Kaukau and Cleanaway Operations Pty Ltd (Compensation) - [2022] AATA 998

Kaukau and Cleanaway Operations Pty Ltd (Compensation) [2022] AATA 998 (4 May 2022)
Division:GENERAL DIVISION
File Number: 2020/2351
Re:Mervyn Kaukau
APPLICANT

AndCleanaway Operations Pty Ltd
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:4 May 2022
Place:Perth

The decision of the respondent dated 20 April 2020 which affirmed the determination of 3 March 2020 is set aside and substituted with a decision that the respondent is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the right ankle injury suffered by the applicant on 29 October 2019.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
COMPENSATION – liability to pay compensation for injury suffered under s 14 of the SRC Act – claimed injury of “right ankle inflammation and loose bodies” – previous injury to right ankle – respondent raised defence under s 7(7) of the SRC Act at hearing – applicant’s understanding of relevant forms in answering questions about previous injury – applicant did not make wilful and false representations – preferable medical evidence – applicant suffered an injury under s 5A(1)(c) of the SRC Act – respondent is liable to pay compensation – reviewable decision set aside and substituted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A(1), 5A(1)(b), 5A(1)(c), 5B, 5B(1)(b), 7(7), 14, 14(1), 16, 19, 54
CASES
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Davis and Australian Postal Corporation [2021] AATA 30
K&S Freighters Pty Ltd v McQueen-Thomas [2018] FCA 1518
Lees v Comcare [1999] FCA 753
McQueen-Thomson and K&S Freighters Pty Ltd [2016] AATA 510
REASONS FOR DECISION
Deputy President Boyle
4 May 2022
THE APPLICATION

The applicant seeks the review of a decision of the respondent dated 20 April 2020[1] which affirmed a determination of 3 March 2020 which determined that the respondent was not liable to pay compensation to the applicant in accordance with ss 14, 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in respect of “Right ankle inflammation and loose bodies’ claimed to have been sustained on 28 October 2019”.[2]
[1] R1, T21.
[2] R1, T17/76.
BACKGROUND
The applicant is 63 years old. He was formerly employed by the respondent as a waste and vehicle operator at the Chevron site on Barrow Island on a fly-in-fly-out basis.
The applicant says that on 29 October 2019, in the course of his employment with the respondent, he stepped on a rock and rolled his right ankle[3] and that as a result he suffered an “inversion injury which resulted in a pre-existing injury with degenerative changes being aggravated and exacerbated”.[4]
[3] applicant's statement of facts, issues and contentions filed 27 April 2021 (applicant’s SFIC) para 1.
[4] applicant's SFIC para 2.
In 1984 the applicant suffered an injury to his right ankle which was repaired through surgery which involved the insertion of two screws.[5] He says that following that surgery he did not have any symptoms or disability until 2014/2015. In March 2016 he had surgery to remove the two screws which were causing symptoms and disability.[6]
[5] applicant's SFIC para 3.
[6] applicant's SFIC paras 4–5.
The applicant says that, subsequent to the removal of the screws in 2016, he had full, unrestricted capacity for work and that he passed all pre-employment medical examinations[7] and had no symptoms or disability until the incident on 29 October 2019 referred to in [3] above.[8]
[7] applicant's SFIC para 7.
[8] applicant’s SFIC para 6.
The applicant says that following the incident on 29 October 2019, he completed his roster rotation and flew home to Perth. He returned to work at the commencement of his next rotation on 6 November 2019 and thereafter worked through to the completion of that two-week rotation on 19 November 2019. The applicant says that although he worked through this rotation, his ankle was painful and he was limping. He says that the site safety officer noticed him limping, asked him what had happened and told him to report the injury. He says that he was then seen by the respondent’s doctor on site who recommended that he take ibuprofen.[9]
[9] applicant's statement dated 27 April 2021, A1/74.
On 7 January 2020, Dr Ong of Queens Park Medical Centre issued a medical certificate certifying the applicant unfit to continue his usual occupation for the period from 7 January 2020 to 14 January 2020.[10] Dr Ong issued a further medical certificate certifying the applicant unfit to continue his usual occupation for the period from 14 January 2020 to 31 January 2020.[11]
[10] R2, 47.
[11] R2, 48.
The applicant took sick leave from 8 January 2020 to 21 January 2020.[12] On 21 January 2020, the respondent sent the applicant notification of a restructure at the Chevron Barrow Island site and that his position was to become redundant effective from close of business, 29 January 2020.[13]
[12] R1, T4/32–3.
[13] R1, T7.
On 22 January 2020 Dr Ong issued a “WorkCover WA FIRST certificate of capacity”[14] by which he assessed the applicant to have no capacity to work for the period 22 January 2020 to 12 February 2020. That certificate diagnosed:
R ankle inflammation with background degenerative arthritis and loose bodies and past history of right ankle fracture treated with ORIF in 1984 and right posterior tibialis tenosynovitis managed conservatively in 2014.[15]
[14] R1, T8.
[15] R1, T8/40.
On 24 January 2020 the applicant, through his solicitors, Separovic Injury Lawyers, lodged a claim for workers’ compensation for an injury suffered on 28 October 2019.[16]
[16] R1, T9.
By letter dated 6 February 2020, the respondent confirmed that the applicant’s position was redundant with effect from close of business on 6 February 2020.[17]
[17] R1, T11.
Following a request from the respondent for the applicant to submit a compliant workers’ compensation claim form, on 21 February 2020, the applicant submitted a further claim form.[18] That claim form identified the condition for which claim was made as being “right ankle inflammation and loose bodies”[19] and the date of the injury as being 28 October 2019.[20]
[18] R1, T15.
[19] R1, T15/59.
[20] R1, T15/60.
On 3 March 2020 the respondent made a determination[21] that the respondent was not liable to pay compensation in accordance with ss 14, 16 and 19 of the SRC Act.
[21] R1, T17.
By email dated 26 March 2020[22] the applicant provided further information about the incident when he claimed to have rolled his ankle, further information about his prior medical history relating to his ankle and corrected the date of the incident from 28 October 2019 to 29 October 2019.
[22] R1, T18.
Although the applicant’s email of 26 March 2020 did not specifically request a reconsideration of the respondent’s determination rejecting the applicant’s claim, the respondent treated that email as requesting a reconsideration and on 20 April 2020 the respondent affirmed its determination of 3 March 2020.[23]
[23] R1, R21.
On 23 April 2020 the applicant applied to the Tribunal for the review of the respondent’s decision of 20 April 2020.
THE HEARING AND THE EVIDENCE
The application was heard on 23, 24 and 25 August 2021. Mr K Wong of Soul Legal (the applicant’s solicitors) appeared as counsel for the applicant on the first day of the hearing and Mr B Nugawela appeared as counsel for the applicant on the subsequent days. Mr C Clark appeared as counsel for the respondent. The following witnesses gave evidence:
(a)The applicant;
(b)Joanne Marie Cunard;
(c)Kyle Martin Eagar;
(d)Dr Timothy Ong;
(e)Associate Professor Gerard Hardisty (Professor Hardisty);
(f)Robert Te; and
(g)Professor Peter Steadman.
The following documents were admitted into evidence:
(a)The applicant’s book of further documents dated 27 April 2021 (A1);
(b)The applicant’s supplementary book of further documents dated 12 August 2021 (A2);
(c)Applicant’s book of payment slips dated 6 April 2021 (A3);
(d)Applicant’s book of statutory allowances dated 1 April 2021 (A4);
(e)Submissions and further evidence filed pursuant to directions of the Tribunal dated 30 March 2021 (A5);
(f)T-documents (R1);
(g)The respondent’s hearing book filed 12 August 2021 (R2);
(h)Email from Mr Leon Demarte dated 26 November 2019 (R3);
(i)Letter from the respondent to Professor Steadman dated 17 August 2020 (R4); and
(j)Letter from the respondent to Professor Steadman dated 21 December 2020 (R5).
The following written closing submissions were provided by the parties:
(a)The respondent’s outline of submissions filed on 15 October 2021 (respondent’s closing submissions);
(b)The applicant’s closing submissions filed on 19 November 2021; and
(c)The respondent’s outline of reply submissions filed on 26 November 2021.
LEGISLATIVE FRAMEWORK
Section 14(1) of the SRC Act relevantly provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
“Injury” is relevantly defined in s 5A(1) of the SRC Act to mean:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
…
“Disease” is relevantly defined in s 5B of the SRC Act to mean:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
Section 7(7) of the SRC Act provides:
A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
Section 16 of the SRC Act makes an employer liable to pay for medical treatment obtained in relation to an injury, being treatment that was reasonable for the employee to obtain.
Section 19 of the SRC Act provides that an employer is liable to compensation to an employee for lost earnings if an injury suffered by the employee results in incapacity.
THE ISSUES
The applicant identified the issues for determination to be:[24]
(a)Did the applicant suffer an injury?[25]
(b)Further and in the alternative, did the applicant suffer an aggravation of an injury?[26]
(c)If the answer to both of the above is no, did the applicant have an ailment that was aggravated by his employment to a significant degree?[27]
(d)Did the injury “result” in incapacity for work or impairment?[28]
(e)What is the liability of the respondent to pay for treatment and make weekly payments for incapacity to date?[29]
[24] applicant's SFIC heading 2.
[25] Citing SRC Act s 5A(1)(b).
[26] Citing SRC Act s 5A(1)(c).
[27] Citing SRC Act s 5B(1)(b).
[28] Citing SRC Act s 14.
[29] Citing SRC Act ss 16 and 19.
The respondent’s statement of facts, issues and contentions filed 19 May 2021 (respondent’s SFIC) and its statement of issues filed on 20 May 2020 identified the issues as being:
(a)Does the applicant suffer from a right ankle condition?
(b)If yes to (a) and an "injury", has the applicant's claimed right ankle condition arisen out of, or in the course of, his employment with the respondent such as to give rise to an entitlement to compensation pursuant to s 14 of the SRC Act?
(c)Alternatively, if yes to (a) and a "disease", has the applicant's claimed right ankle condition been significantly contributed to by his employment with the respondent such as to give rise to an entitlement to compensation pursuant to s 14 of the SRC Act?
The parties have, in effect, identified substantially the same issues, with the applicant also identifying the issues of whether he is incapacitated by the injury/disease and whether he is entitled to compensation under ss 16 and 19 of the SRC Act. While the applicant raised these additional issues, as far as I am aware, the applicant has not made any claim for payment of treatment expenses[30] or weekly payments.[31] No such claim was referred to in the hearing and neither party raised liability under ss 16 or 19 in their closing submissions. I do note, however, that in the determination of 3 March 2020,[32] the respondent made a determination that it was not liable to pay compensation in accordance with ss 14, 16 and 19 of the SRC Act. The determination was, in effect, a determination that the respondent had no liability under s 14 of the SRC Act. Such a determination, by necessity, also determines that the respondent has no liability under, amongst other provisions, ss 16 and 19: Lees v Comcare.[33] Accordingly, while the determination of 3 March 2020 did reject liability under ss 16 and 19 as well, that is simply a product of the determination that there was no liability under s 14 of the SRC Act.
[30] SRC Act s 16.
[31] SRC Act s 19.
[32] R1, T17.
[33] [1999] FCA 753 at [27] and [34].
It will only be necessary to consider whether the applicant has established entitlement to compensation under ss 16 and/or 19 of the SRC Act if it is found that the respondent is liable under s 14 of the SRC Act[34] and the applicant has made a claim for compensation under those sections (see s 54 of SRC Act).
[34] Lees v Comcare at [34].
Did the applicant roll his ankle at work on 29 October 2019?
The basis of the applicant’s claim as stated in the applicant’s SFIC is set out in [3] above. In opening, the applicant’s counsel also raised two alternative legal bases for the claim, the first being an “injury simpliciter” occurring on 29 October 2019 and the second being a disease that has been significantly contributed to by the applicant rolling his ankle on 29 October 2019.[35] The basis of each of the applicant’s alternative claims relies on the applicant having rolled his ankle at work on 29 October 2019.
[35] transcript at 5.
The respondent’s primary position is that the incident on 29 October 2019 did not occur. The respondent’s denial of any such event on 29 October 2019 was not clear from the respondent’s SFIC. Paragraphs 6 and 7 of the respondent’s SFIC (under the heading “contentions of the Respondent”) were as follows:
6. The Respondent therefore contends that the available factual evidence fails to establish the occurrence of the alleged workplace incident in the manner described by the Applicant, or that any significant workplace incident occurred.
7. The Respondent likewise contends that the demonstrated inconsistencies are such that the Applicant's evidence ought to be treated with caution.
The above statements that the evidence was insufficient to establish that an incident occurred “in the manner described”, and a statement that “evidence ought to be treated with caution” are far from unequivocal denials of an incident occurring at work on 29 October 2019. The respondent’s position, however, was clarified by counsel in opening. He stated the respondent’s position to be:
First and foremost, we would put in issue as to whether or not the inversion injury - or the rolling of the ankle - did occur, when you look at contemporaneous recording and also some general issues regarding the applicant's credit and reliability.[36]
[36] Transcript at 6.
The respondent’s closing submissions made the following argument:[37]
[37] respondent's closing submissions paras 19–21.
(a)The account given by the applicant as to the incident is a simple one. The contemporaneous records do not reflect the applicant’s account.
(b)Although the applicant left site the day following the incident, there was still sufficient opportunity for the applicant to report the incident.
(c)The applicant’s treating doctor, Dr Ong, saw the applicant on 2 November 2019. His clinical note of that date[38] recorded gradual onset of right ankle discomfort five days before while the applicant was on site. Dr Ong agreed that had the applicant mentioned that he had rolled his ankle on site he would have recorded that in his note.[39]
(d)It defies logic that had such an event occurred the applicant would not have mentioned it to his treating doctor.
(e)On 7 November 2019 the applicant reported to the site safety officer that he had a sore ankle. The site safety officer recorded that the applicant had told him that he felt the soreness on the last day of his last swing, that he had received treatment for it while in Perth and that it did not affect his ability to work.[40]
(f)The applicant saw Dr Ong again on 23 November 2019 and again there is no mention of a workplace incident.[41]
(g)The ultrasound and x-ray ordered by Dr Ong reveal a number of problems in the applicant’s right ankle.[42]
(h)It was not until 26th November 2019, after having found out about the state of his ankle, that the applicant alleges that there had been a “rolled the right ankle on a small rock” incident.[43]
(i)On the 21 January 2020, the applicant was notified that his position was to be made redundant.[44]
(j)Dr Ong’s clinical note dated 22 January 2020[45] records (without alteration) “being put off work current position. upset with this. going through lawyer.”
(k)On 24 January 2020 the applicant submitted a workers’ compensation claim through his lawyers which described the “occurrence” as “walking from truck to crib room” and “loose gravel on path”.[46] No reference is made to his rolling his ankle.
[38] Citing R2, 36.
[39] Citing transcript at 84.
[40] R1, T13.
[41] R2, 36.
[42] Report dated 25 November 2019: R2/37.
[43] Dr Ong referral letter dated 26 November 2019: R2/39.
[44] R1, T7.
[45] R2, 33.
[46] R1, T9/43.
The applicant in his written closing submissions submitted that, on the balance of probabilities, the claimed incident did occur,[47] noting that the applicant reported the injury on the first day of his return to site on 7 November 2019. The applicant also submitted that his pathology is consistent with him having twisted his ankle and with the medical evidence, in particular that of Professor Hardisty.
[47] applicant's closing submissions para S5.
In response to the respondent’s observation that Dr Ong’s initial clinical notes of 2 and 23 November 2019[48] did not mention an ankle rolling incident on site on 29 October 2019 but that his referral letter of 26 November 2019 did,[49] the applicant referred to the evidence given by Dr Ong given at the hearing which was:
But if I’ve included in the referral what would have happened is that whilst we were doing the referral this particular detail came out, and so I’ve included it in the referral. Sometimes, again, there are details that you might include in a referral which may not be included in the progress notes just to constrain time [sic].[50]
[48] R2, 36.
[49] R2, 39.
[50] transcript at 75.
The applicant also points to the fact that in other correspondence produced by Dr Ong after 26 November 2019, he does not necessarily refer to an incident involving the applicant rolling his ankle on 29 October 2019.[51] That, according to the applicant, cannot be taken as indicating that such an incident did not occur. The respondent also referred to Dr Ong’s reference in a note of a conversation that he had with Dr Madeline Jolly, orthopaedic registrar, on 13 January 2020[52] to there not being a trauma to the applicant’s ankle. Dr Ong was cross-examined on this note[53] and under re-examination explained that:
… we would have discussed the content of the referral and in the content of the referral, whilst it may refer to the occurrence of tripping on a rock, it’s not major trauma as in someone being hit by a car or someone falling off a – from a height. It was of a smaller nature and therefore whilst it’s trauma, it falls into not acute trauma.[54]
[51] e.g. Dr Ong’s referral letter dated 11 December 2019: R2/43.
[52] R2, 34.
[53] transcript at 81.
[54] transcript at 85.

The applicant also referred to the evidence of Joanne Cunard. She provided a statement dated June 2021[55] and gave evidence at the hearing. Her evidence was that, while the site was usually very clean, the sloping gravel road leading from the truck parking area to the crib room always had loose gravel which made it slippery to walk down.[56] She gave similar evidence at the hearing[57] and was cross-examined on the size of the gravel. Her evidence in cross-examination was that:
… it’s just gravel stones. They’re all different sizes and - yes, they’re all different sizes and shapes. They’re just gravel - crushed rock gravel.[58]
[55] A2, 12–13.
[56] A2, 12 para 12.
[57] transcript at 55.
[58] transcript at 56.
Another former work colleague of the applicant, Kyle Eagar, also provided a statement[59] and gave evidence at the hearing. His evidence was to the effect that he had noticed the applicant limping and that he was “pretty sure that [the applicant] told [him] that he had rolled his foot or his ankle on a rock and this is how he was hurt.”[60] His evidence at the hearing was that that the path “was pretty much just gravel, loose stones, lot of rocks” and that it was “quite uneven in places”.[61]
[59] A2, 14.
[60] A2, 14 para 5.
[61] transcript at 58.
The applicant’s evidence in relation to the incident on 29 October 2019, as set out in his statement of 27 April 2021,[62] was that on 29 October 2019 he “stepped on a rock and rolled [his] right ankle which caused [him] to stumble, but not fall over”.[63] His evidence was that although the ankle swelled up, the pain wasn’t too bad, and he thought it was just a mild sprain. He continued with his shift and did not report it at that time. He said that he returned to Perth the next day, his ankle continued to swell, he had some treatment on it and returned to site on his next swing starting 7 November 2019. The applicant says that it was on that day that the site safety officer, Leon Demarte, noticed him limping, asked him what had happened and when the applicant told him what had happened, Mr Demarte directed him to report the incident, which he did.
[62] A1, 74.
[63] A1, 74 para 1.
The applicant’s evidence at the hearing was to the same effect. The applicant was cross-examined at some length about his failure to report the claimed incident on 29 October 2019 and his apparent failure to advise Dr Ong when he saw him on 2 and 23 November 2019 that he had rolled his ankle on 29 October 2019. It was also put to the applicant that there is a difference between the claim that he hurt his ankle “as a result of walking on loose gravel” and a claim that he “turn[ed] your ankle on a rock”.[64] His answer was that “… all I knew is that it was – there was a lot of loose rocks on there and I rolled my ankle on a rock”.[65]
[64] transcript at 44.
[65] transcript at 45.
The respondent has sought to give significance to the apparent inconsistency in the applicant’s story: did he slip on loose gravel or did he roll his ankle on a rock? I do not consider there to be a material difference or any inconsistency in the applicant’s account of the incident on 29 October 2019. It is quite understandable that the applicant cannot describe the precise mechanics of the occurrence which he says resulted in him rolling his ankle. Normal human experience tells us that generally one slips, stumbles or trips (however, one describes it) because one is not totally and exclusively concentrating on the mechanics of walking while taking into account the potential risks of the environment. If one were, presumably, one would not slip, stumble or trip in the first place. It is therefore not surprising that the applicant cannot now describe the precise mechanics of the events (slipping on loose gravel or standing on a rock in a gravel path) which caused him to roll his ankle. I do not consider his account to be inconsistent or fabricated as suggested by the respondent. I found the applicant to be a truthful and frank witness.
I also do not accept the respondent’s submission that the apparent failure of the applicant to tell Dr Ong on 2 and 23 November 2019 that he rolled his ankle on 29 October 2019 indicates that he did not roll his ankle on site as claimed. The proposition put by the respondent’s counsel to the applicant in cross-examination was that the earliest contemporaneous record of the applicant saying that he had rolled his ankle on 29 October 2019 was Dr Ong’s referral letter of 26 November 2019.[66] Firstly, Dr Ong did not accept the proposition that because there was no refence to the applicant having rolled his ankle on site in his clinical notes of 2 and 23 November 2019, the applicant did not tell him that that is what happened (see [35] above). Secondly, the applicant’s evidence was that when he returned to site on 7 November 2019, he advised Leon Demarte that he had suffered a workplace incident on the last day of his previous swing and that Mr Demarte had told him that he had to report the incident. Mr Demarte was not called by the respondent and did not provide a statement. There was, however, an email sent by Mr Demarte on 12 February 2020[67] which confirmed that at 7:00am on 7 November 2019 he had a discussion with the applicant about the applicant having a sore ankle on the last day of the previous swing, but that the applicant had not reported it. Mr Demarte’s email stated that he advised the applicant that (without alteration) “he must report everything and its unacceptable not to report even the smallest thing. then if it eventuates its captured.”
[66] transcript at 30.
[67] R1, T13.
The applicant was cross-examined about his conversation with Mr Demarte on 7 November 2019. It was put to the applicant that he had not advised Mr Demarte that he had rolled his ankle on 29 October 2019. The applicant’s answer was that he was not sure.[68] As noted above, the respondent chose not call Mr Demarte so we do not know what he would have said about what the applicant advised him on 7 November 2019. However, from the content and context of Mr Demarte’s email of 12 February 2020, it is not unreasonable to infer that the reason that Mr Demarte was so strong in his direction that the applicant had to report “even the smallest thing”, that the “thing” of which the applicant had advised Mr Demarte was an incident that could give rise to a compensation claim, namely, the incident on 29 October 2019.
[68] transcript at 26.
I accept that, on the balance of probabilities, the applicant did roll his ankle at site as he claims on 29 October 2019. Accordingly, the issues for determination are those identified in [26] and [27] above.
Does the applicant suffer from a right ankle condition?
The respondent, having identified the above as an issue (see [27] above), largely answers the question at para 1 of the respondent’s SFIC under the heading “Contentions of the Respondent” where it “… accepts that the available medical evidence supports a finding that the Applicant suffers from significant pathology relevant to his right ankle”. That concession is properly made by the respondent and is obviously not contested by the applicant.[69] I find that the applicant does suffer from a right ankle condition.
[69] applicant's closing submissions para 1.
Is the applicant’s ankle condition the result of an injury?
As noted above, the applicant runs three alternative arguments to establish that he suffered an injury as that term is defined in the SRC Act (see [21] above). Rather than considering each of those three alternative bases for the applicant having suffered an injury in isolation, the better approach is to consider the whole of the evidence, factual and medical, and to then to reach a conclusion on whether the applicant has established an injury under any one of the alternative bases.
The applicant’s medical history
The applicant’s relevant medical history starts in 1984. In his report dated 9 November 2020,[70] Professor Hardisty provided the following summary:
In 1984 he T-boned a car that pulled out on him. He had internal fixation to the right at Middlemore Hospital in Auckland, with two screws on the medial side. He said he recovered fairly quickly and was back at work within a month. He had I understand no problems with his right ankle but in the last year or two before removal of the screws in 2016 he felt increasing pain, largely on the medial side and the arch of his foot. He consulted Dr Boris Brankov, Orthopaedic Surgeon who advised the removal of screws may help. He was very pleased that following the operation which he believes was around April 2016, his symptoms improved. He was able to do a work medical in that year before he started working for Cleanaway. He said that they put him through a treadmill, was able to run and squat and was cleared for work.
Indeed, he states he was able to do all of his duties and never had to limp at work, or experience pain or took painkillers in the period from the removal of the screws up until his injury on 29 October. He is now taking Panadeine Forte occasionally at night-time when the pain is severe along with fairly regular Panadol and ibuprofen anti-inflammatory. He says it does help. The injection into the ankle joint which he has had twice since December 2019 has helped each time.
His gait has worsened, he is restricted to crutches and maintains he cannot work. He states he just wants “to get back to work”.[71]
[70] A1, 1–11.
[71] A1, 4.
The above history provided to Professor Hardisty is consistent with the applicant’s statement dated 27 April 2021[72] and with the medical history recounted in Professor Steadman’s report dated 28 August 2020.[73]
The parties’ submissions
[72] A1, 74.
[73] R2, 136.
The respondent
The respondent provided its closing submissions on 15 October 2021. I will not go into the respondent’s submissions on whether the incident on 29 October 2019 occurred as they are covered above and I have found that, on the balance of probabilities, the incident did occur as claimed by the applicant.
Insofar as the respondent’s closing submissions cover the other relevant considerations, they were to the following effect:
Section 7(7) of SRC Act
There is no dispute that prior to 29 October 2019, the applicant was suffering from a pre-existing degenerative arthritic condition of his right ankle.[74]
[74] respondent's closing submissions para 3.
The existence of this pre-existing degenerative condition is the central thesis of the opinions offered by Professor Steadman on behalf of the respondent. Professor Hardisty conceded the existence of this pre-existing condition in cross-examination when he noted the applicant had a “pre-existing condition that has been exacerbated”[75] and in further evidence which reflected the potential severity of that underlying condition: “this man’s ankle was always going to become at some time symptomatic.”[76]
[75] transcript at 110.
[76] transcript at 117.
The elements of a successful argument under s 7(7) of the SRC Act are:
(a)The claim is for a disease or an aggravation of a disease.
(b)The representation must involve “purposes” connected with employment.
(c)The representation must be both wilful and false.
(d)The representation must be to the effect that he has not previously suffered from that disease.
The applicant’s non-disclosure of the full extent of this pre-existing condition as it manifested itself in the period from September 2014 until March 2016 in pre-employment medical examination declarations of 5 February 2018[77] and 18 October 2018[78] fall within the operation of s 7(7) of the SRC Act.
[77] A1, 77.
[78] R2, 160.
The examinations of 5 February 2018 and 18 October 2018 were work-related medical examinations and were therefore conducted for “purposes” connected with his employment.
The medical records and the applicant’s evidence at the hearing disclose that the applicant was significantly disabled by right ankle pain in the period from September 2014 to 2016.
The respondent identifies answers provided by the applicant in the questionnaires/medical declarations of 5 February 2018 and 18 October 2018 and submits that from the answers provided by the applicant, “[i]t is self-evident that the answers in no way disclose these events”, in particular, what occurred from September 2014 to March 2016.[79]
[79] respondent's closing submissions para 12.
The respondent identified answers given by the applicant in cross-examination by which the applicant conceded that the answers were not correct.
The respondent also referred to the workers’ compensation claim form submitted by the applicant[80] in which the applicant answered no to the question “Have you ever had a similar symptom, injury or illness, work-related or otherwise?” and failed to respond to the question “Have you ever received medical treatment for a similar injury or illness?”[81]
[80] R1, T15.
[81] T1, T15/61.
The respondent points to the applicant in cross-examination accepting that he deliberately gave false answers.[82]
[82] Citing transcript at 51.
Medical evidence
The respondent submits that the report of Professor Hardisty should be questioned because it relies on self-reporting by the applicant, who is not a credible witness.[83] Professor Steadman’s medical opinions should be preferred to those of Professor Hardisty.
[83] respondent's closing submissions para 4(2)2.
The fact that Professor Steadman conducted a video assessment of the applicant would not detract from his opinions. Professor Steadman did fairly concede that a video assessment, whilst not optimal, did not compromise the validity of his opinions.
The conclusions reached by Professor Hardisty should be questioned because they were reliant on him accepting the applicant’s story and the applicant is an unreliable witness. Having stated in his report that the applicant rolled his ankle on a substantial rock, which was shown not to be correct, Professor Hardisty’s evidence in cross-examination that the size of the rock was not material to his diagnosis and opinion “was simply unconvincing”.[84]
[84] respondent's closing submissions para 23.
Professor Hardisty’s view was that the applicant had suffered significant injury based on four different sub-sets of injury being:
(a)Injury to the anterior talofibular ligament (ATFL).
(b)An injury to the calcaneofibular ligament (CFL).
(c)A sheering injury which caused some chondral injury or a disruption of the cartilage.
(d)An avulsion injury whereby part of the bone is ripped off by the ligament.
The last of the above injuries, the avulsion injury, is not referred to in Professor Hardisty’s reports. Professor Hardisty has placed emphasis on the ATFL ligament since the ultrasound taken on 25 November 2019 showed some thickening which raised the prospect of some healed injury to that ligament in the past.
Professor Hardisty’s above findings are not supported by the contemporaneous medical assessments. Dr Ong’s clinical notes from 2 November 2019 show that Dr Ong conducted examinations of the applicant’s ankle and noted:
(a)ongoing constant mild right ankle pain which localises to the right lateral malleolus, worse when walking; and
(b)right ankle mildly swollen, no significant redness, range of motion good, tender just above right medial malleolus.
The finding at [66(b)] above is on the inside of the ankle, that is, opposite to the location of the ATFL. Professor Steadman’s evidence was that the pain noted in [66(a)] above would not (except in exceptional circumstances) be associated with the ATFL.[85] Professor Hardisty conceded that Dr Ong’s findings were not referred to in his report notwithstanding that he had the clinical notes at the time of his report.
[85] Citing transcript at 155.
Under cross-examination Professor Hardisty offered a number of explanations as to why pain might be in a different location to the ATFL. The respondent submits that the evidence of Professor Hardisty in that regard was “unconvincing”,[86] and that he offered no explanation for the presence of the symptoms as found by Dr Ong on the other side (medial) of the ankle. Professor Hardisty did note that it was another “potential site of injury”. Professor Steadman’s opinion was that this finding would not be consistent with the sort of injury alleged by the applicant.
[86] respondent's closing submissions para 29.
Professor Hardisty was unable to explain why, other than the thickening of the ATFL, the other nominated injury sites identified in [64] above did not show up on x-ray and ultrasound conducted on 25 November 2019. Professor Hardisty’s evidence under cross-examination on this point was evasive,[87] however, he did concede that the investigations did not reveal any injury to the CFL, or the presence of any evulsion injury.
[87] Citing transcript at 112.
Professor Steadman’s evidence was that the 25 November 2019 ultrasound did not reveal any injury to the CFL, the alleged chondral injury or the evulsion injury. His evidence was that for there to be an evulsion injury there would have to be significantly more force to the ankle than was alleged by the applicant.
Professor Steadman’s evidence was also to the effect that that applicant’s “plantar vagus” foot structure makes the prospect of an inversion injury less likely.
The applicant
Section 7(7) of SRC Act
The respondent belatedly raising an argument under s 7(7) of the SRC Act is not fair. The applicant was denied the opportunity to call relevant evidence (e.g. the applicant’s line manager who responsible for the workplace at the time of the incident on 19 October 2019 named in the workers’ compensation claim form).[88] The respondent has not discharged the required burden of proof, citing the Briginshaw[89] standard as being applicable.[90]
[88] R1, 71.
[89] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
[90] Citing Davis and Australian Postal Corporation [2021] AATA 30 at [131]–[133].
The applicant disclosed in his pre-employment medical examination form (for another employer) that, at that time, he had no joint problems or injuries but that he had had an x-ray for joint pain[91] before he had had pins taken out of the ankle in 2015.[92] The applicant advised the doctor undertaking the pre-employment examination that he had had surgery for the ankle fracture in the 1980s and pins removed in 2015.
[91] A1, 81.
[92] A1, 82.
The representations relied on by the respondent to argue operation of s 7(7) of the SRC Act were not made in respect of the applicant’s employment with the respondent. At the time of the first medical, 5 February 2018[93] the applicant was not employed by the respondent and the examination was in respect of possible employment with another company. At the time of the second pre-employment medical examination on 8 October 2018 he was not a current employee of the respondent.
[93] A1, 77–99.
Properly construed, the answers provided in the medical examination of 5 February 2018 were not false, let alone wilfully false. In relation to the medical examination conducted on 8 October 2018[94] the applicant advised the examining doctor that he had had a right ankle fracture which required internal fixation and that he had no issues at the time of the examination. This report also showed that the examining doctor had found the applicant’s ankles were normal and that movement was within the expected range for his age. Further, the respondent was aware as of 4 December 2019 that the applicant had had ankle surgery as it is noted in the medical notes of 5 December 2019.[95]
[94] Report dated 12 October 2018: R2/160.
[95] R1, T13.
In relation to the applicant’s cross-examination in which he conceded that the answers that he had given in the pre-employment medical questionnaires were false, the fact is that the answers provided were objectively not false. As a lay person, the applicant could not be expected to know the difference between objective facts and legal falsity, particularly when the applicant had not had the chance to prepare for cross-examination on that issue which was raised for the first time, over objection, on the second day of the hearing. Section 7(7) of the SRC Act had not been referred to in the respondent’s SFIC.

In relation to the respondent’s reliance on the workers’ compensation claim form[96] as containing wilfully false representations, firstly, the respondent could not have been misled because by the time that the claim was submitted the respondent knew of the applicant’s past ankle fracture. Secondly, objectively the answers provided were not incorrect. Thirdly the claim form was not for the purposes of his employment. Fourthly, the applicant was not employed by the respondent at the time of the claim being submitted. Fifthly, the disease must be a lateral ankle ligamentous injury to ATFL and CFL and/or TN joint and/or their sequelae, not a traumatic fracture of the medial malleolus. The applicant’s actual belief was that the 2019 lateral inversion injury was on a different side to the previous surgery, and “had nothing to do with [his] previous surgery”[97] (a contention the applicant submits is supported by Dr Ong and Professor Hardisty).
[96] R1, T15.
[97] Citing transcript at 32.
Medical evidence
Dr Ong’s clinical notes recorded the applicant as reporting pain to the lateral ankle, not the medial ankle and noted that as a new condition. The current claim relates to an inversion injury involving the lateral ligaments. The applicant’s previous injury was to the posterior tibialis on the medial side. Professor Hardisty’s evidence supported this.
The applicant likely injured his ATFL when he rolled his ankle. Dr Ong recorded tenderness in the area above the right lateral malleolus in the region of the ATFL. Professor Hardisty’s evidence was that with an inversion injury the lateral structures, including the ATFL, is usually injured. There was no evidence that the ATFL injury was pre-existing.
Professor Steadman’s evidence about the CFL being in the hindfoot is consistent with, and supportive of, a conclusion that the applicant’s evidently new CFL injury was caused by a significant inversion injury which triggered symptoms or accelerated degeneration in the hindfoot.
Professor Hardisty’s report of 9 November 2020[98] opined that a tearing or stretching injury to the synovial lining is consistent with the ankle being rolled, which causes a shear by tearing cartilage and synovium, which also explains why the symptoms extended more than six weeks. Professor Hardisty’s evidence at the hearing was that the injury to the talonavicular (TN) joint (which in September 2015 was intact) is also consistent with a rolling injury. This is also consistent with the applicant being symptom free from March 2016 to October 2019.
[98] A1, 1–11.
The most likely inference for the reportedly “florid arthropathy” in the lateral TN injury as at August 2020, was the October 2019 significant lateral inversion injury, especially given that the applicant was previously entirely asymptomatic in that region.
Professor Hardisty’s evidence at the hearing was that he would be hampered in diagnosing a grade two ATFL injury if he did not carry out a physical examination because an important part of ankle function with deformity is the tenderness and structures about the ankle. A clinical examination is exceedingly important because it can overtake or supersede radiological snapshots. Professor Steadman’s view was based on radiological reports and not a physical examination and therefore Professor Hardisty’s opinion should be preferred. Further, Professor Hardisty’s opinion should be preferred over Professor Steadman’s because Professor Hardisty specialises in treating ankle injuries while Professor Steadman is a generalist orthopaedic surgeon.
The ultrasounds done in 2014–2016 do not show any evidence of pre-existing ATFL thickening or lateral ankle pathology. Thickening can start within two weeks of an injury.
Professor Steadman’s evidence was that the fact that the applicant was wearing ankle high work boots would have prevented lateral ligament injury. Professor Hardisty, however, gave evidence that boots would not stop such an injury and he had seen “ankle sprains occur whilst wearing high boots”.[99] Further, Professor Hardisty’s evidence was that the fact that the applicant worked multiple shifts after the claimed incident did not mean that the applicant was not disabled as “people work with injuries”.[100]
[99] transcript at 105.
[100] transcript at 113.
Professor Steadman in his evidence at the hearing acknowledged that the ankle joint effusion shown on the 25 November 2019 ultrasound could have been due to the inversion injury of 29 October 2019. The ultrasound evidence is consistent with Professor Hardisty’s evidence as it showed effusion (swelling) not just in the ankle joint, but in areas near the ATFL and CFL (“subtalar joint and both anterolateral and posteromedial ankle joints”)[101] and not just in the anterior ankle joint.
[101] R2, 37.
Professor Steadman accepted that the ATFL, CFL and avulsion injuries might occur when the inversion is substantial. The applicant gave uncontroverted evidence that he rolled his ankle 90 degrees. The fact that there was not a complete rupture may be explained by the applicant wearing ankle boots.[102] By the time of the August 2020 MRI, the CFL had become relatively atrophic and the ATFL was mildly scarred.
[102] Professor Steadman’s evidence: transcript at 160.
Professor Steadman in his evidence at the hearing introduced new evidence relating to plano valgus/plantar valgas. This had not been mentioned in any of his reports nor had it been the subject of any cross-examination of Professor Hardisty. In any event, little weight can be given to this possible condition as he did not detect it in his virtual examination of the applicant.
The applicant’s evidence that he rolled his ankle 90 degrees was not tested in cross-examination. Professor Steadman, in effect, took the view that because the spectrum of injury claimed to have occurred was minor, it followed that the problems that the applicant now has with his ankle must have been pre-existing, notwithstanding that the previous injury was to the other side of the applicant’s ankle. Professor Steadman’s opinion was based on an irrational view that the history given by the applicant that he was symptom free until 2016 was not correct. Professor Steadman did concede in cross-examination that the applicant was symptom-free from the time of the removal of the pins from his ankle in 2015 up to October 2019. When taken to the pre-employment medical examination reports, Professor Steadman conceded that he had been “unkind” to doubt the applicant’s claim that he had been symptom-free prior to the inversion injury.
In his reports, Professor Steadman had failed to take into account the pre-employment examination report of October 2018 which showed that the range of motion of the applicant’s ankle was normal for a person of the applicant’s age. Professor Steadman agreed that this clinical history was important to consider in expressing his medical opinion on causation and that he had failed to take it into account in his report. Further, Professor Steadman did not make a comparison between the 2014 and the 2015 x-rays to determine whether the pre-existing degeneration had progressed significantly. Those x-rays showed that in the interim period there had been significant change.
The applicant summarised and addresses[103] the three probable scenarios in Dr Steadman’s report of 21 January 2021[104] as follows:
(a)Professor Steadman ruled out the first scenario (ankle asymptomatic with a minor injury causing a major hindfoot derangement) because he disbelieved the applicant’s history of being symptom-free prior to 29 October 2019, disregarded the results of two pre-employment medical examinations conducted in 2018, dismissed the radiological findings of post-traumatic changes and used part of a blood test result to diagnose autoinflammatory disorder. He conceded at the hearing that the last of those was merely a suspicion and not a diagnosis.
(b)Professor Steadman’s second scenario (pre-existing long-term pathology with subsequent onset of autoinflammatory chronic infection) is contradicted by the applicant’s history of being symptom free and relies on the wrong diagnosis of an autoinflammatory infection and ignores the lack of any change in the underlying pathology shown by the 2014 and 2015 x-rays.
(c)The third scenario, chronic sepsis, is not supported by any evidence and is a mere suspicion of a rheumatological disorder.
Consideration
[103] applicant's closing submissions para 27.
[104] R2, 147–51.
The medical evidence
As is often the case, the outcome of this application will be determined by which of the competing expert medical opinions is preferred. The applicant primarily relies on the reports and opinions expressed by Professor Hardisty and the respondent primarily relies on the views of Professor Steadman. Both doctors gave evidence at the hearing.
Professor Hardisty
Professor Hardisty provided two reports.
Report dated 9 November 2020
Professor Hardisty examined the applicant on 9 November 2020.[105] Professor Hardisty identified that he had, amongst other records, the report of Professor Steadman dated 28 August 2020 with MRI, Dr Andrej Nikoloski’s report dated 30 April 2020 and records from Fremantle Hospital, Royal Perth Hospital and Queens Park Medical Centre.[106]
[105] A1, 1.
[106] A1, 1–2.
The prior injury history provided by the applicant as recounted in Professor Hardisty’s report is set out at [47] above. Relevantly, the report otherwise stated:
Injuries Sustained
1.Inversion injury of right ankle – exacerbation of ankle degenerative changes.
Treatment
Surgical
1.    Approximately April 1984 open reduction and internal fixation medial malleolus fracture.
2.    Approximately April 2016 removal of two medial malleolus screws.
Other Treatments
Following the removal of the screws he did not require any treatment.
…
Current Symptoms
1.   Pain – he gets pain in his right ankle, particularly when he first gets up in the morning.
He feels that laterally and sometimes medially and in the arch of his foot.
2.   He has stiffness in his right ankle, and it is hard for him to walk because of the stiffness and pain, and he uses crutches.
3.   He feels his right ankle is unstable. He has not had any specific giving way of his ankle. It has not locked up.
4.   Occasional swelling in his right ankle.
Current Mobility
He is using crutches when he goes out. He cannot walk any great distance due to the pain. He is unable to play sport or go to the gym. Prior to the accident he was doing up to 2km on the treadmill either in the onsite gym or in his private gym. He is no longer doing any gym work. He maintains he used to go fishing down at Fremantle, walking on the rocks and he is unable to do this.
Professor Hardisty set out the results of his clinical assessment of the applicant and then reviewed x-rays taken on 26 October 2014 and 19 September 2015. In relation to the 2014 x-ray, Professor Hardisty relevantly observed:
Two screws transfixing the medial malleolus with no surrounding lucency or periosteal reaction. No joint effusion is demonstrated. There is mild degenerative change in marginal osteophytes and slight narrowing of the lateral joint space…
and in relation to the 2015 x-ray relevantly observed:
As previously noted, two screws transfixing the medial malleolus with no interval change with regards to the hardware. Alignment of the right ankle joint is anatomical. There is soft tissue swelling noted over the medial and lateral malleolus more so over the medial malleolus.
…
There is mild background degenerative change demonstrated at the ankle joint.
…
There is no acute fracture or dislocation, no significant interval change when compared to previous imaging.
In respect of report relating to an injection into the applicant’s right ankle in January 2020, and an ultrasound conducted at that time, Professor Hardisty reported:
Ultrasound Right Ankle
1.Evidence of previous lateral ankle injury with thickening of the ATFL.
2.Marked tibialis posterior tendinopathy and tenosynovitis.
3.Ankle subtalar joint effusion with some synovitis and several intraarticular bodies.
4.Evidence of previous Achilles non-insertional tendinosis.
(Original emphasis.)
and in relation to an MRI of 26 August 2020:
Comment: Florid severe inflammatory arthropathy at the talonavicular joint extending to involve the subtalar joint. Possibilities include some form of auto-immune inflammatory arthropathy. In the setting of previous surgery septic arthritis could not be excluded on the imaging appearances.
In response to specific questions asked by the applicant’s lawyers, Professor Hardisty responded as follows:
1.What in your opinion likely occurred anatomically or physiologically when the ankle inverted on 29 October 2019 that resulted in symptoms and disability.
When the right ankle inverted on 29 October 2019, it is my opinion that he sustained:
1.    A lateral collateral ligament injury, affecting the anterior talofibular ligament and the calcaneofibular ligament of the ankle joint.
2.    Injury to the right ankle joint with a synovial injury and the subsequent synovitis.
3.    Potential injury to the talonavicular joint.
2.Please explain the structure and elements that were compromised or affected through the ankle inversion, and why in your opinion, it fits within the s5A definition of injury (other than a disease), and/or an aggravation of an injury (other than a disease).
It is my opinion that he suffered an ankle sprain, that he recovered from but there was pre-existing mild to moderate degeneration of his right ankle joint and the injury exacerbated and aggravated the pre-existing changes in his ankle.
On the MRI there is a significant arthropathy of the talonavicular joint and this confuses the clinical picture somewhat. In my opinion, however, this is secondary to the changes in his ankle joint. This is backed up by the fact that he got very good relief from injections into his right ankle joint. This would confirm more that
this was a synovitis exacerbated by his injury and exacerbated a pre-existing mild to moderate degeneration of his right ankle.
3.If an injury (other than disease) occurred, whether that resulted in a deterioration of his ankle condition with weight bearing activities after the inversion, and the need for treatment and time off work.
The injury in my opinion, resulted in deterioration of his right ankle condition and was responsible for the need for his physiotherapy and analgesics. It is my opinion that following this injury to his right ankle he would require a period of six weeks off work in which the culmination of an injection to his ankle would be the treatment along with physiotherapy to improve his range of motion. One would expect from his pre-injury x-rays that this would settle his ankle and he would be able to return to his normal duties, given that these changes were evident on x-ray prior to his injury. He also stated in a medical about his prior injury and there is a report from 12 October 2018, that wrote “nil issues”.
…
4.To the extent that the ankle inversion can be said to be an aggravation of a pre-existing ailment, whether the aggravation was contributed to by a significant degree by Mr Kaukau’s employment with Cleanaway.
The right ankle inversion injury was an aggravation of a pre-existing ailment and this aggravation was contributed to by a significant degree by Mr Kaukau’s employment with Cleanaway when he had an inversion sprain. This aggravated a previously asymptomatic ankle degeneration.
…
6.Assuming that the ankle joint was degenerate prior to 29 October 2019, explain why Mr Kaukau did not experience pain and was able to functionally undertake full unrestricted work duties.
[the applicant’s] right ankle was degenerate prior to 29 October 2019, but I would still place this as a mild to moderate degeneration and as such wearing work boots and the nature of his work, it was unlikely that he would experience pain. However, the loose body and changes in his right ankle are well tolerated for a long period of time in most clinical circumstances.
7.    Assuming that the ankle joint was degenerate prior to 29 October 2019, what occurred on that date which resulted in symptoms that have since perpetuated to the point of no return?
The incident on 29 October 2019, has caused along with a lateral collateral ligament injury an injury to the ankle joint itself in the form of a shearing [sic] injury which may have damaged some of the chondral surfaces. No MRI was done so it is difficult to ascertain this. However along with the inversion sprain there is often an injury to the synovium which results in ongoing aching and swelling. This was completely resolved with an injection into the ankle.
(Original emphasis.)
Report dated 18 February 2021
Professor Hardisty recorded that he had read the HWL Ebsworth letter to Professor Steadman dated 2 December 2020 and the supplementary report provided by Professor Steadman dated 21 January 2021.
In relation to Professor Steadman’s supplementary report, Professor Hardisty stated:
… I would agree with the last paragraph in Professor Steadman’s report that “all doctors appear to acknowledge that he remains adamant that he was symptom free after the operation in 2015.”
It is evident:
1. the fact that he was able to continue running on a treadmill and exercising prior to his accident both on site and off site.
2. his medicals indicate there was no problem with his right ankle and indeed he was able to do all of the activities, with respect to his right ankle, in those examinations for his pre-medical.
(Without alteration.)
Under the heading “New Information”, Professor Hardisty made the following observations:
I am in agreement that he has a longstanding condition of his right ankle and that he suffers from quite significant changes around his ankle. Professor Steadman reports that I did not provide a clear opinion as to why I think the hindfoot looks as bad as it does radiologically in the MRI. In general, my examination did not reflect the changes on the MRI. There was only mild swelling and discomfort around the talonavicular joint where there are such florid changes seen on the MRI. It is important that one does not treat radiological findings but the clinical state. It would appear that Professor Steadman has based his opinion on the MRI changes rather than the clinical examination. It is not unusual in injuries to see quite florid MRI changes that are not reflected, nor explained by the clinical examination.
…
This patient has never seen a Rheumatologist or been referred for investigation of a potential autoinflammatory disorder. It is my opinion there is no evidence of an autoinflammatory disorder despite a raise in the CRP test from 26 November 2019 which settled back to normal without any treatment. The CRP goes up again in February the following year and then falls. This gentleman has, from the clinical notes of Fremantle Hospital, an IgA nephropathy. He has also had chronic ear infections. These could account for the raised CRP. You would expect if this was an autoimmune inflammatory condition, and without any treatment, that his CRP would not fall. He has not had a test for any rheumatological markers to confirm this. This is required before a diagnosis of auto inflammatory disease is made.
The initial ultrasound from 25 November 2019 showed thickening of the ATFL ligament. This can occur acutely with an injury in that same space of time. It is seen in most ultrasounds following an ATFL injury.
…
Professor Steadman relates that the ultrasound from November shows thickening. It is the most likely conclusion to make that it is an ATFL injury and represents an acute injury change given he has had no injuries since his fracture in 2011. There is no previous ultrasound of the lateral side than the ultrasound, only an ultrasound from 2 October 2014 which was done on the medial side only. The conclusion that this is a chronic and not an acute injury change without reference to previous ultrasound is unfounded.
An ultrasound some three months later showing the same findings is not unusual given his injury from October 2019.[107]
[107] A1, 17.

In relation to Professor Steadman’s opinion that the condition shown by the MRI is a result of an autoinflammatory disorder, Professor Hardisty said:
… This is again unfounded as there has been no inflammatory marker screen to confirm an inflammatory condition. A CRP and ESR cannot be used to diagnose an autoinflammatory condition alone. I would mention that he suffers from a chronic IgA nephropathy.[108]
[108] A1, 18.
In that report, Professor Hardisty also made the following observations in response to opinions expressed by Professor Steadman in his supplementary report dated 21 January 2021:
(a)He agreed with Professor Steadman that there is evidence of a pre-existing pathology in the right ankle, but in his opinion, it is not substantial as it is described as mild to moderate by the radiologist in x-rays prior to his injury, and in x-rays post injury it is also stated as mild to moderate.
(b)In relation to Professor Steadman’s view that the ankle high boots worn by the applicant would have prevented the injury, his opinion is that the lateral ligament was injured but the boots on the day prevented the pain that he experienced the next day due to the splinting effect and the control of the swelling from the boots.
(c)In relation to Professor Steadman’s reliance on ultrasounds of November 2019 to determine that there is no evidence of acuity in the lateral ligament structures (as opined by Professor Steadman in answer (d) on page 5 of 8 of his supplementary report), Professor Hardisty observed that:
… Professor Steadman refers to the MRI rather than the clinical examination of the patient. This may have been confounded by the fact that he did not carry out the examination in person. In addition, the abnormal blood tests were not sustained as one would expect if he had an inflammatory condition without treatment…
…
… Professor Steadman relies on the ultrasound findings of 2019 to determine there was no acute injury to the lateral ligament structures. Given there has been no history of injury since 2016, how does he account for the natural ligament thickening which is duly considered to be consistent with an ATFL injury? It is the most likely conclusion, without the evidence of sustaining an acute injury prior to the accident, that the ultrasound reflects the 2019 injury.
(d)In relation to Professor Steadman’s stated reservation of attaching the significance of the thickening of the ATFL to an acute ankle injury rather than as a consequence of a chronic clinical scenario, Professor Hardisty pointed out that the applicant:
… had two injections into his ankle joints subsequent to his injury which relieved all his symptoms, albeit for a short period of time. It would not have relieved all his symptoms if he had significant pathology in the subtalar or talonavicular joint. Again, the MRI reflects changes in the subtalar or talonavicular joints but clinically he improved with the injection. Again, caution has to be exercised in over-interpreting the MRI changes in those joints.
Professor Steadman
Professor Steadman provided two reports.
Report dated 28 August 2020
Professor Steadman conducted his assessment via videoconference.[109] The applicant was located in Perth and Professor Steadman was in Brisbane. Professor Steadman made the following statement at the beginning of his report:
I am satisfied that I have been able to assess Mr Kaukau to an adequate standard to which my clinical opinion can be relied upon. In terms of assessment validity, I confirm my opinion is valid and dependable and was not limited as a result of conducting this assessment via video.
The physical examination was satisfactorily conducted with the assistance of a suitably qualified and experienced allied health professional under the supervision and direction of myself and was appropriate for my reliance.[110]
[109] R2, 137.
[110] R2, 137.
More specifically as to how he conducted the examination, Professor Steadman advised:
Through the exercise physiologist Breanna he was examined supervised by me with a satisfactory internet connection and visualisation.[111]
[111] R2, 139.
The medical and work histories recorded by Professor Steadman were materially the same as those recorded in Professor Hardisty’s first report. Professor Steadman noted that:
The evidence since 2014, based upon the medical records, would indicate ongoing problems with a combination of ankle arthritis, loose bodies and tibialis posterior tendinitis due to screws. All doctors appear to acknowledge that he remains adamant that he was symptom free after the operation in 2015. I note the earliest record in Western Australia is in 2008, when it was recorded that he had ankle pain.
In response to specific questions posed by the respondent’s lawyers, Professor Steadman advised as follows:
2. What is your diagnosis in terms of the current right ankle condition, if any, suffered by Mr Kaukau? Please make reference to any relevant radiological investigations.
He suffers from degenerative changes in the right ankle and right hindfoot. This includes the ankle joint, talonavicular joint and subtalar joint with associated severe inflammatory synovitis.[112]
(Original emphasis.)
[112] R2, 142.
In response to the question of whether the applicant’s ankle condition developed as a consequence of the claimed work incident on 29 October 2019, pre-existing or underlying conditions or non-work-related factors, Professor Steadman advised:
He suffers from severe degenerative consequences of a pre-existing condition of the right ankle and hindfoot. In my opinion, based upon the medical history, it is unlikely that the event that he reports at Barrow Island has substantially altered the course of his disease to qualify as a significant event, given the medical records that suggest otherwise. His inflammation may be coming from a combination of right hindfoot factors affecting both the ankle and the hind and midfoot joints. I note from mechanistic point of view that he was in his work boots at the time with the boots being above ankle height and containing the whole hindfoot which in my opinion would give the foot protection against a significant injuries. The substantial pre-existing history here is unavoidable as a consideration.
At this point in time, I do however accept the severity of his symptoms as they are consistent with the findings on the MRI with severe inflammatory synovitis affecting the ankle and hindfoot joints with severe secondary degenerative change.[113]
[113] R2, 143.
Professor Steadman was also asked whether the described mechanism of injury was consistent with the development of the applicant’s ankle condition, to which he responded:
In my opinion the described mechanism is not the cause of his current right ankle and right hindfoot condition identified on the MRI.[114]
[114] R2, 143.
In response to the invitation to provide any other comments, Professor Steadman stated:
The evidence regarding the recent deterioration of the condition in the last decade appears to be well documented in the medical record. The pre-employment medical notes an ankle fracture in 1980 with screws removed in 2015. The MRI today notes advanced degeneration of the subtalar and talonavicular joint with multiple loose bodies of the ankle joint and severe synovitis through the joints of the hindfoot.
Supplementary Report dated 21 January 2021
Professor Steadman was provided with and asked to comment on Professor Hardisty’s report dated 9 November 2020. In his supplementary report dated 21 January 2021, Professor Steadman responded as follows:
The new information does little to convince me clinically that I should change my opinion and there are a number of findings we agree upon.
…
The recent report of Prof Hardiste [sic] appears to be predicated upon the fact that the lateral ligaments show evidence of disruption, but he does not provide a clear opinion as to why he thinks the hindfoot looks as bad as it does radiologically on the recent MRI.
In relation to the ultrasounds upon which Professor Hardisty had commented in his report, Professor Steadman observed:
There is an ultrasound on 02.10.2014 which is just done on the medial side of the ankle and diagnoses tibialis posterior tendinitis, the same condition that is present now on the MRI.
An ultrasound of the right ankle in November 2019 near post injury shows thickening of the lateral ligament structures along with a host of other pathologies and in my opinion it would be unreasonable, based on probability, to reach the conclusion that this ATFL thickening represents an acute injury change, given the short duration from the time of injury to the ultrasound of just four weeks.
The 14.02.2020 ultrasound only confirms the same findings and adds nothing further and it is ultimately superseded by the MRI which confirms all of the radiological plain x-ray and Ultrasound pathology but indicates that it is much more widespread involving the whole hind foot and all of the hind foot joints which are swollen with severe synovitis and inflamed bones.
Professor Steadman also commented on a report of orthopaedic surgeon Dr Nikoloski, undated but referring to an examination undertaken in October 2019,[115] as follows:
The clinical report of Dr Nikoloski indicates in an undated and digitally signed letter, that he has a globally swollen foot and ankle with wasting of the right calf. That he has very limited movement in multiple directions including the toes, and that he has significant tenderness behind the medial malleolus of the ankle suggesting the tibialis posterior tendon is one of the significant findings.
[115] A1, 25.
In response to the specific questions asked by the respondent’s lawyers in light of Professor Hardisty’s report, Professor Steadman responded as follows:
(a)The diagnosis of Mr Kaukau’s right ankle condition;
In my opinion he suffers from advanced hind foot arthritis. It is my opinion, due to the findings of the x-ray and Ultrasound and subsequent MRI along with blood tests CRP and ESR, that this represents the consequence of an auto inflammatory disorder on top of a chronic arthritic ankle picture.
(b)Further to question 1(a), what is the significance of the changes identified of the radiology undertaken of the Applicant’s right ankle. In particular, please comment upon whether the changes represent acute or long-standing pathology. Please detail.
In my opinion these changes are long-standing and there is no evidence that this represents an acute condition.
(c)The cause of Mr Kaukau’s right ankle condition;
When a pre-employment application was made reportedly there was no evidence of active ankle pathology, but a past history of the surgery. All doctors now have confirmed evidence of substantial pre-existing pathology of the right ankle. As noted in my original report this includes a compensable motor vehicle accident in New Zealand along with internal fixation and ongoing ankle problems resulting in screw removals in 2015. As noted again, we are led to believe that the ankle was asymptomatic in the period leading up to this injury.
To consider the injury, it is noted that he is in ankle high support boots when the injury occurs and that it said to occur on a small pebble, in contrast to what Prof Hardisty would say is a major lateral ligament injury that has led to significant hind foot consequences. In the clinical history, we are advised that he does not initially report it, but on further advice reports of the following day when he developed some ankle pain which for the current clinical scenario to progress, it would be reasonable to anticipate that there would be significant clinical discomfort and inability to walk. Shortly after that, with ongoing difficulty, he does not return to work and subsequently loses his job due to redundancy. He has not worked again since then due to chronic right ankle pain.[116]
(Original emphasis.)
[116] R2, 150.
Professor Steadman then proffered the three “probable scenarios” addressed by the applicant’s closing submissions as set out in [91] above. The three scenarios were:[117]
·     That his ankle was asymptomatic and the minor injury has caused a major hind foot derangement, which is less probable based upon the clinical history, radiology, and associated blood tests.
·     That his ankle was progressively becoming more painful due to the pre-existing long-term pathology and was subsequently beset by the onset of an autoinflammatory chronic infective disorder based upon the radiology and the blood tests.
·     That the original minor sprain which would last about 4 to 6 weeks as reported by Prof Hardisty has subsequently been superseded by another more significant hind foot condition either due to chronic sepsis or autoinflammatory disorder with him now suffering from severe hindfoot inflammation. It would appear we disagree about causation because he considers that the arthritis has been inflamed by the event, however this does not account for the diffuseness of the MRI findings and the abnormal blood tests.[118]
[117] R1, 151.
[118] R2, 151.
Asked whether he agreed with Professor Hardisty’s opinion on the cause of the applicant’s ankle condition, Professor Steadman responded:
In my opinion, I rely upon the ultrasound findings of November 2019 to determine the opinion that there is no evidence of acuity in the lateral ligament structures which seem to be prefaced around the lead into the current chronic clinical situation. In the presence of the abnormal blood tests and the grossly abnormal MRI along with a gross swelling, I would not consider the event described to have led to the current outcome.[119]
[119] R2, 151.
In relation to the applicant’s need for treatment, Professor Steadman made the following comment:
This raises the most likely clinical scenario that his pre-existing long term pathology in his right ankle has now been beset by the onset of a progressive pantalar hind foot inflammatory chronic arthritic disorder.[120]
[120] R2, 152.
Asked to provide any other comment, Professor Steadman advised:
I have found [Professor Hardisty’s] report very guarded in regard to the possibility of a significant injury relationship between the current clinical situation and the lateral ligament ankle sprain in regard to its potential long-term consequences and sequalae at the time he assessed him. I would also disagree with the injury having the ability to aggravate the pre-existing arthritis to the extent that it would qualify as a significant event based upon the clinical history around that time after he left Barrow Island.[121]
[121] R2, 152.
There was also a brief report from orthopaedic surgeon Dr Dror Maor dated 2 April 2020.[122] At the request of the applicant’s treating doctor, Dr Maor had met the applicant via videoconference on 2 April 2020 and provided a brief advice on the possible alternative surgical interventions that were available. Dr Maor’s report does not contain any material relevant to the issues for resolution in this matter.
[122] A1, 23.
The medical evidence at the hearing
As noted above, both Professor Steadman and Professor Hardisty gave evidence at the hearing. Professor Hardisty’s evidence at the hearing was that he was a specialist orthopaedic surgeon, having qualified in that specialty in 1993 and that his specialist areas were knee, foot and ankle.[123]
[123] transcript at 87.
In evidence-in-chief, Professor Hardisty was taken through the physical examination that he conducted on the applicant in November 2020 and the results of that examination as recorded in his report dated 9 November 2020. Professor Hardisty described his having palpated (pressed) the structure overlying the lateral gutter which is, in effect, palpating the ATFL. The result of this investigation, as reported in Professor Hardisty’s report, was “a grade one/two draw with a very stable endpoint”.[124] Asked what this meant, Professor Hardisty’s evidence was:
When we assess ligament injuries, particularly around the ankle, they’re normally graded grade one which is a simple sprain to grade three, which is a complete rupture of the ligament. So grade one to two means there’s a little bit of (indistinct) when you turn the ankle and a grade three is the ankle comes right out and that’s when people have instability.
[124] transcript at 89.
Professor Hardisty confirmed that that diagnosis was based on his clinical examination of the applicant’s ankle: “We tested that that was painful for him”.[125]
[125] transcript at 90.
Professor Hardisty was asked whether he would have been hampered in diagnosing the applicant’s condition in the absence of being able to physically examine him. His answer was “Yes, absolutely”.[126] Asked to elaborate, Professor Hardisty’s evidence was:
The important part of the ankle function is its ligamental structures but also an important part of the function with deformity is the tenderness, structures about the ankle, particularly on the inside. The tibialis posterior tendon and the outside, the perennial tendons.
[126] transcript at 90 lines 13–14.
Asked about the x-ray of the applicant’s ankle taken in 2014 and the significance of there being no lucency or periosteal reaction as noted in his report, Professor Hardisty’s evidence was that the absence of lucency ruled out infection. Professor Hardisty was otherwise taken through his reports which he confirmed still reflected his medical opinions and diagnoses.
Asked to comment on Professor Steadman’s view expressed in his first report that the applicant wearing an ankle high work boot would have prevented the injury claimed, Professor Hardisty’s evidence was:
I treat lots of worker’s compensation ankle injuries on tradesman and they’re not all in sandshoes, most of them are in boots, nearly all of them are in boots. So to say that a boot is going to stop you from having an ankle sprain is not really my experience, and the experience of most people. Secondly, when he got up and put his boots on, and laced them up right, it gave him protection around the ankle and to a certain extent, would’ve stopped a lot of the swelling. A lot of the swelling leads to a lot of the pain, so I think that enabling to keep going the next day when he got the boots – and the splinting [effect] is that it wasn’t moving because it was tight in the boots, it still may have moved if he’d stepped on something, like another stone again, but it gave him protection around both sides and it felt better for him.[127]
[127] transcript at 105.
In cross-examination Professor Hardisty was asked whether he had read a paper written by Professor Steadman concerning the use of telehealth videoconference facilities. Professor Hardisty’s evidence was that he had read the paper but that there were still “some limitations of the video”[128] and that, in any event, Professor Steadman’s paper dealt only with the issue of assessing range of motion, not examination of ligaments and other things.
[128] transcript at 107.
Professor Hardisty was cross-examined on how he could make an assessment of the cause of the applicant’s condition when he first examined the applicant just over one year after the claimed incident, particularly when he reported that in his view the applicant had recovered from the ankle sprain. His evidence was:
What I meant by ankle sprain was the injury to the ligaments. Now those ligament injuries allowed the sheering in his ankle but he recovered from the ankle sprain and his ligaments were not laxed, they were not unstable, but the injury and the damage, I felt, my opinion was, it had already been done. And he had not recovered from that.[129]
[129] transcript at 109.
The following exchange then took place with the respondent’s counsel:
COUNSEL:  … if he’s largely recovered from the injury which   you’re saying he’s suffering, does it put you in any    great position to be able to physically examine him as   late as 9 November 2020?
PROFESSOR HARDISTY:    I believe it does because you can separate the two   injuries. And you can examine for swelling, for    tenderness, for pain, in different parts of the ankle and   then also, examine stability. If you didn’t examine   stability, how could you say he had recovered or not   recovered from his ankle sprain to the ATFL and CFL,   that’s my point.
…
COUNSEL:  What you’ve said there is quite plain, you had an ankle   sprain, but he recovered from it, but in the meantime    that ankle sprain effected other parts of his ankle   which were, you know, amenable – or sorry, were the   subject of pre-existing degenerative changes, isn’t   that so?
PROFESSOR HARDISTY:    Yes, it’s as you said, other parts of the ankle from the   sprain. The other parts being the chondral surfaces in    the synovium.
…
PROFESSOR HARDISTY:    Yes, I am just trying to see what your point is, I have   stated that he had a lateral ligament sprain, spraining    those ligaments called sheering – caused a sheering   injury in his already arthritic ankle. And I am merely   saying that he has gone over that lateral ligament   sprain, I apologise if it’s not clearer, but he has the   pre-existing condition that has been exacerbated.[130]
[130] transcript at 109–10.

I have difficulty accepting Professor Steadman’s evidence that his now acceptance of the fact that the applicant was symptom free would not change his diagnosis (see [144] above). The reports provided by Professor Steadman rely on the applicant not being symptom free from the period from 2016 to 2019. He in effect dismissed the first of the three probable scenarios identified in his report dated 21 January 2021 (see [116] above) because he did not believe that the applicant was asymptomatic.
The second possible scenario posited by Professor Steadman in his report of 21 January 2021, long-term pathology with the onset of autoinflammatory chronic infection is, in my assessment, too speculative. As Professor Hardisty pointed out in his report dated 9 November 2020, the applicant “got very good relief from injections into his right ankle joint. This would confirm more that this was a synovitis exacerbated by his injury and exacerbated a pre-existing mild to moderate degeneration of his right ankle” (see [47] and [98] (answer 2.) above).
Professor Hardisty also answers the second element of Professor Steadman’s second possible scenario, autoinflammatory chronic infection, in his evidence set out in [101] and [102] above. I accept Professor Hardisty’s evidence that the theory of chronic autoinflammatory infection is contradicted by the applicant’s history of being symptom free and relies of the wrong diagnosis of an autoinflammatory infection. It also does not address the lack of any change in the underlying pathology shown by the 2014 and 2015 x-rays. Professor Steadman agreed in cross-examination that his theory of chronic autoinflammatory infection was “a possibility that needed further, thorough investigation by a rheumatologist” (see [139] above).
I accept Professor Hardisty’s diagnosis of an aggravation of a pre-existing condition to the third possible scenario identified in Professor Steadman’s report of 21 January 2021, that the applicant suffered an ankle sprain that would last four to six weeks but has now been overtaken by another more significant condition, either due to sepsis or autoinflammatory disorder. As set out above, there is insufficient evidence to establish, on the balance of probabilities, that the applicant suffered from an autoinflammatory infection.
On balance I prefer Professor Hardisty’s diagnosis that the applicant suffered an injury to his right ankle on 29 October 2019 in the background of a pre-existing, previously asymptomatic degenerative arthritis which causes that condition to become symptomatic. I am therefore satisfied that the applicant suffered an injury as that term is defined in s 5A(1)(c) of the SRC Act (see [21] above).
Section 7(7) of the SRC Act
The respondent, correctly in my view, identified the elements to establish an argument under s 7(7) of the SRC Act (see [53] above).
I do not accept that the respondent has established the necessary elements which it has identified. While the first element, that is that the applicant claims for a disease or an aggravation of a disease is not in issue, and the second element, that the representations relied on involved “purposes” connected with employment is partly established, I do not accept that the claimed representations were, as a matter of fact false or that, if they were, that they were wilfully false. I also do not accept that the fourth element identified by the respondent, namely, that the representation must be to the effect that the applicant had not previously suffered from that disease, has been made out.
Dealing with the second element, while the two pre-employment questionnaires completed by the applicant in February 2018 and October 2018 were completed before the applicant was employed by the respondent, they were clearly completed “for purposes connected with his … employment or proposed employment”.[161] The fact that the first of the forms may have been completed in respect of possible employment by someone other than the respondent does not alter the basic character of the questionnaire as being for the purpose of proposed employment. It is, in any event, clear that the second of the questionnaires, completed in October 2018[162] identifies the respondent as the proposed employer.
[161] SRC Act s 7(7).
[162] R2, 160.
Insofar as the respondent relies on answers to questions in the compensation claim form,[163] I note the reasoning of Senior Member Dr Cremean in McQueen-Thomson and K&S Freighters Pty Ltd[164] who at [122], in commenting on the respondent’s reliance on an answer provided by the applicant in the workers’ compensation claim form, found:
… I am not satisfied that, in answering No to question 13, the Applicant was making any representation for purposes connected with his employment. As I see it, his purposes in reality had nothing to do with his employment, except in a necessary factual sense, but were connected with his injury or illness.
[163] R1, T15.
[164] [2016] AATA 510.
That finding, however, was, in effect, found to be wrong on appeal in K&S Freighters Pty Ltd v McQueen-Thomas[165] in which, at [61], Collier J found that:
It is difficult to see how the completion of the relevant form by the employee would not be for purposes connected with his employment…
[165] [2018] FCA 1518.
While her Honour so found, she did go on to find that the Tribunal’s primary finding was that there was an absence of any wilfulness and falsity and that the comments by the Tribunal at [122] “were an addendum to its primary findings concerning the absence of wilfulness and falsity on the part of the employee in completing the form.” In other words, the purpose of the claim form, in part, informs the assessment of the wilfulness of any false statement.
Before assessing whether the applicant wilfully made any of the statements relied on by the respondent, it is necessary to determine whether, as a matter of fact, the answers provided by the applicant were false. In making that assessment it is important to read the answers provided in context. The respondent’s closing submissions identify the answers upon which it relies in making this argument. In relation to the pre-employment questionnaire of February 2018,[166] the first answer that the respondent identifies is the answer to question 25, the chapeau to which asks: “Are you suffering from or have you ever suffered from any of the following conditions, injuries or disabilities?”[167] Question 25 is “Any fracture” to which the applicant answered “No”.[168]
[166] A1, 77–99.
[167] A1, 79.
[168] A1, 81.
The applicant similarly answered no to question 27 “Joint problems, pain, injuries, arthritis, dislocated joints”,[169] and question 31 “Foot problems or problems with footwear”.[170] The respondent does concede that in answer to question 32, “Have you had an x-ray or an MRI for back/neck or joint pains?” the applicant answered “Yes” and advised that he had “Xray on my right leg got my pins taken out, ORIF 1980’s [sic] # R ankle”.[171] The respondent also points to the applicant’s “Yes” answers to question 46: “Have you ever been admitted to hospital?” and question 47: “Have you ever had any operation or surgical treatment?” and that he advised in relation to those answers that “# R Ankle, ORIF, Pins removed 2015. Nil ongoing issues”.[172]
[169] A1, 81.
[170] A1, 81.
[171] A1, 81.
[172] A1, 82.
The obvious consequence of the answers provided by the applicant to questions 32, 46 and 47 is that the answers that he provided to questions 25, 27 and 31 were wrong, or at least technically wrong if read in isolation. The other important contextual factor is that the pre-employment form was completed by the applicant with the assistance of the examining doctor, Dr David Parker of Kinnect, who signed off the report and made his assessment of the applicant’s fitness for work.[173] It is obvious that the applicant did not conceal the fact that he had had a major fracture of his right ankle in the 1980s which required open reduction and internal fixation (ORIF) and that the pins used in that operation were removed in or around 2015. As Dr Parker was not called to give evidence, it remains unexplained why Dr Parker signed the form with what are, on their face, inconsistent answers. The inference that could be drawn is that, having been given the history of a severe ankle fracture in the 1980s which required ORIF and pins being removed in 2015 (which it would be fair to assume would only have been done if there were some issue with the ankle), Dr Parker was satisfied that the answers that the applicant provided to questions 25, 27 and 31 were correct, or if read in context with the other information provided by the applicant, were not medically significant.
[173] A1, 97.
I am not satisfied that the answers provided by the applicant to the questions identified by the respondent in the February 2018 questionnaire were false when read in context of the information that he did provide and when considered in the context of the examining doctor being satisfied with the answers provided. Even if the answers were false, I am satisfied that they were not wilfully false. The purpose of providing a false answer would be to conceal the relevant history. The applicant, however, did not do that. He clearly provided the relevant history to Dr Parker who completed the “Medical Comments” panels under the relevant questions on the form. In fact, Doctor Parker did more than simply rely on the information provided by the applicant. The applicant’s evidence at the hearing was as follows:
COUNSEL:     All right. That's good. And so if you have a look at page 81, at the    bottom there it says:
X-ray on my leg. Got my pins taken out.
COUNSEL:     Is that what you were referring to just now?
APPLICANT:   Yes.
COUNSEL:     And did they test your ankle, having declared that you had that pin    taken out?
APPLICNAT:   Yes.
COUNSEL:     And what did the doctor do to test your ankle?
APPLICANT:   I - walk to - just walking around, just - he was just checking to see    how the - the foot is reacting. Yes. Squatting. Standing up. Just -   yes.
COUNSEL:     So at that time, were you still jogging?
APPLICANT:   Well, after that, after that operation and everything like that, yes.
COUNSEL:     Yes. So - well, this - - -?
APPLICANT:   After - after some time, yes.
COUNSEL:     So this pre-employment medical was done on 5 February 2018, and    you were jogging and no restrictions?
APPLICANT:   Yes. No restrictions.[174]
[174] transcript at 20.
The respondent’s argument in relation to the second pre-employment form, completed in October 2018,[175] is even less convincing. Again, the respondent relies on three answers to questions which have to be read in isolation, ignoring context and ignoring the fact that, as with the February 2018 form, the October 2018 form was completed in the presence of and partially completed by the examining Doctor, Dr Karthigasu. Further, arguably only one of the three answers to which the respondent refers is incorrect, even when read in isolation. The respondent concedes that the applicant answered yes to the question of having a “leg injury” but identified the “No” answers to “Foot problems”, “Swollen joints” and “Any other bone or joint injury” as being wilfully false. The respondent contends that “the questions as framed do necessarily call for disclosure of what occurred in the period of ankle disability from September 2014 to March 2016.”[176] Even if I were to accept that contention, for which no support is provided by the respondent, it is far from clear that the applicant did not make the disclosure which the respondent now says should have been made. The material event which occurred in the period leading up to the removal of the pins in March 2016 was that the applicant suffered symptoms associated with the pins, hence the need to remove them. That would have been obvious to Dr Karthigasu (who was not called to give evidence) and is self-evident.
[175] R2, 160–92.
[176] respondent's closing submissions para 12.
I also have trouble accepting that the answer “No” to the question “Any other bone or joint injury” is objectively false given that it is asking for “other” injuries, presumably other than those already covered by previous questions and answers, in circumstances where the applicant has advised that he had a serious fracture to his ankle requiring ORIF and surgical removal of pins in 2015. The respondent does not identify what “other” injuries the applicant was obliged to disclose. Similarly, the respondent does not identify how the answer to the somewhat shorthand, if not cryptic, questions “Foot problems” and “Swollen joints” are objectively false in the same circumstances.
Even if the answers are objectively false when read in isolation and without the context of the examining doctor being provided with information about the ankle fracture and the subsequent removal of pins, I do not accept that the answers were wilfully false in circumstances where the applicant disclosed the fact of his severe ankle fracture and the subsequent removal of the fixing pins. The applicant’s intent was clearly not to deceive or conceal by providing the answers that he did. Had that been his intention he would not have provided the information that he did about his historical ankle fracture and the more recent removal of the fixing pins.
The applicant was cross-examined on the answers that he gave in the pre-employment examination questionnaires. Some of the answers given by the applicant in response to the questions put to him were confused and confusing. The applicant did not appear to me to be a sophisticated witness and at times during his evidence he seemed to have trouble following questions put to him. Answers that he gave in some cases conflicted, even when the answers were given in the same sequence of questions. He was taken to the pre-employment reports of February and October 2018 and to the answers that he gave about having the pins taken out of his ankle in 2015 (it was actually March 2016). It was put to the applicant that the answers that he had provided in response to the questions in the report were “a bit less than truthful”.[177] His answer was that he answered the questions on the basis of “that’s what I felt like at the time”.[178] The following exchange then occurred:
COUNSEL:     Well what else could it be? Why did you deliberately not mention    those – all those ankle problems in all of that time?
APPLICANT:   I am not sure.
COUNSEL:     There can only be one answer, Mr Kaukau, you’ve said you    deliberately made those – you didn’t mention those particular   problems, haven’t you?
APPLICANT:   Yes.
COUNSEL:     The answer has to be that you knew that you disclosed – or if you    mentioned that particular history, you were likely to be asked further   questions regarding your ankle – the history of your right ankle, isn’t   that so?
APPLICANT:   Yes.
[177] transcript at 49.
[178] transcript at 50.
Similar questions were put to the applicant in relation to answers provided in the compensation claim form submitted by the applicant through his lawyers in February 2020.[179] Again, it was put to the applicant that he had failed to make proper disclosure in response to the question “Have you ever had a similar symptom, injury or illness, work-related or otherwise?” The applicant’s evidence was that had misread the question.[180]
[179] R1, T15.
[180] transcript at 51.
The issue that I have with this line of questioning is that it assumes that the applicant fully understood the question that was being asked by the relevant form. The applicant is not a medical person and appears not to be particularly sophisticated. It also assumes that the question is unambiguous. The question on which the applicant was being cross-examined, however, is not necessarily straight-forward, either medically or legally. I can understand a layman who is putting in a claim for a twisted ankle answering that question in the negative. In the context of a claim for a twisted ankle, is treatment for a 30-year-old fractured ankle and a removal of fixing pins a “similar, symptom, injury or illness”? Even to a non-layman the correct answer to that question, particularly in circumstances where the applicant had on at least two previous occasions disclosed the ankle fracture, the ORIF and fixing pin removal, may well have been no. It is a matter of definition and opinion whether the “symptom” is similar to those experienced as a result of the ankle fracture and/or symptoms which necessitated the removal of the pins. Similarly, whether a twisted ankle is a similar injury to a fractured ankle or the condition which necessitated the removal of the pins is largely a matter of technical opinion.
Again, I am not satisfied that even if the answers provided were false, that they were wilfully false. Insofar as the applicant in cross-examination provided answers that could be seen as conceding that he deliberately provided false information, I do not accept that that was the case in circumstances where the applicant disclosed the historical ankle fracture and ORIF and the more recent removal of fixing pins, particularly when those disclosures were made to Dr Parker and then to Dr Karthigasu, who would obviously have appreciated the medical significance of such circumstances and the consequences thereof.
I also note that, as the applicant rightly pointed out, the respondent only belatedly raised the defence under s 7(7) of the SRC Act. It was not referred to in the respondent’s SFIC and was, in effect, raised for the first time in the cross-examination of the applicant. The applicant was therefore not in a position to prepare his case on the basis of having to address that issue or to prepare for cross-examination on that issue. It also seems that while the cross-examination obviously canvassed issues relevant to s 7(7), Mr Wong, who appeared as counsel for the applicant on the first day of the hearing, seemed not to appreciate that the questions asked of the applicant in cross-examination went to that issue and did not re-examine on the questions which went to s 7(7). It was for this reason that on the second day I allowed the applicant to be recalled and be re-examined on this issue.[181] Mr Nugawela re-examined the applicant, however, perhaps because the transcript of the previous day was not available and Mr Nugawela had not been present during the cross-examination, the further re-examination did not shed much light on the answers given by the applicant the previous day. He did, however, in effect, reiterate that he gave the answers that he did because of his understanding of the questions asked in the relevant forms, not because he intended to mislead.[182]
[181] transcript at 68–71.
[182] transcript at 69.
Looking at the totality of the evidence, I am unable to conclude that the applicant made wilful and false representations within the meaning of s 7(7) of the SRC Act. Accordingly, the defence raised by the respondent under s 7(7) of the SRC Act is not made out.
Incapacity for work
The only other issue, and one that was raised by the applicant only (see [26] above) is whether the injury has resulted in an incapacity for work. This issue was not specifically addressed by the parties either in their submissions or at the hearing. However, on the basis of the medical certificates issued which are included in the papers admitted into evidence,[183] I find that the injury suffered by the applicant on 29 October 2019 did result in an incapacity for work.
[183] A1, 27–68; see also R1, T5; R1, T6; R1, T8; R1, T10; R1, T14; R1, T16; R1, T17; R1, T20.
DECISION
I make the following findings:
(a)The applicant did roll his ankle as claimed on 29 October 2019.
(b)The applicant thereby suffered an aggravation of a pre-existing condition and that that aggravation arose out of or in the course of the applicant’s employment. The applicant has therefore suffered an injury as that term is defined in s 5A(1)(c) of the SRC Act.
(c)The respondent has not made out a defence to the applicant’s claim under s 7(7) of the SRC Act.
(d)The injury has resulted in an incapacity for work.

As a result of the above findings, I find that the correct or preferrable decision is that the decision of the respondent dated 20 April 2020 which affirmed the determination of 3 March 2020 be set aside and in substitution there be a decision that the respondent is liable under s 14 of the SRC Act in respect of the right ankle injury suffered by the applicant on 29 October 2019.

I certify that the preceding 179 (one hundred and seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[SGD].....................................................................
Associate
Dated: 4 May 2022

Dates of hearing: 23, 24, 25 August 2021

Counsel for the Applicant: Mr B Nugawela

Solicitors for the Applicant: Soul Legal

Counsel for the Respondent: Mr C Clark

Solicitors for the Respondent: HWL Ebsworth

Dates of hearing:	23, 24, 25 August 2021
Counsel for the Applicant:	Mr B Nugawela
Solicitors for the Applicant:	Soul Legal
Counsel for the Respondent:	Mr C Clark
Solicitors for the Respondent:	HWL Ebsworth