State of New South Wales (Department of Primary Industries) v Legrand - [2024] NSWPICPD 74

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	State of New South Wales (Department of Primary Industries) v Legrand [2024] NSWPICPD 74
APPELLANT:	State of New South Wales (Department of Primary Industries)
RESPONDENT:	Alain Luc Legrand
INSURER:	Allianz - As Agent for the NSW Self Insurance Corporation
FILE NUMBER:	A1-W5445/23
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	20 November 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 7 December 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – contents of medical notes to be approached with care – Mason v Demasi [2009] NSWCA 227 applied – causation – excess alcohol consumption as a pain alleviating method in respect of accepted injuries found to cause consequential liver condition – Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr D Adhikary, counsel
SMK Lawyers
Respondent:
Mr M Hammond, counsel
Stacks Law Firm
DECISION UNDER APPEAL:	Legrand v State of New South Wales (Department of Primary Industries), 7 December 2023, W5445/23
MEMBER:	Mr M Wright
DATE OF MEMBER’S DECISION:	7 December 2023

INTRODUCTION

The respondent worker was employed by the appellant as a Fisheries Officer from 1998 until 2005.
During the course of his employment, on 5 January 2000, the respondent suffered an injury to his cervical spine and was compensated by way of weekly benefits and a lump sum pursuant to ss 66 and 67 of the Workers Compensation Act1987 (the 1987 Act).
On 7 February 2005 the respondent suffered a second work-related injury to his cervical spine, for which he received lump sum compensation pursuant to ss 66 and 67 of the 1987 Act.
On 26 July 2023 the respondent lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (the Commission) claiming weekly benefits and additional permanent impairment lump sum compensation for consequential conditions to his liver/digestive system and his bilateral shoulders, resulting from the injuries to his cervical spine on 5 January 2000 and 7 February 2005.
The matter was listed for conciliation conference/arbitration hearing before Member Wright on 27 October 2023 following which the Member caused the parties to lodge written submissions.
On 4 December 2023, Member Wright delivered an ex-tempore decision finding in favour of the respondent that he had sustained consequential conditions to his bilateral shoulders and liver. The appellant now appeals the decision that the respondent had suffered a consequential condition to his liver.
Given the large number of documents including a 94-page transcript of Member Wright’s ex-tempore decision, I will only refer to the aspects of the decision that arise on appeal.
The transcript references in this decision are to the official Commission transcript and not the transcript produced by the appellant. By proceeding in this manner, I mean no disrespect to the appellant’s solicitor.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

THE MEMBER’S REASONS

The respondent’s written submissions to the Member contained a detailed chronology relating to, inter alia, his medical, educational and occupational background, details of the subject injuries and prior proceedings, and an overview of the related medical evidence.
The respondent submitted that he drank heavily following the two cervical spine injuries as a maladaptive coping strategy and pain alleviating method to deal with the significant neck pain and as a result, suffered a consequential liver condition for which the appellant was liable. The respondent referred to Kooragang Cement Pty Ltd v Bates[1] and noted a commonsense approach to causation is required and if it is found that such consequential condition or loss was materially contributed to by the sequelae of the accepted injuries, then the respondent will be successful.[2]
[1] (1994) 35 NSWLR 452.
[2] Respondent’s written submission before the Member dated 3 November 2023, p 3.
The respondent submitted that the lay evidence is factually accurate and consistent with the contemporaneous medical evidence. The evidence provided by the respondent worker in relation to the liver biopsy conducted in 1997 was cogent and established that the condition was rectified with dietary adjustments and was subsequently unproblematic prior to 2005, when the respondent increased his alcohol consumption.[3]
[3] Respondent’s submissions dated 3 November 2023, p 5.
The respondent rejected Dr Frommer’s opinion with respect to his pre-injury drinking and noted the doctor’s significant departure from the opinion expressed in his earlier reports without explanation.[4]
[4] Respondent’s submissions dated 3 November 2023, p 4.
The respondent acknowledged there was little to no mention in the treating medical material of the increased use of alcohol being a coping mechanism to deal with pain, however submitted that the alcohol use would not have been the focus of those treating practitioners.[5]
[5] Respondent’s submissions dated 3 November 2023, p 6.
The appellant’s case was that it was not liable for the consequential liver condition as the respondent had been drinking excessively for a number of years prior to the 2000 and 2005 injuries which was demonstrated in the evidence, in particular while serving in the French Army and also, subsequently, working as a bar tender. The appellant submitted that even if there was an increase in alcohol consumption following the 2005 injury, there is no evidence that it caused or made a material contribution to the development of liver issues.[6]
[6] Appellant’s written submissions before the Member dated 16 November 2023, p 6.
The appellant submitted that a causal relationship had not been established and cannot be inferred based on common knowledge or judicial knowledge, nor is it something within the realm of common knowledge or experience as noted by Keating P in Munce v Thomson Cool Rooms Pty Ltd.[7] The appellant submitted that what was required was cogent expert evidence, of which there is none. The appellant also submitted that the lay evidence relied upon by the respondent is unreliable and contradicted by treating evidence and accordingly, should not be accepted.[8] The appellant referred to specific evidence of treating medical specialists, highlighting the lack of remarks about an increase in alcohol consumption and the material contribution to the development of liver issues.[9]
[7] [2017] NSWWCCPD 39 (Munce).
[8] Appellant’s submissions dated 16 November 2023, pp 1–2.
[9] Appellant’s submissions dated 16 November 2023, pp 6–12.
Finally, the appellant submitted that the medico-legal opinion of Dr Frommer (qualified by the appellant) should be accepted over that of Dr Sethi (qualified by the respondent), both qualified gastroenterologist and hepatologists, as Dr Sethi’s report was factually flawed as it was based on an inaccurate history relating to the respondent’s alcohol intake prior to the neck injuries. The appellant submitted Dr Frommer provided a well-reasoned report consistent with the treating medical evidence.[10]
[10] Appellant’s submissions dated 16 November 2023, pp 12–19.
Following receipt of the written submissions, the Member delivered an ex-tempore decision on 4 December 2023 where he spent a considerable amount of time analysing the lay evidence, the extensive treating medical evidence and expert medical evidence.
The respondent worker’s evidence was contained in his statements dated 29 May 2006,[11] 21 December 2010,[12] 21 September 2011,[13] 18 January 2023[14] and 19 September 2023.[15] The Member noted the respondent’s physical difficulties since the injuries in 2000 and 2005, which included the requirement to undergo several cervical spine operations including an interior cervical fusion of the C6/7 vertebrae in August 2001[16] and disc replacement surgery at C5/6 in 2005.[17]
[11] Application to Resolve a Dispute (ARD), p 6.
[12] ARD, p 14.
[13] ARD, p 21.
[14] ARD, p 24.
[15] Application to Admit Late Documents (AALD) dated 10 October 2023, p 40.
[16] Transcript of oral decision, 4 December 2023 (T), T 4.20–5.9.
[17] T 5.30–6.2.
The Member noted that following the 2000 injury, the respondent was able to return to full time duties with the appellant[18] however once he sustained the second cervical spine injury in 2005, he was not able to return to his normal duties and his employment with the appellant was ultimately terminated.[19]
[18] T 5.17–22.
[19] T 6.4–9.
Following the 2005 surgery, the respondent felt a great deal of discomfort including pins and needles in both his hands and fingers, muscle spasms, and a cramping sensation in his left forearm.[20]
[20] T 6.18–27.
The respondent’s statement dated 21 December 2010 was made in support of his claim for further lump sum compensation in respect of the injuries sustained in 2000 and 2005 due to deterioration.[21] The respondent stated his mental health had deteriorated since the termination of his employment with the appellant.[22] The respondent experienced feelings of depression and angry outbursts and was prescribed antidepressants.[23]
[21] ARD, p 15.
[22] T 7.3–8.
[23] T 7.10–23.
The respondent stated that his alcohol consumption increased following the injury in 2005 due to a loss of direction and purpose, which the Member accepted as being consist with other evidence.[24]
[24] T 7.33–8.5.
Although the respondent’s mental health improved in March 2007 after gaining employment with Tweed Shire Council, the Member noted that the respondent was still taking antidepressants to cope with feelings of depression following termination from his employment with the appellant.[25]
[25] T 8.21–9.5.
The physical attributes of the neck injury had also deteriorated leading to the respondent being unable to participate in judo, which was his lifelong hobby, or in diving.
The Member referred to the respondent’s statement dated 18 January 2023 and noted that the respondent had blood tests and a biopsy in 1997 that showed he was developing fatty liver. Approximately two or three months later, after improving his diet, the respondent had another blood test which showed his liver had improved.[26]
[26] T 9.26–10.10.
The respondent complained of severe pain in his neck, and loss of strength and mobility in both arms. He suffered cramps and paraesthesia and continued to feel extremely depressed. The respondent states that he struggled to sleep due to pain and began to drink more alcohol, more frequently to cope with the pain. The Member noted: “He said that he began a vicious cycle of drinking for pain relief, experiencing withdrawal symptoms and then drinking to avoid those withdrawal symptoms”.[27]
[27] T 10.20–11.1.
The Member noted that the respondent had multiple admissions to hospital from 2018. He began sobriety in 2019 and apart from one relapse in August 2020, he has remained sober.[28]
[28] T 11.22–27.
The respondent acquired severe chronic liver disease necessitating chest drainage and prolonged medical preparation prior to and after a liver transplant in August 2020 and later developed an enlarging right upper abdominal incisional hernia.[29]
[29] T 11.29–34.
In his statement dated 19 September 2023, the respondent denied regular binge drinking when he was off duty in the French Army for two years and stated that the drinking only occurred randomly for short periods of time and on the seldom occasions when it did occur, they were infrequent due to the nature of their duties in the Army. The respondent stated that for the two years he was in the Army, he lived at the barracks where alcohol was prohibited and access to it was strictly regulated.[30]
[30] T 12.11–34.
In response to Dr Frommer’s report where the doctor recorded that after leaving the Army the respondent become a bartender and waiter where he drank heavily, in excess of 120 grams of ethanol per day, the respondent acknowledged that he did have social drinks after work however it was not a regular occurrence.[31]
[31] T 13.3–17.
The respondent stated his alcohol consumption increased following the injury in 2005, where he drank between two to three bottles of wine and a carton of beer daily. This amounted to a daily intake in excess of 500 grams of ethanol per day.[32] The respondent stated it was a means of self-medicating after the operation to his neck and after losing his job with the appellant. The respondent denied being told by his GP that he would die if he continued drinking, as recorded by Dr Frommer.[33]
[32] T 13.20–31.
[33] T 14.16–22.
The Member noted the evidence provided by the respondent’s wife, Yukari Legrand, who provided a statement dated 15 September 2023.[34] Mrs Legrand stated that she had been married to the respondent for 35 years and he was not a heavy drinker during the early years of their marriage. She acknowledged that the respondent did drink prior to the 2005 injury, however stated it was in moderation. She noticed the respondent’s drinking escalated after the 2005 injury where he would purchase alcohol from the bottle shop almost daily. She gave evidence in relation to the respondent having a liver biopsy in 1997 and stated that prior to the biopsy the respondent ate a lot of fatty food, however following the biopsy he changed his diet by eating less fatty food, and more fruit and vegetables. He did not have any ongoing liver problems after that event.[35]
[34] AALD dated 10 October 2023, p 38.
[35] T 16.14–18.31.
The Member examined the treating medical evidence and found that it was largely consistent with the history recounted by the respondent and his wife. The Member applied Mason v Demasi[36] and noted that the histories recorded in treating evidence need to be applied with caution given the histories were recorded for treatment purposes rather than forensic examination of the respondent’s alcohol history with a view to attribute causation to alcohol intake.[37]
[36] [2009] NSWCA 227 (Mason).
[37] T 24.17–28.
The appellant submitted that the history recorded by Dr Gerald Feeney in his report dated 22 August 2018,[38] who is an expert in addiction medicine, failed to indicate the liver condition was causally related to the cervical spine injuries and that as the doctor was treating the respondent for liver issues and had analysed his alcohol dependency, there would be no reason for the doctor not to mention these matters had they been factual. The appellant also noted Dr Feeney recorded a history that was inconsistent with the respondent’s statements specifically in relation to regular binge drinking when at the Army, heavy drinking while working in the hospitality industry and that the respondent had recognised alcohol had been an issue for over a decade.[39]
[38] ARD, pp 945–946.
[39] Appellant’s submissions dated 16 November 2023, pp 10–11.
The Member was of the view that the history recorded by Dr Feeney was in parts ambiguous, contained broad blanket statements and was insufficient to impugn the respondent’s reliability. The Member considered that Dr Feeney’s record that the respondent recognised alcohol being an issue for more than a decade was consistent with the respondent’s evidence that the alcohol intake increased following 2005.
The appellant referred to the clinical entries from Princess Alexandra Hospital, Queensland Liver Transplant Service dated 29 October 2018[40] and again submitted that the clinical notes were inconsistent with the lay evidence.[41] After again highlighting the requirement for caution to be adopted when considering treating medical records, the Member found that the record stating the respondent first started drinking alcohol as a teenager in a social family environment was not inconsistent with the respondent’s evidence. The Member also considered the notes contained ambiguity around alcohol intake while serving in the Army. The Member referred to the record that “subsequent to the leaving the Army during his thirties … he reports drinking most days, mainly beer six times a day and the occasional wine”. The Member found that, although being ambiguous, it was not inconsistent with the respondent’s evidence, who was 33 years of age at the time of the injury in 2000 and 37 years of age at the time of the second injury in 2005.[42]
[40] ARD, p 1,033.
[41] Appellant’s submissions dated 16 November 2023, pp 7–8.
[42] T. 29.33–31.33.
The Member acknowledged the submissions made by the appellant in relation to Dr Stewart’s report dated 12 July 2018,[43] however noted the history was similar to the history recorded in the clinical entry of Princess Alexandra Hospital, Queensland Liver Transplant Service dated 29 October 2018 and applied the same reasoning process of the analysis of that document and made the same findings in that regard.[44]
[43] ARD, p 1,027.
[44] T 32.14–34.8.
The Member then turned to the treating medical report of gastroenterologist, Dr Volovets dated 9 September 2019[45] and found that the history recorded by Dr Volovets in relation to alcohol intake was similar to that recorded by Dr Feeney in his report dated 22 August 2018, so the same reasoning process was applied as noted in [38] above, being that there was ambiguity within some factual components of the report however the timeframe where the alcohol intake was at its peak was consistent with the period after 2005.[46]
[45] ARD, p 915.
[46] T 34.19–36.21.
The history recorded by treating psychiatrist Dr Eftekar noted the respondent “[d]rank alcohol heavily from the age of 16 until February this year.” The Member again cautioned about the treatment of histories recorded in medical records however, found that the statement was broad and inconsistent with histories recorded by other doctors such as Dr Feeney. He did not accept that the history recorded by Dr Eftekar as accurate.[47]
[47] T 51.4–33.
The Member noted that Dr Chowdary provided an extensive review of the considerable material, which included the respondent’s alcohol use prior to 2005, alcohol use post 2005 and other injuries and conditions sustained by the respondent. Dr Chowdary was of the opinion that the pain of the cervical spine injuries had been a contributing factor towards the respondent using alcohol. The appellant submitted that Dr Chowdary’s opinion should not be accepted as the doctor failed to analyse the effects of the respondent’s multiple surgeries, unrelated to the work injuries.[48] After applying the principles in Paric v John Holland (Constructions) Pty Ltd[49] the Member found that Dr Chowdary, on balance, had considered other potential causative factors and there was a fair climate for Dr Chowdary to provide his opinion.[50]
[48] Appellant’s submissions dated 16 November 2023, pp 12–13.
[49] [1984] 2 NSWLR 505 (Paric).
[50] T 57.12–63.10.
Gastroenterologist, Dr Sethi, provided numerous reports to the respondent’s solicitors.[51] Dr Sethi was of the opinion that the requirement for a liver transplant resulted from the work injury as the respondent used alcohol to cope with his neck pain. The liver biopsy undertaken by the respondent in 1997 did not alter the doctor’s opinion and he noted that fatty liver disease can be reversed upon appropriate lifestyle modifications, which the respondent did. Dr Sethi disagreed with Dr Frommer’s opinion that there was an extremely high chance the damage to the liver had reached the stage of cirrhosis and was of the view that there was no biochemical or radiological evidence in 2005 indicating cirrhosis and the respondent did not have any symptoms such as jaundice, incesiolopothy (sic), ascites or peripheral oedema. The appellant argued that Dr Sethi’s opinion should not be accepted as it was not predicated upon a correct history and failed to consider other matters including potentially causally relevant matters such as other non-related work injuries. The Member ultimately found that the history recorded by Dr Sethi was consistent with the lay evidence and accepted Dr Sethi’s opinion.[52]
[51] ARD, pp 3,377–3,399.
[52] T 63.13–73.13.

After considering the lay evidence, treating medical evidence and medico-legal evidence, the Member was satisfied the respondent was a reliable witness, he found the histories recorded by treating medical providers were largely consistent with the lay evidence, and was satisfied that the respondent had suffered a consequential condition to his liver.
The Certificate of Determination issued on 7 December 2023 records:
“1.     The [respondent] suffered a liver/digestive system condition as a result of injury to his neck and cervical spine on 5 January 2000 and 7 February 2005.
2.     The [respondent] suffered bilateral shoulder conditions as a result of injury to his neck and cervical spine on 5 January 2000 and 7 February 2005.
3. Matter remitted to the President for referral to a Medical Assessor (MA) pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
a.Date of injury: 5 January 2000 – personal injury
i. Body system / parts:
1. neck
ii. Method of assessment: table of disabilities
b.      Date of injury: 7 February 2005 – personal injury
i. Body system / parts
1. cervical spine
2. Right upper extremity (consequential condition)
3. Left upper extremity (consequential condition)
4. Digestive system (consequential condition)
ii. Method of assessment: whole person impairment
4.      The documents to be reviewed by the MA are:
a. Application and attached documents, and
b. Reply and attached documents,
c. Applications to admit late documents dated 10 October 2023 and 23 October 2023 and attached documents.
5.     Matter to be relisted for further preliminary conference after completion of the medical assessment process, in respect of the claim for weekly compensation.”

GROUNDS OF APPEAL

Notwithstanding the number of issues that were before the Member, the only issue being contested on appeal relates to the digestive system consequential condition which relates to the respondent’s liver transplant.
The appellant relies on the following four grounds of appeal:
Ground One – The Member committed errors of fact in his treatment of the history recorded in the evidence of Dr Feeney; Dr Stuart; the Queensland Liver Transplant Service; Dr Volovets, and Dr Eftekar.[53]
Ground Two – The Member committed errors of law in his application of Mason.
Ground Three – The Member committed errors of fact in accepting the evidence of the respondent and Mrs Yuki Legrand as being reliable.
Ground Four – The Member committed errors of fact in his acceptance of the evidence of Dr Sethi and Dr Chowdary.
[53] In relation to each of these medical providers, a separate submission with respect to the asserted error applying to that provider is developed by the appellant which I will set out in the Consideration section of this decision.

LEGISLATION

Section 352(5) of the 1998 Act provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”

SOME PRINCIPLES RELEVANT TO THE ISSUES RAISED IN THIS APPEAL

Error

The appellant in its submissions in chief[54] draws attention to the principles to be applied in an appeal under s 352(5) of the 1998 Act, starting with an extract from Raulston v Toll Pty Ltd.[55] Whilst I accept the correctness of what the appellant has submitted on these principles, I would also, for completeness, add the following additional passages from Raulston:
[54] Appellant’s submissions dated 20 December 2023, [18]–[20].
[55] [2011] NSWWCCPD 25 (Raulston).
“19. First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant …
(a) [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c) It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong.’
20.    The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’
21.    After observing that a degree of tolerance for any such divergence in any particular case will often be a product of the perceived advantage enjoyed by the trial judge, Allsop J concluded (at [29]):
‘The appeal court must come to the view that the trial judge was wrong in order to interfere. Even if the question is one of impression or judgment, a sufficiently clear difference of opinion may necessitate that conclusion.’
…
25.    Fifth, what constitutes an appealable error of fact, law or discretion will be determined on a case-by-case basis. However, the Commission will be guided by the principles stated in Fox v Percy [2003] HCA 22; 214 CLR 118 at [22] to [31]. Mistakes can occur in the ‘comprehension, recollection and evaluation of evidence’ (Fox v Percy at [24]). If, after making a proper allowance for the advantages of the [Member] in seeing and hearing the witnesses, the Presidential member concludes ‘that an error has been shown’ (Fox v Percy at [27]), he or she is obliged to correct that error.
26.    Sixth, credibility based findings may be overturned if ‘incontrovertible facts or uncontested’ evidence (Fox v Percy at [28]) establish that they were wrong. In rare cases, although the facts fall short of being ‘incontrovertible’, such findings may be overturned if they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case (Fox v Percy at [29] citing Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; 59 ALJR 842 at 844 and Chambers v Jobling (1986) 7 NSWLR 1 at 10).”

Fact finding

As a corollary to the above-mentioned remarks about the necessity to find error, I will say the following things about the approach to a Member’s fact finding, given the appellant’s trenchant criticism of how the Member found the facts in this matter. In the decision now appealed, the Member was involved in undertaking an evaluative judgment of the evidence. Much of this evaluative approach is now challenged. In Australian Air Express Pty Limited v Langford,[56] McColl JA (Ipp and Tobias JJA agreeing) made the following observations in relation to the exercise of an evaluative judgement by a first instance decision maker in the place of the Member:
“The first [observation] concerns the approach an appellate court should take to reviewing an exercise whose resolution is ‘one of ‘fact and degree’ in respect of which views might legitimately differ’: Roy Morgan Research Limited v Commissioner of State Revenue (1997) 37 ATR 528 at 533. In such a case it is not enough that an appellate court might have come to a different conclusion - before an appellate court will intervene the appellant must show error on the part of the primary judge: JA & BM Bowden & Sons Pty Limited v Chief Commissioner of State Revenue (2001) NSWCA 125; (2001) 105 IR 66 at 68 [14] per Ipp JA.”[57]
[56] [2005] NSWCA 96 (Langford).
[57] Langford, [15].
Usually, first instance findings of fact will stand unless the decision maker has acted on evidence which was “inconsistent with facts incontrovertibly established” or “glaringly improbable”.[58]
[58] Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472, 479, 480–481.
I would note that a failure to consider all of the material relevant to a particular issue is an error of fact finding which is an error of law.[59]
[59] Waterways Authority v Fitzgibbon [2005] HCA 57, [130], per Hayne J (McHugh and Gummow JJ agreeing).
However findings of fact will not be disturbed, as a general rule, if they have rational support in the evidence.[60]
[60] Fox v Percy [2003] HCA 22; 214 CLR 118, 125–6 (Fox v Percy).
Finally, I would record that the acceptance and weight to be given to evidence is a matter within the province of the first instance decision maker. The exception to this established principle is if the finding was so against the weight of the evidence that error of some sort must have been involved.[61]
[61] Shellharbour City Council v Rigby [2006] NSWCA 308.

The approach to considering medical records

The appellant in Grounds One, Two and Three impugns the Member’s application of the principles from Mason. Given the submissions made by the appellant to the Member and now on appeal, it is necessary to set out the principles.
In Mason, Basten JA set out the following principles regarding approaching medical records and attempts to impugn a witness’s credit based on what is recorded in such records:
“First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a)     the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b)     the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c)     the record did not identify any questions which may have elucidated replies;
(d)     the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e)     a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.
The fact that, in the present case, none of the health professionals were called to give oral evidence as to the matters in issue may not itself be a point of significance. It is unlikely that cross-examination would have advanced any issue in dispute; the witness being likely to have no relevant recollection of taking the history, the oral testimony would be largely limited to an assertion of usual practice.”[62]
[62] Mason, [2]–[3].
In Nominal Defendant v Clancy[63] at [54], Santow JA said the following:
“While clinical notes, as McColl JA observes, may in common experience be the raw data on which diagnosis and opinions are based, it does not follow that they will be comprehensive. …”
[63] [2007] NSWCA 349 (Clancy).
And at [55]:
“I would add that clinical notes are written in the course of a busy practice where the clinician is primarily there to observe and administer treatment. They should not be construed with the minute attention one might give a formal legal document.”

DISCUSSION

As to Ground One

The appellant makes a number of preliminary points before turning to the asserted errors with respect to each of the five medical service providers. Essentially the debate or controversy is about when the respondent’s heavy and dangerous drinking commenced. The respondent places this after his 2005 injury, the appellant says that it was a more longstanding condition and, based on the recorded histories, existed well prior to the 2005 injury.
The appellant says that the evidence of the respondent himself and his wife, Mrs Yuki Legrand, is not reliable. The appellant submits as follows:
“The submissions [before the Member] were essentially made on the basis that the Respondent’s evidence was not reliable as to the following matters:
a.      When the Respondent commenced his excessive consumption of alcohol;
b.      The extent of the Respondent’s alcohol consumption;
c.      The cause of the Respondent’s alcohol consumption and the liver condition; and
d.      The absence of acknowledgement of various other issues, that are potentially causally relevant, including multiple surgeries and there was no mention as to the effect of same upon the Respondent’s mental state, his physical symptoms, or alcohol consumption.
Whilst the Appellant did not doubt the Respondent consumed alcohol subsequent to the 2005 injury and the termination of his employment by the Appellant, the evidence that was before the Member demonstrated that the Respondent had been drinking excessively for a number of years prior to either of the accepted cervical spine injuries (2000 or 2005).”[64]
[64] Appellant’s submissions dated 20 December 2023, [23]–[24].
The appellant says that the records from the five medical providers show that the respondent had been drinking excessively for a number of years prior to the accepted injuries to his cervical spine in 2000 and 2005. In light of this material, the appellant says that the Member’s findings were “glaringly improbable or contrary to compelling inferences”, citing Fox v Percy and Lee v Lee[65].[66]
[65] [2019] HCA 28, [55].
[66] Appellant’s submissions dated 20 December 2023, [28].

As to Dr Gerald Feeney

The appellant refers to its submissions before the Member and places reliance on them in this appeal. These passages are identified as paragraphs [56]–[62] of the appellant’s submissions dated 16 November 2023 which were before the Member. I set these paragraphs out in full:
“56. Dr Feeney, has provided a report dated 22 August 2018 (page 945 of the ARD). The report is comprehensive and the doctor has noted the [respondent’s] employment with the [appellant], his cervical spine fusion and the [respondent’s] being rendered unfit to work for the [appellant].
57.    Dr Feeney did not indicate that the [respondent’s] liver condition was causally related to his cervical spine injuries.
58.    This is important, given Dr Feeney examined the [respondent] in the context of his liver issues and analysed his alcohol dependency. The report was addressed to Dr Stuart.
59.    There would be no reason for the doctor to not have made mention of these matters had they been factual.
60.    The doctor recorded there was a strong family history of alcohol dependence involving the paternal side of the [respondent’s] family.
61.    Moreover:
“He began regular drinking initially on joining the army. No alcohol was ingested when on manoeuvres but on returning to base, binge drinking occurred regularly. Subsequent work in the hospitality industry resulted in regular heavy drinking in excess of 120g of ethanol per day. His wife has been concerned about his alcohol use for much of the marriage, initially concerned about cost but more recently in relation to the health implications. She did not accompany him today. His children have commented on this only in the last three years. Both have successful professional careers.
He now recognises in hindsight that alcohol has been an issue for him more than a decade. He tolerated heavy alcohol use as he maintained a high level of fitness, was a Judo 4th Dan and represented New Caledonia in international competition and subsequently Australia…”
62.    The above is inconsistent with the lay evidence. These inconsistencies, as are the inconsistencies noted above, not minor and are material to the matters in this dispute in this matter. These inconsistences are fatal and ought to mean the lay evidence and the evidence of Dr Sethi ought to not be accepted.”
The appellant asserts that the Member approached Dr Feeney’s evidence in a way that was “factually erroneous” and that there was no reason to approach the history recorded by Dr Feeney with caution.[67]
[67] Appellant’s submissions dated 20 December 2023, [32]–[33].
The appellant says that Dr Feeney was consulted for treatment for the respondent’s liver condition. The history recorded was directly relevant to this purpose and “[i]t was glaringly improbable for the history obtained and recorded, in these circumstances, to have been viewed with circumspection and it was also contrary to compelling inferences that the history would have been imprecise or inaccurate.”[68]
[68] Appellant’s submissions dated 20 December 2023, [37].
The appellant says that the history recorded by the doctor came only from the respondent and was thus “not filtered or an interpretation from a third-party’s record”.[69]
[69] Appellant’s submissions dated 20 December 2023, [38].
The appellant points to a passage at page 14 of the transcript, where the Member found that the history recorded by the doctor had not impugned the respondent’s credit, a finding the appellant asserts is wrong.[70] The appellant then submits that when the entire passage from Dr Feeney’s report is read, it is “glaringly improbable” that it was anything other than “… a contradiction of the lay evidence which the Respondent relies upon.”[71] This submission applied to how the Member dealt with the assertions about the respondent’s drinking more while a soldier in the French Army.
[70] Appellant’s submissions dated 20 December 2023, [42]–[43].
[71] Appellant’s submissions dated 20 December 2023, [44].
The appellant repeats the same argument with respect to how the Member dealt with the assertions about the respondent’s drinking habits while working in the hospitality industry.[72] The appellant contends that it would be glaringly improbable that the doctor’s recording of the history would have been incorrect or ambiguous.
[72] Appellant’s submissions dated 20 December 2023, [46]–[54].
The appellant takes issue with the Member’s attempt to fix a time period for the commencement of the respondent’s heavy drinking, saying that the Member’s finding that this period commenced after the 2005 injury was wrong as Dr Feeney had recorded a history which revealed that the respondent’s heavy drinking had extended back beyond that date.[73]
[73] Appellant’s submissions dated 20 December 2023, [61]–[68].
Finally, the appellant makes the following points with respect to two specific findings. Firstly, how the Member dealt with the remarks of Dr Feeney regarding the respondent’s toleration of ‘heavy alcohol’ whilst maintaining very high levels of fitness is, according the appellant, “glaringly improbable and contrary to compelling inferences”.[74] Secondly, the appellant submits that there was no evidentiary basis for the Member to assert that Dr Feeney’s remarks were “somewhat internally inconsistent”. The arguments supporting this submission appear at paragraph [71] of the appellant’s submissions dated 20 December 2023.
[74] Appellant’s submissions dated 20 December 2023, [69]–[70].

The respondent in reply states that the Member was right to approach the various histories recorded in the medical records in accordance with Mason. The respondent argues:
“A correct interpretation of the reports/records referred to above should include a consideration that treating practitioners are not necessarily concerned with the causation of a condition, rather, they are seeking to treat the condition in order to alleviate or eliminate symptoms.”[75]
[75] Respondent’s submissions dated 1 February 2024, [18].
The respondent submits that far from the respondent’s credit, and that of his wife, being adversely affected, rather their statements clarified ambiguous points raised in the medical records.[76]
[76] Respondent’s submissions dated 1 February 2024, [21]–[22].
The respondent concludes by stating:
“The medical evidence relied upon by the Appellant, taken at its highest supports a conclusion that the Respondent consumed alcohol, perhaps to excess on occasion, prior to the subject injuries. That as a matter of science and logic does not detract from the contention that the [respondent’s] clearly excessive and dangerous drinking post injury materially contributed to the liver condition.”[77]
[77] Respondent’s submissions dated 1 February 2024, [23].
In its reply submission, the appellant says that the respondent failed to grapple with its submissions and further asserts that neither the respondent nor his wife dealt with the issues or contradictions arising from the treating medical evidence.[78]
[78] Appellant’s submissions in reply dated 23 February 2024.

Consideration

The starting point for the consideration of the issues raised by the appellant is the evidence of Dr Feeney, the respondent and his wife.

Dr Feeney

Dr Feeney’s report appears at ARD p 945. It is a report two pages in length dated 22 August 2018 addressed to Dr Katherine Stuart, Director of Hepatology at the Princess Alexandra Hospital in Brisbane. Reading the report as a whole, it is clear that the respondent was being reviewed by Dr Feeney in respect of his cirrhosis of the liver condition which required a transplant of that organ. The vast majority of the report is the doctor recounting the respondent’s history. No medical opinion whatsoever is posited by the doctor. He does record advice that he clearly gave to the respondent which was to the effect that if he has a liver transplant, the expectation is that he remains alcohol free.
Turning to the report, the following are the relevant extracts for the purposes of this argument:
“There is a strong family history of alcohol dependence, involving the paternal side of the family. His paternal grandfather, father and paternal uncles had significant alcohol problems. His father was a violent alcoholic.
He began regular drinking initially on joining the army. No alcohol was ingested when on manoeuvres but on returning to base, binge drinking occurred regularly. Subsequent work in the hospitality industry resulted in regular heavy drinking in excess of 120g of ethanol per day. His wife has been concerned about his alcohol use for much of the marriage, initially concerned about cost but more recently in relation to the health implications. She did not accompany him today. His children have commented on this only in the last three years. Both have successful professional careers.
He recognises now in hindsight that alcohol has been an issue for him more than a decade. He tolerated heavy alcohol use as he maintained a high level of fitness, was a Judo 4th Dan and represented New Caledonia in international competition and subsequently Australia in the Australia Asia Pacific Masters where he won on two occasions. He also worked as an international referee.
He estimates his peak alcohol intake was between 2-3 bottles of wine (160-240g of ethanol) and up to a carton of beer (360g of ethanol) per day. This amounts to a daily intake in excess of 500g of ethanol per day. His general practitioner first raised concerns about this over 5 years ago and he was subsequently reviewed at the drug and alcohol service in Tweed Heads. After an initial period of detoxification, he established 18 months of alcohol abstinence. In the absence of longer term follow-up, he slowly returned to alcohol use, initially with light beer and subsequently wine and cider. He returned to about 340g of ethanol per day. His mother died in February of last year and he returned to heavy drinking following this. He stopped alcohol in January of this year. He registers 23 on the Alcohol Use Disorder Identification Test (AUDIT) where a score of fifteen or more of a maximum score of forty is associated with a high likelihood of alcohol dependence. He registers 23 on the Brief Michigan Alcoholism Screening Test (bMAST) where a score of six or more of a maximum score of twenty-nine is associated with a high likelihood of alcohol dependence. He has had one drink driving offence which was in the low range, however, he was not charged. He has had previous detoxification as an outpatient and past rehabilitation as an outpatient.”[79]
[79] ARD, p 946.
I would note that in the conclusion of the report, Dr Feeney stated that the respondent “was a forthright historian and recognised that he had severe alcohol dependence …”. Dr Feeney also noted that the respondent attended on him alone.

The respondent

The respondent has provided a number of statements in support of his claim. His first statement is dated 17 December 2010.[80] In this statement the respondent says the following:
“12. Since I drafted that statement on the 29th May 2006 my employment was terminated from NSW Fisheries (DPl) at the end of June 2006.
13.    Following the termination of my employment I really went downhill mentally. Throughout this period I was having severe pain in my neck and still had pain and loss of strength down both of my arms, the left being worse than the right.
14.    I was out of work for about 10 months following my termination from [the appellant]. During that 10 months that I was out of work my GP Dr Harrington prescribed anti-depressants for me because my spirits were lowering. I found It hard to adjust to my neck and arm pains and I was having difficulty doing any manual tasks. I became emotional about doing simple things and there wasn’t any one day when I was not crying about simple things.
15.    I was feeling extremely depressed at that time. I was also suffering symptoms of angry outbursts.
16.    I suffered a loss of direction in my life and felt very confused because I had previously been a very fit and active person. I found that since my second injury I had lost my direction and purpose after I lost my job. I found that I was drinking more alcohol and at that stage I was drinking more than I should. I also suffered panic attacks which had come on in late 2006. I felt like my heartbeat was constantly fast and I became very anxious about my future.
17.    I was miserable and developed low feelings and feelings of worthlessness about myself and about my future situation. I had problems finding enthusiasm to find a job and my motivation was diminished. I suffered loss of interest and pleasure in my normal everyday activities and my mood became very depressed.
18.    I began gaining weight due to inactivity and I was eating and drinking for comfort. I also suffered a loss of interest in sexual activity with my wife and this strained my marital relationship.
19.    I found that I had poor self-esteem because my role as the money earner for the family was jeopardised and my mood became so low that I entertained suicidal thoughts.”[81]
[80] ARD, p 14.
[81] ARD, pp 16–17.
The next statement which covers alcohol related matters is dated 18 January 2023.[82] The respondent says the following:
[82] ARD, p 24.
“31. I was out of work for about 10 months following my termination from [the appellant]. I began to feel extremely depressed and suffered from angry outbursts frequently. My GP Dr Harrington prescribed me anti-depressant medication.
32.    I struggled with sleeplessness and the pain I constantly felt prohibited sleep.
33.    I found that I was drinking more alcohol more frequently around this time.
34.    I began a vicious cycle of drinking for pain relief, experiencing withdrawal symptoms and then drinking to avoid those withdrawal symptoms. Alcohol use became my coping strategy to be able to endure the pain.
35.    I did not like the side effects from prescribed analgesia (such as drowsiness and memory loss) and I felt that analgesic medication was not helping me enough to cope with the pain in my neck and arms and began drinking alcohol excessively as a form of pain relief and antidepressant.
36.    I began to gain weight due to inactivity and I was eating and drinking for comfort.
…
39.    I have relied on medication such as codeine, endone and more recently Tapentadol. However, more often than not when my pain [became] intense, I would turn to drinking alcohol.
40.    My alcohol use disorder continued over the years and eventually decompensated with chronic liver disease.
41.    I was never referred or admitted for any planned alcohol detoxification, nor offered any relapse prevention medication.
42.    From 2018 onwards I had multiple admissions to hospital and started getting sober in 2019. Besides one relapse prior to August 2020, I have remained sober.”[83]
[83] ARD, pp 26–27.
In the respondent’s Application to Admit Late Documents he provided a statement dated 19 September 2023.[84] This statement is responsive to the report of Dr Frommer, the appellant’s medico-legal expert, but does cover much the same history which is in contest regarding Dr Feeney. The respondent states:
[84] AALD dated 10 October 2023, p 40.
“4.     In the report of Dr Frommer on page 3 of 4 the doctor says
‘The alcohol history obtained by Dr G Feen[e]y when Mr Legrand was being assessed for liver transplantation was that regular binge drinking occurred when he was off duty in the French army, for two years, starting at 19 years of age.’
l say in response to that that the binge drinking only occurred randomly and for short periods of time. I did not always participate in binge drinking. The gatherings in the army were to get together and socialise. l was never disciplined in relation to drinking. On the very seldom occasions when this occurred, these were very infrequent due to the nature of our duties. The entire time l was in the army l lived at the barracks and alcohol was not allowed. Access to alcohol was strictly regulated. This statement from Dr Frommer is totally out of context and inflammatory. I entered the army at an age just before 18 and finished at 19 years of age. Accordingly, I was in the army for 12 months. The statement from the doctor is not accurate.
5.     Dr Frommer then says on page 3 of his report
‘After leaving he became a bartender and waiter, where he had regular heavy drinking in excess of 120 grams of ethanol/day’
I am not sure what this relates to. After my time at work as a bartender the staff would gather and have a few drinks after work. I'm not sure why this statement says per day, meaning everyday which is totally untrue. Having drinks after work was not a regular occurrence but we did get together on some nights and have a drink. l [was] only there as a bar tender for about 12 months or less and met my wife while employed there and moved on to a more secure position out of this industry.
6.     The doctor then says on page 3 of his report
‘Over subsequent years his peak alcohol intake was between 2-3 bottles of wine (160-240g of ethanol) and up to a carton of beer (360g of ethanol) per day. This amounts to a daily intake in excess of 500g of ethanol per day.’
This level of drinking l participated in only after the operation for neck and after l lost my job with the [appellant]. l was self-medicating and that quantity of alcohol stated by this doctor was just towards the end of my employment with Council, in 2013 to 2014. This level of alcohol intake is not relevant to the period prior to 2005. This drinking came about only in response to my neck injury.
7.     Dr Frommer said on page 3 of his report
‘Dr A Vol[o]vets recorded that as a student he drank wine and beer with meals, amount not stated.’
l say that this is true but not whilst at University during the day. l was also working 2 jobs during the week. On weekends and time off I would drink wine with my meals as is tradition with my culture.
8.     Dr Frommer says on page 3 of his report
‘After approximately 5 years he became jaundiced and his GP told him that he would die if he continued drinking. This was presumably an episode of alcoholic hepatitis rather than alcoholic cirrhosis.’
I am totally unclear of what this refers to and when. The only time I was jaundiced was in the last year of my sickness and pointed out by various people when I was in hospital. I am unsure what the GP told me as I do not recall the GP telling me this.
9.     Dr Frommer on page 3 of his report says
‘Dr A Volovets also noted that on one occasion when being assessed for liver transplantation and having had a blood test showing high levels of alcohol intake over the previous few weeks, Mr Legrand ‘changed his story multiple times before admitting to a six pack of beer.’’
l say in response to that, Dr Volovets would say that yes it was hard for me to recollect the amount of drinking during the work up [sic] which is what l presume Dr Frommer is referring to. Upon having no accurate recollection, it was decided to ascribe a six pack. Dr Gribbles, the RPA Psychiatrist, also can certify that it is absolutely very common for patients in the state that I was in to totally have memory failure. It must be noted that the work up last [sic] almost one year before l had my transplant. There is expectations that the patient will relapse during that time. Only after the patient is totally clear of ethanol in their blood stream, that the patient is eligible for a transplant. This is all irrelevant to my drinking prior to 2005, I was ill for 4 years with liver failure prior to my transplant. Alcoholism is a disease and not as straight forward as Dr Frommer indicates that it is.
10.    In summary, I say that my drinking was under control and did not cause me any problems prior to the neck injury in 2005. It was only after the 2005 injury that my drinking increased firstly due to my pain levels and the loss of my job.
11.    I was not treated for liver problems after 1997 and l had good liver function from 1997 until early 2005. After the 2005 injury, that is when my drinking exploded and became out of control as a direct consequence to the injury which l sustained on 7 February 2005.”[85]

Mrs Yuki Legrand

[85] AALD dated 10 October 2023, pp 40–41.

Mrs Legrand is the respondent’s wife of over 35 years. Her statement dated 15 September 2023 appears at AALD p 38. She stated:
“7.     l can say with certainty that Alain was not a heavy drinker in the early days of our marriage. Alain would drink red wine and sometimes he would drink beer.
8.      l cannot remember Alain ever having a problem with alcohol in the early years of our marriage. l can recall that Alain has a friend who was a doctor in Albury at the time, Dr Hruz. I can recall that Alain had a fatty liver at that time which l understood was due to his diet.
9.     Alain’s background is French and l found that after l married Alain he ate a lot of fatty food like cream, cheese and butter, a lot of dairy products. Alain grew up with the cooking of his mother and I observed his mother to cook very rich fat laden foods with butter, cheese, cream, salt, and other high fat content foods. Because I believe Alain grew up with that type of food, he continued to eat that and whilst he was a uni student in the late 1990’s. I believe it was his diet that was compromised that led to his fatty liver in the late 1990’s. I cannot recall him drinking excess amounts of alcohol at that time.
10.    After Alain had the liver biopsy in 1997 he changed his diet and ate less fatty food and ate more fruits and vegetables. He did not have any ongoing liver problems after the liver biopsy in 1997 after we changed his diet.
11.    From my point of view, Alain’s drinking escalated after the 2005 injury. During our time in Albury I cannot recall Alain over drinking or being intoxicated. l believe that he did drink, but he drank in moderation and not to excess.”

The Member’s Decision – Dr Feeney

The Member dealt with Dr Feeney’s records from page 21 to page 29 of the transcript. The Member notes the controversy attaching to the history taken by Dr Feeney[86] before recounting the history recorded by the doctor. The Member then notes that the appellant was seeking to have “… findings of unreliability in relation to the [respondent’s] statement evidence and his wife’s statement evidence on the basis of inconsistent history …”.[87] The Member then referred to Mason and stated that he would approach the treatment records with caution. The Member found that the entries about the respondent’s drinking while in the French Army or working in the hospitality sector were not clear in terms of frequency of drinking, amounts and over what time period this was taking place.[88] The Member considered that the appellant’s submissions were “blanket”[89] or “broad”[90] and considered that the respondent had clarified these matters.[91] The Member considered that where the respondent’s history is recorded by Dr Feeney, it is for the purpose of the treatment of his condition “… rather than attributing causation …”.[92] The Member found that the history recorded did not impugn the respondent’s reliability.[93] The Member ultimately finds:
“ … in my view, the history recorded by Dr Feeney is not inconsistent with what the [respondent] has provided in his statements and for the reasons that I’ve given and I also, in my view, the history recorded by Dr Feeney, as I’ve also noted, in part and significant part supports the [respondent], in my view, as to his statements, as to his alcohol intake and so I do not accept the [appellant’s] submissions in this regard.”[94]
[86] T 21.21–22.
[87] T 24.8–11.
[88] T 25–26.
[89] T 26.10.
[90] T 26.24.
[91] T 26.5–9.
[92] T 25.1.
[93] T 25.20–21.
[94] T 29.1–9.
The appellant asserts that the Member was wrong to approach Dr Feeney’s records with caution, saying that given the purpose they were created for, it was “glaringly improbable” for the history to be wrong or imprecise.
I do not accept this submission.
One could say this about virtually every medical record, given that the doctor is assessing a patient and gauging appropriate treatment. I accept that such a record is important. But as Santow JA said in Clancy, such records “should not be construed with the minute attention one might give a formal legal document.”[95] This is not the purpose of such a record. However, contrary to this statement, this is precisely what the appellant is inviting in this case, a minute examination of the doctor’s history and the acceptance of it as a means of undermining the credit of two witnesses. Basten JA in Mason went further, in the extract I have set out above, and this is why the submission urged by the appellant on this issue cannot be accepted. The appellant does not deal with these authorities in any meaningful way, rather asserting that they do not apply in this circumstance. I do not accept this submission.
[95] Clancy, [55].
Reading the report as a whole, it was clear that the doctor was eliciting a sense of the respondent’s history with respect to alcohol consumption rather than reproducing a complete and accurate history. The Member was correct to note that some of the doctor’s notes are broad or insufficient in terms of time periods. This is not a criticism of the doctor, rather the notes were not created for the purpose that the appellant now seeks to deploy them for.
Given the purpose of the medical records, the task confronting the Member was, consistent with the admonitions in Mason and Clancy, to undertake an evaluative exercise,[96] reconciling the records whilst understanding why they were created and assessing what the respondent and his wife had to say about them. This the Member has done. Indeed, the records of Dr Feeney do not lend themselves to the precise purpose to which the appellant seeks to put them. The timing of excessive alcohol consumption recorded by Dr Feeney is not as definitive as asserted by the appellant and it was well within the Member’s decision-making discretion to accept the evidence of the respondent and his wife as being unmoved by any disparities with Dr Feeney’s account.
[96] Langford.

I also note that the appellant relies upon the submissions that it placed before the Member, which I have set out above at paragraph 63. Whilst most of these submissions have been repeated on appeal, one requires attention. The appellant asserted that Dr Feeney failed to indicate that the respondent’s liver condition was causally related to his neck injuries. The report with which we are concerned was patently not created for that purpose. It is apparent that no questions had been put to the doctor, such as causation, which required his attention. However reading the report, it is clear that this consultation was part of the process of discerning the respondent’s candidacy for a liver transplant. Causation was clearly not an issue for the doctor. The Member was right to not accept this submission.
Insofar as this ground relies upon error in the Member’s approach to Dr Feeney’s records, no error has been established. This aspect of Ground One is dismissed.

As to Dr Katherine Stuart

The appellant points to Dr Stuart’s report, which appears to be dated 12 July 2018.[97] The appellant had submitted to the Member that the history contained in Dr Stuart’s report revealed that the respondent had excessively consumed alcohol prior to his employment with the appellant.[98]
[97] ARD, p 1,027.
[98] Appellant’s submissions dated 16 November 2023, [55], citing the second last paragraph of Dr Stuart’s report at ARD, p 1,028.
The appellant says that the Member’s conclusions in the following extract from the decision were factually erroneous, as the history given by the respondent was contradicted by what appears in the doctor’s report. The Member found:
“It was - the [respondent] in his statement noted the infrequency of that and the difficulty with drinking and also that the [respondent] had been in the Army for about one year and so in my view again, there is an ambiguity in relation to the extent of the [respondent’s] drinking in this regard and it doesn’t say - the reason I say that, of course, is that the - it doesn’t say how often the sessions would be. It noted that irregular drinking then limited to weekends but doesn’t say as to whether these - that drinking on a weekend was the session in which he would drink a bottle of wine and several beers per session. It does not say whether that was every time or not. The [respondent] said not.
I accept the [respondent] in this regard and it was - to the extent that the - this was ambiguous as to the length of time and the numbers of sessions and the regularity of sessions which, in my view, is not clear then it’s not in this - that particular history was not inconsistent with the [respondent’] statements as he has clarified them.”[99]
[99] T 30.30–31.16.
The appellant says that it is “glaringly improbable or contrary to compelling inferences to consider there to be deficiencies in the history recorded in Dr Stuart’s report, simply because she was a treating specialist.”[100] The appellant in this regard criticises the Member’s application of the approach in Mason of viewing the medical records with caution.
[100] Appellant’s submissions dated 20 Dec 2023, [88].

Consideration

Much of this sub-ground of appeal traverses the same issues as I have covered with respect to Dr Feeney’s medical report (above). Namely, the level of alcohol consumed by the respondent as a much younger person and in particular while a soldier in the French Army and then subsequent to leaving that calling.
There is a problem with the appellant’s approach on the question of the application of Mason. Mason is a Court of Appeal authority. The doctrine of stare decisis is the doctrine of precedent, literally meaning “to stand by decided matters”. This doctrine was discussed in Burwood Council v PD Mayoh Pty Ltd,[101] where the following was said:
“Although discussion of the doctrine of precedent usually focuses on the difficulty in some cases of identifying the ratio decidendi ... it is clear, in my opinion, that in appropriate cases the actual decision binds an inferior court. Where that decision takes the form of a declaration that a statutory instrument is invalid it would seem clearly to follow that no inferior court is thereafter entitled to say that the instrument is valid or partly valid. The position was expressed, in [terms] with which I agree, by Lord Diplock in Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295 at 365:
‘Under our legal system, however, the courts as the judicial arm of government do not act on their own initiative. The jurisdiction to determine that a statutory instrument is ultra vires does not arise until its validity is challenged in proceedings inter [partes] either brought by one party to enforce the law declared by the instrument against another party or brought by a party whose interests are affected by the law so declared sufficiently directly to give him locus [standi] to initiate proceedings to challenge the validity of the instrument. Unless there is such a challenge and, if there is, until it has been upheld by a judgment of the court, the validity of the statutory instrument and the legality of acts done pursuant to the law declared by it are presumed. It would, however, be inconsistent with the doctrine of ultra vires as it has been developed in English law as a means of controlling abuse of power by the executive arm of government if the judgment of a court in proceedings properly constituted that a statutory instrument was ultra vires were to have any lesser consequence in law than to render the instrument incapable of ever having had any legal effect upon the rights or duties of the parties to the proceedings (cf Ridge v Baldwin [1963] UKHL 2; [1964] AC 40). Although such a decision is directly binding only as between the parties to the proceedings in which it was made, the application of the doctrine of precedent has the consequence of enabling the benefit of it to accrue to all other persons whose legal rights have been interfered with in reliance on the law which the statutory instrument purported to declare.’
This authority is consistent with the dictum of Viscount Dunedin in Great Western Railway Co v Owners of SS Mostyn (The Mostyn) [1928] AC 57 at 73:
‘Now, when any tribunal is bound by the judgment of another court, either superior or co-ordinate [sic, subordinate], it is, of course, bound by the judgment itself. And if from the opinions delivered it is clear ... what the ratio decidendi was which led to the judgment, then that ratio decidendi is also binding.’” (emphasis added)
[101] [1997] NSWCA 53, per Clarke AJA (Priestley and Beazley JJA agreeing).
It is beyond doubt that the Member was bound by the decided authority of Mason. Indeed the situation in Mason is virtually identical to the argument conducted by the appellant before the Member and on appeal. Namely, inconsistencies between the medical records and the respondent’s evidence are being relied upon by the appellant to lessen the weight given to the respondent’s evidence. Mason does not mean that the Member completely discounts the contents of the medical records, rather they are looked at “with caution” given that the reason for their creation is medical treatment and not for the purposes of producing a legal document as Santow JA described in Clancy. This the Member did and did so without error. As I remarked in relation to Dr Feeney’s report, and the same is true with Dr Stuart, one must read the report as a whole. Approaching the report this way, it is clear that the doctor is getting a “sense” of the relevant history, without recounting it in great detail. The Member weighed this as against the respondent’s clarifying statement which did go into greater detail. The Member’s task was to weigh the evidence, which he did, and reach a view as to which he preferred. There is no error in this approach.
This sub-ground has not been established and is dismissed.

As to the Queensland Liver Transplant Service records from ARD page 1,033

The appellant points to a history which is said to be similar to the history recorded by Dr Stuart (above) and relies upon the same arguments as submitted in relation to that doctor. Reading this material the history closest to that recorded by Dr Stuart appears to be the one appearing at page 1,034 of the ARD beneath the heading “social history”. This “social history” section of the report was referred to by the appellant in its 16 November 2023 submissions to the Member at paragraph [36], so I am satisfied that this is the history being referred to in this appeal ground. The appellant put the following proposition to the Member based on this “social history”: “This history is inconsistent with the lay evidence which the [respondent] relies upon, including his own.”[102]
[102] Appellant’s submissions dated 16 November 2023, [36].
While the appellant has not identified the offending passage in the Member’s decision where the error is said to have been made, doing the best I can it looks like the Member dealt with the document starting at T 29.33 where the heading “social history” appears and the summary which then appears is broadly consistent with that passage at ARD p 1,034 beneath the same heading.
The appellant relies on the same arguments with respect to this document as it did with Dr Stuart. For the reasons I have dismissed the appellant’s argument in relation to Dr Stuart, the same reasoning applies equally to the document from the Queensland Liver Transplant Service. I dismiss this sub-ground of Ground One.

As to Dr Volovets’ report dated 9 September 2019

The appellant asserts that the Member made errors of fact with how he treated the history recorded by Dr Volovets in the 9 September 2019 report.[103]
[103] ARD, p 915.
The appellant’s submissions are very similar to that which I have decided above, namely that the record of the history in the medical records contradicts the respondent’s evidence. The appellant states that the doctor did not have to refer to specific periods given what the doctor had said about pre-injury alcohol consumption. The appellant states:
“Indeed, Dr Volovets stated:
‘His alcohol history was lifelong with a fluctuating pattern of binge drinking during army service, with regular social drinking during his work in the hospitality industry and escalating into dependence with adverse life events.’
Even if it is accepted that adverse life patterns includes the accepted injuries, it is factually inaccurate, it is submitted, to discount Dr Volovets’ reporting of the respondent’s lifelong alcohol consumption, including during his time in vocations which preceded employment with the [appellant] on the basis that it is ambiguous.
Dr Volovets recorded, clearly, a pattern of drinking that contradicted the evidence which the respondent relied upon.” [104] (emphasis in original)
[104] Appellant’s submissions dated 20 December 2023, [96]–[98].
The appellant has not drawn attention to any particular passage in the Member’s decision where the asserted errors are said to appear. Reviewing the transcript, the Member commenced dealing with Dr Volovets’ records from T 34.20. The Member then considers the terms of the report, noting that the history appears to be that recorded by Dr Feeney.[105] I consider this to be a fair reading of Dr Volovets’ report where she says, “I will not recount the details [of the] social history given that has been adequately described in the correspondence of Dr Feeney, Dr Stuart and Dr Gribble.”[106]
[105] T 35.10.
[106] ARD, p 917.
The Member then proceeded to consider the history recorded by Dr Volovets before making the critical findings about Dr Volovets’ evidence at T 38.26–34 where he said:
“In my view, therefore, the report of Dr Volovets is not inconsistent with the [respondent’s] statements as to his alcohol consumption prior to 2005 and is also consistent for the reasons I’ve given in terms of total alcohol intake after the 2005 injury and also consistent with the [respondent’s] wife’s observations in this regard.”

Consideration

The essential submission once more made by the appellant is that the doctor’s records contradicted the respondent’s evidence with a consequent impact on the reliability of the respondent’s evidence.
I would remark that when one reads this report as a whole, the history does seem to be that emanating from other doctors’ correspondence. I am not being critical of Dr Volovets, rather this appears to me to be a fair reading of her report. It is apparent though that the doctor was far more concerned with the results of her examination of the respondent and his test results, opining that he might “consider palliative care”.[107] Patently, the doctor considered the respondent to be in extremis. Certainly the doctor posited no opinion about the relationship of the respondent’s then predicament and any of the history that was known to her.
[107] ARD, p 918.
I would remark that Dr Volovets saw the respondent to provide a second opinion[108] in August 2019. The history recorded by the doctor in 2019, not referred to by the appellant, includes the statement: “Alcohol dependence has been an issue for over a decade”.[109] If one compares this statement to the respondent’s evidence that his serious excessive drinking began after the 2005 injury, Dr Volovets’ history, far from being contradictory, provides some limited support for that proposition.
[108] ARD, p 915.
[109] ARD, p 917.
In my view Dr Volovets’ report does not recount a history which is at odds with the respondent’s evidence, and the Member was correct to so find. The doctor’s report certainly does not provide factual support for the submission made on appeal about “lifelong alcohol consumption”[110] which invites an inference to be drawn that pre-injury alcohol consumption was the cause of the respondent’s maladies. There is no support for this argument falling from Dr Volovets’ report.
[110] Appellant’s submissions dated 20 December 2023, [97].
The Member was correct in the manner in which he approached Dr Volovets’ report. No error has been established, this aspect of Ground One is dismissed.

As to Dr Eftekar

The appellant refers to Dr Eftekar’s clinical note 19 September 2018[111] and his report of the same date[112] as constituting histories which are contrary to the respondent’s evidence. Namely, that the history included periods of excessive drinking which pre-dated both the 2000 and 2005 injuries. Indeed the appellant asserts that Dr Eftekar took a history that the “Respondent drank alcohol heavily from the age of 16 until ‘Fem’ (as the Member, the Appellant takes this to be a reference to February) this year and that the Respondent drank up to a carton of beer and two bottles of wine each night.”[113]
[111] ARD, p 1,042.
[112] ARD, p 1,210.
[113] Appellant’s submissions dated 20 Dec 2023, [103].
The appellant points to the following passage from the Member’s decision as constituting errors in fact finding:
“That statement to the background is very broad-brush and not in accordance with any of the other histories recorded and, indeed, as I have noted in the other histories recorded the - which I have not accepted there are more - first of all I should say to clarify, the other histories such as Dr Feeney are not inconsistent with the [respondent’s] statements and also consistent with the [respondent’s] statements of increased alcohol intake after 2005, whereas this is simply a broad-brush of drinking alcohol every - from the age of 16 and I do not accept that history as being an accurate history.
In this regard it’s not consistent with anything else in the documentation and Dr Eftekar - and I should say in fairness to Dr Eftekar this was not the reason for him providing this history, it was simply a notation of the [respondent’s] alcohol consumption and not with a forensic purpose but with a review to - with a view to liver transplant surgery.”
The appellant says that the respondent’s evidence is not consistent with the history taken by Dr Feeney and repeats its earlier submissions on this point.
The appellant says the Member had no cogent evidentiary basis not to have accepted the history recorded by Dr Eftekar about the respondent’s alcohol consumption since the age of 16. The appellant says that once the inconsistency between that history and the respondent’s evidence “was apparent, there was no reason for the Member to discount the history.”[114] The appellant says that Dr Eftekar obtained the history from the respondent and there was no challenge made by the respondent to that history. The appellant noted that the history recorded by this doctor was different to other histories, but that it ought not to have been dismissed “without there being specific challenge from the Respondent to same”.[115] In any event the appellant says the history is consistent in that the respondent had consumed alcohol prior to the 2000 and 2005 injuries. The appellant states that the Member misapprehended the evidence and his treatment of Dr Eftekar’s recorded history was “contrary to compelling inferences and glaringly improbable”.[116]
[114] Appellant’s submissions dated 20 Dec 2023, [109].
[115] Appellant’s submissions dated 20 Dec 2023, [111].
[116] Appellant’s submissions dated 20 Dec 2023, [113].

Consideration

Dr Eftekar’s notes at page 1,042 of the ARD are a part of what appears to be a multi-disciplinary assessment of the respondent’s candidacy and suitability for a liver transplant which was undertaken by the Princess Alexandra Hospital, Queensland Liver Transplant Service. This report starts at ARD p 1,033 and concludes at ARD p 1,046. The report covers a range of investigations and assessments by various specialists. Dr Eftekar’s history of alcohol consumption appears at ARD p 1,042 and is comprised of the following two short sentences: “Dranks [sic] alcohol heavily from the age of 16 until Fem this year. Would drink up to a carton of beer and two bottles of wine per night.” This appears in a section entitled “Background”.
Compared to the history taken by Dr Feeney, which appears on the next page,[117] this is a very cursory, brief history to say the least. It is also not consistent with the history taken by Dr Feeney, who certainly took no history of the excessive amount of daily drinking from age 16.
[117] ARD, p 1,043.
In saying this I am not being critical of the doctor, his role was to assess whether any psychological issues afflicting the respondent could cause “non-adherence during/post liver transplantation”. Dr Eftekar judged that non-adherence would be unlikely.[118]
[118] ARD, p 1,042, beneath the heading “Impression”.
The history would not appear to have been very important to the doctor’s task given that a period of in excess of 30 years is reduced to two brief sentences.
Clearly the doctor’s purpose in examining the respondent related to assessing his suitability for a liver transplant. The doctor posited no opinion at all on the cause or origins of the need for the transplant. There was no need to because that was not the purpose the doctor was concerned with. I would remark that the same history appears at page 1,210 of the ARD which is described as a “Final Report”.
I do not accept the appellant’s submission that because the respondent did not take issue with these two sentences, the Member was effectively duty bound to accept them. I would note that while the respondent did not specifically take issue with this very minor history, a consideration of his statement dated 19 September 2023[119] constitutes the respondent’s response or position in relation to his drinking history. This statement more than amply covers or answers what is briefly recorded in Dr Eftekar’s report.
[119] AALD dated 10 October 2023, p 40.
Whilst the rules of evidence do not apply in Commission proceedings,[120] the Commission “is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material.”[121]
[120] Section 43 of the 2020 Act.
[121] Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 (Sutton), [2] per Allsop P, McColl JA agreeing.

The Member correctly approached the history in Dr Eftekar’s report. I agree with the Member’s description of it as “very broad-brush”,[122] that is precisely what it was. I also accept the Member’s decision not to accept it “ … as being an accurate history”.[123] On its face it does not purport to be comprehensive and given the histories in the other medical records and the respondent’s statements, this is a record which has very little, if any probative value. It certainly is not a satisfactory basis on which to make findings as discussed in Sutton.
[122] T 51.23.
[123] T 51.32–33.
In truth, this part of the appeal grounds is an impermissible attempt to cavil with factual findings which were available for the first instance decision maker to arrive at without error. Certainly no error has been established. This sub ground has not been established.
None of the sub grounds which are constituent parts of Ground One have been established.
Ground One is dismissed.

As to Ground Two

The appellant states that the Member erred by approaching the medical histories (referred to in Ground One) with caution in accordance with Mason. The appellant repeats the submissions from Ground One which were to the effect that the records were directly related to the treatment of the respondent’s liver condition and as a result there could be no suggestion that they were not accurate.

Consideration

For the same reasons that I have dismissed Ground One, this ground which is effectively a derivation of Ground One also must fail.
Nowhere in this ground has the appellant grappled with what was actually said in Mason, or indeed in Clancy referred to above. As I have found above, Mason is binding authority on the Member, meaning that the Member is not simply obliged to accept what is recorded in medical records without question. By approaching such records with caution, the Member has to balance and reconcile the competing stories which are evident from a comparison of the records and the lay evidence of the respondent in order to arrive at an appropriate finding. This is precisely the “evaluative exercise” and “matter of fact and degree” as described in Langford. The Member was not in error in approaching the records with caution. Indeed given the length of the history and the differing recording of it, the Member was duty bound to approach the records in that manner.
Ground Two is dismissed.

As to Ground Three

The appellant submits that the Member failed to consider submissions regarding multiple surgical procedures which the respondent had failed to address in his evidence. The appellant identified the following procedures and issues which are described as, “[f]or instance”, bilateral lower limb oedema, total right knee replacement and hernia repair,[124] three hip replacements with a further hip replacement scheduled for 18 August 2021.[125]
[124] Citing ARD, p 1,054.
[125] Citing ARD, p 1,096 (sic, 1,097).
The appellant said:
“... the evidence of the Respondent, and Mrs Legrand, were not reliable … because these statements were silent as to these issues, despite them being potentially causally relevant, and there was no mention of the effect of these issues upon the Respondent’s mental state, his physical symptoms, or alcohol consumption.”[126]
[126] Appellant’s submissions dated 20 December 2023, [123].
The appellant says that “it was glaringly improbable for the Member to have determined both Mrs Legrand and the Respondent to be reliable witnesses when their evidence did not address these matters …”.[127]
[127] Appellant’s submissions dated 20 December 2023, [125].

Consideration

Whilst the appellant has not referred to any relevant authority to support the submission in this ground, the relevant authorities dealing with a failure to deal with a submission are the High Court decision of Dranichnikov v Minister for Immigration and Multicultural Affairs[128] and the Court of Appeal in Wang v State of New South Wales.[129]
[128] [2003] HCA 26 (Dranichnikov), [24], per Gummow and Callinan JJ.
[129] [2019] NSWCA 263 (Wang), per McCallum JA (Macfarlan and Meagher JJA agreeing).
Dranichnikov was an immigration case. Mr Dranichnikov was a Russian citizen who sought a protection visa on behalf of himself, his wife and child. The basis on which he sought such a visa was twofold. Firstly, that as a Russian businessman he is at risk from criminal organisations who operate in Russia who have links to the authorities. Secondly, he asserted that he was part of a more limited group consisting of businessmen who had publicly criticised law enforcement authorities for failing to take action against criminals.
In dealing with Mr Dranichnikov’s case, the Refugee Review Tribunal at first instance accepted that Mr Dranichnikov was a witness of credit, and therefore accepted the correctness of his account of the situation in Russia.
But the Refugee Review Tribunal dismissed his case, and failed to deal with the argument that he was a more limited class of businessman who had taken a public stance against law enforcement authorities for failing to take action against criminals. It is failure to deal with this latter argument which gave rise to the error of law. The decision of the Refugee Review Tribunal was quashed by the High Court, and it was directed to review the delegate’s decision in accordance with law.
In Wang, the Court of Appeal was called upon to deal with a Dranichnikov submission in that it was asserted that the primary judge had failed to address written submissions advanced by the appellant. The Court of Appeal said as follows:
“The submission invoked the decision of the High Court in Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 in which it was stated that a failure to respond to a substantial, clearly articulated argument relying on established facts was a constructive failure to exercise jurisdiction: at [24] to [25] per Gummow and Callinan JJ. The decision is not authority for the proposition that any failure to refer to any argument put to a trial judge amounts to error. It is necessary to engage with the nature and materiality of the argument in the context of the issues in the proceedings. In Dranichnikov, the Refugee Review Tribunal, in considering whether Mr Dranichnikov had a well-founded fear of persecution on the grounds of his status as a member of a particular social group, overlooked or misconceived the particular social group to which he claimed to belong. That was the central question in the proceedings.
The approach taken in the present case was to list every submission put on behalf of Mr Wang to which the primary judge did not refer in his judgment and to assert error on that basis. That reflects a wrong approach. The primary judge was not required to address every submission advanced during the course of the hearing: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271.
As noted in the State’s written submissions, Mr Wang’s written submissions appear to identify only two particular submissions advanced by him which were material to the outcome and which were not addressed by the trial judge, namely, the submissions relating to Mr Wang’s capacity in the English language … and the submissions in relation to wrongful arrest ... Otherwise, the table of alleged omissions does not articulate any cogent basis for challenging the judge’s findings. Nor does it establish a constructive failure to exercise jurisdiction.”[130] (emphasis added)
[130] Wang, [63]–[65].
I accept that the other surgeries referred to in the appellant’s submissions on appeal[131] appeared in the appellant’s submissions before the Member.[132] I accept that the submission was therefore put to the Member.
[131] See appellant’s submissions dated 20 December 2023, [122].
[132] Appellant’s submissions dated 16 November 2023, [21d], [33], [38], [39], [41], [49a] and [49c].
The essence of the appellant’s argument in this ground is that these other non-work-related stressors could also have led to alcohol consumption and were thus relevant from a point of view of causation. Further, because the respondent and his wife had not dealt with these matters in their evidence, the appellant submitted that this reflected adversely on the reliability of their evidence.
I do not accept this argument for the following reasons.
The Member considered the evidence of Dr Chowdary at length.[133]
[133] T 57.11–63.10.
The Member records the following:
“Now, I should say that there was much made of other aspects of causation in terms of there being hip replacements and other conditions such as a toe fusion as being other possibly causative pain areas which have not been addressed.”[134]
[134] T 61.24–28.
The Member then proceeds to examine Dr Chowdary’s evidence noting the other conditions raised by the appellant in this ground[135] before accepting Dr Chowdary’s opinion on causation.[136] The Member further deals with these matters at T 73 where the following appears:
“I note the [appellant] has relied on in submissions in relation to the matter of [Munce] and in this regard it was noted that the - there was ignorance of the treating medical evidence and the various documents, unreliability of lay evidence and ignorance of the multitude of the potentially relevant matters. I’ve dealt with each of these submissions in terms and I’ve not accepted them in terms of the evidence that’s available to me and I found otherwise.
Now, I’ve also in relation to the other potential causative factors as I’ve noted, there have been - said to be not considered, I’ve noted Dr [Chowdary], in my view on balance has considered them and I accept his view in that regard and there was a fair climate, in my view, for Dr [Chowdary] to provide his opinion.
I’ve noted the X-ray report in 2021 which the [appellant] has referred to in relation to hip replacement surgeries; however, I note that Dr - there’s a fair climate for Dr [Chowdary] to have provided his opinion in that regard which I accept and there’s been also notes from - there are hospital records from 2019 in this regard but again as I’ve indicated there was a fair climate for Dr [Chowdary] to provide his opinion in relation to the relationship between the pain and alcohol intake and the [respondent] - the process in that regard that was outlined by Dr [Chowdary] and it was also noted and submitted by the [appellant] Dr Sethi didn’t explain as to how the alterations and consumption and alcohol resulted in a liver condition or the development of the liver condition.”[137]
[135] T 62.3–24.
[136] T 63.7–10.
[137] T 73.15–74.13.
In the Wang sense, the materiality of the appellant’s submission on the other injuries had been dealt with and dealt with directly by the Member. Further, once the Member accepted Dr Chowdary’s opinion, it was not relevant that the respondent and his wife had not specifically addressed these issues. The issues were addressed and decided.
Ground Three has not been established. Ground Three is dismissed.

As to Ground Four

Ground Four can be dealt with in short fashion. The appellant says that once its complaints about the alleged errors in the first three grounds are established, the medico-legal evidence relied upon by the respondent could not be given in a fair climate.[138]
[138] Paric.
The appellant submits:
“… if the above submitted errors of fact are found by the Presidential Member, then the Member’s acceptance of the opinions of [Dr] Sethi and Dr [Chowdary] ought to also be set aside on the basis that his acceptance of same constituted errors of fact.[139]
[139] Appellant’s submissions dated 20 December 2023, [129].
Plainly, I have dismissed Grounds One, Two and Three.
As the success of this ground was expressed to be contingent upon those previous grounds being made out, Ground Four must as a consequence also fail.
Ground Four is dismissed.

DECISION

The Certificate of Determination dated 7 December 2023 is confirmed.

Judge Phillips
PRESIDENT

20 November 2024