Sydney's Tune Pty Ltd v Scala

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Sydney’s Tune Pty Ltd v Scala [2014] NSWWCCPD 64
APPELLANT:	Sydney’s Tune Pty Ltd
FIRST RESPONDENT: SECOND RESPONDENT: THIRD RESPONDENT:	Workers Compensation Nominal Insurer c/- WorkCover Authority of New South Wales Teresa Scala GIO General Ltd
APPELLANT’S INSURER:	Uninsured
FILE NUMBER:	A1-4292/13
ARBITRATOR:	Mr John Harris
DATE OF ARBITRATOR’S DECISION:	2 May 2014
DATE OF HEARING DATE OF APPEAL DECISION:	9 September 2014 9 October 2014
SUBJECT MATTER OF DECISION:	Procedural fairness; parties’ entitlement to address all issues; challenge to factual findings; s 145(4) of the Workers Compensation Act 1987; application by uninsured employer concerning liability to reimburse payments of compensation made by Nominal Insurer; onus of proof
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr J Hallion, instructed by Owen Hodge Lawyers
First Respondent: Second Respondent: Third Respondent:	Mr A Parker, instructed by Sparke Helmore Lawyers Ms C Goodman, instructed by Slater & Gordon Lawyers No appearance
ORDERS MADE ON APPEAL:	1. Leave to appeal against interlocutory orders is granted. 2. The Arbitrator’s decision of 2 May 2014 is confirmed. 3. The matter is remitted to the Registrar for relisting before another Arbitrator to permit determination of outstanding matters. 4. No order as to costs on appeal.

BACKGROUND

This appeal comes before the Commission following a moderately complex procedural history. Ms Teresa Scala alleged that she received injury arising out of or in the course of her employment with Sydney’s Tune Pty Ltd (the appellant) on 19 September 2012. The appellant did not hold a policy of insurance issued by a licensed insurer, as is required by the provisions of s 155 of the Workers Compensation Act 1987 (the 1987 Act). By reason of that circumstance, Ms Scala made a claim against the Workers Compensation Nominal Insurer (the Nominal Insurer), as is permitted by the provisions of s 140 of the 1987 Act. Ms Scala received notice, by letter dated 1 November 2012, of provisional acceptance of liability by the Nominal Insurer with respect to the claim. Payments of workers compensation benefits were subsequently made to Ms Scala in respect of weekly compensation and medical expenses.
A notice, which was issued in accordance with the provisions of s 145(1) of the 1987 Act, was served by the WorkCover Authority of New South Wales (WorkCover) upon the appellant on 26 February 2013 seeking reimbursement to the Workers Compensation Insurance Fund (the Fund), of payments made by the Nominal Insurer to Ms Scala, within 28 days of that date of service.
The appellant disputed the claim made against it and filed with the Commission an Application seeking particular orders concerning the claim with respect to reimbursement. That Application was subsequently amended by the filing of an Amended Miscellaneous Application on 2 December 2013. That Application named as respondents, WorkCover, as representative of the Nominal Insurer, Ms Scala and GIO General Ltd (GIO). Leave had been granted by an Arbitrator pursuant to Pt 11 r 11.1 of the Workers Compensation Commission Rules 2011, to join GIO as a party to the proceedings. The joinder of GIO came about by reason of the appellant’s intention to seek orders pursuant to s 156A of the 1987 Act, concerning liability arising from Ms Scala’s claim. It must be noted that, for reasons which are outlined below, GIO did not take part in the proceedings conducted by the Arbitrator, and particular orders were made by the Arbitrator concerning the relief sought by the appellant against that party.
The relief sought by the appellant in its Amended Application appears at Part 5 of that document as follows:
“The Applicant claims Orders as follows:
1. Pursuant to s 145(3) of the Workers Compensation Act 1987 (the Act) an order that the Applicant is not liable under s 145(1) of the Act for payment of the amount clamed [sic] in the Respondent’s Notice to Reimburse and Certificated [sic] dated 26 February 2012 [sic, 2013] (the Notice) and/or any amount;
2. Further and/or in the alternative, pursuant to s 145(4) of the Act that the amount claimed in the Notice by the Respondent was not a payment of compensation in accordance with the Act;
3. Further and/or in the alternative, in the event the Commission is satisfied on the evidence that the Applicant is so liable under s 145(1) of the Act (which is not admitted) then pursuant to s 145(4) the Applicant’s liability to make payment be determined in accordance with the Act and the amount claimed in the Notice be substituted for such other amount as the Commission thinks fit;
4.       Directions be issued to the worker for production of particulars requested of her, to Dr Flovo for production of all clinical notes and all records relating to the worker, to WorkCover Authority for production of all documents and information in their possession relating to the worker, to Medicare for production of history of all services and to any other relevant medical providers of the worker.
5.       The Respondent pay the Applicant’ [sic] costs;
6.       Further, an order pursuant to s156A of the Workers Compensation Act 1987 that in place of the Applicant, the Third Respondent be made liable for the whole or other such amount as specified, that the Applicant is found liable to pay.” (emphasis included in original)
The Application came before the Commission for Arbitration on 28 April 2014 and continued, part heard, on 2 May 2014, on which day the Arbitrator delivered his determination of the dispute extempore. A Certificate of Determination issued on that day, in which the following matters are recorded:
“The determination of the Commission in this matter is as follows:
1.I determine that the amount of $15,057.07 is the amount of the Applicant’s liability to the Nominal Insurer in respect of the Notice dated 26 February 2013;
2.I defer making an order under s. 145(7) of the 1987 Act pending the determination of the proceedings in relation to s. 156A of the 1987 Act;
3.The parties have liberty to apply to re-consider order two;
4.I disqualify myself from hearing the balance of the proceedings which relate to s. 156A of the 1987 Act for the reasons given in the ex tempore decision;
5.The Applicant is to pay the First and Second Respondent’s costs as agreed or assessed. I make no order as to costs as between the Applicant and the third Respondent. I declare that the matter is complex for the purposes of costs and order an uplift of 15% in favour of the Nominal Insurer. Reasons for the order were given in the ex tempore decision.”

PRELIMINARY MATTERS

Threshold

I find that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

HEARING

Both WorkCover and Ms Scala consent to the appeal being heard “on the papers” without the need for the conduct of a conference or hearing, as is permitted by s 354(6) of the 1998 Act. The appellant submits that the appeal may not be determined on the papers. The only submission put in support of that proposition is that there are “complex issues involved”. I formed the view that, having regard to the state of the evidence and argument as advanced on the appeal, the matter was not one appropriate to be dealt with “on the papers”. A hearing was appointed, which was conducted on 9 September 2014. The appellant, WorkCover and Ms Scala were each represented by counsel.

INTERLOCUTORY

As may be seen from the content of the Certificate of Determination, the Arbitrator has made a finding concerning the appellant’s liability to reimburse the Nominal Insurer in respect of the sum of payments particularised in the notice served in February 2013. Notwithstanding that finding as to liability, no order has yet been made concerning payment of that sum: s 145(7) of the 1987 Act. The Arbitrator had deferred making such an order, given that any rights the appellant may have against GIO, in accordance with s 156A of the 1987 Act, are yet to be determined. In the circumstances, the rights and liabilities of the parties to the Application have yet to be finally determined. It follows that the orders made by the Arbitrator are interlocutory (see Licul v Corney [1976] HCA 6; 180 CLR 213 at 225). Leave of the Commission to proceed with the appeal is thus required: s 352 3A of the 1998 Act.
Having regard to the nature of the arguments raised on appeal, I consider it desirable for the proper and effective determination of the dispute that leave be granted to the appellant to proceed with the appeal, and I so order.

ISSUES IN DISPUTE

The appellant has furnished three separate sets of submissions. The first accompanied the application and were headed “grounds of appeal and submissions in support”. On 9 July 2014, the appellant furnished a further document headed “Submission in Review” (an inadvertent omission from that document was corrected by filing of a supplementary submission on 10 July 2014). Those submissions were very lengthy and comprised 210 separate paragraphs, many of which were broken into subparagraphs. Submissions in reply were furnished on 26 August 2014.
Notwithstanding the length and complexity of the submissions furnished by the appellant, and the identification of twenty four “grounds” of appeal appearing in the application, the documents regrettably failed to state precisely the error or errors upon which the challenge is made to the Arbitrator’s determination. It appears that the submissions were prepared upon an assumption that the appeal was by way of “review”, as was the case with respect to such appeals prior to amendment of the provisions of s 352, effected by the Workers Compensation Legislation Amendment Act 2010, which came into operation on 1 February 2011. These matters were raised at the hearing, at which time it was acknowledged by counsel appearing on behalf of the appellant that the nature of the appeal, and the powers of the Commission upon conduct of such an appeal, are defined by the provisions of s 352(5) and (7) which provide:
“(5)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.
…
(7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
…”
Counsel drew attention to the submissions at page 46 of the document dated 9 July 2014 which appeared under the subheading “Procedural Fairness and Alternate Medical Case”. It was the appellant’s application that those submissions be considered on appeal in support of a fresh ground of appeal being error of law by reason of an alleged denial of procedural fairness. The inclusion of that new ground was permitted over the objection of both WorkCover and Ms Scala, each of whom were granted leave to supplement argument with any further written submissions within seven days of the date of hearing.
Having regard to oral submissions made by counsel at the hearing, it is apparent that the issues in dispute are as follows:
(a) whether the Arbitrator erred in finding that Ms Scala had received injury, being disc lesion at L4/5, arising out of or in the course of her employment with the appellant, and
(b) whether the Arbitrator had erred in law by failing to afford the appellant procedural fairness.

FRESH OR ADDITIONAL EVIDENCE

At the hearing the appellant withdrew its application seeking leave pursuant to s 352(6) of the 1998 Act to tender on this appeal additional evidence, being a statement by Mr Tony Liu, a principal of the appellant company, dated 27 April 2014.

THE APPLICATION BEFORE THE ARBITRATOR AND RELEVANT EVIDENCE

As noted at [3] above, the appellant’s application before the Arbitrator sought orders which would relieve it from liability to reimburse the Fund that sum of money paid by way of compensation benefits to Ms Scala. The relevant provisions of s 145 of the 1987 Act are as follows:
“(1)   The Nominal Insurer may serve on a person who, in the opinion of the Nominal Insurer, was:
(a) in respect of an injured worker to or in respect of whom a payment has been made by the Nominal Insurer in respect of a claim under this Division, an employer at the relevant time, or
(b)     an insurer under this Act of such an employer,
a notice requiring that person, within a period specified in the notice, to reimburse the Insurance Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice.
…
(3)     A person on whom a notice has been served under subsection (1) in respect of an injured worker may, within the period specified in the notice, apply to the Commission for a determination as to the person’s liability in respect of the payment concerned.
(4)     The Commission may hear any such application and may:
(a)     make such determination in relation to the application, and
(b) make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned, as the Commission thinks fit.
…
(5)     In any proceedings under subsection (4), a certificate executed by the Nominal Insurer and certifying that:
(a) the payments specified in the certificate were paid to or in respect of an injured worker named in the certificate, and
(b)a person named in the certificate was, in the opinion of the Nominal Insurer, liable at the relevant time to pay to or in respect of the injured worker compensation under this Act or work injury damages, is (without proof of its execution by the Nominal Insurer) admissible in evidence in any proceedings and is evidence of the matters stated in the certificate.
(6)     The Nominal Insurer may recover an amount specified in a notice served under subsection (1) (being a notice in respect of which an application has not been made under subsection (3)) from the person to whom the notice was given as a debt in a court of competent jurisdiction.
(7)     An order by the Commission that the Nominal Insurer is to be reimbursed by a person named in the determination concerned may be enforced under section 362 of the 1998 Act.”
The evidence before the Arbitrator, which included a certificate issued pursuant to s 145(5), established that the appellant had been served with a notice to reimburse the Nominal Insurer that amount paid to or in respect of Ms Scala, which payments had been made following her claim made against the Fund as is permitted by s 140 of the 1987 Act. A claim form, dated 25 October 2012, which is in evidence, presented to the Nominal Insurer by Ms Scala included the following description of the injury, which was said to have occurred in Melbourne, Victoria on 19 September 2012:
“Owner of company organised stock to be delivered whilst he was in Sydney. In the absence of someone to carry the stock upstairs, I had to unpack the heavy boxes and carry the heavy evening gowns upstairs to the office. Bending, twisting and falling while carrying stock.”
Ms Scala alleged in that claim form that she had received an injury to her lower back and made a claim in respect of weekly compensation and medical expenses. As noted above, that claim was accepted by the Nominal Insurer in November 2012. Payments of compensation benefits followed the acceptance of that claim.
In a written statement made by Ms Scala on 8 May 2013, which was in evidence before the Arbitrator, it was stated that her employment with the appellant commenced in October 2011, at the appellant’s office in Kippax Street, Surry Hills. The appellant was a wholesaler of ladies’ evening wear apparel, which it manufactured in China. Ms Scala was supervised by the owners of the business, Mr Tony Liu and Ms Fenny Liu. In August 2012, the appellant opened a new showroom in Collingwood, a suburb of Melbourne, Victoria. That shop was managed by Ms Amie Harvey. Ms Scala travelled to Melbourne and trained and generally supervised Ms Harvey over a period of two weeks. The circumstances of Ms Scala’s injury was described in that statement as follows:
“I had to fly down to Melbourne to train and oversee [Ms Harvey]. I was there for 2 weeks.
On Wednesday, 19 September 2012, we were expecting a delivery of gowns. Normally there is a casual young Chinese male who came to assist when needed. He would carry the stock in from the street. I sent the owner an e-mail on the morning to see if the casual was coming in, but they told me he wasn’t, so this necessitated us unpacking the dresses on the sidewalk and carrying them upstairs to the showroom.
The gowns were wrapped in plastic and on wire coat hangers. We could only carry about 3 to 6 at a time. There were 15 cartons containing 20 to 30 gowns in each box.
On two occasions, whilst I was carrying the gowns upstairs, I tripped on the stairs. On the second occasion I felt a sharp pain on the left side of my lower back. On each occasions I actually fell onto the steps and I put my hands out to protect myself.
At the time I was wearing ballet flat shoes. I normally wear high heels but because I have to move the stock I always brought in the lower heeled shoes.
Because the stairs were so narrow the two of us could not be on them at the same time, therefore I am not sure if [Ms Harvey] was upstairs or downstairs. I am not sure if she saw me trip.
I did not mention anything to [Ms Harvey] at the time, it was not until later in the afternoon that I mentioned it to her. I basically told her I hurt my back when I tripped on the stairs and she mentioned there was Panadol in the kitchen, which I took.”
Ms Scala’s statement includes an assertion that she “officially advised [Mr Liu] of [her] injury in an email on 9 October 2012”. It was earlier stated that:
“I think it was on the Friday [following the injury] that I mentioned Tony [sic, to Tony] that I had hurt my back, it was during a telephone conversation when he mentioned he wanted me to go back to Melbourne. I told him about my back and he just said ‘rest and see how you go’.”
Ms Scala further stated:
“I think resumed [sic, I resumed] work on Monday 24 September 2012 and I continued until 3 October 2012. I was finding it difficult and would leave work early, but I did not want to take the time off because there were deadlines to meet.”
On 4 October 2012, Ms Scala’s general practitioner, Dr Henry Stenning, certified her as being unfit for work until 12 October 2012. It seems that Ms Scala was absent from work until 15 October 2012. On that day she attended the appellant’s office, at which time her employment was terminated.
Ms Scala stated that she had “suffered with a prior backache, it is not in the same area and I attended the same chiropractor”. Ms Scala had sought treatment from a chiropractor in Sydney immediately following her return from Melbourne. Details of her attendances are discussed below.
The appellant tendered a written statement made by Mr Xin Liu (known as Tony Liu), a director of the appellant company dated 2 December 2013. The appellant commenced trading in April 2011. The company had no employees until Ms Scala was employed in October 2011. Mr Liu further stated that the appellant:
“relied upon [Ms Scala] for advice in the most essential aspects of the running of our business, due to our lack of experience and not well command of the English language. [Ms Scala] told us nothing about the need to buy worker’s compensation cover. My wife and I were unaware at the time that the company was required to have worker’s compensation insurance.”
Mr Liu further stated that in about May 2012, following a discussion with the appellant’s landlord, contact was made with an insurer, the GIO, following which business insurance cover was arranged.

Mr Liu stated that, before September 2012, Ms Scala “had taken a couple of hours off work on a regular basis to obtain chiropractic treatment for her back”. Mr Liu denied that he or his wife had been informed of Ms Scala’s alleged injury. Mr Liu confirms in his statement that Ms Scala’s employment was terminated on 15 October 2012. The grounds of that termination were stated to be “poor performance”.
Mr Liu stated that the first time he knew about Ms Scala’s alleged back injury was when he had a telephone call from an officer of WorkCover, on or about 5 November 2012. Mr Liu stated that he believed that Ms Scala had lodged a claim “because of the termination of her employment”. Mr Liu, who had seen a copy of an email dated 9 October 2012 said to have been sent by Ms Scala to the appellant, stated that “I have reviewed my records and have no record of having ever received this and have no evidence to say if it was sent”. Mr Liu also denied having been provided with a medical certificate by Ms Scala relating to her alleged injury and further stated that she had not informed him of her claim. It is asserted in that statement that “the reason [Ms Scala] lodged a claim directly with WorkCover because [sic] she did not bother obtaining a worker’s compensation insurance coverage for our employees”.
Mr Liu’s statement includes a summary of a discussion which he had with Ms Harvey, the appellant’s employee in Melbourne. Details of those matters and of the direct evidence found in the statement of Ms Harvey, are addressed below.

The evidence of Ms Scala’s co-workers

The appellant tendered a statement made by Ms Harvey which is undated but is endorsed with a date of receipt being 25 February 2013. Ms Harvey commenced employment with the appellant as the Victorian state manager in early September 2012. She stated that she was trained at the appellant’s head office in Sydney by Ms Scala. During that period Ms Scala complained to Ms Harvey about back pain.
The Melbourne store opened in early September 2012 and Ms Scala attended on or about 18 September 2012. Ms Harvey stated that on the first day of Ms Scala’s attendance at the premises she made complaint of back pain. On 19 September 2012, Ms Scala had stated that her back was painful early in the day. Boxes of evening gowns arrived at the store after 10.30 am. It was necessary that the garments be taken from the boxes in which they were delivered and carried upstairs to the store. Ms Harvey stated that she “repeatedly” told Ms Scala not to carry any garments upstairs, as she had told Ms Harvey of her back pain. Ms Scala proceeded to help. Each garment had a weight of approximately 300 grams and Ms Harvey stated that “it was up to us to carry as many garments as we wished”.
Ms Harvey states that she was not told by Ms Scala that she had fallen while carrying the garments, nor did she see her fall. Ms Harvey stated that after Ms Scala’s employment was terminated, it had been stated by Ms Scala that she had been unfairly treated.
The statement of Mr Lium made on 2 December 2013m contains a summary of a discussion he had with Ms Harvey. That summary appears between page six and page nine of that statement. It is there recorded that Ms Harvey stated that the boxes containing the gowns were delivered at the back of the building. They were placed outside the doorway of the back entrance. The stairs were approximately 1.2 metres wide and quite narrow. Only one person could go up and down at a time. There were two flights of stairs, each flight has about 10-12 steps. Either Ms Harvey or Ms Scala stayed on the sidewalk during the transfer of the gowns to prevent theft. The boxes were opened with a box cutter and it was decided that one person was to hand the other the dresses from the boxes. The boxes were about 5 feet by 3 feet, the transfer task took approximately half an hour. Each box contained about 20 dresses. Ms Harvey took more dresses up on each trip than did Ms Scala. Both Ms Scala and Ms Harvey walked up the stairs slowly dragging the gowns behind them. The gowns could not be carried in front of the carriers because it was hard to see the stairs.
Those notes record that during the transfer of the gowns Ms Harvey did not see Ms Scala fall, twist her body or complain of any hurting of her back. Ms Scala made no complaint to Ms Harvey concerning any injury on that day. Ms Harvey was recorded to have told Mr Liu that on that day Ms Scala was leaving to return to Sydney and Ms Harvey dropped Ms Scala off so that she could catch the Skybus. There was no complaint made of back pain that night. Ms Harvey states that Ms Scala was “fine when she left”.
The appellant tendered a copy of a statement made by Ms Charlotte White dated 5 March, there being no year recorded but a date of receipt is endorsed “5/03/2013”. That statement is as follows:
“I, Charlotte White of [xxx] NSW, Marketing Assistant state as follows:
1.     I commenced employment with Sydney’s Tune Pty Ltd in about May 2012 as a Sales and Marketing Assistant at the Sydney Office in Surry Hills.
2.      I worked closely with Teresa Scala in my role until her employment was terminated in about mid October 2012.
3.      Teresa had complained of back pain shortly before her alleged injury in September 2012. Prior to her alleged injury, I recall she told me that she had back pain. Following her return from Melbourne, she said her back was in more pain and she believed it happened when she carried stock in Melbourne.
4.      I ceased working for the Company in about mid February 2013 as I was offered another position.
I provide this statement at my own free will. This is a true statement made to the best of my recollection.”

Medical evidence

There are a number of medical certificates issued by Dr Henry Stenning, general practitioner. The earliest is dated 4 October 2012. That document certifies that Ms Scala was “suffering from a medical condition” and was unfit to work up to and including 12 October. There is a WorkCover NSW medical certificate dated 23 October 2012 issued by Dr Stenning. The date of injury is noted as being 19 September 2012. The diagnosis is stated as being “discogenic lesion L4/L5 sciatica left side”. Dr Stenning states in that certificate:
“In my opinion the worker’s employment is a substantial contributing factor to this injury.”
Ms Scala was certified as being unfit until 5 November 2012.
A copy of a report by Dr James Linklater concerning an MRI of the lumbosacral spine dated 4 October 2012 is in evidence. The conclusion stated by Dr Linklater is as follows:
“At L4/5, there has been a large left posterior paracentral disc extrusion, with resultant left antero-lateral indentation on the thecal sac, posterior displacement and compression of the left L5 and to a lesser extent S1 nerve roots.
Segmentation anomaly at the lumbo-sacral junction, with lumbarisation of L5.”
There is a report of Dr Andrew Strokon, orthopaedic surgeon, dated 5 October 2012, in evidence. Ms Scala first consulted Dr Strokon on 5 October 2012. A history is recorded in that report that Ms Scala:
“…developed low back pain about two weeks ago when she was helping to carry heavy boxes around at work. Initially the pain was localised to the lumbosacral area. Despite the pain, she continued working. She denies any previous history of any significant back problems. About one week ago, however, the pain became significantly worse, this time propagating down the left leg as far as the foot. At no stage has she experienced any motor or sensory loss.”
Dr Strokon recorded in that report that the MRI “shows a large disc prolapse at L4/5, causing the sciatica”. Dr Strokon referred Ms Scala to Dr Martin McGee-Collett, neurosurgeon, for further management.
There is a report by Dr McGee-Collett addressed to Dr Strokon, dated 9 October 2012, in evidence. Dr McGee-Collett was consulted by Ms Scala on 9 October 2012. A history was recorded that Ms Scala had “hurt her back at work about three weeks ago and developed severe left lower limb pain about one and a half weeks ago which has persisted”. Dr McGee-Collett diagnosed “discogenic radiculopathy as the source of [Ms Scala’s] pain”. His report outlined his proposed treatment. A subsequent report dated 6 November 2012 is also in evidence. That report records significant improvement in Ms Scala’s symptoms.
A report dated 17 June 2013 prepared by Associate Professor Michael D Ryan, clinical associate professor of surgery orthopaedics and spinal surgery, was tendered by WorkCover. Associate Professor Ryan was qualified by WorkCover to provide that report for the purposes of this litigation. The report includes a history that Ms Scala was injured in the course of her work on 19 September 2012 when she was “required to unpack heavy boxes and carry heavy garments upstairs to an office”. That report further records that Ms Scala “experienced severe exacerbation of low back pain and developed left sided sciatica”. The MRI findings were noted in that report. Associate Professor Ryan noted a past history being that Ms Scala suffered from “somatic low back pain in the past, for which she has attended a chiropractor, Dr Floro of Drummoyne”. It is also recorded that Ms Scala had initially consulted Dr Floro on 5 November 2011. Associate Professor Ryan noted that, whist Ms Scala attended Dr Floro initially on 5 November 2011, the “record of treatment” by Dr Floro is “limited to the period after her injury”. It is also recorded in that report that Ms Scala “had a background of low back pain from February 2011, and did not have left buttock or radiating leg pain until 19 September 2012”. Associate Professor Ryan attributed Ms Scala’s pain to the presence of “a left-sided L4/5 disc protrusion, as demonstrated in [Ms Scala’s] MRI”.
Exhibit A tendered before the Arbitrator is a copy of a general practitioner’s notes which record that Ms Scala attended on 22 November 1994 complaining of back pain. Those notes indicate that following physical examination that practitioner, said to be Dr Irving, referred Ms Scala for an x-ray of the thoracic spine. There is a copy of an x-ray of the lumbosacral spine, dated 15 September 2001, which includes a comment:
“A moderate scoliosis convex to the left. Partial lumbarisation of SV1. Left sacroiliac joint not well seen. Otherwise normal study.”
The exhibit also comprises a copy of a letter from Ms Kay Levy, physiotherapist, dated 12 December 1994 addressed to Dr Irving. Ms Levy reports that Ms Scala had been complaining of “interscapular pain which was intermittent”. Following a short period of treatment, Ms Scala reported that she had no pain. Treatment was discontinued.
Exhibit B which was tendered before the Arbitrator comprised two pages of clinical notes compiled, it seems, by Mr D J Ryken, chiropractor. The first consultation date noted is 21 December 2008 at which time Ms Scala complained of stiffness in her low back. There were four attendances for treatment during that month, following which there is a record of an attendance in January 2010, at which time a complaint was made of “little stiffness in low back but generally quite good”. Regular attendances by Ms Scala are recorded thereafter up until August 2010. Complaints made on those occasions relate to stiffness.
The appellant tendered copies of Dr Floro’s notes relating to attendances by Ms Scala between February 2011 and 15 September 2012. Seventeen attendances are recorded in those notes during the period up to 15 September 2012. Ms Scala’s complaints concerned pain in her lower back. Those notes also record complaints of discomfort and stiffness in Ms Scala’s upper back. It is recorded on 15 September 2012 that Ms Scala’s back “has been feeling better”. Some discomfort is recorded which was located “through left upper L region”.
Dr Floro’s clinical notes in respect of Ms Scala’s attendances between 22 September 2012 and 5 December 2012 were tendered in evidence by WorkCover
The history noted on 22 September 2012 was as follows:
“Week in Melbourne. Lots of stock was delivered and had to carry it up stairs. Felt some low back pain at the time, but the pain has worsened substantially over the last two days. Pain mostly localised to lumbosacral region. No radicular pain into LL or neuro S + s.”
The notes on that day record “positive slump and SLR on left at 40˚. At L4/5/S1 IS pain”.
Dr Floro’s notes record frequent consultation during September 2012. During a house call on 1 October 2012, Dr Floro recorded Ms Scala reporting “some numbness into left buttock and occasionally down to left calf”. An MRI examination was arranged by Dr Floro which, on 4 October 2012 was reported to have demonstrated “large L4/5 left sided disc prolapse”. The notes record frequent attendances during the months of October and November 2012. The last recorded attendance was on 5 December 2012 where Dr Floro noted that Ms Scala was “coping reasonably”.
A copy of correspondence from WorkCover’s solicitors to Professor Ryan, dated 17 April 2013, was tendered by that party in the course of submissions following a clear indication from the Arbitrator that he required evidence as to what material was in that practitioner’s possession at the time the examination was arranged. That correspondence, Exhibit C, had attached a complete copy of Dr Floro’s clinical notes and Dr McGee- Collett’s reports as well as other material.

The claim form

Ms Scala described the injury in her claim form which was dated 25 October 2012, addressed to WorkCover (Uninsured Liabilities), as follows:
“I had to unpack the heavy boxes and carry the heavy evening garments upstairs to the office. Bending, twisting, and falling while carrying stock.”
The injury was noted in the claim form as being to her lower back. In response to a question “was this part of your body normal before the accident?” Ms Scala replied “no”. Under the heading “other injuries or conditions”, a question is put in that form, “have you previously suffered from a similar injury or condition?” in response to which Ms Scala ticked a box adjacent to the word no.

THE DECISION OF THE ARBITRATOR

The Arbitrator identified the issues in dispute as follows (at T2.2):
“(i)    that the worker, Ms Teresa Scala, (the worker) did not suffer injury as alleged on 19 September 2012;
(ii)     that if the worker did suffer injury that the employment was not a substantial contributing factor to the injury within the meaning of section 9A of the Act;
(iii)    summarising part 6(3) of the Application, that if any injury or aggravation occurred, the effect of any injury or aggravation had ceased at the time the amounts claimed in the notice were paid;
(iv)    that the payments by the nominal insurer have not been paid in accordance with the Act;
(v)     that any incapacity does not arise from any compensable injury.
(vi)    that the worker failed to give notice of claim or injury within the meaning of sections 254 and 261 of the Workplace Injury Management and the Workers Compensation Act 1998 (the WIM Act).”
It was noted by the Arbitrator that the parties had agreed to “separate” the applications made by the appellant. The relief sought against GIO pursuant to s 156A of the 1987 Act was “deferred” for later consideration by the Commission. It was this fact, which was the subject of agreement during an earlier teleconference, that had the result that GIO did not appear at the hearing before the Arbitrator.
Following a summary of the evidence, the Arbitrator made particular reference to the clinical notes of Dr Floro, the chiropractor who had treated Ms Scala both before and following the alleged injury. A note had been made by that practitioner during consultation on 22 September 2012 of “Positive slump” on examination of the lumbar spine. Upon reliance of the expertise of the Commission, the Arbitrator stated (at T2.4) that “… a reference in the notes to a positive slump is a reference of [sic] either a herniated disc or neural tension in the herniated disc”.
The Arbitrator acknowledged that Ms Scala had consulted Dr Floro on a “weekly basis” prior to the alleged injury, but rejected the submission put on behalf of the appellant that her attendance for treatment after 19 September 2012 was “a simple continuation of the regime of treatment”. The Arbitrator stated (at T2.15):
“In my view, the chiropractic notes for the period 22 September to 29 September 2012 indicate a clear exacerbation of the worker’s low back pain.”
Following a summary of the expert medical evidence, including that of Dr McGee-Collett, the Arbitrator stated (at T2.21):
“The opinion of Dr McGee-Collett is that the worker hurt her back at work about three weeks ago and there was a development of left severe sciatica one and a half weeks later. The inference I draw from the report is that the left leg sciatica was a development of the work injury.”
The Arbitrator acknowledged the appellant’s submission that Dr McGee-Collett’s history did not include any reference to the “pre-existing back or somatic back pain, as referred to in another report”. The Arbitrator’s view was expressed that the absence of such a reference to that history was “a matter going to weight”.
The Arbitrator proceeded to consider the terms of the email forwarded by Ms Scala to Mr and Mrs Liu on 9 October 2012. That email was expressed as being an “update”. The Arbitrator made the following statement concerning this evidence (at T2.22):
“The email on 9 October 2012 is predicated, in my view, on an understanding there has been previous discussions in relation to the worker’s back injury. It doesn’t read as something that is a new event and the word ‘update’ is compelling that there have been discussions by the worker with [Mr Liu] in relation to a back injury on 19 September 2012. That is the only reasonable conclusion that one could draw, certainly in circumstances where the worker had been off work from about 3 or 4 October 2012.”
The Arbitrator proceeded to consider the evidence concerning the termination, on 15 October 2012, of Ms Scala’s employment. It was noted by the Arbitrator that Mr Liu had provided no evidence as to Ms Scala’s “poor performance” other than circumstances which occurred in March 2012. The Arbitrator, at this point of his Reasons, made the observation that Mr Liu had applied, on behalf of the appellant, for a policy of workers compensation insurance on 16 October 2012.
The Arbitrator proceeded to consider the issue originally raised by the appellant concerning notice of injury and the making of a claim. It was noted that the appellant made “no submissions” in respect of defences founded upon any suggested failure to comply with the requirements as to notice and claim. The Arbitrator further noted that the appellant, at the hearing, had accepted that the email of 9 October 2012 had in fact been sent by Ms Scala to the appellant.
The Arbitrator made a number of findings (at T2.24) concerning Ms Scala’s giving of notice of injury and making a claim and an express finding was made that the requirements of “ss 254 or 261” of the 1998 Act had been complied with by her. Reference was made by the Arbitrator to evidence of Mr Liu in responses to WorkCover which contradicted the conceded giving of notice by email.
The notes made by Mr Liu which appear in his statement referred to at [26]–[29] above, being hearsay evidence recorded by Mr Liu, gave rise to the Arbitrator’s expression of hesitance (at T2.24.29) “in accepting any portion of the hearsay version provided by Ms Harvey to Mr Liu…”.
It is recorded by the Arbitrator (at T2.25) that “… it has become a serious issue in the case as to whether [Ms Scala] suffered a discogenic lesion at L4/5 by reason of the injury on 19 September 2012”.
The Arbitrator returned to the expert medical evidence including that of Dr Stenning, as found in the medical certificate issued by that practitioner, Dr McGee-Collett and Associate Professor Ryan. The Arbitrator acknowledged (at T2.26) that “there is some inherent confusion in Professor Ryan’s report about his knowledge of the worker’s previous back pain at various stages throughout the report”. The Arbitrator referred in the course of his Reasons to the documentary evidence including further notes of Dr Floro and correspondence forwarded to Professor Ryan by the solicitors acting on behalf of WorkCover. A submission made on behalf of the appellant that Dr Ryan did not have the history concerning the delay in the onset of left sided sciatica was noted by the Arbitrator. The Arbitrator expressed the view that it was “clear from exhibit C” that Professor Ryan had access to Dr McGee-Collett’s reports including the history of onset of sciatic pain one and a half weeks following the incident. An inference was drawn by the Arbitrator (at T2.28.23) that “Dr Ryan had the proper history of the development of left sided sciatica”. It was further accepted by the Arbitrator that Professor Ryan “did have the full set of Dr Floro’s notes”.

The Arbitrator proceeded to consider the evidence of Ms White and Ms Harvey. The evidence of Ms White was accepted by the Arbitrator. The evidence of Ms Harvey was not accepted in its entirety by the Arbitrator. What was accepted was the evidence that the garments carried on the day in question weighed approximately 300 grams each.
A concession was made by the appellant in the course of submissions before the Arbitrator, as noted by the Arbitrator in his Reasons (at T2.35.25), that “there was no radicular plan [sic, pain] prior to 19 September 2012”. The Arbitrator also noted (at T2.35.30) a concession made by the appellant that “there may be an aggravation of back pain on or about 19 September 2012…”, and he also noted (at T2.35.32) that the appellant’s case was “that [the 19 September 2012 incident] did not cause the disc lesion as shown on the MRI scan and/or the resulting sciatica”.
The Arbitrator proceeded to consider the evidence concerning the circumstances prevailing whilst Ms Scala transported the gowns up the staircase and the arguments advanced on behalf of the appellant that there were inconsistencies and deficiencies in that evidence. A finding was again made that the gowns in question weighed 300 grams each as was stated in other evidence. Given the number of gowns shifted at any one time the Arbitrator made the observation (at T38.26) that “the reference in many of the doctors’ reports to the use of the adjective ‘heavy’ when carrying garments was simply incorrect”. The Arbitrator drew an inference (at T38.9) that carrying the evening gowns upstairs “would be awkward to walk with and cumbersome to carry”. It was also accepted by the Arbitrator that the worker tripped or stumbled as she carried out this task.
A summary of the appellant’s arguments in relation to the deficiencies in the expert medical evidence was made by the Arbitrator in the course of his Reasons. A finding was made that Professor Ryan had a proper history of the nature of the back pain preceding the 19 September 2012 incident. In relation to further argument advanced by the appellant the Arbitrator concluded (at T2.42) that he did “not accept the submission [of the appellant] that the delayed onset in sciatica symptoms which occurred on or shortly before 1 October 2012 is indicative that the disc lesion did not occur on 19 September 2012” (at T2.42).
The Arbitrator reiterated his acceptance of the evidence of tripping or falling given by Ms Scala. That conclusion was reached notwithstanding the Arbitrator’s expressed concern which had been raised by reason of the manner in which the claim form had been completed by Ms Scala.
The Arbitrator dealt with argument raised by the parties concerning the question of the onus of proof. The view was expressed that “the onus of proof is on WorkCover”. Reference was made by the Arbitrator to the decision of the Commission (Acting Deputy President Moore) in WorkCover Authority of New South Wales v Bowie Couriers Pty Limited [2006] NSWWCCPD 241 (Bowie).
An argument advanced by the appellant before the Arbitrator that the expert medical witnesses did not have the benefit of a “fair climate” when expressing their views was rejected by the Arbitrator.
The Arbitrator proceeded to consider the application of s 9A of the 1987 Act to facts as found. A finding was made that employment was a substantial contributing factor to the injury within the meaning of that section. That conclusion was reached having regard to the Arbitrator’s findings that the disc lesion followed upon conduct by Ms Scala of “repetitive work over a period of time involving awkward carrying of gowns upstairs with some bending, twisting and falling or stumbling”.
The Arbitrator proceed to deal with a number of matters which are not relevant on this appeal and proceeded to make the orders which appear at [5] above.

DISPOSITION OF THE APPEAL

I have earlier observed, at [11] above, that argument as advanced by the appellant on this appeal is directed to the establishment of grounds permitting “review” of the Arbitrator’s decision. That such approach was incorrect was acknowledged by counsel at the hearing of the appeal. A large proportion of the “grounds” of appeal suggest a failure on the part of the Arbitrator to afford “proper weight” to various aspects of the evidence. Particular findings, which were not ultimate findings, are challenged. The submissions include reference to a number of authorities in support of suggested misdirections, said to have been committed by the Arbitrator when assessing the evidence before him. The difficulties presented by these prolix submissions were raised with the appellant’s counsel at the hearing. It was then acknowledged by counsel (at Appeal T.4) that the appellant’s fundamental complaint is an assertion of error of fact as to the occurrence of injury as found by the Arbitrator.
A further difficulty arises having regard to the appellant’s approach in submissions to the suggested denial of procedural fairness. At the conclusion of argument concerning the natural justice issue, the written submissions include the following (at [209]):
“While it is the Appellant’s principal contention [that] the evidence does not support the Arbitrator’s findings, if it found it was open for the proceed [sic, Arbitrator to proceed] as he did in respect of the use he made of Professor Ryan’s implicit history, then the applicant was denied the opportunity to address that case and so denied procedural fairness.”
The difficulty to which I refer arises when the appellant’s earlier submission at [207] is considered:
“In the Appellant’s submission the Commission on review faces no disadvantage in determining the substantive merits of the appellant’s application and the matter does not need to be remitted.” (emphasis added)
The appellant appears to treat the natural justice ground as a “fall back” position should the challenge to the factual finding be rejected. Should that circumstance arise, it seems to be the appellant’s assertion that, upon acceptance of its argument as to defect of natural justice, the Commission should proceed to re-determine the “the substantive merits” of its case on appeal.
Notwithstanding the appellant’s approach, I believe it appropriate that the argument raised concerning alleged denial of procedural fairness be addressed before the allegation of factual error is considered. If the appellant’s argument prevails there would be a need to revoke the Arbitrator’s determination following which the question as to further conduct of the appeal, that is redetermination on appeal or remitter, may be decided. That question necessarily requires consideration of the force of the appellant’s argument concerning factual error. Such an approach would, properly, avoid the appellant being treated “as bearing the burden of displacing an adverse decision which, for lack of natural justice, ought never to have been reached” (as stated by the learned author in G A Flick, Natural Justice Principles and Practical Application (Butterworths, 2^nd ed, 1984) at 42).

Procedural Fairness

The appellant asserts that it was denied procedural fairness given that the Arbitrator’s decision concerning the occurrence of injury was founded upon “a line of reasons which was not based on the respective cases submitted” (submissions at [193]), and that “the critical documents setting out [Ms Scala’s] duties, which was [sic] pivotal to the Arbitrator’s Reasons was [sic] never part of the WorkCover case” (submissions at [194]).
It is clear that the Arbitrator was obliged to conduct the proceedings in a manner whereby procedural fairness was afforded the parties (see South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421 per McColl JA at [91]). As to fairness, it was stated by Emmett JA (Beazley P and Gleeson JA agreeing) in Ball v McInerney [2014] NSWCA 331 at [57]:
“The content of the requirement of fairness will depend upon the circumstances and may be affected by what is said and done during the proceedings. The focus is upon the consequence of any departure from proper procedure because what is ultimately in issue is whether unfairness has resulted from the process, not whether an expectation has been disappointed: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (Lam) [2003] HCA 6; 214 CLR 1 at [34] (Gleeson CJ). The concern of the law is to avoid practical, and not merely theoretical, injustice: Lam at [37].”
The appellant’s criticism is founded upon a suggestion that the Arbitrator, in drawing inferences concerning Dr Ryan’s opinion evidence, embarked upon a process of reasoning which in no way reflected the parties’ submissions as to the occurrence of injury. Notwithstanding this submission it was, in my opinion, plainly the case relied upon by WorkCover and Ms Scala that the events occurring during the 30 minutes on 19 September 2012 when the gowns were manually transported had caused, or aggravated, a disc lesion at the lumbar level. It is also clear, as stated by the Arbitrator in the course of his Reasons (noted at [63] above), that some “confusion” was apparent concerning Dr Ryan’s knowledge of relevant past history at the time of preparation of his report. It was that confusion which, in my view, gave rise to the Arbitrator’s invitation to counsel appearing for WorkCover to consider tender of correspondence relevant to the medico-legal examination conducted by that practitioner.
That correspondence, which had attached Dr Floro’s complete record, was tendered (Exhibit C). It is of significance that the tender of that evidence occurred during the course of submissions put by counsel for the appellant. No objection to the tender of that evidence was taken. I consider that the Arbitrator’s approach concerning that evidence was consistent with the manner in which procedure before the Commission is regulated, in part, by s 354 of the 1998 Act which, relevantly, provides:
“354   Procedure before Commission
(1)    Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)    The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3)    The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
…”
The complex argument advanced on behalf of the appellant concerning this suggested denial of procedural fairness appears to come down to an assertion that “[WorkCover] did not seek to have the history in the report of Professor Ryan read with exhibit C” (submissions [197(vi)]).
The Arbitrator’s reasoning, of which complaint is made, is not explicitly identified by the appellant by reference to the transcript. However, it seems that the reasoning in question is that which appears between T2.26 and T2.29. It is, in my opinion, apparent that the Arbitrator at that point of his Reasons was addressing the appellant’s submissions which were critical of Professor Ryan’s evidence. The inferences drawn by the Arbitrator as to the state of Professor Ryan’s knowledge of relevant history were founded upon the evidence and the appellant’s arguments were taken into account. Indeed the appellant persuaded the Arbitrator that the evidence did not support the description of the gowns in question as being “heavy”.
The Arbitrator was required to determine matters in dispute according to the substantial merits of the case: s 352(3) of the 1987 Act. That the state of the medical evidence, particularly that of Dr McGee-Collett and of Professor Ryan, was, to an extent, unsatisfactory is plainly stated by the Arbitrator. His concerns were demonstrated during exchanges in the course of submissions and by his exhortation that further evidence be adduced.
I reject the appellant’s argument that the Arbitrator’s approach to the evidence, in particular the drawing of inferences as to Professor Ryan’s knowledge of relevant history, constituted a recasting of argument as presented by WorkCover and Ms Scala. The case was that injury was caused by physical activity on the day in question. Not all of Ms Scala’s allegations concerning prevailing circumstances were accepted by the Arbitrator. What was found proven was that, as alleged, significant symptoms which were to be distinguished from earlier episodes of pain, followed the activity described. On subsequent examination, and following MRI investigation, a disc rupture was identified. Both the history of onset of that pain and disability and the opinions of the medical witnesses permitted the Arbitrator’s conclusion as to the occurrence of injury. That which was accepted was not a case foreign to the allegations made. The appellant’s criticism of the Arbitrator’s reasoning must be rejected. Denial of procedural fairness is not made out.

The Arbitrator’s Determination of the Issue of Injury

The appellant asserts factual error on the part of the Arbitrator in determining that Ms Scala received injury arising out of or in the course of her employment. The Arbitrator, following a lengthy summary of argument raised by the parties, expressed the following conclusion (at T2.46):
“Based on the entirety of the material, particularly the clinical notes of the chiropractor on 22 September 2012 together with the opinions of the treating orthopaedic and neurosurgeon, the general practitioner and Professor Ryan, I find on the balance of probabilities that the worker suffered a disc lesion at L4/5 on the day in question. In my view, that finding deals with the issue arising under section 4 of the 1987 Act.”
The appellant’s written submissions include the following (at [15]):
“The Appellant’s principal complaint is that on the evidence, WorkCover did not discharge the onus of proof that the Worker suffered an injury on 19 September 2012 and/or that her employment was a substantially [sic] contributing factor to the Pathology.”
It should immediately be noted that the Arbitrator had made reference during the hearing to the question of onus of proof. The Arbitrator referred to the Commission’s decision in Bowie and stated (at T7), initially, that his “preliminary view is that the onus of proof on [sic] the issues raised by the employer are on the WorkCover Authority. That’s my preliminary view based on [Bowie]” (at T7).
Acting Deputy President Deborah Moore in Bowie was addressing challenged orders made by an Arbitrator, in the context of s 145(4)(a) of the 1987 Act, that Bowie was not liable to reimburse the WorkCover Authority in respect of compensation payments made by it in accordance with Div 6 of Pt 4 of the 1987 Act. When reaching her conclusion concerning the merits of the appeal, the Acting Deputy President stated (at [118]):
“The onus was on WorkCover to prove, on the balance of probabilities, that the employment concerned was a substantial contributing factor to the injury once, as the Arbitrator pointed out, Bowie raised the issue in connection with its liability to the Worker. The evidence fell short of that requirement. The doubts expressed by the Arbitrator were sufficient for him to conclude that WorkCover had not discharged its onus.”
In the course of his Reasons, the Arbitrator in the present matter expressed his concluded view concerning the question of onus of proof when it was stated (at T2.43–44):
“In this regard, I accept [the appellant’s] submissions that the onus of proof is on WorkCover. Although no authority was cited I agree with the submission and refer to the decision of Deputy President Moore, as she then was, in [Bowie]. I accept, and if there's any indication in these reasons to the contrary as to reversing the onus they should be ignored, that the issues raised by Mr Halligan (sic, Hallion) on behalf of the applicant are all matters upon which the WorkCover Authority has to prove on the balance of probabilities in respect of their notice for recovery.”
Whilst the question of onus of proof was determined by the Arbitrator in favour of the appellant, and that matter was not the subject of careful attention at the hearing of the appeal, the matter was touched upon during argument before me. Following consideration of matters raised at that time together with relevant authority, including Bowie, I am of the view that the legal burden of proof was upon the appellant and that the Arbitrator’s conclusion noted at [98] above was incorrect. It is apparent that the observations made by Moore ADP in Bowie were directed to proof of matters arising under s 9A and, further, that the arbitrator in Bowie had spoken of a “shifting evidentiary onus”. Those matters were not addressed by the Arbitrator in the present matter. Whilst my view of this matter has no direct consequence so far as the outcome of the appeal is concerned, I consider it appropriate to briefly state my views for so concluding.
In Gould v Vaggelas (1985) 157 CLR 215, the High Court was concerned with the question as to whether proof of reliance upon a representation in circumstances where deceit was alleged had been established. Following reference to the decision of Dixon J in Potts v Miller (1940) 64 CLR 282, in which case his Honour considered the heavy burden upon a plaintiff concerning inducement by false statement, Wilson J stated (at 238):
“There is no reason to doubt the correctness of [Dixon J’s] statements. They accord with sound principle, namely, that a plaintiff carries the burden of establishing every element of his cause of action. At the same time, one can readily understand why it is in cases of deceit that a tribunal whose duty it is to find the facts may require a defendant to make some answer to the case that is put against him. Such cases are of a kind where in the general experience of mankind the facts speak for themselves. Where a plaintiff shows that a defendant has made false statements to him intending thereby to induce him to enter into a contract and those statements are of such a nature as would be likely to provide such inducement and the plaintiff did in fact enter into that contract and thereby suffered damage and nothing more appears, common sense would demand the conclusion that the false representations played at least some part in inducing the plaintiff to enter into the contract. However, it is open to the defendant to obstruct the drawing of that natural inference of fact by showing that there were other relevant circumstances. …It is entirely accurate to speak of an onus resting on a defendant to draw attention to the presence of circumstances such as those I have described in order to show that the inference of the fact of inducement which would ordinarily be drawn from the fraudulent making of a false statement calculated to induce a person to enter into a contract followed by entry into that contract should not in all the circumstances be drawn. But it is no more than an evidentiary onus – an obligation to point to the existence of circumstances which tend to rebut the inference which would ordinarily be drawn from the primary facts.”
Those observations by Wilson J were recently considered by the plurality (French CJ, Kiefel, Bell and Keane JJ) in Sidhu v Van Dyke [2014] HCA 19 (16 May 2014) where an argument raised concerned a question of discharge of an “evidentiary onus” to displace a particular inference was considered. Their Honours stated, omitting references, between [63] and [65]:
“63. It may be said immediately that to speak of an evidentiary onus upon the appellant is to create a risk of distraction from the required analysis. To speak of the evidentiary onus in its strict legal connotation is to speak of the burden of adducing or pointing to sufficient evidence to raise an issue for determination by the court. In the present case, there can be no doubt that the issue as to the respondent's reliance upon the appellant’s promises was a live issue.
64. The real question was as to the appropriate inference to be drawn from the whole of the evidence, including the answers elicited from the respondent in the course of cross-examination. In that regard, as was said by Gummow, Hayne, Heydon and Kiefel JJ in Campbell v Backoffice Investments Pty Ltd, consideration of the application of the process of reasoning adumbrated by Wilson J in Gould v Vaggelas ‘must always attend closely to all of the evidence that is adduced that bears upon the question being examined.’
65. One should not be deflected by considerations of terminology from dealing with the substance of the argument raised by the respondent's notice of contention. It is sufficiently clear that the notion of evidentiary onus is not being used in its strict legal sense. Insofar as the notice of contention speaks of an evidentiary onus upon the appellant to rebut the inference which would otherwise be drawn, it reflects the language used in Gould v Vaggelas by Wilson J at different points in his reasons. While Wilson J expressed himself in this way, he also made it clear that he gave no countenance to the notion that the onus might shift to the defendant to disprove detrimental reliance. The same view may fairly be taken of the notice of contention.”

Whilst the present facts are very different to those considered by the High Court in both matters earlier cited, the Commission is here dealing with an uninsured employer seeking orders pursuant to s 145(3) and (4) concerning its liability to reimburse WorkCover. A matter which it must establish is that Ms Scala did not receive injury as she alleged. The evidence relied upon included Mr Liu’s denial that injury was reported, the lay evidence of Ms Harvey, the antecedent history of back disability and the suggested inconsistent histories as to injury. There was, in my opinion, a need for the appellant to bring evidence to found its application. There may then be a shift of the “tactical burden”, but only if the evidence raised disputing liability is of a character to permit, if not refuted, an inference that the employer is not liable. There is no shifting of the burden of proof. The questions raised in such matters were addressed helpfully in C R Williams, Burdens and Standards in Civil Litigation (2003) 25 Sydney Law Review 165 where it was stated:
“Any case, whether civil or criminal, involves a finite number of potential issues; a number of elements comprise each cause of action and each criminal offence, and a number of potential defences are available to the defendant or the accused. In respect of each of these issues, rules of law determine upon which party the legal and the evidential burden lies. The only burden that does shift in the course of a trial is the tactical burden. A failure to distinguish between the evidential burden and the tactical burden would appear to be responsible for most of the suggestions that the burden of proof shifts. At any given point in time a party who has the legal burden in respect of a particular issue may appear more or less likely to be able to discharge that burden. If that party appears likely to be able to discharge the legal burden, then the tactical burden shifts to the other party; the other party must produce contradictory evidence or run the risk of losing on that issue. If that other party produces such evidence, then the tactical burden may shift back to the party bearing the legal burden. Such swings of the forensic pendulum as a case progresses involve, however, no shift in either the legal or the evidential burden.”

Suggested factual error

The appellant’s submissions which suggest factual error concerning the occurrence of injury are exhaustive, and to some extent are repetitive. Emphasis is placed in argument upon the shortcomings which are said to be found in the histories as recorded by the expert medical witnesses whose evidence was before the Arbitrator. Such evidence, it is argued, is not persuasive of injury having been received. However, in the case of the treating doctors, Dr Strokon and Dr McGee-Collett, the reports tendered were brief communications between those practitioners and their colleague who referred Ms Scala for treatment. It is not surprising that such correspondence directed little attention to questions of relevant history. In the case of Dr Strokon, who examined Ms Scala on 5 October 2012, it is recorded that his patient:
“… developed low back pain about two weeks ago when she was helping to carry heavy boxes around at work. Initially, the pain was localised to the lumbosacral area. Despite the pain, she continued working. She denies any previous history of any significant back problems. About one week ago, however, the pain became significantly worse, this time propagating down the left leg as far as the foot.”
The history recorded by Dr McGee-Collett when Ms Scala was seen on 9 October 2012 was that she “hurt her back at work about three weeks ago and developed severe left lower limb pain about one and a half weeks ago which has persisted”.
The history recorded by Professor Ryan, who had been qualified by WorkCover, was that Ms Scala, on 19 September 2012, was “required to unpack heavy boxes and carry heavy garments upstairs to an office. She experienced severe exacerbation of low back pain and developed left sided sciatica”. Later in that report, Professor Ryan recorded, “I acknowledge that [Ms Scala] had a background of low back pain from February 2011, and did not have left buttock or radiating leg pain until 19 September 2012”.
As noted earlier in these reasons, it was Ms Scala’s allegation that the back injury had occurred by reason of the physical demands made upon her back during the thirty minutes she was required to carry out the operation involving transfer of the stock. These circumstances are outlined in her statement dated 8 May 2013. The appellant suggests that Ms Scala’s statement setting out detail of her activities at that time lacked credibility, and that her allegation of injury must be taken to be limited to the matters recorded by the medical witnesses.
That the histories recorded by the medical experts were deficient was acknowledged by the Arbitrator. As was stated by Beazley JA (as her Honour then was) in Hancock v East Coast Timber Products Pty Ltd (2010) 8 DDCR 399 (Hancock) at 416:
“The extent of correspondence between the assumed facts and the facts proved was relevant to the assessment of the weight to be given to the [expert] reports.”
It was a matter for the Arbitrator to determine the weight to be ascribed to the expert and lay evidence. In addition to that evaluation, it was, in my view, open to the Arbitrator to draw inferences as to matters of which Professor Ryan was aware given proof of his receipt of the correspondence as found in Exhibit C. The Arbitrator’s factual conclusion as to injury was, in my view, available to him on that expert evidence which had been considered together with the balance of the evidence presented by the parties. It remains to be considered as to whether any relevant error of law has been made out concerning the Arbitrator’s approach to the evidence which has relevantly affected his decision.

Suggested errors of law

The appellant complains that the Arbitrator erred when reaching his conclusion that the absence of relevant matters of history in the expert evidence and medical records was not of relevant significance. It is argued that the Arbitrator failed to take into account a relevant and material consideration and misdirected himself “as to the legal principle to be taken from Davis v Council of the City of Wagga Wagga [2004] NSWCA34 (26 February 2004) (Davis)”. The Court of Appeal in Davis addressed argument founded upon the absence of relevant history recorded in clinical notes, compiled at a public hospital, concerning the physical circumstances giving rise to the relevant injury. In its consideration of argument, the Court noted that the plaintiff in Davis had not been cross examined concerning the suggested omission to report relevant history and, in passing, Mason P (with whom Beazley and Tobias JJA agreed) expressed the following caution concerning the placement of reliance upon such absence of relevant history (at [35]):
“Experience teaches that busy doctors sometimes misunderstand or miss-record histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury.”
No principle of law may be extracted from the observation noted immediately above. The Arbitrator heeded the caution expressed by Mason P, which was a course open to him. No reliance was placed by the Arbitrator upon those passages to be found in Davis concerning a need to raise matters of credit in cross examination. The Arbitrator’s observations demonstrate his reasoning concerning the probabilities as to prevailing circumstances at the time of injury and, in my opinion, in no way constitute misdirection as to the law. No error is established concerning the Arbitrator’s approach to the state of the expert evidence and medical records.
The appellant makes reference to the Arbitrator’s assessment of the evidence of Dr Floro, the chiropractor whose notes were in evidence before the Commission. Those notes contained reference to “Positive Slump and SLR on left at 40 degrees L4/5-S1 IS pain”. The appellant is critical of the Arbitrator’s approach to that entry, and it is put in submissions that the Arbitrator had misdirected himself as to his entitlement to use his own “medical knowledge” to determine whether disc protrusion “was present on the clinical examination of Mr Floro” (submissions [79]).
The thrust of the appellant’s complaint is that the Arbitrator “exceeded [sic] what was an appropriate conclusion which was limited to it being a test to indicate whether there is neural tension, not to test conclusively, for a disc herniation”. In putting that submission it appears that the appellant acknowledges that the Commission, as was its predecessor, the Compensation Court of New South Wales, is a specialist tribunal, the members of which may legitimately place reliance upon its specialist knowledge when assessing expert evidence. The argument as advanced suggests that the Arbitrator has overstepped the legitimate exercise of that entitlement. The appellant suggests that the Arbitrator’s “finding has proffered a medical diagnosis and opinion based on an interpretation of the recordings of a clinical examination carried out by the chiropractor”. The relevant finding made by the Arbitrator is found at T2.14 where it was stated:
“Applying my knowledge gained within the expertise of personal injury litigation, the reference in the notes to a positive slump is a reference to an assessment of whether there is a herniated disc or neural tension in the nerve root. The reference in the chiropractor’s notes to a positive slump is a reference, I find, of either a herniated disc or neural tension in the herniated disc.”
I do not accept the appellant’s assertion that the Arbitrator had determined, as is argued, “whether…the disc protrusion was present at the clinical examination by Mr Floro”. Whilst the Arbitrator’s approach is not plainly stated, he did not, in my view, express a diagnosis of a disc lesion as is suggested in the appellant’s submissions. The Arbitrator had identified the test in question as being relevant to an objective assessment concerning the presence or otherwise of a herniated disc or neural tension. The Arbitrator’s ultimate conclusion concerning the occurrence of a rupture of the relevant lumbar disc at the time of the alleged injury was founded upon the totality of the evidence, including the expert medical evidence and the results of the MRI study which confirmed the presence of such discal damage. This is not a case involving a member of a specialist tribunal reaching a conclusion as to diagnosis in the absence of evidence (see discussion by Roche DP in Graso v Roads and Maritime Services [2013] NSWWCCPD 30 at [61] and [62]). No relevant error has been demonstrated.
The Arbitrator’s reliance upon the contents of the medical certificate issued by Dr Stenning, Ms Scala’s general practitioner, dated 23 October 2012, is the subject of criticism. It is argued that the probative value of the certificate is greatly diminished having regard to the Arbitrator’s finding that Ms Scala did not lift or carry heavy items on the day in question. It is also suggested that the opinion expressed in that certificate, that a lumbar disc lesion had been caused by injury in the course of employment, was a mere ipse dixit. It is also argued that the Arbitrator had failed to provide adequate reasons as to why he placed reliance upon that evidence.
The appellant’s careful analysis of the clinical notes produced by Dr Stenning, reveals that on 4 October 2012, the first occasion on which Ms Scala consulted Dr Stenning following the injury, there is no record of any relevant symptoms, nor of any relevant history. It is correct, as put in submissions, that it appears that an entry dated 19 September 2012, which reads “back-lumbar spine” could not have been a contemporaneous record. What is relevant, as found by the Arbitrator, was that on 4 October, following MRI examination, the clinical notes include a second entry for that date recording “discogenic lesion L4/5 left compression L5 and S1 on Voltaren”.
The notes reveal that a letter of referral from Dr Stenning to Dr Strokon, set out no detail other than a request for an assessment and advice “sciatic left side”. It is clear that the notes maintained by the practice, up to this time, were terse in their terms. It is clear that, at the time Ms Scala attended Dr Strokon on 5 October 2012, a history of work related injury when helping to carry heavy boxes around was recorded. Such history was set forth in Dr Strokon’s letter to Dr Stenning which is in evidence and is dated 5 October 2012.
I note that the clinical notes produced by Dr Stenning appear to include a note of Dr Strokon’s examination which took place on 5 October 2012. It is reasonably clear that Dr Strokon conducts his practice with a number of other practitioners, including Dr Stenning.
The medical certificate upon which the Arbitrator relied is not plainly identified, however it is reasonable to assume that the certificate was one dated 23 October 2012, which is headed “WorkCover NSW Medical Certificate”. It is clear that that certificate is the earliest document generated by Dr Stenning which explicitly states matters relevant to the question of injury and diagnosis. The certificate predates the filing of Ms Scala’s claim against the Nominal Insurer by two days. At the time Dr Stenning issued that certificate he had the benefit of the opinion of Dr Strokon and that of Dr McGee-Collett.
The Arbitrator stated [at T2.25-26]: “I take the view that [Dr Stenning’s] view, as articulated in the medical certificate, is part of the jigsaw and evidence upon which I will rely”. It is clear that the Arbitrator has treated that certificate as some evidence to be taken into account when determining the probable aetiolgy of Ms Scala’s demonstrated disc lesion. Having regard to the benefit had by Dr Stenning of the views expressed by Dr Strokon and Dr McGee-Collett, together with the findings of the MRI, I reject the suggestion made in submissions that the matters to which Dr Stenning certified, constitute a bare “ipse dixit”. As stated earlier in these reasons, the question of weight to be given to particular evidence was a matter for the Arbitrator. The Arbitrator’s reasons for placing reliance upon that certificate have, in my view, been made clear and any suggestion that his reasoning constitutes a failure to provide sufficient reasons must be rejected. No relevant error concerning the evaluation and acceptance of Dr Stenning’s evidence has been made out.
The appellant places great emphasis upon the history of injury as recorded by Professor Ryan, and argues that, by reason of deficiencies found in his report, there is not a “fair climate” to permit expression of his opinion and that such opinion would be of little, if any, weight. The reference to “fair climate” is plainly adopted from the observations made by Samuels JA in Paric v John Holland Constructions Pty Ltd (1984) 2 NSWLR 505 (Paric).
In Paric, the Court was required to consider whether, having regard to hypothetical matters put to an expert and those matters established on the evidence, a “fair foundation” or “fair climate” existed for the expert opinion which had been sought and given. Samuels JA (with whom Hutley and Priestley JJA agreed) made clear that a determination needed to be made as to whether “fatal defects are to be perceived in the hypothetical matter put to [the experts]” and, further, that it was for the tribunal of fact “to come to some conclusion as to the weight and nature of the hypothetical facts so as to determine whether they recommend themselves… as an adequate foundation for the expert view” (at 509).
I have earlier noted the Arbitrator’s acknowledgement of the shortcomings to be found in the report of Professor Ryan and the availability to the Arbitrator of the inferences drawn by him as to Professor Ryan’s knowledge of relevant matters. In such circumstances it is helpful to consider the following statement of Samuels JA in Paric (at 509–510):
“It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis. In the present case it seems to me that there was a fair climate in which the expert views could properly flourish, and certainly it was open to the learned judge to come to that conclusion.”
The Arbitrator, as earlier noted, concluded that the “heavy lifting” history was incorrect. It is also apparent that Professor Ryan’s notation that sciatic pain commenced on the day of injury was incorrect. Notwithstanding those shortcomings, the Arbitrator afforded Professor Ryan’s opinion some weight, and such was, again as earlier noted, a matter for him to determine. The finding of injury was not made solely upon the evidence of Professor Ryan. The Arbitrator addressed the appellant’s arguments concerning Professor Ryan’s evidence (at T2.40–42). No error concerning the Arbitrator’s approach to the determination of the weight of that evidence, nor concerning the Arbitrator’s acceptance, in part, of Professor Ryan’s opinion has been made out. I should make clear that the appellant’s suggestion that the decision in Hancock had been utilised by the Arbitrator as authority which permitted him to “[trawl] through the evidence to find material supportive of [his] theory of the case” is rejected.
In so far as the appellant’s submissions may be construed as asserting the total absence of evidence as to the disc lesion having been caused by work injury, such suggestion must be rejected. Whilst the manner in which evidence was presented in this matter, in my view, fell well short of ideal standards relevant to conduct of contested proceedings, it cannot be said that the Arbitrator’s conclusion as to injury was reached in the absence of evidence. Ms Scala was accepted as to the onset of significant disability during performance of duties which were plainly arduous. The disability was accepted as being plainly distinguishable from pain and discomfort previously experienced by her. The evidence established, as was accepted, the existence of a significant disc rupture. The appellant’s suggestion of there being no report of injury was rejected and no reliance was placed upon a foreshadowed defence founded upon failure to report.

CONCLUSION

The appeal fails and appropriate orders appear below.

DECISION

The Arbitrator’s decision of 2 May 2014 is confirmed.
The matter is remitted to the Registrar for relisting before another Arbitrator to permit determination of outstanding matters.

COSTS

At the hearing each party indicated that, should a favourable outcome of the appeal occur, a costs order was sought. No attention was given to the effect, if any, of the recent amendment of those provisions relevant to the Commission’s power to make costs orders. I note, in passing, that no challenge was made to the Arbitrator’s order as to costs, which order has been confirmed on appeal.
The subject of costs is governed by the provisions of Division 3 of Part 8 of the 1998 Act. Section 341 of the 1998 Act in its original terms granted the Commission a very broad power to award costs in respect of proceedings conducted before it. That section was amended by the Workers Compensation Legislation Amendment Act 2012. Having regard to the relevant transitional provisions, and the passage of subsequent regulations, Division 3 of Part 8 of the 1998 Act continues to apply to costs in relation to a claim for compensation made before 1 October 2012 if proceedings on the claim are commenced in the Commission before 31 March 2013.

In the present matter, Ms Scala made a claim for compensation on 25 October 2012. These proceedings were commenced on 21 March 2013.
Upon an assumption that costs of the present proceedings are caught by the definition of costs found in s 332 of the 1998 Act, I am of the view that the fact that a claim was lodged by Ms Scala on 25 October 2012 has the consequence that s 341, as amended, has application to these proceedings. In such circumstances the Commission has no power to make any order as to costs of the appeal.
If I am wrong in assuming that s 332 has application to costs as sought the Commission, following the amendment of s 341, has no power in any event to make an order for costs.
In the circumstances I make no order as to costs of the appeal.

Kevin O'Grady
Deputy President

9 October 2014

I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

[2014] NSWWCCPD 64

9 September 2014 9 October 2014