Fitzgerald v Smorgon Steel Pty Ltd

[2004] WASCA 185

FITZGERALD -v- SMORGON STEEL PTY LTD [2004] WASCA 185

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 185
Court:	THE FULL COURT (WA)
Case No:	FUL:132/2003	Heard:	2 JUNE 2004
Coram:	MALCOLM CJ MURRAY J MCLURE J	Delivered:	18/08/04
No of pages:	17	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	RUSSAL ERNEST FITZGERALD SMORGON STEEL PTY LTD
Catchwords:	Workers' compensation Appeal from Compensation Magistrate Compensation Magistrate's decision on appeal from Review Officer Whether Compensation Magistrate erred in law Distinction between error of fact and error of law Nature of requirement to take various factors into account in relation to causation
Legislation:	Workers' Compensation and Rehabilitation Act 1981 (WA), s 5(5)
Case References:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Friends of Hinchinbrook Society Inc v Minister for the Environment & Ors (1997) 147 ALR 608 Health Department of Western Australia v Prosser [2004] WASCA 83 Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 Re Croser; Ex parte Rutherford (2001) 25 WAR 170 Summit Homes v Lucev (1996) 16 WAR 566 The Queen v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 Charleston v Smith [1999] WASCA 261 Fugen Holdings Pty Ltd v Brassington (1999) NSWCA 107 Kaiser v Burswood Resort (Management) Ltd [1999] WASCA 292 Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 Politis v FCT (1988) 16 ALD 707 Pollock v Wellington (1996) 15 WAR 1 Ramsay v Watson (1961) 108 CLR 642 Solumezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : FITZGERALD -v- SMORGON STEEL PTY LTD [2004] WASCA 185 CORAM : MALCOLM CJ

MURRAY J
MCLURE J

HEARD : 2 JUNE 2004 DELIVERED : 18 AUGUST 2004 FILE NO/S : FUL 132 of 2003 BETWEEN : RUSSAL ERNEST FITZGERALD

Appellant

AND

SMORGON STEEL PTY LTD
Respondent

ON APPEAL FROM:

Jurisdiction : COMPENSATION MAGISTRATE'S COURT

Coram : COMPENSATION MAGISTRATE I G BROWN

File Number : CM 78 of 2002

Catchwords:

Workers' compensation - Appeal from Compensation Magistrate - Compensation Magistrate's decision on appeal from Review Officer - Whether

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Compensation Magistrate erred in law - Distinction between error of fact and error of law - Nature of requirement to take various factors into account in relation to causation

Legislation:

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

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr B L Nugawela
Respondent : Mr G W Nutt

Solicitors:

Appellant : Alison C Hewson
Respondent : Jarman McKenna

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

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Friends of Hinchinbrook Society Inc v Minister for the Environment & Ors (1997) 147 ALR 608
Health Department of Western Australia v Prosser [2004] WASCA 83
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
Re Croser; Ex parte Rutherford (2001) 25 WAR 170
Summit Homes v Lucev (1996) 16 WAR 566
The Queen v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327




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Case(s) also cited:

Charleston v Smith [1999] WASCA 261
Fugen Holdings Pty Ltd v Brassington (1999) NSWCA 107
Kaiser v Burswood Resort (Management) Ltd [1999] WASCA 292
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
Politis v FCT (1988) 16 ALD 707
Pollock v Wellington (1996) 15 WAR 1
Ramsay v Watson (1961) 108 CLR 642
Solumezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

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1 MALCOLM CJ: In my opinion, this appeal should be dismissed for the reasons to be published by Murray J with which I am in general agreement. I also agree with McLure J that the decision of the Court of Appeal in New South Wales in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 is not authority for the unqualified proposition that a question whether the evidence is sufficient to establish a fact in issue is a question of fact not a question of law. The precise effect of that decision was stated by Steytler J in Health Department of Western Australia v Prosser [2004] WASCA 83 which was decided on 3 May 2004. His Honour said (with the agreement of myself and Jenkins J) at [31]:

"Whatever else may be the position, I am not persuaded that the Compensation Magistrate made any error as a consequence of his stated reliance upon the case of Azzopardi. All he said, in effect, upon a proper analysis of his reasoning, was that there was evidence upon which the Review Officer could reasonably justify his finding of fact, with the result that no question of law was involved in that finding of fact. I should add, so far as ground 3 of the grounds of appeal is concerned, that nothing in either of Summit Homes v Lucev (1996) 16 WAR 566 and Re Croser; Ex parte Rutherford (2001) 25 WAR 170 should, in my opinion, be taken to prefer the approach of Kirby P in Azzopardi to that of the majority in that case. Those cases stand relevantly only for the proposition that Review Officers (Summit Homes at 570 - 572, per Ipp J, with whom Kennedy and Rowland JJ were in agreement) and Medical Assessment Panels (Re Croser, at 181 - 183, per Olsson AUJ) are required to give reasons which are adequate to disclose their reasoning processes."

2 I also agree with the additional comments of McLure J regarding the appellant's contention that the matters in s 5(5)(c), (d), (e) and (f) of the Workers' Compensation and Rehabilitation Act 1981 (WA) are essentially negating factors for which the employer carries the evidential burden.

3 MURRAY J: This appeal by leave is from a decision of a compensation magistrate's court dealing in its turn with an appeal from a review officer. Under the Workers' Compensation and Rehabilitation Act 1981 (WA), s 84ZW, an appeal to this Court may only be brought against a decision of a compensation magistrate's court "on a question of law". As I have pointed out previously, that seems to me to offer a more confined right of appeal than is conferred by the Act, s 84ZN(2) from a decision of a review officer to a compensation magistrate's court. Such an appeal may be

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brought "where a question of law is involved". If that is the case, I see no reason why on such an appeal questions of fact may not also be ventilated, but clearly that may not be done on an appeal from the compensation magistrate to this Court.

4 The original proceedings were an application for compensation by the appellant worker. There seems to have been some confusion about the actual date of injury, but it appears to have been given originally as 25 August 1999. The nature of the injury soon became described as the aggravation of a painful right shoulder – a rotator cuff injury – and a right knee injury. There was also a reference to lumbar pain. Ultimately, during the review process there was a reference to a psychiatric disability resulting from physical disability. Finally, it appeared that the worker's case concerned the right shoulder injury and the allegedly consequential psychiatric effects of that injury.

5 The claim for compensation was opposed by the employer. The conciliation process provided under the Act did not resolve the dispute which was therefore, in the ordinary way, referred to a review officer.

6 The background of fact against which the claim was to be dealt with was that the worker was originally employed by a third party and contracted to his ultimate employer. At about the beginning of July 1998, the worker appears to have been retained directly by the employer, firstly on a casual basis and then on a permanent basis. He was a shot blast operator. It was heavy work physically. There was confused evidence as to whether the worker had shoulder pain or difficulties prior to July 1998. His evidence before the review officer was that this pain developed within a few months and worsened gradually thereafter.

7 The worker had qualifications as a forklift driver and in early 1999 he secured that position with the employer and ceased work as a shot blast operator. Employment as a forklift driver was by no means so physically demanding as his previous work.

8 The worker was apparently subjected in the period up to August 1999 to practical jokes by fellow workers, with whom he appears to have had difficult relations. The review officer found that matters came to a head on 24 August 2001, when the worker was upset by an incident at work. He went home, but he later returned and completed his duties. The following day he met with his supervisor. He was told that he would be relieved of his duties as a forklift driver. He was offered the position of a dresser, which apparently involves the use of a grinder. He performed these duties for about 2 hours and then left, feeling that he had been badly

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treated and demoted. The choice he had been given was to carry out these new duties or resign. He resigned.

9 But it appears that his resignation was not formally tendered and instead he saw medical practitioners, including the company doctor, Dr Lagrange. As I understand it, the worker was certified unfit to carry out grinding work, but he was certified fit for light duties. Ultimately, he was offered the opportunity to resume as a forklift driver. He accepted that and resumed in that capacity on 16 September 1999. He continued with that work, with some time away, until he was "made redundant" on 16 November 1999.

10 His claim for compensation was dismissed by the review officer after a hearing at which the worker gave evidence over a number of days and various medical reports were tendered.

11 The hearing before the review officer proceeded on the basis that the claim in respect of the right shoulder injury and resultant psychiatric illness could not be based on par (a) of the definition of "disability" contained in s 5(1) of the Act because there was no evidence of "personal injury by accident". It was simply that the worker commenced to feel symptoms of pain and disability in the right shoulder and these gradually worsened until, according to his case, he could simply no longer perform the duties of his employment and he was incapacitated for work. His claim therefore proceeded upon the basis that he sought to establish a disability in terms of par (d) of the definition:

"the recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree;"

12 The worker succeeded in establishing before the review officer the existence of a pre-existing disease. There was evidence that the right shoulder had become painful by at least February 1998, before the commencement of the employment with the respondent. This was contrary to what the review officer described as the worker's confused evidence, attributed by the review officer to a genuine lack of recollection, that he did not commence to feel pain in the shoulder until a few months after commencing his employment with the respondent. The finding of a pre-existing disease having been made, however, there was the question of causation to be resolved – whether any aggravation of the disease was

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contributed to by the employment and whether that contribution was to a significant degree.

13 I have made the observation that the review officer described the worker's evidence as to the onset and progression of his symptoms as confused and he attributed that confusion to a genuine lack of recollection. He did not find, as the employer had submitted, that the worker was making a deliberately false claim, but he did note that the claim followed difficulties in the employment for the worker in his relationships with other workers and with management.

14 The review officer considered and summarised the effect of reports from a great number of medical practitioners. They were –

• Dr Brogan, the worker's treating general practitioner, who was of the opinion that the employment "resulted in significant aggravation of [the worker's] right shoulder pain. Dr Brogan's report, dated 7 June 2001, then asks the question whether the aggravation was acute (by which I take the doctor to mean it occurred as the result of a traumatic incident) or chronic. He concluded that it was probably an injury of an acute kind which occurred when the grinder work was being performed, because "there is no evidence he had attended for any significant treatment with regard to his right shoulder" prior to that time. The review officer expressed a reservation about this opinion because the doctor had given a contrary opinion in a report made a year earlier when he said that it was "unlikely" that the tear to the right supraspinitus tendon would have resulted from the grinding work performed for the short period involved on 25 August 1999.

• Prof Harper, a consultant occupational physician. In his report, dated 9 May 2001, Prof Harper observed that the worker had reported no problems of the right shoulder before 1998 and no previous injuries to it. The worker reported that pain developed in approximately May 1998 in the course of manual work as a shot blast operator, but he gave as his opinion, "I feel it is improbable that his work as a shot blast operator has aggravated bony degenerative changes in the shoulders." It should be noted that Dr Brogan did not discuss bony degenerative changes. If that was the nature of the pre-existing disease, Prof Harper's opinion was contrary to the worker's claim.

• Dr Billett, a consultant orthopaedic surgeon, who, in a report dated 18 July 2000, referred to the worker describing the onset of pain in the right shoulder in October 1998, during which time he was working as a shot blast operator. X-ray investigation of the right

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shoulder had revealed no abnormality, but there was discomfort on movement, which commenced earlier than ought to have been the case. A tear of the rotator cuff tendon was detected and Dr Billett gave as his opinion that the tear of the supraspinitus tendon "occurred during the course of his work". The review officer thought this was of little assistance because of the attribution of a spontaneous tear occurring in October 1998 to the work as a shot blast operator; in other words, a traumatic incident which might fall under par (a) of the definition of disability.

• Dr Home, another occupational physician who was consulted and reported on 22 May 2000. He was given a history of right shoulder pain as from June 1998, about the time when the worker commenced working for the respondent employer under contract as a shot blast operator. Again, no abnormality was seen on x-ray, but there was a tear in the rotator cuff. There was no abnormality or lack of a full range of active movement, but some pain was reported. The doctor noted that there was no specific workplace incident reported, merely the onset of pain aggravated during the period when he was operating a grinder. Dr Home thought that although there might be some type of injury to the rotator cuff tendons during the course of work as a shot blaster, the worker's history was "extremely vague" and Dr Home thought it was "speculative" to consider that the worker had sustained a significant workplace injury to the right shoulder. As to aggravation, the doctor expressed no supportive opinion, merely saying that he did not believe that the condition related to the subsequent use of the grinder.

• Mr Schaeffer, a consultant neurosurgeon who gave a report dated 10 May 2000, reported a full range of movement in the shoulder joints and although the doctor recommended an orthopaedic opinion, he expressed the view that there appeared to be no evidence or history of any specific injury or evidence of any significant disability. Mr Schaeffer thought that the worker was fit for his normal duties, either as a shot blast operator or a forklift driver. He noted that the worker had been told that his employment was terminated, not because of his incapacity to perform his duties, but because of the employer's dissatisfaction with his skill level. In neither that report nor the witness's first report of 27 October 1999 was there any evidence, in the opinion of the review officer, upon the relevant question of causation.

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• Dr Cooper, another occupational physician, reported on 1 March 2000. That report provided no relevant evidence on the causation issue.

• Mr Hanrahan, a rheumatologist, who provided a report to Dr Brogan, dated 3 February 2000. The report is in familiar terms in relation to the nature of the disability, referring to rotator cuff dysfunction and tearing of the ligaments, noting a full range of movement, but pain which was quite persistent. The report provides no specific opinion as to the cause of the symptoms or as to whether they were aggravated by performance of the worker's duties. The review officer noted the lack of assistance provided by the report in regard to the issue before him.

• Dr Anderson, a rehabilitation physician who reported on 6 December 1999 and 10 April 2001. Neither report provided any particular assistance in relation to the causation issue in respect of the right shoulder. In the second report, Dr Anderson merely noted "this man has lost his employment because of his physical disabilities", but in the earlier report, having referred to the nature of the employment, Dr Anderson said:


"There are occasions during this industrial operation where he is expected to undertake awkward physical tasks resulting in wear and tear on his body, particularly his shoulders. He has had trouble with his shoulders, both the right and left shoulder, on a progressive basis commencing in March 1998 and continuing until November 1999."

The review officer expressed the opinion that the report did not progress the causation issue. He thought the terms in which the report was written, although it addressed the question of causation, indicated that an incomplete history may have been given to the doctor.

15 Having reviewed the factors in relation to causation referred to in the Act, s 5(5), the review officer summed up his conclusion at [58] – [60] of his judgment in the following terms:

"58. The difficulty for the applicant in this matter is that he carries the onus to show that the employment has significantly contributed to his right shoulder condition. In my view, that burden of proof has not been met. It is therefore my finding that a definition (d) disability cannot be made out on the evidence.

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59. Much of the failure of the applicant to satisfy this onus revolves around the conflicting evidence as to the time of commencement of the right shoulder injury. This includes the differing histories given to the medical practitioners and the circumstances on the various occasions, particularly work difficulties, that led Mr Fitzgerald to seek medical attention and obtain first medical certificates. The respondent submits this amounts to a false claim for workers' compensation but I am not prepared to make that finding having regard to the worker's level of education and obvious difficulty in precisely recalling particular facts.

60. Nonetheless, sufficient doubt exists as to the validity of his recollections and inferences can be drawn from the evidence that his difficulties at work led in part to his claims for compensation and in particular the right shoulder claim."

16 In the final analysis, therefore, the review officer reviewed all the relevant evidence, much of which caused him concern because of conflicting evidence as to the onset of the right shoulder injury. But his concern did not stop there and he referred to the evidence about the work history and how that differed from time to time. It was clearly relevant in this regard for the review officer to consider whether, although he did not find that the worker's claim was deliberately false, the difficulties at work concerned with his relationships with other workers and with his supervisors, might have had a causal connection to the seeking of medical advice and the claim for compensation ultimately made. It was not a matter of "disentangling" those questions, as is submitted by counsel for the worker, but it was, as the review officer appears to have appreciated, a question whether, in the final analysis, upon all the evidence, the review officer was satisfied that it probably was the case that the right shoulder disability contracted before the worker engaged in this employment was a disability aggravated to a significant degree by the nature of the worker's employment.

17 The worker appealed unsuccessfully to a compensation magistrate's court. He appeals again to this Court. His grounds of appeal are all matters raised before the compensation magistrate. The grounds urge upon us a particular view of the operation of s 5(5) of the Act. Alternatively, it is said that the Magistrate erred in law in concluding that

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the review officer had given adequate reasons for his decision in respect of s 5(5).

18 The ground concerned with the interpretation of that subsection clearly raises a question of law, as does the ground complaining of the inadequacy of reasons, provided it is understood that the reasons will only be regarded as being so inadequate as to constitute an error of law where they are so deficient that they fail to disclose the reasoning process of the tribunal of fact: Summit Homes v Lucev (1996) 16 WAR 566; Re Croser; Ex parte Rutherford (2001) 25 WAR 170.

19 It is sufficient, I think, to say immediately that I can detect no relevant error of law concerning the sufficiency of the reasons of the review officer and his approach to the fact-finding process, by which ultimately he was not persuaded to the relevant standard that the pre-existing disease of the worker's right shoulder was aggravated to a significant degree by a contribution made by the employment. The review officer explained what he thought about the relevant evidence, which he subjected to an analysis concerned with the persuasive force of the evidence, particularly the medical evidence, in the light of inconsistencies in the history provided to the various medical practitioners by the worker.

20 Whether the view of the review officer was right or wrong or whether he should have been persuaded to a different conclusion upon the question of causation, the fact ultimately in issue in the review proceedings, is not to the point. The review officer adequately explained the reasoning process he adopted and the process itself is revealed to be sensible and appropriately related to the resolution of the question of causation, the ultimate fact in issue.

21 Before turning to a consideration of s 5(5), it is convenient to express my views briefly about grounds 3 and 4 of the appeal. They complain respectively that the compensation magistrate erred in law in failing to find that the review officer had erred in law in the fact-finding process by taking into account what is described as an irrelevant consideration, that the work difficulties given in evidence by the appellant may have led to his claim for compensation, particularly because that claim was not found to be a deliberately false claim and it was accepted that the appellant did suffer shoulder pain during the employment. Further, it is contended that the Magistrate erred in law in failing to conclude that the review officer had wrongly rejected or placed no weight upon the reports of Dr Billett, Prof Harper, Dr Anderson and Dr Brogan.

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22 It is necessary, in dealing with these grounds, to remind oneself when the fact-finding process may give rise to an error of law. Recently, in Health Department of Western Australia v Prosser [2004] WASCA 83, Steytler J, with whom Malcolm CJ and Jenkins J agreed, dealt with this matter in the course of a helpful review of the relevant authorities. His Honour relied particularly on the decision of the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355-6, for the following propositions.

23 The question whether there is any evidence of a particular fact is a question of law. The question whether an inference can be drawn from the primary facts found is a question of law. But if there is evidence of the primary facts and an inference of a fact ultimately in issue is drawn, then lack of logic, or the fact that a contrary inference appears to the appellate court greatly to be preferred, does not constitute an error of law, although, of course, it might well constitute an error of fact. Even more, it seems to me, that where, as here, the tribunal of fact pronounces itself to be unprepared to infer the fact ultimately in issue (the question of causation) having reviewed the relevant evidence, no error of law is revealed unless the tribunal can be said to have failed to have regard to relevant considerations and to have made its decision on the basis of irrelevant considerations, so that it may be said that the tribunal of fact has failed to understand properly the question before it.

24 In my opinion, the review officer did not reject or exclude from consideration the report of any medical witness. He simply found those reports to be individually and collectively insufficient to persuade him to make a finding of causation favourable to the worker, and I can detect nothing in the approach of the review officer which reveals an error of law. After all, although the question whether there is evidence of a particular fact in issue is a question of law, the question whether the evidence is sufficient to establish the fact in issue is not a question of law, but a question of fact: Azzopardi v Tasman UEBIndustries Ltd (1985) 4 NSWLR 139, 155-7.

25 It was, in my opinion, clearly relevant to have regard to the fact that there were other difficulties being confronted by the worker in his employment and that these had an effect on causing him to cease work and seek medical advice. This was not a case where it was demonstrated that there was a clear pathology of damage to the right shoulder, that it was a disease of a kind which pre-existed the employment, that some specific aspect or aspects of the work caused its aggravation and did so to such a significant degree that the worker was ultimately unable to

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continue in his employment. There were other factors at work. The review officer rightly had regard to them. None was irrelevant. It is evident that the compensation magistrate understood the process and no error of law is established.

26 Although the observation is entirely irrelevant in the context of this appeal, I cannot resist the temptation to observe that in my view the medical evidence in this case did not reveal with clarity the nature of the pre-existing disease in the worker's right shoulder or that, when it became symptomatic and caused pain and restriction of movement, it was clearly established that the worker's condition worsened in a way which might constitute aggravation or acceleration of a pre-existing disease of the shoulder, much less that anything specifically in the employment in fact contributed to any such aggravation or acceleration and much less, again, that any such factor contributed to a significant degree to any such aggravation or acceleration. Rather, it might be that there was a fluctuating pain state, that there was restriction of movement consequent upon the pain, and that this represented some unexplained degenerative process.

27 I turn to the first ground of appeal, that concerned with the application of s 5(5) of the Act. It is convenient to set out the ground as it was advanced:

"The learned Magistrate erred in law in (effectively) concluding that the appellant carried the evidential and/or ultimate burden of disproving the factors in s 5(5)(c) and/or s 5(5)(d) and/or s 5(5)(f) of the Act, particularly in circumstances where the respondent had adduced no (or no cogent or probative) evidence relevant to those negativing provisions. Alternatively, the learned Magistrate erred in law in failing to find that the respondent carried an evidential or practical burden to adduce some evidence in relation to the aforementioned provisions, in the circumstances of this case."

28 It is necessary to set out the terms of s 5(5):

(5) In determining whether the employment contributed, or contributed to a significant degree, to the contraction, recurrence, aggravation or acceleration of a disease for purposes of the definitions of "disability"and "relevant employment", the following shall be taken into account —

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(a) the duration of the employment;

(b) the nature of, and particular tasks involved in, the employment;

(c) the likelihood of the contraction, recurrence, aggravation or acceleration of the disease occurring despite the employment;

(d) the existence of any hereditary factors in relation to the contraction, recurrence, aggravation or acceleration of the disease;

(e) matters affecting the worker’s health generally; and

(f) activities of the worker not related to the employment."

29 In truth, the compensation magistrate did not reach any conclusion of the kind set out in the ground. It was put to his Worship that the review officer had failed to consider the matters set out in s 5(5) adequately. In particular, it was argued that he had failed to consider the worker's evidence in relation to the matters specified in s 5(5)(a) and (b). Further, it was argued that the review officer, by the way in which he dealt with the obligation to prove the matters which would bring the disability within par (d) of the definition, had effectively reversed the onus of proof by requiring the worker to positively disprove the likelihood of factors other than the employment being responsible for the disability. The Magistrate rejected those contentions, and rightly so.

30 Nonetheless, it is useful to lay to rest the contention involved in this ground of appeal which, in my opinion, reveals a fundamental misunderstanding of the effect and operation of s 5(5). In a case such as this, the only onus borne by a party is the legal onus which rests upon the worker to establish the matters necessary to bring his or her claim for compensation within par (d) of the definition of disability in s 5(1). The case may be such that the worker might, on the particular state of the evidence, discharge that onus of proof on the balance of probabilities. If so, it may be said that an evidential onus would shift to the respondent employer to adduce evidence which would tend to displace satisfaction on the balance of probabilities about the matters to be established by the worker. But to speak in those terms does not say anything about legal onus, but only describes the process of trial. So much is trite law.

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31 In this context, s 5(5) has nothing to do with that. No obligation of proof arises in respect of the matters enumerated in the subsection. They are matters to be considered, not necessarily to be proved. A deficiency in the evidence in relation to any specific matter enumerated in the subsection will only mean that to consider it will be less helpful than might otherwise have been the case in determining whether the employment contributed to a significant degree to the contraction, recurrence, aggravation or acceleration of the disease. It is wrong, in my opinion, to consider the matters to which pars (c)-(f) refer as necessarily tending against the proof of relevant causation. It is wrong, I think, to describe them as "negativing provisions" in relation to which the employer bears any burden of proof, whether, as the ground puts it, "evidential and/or ultimate".

32 In my opinion, for the above reasons, the appeal should be dismissed.

33 MCLURE J: I have had the advantage of reading in draft form the reasons to be published by Murray J. I agree that the appeal should be dismissed generally for the reasons given by Murray J. However, there are two matters on which I wish to comment.

34 The first relates to the distinction between a question of fact and law. In this case the Review Officer was not satisfied to the requisite degree that the relevant employment was a contributing factor to the recurrence, aggravation or acceleration of any pre-existing disease and contributed to a significant degree in accordance with sub-par (d) of the definition of "disability" in the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the Act"). I agree that the Review Officer did not make an error of law in reaching that conclusion. However, in my view Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 is not authority for the unqualified proposition that a question whether the evidence is sufficient to establish a fact in issue is a question of fact not a question of law. In Azzopardi, the decision-maker positively concluded that the relevant injury did not result from a work related incident. The worker contended that this conclusion was not open to the decision-maker. The majority (Glass JA, with whom Samuels JA agreed) held this to be a futile attempt to convert a question of fact to a question of law. Glass JA differentiates the position according to whether an appellant carried the onus of proof. He said (at 156):

"To the legally uninitiated there is a spurious validity in a submission that it was not open to the judge to find that the applicant was not injured since there was no evidence to that

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effect. If a respondent employer can argue a no evidence point, why cannot the applicant worker? The answer is, of course, that alleged insufficiency of evidence to prove a fact always raises a question of law but alleged sufficiency of evidence to the point of conclusiveness cannot, since it assumes that the evidence has been accepted. The party not bearing the onus puts an argument, which assumes against himself that the evidence has been accepted, but submits that it is not capable of establishing the facts. The party saddled with the onus on the other hand cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence."

35 The fact/law distinction has been authoritatively considered and explained by the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and applied in this jurisdiction recently in Health Department of Western Australia v Prosser [2004] WASCA 83. It is unnecessary to go to those cases in detail. It is sufficient to note that Azzopardi is not inconsistent with them.

36 The second matter concerns the appellant's contention that the matters in sub-pars (c), (d), (e) and (f) of s 5(5) of the Act are essentially negating factors for which the employer carries at least an evidential burden. I do not accept that submission for the reasons given by Murray J. See also Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 at [52], [55].

37 However, it is unnecessary for the disposition of this appeal to rule on the nature and extent of a decision-maker's duty to have regard to the matters specified in s 5(5) of the Act. That raises the question whether evidential gaps have legal or factual consequences and if so what. Issues of this nature have been considered in other cases to which the court was not taken by the parties. They include The Queen v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333 per Gibbs CJ and Friends of Hinchinbrook Society Inc v Minister for the Environment & Ors (1997) 147 ALR 608. Hill J identified the issue as follows (at 638):

"There is always a difficulty when a statute provides that a decision-maker shall 'have regard to' a particular matter or series of matters. While it is clear that what is meant is that the decision-maker must apply his mind to the matter or matters stipulated, and 'take them into account and give weight to them'

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... it leaves it open what weight or influence each of the particular matters is to have in the decision to be made: ... ".

In the circumstances, I propose to reserve my position on this question.