Hanlon v McKay Investments Pty Ltd

[2001] TASSC 37

[2001] TASSC 37

CITATION:                 Hanlon v McKay Investments Pty Ltd & Anor [2001] TASSC 37

PARTIES:  HANLON, David Scott
  v
  McKAY INVESTMENTS PTY LTD

MMI INSURANCE LIMITED

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 92/2000
DELIVERED ON:  6 April 2001
DELIVERED AT:  Hobart
HEARING DATES:  23 March 2001
JUDGMENT OF:  Evans J

CATCHWORDS:

Workers Compensation - Proceedings to obtain compensation - Appeals and stated cases - Question of law - What constitutes.

Workers Rehabilitation and Compensation Act1988 (Tas), s3(2A).

Appeal Costs Fund Act 1968.

Edwards (Inspector of Taxes) v Bairstow & Anor [1956] AC 14; Instrumatic Ltd v Supabrase Ltd [1969] 1 WLR 519; Cascade Brewery Pty Ltd & Anor v Chambers A76/1992; Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321; Ambulance Service of New South Wales v Daniel & Anor [2000] NSWCA 116, considered.
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Australian Securities and Investments Commission v Hosken [No 2] [2000] TASSC 12, applied.
Aust Dig Workers Compensation [161]

REPRESENTATION:

Counsel:
             Appellant:  J E Green
             Respondent:  D A Bessell
Solicitors:
             Appellant:  John Green LLB
             Respondent:  Page Seager

Judgment Number:  [2001] TASSC 37
Number of Paragraphs:  22

Serial No 37/2001
File No LCA 92/2000

DAVID SCOTT HANLON v McKAY INVESTMENTS PTY LTD
and MMI INSURANCE LIMITED

REASONS FOR JUDGMENT  EVANS J

6 April 2001

1. The appellant worker claimed workers compensation from his employer, the first respondent, for a shoulder injury.  The claim was referred to the Workers Rehabilitation and Compensation Tribunal ("the Tribunal").  Following a contested hearing, the learned Commissioner found that the appellant suffered from an injury which was a disease described as supraspinatus tendonitis, a condition which involves the inflammation of either the supraspinatus tendon or the fluid sac encasing it.  The supraspinatus tendon is one of the tendons forming the shoulder's rotor cuff.

1. The appellant bore the onus of satisfying the learned Commissioner that the disease arose out of and in the course of his employment and to which his employment contributed to a substantial degree.  The determination of this issue required the Commissioner to have regard to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s3(2A) which provides:

"(2A)    For the purposes of this Act, employment is taken to have contributed to a disease to a substantial degree if it is the major or most significant factor."

1. The appellant was first diagnosed to be suffering from the disease on 22 June 1999.  For approximately 18 months prior to that date, the appellant's employment with the first respondent had involved a variety of manual activities, including three which were identified as possible causes of the appellant's condition, they being:

·    loading and unloading milled timber;

·    operating a docking saw; and

·    pushing a trolley loaded with timber over an uneven surface.

1. Having considered the evidence and paid particular attention to the three activities identified as potential causes of the appellant's condition, the Commissioner said he was not satisfied that the appellant had discharged the onus of establishing that his disease arose out of his employment and to which his employment contributed to a substantial degree.  The appellant appeals against the rejection of his claim. His grounds of appeal are:

"1   No Commissioner acting judicially and properly directed as to the law could make the finding that the worker's disease of supraspinatus tendonitis of the right and left shoulders was not work caused.

2    The Learned Commissioner erred in law in failing to consider the evidence of Dr Humphries that the worker's symptoms and injury was caused by the fact that the trolleys he was required to move at work became stuck in the rough concrete floor and caused injury to his supraspinatus tendon.

3    The Learned Commissioner erred in law in failing to conclude that the evidence of Dr Pitt was to the effect that the worker would not have suffered his symptoms if he hadn't been employed in the occupation in which he was employed at the time the injury occurred.

4    The Learned Commissioner erred in law in failing to consider the circumstantial evidence that:

(a)The worker's symptoms were worse when he worked and improved when he was not working;

(b)The evidence of Dr Humphries that the Appellant's work was the major cause of the injury because the work was an activity that took up a greater period of time than any sport or extra work activity he may have been involved in;

(c)The worker's sporting activity of sandball did not cause his injury;

(d)That on the evidence before the Learned Commissioner the appellant's work was the only activity which could have caused his injury.

5    The Learned Commissioner failed to give adequate reasons for his determination and to make material findings."

1. Pursuant to the Act, s63(1), the appellant's right of appeal is confined to challenging "any determination, order, ruling or direction of the Tribunal in point of law". Counsel for the respondents in substance submits that whilst grounds of appeal 1 - 4 purport to raise questions of law, they in reality raise issues of fact and are incapable of providing a basis upon which the appeal could succeed.

1. The many authorities dealing with terms such as "in point of law" and "question of law" are a testament to the difficulty of discerning the border between issues of fact and issues of law in some circumstances.  No distinction is drawn in the authorities between a "question of law" and a "point of law", Barry v Shoobridge [1971] Tas SR 265, Burbury CJ at 269.

1. The term "point of law" has been interpreted widely in England.  In Edwards (Inspector of Taxes) v Bairstow & Anor [1956] AC 14, Lord Radcliffe, at 36, said:

"When the case comes before the court it is its duty to examine the determination having regard to its knowledge of the relevant law.  If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law.  But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal.  In those circumstances, too, the court must intervene.  It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination.  So there, too, there has been error in point of law.  I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination.  Rightly understood, each phrase propounds the same test."

1. In Instrumatic Ltd v Supabrase Ltd [1969] 1 WLR 519, Lord Denning MR, at 521 said:

"There are many tribunals from which an appeal lies only on a 'point of law': and we always interpret the provision widely and liberally.  In most of the cases the tribunal finds the primary facts (which cannot be challenged on appeal): and the question at issue is what is the proper inference from those facts.  In such cases, if a tribunal draws an inference which cannot reasonably be drawn, it errs in point of law, and its decision can be reviewed by the courts.  That was settled, once and for all, in Edwards (Inspector of Taxes) v Bairstow [1956] AC 14. In other cases the question is whether, given the primary facts, the tribunal rightly exercised its discretion. In such cases, if the tribunal exercises its discretion in a way which is plainly wrong, it errs in point of law, and its decision can be reviewed by the courts."

1. The term "question of law" as used in the Appeal Costs Fund Act 1968, when initially enacted, has been the subject of a number of decisions, some of which have adopted the above passages. See Barry v Shoobridge (supra), Burbury CJ at 269, Tasmanian Pulp & Forest Holdings Ltd v Woodhall Ltd [1972] Tas SR 41, Burbury CJ at 45 and Hill v Temple (No 2) A39/1989, Neasey J at 4.  In the latter decision, Wright J referred to noteworthy authorities that the error under consideration, an error in the assessment of the extent of a plaintiff's loss of earning capacity, was an error of fact.  However, his Honour observed at 5, that a broad and liberal interpretation had been given to the phrase "question of law" in cases arising under the Appeal Costs Fund Act and his Honour concluded that nevertheless the error under consideration should be regarded as a question of law for the purposes of that Act.  His Honour cited the above quoted passage from Edwards (Inspector of Taxes) v Bairstow (supra) as an example of the wider view he had referred to. His Honour also observed at 7 that:

"The meaning of a phrase such as 'a question of law' should not vary markedly depending upon the statute in which it appears, yet judicial interpretation has led to this result."

1. Insofar as Edwards (Inspector of Taxes) v Bairstow (supra) and other English decisions are authority that findings and inferences are reviewable for error of law on the ground that they could not be reasonably made on the evidence or reasonably drawn from the primary facts, it is noteworthy that to date this proposition has not been accepted by the High Court.  In Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321, Mason CJ, who was agreed with by Brennan and Toohey JJ, said, at 355 - 357:

"The question whether there is any evidence of a particular fact is a question of law: McPhee v S Bennett Ltd. (1934) 52 WN(NSW) 8, at p 9; Australian Gas Light Co v The Valuer-General (1940) 40 SR(NSW) 126, at pp 137-138. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light, at pp 137-138; Hope v Bathurst City Council (1980) 144 CLR 1, at pp 8-9. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150, at pp 155, 157, 160. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473, at pp 481, 483. 88.

But it is said that '(t)here is no error of law simply in making a wrong finding of fact': Waterford v The Commonwealth (1987)163 CLR 54, per Brennan J at p 77. Similarly, Menzies J observed in Reg v The District Court; Ex parte White (1966)116 CLR 644, at p 654:

Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg illogical) inference of fact would not disclose an error of law.'

Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference ¾ in other words, the particular inference is reasonably open ¾ even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

On the other hand, there are statements in the English cases which support a 'no sufficient evidence' test in the context of judicial review of findings of fact: see, for example, Reg v Governor of Brixton Prison; Ex parte Armah (1968) AC 192, at pp 235, 257; but cf pp 241, 263. It remains to be seen whether these statements convey any more than a 'no probative evidence' test. So far no occasion has arisen to determine whether this is the case and, if so, whether the statements are to be seen as expressing what is or should be the law of Australia on the topic. There are also statements in the English cases which suggest that findings and inferences are reviewable for error of law on the ground that they could not be reasonably made on the evidence or reasonably drawn from the primary facts: Edwards (Inspector of Taxes) v Bairstow (1956) AC 14, at p 36; Cooper v Stubbs (1925) 2 KB 753, at p 772; British Launderers' Research Association v Borough of Hendon Rating Authority (1949) 1 KB 462, at pp 471-472; Ashbridge Investments Ltd v Minister of Housing and Local Government (1965) 1 WLR 1320, at p 1326; (1965) 3 All ER 371, at p 374. Further, in Mahon v Air New Zealand (1984) AC 808, the Judicial Committee stated (at p 821) that natural justice requires that 'the decision to make (a) finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory'. These statements may be traced back to the observations of Diplock LJ in Reg v Deputy Industrial Injuries Commissioner; Ex parte Moore (1965) 1 QB 456, at p 488; see also Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41, per Deane J at pp 67-68; 31 ALR 666, at pp 689-690 (an appeal from a decision of the Administrative Appeals Tribunal under the AAT Act). The approach adopted in these cases has not so far been accepted by this Court."

1. The decisions in Edwards (Inspector of Taxes) v Bairstow (supra) and Instrumatic Ltd v Supabrase Ltd (supra) have been referred to in this jurisdiction in cases dealing with what amounts to a point of law for the purposes of an appeal, pursuant to the Act, s63(1). Cascade Brewery Pty Ltd & Anor v Chambers A76/1992 was an appeal against a finding of a Commissioner of the Workers Rehabilitation and Compensation Tribunal that a worker was suffering from industrial deafness. In the course of considering whether there was an error in point of law in that finding, Underwood J, said at 4:

"An appeal on a point of law was described by Windeyer J in Nominal Defendant v Hook (1964-1965) 113 CLR 641 at 658 as meaning an appeal 'on the ground that [the trial judge] made some mistake in law or failed to apply correct legal principles when considering the application for a new trial.' His Honour referred to Murdoch v Durning (1893) 14 NSWLR 303 and Tolman v The Commissioner for Main Roads (1941) 58 WN (NSW) 233. In Gurnett v The Macquarie Stevedoring Co Pty Ltd [No 2] (1956-1957) 95 CLR 106 Dixon CJ said at 113 that a question of law was a reference to a principle of law or an application of such a principle. See also Chernery v Cole, Full Court 8/1985."

After setting out the passage from Edwards (Inspector of Taxes) v Bairstow, referred to in par7 of these reasons, Underwood J disposed of the matter on the basis of whether it could be said that the finding was one no person acting judicially and properly instructed as to the law could make.  His Honour adopted the same basis for determining whether a finding was wrong in law in Ling v Incat Tasmania Pty Ltd [2000] TASSC 87, as did Crawford J in FAI General Insurance Co v Morrisson & Ors A79/1993 when dealing with a contention that a finding made by the Tribunal was an error of law.

1. It is important to keep in mind that the issue before me is whether the Commissioner erred in law by failing to be satisfied that the appellant had established his claim.  The challenge is not to a positive finding of fact made by the Commissioner, but to his failure to be satisfied that a fact had been established.  It is also pertinent that the issue for determination by the Commissioner, which is the subject of this appeal, was whether the disease arose out of and in the course of the appellant's employment and to which his employment contributed to the requisite degree.  That is a question of fact, not a question of law; Coal & Allied Operations Pty Ltd v Collins (1989) 5 NSWCCR 218, par51 and Ambulance Service of New South Wales v Daniel & Anor [2000] NSWCA 116, par52. Both of these authorities refer to an earlier decision of the New South Wales Court of Appeal in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 which dealt with an appeal from a decision of a judge of the New South Wales Worker's Compensation Commission who had been unpersuaded that the appellant worker's conduct was causally related to an injury at work. As in the case before me, the issue was not whether a positive finding of fact was erroneous, but whether a failure to be satisfied of the proof of a matter the worker bore the onus of establishing, was an error. The right of appeal from a decision of the New South Wales Worker's Compensation Court is subject to a similar limitation to that which applies to an appeal from the Tribunal. The appellant must establish an error "in point of law". As to this matter, Glass JA (whose reasons for decision were agreed with by Samuels JA), said, at 155 - 156:

"[I]t is necessary to consider [the grounds of appeal] separately in order to determine whether a question of law has been raised.  If it is not, this  Court has no jurisdiction since the power of the Workers' Compensation Commission to determine the facts affecting any claim is made exclusive and  its determination of them is final, Workers' Compensation Act 1926, ss 36, 37. The first ground challenges the conclusion below that the applicant failed  to establish that he injured his knee on a periodic journey on 4 October 1975. There are authoritative pronouncements that such a contention involves no  question of law:

'The question whether there is any evidence of a particular fact is also a question of law: Sittingbourne Urban District Council v Lipton Ltd [1931] 1 KB 539 at 544 and Mersey Docks and Harbour Board v West Derby Assessment Committee [1932] 1 KB 40 at 110, 111. But if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law, unless, of course, there is some law which provides that the particular evidence, when given, is to be taken to establish the fact. If a tribunal which has exclusive jurisdiction to determine facts decides that it does  not accept the evidence tendered as establishing a particular fact, its decision, apart from the exceptional case which I have just mentioned, is conclusive. In that case the party upon whom the burden of proving the fact lies must fail. There is no rule of law that such a tribunal must believe the evidence, because it is all one way. It can accept all, or some, or none of it.'  

McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8 at 9. (Emphasis supplied.)  In another workers' compensation case Dixon J, as he then was, put the position in the following words:

'… the initial burden of proof is upon the applicant and the question whether he has so completely discharged it as to make a finding to the contrary unreasonable is not a question of law.'

Clark v Flanagan (1934) 52 CLR 416 at 428.

The juristic status of the first ground of appeal is also illuminated by the following two passages:

'… Indeed, more often than not, it is a question whether, having regard to the great probative force of the evidence, the Court in Banco, in the exercise of its control, ought to set aside the verdict as perverse.'

Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 at 379:

'… If the jury find for the plaintiff, and the Full Court rules that the rebutting evidence is overwhelming, it is expressing the opinion that the defendant was, as a matter of fact, not of law, entitled to a verdict.'

De Giola v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1 at 5; 59 WN 22.

It is clear from these extracts that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654.

A finding of fact in the Commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date. Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made, Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Australian Gas Light Co v Valuer‑General (1940) 40 SR (NSW) 126, at 138; 57 WN 53 at 55. The decision here assailed is not of that character.

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 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 fact. 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. Finally, the burden of proof to which the applicant is subjected cannot be masked by the use of double negatives. A purported ground of appeal which submits that there was no evidence that or it was not open to find that the applicant was not injured constitutes a futile attempt to convert a question of fact into a question of law by inverting the onus of proof." 

1. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, a case which dealt with a worker's appeal from a decision of the Compensation Court which limited the worker's entitlement to compensation on the basis of a finding that he had become fit for all work, Kirby P, who had expressed reservations about a narrow approach to the construction of the phrase "in point of law" in Azzopardi, said, at 253:

"Before proceeding to consider the appellant's grounds, it is appropriate to note that the appellant acknowledged by the redrafted grounds of appeal the rigorous requirements, established by this Court before a 'point of law' will be found.  In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 the majority (Glass JA, with whom Samuels JA agreed) pointed out that an error of fact finding would not be elevated to an error of law, if based on evidence open to the trial judge, even if an appeal court were of the view that the decision on the facts was illogical, perverse or completely unreasonable. In reaching this view, their Honours emphasised the need for the rigorous application of the principle long ago expounded by Dixon J in Clark v Flanagan (1934) 52 CLR 416 at 428, applied in the Full Court of the Supreme Court of New South Wales in McPhee v S Bennett Pty Ltd (1935) 52 WN (NSW) 8 at 9 and also applied on numerous occasions thereafter in the Supreme Court and the High Court of Australia: see, eg, Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 at 379; De Giola v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1 at 5; 59 WN 22 and R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 645."

1. In Ambulance Service of New South Wales v Daniel & Anor (supra) the New South Wales Court of Appeal dealt with an employer's appeal against a Compensation Court finding that a worker's employment by the employer was "employment to the nature which his injury was due".  Hodgson CJ in Equity (whose reasons for judgment were agreed with by Sheller and Beasley JJA) referred to Azzopardi and said, at pars56 and 57:

"In the main judgment in that case, that of Glass, JA, a clear distinction was drawn between the situation where the finding of fact in question is made in favour of a person bearing the onus of proof, and the situation where the finding of fact is made against the person bearing the onus of proof. In the former situation, the question is not whether there is any evidence at all on the point, but rather whether the evidence on the point is sufficient, in the sense that it is evidence which if fully accepted could properly base the finding of fact. The distinction is made clear in the following passage from the judgment of Glass, JA at p156:

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 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 fact. 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.

That very sharp distinction has not been stated so clearly in all the cases which followed Azzopardi".

Hodgson CJ concluded that a party who did not bear the onus of proof on a matter could make out an error of law in relation to an adverse finding on the matter by establishing that although there was evidence relevant to the matter, even if fully accepted, it could not properly support the finding.  This would be an error of law because an issue as to the insufficiency of evidence to prove a fact is a question of law.  As I perceive it, the corollary of this is that where the error asserted is a failure to be satisfied of a matter on which the appellant bore the onus of proof, no error of law is involved as the issue raised is not as to the insufficiency of evidence to support a finding.

1. The decision of Glass JA in Azzopardi was applied by the Full Court in Australian Securities and Investments Commission v Hosken [No 2] [2000] TASSC 12 with respect to the issue of whether the appeal raised matters "in point of law" as required by the Justices Act 1959, s123(1). Wright J said, at par33:

"It is easy enough to dress up questions of fact as though they were questions of law, and it is apparent that there has been an attempt to do this in the present case.  It is important, therefore, to bear in mind the decision of the Court of Appeal in New South Wales in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. In that case, the court was considering a provision in the Workers Compensation Act 1926 (NSW), s37(4)(a) which provided that a party aggrieved in proceedings before the Workers Compensation Commission might appeal to the Court of Appeal upon motion in relation to a 'point of law' or 'in relation to the admission or rejection of any evidence' ¾ limitations similar to those finding expression in the Justices Act, s123(1). The majority of the court held that the relevant section did not allow the Court of Appeal to correct errors of fact and any argument that a finding of fact was perverse, contrary to the overwhelming weight of the evidence, was against the evidence or the weight of the evidence, or that it ignored the probative force of the evidence, which is all one way, or that no reasonable person could have made that finding, or that the reasoning by which the court arrived at the finding was demonstrably unsound, did not disclose a valid ground of appeal because such contentions did not disclose any error of law. As Glass JA observed at 156:

'A purported ground of appeal which submits that there was no evidence that or it was not open to find that the applicant was not injured constitutes a futile attempt to convert a question of fact into a question of law by inverting the onus of proof.'

This observation has direct application to some of the grounds which were argued before this Court.  The New South Wales Court of Appeal acknowledged that the question whether there is any evidence of a particular fact is a question of law, but pointed out if there is evidence of the fact, the question whether or not that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law."

The members of the Full Court in Hosken did not advert to any distinction between the position of an appellant attacking an adverse finding on a matter as to which the appellant bore no onus of proof and the position of an appellant attacking a failure to make a finding in the appellant's favour on a matter as to which the appellant bore the onus.  Accepting that the position of these appellants differs in the manner identified by Hodgson CJ in Ambulance Service of New South Wales v Daniel, the distinction is of no consequence in this instance.  The appellant challenges the Commissioner's failure to make a finding in the appellant's favour on a matter on which he bore the onus of proof.  The full force of the decision of Glass JA in Azzopardi applies to such a challenge and the appellant must overcome the obstacle presented by the principles there enunciated.

1. Turning to the grounds of appeal, it can be seen that, adopting the epithet of Glass JA, ground 1 is one of "spurious validity".  A ground of appeal that asserts that it was not open to find that the appellant's disease was not work caused is a futile attempt to convert a question of fact into a question of law.  The ground is dismissed.

1. Ground 2 asserts that the Commissioner erred in law in failing to consider evidence of Dr Humphries that the worker's symptoms and injuries were caused by the fact that the trolleys he was required to move at work became stuck in a rough concrete floor and caused injury to his supraspinatus tendon.  Dr Humphries' evidence was that the appellant did not mention stacking timber onto a trolley.  However, Dr Humphries assumed that this was an aspect of the appellant's work and that on occasions when the appellant pushed the trolley it got stuck.  Dr Humphries said that such incidents were the kind of mechanisms which could have caused the appellant's injury, provided that the appellant's arms were above waist height as he pushed the trolley.  The question of whether or not this evidence should have been accepted in whole or in part by the Commissioner or should have been accepted as sufficient to establish that this activity was a cause of the appellant's disease, is one of fact and not one of law.  I should say, however, that the Commissioner did address this evidence in pars12 and 22 of his reasons for determination.  He said he was satisfied that the appellant's arms would not have been above waist height as he pushed the trolley and for this reason he rejected this activity as being a cause of the appellant's condition.  As the assertion which underpins ground 2 has not been substantiated, and in any event, it alleges an error of fact, the ground is dismissed.

1. Ground 3 asserts that the Commissioner erred in failing to conclude that the evidence of Dr Pitt was to the effect that the worker would not have suffered his symptoms if he had not been employed as he was at the time the injury occurred.  Dr Pitt's evidence to this effect was quoted by the Commissioner in par9 of his reasons for determination.  The quote appears to be based on the Commissioner's note of the evidence, and differs slightly from the transcript of the evidence.  This is of no consequence.  The effect of the evidence is the same.  If the Commissioner's failure to make a finding favourable to the appellant on the basis of this evidence can be categorised as an error, it is an error of fact, not an error of law.  This ground is dismissed.

1. Ground 4 asserts that the Commissioner erred in law in failing to consider the following: evidence that the worker's symptoms were worse when he worked and improved when he was not working; evidence of Dr Humphries that the appellant's work was a major cause of the injury because it was an activity that took up a greater period of time than any other activity the appellant was involved in; evidence that the worker's sporting activity of sandball did not cause the injury; and evidence that the appellant's work was the only activity which could have caused his injury.  In his reasons for determination, the Commissioner referred to evidence that the appellant's symptoms were worse after work.  He also referred to and addressed Dr Humphries' evidence that the appellant's work duties were the likely cause of his injury.  Whilst the Commissioner did not expressly refer to Dr Humphries' evidence to the effect that the appellant's work activities took more time than other activities the appellant was involved in, there is no reason to conclude that the Commissioner excluded this evidence from his consideration.  The Commissioner did not deal with evidence that the appellant had told workmates that he injured himself whilst playing sandball, an activity he engaged in several times per week.  It was not necessary for the Commissioner to deal with this evidence.  The issue for his determination was not whether sandball was the cause of the appellant's disease.  Rather, the issue for determination was whether the appellant's disease was work caused to the requisite degree and as to that issue, the Commissioner found the evidence wanting.  The matters raised by ground 4, including the assertion that on the evidence the appellant's work was the only activity which could have caused his disease, are all questions of fact.  If in dealing with these matters the Commissioner erred, his error was not an error of law. 

1. The fifth ground of appeal is that the Commissioner failed to give adequate reasons and make material findings.  The Commissioner was obliged to give adequate reasons for his determination.  In Soulemezis (supra), Kirby P, at 258 observed that this is a consideration of particular importance where appeals are limited to questions of law. At 259 his Honour said:

"This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge's conclusion.  But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues."

1. In the Commissioner's reasons for determination, which run to seven pages, he correctly identified the legal issues, summarised the bulk of the evidence and explained his reasons for not being persuaded that the evidence established that the appellant's work caused his disease to the requisite degree.  His reasoning process is disclosed and it can be readily understood.  It is not to the point that on the evidence it was open to him to have reached a different conclusion and to have found in favour of the appellant.  The arguments advanced on behalf of the appellant in attacking the adequacy of the Commissioner's reasons proceed from the premise that the Commissioner should have found for the appellant.  Against the background of that premise it is in substance submitted that the Commissioner's reasons must be inadequate as he reached the wrong conclusion.  This contention is circuitous and misconceived.  It was open to the Commissioner to reject the appellant's claim.  His determination sufficiently discloses the basis for the rejection.  Ground 5 is not made out.

1. The appeal is dismissed.