RTL Mining and Earthworks Pty Ltd v Briggs

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 03954

RTL MINING AND EARTHWORKS PTY LTD	Appellant
v
DAVID BRIGGS	Respondent

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 July 2020
DATE OF JUDGMENT:	21 April 2021
CASE MAY BE CITED AS:	RTL Mining and Earthworks Pty Ltd v Briggs
MEDIUM NEUTRAL CITATION:	[2021] VSC 188

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ADMINISTRATIVE LAW – Appeal from a decision of the Magistrates’ Court – Worker’s injury claim – Claim for impairment benefits – Whether it was reasonably open to conclude that respondent’s condition was caused by his employment – Whether Magistrate failed to have regard to relevant considerations or had regard to irrelevant considerations – Whether Magistrate provided adequate reasons – Where appeals are constrained to questions of law – No error of law – Appeal dismissed – Magistrates’ Court Act 1989, s 109 – Accident Compensation Act 1985, s 98C – Hunter v Transport Accident Commission (2005) 43 MVR 130, applied – Makeham v Sheppard [2020] VSCA 242, applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	J Gorton QC with S Scully	MinterEllison
For the Respondent	N Murdoch QC with A Dimsey	Maurice Blackburn

HIS HONOUR:

The respondent was employed by the appellant from 3 March 2014 until 27 May 2014 as an excavator operator at the Hazelwood open cut coal mine. His work involved the excavation of burning coal from a fire which burnt at the mine for 45 days.

In the course of his work at the mine, the respondent was exposed to smoke, fumes, dust and air toxins. On 21 January 2015, he completed a worker’s injury claim form alleging injury to his lungs as a result of ‘exposure to silicone dust and gases’ in the course of his employment with the appellant. The claim was rejected by the authorised agent for the Victorian WorkCover Authority.

On 10 October 2017, the respondent submitted a claim for impairment benefits compensation pursuant to s 98C of the Accident Compensation Act 1985. The claim was rejected on 1 November 2017 by the authorised agent for the Victorian WorkCover Authority on behalf of the appellant.

The respondent issued proceedings in the Magistrates’ Court of Victoria on 10 May 2018 in which he alleged that he suffered certain injuries arising out of or in the course of his employment with the appellant, in particular, from exposure to ash, coal dust and smoke.

The appellant denied liability in respect of the respondent’s claims. It did so on the grounds that the respondent had not sustained an injury arising out of or in the course of his employment with it; that the respondent’s employment was not a significant contributing factor to his claimed injury; and that any incapacity for work did not result from and was not materially contributed to by an injury arising out of or in the course of his employment.

The hearing before the Magistrates Court commenced on 19 March 2019. Evidence was heard over four days and the parties subsequently filed written submissions.

The respondent succeeded before the Magistrates’ Court. The Court relevantly ordered as follows:

The [appellant] is laible (sic) to pay compensation for the [respondent’s] injury in accordance with the Accident Compensation Act 1985 (Vic) (the Act) including:
(a)payment of reasonable medical expenses from 27 January 2015 to date and ongoing in accordance with law;
(b)payment of weekly payments at the rate of “no currently (sic) work capacity from 27 January 2015 to date and ongoing, on production of a statutory declaration;
(c)and liability is accepted to pay compensation for non-economic loss in respect of permanent impairment to be assessed in accordance with section 98C of the Act.

The Magistrate published reasons for judgment on 1 August 2019 (the reasons).

Pursuant to s 109 of the Magistrates’ Court Act 1989, the appellant now appeals against the orders made by the Magistrates’ Court of Victoria.

The appeal

Pursuant to s 109 of the Magistrates’ Court Act 1989, the appeal is confined to questions of law. The appellant advanced three questions of law on the appeal:

1.Whether, on the evidence and in light of the findings made, it was reasonably open to the learned Magistrate to conclude that the respondent’s condition was caused by his employment with the appellant.
2.Whether, when considering whether the respondent’s condition was caused by his employment, the learned Magistrate failed to have regard to relevant considerations or had regard to irrelevant considerations.
3.Whether the learned Magistrate provided adequate reasons for the decision.

The appellant’s principal challenge concerned the first of these questions as to whether it was reasonably open for the Magistrate to conclude that the respondent’s condition was caused by his employment with the appellant.

The reasons

In the reasons, after narrating the procedural background to the matter, the Magistrate set out the formal admissions made by the appellant which relevantly included the following:

(a) In the course of his employment with the appellant, the respondent was exposed to smoke, fumes, dust and air toxins.

(b) The excavator cabin in which the respondent worked, although air-conditioned, was not “pressurise sealed” with the result that dust, particles, gases, smoke and fumes entered the cabin. Dust was visible inside the cabin at the end of the shifts worked by the respondent.

(c) In addition to operating an excavator, the respondent also performed other duties for the appellant outside of the excavator, including labouring, rolling up hoses, setting up sprinklers and setting up pipes. He worked outside of the excavator about 25% of the time.

(d) During the respondent’s work for the appellant, the dust, smoke and fumes sometimes caused visibility to diminish, sometimes down to zero.

(e) The respondent was not provided with respiratory protection while working for the appellant at the Hazelwood site. He was exposed to carbon monoxide, sulphur dioxide, Acrolein, nitrogen dioxide, particulate matter, benzene, toluene, xylenes and formaldehyde, all of which were contained within the smoke, dust and fumes which emanated from the mine fire.

The Magistrate then summarised the largely uncontested evidence given by the respondent, who he accepted was a reliable and credible witness.[1] That evidence included the following:[2]
[1]Reasons, [87], [104].
[2]Reasons, [10]–[11], [14], [16]–[17].

(a) That he had never suffered from a serious illness or smoked.

(b) Before he commenced employment with the appellant, he underwent a pre-employment medical examination which included a lung function test. He was told by the nurse that the results of this test were ‘excellent’.

(c) During his employment with the appellant, he did not experience any shortness of breath or other symptoms, although he consistently had a blocked nose from the dust and a parched mouth.

(d) He began to suffer ‘flu like’ symptoms in September 2014.[3]
[3]Consistent with the medical records which were in evidence, the Magistrate proceeded on the basis that these symptoms in fact commenced in November 2014.

(e) On 5 December 2014, he attended his general practitioner with complaints of a dry cough, a sore throat and shortness of breath. He also complained of groin pain. He was diagnosed with the flu and prescribed antibiotics and referred for a chest x-ray. His symptoms deteriorated and he again attended on his general practitioner on 12 and 22 December 2014.

(f) He ceased work in January 2015. He then attended medical specialists in Sydney and underwent blood tests, a chest x-ray, a CT scan and a lung biopsy.

(g) He now requires the use of oxygen cylinders and a concentrator when at home to perform normal daily activities and continues to experience pain in his hips, elbows, shoulders, lower legs and hands when it is cold. He also experiences sleep disturbance.

It was not in dispute before the Magistrate that the respondent’s condition rendered him incapacitated for pre-injury and suitable employment.[4] There was, however, a divergence in medical opinion about the exact nature and diagnosis of the respondent’s condition and the ‘central issue of causation’.[5] The learned Magistrate heard ‘voluminous and complex’ expert medical evidence from the following witnesses:[6]
[4]Reasons, [85].
[5]Reasons, [87].
[6]Reasons, [86]. Various medical records from the respondent’s treating doctors were also in evidence, as well as reports prepared by Mr Michael Kottek, occupational environmental health consultant.

(a)       Dr Kovi Levin, respiratory physician;
(b)      Associate Professor Stephen Hall, rheumatologist;
(c)       Dr Ryan Hoy, respiratory and sleep disorders physician;
(d)Associate Professor Stephen Sasse, respiratory specialist and sleep physician;

(e)       Professor Michael Pain, consultant thoracic physician;
(f)       Dr Anthony Boers, consulting rheumatologist and general physician;
(g)      Professor Merrilee Needham, neurologist;
(h)      Dr Jonathan Burdon, consultant respiratory physician.

In the reasons, the Magistrate provided what the appellant accepted was a comprehensive and accurate summary of the evidence given by each of these witnesses.

(a) On the diagnosis of the respondent’s condition, the Magistrate summarised the evidence as follows:[7]
[7]Reasons, [87].

… Dr Levin and Dr Hoy believed he has interstitial lung disease and associated amyopathic dermatomyositis as did Dr Boers, albeit with some uncertainty; Prof Hall diagnosed him as having myositis associated with an underlying autoimmune condition–amyopathic dermatomyositis; Associate Prof Sasse’ diagnosed him as suffering from non-specific interstitial pneumonitis; Prof Pain stated that he has a connective tissue disorder with interstitial lung disease (an autoimmune disorder); Dr Burdon diagnosed him as having dermatomyositis related to pulmonary fibrosis; and, Prof Needham is of the opinion that he suffers from interstitial lung disease–connective tissue disease associated with the anti-PM/Scl antibody and overlap myositis and disputed the diagnosis of amyopathic dermatomyositis based on her opinion that Mr Briggs “probably had muscle involvement even at the outset”.

(b) On the matter of causation, the Magistrate summarised the evidence as follows:[8]

Dr Levin stated that there is a “temporal relationship” and it is “reasonable to assume” that work contributed to his illness; Prof Hall stated that employment was a “possible cause”, that the “temporal connection was tantalising” and ultimately, that employment was a significant contributor to the condition because such exposure “statistically put him at increased risk”; Associate Prof Sasse’ stated that his exposure to toxins contributed to his lung condition because “the key fact is the timing” based on the fact that he had good lung function prior to his employment and 6 months later his condition developed with the only change being his work environment; Prof Pain was “persuaded” that his exposure probably caused the onset of his condition based on his normal pre-employment spirometry results and the development of his condition shortly thereafter in conjunction with the literature referred to by Dr Hoy allegedly linking the onset of autoimmune diseases to chronic bronchial irritation; Dr Hoy stated that it is “more likely than not” that exposure was “a factor contributing towards” his lung condition; Dr Boers stated that there is a causal link between his exposure and his condition on the basis of monitoring him over a period of time, after obtaining the opinions of Dr Hoy and Prof Hall, his pre-employment lung function results and the development of symptoms 5 months later; Dr Burdon expressed an opinion that his condition is not work related; and Prof Needham considered his condition is multi-factorial and that his occupational exposure was a “possible trigger” on the basis of temporal association.

[8]Reasons, [88].

After summarising the parties’ submissions, the Magistrate then came to his conclusions.

(a) The Magistrate found that, whichever diagnosis of the respondent’s condition was correct, his condition was rare.[9] He stated that he was particularly impressed with the evidence given by Professor Needham.[10] He accepted her opinion on the question of diagnosis: that the respondent was suffering from an autoimmune condition categorised as overlap myositis associated with the PM/Scl antibody leading to interstitial lung disease–connective tissue disease.[11]
[9]Reasons, [95].
[10]Reasons, [95].
[11]Reasons, [95], [97].

(b) The Magistrate also accepted Professor Needham’s evidence that there is no literature directly relevant to the respondent’s condition, his exposures in the course of his employment and on causation.[12] The Magistrate determined not to place any evidentiary weight on a particular study relied upon by some of the expert witnesses called by the respondent and stated that it was not appropriate to draw any evidentiary conclusions from it.[13]
[12]Reasons, [96].
[13]The study to which the Magistrate referred, which is relevant to the appellant’s case on appeal, was referred to in the reasons as the ‘Labirua-Iturburu’ study. I refer to it below as the ‘Spanish study.’

(c) Having accepted Professor Needham’s opinion on diagnosis, the Magistrate identified the issue to be determined as being whether the respondent’s condition was caused or contributed to by his exposures in the period of his employment with the appellant.[14] The Magistrate further addressed Professor Needham’s opinion on the question of causation and then the view of the other medical experts as follows:[15]
[14]Reasons, [97].
[15]Reasons, [97]–[98].

From a medical perspective, Prof Needham is of the opinion that the temporal connection between his employment period (3 March 2014 to 27 May 2014) and the onset of symptoms in November 2014 (5 months) is “tenuous”. In her opinion, for such a short, sharp exposure, that if it was to cause an imminent onset of the disease, she would have expected him to have experienced respiratory symptoms in the form of a cough or shortness of breath at the time of his exposure to indicate inflammation occurring in the lung. Furthermore, she opined that it is very difficult to come to any kind of definite conclusion because of Mr Briggs (sic) short duration of exposure. Ultimately, Prof Needham concluded that because of the nature of the symptoms of which he was experiencing in November 2014 (dry cough/sore throat) and that on examination by Dr Quamar on 5 December (red throat/enlarged tonsils), that it was “equally as likely, perhaps even more likely” that whatever infection he had was the “trigger” rather than his occupational exposure but did add, “you can never be sure”.
When giving evidence, Prof Needham conceded that the medical profession is still uncertain as to the “triggers” and she is unable to draw any firm conclusion as to what “triggered” his condition. The other medical experts, whilst supporting causation, albeit reaching a different conclusion on diagnosis, also conceded that infection was a “possible” trigger. As indicated a number of the other medical experts (Dr Levin, Ass Prof Sasse’, Prof Hall, Prof Pain, Dr Hoy & Dr Boers) supported causation on the basis of temporal connection.

(d) Immediately after the above paragraph, the Magistrate stated: [16]
[16]Reasons, [99].

The court is therefore left with expert evidence indicating that occupational exposure is a “possible” trigger as is an infection. The court is required to make a determination considering this expert evidence and having regards to the totality of the evidence.

(e) After setting out established principles expressed in Zlateska v Consolidated Cleaning Services Pty Ltd,[17] Dahl v Grice,[18] Transport Industries Insurance Co Ltd v Longmuir[19] and Amaca Pty Ltd v King,[20] the Magistrate referred again to Professor Needham’s opinion on causation, stating that she ‘was unable to draw any firm conclusion as to what triggered’ the respondent’s condition.[21] He stated that Professor Needham ‘considered the temporal connection between employment and symptoms to be tenuous and that infection was “equally as likely, perhaps even more likely” than Mr Briggs (sic) occupational exposure in the course of his employment with [the appellant], however she stated that, “you can never be sure”.[22]
[17][2006] VSCA 141.
[18][1981] VR 513.
[19][1997] 1 VR 125.
[20][2011] VSCA 447.
[21]Reasons, [103].
[22]Reasons, [103] (italics in original).

(f) Following this observation and immediately before his ultimate finding that ‘there is a causal link between [the respondent’s] exposure and his condition,’[23] the Magistrate stated as follows in a paragraph which is critical to the determination of the appeal:[24]
[23]Reasons, [105].
[24]Reasons, [104].

The evidence in this case is not confined to the “cause”, because it is apparent that there may be more than one cause, occupational exposure and infection to name two. I have concluded, on the balance of probabilities, that [the respondent’s] exposure to smoke, dust, fumes and substances in the course of his employment as an excavator operator between 3 March 2014 and 27 May 2014 materially contributed to the “injury” suffered by him. In reaching this conclusion, I have had regard to the totality of the evidence and on the basis of a reasoned analysis of that evidence having regard to the authorities to which I have referred. In doing so, I have placed weight on:
·     the reliability and credibility of [the respondent] as a witness;
·     the nature, extent and duration of his exposure during the relevant period;
·     the absence of any prior history of relevant exposures;
·     the pre-employment lung function test;
·     the conflicting medical opinions as to diagnosis and “possible” cause; and
·     the short period between the exposure and development of his condition.

Ground 1:Was it reasonably open to conclude that the respondent’s occupational exposure was a cause of his injury?

Ground 1 was the principal ground of appeal advanced by the appellant. Grounds 2 and 3 were advanced in the event that the appellant was unsuccessful on ground 1.

Ground 1 was formulated as follows in the notice of appeal:

Having accepted at [95] the diagnosis of Professor Needham, determined at [96] that the study relied upon by the respondent’s principle (sic) experts was of no evidentiary weight, and having correctly observed at [99] that the expert evidence was thus to the effect that occupational exposure was only a possible trigger to the respondent’s autoimmune condition, and in circumstances where the evidence revealed other potential triggers and the possibility of there being an unknown trigger with no basis for evaluating one potential trigger as more likely than any other, it was not reasonably open for the Magistrate to conclude that the respondent’s condition was in fact caused by his employment.

Appellant’s submissions

The appellant emphasised that the present case is to be distinguished from a case where there is a direct injury to a person’s lungs, such as with silicosis or asbestosis where damage to the lungs is caused by insults from inhaled particles, or an inflammatory response to those insults. By contrast here, on Professor Needham’s diagnosis as accepted by the Magistrate, the damage to the respondent’s lungs was a manifestation of an underlying autoimmune disease. The question was therefore what triggered the onset of that disease.

The appellant submitted that the respondent’s case at trial faced a number of overlapping difficulties: the Magistrate found that the autoimmune disease suffered by the respondent was rare; there were no epidemiological studies which revealed causative factors for it; the evidence before the Court was that diseases of this type could be idiopathic; the evidence indicated that autoimmune diseases could be activated by a number of potential environmental triggers, including but not limited to occupational exposures; and Professor Needham, who the Magistrate considered was an impressive witness and whose evidence the Magistrate explicitly accepted in relation to diagnosis, considered the temporal connection between the respondent’s employment and the onset of symptoms (a period of five months) to be ‘tenuous’.

The appellant submitted that the medical evidence before the Magistrate was consistent in that it indicated that the respondent’s autoimmune disease may have been caused or triggered by occupational exposures, by a viral infection in about November/December 2014, or by something entirely unknown. As to the second of these possibilities, the trial before the Magistrate was conducted on the basis that the respondent had had an intervening viral infection between when he ceased employment with the appellant and the onset of symptoms associated with the autoimmune disease. [25]
[25]This is consistent with the respondent’s evidence referred to in [12(d)] and [12(e)] above. In her expert evidence, Professor Needham stated that she thought ‘it likely that Mr Briggs had signs of an infection in his initial presentation to his general practitioner in December 2014, namely red throat associated with enlarged tonsils and pus on the tonsils.’ She expressed the view that ‘[m]y opinion is that an infection is at least equally as likely as an environmental exposure to have caused Mr Briggs’ autoimmune condition’. In her expert witness report, Professor Needham also stated that Mr Briggs presented on 8 December ‘with dizziness and gastrointestinal symptoms. None of these symptoms or signs are a typical part of anti-PM/Scl overlap syndrome.’ He also returned positive pertussis serology. Professor Needham noted that ‘[t]hese may suggest that there was an infection at the beginning of his symptoms.’

The appellant acknowledged that a court may, in certain circumstances, find causation as a probability when the medical opinion says only that causation is a possibility. There must, however, be a proper evidentiary basis to do so. As stated by Gobbo J (Young CJ and Kaye J agreeing) in Dahl v Grice, there must be ‘events whose character and sequential order suggested a causal rather than a merely temporal connection’.[26] In order to elevate a possible cause into a probable cause, ‘something more is needed than a state of facts which is consistent with one view or the other’.[27]
[26]Dahl v Grice (n 18) 524.
[27]Woods v Thomas Wilson, Sons & Co Ltd (1915) 8 BWCC 288, 296, quoted by Gobbo J in Dahl v Grice (n 18) 523.

Although common experience might in some cases provide the necessary evidentiary basis for the character and sequence of events to be properly regarded as indicating a causative connection,[28] the appellant submitted that because the respondent’s lung condition was a complication of an autoimmune disease rather than a direct result of the inhalation of toxins, this was not a situation where the character and sequence of events could be strongly suggestive of causative connection. The aetiology of an autoimmune condition is not such that a lay person could draw conclusions about its probable cause from common experience. The respondent’s disease could have been triggered by occupational exposure, by his previous infection, or it could have been triggered, or otherwise emerged, from some unknown source. There was no proper basis for the Court to prefer the first of these options and to conclude that it was more probable than not that it was triggered by the exposure.
[28]Australian Iron & Steel Ltd v Connell (1959) 102 CLR 522, 531.

Furthermore, the temporal connection between the respondent’s occupational exposure and the onset of symptoms was no reason to treat occupational exposure as a more probable trigger than infection or idiopathic onset, because both occupational exposure and the respondent’s infective illness pre-dated the respondent’s symptoms. As such, there was no scope for a ‘before and after’ type analysis. The appellant also laid emphasis on Professor Needham’s evidence that the temporal connection between the respondent’s occupational exposure and the onset of symptoms, a period of about five months’ duration, was ‘tenuous’.

The appellant submitted that, once the Spanish paper was disregarded in light of the Magistrate’s acceptance of Professor Needham’s evidence that it related to a different condition to that suffered by the respondent and was therefore of no relevance in identifying the cause of his condition, it was not reasonably open for the Magistrate to infer that the respondent’s occupational exposure was a cause of his condition. There was no epidemiological evidence before the Court which implicated the respondent’s occupational exposure as being a cause of the autoimmune disease. Nor was there any epidemiological evidence which considered the relative risks of occupational exposure, viral infection or any other possible trigger, or any expected latency period between the development of symptoms and exposure to the trigger. The Magistrate accepted that there was no medical literature directly relevant to the respondent’s claimed injury. Given the evidence that the disease suffered by the respondent was often idiopathic, there was accordingly no rational basis for the Magistrate to elevate occupational exposure from a possible to a probable cause of the respondent’s condition.

The appellant submitted that the Magistrate’s acceptance of Professor Needham’s evidence that the Spanish paper related to a different condition should have been fatal to the respondent’s case as the experts who supported a probable causative connection between occupational exposure and the onset of the autoimmune disease relied upon that paper. It was contended that the Magistrate should have disregarded all of the expert medical opinions in which the Spanish paper was a significant factor for the opinions expressed. The Magistrate should have also disregarded those medical opinions which had failed to have regard to the respondent’s intervening viral infection.

Consistent with this analysis, the appellant advanced the following critiques of the reasoning of the medical experts who found a causative relationship between the respondent’s occupational exposure and his onset of symptoms.

(a) Professor Sasse’s evidence was that the respondent’s condition was secondary to his occupational exposure. The appellant submitted that it would not have been reasonably open for the Magistrate to have relied upon this evidence to find probable causation because: (1) the Professor relied upon the fact that the respondent’s condition developed six months later and ‘the only material change in that time was exposure to the mine fire’ – this statement was said to ignore the respondent’s intervening infection; and (2) the Professor considered that, after some toxic exposure, the respondent developed ‘an acute lung disease’ and he diagnosed a non-specific interstitial pneumonia – the Magistrate did not, however, accept that diagnosis and instead accepted that the lung condition was secondary to an autoimmune condition.

(b) In his initial report, Professor Pain expressed the view that the toxins to which the respondent was exposed were not recognised as inducing pulmonary fibrosis and he could not give evidence that would allow a conclusion that the respondent’s condition was caused by his employment. However, Professor Pain changed his opinion in a second report in which he stated that the respondent’s employment was a significant contributing factor to initiating the autoimmune disease. The appellant contended that it was not reasonably open to rely on the amended opinion because the change occurred as a result of a study referred to by Dr Hoy and that Dr Hoy’s opinion in turn depended upon the Spanish paper.

(c) Dr Hoy gave evidence that it was more likely than not that the respondent’s exposure at work was a contributing factor to the development of his lung disease. The appellant submitted that Dr Hoy’s evidence did not provide a reasonable basis for finding causation because: (1) he relied on the Spanish paper; and (2) he did not give consideration to infection as a possible cause, but accepted in cross-examination that it was a possible cause.

(d) In relation to Professor Hall, it was submitted that his evidence that the respondent’s employment was a cause of his condition did not provide a reasonable basis for finding causation because his opinion was based on the Spanish paper. Professor Hall also gave evidence that the temporal connection between occupational exposure and the onset of symptoms did not provide a basis on which to come to a conclusion regarding causation.

(e) As to Dr Boers, he deferred to Dr Hoy and changed his mind to accept a causal link after being made aware of Dr Hoy’s opinion, which was based on the Spanish paper.

The appellant submitted that all of the above matters indicated that the Magistrate’s finding on causation could only have been based on speculation and not rational inference. The Magistrate had in substance been presented with different guesses about causation and had impermissibly engaged in a process of conjecture in finding that the respondent’s occupational exposure was a cause of his condition.

Consideration

In order to establish that the Magistrate erred in law in making a finding that was not open to him, the appellant must show that there was no basis on which he could have concluded that the respondent’s occupational exposure to smoke, dust, fumes and substances materially contributed to his condition.[29] If there was evidence on which the Magistrate, acting rationally, might have come to this conclusion, ground 1 must fail.[30]
[29]Transport Accident Commission v Hoffman [1989] VR 197, 199.
[30]Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1, 11.

It is apparent from the reasons that the Magistrate did not reach his conclusion on causation solely on the basis of the opinions of those medical experts who gave evidence that the respondent’s occupational exposure was a cause of his condition. Instead, [99] of the reasons indicates that the Magistrate reached the conclusion that he did from a footing that the ‘expert evidence indicat[ed] that occupational exposure is a “possible trigger” as is an infection’.[31] Contrary to the appellant’s submissions, that paragraph does not record any primary finding of fact by the Magistrate that the expert medical evidence only went so far as establishing occupational exposure as a possible cause. Amongst other things, such an interpretation of the reasons would be contrary to the preceding sentence at the end of [98] of the reasons. In [99] of the reasons, the Magistrate is identifying that, at a threshold level, the medical evidence established both occupational exposure and infection as possible causes. He then posits the task of making a determination on causation by reference to the totality of the evidence, including the expert evidence.
[31]See [15(d)] above.

The inclusion in the immediately following paragraphs of lengthy extracts from Zlateska v Consolidated Cleaning Services Pty Ltd,[32] Dahl v Grice,[33] Transport Industries Insurance Co Ltd v Longmuir[34] and Amaca Pty Ltd v King,[35] indicate that the Magistrate was clearly aware that a proximate cause need not be the sole cause of an injury.[36] They also indicate that the analytical framework by reference to which he reached the ultimate conclusion he did on causation was whether all of the evidence before him, including the character and sequence of events, justified the elevation of occupational exposure from being a possible to a probable cause of the respondent’s condition.
[32][2006] VSCA 141.
[33][1981] VR 513.
[34][1997] 1 VR 125.
[35][2011] VSCA 447.
[36]See in particular [101] and [104] of the reasons.

The Magistrate provided only a brief articulation of how he applied this approach to the evidence before him. His Honour stated that his conclusion was reached ‘on the basis of a reasoned analysis’ of ‘the totality of the evidence’ in which he ‘placed weight on’ the six matters referred to in the dot points listed in [104] of the reasons. It is necessary to examine each of these points.

It was common ground that the reference in the first point in [104] to the respondent’s reliability and credibility as a witness picked up, in substantive terms, the matter referred to in the second point: ‘the nature, extent and duration of his exposure during the relevant period’. There can be no doubt that there was extensive, largely unchallenged, evidence from the respondent before the Court about his occupational exposure, as well as admissions by the appellant.[37]
[37]See [11]–[12] above.

As to ‘the absence of any prior history of relevant exposures’ and ‘the pre-employment lung function test’ referred to in the following two points in [104], there can likewise be no doubt that the evidence before the Magistrate left it open to him to place weight on these matters.

In the following dot point in [104], the Magistrate referred to ‘the conflicting medical opinions as to diagnosis and “possible” cause’. Although evidence relating to diagnosis was not directly relevant to the issue of causation as the appellant submitted, this point is properly read as a shorthand reference to the medical opinion which was before the Court. Self-evidently, it was only that aspect of the medical evidence which dealt with the issue of causation which pertained to the issue the Magistrate was addressing in [104]. Read in the context of the rest of the paragraph, in this point, the Magistrate is identifying that one of the matters upon which he placed weight in his conclusion on causation was his ‘reasoned analysis’ of the conflicting medical opinions on causation. This is consistent with his use of quotation marks around the word ‘possible’ before the word ‘cause’ in this point in [104].

It accordingly follows that, in this point in [104] of the reasons, the Magistrate must be taken to identify that, in coming to his conclusion on causation, he has placed weight on the medical evidence which supported a causal relationship between the respondent’s occupational exposure and his medical condition. As I explain below,[38] even allowing for the Magistrate’s finding that the Spanish paper was not to be given any evidentiary weight, there was expert medical evidence upon which it was open for the Magistrate to rely in reaching his conclusion on causation.
[38]See [43]–[51] below.

As to ‘the short period between the exposure and development of his condition’ referred to in the final point in [104], read in the context of the paragraph as a whole, the reference to ‘exposure’ is to be understood as being a reference to occupational exposure, as distinct from more general environmental exposure which would include the respondent’s infective illness. The shortness of the period between the respondent’s occupational exposure and the development of his condition is readily apparent.

I reject the appellant’s submission that the respondent’s infective illness, because it also preceded the onset of his condition, therefore necessarily precluded the Magistrate from placing weight on the temporal connection between the respondent’s occupational exposure and the onset of symptoms in making his finding on causation. The submission wrongly implies that the issue of causation is to be approached in a binary way whereby the causative effect of one factor must be proved to the exclusion of another; in this case, that the respondent’s occupational exposure was causative to the exclusion of the respondent’s viral exposure and the possibility that his condition was idiopathic. This is not correct. ‘It is not necessary for the worker to establish that the act or omission of the employer was the sole or dominant cause of the injury’; it is sufficient if it ‘can be shown on the balance of probabilities that the act or omission of the employer was a cause of the injury’.[39]
[39]Zlateska v Consolidated Cleaning Services Pty Ltd (n 17) [8]–[9] (italics in original).

The significance or otherwise of the respondent’s infective illness on whether his occupational exposure was a cause of his condition was a matter for the Magistrate to weigh in considering all the evidence before him. The first sentence of [104] of the reasons makes clear that, in analysing causation, the Magistrate was well aware of the respondent’s infection and the possibility that it was a cause of his condition. Most of the six medical witnesses called by the respondent considered the period between his occupational exposure and the development of his condition to be a relevant factor to be taken into account on the issue of causation; Professor Needham was the only medical expert who regarded the temporal relationship as being ‘tenuous’. Although the Magistrate accepted Professor Needham’s opinion on diagnosis and on the applicability of the Spanish paper, he was not thereby bound to accept her evidence on causation.

It follows from the above discussion that there was evidence before the Magistrate upon which it was open for him to give weight to each of the matters identified in [104] of the reasons in reaching his ultimate conclusion on causation. The appellant submits, however, that because the respondent’s condition was a complication of an autoimmune disease, the ‘character and sequence of events’ could not be strongly suggestive of a causative connection; the nature of the condition meant that a lay person could not draw conclusions about its probable cause from common experience.

There is no general principle that a consideration of the character and sequence of events on the question of causation is inapplicable or unavailable in relation to particular types of medical diseases or conditions, such as the rare autoimmune condition in this case. Rather, the utility of such an analysis and whether it may permit the elevation of a possible cause to a probable cause necessarily depends upon an examination of the nature of the evidence adduced in a particular case which may, or may not, illuminate the existence of a causal connection. The task of evaluating and assessing that evidence was entrusted to the Magistrate. It is no part of the Court’s function in a challenge of the type brought under ground 1 for the Court to review the Magistrate’s evaluation of the evidence.

In any event, as I have noted in [34]–[35] above, the Magistrate’s conclusion on causation was not reached solely by reference to a consideration of the character and sequence of events and the broader circumstances of the case; one of the matters he placed weight on was the expert medical evidence on causation. Although in his analysis of causation the Magistrate did not refer in any detailed way to that evidence, his accurate and comprehensive summaries of the expert evidence makes clear that he was aware of it.

Although some of the criticisms advanced by the appellant about the reasoning of the medical experts who found a causative relationship between the respondent’s occupational exposure and his onset of symptom were not without merit,[40] as outlined below, there nonetheless remained a body of medical evidence upon which, disregarding the Spanish paper, it was open for the Magistrate to accept and which was to the effect that the respondent’s occupational exposure was a probable cause of his lung condition. That is, the Magistrate’s finding that the Spanish study was of no relevance did not render the evidence on causation of all of the medical witnesses who placed some reliance on it as incapable of acceptance.
[40]In particular, I do not consider it would have been reasonably open for the Magistrate to find probable causation on the basis of Professor Sasse’s evidence alone. The Professor’s opinion that the respondent’s condition was secondary to his occupational exposure was based on an erroneous assumption or understanding that ‘the only material change’ in the six months before the condition developed was the respondent’s exposure to the mine fire. That understanding is at odds with the fact of the infective illness suffered by the respondent in December 2014, very shortly before he became symptomatic. Given that fact, on any rational view, Professor Sasse’s opinion was not one which it was open to the Magistrate to accept. In making these observations, I make no criticism of Professor Sasse’s professionalism or expertise. The fact that the respondent suffered an infection shortly before he became symptomatic was not put to him in cross-examination.

In his report, Professor Hall concluded that ‘a strong case could be made that [the respondent’s] lung disease is likely to have been the result of occupational exposure’. Although Professor Hall relied on the Spanish paper in reaching this conclusion (and in cross-examination appeared to disavow the relevance of the temporal connection to causation), it was not suggested to him that the Spanish paper was the only basis for his opinion. To the contrary, it is apparent that there were other bases for his opinion. In cross-examination, he said that he stood by his report and that the ‘assessment of increased risk was based on [the respondent’s] clinical picture and the autoantibody profile that he has, coupled with his history of his occupational exposure’. Even if the reference to the ‘autoantibody profile’ is assumed to be a reference to the Spanish paper (which is unclear), it is apparent that there remained other bases for Professor Hall’s opinion on causation.

Professor Pain, who had been engaged by the authorised agent for the Victorian WorkCover Authority, produced two expert reports which were in evidence before the Magistrate and which were relied upon by the respondent at trial. In the first, having diagnosed the respondent as having diffuse pulmonary fibrosis, Professor Pain stated that he was ‘not convinced’ that the respondent’s employment was related to the development of this condition. He changed his opinion in his second report. He was ‘persuaded that the claim that Mr Briggs’ rare condition was initiated by the circumstances of his employment between March and June 2014 is reasonable and I would accept it’. His reasons for so concluding were that the respondent’s condition:

… is not recognised as an occupationally related condition and I am not familiar with exposure to bronchial irritants as being a recognised trigger for its development.

However, I note that spirometric lung function was normal in 2010 and in March 2014 and Mr Briggs asserts he was well at that time. By January 2015 he had developed symptoms of what became progressive lung inflammation and fibrosis. Dr Hoy has found some evidence in the literature linking the onset of autoimmune diseases to chronic bronchial irritation.

The above reference to the evidence found by Dr Hoy in the literature is a reference to the Spanish paper. However, it is clear from the above extract from Professor Pain’s second report that the Spanish paper was not the sole basis for his opinion on causation. Further, although Professor Pain gave oral evidence that the Spanish paper was ‘highly suggestive’ of a plausible hypothesis as to aetiology in the respondent’s case, he did not give evidence that his conclusion on causation would have altered if the Spanish paper was disregarded. Similarly, although Professor Pain conceded that the temporal connection between the respondent’s occupational exposure and the onset of his condition was not the ‘main determinant’ and that occupational exposure was an ‘extremely rare cause’ of the condition, he did not resile from his conclusion set out in his second report.

In considering the above aspects of Professor Pain’s evidence (and the evidence of the other medical experts), it is not to be overlooked that it is no part of the Court’s role in relation to ground 1 of the appeal to engage in an evaluative exercise in weighing and comparing the evidence which was before the Magistrate. For the reasons I have outlined, it cannot be said that it was not reasonably open to the Magistrate to rely on Professor Pain’s second expert report.

Dr Hoy gave evidence that it was more likely than not that the respondent’s exposure at work was a contributing factor to the development of his lung disease. Although it is clear that this opinion was in part based on the Spanish paper, it does not follow from the Magistrate’s finding that that paper should be disregarded that Dr Hoy’s evidence was not capable of providing a rational basis for the Magistrate’s finding on causation. When cross-examined about the Spanish paper, Dr Hoy accepted that it was not specifically relevant to the respondent’s condition, but did not then change his conclusion about causation.

Further, Dr Hoy’s opinion on causation was based on a number of considerations beyond the Spanish paper. He gave the following evidence when asked what factors led to his conclusion:

… we know that amyopathic dermatomyositis associated with interstitial lung disease is a very rare condition. But we know more broadly that autoimmune or connective tissue disease is associated with interstitial lung disease and have been reported to be associated with occupational exposures. So I think we do need to extrapolate on our knowledge from (indistinct) connective tissue diseases and their influence on interstitial lung disease. And certainly taking an occupational history from Mr Briggs, he certainly recorded over a period of 12 weeks of work, that he had worked in an environment where there was likely high level exposure to respiratory irritants and a wide range of chemicals during that time as a result of the coal mine fire, and then temporally between that exposure and then the onset of his symptoms would certainly be in keeping with an exposure contributing, most likely, towards development of that disease process.
And the fact that he had lung function testing done very shortly prior to starting that work, was that another factor to take into account?---Yes, certainly the fact that that was performed is very useful to demonstrate that his lung function was normal at the time and he certainly didn’t have any symptoms to suggest significant lung disease prior to work in that role.

Later in cross examination, when asked whether he could confidently attribute the respondent’s condition to occupational exposure, Dr Hoy stated:

So we can be very confident about … exposures like asbestos causing asbestosis, but it’s very difficult to be confident when there’s a very rare disease and exposure that is very rare as well. So we have to, as I say, extrapolate from other diseases that we understand and we see more regularly. So I think it would be misleading to say that – anybody could say confidently that that was actually the case.
And in terms of the temporal connection that you have noted, that in and of itself can’t be determinative of causation, can it, just because something happens - - - ?---It’s one of the factors that we consider, but not – not the sole factor.

Dr Hoy’s mere acknowledgement of infection as a possible trigger for the onset of the respondent’s condition did not thereby erase his considered conclusion on causation outlined above such that it could be said that his evidence did not provide a reasonable basis for finding causation.

Dr Boers gave evidence that the respondent’s occupational exposure did contribute to his condition. In its submissions, the appellant inaccurately portrayed Dr Boers as essentially adopting Dr Hoy’s opinion on causation, which opinion was said to be flawed because it was based on the Spanish paper. I reject that last proposition for the reasons I have already outlined.

The appellant’s submission does not otherwise properly engage with Dr Boers’ opinion on causation which, as he identified, was principally based on his clinical experience, as distinct from research studies. He opinion was based on ‘dose and effect’. He stated that, ‘having treated in excess of 20,000 patients in 15 years…this was one of the most dramatic cases of rapidly progressive lung disease I’ve seen…’. In addition to this consideration about the extent, duration and intensity of occupational exposure and the effect on the development of the condition, another clinical factor on which Dr Boers based his conclusion was the rapidity with which the respondent’s lung condition progressed after his occupational exposure, followed by a significant stabilisation of his condition after his medical presentation.

As I have explained, the existence of medical opinion which supported the respondent’s occupational exposure as a cause of his condition was only one of the circumstances of the case upon which the Magistrate placed weight in reaching his ultimate conclusion on causation. For the reasons I have outlined, it was reasonably open for the Magistrate to reason in the way he did and to reach his conclusion on causation.

However, it also follows from the above examination of the medical evidence that, even without relying on the broader circumstances of the case including the character and sequence of events, it would have been reasonably open to the Magistrate to have found that the respondent’s occupational exposure was a cause of his condition solely on the basis of the body of evidence constituted by the medical experts, or part of that evidence. The fact that the Magistrate did not reason in this way is presently immaterial; a respondent to an appeal under s 109 of the Magistrates’ Court Act may justify the order below on any basis that was open to it before the Magistrates Court.[41]
[41]See Ashley J (as he then was) in Popovski v Ericsson Australia Pty Ltd [1998] VSC 61, [26]–[27] and the cases there cited. Contrary to the appellant’s submissions, the different facts and circumstances in Popovski do not affect the general applicability of this principle in the context of s 109 of the Act.

For the foregoing reasons, there was evidence open to be accepted by the Magistrate, acting rationally, that the respondent’s occupational exposure to smoke, dust, fumes and substances was a probable cause of his medical condition. The Magistrate was not bound to conclude on the evidence that the respondent’s occupational exposure was no more than a possible cause of his condition. Ground 1 accordingly fails.

Ground 2:Failure to have regard to relevant considerations and having regard to irrelevant considerations

This ground was formulated in the notice of appeal as follows:

The learned Magistrate erred when concluding at [104] that the respondent’s condition was caused by the respondent’s employment by:
(a)failing to have regard to the evidence that infection was the more probable or a possible trigger of the respondent’s autoimmune condition;
(b)failing to have regard to the evidence that there were other possible but unknown triggers of the respondent’s autoimmune condition and/or that the trigger is not normally ascertainable;
(c)failing to have regard to the fact that there was no epidemiological or other evidence that provided the relative risks of different possible triggers or probable latency periods by which the relative likelihood of different triggers could be evaluated;
(d)having regard to “the conflicting medical opinions as to diagnosis”, when his Honour had previously made a finding as to the actual diagnosis; and
(e)having regard to “the short period between the exposure and development of [the respondent’s] condition”, when the respondent’s infection was immediately prior to the development of the respondent’s condition and there was no evidence as to an expected or usual latency period between the exposure and development of that condition.

The appellant’s submissions under this ground centred on the proposition that, in making his finding in relation to causation, the Magistrate failed to have regard to the evidence indicating that: (1) an infection may have been the cause of the respondent’s condition; and (2) the respondent’s condition may have arisen from an unknown or idiopathic cause. In support of that proposition, it was submitted that [104], being the key evaluative part of the Magistrate’s reasons, contains no reference to infection as a possible cause, nor idiopathic onset.

Given the text of [104], this submission cannot be accepted insofar as it relates to infection as a probable cause.

As to whether the Magistrate ignored the evidence that the disease could have been the result of an unknown or idiopathic cause, in addition to referring to the absence of any explicit reference to this possibility in [104], the appellant also drew attention to the fact that [99] also does not contain any such reference. Instead, in that part of the reasons, the Magistrate states that ‘[t]he court is therefore left with expert evidence indicating that occupational exposure is a “possible trigger” as is an infection’. The appellant submitted that this indicated that, at the critical juncture of identifying the causes of the respondent’s condition, the Magistrate wrongly excluded the concept of there being an unexplained trigger and erred by framing the question of causation as a simple comparison between occupational exposure and infection, whereas it could have in fact been neither.

These parts of the reasons do not lead me to conclude that Magistrate wrongly excluded the evidence that the respondent’s disease could have been the result of an unknown or idiopathic cause. Although the Magistrate did not explicitly refer to this possibility in either [99] or [104] of the reasons, he was plainly aware of the possibility and cannot be said to have excluded it as a possibility in his consideration of causation. So much is clear from the reference in [103] to Professor Needham’s evidence that ‘the connective tissue disease in this case is an idiopathic inflammatory myositis’. Immediately after this, in the evaluative part of his reasons at [104], the Magistrate refers to the evidence not being ‘confined to the “cause”, because it is apparent that there may be more than one cause, occupational exposure and infection to name two’.[42] It is apparent from these parts of the reasons that the absence of any specific reference to the possibility of an idiopathic cause in [99] and [104] indicates that, in assessing the evidence, the Magistrate adopted the view that his conclusion on causation depended principally on his evaluation of the evidence about the respondent’s previous viral infection and occupational exposure, rather than the possibility of there being an idiopathic cause.
[42]Emphasis added. See also [36], [37], [39], [43] and [61] of the reasons.

The claim that the Magistrate failed to have regard to the absence of any epidemiological or other evidence which provided the relative risks of different possible triggers or probable latency periods by which the relative likelihood of different triggers could be evaluated was not developed by the appellant in its submissions. It has not persuaded me that it is a matter which the Magistrate was bound to consider. In any event however, the Magistrate acknowledged that the respondent’s condition was rare. Further, his acceptance of Professor Needham’s evidence that there is no literature directly relevant to the respondent’s condition and the issue of causation,[43] in conjunction with his review of Professor Needham’s evidence on causation[44] immediately before setting out his conclusions on causation in [104], strongly suggests that this was a matter to which the Magistrate did in fact have regard.
[43]Reasons, [96].
[44]Reasons, [103].

The appellant’s complaint that the Magistrate erred by having regard to ‘the conflicting medical opinions as to diagnosis’ must be rejected in light of my consideration of this issue in [34]–[35] above.

The appellant’s complaint that the Magistrate erred by having regard to the short period between the exposure and development of the respondent’s condition, when the respondent’s infection was immediately prior to the development of the condition, must also be rejected for the reasons set out in [37]–[38] above.

Ground 2 accordingly fails.

Ground 3: Failure to give proper reasons
Appellant’s submissions

In the event that it was unsuccessful in relation to grounds 1 and 2, the appellant submitted that the Magistrate had erred in failing to provide adequate reasons for his conclusions in [104] of the reasons.

Ground 3 was formulated as follows:

That the learned Magistrate failed to give proper reasons for his conclusion expressed at [104] that the respondent’s injury was in fact caused by his employment including by failing:
(a)to explain why he rejected Professor Needham’s opinion, whose evidence the learned Magistrate otherwise accepted, that infection was a more likely cause of the respondent’s autoimmune condition;
(b)to explain why the fact that the respondent had good lung function prior to his exposure suggested his work was a probable cause, when the infection was also sustained after the time at which the respondent had good lung function; and
(c)to identify the evidence upon which he in fact relied to form the view that the occupational exposure was in the circumstances a probable cause rather than just a possible cause, and to set out the actual reasoning process by which he formed that view.

Although the appellant accepted that the reasons were otherwise careful and comprehensive, [104] was said to be bereft of analysis and explanation and was no more than guess and speculation.[45] The Magistrate was said to have resolved the issue of causation by asserting a conclusion, rather than by using an exposed reasoning process, thereby committing an error of law.
[45][104] of the reasons is set out in [15(f)] above.

The appellant submitted that, in setting out the factors upon which he placed weight when analysing the evidence, the Magistrate failed to make any findings about which evidence he preferred in relation to causation; whether infection, or any other factor other than occupational exposure, was or was not a cause of the respondent’s condition; and what evidence and process of reasoning led him to elevate occupational exposure from being a possible to a probable cause of the respondent’s condition.

The asserted lack of proper analysis by the Magistrate was said to be highlighted by the Magistrate’s reliance in [104] on the short period between exposure and development of the respondent’s condition; there had in fact been a much shorter period between the respondent’s viral infection and when he became symptomatic with the autoimmune condition. Similarly, given that the pre-employment lung function tests pre-dated the viral infection, the Magistrate did not articulate why he had placed weight on those tests.

The appellant also contended that the Magistrate failed to articulate why he did not accept Professor Needham’s evidence on causation – that the respondent’s infection was ‘perhaps even more likely’ a trigger of his condition that any occupational exposure – in circumstances where he had accepted her evidence on diagnosis.

In addition to points which I have already addressed,[46] the appellant also submitted that [104] of the reasons was deficient because it does not contain any reference to the Spanish paper. Because the paper was relied upon by a number of the respondent’s medical experts, in light of the Magistrate’s finding that it had no evidentiary value, it was submitted to have been incumbent upon the Magistrate to examine whether reliance could properly be placed on the medical evidence which was based on it.
[46]It was submitted that the meaning of the expression ‘the absence of any prior history of relevant exposures’ was said to be unclear. It was uncertain whether the Magistrate was limiting himself to the question of occupational exposure, or whether it also was intended to refer to viral exposure. I have already addressed this issue in [29]–[30], [33] and [38] above. It was also submitted that the relevance of the ‘conflicting medical opinions as to diagnosis and “possible cause”’ was confusing and unclear because the Magistrate had resolved the question of diagnosis by accepting Professor Needham’s opinion. I have already addressed this issue in [34]–[35] and [38] above.

Legal principles

A judge or magistrate’s reasons for decision must expose the path of reasoning which leads him or her to their ultimate conclusion.[47] As stated by Nettle JA in Hunter v Transport Accident Commission, reasons should also:[48]

… deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding [sic] are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion.[49]

[47]Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317, [38] (Ashley JA, Warren CJ agreeing at [1] and Nettle JA agreeing at [3]).

[48](2005) 43 MVR 130, 136–7 [21].

[49]Cropp v TAC [1998] 3 VR 357, 376 (Charles JA); Giannakopoulos v Melwire Pty Ltd and MMI

Workers’ Compensation (Victoria) Ltd [2000] VSCA 153, [23], (Tadgell JA); Dodoro v Knighting (2004) 43 MVR 231, 240 [39], (Buchanan JA), 241 [45], 244–5 [58](Eames JA, in diss).

Nettle JA emphasised that ‘where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue’.[50] Reasons are inadequate ‘when they leave out altogether discussion and resolution of major issues and the role if any which they have been accorded in the ultimate determination’.[51]
[50]Hunter v Transport Accident Commission (n 48) 136–7 [21] citing Sun Alliance Insurance Ltd v Massoud [1989] VR 8, 18.
[51]Ibid 142 [35] (Nettle JA).

The extent of the reasons which must be provided depends upon the circumstances of the case.[52] As McHugh JA stated in Soulemezis v Dudley (Holdings) Pty Ltd, ‘the extent of the duty to give reasons is related “to the function to be served by the giving of reasons”’.[53] His Honour’s judgment was followed by the Court of Appeal in Perkins v County Court of Victoria[54] in which Buchanan JA (with whom Phillips and Charles JJA agreed) identified that:

The degree of detailed reasoning required of a tribunal depends upon the nature of the determination, the complexity of the issues and whether the issues are ones of fact or of law or of mixed fact and law, and the function to be served by the giving of reasons. As to the last matter, reasons which are required to enable a right of appeal on questions of fact to be exercised which are required to enable a right of appeal on questions of fact to be exercised might not be required if an appeal is limited to questions of law.[55]

[52]Assad v Eliana Construction & Developing Group Pty Ltd [2015] VSCA 53, [30].

[53](1987) 10 NSWLR 247, 280, quoting Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, 386 (Mahoney JA).

[54](2000) 2 VR 246.

[55]Ibid 273 [64].

Buchanan JA then referred with approval to the following statement by McHugh JA statement in Soulemezis (concerning an appeal confined to questions of law):

While it is true that his Honour did not expressly give any reasons for the finding, his reasons for judgment show quite clearly in my opinion that he held that the applicant was fit for work because the CAT scan did not reveal any abnormality. It is not to the point that his Honour’s finding was erroneous or, as counsel for the applicant claimed, perverse. An erroneous or perverse finding of fact raises no question of law and cannot be challenged by way of appeal. What is decisive is that his Honour’s judgment reveals the ground for, although not the detailed reasoning in support of, his finding of fact. But that is enough in a case where no appeal lies against the finding of fact.[56]

[56]Soulemezis v Dudley (Holdings) Pty Ltd (n 53) 282 quoted in Perkins v County Court of Victoria (n 54) 273 [64]. See also Sun Alliance Insurance v Massoud (n 50) 19. In Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639. 647, Meagher JA said of the reasons given by a trial judge that they “… may be brief, but the steps in his reasoning are apparent and indicate no error of law”.

In Assad v ElianaConstruction & Developing Group Pty Ltd,[57] the Court of Appeal referred to the ‘need for transparency in a trial judge’s reasons’ and that, on review or appeal, a court ‘should not be left to speculate from collateral observations the basis of a particular finding’.[58] The Court described as ‘an indispensable requirement’ the duty on a trial judge to ‘expose the reasons for resolving points critical to the contest between the parties’. After referring to Nettle JA’s statement in in Hunter v Transport Accident Commission set out in [71] above, the Court continued:[59]

Where the decision explicitly or by necessary implication involves a rejection of evidence which was critical to a party’s case or a preference of one witness’s account over another’s, the reasons must advert to and provide an explanation for that preference.[60] …
At the same time, however, reasons for decision are to be read fairly and in the context of the manner in which the trial was conducted. In particular, reasons may appear by necessary inference from what is stated expressly.[61]

[57]Assad v Eliana Construction & Developing Group Pty Ltd (n 52).

[58]Ibid [33] citing Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, [56] (McColl JA, Ipp JA and Bryson AJA agreeing), citing Soulemezis v Dudley (Holdings) Pty Ltd (n 53) 280 (McHugh JA).

[59]Assad v Eliana Construction & Developing Group Pty Ltd (n 52) [36]–[37].

[60]Rodda v Transport Accident Commission [2008] VSCA 276, [98] (Hargrave AJA, Ashley and Dodds-Streeton JJA agreeing); see also ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31, [80] (Kyrou AJA, Mandie and Hansen JJA agreeing).

[61]Transport Accident Commission v Kamel [2011] VSCA 110, [86] (Kyrou AJA, Warren CJ and Ashley JA agreeing), citing Franklin v Ubaldi Foods Pty Ltd (n 47) [38] (Ashley JA); ACN 005 565 926 Pty Ltd v Snibson (n 60) [81] (Kyrou AJA, Mandie and Hansen JJA agreeing).

The Court of Appeal in Makeham v Sheppard recently re-stated the established principle that magistrates have an obligation to provide adequate reasons as a matter of judicial duty and as an ordinary incident of the judicial process,[62] being an obligation which is ‘fundamental and integral to the exercise of judicial power’.[63] As expressed by Weinberg JA, it means that the ‘[t]he process of reasoning which enables the path by which the conclusion has been reached must be able to be clearly discerned'[64] such that:[65]

If it is not possible to discern from the reasons given how the conclusion was reached then those reasons will ordinarily be inadequate. Reasons should, at least, trace the major steps in the reasoning process so that anyone reading them can understand, at least in broad terms, how the judge arrived at his or her conclusion.

[62]See Makeham v Sheppard [2020] VSCA 242, [35] (Priest JA), [72] (Weinberg JA) (Kyrou JA agreeing).

[63]Ibid [72].

[64]Ibid [77].

[65]Ibid [79].

Consideration

Applying these principles, I consider that the Magistrate’s reasons are adequate and the appellant’s challenge must fail for several reasons.

The grounds advanced by the appellant do not properly engage with the actual approach adopted by the Magistrate to causation. The appellant’s complaints implicitly assume that the Magistrate found causation solely or principally on the basis of the body of evidence constituted by the medical experts and that his reasons were deficient in articulating his consideration of particular aspects of that evidence. However, as I have explained, although it was reasonably open to the Magistrate to have adopted such an approach, he did not do so.

Instead, the Magistrate reached his conclusion on causation by considering whether all of the evidence before him, including the character and sequence of events, justified the elevation of occupational exposure from a possible to a probable cause of the respondent’s condition. In adopting that approach, the Magistrate was not required to identify every piece of evidence on which he relied in reaching his conclusion on causation. As I have already set out, in approaching causation in this way, the Magistrate identified in [104] those factors which led him to elevate occupational exposures from a possible to a probable cause of the respondent’s condition. In doing so, the Magistrate satisfactorily exposed the path of reasoning which led him to his ultimate conclusion. Although expressed in brief terms, in the context of the reasons as a whole, this was satisfactory given that the right to appeal was confined to questions of law.

As I have explained, in stating that he placed weight on ‘the conflicting medical opinions as to diagnosis and “possible” cause’, the Magistrate must be taken to have identified that, in coming to his conclusion on causation, he gave weight to the medical evidence which supported a causal relationship between the respondent’s occupational exposure and his medical condition. However, in circumstances where this was only one of five factors[66] upon which the Magistrate placed weight in reaching in his conclusion, absent a right of appeal on a question of fact, it was unnecessary for the Magistrate to expressly articulate why he did not accept Professor Needham’s evidence on causation as the appellant contended. Nor was it necessary for the Magistrate to articulate in the reasons his consideration of the implications which flowed from his acceptance of Professor Needham’s evidence about the Spanish paper. As I have already explained, it is abundantly clear that the Magistrate was well aware of Professor Needham’s opinion on causation and the Spanish paper. He self-evidently did not accept her opinion on causation in light of the factors set out in [104]. As stated by McHugh JA in Soulemezis, ‘[w]hat is decisive is that his Honour’s judgment reveals the ground for, although not the detailed reasoning in support of’[67] his finding on causation.
[66]As I have noted, the reference to the reliability and credibility of Mr Briggs as a witness does not appear to add anything beyond the second factor, the nature, extent and duration of his exposure during the relevant period.
[67]Soulemezis v Dudley (Holdings) Pty Ltd (1987) (n 53) 282 (McHugh JA)

The appellant’s remaining complaints about the adequacy of [104] of the reasons concern the Magistrate’s treatment of the respondent’s viral infection. In particular, the reasons were said to be deficient because they did not explain how the respondent’s pre-employment lung function tests and the short period between his occupational exposure and the development of his condition – being matters upon which the Magistrate placed weight – operated to establish probable cause in circumstances where the respondent’s viral infection was later in time relative to when he became symptomatic with the autoimmune condition.

This submission must be rejected because, as I have earlier outlined, it was not the Magistrate’s task to determine whether the respondent’s occupational exposures were a cause of his condition to the exclusion of other possible causes such as his infection. The appellant’s complaint posits a false dichotomy between these two possible causes. The opening sentence of [104][68] and earlier parts of the reasons make clear not only that the Magistrate took into account the possibility that the infection may have been a cause of the respondent’s condition, but that there may have been multiple causes, as Professor Needham acknowledged in her evidence. It is readily apparent from the reasons that the Magistrate gave consideration to possible causes including infection and the occupational exposures and the possibility of there being more than one cause for the respondent’s condition. Because the Magistrate’s task was, relevantly, to determine if the respondent’s occupational exposures materially contributed to his condition, given the nature of an appeal under s 109 of the Act, it was unnecessary for him to further account for the infection in [104] of the reasons.
[68]‘The evidence in this case is not confined to the “cause”, because it is apparent that there may be more than one cause, occupational exposure and infection to name two’.

Disposition

The appellant has been unsuccessful in each of its grounds of appeal. The appeal is accordingly dismissed.

Within 14 days, the parties are to provide any proposed minute of consent orders in respect of costs or, in the absence of agreement, short submissions on costs.

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[2021] VSC 188

21 April 2021