Megson v Staging Connections Group Ltd - [2019] NSWWCCPD 2

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Megson v Staging Connections Group Ltd [2019] NSWWCCPD 2
APPELLANT:	Aaron Megson
RESPONDENT:	Staging Connections Group Ltd
INSURER:	AAI Ltd t/as GIO
FILE NUMBER:	A1-1842/18
ARBITRATOR:	Ms R Homan
DATE OF ARBITRATOR’S DECISION:	9 August 2018
DATE OF APPEAL DECISION:	24 January 2019
SUBJECT MATTER OF DECISION:	Alleged factual error – application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, weight of evidence, test of causation, application of Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396 in workers compensation matters
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Turner Freeman Lawyers
Respondent:	HWL Ebsworth Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s decision dated 9 August 2018 is confirmed.

INTRODUCTION AND BACKGROUND

Aaron Megson (the appellant) suffered injury to his left knee on 10 August 2015, when he twisted it while lifting a piece of stage equipment, in the course of his employment with Staging Connections Group Ltd (the respondent). The appellant had some treatment that was paid for by the respondent’s insurer, and he was “able to continue working”.[1] The appellant suffered an aggravation of the problem following an incident at home in June 2017.[2] Dr Gursel, orthopaedic surgeon, saw the appellant in July 2017, and recommended surgery to the left knee.[3]
[1] Appellant’s statement dated 8 March 2018, [12]–[14] (Application to Resolve a Dispute [ARD], pp 51–52), Application to Admit Late Documents 28 June 2018 (AALD 28.6.18), p 6.
[2] ARD, p 52.
[3] ARD, pp 5–6.
The respondent obtained a medicolegal report dated 18 August 2017 from Professor Miniter, orthopaedic surgeon. The respondent declined liability for the proposed surgery in s 74 notices dated 29 August 2017 and 20 February 2018.[4] The reasons for the declinature were not clearly expressed. The earlier notice identified that the appellant did “not continue to suffer from any injury”, and that the injury on 10 August 2015 “is no longer causing you any incapacity for work”.[5] The matter was conducted before the Arbitrator on the basis that “the surgery proposed is reasonably necessary”, but that there was an issue regarding “whether the surgery is reasonably necessary as a result of the 10 August 2015 injury”.[6]
[4] ARD, pp 40–45 and 46–48.
[5] ARD, p 41.
[6] Transcript 12 July 2018 (T), 1.39–2.2.
This appeal is against a decision that the cost of the proposed surgery was not compensable, as it was not proved that the surgery resulted, in the relevant sense, from the injury on 10 August 2015. References in this appeal, to the appellant’s appeal documents, are to the “Further Amended Appeal Against Decision of Arbitrator” lodged on 11 October 2018. The submissions attached to that appeal document are apparently incomplete, and references to the appellant’s submissions are to the submissions in support, also lodged by the appellant on 11 October 2018.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The appellant requests an oral hearing. It submits this will “assist the Commission in the determination”, and “ensure that the Commission has before it sufficient information to determine the appeal”.[7] The respondent submits the appeal can be dealt with ‘on the papers’.[8] The appellant’s submissions do not identify any further information or submissions which it seeks to address at an oral hearing, or why these could not be appropriately dealt with in the written material. I have the evidence that was before the Arbitrator, transcript of the parties’ submissions made before the Arbitrator, and the parties’ submissions on the appeal, including those of the appellant in reply.
[7] Appellant’s submissions, [4].
[8] Respondent’s submissions, [3]–[10].
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submission by the respondent that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing. This is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time in ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

THE ARBITRAL PROCEEDINGS AND REASONS

The matter was listed for arbitration hearing on 12 July 2018. The appellant was represented by Ms Grotte instructed by Mr Power, and the respondent by Mr Beran instructed by Mr Lehmann. The matter proceeded on the written material, there were no applications to adduce oral evidence or to cross-examine. The Arbitrator rejected the tender by the appellant (which was opposed) of a supplementary report of Dr New dated 5 July 2018, for which she gave short oral reasons.[9] Counsel addressed, and the Arbitrator reserved her decision.
[9] T 5.8–6.30.
A Certificate of Determination was issued dated 9 August 2018, accompanied by 16 pages of reasons.[10] There was an award for the respondent.
[10] Megson v Staging Connections Group Ltd [2018] NSWWCC 187 (reasons).
The Arbitrator said it was common ground that the Commission lacked jurisdiction to order payment of the cost of the surgery, due to the operation of s 59A of the 1987 Act. She said it was agreed that, should the appellant succeed, the approach in Flying Solo Properties Pty Ltd v Collet[11] should be followed.[12] The Arbitrator summarised the evidence of the appellant,[13] the treating doctors,[14] Dr New (the appellant’s qualified medico-legal doctor)[15] and Professor Miniter (the respondent’s qualified medicolegal doctor).[16] She noted, from the insurer’s records, that weekly payments were made from 11 to 12 August 2015.[17] She summarised the submissions of the respondent[18] and the appellant.[19]
[11] [2015] NSWWCCPD 14; 16 DDCR 223.
[12] Reasons, [6].
[13] Reasons, [12]–[18].
[14] Reasons, [19]–[32].
[15] Reasons, [33]–[39].
[16] Reasons, [40]–[49].
[17] Reasons, [50].
[18] Reasons, [51]–[63].
[19] Reasons, [64]–[72].
The Arbitrator referred to a frequently applied passage from Kirby P in Kooragang Cement v Bates,[20] and to the review by Roche DP, in Murphy v Allity Management Services Pty Ltd,[21] of the authorities and the principles governing issues of causation.[22]
[20] (1994) 35 NSWLR 452 (Kooragang), 462–463.
[21] [2015] NSWWCCPD 49 (Murphy).
[22] Reasons, [74]–[75].
The Arbitrator turned to analyse the medical evidence. She described the contemporaneous medical evidence, dealing with the injury on 10 August 2015, as “sparse”. There were no medical records or reports from the treating practitioners at the time. There were three certificates from Dr Silver,[23] the general practitioner at the time, and a referral by the same doctor for an MRI scan.[24] There was a referral by Dr Kuo, an orthopaedic surgeon, dated 22 September 2015 for physiotherapy.[25] The Arbitrator said that it was “not possible to discern from those materials a clear diagnosis”. Dr Silver’s certificates simply referred to a “knee injury”, and Dr Kuo referred to a “patellofemoral injury”. The Arbitrator noted no report was in evidence from the MRI scan undertaken on 11 August 2015. The medicolegal doctors qualified in 2017, Dr New and Professor Miniter, described it as showing “significant pathology”. Dr New did not comment on what part of the pathology was attributable to the injury on 10 August 2015. Professor Miniter said the scan showed “long standing degenerative change”, and no “convincing evidence” of recent acute injury.[26] Dr Gursel, in 2017, described the “imaging from two years ago” as showing “a loose body in his knee, a moderate sized effusion and patellofemoral problems”. Dr Gursel described the appellant as having “dislocated his left patella on 10 August 2015”, the basis of this was “unclear”.[27]
[23] ARD, pp 31–39.
[24] ARD, p 7.
[25] ARD, p 9.
[26] Reasons, [77]–[78].
[27] Reasons, [79].
The Arbitrator said she was satisfied that the appellant suffered a twisting injury involving an acute popping sound and felt his knee “come apart” on 10 August 2015. The injury was “significant”. She said she was “not comfortably satisfied as to the precise diagnosis of the injury or that the patella was dislocated”.[28] The Arbitrator said there was no evidence that the left knee was symptomatic prior to 10 August 2015, and the appellant performed “relatively strenuous physical work” prior to 10 August 2015. She accepted that the “left knee was asymptomatic previously”. She noted Professor Miniter’s “firmly expressed” view, based on the MRI scan, that there was “pre-existing pathology in the knee”. She made a finding that the injury on 10 August 2015 rendered symptomatic or aggravated that pre-existing pathology.[29]
[28] Reasons, [80].
[29] Reasons, [81].
The Arbitrator said there was “uncertainty as to when or if the aggravation resolved”. There was evidence of medical treatment up to December 2015, but no evidence of treatment subsequently, until after the “incident” in mid-2017. The appellant, in his evidence and medical histories, said there was chronic pain, swelling and giving way from time to time after the injury on 10 August 2015. He did “not claim to have sought treatment” during the period from December 2015 to June 2017, and the Arbitrator was “not satisfied that treatment was given”. This suggested that “any ongoing pain, swelling or instability, if it existed, was relatively minor”. The appellant told Professor Miniter “that the knee functioned satisfactorily”. The appellant returned to work, albeit in “a less physically demanding job”. The Arbitrator said the evidence suggested “a significant improvement in symptoms to the point that no further treatment was necessary”.[30]
[30] Reasons, [82]–[83].
The Arbitrator then turned to the “incident in June 2017”.[31] She referred to various histories of what was involved. Dr Lee’s note to Dr Gursel, on 23 June 2017, described “a recent exacerbation of pain after jumping over wet tiles, landing awkwardly on his left leg ? pivot shift”.[32] Dr Gursel’s note dated 19 July 2017 included “slipped on tile towards left”.[33] Dr New’s history referred to the appellant having “slid on wet tiles”.[34] Professor Miniter described the appellant as having slipped.[35] The appellant’s lay evidence was of “his knee suddenly giving out as he stepped over a puddle on the floor”.[36]
[31] This is in some places described as July 2017, but see ARD p 10.
[32] ARD, p 10.
[33] ARD, p 18.
[34] ARD, p 2.
[35] Reply, p 2.
[36] Reasons, [84].
The Arbitrator quoted from the judgment of Basten JA in Mason v Demasi,[37] dealing with the caution to be exercised when dealing with “apparent inconsistencies” in accounts given to health professionals. She said that she approached the inconsistencies in the evidence dealing with the incident in June 2017 with caution. She said that the appellant’s “evidence stands apart from the histories taken by all the medical practitioners”. She was not satisfied the appellant “merely placed his foot down and felt his knee give way”. She was satisfied “there was some sort of twisting action or awkward landing, contributed to by the wet tiles”.[38]
[37] [2009] NSWCA 227 (Mason), [2].
[38] Reasons, [84]–[86].
The Arbitrator described the incident as “significant”, “it prompted a consultation with Dr Lee, a referral to Dr Gursel and a further MRI”. The doctors agreed there was a progression of the pathology, comparing the 2015 and 2017 scans. It was after the 2017 incident that surgery was recommended.[39] The Arbitrator said:
“88. Both Dr Gursel and Dr New have given opinions that the work injury on 10 August 2015 remained a ‘major’ or ‘substantial’ contributing factor to Mr Megson’s current condition and thus the need for surgery. Unfortunately, neither Dr Gursel nor Dr New has given any explanation for why they have reached this conclusion. Nor have they given any reasoning as to the relationship between the 2015 injury and the 2017 incident.
89. A/Prof Miniter on the other hand has provided relatively more detailed reasoning in support of his contrary opinion. On the grounds that the 2015 MRI scan findings were consistent with long standing pathology, despite having been taken almost immediately after the injury, A/Prof Miniter found in his first report that the original injury was ‘not a substantial contributing factor’ to the current presentation.”
[39] Reasons, [87].
The Arbitrator correctly observed that Professor Miniter “did not consider or apply the correct test”, which was whether “the 2015 injury materially contributed to the need for surgery”. She said that her analysis revealed “flaws in the medical evidence relied on by both parties”. She referred to Nguyen v Cosmopolitan Homes,[40] where McDougall J (McColl and Bell JJA agreeing) said:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact.”[41]
[40] [2008] NSWCA 246 (Nguyen).
[41] Nguyen, [44].
The Arbitrator made an ultimate finding of fact:
“In circumstances where there is no diagnostic clarity around the injury in 2015; no contemporaneous medical evidence of ongoing symptoms and no treatment for approximately 18 months prior to the June 2017 incident; a significant incident at home in June 2017; a material progression of the pathology identified in the MRI taken after the June 2017 incident; and no reasoning or explanation from Dr New or Dr Gursel as to how the 2015 injury either contributed to the 2017 incident or the current condition; I am not satisfied to the standard referred to in Nguyen that the 2015 injury has materially contributed to the present need for surgery.”[42]
[42] Reasons, [95].

GROUNDS OF APPEAL

The following grounds of appeal are raised:
(a) The Arbitrator ignored the relevance to the material contribution question of the appellant’s unchallenged evidence that the consequences of the 2015 injury had not ceased to exist by the time of the 2017 injury. (Ground No 1)
(b) The Arbitrator failed to afford the appellant procedural fairness by failing to deal with a substantial, clearly articulated argument put on behalf of the appellant. The appellant’s case was not properly engaged with and determined. (Ground No 2)

GROUND NO 1

Appellant’s submissions

The appellant submits his evidence was of continued left knee symptoms, involving pain and giving way, until the incident in 2017. He found work that accommodated his left knee problem and self-managed the symptoms. The Arbitrator accepted the existence of some ongoing symptoms, and said ongoing pain, swelling or instability, “if it existed, was relatively minor”. This suggested some reservations about the appellant’s evidence, but she did not reject it outright. The appellant refers to the Arbitrator’s reasons for concluding the 2015 injury did not materially contribute to the need for surgery ([95] of her reasons, quoted at [19] above).[43]
[43] Appellant’s submissions, [11(a)(i)–(iii)].
The appellant submits these reasons are flawed. There was “an agreed diagnosis by the treating medical practitioners”, this being “patellofemoral injury” causing “patellofemoral instability”. Reference is made to the opinions of Dr Gursel and Dr Kuo. Additionally, the surgery was to remove loose bodies in the knee, identified in the MRI scans taken in both 2015 and 2017.[44]
[44] Appellant’s submissions, [11(a)(iv)(A)].
The appellant submits the “lack of contemporaneous medical evidence of ongoing symptoms is not fatal”. There is unchallenged evidence from the appellant of continuing symptoms following the 2015 injury. The lack of medical treatment over 18 months is not fatal, the appellant changed jobs and was self-managing his symptoms. The appellant submits the “progression in the pathology would be relevant … the later pathology is greater and builds on the pathology that occurred in 2015”.[45]
[45] Appellant’s submissions, [11(a)(iv)(B)–(D)].
The appellant submits that, contrary to the Arbitrator’s reasons, Dr Gursel does explain the material contribution of the 2015 injury to the need for surgery. The appellant quotes a passage from Dr Gursel’s report dated 25 January 2018. The appellant also refers to a passage from Dr New’s report dated 12 January 2018, which is submitted to explain the role of the “initiating incident” in 2015, in the ongoing condition. The appellant submits the Arbitrator failed to take account of “relevant and significant evidence” that favours the appellant, and “hence the reasoning process is flawed”.[46]
[46] Appellant’s submissions, [11(a)(iv)(E)–(F)(v)].
The appellant submits that, to find the 2015 injury did not materially contribute to the need for surgery, the Arbitrator “was required to find that the chain of causation had been broken by the 2017 event”, and she “did not make any such finding”.

Respondent’s submissions

The respondent refers to Whiteley Muir & Zwanenberg Ltd v Kerr,[47] Zuvela v Cosmarnan Concrete Pty Ltd[48] and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd[49] (all of which were referred to and applied by Roche DP in Raulston v Toll Pty Ltd[50]). It submits the appellant has not demonstrated error in accordance with these principles. The Arbitrator’s reasons were soundly reasoned, carefully weighted and thorough. Her decision and findings were open on the evidence.[51]
[47] (1966) 39 ALJR 505.
[48] [1996] HCA 140; 140 ALR 227.
[49] [2001] FCA 1833.
[50] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[51] Respondent’s submissions, [37]–[43].
The respondent submits that, contrary to the appellant’s submissions, the Arbitrator did consider the appellant’s evidence of ongoing symptoms following the injury on 19 August 2015. It refers to the reasons at [15]–[17] and [83]. The Arbitrator concluded there had not been medical treatment from December 2015 to June 2017. On the evidence, the Arbitrator considered there had not been a “gradual deterioration or progression” over this period, but rather a “significant improvement” to the point where further medical treatment was not sought or required (referring to the reasons at [83]). The submission that the Arbitrator ignored the appellant’s evidence regarding ongoing symptoms is submitted to be misconceived.[52]
[52] Respondent’s submissions, [44]–[50].
The respondent attacks the proposition that there was agreement between Dr Gursel and Dr Kuo on diagnosis. The respondent submits Dr Gursel based his opinion on the appellant having dislocated his left patella on 19 August 2015, a history which was “plainly wrong” and was not accepted by the Arbitrator. Dr Gursel considered the dislocation to be a “critical factor” in the need for surgery. The doctor, discussing the 2017 MRI scan in his report dated 25 January 2018, said the multiple loose bodies and significant patellofemoral problems were related to the dislocation. The incorrect history about the dislocation is submitted to be “fatal” to Dr Gursel’s opinion on the relationship between the 2015 injury and the requirement for surgery.[53]
[53] Respondent’s submissions, [51.1]–[51.7].
The respondent also submits that the presence of “loose bodies” in the knee does not assist the appellant. Professor Miniter considered the 2015 MRI scan showed long standing degenerative change, and no evidence of recent acute injury. The appellant did not submit, at the arbitration hearing, that the loose bodies were pathology that emerged as a result of the injury on 10 August 2015, and there is no medical evidence to that effect. The MRI scan in 2017 says of the loose bodies that they “have not significantly changed since the prior CT Scan”. The loose bodies are submitted to be longstanding, with no evidence they resulted from the injury in 2015.[54]
[54] Respondent’s submissions, [51.8]–[51.15].

Dealing with the argument that the Arbitrator gave too much weight to the absence of ongoing contemporaneous medical evidence following the 2015 injury, and too little weight to the appellant’s lay evidence about his symptoms, the respondent submits the Arbitrator did not describe the absence of such medical evidence as “fatal”. The respondent submits the Arbitrator balanced the absence of such evidence with other evidence, including the appellant’s lay evidence. Her findings were open on the evidence, and did not reveal error.[55]
[55] Respondent’s submissions, [51.17]–[51.23].
The appellant submits that the pathology in 2017 was greater than that in 2015, and “built” on the earlier pathology. The respondent submits this does not take account of Dr Miniter’s view that degenerative pathology was present in 2015, and there was no indication of trauma. The Arbitrator correctly concluded that the dislocation of the patella did not occur in 2015, and probably happened at the time of the 2017 incident or proximate to it. The medical evidence does not support the proposition that the pathology in 2017 built on the earlier pathology. Additionally, there was no “diagnostic clarity” around the injury on 10 August 2015.[56]
[56] Respondent’s submissions, [51.24]–[51.28].
The respondent submits the need for surgery was not based on the presence of the loose bodies in the knee. These did not merit surgical intervention in 2015, and had not significantly changed in 2017.[57]
[57] Respondent’s submissions, [51.41].
The respondent submits there was no evidence to support the argument that the appellant’s condition became “progressively worse” after the 2015 injury. The Arbitrator considered the evidence and found, to the contrary, that the appellant’s condition had gradually improved following the 2015 injury. The Arbitrator concluded the incident in 2017 was “significant”, the appellant again sought treatment, was referred to a specialist, Dr Gursel, and underwent an MRI. The Arbitrator accepted the 2017 MRI showed a “material” pathological progression. This was supported by the medical evidence, for example Professor Miniter’s view that the 2017 incident resulted in patellofemoral dislocation. The 2017 incident was not an “incidental event”, but a significant event which resulted in a significant progression of the pathology.[58]
[58] Respondent’s submissions, [51.47]–[51.54].
The respondent refers to the appellant’s submission that, to reach the conclusion she did, the Arbitrator was required to find that the chain of causation had been broken by the 2017 event. The respondent submits this submission is misconceived. The onus of proof rests with the appellant. There was a clear “significant, intervening injury”, and evidence then of a clear progression of the pathology. A commonsense evaluation of the causal chain leads to the conclusion arrived at by the Arbitrator. The appellant had not discharged the onus of proving the 2015 injury “materially contributed to the need for surgery, which emerged only after the traumatic injury in June 2017”.[59]
[59] Respondent’s submissions, [51.55]–[51.56].

Appellant’s submissions in reply

The appellant “acknowledges that there was no evidence of him seeking medical treatment after December 2015”. He submits this needed to be weighed against other evidence. The Arbitrator did not find that the effects of the 2015 injury had ceased. None of the factors referred to in the reasons at [95] (see [19] above) “could be determinative of ‘no material contribution’.”[60]
[60] Appellant’s submissions in reply, [1].
Contrary to the respondent’s submissions, Dr Gursel did review and take account of the 2015 MRI scan, he refers to it in his report dated 19 July 2017.[61]
[61] Appellant’s submissions in reply, [2].
The appellant submits the Arbitrator’s reasons at [95] ignore the evidence that supported the causal linkage.

Consideration

The test applied by the Arbitrator to the issue of causation was that set out in Murphy, in which Roche DP reviewed a number of the established authorities. The Arbitrator said that causation was made out if “the 2015 injury materially contributed to the need for surgery”.[62] This is consistent with the decision in Sutherland Shire Council v Baltica General Insurance Co Ltd.[63] The challenge in Ground No 1 is essentially to the fact-finding process. Ground No 1 attacks how the Arbitrator dealt with the evidence relevant to the level of symptomatology that followed the injury on 10 August 2015. The submissions going to Ground No 1 go somewhat beyond this. I have sought to address the substance of the appellant’s submissions.
[62] Reasons, [92].
[63] (1996) 39 NSWLR 87; 12 NSWCCR 716 (Baltica).
It is necessary that the Arbitrator’s reasons be read as a whole: Beale v Government Insurance Office of NSW.[64]
[64] (1997) 48 NSWLR 430, 444.
In Raulston Roche DP, after referring to some of the authorities quoted by the respondent in this appeal (see [26] above) summarised the principles governing appeals pursuant to s 352(5) of the 1998 Act:
“19. First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted ‘Arbitrator’ for ‘trial judge’ where appropriate):
(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.’
20. The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”
In Northern NSW Local Health Network v Heggie[65] Sackville AJA (Ward JA agreeing), after referring to Raulston, said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519, per Mason and Deane JJ.”[66]
[65] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[66] Heggie, [72].
In Shellharbour City Council v Rigby[67] Beazley JA (as her Honour then was) said:
“Subject to the matter of the admissibility of Exhibit V, with which I have already dealt, the Council did not point to any error in the trial judge’s acceptance of Ms Potter’s evidence, other than complaining that his Honour should not have given it any weight or that he gave it undue weight. Questions of the weight of evidence are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of evidence that some error must have been involved.”[68]
[67] [2006] NSWCA 308 (Rigby).
[68] Rigby, [144].
The appellant submits the Arbitrator, dealing with the causation issue, ignored the appellant’s evidence that the consequences of the 2015 injury continued. More specifically, the appellant refers to his evidence that his knee continued to be painful and to give way, and that he performed different work, which accommodated his left knee problem. He submits the Arbitrator failed to take account of “relevant and significant evidence” that favoured him.
The Arbitrator specifically referred to the appellant’s evidence that he continued to have “significant chronic pain” in his left knee after the 2015 injury, and that he obtained employment that “accommodated his lifting restrictions and knee problems”.[69] The Arbitrator made specific reference to the appellant’s lay evidence, and histories to Drs Gursel and New, that after the 2015 injury the knee was “never the same, that he had chronic pain, swelling and that the knee would give way from time to time”.[70] It cannot be validly suggested that the Arbitrator ignored this lay evidence.
[69] Reasons, [15]–[16].
[70] Reasons, [83].
What the Arbitrator did, in her reasoning, was to consider this evidence together with other material that was before her, particularly the medical evidence. She summarised, in detail, the available evidence from Dr Silver and Dr Kuo, who treated the appellant in 2015.[71] She accurately described this evidence as “sparse”. She said it was not possible to discern a clear diagnosis from this material. Dr Silver’s certificates simply diagnosed a “knee injury”.[72] The last of Dr Silver’s certificates was dated 2 September 2015. Dr Kuo’s referral note dated 22 September 2015, to a physiotherapist to supervise a gym pass for three months, described the diagnosis as “[left] knee patellofemoral injury”.[73] The Arbitrator noted that the appellant was paid weekly compensation benefits from 11 to 12 August 2015.[74]
[71] Reasons, [19]–[23].
[72] ARD, pp 31–39.
[73] Reasons, [77].
[74] Reasons, [50].
The Arbitrator then turned to the MRI scan undertaken on 11 August 2015. She noted the radiologist’s report dealing with this investigation was not in evidence. Professor Miniter, reporting on 18 August 2017, indicated that he had seen the report accompanying the MRI scan. The doctor said the report described:
“… evidence of high grade full thickness cartilaginous loss over the patella and over the lateral femoral condyle. Multiple intra-articular loose bodies were identified within the joint. A small parameniscal cyst was identified at the anterior portion of the medial meniscus. There was no evidence of a recent patellofemoral dislocation.”
Professor Miniter said he agreed with this reading of the scan.[75] He said the findings were those of “longstanding degenerative change”, and that he “could not see convincing evidence of recent injury”. The doctor said:
“Even though he recalls an injury in the workplace, it would appear that the MRI scan findings are consistent with longer standing degenerative change which is possibly associated with a constitutional predisposition to the development of lateral compartment degenerative change.”[76]
[75] Reply, p 2.
[76] Reply, p 3, discussed at reasons, [78].
The Arbitrator considered the interpretations of the 2015 MRI scan, given later by Drs Gursel and New. Dr Gursel, writing to the general practitioner on 19 July 2017, said the “imaging from two years ago show [sic] a loose body in his knee, a moderate sized effusion and patellofemoral problems”.[77] Dr New’s description of the 2015 MRI scan, in his report dated 12 January 2018, was somewhat similar to Professor Miniter’s recital of the MRI scan report:
“An area of full thickness cartilage loss, Grade IV, over the patellar lateral femoral condyle, multiple intra-articular foreign loose bodies, fissuring in the anterior horn of the medial meniscus. Para-meniscal cyst on the medial meniscus.”
[77] ARD, p 11.
The Arbitrator said that Dr New “gave little insight as to aetiology including, what part of the pathology was attributable to the incident on 10 August 2015”.[78] Dr New gave a diagnosis, on 12 January 2018, of “grade IV chondral lesion in his lateral femoral condyle and has chronic joint effusion”.[79] He did not express any specific view regarding what part of the pathology, identified on the 2015 MRI scan, was attributable to the injury on 10 August 2015.
[78] Reasons, [78].
[79] ARD, p 3, referred to in reasons, [78].
The Arbitrator said there was no evidence of any treatment being given for the left knee, after December 2015, until the further incident in June 2017. She was not satisfied treatment was given for the left knee over that period.[80] The appellant accepts there was no evidence of treatment after December 2015, until June 2017.[81]
[80] Reasons, [83].
[81] Appellant’s submissions in reply, [1].
Against the above background, the Arbitrator made a number of factual findings in the appellant’s favour. She found he suffered injury to the left knee, which was “significant”, on 10 August 2015. She referred to the 2015 MRI scan, and found there was pre-existing pathology in the knee. She found that the knee was asymptomatic prior to that time, and the injury “rendered symptomatic or aggravated that pre-existing pathology”. She accepted that the appellant received treatment for the left knee until early December 2015.[82] She noted that the appellant described chronic pain, swelling, and the knee giving way from time to time, and that he moved to “a less physically demanding job”.[83]
[82] Reasons, [80]–[82].
[83] Reasons, [83].
The Arbitrator then dealt with other evidence relevant to the symptoms suffered by the appellant subsequent to December 2015. Professor Miniter, in his report dated 18 August 2017, recorded a history that “[t]he knee functioned satisfactorily and [the appellant] returned to a different sort of job in the longer term”.[84] The Arbitrator concluded that the evidence did not suggest a “gradual deterioration”, but rather a “significant improvement in symptoms to the point that no further treatment was deemed necessary”.[85]
[84] Reply, p 2.
[85] Reasons, [83].
The Arbitrator set out the various histories given by the appellant, regarding the incident in June 2017. She specifically referred to the version in the appellant’s supplementary statement dated 1 June 2018:
“I was mopping at home. I did not jump over the tiles as I was mopping. I merely stepped over a wet puddle and felt my knee give way as I placed my foot on the floor. This had been occurring for a period of time since the incident on 10 August 2015.”
The Arbitrator quoted a passage from Mason, regarding the use to be made of “accounts given to various health professionals”. She approached her analysis clearly aware of the caution to be exercised. She referred to the histories recorded by Dr Lee (the general practitioner), Dr Gursel (the treating orthopaedic surgeon), Dr New (the appellant’s qualified orthopaedic surgeon) and Professor Miniter (the respondent’s qualified orthopaedic surgeon). The Arbitrator said that the appellant’s version (set out in the preceding paragraph) “stands apart from the histories taken by all the medical practitioners involved [in] his case”. She did not accept the appellant’s version of the 2017 incident, and said that she “was satisfied that there was some sort of twisting action or awkward landing, contributed to by the wet tiles”.[86]
[86] Reasons, [84]–[86].
The Arbitrator described the 2017 incident as “significant”. It prompted medical treatment, a consultation with Dr Lee, a referral to Dr Gursel and a further MRI. Dr Gursel recorded pain and swelling, “ongoing patellar instability most recently over the past month”, apprehension and the restriction of activities. Surgery was recommended.[87]
[87] Reasons, [87].
The Arbitrator referred to the expert opinion evidence of the parties. She said that, in the appellant’s case, Drs New and Gursel did not give an explanation of why they regarded the injury on 10 August 2015 as a major or substantial factor to the current condition and the need for surgery. She said those doctors gave no reasoning regarding the relationship between the injury on 10 August 2015 and the incident in June 2017. She said that Dr Miniter’s views involved application of an incorrect test. He did not address the specific issue of whether the 2015 injury involved a material contribution to the need for surgery. She said the opinion medical evidence of both parties was flawed. She concluded the appellant had failed to discharge his onus of proving the need for surgery resulted from the injury on 10 August 2015.[88]
[88] Reasons, [88]–[96].
The above summary sets out in some detail the approach taken by the Arbitrator, in dealing with the factual issues. The Arbitrator’s analysis was careful and thorough, and was closely referenced to the evidence in the matter. The Arbitrator’s reasons at [95] summarised various factors that were relevant to her ultimate finding of fact. The appellant’s submissions describe the reasons at [95] as the “reasons that are given for the decision”. The Arbitrator’s reasons went well beyond the summary at [95]. It is appropriate at this point to deal with the specific submissions made by the appellant, dealing with Ground No 1.

There was an agreed diagnosis by Dr Gursel and Dr Kuo of “patellofemoral injury” causing “patellofemoral instability”.

The only evidence from Dr Kuo relevant to diagnosis is the handwritten referral note to a physiotherapist dated 22 September 2015. It states “[left] knee patellofemoral injury”, followed by words which may read “good prognosis”, although this is by no means clear.
Dr Gursel’s medicolegal report dated 25 January 2018 contains the fullest description of that doctor’s opinion. It states “on 10 August 2015 he dislocated his left patella whilst at work”. Dr Gursel continues, saying the “repeat MRI scan showed multiple loose bodies in his knee and significant patellofemoral problems related to his dislocation”. Dr Gursel said the “diagnosis was patellar dislocation and ongoing patellar instability with patellofemoral arthritis, multiple loose bodies and a maltracking patella”. In context, the diagnosis provided by Dr Gursel is that applicable, in the doctor’s opinion, when the appellant was under his care from 2017.
Dr Kuo’s referral note contains only a brief and general reference to diagnosis, consistent with the nature of that document. It cannot be validly concluded that these two doctors were in agreement on the appropriate diagnosis. The Arbitrator’s reference, in her reasons at [95], was to a lack of diagnostic clarity around the 2015 injury. Dr Kuo (like the other medical material available from 2015) makes no reference to dislocation of the patella in that incident. Dr Gursel’s opinion proceeds on an understanding that the left patella was dislocated on 10 August 2015. This submission by the appellant cannot be accepted.

The lack of contemporaneous medical evidence of ongoing symptoms is not fatal as there is lay evidence from the appellant, which is unchallenged, deposing to such symptoms. This fact was given too much weight by the Arbitrator.

There is not a requirement for corroboration in civil law: Chanaa v Zarour.[89] In that case Campbell JA (Bathurst CJ and Tobias AJA agreeing) said:
“… the task of the judge is to decide, on the basis of the whole evidence (denials and all), what he or she accepts. In doing that, there is no requirement for the judge to accept the whole of the evidence of any one witness.”[90]
[89] [2011] NSWCA 199 (Chanaa), [86].
[90] Chanaa, [86].
The Arbitrator’s reasons did not suggest that the lack of corroboration, in contemporaneous medical material, was of itself fatal to acceptance of the appellant’s lay evidence regarding his complaints after 10 August 2015. The Arbitrator described, and clearly had regard to, the appellant’s lay evidence on this topic. In dealing with this factual issue, the Arbitrator considered the evidence as a whole. She also had regard to the lack of medical treatment between December 2015 and June 2017. She had regard to the history recorded by Professor Miniter that the left knee “functioned satisfactorily”. She had regard to the appellant’s work, albeit in a “less physically demanding job”, following the 2015 injury. Considering multiple matters, the Arbitrator concluded that the evidence did not suggest “any gradual deterioration or progression of the condition in the left knee. Rather it suggests a significant improvement in symptoms to the point that no further treatment was deemed necessary.”[91] It is apparent that the Arbitrator’s reasoning involved weighing the evidence overall. The weight to be given to the evidence involved was a matter peculiarly within her province, to borrow the language of Rigby. There is no error in how the Arbitrator went about this task.

The fact that there was no medical treatment for a period of only 18 months is also not fatal to the question of material contribution, as the appellant was self-managing his symptoms and changed his job to accommodate his inability to return to heavy work. This fact was not given any weight by the Arbitrator.

[91] Reasons, [83].

It is not clear what the reference to self-managing his symptoms means. The appellant’s statement dated 8 March 2018 refers to ongoing symptoms following the 2015 injury. It refers to the appellant leaving his job with the respondent, and to his subsequent employment at Macquarie University, which accommodated his “lifting restrictions and knee problems”. The Arbitrator made clear reference to this in her reasons. Again, this is one piece of evidence which is part of the whole. The Arbitrator did not find that the effects of the 2015 injury had ceased, nor that the appellant had ceased suffering from left knee symptoms, prior to the incident in June 2017. On the evidence overall, the Arbitrator found that “any ongoing pain, swelling or instability, if it existed, was relatively minor”.[92] For the reasons dealing with the previous submission, the Arbitrator did not err in how she dealt with the weight to be ascribed to the evidence before her. The evidence regarding the appellant’s employment duties after 10 August 2015 was weighed, with the other evidence, in the consideration of the appellant’s condition, after the 2015 injury and before the incident in 2017.

A material progression in the pathology is relevant to the causation question. The later pathology is greater and builds on that which occurred in 2015. The surgery was to include the removal of loose bodies, which were demonstrated in the 2015 MRI scan.

The Arbitrator’s statement that Dr Gursel and Dr New did not explain the material contribution of the 2015 injury to the need for surgery is wrong.

[92] Reasons, [83].

The submissions at [11(a)(iv)(D)–E] deal with related questions about the state of the medical evidence, and it is appropriate to deal with them together.
The Arbitrator noted that the 2017 MRI scan “showed a deterioration or progression of the pathology shown in the 2015 scan”.[93] Whether advancing pathology demonstrates in some way that the advancement is related to the original injury would essentially be a matter for medical evidence. It is not a question “within the realm of common knowledge and experience”.[94] The appellant’s specialist medical opinion on this issue consisted of Dr New and Dr Gursel. Dr New said:
“It is my opinion that his previous employment at the time of his accident was a substantial contributing factor to the injury, and the natural history of this condition is that his knee has gradually become worse, and even incidental events can provoke quite debilitating knee pain.”[95]
[93] Reasons, [87].
[94] Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720, 724, Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271, [90], Ramasamy v Rail Corporation of New South Wales [2009] NSWWCCPD 41; 8 DDCR 1, [72].
[95] ARD, p 4.
Dr Gursel, in his report to the appellant’s solicitors, recorded a history that the left patella was dislocated on 10 August 2015. The doctor, on causation, said:
“It was my opinion that this gentleman’s work injury was the major contributor to this gentleman’s ongoing problems. The diagnosis was patellar dislocation and ongoing patellar instability with patellofemoral arthritis, multiple loose bodies and a maltracking patella.
My recommendation for surgery was removal of the loose bodies arthroscopically as well as a lateral release with possible further surgery including patellofemoral reconstruction and tibial tubercle osteotomy.”[96]
[96] ARD, p 5.
The respondent relies on Professor Miniter, who in his report dated 18 August 2017 said:
“Referring back to the original scan in 2015, I could not see convincing evidence of recent injury. The findings are those of longstanding degenerative change. Even though he recalls an injury in the workplace, it would appear that the MRI scan findings are consistent with longer standing degenerative change which is possibly associated with a constitutional predisposition to the development of lateral compartment osteoarthritic change.”[97]
And:
“I felt that the original injury in 2015 is likely to have caused an aggravation of pre-existing pathology.”[98]
[97] Reply, p 3.
[98] Reply, p 4.
In his report dated 22 June 2018 Professor Miniter said comparison of the 2015 and 2017 MRI scans showed “progression of the extensive osteoarthritic change involving the weightbearing portion of the lateral femoral condyle.”[99] This report was otherwise less useful than it should have been, as it persistently addressed the wrong test on causation.
[99] AALD 28.6.18, p 2.
The Arbitrator referred to the evidence from Dr Gursel and Dr New, and said there was “no reasoning or explanation from Dr New or Dr Gursel as to how the 2015 injury either contributed to the 2017 incident or the current condition”. This was one of the factors referred to in the reasons at [95], for the Arbitrator’s conclusion that the appellant had failed to discharge his onus on the causation issue.
The passages in the reports of Dr Gursel and Dr New on which the appellant relies, in challenging the passage of the reasons referred to in the previous paragraph above, are those quoted at [65] and [66] above.
There was a fundamental difficulty with the opinion of Dr Gursel. Dr Gursel’s report dated 25 January 2018 clearly refers to a history from the appellant, that “on 10 August 2015 he dislocated his left patella”.[100] The same history is referred to in Dr Gursel’s report back to Dr Lee, dated 19 July 2017.[101] The dislocation is specifically referred to by Dr Gursel in the diagnosis which he sets out in the later report (quoted at [66] above). This is not consistent with other evidence. The appellant’s statements do not suggest the knee was dislocated in 2015. The statement dated 8 March 2018 refers to twisting the left knee, immediate pain and significant swelling. The appellant states he could not finish his shift and “had to be carried to a medical centre where I was reviewed by Dr Silver”.[102] There is a written referral from Dr Silver on the date of injury, 10 August 2015, for an MRI scan. The clinical details in the referral note state “twisting injury – heard a pop and felt [knee] come apart unable [to weight] bear significant swelling positive anterior drawer sign”. There is no specific reference to a dislocation.
[100] ARD, p 5.
[101] ARD, p 11.
[102] Appellant’s statement dated 8 March 2018, [11]–[12], ARD, p 51.
An MRI scan was carried out on the following day, 11 August 2015. Professor Miniter’s report dated 18 August 2017 indicates that he saw both the scan and the accompanying report. Professor Miniter sets out the contents of the MRI scan report (see [46] above). It specifically states “[t]here was no evidence of a recent patellofemoral dislocation.” Professor Miniter states this was in keeping with his own reading of the scan. The limited material from Dr Kuo makes no reference to a dislocation. Dr New does not record a history of a dislocation. Professor Miniter’s report dated 18 August 2017 records a history that the appellant dislocated his patella when he sustained a slip at home on “the July long weekend” in 2017.[103] The Arbitrator made a specific finding that she was not satisfied the patella was dislocated in the injury on 10 August 2015.[104] This finding was clearly available and was consistent with the preponderance of the evidence. It is not challenged on this appeal.
[103] Reply, p 2.
[104] Reasons, [80].
The Arbitrator also made a finding that she did not accept the appellant’s version of the 2017 incident, and said she was satisfied that incident involved “some sort of twisting action or awkward landing, contributed to by the wet tiles”. She said the 2017 incident was “significant” (see [54]–[55] above). This factual finding was available on the evidence and is not challenged on this appeal.
Dr Gursel’s reports dated 19 July 2017, 26 July 2017 and 25 January 2018 contain no reference to the 2017 incident. The doctor’s diagnosis is set out at [66] above. This is the passage on which the appellant relies, in submitting that Dr Gursel explained the material contribution of the 2015 injury to the need for surgery. Its starting point is an assumption that the appellant dislocated his left patella on 10 August 2015, a proposition that is inconsistent with the preponderance of the evidence, and which was not accepted by the Arbitrator. The incidents in 2015 and 2017 may have been relevant, on the evidence, to the need for surgery. Dr Gursel did not refer to the second of these, which was an event that occurred at home. The Arbitrator said that Dr Gursel gave no reasoning or explanation as to how the 2015 injury either contributed to the 2017 incident or the current condition. That view was available and justified. Dr Gursel’s opinion made no real attempt to engage with the issues of causation raised in the matter.
Dr New did record a history of the 2017 incident, “an aggravation of his left knee when he was mopping a floor and slid on wet tiles”.[105] Dr New’s diagnosis appears to be a “Grade IV chondral lesion in his lateral femoral condyle and has chronic joint effusion”. Dr New referred to the MRI scan taken on 11 August 2015, the day following the initial injury (described at [48] above). The multiple abnormalities there referred to included “full thickness cartilage loss, Grade IV, over the patella lateral femoral condyle” and multiple loose foreign bodies.[106] Dr New’s description of the MRI scan is similar to that in the MRI scan report, recited in Professor Miniter’s report dated 18 August 2017 (see [46] above). Professor Miniter described the findings in the 2015 MRI scan as “those of longstanding degenerative change”.[107]
[105] ARD, p 2.
[106] ARD, p 3.
[107] Reply, p 3.
Dr New’s report dated 12 January 2018 did not comment on whether the pathology demonstrated on the initial MRI scan was degenerative, work caused, or a combination of these factors. The doctor said:
“It is my opinion that his previous employment at the time of his accident was a substantial contributing factor to the injury, and the natural history of this condition is that his knee has gradually become worse, and even incidental events can provoke quite debilitating knee pain.”
Dr New did not deal with the competing potential causative factors at the time of his assessment, which on the evidence were degenerative change in the knee, the effects of the knee injury in 2015, and the effects of the incident at home in 2017. The appellant submits that Dr New explained the “initiating incident” was the work injury in 2015, “which has progressively become worse”.[108] Whilst the “condition” may have gradually become worse, Dr New’s diagnosis was a Grade IV chondral lesion. No medical evidence suggests that the Grade IV chondral lesion, which according to the MRI scan report, dated 11 August 2015, showed evidence of full thickness cartilage loss over the patella and the lateral femoral condyle, resulted from the injury on 10 August 2015. Dr New’s report does not engage with the issues of causation raised in the matter. The Arbitrator’s statement, that there was no reasoning or explanation from Dr New, as to how the 2015 injury either contributed to the 2017 incident or the current condition, was available on the evidence. Dr New’s opinion was little more than a bare ipse dixit, which was not probative of the causation issues: South Western Sydney Area Health Service v Edmonds.[109]
[108] Appellant’s submissions, [11(a)(iv)(F)].
[109] [2007] NSWCA 16; 4 DDCR 421, [127]–[132].
The respondent submits the appellant’s reference to the presence of loose bodies does not assist him. It submits the MRI scan dated 24 July 2017 referred to the “multiple calcified loose bodies”, and said “[t]hese have not significantly changed since the prior CT scan”. The prior CT scan report was not in evidence, but was carried out on 30 October 2015. That is, the submission is that there was not progression of that pathology between the dates of the CT scan and the second MRI scan. The respondent submits there was no evidence to suggest these loose bodies resulted from the 2015 injury. It submits that no such submission was made by the appellant at the arbitration hearing.
The respondent’s submissions are correct on both of these points. No submission was made to the Arbitrator, that the loose bodies apparent on the MRI scans resulted, in any sense, from the injury on 10 August 2015. The Arbitrator could not err in failing to deal with a submission that was not made to her: Brambles Industries Ltd v Bell,[110] State Transit Authority of New South Wales v El-Achi.[111] In Soulemezis v Dudley (Holdings) Pty Ltd[112] Mahoney JA said:
“In my opinion, it is not open to a party on appeal to complain that reasons were not given for the decision of a matter of fact or law which was, or must have been, decided, if the matter was not the subject of submissions made to the court below in a way which called for a reasoned consideration of them.”[113]
[110] [2010] NSWCA 162; 8 DDCR 111, [22], [30].
[111] [2015] NSWWCCPD 71, [43].
[112] (1987) 10 NSWLR 247 (Soulemezis).
[113] Soulemezis, 270C.
The above is sufficient to dispose of the submissions on this point.
In any event, the only medical evidence that could arguably support the submission is the passage from Dr Gursel’s report dated 25 January 2018, quoted at [66] above. The passage refers to a contribution to the appellant’s “ongoing problems”, which on its face is a reference to symptoms, rather than the underlying pathology. Even if one read the passage as referring to the pathology (which it does not), the weight to be given to Dr Gursel’s opinion, on the medical consequences that resulted from the 2015 injury, is affected by the mistaken assumption about whether the patella was dislocated in that incident. Dr Gursel’s opinion on that subject matter, in the circumstances, carries no weight.[114] It follows that I accept the respondent’s submissions on this issue.

To find that the 2015 injury did not materially contribute to the need for surgery, the Arbitrator was required to find that the chain of causation had been broken. She made no such finding, and could not, as the totality of the evidence showed continuing consequences of the 2015 injury.

[114] Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 399, [82]–[83], Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282, [2]–[3].

The respondent submits this submission is misconceived, the onus rests with the appellant. It submits the Arbitrator’s decision was consistent with a commonsense evaluation of the causal chain.
It was conceded that the appellant suffered injury to his left knee on 10 August 2015, and that the surgery to the left knee proposed by Dr Gursel was reasonably necessary. There was a single live issue, whether the surgery resulted, in the relevant sense, from the conceded injury. It was necessary that this causation issue be resolved in the appellant’s favour, for the appellant to succeed. He who asserts must prove: Commonwealth v Muratore.[115]
[115] [1978] HCA 47; 141 CLR 296, [11].
The worker in Greif Australia Pty Limited v Ahmed pursued a similar submission to that made in the current matter.[116] In that case Roche DP said:
“54. In [Brown v Lewis], Mason P stated at [83], ‘the plaintiff bears the ultimate onus of proof. In some matters there may be a shifting of the evidentiary onus (eg Watts v Rake [1960] HCA 58; (1960) 108 CLR 158) but the ultimate persuasive onus remains with the plaintiff.’ In the Commission, the ultimate persuasive onus remains with the applicant worker (Mr Ahmed). However, where the worker has made out a prima facie case that his or her condition has resulted from a compensable work injury and that employment was a substantial contributing factor to that injury, the onus of adducing evidence that the condition has resulted from some pre-existing condition rests with the employer (see Barwick CJ, Kitto and Taylor JJ in Purkess v Crittenden (1965) CLR 114 164 at 168 (‘Purkess’)). Their Honours added that in the absence of such evidence a plaintiff would be entitled to succeed ‘if his evidence be accepted’ (at 168).
55. The concurrent operation of Watts and Purkess, with MalecvJ.C. Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, was considered by Spigelman CJ in State of New South Wales v Burton [2006] NSWCA 12 where his Honour quoted, with apparent approval, the following passage by Professor Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) at [1.9.14]:
‘Neither Watts v Rake nor Purkess v Crittenden was referred to in Malec v J C Hutton Pty Ltd. To reconcile these different lines of authority, it is necessary to say that the plaintiff must prove on the balance of probabilities that the defendant’s negligence did contribute materially to the present symptoms (this is the legal onus that rests on the plaintiff). Once that is satisfied, there is an evidential onus on the defendant of proving that the alleged pre-existing or subsequent natural condition did exist and that this condition in its natural progression would have produced similar symptoms. If the defendant is unable to satisfy the evidential burden, the court will reduce the plaintiff’s damages for contingencies to no greater extent than in the ordinary case. If, however, the defendant shows that there was a real chance that the plaintiff would have developed similar symptoms from a natural condition attaching to the plaintiff, the court will make a greater reduction than normal to reflect this increased chance.’”
[116] [2007] NSWWCCPD 229; 6 DDCR 461 (Ahmed), [53].
In the current matter, the Arbitrator made a finding that the injury on 10 August 2015 resulted in an aggravation of previously asymptomatic degenerative change in the appellant’s left knee.[117] The Arbitrator made findings, which were open to her, that thereafter there was “a significant improvement in symptoms to the point that no further treatment was deemed necessary”.[118] She did not accept the appellant’s version of the 2017 incident, which was inconsistent with multiple medical histories. She made a finding that, in the incident in June 2017, “there was some sort of twisting action or awkward landing, contributed to by the wet tiles”.[119] The Arbitrator made a finding that “the medical evidence indicates that this event was significant”, and that it “was only after the 2017 incident that surgery was recommended”.[120]
[117] Reasons, [81].
[118] Reasons, [83].
[119] Reasons, [86].
[120] Reasons, [87].
The appellant carried the ultimate onus of proof, to demonstrate that his need for the relevant surgery resulted from the injury on 10 August 2015. Given the findings referred to in the previous paragraph, the Arbitrator dealt with whether this onus was discharged. She concluded that it was not, briefly summarising the deficiencies in the medical evidence at [88] and [95] of her reasons.
Soulemezis involved a continuing claim by a worker, in which the primary judge made a weekly award on the basis of total incapacity for a period, and from the end of that period (when a CT scan was carried out) concluded the worker was fit for all work. On appeal, the worker made an argument that, having found that she suffered the symptoms in question for a closed period, the primary judge “could not find on the facts that she did not have the symptoms or that they were not related to her injuries thereafter”. Rejecting this argument, Mahoney JA said “[t]he onus is on an applicant worker in such a case as this to satisfy the judge of the existence of facts sufficient to base her claim.”[121]
[121] Soulemezis, 264B–C.
In Murphy Roche DP dealt with a claim for the cost of surgery, where there was a compensable shoulder injury, followed by an injury to the same shoulder in non-compensable circumstances, followed by a requirement for surgery to the shoulder. Causation of the requirement for surgery was in issue. Roche DP said:
“57. … even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
58. Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”

The above passage from Murphy is consistent with authority, and I accept it sets out an appropriate approach to issues of causation in such circumstances. It is consistent with the approach taken by the Arbitrator.
In the current matter, the appellant carried the ultimate onus of proof. There may be multiple circumstances in which an Arbitrator could find that the effects of a work injury continued in some way, but not be satisfied that the surgery claimed ‘resulted’ from such an injury. It always remained necessary for the appellant to discharge that onus, if he were to succeed. The Arbitrator gave clear reasons, which were available on the evidence, for her finding that the appellant failed to do so. Ground No 1 fails.

GROUND NO 2

Appellant’s submissions

The appellant refers to the decision of Government Insurance Office of NSW v Aboushadi,[122] from which a passage is quoted which includes the following:
“22 His Honour correctly applied Fishlock v Plumber, a case which (with others cited) was said by Malcolm CJ in State Government Insurance Commission v Oakley (1990) Aust Torts Rep 81-003 at 67,577 to be authority for the first two of the following three propositions:
(1) where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;
(2) where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; and
(3) where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.”[123]
[122] [1999] NSWCA 396 (Aboushadi).
[123] Aboushadi, [22].
The appellant submits it was his case that the 2015 injury initiated instability and pain in the left knee. The injury, and the pathology caused by it, left the appellant “with a higher risk of further injury and instability. That risk became a reality in 2017”. The appellant submits it argued “that the damage sustained in the later incident was greater because of the earlier injury, and that, therefore the earlier injury was a factor causative of the need for surgery.” The appellant submits the Arbitrator did not “address the issue of whether the second injury had more significant consequences leading to the need for surgery, which otherwise would not have occurred had there not been the earlier work injury”. He submits the Arbitrator failed to engage with this case, which amounted to error. The appellant refers to Mifsud v Campbell[124] and Waterways Authority v Fitzgibbon,[125] amongst other decisions. The appellant submits failing to deal with a substantial, clearly articulated argument involved a denial of procedural fairness, referring to Rodger v De Gelder.[126]
[124] (1991) 21 NSWLR 725.
[125] [2005] HCA 57; 221 ALR 402; 79 ALJR 1816.
[126] [2015] NSWCA 211 (Rodger), [93].
The appellant’s counsel, before the Arbitrator, submitted:
“So in terms of the chain of causation, it doesn’t have to be that there is no separate unrelated incident. All that you have to find is that – and I’ll refer you to Aboushadi – the case of Government Insurance Office of New South Wales v Aboushadi [1999] NSWCA 396 – all you have to find is that there was a further injury that resulted from a subsequent accident which would have occurred, had the plaintiff been in normal health, but that the damage sustained in that second injury is greater because of the aggravation of the earlier injury. So we say there’s insufficient evidence for you to find that the chain of causation was broken.”[127]
[127] T 24.33–25.10.

Respondent’s submissions

The respondent submits the Arbitrator observed “the lack of diagnostic clarity with respect to the pathology arising as a result of the 10 August 2015 injury”. Dr Gursel and Dr New had failed to “correctly and precisely define the pathological consequences”. The Arbitrator noted “the deficiencies in the findings and reasoning of Drs New and Gursel with respect to diagnosis and causation”. There was “longstanding degenerative pathology in the left knee”. The appellant failed to identify what pathology resulted from the 2015 injury. The respondent submits the evidentiary foundation did not exist, to make a finding in the appellant’s favour based on Aboushadi.

Consideration

Application of Aboushadi

Aboushadi, like Fishlock v Plummer[128] and State Government Insurance Commission v Oakley[129] which it applied, was a case dealing with the recovery of damages at common law. It did not involve application of the statutory test on causation, ‘results from’, which is applied in Kooragang. Section 60 of the 1987 Act applies where medical or related treatment is reasonably necessary “as a result of an injury”.
[128] [1950] SASR 176.
[129] (1990) 10 MVR 570, Aust Torts Reports 81-003 (Oakley).
I am unaware of any Presidential decisions that have applied or dealt with Aboushadi, Fishlock or Oakley. In Ogilvie v QANTAS Airways Ltd,[130] a matter involving lump sum compensation and aggregation, Arbitrator Nicholl was referred to Oakley, but considered the aggregation issues before her should be approached applying Department of Juvenile Justice v Edmed,[131] rather than Oakley and some associated decisions to which she was referred.[132] In Byrne v Northern Sydney Central Coast Area Health Service[133] Arbitrator Phillips SC was referred to Oakley, but dealt with the causation issue before him largely by reference to Kooragang Cement, without specific reliance on Oakley. In Andersen v J & M Predl Pty Ltd[134] Arbitrator Bamber concluded, as a factual matter, that Oakley (to which she was referred) did not assist the worker.[135]
[130] 4482/08, 17 December 2008 (Ogilvie).
[131] [2008] NSWWCCPD 6.
[132] Ogilvie, [15].
[133] 8137/10, 29 August 2011.
[134] [2018] NSWWCC 141 (Andersen). (This decision was confirmed on appeal in Andersen v J & M Predl Pty Limited [2018] NSWWCCPD 40.)
[135] Andersen, [127]–[130].
Nicolv Macquarie University[136] dealt with an application for judicial review of a decision of a Medical Appeal Panel, in a claim for lump sum compensation involving a psychological injury. In general terms, there was an issue regarding the assessment of whole person impairment, where the relevant compensable injury was followed, later in time, by an injury with a second employer. This raised the statutory test, considered in Kooragang, as such compensation is payable, pursuant to s 66(1) of the 1987 Act, to a worker “who receives an injury that results in a degree of permanent impairment greater than 10%”. Harrison AsJ set out the passage of Aboushadi quoted at [91] above. Her Honour found that the facts in that matter fell within “the second category” described in Aboushadi. Her Honour said “[i]t is this additional damage resulting from the aggravated injury that remains causally linked to the first injury”.[137] Thus, in Nicol, Aboushadi was applied to a case involving the statutory test on causation pursuant to the 1987 Act.
[136] [2018] NSWSC 530 (Nicol).
[137] Nicol, [145].
Whether Aboushadi should apply in such circumstances, as a matter of law, was not argued by the parties before the Arbitrator, and accordingly not addressed by the Arbitrator. The appellant, on appeal, argues the Arbitrator erred in not specifically dealing with Aboushadi. The respondent resists Ground No 2 on a factual basis. It does not argue that application of these principles was unavailable on a legal basis.
In Migge v Wormald Bros Industries Ltd[138] Mason JA said:
“In Baker v Willoughby in an opinion which commanded the assent of the majority of the House Lord Reid said that causation in tort does not differ from causation under the workers compensation legislation. In that field and in cases concerning liability for personal injury it has been emphasized repeatedly that questions of causation are to be resolved by the application to the facts of the case of common sense, rather than scientific or logical theories of causation.” (excluding footnotes)
[138] [1972] 2 NSWLR 29 (Migge), 44F.
Mason JA was in dissent in the Court of Appeal but the High Court, reversing the result, unanimously adopted his Honour’s reasons.[139] Migge has been applied in the Commission: BHP Billiton Ltd v Eastham.[140]
[139] [1973] 47 ALJR 236.
[140] [2013] NSWWCCPD 34; 14 DDCR 393, [106].
In Baltica Clarke JA (Hunter AJA agreeing) referred to the approach to causation taken by Hope and Glass JJA in Morris v George.[141] Clarke JA described Hope and Glass JJA as having:
“… expressed the view that the treatment to be accorded to questions of causation at common law should be applied to the question under the Workers Compensation Act 1926 whether death or incapacity has resulted from any particular injury.”[142]
[141] [1977] 2 NSWLR 552.
[142] Baltica, 96D–E.
Clarke JA referred to the Privy Council’s endorsement, in Bushby v Morris,[143] of “the view that the test of causation under the workers compensation legislation was for all practical purposes the same as that applied in the field of tort”.[144] Clarke JA said:
“My own inclination is to express my concurrence with the views of Hope JA and Glass JA, and the Privy Council, and I am emboldened in that view by the recent decision of the High Court in Accident Compensation Commission v CE Heath Underwriting & Insurance (Aust) Pty Ltd (1994) 68 ALJR 525.”[145]
[143] [1980] 1 NSWLR 81.
[144] Baltica, 96F–G.
[145] Baltica, 97B.
It is consistent with the above that Aboushadi can, in appropriate factual circumstances, have application to the determination of causation issues under the workers compensation legislation.

Application on the facts

The submission made by the appellant, at the arbitration hearing, was based on the second of the propositions in the passage from Aboushadi quoted at [91] above. For that proposition to apply, it would be necessary to identify the damage that occurred in the 2017 incident, and compare it with the damage that would have occurred in the 2017 incident, if not for the effects of the 2015 incident. If there was additional damage caused by the 2017 incident, because of the effects of the 2015 injury, the second proposition could apply. The argument required consideration of the relationship between the incidents in 2015 and 2017, and whether the damage resulting from the second was greater because of the effects of the first.
In Dranichnikov v Minister for Immigration and Multicultural Affairs[146] Gummow and Callinan JJ said:
“24. To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.”
[146] [2003] HCA 26; 197 ALR 389; 77 ALJR 1088 (Dranichnikov).
This case was applied in Rodger, on which the appellant relies.[147] The appellant submits the Arbitrator failed to respond to his argument on this issue.
[147] Rodger, [93].
The Arbitrator was clearly aware of the argument, she summarised it in her reasons. She described it as being “[w]ith regard to the chain of causation”.[148] Analysing the evidence regarding the 2015 injury, the Arbitrator said she was not satisfied “as to the precise diagnosis of the injury”.[149] She found “there was pre-existing pathology in the knee” and that “the injury on 10 August 2015 rendered symptomatic or aggravated that pre-existing pathology”.[150] The Arbitrator said “[t]here is uncertainty as to when or if the aggravation resolved”.[151]
[148] Reasons, [68].
[149] Reasons, [80].
[150] Reasons, [81].
[151] Reasons, [82].
In the Arbitrator’s ultimate finding of fact, at [95] of her reasons (see [19] above), the Arbitrator specifically referred to the lack of “reasoning or explanation from Dr New or Dr Gursel as to how the 2015 injury either contributed to the 2017 incident or the current condition”. My conclusion, that the Arbitrator’s views on this topic were properly available to her, is set out at [67]–[72] above, dealing with Ground No 1.This went directly to the availability of the appellant’s argument, based on the second of the propositions in Aboushadi. It is necessary to read the Arbitrator’s reasons as a whole. She summarised the appellant’s argument on this point. The argument was dependent on a consideration of the causal relationship between the effects of the injury in 2015, and the incident in 2017. The Arbitrator described the argument based on Aboushadi as being “[w]ith regard to the chain of causation”. She gave reasons for why the appellant’s medical case was not probative on this issue. The effect of this was that the appellant failed to prove his case on causation, including his argument based on Aboushadi. There was no medical evidence, dealing with the factual matters necessary to support a finding on the second of the propositions in Aboushadi.
The Arbitrator’s decision was clearly based on a failure by the appellant to satisfy his onus of establishing the necessary causal link. The Arbitrator said that she was not satisfied the 2015 injury “materially contributed” to the need for surgery, and that she was not satisfied the need for surgery “arose ‘as a result of’ the injury”.[152] It follows, from the above, that the Arbitrator dealt with the causation issue, which included the appellant’s argument based on Aboushadi. Ground No 2 fails.
[152] Reasons, [95]–[96].

CONCLUSION

Both of the appellant’s grounds of appeal fail. The appeal does not succeed.

DECISION

The Arbitrator’s decision dated 9 August 2018 is confirmed.

Michael Snell

Deputy President

24 January 2019