Mitchell v St John of God Health Care Inc
[2020] WADC 151
•2 DECEMBER 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MITCHELL -v- ST JOHN OF GOD HEALTH CARE INC [2020] WADC 151
CORAM: BRADDOCK DCJ
HEARD: 18 SEPTEMBER 2020
DELIVERED : 2 DECEMBER 2020
FILE NO/S: APP 3 of 2020
BETWEEN: SUSAN ANN MITCHELL
Appellant
AND
ST JOHN OF GOD HEALTH CARE INC
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram: ARBITRATOR RUTHERFORD
File Number : A57359
Catchwords:
Workers' compensation - Appeal from arbitrator - Personal injury by accident - Principles of admissibility of expert evidence - Whether assessment of weight of evidence is an error of law - Causation - Findings of fact
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA), s 5, s 18, s 21, s 188(3), s 247
Result:
Leave to appeal refused
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Mr A J Stewart |
| Respondent | : | Mr R D McCabe |
Solicitors:
| Appellant | : | Chapmans Barristers & Solicitors |
| Respondent | : | St John of God Health Care Inc |
Case(s) referred to in decision(s):
Beer v Duracraft Pty Ltd [2004] WASCA 192
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
BHP Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60
Catholic Education Office of WA v Granitto [2012] WASCA 266
De Aguiar v Villa Dalmacia Aged Care Association Inc [2019] WADC 130
Fox v Roy Hill Holdings Pty Ltd [2019] WADC 171
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182
MacMahon Holdings Ltd v McKenzie [2018] WADC 28
Marks v Coles Supermarkets [2020] WADC 36
Massih v Electricity Networks Corporation t/as Western Power [2016] WADC 146
Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744
Mitchell v St John of God Health Care Inc (Unreported, Workers' Compensation Arbitration Service, A57359 17 December 2019)
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Pollock v Wellington (1996) 15 WAR 1
Suleski v Pilbara Iron Company (Services) Pty Ltd [2018] WASCA 147
BRADDOCK DCJ:
Introduction
In September 2018 Ms Mitchell claimed weekly payments and consequential expenses under the Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA) for a period of work related incapacity.
Ms Mitchell completed a workers' compensation claim form on 3 September 2018 in relation to an alleged event on 22 June 2018.
Ms Mitchell consulted her general practitioner on 8 July 2018. Further, Ms Mitchell reported the injury to her employer on 16 July 2018.
The first medical certificate was dated 5 September 2018 by Dr Edward Rohr, Ms Mitchell's general practitioner. The certificate gave the date of injury as 22 June 2018.
On 21 September 2018 the employer gave notice that liability was disputed under the WCIMA.
The dispute was not resolved and proceeded to arbitration before Arbitrator Rutherford (the Arbitrator) on 23 May 2019 and 14 June 2019.
On 17 December 2019, the Arbitrator found that Ms Mitchell was not entitled to be paid weekly payments or expenses under the WCIMA on the basis that she had failed to establish there was an incapacity resulting from the car event, which he had found was in the course of her employment: Mitchell v St John of God Health Care Inc.[1]
[1] Mitchell v St John of God Health Care Inc (Unreported, Workers' Compensation Arbitration Service, A57359 17 December 2019) (Arbitrator Rutherford).
Ms Mitchell has appealed to this court from the Arbitrator's decision.
Leave to appeal is required.
For the reasons set out below I would refuse leave to appeal.
Background
Ms Mitchell was employed by St John of God Health Care Inc (SJOG) as a registered nurse. At all material times she worked in the intensive care unit/critical care unit at the St John of God Midland Hospital.
On 22 June 2018 Ms Mitchell completed her shift and left the hospital, returning to her car which was parked in the hospital car park. She found that she could not get into her car as the driver's door had been blocked by another vehicle parked too close to it.
After a period of time waiting for that driver, she entered her vehicle from the passenger side and manoeuvred herself over the console into the driver's seat (the Car Incident). She then drove home.
Ms Mitchell subsequently made a claim, under the WCIMA, that she had injured her left knee during her efforts to access the driving seat. That is the disputed claim in this appeal.
Ms Mitchell claims that as a result of that injury she was incapacitated for work at various periods of time and incurred various medical and related expenses. For those periods and expenses she seeks compensation to be paid.
SJOG admitted that the Car Incident occurred, but denied that there was a relevant injury resulting from the events. SJOG denied that Ms Mitchell was in the course of her employment at the time of the Car Incident. The Arbitrator found that she was still employed at that time and thus the injury, if proven, arose in the course of her employment with SJOG.[2] No complaint is made about this finding.
[2] Arbitrator's reasons for decision [32].
SJOG contended that, if an injury did occur during the Car Incident within the provisions of the WCIMA, the injury was minor and not a material cause of any incapacity.
Ms Mitchell first sought medical assistance on 8 July 2018, after an incident at home on the night of 7 July 2018 (the Home Incident). She was referred for an MRI scan, which found a torn meniscus of the left knee. Prior to 8 July 2018, Ms Mitchell had continued her shifts at the hospital up until 7 July 2018.
After the diagnosis on 10 July 2018 of the left meniscus tear, Dr Rohr advised her to see a physiotherapist and acupuncturist. She continued to work to 16 July 2018. She then took one week's annual leave. She attended a physiotherapist, engaged in hydrotherapy, and on 27 July 2018 requested access to SJOG's early intervention programme. Ms Mitchell said that she continued to work to 25 August 2018 with a stiff and sore knee with light strapping and taking analgesia.
On 25 August 2018, there was another incident at work, where she stood up from sitting and experienced extreme pain in her upper left thigh. She attended the emergency department. She was discharged later that day.
Ms Mitchell gave various accounts in relation to these events, that is the Car Incident, the Home Incident and 25 August 2018 incident.
On 5 September 2018, Dr Rohr issued a first certificate of capacity covering the period 5 September to 28 September 2018.
Following a two day hearing over 23 May and 14 June 2019, the Arbitrator dismissed her claim on 17 December 2019, on the basis that he was not persuaded that the Car Incident was a material contributor to any of the claimed incapacity.
Grounds of appeal
A notice of appeal was filed on 14 January 2020 against the Arbitrator's decision. The original notice of appeal was amended on 21 May 2020.
After amendment, the grounds of appeal read:
1.The Arbitrator erred in law and/or erred in mixed law and fact in affording little or no weight to the evidence of Dr Silbert and/or Dr Rohr (Reasons for Decision; paras 97, 98 and 160) when there was no proper basis for doing so.
Particulars
i.The Arbitrator incorrectly found that Dr Silbert in preparing his medical report of 3 April 2019 did not consider the relevance of the 'home event' of 7 July 2018 and in doing so incorrectly held that the opinion of Dr Silbert in relation to causation 'is to be considered with some caution' (Reasons for Decision; par 98).
ii.Accordingly, in determining whether the Appellant's left knee injury (meniscus tear) was suffered in the course of her employment with the Respondent, the Arbitrator incorrectly disregarded the opinion of Dr Silbert (Reasons for Decision; para 160).
iii.The Arbitrator failed to properly interpret and/or apply the authority of Pollock v Wellington (1996) 15 WAR 1 and Beer v Duracraft Pty Ltd[2004] WASCA 192 and in doing so failed to determine whether any unproven fact relied upon by Dr Silbert and/or Dr Rohr or whether any omission of material given to Dr Silbert and/or Dr Rohr rendered their opinion inadmissible or of no weight.
2.By reason of affording little or no weight to the evidence of Dr Silbert and/or Dr Rohr, the Arbitrator erred in law and/or erred in mixed law and fact in concluding that:
i.notwithstanding the Appellant had sustained a meniscus tear to her left knee and that such an injury would contemplate a personal injury by accident as defined by the WCIMA (Reasons for Decision; para 156), the evidence did not establish the Appellant had suffered a personal injury by accident in the course of her employment with the Respondent (Reasons for Decision; para 164); and
ii.he was 'not persuaded that there was any incapacity which resulted from the car event' (Reasons for Decision; para 168); and
iii.he was 'not persuaded that any of the claimed expenses (Schedule 1, Clause 17) are connected with the car event knee condition' (Reasons for Decision; para 171).
A third ground of appeal, in the alternative to ground 2(ii), was not pressed at the appeal.
The notice of appeal sought that leave be granted, the decision of the Arbitrator be quashed and the matter remitted to a different arbitrator to be determined according to law and that SJOG pay costs of the proceedings and the appeal.
This court was provided with a file containing the transcript of the hearings before the Arbitrator, the documents or other records tendered at that hearing to the Arbitrator, the submissions before the Arbitrator, all conciliation certificates, applications, reply and the Arbitrator's reasons for decision.
On 15 June 2020 submissions were filed on behalf of the appellant. On 18 June 2020 the respondent filed submissions. These were followed by supplementary submissions, of the appellant on 7 July 2020 and the respondent on 16 July 2020. The appeal proceeded before this court on 17 September 2020, on those materials.
The relevant law
Section 18 of the WCIMA provides that an employer is liable to compensation 'if an injury to a worker occurs'. Compensation is to be paid in accordance with Sch 1 of the WCIMA.
Section 21 of the WCIMA provides that:
An employer is liable to pay compensation under this Act from the date of incapacity resulting from the injury, but that clause 9 applies in any case.
Clause 9 of Sch 1 provides:
Where a total or partial incapacity for work does not result from the injury but the worker is obliged to obtain medical or surgical, dental, physiotherapy or chiropractic advice or treatment, clauses 17, 18, 18A, and 19 apply in so far as they may be made applicable.
The term 'injury' is defined in s 5(1) of the WCIMA as follows:
injury means -
(a)a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions; or
…
(d)the recurrence, aggravation, or acceleration of any pre‑existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree; or
…
but does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the matter is mentioned in paragraph (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer.
The District Court appeal
By WCIMA s 247(1), a party to a dispute before the arbitrator may, with leave of the District Court, appeal to the District Court against a decision of the arbitrator, where written reasons for the arbitrator's decision under WCIMA Pt XI are given.
Section 247(2) of the WCIMA provides that, subject to s 247(3), the District Court is not to grant leave to appeal unless certain criteria are met. Those criteria include that an error of law is involved.
In this appeal, Ms Mitchell says that a question of law, or a question of mixed fact and law, is involved.
An appeal under s 247 of the WCIMA is by way of review of the decision appealed against.[3] No fresh evidence, or evidence in addition to or substitution for the evidence received in relation to the decision appealed against can be given without leave of the court.[4]
[3] WCIMA s 247(5).
[4] WCIMA s 247(6).
No application to lead fresh evidence was made in this appeal.
To succeed on appeal therefore, an appellant must establish that the Arbitrator has made an error of law.[5]
[5] Catholic Education Office of WA v Granitto [2012] WASCA 266 [53] - [54]; BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3].
Once an error involving a question of law has been identified, the District Court must then conduct a real review of the arbitrator's decision.[6]
[6] Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [20] - [25] (Wheeler JA); Catholic Education Office of WA v Granitto [56] - [57] (Murphy JA).
Where, following a grant of leave, a review is undertaken by the appellate court, the appellant must still provide a proper basis for disturbing an arbitrator's decision by demonstrating some error in it.[7]
[7] Pacific Industrial Co v Jakovljevic [20], [26].
Principles in relation to this identification of an error of law, or mixed error of fact and law, can be drawn from the authorities, including Suleski v Pilbara Iron Company (Services) Pty Ltd[8] and The Minister for Immigration and Multicultural Affairs v Al-Miahi.[9]
[8] Suleski v Pilbara Iron Company (Services) Pty Ltd [2018] WASCA 147 [19].
[9] Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744.
Those principles have been expressed in summary as follows:
1.a finding of fact in the absence of any supporting evidence is a question of law;
2.whether there is evidence of a fact is a question of law;
3.whether an inference can be drawn from fact is a question of law;
4.there is no error of law simply from making the wrong finding of fact;
5.want of logic is not synonymous with an error of law;
6.where the facts as found meet a statutory definition is a question of law;
7.taking into account irrelevant considerations is an error of law;
8.failing to take into account a relevant consideration is an error of law;
9.where a statute uses words according to their common understanding and the question is whether the facts found fall within those words, the question is a question of fact; and
10.where it is necessary to engage in a process of construction the meaning of a word or phrase in a statute, a question of law will be involved but the question may be a mixed one of law and fact.[10]
[10] De Aguiar v Villa Dalmacia Aged Care Association Inc [2019] WADC 130 [25]; Fox v Roy Hill Holdings Pty Ltd [2019] WADC 171 [18].
Onus of proof
Claims under the WCIMA proceed on the basis that the worker has the burden of proving her claim on the balance of probabilities.[11]
[11] Massih v Electricity Networks Corporation t/as Western Power [2016] WADC 146 [27].
Hence, before the Arbitrator, Ms Mitchell had the onus of proving on the balance of probabilities that her incapacity from work and expenses resulted from the Car Incident on 22 June 2018.
The Arbitrator's decision
In his written reasons, the Arbitrator correctly identified the applicable statutory provisions.[12] He also identified the relevant authorities.[13] He correctly identified that if an incapacity from work exists, it is not necessary to show that the injury in issue is the sole cause of it. It is sufficient if it is a material contributing cause, but it need not be the only contributing cause.
[12] Arbitrator's reasons for decision [42] - [44].
[13] Arbitrator's reasons for decision [45] - [49].
Whether incapacity results from a work related injury is a question of fact to be determined on broad common sense lines. The Arbitrator quoted Kooragang Cement Pty Ltd v Bates[14] to the effect that whether incapacity results from the work injury 'is a question of fact to be determined on the basis of evidence, including, where applicable, expert opinions'.
[14] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, 464.
The Arbitrator then proceeded to summarise the evidence that he had received. He dealt with the relevant documentation completed by Ms Mitchell[15] and compared the documentation with Ms Mitchell's evidence.[16] He also considered the documentation completed by Dr Edward Rohr, Ms Mitchell's general practitioner, from the first medical certificate and his reports dated 18 September, 2018 and 3 December 2018.[17]
[15] Arbitrator's reason for decision s [50] - [51].
[16] Arbitrator's reasons for decision [52] - [54].
[17] Arbitrator's reasons for decision [61] - [67].
The Arbitrator set out findings of other doctors consulted by Ms Mitchell including Dr Michael Summers, Dr Laurie, Dr Balakrishnan, Dr McCormick and the occupational physician, Dr Joel Silbert.
The Arbitrator also detailed Ms Mitchell's evidence before himself.[18]
[18] Arbitrator's reasons for decision [99] and following.
The Home Incident was described by Ms Mitchell as resulting on 7 July 2018 from 'rolling' in bed and experiencing left knee pain. In her witness statement she used the word 'twisted' in relation to the Home Incident and also the word 'wrenched'. The Arbitrator did not
accept Ms Mitchell's evidence of rolling in bed on this point and found that the Home Incident, however it happened, involved the twisting or wrenching of the left knee.[19]
[19] Arbitrator's reasons for decision [144].
In his observations and conclusions, the Arbitrator said that for Ms Mitchell to succeed she needed to prove, on the balance of probabilities, that the Car Incident was a materially contributing cause of the claimed incapacity.[20] He noted that it was not necessary for there to be a continuity of symptoms between the injury and the commencement of the period of incapacity. He noted that Ms Mitchell carried the legal onus to establish those matters.[21]
[20] Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182; Kooragang Cement Pty Ltd v Bates.
[21] Arbitrator's reasons for decision [149].
The Arbitrator considered and analysed the inconsistencies in Ms Mitchell's evidence as to the history of the symptoms following the Car Incident.[22] He also averted to[23] the various descriptions in the medical practitioners' evidence as to the range of symptoms described following the Car Incident. He reviewed the[24] inconsistencies and explanations given by Ms Mitchell. He concluded that he did not accept Ms Mitchell's explanations, particularly for writing 'nil symptoms to 7 July 2018' on the claim form.
[22] Arbitrator's reasons for decision [157].
[23] Arbitrator's reasons for decision [152].
[24] Arbitrator's reasons for decision [153].
The Arbritrator found[25] that there was evidence of physiological change in that there was a meniscus tear, which he accepted as evidence of a personal injury by accident. He considered discussion by the doctors of degenerative changes. He accepted that there had been evidence of a type of s 5(1)(d) injury within the WCIMA. He posed the question however, of what caused the physiological change or aggravation.
[25] Arbitrator's reasons for decision [156].
The Arbitrator said[26] that there was some medical evidence supporting the finding that the Car Incident was a material cause of incapacity, with reference to Dr Silbert's report, and, in part Dr Rohr's reports and notes. However, he saw contradictions in this evidence. The fact that Ms Mitchell had not reported left knee problems to
Dr Rohr, prior to 2018, was significant. He said 'However, Dr Silbert's report does not obviously refer to the home event and therefore is to be regarded with some caution on this issue'. [27]
[26] Arbitrator's reasons for decision [159].
[27] Arbitrator's reasons for decision [160].
The Arbitrator recorded the situation as follows:[28]
Contrary to Ms Mitchell's contentions, there is evidence that any knee soreness which occurred on 22 June 2018 was minor and was not a material cause of any incapacity. This evidence includes the details on the claim form as completed by Ms Mitchell and the clinical notes of Dr Rohr on 10 January 2018, both of which are quite specific and consistent, plus the lack of medical attendance until after the home event.
…
[28] Arbitrator's reasons for decision [161].
The Arbitrator also referred to the evidence of Dr McCormick, and gave it some weight, but stated 'more important is the factual evidence'. He went on to convey significant concern with the various inconsistencies in Ms Mitchell's description of events. He made allowances in relation to language, clinical notation, time pressure and medication. However, he said:[29]
… the more contemporaneous documents are clear - any knee condition following the car event was minor, of temporary effect and produced no symptoms from the day after the car event up to the home event.
[29] Arbitrator's reasons for decision [162].
The Arbitrator went on to say that:[30]
Although there was evidence of a meniscus tear, I am not satisfied the evidence establishes that the tear occurred during the car event. …
[30] Arbitrator's reasons for decision [164].
Ultimately, he stated that he was not persuaded that the Car Incident was a material cause of any subsequent incapacity (or expense).
The Arbitrator found that the knee was symptom free and was so for a number of weeks prior to the Home Incident. There was no medical attendance until after the Home Incident, consistent with there being no symptoms until that time. He said:[31]
I do not accept Ms Mitchell's evidence that she was symptomatic after the car event save for a few hours.
[31] Arbitrator's reasons for decision [167].
The Arbitrator repeated what he had concluded in relation to Ms Mitchell and the Car Incident.[32] Indicating that he did:
… not accept Ms Mitchell's evidence that after the car event her knee continued to be painful and that she 'battled on' …
[32] Arbitrator's reasons for decision [168].
The Arbitrator concluded that he did not find her explanations convincing and was 'not persuaded that any incapacity resulted from the car event'.
The Arbitrator did refer, in some detail, to the report of Dr Joel Silbert.[33] Dr Silbert's report was dated 3 April 2019, addressed to SJOG, following an examination on 26 March 2019. In his report, he first lists the documents with which he had been provided prior to the assessment. These appear to include all prior documentation, medical certificates and reports. He declared that he was aware of his obligations as an expert and had been appropriately trained in the evaluation of impairment.
[33] Arbitrator's reasons for decision [89] - [98].
At the end of the report, he refers to the specific questions that he was asked in his letter of instructions dated 14 March 2019.
The first of these questions concerned the detailed history as described to him by Ms Mitchell. That history recorded by Dr Silbert is consistent broadly, with the evidence Ms Mitchell gave before the Arbitrator, which the Arbitrator analysed and rejected, as to the incident on 22 June 2018. Each paragraph in this section of his report commences 'Ms Mitchell reports'. From that, it appears that Ms Mitchell reported nothing in relation to the Home Incident. He goes on to give his opinion, in answer to a direct question, that Ms Mitchell's ongoing symptoms of left knee restrictions are wholly and attributable to mechanical trauma to the left knee associated with negotiating her motor vehicle on 22 June 2018.
In the letter of instructions, the background was provided in detail for Dr Silbert. That background included Ms Mitchell's report that she had wrenched her knee on or about 7 July 2018 at home and found it painful at work that day, thus consulted her general practitioner.
The Arbitrator noted[34] that the information about the Home Incident was available to Dr Silbert, which information he had considered from the documents. Dr Silbert made no reference to the Home Incident in his report. It does not however follow that the Arbitrator found Dr Silbert did not consider the relevance of the Home Incident as alleged in ground of appeal 1(1).
[34] Arbitrator's reasons for decision [92].
The summary of the history provided to Dr Silbert by Ms Mitchell at consultation made no reference to the Home Incident. The Arbitrator inferred that Ms Mitchell did not mention that event in her consultations. The Arbitrator noted[35] that Dr Silbert made reference to a further incident in August. Dr Silbert's written report significantly did not analyse possible competing cause of injury in the Home Incident.
[35] Arbitrator's reasons for decision [97].
The Arbitrator noted that Dr McCormick had commented on the Home Incident. The fact of its absence from Dr Silbert's report and, presumably, Ms Mitchell's account to Dr Silbert was telling.
The Arbitrator concluded that he should approach Dr Silbert's opinion on causation with some caution. In these circumstances, it cannot be said that to exercise such caution was an error, by the trier of the facts.
Ms Mitchell's submissions
In written submissions and at the appeal hearing, counsel for Ms Mitchell submitted that there was an error of law or mixed law and fact by affording little or no weight to the evidence of Dr Silbert or Dr Rohr.
Further, counsel submitted that the Arbitrator fell into error by incorrectly holding that Dr Silbert did not consider the relevance of the Home Incident.
The written submissions asserted that the Arbitrator misapplied Pollock v Wellington[36] and Beer v Duracraft Pty Ltd[37] to find the opinion evidence inadmissible or of no weight. Later, in the written submissions, counsel for Ms Mitchell states that his assertion in relation to the application of those authorities was, at least, implied.
[36] Pollock v Wellington (1996) 15 WAR 1.
[37] Beer v Duracraft Pty Ltd [2004] WASCA 192 [80].
Those authorities confirm the basic principle that opinion evidence cannot be of any value, unless the facts upon which opinion is founded is proved by admissible evidence or accepted otherwise. Further, expert opinion must be comprehensible and the conclusion must be rationally reached. Justice Wheeler observed in Beer v Duracraft Pty Ltd that exact correlation between the proven facts in evidence and the matters relied upon by the opinion witness is not necessarily required. These principles are applied in the Workcover jurisdiction.[38]
[38] Marks v Coles Supermarkets [2020] WADC 36 [127] - [130].
There is no indication in the reasons that the Arbitrator turned his mind specifically to the authorities raised on behalf of the appellant. Nor would he necessarily be expected to do so.
It is clear, from the reasons of the Arbitrator, that his decision was based upon his assessment of the credit of Ms Mitchell as to the occurrence of a relevant injury on 22 June 2018 causing incapacity and expense. The Arbitrator found that there were significant inconsistencies in the prior accounts given by Ms Mitchell to the medical doctors consulted and in the forms she completed. The Arbitrator's decision on those facts was based upon a credibility assessment of Ms Mitchell. It is upon that assessment that his decision turned.
Section 188 of the WCIMA provides as follows:
(1)An arbitrator is bound by rules of natural justice except to the extent that this Act authorises, whether expressly or by implication, a departure from those rules.
(2)The Evidence Act 1906 does not apply to proceedings before an arbitrator and an arbitrator -
(a)is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the arbitration rules make them apply; and
(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)An arbitrator may inform himself on any matter as the arbitrator thinks fit.
However, the principles underpinning long established rules of evidence are often a good guide for an arbitrator or other trier of fact.
As noted by his Honour O'Neal DCJ in MacMahon Holdings Ltd v McKenzie:[39]
The historical common sense as to what makes particular evidence persuasive or gives it value for a decision maker, and how contentious facts should be proved to ensure fairness to all concerned, are not to be discarded lightly. Section 188(2)(b) of the Act itself expressly requires that hearings before arbitrators be conducted, 'according 'according to equity, good conscience and the substantial merits of the case …'.
[39] MacMahon Holdings Ltd v McKenzie [2018] WADC 28 [40].
It does not require any detailed consideration of the principles or authorities on the admissibility of expert evidence to follow the reasoning process of the Arbitrator. Where an expert medical opinion is based upon an account of the facts that the decision-maker (Arbitrator) does not accept, it is entirely correct that the opinion of the expert should be treated with great caution, if not discarded entirely.
Further, where the author of the expert opinion does not disclose his analysis or reasoning process in coming to the disputed conclusion, his opinion lacks cogency, expressed by Wheeler J as follows:[40]
Further, the process of inference that leads to the formation of the relevant opinion must be stated or revealed in a way that enables the conclusions to be tested and a judgment made about their reliability: Pollock v Wellington at 4 per Anderson J; Makita v Sprowles at 741 per Heydon JA.
[40] Beer v Duracraft Pty Ltd [79].
The Arbitrator, on the facts, did not accept the causative connection between the Car Incident and the subsequent incapacity occurring after the Home Incident. He rejected Ms Mitchell's evidence as to any significant consequence following the Car Incident. That was enough to dispose of the application for weekly payments and expenses.
Accordingly, there is no merit in ground 1 in this appeal.
Insofar as the grounds of appeal rest upon an allegation of a weighting error of the evidence of Dr Silbert or Dr Rohr that could not establish an error of law. The weight to be given to any evidence is a matter of fact, in context of all the evidence.[41]
[41] BHP Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60 [60].
The Arbitrator plainly did not disregard the opinion of Dr Silbert. He considered it and in effect rejected it on the crucial issue.
At no point did the Arbitrator express or imply that he found the evidence of Dr Silbert or Dr Rohr to be inadmissible.
Ground 2 is difficult to interpret, but appears to be a repetition of the allegation of a weighting error or errors in reaching the conclusions quoted.
The conclusions drawn by the Arbitrator were based upon all of the evidence, not by reason of affording little or no weight to Dr Silbert or Dr Rohr. There were adverse credibility findings against Ms Mitchell.
Conclusions
The grounds of proposed appeal in this matter misconceive the basis upon which the Arbitrator reached his decision. It is for the Arbitrator to determine the facts of a matter. This includes whether the events found to have happened, as a matter of fact, resulted in the incapacity for which compensation can be claimed. The Arbitrator did not accept the primary evidence of the consequences of the Car Incident as given by Ms Mitchell. That is a finding of fact, not law.
Furthermore, it is clear that this claim was determined on a credibility basis, which the expert opinion evidence could not assist. The utility of the medical evidence was limited once those factual findings were made.
There being no error of law identified in the Arbitrator's decision, leave to appeal must be refused.
There is no reason why costs should not follow the event.
Orders
In the light of the above, I make the following orders:
1.Leave to appeal is refused.
2.The appellant to pay the respondent's costs to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JM
Associate to Judge Braddock30 NOVEMBER 2020
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