Spotless Group Limited v Piggott - [2015] WADC 123

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SPOTLESS GROUP LIMITED -v- PIGGOTT [2015] WADC 123

CORAM: MCCANN DCJ

HEARD: 16 SEPTEMBER 2015

DELIVERED : 23 OCTOBER 2015

FILE NO/S: APP 45 of 2015

BETWEEN: SPOTLESS GROUP LIMITED
Appellant
AND
RODNEY KEITH PIGGOTT
Respondent

ON APPEAL FROM:
Jurisdiction              :  WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram  :ARBITRATOR HOLYOAK-ROBERTS
File No  :A 15194 of 2014

Catchwords:

Workers' compensation - Appeal from arbitrator's decision - Whether compensable 'injury' suffered - Incapacity - Whether injury compensable as for total incapacity - Turns on own facts

Legislation:

Workers' Compensation and Injury Management Act 1981 s 5, s 5(5), s 18, s 21, s 247(2)(a), Sch 1 cl 7, cl 8, cl 9

Result:

Leave to appeal granted
Appeal allowed
Arbitrator's determination quashed
Matter remitted to the arbitrator for further determination

Representation:

Counsel:

Appellant: Mr J J Dyson
Respondent: Mr M J Lourey

Solicitors:

Appellant: SRB Legal
Respondent: Chapmans

Case(s) referred to in judgment(s):

Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41
Beer v Duracraft Pty Ltd [2004] WASCA 192
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Catholic Education Office of WA v Granitto [2012] WASCA 266
Dettenmaier v Minister for Works [1979] WAR 203
John Eyre Pty Ltd v McAullay (Unreported, CM‑62/94 (Packington PM) 24 October 1994)
Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
McGinnis v Westralian Forest Industries Pty Ltd [2001] CM‑38-00
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
Nardi v Department of Education and Training [2006] C 22 – 2006
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Ross v Corruption and Crime Commission [2008] C15-2008
The Commonwealth v Ockenden (1958) 99 CLR 215
Velez Pty Ltd v Tudor [2011] WASCA 218
Wesfarmers CSBP Ltd v Tuttlebee (Unreported, CM‑24/98 (Heath PM) 12 August 1998)
Westralian Farmers Cooperative Ltd v Bunce (Unreported, WASCA, Library No 7691, 31 May 1989)

MCCANN DCJ:

Introduction and facts

This is an application for leave to appeal from a determination of the Workers' Compensation Arbitration Service delivered on 14 May 2015. The arbitrator ordered that the appellant pay the respondent weekly compensation payments and statutory expenses pursuant to the Workers' Compensation and Injury Management Act 1981 commencing on 17 December 2013 in respect of injuries to his neck and left shoulder suffered on 15 December 2013.
The amount in issue exceeds $5,000 and is all of the amount awarded in the decision appealed against. Leave to appeal may be granted pursuant to s 247(2)(a) of the Act if the proposed appeal involves a question of law.
The application was heard on the basis that the appeal will also be determined if leave is granted.
The non-contentious facts as explicitly or implicitly found by the arbitrator are as follows.
The respondent was born on 24 February 1955 and has been an electrician all of his working life.
From 27 June 2012 he was employed by the appellant as an electrical maintenance worker at Tom Price on a fly-in fly‑out basis. He worked 12 days on (6.30 am until 5.00 pm) and nine days off. His normal duties included installing TV outlets and power points, repairing lights, stoves and hot water systems, fault‑finding and carrying out RCD and smoke alarm tests. About half of his work was overhead.
On 15 December 2013 he returned to Tom Price from Perth. During the flight from Perth to Paraburdoo he slept leaning against a window to his right. He awoke just prior to landing and immediately felt severe pain in his 'neck region'. He removed his belongings from an overhead locker in the aircraft and later collected his luggage in the terminal.
He was transferred by bus from Paraburdoo airport to his accommodation in Tom Price, but continued to experience severe discomfort and pain in the neck region.
The following morning, 16 December 2013, he informed his supervisor that he was struggling with neck pain and felt that he could not complete his work duties for the day. He was told that he would require a medical certificate if he was unable to work. He proceeded with his normal duties. Whilst doing so he found that raising his arms above shoulder height (ie, working overhead) increased his pain. He completed his 10 hour shift with difficulty.
After work he returned to his accommodation, but found it difficult to sleep because of the pain and discomfort in his neck region.
He presented for work after a pre‑start meeting on 17 December 2013. He again informed his supervisor that he was experiencing pain and discomfort in his neck region and that he had not slept much for two days. He raised concerns that he was not able to perform his work duties.
At 9.30 am he was asked if he needed medical attention. He refused, said that 'it was just a stiff neck' and that he was going to attempt to sleep it off. He then managed to sleep for approximately 30 minutes but awoke with pain.
He sought medical treatment. According to the notes of the Tom Price Medical Centre on 17 December 2013, he exhibited 'stiffness of the paravertebral cervical muscles and tenderness on the left side of the neck' and was diagnosed with 'Rye neck' and prescribed medication.
On 13 January 2014 he underwent scans which disclosed bursitis, chronic subacromial impairment and a fraying tear of the insertional supraspinatus tendon in his left shoulder. He had cortisone injections which helped with the pain, but he suffered from ongoing weakness in the shoulder. He has suffered similar symptoms at all material times since then.
A first medical certificate was issued by his general practitioner Dr Burkett on 14 April 2014. It stated that the respondent was complaining of left shoulder pain since 16 December 2013. Dr Burkett documented a history of left shoulder pain 'after heavy workload on 16 December 2013'.
The respondent has been off work since 17 December 2013, although he has been assessed as fit for restricted duties for some time.

The arbitration

The respondent's worker's compensation claim was initiated on the basis that he relied on the shoulder injury and not the neck injury. In the Claim Form dated 28 March 2014 he stated that he suffered the shoulder injury whilst 'sitting in a plane/lifting a bag'. However, in his statement of evidence he associated the shoulder injury to the performance of his work duties on 16 December. He made no mention of moving a bag or bags, nor did he mention it to any of the experts.
In cross-examination he was asked why he had mentioned 'lifting a bag' in the Claim Form. He said (ts 32 ‑ 51) that he removed a bag containing his laptop from an overhead locker at the end of the flight. He 'did not see it as a cause at all' and saw it as 'just … adding to the stiff neck' (see also ts 51 ‑ 52).
He clarified that he had used the phrase 'neck region' to describe the area from below his left ear to the left shoulder and thus was claiming to be incapacitated for work by both neck and shoulder injuries suffered during the flight from Perth to Paraburdoo on 15 December.
Indeed his case was that his injuries were solely attributable to the flight on 15 December. He did not contend that he suffered any compensable injuries in the workplace itself, whether on 16 December or any other day.
Evidence was given by two orthopaedic surgeons, namely Dr Hardcastle and Dr Hurworth.
In Dr Hardcastle's opinion it is unlikely that the flight had anything to do with the aetiology of the shoulder injury. In his opinion the respondent's work activities on 16 December were the likely cause (and thus the injury was non‑compensable as the issues were framed in the arbitration).
In Dr Hurworth's opinion the respondent's shoulder had been degenerative for some time. He did not give an opinion as to whether the flight had anything to do with the onset of symptoms, and said that it could have become symptomatic at any time.
As to the neck, Dr Hardcastle said that 'the evidence does not support the neck as being aggravated by his work to any significant extent but more the development of natural degenerative stiffness and some mild mechanical pain subsequently'. Dr Hurworth did not address the neck issue at all.
In the light of the expert evidence and the limited scope of the respondent's case, one can understand why the appellant placed considerable emphasis in the arbitration (and now in the appeal) on the need for explicit findings to be made regarding the diagnoses and aetiology of the neck and shoulder injuries. The appellant submitted that there was no medical evidence to support a finding that the flight had anything at all to do with the physical onset of either injury and that the respondent's case therefore fell within the category of personal injuries that cannot be said to have occurred 'by accident'.
The appellant cited and relied upon the so‑called rule in Pollock v Wellington (1996) 15 WAR 1, 3 (Anderson J).
The appellant also disputed whether the respondent was entitled to compensation for the entirety of the period claimed as for total incapacity, and that he had failed to mitigate his loss by taking up alternative employment for which he was fit.

Legal principles

Pursuant to s 5 of the Act, 'injury' is defined as:
(a)a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions; or
(b)...; or
(c)a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree; or
(d)the recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree; or
(e)…
Section 5(5) sets out factors to be taken into consideration in determining whether the employment contributed, or contributed to a significant degree, to the contraction, recurrence, aggravation or acceleration of a disease namely:
(a)the duration of the employment; and
(b)the nature of, and particular tasks involved in, the employment; and
(c)the likelihood of the contraction, recurrence, aggravation or acceleration of the disease occurring despite the employment; and
(d)the existence of any hereditary factors in relation to the contraction, recurrence, aggravation, or acceleration of the disease; and
(e)matters affecting the worker's health generally; and
(f)activities of the worker not related to the employment.
Not all diseases or injuries which happen in the course of a worker's employment fall within the concept of 'personal injury by accident'. The relevant principles were set out by Toohey J in Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41 as follows (citations omitted):
(i)The question whether there has been a personal injury by accident is a question distinct from, and logically anterior to, the question whether what has happened arose in the course of the relevant employment. The questions have not always been kept distinct.
(ii)The expression personal injury by accident is a compound one. It is not necessary to show, first, that something to be described as an accident happened and secondly, that something else, namely an injury, was brought about or caused by that accident. The use of the term 'accident' points up the unexpected nature of the event constituting the injury.
(iii)It is no longer necessary to prove that some external event or some action of the worker caused a sudden physiological change to happen when it did …
(iv)Personal injury by accident may exist when there is no more than an actual internal physical injury such as the rupture of an aneurism or of an oesophagus, not attributable to any external injury but resulting from some force or pressure exerted within the body.
(v)Where the personal injury by accident relied upon is an internal physical injury, it is no answer to a claim for compensation that there was a pre-disposing physical condition. The employer must take the worker as he finds him.
(vi)The worker does not suffer personal injury by accident arising in the course of his employment where he suffers, at his place of employment, a sudden and distinct physiological change as the product of the inevitable development of a progressive disease from which he is suffering and where such change can in no way be attributable to or associated with some incident of his employment.
(vii)Where incapacity results not from an actual physical injury, external or internal, but from the development or culmination of a pre-existing and progressive morbid physical condition, the disease and the condition in which it culminated (for instance thrombosis or occlusion) is autogenous. In the absence of any particular incident or activity of the worker accelerating or contributing to the condition, there is no personal injury by accident.
(viii)Personal injury by accident arises in the course of employment so as long as it occurs while the worker is performing his duties or doing something incidental to the actual performance of those duties, or, put another way, where he is engaged in his employment. There need be no causal connection between the injury and the employment.
(ix)The traditional view that physiological change, sudden or otherwise, is not an injury by accident arising in the course of the employment unless it is associated with some incident of the employment cannot be pressed beyond the case of physiological change which is produced by the development of a progressive disease.
The sixth and seventh principles were explained by the High Court in The Commonwealth v Ockenden (1958) 99 CLR 215, 223 ‑224 (emphasis in the original):
[Non‑compensable] changes, even if they can be called accidents, occur not in the course of the employment but, it may be said, in the course of the disease.
Pursuant to s 18, an employer is liable to pay compensation to a worker in accordance with sch 1 if an injury to a worker occurs.
Pursuant to s 21, an employer is liable to pay compensation from the date of any incapacity for work which results from the injury (subject to cl 9, which is not applicable to weekly payments).
Clause 7 of sch 1 (read with other clauses) creates an entitlement to weekly payments for periods of total or partial incapacity for work. Sub‑clauses 7(1) and cl 7(2) provide (respectively) for weekly payments for total or partial incapacity for work. The onus of proof lies on the worker.
In the case of partial incapacity that onus requires the worker to prove the diminution (if any) in his earning incapacity as a result of the injury. This entails proving the differential between weekly payments as for total incapacity and the amount that he could have earnt 'in some suitable employment' during the relevant period (ie, his residual earning capacity). (Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 [6] – [7] and [10] ‑ [11], Templeman J and [83] ‑ [84] Roberts-Smith J with whom Sheppard AUJ agreed, and Westralian Farmers Cooperative Ltd v Bunce (Unreported, WASCA, Library No 7691, 31 May 1989, 4 (Brinsden J)).
The concept of 'incapacity for work' connotes a worker's inability to earn an income in the labour market in which he or she was working before suffering the injury, or in which he or she could reasonably be expected to work, that is, one which is reasonably accessible and vocationally suitable. (Ross v Corruption and Crime Commission [2008] C15-2008 [19] – [20]).
It has long been held that it is relevant to take into account the background of the worker, his or her physical characteristics, age, pre‑existing physical disabilities, employment background, skills, expertise, training and education (Ross at [20]). The concepts of 'training and education' includes vocational rehabilitation (if any).
There are three means by which a partially incapacitated worker (as the respondent was at times) may establish an entitlement to weekly payments which are equal to total weekly earnings. First, as an 'odd lot' in the sense explained in Dettenmaier v Minister for Works [1979] WAR 203. Second, pursuant to cl 7(2) if it is established that there was no suitable employment for the worker during the period of incapacity (described as an 'extreme situation' by Roberts-Smith J in Mitchell at [83]). Third, pursuant to a deemed total incapacity pursuant to cl 8. Only the second of these was open on the evidence in this matter.
The evidentiary onus that lies upon a worker under cl 7(2) requires the proof of a negative, that is to say, the lack of suitable work. How is this onus to be discharged? In a passage in McGinnis v Westralian Forest Industries Pty Ltd [2001] CM‑38-00 which has been widely cited (eg, in Ross at [24]), Compensation Magistrate Cochrane said as follows (at [20]):
… I do not accept that a worker would need to address every known occupation. What would be required is evidence from the worker on such matters as his employment qualifications and experience, educational qualifications and any other relevant background. A rehabilitation provider could then give evidence, given the worker's evidence and his physical capacity as found by the review officer, as to what, if any, suitable employment would be reasonably open to that worker. It would then be for the review officer, having had regard to that evidence and any evidence adduced by any other party, to make appropriate findings …

The arbitrator's decision

In respect of liability, the arbitrator (emphasis added):
(i)Noted that in cross-examination the respondent 'described … severe pain in the neck region from below the left ear to the left shoulder' [31] and accepted that evidence [83].
(ii)Therefore held that the respondent 'had one strain injury extending from the neck to the left shoulder' which resulted in two separate complaints; one of the neck and one of the shoulder [76].
(iii)Held that the respondent had suffered a personal injury by accident with respect to a 'strain' type injury to his neck [78]. In reliance upon Dr Hardcastle's opinion she found that there had been no 'specific injury to the cervical spine as a result of the plane trip, but more likely the [respondent's pre-existing] degenerative neck condition … became symptomatic'.
(iv)Held that the respondent also 'suffered an aggravation of [his] underlying [neck] problem' [79].
(v)Held that the respondent 'had pre-existing problems with his left shoulder by way of underlying age related issues' which were asymptomatic prior to the flight [83].
(vi)Held that the flight 'triggered a left shoulder strain' which, 'coupled with his overhead work' the following day, resulted in the development of left shoulder problems and ongoing symptoms which 'he continues to experience' [83].
(vii)Held that both injuries occurred in the course of the respondent's employment, because his travel from Perth to Paraburdoo was an incident of his employment. (There is no challenge to this finding.)
(viii)Held that the employment (ie, the flight) and the work on 16 December in the case of the left shoulder contributed to a significant degree to the aggravation of the pre-existing conditions [89] and [90].
(ix)Therefore held that the respondent sustained two personal injuries by accident in the course of his employment.
As to the issue of incapacity, the arbitrator held [96] that the respondent had been unfit at all material times to return to his pre‑injury duties as an electrician because his left shoulder injury required surgery and restricted him to light duties [92] and [93].

She then held that 'incapacity for work results from the neck and left shoulder injury' [94].
Having effectively held that the respondent was only partially incapacitated, the arbitrator nevertheless held that he had been unable to earn an income in any employment reasonably open to him and as such was entitled to weekly payments as for total incapacity.
In her reasons [28], [29] and [95] she cited the relevant principles and said ([96]; the intercalated numerals are mine):
The Applicant has satisfied me that [i] he is incapable of performing his duties as an electrician. Additionally the evidence available before me establishes that the Applicant seems to have [ii] only given evidence as to work experience doing electrical maintenance work. [iii] There is no evidence before me that establishes that the Applicant has been offered or engaged in a rehabilitation program or alternative light duties. Therefore on the evidence available before me I am satisfied that [iv] the Applicant is not able and does not have any necessary qualifications or experience to carry out other employment reasonably open to him. I am also satisfied [v] that the Respondent has no suitable work for the Applicant given his current condition as the Applicant has said so. I am therefore satisfied that he is incapacitated for work and entitled to workers' compensation payments from 17 December 2013.
In short, the arbitrator concluded that the respondent could only be reasonably expected to do electrical maintenance work or other electrical work since that was the only work he had ever done or was qualified to do.

The proposed amended grounds of appeal

As amended, the proposed grounds of appeal are as follows:
(1)The arbitrator failed to provide adequate reasons as to why the neck injury and the shoulder injury were a personal injury by accident or an aggravation of a pre‑existing underlying problem.
(2)The arbitrator made her finding of a personal injury by accident in the absence of any evidence of 'sudden, distinct, physiological change'.
(3)The arbitrator failed to have regard to the factors in s 5(5) of the Act in establishing whether the respondent's employment contributed to a significant degree.
(4)The arbitrator failed to take into account a relevant fact, and/or give sufficient weight to the fact, that the respondent did not produce any medical evidence as to whether the left shoulder tendon was frayed as a result of or during the plane flight or whether this was a pre‑existing disease.
(5)The arbitrator gave insufficient weight to the fact that the respondent did not and could not provide details of his work duties, including whether or not he undertook overhead duties on 15 and 16 December 2013.
(6)The arbitrator failed to provide adequate reasons as to why the principles in Pollock v Wellington did preclude reliance on the report of Dr Hardcastle when the respondent failed to lead evidence of working with raised arms; failed to provide Dr Hardcastle with details of the duties he was undertaking on 15 and 16 December 2013 and failed to disclose any previous problems with his neck. Alternatively, the arbitrator erred in relying on the opinion of Dr Hardcastle when the factual foundation of his opinion had not been established.
(7)The arbitrator erred in law in finding that the respondent's ongoing symptoms and incapacity (if any) were a result of her findings that the respondent had sustained a strain injury when there was no evidence that any such strain injury gave rise to continuing symptoms and incapacitated the respondent when the evidence was that the incapacitating condition was a tear in the left shoulder.
(8)The arbitrator erred in finding that the respondent was unable to earn in alternative employment when there was no evidence or insufficient evidence as to the respondent's alternative vocational capacity and further, the arbitrator erred when she took into account irrelevant factors, namely her findings that no rehabilitation and/or no alternative duties had been offered to the respondent.

Appellate principles – 'question of law' and adequacy of reasons

Pursuant to s 247(2)(a)(i) of the Act, leave to appeal is not to be granted unless, inter alia, 'a question of law is involved'. The role of this court in assessing that issue is not confined to the determination of pure questions of law, but extends to questions of mixed fact and law. If some question of law is involved then the whole of the decision appealed from is open to review. (BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250; Pacific Industrial Co v Jakovljevic [2008] WASCA 60; Catholic Education Office of WA v Granitto [2012] WASCA 266).

Adequacy of arbitrators' reasons – principles

Section 213(4) provides:
(4)The reasons for an arbitrator's decision -
(a)need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and
(b)need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
In Velez Pty Ltd v Tudor [2011] WASCA 218 the Court of Appeal held ([59] – [70]) as follows.
Before mentioning recent appellate authority on s 213(4), it is appropriate to refer briefly to the position under the common law. Under the common law, the duty of judges to give reasons for their decisions is well‑established and has recently been described by the High Court as an'aspect of the judicial function': Wainohu v New South Wales [2011] HCA 24; (2011) 278 ALR 1 [55] - [56] (French CJ & Kiefel J). See also AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 [89] (Heydon J).
The function of reasons is to give effect to any right of appeal, to enable an appeal court to determine whether or not an appellable error was made, and to allow the parties to understand why they were or were not successful: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [27]; SNF (Australia) Pty Ltd v Jones [2008] WASCA 121 [32].
In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443 - 444, Meagher JA said:
No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. … Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.
Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. … Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear … Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance
…
Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.
In AK v Western Australia [85], Heydon J observed (with respect to s 120 of the Criminal Procedure Act 2004 (WA), although as I would apprehend it, the common law obligation would not be any narrower in scope) that ordinarily, a trial judge will need to summarise the crucial arguments of the parties, formulate the issues, resolve issues of law and fact and in so doing explain how the judge dealt with the parties' contentions in the resolution of those matters, apply the law to the facts as found, and explain how the final result followed.
Whether the content of reasons is adequate will depend on the circumstances of the case, including the nature of the jurisdiction being exercised: Wainohu [56]. The court will look at the reasons as a whole and, if necessary in the context of the evidence, to determine whether they give a sense of what was intended in a way that achieves their required function and purpose: SNF v Jones [32].
As Meagher JA observed in Beale v Government Insurance Office of NSW, where there is conflicting evidence on a matter of significance, the judge should set out his or her findings as to why one set of evidence is preferred to another, however, it is unnecessary to make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear. In support of that proposition, Meagher JA cited the case of Selvanayagam v University of the West Indies [1983] 1 WLR 585. The following passage appears in the judgment of Lord Scarman (587 - 588):
It is understandable that the Court of Appeal may have felt disposed to criticise the judgment at first instance as unstructured and prolix. But it is abundantly clear that the judge had the evidence - all of it - very much in mind. It is, of course, not necessary for a trial judge to make explicit findings on every disputed piece of evidence. If it is clear that he has the evidence in mind, it suffices for him to state his final conclusion …
In Summit Homes v Lucev (1996) 16 WAR 566, Ipp J (Kennedy & Rowland JJ agreeing) said the following in relation to arbitrators (or 'review officers' as they were called under the Act at the relevant time) (569):
The judicial functions and powers of review officers, and the limitations imposed on appeals from their decisions, and the ouster of prerogative relief provided by s 84ZN, make it particularly important for them to give properly reasoned decisions, when required, in which full and detailed factual findings are set out. If this is not done, the parties' rights of appeal, limited as they are, may be subverted. In Lloyd v Faraone [1989] WAR 154 (at 163) Malcolm CJ (with whom Brinsden J agreed) emphasised the duty of the trial judge to reveal his or her reasons 'to such an extent as will enable an appellate court to consider and determine whether or not the judgment is erroneous.' The learned Chief Justice (at 164) observed that an error in law would arise from 'the failure to give relevant reasons in circumstances which result in a party being deprived of an effective right of appeal conferred by statute.' These observations apply a fortiori to review officers. (emphasis added)
The court in Summit Homes v Lucev held that arbitrators fulfil judicial functions and are bound to act judicially, which includes a duty to provide reasons which are adequate according to the established common law principles. It is important to note, however, that at the time of the decision in Summit Homes v Lucev, the Act, as it was at that point in time, did not contain an equivalent section to the current s 213(4).
In Heatley v Jovista Pty Ltd [2006] WACC C12-2006, Commissioner Nisbet commented on the effect of the Summit Homes v Lucev decision on arbitrators' reasons. He said [9]:
Ipp J's criticism of ... the inadequacy of review officers' decisions, led to an increase in the length of arbitrators' decisions, some going over 100 pages as review officers sought to demonstrate by regurgitating the evidence before them, that they had firstly considered the evidence, secondly given it appropriate weight, and thirdly had exposed every single step in their reasoning process.
In relation to s 213(4) of the Act, in Sotico Pty Ltd v Wilson [2007] WASCA 112 Wheeler JA (Steytler P agreeing) observed [23] - [24]: It is important, in my view, to have regard to s 213 against the factual context in which it was enacted. Arbitrators are frequently called upon to give reasons in cases where there will be a very significant number of medical reports, many of which will conflict with each other in terms of the history taken, the diagnosis reached and the prognosis which is given. Injured workers may suffer from a number of different conditions at the same time, and different medical practitioners may assess each different condition in different percentage terms, giving rise to a very large number of potential outcomes. It is against that background that the Arbitrator is required only to identify the facts accepted and to give the reasons for doing so.
By implication, it seems to me, the legislature was intending that the Arbitrator should not be required to engage in an exhaustive process of specifying which opinions were rejected, and the reasons for their rejection. Of course, where some of the opinions rejected attack the reasoning process of the opinion which is accepted, or are based, for example, on a clinical examination which has a result very different from that outlined in the reports to be accepted, it will no doubt be necessary for the Arbitrator, in explaining why he accepts the facts which he does, to explain his preference for that reasoning or for accepting that history as correct, and thereby, indirectly, to engage with the reasoning or fact finding process of those opinions which are to be rejected.
More recently, this court in Manonai v Burns [2011] WASCA 165 considered s 31 Magistrates Court Act 2004 (WA) which is identical in terms to s 213(4). Hall J (with whom Pullin & Murphy JJA agreed) said [56]:
The realities of pressure of work and limited time in the magistrate's court must be acknowledged. Section 31 of the Magistrates Court Act obviates any need for a magistrate to canvass all of the evidence given in the case or to canvass all the factual and legal arguments or issues arising in the case. These dispensations appear to recognise the summary nature of proceedings in the Magistrates Court. Reasons can be adequate and comply with s 31 of the Magistrates Court Act without having to be unduly long. It is the substantive content of the reasons rather than their length which is important.
In identifying the facts accepted and the reasons for doing so (s 213(4)(a)) and the law applied and the reasons for doing so (s 213(4)(b)), the arbitrator will in my view still be obliged to expose the reasoning process linking them, and justifying the ultimate result (cf AK v Western Australia [44]).
In Nardi v Department of Education and Training [2006] C 22 ‑ 2006 [31] I emphasized that reasons should not be compressed to the point of obscurity. In my opinion it is not enough to use generic expressions like 'strain' or 'stress' unless it is clear from the reasons as a whole what they mean.

Grounds of appeal 1 – 7: Submissions in relation liability

In the light of the appellant's submissions it is convenient to deal with grounds 1 – 7 together.
Mr Dyson primarily focused on the contention that the arbitrator had failed to make a proper finding as to the diagnoses of the respondent's injuries or, if she did, they were not supported by the evidence, or the reasoning for the same was not apparent.
He submitted that the arbitrator's use of the word 'strain' to describe both the neck and shoulder injuries was too generic to be a judicial finding in this particular case. It was, he submitted, necessary to make a finding as to the actual diagnosis because, without that, it was not possible to properly consider the aetiology and, thus, whether it involved the inevitable and co‑incidental emergence of a pre‑existing condition and thus did not fall within the definition of 'injury'.
Mr Dyson submitted that it was not open to the arbitrator to draw an inference of her own about the aetiology of the neck and shoulder symptoms in the absence of explicit expert evidence and, as such, her conclusion that the flight was involved in their onset was conclusionary, unsupported and entirely unexplained (in other words, a bare ipse dixit).
He did not go so far as to contend that an arbitrator could never use generic terminology or draw an inference on a medical matter in the absence of expert evidence precisely on point, but he did draw attention to two authorities in support of his argument, namely John Eyre Pty Ltd v McAullay (Unreported, CM‑62/94 (Packington PM) 24 October 1994) and Wesfarmers CSBP Ltd v Tuttlebee (Unreported, CM‑24/98 (Heath PM) 12 August 1998).
In McAullay the worker suffered the onset of 'searing' and 'excruciating' pain in her left buttock and down the outside of her left leg when she rose from a chair in her place of employment. The symptoms settled, but she later suffered periodic and steadily increasing discomfort until, after three months, she was found to have suffered a disc protrusion. At first instance it was found that she had suffered a 'personal injury by accident'. However, on appeal that finding was overturned on the ground that there was no evidence before the review officer to the effect that the worker's disc protrusion could have occurred as she rose from her chair, as opposed to being the product of the inevitable development of a progressive disease which would have occurred at that point in time and in any event, regardless of what she was doing.
In Tuttlebee the worker sustained two separate injuries on the same day. The first was a soft tissue injury to his left wrist from which he soon recovered. The second was an aggravation of previously asymptomatic degenerative arthritis of the left wrist. It was found at first instance that both of these injuries were a 'personal injury by accident'. An appeal in respect of the second injury was successful. The Compensation Magistrate accepted a submission that symptoms arising out of a pre‑existing degenerative condition were not, of themselves, an injury and nor was the fact that an asymptomatic condition became symptomatic. The magistrate accepted (page 10) that there 'must be some detail of the change in function by reference to physical and chemical factors and structural and functional changes', in other words 'trauma‑induced physiological change' in terms of the worker's arthritic condition.
Mr Dyson submitted that the respondent's case is indistinguishable from McAullay and Tuttlebee in that there was no evidence to support a finding that there had been any physical change in the plaintiff's neck or left shoulder on 15 December - the bare onset of symptoms was not sufficient. Indeed, he argued, the combined force of the evidence of Drs Hardcastle and Hurworth was to the effect that nothing physiological happened during the flight.
Mr Dyson submitted the same problems befell the arbitrator's finding that the flight had aggravated a pre‑existing disease, that is to say, without a proper diagnosis and/or explanation of the aetiology no finding could be made or, if it was, adequate reasons were not given.
Mr Lourey did not distance himself from some of Mr Dyson's criticism of the adequacy of the arbitrator's reasons but, in effect, contended that any deficiencies were matters of form and not substantive in nature.
Further, he did not shy away from the fact that Drs Hardcastle and Hurworth had not in explicit terms attributed the injuries to the flight.
As I understand it, he contended that there was a supportable rationale for the arbitrator's findings and that the substantive reasons were sufficiently exposed having regard to her reasons as a whole. I would summarise the submission (at its highest) as follows:
(i)There were diagnoses of neck and shoulder injuries which predicated that physiological changes had occurred.
(ii)The worker testified that the symptoms in his neck and left shoulder commenced during or immediately after the flight. There were credibility issues with that evidence, but it was accepted by the arbitrator and cannot be challenged on appeal.
(iii)It was open to the arbitrator to find that the physiological changes occurred on the 15^th and not the 16^th December (as Dr Hardcastle believed, at least in respect of the shoulder injury), that is to say, to extrapolate Dr Hardcastle's diagnosis to 15 December because Dr Hardcastle was not aware that the respondent had lifted something above his head in the aircraft.

Analysis in relation grounds 1 – 7 (Liability)

The arbitrator's use of the word 'strain' to describe the respondent's injuries was unfortunate and the correct diagnosis should have been given. That in turn would have promoted a closer examination of the aetiology.
I propose to address the shoulder problem first.
In the context of the case and the arbitrator's reasons as a whole, I am satisfied that she used the word 'strain' to describe the bursitis, sub‑acromial impingement and torn insertional supraspinatus tendon.
So far as the aetiology is concerned, although it is debateable, I think that it is implicit from her reasons that she proceeded as set out at [62] above.
Given the respondent's pre‑existing conditions, in my opinion it was not open to the arbitrator to find for him just because of the onset of symptoms.
This brings me to the expert evidence.
An expert is permitted to give evidence of an opinion (which would otherwise be hearsay) with respect to a technical or esoteric factual issue which requires expert elucidation if he or she is qualified by training or experience to do so. Opinion evidence is admissible for the purpose of assisting the arbitrator to make findings of fact.
Opinion evidence (and findings derived from the same) must be based upon facts or assumptions that are proven (or bear sufficient correlation to facts which are proven) and must be explained in such a way that the fact-finder can comprehend it and make the necessary findings, or at least understand why it should be adopted or deferred to. (Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370; Pollock v Wellington (Anderson J); Beer v Duracraft Pty Ltd [2004] WASCA 192 [78] – [80] (McLure J); and Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, [64] (Heydon JA)).
As with lay witnesses, the fact-finder is entitled to accept all of a particular expert's evidence, or none of it, or accept some and reject the rest, or simply put it to one side. In this way findings can be drawn from evidence and opinions of more than one expert, irrespective of who adduced the evidence.
The assistance to be derived from expert evidence, ie, its weight, may also depend to some extent on the degree of specialisation involved in the relevant expert field, because some fields are more esoteric than others.
The point to be stressed is that the arbitrator in this case was not bound to accept all of Dr Hardcastle's evidence; nor did there need to be a complete correlation between the facts as found and the facts as he assumed them to be.
Mr Dyson argued that the arbitrator had gone further and sought to fill a lacuna in the expert evidence in a way which was not open to her.
I accept that submission. Based on the evidence, it was not open to the arbitrator to reason that Dr Hardcastle's opinion about the relevance of the respondent's activities on 16 December (ie, repeatedly manipulating things above his head) held good for the 15th. The respondent's evidence about this (which did not emerge until he was being cross-examined about his claim form) described an innocuous event to which he attributed very little (or no) significance at the time. In my view a supportive opinion from Dr Hardcastle would be essential to the making of a finding about its aetiological involvement.
I am satisfied that the proposed appeal in respect of the shoulder injury issue involves a question of law (save and except insofar as the applicant complained of the weight or lack of it attached to certain evidence) and that error has been made out.
I am of the same opinion in respect of the respondent's neck problem. The finding at [40](iii) above speaks for itself – the arbitrator found that there was no specific injury on the flight. It follows that the symptoms arose in the course of the disease.
In my opinion there was no (or insufficient) evidence to support a finding that the neck problem was anything other than ephemeral and the arbitrator did not explain why the flight had something to do with initiating or prolonging it. It may be that she regarded the respondent's sleeping posture as relevant because of its temporal connection to when the respondent noticed the symptoms. But Dr Hardcastle considered that hypothesis and did not support it.
In my opinion a Pollock v Wellington issue did not arise in the strict sense. All of the expert evidence was supported by valid assumptions of fact and was explained.
In my opinion the problem was that the arbitrator did not engage with the appellant's substantive case, either directly or indirectly. It was not open to her (albeit sitting on a specialist tribunal) to make findings which needed expert support that was lacking. In particular, expert evidence was required to justify a finding that the symptoms on 15 December predicated a physiological change as part of the aetiology. In other words, it was not open to the arbitrator to extrapolate from expert evidence which relied on the events of 16 December.
I turn now to deal with ground 8 which relates to the issue of the respondent's incapacity.

Ground of appeal 8 – Quantum

The arbitrator found ([94]) that the respondent's incapacity for work resulted from both the neck and left shoulder injury without distinguishing between them.
However, in addressing his capacity for work she concentrated on the restrictions presented by the shoulder injury, citing the evidence of Drs Hurworth and Hardcastle ([92] and [93]).
As I have said, the arbitrator proceeded on the basis that the respondent was partially incapacitated and entitled to weekly payments pursuant to cl 7(2) and then awarded full weekly payments. The issue in the arbitration and in the appeal is whether the respondent was entitled to weekly payments as for total incapacity.
The arbitrator's determination turned on the finding that the respondent had no suitable work reasonably available to him and took into account [96] the matters which I have enumerated as [i] – [v].
I am satisfied that these matters (especially [i], [ii] and [iv]) were relevant and sufficient in law to support her conclusion. In effect the arbitrator had regard to the respondent's age, qualifications, work experience and physical characteristics. Others might differ as to the ultimate conclusion which she drew from those matters, but the analysis and conclusion were entirely factual in nature and not susceptible to appellate review. I refer to [39] above and reiterate that it is not always necessary for a worker to conceive of and address a range of hypothetical occupations that might be suitable and available and then prove that they are not. Each case turns on its own facts and circumstances and, in my opinion, the arbitrator's findings were open and were adequately explained.
The appellant complains that the arbitrator took an irrelevant consideration into account, namely [iii]. I do not accept that contention. I infer that she was dealing with the appellant's contention that the respondent had failed to mitigate his loss (for which the relevant principles were set out by the arbitrator in her reasons at [30]). Point [iii] was also relevant to the respondent's personal circumstances and his lack of training or qualifications for alternative duties.
Leave to appeal should be refused in respect of ground 8.

Disposition of the Appeal

I am satisfied that leave to appeal should be granted, the appeal should be allowed and the arbitrator's decision quashed.
However, it does not follow that the respondent's claim should fail. It may still be open to him to succeed on the ground that he suffered a compensable shoulder injury on 16 December.
In my view the matter should be remitted to the arbitrator. The parties can then make further submissions.
It is ordered that:
(i)Leave to appeal is granted.
(ii)The appeal is allowed.
(iii)The arbitrator's determination is quashed.
(iv)The matter is remitted to the arbitrator for further determination.