correct and do not reveal any error. In addition there is no dispute that Mr Ker suffered immediate pain and swelling, that he immediately reported the incident and sought immediate treatment.
E-Dry’s submissions ignore that the legislation requires that the employment is a substantial contributing factor to the injury. The use of the indefinite article admits the possibility of other, possibly non-employment-related, substantial contributing factors (Department of Education & Training v Sinclair [2005] NSWCA 465 and Badawi at [48]). Satisfaction of s 9A does not require a worker to establish that the employment is the substantial contributing factor to the injury.
The evidence overwhelmingly supported the conclusion that the contribution of the employment to the injury was “real and of substance” (Badawi). The submission that the Arbitrator was not conscious that Mr Ker bore the onus or that the onus had been discharged is rejected. I was not directed to any aspect of the Arbitrator’s reasons to support the submission. In any event, a reading of the Arbitrator’s decision as a whole demonstrates that he carefully and methodically examined all of the evidence before finding s 9A was satisfied.
The focus of the challenge on appeal concerns the Arbitrator’s finding regarding one of the examples of the matters to be taken into account in determining s 9A, namely the probability that the injury would have happened anyway if Mr Ker had not been at work or working in the employment of E-Dry (s 9A(2)(d)). There is no challenge to the Arbitrator’s conclusions that the answer to the remaining indicia contained in s 9A(2) favoured the conclusion that the employment was a substantial contributing factor.
The Arbitrator’s reasons for reaching the conclusion that he could not be satisfied that the injury would probably have happened at the same time or the same stage of Mr Ker’s life are explained (at [57]–[60]). In summary, those reasons were:
(a)     Dr Hitchen’s opinion that the injury “could” have happened at any time in Mr Ker’s life irrespective of whether or not he was at work was based upon an incorrect history. Namely, that Mr Ker was walking as he crossed the road which was found not to be the case.
(b)     Dr Hitchen regarded Mr Ker’s knee as essentially “normal” before the subject injury. Mr Ker suffered from a congenital abnormality of the knees but this had not prevented him from engaging in active sporting activities and full-time employment, although he used a knee guard when undertaking sporting activities likely to impose a strain on the knee.
(c)     the steps taken by Mr Ker after leaving the kerb were consistent with a running action so that “substantially greater force was applied to the right knee as he took the next step following landing on the left leg”.
(d)     Mr Ker was running late for an appointment with a customer.
(e)     Mr Ker had to cross a gutter containing a quantity of flowing rain water.
(f)      Mr Ker initially lunged across the gutter as he began to run across Ocean Street towards the customer’s home.
(g)     Mr Ker was conscious of keeping his shoes dry as he was not permitted to remove them when entering a customer’s home.
Those findings were open on the evidence and do not reveal error. The Arbitrator was required to base his conclusion on whether s 9A was satisfied on the whole of the evidence noting that nothing in s 9A makes a finding on any one of the examples in s 9A(2) determinative (per Mason P in Mercer, cited by the plurality in Badawi at [36]).
In other words, even if a consideration of s 9A(2)(d) militated against a finding that the employment was a substantial contributing factor to the injury, it was still open to conclude that the section had been satisfied if the evidence, as a whole, including the remaining matters in s 9A(2), supported that conclusion.
I am not satisfied that the Arbitrator erred in the conclusion he reached under s 9A(2)(d) for the following reasons.
First, the Arbitrator’s factual findings were soundly based on evidence presented at the hearing. The Arbitrator concluded, having regard to Mr Ker’s statement and his evidence in cross-examination, that Mr Ker had walked to the corner of Ocean Street and upon reaching the kerb he “changed from a normal walking gait to an action designed to project himself across the flow of water in the gutter and to carry him rapidly across the road”. That was consistent with Mr Ker’s evidence that he was concerned about getting his shoes wet or muddy prior to entering a customer’s home and that he “therefore needed to lunge over the gutter so as to not saturate my shoes in the built up water from the rain; this I did with my right leg and landed on my left leg.”
The Arbitrator further found, as a matter of fact that, Mr Ker lunged across the gutter in a manner that was consistent with commencing to run, conscious that he was late for an appointment with a customer and for other reasons (discussed at [120] above).
The finding that Mr Ker commenced to run was also consistent with A/Professor Pinczewski’s evidence. The Arbitrator inferred (at [51]) that in so doing, Mr Ker placed a greater strain on his right knee than would have been the case had he continued walking. The question is; was that inference reasonably available in the absence of medical evidence to support it?
The drawing of an inference is “an exercise of the ordinary powers of human reason in the light of human experience” (G v H [1994] HCA 48; 181 CLR 387 at 390). An inference may be drawn because of common knowledge and ordinary human experience (Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465).
Moreover, in evaluating questions of causation, the Commission is entitled to rely upon commonsense (Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; 64 CLR 538 at 563–4, 569; Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 per Mason J at 725). Nevertheless, as Ipp JA pointed out in Flounders v Millar [2007] NSWCA 238 at [35], a claimant who relies on circumstantial evidence to prove causation must show “that the circumstances raise the more probable inference in favour of what is alleged”.
More recently Beazley P (Macfarlan and Emmett JJA agreeing) made the following observations about the drawing of inferences in Marshall v Prescott [2015] NSWCA 110. Her Honour said (at [83]–[84]):
“83. However, an inference cannot be drawn in the absence of evidence. In Luxton v Vines [1952] HCA 19; 85 CLR 352, the plurality, Dixon, Fullagar and Kitto JJ, at 358, approved the explanation of the principle of the High Court in the then unreported decision of Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 as follows:
‘... where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture ... But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise.’ (emphasis added) (citations omitted)
84. In Holloway v McFeeters [1956] HCA 25; 94 CLR 470, the plurality, Williams, Webb and Taylor JJ, observed, at 480, that:

‘Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. In a civil cause ‘you need only circumstances raising a more probable inference in favour of what is alleged ... where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference ...’ (emphasis added)

…”

The Commission may more readily draw an inference which is often according to “experience and knowledge of human affairs” in the absence of any plausible competing hypotheses (Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 381).
The only possible competing hypothesis was that the injury could have occurred spontaneously, such as occurred in 2013. The Arbitrator excluded that hypothesis because, as he explained (at [60]), notwithstanding the congenital abnormality in Mr Ker’s knee it had not prevented him from engaging in active sporting activities and full-time employment.
On appeal such an inference may only be displaced if it can be shown that the Arbitrator was wrong:
“by showing 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 [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.” (Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (Whiteley Muir) at 506)
I am not persuaded that an error of the kind discussed in Whiteley Muir has been established. The inference drawn by the Arbitrator was soundly based on the fact as found and therefore it cannot be shown that the Arbitrator was wrong.
I do not accept the submission that the Arbitrator erred in the weight given to Dr Hitchen’s evidence for the following reasons.
First, Dr Hitchen recorded that the injury occurred when Mr Ker was walking in a straight line without any twist, pivot or turn, nor was he on any unstable or uneven ground. Contrary to that history, the evidence given by Mr Ker in cross-examination was that, as the Arbitrator found Mr Ker lunged across the gutter to commence running across Ocean St. That evidence should not have come as a surprise to E-Dry. The evidence was consistent with Mr Ker’s statement of 15 July 2016, which was attached to the Application filed on 19 August 2016 and served shortly thereafter. It follows that, the evidence on which Mr Ker relied was available to E‑Dry three months before the hearing.
In the interim, E-Dry’s solicitors sought a supplementary report from Dr Hitchen. However, it appears that it chose not to correct the history on which Dr Hitchen had relied. Rather, it appeared to call upon Dr Hitchen to express a legal conclusion concerning the application of s 9A(2) and 9A(3) following an undisclosed “explanation of the Act”. The ultimate satisfaction as to whether the requirements of s 9A have been met is a question of fact for the Commission to answer based on an assessment of all of the evidence (Nguyen). Dr Hitchen’s conclusion on the legal issue was of no weight.
E-Dry had every opportunity to seek a further opinion from Dr Hitchen that was based on a correct history, namely that which was set out in Mr Ker’s statement which essentially conformed to the evidence he gave under cross-examination. E-Dry’s reasons for not doing so have not been explained.
Second, Mr Halligan’s challenge in cross-examination focussed on the inconsistency in the evidence given by Mr Ker as to the mechanism of injury from that given to Dr Hitchen and A/Professor Pinczewski. Although he had the opportunity to do so, Mr Halligan made no attempt to suggest to Mr Ker that the incident did not occur as he had described it in his statement and in his evidence in the Commission. Therefore, it was open to the Arbitrator to accept Mr Ker’s evidence.
Third, the Arbitrator’s summary of Dr Hitchen’s opinion (at [57]) that the injury could have happened at any time in Mr Ker’s life whether or not he had been at work was not accurate. The opinion expressed by Dr Hitchen was that it was “conceivable” that such an injury could have been sustained independently of the circumstances that prevailed on 21 March 2016. Section 9A(2)(d) refers to the “probability” that the injury or a similar injury would have happened anyway.
“Conceivable” is defined in the Shorter Oxford English Dictionary 6^th edition as meaning “able to be (mentally) conceived; imaginable; supposable; (just) possible”. It follows that even if Dr Hitchen’s opinion was given full weight, it would fall well short of proving the probability of Mr Ker’s injury occurring in any event.
Fourth, Dr Hitchen conceded, as the Arbitrator found, that prior to the injury Mr Ker was able to engage in vigorous sporting activities on a daily basis and that symptomatically he had a “normal knee” prior to the workplace event. That evidence was inconsistent with a conclusion that the injury would probably have happened irrespective of the employment.
Fifth, I reject the submission that, given Mr Ker’s concession that there was no twisting, turning or pivoting or the presence of unstable or uneven ground, there was no basis for rejecting Dr Hitchen’s opinion. Those matters were not the only basis upon which Dr Hitchen’s conclusions were based. It was also central to his conclusion that Mr Ker was simply walking in a straight line; in other words, not placing any undue strain on the knee. For the reasons identified above, that was not consistent with the Arbitrator’s finding that the injury occurred after Mr Ker attempted to lunge over the gutter, placing additional strain on his knee.
I accept that the facts assumed by an expert do not have to correspond with complete precision with the established facts, however the facts assumed by Dr Hitchen were not “sufficiently like” the facts found to render his expert opinion of any value: Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505 at 509–510. The assumed facts of walking in a straight line when compared to the established fact of lunging across the gutter were of sufficient magnitude such that Dr Hitchen’s opinion did not provide a satisfactory basis upon which the Commission could make its findings: Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399; 80 NSWLR 43.
The essential challenge to the Arbitrator’s finding with respect to the application of s 9A(2)(d) is that the finding was unsupported by any expert evidence based on a correct history of the facts upon which Mr Ker intended to rely to demonstrate the manner in which those events contributed to his injury. E-Dry conceded that Mr Ker sustained an injury to his knee in the course of his employment. It was not necessary that Mr Ker introduce expert medical evidence to support the causal connection between the incident on 21 March 2016 and his injury. That causal connection was admitted, at least for the purpose of satisfying s 4 of the 1998 Act.
The only utility in introducing expert evidence concerned the question of whether or not the injury would probably have happened in any event. Expert evidence of that kind would have assisted the Commission, but its absence was not fatal to the application succeeding before the Arbitrator. As I have indicated above, whether the employment is a substantial contributing factor to the injury is a question of fact and a matter of impression and degree (McMahon) to be decided on all of the evidence including the matters referred to in s 9A(2). It is not purely a medical question (Kernick). The Arbitrator was required to consider the employment concerned and the circumstances surrounding the occurrence of the injury (Badawi). That is precisely what the Arbitrator did.
I accept that A/Professor Pinczewski did not express any opinion concerning the causal connection between the activities on 21 March 2016 and the injury. The Arbitrator’s reliance on the evidence of A/Professor Pinczewski was limited. He concluded that the history obtained by A/Professor Pinczewski was consistent with the evidence given by Mr Ker at the hearing, namely, that he had started to run across the road when his right knee gave out.
The Arbitrator found that the account given to A/Professor Pinczewski “closely aligned” with Mr Ker’s evidence. He found that Mr Ker’s description of lunging across the gutter was broadly consistent with the history provided to A/Professor Pinczewski. The Arbitrator accepted that Mr Ker did not mention to A/Professor Pinczewski that he “lunged” across the gutter. However, he accepted Mr Ker’s explanation for any discrepancy on the fact that when he consulted with A/Professor Pinczewski he was more concerned with treatment than “establishing a claim”. The “Knee Injury Assessment Form” completed by A/Professor Pinczewski provided clear evidence, as the Arbitrator described it, “of a change in the method of locomotion at the point of reaching the gutter”.
The Arbitrator’s finding that Mr Ker’s and A/Professor Pinczewski’s accounts closely aligned was a finding of fact. To determine whether an error of fact has occurred, I am guided by the principles discussed by Barwick CJ in Whiteley Muir (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; 140 ALR 227).
The decision in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 (per Allsop J (as his Honour then was), Drummond and Mansfield JJ agreeing) is also instructive. Justice Allsop observed (at [28]):
“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.”
I am not satisfied that an error of the kind described in Whiteley Muir has occurred. The evidence overwhelmingly supported the finding that Mr Ker was not merely walking. Based on Mr Ker’s statement, his evidence in the Commission, and the history recorded by A/Professor Pinczewski, the Arbitrator was correct to find that Mr Ker was lunging across the gutter at the time of the injury. For these reasons I reject the submission that, rather than closely aligning, the two accounts are incompatible.
E-Dry’s challenge to the acceptance of A/Professor Pinczewski’s evidence on the basis that he failed to acknowledge the expert’s code of conduct is without merit and is rejected. The code of conduct for expert witnesses applies (subject to exceptions) to proceedings in courts listed in Sch 1 of the Uniform Civil Procedure Rules 2005 (NSW). As the Commission is not a court, and is not listed in Sch 1, the Code does not apply to its proceedings: Woolworths Ltd vSisko [2013] NSWWCCPD 38 at [148].
Expert evidence in the Commission must comply with Practice Direction No 3 – Expert Evidence (r 14.3 of the Workers Compensation Commission Rules 2011). The Practice Direction provides detailed guidance to the parties in relation to the presentation of experts’ reports in proceedings in the Commission. It does not require that an expert acknowledge adherence to the code of conduct for expert witnesses.
In any event, the Arbitrator’s reliance on A/Professor Pinczewski’s report had nothing to do with his opinion as an expert. The history recorded by A/Professor Pinczewski merely reinforced the Arbitrator’s factual finding that Mr Ker lunged across the gutter immediately prior to sustaining the injuries complained of.
For these reasons grounds one, two and three fail.
Relying on Comcare v Martin E-Dry submits that s 9A(2) provided the framework upon which “the argument as to causation had to be constructed”. E-Dry submits the Arbitrator was bound to “apply the purposive [sic] required by Martin”. E-Dry did not develop the submission other than to submit the Arbitrator erred by taking account of Mr Ker’s movements “as a matter of common sense” to reach the conclusion that he lunged over the gutter thereby providing “a basis for lifting the matter out of the framework of s 9A(2)”. I do not accept that the Arbitrator so erred for the following reasons.
Firstly, causation, for the purpose of s 4 of the 1998 Act, was admitted. The contest before the Arbitrator was whether Mr Ker’s application should fail because, in E-Dry’s submission, of s 9A(2)(d).
The Arbitrator took considerable care to consider each of the examples referred to in s 9A(2) and applied them to the facts as found. The Arbitrator’s finding that the evidence did not support a conclusion that the injury would probably have occurred anyway was not only based on common sense approach. Rather, it was based upon Mr Ker’s statement of evidence and his evidence in the Commission. It was reinforced in the history he provided to A/Professor Pinczewski and Dr Sorani. The Arbitrator’s findings were also based on a consideration of the two previous cruciate ligament reconstructions and the antecedents that led to them.
Although he did not rely on it as a basis for forming his conclusion, the Arbitrator also noted that the MRI scan dated 23 March 2016 referred to evidence of an “impaction injury” which the Arbitrator noted (at [43]) was not inconsistent with the conclusion he reached.
The above demonstrates that the Arbitrator strictly applied the statutory framework applying s 9A. There is no justification for the submission that the Arbitrator approached the matter only from a common sense perspective, or for the submission that the Arbitrator lifted “the matter out of the framework of s 9A(2)”. Consequently grounds four and five are rejected.
Grounds six, seven and eight revisit the rejection of Dr Hitchen’s opinion. Those submissions have previously been dealt with and rejected. Consequently these grounds fail.
I reject the submission that the Arbitrator, in finding that Mr Ker applied additional force through his leg to project himself and lunge over the flowing gutter, “well exceeds [his] authority”. I also reject the submission that the Arbitrator filled the gap in Mr Ker’s case due to an absence of evidence. As I have explained the evidence on which the Arbitrator relied to draw the inference that s 9A(2)(d) was satisfied are stated at [120] above. For the reasons explained above those findings were correct. It follows that ground nine fails.
I also reject the submission that A/Professor Pinczewski’s evidence fell short of the requirements for expert evidence in matters in the Commission. As I have previously pointed out, A/Professor Pinczewski did not express any expert medical opinion. The Arbitrator relied on his evidence only in so far as it recorded a history of the events leading up to the admitted injury. It was legitimate for the Arbitrator to rely on A/Professor Pinczewski’s contemporaneous history to determine the factual issues before him. There was no error in the Arbitrator’s reliance on it to that extent. No error has been demonstrated. Consequently ground ten also fails.

CONCLUSION

The evidence clearly demonstrated that Mr Ker was in the normal course of his employment at the time of his accepted injury. It is not disputed that, with the exception of s 9A(2)(d), the examples provided for in s 9A(2) were overwhelmingly satisfied.
The Arbitrator was correct to find that he could not be satisfied that the injury would have happened anyway, if Mr Ker had not been at work or working in E-Dry’s employment (s 9A(2)(d)).
Based on the facts proven it was open to the Arbitrator to infer that the mechanism of injury, namely that Mr Ker lunged across a gutter, would have placed additional strain on the knee leading to the injury. That was so even in the absence of expert medical evidence directed to that issue.

DECISION

The Arbitrator’s determination of 6 January 2017 is confirmed.

Judge Keating
President

15 June 2017