Health Department of Western Australia v Prosser
[2004] WASCA 83
•3 MAY 2004
HEALTH DEPARTMENT OF WESTERN AUSTRALIA -v- PROSSER [2004] WASCA 83
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 83 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:168/2002 | 4 MARCH 2004 | |
| Coram: | MALCOLM CJ STEYTLER J JENKINS J | 3/05/04 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | HEALTH DEPARTMENT OF WESTERN AUSTRALIA GERDA PROSSER |
Catchwords: | Workers' compensation Proceedings to obtain compensation under the Workers' Compensation and Rehabilitation Act 1981 (WA) Appeal against decision of Compensation Magistrate dismissing an appeal against the decision of a Review Officer Distinction between questions of law and fact Conflict of medical opinion over nature and extent of disability suffered by respondent Medical reports prepared on the basis of a history different from that found by the Review Officer No error on a question of law disclosed in the reasons of the Compensation Magistrate |
Legislation: | Workers' Compensation and Rehabilitation Act 1981, s 84ZN(2), s 84ZW |
Case References: | Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389 Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 Mahon v Air New Zealand Ltd [1984] AC 808 McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 Pollock v Wellington (1996) 15 WAR 1 Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 Ramsay v Watson (1961) 108 CLR 642 Re Croser; Ex parte Rutherford (2001) 25 WAR 170 Reg v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 Steele v Deputy Commissioner of Taxation (1999) 197 CLR 459 Summit Homes v Lucev (1996) 16 WAR 566 Van Dongen v Masters Dairy [2001] WASCA 1 Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 Stojkoski v Kailis and France [1999] WASCA 109 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : HEALTH DEPARTMENT OF WESTERN AUSTRALIA -v- PROSSER [2004] WASCA 83 CORAM : MALCOLM CJ
- STEYTLER J
JENKINS J
- Appellant
AND
GERDA PROSSER
Respondent
ON APPEAL FROM:
Jurisdiction : COMPENSATION MAGISTRATE'S COURT
Coram : J R PACKINGTON CM
File Number : CM 230 of 2001
(Page 2)
Catchwords:
Workers' compensation - Proceedings to obtain compensation under the Workers' Compensation and Rehabilitation Act 1981 (WA) - Appeal against decision of Compensation Magistrate dismissing an appeal against the decision of a Review Officer - Distinction between questions of law and fact - Conflict of medical opinion over nature and extent of disability suffered by respondent - Medical reports prepared on the basis of a history different from that found by the Review Officer - No error on a question of law disclosed in the reasons of the Compensation Magistrate
Legislation:
Workers' Compensation and Rehabilitation Act 1981, s 84ZN(2), s 84ZW
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr J R Ludlow
Respondent : Mr B L Nugawela
Solicitors:
Appellant : Dibbs Barker Gosling
Respondent : Vertannes Georgiou
Case(s) referred to in judgment(s):
Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389
Edwards (Inspector of Taxes) v Bairstow [1956] AC 14
(Page 3)
Mahon v Air New Zealand Ltd [1984] AC 808
McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8
Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Ramsay v Watson (1961) 108 CLR 642
Re Croser; Ex parte Rutherford (2001) 25 WAR 170
Reg v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456
Steele v Deputy Commissioner of Taxation (1999) 197 CLR 459
Summit Homes v Lucev (1996) 16 WAR 566
Van Dongen v Masters Dairy [2001] WASCA 1
Case(s) also cited:
Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
Stojkoski v Kailis and France [1999] WASCA 109
(Page 4)
1 MALCOLM CJ: I have had the advantage of reading the reasons of the Hon Justice Steytler with which I am in entire agreement.
2 STEYTLER J: This is an appeal from a decision of a Compensation Magistrate's Court, brought pursuant to s 84ZW of the Workers' Compensation and Rehabilitation Act 1981 ("the Act"). That section permits an appeal, by leave, "on a question of law".
3 The respondent was employed by the appellant as a clerical officer. She had originally been employed as a nurse at Mount Henry Hospital, but sustained a back disability in January 1994. As a result, she was unable to continue nursing and was rehabilitated into a clerical position. She initially continued this work with the Perth Dental Hospital. In August 1997 she commenced employment with the respondent, performing clerical duties in the human resources area until November 1997. In December 1997 she was employed as a theatre ward clerk at Fremantle Hospital. On 30 December 1997 she returned to the respondent's human resources area. She generally commenced work at 7.30 am each day, with her first duty being that of recording, from a telephone answering machine, the names and addresses of people wishing to obtain job description forms for positions recently advertised as vacant by the appellant. She gave evidence that the answering machine held messages from up to 40 individuals requesting a job description form. In each case she would record the details of the persons concerned on a form and also write out the names and addresses on envelopes. She then photocopied and stapled the job description form before placing a copy of each in an envelope for mailing. She would try to complete this task as early as possible so as to be available to take phone requests from 8 am onwards. She was required to perform the same tasks with respect to these. Other duties which she was required to perform included filing correspondence on personnel files.
4 The respondent said that duties such as writing, filing and stapling all caused her to suffer pain in her right arm. The pain began to develop towards the end of January 1998. However, she said, she was able to cope, albeit with the help of Panadol tablets. By Friday, 8 May 1998 the pain had reached the point where it was constant and unabating. She consequently made an appointment to see her general practitioner, Dr Andrew Ong, and consulted him on 12 May 1998. His diagnosis was that the respondent suffered from "occupational overuse syndrome". She returned to work on 14 May 1998 and continued there until 14 July 1998, upon which date her contract of employment expired.
(Page 5)
5 The respondent claimed weekly payments of workers' compensation under the Act. The appellant denied her claim, contending that she had not suffered any disability. The claim was referred to a Review Officer for determination.
Proceedings before the Review Officer
6 A number of medical reports were submitted to the Review Officer. These presented a conflict of medical opinion as to the nature and extent of the disability suffered by the respondent and, by consent of the parties and under s 84ZH and s 145A of the Act, the Review Officer referred that conflict to a Medical Assessment Panel. The Panel, after examining the respondent, diagnosed her as suffering from "Combined Ulnar and Radial Nerve entrapment/irritation". In the course of its reasons it said that she had developed the symptoms of this disability as a result of leaning on her wrist whilst writing.
7 Prior to receipt of the Panel's determination the Review Officer had heard evidence from a number of witnesses, including the respondent. In her evidence she had said that she sometimes received up to 120 requests in one day, although she said that there were normally about 50 requests per day. Her immediate supervisor, Mr Keith Wilcox, the appellant's coordinator of human resources, expressed the opinion that, on average, 20 to 30 requests were received each day but acknowledged that, on occasions, it was possible that 120 requests could have been received in one day. Evidence was also led from Ms Sarah McAullay, whose position had been filled by the respondent during a period in which Ms McAullay had acted in a higher position. She said that she had little difficulty completing the requirements of the job and that, on occasions, she became bored due to a lack of work. However, she acknowledged that on other occasions the position became very busy. Finally, in this respect, evidence was led from Mr Noel Stone, the payroll clerk working in the appellant's human resources area. His work station was in close proximity to that of the respondent. He was able to confirm the nature of the respondent's duties, having done that work previously, as recently as the day before the hearing. On that occasion he had been required to process 70 requests for job description forms from potential applicants. He said that the number of requests for the forms could vary greatly, depending on the position, and that the requests could be more or less than the 70 which he had processed on the previous day.
8 Evidence was also led from a number of witnesses as regards the question whether or not the respondent had made any complaint of the
(Page 6)
- pain experienced by her. Some of these said that she had not, but one, Ms Susan Norelli, the personal assistant to the appellant's general manager, recalled the respondent mentioning to her in about February or March 1998 that the respondent had experienced soreness in her arm. A similar concern was expressed to her by the respondent on a number of occasions thereafter.
9 The Review Officer, having considered all of the evidence, including medical evidence adduced both before and after receipt of the Medical Assessment Panel's determination, found, on 30 October 2001, that the respondent suffered from a work-related disability in accordance with par (c) of the definition of "disability" in s 5 of the Act and that she was consequently entitled to relief.
10 In the course of arriving at that decision, the Review Officer referred to a number of the medical reports. Four of these are of particular significance.
11 Three were prepared by Dr Ong. On 29 July 1998 Dr Ong wrote to Dr Taylor, a consultant rheumatologist, informing Dr Taylor, inter alia, that the respondent's job description resulted in her "having to write 120 addresses twice and folding and putting these letters in envelopes". Then, on 3 February 1999, in a report to the Australian Nursing Federation, Dr Ong again said that the respondent had been "processing some 240 addresses (approximately) on a regular basis with writing, folding and send [sic] away these for mailing". However, in a third report dated 11 March 1999, after the respondent had given evidence before the Review Officer, Dr Ong wrote:
"It is indeed correct that … [the respondent] was diagnosed with occupational overuse syndrome as a consequence of repetitive writing and folding of letters and envelopes of what I mentioned was '240 addresses'. This may involve between 50-170 envelopes only per day. This does not change the diagnosis. The problem could arise from repetition of smaller numbers by the person who is possibly more prone to this condition. They include workers who are excessively conscientious and industrious.
Unfortunately … [the respondent] happens to be one of those people who are very conscientious …".
12 The fourth report of particular significance is one from Professor Andrew Harper, an occupational physician to whom the
(Page 7)
- respondent had been referred by Dr Ong. In his report dated 6 October 1998 he diagnosed a cumulative strain injury to the respondent's right hand and wrist, having outlined the following history:
"[The respondent] reports having worked as a Receptionist for the Health Department from August 1997 through until July 1998. Her work involved continuous hand writing, addressing 120 envelopes per day and writing the same addresses a second time. Her work involved folding and stuffing envelopes, doing filing and some computer work."
14 The Review Officer excluded from consideration reports of other medical practitioners which shed no light on causation or in which diagnoses had been made which were different to that of the Medical Assessment Panel.
The Review Officer's reasons
15 In the course of his reasons for decision, the Review Officer addressed the issue of the extent of the work carried out by the respondent as follows (par 51):
"51. … In her evidence … [the respondent] initially imparted the impression that she was required to deal with 120 requests for job description forms each day and indeed this was the impression imparted to the medical practitioners as indicated by their reports. It would seem that they formed their opinions based on this information which, according to the other witnesses and indeed the … [respondent], was incorrect. The … [respondent] testified later that the average she received was about 50 per day and the most she ever received was 120. Whilst the upper limit of 120 requests per day was not rejected by the other witnesses, Mr Wilcox stated the average to be 20 to 30 and Ms McAullay simply testified that the position, whilst busy on occasions, was also quiet at times to the
(Page 8)
- point of being boring. She testified that it was so quiet at times that she was able to learn the duties of another position. None of the witnesses indicated that the volume of work the … [respondent] was required to undertake was excessive. Nevertheless, it is fair to say that there was an element of repetition in the work and the final report issued by Dr Ong would suggest that occupational overuse syndrome could be contracted where the repetitive activities were somewhat less than the volume which was originally mentioned by the … [respondent]. This aside, in my view the testimonies given by the various witnesses and the … [respondent] were not significantly disparate such as to impact on the determination of this dispute. In addition, I gained the impression the … [respondent] was a credible witness who endeavoured to be accurate in details given."
16 After considering a number of other matters (in the course of which he said that the opinions expressed by Dr Ong and Dr Harper were consistent with the determination of the Panel and, on that basis, were to be preferred over the opinions of other medical practitioners which were not so), the Review Officer went on to say:
"59. There was no evidence adduced as to whether there were any hereditary factors or as to the … [respondent's] health generally which would influence the occurrence of the … [respondent's] arm condition.
60. As to the last factor identified by the subsection the … [respondent] testified that she did not undertake non-work related activities which could have caused or contributed to the occurrence of her arm problem.
61. As to whether the … [respondent] suffered a work related disability in accordance with paragraph (c) of the definition contained in Section 5 of the Act her evidence clearly indicated that she began suffering symptoms towards the end of January 1998. She stated that she complained on a regular basis to her work colleagues, Ms Sitlington, Ms McAullay, Ms Norelli and Mr Stone. As stated already, of these witnesses Ms Norelli confirmed she was informed by the … [respondent] that she (the … [respondent]) was experiencing soreness in
(Page 9)
- her arm. Ms McAullay, Mr Stone and Ms Sitlington gave evidence to the effect that they were unable to recall or were not aware of the … [respondent] complaining of arm soreness. It would seem that the … [respondent] was mistaken in her belief she had informed these witnesses as to her arm problem. In my view this does not displace the relevance of the testimony of Ms Norelli that she was aware of the … [respondent's] arm problems and when considered in conjunction with the medical evidence it is reasonable to accept the … [respondent's] contention that she suffered arm problems as claimed.
- 62. Dr Ong recognised the aspect of the … [respondent's] duties requiring repetitive use of her arms. Dr Ong was clearly of the view the … [respondent's] arm condition resulted from her employment. In Dr Harper's report of 6 October 1998 he diagnosed the condition as a cumulative strain injury. Based on the evidence which I accept as to the repetitive nature of the … [respondent's] duties I concluded the tenor of Dr Harper's report was to the effect he thought the … [respondent's] arm condition was work caused.
63. Based on all the evidence I find as a fact that the … [respondent] suffered a work related disability in accordance with paragraph (c) of the definition of disability and as such she shall be entitled to relief pursuant to the Act."
The appeal to the Compensation Magistrate
17 The appellant appealed against the decision of the Review Officer to the Compensation Magistrate under s 84ZN(2) of the Act, which section permits an appeal of that kind "where a question of law is involved". There were three grounds of appeal, as follows:
"1. The medical reports of Dr Ong and Dr Harper were flawed in that they relied upon a different factual foundation to that which was found to have occurred by the Review Officer;
2. The reports of Dr Ong and Dr Harper were not capable of supporting the conclusion drawn by the Review Officer that the Respondent (Applicant) had suffered a work
(Page 10)
- caused disability in the factual situation found to have occurred by the Review Officer;
- 3. The evidence given at review was inconsistent with the finding by the Review Officer that the Respondent (Applicant) contracted a disease in the course of her employment, pursuant to paragraph (c) of the definition of a disability, prior to January 1998 as she had suffered from symptoms [sic]."
18 The Compensation Magistrate dismissed all three grounds of appeal. Because his decision was challenged in this Court only in respect of grounds 1 and 2, it is unnecessary to give the Compensation Magistrate's approach to ground 3 any consideration.
The Compensation Magistrate's reasons
19 In his usual thorough way, the Compensation Magistrate set out the background to the matter in some detail, before turning to the appellant's submission that the Review Officer should not, as a matter of law, have accepted the opinions of Dr Ong and Professor Harper because they were based on a history provided by the respondent which was different from that found by the Review Officer. After referring to two decisions of other Compensation Magistrates which had been cited to him, the Compensation Magistrate said:
"34. While I accept the proposition that an expert opinion should not be relied upon if it is based on facts different to those under consideration by a review officer, it seems to me that there are significant differences between this case and those cited.
35. Firstly, Dr Ong was made aware of the possibility that the respondent's work may not have been as onerous as he had at first believed. Given the opportunity to do so, he did not resile from his opinion.
36. Secondly, even if the opinions of Dr Ong and Professor Harper were to be excluded, along with those of all the medical practitioners whose diagnoses were not in accord with the determination of the MAP, the review officer would then have been left with that determination, by which he was bound, as to the nature of the respondent's condition, and the respondent's own
(Page 11)
- evidence that its onset was related to her work. The result would not have been any different.
- 37. Thirdly, the review officer found that the testimonies given by the various witnesses and the respondent, were 'not significantly disparate such as to impact on the determination of this dispute'. With a degree of indignation, counsel for the appellant drew the court's attention to numerous pages of the transcript of the review proceedings, at which witnesses attempted to estimate the number of job enquiries that the respondent had to deal with, or numbers of them which might have been possible on any given day. 120 was thought to be excessive, but one witness thought that 90 would have been possible on a very busy day. 40 was the maximum number that could be stored on the answer phone. The respondent's supervisor thought that 20-30 would be the average, but at one point rather vaguely added that that might happen twice a day. In the opinion of some witnesses, the job was very quiet and required little time and effort. It seems to me, however, that it does not advance the appellant's cause at all to quibble over the number of job enquiries that the respondent dealt with, or could possibly have dealt with, because at the end of the day there was a determination by the MAP that the respondent suffered a disease, and a finding of fact by the review officer that the respondent's employment contributed to a significant degree to the contraction of that disease. In the appellant's submission there was no evidence before the review officer capable of supporting a conclusion that the respondent had suffered a 'disability' within the meaning of paragraph (c) of the definition of that word in s5 of the Act. With respect, that is simply not the case. The appellant may be unhappy with the fact that the respondent appears to have overstated the number of enquiries she had to deal with to Dr Ong and Professor Harper (although I note that the review officer formed the impression that she was a credible witness), and may well consider that the evidence, and the weight of evidence, should have resulted in a different outcome. But as long as there was some evidence upon which the review officer could make his finding of fact (and, as I
(Page 12)
- have indicated, in my opinion there clearly was), then of course his finding of fact cannot be impugned by way of appeal - see Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139.
- 38. In my opinion these grounds of appeal are made in vain."
The grounds of appeal to this Court
20 There are five grounds of appeal to this Court. These read as follows:
"1. The learned Compensation Magistrate erred in law in rejecting grounds 1 and 2 of the appeal in reliance upon Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139.
2. The learned Compensation Magistrate should have held that s 84ZN(2) of the Workers' Compensation and Rehabilitation Act 1981 (WA) gave the Appellant a right of appeal 'where a question of law is involved',and that Azzopardi was a decision on a differently worded appeal provision.
3. Further or alternatively, the learned Compensation Magistrate should have held that in any event the correct approach to the interpretation of the provision considered in that case was the approach of Kirby P at 151 B-G, supported as it is by the decisions of this Court in Summit Homes v Lucev (1996) 16 WAR 566 and Re Croser; ex parte Rutherford (2001) 25 WAR 170, and not the conflicting approach of Glass and Samuels JJA.
4. Further or alternatively, the learned Compensation Magistrate should have held that the appeal from the Review Officer to the Compensation Magistrate's Court involved at least the following questions of law:
(a) whether the learned Review Officer had erred in law in failing to make, and set out in his reasons for decision, sufficient, alternatively sufficiently precise, findings of primary fact to discharge his obligation in law to make such findings, and to deliver sufficiently precise reasons for decision;
(b) whether, after observing that '... the other witnesses and indeed [the Respondent] ...' had
(Page 13)
- given evidence that the 'medical practitioners' had formed their opinions based on an incorrect history, the learned Review Officer had erred in law:
(i) in failing to make (a) finding(s) to that effect, or, at the very least, in relation to that issue; and/or
(ii) in relying in part upon the medical evidence of Drs Ong and Harper, alternatively the medical evidence of Dr Harper, based as it was on that incorrect history;
- (c) whether the evidence led before the Review Officer was reasonably capable of supporting the conclusion that Drs Ong and Harper, alternatively Dr Harper, had been given an accurate history;
(d) whether, after observing that '[n]one of the witnesses indicated that the volume of work [the Respondent] was required to undertake was excessive ...', the learned Review Officer had erred in law:
(i) in failing to make (a) finding(s) to that effect, or, at the very least, in relation to that issue; and/or
(ii) in ultimately concluding that the Respondent had suffered a 'disability'(bearing in mind that that conclusion was a conclusion as to whether the primary facts met a statutory description, and therefore involved a question of law).
5. The learned Compensation Magistrate should have held that the appeal from the Review Officer to the Compensation Magistrate's Court should be allowed, on the following basis:
(a) the learned Review Officer had erred in law in failing to make, and set out in his reasons for decision, sufficient, alternatively sufficiently precise, findings of primary fact to discharge his obligation in law to make such findings, and to deliver sufficiently precise reasons for decision,
(Page 14)
- on the contested issue of how many times each day the Respondent had had to write out the names and addresses of prospective job applicants in the course of her employment with the Appellant; and/or
- (b) after observing that '... the other witnesses and indeed [the Respondent] …' had given evidence to the effect that the 'medical practitioners' had formed their opinions based on incorrect information, the learned Review Officer had erred in law:
(i) in failing to make (a) finding(s) to that effect, or, at the very least, in relation to that issue; and/or
(ii) in relying in part upon the medical evidence of Drs Ong and Harper, alternatively the medical evidence of Dr Harper, based as it was on that incorrect history; and/or
- (c) the evidence led before the Review Officer was not reasonably capable of supporting the conclusion that Drs Ong and Harper, alternatively Dr Harper, had been given an accurate history, and the learned Review Officer had therefore erred in law in relying in part upon the medical evidence of Drs Ong and Harper, alternatively the medical evidence of Dr Harper; and/or
(d) after observing that '[n]one of the witnesses indicated that the volume of work [the Respondent] was required to undertake was excessive ...', the learned Review Officer had erred in law:
(i) in failing to make (a) finding(s) to that effect, or, at the very least, in relation to that issue; and/or
(ii) in ultimately concluding that the Respondent had suffered a 'disability'
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- (bearing in mind that that conclusion was a conclusion as to whether the primary facts met a statutory description, and therefore involved a question of law)."
Grounds 1, 2 and 3
21 I will deal first with grounds 1, 2 and 3.
22 The Compensation Magistrate cited Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 only for the proposition that, as long as there was some evidence upon which the Review Officer could make his finding of fact, then that finding could not be impugned on appeal given that, under s 84ZN(2), an appeal to a Compensation Magistrate only lies where a question of law is involved.
23 In that case the Court had to deal with a provision of the Workers' Compensation Act 1926 (NSW) which gave to a party to proceedings in the former Workers' Compensation Commission in New South Wales a right of appeal where his or her grievance was "in point of law" or "in relation to the admission or rejection of any evidence". Glass JA, with whom Samuels JA was in agreement, cited with approval the following extract from the judgment of Jordan CJ (with whom Davidson and Stephen JJ were in agreement) in McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9:
"The question whether there is any evidence of a particular fact is a question of law: Sittingbourne Urban District Council v Lipton Ltd [1931] 1 KB 539 at 544 and Mersey Docks & 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."
(Page 16)
24 After referring to a number of extracts from other judgments his Honour said (at 155 - 156):
"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 or 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."
25 His Honour went on to say, a little later in his judgment (at 156 - 157) that:
"Errors may be committed by a Workers' Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the
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- determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage any error made will by definition be an error of law. At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the … [course] of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council (at 10); Australian Gas Light Co v Valuer-General (at 138; 55). Accordingly this Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found."
26 A rather different approach was taken, in the course of a dissenting judgment, by Kirby P (as his Honour then was). His Honour said, at 151:
"The finding of what have been called the primary facts of a case does not, in itself, expose the trial judge to review on a point of law, unless it can be shown that there is no evidence of a primary fact and that, this being crucial to his decision, the judge's fact finding has involved an error of law. If there is evidence, or if there are available inferences which compete for the judge's acceptance, no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another. This is his function. The evaluation of competing evidence and inferences is reserved in compensation cases to the judge of the Compensation Court. Even if the evidence is strongly one way, the appeal court may not intervene simply because it reaches a different conclusion and this even if it regards the conclusion of the trial judge as against the weight of the evidence. Where the evidence points only in one direction, and, as in Poricanin [v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419] the trial judge nonetheless states that he disbelieves it, the onus being upon that person, the court, on appeal, may not intervene.
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- But where, because of the development of the obligation of reasoned decision-making, the judge, unlike a jury, exposes his reasons and these reasons demonstrate manifest error or illogicality in the reasoning process; rely on facts which are not established by the evidence or indicate such an unexplained perversity as to suggest that an error has taken place in one of the three stages of the process of judicial decision-making, an error in point of law will be established such as will attract the jurisdiction of this Court and warrant its intervention."
27 There are statements in the English cases to the effect that findings are reviewable for error of law if they could not reasonably have been made on the evidence or, in the case of inferences, if they could not reasonably have been drawn from the primary facts: see, for example, Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 at 36 and Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320 at 1326. Also, in Mahon v Air New Zealand Ltd [1984] AC 808 at 821 the Privy Council said that the rules of natural justice require "that the decision to make the 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". In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357 Mason CJ said that these last statements may be traced back to the observation of Diplock LJ in Reg v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 488. However, as was also pointed out by Mason CJ in Bond, at 357, the approach adopted in the English cases to which I have referred has not so far been accepted by the High Court of Australia.
28 This whole area of the distinction between questions of law and fact has, for many years, been beset with difficulty. In Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389 at 394 Brennan CJ and Dawson, Toohey, Gaudron and McHugh JJ said that, notwithstanding attempts by many distinguished judges and jurists to formulate tests for finding the line between the two questions, no satisfactory test of universal application has yet been formulated. Indeed, Wade and Forsyth: Administrative Law, 8th ed, at 922 refer to an American writer, Leon Green (whose work is entitled "Judge and Jury"), who has, no doubt tongue in cheek, gone so far as to say (at 270) that:
"No two terms of legal science have rendered better service than 'law' and 'fact' ... . They are the creations of centuries. What
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- judge has not found refuge in them? The man who could succeed in defining them would be a public enemy."
29 Perhaps the statement which most accurately reflects the position in Australia, at least for the present (see Steele v Deputy Commissioner of Taxation (1999) 197 CLR 459 at 492, where Callinan J mentioned that there has been controversy in Australia since the decision in Bond as to the meaning of "error of law" when there is a question whether an appropriate factual substratum exists or not to supply an ultimate legal construction), is that of Mason CJ (with whom Brennan J was in agreement) in Bond, at 355 - 356, as follows:
"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.
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 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
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- there is some basis for an inference - in other words, the particular inference is reasonably open - 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."
30 (See also Van Dongen v Masters Dairy [2001] WASCA 1 at [5], per Kennedy J.)
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.
Grounds 4 and 5
32 Grounds 4 and 5 are repetitive and prolix. However, as I read them, the following three propositions can be distilled from them. The appellant contends that the Compensation Magistrate should have found that the Review Officer made the following errors of law:
(a) in failing to make adequate findings of primary fact, including a finding:
(i) on the issue whether or not the medical practitioners on which the Review Officer relied had formed their opinions based on an incorrect history;
(ii) on the question whether the volume of work required to be undertaken by the respondent was excessive; and
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- (iii) on the issue of how much work was in fact undertaken by her;
- (b) in relying upon the medical evidence of Dr Ong and Professor Harper when that evidence was based upon an incorrect history; and
(c) in ultimately concluding that the respondent had suffered a disability.
33 As I said at the very outset of these reasons, an appeal only lies to this Court, by leave (leave has previously been given in this case), "on a question of law". That being so, the appellant is obliged to satisfy us that the Compensation Magistrate erred on a question of law.
34 As to proposition (a), while a failure to give adequate reasons does ordinarily give rise to an error of law (as to which see Summit Homes, above, at 569 - 570 and Croser, above, at 182), the Magistrate was never invited to find any such error. So much is apparent from the grounds of appeal against the decision of the Review Officer, which I have set out above. In any event, the Review Officer did make findings in respect of each of the matters complained about. He found, firstly, that the medical practitioners (with the exception of Dr Ong, in his latest report) had formed their opinions on incorrect information (par 51 of his reasons). He found, secondly, that the general burden of the evidence was that the respondent's workload was not excessive, as a workload (ibid). He found, thirdly, that the average workload undertaken by the respondent was less than the impression initially created by her but accepted that the respondent was a credible witness who endeavoured to be accurate in the details given by her in evidence, being ultimately to the effect that she received an average of about 50 requests per day (ibid). He went on to find, in effect, that it did not matter that the medical practitioners had been under a misapprehension (I shall return to this below) or that others did not regard the respondent's workload as excessive and that, on the medical evidence which he accepted, the probability was that the workload actually undertaken by the respondent had led to her injury. It follows that the Compensation Magistrate made no error of law in the respect contended for.
35 As to propositions (b) and (c), the Compensation Magistrate found that the Review Officer was entitled to rely upon Dr Ong's third report, as he had done, given that that report was prepared after the respondent had given evidence and given that it recognised that the medical problems
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- suffered by the respondent could arise from repetition of smaller numbers than those initially stated by her. There is no basis upon which that conclusion can be challenged.
36 As to Professor Harper, it has long been accepted that an expert medical opinion must rely upon facts which are proved by admissible evidence: Ramsay v Watson (1961) 108 CLR 642; Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844; Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 and Pollock v Wellington (1996) 15 WAR 1 at 3. It is clear that Professor Harper was under a misapprehension as regards the amount of writing done by the respondent. It is not clear one way or the other, from what was said by him, that his diagnosis would have been the same, had he known of the true amount of repetitive work done by the respondent. The Review Officer appears to have assumed, without any justification, that his diagnosis would have remained the same. However, as the Compensation Magistrate pointed out, there was, in any event, a determination by the Medical Assessment Panel which supported the diagnosis made by Dr Ong and Professor Harper and, indeed, that determination was binding upon the Review Officer. Consequently, as the Compensation Magistrate recognised, the only relevant question for the Review Officer was that of whether or not the medical condition was work caused. The Review Officer had, in that respect, the evidence of Dr Ong which, as I have said, was to the effect that the problem could arise from repetitive work in smaller numbers than he had previously understood to be the case. He also made the finding that there was no evidence of any other factor which would have influenced the occurrence of the respondent's medical condition. In those circumstances it was, as the Compensation Magistrate found, inevitable that the result would have been the same even if Professor Harper's evidence was treated as an irrelevant consideration, as the appellant contended it should have been. It was for this reason that he dismissed the appeal.
37 In my opinion it was open to the Compensation Magistrate to adopt that process of reasoning on the appeal. By s 84ZP(1)(a) of the Act, on hearing an appeal under s 84ZN, a Compensation Magistrate's Court may "affirm, vary, or quash the decision or order appealed against, or substitute, and make in addition, any decision or order that should have been made in the first instance". Moreover, by s 116 of the Act, the Magistrate is to make his or her determination in respect, inter alia, of an appeal under s 84ZN "according to equity, good conscience, and the substantial merits of the case". That is what he did and no error on a question of law is disclosed by his reasoning.
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38 It follows that the appeal should be dismissed.
39 JENKINS J: I have had the advantage of reading, in draft, the reasons to be published by Steytler J. I agree with those reasons and have nothing further to add.
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