Hancock v Holman Industries Pty Ltd
[2019] NSWWCCPD 16
•24 April 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Hancock v Holman Industries Pty Ltd [2019] NSWWCCPD 16 | |
| APPELLANT: | Robert Hancock | |
| RESPONDENT: | Holman Industries Pty Ltd | |
| INSURER: | GIO Workers Compensation (NSW) Ltd | |
| FILE NUMBER: | A1-3995/18 | |
| ARBITRATOR: | Ms J Toohey | |
| DATE OF ARBITRATOR’S DECISION: | 15 November 2018 | |
| DATE OF APPEAL DECISION: | 24 April 2019 | |
| SUBJECT MATTER OF DECISION: | Breach of procedural fairness: application of Muin v Refugee Review Tribunal [2002] HCA 30; 190 ALR 601; 76 ALJR 966; error in fact-finding | |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Brydens Lawyers Pty Ltd |
| Respondent: | Hunt & Hunt Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 15 November 2018 is revoked. 2. The matter is remitted for re-determination by another Arbitrator. | |
INTRODUCTION AND BACKGROUND
Robert Hancock (the appellant) was employed by Holman Industries Pty Ltd (the respondent) as a sales representative and merchandiser. His duties largely involved dealing with Bunnings stores, through which much of the product of the respondent (which was based in Western Australia) was marketed. The appellant’s pleaded injuries were to the left knee (in an incident at a Bunnings store on 18 May 2015) and the lumbar spine (in the incident on 18 May 2015, and as a consequential condition resulting from altered gait associated with the left knee injury).[1] The appellant underwent surgery to the left knee (arthroscopic partial meniscectomy) on 13 October 2015, and fusion at L4/5 in July 2017. The appellant also developed a deep vein thrombosis and pulmonary embolism following the knee surgery.
[1] Application to Resolve a Dispute registered 3 August 2018 (ARD), p 5.
There were prior proceedings (No 2374 of 2018), involving the same subject matter, that were discontinued on 15 June 2018, following a telephone conference on 14 June 2018 between the parties. The notes of Dr Ong (the appellant’s general practitioner) showed imaging of the lumbosacral spine and left knee dating from prior to the injury of 18 May 2015. It appears that the appellant advised at that point that there was a prior injury relating to the same body parts, which was not reported. This was not addressed in the medical evidence. Those proceedings were discontinued so any impact of the earlier incident could be addressed. The parties (and their solicitors) were the same in these earlier proceedings as in the current proceedings.
The ARD in the current proceedings claimed medical expenses (including the cost of the surgical procedures) and weekly compensation. As the matter was ultimately contested, the respondent disputed the occurrence of the alleged injuries and consequential condition, but said that, if the appellant succeeded on these issues, “it’s conceded that the compensation claim is payable”.[2]
[2] Transcript of Proceedings, Hancock v Holman Industries Pty Limited (WCC, [2018] NSWWCC 279, Arbitrator Toohey, 17 October 2018) (T), T 1.37–2.31.
The matter proceeded to an arbitration hearing on 17 October 2018. Both parties were represented by counsel. There were no applications to adduce oral evidence or to cross-examine. The matter proceeded on the documentary material, counsel addressed, and the Arbitrator reserved her decision. A Certificate of Determination, accompanied by 14 pages of reasons, was issued on 15 November 2018.[3] This appeal is brought against the award entered in favour of the respondent.
[3] Hancock v Holman Industries Pty Limited [2018] NSWWCC 279 (Reasons).
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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 both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE ARBITRATOR’S REASONS
The Arbitrator summarised the evidence, including the histories appearing in medical reports and records, in some detail.[4] She expressed some reservations about the notes of Dr Ong, the appellant’s general practitioner, saying of them:
“40. With few exceptions, Dr Ong’s notes from 1 June 2015 through to 7 December 2017 (the last date of the available notes) show ‘W/C’ next to the date. It appears, although it is not possible to say with any certainty, that many of the notations were not made contemporaneously with the notes themselves.
41. Despite the notation ‘W/C’ next to the date, the notes for 1 June 2015 do not show any discernible reference to work or to injury.”
[4] Reasons, [12]–[58].
The Arbitrator summarised the submissions of counsel. The appellant’s counsel submitted there was no dispute that an incident occurred on 18 May 2015, and no dispute that it occurred in the course of employment. He submitted it was unnecessary to determine the precise circumstances, providing there was satisfaction that the injury arose out of or in the course of employment, and that ‘substantial contributing factor’ was satisfied. He submitted the respondent sought to attach too much significance to the word “fall’ in the statements and histories. The appellant had not said that he fell to the ground, rather that he slipped off a step, grabbed a lower shelf to arrest his fall, and twisted. The appellant did not suggest to any of the doctors that he fell to the ground, and no doctors suggested this was a “necessary element of the injury”. The medical reports did not suggest that any variations in the recording of the incident was significant. Counsel submitted that occurrence of the consequential condition to the lumbar spine was supported by Dr Ong (the general practitioner) and Dr Kirsh (the orthopaedic surgeon who operated on the left knee), and there was “no contrary medical opinion”.[5]
[5] Reasons, [59]–[69].
The Arbitrator summarised the respondent’s submissions. She referred to the respondent’s submission that the appellant gave “different accounts in different statements, to Mr Cruse [the appellant’s manager], and to different doctors”. The respondent submitted that “[i]n order to make an accurate diagnosis, and to determine whether any injury related to something that happened at work, doctors require a reliable history”. It submitted the accuracy of the history was “critically important to the weight that can be placed on [the doctors’] opinions”. The Arbitrator described a submission by the respondent that the “Commission cannot be satisfied on the evidence as to what happened and what were the medical consequences”. The respondent submitted the appellant had not discharged his onus to prove the alleged injuries to the left knee and lumbar spine, and the consequential condition.[6]
[6] Reasons, [71]–[79].
The Arbitrator quoted s 4 of the Workers Compensation Act 1987, and some authorities on the issue of ‘injury’.[7] She described the “starting point” in the enquiry regarding whether ‘injury’ was sustained, as “what actually occurred on 18 May 2015”. She said it is “not in dispute, and I accept, that an incident of some kind occurred at work on 18 May 2015”.[8] She continued:
“…in my view, too many questions as to what occurred on 18 May 2015 are raised by Mr Hancock’s accounts, by Dr Ong’s records, and by the doctors’ reports, for the Commission to be satisfied that he sustained the injuries he claims.”[9]
[7] Reasons, [80]–[84].
[8] Reasons, [87]–[88].
[9] Reasons, [89].
The Arbitrator identified various inconsistencies:
(a) In the appellant’s email to Mr Cruse dated 20 May 2015,[10] and his incident report dated 13 October 2015,[11] the appellant said that he saw a doctor on the Wednesday following the incident (this would have been 20 May 2015). Dr Ong’s notes showed that the appellant did not see him, after 18 May 2015, until 1 June 2015. The email and incident report did not name the doctor the appellant said he saw, but there was “no suggestion that he saw any other doctor [than Dr Ong] in the meantime”. The Arbitrator said the appellant had offered no explanation for this inconsistency, and there was no reason to think Dr Ong’s records are not correct. She said “[t]he reliability of Mr Hancock’s account must be in question as a result.”[12]
(b) Dr Ong’s report dated 30 July 2018[13] indicated that he saw the appellant on 6 March 2015 “for what appears to be an incident in almost identical circumstances at Bunnings”. The Arbitrator said that this called “for some explanation but [the appellant] has not offered one”. This report was “consistent with [the doctor’s] notes for 6 March 2015 which appear to refer to lumbosacral spine and left knee”.[14]
(c) Dr Giblin’s report dated 9 July 2018 also provided an opinion about an injury in early March 2015 in virtually identical circumstances. The Arbitrator said it was reasonable to infer that the appellant gave Dr Giblin the account of the earlier incident. It called for some explanation, but the appellant had not offered any.[15]
(d) The Arbitrator referred to “Dr Ong’s and Dr Giblin’s recent reports”. She said the reference to two injuries remained unexplained. The earlier scans had not been made available to the doctors, and “other than Dr Giblin, none of the doctors appears to have known of a similar incident two months earlier”. Dr Kirsh and Dr Diwan did not appear to have known of it. The Arbitrator said this evidence “only raises further questions about what occurred on 18 May 2015 and its significance for a finding that [the appellant] sustained the injury claimed”. She said it should not have been difficult for the reports of the doctors, particularly Dr Ong, to be clarified. There was a real possibility that the appellant “suffered a similar event, or experienced lumbar pain, two months before the incident the subject of his claim and that the visit on 1 June 2015 was follow up to that earlier visit”. She said this raised a real question “as to the reliability of [the appellant’s] statements”.[16]
[10] ARD, pp 105–106.
[11] ARD, p 113.
[12] Reasons, [90]–[91].
[13] ARD, p 104.
[14] Reasons, [92]–[93].
[15] Reasons, [94].
[16] Reasons, [95]–[96].
The Arbitrator said that Dr Ong’s notes did “not appear to refer anywhere to an injury at work, in particular on 1 June 2015”. She noted the entry in the notes for 1 June 2015 and subsequent visits, were accompanied by the notation “W/C”. This appeared to indicate a work-related reason for the visit, but without more, did “not evidence a causal connection”. Th Arbitrator said she did not accept the Commission should find for the appellant, simply on the basis that Dr Ong’s notes documented complaints of left knee and lumbosacral pain on 1 June 2015, that Dr Ong immediately sent the appellant for scans of the left knee and lumbosacral spine, and that Dr Ong subsequently referred the appellant to Dr Kirsh and Dr Diwan for surgery.[17]
[17] Reasons, [97]–[98].
The Arbitrator referred to a line of appellate authority dealing with the caution appropriate in dealing with the clinical notes of medical practitioners.[18] She said that Dr Ong’s notes raised “real questions about their reliability as far as [the appellant’s] claim is concerned. She accepted the appellant’s submission that too much concern should not be attached to the word “fall”; the appellant clearly stated in two documents that he did not fall to the ground.[19]
[18] Reasons, [99].
[19] Reasons, [99]–[102].
The Arbitrator said that the doctors appeared to have “varying understandings as to what occurred”. She said:
“Dr Diwan attributed Mr Hancock’s spinal injury to a ‘significant fall’. Dr Kirsh recorded that Mr Hancock did not know if the pain in his left knee related to a ‘minor trauma’. Dr Wallace recorded that the box ‘jammed’, Dr Ong that Mr Hancock ‘dropped it’. On first seeing Mr Hancock, Dr Wallace took a history that Mr Hancock fell on his right side. All other doctors (and later Dr Wallace) recorded involvement of the left side.”[20]
[20] Reasons, [102].
The Arbitrator said that most of the medical opinion was “in very broad terms”. She continued, describing the medical opinion:
“None describes a mechanism of injury or gives reasons for attributing injury to what occurred on 18 May 2015. For the most part, they make broad statements to the effect that Mr Hancock injured himself at work. In light of the questions surrounding Mr Hancock’s accounts, I am not satisfied they should be relied on.”[21]
[21] Reasons, [103].
The Arbitrator noted that Dr Wallace, in the respondent’s case, accepted the appellant had suffered a minor injury to the left knee. The Arbitrator did not accept that evidence, as Dr Wallace did not record a history of symptoms in early March 2015, and “apparently had a different understanding of what occurred from the other doctors”. The Arbitrator queried why the appellant mentioned only injury to the left knee, but not the lumbar spine, in his claim form, if he had pain from the time of the injury, sufficient to be referred by Dr Ong for further scans. She accepted the appellant had a tear of the medial meniscus in his left knee, and disc bulges and degenerative disease in his lumbar spine. She said that this was not sufficient to find that either was causally related to the appellant’s employment. [22]
[22] Reasons, [104]–[106].
The Arbitrator concluded:
“107. The evidence submitted for Mr Hancock raises serious questions about what actually occurred on 18 May 2015 at his place of employment, the significance of the earlier incident, and the weight that can be placed on the doctors’ opinions. Mr Hancock was put on notice by the s 74 notice issued on 12 March 2018 that these matters were squarely in issue. The reports of Dr Ong and Dr Giblin, which were apparently sought in order to explain an earlier event, have only raised further questions. The varying accounts in the doctors’ reports and the lack of detail in their reports as to why they concluded a causal connection to employment, undermines the reliance that can be placed on them.
108. I am not satisfied that Mr Hancock has discharged the onus on him to establish that, more probably than not, he sustained an injury to his left knee and lumbar spine arising out of, or in the course of, his employment with the respondent to which his employment was the substantial or main contributing factor.”
GROUNDS OF APPEAL
The following grounds of appeal are raised:
(a) The Arbitrator erred in accepting that the incident occurred, and then failing to properly consider whether the incident was capable of causing the injury to the left knee demonstrated on the MRI scan of 27 June 2015. (Ground No 1)
(b) The Arbitrator erred when she failed to properly consider that all doctors accepted that the injury was caused by the incident of 18 May 2015. (Ground No 2)
(c) The Arbitrator erred when she failed to properly consider that Dr Ong was of the view that the injuries were caused by the incident when he had the advantage of having seen the appellant both before and after the incident. (Ground No 3)
(d) The Arbitrator erred when she placed significance on the fact that Dr Ong’s notes of 1 June 2015 do not describe an incident but did not weigh that against the fact that his note of 6 March 2015 also did not describe an incident. (Ground No 4)
(e) The Arbitrator erred when she failed to give reasons why Dr Giblin’s report of 9 July 2018 required explanation. (Ground No 5)
THE NATURE OF THIS APPEAL
Section 352(5) of the 1998 Act provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[23] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr [24] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [25]) to the nature of the appeal process involving factual error, pursuant to s 352 of the 1998 Act:
“(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an 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’.”[26]
[23] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[24] (1966) 39 ALJR 505, 506.
[25] [1996] HCA 140; 140 ALR 227.
[26] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[27] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[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.”[29]
[27] [2017] NSWWCCPD 5, [67].
[28] [2001] FCA 1833, [28].
[29] Raulston, [20].
In Northern NSW Local Health Network v Heggie[30] Sackville JA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519, per Mason and Deane JJ.”[31]
[30] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[31] Heggie, [72].
GROUNDS NOS 1, 3 AND 4
There is some overlap between these grounds, and it is convenient to deal with them together.
Appellant’s submissions
The appellant refers to the Arbitrator’s reasons at [88]:
“It is not in dispute, and I accept, that an incident of some kind occurred at work on 18 May 2015. I accept Mr McManamey’s submission that it is not necessary for the Commission to ‘delve into the minutiae of the mechanism of injury’. I also accept, in principle, the submission that undue significance should not be attributed to Mr Hancock’s use of the word ‘fall’ (or ‘fell’).”
The Arbitrator then said that “too many questions” were raised about what occurred on 18 May 2015, for her to be satisfied the appellant sustained the injuries claimed.[32] The appellant submits that the Arbitrator identified two questions. The first was whether the appellant saw Dr Ong on 20 May 2015 or 1 June 2015, although it was not identified why anything turned on this point. The second was the existence of a prior incident on 6 March 2015, the enquiry into which involved error. The Arbitrator also identified that the doctors had taken “slightly different histories” of what occurred on 18 May 2015.[33]
[32] Reasons, [89].
[33] Appellant’s submissions, [13].
Dealing with the first of these, the appellant submits the Arbitrator accepted the accuracy of Dr Ong’s notes regarding when the appellant consulted him after the incident. He submits that whether the consultation was on 20 May 2015 or 1 June 2015 was not of significance on the medical evidence, and was not relevant otherwise, as the Arbitrator accepted the incident on 18 May 2015 occurred. The only consequence of the discrepancy in dates was that the Arbitrator questioned the reliability of the appellant’s recollection.[34]
[34] Appellant’s submissions, [24].
The Arbitrator described Dr Ong’s notes as containing annotations possibly not made contemporaneously with the notes themselves (see [8] above). The appellant submits this was not a submission raised by the respondent. The Arbitrator did not identify what led her to this view, nor did she “identify what significance or weight she placed on that conclusion”.[35]
[35] Appellant’s submissions, [23].
The appellant submits Dr Ong’s notes are brief, and “need to be considered in context with the doctor’s reports”. The note for 1 June 2015 is accompanied by “W/C”, clearly a reference to it being a workers compensation matter. The report dated 16 April 2018 makes it clear that the appellant presented on 1 June 2015, giving a history that he fell off a step ladder on 18 May 2015. The doctor thought there were injuries to the left knee and lumbosacral spine, and referred him for a CT scan of the lumbosacral spine and a MRI scan of the left knee. The certificates are consistent with this.[36]
[36] Appellant’s submissions, [26]–[29].
The appellant submits there is no room for the Arbitrator’s speculation that the consultation on 1 June 2015 was a follow up from the earlier incident in March 2015. He submits Dr Ong’s report dated 30 July 2018 “eliminates that possibility”. It says that, on the earlier occasion, the condition settled with Mobic, and no further action was taken. The Arbitrator described Dr Ong’s report as requiring clarification, but does not explain what needs to be clarified. The reports explain what happened. The appellant submits that the earlier treatment in March 2015 was also for a work injury in the respondent’s employ. If the appellant had not recovered from that incident, a claim could have been made relying also on that incident.[37]
[37] Appellant’s submissions, [30]–[32].
The appellant refers to the Arbitrator’s reasons at [107], where she described various matters, including the significance of the earlier incident, as being raised in the s 74 notice issued by the insurer. He submits the notice raised the fact that the entry for 1 June 2015 did not mention a work injury. That is dealt with by the notation “W/C” in the notes for that date, and by Dr Ong’s report dated 16 April 2018. The later s 74 notice referred to the earlier injury in March 2015. This was dealt with by Dr Ong’s report dated 30 July 2018.[38]
[38] Appellant’s submissions, [33]–[34].
The appellant submits that what the Arbitrator failed to engage with was whether the incident was capable of causing the alleged injuries. The doctors all considered that the injuries, to a greater or lesser extent, were caused by the incident.[39]
[39] Appellant’s submissions, [14]–[15].
Respondent’s submissions
The respondent submits that Ground No 1 and the submissions are confusing in the extreme. The respondent submits that the Arbitrator was entitled to find that whatever incident occurred on 18 May 2015 did not result in ‘injury’. The respondent submits there were “different versions of how the appellant claimed he had hurt himself at work”.[40] It then sets out at length what are submitted to be the different versions.[41]
[40] Respondent’s submissions [18]–[19].
[41] Respondent’s submissions, [20]–[33].
The respondent refers to the email to Mr Cruse[42] in which the appellant said that on 20 May 2015 he was asked by his doctor to have x-rays and an ultrasound. Dr Ong’s records did not bear this out. The respondent submits the Arbitrator was entitled to question the appellant’s credibility.[43]
[42] ARD, pp 105–6.
[43] Respondent’s submissions, [36]–[39].
The respondent refers to the inconsistency the Arbitrator found regarding Dr Giblin’s report, in her reasons at [94]. The earlier scans were not available to any of the doctors other than Dr Giblin, and none of the other doctors appear to have known of the earlier injury in March 2015. Drs Kirsh and Diwan did not know of it. The Arbitrator’s comment that the evidence raised further questions about what happened on 18 May 2015 was available. The respondent submits there was a real possibility, as raised by the notes of Dr Ong on 6 March 2015 and the subsequent report, that the appellant suffered a similar event or experienced lumbar pain two months before the subject incident. The appellant submits the notes of Dr Ong do not refer anywhere to an injury at work. As the Arbitrator found, the notation “W/C” was insufficient.[44]
[44] Respondent’s submissions, [41]–[44].
The respondent submits the “earlier incident in March which appears to have been significant is simply left to one side”. This diminishes the weight of the medical evidence. In the circumstances, including the “varying accounts” in medical reports and the lack of detail in the opinions on causation, it was open to the Arbitrator to find the appellant had not discharged his onus of proof. The appellant’s submission that there were “slightly different histories” in the various reports should be rejected. The Arbitrator engaged in a detailed analysis.[45]
[45] Respondent’s submissions, [47]–[50].
The respondent refers to the Arbitrator’s observation that it is not possible to say whether the notations to Dr Ong’s notes were made contemporaneously. The Arbitrator observed that the notation “W/C” next to the entry for 1 June 2015 “does not show any discernible reference to work or to injury”. Its submissions refer to the appellant’s submission that the earlier injury occurred at work, and could have been the subject of a claim, unless there was recovery from that event, as Dr Ong said. The respondent submits this amounts to the appellant attempting to run a case on appeal that was not run at first instance, which he should not be permitted to do.
Consideration
The notations in Dr Ong’s notes
At the outset, it is appropriate to deal with the submissions going to the Arbitrator’s remarks at [40] to [41] regarding Dr Ong’s notes (see [8] above). The proposition that notations may have been added to Dr Ong’s notes, at some time after the notes were initially made, was not one that was raised by the respondent, or was the subject of submissions by either party. The first recorded consultation in Dr Ong’s notes, after 18 May 2015, was on 1 June 2015. The note on that day is not easy to decipher. It does not make obvious specific reference to a history of injury, although it refers to the left knee, and a discussion about a CT scan of the lumbosacral spine and an MRI scan of the left knee. The notation “W/C” is written in the margin next to that note, as it is against many other entries thereafter.[46] The appellant submits this clearly identifies the consultation as relating to a workers compensation matter.[47]
[46] ARD, p 24.
[47] Appellant’s submissions, [26].
Thus, at least in so far as the notes are concerned, the notation is significant, potentially going to whether it should be inferred that a work injury was mentioned on that consultation. If the notation was added at some unidentified later time, this could arguably cast doubt on whether a work injury was mentioned at the consultation. The Arbitrator’s observations on this point did have the capacity to affect the result. This is apparent from the remarks at [40] to [41] of the reasons (see [8] above), and the reasoning at [107] to [108] of the reasons (see [18] above). As the appellant correctly submits, the reasons do “not identify what significance or weight [the Arbitrator] placed on that conclusion”.[48]
[48] Appellant’s submissions, [23].
In Muin v Refugee Review Tribunal [49] McHugh J said:
“Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power.” [50] (excluding footnotes)
[49] [2002] HCA 30; 190 ALR 601; 76 ALJR 966 (Muin).
[50] Muin, [123].
If a court or tribunal proposes deciding a case by reference to matters outside the parties’ submissions and how they have conducted the matter, that prospect should be raised with the parties.[51] It follows that there was a breach of the rules of procedural fairness, in how the notations were dealt with at [40] to [41] of the reasons. It could not be concluded that this error could not have affected the result. A perceived lack of reliability in Dr Ong’s notes and reports was a factor in the Arbitrator’s analysis, which led to her conclusion that the appellant’s onus was not discharged (see the reasons at [100] and [107]). It follows that this constituted appealable error.[52]
[51] Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 (Stead), [11], Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; 3 DDCR 1, [78]–[79], Wrigley v Holland [2002] NSWCA 109, [17].
[52] Stead, [11], Toll Pty Limited v Morrissey [2008] NSWCA 197; 6 DDCR 561 (Morrissey), [10].
The history of two injuries
It was part of the Arbitrator’s reasoning, that the state of the evidence relating to an earlier incident in March 2015 raised doubts about whether injury to the left knee and lumbar spine resulted from an incident (the occurrence of which was conceded) on 18 May 2015 (see the reasons at [92] to [100] and at [107]).
The Arbitrator said that there was no reason to think that Dr Ong’s records were not correct.[53] The Arbitrator referred to Dr Ong’s report dated 30 July 2018, which recorded a history taken on 6 March 2015, of an incident “in almost identical circumstances at Bunnings”. The Arbitrator said this report “calls for some explanation but Mr Hancock has not offered one”. She considered the possibility that Dr Ong was mistaken as to the date, but described this as “not apparent on the evidence”, as the report was consistent with the entry in Dr Ong’s notes for 6 March 2015.[54] The Arbitrator concluded that the doctor’s referral of the appellant on 1 June 2015 (postdating the incident on 18 May 2015) for a CT scan and MRI, “suggest a progression of more detailed investigation of what was raised at the consultation on 6 March 2015”.[55]
[53] Reasons, [91].
[54] Reasons, [92].
[55] Reasons, [93].
The Arbitrator referred to Dr Giblin’s report dated 9 July 2018, which referred to an injury in early March 2015 “in virtually identical circumstances”. She said “other than Dr Giblin, none of the other doctors appears to have known of a similar incident two months earlier”. The Arbitrator said that “Dr Giblin’s report calls for some explanation but Mr Hancock has not offered any”.[56] She concluded there was a “real possibility” that the appellant “suffered a similar event, or experienced lumbar pain, two months before the incident the subject of his claim and that the visit on 1 June 2015 was follow up to that earlier visit”. She said that a “real question arises as to the reliability of [the appellant’s] statements”.[57]
[56] Reasons, [94].
[57] Reasons, [96].
The appellant submits that “Dr Ong’s notes need to be considered in context with the doctor’s reports”.[58] I accept the submission that the pieces of evidence from Dr Ong should be read together.[59] The appellant refers to the proposition that the consultation on 1 June 2015 “was merely a follow up in respect of the earlier incident and a progression of more detailed investigation of what was raised at the consultation on 6 March 2015”. The appellant submits that “[t]he report of Dr Ong dated 30 July 2018 eliminates that possibility”. He submits “the reports explain what happened”. [60] The respondent refers to the Arbitrator’s observation that doctors’ opinions were deprived of weight, because “the earlier incident in March which appears to have been significant is simply left to one side”. The respondent submits it was open to the Arbitrator to conclude that the reliance to be placed on the medical reports was affected by the varying accounts and lack of detail, and the conclusion that the appellant had not discharged his onus was open. [61]
[58] Appellant’s submissions, [27].
[59] Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 399, [92].
[60] Appellant’s submissions, [31]–[33].
[61] Respondent’s submissions, [47]–[48].
Dr Ong’s initial report dated 16 April 2018 recorded a history taken on 1 June 2015, of the incident on 18 May 2015:
“He stated that on 18/05/2015 he was filling a shelf with stock at Bunnings at Alexandria when he fell off the step ladder. He had twisted his left knee and complained of back pain after the fall.”[62]
[62] ARD, p 100.
Although significantly less detailed than the version in the appellant’s statement dated 31 August 2016, this history in general terms was consistent with the allegations made. This report did not refer to an earlier incident in early March 2015. The report said there was “[n]o previous injury of his lumbar spine”, and “minor osteoarthritis of the left knee pre-injury”.[63]
[63] ARD, p 101.
Dr Ong’s second report dated 30 July 2018 was addressed to the appellant’s solicitors, and described itself as “a supplementary report re: Mr Hancock’s injury on the 6th March 2015”. The report said:
“I saw him on the 6th March 2015, when he stated that he was working for Holman Industries at a Bunnings store that day. He stated that he was getting a box down from a shelf. As the box was too heavy for him to lift, he dropped it and as he dropped it, it brushed the left side of his body and left leg.
He did not take any time off work and I felt that he sustained a muscular skeletal injury. I prescribed Mobic as an inti-inflammatory and sent him for scans of his left knee and lumbo-sacral spine.
X/ray of the lumbo sacral [sic] spine did not reveal any significant abnormality. X/ray and ultrasound of his left knee also did not reveal any significant abnormality.
His back and left knee pain has settled with the use of Mobic and no further action was taken.” [64]
[64] ARD, p 104.
Dr Giblin also furnished a supplementary report to the appellant’s solicitors, dated 9 July 2018, following a re-examination on the same date. He recorded a history of the incident in early March 2015. He recorded a history of left leg pain on that occasion; the appellant on this re-examination was said to have denied injury to the back in March 2015, notwithstanding the referral for x-rays of the back. Dr Giblin took a history that symptoms on that occasion completely resolved over a period of two to three weeks, and there were “no further problems with either his back or his left thigh from that time up until the injury of the 18th May 2015”. Dr Giblin expressed the opinion:
“In view of this history, I don’t see that the injury of March 2015 has any part to play with his current symptomatology or the injuries he sustained on the 18th May 2015.” [65]
[65] ARD, p 103.
The appellant’s medical case included the reports from Dr Ong, the treating general practitioner, who saw the appellant on 6 March 2015 (following the earlier incident) and on 1 June 2015 (following the second incident). Dr Ong set out a clear history, that back and left knee symptoms following the earlier incident settled. This is consistent with the fact that Dr Ong’s clinical records do not show any other consultations between 6 March 2015 and 1 June 2015. The appellant relied also on Dr Giblin’s report dated 9 July 2018, which recorded a history that there was no time off work following the earlier of these incidents, and that symptoms on the earlier occasion resolved within two to three weeks. Dr Giblin considered the earlier incident had no part to play. On this causation issue there was no evidence to the contrary.
The histories recorded by Dr Ong and Dr Giblin comprised evidence of the facts recorded.[66]
[66] Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; 21 NSWCCR 389; 21 NSWCCR 389, [70], Guthrie v Spence [2009] NSWCA 369, [75], Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282;13 DDCR 351, [4].
The Arbitrator’s reasoning relied to a significant extent on the possible importance of the incident on 6 March 2015, and the possibility that symptoms following 18 May 2015 represented a continuance of symptoms from the earlier incident, rather than being consistent with a further injury (see the reasons at [92] to [96], [107] to [108]). The Arbitrator was critical of the state of the evidence, in that some explanation of the earlier incident was not offered by the appellant, including going to the opinion of Dr Giblin (see the reasons at [92] and [94]). The appellant submits it is not apparent what part of Dr Ong’s report needs to be clarified.
An issue having arisen regarding the possible significance of the earlier incident on 6 March 2015, the appellant relied on a report from the treating general practitioner which recorded that any symptoms at that time “settled with the use of Mobic”, and a report from the qualified orthopaedic surgeon Dr Giblin, that the earlier incident had no part to play in causation of symptoms that followed the later incident. This evidence, if accepted (and there was no evidence to the contrary) would have rendered the incident on 6 March 2015 an irrelevance.
In Charles Sturt University v Manning[67] Roche DP briefly summarised a number of authorities dealing with the need to engage with medical evidence as part of the fact-finding process:
“52. The extent of an Arbitrator’s duty to engage with the evidence depends on the circumstances of each case (Mifsud v Campbell (1991) 21 NSWLR 725 at 728). However, where there is disputed expert evidence, the ‘parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other’ (Archibald v Byron Shire Council [2003] NSWCA 292; 129 LGERA 311 at [54] per Sheller JA (with whom Beazley JA agreed), quoted with approval by McColl JA in Hume v Walton [2005] NSWCA 148 at [69]).
53. The Arbitrator was required to engage with the conflicting medical evidence (Sant v Tsoutsas [2009] NSWCA 3; Sourlos v Luv A Coffee Lismore Pty Ltd [2007] NSWCA 203 at [25] and Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127). As Bingham LJ explained in Eckersley v Binnie (1988) 18 Con LR 1 at 77–78, ‘a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons’ (quoted with approval by Beazley JA (as her Honour then was) in Taupau v HVAC Constructions (Queensland) Pty Limited [2012] NSWCA 293 at [133]).”[68]
[67] [2016] NSWWCCPD 10 (Manning).
[68] Manning, [52]–[53].
The appellant’s counsel, at the arbitration hearing, specifically submitted on Dr Ong’s report dated 30 July 2018, and the proposition that it was inconsistent with the presence of a pre-existing problem persisting up to the time when the incident on 18 May 2015 occurred.[69] The respondent’s counsel, making submissions at the arbitration hearing, referred to Dr Giblin’s report dated 9 July 2018, and said he assumed it had been “put together to exclude a prior incident being the cause of the [appellant’s] problems”.[70] There was not a specific submission on the respondent’s part, to the Arbitrator, that the histories in these supplementary reports dealing with the effects of the incident on 6 March 2015 were unreliable or wrong. It was, in the circumstances, necessary that the Arbitrator deal with these two supplementary reports, whether she accepted them, and why.
[69] T 31.16–31.
[70] T 26.4–22.
The Arbitrator dealt with Dr Giblin’s supplementary report in the reasons at [94]. She said that Dr Giblin had taken a history of the earlier incident, she inferred from the appellant. She said that the report called for “some explanation” but the appellant had not offered any. She referred to the two supplementary reports at [95] of the reasons. She said it was not possible to know what to make of them, and “[t]he reference to the two injuries remains unexplained”. She described the supplementary reports as raising “further questions about what occurred on 18 May 2015 and its significance for a finding that [the appellant] sustained the injury claimed”. In the reasons at [96] the Arbitrator described Dr Ong’s notes and his supplementary report as raising a “real possibility” that there was a similar event, or experience of lumbar pain, two months before 18 May 2015. She said this raised the possibility that the medical consultation on 1 June 2015 was a “follow up” to the earlier visit on 6 March 2015.
The evidence from Dr Ong, who treated the appellant after each of these incidents, clearly established, on the basis of the histories in his reports, that two such incidents occurred. It also dealt with the doctor’s opinion of the significance of each. The Arbitrator appears to have misapprehended the potential effect of the supplementary reports, and the use the appellant sought to make of that evidence. The way in which the Arbitrator dealt with the supplementary reports constituted factual error. The consequence of this was that the Arbitrator failed to “enter into the issues canvassed” in the appellant’s medical case, particularly as these related to the significance (or lack of it) of the earlier of these incidents. This constituted factual error of the type identified in Raulston (see [21] above), in that the Arbitrator failed to meaningfully consider the significance of evidence contained in the supplementary reports. The effect of this was that the fact-finding process miscarried.
When the reasons are read as a whole, the approach taken to the incident in March 2015, and its potential causative role in the appellant’s symptoms, constituted a significant factor in the Arbitrator’s conclusion that the appellant had failed to discharge his onus of proving that injury was suffered in a conceded incident on 18 May 2015 (see particularly at [107]). The error affected the result and is appealable error.
DISPOSITION OF THE APPEAL
The appeal is upheld for the reasons given above. This is sufficient to dispose of the appeal, and it is unnecessary to deal with the balance of the grounds. The first of the found errors involves a procedural fairness ground. It is effectively necessary that the fact-finding process be undertaken afresh. It is appropriate that the matter be remitted pursuant to s 352(7) of the 1998 Act for rehearing by a different arbitrator.[71]
[71] Stead, [11], Morrissey, [10].
DECISION
The Certificate of Determination dated 15 November 2018 is revoked.
The matter is remitted for re-determination by another Arbitrator.
Michael Snell
DEPUTY PRESIDENT
24 April 2019
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