Return to Work Corporation of South Australia v Barnes - [2019] SASC 151

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge)
RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v BARNES
[2019] SASC 151
Judgment of The Honourable Chief Justice Kourakis
23 August 2019
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE - EMPLOYMENT SUBSTANTIAL OR SIGNIFICANT CONTRIBUTING FACTOR - TO INJURY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
Application brought by the Return to Work Corporation of South Australia (RTW) for permission to appeal against an order of the Full Bench of the South Australian Employment Tribunal (the Full Bench) confirming the findings of the trial Judge.
The respondent, Sean Barnes, suffered an injury to his left knee in the course of employment on 18 February 2015. After this date, the respondent gradually suffered injuries to his right knee and right hip. On 23 December 2015, whilst not at work, the respondent fell, causing injury to his right shoulder.
At trial, the Judge found that the injury suffered by the respondent to his left knee at his employment was a significant contributing cause to the respondent's injuries to his right hip, knee and shoulder. The Full Bench dismissed RTW’s appeal against this finding.
Held, refusing permission to appeal:
1. The Full Bench was plainly correct to describe the error of the trial Judge as immaterial in the sense that there was sufficient other evidence which supported the trial Judge’s finding, and on which the Full Bench could act in dismissing the appeal.
2. RTW has not established an arguable case that the reasons of the Full Bench were inadequate. No general principle is raised by this ground. RTW’s submissions are peculiar to the facts and circumstances of the cases.
3. Permission to appeal is refused.
Return to Work Act 2014 (SA) s 7, referred to.
Barnes v Return to Work SA [2018] SAET 8; Return to Work Corporation of South Australia [2019] SAET 93, discussed.

RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v BARNES
[2019] SASC 151

KOURAKIS CJ: This is an application brought by the Return to Work Corporation of South Australia (RTW) for permission to appeal against an order of the Full Bench of the South Australian Employment Tribunal (the Full Bench) confirming the findings at trial of a Deputy President of the Tribunal (the Judge) that Mr Barnes’ injuries arose out of the course of his employment. The reasons for the decision of the Full Bench were given by Calligeros DPJ, with whom Dolphin PJ and Hannon DPJ agreed.
Mr Sean Barnes suffered an injury to his left knee in the course of employment of 18 February 2015. Later in the same year, on 23 December 2015, whilst not at work, Mr Barnes fell, causing injury to his right shoulder. He was also found to have an injury to his right knee and right hip. The latter injuries were only compensable if Mr Barnes’ employment was ‘a significant contributing cause’ of them.
Mr Barnes’ case was twofold. First, that the fall itself which caused his right shoulder injury resulted from a residual weakness of his left knee. Secondly, that the right knee and hip injuries were caused gradually by the awkward gait he adopted after his left knee was injured. Mr Barnes called Dr Callum, whose evidence supported both causes.
The Judge made the following findings:[1]
[27]I find that Mr Barnes suffered a knee injury on 18 February 2015.
[28]As a consequence of the physical adjustments Mr Barnes had to make to cope with the ongoing symptoms of the left knee he gradually developed a right knee and hip condition. Whilst his weight likely contributed to the development of his symptoms it was not the only cause of them.
[1] Barnes v Return to Work SA [2018] SAET 8 at [27]-[28], [39]-[43].
…
[39]It is Mr Barnes’ evidence that as a result of his left knee injury he began to avoid placing weight on his left knee and place more weight on his right knee and he developed problems in his right knee and hip. The right knee and hip condition gradually developed between February 2015 and about February 2016, when he was seen by Dr Callum.
[40]I am also satisfied on the evidence before me that Mr Barnes fell and hurt his right shoulder on 23 December 2015 because he experienced his left knee ‘giving way’, the left knee gave way because of the injury in February 2015. I am satisfied that the experience of his knee ‘giving way’ was caused by the injury he suffered in the course of his employment in February 2015 and as a consequence he fell on 23 December 2015.
[41]I am satisfied on the balance of probabilities that the work injury in February 2015 was a significant contributing cause of both the right shoulder injury and the right knee and hip injury.
[42]If I am wrong about the application of the [Return to Work Act 2014 (SA)] to the injury and the causation test is to be found in s 30 of the [Workers Rehabilitation and Compensation Act 1986 (SA)] then that section could only be taken to have a lower causation threshold. Mr Barnes’ claim would succeed in any event.
Conclusion
[43]I am satisfied that on or about 23 December 2015 Mr Barnes fell forward onto his right outstretched hand and thereby injured his right shoulder. That injury is causally linked to and arose out of his left knee giving way at that time which in turn is causally linked to and arose from the work related injury to the left knee in February 2015.
(Footnote omitted)
On appeal to the Full Bench, Calligeros DPJ accepted that the Judge had misunderstood the evidence of Dr Munn, a medical practitioner called by RTW, when her Honour recorded that Dr Munn’s opinion was that the earlier left knee condition was a ‘symptomatic exacerbator for his right knee and hip’. Calligeros DPJ found that Dr Munn’s evidence was more neutral than that.[2]
[2] Return to Work Corporation of South Australia v Barnes [2019] SAET 93 at [51].
Calligeros DPJ also accepted that the Judge’s reasons were brief and not completely clear.[3] However, Calligeros DPJ held that the Judge’s ultimate conclusion, and her Honour’s orders, were properly supported by her Honour’s acceptance of Mr Barnes’ testimony of the progression of his injury and his altered gait. Calligeros DPJ concluded:[4]
[57]As was the case with Dr Munn’s evidence, the Judge was entitled to reject Dr Ghan’s evidence given the finding made there was a traumatic injury to the left knee in the MAS fall which caused an alteration of gait and resulted in the right knee and hip injuries. The Judge was also entitled to treat Dr Ghan’s evidence with circumspection given the incorrect assumption he made in relation to the surgical findings.
[3] Return to Work Corporation of South Australia v Barnes [2019] SAET 93 at [53].
[4] Return to Work Corporation of South Australia v Barnes [2019] SAET 93 at [57].
The grounds of appeal on which the applicant relies largely repeat the complaints of error on the part of the Judge which were made to the Full Bench and assert that the Full Bench was wrong to dismiss the appeal.
The issue on causation before the Full Bench was whether, as a question of fact, Mr Barnes’ employment, in causing his left knee injury, also caused, or was a significant contributing cause to, his right knee, shoulder and hip injury. There was no dispute before the Full Bench on any question concerning the construction of s 7(2)(a) of the Return to Work Act 2014 (SA).
RTW contends that the Full Bench’s conclusion that the Judge’s error was immaterial is wrong. That contention is not arguable. The Full Bench was plainly correct to describe the error as immaterial in the sense that there was sufficient other evidence which supported the Judge’s finding, and on which the Full Bench could act in dismissing the appeal.
Nor has RTW established an arguable case that the reasons of the Full Bench were inadequate. Reasons are not inadequate merely because they do not repeat, and address every submission made by a party. Nor are reasons for decisions inadequate because the party adversely affected finds them less than persuasive. It is enough that the forensic issues are identified and that sufficient reasons given to explain how the court arrived at its final conclusion. No question of general principle is raised by this ground in this case. RTW’s submissions are peculiar to the facts and circumstances of the cases.
There being no arguable error of principle or law, permission to appeal is refused.