Mosawi v Baron Forge (NSW) Pty Ltd

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

Mosawi v Baron Forge (NSW) Pty Ltd [2022] NSWPICPD 48

APPELLANT:

Aqil Mosawi

RESPONDENT:

Baron Forge (NSW) Pty Ltd

INSURER:

Employers Mutual NSW Limited

FILE NUMBER:

A1-W4726/21

PRESIDENTIAL MEMBER:

President Judge Phillips

DATE OF APPEAL DECISION:

7 December 2022

ORDERS MADE ON APPEAL:

1.    The appellant is granted leave to appeal against the Member’s decision pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998.

2.    The Certificate of Determination dated 14 January 2022 is confirmed.

CATCHWORDS:

WORKERS COMPENSATION – section 4 of the Workers Compensation Act 1987 – nature of injury – determination of pathology – Inghams Enterprises Pty Limited v Belokoski [2017] NSWWCCPD 15 applied – weight given to expert evidence – Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 – decision maker not required to address every piece of evidence or argument in reasons – failure to address evidence or argument must be critical to case to establish error – Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209 considered

HEARING:

On the Papers

REPRESENTATION:

Appellant:

Mr J Malouf, counsel

Ayoub Lawyers

Respondent:

Mr P Stockley, counsel

Moray & Agnew Lawyers

DECISION UNDER APPEAL

MEMBER:

Mr J Wynyard

DATE OF Member’s DECISION:

14 January 2022

INTRODUCTION AND BACKGROUND

  1. Aqil Mosawi, the appellant, was employed by the respondent as a machine operator. His duties included, in addition to operating machinery, the lifting of benchtops, slabs and other equipment.

  2. On 28 October 2016, the appellant was carrying a caesarstone benchtop weighing approximately 50–60 kg outside of the respondent’s factory. He was carrying this benchtop with a colleague. They were both carrying the benchtop on their shoulders. The appellant stated that whilst carrying the benchtop on his shoulders in this manner, “I experienced immediate and severe back and chest pain. The pain in my back radiated up to my neck.”[1] The appellant then drove himself to Liverpool hospital for treatment.

    [1] Appellant’s statement 24 September 2021, Application to Resolve a Dispute (ARD), p 2, [14].

  3. The appellant claimed injuries to his lumbar, thoracic and cervical spines, with a combined whole person impairment of 15%. The respondent disputed the allegation with respect to injury to the cervical spine and it was this matter that was contested before Member Wynyard. The pleadings in those proceedings referred to the appellant sustaining an injury to his back which “radiated” to his chest and neck.[2] The matter was heard by Member Wynyard on 10 November 2021 with the parties agreeing that the only matter in dispute was whether the appellant injured his cervical spine. The Member entered an award for the respondent with respect to the asserted injury to the cervical spine. The Member separately ordered that the injuries to the appellant’s thoracic and lumbar spines be referred to a Medical Assessor for the purposes of whole person assessment.[3] This latter order is not the subject of any dispute on this appeal, save…

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Details
Case
[2022] NSWPICPD 48
Decision Date

CaseChat Overview and Summary

Mosawi v Baron Forge (NSW) Pty Ltd was a workers compensation matter heard in the NSW Court of Appeal. Mosawi, the appellant, sought to overturn a decision by the respondent, Baron Forge (NSW) Pty Ltd, to deny his claim for compensation. The primary dispute centred on the nature and extent of Mosawi's injuries and whether they were related to his work. The Court of Appeal was tasked with reviewing the decision made by the primary tribunal regarding the acceptance of expert evidence and the reasoning provided.

The legal issues before the court included the proper approach to evaluating expert evidence and the adequacy of the reasons given by the tribunal in reaching its decision. The court had to consider whether the tribunal correctly assessed the probative value of the expert evidence, specifically Dr Papatheodorakis's report, and if the tribunal's reasons were sufficient to justify its decision. The court also needed to determine if the tribunal erred in failing to address certain evidence or arguments, and if such failure was critical to the outcome.

In its reasoning, the court found that the tribunal did not err in its assessment of the expert evidence. The tribunal was satisfied that Dr Papatheodorakis's opinion did not support the claim of a pathological change in Mosawi's cervical spine. The court emphasised that the tribunal was not bound to address every piece of evidence or argument, provided the omitted material was not critical to the case. The court upheld the tribunal's decision, stating that the reasons provided were sufficient and that the tribunal had correctly exercised its discretion in evaluating the evidence. The appeal was dismissed, and the decision of the tribunal was affirmed.

The final orders of the court were that the appeal be dismissed, and the decision of the tribunal be upheld. The court found no merit in the grounds of appeal presented by Mosawi and confirmed the tribunal's decision denying his claim for compensation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In terms of the approach to expert evidence, I have set out above some principles from Hancock. The relevant sections from Hancock in terms of this appeal ground are as follows:“In South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; (2007) 4 DDCR 421, McColl JA (Giles and Tobias JJA agreeing) observed, at [127]: ‘While the Commission may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matter before it permits (s 354(2)), r 70 of the Workers Compensation Commission Rules 2003 [the Workers Compensation Commission Rules 2006, r 15.2] provides that when informing itself on any matter, the Commission is to bear in mind the principles that evidence should be logical and probative, should be relevant to the fact in issue and the issues in dispute, that evidence ‘based on speculation or unsubstantiated assumption is unacceptable’ and that ‘unqualified opinions are unacceptable’.’(The Workers Compensation Commission Rules 2006, r 15.2 superseded, but replicated in identical form, the Workers Compensation Commission Rules 2003, r 70.) Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone. In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA. That is the way that Keating DCJ dealt with Dr Summersell's evidence in this case, so that is not the relevant error.”[109] (emphasis added)[109] Hancock, [81]–[83]. Rule 73 of the Personal Injury Commission Rules 2021 is in substantially the same terms as the former Workers Compensation Commission Rules referred to in this extract. To this authority I would also add the following remarks regarding the approach to expert evidence in the Commission. The expert has to expose their path of reasoning in reaching their opinion. This reasoning then must have a connection to the view reached and the specialised knowledge said to be held by the expert.[110][110] Dasreef Pty Ltd v Hawchar [2011] HCA 21, [42]. And finally, in South Western Sydney Area Health Service v Edmonds,[111] McColl JA found as follows:“In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that ‘[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it’. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59]–[82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39–40 that:‘... the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. While it must be recognised that ‘[t]here is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission and decisions whether to allow cross-examination or to limit it are discretionary’ (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. Even if that is too stringent an approach in the face of s 354, as the rules recognise, evidence must be ‘logical and probative’ and ‘unqualified opinions are unacceptable’.In my view Dr Rivett’s statement that ‘in general all the problems are work-related’ which the Arbitrator accepted in concluding that the respondent’s duties were sufficient to cause her injury (apparently within the meaning of s 16) amounted to a bare ipse dixit. It was not probative of the issue before the Arbitrator.The Deputy President rejected the appellant’s challenge to the Arbitrator’s acceptance of Dr Rivett’s opinion on the basis that the relative weight and relevance of the expert evidence was a discretionary decision which could only be disturbed on House v The King principles. This was, in my view, an over-generalisation. There are certainly aspects of the laws of evidence which involve discretionary decisions. The application of ss 135 and 136 of the Evidence Act 1995 are ready examples. However the question whether expert evidence relied upon by a party is probative of a matter in issue is determined in accordance with legal principle and is susceptible to review on appeal in accordance with the principles which govern appellate review of findings of fact: see generally Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.”[112][111] 2007 NSWCA 16 (Edmonds).[112] Edmonds, [130]–[132].

Decision

Reasons for decision

Further, as McHugh JA said in Soulemezis v Dudley (Holdings) Pty Ltd:[97] “If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated.” (emphasis added)[97] (1987) 10 NSWLR 247, 280 (Soulemezis). The history which Dr Papatheodorakis took was that in the subject incident, the appellant “felt sharp upper back pain”.[98] The doctor then took a brief history before describing the appellant’s “current status”. The doctor then at the section of his report entitled “Investigations” reviewed the various scans and their reported findings.[99] The doctor then states, beneath the heading “Opinion/Diagnosis”:“Mr Mosawi sustained cervico-thoracic and lumbosacral spine soft tissue injuries following the lifting incident at work on 28 October 2016. Mr Mosawi has undergone various imaging studies. These excluded any significant cord or nerve root lesions.…ln summary, Mr Mosawi’s current presentation is consistent with a diagnosis of non-specific chronic (mechanical) cervico-thoracic & lumbar back pain.”[100][98] ARD, p 175.[99] ARD, p 176.[100] ARD, p 176. As I have described above, the Member dealt with this opinion at reasons [115]. The problem with the appellant’s submission in this aspect of Ground E is that the opinion of injury relied upon by the appellant does not accord with the history taken by Dr Papatheodorakis, which was of “upper back injury”. However, even if one were to ignore that problem with the report, the Member’s essential finding was that he was not satisfied “that there was any pathological change in Mr [Mosawi’s] cervical spine sufficient to establish injury.” This was a finding that was within the Member’s discretion as the first instance decision maker. Whilst he did not deal with the initial statement regarding injury which I have set out above, the net effect of the Member’s finding was to not be satisfied that Dr Papatheodorakis’s opinion provided support for the appellant’s assertion of cervical injury for the reasons outlined at reasons [115]. This is the substance of the decision reached by the Member. In Roncevich v Repatriation Commission,[101] Kirby J warned against an “overly pernickety examination of the reasons” when reviewing decisions of busy administrative tribunals. Rather, the focus should be upon “the substance of the decision and whether it has addressed the ‘real issue’ presented by the contest between the parties.”[101] [2005] HCA 40, [64]. The Member was not satisfied that there was a pathological change in the appellant’s cervical spine sufficient to establish injury, this was the substance of the issue at hand and it is clear from the Member’s reasons why he was not satisfied with the appellant’s case. This did not involve the Member in any error.

Ratio Decidendi

Legal Principle Established

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