Parker v Tenterfield Rural Lands Protection Board (Formerly Tenterfield Pastures Protection Board) - [2016] NSWWCCPD 26

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Parker v Tenterfield Rural Lands Protection Board (Formerly Tenterfield Pastures Protection Board) [2016] NSWWCCPD 26
APPELLANT:	Glenda Parker
RESPONDENT:	Tenterfield Rural Lands Protection Board (Formerly Tenterfield Pastures Protection Board)
INSURER:	AAI Ltd t/as GIO
FILE NUMBER:	A1-4415/15
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	11 November 2015 (Amended 12 January 2016)
DATE OF APPEAL DECISION:	10 May 2016
SUBJECT MATTER OF DECISION:	Expert evidence; application of Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399; failure to address relevant evidence; procedural fairness – alleged denial of right to make submissions
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Gerard Malouf & Partners
Respondent:	Thompson Cooper Lawyers Pty Ltd
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 11 November 2015, as amended on 12 January 2016, is revoked. 2. The matter is remitted for redetermination by another Arbitrator.

INTRODUCTION

Glenda Parker (the appellant) is the widow of the late Mr Ronald Parker (the deceased). The appellant’s claim is brought for the ‘lump sum death benefit’ pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act).
It is alleged that the deceased was exposed to herbicides in the course of his employment with Tenterfield Rural Lands Protection Board (formerly Tenterfield Pastures Protection Board) (the respondent), and that such exposure resulted in his death.
The claim was disputed for reasons which included ‘injury’ pursuant to s 4 of the 1987 Act and the causal connection between any such injury and the death of the deceased.

BACKGROUND

The deceased died on 8 April 2005 at the age of 56. There is no marriage certificate in evidence. The appellant gave evidence that she was married to the deceased at the time of his death and the respondent did not challenge this. The appellant’s evidence was consistent with her being at least partially dependent on the deceased at the date of death.
The evidence does not reveal the date when the appellant and the deceased married. The death certificate of the deceased indicates that the appellant was his second wife. The death certificate stated that he was 53 years of age when he and the appellant married. This would be consistent with the appellant and the deceased marrying in approximately 2001 or 2002.
The Application in Respect of Death of Worker (the Application) pleads that the deceased worked for the respondent from 1975 to 1982. The overall period, on the evidence, is unclear. Statements of two lay witnesses (in the respondent’s case) are consistent with the deceased working with the respondent subsequent to 9 May 1984 (Mark Hughes’s statement) and during some part of 1983 to 1985 (Frank Koch’s statement).
The deceased was employed casually as a Reserves worker with the respondent and his duties included weed spraying. The appellant’s case is that the deceased was exposed to chemicals including 245T.
The deceased was diagnosed with cardiomyopathy in 2000. The evidence was that he was employed by the local council at that time, and then resigned (T6.10–6.17). He was under the care of Dr Cody, a cardiologist, from December 2000. Dr Cody said that the deceased developed diabetes over 2002 through to March 2003.
The appellant’s argument, pursued at the arbitration hearing, was that exposure to chemicals with the respondent resulted in the deceased developing diabetes with poor metabolic control, which was the cause of him then developing cardiomyopathy, which resulted in a myocardial infarct causing death.
The precise circumstances of the deceased’s passing are not apparent from the evidence. There was no autopsy. Dr O’Brien signed a medical certificate of the cause of death dated 8 April 2005. The death certificate was consistent with that medical certificate.
The death certificate relating to the deceased described the cause of death as:
“(I)(a) Myocardial infarct
(b) Ischaemic heart disease, 5 years
(c) Cardiac failure/cardiomyopathy, 5 years
(II) Non-Insulin dependant diabetes
Obesity”
The appellant’s claim for the relevant death benefit was declined in s 74 notices dated 24 November 2005, 12 November 2014 and 23 July 2015.

ISSUES IN DISPUTE

The Commission issued a Direction dated 29 February 2016 directing the appellant to lodge and serve, on or before 14 March 2016, amended grounds of appeal and submissions, consistent with Practice Direction No 6. In compliance with this Direction, the appellant on 14 March 2016 lodged an amended Application – Appeal Against Decision of Arbitrator. The issues in dispute on the appeal, based on that document, are:
(a)     whether the Arbitrator misdirected himself as to the determinations/conclusions made by Professor Keogh;
(b)     whether the Arbitrator erred in concluding that the appellant had failed to discharge the onus of proof;
(c)     whether the Arbitrator erred in taking into account irrelevant considerations when adjudicating factual disputes between the parties, and
(d)     whether the appellant was denied procedural fairness by the Arbitrator.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties 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 and that 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, as found in the provisions of s 352(3) and s 352(4) of the 1998 Act, have been met.

THE ARBITRAL PROCEEDINGS

The matter proceeded to an arbitration hearing on 28 September 2015. Mr De Greenlaw of counsel appeared for the appellant and Mr Allen Parker of counsel appeared for the respondent. The appellant gave some short oral evidence and was briefly cross-examined, by leave. The parties addressed and the Arbitrator reserved his decision.

THE EVIDENCE BEFORE THE ARBITRATOR

The Lay Evidence

The lay evidence was limited.
The appellant’s statement dated 11April 2014 described her as the wife of the deceased. The appellant said that at the time of the deceased’s injury she had a catering business but was solely dependent on the deceased as her business was not good. She said that when the deceased was diagnosed with cardiomyopathy in 2000 he “resigned and went on the disability pension”. She ceased her catering business and went on a carer’s pension to look after him. The balance of the statement said that the deceased performed various activities around the home prior to his death, and that the appellant had relied on charities to survive since the death of the deceased.
The appellant gave brief evidence at the arbitration hearing. This went predominantly to the issue of ‘dependency’. She was asked whether the deceased was “on the disability pension” at the time she married him. She said:
“No. He was put on a disability pension after he was diagnosed with a heart problem not to work again.” (T6.11)
This was “2000 to 2001. He was working with the Tenterfield Shire”. (T6.16)
The appellant in cross-examination said the deceased “went many times to his local doctor and – and our doctor in Lismore” (T10.1) for treatment of his skin conditions. The deceased also “bought much stuff over the counter” (T10.2). The deceased had “melanomas cut of[f] him” (T10.13). He saw Dr Pilgrim in Tenterfield, and Dr Theodore in Lismore. He was “treated with creams … prescription or over the counter medications, and nothing would alleviate it.” (T12.29)
The respondent’s evidence included a document headed “Summary of Government Response to Report of Expert Medical Panel” dated February 2004. The email address contained in the document suggested it was compiled at the behest of the Government of Western Australia. It referred to an “Expert Medical Panel” which had been appointed to undertake analysis of “potential links between chemical spraying and illness among former APB workers in the Kimberley”. It referred to a review by Dr Andrew Harper, and said that six of sixteen recommendations made by Dr Harper were referred to the Panel.
The document said a government employer, APB, and insurer, Riskcover, would accept claims for cancers by former Kimberley workers, with evidence of material exposure to 245T herbicide. It said that claims for illness other than cancer would be managed “through the current workers’ compensation system in the normal way”. It said:
“However, the Expert Medical Panel’s report appears to have provided no scientific basis for a causal association between illnesses other than cancer and exposure to the herbicide.”
The respondent also relied on statements of two lay witnesses, Lloyd Hughes and Frank Koch, both dated 26 October 2005.
Mr Hughes said he was employed by the respondent (through various corporate changes) as a ranger, then a senior ranger, from 9 May 1984 to 11 November 2001. He said he met the deceased when he (Mr Hughes) commenced with the respondent. The deceased was employed casually as a Reserves Worker; his duties “included weed spraying”.
Mr Hughes remembered the chemicals that were used were 245T (for blackberries) and Estecide 80 (for broadleaf weeds). This continued until after the deceased ceased his employment with the respondent.
Mr Hughes said he “never saw Ronald or any other worker saturated in spray chemicals as a result of performing his duties”. He said leaking connections would occur. He said:
“A leaking connection was easily rectified and would not produce a great deal of chemical leaks. I would describe it more as excess droplets that would not cause saturation.”
Mr Hughes said the deceased never complained to him of the effect of chemicals on his skin. He did not know of any worker who was affected by the chemicals used in weed spraying.
Mr Koch said he and the deceased had “worked together at the Riverstone Abattoirs in Tenterfield, from 1960 until 1981, when the establishment closed”.
Mr Koch said he worked “on [a] casual basis with the Tenterfield Pastures Protection Board from about January 1983, for 3 months of each year, until the end of April 1989”. He and the deceased were both “Reserves Workers”. Their “duties involved some fencing, but mainly spraying blackberries”. He said he worked alongside the deceased whilst spraying blackberries. “The seasons were either 1983, 1984 or 1985.”
Mr Koch said that he and the deceased:
“… were provided with the following safety equipment: Face masks with breathing cartridges attached and heavy gloves. Ronald always wore his safety equipment.”
Mr Koch recalled that he and the deceased used 245T and Garlon. He said the deceased never mentioned “any skin condition that was related to the weed spraying or otherwise”. He was unaware of the deceased’s heart problems. He said:
“21. During attendance in the field, there was never an occasion when Ronald or I received a soaking of the chemicals to saturation level. Occasionally a small hose leak would occur or a wind change may blow spray some back [sic], but these were only minute amounts.
22. If on location the wind was considered too strong then spraying would not commence or continue.”
Mr Koch said that the deceased never complained to him of the effects of chemicals on his skin.
The respondent relied on a document from Dr Pilgrim, a general practitioner, headed “Workers Compensation FIRST Medical Certificate”, dated 3 February 2005 (the medical certificate). Much of the document appears to have been filled out by the deceased. The document gave the employer as “Tenterfield Pasture Protection Board”. The “Date of injury/disease, etc.” was given as “1975 onwards”. The document continued:
“Worker’s description of the injury, disease, etc: Continual spraying of chemicals 245T 245D800
Worker’s description of how it occurred: Skin contact. Inhaling fumes spray mist”
The “Major activity of workplace” was given as “Spraying of weeds, on riverbanks”. “The main tasks or duties performed” were given as “SPRAYING WEEDS”. “When did you stop working” was stated to be “6/12/2005”. This date is plainly incorrect as the document was dated 3 February 2005, there is a received stamp on it dated 22 April 2005, and the deceased died on 8 April 2005. “What actually happened and what caused the occurrence” was followed by:
“(i) what action was involved, e.g. – fall, caught between, struck by moving object SPRAYED WITH TOXIC CHEMICALS
(ii) what object, machine, substance was involved e.g. petrol fumes, wooden door frame BACK PACK SPRAYER WITH MIST SPRAY”
At a section of the document which asked why medical attention was not sought immediately, the answer given was “GRADUAL ONSET nature of condition”.
In the section of the document which asked for “the most serious injury or disease caused by the occurrence” and the “bodily location of the injury or disease” no information was inserted.
The document did not identify the nature of the injury. Dr Pilgrim inserted his details and signed the document. He did not fill out the document where it sought information on fitness for work and medical management. There was no expression of medical opinion in the document.

The Medical Evidence

Dr Halliday, a gastroenterologist, performed gastroscopy and colonoscopy on the deceased on 13 September 2000. During the course of these procedures an anaesthetist noticed an irregularity in the deceased’s heart rhythm. Dr Pilgrim referred the deceased to Dr Cody who first saw him on 1 December 2000.
Dr Cody referred to a Sestamibi ECG and 12 lead stress test ECG, carried out in October 2000, as showing “non-specific dilated cardiomyopathy with no evidence of a significant area of inducible myocardial ischaemia”. There was “a short history of chest pain radiating down the left arm which was not related to exertion”. The deceased “did not mention his employment details”. Dr Cody concluded the deceased “had evidence of a dilated cardiomyopathy of unknown origin”.
Coronary angiography was carried out on 6 December 2000. This showed a “very tortuous right iliac artery”. “The coronary arteries were large and normal so Mr Parker did not have ischaemic cardiomyopathy.” The deceased had never smoked and had a moderate alcohol intake. Dr Cody said studies did not show any viral cause for the cardiomyopathy, which Dr Cody said he “could not find a cause for” at that stage.
An unknown person has handwritten “chemical exposure” on Dr Cody’s report dated 17 October 2011. There are three pieces of handwriting on this report. There is no reason to think they were inserted by Dr Cody.
Dr Cody said he reviewed the deceased “over the following years for breathlessness and cardiac failure”. The deceased’s “left ventricular ejection fraction increased over this period of time 2000 to 2004 from 22% to 44% which was a very good result”. Dr Cody said:
“During this time Mr Parker also developed diabetes and hyperlipidaemia which were treated accordingly.”
Dr Cody said he last saw the deceased on 22 February 2005, when he was “feeling well although still breathless on undue exertion”. Dr Cody’s summary in his report dated 17 October 2011 was:
“Mr Parker had a dilated cardiomyopathy with an unknown aetiology. Dilated cardiomyopathy with reduced left ventricular function has a very poor prognosis.”
There is a medicolegal report of Dr Cody dated 26 March 2015. Dr Cody diagnosed “non-ischaemic dilated cardiomyopathy”. In that report Dr Cody said:
“Over the years of 2002 through to March 2003 Mr Parker had developed diabetes and had been commenced on Diabex for treatment of this. It was interesting that over the years, and subsequent to this, he did not have well controlled diabetes and he persisted with very high blood glucose levels.”
Dr Cody said that the deceased’s home in Tenterfield was “approx. 2½ hours by road”, so he mainly saw the deceased on a yearly basis. He said “there was really no discussion about his exposure to herbicides during this period.” Dr Cody then said:
“It would appear that he had had a long exposure to the herbicide known as 16 Agent Orange. He also had exposure to other chemicals which are referred to as 245T, and 24D chemicals.
I would have to say that I had no experience in dealing with patients exposed to these herbicides.”
Dr Cody also said:
“Ronald Parker, on the information from the legal proceedings, did have evidence of herbicide exposure with chloracne, skin lesions and smell from exuding herbicides and frequent respiratory disorders. I think the most important problem associated with Mr Parker however, is the fact that he had diabetes mellitus and that his diabetes had been significantly unstable.
The role of diabetes in congestive cardiac failure was analyzed initially in the Framingham Study many years ago and the risk of developing heart failure was increased substantially with a fivefold increase risk of congestive heart failure.” (endnote omitted)
Dr Cody then referred to the SOLVD study, and added:
“Taken together, these studies strongly confirm that, in some diabetic patients, there is a non-ischaemic cardiomyopathic process in place.
Mr Parker did, in fact, have diabetes (with poor metabolic control ie: blood sugar levels) and non-ischaemic cardiomyopathy with associated congestive heart failure.
There is certainly a significant chance, that Mr Parker’s diabetes was the cause of his cardiomyopathy.” (emphasis in the original)
Dr Cody then referred to the practice of U.S. Veterans Affairs in compensating Vietnam veterans who had been exposed to 245T and Agent Orange in Vietnam. There were 14 diseases which, in veterans, were “considered service connected”. One of these was diabetes mellitus type 2. Dr Cody then said:
“On the basis of the United States recommendations, as a result of Agent Orange, Mr Parker could be said to be suitably acceptable because of his Diabetes Mellitus Type 2.
The establishment of Chronic Non-Dilated Cardiomyopathy is well illustrated in relation to Diabetes Mellitus Type 2 and it would seem to me that the relationship between Mr Parker’s use and exposure to Agent Orange 245T and 24D chemicals may have been a prominent cause of his diabetes which is accepted as appropriate and that his congestive cardiac non-ischaemic dilated cardiomyopathy occurred as a result of his diabetes. The logic of this would seem to be unassailable.” (emphasis in the original)
The appellant also relied on a report of Dr Harper, an occupational and public health physician, dated 14 February 2013. Dr Harper said that he had received a letter from Mrs Parker describing the deceased’s medical history. He noted the deceased used 245T to spray weeds between 1975 and 1981. He wore a backpack spray and did not wear any protective clothing. The report said that the deceased had contacted Joanne Moore in Derby in 2003, as she worked as a nurse co-ordinator for “Kimberley workers affected from the weed spraying program which took place there between 1975 and 1985”.
Dr Harper said the deceased:
“… reported a number of symptoms including dizziness, lethargy, angry mood swings, headache and gastric symptoms. His body smelled like burnt oil for which he showered several times a day. He suffered extreme itching with weeping sores. His sheets were stained like grease with an acid smell. He became very depressed and totally impotent. In the year 2000 he complained of chest and arm pain when he saw Dr Cody …”

Dr Harper recorded that the history provided to him by the appellant described “extensive exposure to the herbicide defoliant 245T”. He said “It is unquestionable that his exposure was significant and the dose was sufficient to cause illness.” Dr Harper said it was typical that there would be “multiple symptoms of a relatively non-specific nature such as those experienced by Mr Parker”. It was “typical that toxicological investigations prove[d] negative”. He spoke of the “increased incidents of illness in people exposed to 245T”. He said:
“The situation is that there is insufficient medical knowledge to prove definite causation. Importantly there is also insufficient information to disprove a link between weed spraying and illness.”
Dr Harper referred to the practice of the U.S. Government in dealing with Vietnam veterans (see [50] above). He said:
“My assessment of the weed sprayers in the Kimberley was that this same approach should be taken. I take this same view of the case of Ross [sic, Ronald] Parker.
My opinion is that on the balance of probability his health was adversely affected to a clinically significant degree sufficient to have been a major and dominant contributor to his premature death.”
The respondent relied on two reports from Professor Keogh, a cardiologist and Professor in Medicine at the University of New South Wales. In the first of these, dated 10 November 2014, she outlined the material made available to her to prepare her report. The material to which she referred consisted essentially of reports and notes which are in evidence. However, she also referred to a document simply described as “Letter to Gerard Malouf and Partners”. Whether this was the letter from the appellant referred to in Dr Harper’s report is not apparent. She also referred to a statement of the appellant. The statement of the appellant in evidence is that dated 11 April 2014. It is not known whether this was the statement to which Professor Keogh had access. There is no reason to believe otherwise.
Professor Keogh attached a detailed medical chronology, apparently based on the material supplied to her. She said that the deceased “was classified as non-ischaemic, idiopathic (unknown cause) dilated cardiomyopathy”. She said the “most common assumed relationship in idiopathic is ‘post-viral’ ie a viral infection triggers a cardiomyopathy.” She also referred to the possibility of gene mutations at birth.
Professor Keogh said that the deceased “was exposed to 2,4,5-T, 2,4-D 800, Esticide 80 and Garlon in his job as a weed sprayer”. She referred to the U.S. Veterans Affairs practice of recognising 14 cancers and other health problems as “considered service connected and caused by Agent Orange”. One of these was “Ischemic Heart Disease (including ischemic dilated cardiomyopathy)”. Professor Keogh said:
“Not all heart disease qualifies for the presumptions above. Mr Parker had a dilated non-ischemic cardiomyopathy as evidenced by normal coronary arteries on coronary angiogram.
The fact is that despite an extensive search of the medical and agricultural literature I have been unable to find a [sic] any publications which attribute idiopathic dilated non-ischemic cardiomyopathy to the use of any of the above herbicides. I have to assume that he did have an idiopathic cardiomyopathy quite possibly genetic or post-viral.” (emphasis in the original)
Professor Keogh concluded:
“The mode of death is not known to me. I do not know if the circumstances of his death pointed to a cardiac cause of death or other cause of death. He died before his next appointment for an echocardiogram. There was no autopsy. Mr Parker died with a plethora of co-morbidities including obesity (112 kgs at death), Schatzki esophageal ring, esophageal dysmotility, chronic iron deficiency related to bowel bleeding and prior duodenal ulceration, poorly controlled glucose levels, gout, profound metabolic syndrome (severe obesity Class II, diabetes, severe hypertriglyceridemia), hypercholesterolemia, probable fatty liver, osteoporosis and highly elevated fracture risk, fractured thoracic vertebra (> 25% loss of vertebral height), osteoarthritis, long standing hypertension and sliding hiatus hernia (<5 cm).
Mr Parker’s cardiomyopathy, in my opinion, and based on a fruitless search of the literature for an association with herbicides, was not related to exposure to herbicides in the course of his work.”
There is a supplementary report of Professor Keogh dated 17 July 2015. She said there was nothing in Dr Cody’s further report dated 26 March 2015 which caused her to change her opinion.
Professor Keogh referred to the opinion in Dr Cody’s report dated 26 March 2015, that cardiomyopathy was related to diabetes. She noted that Dr Cody, in correspondence dated 6 December 2000, said that he “could not find a cause for Mr Parker’s dilated cardiomyopathy”. She referred to the appellant stating that she had been told by Dr Cody that “a virus probably caused the cardiomyopathy”. (It should be noted that a statement to this effect is not in evidence. It may be that this is consistent with Professor Keogh having a copy of the appellant’s letter previously furnished to Dr Harper, although this is conjecture.)
Professor Keogh noted that the deceased’s exposure to herbicides ended in 1982 according to the appellant, “18 years before cardiomyopathy was diagnosed”. She noted the list of diseases accepted by the U.S. Veteran’s Affairs included ischaemic heart disease, but not non-ischaemic heart disease (which the deceased had). Professor Keogh also referred to the statement of Mr Koch, that the deceased always wore safety equipment.
Professor Keogh noted Dr Cody’s opinion that the deceased “developed diabetes mellitus between 2002-3”. She thought 4 January 1992 “may be the more likely date”, as the deceased, on that date, had a blood sugar level of 11.0mmol/L. The professor referred to Dr Cody’s statement that the deceased “did not have well controlled diabetes”. She said:
“In 2003 the ideal target glucose level for treated diabetes was ‘close to 7.0mml/L (NZGG). There are 14 glucose levels available to me (? fasting or nonfasting) and these ranged from 4.9 to 12.5mmol/L. Their average is 7.2mmol/L ie close to 7.0mmol/L. I am unsure from what evidence Dr Cody draws to say that Mr Parker ‘persisted with very high blood glucose levels’ or that his ‘diabetes had been significantly unstable’. Mr Parker’s diabetes was not ‘significantly unstable’. He took only Diabex medication and did not require insulin.”
Professor Keogh referred to the Framingham study, discussed by Dr Cody in connection with the existence of “a broad association between diabetes and heart failure”. She said that, due to improvements in the treatment for heart failure since the time of the Framingham study, the association between these conditions was reduced.
Professor Keogh said “The cause of death is not even known to be cardiac. Mr Parker died in bed.” (The fact that the deceased died in bed was not apparent from the evidence before the Arbitrator. Again, it may be consistent with Professor Keogh having access to the letter from the appellant, referred to in Dr Harper’s report.) Professor Keogh said that the death certificate signed by Dr O’Brien was incorrect. It gave the cause of death as “myocardial infarct secondary to ischemic heart disease 5 years”. This could not be correct. When diagnosed with cardiomyopathy in late 2000, the coronary arteries were “normal on coronary angiography”. That is, the disease was not ischaemic.
Professor Keogh said the “… cause of death is unknown. Possible causes are multiple.” She noted that the literature did not attribute dilated, non-ischaemic cardiomyopathy to weed spraying with herbicides. She said “constitutional gene mutations, alcohol and viral infections underly the majority of cases of non-ischemic cardiomyopathy (which Dr Cody diagnosed)”. She said “it is not possible to prove that cardiomyopathy arose out of or in the course of employment of the deceased” with the respondent.

THE ARBITRATOR’S DECISION

A Certificate of Determination was issued on 11 November 2015. There was an award in favour of the respondent. The Certificate of Determination was accompanied by a Statement of Reasons. An Amended Certificate of Determination and Statement of Reasons were issued on 12 January 2016. The only amendment in the amended Statement of Reasons was to the nomenclature of the parties.
The Arbitrator, at the outset, found that the appellant had been dependent on the deceased at the date of death.
He referred to the report of Dr Harper, which had been objected to by the respondent at the arbitration hearing. The Arbitrator identified various difficulties. Dr Harper had not attached a curriculum vitae to assist in establishing his expertise. There was an evidentiary conflict between the material provided to Dr Harper going to the deceased’s duties and exposure to chemicals, and the statements of Messrs Hughes and Koch. This conflict had not been addressed. Dr Harper referred to a letter from the appellant describing the deceased’s medical history. This letter, which formed the basis of Dr Harper’s assumptions, was not in evidence. The reasons state that Dr Harper relied on “information he obtained in some form or other from a Joanne Moore” (the nurse in Derby). There was no explanation of what form this account took.
The Arbitrator concluded that Dr Harper possessed “specific expertise in this field”. However, he accepted the respondent’s submission that “the weight to be given to Dr Harper’s report is thereby affected”.
The Arbitrator referred to the reports from Dr Cody and to the death certificate.
The Arbitrator summarised the appellant’s case on causation, that herbicide exposure caused diabetes mellitus, which in turn caused cardiomyopathy. He noted the theory was “developed by Dr Cody in his report dated 26 March 2015”. The Arbitrator quoted from that report at length. He then summarised the reasoning of Dr Harper.
The Arbitrator set out the points of disagreement between Dr Cody and Professor Keogh, involving matters such as when the deceased’s diabetes developed, and the extent to which it was controlled. He noted Professor Keogh’s view that the death certificate was wrong (in its reference to ischaemic heart disease), and her doubts about whether the cause of death was cardiac.
The Arbitrator then summarised the submissions.
He accepted the opinion of Professor Keogh that the exposure to herbicides did not directly cause cardiomyopathy. He described her reports as “authoritative and extremely well considered”. He noted that the United States research drawing such a connection did so in respect of ischaemic heart disease, which was not what the deceased suffered from. He noted that Professor Keogh did not discount the association between diabetes mellitus and non-ischaemic dilated cardiomyopathy.
The Arbitrator then dealt with the nature of the legal test on causation. He referred to Seltsam Pty Ltd v McGuiness & Anor [2000] NSWCA 29; 49 NSWLR 262 (McGuiness), Murray v Shillingsworth [2006] NSWCA 367; 4 DDCR 313 (Murray) and Woolworths Limited v Christopher-Coates [2014] NSWWCCPD 14 (Christopher-Coates). He noted that Professor Keogh did not say there was no possible causal connection between diabetes mellitus and non-ischaemic cardiomyopathy. The question then became whether the lay evidence supported the case argued by the appellant.
The Arbitrator referred to the judgment of Beazley JA (as her Honour then was) in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399 (Hancock) at [82]–[83], and to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita) at [64]. He dealt with various inconsistencies in the lay evidence. He noted a submission, on the appellant’s behalf that the respondent had accepted that the deceased “contracted” the symptoms complained of. The Arbitrator said the respondent disputed ‘injury’, including that pursuant to the ‘disease’ provisions. The appellant had an onus to prove her case.
There were discrepancies between the case run by the appellant, and the evidence of Messrs Hughes and Koch, regarding when the deceased worked with the respondent, and the provision of protective gear. The Arbitrator said there was no evidence dealing with when the deceased commenced work with the respondent, the period of his exposure to herbicides, the nature of that exposure, or when he first experienced symptoms. There was no expert evidence going to “the usual course that might be expected between exposure and the onset of symptoms”.
There was, on the face of it, an “absence of any evidence” from Dr Pilgrim, the deceased’s usual general practitioner. Again this was confused. Notes attached to the Application, and attributed to Dr Halliday (a gastroenterologist), “cover the period 1989 to 31 August 2005 and have the appearance of the clinical notes of a General Practitioner”. The Arbitrator said that if the notes were in fact those of Dr Pilgrim, they did not demonstrate any relevant past history regarding the symptoms referred to by Dr Harper.
The Arbitrator referred to a handwritten document apparently filled out by the deceased (at page 18 of the Application). It appeared to postdate 2000 (as it referred to cardiomyopathy and diabetes). It made no reference, at “Previous Illness and Operations”, to the symptoms ascribed to the deceased by Dr Harper. There was no explanation of this in the appellant’s case.
The Arbitrator referred to the reports of Professor Keogh. The conclusions she came to were based on the factual assumptions she made. There was no evidence about these assumptions. There was “no evidence of the length of exposure, what part of that exposure occurred without protection, or when the deceased’s symptoms first came on”.
The Arbitrator also commented on the failure by the appellant to provide a statement dealing, at least in general terms, with matters such as the onset of the deceased’s symptoms, the period during which he was exposed to herbicides, and the deceased’s life between when he ceased working with the respondent and the onset of cardiomyopathy in 2000.
The Arbitrator summarised the various factual discrepancies and lacunas in the evidence. He said the evidence was not sufficient to establish, on the probabilities, that the deceased was exposed to the alleged chemicals and that they caused the symptoms discussed in the medical evidence, such as that of Dr Harper.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”

Ground 1 – That the Arbitrator Misdirected Himself as to the Determinations/Conclusions Made by Professor Keogh

The first two grounds, and the submissions in support of them, are interrelated. The appellant’s argument dealing with discharge of her onus is made in part by reference to the reports of Professor Keogh.

The Appellant’s Submissions

It was submitted there was no evidence or submission of another source of exposure, on the part of the deceased, to herbicidal poisons. The appellant submitted that, if the appellant “established prima facie that [the deceased] suffered an exposure, as determined by Professor Keogh”, the onus was on the respondent to establish some other source.
The appellant submitted that Professor Keogh was qualified by the respondent, and was furnished with a substantial body of evidence which she referred to. It was submitted that she relied on this material to make various “specific determinations/conclusions”. These were:
(a) that the deceased was exposed to 2,4,5-T, 2,4-D 800, Esticide 80 and Garlon in his work as a weed sprayer, and
(b) that there is “little question that [the deceased] had toxicities associated with herbicide exposure – ie. frequent respiratory disorders, chloracne, skin smell exuding herbicides and Diabetes mellitus.”
The appellant submitted that, irrespective of all other evidence, Professor Keogh’s report was “tendered without restriction and her determinations/conclusions referred to in the body of her reports formed part of the evidence which should have been taken into account by the Arbitrator rather than him referring to such as assumptions.”
The appellant submitted that, at T11.22, the respondent conceded that the deceased used certain chemicals “as confirmed by Messrs Hughes and Koch and as determined by Professor Keogh”. The appellant submitted that Professor Keogh accepted that the deceased was exposed to herbicides and had toxicities.

The Respondent’s Submissions

The respondent’s submissions did not differentiate between the specific grounds of appeal. The appellant’s grounds were expressed in general terms in any event.
The primary issue raised in the first of the grounds is the evidentiary weight attached by the Arbitrator to the reports of Professor Keogh. The respondent submitted that there were factual issues as to “exposure”, “the level of exposure” and “whether such exposure were [sic] causative of the Deceased’s death”. The respondent’s submission, as I understand it, is that these issues were not conceded, as a consequence of any of the views expressed by Professor Keogh. They remained in issue and the appellant carried the onus of establishing them.

Discussion

During the running of the arbitration hearing, the following exchange occurred between the Arbitrator and the respondent’s counsel:
“ARBITRATOR: Are you challenging that he was exposed to chemical - - -
MR PARKER: Yes, that’s challenged in the statements that he wasn’t – that he was provided with respiratory and other safety equipment.
ARBITRATOR: Yes, but there’s no challenging – notwithstanding the provision of that equipment he was exposed to those – particularly Agent Orange as they called it in those days.
MR PARKER: Well, he used those substances.
ARBITRATOR: Yes.
MR PARKER: Pushing to exposure is an issue – the level of exposure is an issue.” (T11.10 – 11.28) (emphasis added)
The passage quoted immediately above was the only concession made by the respondent during the running of the arbitration hearing. Otherwise, the matters in issue remained as in the most recent s 74 notice and the Reply. The above amounted to a concession by the respondent that the deceased used 245T (a component of Agent Orange, according to Professor Keogh’s report dated 10 November 2014) in his work. It did not amount to a concession that the deceased was exposed to it by way of ingesting it, or otherwise coming into physical contact with it. The concession was subject to an issue going to whether physical exposure occurred, and if so, at what level.
The appellant’s submissions, going to the “specific determinations/conclusions” by Professor Keogh, dealing with the deceased’s exposure and toxicity, blur the distinction between the views expressed by Professor Keogh (as an expert witness) and the matters put in issue by the respondent. It was not the function of Professor Keogh to make formal concessions on the respondent’s behalf, although her evidence clearly could be relevant to issues between the parties. The weight to be given to her opinion evidence was subject to the usual considerations which apply in the Commission.
The Arbitrator’s reasons at [84] quoted the following passage from Makita at [64], where Heydon JA (Priestley and Powell JJA agreeing) said:
“The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are ‘sufficiently like’ the matters established ‘to render the opinion of the expert of any value’, even though they may not correspond ‘with complete precision’, the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509–510; Paric v John Holland Constructions Pty Ltd [[1985] HCA 58; (1985) 59 ALJR 844] at 846. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert’s conclusion must have some rational relationship with the facts proved.”

The Arbitrator then quoted the following passage from the decision of Beazley JA (Giles and Tobias JJA agreeing) in Hancock at [82]–[83]:
“82. 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.
83. 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.”
It has not been suggested, in this appeal, that the Arbitrator was in error in applying these authorities in considering the weight to be given to the medical evidence before him.
The passage from Makita, quoted above, referred to Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 (Paric). The following passage from the judgment of Samuels JA (Hutley and Priestley JJA agreeing) in Paric, at 509–10, has been applied in a number of Presidential decisions in the Commission dealing with this issue:
“It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis.”
Professor Keogh’s opinion could obviously only be based on material made available to her, for the purpose of providing it. She did not interview or examine anyone. When she initially reported, she had available medical material which was described in the report.
Additionally she had a “Letter to Gerard Malouf and Partners” (see [55] above). The contents of the letter are unknown. It is known that Professor Keogh referred to the appellant stating that she (the appellant) was told, by Dr Cody, that a virus probably caused the deceased’s cardiomyopathy (see [60] above). Professor Keogh understood the deceased died in bed (see [64] above). Neither of these facts is apparent from other evidence in the case. The reference to them is consistent with Professor Keogh having access to information which was not in evidence before the Arbitrator.
Professor Keogh was in possession of Dr Harper’s report when she reported initially. She was also in possession of notes and reports from treating practitioners, from which she constructed a lengthy chronology of treatment between 1976 and 8 April 2005 (the date of death).
It is clearly unsatisfactory that the correspondence and material made available to doctors, to provide reports for medicolegal purposes, were not available with their reports. This problem was more acute in a matter such as the current one, where the medicolegal doctors did not examine the allegedly injured worker (in this case the deceased) and record his or her history in the body of the report. Such material was necessary for considering the weight to be attached to expert evidence, having regard to authorities such as Makita, Hancock and Paric. The deficiency was not purely the appellant’s. The reports of Dr Harper and Dr Cody (as regards his final report) in the appellant’s case, and Professor Keogh, in the respondent’s case, all suffered from this significant deficiency.
Professor Keogh, in her first report, said that the deceased “had toxicities associated with herbicide exposure”. These were described as “frequent respiratory disorders, chloracne, skin smell exuding herbicides and Diabetes Mellitus”. The presence of diabetes was confirmed in the treating material from Dr Cody, and had been chronicled for some time before the deceased’s death. The chronology produced by Professor Keogh, from the clinical material, contained the odd reference to respiratory complaints, but these would not be described as “frequent”. The chronology did not contain identifiable references to chloracne or to skin smell exuding herbicides. This would suggest that the references by Professor Keogh, to these toxicities associated with herbicide exposure, came from a source other than the clinical material referred to in her first report.
The potential other sources, based on the material described by Professor Keogh as being available to her, were the letter to Gerard Malouf and Partners, the statement of the appellant (if it was different to the one used in the proceedings), and the report of Dr Harper. The letter to Gerard Malouf and Partners, and the statement of the appellant (if different to the one dated 11 April 2014) are not in evidence. The history in the report of Dr Harper was itself based on a letter from the appellant, which is not in evidence.
Professor Keogh’s opinion, going to the presence of toxicities, appears to be substantially based on documentation which is not in evidence, the source/s of which are unidentified, and the reliability of which cannot be assessed. Her reports lack probative weight on this issue.
The appellant also argued that the “specific determinations/conclusions”, made by Professor Keogh, extended to a conclusion that the deceased “was exposed to 2,4,5-T, 2,4-D 800, Esticide 80 and Garlon in his job as a weed sprayer”. This patently had to be a matter of history, based on the material furnished to the professor. It is not something that Professor Keogh would have had personal knowledge of. It is difficult to see how it could be an expression of expert medical opinion.
Because of the view I have reached in the preceding paragraph, the argument described at [86] above does not arise.

In Summary

Professor Keogh did not make any form of binding “determinations/conclusions” going to exposure and the presence of toxicities.
Professor’s Keogh’s statement, that the deceased was exposed to four specified chemicals, can only have been a matter of her assumed history, based on the material furnished to her. She described the issue, of whether exposure to these chemicals was causative of the deceased’s cardiomyopathy, as “[t]he question posed”. The issue of the deceased’s exposure to these chemicals, during the period pleaded, was a question of fact. The professor assumed certain exposures, apparently on the basis of the material furnished to her, to form her expert opinion. She could not have had independent factual knowledge of what chemicals the deceased was exposed to.
There was acceptable direct evidence, in the medical certificate, of exposure to the 245T and 24D800. There was acceptable direct evidence of exposure to Esticide 80 and Garlon (together with 245T) in the statements of Messrs Hughes and Koch, although this related to a period after that pleaded as resulting in injury.
Professor Keogh’s opinion on the presence of toxicities associated with herbicide exposure was an expression of expert opinion. It was deprived of probative weight for the reasons set out above.
Ground 1 is rejected.

Ground 2 – The Arbitrator Erred in Concluding that the Appellant had Failed to Discharge the Onus of Proof

The Appellant’s Submissions

Professor Keogh accepted that diabetes mellitus type II could result from the alleged exposure to herbicides. Professor Keogh’s point was that the deceased’s cardiac condition did not fit the known toxicities of chemical agents such as 245T. It was submitted that the Arbitrator, at [81] of his reasons, was satisfied that the known toxicities of the relevant chemicals were consistent with causing diabetes mellitus type II. The appellant’s case was not that the chemicals to which the deceased was exposed directly caused the cardiac condition. Rather, it was that the chemicals caused diabetes mellitus type II, which in turn caused the “cardiac manifestations”.
The Arbitrator, at [97] of his reasons, referred to issues on which there was no evidence, being the length of exposure, the part of the exposure that occurred without protection, and the onset of symptoms. Professor Keogh did not take issue with any of these things; she “recorded” the deceased suffered “toxicities associated with herbicide exposure.”
The level of protection supplied cannot have been complete or there would not be “toxicities associated with herbicide exposure”. (This assumed that the only possible source of exposure was in the deceased’s work with the respondent.)
The appellant referred to the Arbitrator’s discussion about the lack of evidence going to when the deceased commenced work with the respondent, and the period and nature of exposure. The appellant submitted that most of these issues were answered by:
(a)     the medical certificate (see [35]–[39] above);
(b)      the photographs;
(c)      the evidence of the appellant at T9.30 to 10.5, and
(d)      the “determinations of Professor Keogh”.
The appellant submitted the medical certificate “confirms” the deceased’s exposure from 1975 onwards. The appellant submitted that it was “clear” that Messrs Hughes and Koch “only worked with the deceased on a part-time basis after 1982”. It is put that there was a “determination/conclusion” by Professor Keogh of symptoms of chemical exposure. It was stated that the photographs showed the deceased’s skin condition three months before his death.
It was submitted that Professor Keogh placed no emphasis on the time of onset of symptoms, she having “already determined” the deceased’s chemical toxicities were due to exposure to the herbicides. The medical certificate confirmed exposure from 1975 onwards, consistent with the pleading. If exposure was sufficient to produce chemical toxicities, that should be sufficient. No doctor suggested otherwise.
There was evidence that the onset of diabetes mellitus II occurred in 1992 (Professor Keogh) or 2002 to 2003 (Dr Cody). It does not matter, no doctor suggested that early or late onset was “of any consequence”.
In his reasons, at [101], the Arbitrator asked rhetorically whether he could accept:
(a) that the deceased was exposed to 245T and 24D, and
(b) whether these chemicals caused the symptoms described by Dr Harper.
The medical certificate established the exposure. The opinions of Dr Harper, Dr Cody and Professor Keogh, together with the appellant’s evidence and the photographs, established that these chemicals caused the relevant symptoms.
The appellant then referred to the various issues raised by the Arbitrator at [102]–[113] in his ‘Summary’. They were individually submitted on, and will be further referred to below. The matters referred to at [109]–[113] were said not to have been raised in submissions. It was submitted that they should “not be detrimental to [the appellant’s] case, if not addressed”.
The appellant’s submissions in reply were lodged on 5 April 2016. They largely reiterated the submissions put in the Application dated 14 March 2016. In particular they placed emphasis on the probative weight of the medical certificate.

The Respondent’s Submissions

The matter was conducted on the basis there was a factual issue on exposure (T18.23) and the level of exposure (T24.26). The respondent’s submissions were summarised at [60]–[69] of the Arbitrator’s reasons.
The Arbitrator correctly summarised the legal test on the admission of expert evidence, and the factual basis of expert evidence ([78]–[86] of the Arbitrator’s reasons). The Arbitrator allowed evidence which would not have been admissible in an evidence based jurisdiction.
The Arbitrator correctly summed up the issues at [86] of his reasons. At [93] he identified the issue raised by the absence of evidence from the deceased’s previous treating general practitioner. He correctly acknowledged that the report of Dr Cody was contentious.
The respondent submitted that the issues, identified at [102]–[113] in the ‘Summary’ section of the reasons, were “clearly in issue and were not addressed by the [appellant]”.
Pursuant to leave contained in the Direction issued on 29 February 2016, the respondent lodged further submissions on 24 March 2016. The respondent, in addition to relying on its original submissions, submitted that issues of exposure, the levels of exposure, and whether such exposure was causative of the deceased’s death, were explicit issues before the Arbitrator. This raised “significant issues given the lapse of time between the alleged exposure and the Deceased’s death, which the Respondent submits were not explained.”
The respondent submitted that the Arbitrator “correctly determined that the Appellant had not established a causal link between any alleged exposure and the Deceased’s condition.”

The Weight of the Appellant’s Medical Case

The appellant’s medical argument relied on Dr Harper’s report dated 14 February 2013 and the reports of Dr Cody, particularly the report dated 26 March 2015. The appellant also relied, in respect of some issues, on Professor Keogh’s reports.
Immediately after the appellant gave evidence, the respondent’s counsel objected to the report of Dr Harper (T13.25). This was on two bases. The first was that the doctor had not signed or acknowledged the expert code (see Uniform Civil Procedure Rules 2005 Pt 31 r. 31.23). The second was on the basis of the decision in Makita. It was submitted that the report was “of no assistance”, applying the principles in that decision. The respondent also objected to the report of Dr Cody dated 26 March 2015, on the same basis (T15.14). Additionally, the respondent’s counsel referred to Dr Cody’s acknowledgment that he had no experience in dealing with patients exposed to herbicides like those that the deceased was allegedly exposed to.
The Arbitrator admitted the reports which had been objected to (T16.30–18.15). He noted that he was “not bound by the rules of evidence”.
The respondent’s counsel, when addressing, referred to McGuiness (T24.20). He specifically addressed on the issue going to the level of exposure of the deceased (T21.15), and the lack of medical evidence of symptoms related to the exposure (T21.10). He was critical of the report of Dr Harper because of its “lack of scientific attitude” (T24.10). He was critical of the opinion of Dr Cody having regard to the doctor’s lack of relevant experience (T25.5).
In respect of the last report of Dr Cody, the respondent’s counsel made the point that the doctor referred to “information from the legal proceedings”, and “we don’t know quite what that means, you may have to guess at that”.
The appellant’s counsel submitted that Dr Harper was probably the most qualified person to comment on the causal connection between the herbicides and the deceased’s symptoms. He referred to Dr Harper’s assessment of the Kimberley weed sprayers, a matter about which the Arbitrator did not regard himself as having “quasi-judicial notice” (T33.1). The appellant’s submissions did not go to the Makita point, and the fact that Dr Harper and Dr Cody based their opinions, at least in part, on material which was not in evidence.
The matter was conducted on the background of a paucity of evidence dealing with the deceased’s duties with the respondent; what they involved, when he worked there, for what hours or periods he worked, what physical exposure to herbicides there was from time to time, the extent of preventative measures to reduce exposure from time to time, the onset and progression of any symptoms. The deceased, of course, could not give a history to the qualified doctors. He did give a history to Dr Cody whilst under his care, but that history did not touch on his employment duties with the respondent or exposure to herbicides.
The medical certificate was the only direct evidence which dealt with the duties of the deceased, and any relevant exposure to herbicides, during the pleaded period from 1975 to 1982. It dealt with the deceased’s duties “from 1975 onwards”. It did not differentiate between duties up to 1982 and subsequently. Other evidence (Messrs Hughes and Koch) suggested that the duties from about 1983 did not involve the use of a backpack spray. The evidence of these witnesses suggested that exposure from about 1983 was at a low level.
Part 15 rule 15.2 of the Workers Compensation Commission Rules 2011 (the 2011 Rules) provides:
“15.2   Principles of procedure
When informing itself on any matter, the Commission is to bear in mind the following principles:
(1)     evidence should be logical and probative,
(2)     evidence should be relevant to the facts in issue and the issues in dispute,
(3)     evidence based on speculation or unsubstantiated assumptions is unacceptable,
(4)     unqualified opinions are unacceptable.”
In South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 McColl JA (Giles and Tobias JJA agreeing), after referring to Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271, Makita and the provision then equivalent to Pt 15 r 15.2 of the 2011 Rules, at [131] said:
“… 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 Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 (Sutton) Allsop P (McColl JA agreeing) said at [2]:
“The relationship between the rules of evidence and hearings by the Commission is made clear by the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the ‘WIM Act’), s 354. The rules of evidence do not apply. Thus, there is no prohibition on hearsay material and opinion evidence. Nevertheless, as the cases discussed by McColl JA (for example, Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43) show, the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material: R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 430; Australian Broadcasting Tribunal v Bond[1990] HCA 33; 170 CLR 321 at 359–360; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at 418 [91]; Amaba Pty Ltd v Booth [2010] NSWCA 344 at [23]; Evans v Queanbeyan City Council [2011] NSWCA 230 at [109]; and the cases referred to in NADH of 2001 v Minister for Immigration and Multicultural Affairs [2004] FCAFC 328; 214 ALR 264 at [12].”

Dr Harper

Dr Harper said he had received a letter from the appellant regarding the deceased’s medical history. The letter was not in evidence. I do not, from the third paragraph of the report, draw any inference that Dr Harper communicated about the deceased with Joanne Moore, the nurse co-ordinator from Derby.
Dr Harper’s opinion was that medical science lacked the technical ability to either prove or disprove “the increased incidents of illness in people exposed to 245T”. Dr Harper referred to the approach “in the US when compensating Vietnam veterans exposed to 245T and agent orange in Vietnam”. Dr Harper said “the US government accepted that exposure to agent orange through military service carried a significantly greater risk of illness and on this basis soldiers who had been exposed and unwell were compensated”. (I note this is inconsistent with the descriptions by Dr Cody and Professor Keogh about the system applicable to Vietnam veterans, in which compensation applied to certain specified illnesses, not simply to those who were “unwell”.)

Dr Harper concluded that “on the balance of probability [the deceased’s] health was adversely affected to a clinically significant degree sufficient to have been a major and dominant contributor to his premature death”. The argument used by Dr Harper to support this conclusion followed. It essentially consisted of generalities. It did not address the specific question in the case, being whether the death of the deceased resulted from employment injury with the respondent, associated with exposure to herbicides. It did not address the argument run by the appellant in the proceedings, which was that exposure to certain herbicides caused diabetes mellitus type 2, which in turn caused cardiomyopathy, which resulted in death.
The Arbitrator’s consideration of Dr Harper’s report is referred to at [68]–[69] above. The Arbitrator’s discussion going to evidentiary deficiencies in the case is referred to at [77]–[82] above. He concluded the appellant had not established, on the balance of probabilities, that the deceased was exposed to the alleged chemicals, and that they caused the symptoms discussed in the medical evidence, such as that of Dr Harper. This analysis led to the conclusion that the report of Dr Harper was effectively deprived of all weight; it was based on an assumed history of exposure to herbicides, and resultant symptoms, which was not made out on the evidence (Paric, Makita, Hancock).
Dr Harper’s report was without probative weight. It was based on a document (the appellant’s letter) that was not in evidence. It was not possible, in the circumstances, to adequately judge the extent to which it complied with the requirements of expert evidence consistent with the relevant authorities.
Dr Harper’s report assumed “extensive exposure” to 245T. This was a non-specific term. The actual evidence going to the nature of the deceased’s exposure during the period from 1975 to 1982 was that in the medical certificate. It did not necessarily describe “extensive exposure”, whatever that might mean. The report assumed a period of employment with the respondent from 1975 to 1981. It assumed the absence of protective measures. At least from about 1983, there was evidence that protective measures were in place.
Dr Harper assumed a system for the compensation of Vietnam veterans in the U.S. which was inconsistent with the evidence of Dr Cody and Professor Keogh, going to its operation. He said he took the same approach to the deceased as he had taken to “weed sprayers in the Kimberley”, if they were exposed and unwell, they should be compensated. He did not refer to the Government Response (see [23]–[24] above), that there was “no scientific basis for a causal association between illnesses other than cancer and exposure to the herbicide [245T]”.
Dr Harper made no real attempt to analyse the basis of the causal relationship which he claimed existed, between exposure and “illness”. His report did not deal with the specific issue in the case, based on how it was run: was there a causal linkage between herbicide exposure, diabetes mellitus, cardiomyopathy, and the ultimate death of the deceased? Was the deceased’s death “cardiac” in nature?
The report of Dr Harper was not “material that is satisfactory, in the probative sense”, to quote from Sutton.

Dr Cody

Dr Cody’s reports are discussed above at [41]–[50]. He saw the deceased from 1 December 2000 to 22 February 2005. His diagnosis was dilated cardiomyopathy of unknown origin. He said the deceased developed diabetes “over the period 2002 through to March 2003”. The deceased did not give him a history of exposure to herbicides when working with the respondent. Dr Cody said he “could not find a cause for Mr Parker’s dilated cardiomyopathy”. Dr Cody’s report dated 17 October 2011 (which essentially summarised his overall treatment of the deceased and his views at that time) did not suggest any causal link between the deceased’s employment with the respondent, diabetes mellitus, cardiomyopathy, and the deceased’s death.
In his report dated 26 March 2015 Dr Cody said he had been given “information from the legal proceedings”. There is no indication of its source. It is apparent that Dr Cody had reference to the “information” in preparing his last report. Dr Cody referred to three chemicals which the deceased was said to have been exposed to, 16 Agent Orange, 245T and 24D. There was also a reference to various symptoms, described as “evidence of herbicide exposure”. He then gave an opinion on causation, referred to at [48]–[50] above. He outlined the basis of his support for the existence of a causal link. As with Dr Harper’s report, the documents given to Dr Cody were not in evidence, and it is impossible to assess the extent to which the report complied with the requirements of expert evidence referred to above.
As regards the linkage between herbicide exposure and diabetes mellitus, Dr Cody essentially relied on the practice of the U.S. government in dealing with Vietnam veterans. If a veteran was exposed to Agent Orange, and developed one of the 14 scheduled diseases (of which diabetes mellitus type 2 was one), the disease was “considered service connected”. Dr Cody, other than accepting this practice in the U.S., did not give any scientific reasoning or analysis of the basis of the connection between exposure to the herbicides (to which he assumed exposure) and diabetes mellitus type 2. He expressly indicated that he had “no experience in dealing with patients exposed to these herbicides”.
Dr Cody diagnosed the deceased as suffering from “non-ischaemic cardiomyopathy”. The diagnosis was originally made in 2000. This was consistent with investigations at the time. That diagnosis has not subsequently been controversial. Dr Cody considered the deceased to have developed diabetes over “the years of 2002 through to March 2003”. Dr Cody’s report did not deal with the question of how cardiomyopathy resulted from diabetes mellitus type 2 when, on his expressed views, the cardiomyopathy was the first of these conditions to be present. Dr Cody had previously been aware of the existence of both the deceased’s diabetes and cardiomyopathy. He did not explain why he concluded, in his last report, that there was “a significant chance that the deceased’s diabetes was the cause of his cardiomyopathy”. He had previously regarded the cardiomyopathy as having “an unknown aetiology” (his report dated 17 October 2011 at page 2.9).
Dr Cody’s last report was entitled to weight in so far as it dealt with his treatment of the deceased up to the time of his death, and his expert opinion associated with diagnosis and treatment from time to time. It is deprived of any weight in so far as it goes beyond that, to analyse issues of chemical exposure and causation, flowing from his receipt of “the information from the legal proceedings”.
The further information made available to the doctor at the time was not in evidence. The report did not comply with the requirements for expert evidence consistent with authorities such as Paric, Makita and Hancock. It did not fulfil the requirements of Edmonds and Sutton referred to above.
It did not explain why the doctor accepted the causal linkage between the relevant herbicide exposure and diabetes mellitus type 2, nor why the doctor had gone from regarding the deceased’s cardiomyopathy as being of unknown aetiology, to regarding it as a result of diabetes.

The Probative Significance of the Medical Certificate and the Evidence of Skin Disorders

The medical certificate was dated 3 February 2005, about two months prior to the deceased’s death. Its contents are summarised at [35]–[39] above. It is apparently credible evidence. It described exposure of the deceased to 245T and 245D800 from 1975 onwards, in his work with the respondent, using a backpack sprayer.
There is apparently credible evidence from Messrs Hughes and Koch that use of the backpack ceased at some time before 1983. If the evidence of those witnesses were accepted, the description of exposure using a backpack must have ceased by about 1982. This is generally consistent with the period of exposure alleged in the pleadings.
The Arbitrator, at [101] of his reasons, said:
“The essential facts and circumstances which form the basis of the scientific case [the appellant] is seeking to rely upon comes from only two sources, the [appellant] herself in the short evidence she gave, and the evidence, such as it is, from Dr Harper.”
The Arbitrator found that that evidence was not:
“… sufficient to establish on the probabilities that the deceased was exposed to 245T and 24D chemicals and that these chemicals at some time caused the symptoms described by Mr [sic, Dr] Harper, and to a lesser extent by the applicant herself.”
The Arbitrator did not address the evidence from the deceased and/or Dr Pilgrim in the medical certificate. That, on its face, was direct evidence from the deceased (or recorded by Dr Pilgrim based on a history from the deceased) describing the deceased’s exposure to chemicals in his employment between 1975 and 1982. It was clearly relevant. The appellant’s submissions on appeal placed reliance on the medical certificate as evidencing when the deceased commenced work with the respondent, the period of exposure and the nature of exposure.
The failure to deal with that evidence, in an analysis of whether the appellant had discharged her onus of proof, constituted error.
The appellant also submitted that the photographs of the deceased were significant in answering the Arbitrator’s analysis of the evidence. The photographs were taken, according to the respondent’s s 74 notices dated 12 November 2014 and 23 July 2015, about three months preceding the date of death. The best copies are those attached to the appellant’s Notice of Appeal. They are photocopies. They appear to show discolouration in the vicinity of the deceased’s left breast area and armpit, and discolouration and some spots on the right forearm.
The appellant’s submissions described the photographs as confirming the symptoms of chemical exposure, and showing pictures of the deceased with various skin conditions.
The submissions also referred to the appellant’s oral evidence. The appellant agreed that the deceased suffered from “various skin conditions” (T9.30). She said the deceased was treated by Dr Pilgrim in Tenterfield and Dr Theodore in Lismore. The deceased was given prescriptions for “steroid cream or an anti-rash cream”, he “tried all of them and over the counter as well”. The appellant said that “nothing would alleviate it” (T12.10–31).
The photographs and evidence, dealing with the deceased’s skin condition, could not much assist the appellant’s cause, unless there was acceptable evidence that the skin condition resulted from chemical exposure. The appellant’s submissions did not make reference to any specific entries, in the material from doctors who treated the deceased, to this effect.
Some of the clinical material was not readily legible. There was reference to BCC (which I take to mean ‘basal cell carcinoma’), consistent with evidence from the appellant that the deceased had melanomas removed (T10.12). There were no apparent references to other complaints of skin problems. There were no references to skin problems being associated with chemical exposure.
In the medicolegal material, there were references to symptoms involving the skin in the reports of Dr Harper, Dr Cody (his last report) and Professor Keogh. These effectively were references to unsourced history. For reasons given above, those reports lacked evidentiary weight, going to the presence of chemically caused symptoms. There is no acceptable evidence that the deceased suffered from skin problems which resulted from exposure to chemicals. Thus the evidence in the photographs, and the deceased’s oral evidence, did not confirm the occurrence of chemical exposure, or of resultant toxicities.
The Arbitrator, at [102]–[113] of his reasons, set out a summary of the deficiencies which he found existed in the evidence, and which he said supported the conclusion which he reached. The appellant has shortly addressed these, seriatim. They will be considered in the same order. Additionally, paragraphs [105], [106]–[108] and [109]–[113] are referred to in the appellant’s submissions going to ground 4. Reference to the extent to which these areas of debate were addressed on by the appellant, or could have been, will also be included.
(a) Paragraph [102]. No evidence addressed the lapse of time between exposure, and the onset of diabetes mellitus type 2 in 2002. The appellant submitted that this was not raised as an issue by any doctor.
Professor Keogh, in her report dated 17 July 2015, made the point that 18 years had elapsed between the conclusion of the alleged exposure, and the diagnosis of cardiomyopathy. Whilst not specifically addressed to the onset of diabetes, it is apparent that the professor considered the lapse of time between exposure and the manifestations of the alleged injury to be a relevant factor.
It is disingenuous to say that the timing of symptoms was not raised in the medical evidence. Dr Harper, Dr Cody (in his last report) and Professor Keogh all expressed their views on the basis of assumed histories which are not in evidence.
(b) Paragraph [103]. The evidence did not establish the period during which the deceased was employed by the respondent. The appellant submitted that this was dealt with by the medical certificate.
I accept that submission, which is discussed above.
(c) Paragraph [104]. The evidence was contradictory in regard to the period of the deceased’s employment with the respondent, particularly having regard to the statement of Mr Koch. The appellant submitted that this was dealt with by the medical certificate.
For practical purposes, I accept the appellant’s submission on this. The medical certificate was evidence that the deceased commenced in 1975. The evidence of Messrs Koch and Hughes established he was there beyond 1982, which is the end of the pleaded period of exposure.
(d) Paragraph [105]. There was no evidence of when the deceased’s symptoms first manifested themselves, nor evidence going to whether the period between exposure and symptoms was consistent. The appellant submitted that this was not raised as an issue.
Professor Keogh commented on the expiry of 18 years between the alleged exposure and diagnosis of cardiomyopathy, in her report dated 17 July 2015. The respondent’s submissions were summarised in the Arbitrator’s reasons at [60]–[68]. Reference was made to the appellant feeling that his general health was good as at 2000, this was some 18 years after the alleged exposure.
The respondent’s counsel referred to the history recorded by Dr Halliday in the report dated 13 September 2000, and an absence of symptoms related to chemical exposure (T21.10). He submitted that there was a lack of evidence of symptoms related to the exposure (T24.30). The appellant’s counsel submitted that “the best evidence in relation to the issue of exposure is the symptoms that Mr Parker suffered”. (T30.33–31.2)
In considering whether the lay evidence supported a causal connection, the timing of the onset of symptoms may well, as a matter of common sense, be relevant. This will vary depending on the nature of the injury. The presence from time to time of symptoms was raised as an issue. It was relevant to ‘injury’, which clearly remained in issue
(e) Paragraphs [106]–[108]. There was no evidence of when the deceased first reported his symptoms. The evidence was confused as regards which notes were identified as coming from which practitioner. There was an overall lack of past history in the documents. The handwritten medical history at page 18 of the Application, which must have been produced in or after 2000 (given the reference to cardiomyopathy) did not refer to the skin condition, which would have been expected if the skin was symptomatic at the time.
The appellant submitted that “reporting of injury was never an issue”. It was not raised by Professor Keogh as an issue.
The Arbitrator’s point, read in context, does not go to compliance with the provisions in the legislation which deal with the duty to report an injury. The Arbitrator’s reasons repeatedly made reference to the inadequacy of the evidence going to issues such as when the deceased first experienced symptoms.
There was a clear issue between the parties as regards whether the deceased suffered injury as alleged. The discussion at [106]–[108] of the reasons, dealing with when symptoms were reported, and the presence (or absence) of relevant complaint in treating records, was relevant to this ‘injury’ issue. This was clearly an issue between the parties.
(f) Paragraphs [109]–[113]. The Arbitrator said he assumed that symptoms would have been reported to Dr Pilgrim, as he was the deceased’s local doctor in Tenterfield. The Arbitrator also referred to an “incongruity” about the deceased reporting to Ms Moore, the nursing co-ordinator in the Kimberley, when he lived in Tenterfield, and the lack of evidence about any discussions they may have had. The Arbitrator referred to Dr Harper’s ability to reproduce evidence of the symptoms the deceased was complaining about in 2003 (when he contacted Ms Moore), ten years later when reporting on 14 February 2013. The evidence did not reveal how this occurred.
The Arbitrator said that Dr Halliday, in his report dated 13 September 2000, recorded a history of multiple complaints, followed by a history “He feels his general health is good.” This, on its face, was inconsistent with the oral evidence of the appellant that the deceased was regularly receiving treatment for his skin. He described this inconsistency as “but one of many”.
The appellant submitted that these were “peripheral matters”. They were not raised in submissions at the arbitration, and therefore “should not be detrimental to [the appellant’s] case.”
Dr Harper’s report simply referred to the deceased contacting Ms Moore in 2003. It did not refer to the deceased seeing or being examined by her, it did not suggest that the deceased travelled to Derby to see her, it did not suggest that Ms Moore had any involvement in treatment of the deceased. It may well be that the reference to Ms Moore was simply a part of the assumed history given to Dr Harper, as part of the information in the letter from the appellant which he was given. This is unknown as the letter is not in evidence.
To the extent to which the Arbitrator inferred that any dealings between the deceased and Ms Moore involved more than simply making contact, in my view, such an inference was not reasonably available. To draw this inference constituted error. There is no evidence that Ms Moore took a history from the deceased, recorded symptoms, was involved in his treatment, or passed on any information to Dr Harper. It was, as the appellant correctly observed, a peripheral issue.
Contrary to the appellant’s submission, the history recorded in Dr Halliday’s report dated 13 September 2000, going to the deceased’s general health, was specifically submitted on by the respondent’s counsel (T20.30–21.12). The Arbitrator’s conclusion that it represented an inconsistency was open on the evidence and was one with which I agree.
Ground 2 is upheld as regards the medical certificate and the failure of the Arbitrator to have regard to that evidence, in considering whether the appellant had succeeded in discharging her onus of proof in respect of exposure to herbicides. It is also upheld in respect of the inference drawn by the Arbitrator that dealings between the deceased and Ms More involved more than simply making contact.

Ground 3 – That Irrelevant Factual Considerations Were Taken Into Account

No separate submissions were directed to this ground. The ground is rejected.

Ground 4 – Procedural Fairness

The submission on this ground stated that the ground had essentially been referred to in those parts of the submissions dealing with ground 2, which are discussed at (d), (e) and (f) of paragraph [169] above. The appellant referred to the Arbitrator commenting at one point that he liked to “expose the way I’m thinking” (T24.25).

The appellant’s submission is that the subject matter of sub-paragraphs (d), (e) and (f), referred to above, were matters of concern for the Arbitrator, and the Arbitrator should have specifically asked the parties to address on that subject matter. It is submitted that the appellant was “given no opportunity to address these issues”. This amounted to a denial of procedural fairness. Reference was made to Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 (Ghaleb).
Ghaleb was a matter in the Dust Diseases Tribunal, which was conducted on the basis that the plaintiff had suffered asbestos-related pleural effusions at two different times, in the employ of two different employers (one of these Seltsam). This was common ground between the parties in the submissions that they made. The trial judge then assessed damages on the basis that the plaintiff’s damage resulted totally from injury with Seltsam. The trial judge did not inform the parties of his intention to depart in this fashion from the way in which the parties had conducted the case and the concessions made.
On appeal, Ipp JA (Mason P agreeing) described this as “fundamentally inconsistent with the respondent’s concessions and the way in which the trial was run” (at 82]). His Honour said this was a “clear and serious denial of procedural fairness” (at [91]).
Ghaleb was a matter in which the trial judge decided the matter in a fashion directly contrary to the common ground adopted by the parties, in their submissions.
By way of example, Belan v Liner Freight Services Pty Ltd and Anor (1994) 10 NSWCCR 357 was an internal appeal from a Commissioner to a judge of the Compensation Court. The two joined employers did not argue that the worker was not entitled to weekly compensation. The issue rather was the respective liability of the employers. The Judge hearing the appeal terminated an award entered in the worker’s favour by the Commissioner, without warning that he was considering this course, contrary to the approach adopted by the parties in their submissions. This was held to constitute a denial of procedural fairness.
Workcover Authority v Edbrooke & Edbrooke t/as Gordon Trained Nurses Club & Ors (1995) 12 NSWCCR 198 involved an issue as regards ‘worker’. It proceeded before one judge of the Compensation Court on the basis of an allegation that a contract of employment was in place, with an allegation of ‘deemed worker’ not being a live issue between the parties. That Judge died whilst the matter was reserved. A second judge decided the matter on the basis of the ‘deemed worker’ provisions of the legislation, without warning the parties. Meagher JA (Handley JA and Rolfe AJA agreeing) said at 204F that “the matter was decided by Burke CCJ on a basis which was not argued by the parties; and this is an error of law”.
A denial of procedural fairness was found to exist where a judge (without warning of his intention) determined a matter, basing his reasoning on a combination of orthopaedic and psychiatric complaints, notwithstanding the worker pleaded and conducted the case purely on an orthopaedic basis: Boral Besser Masonry Limited v Jabarkhill [1999] NSWCA 476; 19 NSWCCR 227 (Jabarkhill).
In the current matter, the occurrence of ‘injury’, whether there was chemical exposure and to what extent, and whether symptoms resulted from this, were very much in issue. The respondent’s submissions, summarised at [60]–[68] of the Arbitrator’s reasons, made this clear. The appellant’s counsel addressed after counsel for the respondent. The appellant’s counsel was clearly aware of the arguments raised. He addressed on the issues of exposure, the presence of symptoms, the medical evidence, and the extent to which it supported findings relevant to ‘injury’ and causation. When he concluded his address, the Arbitrator specifically asked “Anything else?” He was afforded an opportunity to present his case.
The Arbitrator did not decide the matter on a basis not argued by the parties. Exposure was in issue (T18.23). The presence of symptoms related to chemical exposure was in issue (T20.20–21.12, 24.27–24.33). The probative force of the appellant’s medical case was challenged (T14.5, 15.6, 16.25, 21.25, 22.15, 24.10, 25, 26.30).
Paragraphs [105]–[113] of the Arbitrator’s decision are the subject of this submission. There is brief reference relevant to ground 4, in the discussion of these sub-paragraphs at [169] above. It will be observed, from the discussion at [169], that these matters were, by and large, raised in submissions. The Arbitrator’s point going to Ms Moore, and Dr Harper’s ability to recount her record of symptoms, was not raised. The inference drawn by the Arbitrator on this point has been found to be in error in any event.
Ghaleb is not authority for the proposition that every peripheral matter, that may be referred to in the reasoning process of a finder of fact, needs to be specifically drawn to the attention of counsel, so that they can address on it. The appellant’s argument in ground 4, going to procedural fairness, is rejected.

THE CONSEQUENCE OF THE FOUND ERRORS

In Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at [16], the High Court said:
“All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.”
In the context of the Commission, this decision was applied in Toll Pty Ltd v Morrissey [2008] NSWCA 197; 6 DDCR 561. In Jabarkhill Priestley JA (Mason P agreeing) at [12], dealing with the consequences of error, said:
“To succeed in setting aside a judgment on the natural justice ground it will not always be sufficient for an appellant to show a denial of natural justice. Occasionally it may appear that it was highly likely that the same judgment should have been arrived at in any event, so that it would be pointless to order a new trial. When that appears sufficiently clearly the court may refuse to uphold the appeal; but that position would have to [be] very clear before the court would withhold relief.”
The inference apparently drawn by the Arbitrator, regarding the deceased’s contact with Ms Moore (see [169(f)] above), constituted error. The appellant submitted, accurately, that this issue was “peripheral”. The Arbitrator referred to it as one additional inconsistency, in a long list of matters on which he regarded the evidence as inadequate or inconsistent. The result in the case could not have been affected by that error. If that were the only error, it would not justify remitter of the matter for redetermination.
The evidence in the medical certificate supported a finding of fact that the deceased was exposed to 245T and 245D800 during the period from 1975 to about 1982. This is contrary to the Arbitrator’s finding at [101]–[103] of his reasons that the appellant had not proved, on the balance of probabilities, that the deceased was exposed to the alleged chemicals. It is evidence that was not referred to or, so far as can be ascertained, considered.
Having regard to how the case was conducted, for the appellant to succeed, it would then have been necessary for her additionally to establish:
(a)     that the condition of diabetes mellitus type 2 resulted from that exposure;
(b)      that the condition of non-ischaemic dilated cardiomyopathy resulted from diabetes mellitus type 2, and
(c)     that the death of the deceased resulted from the condition of non-ischaemic dilated cardiomyopathy.
The Arbitrator, describing the test of causation, referred to the authorities of Seltsam, Murray and Christopher-Coates. It has not been submitted that there was any error in this regard.
In Christopher-Coates Keating P, at [174], quoted the following passage from EMI (Aust) Ltd v Bes [1970] 2 NSWR 238 (Bes) at 242:
“Much the same thesis is to be found in Ramsay v Watson in the High Court (108 CLR p 642) and I particularly refer to the passage in the joint judgment of their Honours at the foot of p 645. It seems to me that that bears out what I have concluded is the correct principle to apply, namely, that it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then in my opinion the judge after examining the lay evidence may decide that it is probable.”
It could not be concluded that, had the evidence in the medical certificate been considered, this “could not possibly have produced a different result”. It was apparently credible evidence which, if accepted, proved relevant chemical exposure.
There was medical evidence which could, if accepted, have established a causal link between the chemical exposure and diabetes mellitus type 2. Dr Cody, in a part of his report dated 26 March 2015, which did not apparently depend on “information from the legal proceedings”, said the deceased had “diabetes [which] had been significantly unstable”. He referred to the U.S. Government practice, in relation to Vietnam veterans, as supporting the proposition that “exposure to Agent Orange 245T and 24D chemicals may have been a prominent cause of his diabetes”. He referred to the Framingham study and the SOLVD study. He said there was “a significant chance” that the deceased’s “diabetes was the cause of his cardiomyopathy”.
Professor Keogh, in her first report, apparently accepted that diabetes mellitus type 2 was potentially associated with herbicide exposure.
The deceased’s death certificate was admissible as evidence of “the facts recorded in the entry”: s 49(2) of the Births, Deaths and Marriages Registration Act 1995. This would be consistent with the death of the deceased resulting from “Myocardial infarct”, and with “Cardiac failure/cardiomyopathy” being an antecedent cause.
The above description of a causal chain simply demonstrates that “a different result” could not be excluded. There is appealable error which justifies intervention.

CONCLUSION

It is appropriate that the matter be remitted to another Arbitrator for redetermination. There are a number of areas in the evidence which cause concern, and which the parties may consider addressing before a further arbitration hearing.
The medical cases of both parties have been, to varying extents, deprived of weight due to a failure to comply with the principles governing expert evidence in the Commission.
The proceedings have been conducted in an unusual absence of relevant lay and historical evidence. Many of the Arbitrator’s observations about evidentiary lacunas were appropriate. There was, for example, a lack of evidence going to when the deceased developed relevant symptoms and what these were.
The orderly collection of material from treating practitioners, and its accurate description in lodged documentation, would assist. I share the Arbitrator’s suspicion that some of the treating material was not accurately described.
The evidence did not reveal the circumstances of the deceased’s death (Professor Keogh suggested it was in bed; the basis of this was not apparent). The cause of death is in issue. Whilst the death certificate is evidence of the facts recorded in it, it is not conclusive evidence.
I note that the Arbitrator made a finding that the appellant was dependent on the deceased as at the date of death, and this has not been challenged.

ORDERS

The Certificate of Determination dated 11 November 2015, as amended on 12 January 2016, is revoked.
The matter is remitted for redetermination by another Arbitrator.

Michael Snell
Deputy President

10 May 2016