Kiama Municipal Council v Manning - [2022] NSWPICPD 35

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Kiama Municipal Council v Manning [2022] NSWPICPD 35
APPELLANT:	Kiama Municipal Council
RESPONDENT:	David Manning
INSURER:	StateCover Mutual Limited
FILE NUMBER:	A1-W3975/21
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	31 August 2022
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 25 October 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Sections 4(b)(i) and 4(b)(ii) of the Workers Compensation Act 1987 – competing medical opinion as to the cause of the worker’s skin cancer – treatment of the medical evidence – main contributing factor within the meaning of s 4(b) of the Workers Compensation Act 1987 – adequacy of reasons – Beale v Government Insurance Office of NSW (1987) 48 NSWLR 430 discussed and applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr J Catsanos SC, counsel, with Mr G Barter, counsel
Bartier Perry Lawyers
Respondent:
Mr J Wilson, counsel
Williamson Isabella Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr P Young
DATE OF Member’s DECISION:	25 October 2021

INTRODUCTION

The appeal is against a decision of a Member of the Personal Injury Commission made on 25 October 2021.
Mr Manning, the respondent to the appeal, is a 63 year old outdoor worker who was employed by Kiama Municipal Council, the appellant.
Mr Manning filed an Application to Resolve a Dispute (ARD) claiming weekly benefits from 15 May 2019. The injury alleged was aggressive cutaneous squamous cell carcinoma (SCC). The deemed date of injury of was 11 September 2018.
Mr Manning had been employed by the Council for 33 years and in 2018 he was diagnosed with SCC. He alleged that his duties included driving various machinery for the purpose of mowing lawns and maintaining the appellant’s parks and gardens.
The Member found in favour of Mr Manning and made an award against the Council, ordering the payment of weekly compensation for the following amounts and periods:
1. pursuant to s 36 of the Workers Compensation Act1987 (the 1987 Act) from 5July 2019 to 4October 2019 in the sum of $1,206.48 per week, and
2. pursuant to s 37 of the 1987 Act from 5October 2019 to date and continuing in the sum of $942.72 per week.[1]
[1] Manning v Kiama Municipal Council [2021] NSWPIC 432 (reasons).

CERTIFICATE OF DETERMINATION

The Member made the following findings in support of the awards that he made:
“1. In the course of his employment with the [appellant] between approximately 1986 and 15 May 2019 the [respondent] in working outdoors was exposed to ultra-violet radiation which resulted in acceleration or exacerbation of skin damage (acceleration) being injury within the meaning of section 4(b)(ii) of the Workers Compensation Act 1987.
2.      The [respondent’s] employment with the [appellant] between approximately 1986 and 15 May 2019 was the main contributing factor to the acceleration.
3.      Since 5 July 2019 the [respondent] has had no capacity for work and has suffered economic loss.
4. The [respondent’s] incapacity for work results from injury within the meaning of section 33 of the Workers Compensation Act 1987.
5.      The [respondent’s] pre-injury average weekly earnings have been agreed in the sum of $1,178.40 per week.”

BACKGROUND AND MEMBER’S STATEMENT OF REASONS

For the purpose of the appeal, the Member’s summary of the worker’s employment conditions is undisputed:
1.     Mr Manning commenced employment with the appellant in 1986 on a permanent and full-time basis working Monday to Friday.
2.     He worked in the Parks and Gardens section of the Council.
3.     In the course of that work he spent about 90% of his time driving tractors and mowing parks.
4.     He initially worked in the concrete section and after 3 years became a tractor operator. He was mowing near footpaths, reserves, headlands and rural roads.
Mr Manning drove a variety of tractors:
1.     The first tractor was an open cab tractor which had a small clear windscreen at the front and a plastic roof above. The sides were not enclosed.
2.     In the early 1990s, the appellant provided sunburn cream and provided workwear of various designs.
3.     From 1992, for about 11 years, Mr Manning drove a John Deere grass cutting/mowing tractor. The back and side windows were tinted but the front windscreen was clear. The slasher on the back of the tractor would often get caught requiring Mr Manning to spin around.
4.     From 2003, the appellant assigned Mr Manning a smaller John Deere tractor which had a swivel seat but again a clear front windscreen. He operated this tractor for about 10 years.
5.     In about 2013 Mr Manning was assigned a Mulholland tractor but the cabin was such that his Akubra hat hit the rear window. He started to wear a sports cap but his neck was exposed to the sun.
Mr Manning said that he was seated in the tractor for most of the entirety of his working day.
The Member found, and it is not disputed, that Mr Manning worked for the appellant for a total of 33 years, ceasing employment because of ill-health relating to his skin cancers on 15May 2019.
Mr Manning’s medical history relevantly was found by the Member as follows:
1.     In 2013 a dermatologist, Dr A Moss, examined a sore on Mr Manning’s left cheek. A biopsy was taken and the sore was confirmed to be cancerous. Dr Moss removed it.
2.     In September 2018 a new lump appeared on Mr Manning’s left cheek close to the scar left by the previous lump removal. A further biopsy was taken and the second lump was removed. He was referred to Dr Wykes, head and neck surgeon, who advised that the respondent should monitor his left cheek.
3.     In October 2018 Mr Manning returned to Dr Wykes concerning another lump in his left cheek and was informed that that was scar tissue. This lump however increased in size and in May 2019 it was revealed to be another cancerous tumour.
4.     In June 2019 Mr Manning underwent a lengthy procedure to remove the third lump involving a skin graft from his left thigh. He had 30 sessions of radiation and suffered radiation side effects. Subsequently two further lumps appeared on the left side of his neck.
5.     In February 2020 Dr Wykes suggested revisionary surgery of Mr Manning’s eyelids.
6.     In October 2020 Mr Manning consulted Dr E Lobel, dermatologist, at the Skin Hospital at Darlinghurst.
The appellant filed several dispute notices denying liability on various bases.
The Member defined the issue in the following terms:
“The issue is whether or not the [respondent’s] condition is appropriately described as personal injury in the sense of frank injury, or disease or aggravation of disease. This is because the [appellant] maintains that the [respondent’s] condition is in the nature of disease and the [respondent] has not established that his employment was the main contributing factor to the disease as required by section 4(b).”[2]
[2] Reasons, [5].
The medical evidence was summarised briefly and not comprehensively by the Member.
The respondent relied on Dr Wykes who reported on 29 September 2020[3] that “long exposure to sun on the left side of the [respondent’s] face means it is likely that the [respondent’s] employment was the main contributing factor.”[4] Dr Lobel, another doctor relied on by the respondent, reported on 7 October 2020[5] and 29 June 2021[6] that the history of 33 years of outdoor work was “a substantial and the main contributing factor” to Mr Manning’s condition.[7]
[3] ARD, p 146.
[4] Reasons, [25].
[5] ARD, p 147.
[6] ARD, p 151.
[7] Reasons, [26].
The Member said at [26] of the reasons:
“Dr Lobel confirms that this work exposure constitutes an aggravation and acceleration of skin damage.”
For the appellant, Associate Professor Shumack, dermatologist, provided a number of reports. The Member noted that A/Prof Shumack agreed with the diagnosis of aggressive squamous cell carcinoma consistent with accumulated sun damage. Further A/Prof Shumack accepted that Mr Manning’s employment was a substantial contributing factor to the condition. However, he did not agree that the employment was the main contributing factor.[8] A/Prof Shumack was asked the following question:
“11. Are there any other non-work related factors which contribute to the condition? If so, identify them and the extent of contribution of each factor.
Yes indeed.
1. Childhood and teenage recreational sun exposure 50%.
2. Adult recreational outdoor sun exposure 20%.
3. Workplace sun exposure during his employment with Kiama Municipal Council 30%.”[9]
[8] Reasons, [28].
[9] Reply to Application to Resolve a Dispute (reply), p 61.
At [29] of the reasons, the Member recorded that in his report dated 14 July 2020, A/Prof Shumack said that the respondent’s skin cancer was a disease of gradual process causally initiated by his exposure to ultraviolet sunlight as a child and adolescent. He agreed with the proposition that employment was not the main contributing factor to the aggravation (etc.) of the disease. He referred to the childhood exposure of 50%, employment exposure of 30% being the response he gave to question 11.
The Member made note of A/Prof Shumack’s reasoning process,[10] namely:
1.     the respondent was relatively protected in his workplace environment during the last 20 years of his employment so that whilst the respondent would have had significant exposure, it would only have been in the first six years or so of his employment history;
2.     the percentage attribution of 50% exposure during childhood was justified because this was direct exposure whereas the direct exposure with the appellant was for a maximum of six years and in an otherwise enclosed cabin for 20 odd years. The enclosed cabin would have protected him from the majority of ultraviolet light exposure, and
3.     A/Prof Shumack introduced an academic article relied upon to support his conclusion with respect to percentage contributions.[11]
[10] Reasons, [30].
[11] Reasons, [31].
The Member rejected A/Prof Shumack’s reasoning. Identifying the approach he took to be the “correct approach”, the Member said:
“32. The difficulty in accepting these percentage contributions is that there is no detailed explanation in A/Prof Shumack’s reports concerning the [respondent’s] specific exposure. Further, the claim that the [respondent] would be protected from radiation in the various tractor cabs is unsupported by any scientific analysis and ignores effectively over 20 years of the [respondent’s] work experience. The doctor somehow arrives at a limited six year work exposure (rather than 33 years) to support his conclusion. The percentages seem to be somewhat arbitrary and are arrived at without any specific analysis of the particular exposures to sun experienced by this particular [respondent].
33.    The correct approach in my view is to consider whether as a matter of common sense 33 years of outdoor work supports the opinion of the majority of the medical experts. Dr Lobel and the treating doctor, Dr Wykes support the [respondent’s] causation argument in this regard. Dr Wykes as treating doctor is best placed to determine the ‘main contributing factor’ point because he has treated the [respondent] over many years and would be more alert to the nature and extent of the [respondent’s] history of ultra-violet exposure. A/Prof Schumack’s reliance on a six year exposure stands in contrast to the [respondent’s] evidence and does not detail any factual basis on which he bases his chosen percentages.
34.    I accept Dr Lobel’s view that the many years of the [respondent’s] employment constituted aggravation and acceleration of damage to the [respondent’s] skin. My reading of his opinion is that Dr Lobel regards the ‘injury’ as aggravation (etc) of an underlying disease condition. The employment need not be the ‘main contributing factor’ to the pathology, only the main contributing factor to the aggravation (etc).
Findings
35. In the course of his employment with the [appellant] between approximately 1986 and 15 May 2019 the [respondent] in working outdoors was exposed to ultra-violet radiation which resulted in acceleration or exacerbation of skin damage (acceleration) being injury within the meaning of section 4(b)(ii) of the 1987 Act.
36.    The [respondent’s] employment with the [appellant] between approximately 1986 and 15 May 2019 was the main contributing factor to the acceleration.”
On the basis of those reasons the Member found for Mr Manning.

ON THE PAPERS

The parties are content for the appeal to be dealt with on the papers.
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Procedural Directions PIC2 and WC3 provide that I may be satisfied that the documents and the submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing. I am satisfied that this is an appropriate matter to proceed ‘on the papers’ without holding any conference or formal hearing.

NATURE OF THE APPEAL PURSUANT TO SECTION 352(5) OF THE WORKPLACE INJURY MANAGEMENT AND WORKERS COMPENSATION ACT 1998

The jurisdiction provided in s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) is:
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”

THRESHOLD MATTERS

There is no dispute that the monetary threshold prescribed by s 352(3) of the 1998 Act is exceeded. The appeal was lodged on 19 November 2021. The Certificate of Determination is dated 25 October 2021. The appeal is therefore brought within 28 days of the period prescribed by s 352(4) of the 1998 Act.

GROUNDS OF APPEAL

The appellant relies upon three grounds of appeal, namely:
“1. That the Member erred in his finding that the respondent suffered injury within the meaning of s 4(b)(ii) of the 1987 Act.
2. That the Member erred in his treatment of the medical evidence and his conclusion that employment was the main contributing factor within the meaning of s 4(b) of the 1987 Act.
3. That the Member erred in failing to provide adequate reasons.”
The appellant seeks the following orders:
“1.     that the appeal be allowed,
2.      that the Certificate of Determination and award of compensation of the Member dated 25October 2021 be revoked, and
3.      in lieu thereof, there be an award in favour of the appellant, or
4.      alternatively, the matter be remitted for re-determination by another Member.”

SUBMISSIONS

Ground One: Error in finding that the respondent suffered injury within the meaning of s 4(b)(ii) of the 1987 Act

Appellant’s submissions

The appellant submits that before the Member there was no issue that the worker’s skin cancer was related to sun exposure, however in terms of s 4(b) of the 1987 Act, there was a live issue as to the genesis of the disease, how it ought be classified and whether the worker’s employment with the appellant was the “main contributing factor” within the meaning of that section.[12]
[12] Appellant’s submissions, [3].
The appellant directs attention to the Member’s findings at [35]–[36] of the reasons (set out at [20] above) as underpinning the award in favour of the worker.
The appellant quotes the Member’s findings at [35] and [34] and sets out the passage from Dr Lobel’s report dated 29 June 2021:
“In my opinion, the sun exposure which Mr Manning received during the course of many years of fully outdoor employment was the main contributing factor to his contracting the squamous cell carcinoma in his left cheek and would have constituted an aggravation and acceleration of the skin damage leading to the development of a squamous cell carcinoma in the course of employment.”[13] (emphasis added by the appellant)
[13] ARD, p 151.
The appellant submits that Dr Lobel does not describe an underlying disease and the reference to aggravation and acceleration of “skin damage” must be read in a context that Dr Lobel saw that as leading to the contracting and development of the squamous cell carcinoma in the course of employment.
The appellant’s submission is:
“20. Simply put, there was no warrant for the Member equating the reference to ‘skin damage’ by Dr Lobel with an underlying disease condition, as opposed to the damage which led to the contraction of the disease, particularly in the absence of any medical opinion to that effect.
21. In making his finding as to the nature of the worker’s injury, the Member seemingly ignores Dr Lobel’s report dated 7 October 2020, where the doctor, at page 4, refers to ‘actinic (solar induced) skin damage’ acquired during teenage years and the ‘development of’ the squamous cell carcinoma. Again, this is language speaking to the contraction of a disease rather than the aggravation of an extant disease condition.”
The reading of Dr Lobel’s opinion by the Member “is not what Dr Lobel actually said” and “[o]ne simply has no insight into why the Member did not accept, or even advert to, the preponderant body of evidence which suggests that the sun exposure caused the pathological process by which the disease was contracted.”[14]
[14] Appellant’s submissions, [23].
The appellant submits that Dr Wykes speaks of the employment being the main contributing factor to the disease, rather than speaking of the aggravation of the disease.
A/Prof Shumack explains that the skin cancer condition is related to the amount of accumulated lifetime exposure.
The appellant says:
“Whilst A/Prof Shumack in parts of his reports does adopt terms of aggravation (etc), it is submitted plain that he considers the worker’s skin cancer was contracted over the worker’s lifetime, including his period of employment with the appellant.”[15] (emphasis in original)
[15] Appellant’s submissions, [26].
The appellant’s ultimate submission is:
“The medical evidence pointed strongly to injury falling within the ambit of s 4(b)(i). The Member’s categorisation of the injury as a disease pursuant to s 4(b)(ii) is flawed and unexplained. It demonstrates clear error of fact and law on his part.”[16]
[16] Appellant’s submissions, [27].

Respondent’s submissions

The respondent submits that A/Prof Shumack, in his first report, was not provided with the respondent’s statement dated 17 December 2020 and that as a consequence, A/Prof Shumack “did not have the [respondent’s] detailed history of sun exposure as outlined in that statement. He did not have the additional history provided to Dr Lobel that ‘as a child and teenager he generally did not choose outdoor sporting or leisure activities, carried out mostly indoor leisure activities and actually rarely went swimming or to the beach’.”[17]
[17] Respondent’s submissions, [4], referring to ARD, p 152.
The respondent details at some length the sun exposure he experienced.
The respondent’s submission is that there was no evidence that he was relatively protected in his workplace. The findings made by the Member at [32] and [33] of the reasons were open and available on the evidence, specifically:
“Associate Professor Shumack’s reliance on a six year exposure stands in contrast to the [respondent’s] evidence and does not detail any factual basis on which he bases his chosen percentages.”[18]
[18] Reasons, [33].
The respondent submits that the appellant’s submissions do not address an entire section of his evidence: statements dated 17 December 2020, 4 August 2021, 29 September 2021, and the reports of Dr Wykes.

In answer to Ground One, the respondent submits that the appellant has not pointed to any medical evidence addressing:
“(a)    what the [respondent’s] disease is (i.e. skin damage more broadly or SCC);
(b)     when the disease was first contracted;
(c) whether, prior to his employment with the [appellant], the [respondent] had had the disease (noting that an answer of no is required to satisfy s 4(b)(i): see Booth v Fourmeninapub Pty Limited[19]);
(d)     whether the disease could have existed without the [respondent’s] prior sun damage;
(e)     whether the [respondent’s] childhood and adolescent sun exposure predisposed him to contracting the disease or whether it initiated the disease, and
(f)     whether the disease could have developed in the absence of the [respondent’s] non-work related sun exposure.”
[19] [2020] NSWCA 57 (Booth).
The respondent quotes the decision of Leeming JA in Booth at [52] in respect of s 4(b) of the 1987 Act, to the effect that where the first limb applies the worker will not previously have had a disease, the second limb applies to the worker who has previously had the disease.
The respondent quotes the reports of Dr Wykes dated 14 May 2020 and 29 September 2020 which he asserts support the Member’s finding of injury within s 4(b)(ii) of the 1987 Act. He quotes further the reports of Dr Lobel at some length.
The respondent submits:
“20. The entirety of the Appellant Employer’s and Respondent Worker’s medical and lay evidence identifies that the Respondent Worker had sun exposure throughout his life. There is no basis to say the SCC was contracted during his employment. Dr Lobel states that the [SCC] is a disease that was contracted because of his employment [ARD 151] (emphasis added). He does not say, as is required by s 4(b)(i), that the SCC was contracted by Mr Manning in the course of employment.
21. A/Prof Shumack [Reply 76] states:
the [respondent’s] skin cancer condition is a disease which was substantially aggravated, accelerated, exacerbated or deteriorated in the course of employment … I am of this opinion because we know that the worker’s skin cancer condition is related to the amount of accumulated lifetime sun exposure. (Emphasis added)”
The respondent submits that A/Prof Shumack does not “once” provide an opinion that the disease was contracted in the course of employment.
The only circumstance in which A/Prof Shumack uses the word “contraction” is on page 7 of the report dated 19 July 2021:
“It is still my belief that Mr Manning’s exposure to ultraviolet sunlight in the Council employment of more than three decades, as described above, was not the main contributing factor to the contraction or aggravation of his skin cancer disease.”[20] (emphasis added by the respondent).
[20] Reply, p 78.
The respondent’s submission is as follows:
“24. The Respondent Worker submits that there is no medical evidence to support the Appellant’s proposition that the disease was contracted in the course of employment.
25. Without such opinion the Respondent Worker submits the Appellant has no basis for its submission that ‘the medical evidence pointed strongly to injury falling within the ambit of s 4(b)(i)’.”
The respondent makes the following submission, which seems to me to be in the nature of a contention in favour of affirming the Member’s determination on other grounds:
“28. If the Commission is against the Respondent Worker on these submissions and finds that the disease was contracted (and not aggravated) in the course of employment, then the Respondent Worker submits that there is no evidence of any other concurrent factors which led to the contraction of the disease. The Respondent Worker would invite the Appellant to identify the non-work factors it suggests are the main contributing factor to the contraction, and the evidence of same. The Appellant is also invited to identify how the disease was contracted. The Respondent submits that the Commission could only find that employment was the main contributing factor to the contraction of the disease. The only evidence before the Commission of non-work related factors are those proffered by the Respondent in his lay evidence and in the history provided to the [doctors] …
29. The Respondent therefore submits that if the injury falls within s 4(b)(i) then the worker’s employment was the main contributing factor (see submissions below regarding Main Contributing factor).”

Appellant’s submissions in response to the respondent’s submissions

In its general response to the respondent’s submissions, the appellant submits that the respondent has failed to engage with and address “whether conclusions reached by the Member were infected by errors of fact, law or discretion”. It says the respondent’s submissions seek to justify the Member’s conclusions without adverting to the errors he committed in the process of making his determination.
The appellant submits:
“10. … before the Member, the worker expressly advanced a case that, inter alia, the worker’s injury fell within s 4(b)(i) (see in particular Transcript of 7October 2021 (T) p 3.30 and p 5.05). Further, following the appellant’s submissions, which fairly put the proposition that the injury fell under s 4(b)(i) (see esp. T p 23.20), the worker did not suggest that the injury was incapable of falling under s 4(b)(i) (see T p 27.10, p 28.25 and p 30.10).
11. The worker’s case before the Member that, inter alia, the injury fell under s 4(b)(i) could only have been advanced if there was an evidentiary foundation for it, which, clearly, there was. It is not open for the worker to now suggest that the evidence could not support such a finding.”
The evidence did not equate skin damage with the disease the subject of the worker’s claim. The skin damage acted as a precursor and facilitated in the development or contraction of the worker’s skin cancer. Accordingly the appellant submits:
“17. Clearly the SCC suffered by the worker was not independent of his earlier skin damage, however it is entirely another thing to say that the skin damage reflected an extant disease at the time the worker commenced employment with the appellant (see submissions as put at first instance T p 23.20–23.30).
18. The worker’s submissions at RS [20] draw a distinction without a difference. It is Dr Lobel’s use of the word ‘contracted’ which is to the point. Whether it was contracted ‘because’ or ‘in the course of’ employment, nonetheless indicates that it was contracted in the context of employment and not beforehand. Again the construction now contended for by the worker is antithetical to the case advanced before the Member.” (emphasis in original)
The appellant quotes the article provided by A/Prof Shumack to the effect that SCC can develop following childhood exposure such that the “latent harmful effects of UV manifest decades later in adulthood”.[21] It submits:
“Clearly, A/Prof Shumack does not provide unequivocable evidence that the worker suffered s 4(b)(ii) aggravation of a disease. His opinion is not inconsistent with the preponderant medical opinion, discussed in the appellant’s earlier submissions, pointing to the disease being contracted in the course of employment and falling within the ambit of s 4(b)(i).”[22]
[21] Reply, p 83.
[22] Appellant’s submissions in reply, [22].
The appellant refutes the respondent’s submission that the medical evidence does not support the proposition that the disease was contracted in the course of employment, describing that submission as “unsustainable”.
Dealing with the respondent’s submission at paragraph [28] (outlined at [50] above) the appellant submits:
“At RS [28], the worker contends there was no evidence of any other concurrent factors which led to contraction of the disease. The requirement for a ‘concurrent’ factor is obscure and was not a position ventilated in the argument for the Member. There is no warrant for requiring concurrent contribution. That language is not used in the statute. As the worker’s submissions below seem to have accepted, antecedent sun exposure can be a contributing factor to the subsequent development of the disease. The literature referenced earlier and the various medical opinions before the Member all accept that to be so. For example, whilst Dr Lobel considered employment to be the main contributing factor ‘to the development of Mr Manning’s aggressive SCC’, he acknowledged that ‘a substantial proportion of the actinic (solar induced) skin damage in Australian adults is acquired during the person’s childhood and teenage years’.”[23] (emphasis in original)
[23] Appellant’s submissions in reply, [26], referring to ARD, p 150.
The appellant maintains its position that the finding of injury under s 4(b)(ii) was foundationally unsound and was against the weight of evidence.

Additional submissions in Support of a Notice of Contention

Pursuant to a Direction issued by me on 30 June 2022, the appellant and the respondent were asked to make further submissions on the substance of paragraph [28] of the respondent’s previous submissions (see [50] above).
The respondent sought to rely on a Notice of Contention pursuant to r 125 of the Personal Injury Commission Rules 2021 (the Rules) (albeit no document was in fact filed) and to make an application pursuant to r 6 that compliance with r 125(2)(a) of the Rules be dispensed with.
The respondent’s contention being:
“Member Philip Young’s decision on 25 October 2021 in a Certificate of Determination (Matter Number: W3975/21) should be affirmed on the basis that the Respondent worker suffered a disease injury pursuant to Section 4(b)(i) that is contracted in the course of employment.”[24]
[24] Respondent’s submissions dated 6 July 2022, [4].
Thereafter the respondent made further submissions on the issue of the main contributing factor to contracting the disease pursuant to s 4(b)(i) of the 1987 Act. As those submissions are largely repetitive of that which was previously submitted in support of Ground Two (which I address below), it is unnecessary to set these out again.
The appellant correctly pointed out that there was in fact no formal Notice of Contention filed. There is in fact no form of Notice of Contention. Notwithstanding, the appellant proceeded on the assumption that the respondent’s grounds of contention were set out in [4] and [5] of the submissions.
The appellant accepts that the disease in question fell within the ambit of s 4(b)(i) of the 1987 Act for the reasons previously outlined in its primary submission dated 19 November 2021. The issue from the point of view of the appellant was whether or not the employment was the main contributing factor to the disease being contracted.
The appellant then to a substantial extent reiterated its previous submissions.
The only submission necessary to repeat at this point is the following:
“To the extent that the statements by Dr Wykes and Dr Lobel can be said to support the proposition that employment exposure to sunlight is the main contributing factor to the contraction of squamous cell carcinoma, they are without explanation and should be given little weight.
In contrast, significant weight should be given to the opinion of A/Prof Shumack.”[25]
[25] Appellant’s submissions dated 13 July 2022, [16]–[17].
In substance, the appellant’s submission on the main contributing factor as it is contained in the additional submission in response to the Notice of Contention is that the Member attached undue weight to the opinions of Drs Wykes and Lobel, and insufficient weight to the contrary opinion of A/Prof Shumack.

Consideration: Ground One and the Notice of Contention

The appellant’s nuanced argument in support of Ground One is summarised by the final proposition at [27] of the submissions, namely:
“The medical evidence pointed strongly to injury falling within the ambit of s 4(b)(i). The Member’s categorisation of the injury as a disease pursuant to s 4(b)(ii) is flawed and unexplained. It demonstrates clear error of fact and law on his part.”
Ignoring for the present the issue of whether the employment was the main contributing factor (the subject of Ground Two of the appeal) the appellant’s contention, if accepted, would make no difference to the outcome of the dispute.
Section 4 of the 1987 Act provides a definition of “injury”. In Booth Leeming JA (Bell P White JA agreeing) makes the point that s 4(b) is concerned with the definition of injury providing that the two limbs distinguish between diseases which are contracted during the course of employment and diseases which are aggravated, accelerated, exacerbated or deteriorate by reason of the employment. The worker establishes injury if he satisfies either limb.
In this matter, on the appellant’s submissions, if Ground One of the appeal were to be upheld the respondent would nevertheless have established that he had sustained an injury within the definition of injury in s 4(b) albeit on the basis that the “injury” was “a disease that is contracted by a worker in the course of employment”. The appellant’s point is that the Member should have found that the worker satisfied s 4(b)(i) rather than, as found by the Member, s 4(b)(ii).
The respondent worker’s contention at [28] of his submissions makes the same point.
Dr Lobel’s evidence in the report dated 29June 2021 is:
“In my opinion the sun exposure which Mr Manning received during the course of many years of fully outdoor employment was the main contributing factor to his contracting the squamous cell carcinoma of his left cheek and would have constituted an aggravation and acceleration of the skin damage leading to the development of a squamous cell carcinoma in the course of his employment.”
The Member seems to have based his conclusion squarely on that passage from Dr Lobel.[26]
[26] See [26] of the reasons.
Dr Lobel’s report of 7 October 2020 makes a distinction between the “skin damage” and the SCC. Under the heading of “Diagnosis” Dr Lobel says:
“Actinic (solar induced) skin damage with secondary aggressive squamous cell carcinoma (SCC) and metastases.”[27]
[27] ARD, p 149.
Later in the report:
“A substantial proportion of the actinic (solar induced) skin damage in Australian adults is acquired during that person’s childhood and teenage years. However, 33 years of outdoor work would, in my opinion, be a substantial and main contributing factor to the development of Mr Manning’s aggressive SCC.”[28]
[28] ARD, p 150.
The second passage, when read in the context of the earlier passage, is saying the “33 years of outdoor work” acting upon the skin damage is the substantial and main contributing factor to the SCC.
In the report dated 16 April 2020, in response to question 7, A/Prof Shumack gives the following answer:
“Is the condition an injury or aggravation, acceleration, exacerbation or deterioration of an injury?
Yes.”[29]
[29] Reply, p 61.
That response seems to coincide with Dr Lobel’s opinion. The condition diagnosed by A/Prof Shumack in answer to question 6 is:
“Aggressive squamous cell carcinoma involving the left cheek associated with perineural spread and involvement of a significant area of the right cheek.”[30]
[30] Reply, p 61.
In his report dated 14 July 2020 A/Prof Shumack in answer to a very long question says this:
“In other words, I believe that the worker’s skin cancer condition is a disease which was substantially aggravated, accelerated, exacerbated or deteriorated in the course of employment.”[31]
[31] Reply, p 70.
The analysis supports the Member’s conclusion. In any event, I am not persuaded that the Member was in error when he concluded at [35] of the reasons that the respondent’s employment between approximately 1986 and 15 May 2019 working outdoors exposed to ultra-violet radiation resulted in acceleration or exacerbation of damage to the respondent’s skin and that the injury was properly classified as an aggravation of an underlying disease condition. Furthermore, I think that conclusion is supported by A/Prof Shumack’s opinion.
It is now apparent, from the parties’ additional submissions, that the real matter at stake in the appeal concerns the “main contributing factor” issue.
For the reasons given above, I am not persuaded that the Member committed an appealable error in relation to his determination that Mr Manning suffered a disease injury within the meaning of s 4(b)(ii). It follows that in absence of this error, the assertion made in the respondent’s Notice of Contention does not require determination.
For these reasons Ground One of the appeal is rejected.

Ground Two: That the Member erred in his treatment of the medical evidence and his conclusion that employment was the main contributing factor within the meaning of s 4(b) of the 1987 Act

Appellant’s submissions

The appellant submits that the Member did not discuss “the finer details” of how one interprets “the main contributing factor” as it is used within s 4(b). The Member clearly determined the issue on the basis that the main contributing factor was the most causally potent factor.
The appellant accepts[32] that for the purpose of considering the main contributing factor regard has to be had to the entire period of the worker’s life and that the Member did have regard to this in his consideration for the purpose of Mr Manning’s case.
[32] Appellant’s submissions, [30].
Dr Wykes did not assess relative exposure in percentage terms whereas both Dr Lobel and A/Prof Shumack did. Dr Lobel said 90% was attributable to the employment related exposure and 10% to childhood and teenage exposure. A/Prof Shumack attributed 50% to childhood and teenage exposure, 20% to outdoor recreational exposure and 30% to workplace exposure.
The appellant’s submission is that the Member’s reasons for rejecting A/Prof Shumack’s opinion were unsound and the rejection of A/Prof Shumack’s opinion was in error for various reasons.
The submission proceeds by identifying the reasons given by the Member for rejecting the opinion. Firstly, the Member took the view that A/Prof Shumack provided no detailed explanation concerning the worker’s specific exposure; secondly, the conclusion that the worker would be protected from the radiation in the various tractor cabs was unsupported by scientific analysis, and thirdly, the Member was of the view that A/Prof Shumack effectively ignored over 20 years of the respondent’s working life.
The appellant challenges these conclusions. It says A/Prof Shumack, in the 16 April 2020 report, outlined the outdoor activities in childhood and teenage years not in painstaking detail, but “sufficient to identify the matters he took into account.”[33] A/Prof Shumack refers to the fact that during the 1970s sunscreens were not commonly available. This is expanded in the report dated 10 August 2021 where A/Prof Shumack discusses the efficacy of sunscreens in the sixties and seventies, indicating that no improvement was made until the mid-1980’s.
[33] Appellant’s submissions, [35].
The appellant says the scientific paper to which A/Prof Shumack drew attention “evidence[d] the reason for the conclusions drawn”.[34]
[34] Appellant’s submissions, [37].
Contrary to the Member’s statement, A/Prof Shumack “also provided some meaningful insight into the protection afforded by tractor cabs against radiation” namely that tinted glass provided good total protection from UVA and UVB; non-tinted glass provides more limited protection from UVA but almost complete protection from UVB. UVB is the wavelength most related to the development of skin cancers.[35]
[35] Appellant’s submissions, [39].
The criticism made by the Member that A/Prof Shumack somehow arrives at a limited six-year work exposure rather than 33 years to support his conclusion is said by the appellant to be entirely inaccurate and inconsistent with the observations of the Member at [30] where he makes reference to the rationale behind A/Prof Shumack’s conclusion. At page 5 of the report, A/Prof Shumack refers to his earlier report in which he makes it quite clear that the six years he considers significant during the worker’s employment relates to the first six years when he had significant sun exposure (without protection) while performing outdoor work and driving tractors with limited cover over the cab.

The appellant submits:
“The proposition that A/Prof Shumack provided no explanation for emphasising 6 years of occupational sun exposure is, quite simply, wrong and the terms of the Member’s decision suggest he overlooked what A/Prof Shumack had to say on the subject.”[36]
[36] Appellant’s submissions, [42].
The appellant complains that the Member does not apply the same depth of analysis and rigour to the opinions expressed by Drs Lobel and Wykes.
The appellant submits that Dr Lobel’s attribution of 90% of sun damage to employment is based on a misunderstanding of the Workers Compensation Guidelines for the Evaluation of Permanent Impairment.
The appellant challenges the Member’s stated reliance on a commonsense approach:
“47.   … In any event, the Member’s subjective concepts of commonsense are a very shaky barometer for assessing medical evidence, particularly having regard to the forensic contest which was before him.
48.    Otherwise, at [33], the Member gives some pre-eminence to the views of Dr Wykes because he was a treating doctor. There is, however, nothing in the fact that Dr Wykes treated the worker which, on the face of it, enables him to provide any more informed opinion on matters of causation particularly in the absence of any suggestion that A/Prof Shumack misunderstood the relevant history.
49.    The Member’s conclusions in relation to the medical evidence and his preference for the views of Dr Lobel and Dr Wykes over A/Prof Shumack are unacceptably one-sided and so affected by ignored evidence and inaccuracy that they constitute error warranting appellate intervention.”

Respondent’s submissions

The respondent cites the reasoning of Deputy President Snell in AV v AW[37] at [78] that the test of main contributing factor is one of causation involving consideration of the evidence overall, “not purely a medical question.” It involves an evaluative process.
[37] [2020] NSWWCCPD 9 (AV v AW).
The respondent submits that the Member was correct to place weight on the respondent’s lay evidence and to conclude that:
“The difficulty in accepting these percentage contributions is that there is no detailed explanation in A/Prof Shumack’s reports concerning the [respondent’s] specific exposure.”[38] (emphasis by the respondent)
[38] Reasons, [32].
The Member explained his reasoning for finding main contributing factor in paragraphs [32] and [33] and so the respondent submits:
“In doing so, the Member has evaluated the totality of the lay and medical evidence and considered the causal factors to the aggravation, both work and non-work related, albeit succinctly.”[39]
[39] Respondent’s submissions, [42].
The respondent submits:
“Section 4(b) does not require an assessment of main contributing factor in percentage terms. The question is whether employment is the main contributing factor or not. Dr Wykes repeatedly comments that employment is the main contributing factor”.[40]
[40] Respondent’s submissions, [47].
The respondent then refers to passages from Dr Wykes at pp 145, 146 and 154 of the ARD.
The respondent points out that there was no expert evidence before the Member as to the UV rating of the glass used in the tractors the respondent drove.
The respondent does not accept that the Member was in error in his assessment that A/Prof Shumack only had regard to a six-year work exposure.
The respondent says:
1.     the appellant has not articulated the evidence that the Member supposedly ignored;
2.     the appellant has not shown what material facts the Member overlooked;
3.     the Member has clearly stated that the claim that the respondent would be protected from radiation in various tractor cabs is unsupported by any scientific analysis and ignores over 20 years of the respondent’s work experience;
4.     preference for one medical opinion over another does not constitute error warranting appellate intervention;
5.     there is little evidence of the respondent worker’s adult exposure in non-employment circumstances;
6.     the respondent submits that the weight of the evidence is a matter for the Member unless the finding is so against the weight of evidence that some error must have been involved.[41]
[41] Citing Shellharbour City Council v Rigby [2006] NSWCA 308, [144].
The respondent submits that the Member’s findings were neither wrong nor against the weight of evidence and therefore there is no basis for the Commission to interfere.
As to the commonsense approach, the respondent relies upon Kooragang Cement Pty Limited v Bates[42] and Nicolia v Commissioner for Railways (NSW).[43]
[42] (1994) 35 NSWLR 452.
[43] (1971) 45 ALJR 465, [466].

Appellant’s submissions in reply

The appellant submits that the gravamen of Ground Two of the appeal is the Member’s misunderstanding and/or misquoting of A/Prof Shumack’s opinions.
The appellant’s position is that the Member had to consider all of the evidence but that the Member:
(a)     suggested A/Prof Shumack provided no detailed explanation as to the [respondent’s] sun exposure, whereas in fact he did;
(b)     takes the view that A/Prof Shumack provided no scientific analysis to support the proposition that the [respondent] would have been protected from radiation in the various tractor cabs, when in fact, A/Prof Shumack specifically addressed the level of protection afforded by tractor cabs, and
(c)     says that A/Prof Shumack effectively ignored 20 years of the [respondent’s] work experience whereas A/Prof Shumack did not ignore any of the [respondent’s] employment but rather explained at some length why he placed particular emphasis on the first six years of that employment.[44]
[44] Referring to the appellant’s primary submissions at [41]–[42], described at [92]–[93] above.
The appellant complains that the respondent ignores its complaint that Dr Lobel’s division of causal contribution based on the deductible portion used for the evaluation of the permanent impairment was inapt and given that this was the basis of Dr Lobel’s assessment of the main contributing factor it is an error of some moment.
The appellant submits that the respondent does not provide any justification for the pre-eminence afforded by the Member to the opinion of Dr Wykes.
The Member did not reject the evidence of A/Prof Shumack but rather failed to advert to it or otherwise misquoted it.
The appellant presses its submission that the Member’s so-called application of commonsense leads to uncertainty and unreliability of the Member’s conclusion as to causation.
It is the appellant’s submission that the complex scientific and medical issues which divide the parties cannot be determined by common knowledge and ordinary human experience.

Consideration

In AV v AW Snell DP provided a detailed analysis of the test for main contributing factor. The Deputy President said that the test involved the broad evaluative consideration of potential competing causative factors which should be decided on the evidence overall and was not purely a medical question. The Deputy President quoted other decisions, in particular:
“In El Achi Roche DP, considering the application of the test in s 4(b)(ii) in its current form, said:
‘That a doctor does not address the ultimate legal question to be decided is not fatal … In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.’”[45] (emphasis added by Snell DP)
[45] AV v AW, [71], citing State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71.
Deputy President Snell said:
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”[46]
[46] AV v AW, [77]–[78].
In the present matter the Member addressed the issue of causation in several paragraphs, namely [25]–[26] and [28]–[33].
Drs Wykes and Lobel plainly accepted that the outdoor work with the appellant was the main contributing factor to Mr Manning’s skin damage and ultimate carcinoma. That was, notwithstanding Dr Lobel’s reference to the deductible proportion, overwhelmingly an evaluative conclusion by the two doctors.
The appellant’s complaint is that the Member was wrong to reject the evidence of A/Prof Shumack contained in response to question 11 of the report of 14 April 2020.
In my view, the rejection of A/Prof Shumack’s opinion is based on the Associate Professor’s failure to relate the opinion to the respondent’s specific exposure.[47]
[47] Reasons, [30].
The Member relied upon Dr Wykes’ evidence for the specific reason that Dr Wykes “has treated the [respondent] over many years and would be more alert to the nature and extent of the [respondent’s] history of ultraviolet exposure”.[48] (emphasis added) That is a sound basis for the preference for Dr Wykes’ assessment, derived as it doubtless was from his contemporaneous interaction with Mr Manning as a patient for the purpose of treatment.
[48] Reasons, [33].
The Member specifically said, at [33] of the reasons, that the Associate Professor’s reliance on the six-year exposure stands in contrast to the respondent’s evidence and does not detail any factual basis on which he bases his chosen percentages.
The appellant’s reliance upon the abstract from the article is in my view misplaced. The abstract provides as follows:
“Data about the amount of solar UV received by children and teenagers are relatively few but suggest that around 40–50% of total UV to age 60 occurs before age 20. Among white children, those with the palest complexions suffer the most damage.”[49]
[49] Reply, p 82.
However, the article’s detail is different. The authors of the article say:
“Hours of sun exposure are a crude surrogate for amount of latitude-dependent solar UV exposure which is far more difficult to estimate … Although childhood and teen years represent only 33% of the lifetime to 60, McBride (2009) estimated that the Nambour study cohort before age 20 had received around 50% of their total UV exposure to age 60. This estimate is broadly consistent with two other studies in southeast Queensland (Parisi et al., 2000, 1999) but differs materially from the approximate 25% before age 20 years of life exposure (to age 77) that was found for a Danish volunteer population (Thieden et al., 2004) ... In a model proposed by Stern et al. (1986) the base case assumption was that around 50% of lifetime UVR exposure was received before age 18 for an American (Stern et al., 1986) which is closer to the more rigorous Australian estimate than the Danish.
Thus in general the evidence suggests that annual exposures in childhood and early adulthood are similar and exceed middle adulthood (Parisi et al., 1999). As in all stages of life, before age 20 females spend less time in the sun than males, though the sex difference is less before age 20 than after (Gies et al., 1998; Godar, 2005).”[50] (emphasis added)
[50] Reply, pp 83–84.
Accordingly, the opinion expressed in the article is materially different from the conclusion expressed in the abstract. More importantly, it is patent from a consideration of the article that no direct translation can be made as A/Prof Shumack and the appellant attempt. The fact that from various studies certain statistical conclusions can be drawn, with respect, does not translate in an assessment with respect to the circumstances of any particular patient.
The difficulty with A/Prof Shumack’s conclusion, as is pointed out by the Member, is that there is no detailed explanation in A/Prof Shumack’s reports relating the percentage contributions to the respondent’s specific exposure. A general conclusion that childhood and teenage exposure may be 40–50% says nothing at all about Mr Manning’s particular exposure.
Furthermore, the Member was correct when he suggested that there was no scientific analysis for the conclusion that only the first six years of the respondent’s exposure in the course of employment was relevant.
As is clear from the appellant’s submissions in response to the Notice of Contention paragraphs [16] and [17] quoted at [65] above, the appellant’s complaint is that the Member attached weight to the opinions of Drs Wykes and Lobel and insufficient weight to the opinion of A/Prof Shumack. For the reasons given above, I do not accept that submission.
In my view, the Member was entitled to rely upon the evidence of Drs Lobel and Wykes and is not shown to have been in error in his rejection of the evidence of A/Prof Shumack.[51]
[51] Raulston v Toll Pty Limited [2011] NSWWCCPD 25; 10 DDCR 156
The Member’s finding that the respondent’s employment was the main contributing factor to the injury was based on the evidence available to him to be accepted. That he did so does not amount to error.
Ground Two of the appeal is rejected.

Ground Three: That the Member erred in failing to provide adequate reasons

Appellant’s submissions

The appellant submits that there will be a failure to give adequate reasons where the decision maker ignores evidence critical to an issue and contrary to assertion(s) of fact made by one party and accepted by the decision maker, citing Mifsud v Campbell.[52] It quotes from the decision in Tudor Capital Australia Pty Limited v Christensen[53] to the effect that “[t]he decision maker [is] obliged to consider the evidence in a manner which entailed a rational analysis of the issues and to provide reasons to demonstrate and explain that such analysis occurred.”[54]
[52] (1991) 21 NSWLR 725, 728.
[53] [2017] NSWCA 260, [389]–[390].
[54] Appellant’s submissions, [52].
The appellant then submits that for the reasons articulated with respect to Ground One of the appeal, the Member failed to explain and provide a rational analysis for concluding that the injury fell within s 4(b)(ii) of the 1987 Act.
The appellant says that there was “certainly no rational analysis by the Member of the evidence informing categorisation of the injury, let alone any insight into how the Member viewed the pathological process by which the injury was contracted or aggravated.”[55] (appellant’s emphasis)
[55] Appellant’s submissions, [55].
The appellant complains that the Member ignored the substance of most of the evidence of Drs Lobel and Wykes, preferring to focus on reasons for rejecting the views of A/Prof Shumack.
It says that this was not an even handed analysis of the evidence and that by reference to Beale v Government Insurance Office of NSW,[56] the Member was required to refer to relevant evidence and in the absence of reference to “certain evidence” of importance or critical to the proper determination of the matter “an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it.”[57]
[56] (1987) 48 NSWLR 430 (Beale), 443–444.
[57] Appellant’s submissions, [59].
In the present matter, the appellant says the Member failed to:
“(a)    refer to the worker’s medical evidence in any detail,
(b)     discuss Dr Lobel’s methods of apportionment which were seemingly, or at least arguably, based on irrelevant criteria,
(c)     refer to the substance of the article which strongly supported A/Prof Shumack’s conclusion,
(d)     deal with the evidence provided by A/Prof Shumack which answered the Member’s criticisms,
(e)     refer to the less reasoned evidence of Dr Lobel in relation to the efficacy of windscreens filtering the effects of UVA and UVB waves, and
(f)     advert to the absence of any scientific justification provided for Dr Wykes’ views on causation.”[58]
[58] Appellant’s submissions, [60].
Finally, the appellant submits that the Member was wrong to apply his own test of common sense without explaining what informed that test, in the face of expert opinions on the subject not providing any indication of why he considers this common sense test is the correct approach in the circumstances.

Respondent’s Submissions

The respondent submits that the appellant has not established error with respect to the adequacy of the reasons. The respondent submits:
“The Member has not preferred one medical opinion over another, but rejected A/Prof Shumack’s on the basis that:
(a)There is no detailed explanation of A/Prof Shumack’s reports concerning the [respondent’s] specific exposure [at 32]
(b)The claim that the [respondent] would be protected from radiation in the various tractor cabs is unsupported by any scientific analysis and ignores effectively over 20 years of the [respondent’s] work experience [at 32]
(c)The percentages seem to be somewhat arbitrary and arrived at without any specific analysis of the particular exposures to sun experienced by this particular [respondent] [at 32]
(d)A/Prof Shumack’s reliance on a six year exposure stands in contrast to the [respondent’s] evidence and does not detail any factual basis on which he bases his chosen percentages [at 33]
(e)The employment need not be the ‘main contributing factor to the pathology, only the main contributing factor to the aggravation’ [34].”[59]
[59] Respondent’s submissions, [61].
The respondent makes the following submission:
“The Respondent submits that the Member correctly dismissed Dr Shumack’s opinion. The Respondent submits that there was then only one conclusion available on the expert evidence, that employment was the main contributing factor to the aggravation of the disease.
The [respondent] submits that there was no medical or lay evidence to support a finding that exposure outside the workplace concurrently aggravated or caused the [respondent’s] condition.”[60]
[60] Respondent’s submissions, [64]–[65].

Appellant’s submissions in reply

The appellant submits that the [respondent] does not answer the complaints raised by the appellant’s primary submissions in relation to the contended failure to give reasons. Otherwise, the appellant directs attention to its primary submissions at paragraphs [50] to [61].

Consideration

The substance of the Member’s reasoning focussed on the medical issue in dispute between the parties. His analysis is to be found at paragraphs [25] to [34] of the reasons. I have set out above at [19] and [20] the critical passages from the reasons.
It is true that Meagher JA in Beale set out the obligation to provide reasons for a decision; the purpose of providing reasons for decision and the content of an adequate statement of reasons, including the passage relied upon by the appellant at [59] of its submissions. It is unnecessary to set out the passages from the judgment in Beale in any detail.
It is important, however, to note what Meagher JA said in two further passages, namely:
“Whilst it is desirable to address these elements in giving reasons for decision, it is the purpose which the reasons serve which assumes primary importance in determining the content of the reasons. That purpose must be weighed against other considerations. It has been noted by this court that the content required of a statement of reasons is to be measured against the burden that the provision of reasons imposes on the judicial system: Sincik v Tess (Court of Appeal, unreported, 15 March 1995). The reason for this is that the giving of overly elaborate reasons can serve to undermine public confidence in the judiciary and in the judicial system in the same way that insufficient reasons can. On the one hand, the provision of inadequate reasons can lead to a sense of injustice and a reduced appreciation or understanding of legal rights and obligations. On the other hand, an overly onerous duty to provide reasons increases costs and delay in the judicial system which has the effect of undermining public confidence in the judicial system … In the end, the balancing act which needs to be undertaken in considering the sufficiency of a statement of reasons involves the adoption of, at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal.”[61]
[61] Beale, 444.

The second passage of importance appears on the same page and is as follows:
“It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to these situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered.”[62]
[62] Beale, 444.
In my view, the Member’s statement of reasons adequately fulfils the primary function of reasons as identified by Meagher JA, namely, sufficient to enable the parties to understand why the decision has been made and to allow the parties to exercise any right of appeal.
Furthermore, given that the only substantial issue between the parties is embodied in Ground Two of the appeal relating to the determination of the main contributing factor in respect of which the dispute was crystallised in the differing views of Drs Wykes and Lobel on the one hand and A/Prof Shumack on the other, it is difficult to see how more extensive reasons were required.
The critical issue was why the Member rejected A/Prof Shumack’s view in respect of which substantial reasons were given. In the context of the evidence before the Member, once the conclusion was reached that A/Prof Shumack’s conclusion was based on his assumed percentage of exposure during childhood and teenage years of 50% was rejected, the outcome preferring the views of Drs Wykes and Lobel was inevitable.
As I understand it, there was no objection from the appellant to the admission of the reports from Drs Wykes and Lobel. That meant that those reports were before the Member. The acceptance of that evidence in circumstances where there were rational and cogent reasons for rejecting A/Prof Shumack’s conclusions does not demonstrate error in the adequacy of the reasons.
There is a difference between reasons which are subject to challenge as being wrong and the failure to give reasons at all or to give inadequate reasons. The appellant challenged the conclusions of the Member in Ground Two on the basis of the reasons expressed by the Member for rejecting A/Prof Shumack’s report. I have found that challenge fails. That is not a ground of appeal based on the adequacy of reasons, that is an appeal based on demonstration of an error as manifested in the reasons.
The reasons given by the Member were relied on by the appellant to show error. It follows that the reasons were sufficient to satisfy the requirements for reasons on the part of the Commission, namely that the reasons should demonstrate the Member’s reasoning sufficient for the parties and the appeal court to understand the basis of the decision.
In relation to Ground One of the appeal, the challenge is again based on the reasons expressed and while in the event the challenge in Ground One was otiose, the appellant was nevertheless able to ventilate the complaint by reference to the Member’s expressed reasons.
In my view, the Member’s reasons were adequate and Ground Three of the appeal is rejected.

CONCLUSION

The appeal fails.
The Certificate of Determination dated 25 October 2021 is confirmed.

Geoffrey Parker SC
Acting Deputy President

31 August 2022