University of New South Wales v Brooks - [2014] NSWWCCPD 68

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	University of New South Wales v Brooks [2014] NSWWCCPD 68
APPELLANT:	University of New South Wales
RESPONDENT:	Christine Brooks
INSURER:	Self-insured
FILE NUMBER:	A1-16710/12
ARBITRATOR:	Ms F Robinson
DATE OF ARBITRATOR’S DECISION:	30 June 2014
DATE OF APPEAL DECISION:	20 October 2014
SUBJECT MATTER OF DECISION:	Failure to give reasons; failure to determine issues in dispute; failure to consider evidence; alleged failure to draw Jones v Dunkel [1959] HCA 8; 101 CLR 298 inference; alleged reversal of onus of proof
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Leigh Virtue & Associates
Respondent:	Marshall & Gibson Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 30 June 2014 is revoked and the matter remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision. 2. Each party is to pay her or its own costs of the appeal. 3. Costs of the first arbitration, and of the second arbitration, are to follow the outcome of the second arbitration.

INTRODUCTION

This is yet another appeal involving a failure by an Arbitrator to give reasons for her decision and a failure to determine the issues in dispute. The appeal also raises the application of the principles in Jones v Dunkel [1959] HCA 8; 101 CLR 298 and an allegation that the Arbitrator reversed the onus of proof.

BACKGROUND

The respondent worker, Christine Brooks, works for the appellant employer, the University of New South Wales (the University), as an event manager for the School of Taxation and Business Law. On 27 February 2012, while at her desk at work, ceiling tiles fell onto her. To avoid being struck by the tiles, Mrs Brooks jumped out of the way. As she did so, she felt pain in her left hip.
Mrs Brooks saw her general practitioner, Dr Graham Collins, on 1 March 2012. Dr Collins issued a WorkCover medical certificate on that day in which he recorded a history that “ceiling tiles fell down sending a desk fan towards [Mrs Brooks]. [Mrs Brooks] jumped away causing hip pain”. Dr Collins referred Mrs Brooks for physiotherapy and to Dr John Best, a sports physician who had previously treated her for left hip pain that started in mid-2011.
Mrs Brooks gave evidence that, from about November 2011, her 2011 left hip pain had resolved and that she was untroubled by either pain or restriction in her left hip until the incident of 27 February 2012. The University’s case was, among other things, that this evidence was incorrect because Mrs Brooks had seen Dr Best for her left hip on 27 January 2012 and her physiotherapist, Mr Messiter, for her left hip on 10 and 16 February 2012.
On 29 April 2012, Mrs Brooks underwent an MRI scan of her left hip which revealed a thin anterosuperior chondrolabral junction tear. (An MRI scan of the left hip in 2011 was reported as not showing such a change or any osteoarthritis.)
Dr Best reported on 1 May 2012 that Mrs Brooks still had an irritable hip with impingement. He said that the 2012 MRI scan showed some subchondral oedema “which is consistent with a contusion type injury from her work injury in February”. As a corticosteroid injection in March 2012 did not offer sustained relief, Dr Best recommended a surgical opinion and he referred Mrs Brooks to Dr Peter Walker, orthopaedic surgeon.
Relying on a report from Dr Anthony Smith, orthopaedic surgeon, dated 28 May 2012, the University disputed the claim in a s 74 notice, dated 6 June 2012, on the grounds that:
“● If you do suffer from any medical condition (which is denied) it is not causally connected to any injury.
· Your employment is not a substantial contributing factor to the injury.
· You have no incapacity for work arising from an injury.”
The University declined liability for medical expenses on the ground that the “medical treatment is not reasonably necessary” as required by s 60 of the Workers Compensation Act 1987 (the 1987 Act). The s 74 notice added that “[l]iability is declined as our evidence indicates that your current symptoms are not caused or aggravated by your employment with the University of New South Wales” (emphasis added). The notice made no reference to s 4 of the 1987 Act. (It should be noted that this notice did not dispute that Mrs Brooks had injured her left hip on 27 February 2012.)
Dr Smith’s evidence was that Mrs Brooks has bilateral osteoarthritis of the hip, which was a “constitutional malady”. Causation was, in his opinion, a genetic phenomenon and was not work related. In support of this view, he referred to the incidence of arthritis in various countries around the world.
Dr Smith said that Mrs Brooks had had symptoms from her arthritic left hip in the past and she “aggravated the arthritic hip on the left in the work accident”. Thus, Dr Smith conceded that Mrs Brooks had suffered an aggravation injury under s 4(b)(ii) of the 1987 Act. However, he thought that the aggravation had resolved. (This evidence was consistent with the s 74 notice not disputing injury, but asserting that Mrs Brooks’s “current symptoms” had not been caused by the incident at work on 27 February 2012.)
On 3 July 2012, Mrs Brooks underwent surgery on her left hip at the hands of Dr Walker. In his report of 3 July 2012, Dr Walker said that the surgery revealed Mrs Brooks to have a haemorrhagic and torn labrum, which Dr Walker debrided. In addition, Dr Walker performed an osteoplasty to remove bone spurs.
In an Application to Resolve a Dispute (the Application) registered in the Commission on 20 December 2012, Mrs Brooks claimed hospital and medical expenses of $7,436.30, plus travel expenses, relating to the injury to her left hip on 27 February 2012. In its Reply, filed on 21 January 2013, the University disputed the claim on the grounds set out at [7] above.
Mrs Brooks’s claim was supported by evidence from Dr Best to the effect that she injured her hip at work on 27 February 2012 when she suddenly moved to avoid being hit by part of the ceiling that had come away. In his report of 28 March 2012, Dr Best said:
“1. The injury which occurred to Mrs Brooks in February this year had [sic] aggravated what had been a recovered left hip problem.
The injury she sustained in February is the major cause of her current pain and disability.
2. Mrs Brooks had recovered from her previous left hip problem. This is very important. In October last year[,] Mrs Brooks had undergone an MRI scan of the left hip and there was no osteoarthritis (degenerative change) within the hip. The other problems we had found on the MRI were manageable and she had done very well with various treatments. Therefore[,] I feel that her current symptoms are due to her injury at work in February.
3. Work is a substantial contributing factor.”
In his report of 16 November 2012, Dr Best said that the operation report (from Dr Walker) indicated that Mrs Brooks had suffered a tear of the labrum of the left hip, which was consistent with the MRI findings. He added that:
“The history, MRI scans, physical examination and operative findings are completely consistent.”
After hearing submissions from the parties on 12 March 2014, the Arbitrator delivered a reserved decision on 30 June 2014 in which she found:
(a) that Mrs Brooks sustained injury to her left hip on 27 February 2012 during the course of her employment with the University and that employment was a substantial contributing factor to that injury;
(b) the medical and related expenses, as detailed in the Application, were reasonably necessary, and
(c) Mrs Brooks was entitled to an order under s 60 of the 1987 Act.
The Commission issued a Certificate of Determination on 30 June 2014 in the following terms:
“The determination of the Commission:
1.The respondent to pay the medical and related expenses incurred by the applicant pursuant to s 60 of the 1987 Act.
2. The respondent to pay the costs of the applicant as agreed or assessed.
Certification as to costs
I grant to both parties, for reasons given on the record, a 15% costs uplift on the basis of complexity.”
The University has appealed. For the reasons explained below, the appeal is successful and the matter is remitted to a different Arbitrator for re-determination.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 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 the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     failing to give adequate reasons (reasons);
(b)     failing to address all of the issues identified and relied on in the parties’ submissions (reasons);
(c)     consideration of the evidence (consideration of the evidence);
(d)     failing to draw adverse inferences in the absence of reports from the physiotherapist (Mr Messiter) and the general practitioner (Dr Collins) (absence of reports from Mr Messiter and Dr Collins), and
(e)     reversing the onus of proof (onus of proof).

REASONS

Submissions

The University’s solicitor, Mr Macken, submitted that the Arbitrator failed to:
(a)     give adequate reasons;
(b)     give any reasons in respect of whether employment was a substantial contributing factor to the injury;
(c)     engage sufficiently with the evidence relied on and with the submissions made, and
(d)     refer to relevant evidence and engage with the issues canvassed and explain why one expert was accepted over another.
Mr Macken submitted that the Arbitrator erred in asserting that the only issues to be determined were whether employment was a substantial contributing factor to the injury and, if so, whether medical expenses incurred were reasonably necessary. He argued that the issues in dispute were “injury, causation, substantial contributing factor and whether medical treatment was reasonably necessary as a result of injury” (emphasis included in the submissions).
Counsel for Mrs Brooks, Mr Nicholson, submitted that there was no dispute between the parties as to the work incident, nor any contest, on the medical evidence, as to the injury caused by the incident. He said that the contest in the matter, on the medical evidence, was what resulted from the injury.
Mr Nicholson contended that the question of “substantial contribution” concerns the causal relationship of the employment to the injury. In the present case, the employment’s “substantial contribution” to the injury was not, on the evidence, in issue. Mrs Brooks was at her workplace when parts of the ceiling fell down in the vicinity of where she was.
Mr Nicholson argued that the question for the Arbitrator was not whether the employment substantially contributed to the injury, but what “results” from the injury. Nevertheless, the Arbitrator dealt with the question of “substantial contribution” as it was raised in the s 74 notice, finding that the employment was a substantial contributing factor to the injury. No alternative finding was available on the evidence.
Mr Nicholson submitted that the “substantial contribution” issue was a matter incorrectly raised in the s 74 notice and the need for medical treatment was the subject of the compensation claimed. He said that the Arbitrator dealt with both matters.

Discussion and findings

The extent and scope of a trial judge’s (or Arbitrator’s) duty to give reasons depends upon the circumstances of the individual case (Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA (with whom Clarke JA and Hope AJA agreed)). In the present case, for the reasons explained below, the Arbitrator failed to give adequate reasons on the issues she considered, failed to determine several issues in dispute and therefore failed to determine the matter according to law.
The Arbitrator said (at [3]) that the University did not dispute that an incident occurred but “denied liability on the basis employment was not a substantial contributing factor to the injury”.
Under “Issues For Determination in Dispute” the Arbitrator said, at [6]:
“6.The issues are whether employment was a substantial contributing factor to the injury on 27 February 2012 and if so whether the medical expenses incurred, subsequent to that injury, were reasonably necessary.”
These statements were inaccurate.
At the arbitration, Mr Macken submitted, at T5.33:
“Arbitrator, [Mrs Brooks] asserts injury to her left hip on 27 February 2012. As you say, section 4, section 9A and causation are in issue. The claim is for medical and treatment expenses which are asserted to be reasonably necessary as a result of the injury. You no doubt appreciate that [Mrs Brooks] bears the onus of proof in respect of all of those disputed issues and my submissions - and I’ll go through the reasons - will be that you would not accept that [Mrs Brooks] has discharged the onus of proof relevant to those issues.”
Mr Macken added, at T6.10:
“Importantly, the consideration of the question of injury involves a determination not only as to whether or not there was an incident but also that there was some pathological alteration to [Mrs Brooks’s] condition by reason of that incident. We say that whether or not you’re satisfied as to the occurrence of the incident does not matter because the evidence does not support an assertion of any pathological alteration to [Mrs Brooks’s] condition by reason of any incident.”
The reference to the causation issue was a reference to whether Mrs Brooks’s medical expenses were “reasonably necessary as a result of injury” (T10.21). Mr Macken made lengthy submissions on all the issues he identified as being in dispute.
Though the poorly drafted s 74 notice had not properly disputed injury, Mr Nicholson did not assert that Mr Macken’s identification of the issues was incorrect. On the contrary, he submitted that “[the University] has put everything in issue” (T30.15). Thus, he appears to have conceded that the matters identified by Mr Macken were in dispute and he made submissions on that basis.
Mr Nicholson’s submission on appeal that there was no contest between the parties, on the medical evidence, as to the injury caused by the incident on 27 February 2012 was not correct. That was the very issue Mr Macken addressed on, though his submissions failed to acknowledge that Dr Smith conceded that Mrs Brooks suffered an aggravation injury and did not deal with substantial contributing factor. The only reasonable view of Dr Smith’s evidence is that he conceded that Mrs Brooks’s employment was a substantial contributing factor to the aggravation injury, but that the effect of the aggravation had ceased.
In light of the poorly drafted s 74 notice, Mr Nicholson would have been entitled to object to Mr Macken addressing on injury, but he did not. It is too late to object on appeal. Mr Nicholson’s submissions on what resulted from the injury raise important issues that will arise at the re-determination and are addressed below under “Other Matters”.
It follows that, given the way the parties conducted the case, and noting that, subject to the Commission’s rules and the rules of procedural fairness, cases are determined on the evidence and the arguments presented, not on the pleadings (Dawson J in Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 at 297), the Arbitrator was required to deal with the issues the parties presented. She did not do so and that was an error.
From [10]–[14], the Arbitrator purported to summarise the parties’ submissions. That summary was inaccurate and deficient in several respects. However, in view of the conclusion I have reached as to the correct outcome of the appeal, it is not necessary to dwell on this deficiency, though I note that it is the subject of complaint by Mr Macken.
Under “Findings and Reasons”, the Arbitrator noted that Mrs Brooks had disclosed her 2011 left hip symptoms and stated that, following treatment, which was completed in November 2011, she was pain free.
The Arbitrator then summarised Dr Smith’s evidence. She said that the statistics quoted by Dr Smith (relating to the prevalence of osteoarthritis in the general community) were of no assistance, nor were his comments that certain medical conditions are “inordinately common” helpful. She observed that Dr Smith made no comment on Dr Walker’s operation report of 3 July 2013.
The Arbitrator then extracted passages from Dr Best’s reports of 20 March 2012, 28 March 2012, 1 May 2012, 16 November 2012 and 5 June 2013. Her only analysis of this evidence was at [20]–[22], where she said:
“20.Dr Best treated the applicant in respect of a medical condition of the left hip in 2011 and then again following the injury in 2012. He has been totally consistent in respect of causation and has always maintained the applicant sustained an injury, in February 2012, which required treatment including injections, physiotherapy and surgery.
21.The evidence of Dr Best is compelling. The evidence of Dr Smith, and the submissions of the respondent, does not persuade me the grounds of denial have any merit.
22.For the reasons above I find[:]
(a)the applicant sustained an injury to the left hip on 27 February 2012 during the course of her employment with the respondent and employment was a substantial contributing factor to that injury.
(b)the medical and related expenses, as detailed in the Application to Resolve a Dispute, are reasonably necessary[.]
(c)the applicant is entitled to an order pursuant to s 60 of the 1987 [A]ct.”
These reasons did not deal with any of Mr Macken’s submissions on injury, substantial contributing factor or causation. While reasons do not have to be “lengthy or elaborate” (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 444), an Arbitrator is required to engage with the issues canvassed by the parties and explain why one expert is accepted over the other (Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293 per Beasley JA (as her Honour then was) at [133] (Basten and Macfarlan JJA agreeing)). The Arbitrator did not do that.
The Arbitrator merely set out passages from the various reports from Dr Smith and from Dr Best and said that the evidence from Dr Best was “compelling” and that the evidence from Dr Smith did not “persuade [her] the grounds of denial have any merit”. The inference is that, reading the decision as a whole, the Arbitrator accepted Dr Best’s evidence and rejected Dr Smith’s evidence.
However, given the issues argued at the arbitration, much more was required. The Arbitrator failed to grapple with any of the issues presented. For example, she did not deal with the evidence from Mr Messiter that he had seen Mrs Brooks for her left hip on 10 and 16 February 2012. Nor did she deal with Dr Best’s evidence that he had seen Mrs Brooks on 27 January 2012 for her left hip, which Mr Macken submitted undermined Dr Best’s evidence and was inconsistent with Mrs Brooks’s evidence that her previous left hip pain had resolved by about November 2011.
The Arbitrator did not address the injury issue at all. Given the way the parties conducted the case, it was necessary for her to determine if Mrs Brooks suffered an injury and, if so, whether that injury was a personal injury or an injury in the nature of an aggravation of a disease, and if employment was a substantial contributing factor to the injury found. It was then necessary for her to determine if the medical expenses claimed by Mrs Brooks were reasonably necessary as a result of the injury found. The Arbitrator made no findings on any of these issues.

To avoid confusion, and to ensure that this decision is not quoted out of context, I add that it will not always be necessary, or possible, for an Arbitrator to make a finding on the exact pathology caused by the alleged work incident (Kempsey Shire Council v Kirkman [2010] NSWWCCPD 104 at [82]), and that causation can be established though the precise diagnosis is not known (Grace v Elmasri [2009] VSCA 111 at [131]–[137]). However, in the present case, where the nature of the injury was sharply in focus, and the parties and their experts addressed it at length, the Arbitrator had to properly consider it and give reasons for her findings. She did not do that.
It follows that grounds (a) and (b) of appeal must succeed and that the case must be re-determined.

CONSIDERATION OF THE EVIDENCE

Submissions

This ground relates to the Arbitrator’s statement (at [11]) that “the account [the bill for outstanding fees] from the physiotherapist [Mr Messiter] does not note either the reason for attendance or the body part treated”. Mr Macken submitted that the Arbitrator ignored the evidence in Mr Messiter’s clinical records, which make it clear that he only treated Mrs Brooks for her left hip. Thus, all of Mrs Brooks’s attendances on Mr Messiter (and, most relevantly, those prior to the alleged date of injury) were related to her left hip.
Mr Macken further contended that the Arbitrator’s treatment of Dr Smith’s evidence provided no basis for rejecting his evidence in preference for any other evidence.
Mr Nicholson contended that Mr Macken made no attempt to identify any error under this ground. He said that the submission about Mr Messiter’s account made no attempt to address its relevance “in the real contest in the matter between Dr Best and Dr Smith”. He added that the attack on the Arbitrator’s treatment of Dr Smith’s evidence ignored the Arbitrator’s “clear preference for the evidence of Dr Best and Dr Walker for that of Dr Smith”.

Discussion and findings

Mr Macken’s complaint that the Arbitrator ignored the clinical records from Mr Messiter is correct and is consistent with his complaint that she failed to engage with the evidence or the parties’ submissions. Though Mr Macken did refer, in his submissions to the Arbitrator, to Mr Messiter’s account, which referred to Mrs Brooks attending on 10 and 16 February 2012 (that is, before the injury), he also referred to Mr Messiter’s clinical notes, which, when read as a whole, make it clear that the attendances on 10 and 16 February were for the left hip.
The relevance of the submission about these notes was that the references to Mrs Brooks having physiotherapy for her left hip in February 2012, a few days prior to the accident on 27 February 2012, was (arguably) inconsistent with Mrs Brooks’s evidence that her left hip pain had resolved in about November 2011. That was an issue the Arbitrator had to address but did not.
It was not sufficient for the Arbitrator to dismiss the evidence from Mr Messiter by merely saying that his account did not note the reason for the attendance on 10 and 16 February 2012 when the clinical notes, to which the Arbitrator did not refer, did explain the reason for the attendances. Mr Messiter’s notes were an important part of Mr Macken’s case, which the Arbitrator simply ignored. The Arbitrator therefore erred in failing to deal with the notes.
In view of my findings on grounds (a) and (b), it is not necessary to deal further with the Arbitrator’s handling of Dr Smith’s evidence.
It follows that ground (c) of the appeal must succeed.

ABSENCE OF REPORTS FROM MR MESSITER AND DR COLLINS

Submissions

The main contention under this ground is that the Arbitrator did not consider the significance of the absence of any reports from Mr Messiter, the treating physiotherapist. Mr Macken accepted that the absence of a report from Mr Messiter “gives rise to an inference only that the evidence from [Mr Messiter] would not assist [Mrs Brooks]”.
However, he added that, in circumstances where Mr Messiter was treating Mrs Brooks up until the period shortly prior to the alleged injury and again after the injury, the fact that evidence from the physiotherapist “does not assist [Mrs Brooks] is an extremely important consideration into the determination of the disputed issues”.
Mr Nicholson submitted that there was no basis to this ground. He contended that the medical contest was between Dr Smith and Dr Best.

Discussion and findings

Mr Macken’s submissions have raised a Jones v Dunkel point, though he has not expressed it in those terms.
The principles that arise when a party takes a Jones v Dunkel point were succinctly summarised by Macfarlan JA (Ward and Gleeson JJA agreeing) at [53] in MSPR Pty Ltd v Advanced Braking Technology Ltd [2013] NSWCA 416. It is convenient to set out his Honour’s summary in point form:
(a)     “[a] Jones v Dunkel inference may be drawn against a party where the party would be expected to, but does not, call a witness who could give evidence on a relevant matter and that failure is unexplained (Payne v Parker [1976] 1 NSWLR 191 at 201)” (Payne) (two other preliminary points identified in Payne, as being necessary before a Jones v Dunkel point arises, were that the witness’s evidence would elucidate a particular matter and that his or her absence is unexplained);
(b)     “[t]he inference to be drawn in these circumstances is not that the witnesses’ evidence would have been adverse to the party, but simply that it would not have assisted the party’s case (Kuhl v Zurich Financial Services [2011] HCA 11; 243 CLR 361 at [64]; ASIC v Hellicar [2012] HCA 17; 247 CLR 345 at [168] and [232])” (Hellicar);
(c)     “[t]he inference permits the Court to make a finding unfavourable to the party with greater confidence (Hellicar at [232])”;
(d)     “for a Jones v Dunkel inference to be drawn, there must be evidence that the party against whom it is to be drawn is required to explain or contradict (Schellenberg v Tunnel Holdings Pty Limited [2000] HCA 18; 200 CLR 121 at [51])”, and
(e)     “to base a judgment against a party simply upon his or her failure to call evidence would involve the erroneous drawing of an inference that the party’s evidence would have been positively adverse to his or her interests”.
To the above points may be added that the failure to call a witness a party would normally be expected to call does not mean that the court applies “some indeterminate discount to the cogency of whatever evidence was called” (Hellicar at [155]). In other words, other evidence may establish the party’s case, even without the missing witness.
Significantly, where Jones v Dunkel applies, other evidence may, not must, be accepted and inferences drawn more readily (Galea v Bagtrans Pty Ltd [2010] NSWCA 350 at [2] and [52]–[62]). The drawing of an inference is not mandatory and, “generally speaking, these inferences only become material where the balance of the evidentiary record is equivocal” (Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53 at [79]).
Applying the above principles, the first question is whether Mr Messiter was a witness Mrs Brooks would be expected to call. He was the treating physiotherapist who treated Mrs Brooks’s left hip both before and after the incident on 27 February 2012. Thus, he is well placed to comment on the complaints she made, if any, on the occasions when he saw her.
Mr Messiter’s notes were in evidence and recorded no history of the work incident, though he saw Mrs Brooks on 16 March 2012, just over two weeks after the event. Thus, his evidence was relevant to an issue in dispute, namely, the condition of Mrs Brooks’s left hip shortly before the work incident and whether she mentioned the work incident to him. As the absence of such a report was unexplained, the Arbitrator erred in not considering if she should have drawn a Jones v Dunkel inference.
It is important to note, however, even if a Jones v Dunkel inference were drawn, it would only be to the effect that Mr Messiter’s evidence would not have assisted Mrs Brooks’s case, not that it would have been adverse to her case. Moreover, on the current state of the evidence, it is difficult to see what a report from Mr Messiter would add to his notes. Without expressing a view on the present matter, it should be noted that it will be the exception, rather than the rule, that a Jones v Dunkel inference will be drawn against a worker for failing to obtain a report from a physiotherapist.
The grounds of appeal also referred to an absence of a report from Dr Collins. Though Mr Macken made no submissions on this issue on appeal, he did submit on it at the arbitration. As the matter must be re-determined by another Arbitrator, it is appropriate that I deal with this issue.
The first question is whether Dr Collins was a witness Mrs Brooks would be expected to call. He is, in my view, in a different position to Mr Messiter. As Mrs Brooks’s claim form included an authority for the University to obtain information from, among others, her “doctor”, it was equally open to the University to have obtained a report from Dr Collins, as it did from Dr Best. More importantly, the medical certificates in evidence from Dr Collins take a consistent history of the work incident having caused an injury to Mrs Brooks’s left hip and are supportive of the claim.
Therefore, in the circumstances, there was no expectation that Mrs Brooks would obtain a report from Dr Collins to say what he had already said in his certificates. There is no need for a party to call all available evidence (Hellicar per Heydon J at [234]). Nor is there a requirement to call cumulative evidence (LexisNexis Butterworths, Cross on Evidence, 9^th ed, 2013, at [1215]).
It follows that no Jones v Dunkel inference is available in respect of the absence of a report from Dr Collins and it is not open to the University to argue this point at the second arbitration.

ONUS OF PROOF

Submissions

This ground relates to the Arbitrator’s summary of Mr Macken’s submissions at [10] of her decision. The Arbitrator recorded that, among other things, Mr Macken submitted:
“(a) [Mrs Brooks] had not discharged her onus or proof and any aggravation of a pre-existing condition, due to the injury in February 2012, had ceased.
(b) there was no change in pathology before or after February 2012.”
Dealing these points, the Arbitrator said (at [11]) that she had not been referred to any “specific evidence to support” these submissions and she could not identify any such evidence. Mr Macken submitted that, by suggesting that it was necessary for the University to point to specific evidence to support its submissions, the Arbitrator has reversed the onus of proof.
Relevantly, Mr Nicholson submitted that, by looking for evidence to support a submission, the Arbitrator did not reverse the onus of proof.

Discussion and findings

Regrettably, because of the history of the matter, the way the arbitration proceeded, and the Arbitrator’s inadequate reasons, this issue has become somewhat confused.
Mr Macken’s submission at the arbitration was that Mrs Brooks had not discharged the onus of proof on injury. It is tolerably clear that, though the s 74 notice did not properly raise injury as an issue, Mrs Brooks was being put to proof on that issue and Mr Nicholson did not object to that course. In these circumstances, Mrs Brooks could prove an aggravation injury, by relying on Dr Smith’s evidence, though obviously she did not accept his opinion that the effect of the injury had ceased.
If the injury were found to be an aggravation injury under s 4(b)(ii), to which employment was a substantial contributing factor, and that, prima facie, the effect of the injury was continuing, the evidentiary burden would shift to the party asserting that the effect of the injury had ceased. He who asserts must prove (The Commonwealth v Muratore [1978] HCA 47; 141 CLR 296 at 302–3). If this was what the Arbitrator was referring to at [10(a)], she erred in saying that she had not been referred to any evidence to support the submission that any aggravation had ceased. She had been referred to the evidence from Dr Smith. Contrary to Mr Macken’s submission, she did not reverse the onus of proof.
However, Mr Nicholson did not rely on Dr Smith’s evidence to establish injury. He relied on the evidence from Dr Best, which was to the effect that “[t]he history, MRI scans, physical examination and operative findings [were] completely consistent” (Dr Best’s report of 16 November 2012). The logical inference from this evidence, which Mr Nicholson urged the Arbitrator to draw (T22.32), was that the injury was a personal injury under s 4(a), namely, a tear to the labrum caused when Mrs Brooks jumped out of the way of falling ceiling tiles at work on 27 February 2012. While the Arbitrator said that she found Dr Best’s evidence compelling, she did not say if she drew the inference that Mr Nicholson invited. Thus, the matter must be re-determined.
The Arbitrator’s point at [10(b)], combined with her comment at [11], is difficult to follow. It was the University’s case that, because there was no injury, because there was no change in pathology after the 27 February 2012 incident, Mrs Brooks had not proved her case. Consistent with that case, Mr Macken submitted several times at the arbitration, that there was no evidence of pathology caused by the incident on 27 February 2012 (see, for example, T27.28). It was therefore illogical for the Arbitrator to say that she was “not referred to any specific evidence [by the University] that there was no change of pathology before or after February 2012”. Mr Macken’s submission was that there was no evidence of any relevant change in pathology. Therefore, on his argument, there was nothing to which the Arbitrator could be referred.
However, Mr Macken’s submission that there is no evidence of pathology caused by the incident on 27 February 2012 was not correct. As explained at [76] above, there is evidence of pathology in Mrs Brooks’s left hip after the work incident, namely, MRI and surgical evidence of a tear of the labrum. That evidence, which Dr Best considered and commented on, if properly considered, with due regard to the issues in the case, is capable of supporting a finding that Mrs Brooks suffered a tear of the labrum (that is, a personal injury) on 27 February 2012. The Arbitrator’s error was in not considering and determining that issue, not in reversing the onus of proof.
As to the issue of onus of proof generally, it is prudent to keep in mind the basic principles. They are that “if evidence is required to meet an issue, the party asserting the factual basis for the issue raised bears the responsibility for adducing the necessary evidence” (Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 (by the court – Bathurst CJ, Beazley P and Tobias AJA) at [112]).

OTHER MATTERS

To avoid confusion at the next arbitration, Mr Nicholson’s submissions on whether the employment substantially contributed to the injury and what resulted from the injury require further comment.
At the arbitration, Mr Macken made the following submission about why the Arbitrator should accept Dr Smith’s evidence:
“It is untainted by the incorrect history because, of course, he expresses a view that [Mrs Brooks’s] condition is not causally connected to the incident, and he then comments on those records provided and says that they support rather than contradict the opinion he expressed and support his view that the condition is not causally connected to any injury with [the University] and, particularly, employment is not a substantial contributing factor to any injury with [the University].” (T11.31) (emphasis added)
Mr Macken later submitted that the evidence on substantial contributing factor was “not there” (T29.7). If Mr Macken was submitting that there was no evidence that Mrs Brooks’s employment was a substantial contributing factor to the injury, his submission was wrong and misleading. Dr Best gave unequivocal evidence that Mrs Brooks’s employment was a substantial contributing factor to the injury (see [13] above). That evidence, if properly considered in light of the other evidence and the submissions made, is capable of supporting a finding in Mrs Brooks’s favour on the substantial contributing factor issue. Whether that finding should be made is a matter for the next Arbitrator.
The emphasised part in the submission quoted at [81] above was misleading and also wrong. As explained above, Dr Smith conceded that Mrs Brooks suffered an aggravation injury. More importantly, he made no comment on whether employment was a substantial contributing factor to that injury. The only reasonable inference from his evidence is that he considered that Mrs Brooks’s employment was a substantial contributing factor to the aggravation injury, but he thought that the aggravation had “resolved”.
It should be noted that, with an aggravation injury, employment only has to be a substantial contributing factor to the aggravation not the underlying condition (Murray v Shillingsworth [2006] NSWCA 367; 68 NSWLR 451; 4 DDCR 313 at [64]). In that sense, Mr Nicholson’s submission that, on the medical evidence, “substantial contribution” was not in issue was partly correct. However, that was not the end of the matter. That is because, as explained above, Mr Nicholson did not rely on Dr Smith’s evidence on the injury issue. He relied on Dr Best’s evidence.
What Dr Smith put in issue was whether, as he asserted, the effect of the aggravation injury had “resolved” by the time he saw Mrs Brooks on 28 May 2012. If it had resolved by that date, then the University would be entitled to argue that it is not liable for the claimed hospital and medical expenses incurred after that date because they were not reasonably necessary as a result of the injury. (I infer that expenses incurred after that date, which include the surgery, make up the vast bulk of the medical expenses in this case.)
Once it is established that a worker has received an injury, and that employment was a substantial contributing factor to that injury, the next question is, as Mr Nicholson submitted on appeal, whether the relevant incapacity, impairment, or medical expense has resulted from that injury (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796). Before the “results from” question arises, an Arbitrator must properly determine the injury and substantial contributing factor questions, if they are properly in dispute. The Arbitrator in the present case did not do that.
The critical point, which the University has overlooked in its s 74 notice, is that employment only has to be a substantial contributing factor to the injury. It does not have to be a substantial contributing factor to the incapacity, impairment or need for medical treatment (Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWLR 725; Bielecki v Rianthelle Pty Ltd t/as Belfera [2008] NSWWCCPD 53 at [19]–[25]).

CONCLUSION

The Arbitrator’s decision must be and is revoked. The matter is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision. If the University wishes to dispute injury, it should file an amended s 74 notice that complies with the legislation. Given the history of the matter, it is difficult to see how Mrs Brooks could allege any prejudice to such an amendment, albeit that it is late in the proceedings.

DECISION

The Arbitrator’s determination of 30 June 2014 is revoked and the matter remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision.

COSTS

Each party is to pay her or its own costs of the appeal.
Costs of the first arbitration, and of the second arbitration, are to follow the outcome of the second arbitration.

Bill Roche
Deputy President

20 October 2014

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

ASSOCIATE