Trustees of the Christian Brothers v Seif - [2020] NSWWCCPD 22

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Trustees of the Christian Brothers v Seif [2020] NSWWCCPD 22
APPELLANT:	Trustees of the Christian Brothers
RESPONDENT:	Markou Seif
INSURER:	Catholic Church Insurance Ltd
FILE NUMBER:	A1-4190/19
SENIOR ARBITRATOR:	Mr G Capel
DATE OF ARBITRATOR’S DECISION:	15 October 2019
DATE OF APPEAL DECISION:	22 April 2020
SUBJECT MATTER OF DECISION:	Credit finding – application of Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117, alleged factual error, medical evidence – application of Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844, drawing of inferences
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr T Murray, solicitor
Astridge & Murray
Respondent:
Mr J Dufour, solicitor
Schofield King Lawyers
ORDERS MADE ON APPEAL:	1. The Senior Arbitrator’s decision dated 15 October 2019 is confirmed.

INTRODUCTION AND BACKGROUND

Markou Seif (the respondent) worked as a high school teacher at St Dominic’s College Kingswood. He was employed from 2010 by the Trustees of the Christian Brothers (the appellant). He had a series of alleged events involving his right knee. On 21 November 2016, he stepped on an electrical box cover, twisting his right ankle and knee. On 28 November 2016, he twisted on his right knee in a classroom.[1] He deteriorated and came to arthroscopic meniscectomy of the right knee at the hands of Dr Nagamori on 9 March 2017. About two weeks after this he resumed his teaching duties.[2]
[1] Respondent’s statement 25/8/17, Application to Resolve a Dispute (ARD), p 1.
[2] ARD, pp 6–7.
The appellant’s insurer rejected the respondent’s claim for workers compensation for the periods of incapacity and medical expenses. The respondent commenced proceedings in the Commission (no. 3045/17). These resolved on 6 September 2017, with consent payment of a number of short closed periods of weekly compensation, and medical expenses up to $6,500. The orders included consent findings that there was no incapacity for pre-injury employment beyond 25 March 2017, no requirement for medical treatment beyond 1 September 2017, and that from 1 September 2017, the respondent had recovered from the effects of the work injury.[3]
[3] Reply, pp 47–48.
The current proceedings relate to a further alleged injury to the right knee on 20 September 2017. It is pleaded that the respondent was “required to spend a long period of time standing, walking and going up and down stairs when he suffered an aggravation of his old knee injury”.[4] The allegations go to the respondent’s working duties over a single day, 20 September 2017. The respondent says that he performed his usual teaching duties over the day, and additionally performed activities associated with a year 12 graduation and mass that were held. The respondent’s claim for this injury was denied in a s 74 notice dated 25 October 2017. It disputed ‘injury’, s 9A of the 1987 Act, causation and quantum. It also relied on the earlier consent orders, which stated that “as of 6 September 2017 you had recovered from the effects of prior injuries, required no further treatment and are fit for pre-injury duties”.[5]
[4] ARD, Pt 4, p 5.
[5] Reply, pp 58–61.
The respondent underwent a further arthroscopic meniscectomy of the right knee, performed by Dr Nagamori, on 27 November 2017.[6] The respondent resumed his normal duties in the first term of 2018.[7]
[6] Reply, p 32.
[7] Dr Powell’s report 9/2/18, Reply p 4.
The ARD pleads only the most recent injury on 20 September 2017.
The matter was listed for arbitration hearing on 2 October 2019. Mr Young appeared for the respondent and Mr Saul for the appellant. The matter proceeded on the documentary material, counsel addressed and the Senior Arbitrator reserved his decision.
The Commission issued a Certificate of Determination dated 15 October 2019. The Senior Arbitrator made the following findings:
(a)    the respondent sustained employment injury to the right knee on 20 September 2017;
(b)    employment was a substantial contributing factor to the injury;
(c)    the respondent was incapacitated, took time off work and was paid sick leave on various dates from 20 September 2017 to 11 September 2018 as a result;
(d)    the respondent required medical treatment as a result and the appellant was required to pay reasonably necessary medical expenses, and
(e)    surgery performed by Dr Nagamori on 27 November 2017 was reasonably necessary as a result of the injury on 20 September 2017.
The Senior Arbitrator ordered the appellant to pay the relevant expenses (including the surgical costs) pursuant to s 60 of the 1987 Act. He made no order in respect of weekly compensation, but gave liberty to apply within 28 days.

ON THE PAPERS

Section 354(6) of 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 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,[8] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[9] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[10]) 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’.”[11]
[8] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[9] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[10] [1996] HCA 140; 140 ALR 227.
[11] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd, Keating P observed that these principles “have been consistently applied in the Commission”.[12] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[13]
“… 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.”[14]
[12] [2017] NSWWCCPD 5, [67].
[13] [2001] FCA 1833 (Branir), [28].
[14] Raulston, [20].
In Northern NSW Local Health Network v Heggie,[15] 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”.[16]
[15] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[16] Heggie, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were recently considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[17] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir.[18] Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[19]
[17] [2020] NSWCA 54 (Hill).
[18] Hill (per Basten JA, Payne JA and Simpson AJA agreeing), [17].
[19] Hill, [20].

THE SENIOR ARBITRATOR’S REASONS

The Senior Arbitrator set out the background, the procedure adopted, the issues for determination and the evidence before him[20] in a fashion that is not challenged on this appeal. He noted the first of the respondent’s statements was not in evidence. He summarised the respondent’s statements dated 21 November 2017 and 19 June 2019.[21] The Senior Arbitrator summarised the medical evidence from Dr Moussad,[22] Dr Nagamori,[23] Dr Bodel,[24] Dr Rimmer,[25] and Dr Powell.[26]
[20] Seif v Trustees of the Christian Brothers [2019] NSWWCC 334 (Reasons), [1]–[14].
[21] Reasons, [15]–[24].
[22] Reasons, [25]–[31].
[23] Reasons, [32]–[41].
[24] Reasons, [42]–[45].
[25] Reasons, [46].
[26] Reasons, [47]–[56].
The Senior Arbitrator referred to the appellant’s lay case. There was a note, described as a “View Note”, made by Ms Ballard, an employee of the appellant’s insurer. It described an approach from the respondent regarding whether the insurer would cover the cost of a proposed further arthroscopic procedure that postdated the earlier settlement (Ms Ballard said it would not).[27] How the Senior Arbitrator dealt with the “View Note” is not challenged on this appeal.
[27] Reasons, [57]–[58].
The Senior Arbitrator summarised the statements of the appellant’s lay witnesses. Mr Walsh (the Deputy Principal) said the maintenance department (Messrs Keightley, Brown and Henderson) were responsible for maintenance, setting up for school events and packing up the following day. He did not recall the respondent being present at the function on 20 September 2017, but he could have been. He said that Mr Culican, the Director of Identity, was responsible for booklets for the mass and the organisation and running of the day. Mr Walsh described the number of steps in travelling from the print room (where booklets would have been printed) to the hall. There was a lift available. He did not recall the respondent reporting the injury to him.[28]
[28] Reasons, [60]–[66].
The Senior Arbitrator referred to the statement of Mr Gerlach, the maths co-ordinator. He said he did not recall the respondent ever setting up the school hall. He could have done so but it would be highly improbable. He could not recall seeing the respondent at the function on 20 September 2017, but that did not mean the respondent was not there. He said Mr Culican may have asked the respondent or other teachers to carry boxes of booklets, but these would have fitted into one or two boxes. It would only have been necessary for the respondent to go up and down stairs if he was going to or from the classrooms. He said the respondent’s role, on the day and in the lead up to it, would have been “minimal”. He said the respondent did not report an injury to him.[29]
[29] Reasons, [67]–[71].
The Senior Arbitrator referred to the statement of Mr Gorton, the Head of Curriculum. He said Mr Gorton’s statement about the set up, the use of the maintenance team and activities on the function day “mirrored” those of Messrs Walsh and Gerlach. The respondent did not speak of an injury to Mr Gorton. Mr Gorton could not recall the respondent being present at the event or setting up the hall.[30]
[30] Reasons, [72]–[74].
The Senior Arbitrator summarised the statement of Ms Shaw, the Year 8 Pastoral Co-ordinator. She was the Year 12 Co-ordinator in 2017 and had oversight of the Year 12 graduation and mass. The Arbitrator said that Ms Shaw’s evidence about the set up, transporting of booklets and role of the maintenance team was similar to the other lay witnesses. She could not recall seeing the respondent at the function but that did not mean that he was not there. He would only have needed to use the stairs if accessing classrooms.[31] The Senior Arbitrator said that none of these lay witnesses knew the number of booklets printed, the number of students in Year 12 or how many attendees were at the function.[32]
[31] Reasons, [75]–[78].
[32] Reasons, [79].
The Senior Arbitrator summarised the submissions of both counsel in some detail. I will not reproduce that summary here. The submissions of the respondent included that an inference pursuant to Jones v Dunkel[33] could be drawn in respect of the lack of evidence from the maintenance team (who were responsible for setting up the school hall) and Mr Culican.[34] The respondent’s submissions also included that the lay evidence relied on by the appellant did not directly rebut the respondent’s evidence. The appellant’s submissions included that the respondent’s credit was in issue.[35]
[33] [1959] HCA 8; 101 CLR 298 (Jones v Dunkel).
[34] Reasons, [94]–[95].
[35] Reasons, [98].
The Senior Arbitrator set out the definition of ‘injury’ in the 1987 Act and referred to authorities regarding the proof of ‘injury’ and causation. He noted the respondent relied on both s 4(a) (injury simpliciter) and s 4(b)(ii) (the aggravation, etcetera of a disease). The Senior Arbitrator quoted from the decision in Department of Education and Training v Ireland,[36] in which Keating P summarised a number of authorities dealing with the proof of factual matters. The Senior Arbitrator said that, for the respondent to discharge the onus of proving injury on 20 September 2017, it was necessary that he, the Arbitrator, “feel an actual persuasion of the existence of that fact”.[37]
[36] [2008] NSWWCCPD 134 (Ireland).
[37] Reasons, [111]–[116].
The Senior Arbitrator said the first issue was whether the evidence established the respondent was “involved in the activities identified in his statements”.[38] He compared the contents of the respondent’s claim form and two statements. He referred to the claim form dated 5 October 2017. The respondent said he injured his right knee standing and walking continuously during the day and night of 20 September 2017. He said he reported it to Mr Gerlach and Mr Gorton, although did not say when.[39]
[38] Reasons, [117].
[39] Reasons, [118].
The Senior Arbitrator said the respondent’s two statements gave different versions of the mechanisms of injury, but there were also consistencies. In his first statement,[40] the respondent described himself as “overseeing” the Year 12 graduation and mass, a description which was inaccurate, having regard to the evidence of Mr Walsh, Mr Gerlach and Ms Shaw. The respondent said he worked from 7.30 am to 8.00 pm, and spent the day standing, walking and going up and down stairs. The Senior Arbitrator described this as “largely consistent” with the claim form. The respondent said he performed his usual teaching duties, during normal class hours, standing. The Senior Arbitrator said it was “consistent” that the respondent would have used the stairs to go from classrooms to the school hall. He referred to the respondent’s evidence that he felt pain in his right knee and lower leg but kept working as he had to usher people to seats. The appellant’s lay witnesses conceded that this task was done by teachers in addition to Year 11 prefects.[41]
[40] Respondent’s statement, 21/11/17, ARD, p 4.
[41] Reasons, [119]–[122].
The Senior Arbitrator described the respondent’s last statement[42] as “poorly drafted and [it] raises more questions than [it] answers”. It said the respondent carried chairs and boxes of programs from 7.30 am until classes commenced, during recess and lunch, and until the graduation commenced. This suggested the activities connected with the event occurred outside “usual classroom hours”. The respondent said he walked up and down the school stairs “at least 50 times”, he did not state where from or where to. It was unclear how many chairs or boxes he carried. The respondent said that he felt a “popping” in the right knee late in the afternoon, he did not state whether whilst he was assisting in the set up or when in the classroom.[43]
[42] Respondent’s statement, 19/6/19, ARD, pp 126–129.
[43] Reasons, [123]–[124].
The Senior Arbitrator referred to the appellant’s lay case. There were 10 steps leading to the building entrance, 15 steps up to the landing, a right turn, and then a further 10 steps to the entry of the school hall. He observed there was “potential for some pivoting on the stairs”.[44]
[44] Reasons, [125].
The Senior Arbitrator noted the evidence in the appellant’s lay statements that the setup of the school hall was done by the maintenance department (three employees), was not the respondent’s responsibility, and there was no reason why he would do it. None of these employees could say the respondent was not involved in the activities alleged, or even whether he was present or not at the function. Mr Walsh offered to provide a list of teachers who attended the function but this was not in evidence. Messrs Gerlach and Gorton denied the injury was reported to them. A claim form was submitted on 5 October 2017.[45]
[45] Reasons, [126]–[127].
The Senior Arbitrator noted the evidence of Mr Walsh that the respondent would not have used the steps to attend the function unless he had to use the steps to access the hall coming from or going to a classroom. The Senior Arbitrator reasoned that as the respondent was teaching on the day, he would have used the steps at some stage, there was no evidence he used the lift. The Senior Arbitrator identified a number of aspects of Mr Walsh’s evidence that was uncertain, for example Mr Walsh did not know if Mr Culican asked the respondent to assist him. He said these things could have easily been clarified, and it was “difficult to know what to make of [Mr Walsh’s] evidence”.[46]
[46] Reasons, [128]–[129].
The Senior Arbitrator described the statements by other employees as confirming that of Mr Walsh. Mr Gorton corroborated some of the respondent’s evidence, the respondent stood when performing playground duties, assemblies and when teaching, and teachers assisted in ushering at the graduation ceremony. The Senior Arbitrator said that none of the lay witnesses relied on by the appellant could advise the precise number of booklets printed, the number of students in Year 12, or the number of attendees. Approximations were quoted, enquiries could easily have been made.[47]
[47] Reasons, [130]–[131].

The Senior Arbitrator said that, in summary, the respondent’s evidence was that he worked from 7.30 am to 8.00 pm on the Year 12 graduation day. He did his usual class room duties standing, together with assisting in the set up in the school hall before classes commenced, at morning tea and lunchtime, and after classes finished. The Senior Arbitrator said the only material relied on by the respondent to challenge this was from four employees who had no idea what the respondent actually did on the day. They lacked any specific recollection, did not check contemporaneous records, and speculated that it was not the respondent’s responsibility to perform various activities associated with the set up and ushering.[48] The Senior Arbitrator said that the factual investigation was not in evidence, nor was any explanation of why statements were not obtained from “relevant witnesses who would be in the best position to challenge the [respondent’s] evidence”. The respondent concluded the evidence of those four employees would not have advanced the [appellant’s] case, applying the principles in Jones v Dunkel.[49]
[48] Reasons, [132]–[133].
[49] Reasons, [132]–[135].
The Senior Arbitrator said there were aspects of the respondent’s evidence in his last statement about which he, the Senior Arbitrator, had “some reservations”. These involved the evidence of going “up and down stairs 50 times, carrying chairs and boxes of booklets”. This may have been due to poor drafting, terminology and syntax rather than an intention to deceive. The Senior Arbitrator said he would not place any weight on this aspect of the respondent’s evidence unless corroborated elsewhere. The Senior Arbitrator said there were inconsistencies in the respondent’s evidence about his precise activities on 20 September 2017. He said there was no “persuasive evidence” to dispute the contents of the claim form, the initial statement and the histories recorded by Drs Powell and Bodel. The Senior Arbitrator accepted the respondent “spent the day standing, walking, and there was some going up and down stairs that involved pivoting movements”.[50] Having made that factual finding regarding the respondent’s activities, the Senior Arbitrator turned to consider whether the respondent injured his right knee.
[50] Reasons, [136]–[137].
The Senior Arbitrator noted that in his first statement the respondent said he began to notice pain and aching in the right knee by the end of the night. In his second statement the respondent referred to pivoting on and around the stairs and a popping sensation late in the afternoon. The Senior Arbitrator described the View Note as “of little significance”. The case manager was mistaken as to the time frame and the fact that the respondent was at home when he contacted her. The Senior Arbitrator described Dr Moussad’s clinical notes as of “little assistance regarding the circumstances of the [respondent’s] alleged injury”. It seemed that “something happened” shortly before the consultation on 2 October 2017 to increase symptoms and warrant a specialist referral.[51]
[51] Reasons, [137]–[141].
The Senior Arbitrator dealt with Dr Nagamori. On 27 September 2017, he did not record a mechanism of injury. He did record that the respondent had “aggravated his knee at work and there had been a considerable deterioration”. “[I]t seems that something happened to cause the [respondent’s] symptoms.” The Senior Arbitrator referred to the MRI scan.[52] It showed a cleavage tear in the anterior horn of the lateral meniscus extending into the body and posterior horn of the lateral meniscus. There was prominent oedema. Dr Nagamori described this as “an extensive further horizontal tear of the lateral meniscus”. It differed from the previous tear, which was on the anterior side.[53]
[52] Dr Sabharwal’s report 27/9/17, ARD, p 18.
[53] Reasons, [142]–[143].
The Senior Arbitrator referred to Dr Nagamori’s report dated 3 July 2018.[54] The doctor referred to the two incidents in 2016. The doctor limited his comments on causation to the incident on 21 November 2016. This was “not controversial, as there was evidence of a meniscal tear in 2016 … treated during the first arthroscopy”. The Senior Arbitrator noted the doctor failed to comment on the aggravation in September 2017 and the radiological and operative evidence of a further tear. This was a “significant omission on the doctor’s part”. The Senior Arbitrator considered it strange that a supplementary report was not obtained. The Senior Arbitrator said that, as the report did not reveal the doctor’s opinion on causation in respect of the injury the subject of the dispute, “little weight can be given to the opinion expressed in his report”. He said “[t]he situation would have been different had [the doctor] specifically ruled out a causal nexus between the injury on 20 September 2019 [sic, 2017] and the pathology in the [respondent’s] knee”.[55]
[54] Reply, pp 36–37.
[55] Reasons, [142]–[146].
The Senior Arbitrator dealt with Dr Bodel’s evidence. Dr Bodel recorded the respondent had experienced aching in the right knee for a few weeks prior to 20 September 2017. The Senior Arbitrator said this was inconsistent with other histories, but the doctor did not seem to place weight on it. Dr Bodel recorded the respondent was walking and twisted at the graduation, feeling a “popping sensation”. The Senior Arbitrator noted this history was not recorded elsewhere, although was to be found in the respondent’s last statement. The Senior Arbitrator noted Dr Bodel’s history did not refer to matters such as walking up and down the stairs 50 times and carrying chairs and boxes of booklets. The Senior Arbitrator said these were matters he had already “discounted placing any weight on”. He said the fact that Dr Bodel did not refer to them gave credence to Dr Bodel’s opinion regarding the effect of walking and twisting on the respondent’s knee. He said that Dr Bodel having supported the respondent’s claim, any further opinion from Dr Bodel would only have strengthened the doctor’s support. The Senior Arbitrator was not persuaded any Jones v Dunkel inference should be drawn, regarding the absence of a further report dealing with the additional history in the respondent’s last statement.[56]
[56] Reasons, [147]–[150].
The Senior Arbitrator said that Dr Bodel diagnosed a tear of the lateral meniscus on 21 November 2016, with progression of the tear on 20 September 2017. This was consistent with Dr Nagamori’s opinion in his 2017 reports. Dr Bodel considered there was a disease process, with aggravation, to which work was the main contributing factor. Dr Nagamori considered there was an aggravation with significant deterioration but did not identify a disease process. He seemed to support injury simpliciter.[57]
[57] Reasons, [151]–[153].
The Senior Arbitrator said Dr Rimmer’s opinion was of no assistance as the doctor had not seen the respondent since 2016.[58]
[58] Reasons, [154].
The Senior Arbitrator referred to Dr Powell’s report; the respondent worked a full normal day on 20 September 2017, was involved in the graduation and ushered attendees to their seats, with a lot of walking, turning and twisting. The Senior Arbitrator said this was largely consistent with the respondent’s statements and Dr Bodel’s history. Dr Powell accepted there was a congenital discoid lateral meniscus in the respondent’s right knee. He did not say it was a disease process. The Senior Arbitrator said the initial incident may have caused or extended the degenerative condition in the meniscus with a likely further failure by natural progression. He said the condition had reached a point where a mechanical incident could render the condition symptomatic.
The Senior Arbitrator said this reflected what happened on 20 September 2017, an incident caused symptoms and further pathology, an extension of the tear in the lateral meniscus, shown in the MRI scan taken shortly thereafter. The Senior Arbitrator said this seemed in the nature of an injury pursuant to s 4(a) of the 1987 Act.[59] He noted this was consistent with Rail Services Australia v Dimovski[60] and later Presidential decisions applying it in the Commission.[61]
[59] Reasons, [155]–[160].
[60] [2004] NSWCA 267.
[61] Gibson v Royal Life Saving Society of Australia [2009] NSWWCCPD 137; Norambuena v Transfield Services (Australia) Pty Ltd [2009] NSWWCCPD 52. Referred to in Reasons, [161].
The Senior Arbitrator described the respondent’s statements as “largely consistent”, although with “some areas of concern”. He said the “post injury MRI scan is particularly persuasive and this was not something that Dr Powell had access to”. He said Dr Powell had very little information, which affected the weight to be given to Dr Powell’s opinion. He said Dr Powell “acknowledged the possibility of an incident resulting in symptoms”.[62] The Senior Arbitrator concluded:
“Accordingly, having regard to the common-sense evaluation test in Kooragang, I am satisfied on the balance of probabilities that the [respondent] suffered an injury to his right knee arising out of or in the course of his employment on 20 September 2017 in accordance with s 4(a) of the 1987 Act.”[63]
[62] Reasons, [163].
[63] Reasons, [164].
The Senior Arbitrator then considered the application of s 9A of the 1987 Act. He referred to Badawi v Nexon Asia Pacific Pty Limited[64] and the requirement of a causal connection that is “real and of substance”. He referred to and considered the matters described in s 9A(2) of the 1987 Act. He concluded that the test of ‘substantial contributing factor’ was satisfied.[65] He said that if his ‘injury’ finding should have been made pursuant to s 4(b)(ii) of the 1987 Act (rather than s 4(a)), then employment was the main contributing factor to an aggravation and exacerbation. The employment was the chief or principal cause of the aggravation, there was no evidence to the contrary.[66]
[64] [2009] NSWCA 324.
[65] Reasons, [165]–[173].
[66] Reasons, [174]–[178].
The balance of the Arbitrator’s reasons went to the relief to which the respondent was entitled by way of weekly payments and medical expenses. These matters are not at issue on this appeal and do not need to be further set out.

GROUNDS OF APPEAL

The appellant’s appeal goes to whether the respondent discharged his onus of proving, on the probabilities, injury to his right knee on 20 September 2017 involving a tear of the lateral meniscus pursuant to s 4(a) of the 1987 Act.[67] It raises the following grounds:
(a)    “Error of fact and law in failing to properly deal with the appellant’s credit argument, and in accepting the [respondent’s] factual account as to the occurrence of the event/s alleged to have caused injury”. (Ground No. 1)
(b)    “Error of fact and law in accepting the opinion of Dr Bodel on the question of injury”. (Ground No. 2)
(c)    “Error of fact and law in failing to give sufficient weight to the opinion of Dr Nagamori, contained in his report dated 3 July 2018”. (Ground No. 3)
(d)    “Error of fact and law in finding that the [respondent] sustained a meniscal tear on 20 September 2017”. (Ground No. 4)
(e)    “Error of fact and law in finding that the [respondent’s] employment was a substantial contributing factor to his injury under s 9A [of the 1987 Act]”. (Ground No. 5)

GROUND NO. 1

[67] Appellant’s submissions, [24]–[25].

Appellant’s submissions

The appellant describes the respondent’s credit, with respect to the mechanism of injury, as “critical”. It states the issue arose from “numerous conflicting accounts given by the worker as to the mechanism/cause of his injury”. He “should not be viewed as a reliable witness”,[68] “his evidence should simply not be accepted”.[69] It submits the respondent’s “credit as a witness should have been impugned, such that he had failed to establish that any mechanism of event occurred on 20 September 2017 causing injury to his knee”.[70]
[68] Appellant’s submissions, [27]–[28].
[69] Appellant’s submissions, [33].
[70] Appellant’s submissions, [47].
The primary matters relied on in support of the above submission are:
(a) In his statement dated 19 June 2019, the respondent said he was required, on 20 September 2017, to walk up and down stairs at least 50 times, carrying chairs and boxes. The appellant says the Senior Arbitrator determined he “would not ascribe any weight to the evidence of the appellant’s lay witnesses who had provided evidence to the effect that the [respondent] would not have performed the tasks alleged”. The Senior Arbitrator said he was “unable to place any weight on this aspect of the [respondent’s] statement which has not been corroborated elsewhere”. This involved rejection of that account of the mechanism of injury (in the statement dated 19 June 2019), “an adverse finding as to the [respondent’s] credit”. The appellant submits the respondent’s “evidence should simply not be accepted”. All prior accounts “should have been scrutinised”. The rejection of the most recent account should have led to the earlier accounts not being accepted.[71]
(b) There were inconsistencies between the respondent’s claim form, his initial statement, and the histories recorded by Drs Powell and Bodel. The claim form[72] and the statement dated 21 November 2017[73] (this appears to be the statement referred to, although it is not the first in time) did not refer to “twisting, pivoting or similar activity”.[74] Dr Bodel’s history refers to walking and twisting during the graduation ceremony and feeling “a painful popping sensation in the knee”.[75] Dr Powell’s history recorded “walking in and out of the venue, turning and twisting”, and twisting during the graduation ceremony and feeling “a ‘pop’ in the knee again”.[76] The appellant submits this account of a specific twisting injury is not reported in the claim form or the first statement. It submits the onus of proof was inverted in the reasons at [137]. The onus was not on the appellant to show why earlier accounts should not be accepted, but on the respondent to prove the accuracy of the earlier accounts.[77]
[71] Appellant’s submissions, [29]–[34].
[72] ARD, pp 79–82.
[73] ARD, pp 3–4.
[74] Appellant’s submissions, [35]–[40].
[75] ARD, p 7.
[76] Reply, p 4.
[77] Appellant’s submissions, [34].

Respondent’s submissions

The respondent refers to the Senior Arbitrator’s discussion of the statement dated 19 June 2019 in the reasons at [136]:
“I have some reservations about the [respondent’s] last statement when he suggested that he went up and down stairs 50 times, carried chairs and boxes of booklets, but this may be more to do with poor drafting and confusing terminology and syntax, rather than any conscious attempt to deceive the reader. In my view, I am unable to place any weight on this aspect of the [respondent’s] statement which has not been corroborated elsewhere.”
The respondent submits the appellant “overstates the Arbitrator’s reservations by characterising the above comments as ‘an adverse finding as to the [respondent’s] credit”. The respondent submits the Senior Arbitrator found there was no conscious attempt to deceive. The respondent submits his credit was otherwise not seriously challenged at the arbitration. The appellant did not apply to cross-examine. The appellant’s witnesses’ statements did not directly contradict the respondent’s alleged mechanism of injury. The respondent submits the appellant does not, on appeal, challenge the Senior Arbitrator’s findings at [133] to [134] of the reasons (summarised at [32] above).[78]
[78] Respondent’s submissions, [2.8.3]–[2.8.7].
The respondent submits the histories recorded by Drs Bodel and Powell were supported by the appellant’s witnesses’ statements. The configuration of the stairs was consistent with a need to turn when using them, and the Senior Arbitrator concluded there was “potential for some pivoting on the stairs”. The respondent submits it was inherent in use of the stairs that this could include turning, twisting or pivoting, the respondent would not have walked in a straight line for the entire day. The respondent states the Senior Arbitrator found there was no evidence to directly challenge that of the respondent, that he went up and down stairs with the potential for some pivoting.[79]
[79] Respondent’s submissions, [2.8.11]–[2.8.14].

Appellant’s submissions in reply

The appellant submits credit was squarely raised in its submissions, it was not necessary that there be an application to cross-examine.[80] The appellant submits the respondent’s submission at [2.8.13] misstates the appellant’s argument. It does not submit the respondent’s actions in walking or going upstairs could not have included turning. Its argument is based on the respondent’s failure to mention twisting in his claim form or earlier statement, and thus the allegation made to Dr Bodel was not consistent with contemporaneous histories.[81] The submissions in reply otherwise largely restate matters already put by the appellant.
[80] Appellant’s submissions in reply, [5]–[6].
[81] Appellant’s submissions in reply, [10].

Consideration

The appellant clearly raised credit in its submissions before the Arbitrator. By way of example, making submissions on allegations of inconsistency in the respondent’s statements, the appellant put:
“… my first submission is you don’t believe any of it because you can’t accept that the [respondent] is a reliable witness.”[82]
[82] Transcript of proceedings 2/10/19 (T) 41.26–28.
In JB Metropolitan Distributors Pty Ltd v Kitanoski Roche DP (in a passage with which I agree) said:
“Subject to the relevant issues having been fully and fairly ventilated in the documentary evidence, and the parties having had a reasonable opportunity to make appropriate submissions on those issues, it is open to an Arbitrator to form a view about the credit of a witness or a party even if that witness or party has not given oral evidence or been cross-examined (New South Wales Police Force v Winter [2011] NSWCA 330 from [81]).”[83]
[83] [2016] NSWWCCPD 17, [121].
I reject the respondent’s submission that his credit was not seriously challenged.
The appellant faintly submits that its lay witnesses provided evidence to the effect that the respondent would not have performed the tasks alleged in his statement dated 19 June 2019, although it says the Senior Arbitrator determined he would not ascribe any weight to that evidence.[84] The Senior Arbitrator dealt with the appellant’s lay case in the reasons at [133] to [135]. He was critical of the lack of probative weight of the evidence of the witnesses relied on by the appellant. He drew an inference pursuant to Jones v Dunkel in respect of the appellant’s failure to adduce evidence from other witnesses. The Senior Arbitrator’s fact finding in this regard is not challenged on this appeal.
[84] Appellant’s submissions, [30].
The Senior Arbitrator in his reasons at [136] (quoted at [48] above) dealt with the respondent’s evidence in his statement dated 19 June 2019, dealing with going up and down stairs 50 times, carrying chairs and boxes of booklets. The appellant submitted to the Senior Arbitrator that this history, which it submitted was inconsistent with the history recorded by Dr Bodel, meant “you don’t believe any of it because you can’t accept that the [respondent] is a reliable witness”.[85] The Senior Arbitrator did not accept this submission. He said he did not place weight on “this aspect” (emphasis added) of the respondent’s statement. He did not reject the respondent’s evidence in any general sense, he did not reject the balance of the statement dated 19 June 2019. He specifically avoided any finding that there was dishonesty or a conscious attempt to deceive. He gave reasons for this, referring to the poor drafting and confusing terminology and syntax of the statement. The Senior Arbitrator’s reservations about the drafting of the statement dated 19 June 2019 were justified. The statement is in part argumentative, and much of it resembles submissions rather than a statement of a witness in the conventional sense.
[85] T 41.23–28.

The appellant submits that the finding made at [136] of the reasons was an adverse credit finding. The Senior Arbitrator did not ascribe weight to one aspect of the respondent’s evidence in his statement dated 19 June 2019. He did not reject the respondent’s evidence in some more general sense. A finder of fact is not obliged to accept the whole of the evidence of a witness, he or she may accept the evidence of a witness on some issues but not others.[86] In Chanaa v Zarour it was said that “… there is no requirement for the judge to accept the whole of the evidence of any one witness”.[87] It was open to the Senior Arbitrator to accept the evidence of the respondent on other matters, notwithstanding the Senior Arbitrator did not give weight to the respondent’s evidence on the specific topic described at [136] of the reasons. Contrary to the appellant’s submission,[88] the Senior Arbitrator’s reasons for not giving weight to one aspect of the statement dated 19 June 2019 did not mean the Senior Arbitrator should not accept “earlier accounts” of injury.
[86] Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167, [30].
[87] [2011] NSWCA 199 (per Campbell JA, Bathurst CJ and Tobias AJA agreeing), [86].
[88] Appellant’s submissions, [34].
The appellant submits that, the “most recent account as to the cause of the injury” having been rejected, “all prior accounts [given] should have been scrutinised”.[89] The appellant refers to no authority in support of this submission. It could be an attempt to raise principles referred to in Malco Engineering Pty Ltd v Ferreira, a case where a worker gave perjured evidence on a specific topic. Handley JA, dealing with how this should be taken into account dealing with other evidence of the worker, said:
“This did not necessarily require the trial Judge to reject the whole of his evidence. Nor on the other hand was the trial judge entitled to simply accept the whole of his evidence except those parts that the respondents had established was false.
In my opinion the perjury by the worker required the trial Judge to carefully assess the rest of his evidence in order to determine its honesty and reliability. Some of his evidence may have been acceptable because it was confirmed by other independent or objective evidence. However where the worker’s evidence was not independently supported it clearly had to be assessed with great care to determine whether it could properly be accepted as proof of any matter that was in issue in the proceedings.” [90] (emphasis added)
[89] Appellant’s submissions, [33].
[90] (1994) 10 NSWCCR 117 (Ferreira).
In Brines v Westgate Logistics Pty Ltd, Keating P described the position:
“Where a worker has given untruthful evidence the Arbitrator must carefully assess the rest of his evidence in order to determine its honesty and reliability. Some of the evidence may have been acceptable because other independent or objective evidence confirmed it. However, where a worker’s evidence was not independently supported it clearly must be assessed with great care to determine whether it could properly be accepted as proof of any matter that was in issue in the proceedings (see Malco Engineering Pty Ltd v Ferreiraand others (1994) 10 NSWCCR 117 and Divall v Mifsud [2005] NSWCA 447).”[91] (emphasis added)
[91] [2008] NSWWCCPD 43, [78].
There was no finding that the respondent’s evidence was perjured or untruthful, the Senior Arbitrator specifically did not find there was any attempt to deceive. The appellant’s submission on this issue is made in a general way, without reference to authority. Having regard to the very limited nature of the Senior Arbitrator’s finding, that a single specified part of a statement would not be given weight, the situation is not analogous to that in Ferreira. The specific submission made by the appellant is that “his evidence should simply not be accepted”.[92] I reject that submission. The appellant’s submissions on this issue seek to inflate the limited finding as to weight, in the reasons at [136], to something more than it was. Doubtlessly, the Senior Arbitrator was required to consider the acceptability of the respondent’s other evidence in the normal way, in deciding whether it should be accepted and its weight. The appellant’s submissions on this aspect of Ground No. 1 are without merit.
[92] Appellant’s submissions, [33].
The appellant refers to the Senior Arbitrator’s reasons at [137] which state:
“It is true that there are inconsistencies in the [respondent’s] evidence about the precise activities that he performed on 20 September 2017, but there is no persuasive evidence before me to dispute what the [respondent] indicated in his claim form, his initial statement and the history recorded by Drs Powell and Bodel. In the circumstances, I accept that he spent the day standing, walking and there was some going up and down stairs that involved pivoting movements. The next question to consider is whether the [respondent] injured his right knee.”
The appellant submits the Senior Arbitrator erred in appearing to conclude that the claim form, the “initial statement”, and the reports of Drs Bodel and Powell “were themselves consistent with each other and supported the claimed mechanism of injury”.
The Senior Arbitrator referred to the statement dated 21 November 2017 (which he described as the “initial statement”) and briefly summarised it. The respondent spent the whole day on 20 September 2017 “standing, walking and going up and down stairs”. He noticed aching in the right leg and knee in the late afternoon. He continued ushering people to seats and other places, and by the end of the night there was a lot of pain in the knee.[93]
[93] Reasons, [15]–[17].
The Senior Arbitrator summarised Dr Bodel’s report. It recorded that the respondent had some aching in his right knee “for a few weeks up to 20 September 2017”. He had difficulty on stairs. He developed increasing knee pain and “when he was walking and twisted during the graduation ceremony and mass service, he felt a popping sensation”.[94]
[94] Reasons, [43].
The Senior Arbitrator summarised the report of Dr Powell. It recorded that on the day of the Year 12 function, the respondent worked a full day and was then involved in ushering for the function. There was “a lot of walking in an[d] out of the venue, turning, twisting and so on. Whilst undertaking this activity, he turned on his right leg and felt a ‘pop’. His knee became painful and he had to leave the function.”[95]
[95] Reasons, [49].
The Senior Arbitrator referred to the claim form dated 5 October 2017, in which the respondent said “he injured his right knee on 20 September 2017 as a result of standing and walking continuously for the entire day at work and until late at night on the Year 12 graduation day and mass”.[96]
[96] Reasons, [118].
The Senior Arbitrator was clearly aware of the mechanism of injury described in each of the documents referred to in the reasons at [137]. He summarised all of them in his reasons. He specifically noted that there were inconsistencies about the precise activities carried out. He referred to matters that he accepted were established. These were that 20 September 2017 was spent “standing, walking, and there was some going up and down stairs that involved pivoting movements”. The Senior Arbitrator noted Dr Bodel’s history of twisting at the graduation and feeling a popping sensation. He specifically noted such a history “is not recorded elsewhere”.[97]
[97] Reasons, [148].
Standing, walking and going up and down stairs were to be found in the respondent’s statement dated 21 November 2017. Standing and walking continuously were activities found in the claim form. Dr Bodel recorded increasing pain when walking and twisting on 20 September 2017. Dr Powell recorded working a full day (which would have involved standing), followed by ushering with a lot of walking, turning, twisting “and so on”.
The Arbitrator noted the respondent, on 20 September 2017, performed his usual teaching duties during normal class hours, which involved standing. He noted the appellant’s lay witnesses confirmed the respondent would have needed to use stairs to go from the classrooms to the school hall.[98] He noted the evidence of the appellant’s lay witnesses that there were 10 steps leading to the building entrance, 15 steps up to the landing, a right turn and then a further 10 steps to the entry of the school hall. Based on this he reasoned, unexceptionally, “it is conceivable there was the potential for some pivoting on the stairs”.[99]
[98] Reasons, [121].
[99] Reasons, [125].
It should also be remembered that, to the extent there was any issue regarding what activities were carried out on 20 September 2017, the Senior Arbitrator concluded that the evidence of the appellant’s four lay witnesses was from people who had “no idea what the [respondent] actually did at work on 20 September 2017 … and merely speculated”. The “most crucial and persuasive evidence”, he said, could have come from the maintenance crew and Mr Culican, none of whom contributed statements. The Senior Arbitrator drew an inference that the evidence of these people would not have advanced the appellant’s case.[100] How the Senior Arbitrator dealt with the appellant’s lay case is not challenged on appeal. It follows that the respondent’s evidence that he “spent the whole day standing, walking and going up and down stairs”[101] was not effectively contradicted by other evidence.
[100] Reasons, [133]–[135].
[101] Appellant’s statement 21/11/17, [5], ARD, p 3.
The appellant’s submission that the Senior Arbitrator misapprehended the contents of the four documents described at [137] of the reasons, and erred in concluding they were consistent with each other, is without merit. They were largely consistent, and the Senior Arbitrator took the contents of each into account. It was not simply a question of methodically comparing each variation in histories to search for inconsistencies. It is common to find variation in medical and other histories. This will sometimes be significant, sometimes not, depending on the circumstances of the individual case. It is necessary to assess the evidence overall. This involves assessing the evidence in both parties’ cases. The Senior Arbitrator did this at length.
At [137] of the reasons the Senior Arbitrator identified activities described in the claim form, the statement dated 21 November 2017 and the histories recorded by Drs Bodel and Powell, which there was “no persuasive evidence to dispute”. This did not involve inversion of the onus of proof. It involved identification by the Senior Arbitrator of matters of history which were established, in the absence of persuasive evidence to the contrary. It was not arrived at by mechanically comparing items of history recorded at different times. The task facing the Senior Arbitrator was a broader one, whether ‘injury’ was established on the evidence as a whole. The Senior Arbitrator’s reasons are to be read as a whole.[102] The finding included what the Senior Arbitrator took from the evidence of the lay witnesses, about the layout of the stairs and his conclusion that there was a potential for some pivoting. It included the absence of any effective contradiction by the appellant’s lay case of matters in the respondent’s statement dated 21 November 2017 (see [63] above). It included the effect of the Jones v Dunkel inference.
[102] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 444.
The approach taken by the Senior Arbitrator, in identifying the mechanism of injury at [137] of the reasons, was open on the evidence and did not involve error, consistent with the principles described at [13] to [16] above.
Ground No. 1 fails.

GROUND NO. 2

Appellant’s submissions

The appellant submits that “Dr Bodel’s opinion on causation was based entirely on the history of a twisting event causing a popping sensation in the knee”. The appellant refers to the history in the doctor’s report that the respondent was “walking and twisted during that work-related activity and he felt a painful popping sensation in the knee”. The appellant submits this history was not recorded elsewhere. The matters recorded by the Senior Arbitrator in the reasons at [137], as matters he accepted, were “standing, walking, and there was some going up and down stairs that involved pivoting movements”. It submits “[t]hat does not suggest twisting in the course of employment.” The appellant submits Dr Bodel’s history was “markedly inconsistent with earlier accounts, should not have been accepted as accurate, and his opinion on causation should not have been accepted.”[103]
[103] Appellant’s submissions, [48]–[52].
The appellant quotes the following well-known passage from Paric v John Holland (Constructions) Pty Ltd:
“It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v. Watson [1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels J.A. in the Court of Appeal (Wigmore on Evidence, (1940) 3rd ed., vol.II, 680, p.800; 2 Wigmore, Evidence 680 (Chadbourn rev. 1979), p.942) to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.”[104]
[104] [1985] HCA 58; 59 ALJR 844 (Paric), [9].
The appellant submits that, if the Senior Arbitrator accepted the occurrence of a “popping sound” when the respondent twisted his knee, this involved error. The proffered reason is that such a history was “not recorded elsewhere, particularly in the earlier statement and claim form”. If the Senior Arbitrator did not accept the occurrence of the twisting injury, there was a fundamental inconsistency to the basis on which Dr Bodel reached his conclusion, and his opinion should have been given little if any weight.[105]
[105] Appellant’s submissions, [54]–[56].

Respondent’s submissions

The respondent refers to the reasons at [43], where the Senior Arbitrator summarised the opinion of Dr Bodel, including the reference to increasing pain when the respondent was walking and twisted and felt a popping sensation. He refers to the finding at [137] of the reasons, in which the Senior Arbitrator accepted the occurrence of “standing, walking, and there was some going up and down stairs that involved pivoting movements”. The respondent submits the word pivoting was sufficient to encompass Dr Bodel’s reference to “twisting” or Dr Powell’s reference to “turning”.
The respondent submits the argument made by the appellant in Ground No. 2 is essentially a factual challenge, and a Presidential member should not interfere on appeal if the Senior Arbitrator’s decision was fairly open to him on the evidence. Reference is made to Branir and Andersen v J & M Predl Pty Ltd.[106]
[106] [2018] NSWWCCPD 40.

Appellant’s submissions in reply

The appellant submits there was no history of a “frank twisting event and a popping sensation” in the claim form and earlier statement. It submits such a “frank twisting event” was not “sufficiently like” the history the Senior Arbitrator accepted at [137] of the reasons, and little if any weight should have been placed on Dr Bodel’s opinion. The appellant again refers to Paric.[107]
[107] Appellant’s submissions in reply, [12]–[15].

Consideration

There are two points made by the appellant in Ground No. 2. The first is that the passage of Dr Bodel’s history referred to[108] was “inconsistent with earlier accounts” and should not have been accepted. An assumption in a medical history, on which a doctor’s opinion is based, may be material on which the Commission can act. As was observed in Onesteel Reinforcing Pty Ltd v Sutton, “[m]uch will depend on the context and the issues tendered for consideration”. In most cases this will be a factual question.[109]
[108] ARD, p 7.
[109] [2012] NSWCA 282; 13 DDCR 351 (Sutton) (per Allsop P), [4].
The passage of Dr Bodel’s history challenged in this ground is that on 20 September 2017 the respondent “was walking and twisted during that work-related activity and felt a painful popping sensation in the knee”. The appellant submits this history should not have been accepted, simply on the basis it was inconsistent with earlier histories, specifically the claim form and the statement dated 21 November 2017. Why this is so is unexplained and no authority is cited for the proposition. I note the claim form and the earlier statement do not exclude such an event, but rather do not make reference to it. In Sutton, Basten JA observed that “[o]nce it is accepted that certain material may be considered by the Commission, the weight to be given to the material is a matter for the Commission itself”.[110] The history given to Dr Bodel was properly before the Senior Arbitrator (there is no argument to the contrary) and the weight given to it was largely a matter for him. This is consistent also with Shellharbour City Council v Rigby, where it was 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.”[111]
[110] Sutton, [83].
[111] [2006] NSWCA 308, [144].
The above is, of course, subject to provisions such as s 354 of the 1998 Act, r 15.2 of the Workers Compensation Commission Rules 2011, and “the application of substantive rules of law” including the rules of procedural fairness.[112]
[112] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421, [90].
There is no basis for the argument that the relevant passage of the history should have been rejected simply on the basis that it contained material outside what was in the claim form and the earlier statement.
The relevant passage of Dr Bodel’s history records the respondent was “walking and twisted during that work-related activity and felt a painful popping sensation in the knee”. I have concluded, in the discussion at [72] to [73] above, that it was open to the Senior Arbitrator to make the factual finding at [137] of the reasons regarding the history there referred to. The activities there accepted included “standing, walking, and there was some going up and down stairs that involved pivoting movements”. The appellant submits the matters of history accepted in the reasons at [137] do “not suggest a finding that the [respondent] twisted in the course of his employment as recorded by Dr Bodel”.[113] The respondent, to the contrary, submits “pivoting” would reasonably encompass the doctor’s reference to “twisting”.[114]
[113] Appellant’s submissions, [51].
[114] Respondent’s submissions, [2.8.18].
In Sutton McColl JA, referring to Paric, said it “was a question of fact whether the case the expert hypothesised was sufficiently like that proven so as to render the experts' opinions of any value”.[115] (emphasis added). The High Court in Paric specifically stated that the principles do “not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based”. Their Honours referred to the application of “both principle and common sense”. I note also that s 354(3) of the 1998 Act required the Senior Arbitrator (and me on this appeal) to act “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”.
[115] Sutton, [69].
I accept the respondent’s submission that the matters accepted by the Senior Arbitrator at [137] of the reasons are “sufficiently like” that part of Dr Bodel’s history referred to at [85] above. There is a fair climate for the expression and acceptance of Dr Bodel’s opinion.

Ground No. 2 fails.

GROUND NO. 3

Appellant’s submissions

The Senior Arbitrator said that Dr Nagamori, in his report dated 3 July 2018, failed to comment on the aggravation in September 2017, which was described as “a significant omission on the doctor’s part”. He was of the view that Dr Nagamori had not specifically ruled out a causal nexus between the injury on 20 September 2017 and the pathology in the knee.[116] The appellant submits this interpretation of Dr Nagamori’s report was erroneous.[117]
[116] Reasons, [145]–[146].
[117] Appellant’s submissions, [58].
The appellant submits Dr Nagamori, on 27 September 2017, recorded a history of an aggravation at work leading to a deterioration in symptoms. The doctor was conscious of the 20 September 2017 incident. The doctor was aware of the new lateral meniscal tear pathology as he arranged that MRI scan, and also had treated the respondent after the earlier right knee injury in 2016. The respondent’s solicitor sought the doctor’s view on “any causal connection between the incident and the injuries sustained”. The doctor replied: “It is my opinion that the lateral meniscal tear was sustained as he stumbled at work on 21 November 2016.” The appellant submits the doctor “clearly and unequivocally stated that the incident on 21 November 2016 had caused that pathology”. The appellant submits the doctor had ruled out a causal nexus between the injury on 20 September 2017 and the new lateral meniscal pathology, by stating the incident on 21 November 2016 caused the pathology.[118]
[118] Appellant’s submissions, [60]–[64].
The appellant submits the Senior Arbitrator erred in “failing to ascribe sufficient weight to that opinion and report”.[119]
[119] Appellant’s submissions, [66].

Respondent’s submissions

The respondent submits there was a clear history recorded by Dr Nagamori of the work-related aggravation in September 2017, and objective evidence of pathological change in the right knee. Dr Nagamori described the later radiological findings as “a further extensive tear” in his report dated 27 November 2017. The respondent submits it is “reasonable to assume” that the opinion of Dr Nagamori referred to the original lateral meniscal tear resulting from the incident on 21 November 2016. This is consistent with the Senior Arbitrator’s statement that the doctor’s opinion did not rule out a causal nexus with the injury on 20 September 2017.[120]
[120] Respondent’s submissions, [2.8.20]–[2.8.24].

Appellant’s submissions in reply

The appellant submits the reference in Dr Nagamori’s short report dated 27 September 2017,[121] to an aggravation at work, was a matter of history, not an opinion on causation. The doctor’s opinion on causation was in his report dated 3 July 2018, the lateral meniscus tear resulted from the incident on 21 November 2016.[122] The appellant submits the Senior Arbitrator erred in concluding that “we ‘do not know’” Dr Nagamori’s opinion on the causal role of the injury the subject of the current dispute.[123]
[121] Reply, p 30.
[122] Reply, p 36.
[123] Appellant’s submissions in reply, [16]–[20].

Consideration

Dr Nagamori recorded histories of three incidents. These were of the respondent’s right knee becoming symptomatic when he stumbled whilst walking on 21 November 2016, the right knee buckling while stepping over a small step at work on 28 November 2016,[124] and having “further aggravated his knee during the course of his work”, referred to in the short report dated 27 September 2017.[125] The question asked of Dr Nagamori, set out in his report dated 3 July 2018, was “Your opinion as to any causal connection between the incident and the injuries sustained.”[126] He responded “It is my opinion that the lateral meniscus tear was sustained as he stumbled at work on 21.11.16.”
[124] Dr Nagamori’s report 3/7/18, Reply, p 36.
[125] Reply, p 30.
[126] Reply, p 36.
The question asked of Dr Nagamori was inadequate in the circumstances. It did not draw the doctor’s attention to the competing causal roles (if any) of the three incidents of which the doctor had a history. It did not seek the doctor’s opinion on the causal roles of those incidents. The doctor’s report dated 3 July 2018 gave a specific opinion on the causal role of the incident of 21 November 2016. It was silent, and did not contain direct evidence, regarding the doctor’s opinion of the causal role (if any) of the other incidents, particularly that of 20 September 2017 on which the respondent relied in these proceedings.
How the Senior Arbitrator dealt with this opinion evidence from Dr Nagamori is summarised at [35] to [36] above. He regarded it as a deficiency in the doctor’s evidence, and one that should have been filled through the obtaining by the respondent’s solicitors of a supplementary report, to clarify what causal role, if any, was played by the incident of 20 September 2017. It is apparent that the Senior Arbitrator did not conclude it could be inferred, in the absence of direct evidence, that the incident on 20 September 2017 did not, in Dr Nagamori’s opinion, play a causal role. The appellant’s submissions on Ground No. 3, although not articulated as such, constitute a challenge to the Senior Arbitrator’s failure to draw that inference in its favour.
In Bradshaw v McEwans Pty Ltd,[127] the High Court said:
“In questions of this sort where direct proof is not available it is enough if the circumstances appearing in the 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 a mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). 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: cf per Lord Loreburn, above, at 678.”
[127] (1951) 217 ALR 1 (Bradshaw), 5.
The above passage from Bradshaw was described as “the test to be applied” in Luxton v Vines.[128] In Jones v Dunkel Dixon CJ, after referring to Bradshaw and Holloway v McFeeters,[129] said:
“... the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.”[130]
[128] [1952] HCA 19; 85 CLR 352 (per Dixon, Fullagar and Kitto JJ), [8].
[129] [1956] HCA 25; 94 CLR 470.
[130] Jones v Dunkel, [2].
The appellant’s submission is that the Senior Arbitrator should have inferred, in the absence of direct opinion evidence from Dr Nagamori, that the doctor’s failure to refer, in his brief discussion on causation, to the incidents other than that of 21 November 2016 constituted an opinion that the other incidents did not play a relevant causal role. The unsatisfactory opinion evidence from Dr Nagamori did not form “a reasonable basis for a definite conclusion affirmatively drawn” that this represented the doctor’s opinion on the causal role of the incident of 20 September 2017. The Senior Arbitrator’s conclusion, that the doctor’s ambiguous opinion represented inadequacy in the reporting process in the circumstances, requiring clarification, was at least as likely as the inference for which the appellant argues. Additionally, it is not enough if I, on appeal, would have drawn a different inference. It must be shown that the Arbitrator was wrong (see [13] above). The Senior Arbitrator’s failure to draw the inference, for which the appellant contends, was open in the circumstances and did not involve error.
Ground No. 3 fails.

GROUND NO. 4

Appellant’s submissions

The appellant states that it relies on its submissions dealing with Grounds Nos. 1 to 3. It submits the Senior Arbitrator erred in finding that the lateral meniscus tear was caused in the incident on 20 September 2017. It submits Dr Nagamori’s opinion was entitled, as that of a treating specialist, to significant weight. He treated the respondent in respect of the injuries on 21 November 2016 and 20 September 2017 and was best placed to express an opinion on causation of the pathology. The appellant repeats its submission that Dr Bodel’s opinion was based on a history of twisting on the right knee and feeling a popping sound, “a history that should have been rejected by the Arbitrator”.
The appellant submits Dr Bodel recorded a history of “increasing knee pain in the weeks leading up to 20 September 2017” and did not attempt to explain on what basis the meniscal tear resulted from the incident on 20 September 2017, as opposed to the weeks leading up to that date. It submits the totality of the evidence did not establish on the probabilities that the lateral meniscal tear was caused on 20 September 2017.[131]
[131] Appellant’s submissions, [67]–[73].

Respondent’s submissions

The respondent submits that the appellant essentially repeats its submissions going to the earlier grounds. The respondent submits the appellant’s submission, that the respondent failed to discharge his onus in relation to injury on 20 September 2017, fails to acknowledge:
(a)    the evidence of walking and going up and down stairs on 20 September 2017, which the Senior Arbitrator found to be consistent with “pivoting”;
(b)    the contemporaneous treatment by Dr Nagamori of a work-related aggravation on 27 September 2017;
(c)    the updated MRI scan described in Dr Nagamori’s report dated 27 November 2017 as a “further extensive tear”, and
(d)    Dr Nagamori on 27 November 2017 repaired an “extensive further horizontal tear of the lateral meniscus”.
The respondent submits there is “no competing factual or medical evidence to challenge the Senior Arbitrator’s finding of a further extensive tear to the lateral meniscus on 20 September 2017”.[132]
[132] Respondent’s submissions, [2.8.25]–[2.8.28].

Appellant’s submissions in reply

The appellant in reply submits there was competing medical evidence, being the opinion of Dr Nagamori, who provided direct evidence on whether the extensive tear was caused on 20 September 2017.[133]
[133] Appellant’s submissions in reply, [21].

Consideration

Ground No. 4 is essentially repetitive of the earlier grounds. It is largely dealt with in the consideration above of the earlier grounds. The appellant’s submissions dealing with Grounds Nos. 1 to 3 are dealt with above. The appellant’s submissions dealing with the weight to be afforded to Dr Bodel’s opinion, and whether Dr Bodel’s history of twisting on the right knee followed by a popping sound, could properly be accepted by the Senior Arbitrator, are dealt with in the consideration of Grounds Nos. 1 and 2. The appellant’s submission regarding the weight to be afforded to Dr Nagamori’s opinion on causation is dealt with in the consideration above dealing with Ground No. 3. Any primacy to be afforded Dr Nagamori, as a treating specialist, does not alter the fact that his report dated 3 July 2018 does not include direct evidence of his opinion, regarding the causal consequences of the incident on 20 September 2017. The Senior Arbitrator’s observation that “[w]e do not know [Dr Nagamori’s] views on causation in respect of the injury which is the subject of this dispute”[134] is consistent with the consideration above regarding Ground No. 3.
[134] Reasons, [146].
Regard also should be had to the matters identified by the respondent and set out at [103] above. The Senior Arbitrator noted Dr Nagamori’s consultation with the respondent on 27 September 2017, with a history of work-related aggravation and a “considerable deterioration” in the respondent’s symptoms. The Senior Arbitrator observed that “something happened to cause the [respondent’s] symptoms”.[135] He referred to the MRI scan, which showed prominent oedema, what Dr Nagamori described as an “extensive further horizontal tear”, and the tear being on the posterior side, unlike the “previous tear on the anterior side”.
[135] Reasons, [142].
Ground No. 4 alleges error in “finding that the [respondent] sustained a meniscal tear on 20 September 2017”. This slightly oversimplifies the Senior Arbitrator’s finding regarding injury. He described what happened on 20 September 2017 as “an incident that caused not only symptoms, but further pathology, namely an extension of the tear in the lateral meniscus as shown in the MRI scan take[n] shortly afterwards”.[136] This is essentially consistent with Dr Bodel’s opinion that the “diagnosis here is a tear of the lateral meniscus in the region of the right knee and a recurrence of that tear and both injuries occurred at work”.[137] The Senior Arbitrator’s finding regarding injury was properly available in the circumstances, and was not made in error.
[136] Reasons, [160].
[137] ARD, p 9.
Ground No. 4 fails.

GROUND NO. 5

Appellant’s submissions

Ground No. 5 challenges the Senior Arbitrator’s finding that s 9A of the 1987 Act was satisfied. The appellant submits that the respondent’s histories of the mechanism of injury should not be accepted, that Dr Bodel’s opinion should not be accepted, and that therefore the evidence does not establish that employment was a ‘substantial contributing factor’. The appellant accepts that if the Grounds of Appeal numbered 1 to 4 are not established, Ground No. 5 will fail.[138]
[138] Appellant’s submissions, [74]–[78].

Respondent’s submissions

The respondent submits that the Senior Arbitrator properly addressed the matters to be considered under s 9A(2) of the 1987 Act

Consideration

Consistent with the appellant’s concession, Grounds Nos. 1 to 4 having failed, Ground No. 5 fails.

ANOTHER MATTER

The earlier proceedings between the parties resolved by way of consent orders dated 6 September 2017 (see [2] to [3] above). These involved the entry of orders providing for the payment of limited compensation by way of some short periods of weekly compensation, together with some medical and related expenses pursuant to s 60 of the 1987 Act. There were awards in the appellant’s favour beyond these awards, in so far as medical and weekly compensation were concerned. There were some consent findings providing that, in general terms, the respondent had recovered from the effects of work injury, and that there was no further requirement for medical treatment and no further incapacity.[139] The consent orders also included a notation of an agreement between the parties, that specifically stated it was not a determination of the Commission. The notations included an admission and agreement that on payment of the compensation provided for in the consent orders, the respondent had “received all compensation entitlements in respect of the subject work injury”.
[139] Reply, pp 47–48.
The notice issued by the appellant’s insurer dated 13 October 2017,[140] disputing the current claim, referred to the above consent orders, and stated that the insurer relied on those attached orders (which were described as “taken from your prior claim”). The parties have conducted the current matter on the basis that the only injury relied on by the respondent was that on 20 September 2017, and that in respect of injury on 21 November 2016 “Liability was accepted and there was a subsequent recovery”.[141] The matter having been conducted on that basis, it was dealt with by the Senior Arbitrator on the basis of those pleadings, and I have dealt with the appeal on the same basis. It should not be assumed that the earlier consent orders necessarily precluded reliance on the injuries the subject of those orders. Whether there could have been successful reliance by the respondent on the earlier incidents, on the evidence, was not in the circumstances a matter dealt with in the current proceedings and is unexplored.
[140] ARD, pp 83–84.
[141] ARD, Pt 4.

DECISION

The Grounds of Appeal Nos. 1 to 5 having failed, the appeal does not succeed.
The Senior Arbitrator’s decision dated 15 October 2019 is confirmed.

Michael Snell

DEPUTY PRESIDENT

22 April 2020