State of New South Wales v Barrett - [2019] NSWWCCPD 56

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	State of New South Wales v Barrett [2019] NSWWCCPD 56
APPELLANT:	State of New South Wales
RESPONDENT:	David Barrett
INSURER:	EML Agent for icare Insurance for NSW (TMF)
FILE NUMBER:	A1–5808/18
ARBITRATOR:	Mr M Perry
DATE OF ARBITRATOR’S DECISION:	11 April 2019
DATE OF APPEAL DECISION:	4 November 2019
SUBJECT MATTER OF DECISION:	Drawing of inferences: Luxton v Vines [1952] HCA 19; 85 CLR 352, weight of evidence: Shellharbour City Council v Rigby [2006] NSWCA 308, expert evidence in the Commission: Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 399 and associated authorities, dealing with competing expert evidence: Hume v Walton [2005] NSWCA 148, Eckersley v Binnie (1988) 18 Con LR 1 and associated authorities, procedural fairness and warning parties of an arbitrator’s proposed course: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 231 ALR 592; 81 ALJR 515
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION	Appellant
Mr A Parker, counsel
TurksLegal
Respondent
Mr M Garling, solicitor
Garling & Co Lawyers
ORDERS MADE ON APPEAL:	1. The identity of the appellant is amended to “State of New South Wales”. 2. The Arbitrator’s decision dated 11 April 2019 is confirmed.

INTRODUCTION

The late Jan Barrett (Mrs Barrett) worked as a nurse from 1999. She last worked at Westmead Hospital, and she was promoted to the position of Clinical Nurse Specialist in the Day Surgery Team, from 7 November 2012.[1] She suffered psychological and physical injuries, the occurrence of which is not controversial, described at [6] below. Mrs Barrett died on 30 March 2015, from liver failure. This claim is brought by Mrs Barrett’s husband, David Barrett (Mr Barrett), for the lump sum death benefit applicable pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act), at the date of her death. It is not in issue that Mr Barrett was dependent on Mrs Barrett. It is alleged that Mrs Barrett consumed large amounts of medication, and drank excessive amounts of alcohol, as a result of her injuries, resulting in her death.[2] This appeal is against an arbitral decision in Mr Barrett’s favour. The issue raised goes to the causal connection between the employment injuries and Mrs Barrett’s death.
[1] Mr Barrett’s statement 29/4/18, [3]–[4], Application to Resolve a Dispute (ARD), p 46.
[2] Barrett v State of New South Wales (Western Sydney Local Health District) [2019] NSWWCC 136 (reasons), [1]–[4].
The appropriate identity of Mrs Barrett’s employer, for the purpose of these proceedings, is ‘State of New South Wales’[3] (the appellant). The proceedings are amended accordingly.
[3] Crown Proceedings Act1988 and State of New South Wales v Bishop [2014] NSWCA 354, 14 DDCR 1, [26]–[28].

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by both 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 1998 Act have been met.

THE ARBITRAL PROCEEDINGS AND REASONS

The proceedings were commenced by an ARD registered on 2 November 2018, and were listed for arbitration hearing on 28 February 2019. Mr McManamey appeared for Mr Barrett and Mr Hammond appeared for the respondent. There were no applications to adduce oral evidence or to cross-examine. The Arbitrator recorded the following agreement between the parties:
“It is accepted by the respondent that Mrs Barrett suffered the following injuries within the meaning of the 1987 Act:
An injury to her right knee on 1 September 2008 (the applicant alleges this resulted in her needing to consume large amounts of medication then resulting in damage to her liver).
(a)A psychological injury caused by bullying and or harassment (bullying) of Mrs Barrett by co-workers (also employees of the respondent) between about November 2012 and late July 2013 (the applicant alleges she then drank excessive amounts of alcohol as a result of such injury then resulting in her death).
(b)An injury to her right ankle on or about 15 April 2013.”[4]
[4] Reasons, [4].
The parties lodged approximately 3,400 pages of documentary material in support of their respective cases.[5] The Arbitrator recorded the following agreement between them:
“The above documents were admitted into evidence without objection. It was agreed I would only need to take into account content specifically drawn to my attention. Helpfully, both counsel noted the following.
(a)The material comprises voluminous hospital and medical notes. These had been considered by each of the two medical experts, Dr Nicholas Talley and Dr Siddarth Sethi, engaged by the applicant and respondent respectively. Counsel would therefore not need to go through most of these notes. They agreed that the essential question for determination was which expert opinion should be preferred.
(b)The ARD contains many bank statements. Their purpose is to show Mrs Barrett’s purchases of alcohol increased after the psychological injury. There was also a summary of such purchases. Mr Hammond said there was no issue about the summary correctly recording those purchases – but did not concede such information proved her consumption of alcohol increased after that injury.”[6]
[5] Transcript of Proceedings, Barrett v State of New South Wales (Western Sydney Local Health District) [2019] NSWWCC 136, 28 February 2019, (T) 2.26–28.
[6] Reasons, [8].
The parties relied on the written material they had lodged, counsel addressed, and the Arbitrator reserved his decision. A Certificate of Determination was issued by the Commission on 11 April 2019, accompanied by 18 pages of reasons.
The Arbitrator said he placed “limited weight” on the summary of alcohol purchases, based on transactions for alcohol in Mr and Mrs Barrett’s combined banking records. He described it as “some evidence” of a significant increase in Mrs Barrett’s alcohol consumption after the psychological injury. He referred to Dr Talley’s opinion, based on the liver function tests between 2007 and 2012, that over that time Mrs Barrett drank “intermittently and was binge drinking”. He referred to Dr Talley’s view that, over that period, liver function tests suggested “excessive alcohol consumption but not established cirrhosis”. The Arbitrator described the purchase summary as “consistent” with this.[7]
[7] Reasons, [34]–[37].
The Arbitrator said Mr Barrett’s statement, regarding how much his wife drank prior to November 2012 (when the bullying started) was “wrong”. However, he also rejected the appellant’s submission that there was no difference between how much Mrs Barrett drank before and after the psychological injury. The Arbitrator noted a degree of caution needs to be exercised in relying on histories recorded by medical practitioners, referring to Gulic v O'Neill[8].[9] The Arbitrator accepted a history recorded at Blacktown Hospital that at one point Mrs Barrett said there was a long history of alcohol intake, which Mr Barrett regarded as incorrectly recorded. The Arbitrator noted the evidence of Mr Barrett that he was often required to work long hours and travel at the time, and was not fully aware of how much alcohol Mrs Barrett consumed. The Arbitrator said that Mrs Barrett was “likely hiding the full extent of her drinking”. The Arbitrator said this did not reflect on Mr Barrett’s credit.[10]
[8] [2011] NSWCA 361, [24].
[9] Reasons, [38]–[39].
[10] Reasons, [40].
The Arbitrator referred to histories recorded at Blacktown Hospital during Mrs Barrett’s admission from 10 to 17 December 2014. On 10 December 2014, it was recorded “Since 8y ago drinking 3-4 large glasses of … wine a day, now 4 per day due to recent illness … had 1y off due to PTSD from being attacked at work …”. On 15 December 2014, the history stated “… drinks one bottle of wine per night – 2 years … prior to that – 3-4 drinks per night … using Panadeine Forte 8 tabs per day for 15 years for chronic pain …”.[11]
[11] Reasons, [41].
The Arbitrator referred to the history in the notes on Mrs Barrett’s last admission to Blacktown Hospital on 16 March 2015, “Hx … PTSD … alcohol abuse for 8 years and on-going …”, and later on the same day “? Liver cirrhosis … ? cause ? secondary to EtOA … history of heavy alcohol since 2 years ago but husband cannot give details as he has not been paying close attention …”. The Arbitrator observed Mrs Barrett was very unwell at this time, which would have also been stressful for Mr Barrett, so caution needed to be exercised regarding the histories in March 2015. He noted it was not clear who provided these histories although thought it likely it was Mr Barrett, in conjunction with the earlier history in December 2014.[12]
[12] Reasons, [42].
The Arbitrator said he was comfortably satisfied there was an increase in Mrs Barrett’s alcohol use after the psychological injury, noting the bullying started in November 2012 and continued to July 2013. He gave specific reasons for this:
(a)    acceptance of Dr Talley’s opinion that before the psychological injury Mrs Barrett’s drinking was “intermittent and more in the nature of binge drinking”;
(b)    although of limited weight, the alcohol purchase summary was consistent with this;
(c)    acceptance of Mr Barrett’s evidence that after the psychological injury he noticed a significant increase in Mrs Barrett’s drinking;
(d)    the histories recorded at Blacktown Hospital during the 2014 admission (“alcohol: 5-7 x week for past 18/12 … normal intake – 7-10 std drinks per day”) and the 2015 admission (heavy EtOH intake over the last 18-24 months as a result (of PTSD)”) were consistent with this, and
(e)    the lack of any significant reference to alcohol in clinical or medical records before 2014.
The Arbitrator said the consumption noted on the 2014 hospital admission, 7 to 10 standard drinks per day, on five to seven days per week, was likely “at least significantly higher than that before [the psychological] injury”.[13] The histories taken on the 2014 and 2015 admissions, of heavy alcohol intake over a time from 18 to 24 months previously, were not matters taken into account by Dr Sethi. The history recorded by Dr Bertucen on 2 September 2014 put consumption at a lower figure, three to four drinks per night, but did refer to an increase in alcohol to allay anxiety and assist in sleep. The Arbitrator noted Mrs Barrett was generally likely to underestimate her alcohol consumption.[14]
[13] Reasons, [44]–[45].
[14] Reasons, [46]–[49].
The Arbitrator noted there were difficulties with the report of Mr Rees, a psychologist who treated Mrs Barrett. His history was of no excessive drinking prior to the bullying, when she started to use alcohol to cope with “the acute stress reaction and PTSD”. Mr Rees said the full extent of Mrs Barrett’s drinking was “not always apparent to myself or to her husband”. He considered the work injury was a substantial contributing factor to the excessive use of alcohol and subsequent liver problems. The Arbitrator said Mr Rees’ understanding of the alcohol intake prior to the bullying was “not correct”. However, Mr Rees said there was a “significant deterioration in emotional function” following the bullying. This was not inconsistent with increased alcohol consumption after the psychological injury, and could be explained by Mrs Barrett’s pattern of underestimating or hiding her intake. The Arbitrator said the same could be said of the history recorded by Dr Vickery.[15]
[15] Reasons, [50]–[52].
The Arbitrator referred to Dr Co’burn, Mrs Barrett’s general practitioner. He noted Dr Co’burn’s records only spanned a period from January 2013 to March 2015, and that there was “little reference to alcohol”. On 18 August 2014, the doctor noted elevated liver function test results, and that Mrs Barrett was not to have alcohol or paracetamol. The doctor later reported that “excessive consumption of alcohol since the workplace injury was a substantial factor in the serious liver condition which resulted in her death”. The Arbitrator regarded this as consistent with his view that alcohol consumption “significantly increased since her psychological injury”.[16]
[16] Reasons, [53]–[54].
The Arbitrator then turned to the views of Dr Talley, the specialist on whose opinion Mr Barrett relied. Dr Talley summarised records from Blacktown Hospital and other reports going back to June 2007. There were earlier histories that included “depression, agitation, and delusion”. The past history, before the workplace psychological injury, included thyroiditis, chronic back pain (not work related) and PTSD. Records of admissions to Blacktown Hospital in July 2008, January 2009 and July 2010 included mental health episodes, and earlier “work-related problems in the nature of victimisation and not coping”. Dr Talley referred to the available liver function test results. He referred to the histories on admission to Blacktown Hospital in 2014 and 2015.[17] The Arbitrator recorded Dr Talley’s view “There is no doubt … Ms Barrett started to drink large amounts of alcohol after her promotion and subsequent interpersonal problems after 2012 … possible … she had a fatty liver before there is no record in the files …”.[18] The doctor, referring to the liver function test results, said he believed that Mrs Barrett had been a binge drinker, the results “fluctuated, being ‘quite good at times’”. Dr Talley said the test results “suggest excessive alcohol consumption but not established cirrhosis”.[19]
[17] Reasons, [55]–[63].
[18] Reasons, [66].
[19] Reasons, [72].
The Arbitrator set out Dr Talley’s opinion at some length. He summarised part of the doctor’s ultimate opinion on causation, including:
“… probably had acute hepatic necrosis from paracetamol superimposed on the fatty liver from obesity and a combined fatty liver and an inflamed liver from binge drinking … do not think … she developed established cirrhosis until about 2013 or 2014 … hard to put a date on it … this was a gradual process and probably not terribly severe until she really started to drink very heavily in 2014. Whether she would have died anyway had she stopped drinking in 2014 is something I cannot give an opinion on, but looking at some of her results in 2012, I believe her liver disease was potentially reversible had she abstained from alcohol … the high GGTP suggests a high alcoholic intake which, combined with paracetamol overuse and morbid obesity, would have led to progressive liver damage … was drinking sufficient alcohol in 2007 well before her promotion to produce liver damage … the psychological injury … was the final straw … developed severe liver failure very quickly in 2014-2015 … do not agree with Dr Sethi that she had well established chronic liver disease before 2012 but I believe she was on the way to it from at least 2007 … almost certain she increased alcohol and paracetamol intake … accelerating death … before 2012 [s]he had a reversible fatty liver but was drinking excess alcohol probably in binges and may have had some fibrosis …”.[20]
[20] Reasons, [73].
The Arbitrator said that he found the opinion of Dr Talley persuasive, for which he gave reasons. He said the doctor took “much care in going through the history, including hospital and medical notes and reports and the applicant’s statement”; the doctor “considered both sides of this complex question”. He said Dr Talley did not ultimately accept Mr Barrett’s evidence about Mrs Barrett’s drinking prior to the psychological injury, but based his views on:
“… a careful reading of all LFT’s, in particular the GGTP readings, and also taking into account the histories of alcohol consumption at [Blacktown Hospital] in December 2014 and March 2015. He also takes into account her psychiatric issues prior to 2012.”[21]
[21] Reasons, [74].
The Arbitrator referred to the “fluctuating GGTP readings between 3 April 2017 [sic, 2007] and 2014”, which in 2014 were “extremely high at over 2,000”. Dr Talley said such a reading was a feature of alcohol excess, which could also be due to other causes, “but rarely to such a degree”. The doctor relied also on the AST readings in 2014. The Arbitrator referred to the way in which Dr Talley’s report “balances his assessment of Dr Sethi’s report”. The Arbitrator said Dr Talley fairly concedes “the accuracy of most of what Dr Sethi says”. The Arbitrator noted Dr Talley’s opinion that he did not think there was “established cirrhosis until about 2013 or 2014”, although it was hard to put a date on it. He referred to Dr Talley’s view that he thought it was a “gradual process and probably was not terribly severe until she really started to drink very heavily in 2014”. The Arbitrator also noted Dr Talley’s opinion that he did not think paracetamol use, relevant to employment with the respondent, was causative of death. The Arbitrator accepted this, and said he was not satisfied paracetamol use with respect to any of the three work related injuries, caused death. The Arbitrator also noted the opinion of Dr Vickery, a psychiatrist qualified by the appellant’s insurer, and said Mrs Barrett “was certainly going through a difficult time in 2013”.[22]
[22] Reasons, [75]–[78].
The Arbitrator dealt with the reports of Dr Sethi, the medicolegal specialist relied on by the appellant. The Arbitrator described Dr Sethi as taking “a reasonably good history”, recorded in his first report. The doctor noted the statement of Mr Barrett dealing with Mrs Barrett’s drinking levels prior to the bullying starting in 2012. Dr Sethi described Mrs Barrett as drinking heavily for several years before that, and said it was “false and misleading to argue otherwise”. The doctor took issue with Mr Barrett’s ability to estimate Mrs Barrett’s drinking levels in the years before 2012, when he was unable to estimate her alcohol intake at Blacktown Hospital in March 2015, as he had not been “paying close attention”. The doctor said that the recommended safe limit for females was two drinks per day. The history taken in December 2014 was of four drinks per day for eight years, so Mrs Barrett’s drinking was “clearly excessive for several years”. The doctor described Mr Barrett’s “claim” that the history was inaccurate and they had asked for it to be corrected, as “very improbable and clearly contradicted by the evidence”.[23]
[23] Reasons, [79].
The Arbitrator said he accepted it was improbable that Mrs Barrett did not give a history of excessive drinking for several years. He continued, saying the way in which Dr Sethi expressed his opinion was “concerning”. He referred to a “fixed or inflexible, and at times argumentative, approach to his dismissal of the claim”. He referred to Dr Sethi’s approach to whether there had been excessive drinking over several years, in the presence of a two drink recommendation for safe drinking levels for women, where the doctor said it “completely disproves Mr Barrett’s claims”. The Arbitrator described this as only looking at “one side of the story”. He said the histories in 2014 and 2015 showed excessive drinking in the past, but also said it had increased to some extent (2014 history) and was pointed out as being heavy over only the previous 18 months to two years (2015 history). The Arbitrator noted a comment by Dr Sethi that the “claim that she only started drinking 2 years before her death is false and should be completely disregarded”.[24]
[24] Reasons, [80]–[82].

The Arbitrator said that Dr Sethi’s approach did “not fully engage with [Mr Barrett’s] claim”. Dr Talley ultimately did not accept that Mr Barrett was right about the drinking habits of his wife, prior to the psychological injury. However, the doctor still discerned “at least a likelihood that her intake of alcohol substantially increased after the psychological injury, and became very heavy in 2014”. Dr Talley provided cogent reasons for this. The Arbitrator said that Dr Sethi did “not go into that detail”. Dr Sethi said Mrs Barrett “would have developed chronic liver disease regardless of whether she had worked in that workplace or not. It is false and misleading to argue otherwise.”[25]
[25] Reasons, [83].
The Arbitrator said that he had found there was an increase in Mrs Barrett’s drinking after the psychological injury. He said “[t]he failure of Dr Sethi’s report to acknowledge the possibility of this is also a reason I find the evidence of Dr Talley more persuasive.” The Arbitrator referred to Dr Sethi’s report dated 16 October 2018, in which he was asked to comment on Dr Talley’s report. The Arbitrator quoted the following passage, in which Dr Sethi referred to Dr Talley’s view that the psychological injury was the final straw:
“… another utterly misleading and unreasonable comment that should be completely disregarded. It should be noted that her alcohol intake (dating back to at least 2007) and severe morbid obesity had been clearly present for several years prior to the psychological injury. Hence, the psychological injury did not play a significant role in causing her death”.[26]
[26] Reasons, [85].
The Arbitrator dealt with this, setting out the reasoning that led to his conclusion on causation:
“86. Again, putting aside the strident fashion in which the opinion is expressed, the reasoning for dismissing Dr Talley’s opinion in this regard is, again, the fixed and general position of Dr Sethi that Mrs Barrett’s alcohol intake had been heavy for several years. This opinion does not attempt to delineate the levels of drinking in any way; remembering that Dr Talley has accepted there was heavy drinking prior to the psychological injury – but in an intermittent and binge-type fashion. Against that background, Dr Talley says that the heavy and constant drinking after the psychological injury from late 2012 into 2014 caused the GGTP to spike massively (2156) by 2014. In this way, Dr Talley’s opinion has a basis which is more persuasive to me.
87. That Mrs Barrett was obese, and that paracetamol contributed to the death, is accepted by Dr Talley. However, this is a medico-legal analysis. Section 25 of the 1987 Act provides for the compensation payable ‘if death results from an injury’. I need to apply the relevant principles in cases such as Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 ((Kooragang) see [89] below) in deciding, after a careful analysis of the evidence, whether Mrs Barrett’s death did result from an injury.
88. I find the death did result from the psychological injury. While there were multifactorial causes in Mrs Barrett’s death, it would not have occurred – at the time it did on 30 March 2015 – were it not for the substantially increased alcohol intake after the psychological injury.
89. I also find that this increased drinking was because and as a result of her psychological injury. For example, the [Bankstown Hospital] note on 16 March 2015 refers to ‘Heavy etoh intake last 18/24/12 … result of PTSD … (emphasis added)’. I do not utilise the emphasised part on the basis that it is an opinion from someone, including the applicant. But it is consistent with the applicant’s case, and it is supported, albeit in retrospect, by Dr Co’burn and Mr Rees. And applying the relevant test referred to in cases such as Kooragang, it makes common-sense to me, particularly taking into account the history Dr Vickery took above. In any event so much was not, ultimately, the subject of debate between the parties. The causation question was essentially fought on the basis of which of the medical opinions of Drs Talley or Sethi was to be preferred – rather than there being any real contest about whether the psychological injury was sufficiently severe to cause Mrs Barrett to turn to alcohol. The case for the respondent was rather put on the basis that the heavy drinking really did not change, after that injury, from what had been occurring many years before.”[27]
[27] Reasons, [86]–[89].
The Arbitrator referred to, and quoted from, Dr Sethi’s third report, dated 20 December 2018.[28] The report expressed a view that GGT (in liver function tests) “provides a rough but not precise or particularly accurate correlation with alcohol intake”. He said GGT can fluctuate. He said the GGT rise from 2012 to 2014 “likely reflects progressive worsening of her liver disease over time from obesity, alcohol and paracetamol consumption”. He said the drop in 2012 “likely reflects normal fluctuation”. The Arbitrator described this passage as one that “finally engages, to some extent, with Dr Talley being impressed by the fluctuation in the LFT’s, in particular the GGT reading in 2014”. The Arbitrator said the only reason Dr Sethi gave for his view that the fluctuation was “likely normal” was that Mrs Barrett was “heavily drinking for several years” prior to the workplace injury. The Arbitrator said he preferred the opinion of Dr Talley on this topic, it engaged with the specifics of the case, rather than dealing in generalisations, that Mrs Barrett had been heavily drinking for several years before the work injury. He said Dr Sethi’s opinion on this issue “fails to acknowledge, let alone engage in any detailed analysis of, the extent to which there may have been some increase in alcohol intake after the injury”.
[28] Application to Admit Late Documents (AALD) 21.2.19, pp 251–253.
The Arbitrator made findings that:
(a) Mrs Barrett sustained psychological injury within the meaning of the 1987 Act as a result of the nature and conditions of her employment with the respondent (involving bullying and harassment of her by other employees of the respondent between November 2012 and 22 July 2013 (deemed date of injury being 22 July 2013) , and
(b) Mrs Barrett died on 30 March 2015 as a result of the psychological injury.
The Arbitrator awarded $517,400, the appropriate lump sum pursuant to s 25 of the 1987 Act, together with interest under s 109 of the 1998 Act on the whole sum from 2 November 2018 to the date of his order.

GROUNDS OF APPEAL

The following grounds of appeal are raised:
(a)    the Arbitrator erred in fact and discretion in placing weight on the evidence listed below:
(i)the bank records;
(ii)Mr Barrett’s belief, and
(iii)the medical evidence (Ground No. 1)
(b)    the Arbitrator erred in law and discretion in accepting Dr Talley’s opinion and rejecting Dr Sethi’s opinion (Ground No. 2), and
(c)    a denial of procedural fairness (Ground No. 3).

THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)

Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, 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.”
In Raulston v Toll Pty Ltd,[29] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[30] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[31]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)    An Arbitrator, 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 [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’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 Arbitrator was wrong.
(c)     It may be shown that an Arbitrator 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 [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[32]
[29] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[30] (1966) 39 ALJR 505, 506.
[31] [1996] HCA 140; 140 ALR 227.
[32] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[33] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[34]
“… 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.”[35]
[33] [2017] NSWWCCPD 5, [67].
[34] [2001] FCA 1833, [28].
[35] Raulston, [20].
In Northern NSW Local Health Network v Heggie[36] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.

GROUND NO. 1

[36] [2013] NSWCA 255; 12 DDCR 95, [72].

Appellant’s submissions

The appellant submits the weight the Arbitrator attached to evidence, falling within the following areas, led the Arbitrator to err in his approach to causation. The appellant makes the following submissions under the nominated sub-headings.

The bank records

It is submitted the Arbitrator accepted the summary of the records as evidence that:
(a) the bank accounts were mixed (presumably shared): reasons, [35];
(b) there was a “significant increase” in alcohol purchases by the deceased after the psychological injury: reasons, [35], and
(c) there was a pattern of intermittent drinking and binge drinking prior to 2012: reasons, [36] to [37].
The appellant submits the accounts were in the name of Mr Barrett, there was no relevant evidence as to the patterns of spending between the couple. The Arbitrator inferred the alcohol spending was by the deceased. The appellant submits the circumstances were insufficient to give rise to a “definite conclusion” that the purchases were made by the deceased, referring to Fuller-Lyons v New South Wales.[37] The appellant submits the Arbitrator rejected Mr Barrett’s evidence regarding his wife’s pre and post injury drinking on the basis he did not witness it or because the deceased hid it from him. If the inference could be drawn the weight would be minimal. The bank records did not show cash purchases, or what was bought. The records did not date back to 2007, so they could not “endorse” Dr Talley’s opinion relating to the intermittent and binge drinking patterns. Absent the appropriate evidentiary foundation, the banking records were of no weight, and it involved error to rely on them.[38]
[37] [2015] HCA 31; 89 ALJR 824 (Fuller-Lyons).
[38] Appellant’s submissions, [22]–[32].

Mr Barrett’s belief regarding alcohol consumption

The appellant submits the Arbitrator accepted that Mrs Barrett increased her alcohol consumption from November 2012, based on Mr Barrett’s belief. Limitations on Mr Barrett’s ability to observe such things was noted in the reasons. Mr Barrett had significant work commitments, did not pay close attention to his wife’s use of alcohol, and Mrs Barrett’s behaviour regarding such consumption was deceptive. It is submitted that critical parts of his evidence were rejected. The appellant submits to the extent to which Mr Barrett held beliefs on the above topic, it lacked any evidentiary weight. The appellant submits the acceptance or use of such evidence was erroneous.[39]
[39] Appellant’s submissions, [33]–[37].

The medical evidence and patterns of alcohol consumption

The Arbitrator found alcohol use increased in the two years prior to Mrs Barrett’s death. This is submitted to be erroneous, the appellant refers to the following:
(a) The Arbitrator based this in part on medical histories. It cannot be established who the histories came from. If from Mr and Mrs Barrett, neither was a reliable witness. Mr Barrett could not deal with the topic of his wife’s alcohol consumption for reasons given at [36] above. Mrs Barrett was found to have consciously hidden the level of her alcohol use from her medical practitioners.[40] The Arbitrator found there was a lack of significant reference in medical records to alcohol before 2014. This is contrary to substantial evidence. A lack of reference in the general practitioner records to alcohol supports the proposition that Mrs Barrett was an unreliable historian when reporting to her general practitioner. The same difficulty is submitted to affect the reports of Mr Rees, the psychologist and Dr Co’burn.[41]
(b) It is submitted that Dr Co’burn’s report dated 9 June 2016 cannot support the factual finding that Mrs Barrett increased her alcohol consumption since January 2013 (made in the reasons at [54]). Dr Co’burn had limited expertise on the topic, and did not identify his assumptions or reasoning process.[42]
(c) Dr Talley’s opinion could not be accepted, it was based on an incorrect assumption. The appellant refers to its submissions on Ground No. 2.[43]
[40] Appellant’s submissions, [42]–[45].
[41] Appellant’s submissions, [46]–[49].
[42] Appellant’s submissions, [50]–[51].
[43] Appellant’s submissions, [52]–[53].

Mr Barrett’s submissions

Mr Barrett’s submissions state the Arbitrator did not find any single piece of evidence determinative, he reached his conclusion on the basis of “the accumulated evidence”. The appellant’s complaint is submitted to be against the rejection of the conclusion for which it depended. The Arbitrator’s conclusion was based on Mr Barrett’s statements, the summary of bank records, the hospital records and the records of the GGT readings.

The bank records

Mr Barrett submits that, on the basis of the bank records, there were “very few alcohol purchases prior to July 2013 and a large number of purchases after that date”. Mr Barrett’s evidence was that in the lead up to his wife’s death, he observed her “drinking more frequently, drinking more wine and [she] moved to drinking 2 litre flagons of Sweet Sherry”. The Arbitrator treated the summary of bank records “with some care”. He acknowledged it was uncertain what part of the purchases were made by Mrs Barrett. Mr Barrett submits the Arbitrator’s inference, that it was implicit from Mr Barrett’s statement that Mrs Barrett made most of the purchases, was available and correct.[44]
[44] Mr Barrett’s submissions, [10]–[13].
The Arbitrator stated that he would only give limited weight to the bank records.[45]
[45] Mr Barrett’s submissions, [14].
Mr Barrett submits some of the points the appellant now seeks to rely on in this appeal were not submitted on by the appellant before the Arbitrator. The appellant, at the arbitration, raised an issue going to the dependability of such records where a person is seeking to hide their drinking. Mr Barrett submits that the appellant did not, at that hearing, suggest it was necessary to have further evidence of the transactions (from Mr Barrett or going to what was purchased), or that it was necessary that such records date back to 2007. Mr Barrett submits the appellant did not, at the arbitration hearing, submit the records were of no weight. He submits the accuracy of the records was accepted by the appellant at the arbitration hearing. The Arbitrator did not err in the limited weight he placed on the records.[46]
[46] Mr Barrett’s submissions, [16]–[17].

Mr Barrett’s belief regarding alcohol consumption

The Arbitrator did not accept Mr Barrett’s evidence regarding how much Mrs Barrett was drinking before November 2012. Mr Barrett submits the Arbitrator correctly stated that he could fail to accept the evidence of a witness in one regard, but accept it on other issues. Mr Barrett gave unchallenged evidence of a significant increase in his wife’s drinking after the psychological injury. He thought she became less competent at concealing her drinking. He observed increased drinking, more empties, and increased alcohol purchases in the banking records. Mr Barrett submits this was unchallenged evidence, which the Arbitrator was entitled to accept.[47]
[47] Mr Barrett’s submissions, [18].

The medical evidence and patterns of alcohol consumption

Mr Barrett’s submissions note the appellant’s submission that there was error in relying on histories in hospital notes. Mr Barrett says that without this, there was no evidence of a link between alcohol and the abnormal GGT results dating back to 2007. They could have been due to paracetamol. Mr Barrett submits it is hard to identify the specific errors alleged on this topic. The appellant’s submissions repetitively allege error in accepting pieces of evidence, without properly identifying why the Arbitrator’s analysis is wrong. The Arbitrator carefully examined the medical evidence. The hospital histories in 2014 and 2015 were consistent with an increase in alcohol intake over the previous two years. The Arbitrator was mindful of, and referred to, the caution required in dealing with histories from treating doctors, and expressly considered who might have given the histories. There was no error in the conclusion he reached.[48]
[48] Mr Barrett’s submissions, [19]–[21].
There were conflicting opinions from Dr Talley and Dr Sethi. The Arbitrator had regard to the blood tests and Dr Talley’s consideration of them, and concluded (consistent with Dr Talley) that Mrs Barrett’s drinking prior to the psychological injury was intermittent and binge drinking. Dr Talley was aware of the history of drinking before the psychological injury. The Arbitrator’s reasons, for why he found Dr Talley’s opinion persuasive, are set out at [74] to [77] of the reasons. None of these are challenged on this appeal, the appellant simply challenges the conclusion, that there was an increase in drinking after the psychological injury. Mr Barrett submits that no reason is advanced for why it was erroneous to accept Dr Talley’s opinion.[49]
[49] Mr Barrett’s submissions, [22]–[23]

Appellant’s submissions in reply

The appellant makes the curious submission that, when it submitted to the Arbitrator that the alcohol abuse was longstanding, it was implicit in this that the banking records were submitted to be unreliable and not to be accepted. It submits that it did not concede the accuracy of the banking records at the arbitration hearing. The appellant submits that, when viewed in context, what was said on the appellant’s part at T58.28 to 59.5 was not a concession that there was an increase in alcohol consumption after the psychological injury. The appellant submits that Mrs Barrett’s alcohol consumption was medically significant from 2007, so the bank records could only provide a “guide/comparison” if they went back to that time. It submits that “[t]he misuse of the bank records clearly arises on appeal.”[50]

Consideration

[50] Appellant’s submissions in reply, [2]–[11].

The bank records

Mr Barrett stated that his wife was a moderate consumer of alcohol prior to her psychological injury.[51] The Arbitrator described this assessment as wrong, having regard to the medical evidence of both Dr Talley and Dr Sethi. The Arbitrator made it clear that his rejection of Mr Barrett’s evidence on this point did not mean it was unacceptable on other issues;[52] the evidence of a witness can be accepted on one point, but not others.[53] The Arbitrator noted there were reasons why Mr Barrett could have been under a misapprehension about his wife’s drinking levels; he worked long hours, he travelled for work, and his wife was likely hiding the full extent of her drinking.[54] The appellant, submitting before the Arbitrator, made it clear that although it contended Mr Barrett’s evidence was wrong on this point, it did not argue there was any more general issue as regards Mr Barrett’s credit.[55]
[51] Mr Barrett’s statement 30.3.15, [5], ARD p 46.
[52] Reasons, [38].
[53] State of New South Wales v Hayden [2017] NSWWCCPD 43, [85], applying Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167 at [30] and Chanaa v Zarour [2011] NSWCA 199 at [86].
[54] Reasons, [40].
[55] T 17.27–18.6.

The relevant bank account was operated jointly by Mr and Mrs Barrett. It was possible that expenditure from the account could have been made by either of them. The record covered only transactions made through the account, as opposed to cash transactions. It did not differentiate between whether such purchases were consumed by one or both of the account holders (or indeed, by others). The Arbitrator was aware of these limitations, which he referred to.[56]
[56] Reasons, [34]–[35].
Mr Barrett stated that following the bullying Mrs Barrett drank alcohol “much more frequently” and often by herself. She started drinking two litre flagons of sweet sherry.[57] Mr Barrett stated:
“After Jan passed away I discovered through looking at bank account history statements that Jan’s drinking problem began approximately in July 2013. It appears that Jan did not stop buying and excessively consuming alcohol until shortly before her death.”[58]
[57] Mr Barrett’s statement 30.3.15, [8]–[9].
[58] Mr Barrett’s statement 30.3.15, [11].
The Arbitrator, after referring to the limitations of this bank evidence, largely for the reasons discussed above, said it was “implicit from [Mr Barrett’s] statement that Mrs Barrett was essentially making the purchases for herself”.[59] Logically, this must be correct. Mr Barrett described the statements as leading to his discovery of his wife’s drinking problem commencing in July 2013. He could not have made such a “discovery” on the basis of purchases made by him, or to any significant extent consumed by him. His “discovery” was related to his wife’s drinking, so must have related to purchases made, at least substantially, by her for herself. This is a separate question to when the excessive drinking developed, which is referred to above. The appellant approaches this point on the basis the Arbitrator drew an inference, which the appellant argues was not properly available.
[59] Reasons, [35].
In Luxton v Vines[60] the plurality quoted the following from Bradshaw v McEwans Pty Ltd,[61] describing it as “the test to be applied”:
“In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise.”[62] (excluding references)
[60] [1952] HCA 19; 85 CLR 352 (Luxton).
[61] (1951) 217 ALR 1 (Bradshaw).
[62] Luxton, [8].
In Seltsam Pty Limited v McGuiness Spigelman CJ, after referring to the test in Luxton, said:
“Causation, like any other fact can be established by a process of inference which combines primary facts like ‘strands in a cable’ rather than ‘links in a chain’, to use Wigmore’s simile.”[63] (excluding references)
[63] [2000] NSWCA 29; 49 NSWLR 262, [91].
In Flounders v Millar Ipp JA said:
“It remains necessary for a plaintiff, relying on circumstantial evidence, to prove that the circumstances raise the more probable inference in favour of what is alleged. The circumstances must do more than give rise to conflicting inferences of an equal degree of probability or plausibility. The choice between conflicting inferences must be more than a matter of conjecture.”[64]
[64] [2007] NSWCA 238, [35].
Fuller-Lyons is not inconsistent with the above. The question was whether the inference was available on the probabilities. It was (as the Arbitrator said) implicit in Mr Barrett’s statement that “Mrs Barrett was essentially making the purchases for herself”. That inference was properly available.
The balance of the appellant’s submissions on this aspect of Ground No. 1 essentially go to weight. The appellant refers to the matters described at [48] above. The Arbitrator was aware of these limitations regarding the weight of the banking records, and specifically referred to it in the reasons at [35]. He described the banking records as “still some evidence” of an increase in Mrs Barrett’s drinking after the psychological injury. It is necessary that evidence be considered as a whole.
Mr Barrett’s statement dated 29 April 2018, in a passage at [5], described his wife as being a moderate drinker before her psychological injury. This aspect of his evidence was not accepted by the Arbitrator for reasons referred to at [47] above. The Arbitrator made it clear there were factors that explained Mr Barrett’s wrong conclusion on this topic,[65] and that the rejection of his evidence on the specific topic did not reflect on Mr Barrett’s credit in a more general sense. The information in the statement at [8] refers to issues of causation which would not be within Mr Barrett’s expertise. It does not appear the Arbitrator relied on that material. The evidence in paragraphs [9] to [10] of the statement was, on its face, based on Mr Barrett’s personal observation. He said that from November 2012 his wife drank more wine, then “moved on to two litre flagons of Sweet Sherry”. He said that he would find empty bottles and flagons, he knew his wife would hide her drinking from him. The Arbitrator accepted this evidence,[66] and it was open to him to do so.
[65] Reasons, [40].
[66] Reasons, [44], 3^rd dot point.
The Arbitrator, in the reasons at [44], set out multiple areas of the evidence which supported his conclusion that there was an increase in Mrs Barrett’s alcohol intake from November 2012, when the bullying started, until her death. These included his acceptance of Dr Talley’s evidence that, before November 2012, Mrs Barrett’s drinking was “intermittent and more in the nature of binge drinking”. The Arbitrator described the summary of alcohol purchases (from the banking records) as “of relatively limited weight”, and said it was consistent with Dr Talley’s opinion on that issue. This was the limited role that the banking records assumed in the reasoning process. The Arbitrator also relied on the issue of whether there was an increase in Mrs Barrett’s alcohol use, on the history recorded on 16 March 2015 at Blacktown Hospital, of “heavy EtOH intake over the last 18–24 months as a result (of PTSD)”. The Arbitrator relied on the lack of any significant reference to alcohol consumption or problems in the clinical records before 2014.
In Shellharbour City Council v Rigby, Beazley JA (Ipp and Basten JJA agreeing) said:
“Questions of the weight of evidence are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of evidence that some error must have been involved.”[67]
[67] [2006] NSWCA 308, [144].
The weight the Arbitrator gave the evidence of the banking records was to regard them as generally corroborative of Dr Talley’s opinion, that Mrs Barrett’s alcohol consumption was greater after November 2012. This was, in any event, generally consistent with the histories recorded at Blacktown Hospital on 12 December 2014[68] and 16 March 2015.[69] In saying this, I am cognisant of the histories recorded at Blacktown Hospital in December 2014 (“[s]ince 8 y ago drinking 3–4 large glasses of white wine a day, now 4 per day due to recent illness”),[70] and on 16 March 2015 (“Alcohol abuse for 8 years and ongoing”).[71] This was not necessarily inconsistent with how Mr Barrett’s case was ultimately presented, on the basis of Dr Talley’s opinion. Mr Barrett’s medical case accepted that there had been excessive alcohol use dating back to 2007, but argued it had increased from November 2012, leading to death.[72]
[68] ARD, p 241.
[69] ARD, p 85.
[70] ARD, p 216.
[71] ARD, p 57.
[72] ARD, p 781.
The banking records dated back to 2010. Mr Barrett submits the appellant’s argument that the records were without weight as they did not date back to 2007, was not pursued by the appellant at the arbitration hearing, and it should not be permitted on appeal. The appellant submits that because it challenged whether the alcohol abuse was longstanding, this implicitly challenged the reliability of the banking records. It did not. This is a valid basis for why this argument should not be allowed on appeal.[73] In any event, there is no rational submission dealing with why the records were deprived of all weight, because they did not extend back to 2007. They were relevant to Mrs Barrett’s alcohol consumption from 2010 to her death in 2015. This was relevant to one of the major areas of controversy in the case, whether the consumption increased after November 2012, when bullying started after Mrs Barrett received a promotion.
[73] Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481 (Metwally), [7].
It was open to the Arbitrator to draw the inference which he did, that Mrs Barrett was essentially making the alcohol purchases referred to in the banking records for herself. The weight given to this evidence was largely a matter for the Arbitrator. There was a significant increase in the level of purchases from liquor outlets after November 2012. It was open to the Arbitrator to adopt the approach he did, treating this evidence as of limited weight, but generally confirmatory of the view reached by Dr Talley regarding Mrs Barrett’s levels of alcohol consumption over time.

Mr Barrett’s belief regarding alcohol consumption

The appellant submits Mr Barrett’s evidence regarding his wife’s drinking before the psychological injury was held to be wrong. The appellant refers to Mr Barrett’s work commitments (travelling and long hours), his lack of close attention to his wife’s use of alcohol, and Mrs Barrett hiding the extent of her drinking. It submits it was “not open to accept [Mr Barrett’s] belief at all”, it “lacked any evidentiary weight”, and its use was erroneous.[74]
[74] Appellant’s submissions, [33]–[37].
When the appellant made submissions going to Mr Barrett’s statement, and his evidence about the level of Mrs Barrett’s alcohol consumption, it did so on the basis that the appellant was not “suggesting there’s a credit issue”.[75] On a fair reading of the appellant’s submissions, it did submit to the Arbitrator that Mr Barrett’s evidence regarding his wife’s alcohol consumption, both before and after the psychological injury, was not reliable. The appellant’s counsel, at the arbitration hearing, correctly referred to the passage of Dr Sethi’s report dated 26 August 2018, at the bottom of page 4, as “more in the nature of a submission than an opinion … it’s a submission that I adopt”.[76] That “submission”, after referring to factors such as Mr Barrett’s travel and work commitments, said:
“Mrs Barrett could have very easily consumed excessive alcohol for several years without [Mr Barrett] knowing. I fail to see how he can correctly state that her heavy alcohol intake only occurred for the last two years …”.[77]
[75] T 17.29–30.
[76] T 23.13–21.
[77] Dr Sethi’s report 26.8.18, Reply, p 22.
The Arbitrator found he was “comfortably satisfied there was an increase in Mrs Barrett’s alcohol use after the psychological injury – or in the period of about two years before her death”. The Arbitrator referred to a number of factors that supported his view on this. One factor was his acceptance of Mr Barrett’s evidence that he noticed “a significant increase in the extent of her drinking after the psychological injury”. The Arbitrator said:
“She was probably trying to hide the extent of her drinking from him for a long time, but became less competent at such deception after the psychological injury when her drinking became heavier.”[78]
[78] Reasons, [44].
The Arbitrator’s rejection of Mr Barrett’s evidence, about his wife’s drinking prior to the psychological injury, was based on specific matters. Mr Barrett worked long hours, he was away travelling for work, and he did not pay close attention to her drinking.[79] The appellant did not seek to argue that Mr Barrett was being untruthful, rather that he was simply wrong in his perception of how much Mrs Barrett drank, bearing in mind the restrictions on his opportunity for accurate observation.[80]
[79] Reasons, [40].
[80] T 17.27–18.7.
Mr Barrett’s evidence of the later increase in his wife’s alcohol consumption referred to specific aspects of her drinking habits that he noticed had changed. He referred to the fact that wine became too expensive so “she moved on to two litre flagons of Sweet Sherry”. He found “empty bottles and flagons” that he would question her about. He also noticed the increasing number of apparently alcohol related transactions in the bank records.[81] In accepting Mr Barrett’s evidence about the increase in his wife’s drinking, the Arbitrator said that Mrs Barrett “was probably trying to hide the extent of her drinking from him for a long time, but became less competent at such deception after the psychological injury when her drinking became heavier”. The appellant did not challenge Mr Barrett’s truthfulness, and these changes observed by Mr Barrett were apparently plausible descriptions of things he had noticed. The Arbitrator correctly noted that he “was not required to accept the whole of the evidence of one witness”.[82] The appellant submits that, given the rejection of Mr Barrett’s evidence regarding his wife’s earlier drinking, “it was not open to accept his belief at all”, and his belief “lacked any evidentiary weight”. The appellant’s submissions on this issue are wrong and are rejected. It was open to the Arbitrator to accept the evidence of Mr Barrett on this issue. The Arbitrator explained why he did not accept the evidence about Mrs Barrett’s drinking prior to November 2012, but accepted the evidence related to the subsequent period.
[81] Mr Barrett’s statement 29.4.18, [9]–[11], ARD, p 47.
[82] Reasons, [38].
A further factor which was different, regarding acceptance of Mr Barrett’s evidence on the later drinking, was the associated medical evidence. In rejecting the evidence about Mrs Barrett’s moderate drinking prior to the psychological injury, the Arbitrator said (accurately) that this evidence was inconsistent with the medical evidence from both Dr Talley and Dr Sethi.[83] Mr Barrett’s evidence regarding the increase in Mrs Barrett’s alcohol consumption, from November 2012, was consistent with the medical evidence of Dr Talley, which the Arbitrator accepted.[84]
[83] Reasons, [38].
[84] Reasons, [44].
The appellant’s arguments based on Mr Barrett’s belief regarding alcohol consumption are rejected.

The medical evidence and patterns of alcohol consumption

The appellant relies on three separate arguments summarised at [38] above.
In relation to the first of these, the appellant submits the finding of an increase in alcohol consumption from November 2012 was based on medical histories. It submits that assuming Mr or Mrs Barrett gave the histories, neither was a reliable witness. The appellant relies on the fact that Mrs Barrett consciously hid her alcohol consumption from treating practitioners. It relies on the reasons which led to Mr Barrett’s evidence regarding his wife’s earlier drinking, prior to the psychological injury, being rejected.
The submission that Mr Barrett was an unreliable witness is without merit. His evidence was not accepted, on one specific topic, for specific reasons discussed above. He was not described as an unreliable witness. The appellant, in challenging his evidence on the specific point, expressly avoided raising an issue regarding his credit. His evidence regarding his wife’s alcohol consumption after November 2012 was accepted by the Arbitrator, for reasons held above to have been available.
The Arbitrator described Mrs Barrett as “likely hiding the full extent of her drinking”,[85] and “generally likely to underestimate her alcohol consumption”.[86] The specific histories relied upon by the Arbitrator, in making his finding at [44] of the reasons, were recorded at Blacktown Hospital. The first of these was on 12 December 2014. It recorded:
“Drug health Hx:
         Alcohol: 5-7xweek for past 18/12.
         Normal intake-7-10std drinks per day
         Last intake – 3/7 ago
Pt asymptomatic and not at risk of etoh withdrawal due to timeframe of last intake”.[87]
[85] Reasons, [40].
[86] Reasons, [49].
[87] ARD, p 241.
The second was on 16 March 2015 and recorded a chronic problem of “PTSD” accompanied by the Comment “Heavy EtOH intake over last 18-24 months as a result”.[88]
[88] ARD, p 85.
The history of 12 December 2014 was recorded by Michele Tracey, a clinical nurse specialist in drug health. One could infer it was taken from Mrs Barrett; it commenced “Thank you for referring Mrs Barrett for Drug Health r/v”. It included “Currently living with husband David. David in attendance and supportive of Jan”. At different places in the document it specifically stated “Jan says …” and “Jan doesn’t believe …”.
The basis on which the appellant attacks the reliability of Mrs Barrett as an historian is that she consciously hid the level of her alcohol use from treating practitioners. It was unlikely that Mrs Barrett was disguising the magnitude of her alcohol use in the above history taken in December 2014. It is a history of a persistent, high use of alcohol over a period of 18 to 24 months. It was recorded by a clinical nurse specialist working in drug health, in circumstances where Mrs Barrett was seriously ill with liver disease and being treated as a hospital inpatient. As a general proposition, medical histories represent material on which the Commission may act. As was observed by Allsop P in Onesteel Reinforcing Pty Ltd v Sutton, “[m]uch will depend on the context and the issues tendered for consideration as to how the Commission evaluates material before it”.[89] The subject matter of the history, and the context in which it was provided, suggest this history was recorded in circumstances where it was credible and entitled to weight.
[89] [2012] NSWCA 282, 13 DDCR 351, [4].
The brief history on 16 March 2015 was recorded when Mrs Barrett was seriously ill. The Blacktown Hospital Emergency Department clinical record on 16 March 2015 referred to the earlier admission in December 2014. It recorded a history of “lower back pain due to injury, PTSD, Alcohol abuse for 8 years and on-going”. It described Mrs Barrett as “pt confused”. The source of the brief history referred to at [73] above is not apparent. The Arbitrator thought it probably came from Mr Barrett, in conjunction with reliance on the earlier clinical material from the December 2014 admission. The Arbitrator (correctly) described the need for caution regarding the history on 16 March 2015, given that Mrs Barrett was by then “close to death, extremely unwell, and confused”.[90] It is probably unlikely it came from Mrs Barrett in the circumstances. It was recorded by the hospital as part of the material that assisted in the care of Mrs Barrett in her final illness. It is entitled to some weight.
[90] Reasons, [43].
The Arbitrator also referred to other histories during the 2014 and 2015 admissions.[91] I note particularly the reference to that recorded by Dr Gupta on 15 December 2014:
“Drinks 1 bottle of wine per night ~2 years
prior to that ~ 3-4 drinks per night
Using panadeine forte 8 tabs per day for 15 years for chronic pain”.[92]
[91] Reasons, [41]–[42].
[92] Reasons, [41], referring to ARD, p 275.
The histories taken on 12 December 2014 and 16 March 2015 were described by the Arbitrator as “important”. This was appropriate. They referred to a heavy alcohol intake over the period of 18 to 24 months leading up to when they were recorded.[93] The history on 16 March 2015 additionally associated that alcohol consumption with “PTSD”. The basis on which the appellant argues the histories cannot assist, is that both Mr and Mrs Barrett were “unreliable”. That submission is rejected, both histories were entitled to weight in the circumstances in which they were recorded.
[93] Reasons, [46].

The appellant additionally submits that the analysis in the reasons at [44] cannot be accepted, as the drinking levels referred to in the histories were “current alcohol intake”, rather than “what level she was previously drinking at”. The histories on 12 December 2014 and 16 March 2015 specifically refer to the intake over a period of 18 to 24 months, which is generally consistent with the effluxion of time since shortly after the time the bullying commenced in November 2012. Dr Gupta’s history, quoted at [77] above, specifically refers to his history of the recent consumption rate (one bottle of wine per night for two years) and the previous rate (three to four drinks per night). The appellant’s attack on the analysis in the reasons at [44] is without merit. It should be noted also that the Arbitrator’s analysis involved a consideration of the lay evidence relevant to consumption history, in tandem with the medical evidence of Dr Talley (who he accepted). These were “strands in the cable” of the Arbitrator’s reasoning.
The Arbitrator referred to the “lack of any significant reference to alcohol consumption or problems in the clinical or medical records before 2014”.[94] The appellant’s submissions cover both bases. It refers to this statement by the Arbitrator as “wrong”, saying there is “substantial evidence to that effect”. In the next paragraph of its submissions the appellant submits if there was a lack of reference in the clinical notes, this supports the fact Mrs Barrett was an “unreliable historian”. The Arbitrator said there was no “significant reference” before 2014. The appellant’s submissions refer to substantial evidence to the contrary, but it does not specifically refer to any. The appellant’s submissions on this point are contradictory, and there is no developed submission, by reference to identified evidence, to support either of the positions which it adopts. The appellant has not made good any of its arguments on this issue.
[94] Reasons, [44].
The Arbitrator referred to material from Dr Co’burn, Mrs Barrett’s general practitioner. The Arbitrator correctly observed that it covered only the period from January 2013 to March 2015, with little reference to alcohol, except for the abnormal liver function tests noted on 18 August 2014.
Dr Co’burn was the author of a short report dated 9 June 2016, which said:
“I … was involved in [Mrs Barrett’s] care for a number of years.
I believe the excessive consumption of alcohol since the workplace injury was a substantial factor in the serious liver condition which resulted in [Mrs Barrett’s] death.”[95]
[95] ARD, p 338.
The Arbitrator quoted this report. He described the report as “less weighty than those of Drs Talley or Sethi, because of Dr Co’burn’s relative lack of expertise, and the lack of supportive reasoning”. He described the report as “still relevant”. He said it was consistent with his view that Mrs Barrett’s alcohol consumption had “significantly increased since her psychological injury”, and this was the basis on which he would utilise it.[96] The appellant submits the report cannot be used in this way, because it does not reveal its assumptions or reasoning process.[97] Mr Barrett’s submissions state that the appellant failed to demonstrate why the Arbitrator’s use of Dr Co’burn’s report was erroneous.[98]
[96] Reasons, [53]–[54].
[97] Appellant’s submissions, [50]–[51].
[98] Respondent’s submissions, [20].
The nature of the appellant’s argument is explained sufficiently by its short submission. In Hevi Lift (PNG) Ltd v Etherington McColl JA (Mason P and Beazley JA agreeing) said “a court cannot be expected to, and should not, act upon an expert opinion the basis for which is not explained by the witness expressing it”.[99] Her Honour subsequently described this statement as “apposite in the context of Commission hearings”,[100] and said it was necessary to determine whether a report went beyond “a bare ipse dixit”.[101]
[99] [2005] NSWCA 42, [84].
[100] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 (Edmonds), [131].
[101] Edmonds, [135].
The appellant’s submission on this point also raises Makita (Australia) Pty Ltd v Sprowles, in which Heydon JA said:
“The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are ‘sufficiently like’ the matters established ‘to render the opinion of the expert of any value’, even though they may not correspond ‘with complete precision’, the opinion will be admissible and material. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert’s conclusion must have some rational relationship with the facts proved.”[102] (excluding references)
[102] [2001] NSWCA 305; 52 NSWLR 705, [64].
In Australian Securities and Investment Commission v Rich Spigelman CJ discussed these principles, saying:
“What Heydon JA identified as the expert’s ‘prime duty’ is fully satisfied if the expert identifies the facts and reasoning process which he or she asserts justify the opinion. That is sufficient to enable the tribunal of fact to evaluate the opinions expressed.” [103]
[103] [2005] NSWCA 152, [105].
Dealing with application of these principles in the Commission, Beazley JA said:
“In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight.”[104]
[104] Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 399 (Hancock), [83].
Dr Co’burn’s report did not identify the reasoning process on which it was based, sufficiently to allow the Commission to evaluate the doctor’s opinion. It was a “bare ipse dixit”. As an expression of expert opinion, the report did not carry weight, and did not provide probative evidence on which the Commission could act, on its stated topic. That was the issue of whether there was a causal relationship between Mrs Barrett’s excessive drinking after the psychological injury, and her death from liver disease. The Arbitrator was aware of the deficiency in the report, and correctly referred to the lack of supportive reasoning.
In Hancock Beazley JA said:
“A deficiency in one part of an expert’s evidence may be made good by other material, either in another report or in oral evidence: see the discussion in Rhoden v Wingate at [55]–[73] …The question as to whether there was a scientific or intellectual basis for Dr Summersell’s opinion had to be determined by reference to all of his reports. It was not a determination that could be made by singling out an isolated part from the whole of that witness's material before the Commission.”[105]
[105] Hancock, [92].
Dr Co’burn’s clinical cards were part of the material before the Commission. He predominantly saw Mrs Barrett, interspersed with other members of his practice. It could be inferred Dr Co’burn was aware of the contents of Mrs Barrett’s treating records, to the extent other doctors were involved from time to time. These records confirm awareness of the bullying at work (for example see 22 July 2013[106]), vomiting in association with stress (for example see 20 September 2013[107]), psychological treatment with Mr Rees, abnormal liver function tests (with Mrs Barrett being told to avoid alcohol and paracetamol, see 18 August 2014[108] and subsequently), difficulties with confusion (see 27 February 2015[109]) and escalation of the abnormalities in liver function. The Arbitrator referred to the fact that Dr Co’burn was the treating general practitioner since at least January 2013. The Arbitrator, correctly, did not accept Dr Co’burn’s opinion on causation of the deteriorating liver disease and death. It was inherent in how Dr Co’burn expressed himself, that the doctor accepted there had been an excessive consumption of alcohol since the psychological injury. The only use the Arbitrator made of Dr Co’burn’s opinion was to regard it as confirmatory, of an opinion the Arbitrator had formed in any event, that Mrs Barrett’s alcohol consumption had significantly increased since the psychological injury.[110] In my view, it was available to the Arbitrator to accept Dr Co’burn on this limited issue. For the doctor, it would have been a matter of history and impression. It did not, in any event, affect the result, as the Arbitrator had independently reached that conclusion based on other evidence. This part of the appellant’s attack on the decision fails.
[106] Reply, p 59.
[107] Reply, p 59.
[108] Reply, p 55.
[109] Reply, p 51.
[110] Reasons, [54].
The balance of the appellant’s submissions on this ground go to whether the Arbitrator erred in accepting the opinion of Dr Talley, in preference to that of Dr Sethi. For reasons given below dealing with Ground No. 2, the Arbitrator did not err in accepting the opinion evidence of Dr Talley in preference to that of Dr Sethi. Ground No.1 fails.

GROUND NO. 2

Appellant’s submissions

The appellant submits “the primary contest between the parties was based on the expert evidence”. It submits the Arbitrator erred in preferring the opinion of Dr Talley. It submits that, although the presentation of the evidence was “solely on paper”, the contest “appears in part to be based on the demeanour or presentation of the witnesses”. It submits this was erroneous, the acceptance or rejection of evidence should not have been based on demeanour at all. If such a basis for dealing with this evidence was crucial, the Arbitrator should have alerted the parties and “requested oral evidence”.[111] The appellant quotes the following passage from Wiki v Atlantis Relocations (NSW) Pty Limited:
“But, where the issue in dispute involves differences between expert witnesses that are capable of being resolved rationally by examination and analysis, and where the experts are properly qualified and none has been found to be dishonest, or misleading, or unduly partisan, or otherwise unreliable, a decision based solely on demeanour will not provide the losing party with a satisfactory explanation for his or her lack of success. A justifiable grievance as to the way in which justice was administered will then arise.”[112] (emphasis in original)
[111] Appellant’s submissions, [54]–[60].
[112] [2004] NSWCA 174; 60 NSWLR 127 (Wiki), (per Ipp JA, Bryson JA and Stein AJA agreeing), [61].
The appellant submits “[r]eading the decision as a whole, the [A]rbitrator’s acceptance and rejection of the expert evidence was primarily based on the demeanour of the experts.” It submits the Arbitrator also referenced Dr Sethi’s inability to grapple with the subtlety of the argument concerning Mrs Barrett’s increased level of alcohol consumption, but the Arbitrator’s overall persuasion was “by the presentation of the argument, rather than the argument itself”.
The appellant submits Dr Talley’s reliance on a “factual assumption that [Mrs Barrett] increased her alcohol intake in the relevant period cannot be accepted”. It submits that, to the extent to which Dr Talley relied on “other objective means”, Dr Sethi dealt with this on a scientific and medical basis. It submits “Dr Talley did not even reply to the final report of Dr Sethi”. The appellant submits Dr Sethi rejected the proposition that death resulted from “acute yellow atrophy”. It submits “Dr Sethi was entitled to a ‘coherent reasoned rebuttal’”. This could not be based on demeanour or presentation, nor could it be done without an “appropriate explanation in reply to Dr Sethi’s final report”.[113]
[113] Appellant’s submissions, [62]–[68].

Mr Barrett’s submissions

It is submitted on Mr Barrett’s behalf that the appellant’s argument is based on “a fundamental misunderstanding of what the Arbitrator did”. Dr Sethi used “colourful and extreme language in his reports”. Mr Barrett’s submissions give some examples. Mr Barrett submits the appellant’s counsel, at the arbitration hearing, was aware of this, and referred to “some passion” in Dr Sethi’s opinions. Mr Barrett submits that his counsel, at the arbitration, raised the nature of the language employed by Dr Sethi, and the appellant did not attempt to respond.[114]
[114] Respondent’s submissions, [24]–[25].
Mr Barrett submits that in any event, the issue between Dr Talley and Dr Sethi “was not resolved on the basis of demeanour”, and it is misleading to suggest that it was. The Arbitrator, in the reasons at [81], identified that Dr Sethi failed to engage with Mr Barrett’s case that there was “an increase in alcohol consumption after the psychological injury”. Mr Barrett submits Dr Sethi failed to engage with the hospital histories in 2014 and 2015 of particularly heavy alcohol consumption over the previous 18 months to two years. Dr Sethi based his opinion on an assumption that there was no increase in Mrs Barrett’s alcohol consumption after the psychological injury. The Arbitrator found, for good reasons, that there was such an increase. This led to the rejection of Dr Sethi’s opinion. Dr Sethi was not rejected because of his demeanour, the Arbitrator put aside the strident fashion in which Dr Sethi expressed himself, in the reasons at [86]. Dr Talley identified a massive spike in the GGTP readings by 2014. The Arbitrator’s conclusion was based on “an analysis of the evidence and not demeanour”. References to demeanour were only in the context of “highlighting how Dr Sethi adopted a fixed and inflexible position that did not engage with [Mr Barrett’s] case or the totality of the evidence.[115]
[115] Respondent’s submissions, [26]–[30].
Mr Barrett submits there is no merit to the argument that Dr Sethi’s opinion should have been accepted because there was no reply to his final report. It was not necessary that his opinion be accepted because he spoke last.

Appellant’s submissions in reply

The appellant submits it is difficult to identify the weight that was placed on demeanour, but it clearly had some impact. It submits that when the decision is read as a whole, the demeanour of both experts played a part. It disputes that the Arbitrator put aside the strident fashion of Dr Sethi’s expression.

Consideration

It is necessary to identify the substance of the content of the reports by Dr Talley and Dr Sethi, and the basis on which the view of Dr Talley was preferred. I accept that it is necessary to read the decision as a whole.[116] Dr Talley is an Emeritus Consultant Physician, specialising as a gastroenterologist and hepatologist. Dr Sethi is a consultant gastroenterologist and hepatologist.
[116] Beale v Government Insurance of NSW (1997) 48 NSWLR 430 (per Meagher JA), 444.

Dr Talley’s reports

The primary report is dated 16 November 2017. The doctor set out the material he had been furnished with, and quoted from a statement prepared by Mr Barrett, that described the bullying received by Mrs Barrett after she was promoted as a clinical nurse specialist on 7 November 2012. He noted the history that Post-Traumatic Stress Disorder developed, and Mrs Barrett began to drink alcohol much more, moving to two litre flagons of sweet sherry.[117] The Arbitrator summarised the medical material he was given. He summarised multiple admissions to Blacktown Hospital. He summarised the material from Dr Co’burn’s practice. Dr Talley referred to a report from Mr Rees, psychologist, dated 15 February 2014, that diagnosed “moderate posttraumatic stress disorder”.[118]
[117] Dr Talley’s report 16 November 2017, ARD, pp 375–376.
[118] ARD, pp 377–384.
Dr Talley referred to liver function tests dated 4 August 2014, which he set out. He provided the following comment:
“The higher AST than ALT is a feature of alcohol excess and so is a extremely high GGTP although these results can also be due to other causes but rarely to this degree. No clotting times were included to measure liver synthetic capacity, but the Albumen is only marginally reduced, and Bilirubin is normal. These results should alert to severe alcohol or other liver poison ingestion. Liver is not irreversibly damaged”.[119]
[119] ARD, p 380.
Dr Talley set out liver function tests dated 5 November 2014, on which he commented:
“This suggests significant deterioration of liver synthetic capacity and should be followed by urgent referral to Hepatologist/Gastroenterologist.”[120]
[120] ARD, p 380.
Dr Talley set out liver function tests performed on 15 December 2014, without comment. The tests included ALT of 49 units (reference maximum of 30), AST of 109 units, and GGTP 1292 very high units.[121]
[121] ARD, p 383.
In summarising the admission to Blacktown Hospital from 10 December 2014, Dr Talley set out histories relating to alcohol consumption.[122] These were:
(a) 10 December 2014 – “In the last eight years, drinking three to four large glasses of white wine a day, now four per day due to recent illness”
(b) 12 December 2014 – “alcohol five or seven times per week for the past 18 months, 7 – 10 standard drinks per day”.
[122] ARD, pp 381–382.
Dr Talley noted the discrepancy between Mr Barrett’s statement about his wife’s drinking prior to 2012, compared with the histories at Blacktown Hospital in 2014. The doctor postulated that Mrs Barrett may have been hiding drinking from her husband.[123] There was a history of normal liver function tests in 2013. Dr Talley said that in December 2014 Mrs Barrett was “grossly oedematous”, he assumed due to synthetic liver failure.
[123] ARD, p 385.
Dr Talley said that Mrs Barrett “did not have any evidence of significant chronic liver disease in 2013-14 October”. He said the readings regarding ALT and AST, and GGTP in tests available in 2014, were “the feature of alcoholic”. The doctor said:
“To summarize my opinion, I suspect that Ms Barrett did not have significant chronic liver disease between 2017 [sic, 2007] and 2014. She started drinking heavily according to the husband in 2012. In late 2014, before her admission to hospital in December, she had liver function tests consistent with fairly massive alcoholic excess. Nevertheless, alcohol even in the amount she drank, which was a bottle a day, takes longer to cause significant chronic liver disease, but it can cause portal hypertension and when Dr Hope gastroscoped her in December 2014, small, not very significant, varices that did not require banding and had not bled. She had though by then splenomegaly. None of this is diagnostic of chronic liver disease but is suggestive of acute liver damage (ACUTE ALCOHOLIC HEPATITIS + possibly mild chronic fibrosis) I would believe her liver disease at that stage was not fatal and necessarily progressive”.[124]
[124] ARD, p 386.
Dr Talley furnished a supplementary report dated 23 November 2017, in which he said:
“The report is quite specific that Mrs Barrett died of acute liver failure superimposed on some degree of chronic failure. The main reason was alcohol excess but I felt had it been investigated appropriately other factors like Paracetemol are possible contributing factors.
As she had no proven cirrhosis a year before her death or even later the degree of chronic liver damage is not certain.”[125]
[125] ARD, p 393.
Mr Barrett’s solicitors wrote to Dr Talley on 7 September 2018 enclosing Dr Sethi’s report dated 26 August 2018, and a series of blood test results ranging from 3 April 2007 to 27 February 2015. The doctor’s further opinion was sought on whether Mrs Barrett likely had some established chronic liver condition prior to the psychological injury, whether the blood tests permitted a conclusion on the probabilities that Mrs Barrett significantly increased her alcohol intake between February 2012 and February 2014, why, and any other comments on the blood tests.[126] Dr Talley furnished a further report dated 11 September 2018.[127]
[126] ARD, pp 740–776.
[127] ARD, pp 777–781.
Dr Talley set out the various test results from time to time, commenting on their significance. He referred to various test results and clinical findings from February 2002 to the time of Mrs Barrett’s death. He said there was:
“… no question that Ms Barrett drank, probably looking at her liver function test results between 2007 and 2012 intermittently because liver function tests fluctuated and actually were quite good at times. There was no good evidence clinically that she had cirrhosis until 2012 or possibly even later. What she did develop in 2014 is progressive liver failure.”[128]
[128] ARD, p 779.

Dr Talley said the liver function tests from 2007 to 2010 “suggest excessive alcohol consumption but not established cirrhosis”. He said there was “no good evidence that she was grossly cirrhotic or that she drank heavily though it is very likely”. He said:
“I do not think that she developed established cirrhosis till about 2013 or 2014, but it is hard to put a date on it and I believe this was a gradual process and probably was not terribly severe until she really started to drink very heavily in 2014”.
And:
“In my opinion the high GGTP suggests a high alcoholic intake which, combined with paracetamol overuse and morbid obesity would have led to progressive liver damage.”
And:
“The psychological injury, which according to notes is dated 7 November 2012, was the final straw. She developed severe liver failure very quickly in 2014-2015.
I do not agree with Dr Sethi that she had well-established chronic liver disease before 2012 but I believe she was on the way to it from at least 2007.”[129]
[129] ARD, pp 780–781.
Dr Talley’s report dated 11 September 2018 concluded with a response to a specific question:
“Whether on these blood tests Mrs Barrett on the balance of probabilities significantly increased her alcohol intake between February 1012 [sic, 2012] and February 20214 [sic, 2014].
It is almost certain she increased alcohol and paracetamol intake, accelerating death. Before 2012 she had a reversible fatty liver but was drinking excess alcohol in binges and may have had some fibrosis.”
Dr Talley also commented that he had read Dr Sethi’s report “and in most respects I agree with some of his opinions”.

Dr Sethi’s reports

Because the tenor of Dr Sethi’s reports has become an issue on this appeal, I have included some of his discussion at greater length than usual, to give some feel for the manner of expression.
Dr Sethi first reported on 26 August 2018.[130] He summarised the nature of the claim, Mr Barrett’s statement, and the medical background, including the history at Blacktown Hospital on 12 December 2014. He described Mrs Barrett’s liver disease as multifactorial. He said she had been morbidly obese, weighing up to 145 kilograms, although was 98 kilograms at the time of her death. Her Panadol use was excessive, and “very likely caused significant liver toxicity”. Her alcohol intake was “excessive for several years”. He said “[t]hese 3 factors all combined contributed to her developing advanced liver disease and cirrhosis”.
[130] Reply, pp 19–27.
Dr Sethi said that in his opinion “Mrs Barrett was drinking heavily for several years dating well back before her alleged bullying at work in 2012”. Dr Sethi described it as “false and misleading to argue otherwise”. Dr Sethi dealt at some length with Mr Barrett’s evidence that his wife had been a moderate drinker prior to the psychological injury. In a passage that had nothing to do with the expression of medical opinion, the doctor attacked the veracity of Mr Barrett’s statement regarding his wife’s earlier moderate drinking.[131] This was the passage that the appellant’s counsel described as “more in the nature of a submission than an opinion”, and then adopted as a submission during the running of the arbitration (see [63] above).
[131] Reply, p 22.
Dr Sethi referred to Mrs Barrett’s history in December 2014, at Blacktown Hospital, of consuming, since eight years ago, “3–4 large glasses of white wine a day, now 4 per day due to recent illness”.[132] Dr Sethi said:
“She was noted to be consuming 4 standard drinks daily for the last 8 years. The recommended safe limit for a female pt is 2 standard drinks daily hence her consumption was clearly excessive for several years. This directly contradicts and completely disproves Mr Barrett’s claims.”
And:
“In my opinion Mr Barrett’s claim that she only started drinking 2 years before her death is false and should be completely disregarded.” [133]
[132] ARD, p 279.
[133] Reply, p 23.
Dr Sethi concluded that Mrs Barrett was “heavily drinking for several years before her alleged workplace bullying”. He also said that her “alcohol consumption did not increase after her alleged bullying”.[134] In response to a specific question Dr Sethi responded:
“Please provide your opinion, on the balance of probabilities, as to which factor or factors you consider to be substantial in contributing to the deceased’s death.
On the balance of probabilities, the cause of death was sepsis, multi organ failure and liver cirrhosis. The causes were excessive use of alcohol for several years (well before her alleged workplace accident), excessive Panadol and significant morbid obesity.”[135]
[134] Reply, p 24.
[135] Reply, p 24.
Dr Sethi said that “liver cirrhosis takes several years to develop and could not have developed in the very short time span of two years as alleged by Mr Barrett. It is widely accepted medical and scientific opinion that liver cirrhosis develops over several years.” He said “[t]he psychological injury played no role whatsoever in her developing liver disease or dying. It is false and misleading to argue otherwise.”[136] He said that Mrs Barrett’s employment “did not play any role whatsoever” in her death.[137] Explaining the rationale for his opinion, Dr Sethi referred to the multifactorial causes, obesity, paracetamol and alcohol. He referred to the abnormal liver function tests in 2007, and said she had been consuming alcohol for several years before the psychological injury. He said it was unrealistic that the disease developed between April 2013 (the deemed date of the psychological injury) and November 2014 (when chronic liver disease was diagnosed). The development of liver cirrhosis usually takes “at least 10 years of heavy alcohol intake”.
[136] Reply, p 25.
[137] Reply, p 26.
Dr Sethi reported again on 16 October 2018.[138] He described it as a “file review” and said he had reviewed Dr Talley’s report. Dr Sethi said that Mrs Barrett’s liver function results remained abnormal from 2008 onwards, consistent with ongoing liver disease. Cirrhosis can be accompanied by liver function tests that are not grossly abnormal. Dr Sethi refers to “Dr Talley’s claim that she suddenly progressed to developing severe liver failure in 2014-2015”, and describes it as “implausible and unrealistic”. He said it was “essentially unheard of for liver disease to progress so quickly in such a short period of a few months”. It was “more likely to occur gradually and slowly over several years”.
[138] Reply, pp 28–31.
Dr Sethi referred to a gastroscopy performed by Dr Hope. This appears to be the procedure carried out at Blacktown Hospital on 17 December 2014.[139] Dr Sethi states that varices were present, consistent with well-established cirrhosis.
[139] ARD, pp 250–251.
Dr Sethi disagreed with Dr Talley’s view that Mrs Barrett died from “acute yellow atrophy”. Dr Sethi said this was a condition where the liver degenerated due to toxic chemicals. He said the clinical and scientific evidence did not support this diagnosis. He said Dr Talley’s “claim of acute yellow atrophy should be dismissed”, as it was inconsistent with the death certificate, which referred to chronic liver disease as a cause of death. Dr Sethi said that there was “no evidence in her clinical notes that indicates that her alcohol and paracetamol intake increased after 2012 and hence there is no basis for Dr Talley’s claims”. Dr Sethi said her alcohol and paracetamol intake was “already excessive for several years prior to 2012”.[140]
[140] Reply, p 30.
Dr Sethi by way of conclusion said:
“In conclusion, Dr Talley is essentially claiming that Ms Barrett had mild liver disease till the psychological injury in 2012. Following this, she increased her alcohol and paracetamol intake causing her to rapidly develop liver disease and severe liver failure in 2014-2015. As outlined above, this is utterly implausible, unrealistic and highly unlikely. There is no scientific or clinical basis for his arguments. Most importantly, all of his claims are directly contradicted by her medical records.
In my opinion, Dr Talley’s arguments are highly flawed and should be completely disregarded.”[141]
[141] Reply, p 31.
Dr Sethi reported again on 20 December 2018.[142] The report, virtually at its outset, stated:
“In my opinion, this claim is false, baseless and should be dismissed. It is contradicted by written evidence. I shall outline my reasoning below.”[143]
[142] AALD 21.2.19, pp 251–253.
[143] AALD 21.2.19, p 252.
Dr Sethi referred to a report from Mr Rees, a treating psychologist, the doctor saying that Mr Rees “claims that the deceased had a previous problem with excessive use of painkillers and tranquilisers but had dealt with this by the time of the workplace bullying”. Dr Sethi said that “this claim is incorrect and misleading. It should be dismissed and disregarded.” Dr Sethi referred to a history in December 2014 that Mrs Barrett took “4 tablets of panadeine daily for the last 15 years”. He said this predated her work injury in 2013. He said her clinical notes did not indicate that her Panadol consumption ever diminished. He said the clinical notes did not indicate “her alcohol/paracetamol intake increased after 2013”. He said “Ms Barrett’s Panadol consumption started several years before her workplace injury in 2013. It is false and misleading to argue otherwise.”[144]
[144] AALD 21.2.19, p 252.
Dr Sethi described paracetamol as “relevant contributor” to Mrs Barrett’s liver condition, and said that “alcohol and obesity also played significant roles”. Dr Sethi referred to “GGT” as a “rough marker” for alcohol consumption, it can increase with alcohol consumption but there is not a direct correlation. Increased alcohol does not always cause a rise in GGT, and a rise in GGT can be from progressive liver disease rather than increased alcohol consumption. He said in his opinion GGT did not accurately reflect Mrs Barrett’s alcohol intake. Dr Sethi said “I maintain my previous assertion that Ms Barrett’s death was entirely unrelated to her work or work injuries and would have very likely occurred regardless”.[145]
[145] AALD 21.2.19, pp 252–253.

How the Arbitrator dealt with the medical opinions

The appellant argues the “primary contest” was that between Dr Talley and Dr Sethi. It argues the Arbitrator based his decision on what it describes as ‘demeanour’; it submits the preference for Dr Talley was based on the presentation of the argument rather than the argument itself. It submits this was erroneous. The appellant submits that if the Arbitrator was considering such an approach he should have informed the parties. It also attacks the reasoning leading to the decision. It submits that to the extent to which the Arbitrator relied on “objective means”, Dr Talley relied on an unproven assumption. It submits Dr Talley did not respond to the arguments in Dr Sethi’s final report. The availability of the ‘demeanour’ argument depends, amongst other things, on whether the matter was decided on that basis. It is appropriate to consider the basis on which the Arbitrator decided the matter.
There is a single issue on which the case turns, being whether Mrs Barrett’s death on 30 March 2015 resulted from the conceded psychological injury, deemed to have occurred on 22 July 2013 (which involved bullying and harassment in her employment from November 2012 to 22 July 2013). There was an important related issue, which was whether the evidence supported the proposition that Mrs Barrett’s alcohol consumption increased from the time of the bullying injury, November 2012 and subsequently.
The Arbitrator’s reasons are summarised at [9] to [26] above. In Hume v Walton it was said:
“The primary judge’s duty was not only to record the evidence but also to record the findings she made based on that evidence. While the extent of that duty may depend upon the circumstances of the individual case, where there is disputed expert evidence, the ‘parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other’.”[146] (references omitted)
[146] [2005] NSWCA 148, (per McColl JA), [69].
In Eckersley v Binnie Bingham LJ said:
“In resolving conflicts of expert evidence, the judge remains the judge; he is not obliged to accept evidence simply because it comes from an illustrious source; he can take account of demonstrated partisanship and lack of objectivity. But, save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely), a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons …”.[147]
[147] (1988) 18 Con LR 1 (Eckersley) at 77–78, quoted with approval by Beazley JA (as her Honour then was) in Taupau v HVAC Constructions (Queensland) Pty Limited [2012] NSWCA 293 at [133], and by Ipp JA (Bryson JA and Stein AJA) in Wiki.
Examples of the other good reasons may be found in the passage of Wiki on which the appellant relies, an expert who is “found to be dishonest, or misleading, or unduly partisan, or otherwise unreliable” (see [92] above).
Dr Talley’s third report, dated 11 September 2018, dealt with liver function test results furnished to him by Mr Barrett’s solicitors on 7 September 2018. These had not been available to the doctor initially. The Arbitrator referred to the doctor’s analysis of the “biochemistry” results, which included liver function tests. The doctor accepted, on the basis of the liver function tests, that Mrs Barrett drank alcohol between 2007 and 2012. Dr Talley said that he believed that Mrs Barrett was a binge drinker at that time, having regard to the way in which the liver function tests fluctuated, being “quite good at times”. The doctor thought these tests suggested “excessive alcohol consumption but not established cirrhosis”.[148]
[148] Reasons, [69]–[73].
The Arbitrator quoted at length from Dr Talley’s third report. He said he found it persuasive, and gave reasons for this.[149] The reasons included the care taken with the history, the fact that he considered “both sides” of the question, his careful reading of the liver function tests, and the account taken of the histories at Blacktown Hospital in December 2014 and March 2015. He noted Dr Talley’s reading of specific aspects of the liver function tests (the GGTP readings, and the comparative values of the AST and ALT readings). In his report dated 16 November 2017, in the context of tests on 4 August 2014, Dr Talley noted that “higher AST than ALT is a feature of alcohol excess and so is an extremely high GGTP”. He said “these results can also be due to other causes but rarely to this degree”.[150] Dr Talley described various liver function tests from 3 April 2007 to 2010. He said the most significant abnormality was “out-of-proportion elevation” of the GGT in 2007, 2008, 2009 and 2010.
[149] Reasons, [74].
[150] ARD, p 380.
The Arbitrator was critical of how Dr Sethi expressed himself. He referred to Dr Sethi’s treatment of Mr Barrett’s statement regarding Mrs Barrett’s allegedly moderate drinking habits prior to the psychological injury (see [115] above). He said Dr Sethi’s opinion on this factual issue contained “much argument and many intensifiers”.[151] The Arbitrator was critical of how Dr Sethi dealt with Dr Talley’s view that the psychological injury was “the final straw”. The Arbitrator said Dr Sethi dealt with this in “a dismissive fashion”.[152]
[151] Reasons, [80].
[152] Reasons, [85].
The Arbitrator expressed his views on the competing expert opinions:
“Again, putting aside the strident fashion in which the opinion is expressed, the reasoning for dismissing [sic, preferring] Dr Talley’s opinion in this regard is, again, the fixed and general position of Dr Sethi that Mrs Barrett’s alcohol intake had been heavy for several years. This opinion does not attempt to delineate the levels of drinking in any way; remembering that Dr Talley has accepted there was heavy drinking prior to the psychological injury – but in an intermittent and binge-type fashion. Against that background, Dr Talley says that the heavy and constant drinking after the psychological injury from late 2012 into 2014 caused the GGTP to spike massively (2156) by 2014. In this way, Dr Talley’s opinion has a basis which is more persuasive to me.”[153] (emphasis added)
[153] Reasons, [86].
Although the Arbitrator was critical of how Dr Sethi expressed himself, the reasons do not suggest that the Arbitrator relied on this as a basis for reaching the conclusion which he did. Mr Barrett’s submissions correctly say that the Arbitrator set these other concerns to one side, when expressing his conclusion about which expert opinion he preferred. The Arbitrator’s reasons were careful, thorough, and referenced throughout to the evidence before him.
Dr Sethi, in his first report dated 26 August 2018, said:
“Mrs Barrett was already heavily drinking for several years prior to the alleged bullying at her workplace. Her alcohol consumption did not increase after her alleged bullying.”[154]
[154] Reply, p 24.
Dr Sethi, in his second report dated 16 October 2018, said:
“Dr Talley claims that she increased alcohol and paracetamol after February 2012 and February 2014 hence accelerating death. This claim is entirely false and should be dismissed. There is no evidence in her clinical notes that indicates that her alcohol and paracetamol intake increased after 2012 and hence there is no basis for Dr Talley’s claims. It was already excessive for several years prior to 2012.”[155]
[155] Reply, p 30.
Dr Sethi, in his final report dated 20 December 2018, said:
“There is no evidence in her clinical notes that indicates her alcohol paracetamol intake increased after 2013.”
As the Arbitrator correctly observed, Dr Sethi at no time allowed for any possibility that Mrs Barrett’s alcohol consumption changed, after the bullying commenced in November 2012.
The Arbitrator’s conclusions were not based solely on an evaluation of the opinions of these two doctors. Mr Barrett relied on bank records, discussed above. The probative value of those records had limitations, as the Arbitrator correctly observed (see [48] above). The Arbitrator accepted this evidence of bank records as consistent with Dr Talley’s opinion, regarding Mrs Barrett’s alcohol consumption.[156] There was also the evidence from Mr Barrett, that from November 2012, Mrs Barrett struggled psychologically, and began to drink more alcohol. The Arbitrator accepted this evidence.[157]
[156] Reasons, [44].
[157] Reasons, [44].
There was also the evidence of medical histories given at the Blacktown Hospital, during the admissions in December 2014 and March 2015. The history on 12 December 2014 was of a normal intake of seven to ten standard drinks per day, five to seven days per week, for the past eighteen months (see [72] above). The history recorded by Dr Gupta on 15 December 2014 was that Mrs Barrett was previously drinking about three to four drinks per night, but for the previous two years was drinking one bottle of wine per night (see [77] above). The history on 16 March 2015 was of PTSD, with heavy alcohol intake over the last 18 to 24 months as a result (see [73] above). All of these were consistent with an increased alcohol intake after the bullying started in November 2012.
Dr Talley’s opinion regarding Mrs Barrett’s alcohol consumption from 2007 onwards was based to a large extent on the liver function tests from time to time, and in particular the results described as GGTP (or GGT), AST and ALT. Referring to the liver function tests dated 4 August 2014, Dr Talley said that “higher AST than ALT”, and an “extremely high GGTP”, were both “a feature of alcohol excess”. He said that such results “can also be due to other causes but rarely to this degree”.[158]
[158] Reasons, [76].
Dr Sethi, in his report dated 20 December 2018, described GGT as a “rough marker” for alcohol consumption, “it provides a rough but not precise or particularly accurate correlation with alcohol intake”. He said “increased alcohol intake does not always cause rise in GGT” (emphasis added). He said a rise in GGT “can be from progressive liver disease rather than from increased alcohol intake” (emphasis added). Dr Sethi said that in his opinion “GGT does not accurately reflect Ms Barrett’s alcohol intake” (emphasis added). Dr Sethi did not specifically reject the possibility that the GGT reading from 4 August 2014, on which Dr Talley commented, was likely consistent with alcohol excess. Dr Sethi referred to an “assertion” by Mr Barrett’s solicitor that “GGT showed a rise between 2012 and 2014”, and said “[t]his likely reflects progressive worsening of her liver disease over time from obesity, alcohol and paracetamol consumption” (emphasis added). Dr Sethi’s discussion of liver function tests in this report did not extend to the other markers, AST and ALT, which Dr Talley also said were indicative of alcohol excess.[159]
[159] Dr Sethi’s report 20.12.18, AALD 21.2.19, pp 252–253.

Dr Talley’s opinion about the liver function tests acknowledged that there can be other causes for the readings, but “rarely to this degree”. That is, given the degree of the readings, it would be rare for the cause to be other than alcohol excess. This was expressed in the context of a case where there were other causes (obesity and paracetamol). Dr Sethi, on the other hand, referred to other factors which were capable of influencing GGT results. He talked of possibilities.
The Arbitrator said that he had made a factual finding that Mrs Barrett’s drinking increased after the psychological injury. He described Dr Sethi’s failure to acknowledge this possibility as a reason why Dr Talley’s evidence was “more persuasive”.[160] This point was valid. To the extent to which Dr Sethi’s opinion was based on a factual scenario contrary to the Arbitrator’s factual findings, this tended to deprive that opinion of weight.[161]
[160] Reasons, [84].
[161] Hancock, [83].
The Arbitrator’s preference for Dr Talley, in the passage quoted at [134] above, was clearly open to him. He gave reasons for this conclusion. The conclusion was based not only on the expressed opinions of Dr Talley and Dr Sethi, it was based also on the other lay evidence and medical histories that the Arbitrator identified as being supportive of the conclusion.
The Arbitrator’s reasoning, towards his acceptance of Dr Talley’s opinion, was not, on the reasons, based on the “strident fashion” in which Dr Sethi’s opinion was expressed. I do not accept the submission that the Arbitrator decided the matter on the basis of demeanour. Having said that, it is worth noting the well-known passage from Fox v Percy:
“Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.”[162] (excluding footnotes)
[162] [2003] HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989, [31].
The Arbitrator sought to apply these principles. He had regard to objective factors such as the biochemistry results from time to time, contemporary materials such as the recorded histories in December 2014 and March 2015, and his view of the apparent logic of events.
The appellant also submits Dr Talley’s report involved error, in that the doctor relied on “a factual assumption” that Mrs Barrett increased her alcohol intake after the psychological injury, and that history cannot be accepted. This was not a factual assumption; it was a conclusion on the doctor’s part, after reviewing the clinical material. He considered, on the probabilities, there was an increase in Mrs Barrett’s alcohol intake from 2012.[163] The Arbitrator made a factual finding to this effect, for which he gave reasons.[164]
[163] Dr Talley’s report 11.9.18, ARD p 781.
[164] Reasons, [44].
The appellant also refers to Dr Talley’s opinion that Mrs Barrett’s death resulted from acute yellow atrophy. In his last report Dr Talley said Mrs Barrett died of “what I have to call acute yellow atrophy”.[165] Dr Talley’s report did not suggest anything turned on this descriptor. Dr Sethi, in his report dated 16 October 2018, said there was no clinical or scientific evidence for this diagnosis, and it should be completely dismissed. Dr Sethi also stated that it was inconsistent with the death certificate (which nominated chronic liver disease as the antecedent cause of death) and therefore it should be dismissed.
[165] Dr Talley’s report 11.9.18, ARD p 780.
At the arbitration hearing the appellant’s counsel said:
“… the death in simple terms seems - it’s uncontroversial that she died due to liver failure in layman’s terms and there’s a death certificate which lists the causes of death which are consistent with that.”[166]
[166] T 12.13–16.
Later the appellant’s counsel described Dr Sethi as disagreeing “vehemently” with the diagnosis of acute yellow atrophy.[167] Mr Barrett’s counsel subsequently said:
“Whatever the argument about whether it’s ..(not transcribable 01.00.51).. or cirrhosis or whatever the death is liver failure and it’s also common ground that there are three things that have contributed to the liver failure, paracetamol ingestion, alcohol and obesity.”
[167] T 24.32–27.16
The references to acute yellow atrophy were not otherwise the subject of submissions before the Arbitrator. Both parties approached the issues in the case on the basis that Mrs Barrett’s death resulted from liver failure, however described. Neither party suggested that the reference to acute yellow atrophy was of any significance in deciding the causation dispute. It was not relevant to the Arbitrator’s reasoning. The appellant’s submissions on the appeal simply state that Dr Sethi rejected the description of the cause of death being “acute yellow atrophy”. No argument was raised before the Arbitrator that anything turned on whether the cause of death was described in this way. To the extent to which the appellant now seeks to raise it on appeal, it should not be permitted to do so.[168]
[168] Metwally, [7].
It was open to the Arbitrator to prefer the evidence of Dr Talley to that of Dr Sethi, notwithstanding that Dr Talley did not furnish a further report subsequent to that of Dr Sethi dated 20 December 2018. The Arbitrator found the views of Dr Talley more persuasive, and gave valid reasons for this view.
There are passages in the reasons which are critical of Dr Sethi. The Arbitrator described Dr Sethi’s approach as “fixed or inflexible, and at times argumentative”. He described the fashion in which Dr Sethi expressed an opinion as “concerning”.[169] This was referring to the doctor’s criticism of Mr Barrett’s lay evidence about his wife’s previous drinking habits (see [63] above). The Arbitrator described how Dr Sethi dealt with part of Dr Talley’s opinion as “dismissive”.[170] The Arbitrator referred to the “strident fashion” in which Dr Sethi dealt with the point.[171]
[169] Reasons, [80].
[170] Reasons, [85].
[171] Reasons, [86].
The Arbitrator described why he found the opinion of Dr Talley persuasive.[172] One of the reasons was that Dr Talley considered “both sides of this complex question”. He also said he was “persuaded” by the way in which Dr Talley balanced his assessment of Dr Sethi’s report, and conceded the accuracy of most of what Dr Sethi said.
[172] Reasons, [74]–[77].
The Arbitrator was required to deal with the conflict of expert evidence consistent with established principles (see [92], [128] and [129] above). The acceptability of the expert evidence included consideration of whether either Dr Talley or Dr Sethi was “found to be dishonest, or misleading, or unduly partisan, or otherwise unreliable”. The Arbitrator was entitled to “take account of demonstrated partisanship and lack of objectivity”. The Arbitrator’s comments about how Dr Sethi expressed himself in his reports were plainly potentially relevant to these issues, particularly whether Dr Sethi’s views were partisan or lacked objectivity. Ultimately, the Arbitrator reasoned to a preference for Dr Talley’s views, without making such a finding regarding Dr Sethi.
No oral evidence was adduced in the case, neither Dr Talley or Dr Sethi gave evidence. It was not a matter where the Arbitrator was required to have regard to impressions formed during the giving of evidence. It is not, in my view, appropriate to approach the Arbitrator’s discussion about the competing expert cases by reference to the concept of ‘demeanour’. The Arbitrator did not purport to approach the matter on that basis. Rather, consistent with settled principle, he entered into the issues canvassed and explained why he preferred one case over the other.
Ground No. 2 fails.

GROUND NO. 3

Ground No. 3 asserts there was a denial of procedural fairness.

Appellant’s submissions

The appellant submits that demeanour was important to the Arbitrator, and he should have specifically brought that to the attention of the parties. It submits the appellant did not know the Arbitrator would place such weight on demeanour. It submits the Arbitrator could have alerted the parties and requested oral evidence. It submits that, given Mr Barrett’s case did not respond to Dr Sethi’s final report, there was a failure to properly deal with the expert evidence, which amounts to a denial of procedural fairness.[173]
[173] Appellant’s submissions, [69]–[72], [58].

Respondent’s submissions

Mr Barrett submits the decision was not based on Dr Sethi’s demeanour. It is submitted the appellant’s counsel was alert to the language used by Dr Sethi, “and sought to put it to one side as merely being passionate”. Mr Barrett submits the appellant has not submitted what it would have done differently if alerted to the alleged potential reliance on demeanour.

Consideration

I have concluded above that the Arbitrator did not deal with the competing medical cases on the basis of ‘demeanour’. The submission that it was erroneous to reject Dr Sethi’s views when Mr Barrett had not put on further evidence, to respond to Dr Sethi’s last report, was raised as part of Ground No. 2 and rejected. This effectively is sufficient to also dispose of Ground No. 3. I will deal briefly with the submission that the Arbitrator was in some way under an obligation to warn the appellant of the basis on which he proposed dealing with the case.
In Kuhl v Zurich Financial Services Australia Ltd the plurality said:
“Judges are not entitled to inform themselves before taking judicial notice without giving the parties an opportunity to comment on the material referred to. Judges are not entitled to criticise expert witnesses by reference to expert material not in evidence without those witnesses having an opportunity to respond. Judges are entitled to take into account the demeanour of party-witnesses, not only in the witness box, but while they enter and leave it, and also while they are sitting in court before and after giving evidence; but observations by the judge of conduct outside the witness box which the representatives of the parties may not have observed, should, if they are influential in the result, be drawn to the attention of the parties so that they may have an opportunity of dealing with the problem. There is thus no general duty on a judge to advise the representatives of the parties of what they can see for themselves, namely the demeanour of the party-witness in the witness box. Nor, a fortiori, is there a duty on a judge to advise the parties that the party-witness’s evidence is not adequate to make out the case of that party-witness. But there was held to be a breach of the duty of procedural fairness where a party claiming compensation for injury was held to have feigned or exaggerated her symptoms although this had not been suggested in cross-examination and the respondent disavowed that possibility.”[174] (footnotes omitted)
[174] [2011] HCA 11; 243 CLR 361, [69]. See also MZWIQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1636, [13].
Even if it were accepted that the way in which the Arbitrator dealt with the expert evidence involved a consideration of demeanour, such a consideration could only have been based on the written evidence of Dr Talley and Dr Sethi. How those witnesses expressed themselves must have been plain to the parties and their legal representatives, something the parties could see for themselves.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs the High Court said:
“Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.”[175]
[175] [2006] HCA 63; 231 ALR 592; 81 ALJR 515, [48].
The premise on which Ground No. 3 was based was essentially misconceived. Ground No. 3 fails.
The appeal fails.

DECISION

The Arbitrator’s decision dated 11 April 2019 is confirmed.

Michael Snell

DEPUTY PRESIDENT

4 November 2019